The Annual Castan Centre Human Rights Law Conference – Mid-Week Reviews

By Alana Lazdins, Imogen White, Sam Ryan and John Alizzi
Tim Flannery 1

This week we review a number of sessions from this year’s Annual Castan Centre for Human Rights Law Conference, held on Friday 20 July, which covered issues such as global warming, obesity, UN intervention, social media and the Australian Constitution.


Session 1: Global warming and human rights

By Alana Lazdins

Run by Monash University, the Castan Centre for Human Rights Law fosters the protection of human rights through research and public education. The Centre unites lawyers and academics from multiple disciplines in the context of public forums, seminars and conferences to develop a culture of human rights in Victoria.

On 20 July 2012, the Australian scientist, writer and conservationist Professor Tim Flannery opened the annual Castan Centre Human Rights Conference. Speaking before an overflowing auditorium, Professor Flannery’s 30-minute seminar explored the effect of global warming on human rights.

According to Professor Flannery, the people greatest affected by climate change are also the most socially, politically and economically disadvantaged in the world.

Professor Flannery began his thesis by analogising the environment to the human body. Both entities operate with a metabolism, a temperature and minute components that work in harmony to create an overall stability. When the body experiences increasing temperature, it will acquire a “fever” and “deep changes will occur at the metabolic level of the body we call Earth.” Professor Flannery asserted that a planet suffering from “fever” or climate change fundamentally impacts on basic human rights such as the right to food, water, nationality and protection from damaging rates of change.

According to Professor Flannery, the people greatest affected by climate change are also the most socially, politically and economically disadvantaged in the world. This assertion was supported by anecdotal evidence of Professor Flannery’s research in Borneo, Kenya and Papua New Guinea. He told of his 2007 encounter with pastoralists in North Kenya whose livelihoods depend on an ability to herd goats. Professor Flannery noted two indicators of climate change:

  • First, that the pastoralists were experiencing the worst drought of their generation; and
  • Second, that the specific knowledge of the land (e.g. where to locate water and food for the goats) held by the older men was now redundant due to the unpredictable and fluctuating climate. Climate change has destroyed generational knowledge and the lifestyle of these pastoralists, who have no other means of production.

These anecdotes were powerful, convincing and backed by the research of Professor Will Steffen, the current Climate Commissioner of the Australian Government Climate Commission. The research, presented in a series of graphs, showed the correlation between the 3-4 per cent increase in global green house gas emissions per year and increasing ocean temperature, increasing atmospheric temperature and the fact that the artic ice-caps are at their smallest in recorded history.

Relying on “shame” to compel a nation to bring a non-binding agreement into fruition was unconvincing …

Professor Flannery’s talk was succinct and informative in the limited time he spoke. However, the role of international law in enforcing multi-jurisdictional agreements to reduce greenhouse gas emissions was left largely unexplained. Professor Flannery mentioned that most agreements are not legally binding; however, it would be “shameful” for a country to dishonour itself by reneging the promise. Relying on “shame” to compel a nation to bring a non-binding agreement into fruition was unconvincing and further complicated by the North-South Divide.

In light of these largely unexplored topics, Professor Tim Flannery did bring to the forefront of the listener’s mind the question of what form the law should take to account for the impact of climate change on future generations and whether a mere “agreement” will be a sufficient means of reducing global greenhouse gas emissions.

To listen to a recording of Professor Flannery’s presentation, click here

Dr Thomas and map of McDonalds in the US

Session 4: Unintended consequences of the ‘war’ on obesity – A public health and human rights perspective

By Imogen White

Our media and advertising industries are obsessed with weight and food.  Prime time television is a sea of advertisements for junk food, which clash up against those promoting weight loss pills and gym memberships, whilst television shows like The Biggest Loser and government service announcements persistently promote the need to reach that optimal ‘goal weight’. Meanwhile, in keeping with the all too ubiquitous rhetoric of combat that is bandied around by many governments worldwide, recent public service campaigns have made it abundantly clear that a “War on Obesity” is upon us.

Obesity is, undoubtedly, a serious public health issue; yet the messages conveyed to us by the media and government are contradictory and confusing.  Junk food is readily and cheaply accessible – everywhere, all the time – and yet, obesity is a still viewed by the majority of the population as an affliction of the lazy, the irresponsible. Of those who lack control.

As Senior Research Fellow at the Department of Marketing at Monash University, Dr Samantha Thomas has been exploring this contradiction in detail over the past five years, through her research that looks at the unintended consequences of anti-obesity initiatives.

Dr Thomas discussed the connections between obesity, human rights, government policy and personal responsibility.  Drawing attention to the discrimination faced by obese people and “perpetuated by a whole range of different agencies within the community”, Thomas highlighted the need for policy-based attention to be placed not solely on individuals, but on the food industry itself.

According to Dr Thomas, governments should be doing more to prevent obesity, beyond simply telling people to lose weight.  The food industry must be confronted and advertisements should be regulated.  Governments are failing because they place too much emphasis on the personal responsibility of individuals, rather than the social conditions that surround them.  This idea put forth by Thomas is simple and powerful. By targeting the product rather than the individual, governments can improve the wellbeing and health of the community as a whole without stigmatising obese people as “lazy, gluttonous and constantly doing the wrong thing”.

To listen to an audio recording of Dr Thomas’s lecture, click here.


Sarah Joseph and Gareth Evans

Session 5: ‘The resonsibility to protect’ after Libya and Syria

By Sam Ryan

Initiated in 2001 and endorsed by the UN General Assembly in 2005, the concept of Responsibility to Protect (R2P) has been described by Holocaust historian, Martin Gilbert, as “the most significant adjustment to national sovereignty in 360 years.”

In Session 5 at the Annual Castan Centre Conference, Chancellor of the Australian National University and former Australian Foreign Minister, Professor the Hon Gareth Evans AO QC, discussed the role of R2P in the wake of last year’s intervention in Libya and the current crisis in Syria.

R2P was born out of atrocities in Cambodia, East Pakistan, Uganda, Rwanda, Bosnia and Kosovo through the 1970s, 80s and 90s that occurred despite significant advances in international human rights law following World War II. The extraordinary thing, according to Prof Evans, is how long it took to establish a genuine consensus on how to respond to these catastrophic situations.

Should prevention fail, it is the responsibility of the wider international community to provide protection to the people of the sovereign state by every means prescribed in the UN Charter.

Primary responsibility under R2P rests on the sovereign state itself, to not perpetrate or allow atrocity in its territory. Where necessary, other states and organisations in the international community have the secondary responsibility to assist, if the assistance is accepted. Should prevention fail, it is the responsibility of the wider international community to provide protection to the people of the sovereign state by every means prescribed in the UN Charter.

While debate previously focused on humanitarian intervention, R2P is based on a principle of prevention, using tools such as diplomatic persuasion, sanctions and International Criminal Court processes. Military action is considered an extreme measure of last resort. R2P also engages a wide range of actors, whereas humanitarian intervention generally relied purely on states with the capability of applying coercive military force.

Prof Evans believes that R2P has won “a remarkable degree of acceptance in principle”, and UN Secretary General Ban Ki-Moon commented in September last year that “Our debates are about how, not whether to implement the Responsibility to Protect. No government questions the principle.”

Yet, as the current crisis in Syria has shown, there is still fierce debate about how to implement R2P where prevention has failed and violence is occurring.

… Syria … has undermined R2P’s high point of sixteen months ago, leaving the Security Council paralysed and “barely able to agree on condemnation of the violence.”

Prof Evans hailed the unified Security Council’s resolutions invoking R2P early last year in dealing with events in Libya “as the coming of age of R2P, a textbook example of the doctrine working as it was supposed to, saving lives imminently at risk, and at last decisively cutting across centuries of state practice treating sovereignty almost as a license to kill.”

“If the Council had acted as decisively and robustly in the 1990s as it did in Libya,” he said “the lives of 8,000 others would have been saved in Srebrenica and 800,000 in Rwanda.”

However, partly due to several geopolitical factors, Syria presents a greater and more complex problem. It has undermined R2P’s high point of sixteen months ago, leaving the Security Council paralysed and “barely able to agree on condemnation of the violence.”

A proposed enhancement of R2P, labelled ‘Responsibility While Protecting’ (RWP), involves establishing a set of criteria that would be fully debated before use of force is mandated, and allow enhanced monitoring during implementation.

Five criteria outlined, and supported, by Prof Evans are:

  1. Seriousness of risk – does it justify the use of force?
  2. Primary purpose – is addressing the threat in question the proponent’s primary consideration, and what secondary purposes (such as oil) can be identified?
  3. Last resort – has every other option been explored?
  4. Proportionality – is the scale of action proposed the minimum necessary?
  5. Balance of consequence – will those at risk be better or worse off as a result?

He said that enacting such criteria won’t guarantee Security Council consensus, but will make it more likely.

… policymakers are aware that the alternative to the Security Council working cooperatively within the R2P framework to resolve these cases “is a return to the bad old days of Rwanda, Srebrenica and Kosovo.”

Prof Evans believes an effective implementation of R2P will take time and certainly be too late to be useful in Syria, where “the only alternative to a strongly Russian-supported diplomatic solution – still some distance away, and maybe completely unachievable – may be, unhappily, a full scale civil war bloodbath.”

However, he said policymakers are aware that the alternative to the Security Council working cooperatively within the R2P framework to resolve these cases “is a return to the bad old days of Rwanda, Srebrenica and Kosovo.”

“That means either total, disastrous, inaction in the face of mass atrocity crimes, or action being taken to stop them without authorisation by the Security Council, in defiance of the UN Charter and every principle of a rule based international order. After all that has been achieved in the last decade that would be heartbreaking. And, congenital optimist as I am, I believe that won’t happen.”

Read the full transcript of Professor Evans speech on the Monash University website, or view a video of the presentation.


Sami Ben Gharbia

Session 6: The role of social media in the Tunisian revolution, in the context of the Arab Spring

By Imogen White

The ‘Sidi Bouzid Revolt’ of 2010 saw thousands of Tunisians boldly defy their oppressive government.  They swarmed the streets to protest in favour of democracy, calling for the end of the 23 year long repressive regime of Zine el-Abi Abidine Ben Ali.  Their success is now the stuff of history books – with many viewing this ‘Jasmine Revolution’ as the spark that set off the Arab Spring throughout the Middle East.

Uniquely versatile, cyber activism ingeniously bridges the gap that divides civil society, the politically engaged and the apolitical masses…

Digital activism played a significant role in this uprising.  Speaking to a captivated audience at the Castan Centre Conference on Friday July 10 2012, Tunisian blogger Sami Ben Gharbia provided fascinating insight as to how use of the Internet turned the cogs of this protest in a distinctly modern fashion. Uniquely versatile, cyber activism ingeniously bridges the gap that divides civil society, the politically engaged and the apolitical masses, transfixed to what Gharbia described as “their youtube videos of cute cats”.

As advocacy director at Global Voices and co-founder of the blog nawaat.org, Mr Gharbia worked at the forefront of the internet based protests that encouraged Tunisian citizens to take to the streets.  As he outlined a selection of the various campaigns that were staged in the lead up to the revolution, it quickly became apparent that a successful digital protest combines humour, simplicity and accessibility.  Gharbia discussed how successful campaigns (like the online tracking of the ‘official’ trips taken by the Tunisian presidential plane and the Tunisian Prison Map of 2006) are able to break down the wall of fear and inaccessibility that prevent many from engaging in human rights discourse and protest.

Websites like YouTube, Twitter, Facebook and Google are “unblockable infrastructure”.

“All governments are watching us” said Gharbia. And although this surveillance of internet infrastructure is ubiquitous, inevitable and often alarming, he was at pains to stress that this “social” web we now inhabit is not “blockable.”  Websites like YouTube, Twitter, Facebook and Google are “unblockable infrastructure”.  They intertwine, link up and are capable of disseminating and diverting material throughout their multiplying platforms.  Information will always flow. Censorship may block websites but, encouragingly, it cannot halt the transit of information between individuals whose governments are attempting to silence political protest.

To view a video recording of Mr Gharbia’s lecture, click here.


Session 8: Has Austrlia’s horse and buggy Constitution acquired a few jet engines?

By John Alizzi

The Hon Mr Ron Merkel QC, barrister and former Judge of the Federal Court of Australia, discussed the recent history of changes in the interpretation of the Australian constitution, from a human rights perspective. Mr Merkel suggested that the past ten to 20 years have witnessed developments that may have been thought absurd in the not-too-distant past.

More than a century after the [Constitution] was drafted, it is clear that its interpretation by courts has involved adaptation to political, economic and social change.

The Commonwealth Constitution is essentially about the separation of powers between state and federal governments on the one hand, and the courts, the legislature (parliament) and the executive (centrally the prime minister and cabinet ministers) on the other.

More than a century after the document was drafted, it is clear that its interpretation by courts has involved adaptation to political, economic and social change. Most importantly, Mr Merkel suggested that over the last 20 years, entirely through the efforts of the High Court of Australia in interpreting the constitution, it has been a bulwark against the exercise of arbitrary legislative and executive power vis-à-vis individuals. As a result, rights are now a greater part of court considerations.

The talk focused on specific examples that support this general characterisation. Among the many examples, two themes stood out.

1.       Review of Government Decision-Making by Courts

In general, government decisions relating to individuals are subject to review by courts for legal errors. The most litigated area is migration decisions. An individual whose migration application has been rejected may appeal the rejection. The legislature has attempted to frustrate this avenue of review by declaring that certain decisions are not reviewable by courts. In the case of Plaintiff S157, however, the High Court found that such a clause in legislation (a ‘privative clause’) was of no effect in relation to the High Court, as the power to review such decision is based on the Constitution – it is among the powers provided to the High Court by the Constitution in the separation of powers it establishes – and therefore cannot be removed by legislation.

Mr Merkel also pointed out that the courts can consider not only legal errors, but factual errors made in government decision-making. Specifically, it is possible in some situations that the decision-maker’s power is reliant on objective facts. This is precisely what happened in the Malaysia Solution case – the Minister power’s to declare Malaysia a destination country for the purpose of transporting asylum seekers did not exist, as the required human rights standards did not and do not exist in Malaysia. (See here for a fuller explanation of the Malaysia Solution case, and how the legislature has considered getting around it.)

This development, as well as those in other cases (such as Plaintiff M61), can be viewed as the court standing between voiceless and nameless individual, and the power of the state.

2.       Executive Expenditure without Oversight?

The recent case of Williams was also given detailed consideration. It involved a challenge to the National School Chaplaincy Program for constitutional reasons. The challenge was brought by the father of a Queensland schoolboy. His primary concern was maintaining freedom of religion (a right provided by Section 116 of the Constitution), in the sense that it involves freedom from religious indoctrination (in public school). The judgment in favour of Mr Williams, however, was based not upon freedom of religion. It was based on the restrictions on executive power to spend money without oversight of the parliament. While the case is a complex one, and the government is still attempting to understand its full implications (as evidenced by a talk given by the Attorney-General Nicola Roxon the night before at the University of Melbourne Law School on the dynamic nature of the constitution), Williams is likely to have lasting and unforseen effects on the executive power to spend money. To some degree, then, it restricts executive power to spend without legislative oversight and approval.

… the careful development of law may be a better way to progress than a “generalised one-liner in a bill of rights”.

Other examples included the High Court’s emphasis on freedom of political communication as necessary for the representative democracy established by the constitution despite the absence of an explicit freedom of speech (ACTV v Commonwealth), and the implied limitations on parliament’s power to prevent prisoners from voting (Roach v Electoral Commissioner) and prevent enrolment after an election is called (Rowe v Electoral Commissioner).

Through these examples, in some of which Mr Merkel acted as counsel, the theme of the limits on executive and legislative power recognised by the High Court was said to often go further than countries with a bill of rights. He also noted the High Court’s willingness to accept the constitutional validity of legislation implementing diverse international human rights treaties, such as the Racial Discrimination Act. Mr Merkel ended by suggesting that the careful development of law may be a better way to progress than a “generalised one-liner in a bill of rights”.

To listen to an audio recording of Mr Merkel’s lecture, click here.

Latest