Melbourne Law School Centre for Comparative Constitutional Studies

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2006 Seminars and Lectures

 

If you are interested in registering for any upcoming seminars or receiving information about future events, please contact the Centre’s Administrator, Emma Brimfield

 

 5 December: Seminar - The High Court’s Work Choices Decision: Analysis and Implications for Employment Law and Constitutional Law
Justin Burke (Barrister, Counsel for Commonwealth on the Work Choices Case)
Rosemary Owens (Associate of the Centre for Employment and Labour Relations)
Professor Cheryl Saunders AO (Founding Director of the Centre for Comparative Constitutional Studies)

On 14 November, the High Court handed down its much-anticipated decision on the constitutional validity of the Federal Government’s Workplace Relations Amendment (Work Choices) Act 2005 (Cth) (Work Choices). Dismissing the challenges brought by the State Governments and trade union organisations, the High Court upheld the reliance by the Commonwealth on the corporations power to regulate relations between corporations and their employees. This seminar was jointly sponsored by the Centre for Comparative Constitutional Studies and the Centre for Employment and Labour Relations Law. Justin Bourke, one of the six counsel that acted for the Commonwealth in the Work Choices constitutional challenge, summarised and analysed the plaintiffs’ challenges to the legislation and the High Court’s judgment. Rosemary Owens and Professor Cheryl Saunders, explored the implications, both immediate and longer-term of the decision for federalism and for industrial relations in Australia.

Please refer to the Seminar Flyer for further details about this event.

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 28 November: Seminar - Hong Kong's Political Autonomy and its Continuing Struggle with Universal Suffrage
Mr Phil C.W. Chan (Visiting Fellow, Asia-Pacific College of Diplomacy, ANU)

Hong Kong has faced tremendous transitions in the past two decades, as the United Kingdom and the People’s Republic of China negotiated the political future of Hong Kong which culminated in China’s resumption of sovereignty over Hong Kong on 1 July 1997. Whilst massive human rights violations in Hong Kong under Chinese (communist) rule have not materialised after 1997, the autonomy as has repeatedly been promised to the people of Hong Kong by the British and Chinese governments has nonetheless been eroded. Universal suffrage, the cornerstone and ultimate indication of every a developed society, continues to be denied the people of Hong Kong. In this seminar, Mr Chan   assessed the political autonomy or otherwise of Hong Kong and its continuing struggle for universal suffrage. He assessed the question of whether Hong Kong is entitled to the right of self-determination in and under international law and, if so, what the right entails and whether and how it has been violated or implemented. He also discussed whether and how the ultimate aim of universal suffrage in Hong Kong continues to be diluted. Finally, Mr Chan examined the constitutional implications of the Standing Committee of the National People’s Congress’ power and use of interpretation of a law that is meant to be the ultimate law of Hong Kong.

This seminar was presented by the Asian Law Centre and Centre for Comparative Constitutional Studies

Biography: Mr Phil C. W. Chan is a legal scholar specialising in human rights, international law and constitutional law and currently Visiting Fellow at the Asia-Pacific College of Diplomacy. He has written numerous articles in international refereed journals and is Guest Editor of the International Journal of Human Rights’ two forthcoming Special Double Issues on equality in Asia-Pacific and protection of sexual minorities. Previously, Phil was Researcher at energy law practice at Baker Botts LLP and Visiting Fellow at the British Institute of International and Comparative Law, the Gender, Sexuality and Law Research Group at Keele University School of Law, and the Lauterpacht Research Centre for International Law at the University of Cambridge. His seminar is based on his article to appear in the Singapore Journal of Legal Studies.

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8 November: Seminar- Transnationalism and Common Law Constitutionalism
Professor Vicki Jackson (Georgetown University Centre of Law, Washington DC)

Professor Jackson spoke about the implications of domestic constitutions, which operate within an increasingly transnational legal environment. Should transnational legal sources (international and/or foreign) be considered in constitutional adjudication? If so, how, when, and for what purposes? These questions are bound up with broader debates over appropriate methods of constitutional interpretation, debates that are quite vigorous in the United States. Professor Jackson argued that common law constitutionalism is the legitimate interpretative approach within which these questions can be appropriately resolved. 

Biography: Vicki C. Jackson is a Professor of Law at Georgetown University Law Center, where she teaches U.S. constitutional law, comparative constitutional law, federal courts, and related courses. She has written on U.S. federalism, sovereign immunity, freedom of speech, gender equality, constitutional interpretation and on comparative constitutional law. Samples of her recent work include The Supreme Court, 2004 Term, Comment: Constitutional Comparisons: Convergence, Resistance, Engagement, 119 Harv. L. Rev. 1 (2005); Being Proportional about Proportionality (reviewing David Beatty, The Ultimate Rule of Law), 21 Constitutional Commentary 803, 810-29 & 857-59 (2004); Comparative Constitutional Federalism and Transnational Judicial Discourse, 2 I.CON 91, 96-110 (2004); Holistic Interpretation, Comparative Constitutionalism and Fiss-ian Freedoms, 58 U. Miami L. Rev. 265, 284-95 (2003); Transnational Discourse, Relational Authority and the U.S. Court: Gender Equali ty, 37 Loyola L.A. L. Rev. 271, 318-50 (2003) and (with Mark Tushnet) Comparative Constitutional Law (Foundation, 2d ed. 2006) and Defining the Field of Comparative Constitutional Law (Vicki C Jackson & Mark Tushnet, eds.) (Praeger, 2002).

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18 October: Seminar, Bills of Rights and British Decolonisation (and How Australia Missed the Commonwealth Charter of Rights Bandwagon) ***This event has been postponed
Dr Charles Parkinson (Visitor, CCCS)

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14 September: Seminar - The Coalition Invasion of Iraq: The Recognition and Enforcement of International Law in the Courts of the UK and Ireland - Significance for Australia
Professor Geoffrey Lindell (Professorial Fellow, Melbourne Law School)

Presented by CCCS and the Asia Pacific Centre for Military Law, this seminar examined recent British and Irish cases in which the legality of the 2003 Coalition invasion of Iraq has been challenged. Professor Lindell used these cases to explore the relationship between domestic and international law and evaluate the significance of these issues for  Australian public law.

View the Discussion Paper

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14 September: Seminar - Education, the Australian Constitution and the Commonwealth - He Who Pays the Piper, Calls the Tune
Professor Geoffrey Lindell (Professorial Fellow, Melbourne Law School)

At the establishment of the Commonwealth, education was a State responsibility when government expenditure and other involvement in education was much smaller than it is today. No reference was made to education in the Australian Constitution until the successful amendment in 1946 enabling the Commonwealth to provide “benefits to students” (Constitution section 51(xxiiiA)). This seminar explored the constitutional basis for the dramatic growth in Commonwealth responsibility for the control and provision of education under that power and other powers, most notably the power to grant financial assistance to the States under Constitution section 96 and the corporations power under Constitution section 51(xx). 

View the Discussion Paper

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12 September: Roundtable Discussion - Can Constitutional Courts Solve Serious Social Problems? Segregation, Abortion and Access to Housing
Professor Geoffrey Lindell (Professorial Fellow, Melbourne Law School)

This roundtable explored whether Constitutional Courts can and should try to solve serious and long-standing social, political and economic problems. It also addressed the limits on the reach of judicial power. In order to do this, the following three case studies were analysed:

View the Discussion Paper

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30 August: Seminar, The Failure of Criminal Racial Vilification Laws in Australia
Mr Dan Meagher (Visitor, CCCS and Deakin University)

In this seminar, Dan Meagher considered the efficacy of the two main legislative models in Australia which make racial vilification a crime. He considered whether the laws are compatible with the protection and promotion of freedom of speech; whether they sit comfortably within the existing criminal law frameworks; and whether the text of the offences are sufficiently clear and precise. Mr Meagher argued that the current models are fundamentally flawed and ought to be repealed and replaced with a particular kind of penalty enhancement statute.

Biography: Dan Meagher is a senior lecturer at Deakin University. He teaches constitutional and criminal law and his research interests include constitutional law, criminal law, legal philosophy and human rights law. Dan is currently focussing his research on exploring the efficacy of Australian racial vilification laws and in particular whether criminal racial vilification laws have a place on the Australian legal landscape.

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22 August: Seminar, Anti-Terrorism and Migration Detention in Canada: The Supreme Court Charter of Rights Challenge
Mr Rayner Thwaites (Visitor, CCCS and University of Toronto)

In June 2006, the Supreme Court of Canada heard three significant cases about the deportation, and possible indefinite detention, of non-citizens. The cases are a constitutional challenge to the “security certificate” regime under which the relevant Canadian Ministers can issue a certificate stating that the named non-citizen is “inadmissible” on grounds of national security, violating human or international rights or of serious or organised criminality.

There are obvious parallels between the pending Canadian cases and other recent decisions bearing on the indefinite detention of non-citizens including the High Court’s decision in Al Kateb.

However, one obvious difference is that argument in the Canadian cases focused on the human rights protected by the Canadian Charter of Rights and Freedoms. This presentation analysed the various human rights arguments presented by the parties in the litigation and explore their significance for detainees in Canada and the impact of their absence in Australia.

Biography: Rayner Thwaites is a doctoral candidate and Connaught scholar at the University of Toronto. He is writing on the indefinite detention of non-citizens. In early 2006, he assisted one of the interveners in the “security certificate” litigation discussed above. He has lectured in Australian constitutional law at the University of Melbourne, served as an Associate to Justice Merkel of the Federal Court of Australia and practiced with the Public Interest Law Clearing House (Vic) and Mallesons Stephen Jaques.

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16 August: Seminar, Constitutions and Nation-(re)building
Professor David Feldman (University of Cambridge and Miegunyah Distinguished Visiting Fellow)

Constitutions typically have two different functions in building national identity and state institutions. First, they have short-term goals: ending war; providing a set of arrangements round which competing political groups can unite; creating institutions that advance the purposes of those arrangements. Secondly, they have long-term goals: securing the conditions for a continuing and successful existence for the state, having regard to economic, social and political exigencies. In pursuit of these goals the drafters of constitutions typically deploy a mix of standards and symbolisms drawn from local history, international politics and law, moral or religious systems, political theories, and ethnic and linguistic traditions. The goals often pull in different directions, and no constitution can be expected to contain a set of norms drafted for complete consistency and coherence.

The seminar considered the relationship between national aspirations and values, international pressure and comparative constitutional influences in the drafting of new constitutions, and their implications for the legitimacy and effectiveness of those constitutions. It drew out differences between drafting a constitution with long-term goals and one with only short-term goals. The seminar focused on the 1995 Constitution of Bosnia and Herzegovina, but also took sidelong glances at South Africa’s 1993 and 1996 Constitutions and Iraq’s new Constitution.

Biography: Professor David Feldman is the Rouse Ball Professor of Law and Chairman of the Faculty Board of Law at the University of Cambridge and Miegunyah Distinguished Visiting Fellow, Centre for Comparative Constitutional Studies. He is one of the United Kingdom’s pre-eminent legal scholars. He has combined a career as a leading academic in the field of public law with being profoundly influential in public life. He is an International Judge and Vice-President of the Constitutional Court of Bosnia and Herzegovina. He was also the first legal adviser to the UK Parliament’s Joint Committee on Human Rights (2000-04) and remained a specialist adviser to that Committee until 2005. Professor Feldman’s academic publications traverse an extraordinary range of subject matters and include Civil Liberties and Human Rights in England and Wales (2nd ed, 2002) and the monumental work, English Public Law (2004).

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8 August: Seminar, A Sceptical Canadian Perspective on Charters of Rights
Professor Grant Huscroft (University of Western Ontario)

Bills of rights are usually sold on the basis that they are necessary in order to avoid the ‘tyranny of the majority’. The shortcomings of politicians and the democratic processes are emphasized, while the abilities of judges is and the utility of judicial review are exaggerated. Profound moral disagreement that exists in the community is ignored by focusing on commitment to vague, general concepts like freedom of expression, equality, due process, and so on. Professor Grant Huscroft discussed the implications of Victoria’s Charter of Human Rights and Responsibilities with reference to the New Zealand, UK and Canadian experience. Professor Huscroft observed that the promise to preserve parliamentary sovereignty in one form or another was essential to the passage of bills of rights in countries like Canada, New Zealand, the UK, and in states like Victoria. The legislature is said to retain the last word; it can overrule the courts or the bill of rights itself. That, at any rate, was the sales job. Once in force, however, ostensibly weak bills of rights like the NZ Bill of Rights became strong, and strong bills of rights like the Canadian Charter became stronger. Professor Huscroft argued that the Victorian Charter is likely to develop in similar fashion and have a greater impact than expected.

Biography: Grant Huscroft is an expert on the Canadian Charter of Rights and Freedoms and the New Zealand Bill of Rights Act. He is also one of the authors of the leading treatise, The New Zealand Bill of Rights (2003). He is a Professor at the University of Western Ontario and holds degrees from UWO, Queen's and Auckland. He joined the Faculty of Law at UWO in 2002 following ten years as a member of the Faculty of Law at the University of Auckland in New Zealand, where he was Director of Postgraduate Studies and Co-Editor of the New Zealand Law Review. His publications include three edited collections of essays: Rights and Freedoms (1995, with Paul Rishworth); Litigating Rights: Perspectives from Domestic and International Law (2002, with Paul Rishworth); and Constitutionalism in the Charter Era (2004, with Ian Brodie). He teaches Constitutional Law, Advanced Constitutional Law (Charter Rights), and Administrative Law. 

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May 29: Seminar, Equality and the Shape of Constitutions: Perspectives on Legislative Rights from Canada and the US
Professor Benjamin Berger (University of Victoria, Canada)

Professor Berger discussed the drive towards "popular constitutionalism" and legislative rights, and the way in which the constitutional protection of equality is imagined.

Biography: Professor Benjamin Berger is currently an Associate Professor at the Faculty of Law, University of Victoria, Canada. Prior to joining the Faculty, Professor Berger served as law clerk to Chief Justice Beverley McLachlin in 2002-2003 and was a Fulbright Scholar at Yale University in 2003-2004. His research addresses questions related to constitutional and criminal law and theory, the law of evidence, law and culture, and law and religion. Some of his recent publications include 'On the Book of Job, Justice, and the Precariousness of Criminal Law,' Law, Cultural and the Humanities,' and 'Understanding Law and Religion as Culture: Making Room for Meaning in the Public Sphere.' Professor Berger teaches Criminal Law, Evidence, and Civil Liberties and the Charter.

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18 May:Public Lecture - Regulating Religious Vilification
Dermot Feenan (University of Ulster, Northern Ireland)

Dermot Freenan, a Visiting Fellow at Melbourne Law School during May 2006, spoke about Victoria’s Racial and Religious Tolerance Act 2001 in the context of the post September 11 trend to introduce religious vilification legislation. These laws pose a range of issues regarding religious sensitivity and freedom of expression. Is such legislation effective? Does legislation requiring religious toleration lead to intolerance of other beliefs or undermine multiculturalism? Does human rights analysis assist in resolving some of these issues? His presentation addressed these questions with reference to some such laws worldwide, but with particular reference to the legislation in Victorian and recent religious hatred legislation in the United Kingdom.

Biography: Dermot Feenan LLB MA LLM Barrister-at-Law is a Lecturer in the School of Law, University of Ulster, Northern Ireland, where he teaches medical law, contract law, and gender, sexuality and law. He is a Visiting Fellow in the Law Faculty at the University of Melbourne during May 2006, where he is researching Victoria's racial and religious tolerance law. This research will be presented at the 'Law, Religion and Social Change' conference in Canberra, 26 - 27 May. He has engaged extensively in other comparative socio-legal research and held visiting positions at Cornell University, Monash University and Trinity College Dublin.

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