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UNIVERSITY OF WESTERN SYDNEY LAW REVIEW Volume 17 2013 Editor Dr Elfriede Sangkuhl Editorial Committee Margaret Hyland John Juriansz Simon Kozlina Dr Marina Nehme Dr Ludmilla Robinson Elen Seymour David Sinfield (Library Liaison) Dr Louise Thornthwaite Dr Murray Wesson Editorial Advisory Board Professor Michael Adams Professor Fernando Colon Professor Andrea Curcio Professor David A Frenkel Professor Harry Glasbeek Professor Ronald C Griffin Jason Harris Distinguished Professor Michael P Malloy Professor Ian Ramsay Student Editors Anastasia Dalitz Bailey Dunleavy Taylor Macdonald Margaret Malak Gary Moore Melanie Pudig Kieran Ryan Michael Thai The University of Western Sydney Law Review welcomes contributions on any legal topic. Contributions should be sent to the Editor at [email protected]. Alternatively, contributions may be sent to the Editor by post: University of Western Sydney Law Review School of Law University of Western Sydney Locked Bag 1797 Penrith NSW 2751 AUSTRALIA See back pages for advice to contributors, style guide and subscription information. This law review may be cited as (2013) 17 UWSLR. Within the USA and Canada the sole distribution rights are held by Wm Gaunt & Sons Inc 3011 Gulf Drive Holmes Beach, Florida 34217-2199 USA ISSN 1446-9294 The views expressed in the University of Western Sydney Law Review are those of the individual authors. They do not necessarily reflect the views of the editors or the School of Law, University of Western Sydney. © The University of Western Sydney and contributors. Printed by Fineline, Unit 2, 2A Burrows Road, St Peters, NSW. Tel: 02 9519 0552 Fax: 02 9550 6138. Editorial Advisory Board In 2012 the University of Western Sydney Law Review (UWSLR) editorial committee decided to establish an Editorial Advisory Board for the UWSLR. The aims of the Advisory Board are to establish links with leading legal academics from other universities in Australia and the world, broaden the reach of the UWSLR to those other institutions in order to encourage submissions from academics at those and other institutions, and broaden the expertise of the UWSLR editorial committee when seeking external referees and advice on particular submissions. The UWSLR sought members from diverse institutions in Australia and abroad with diverse areas of specialisation. We were fortunate to attract academics who are leaders in their areas of expertise and who are also generous with their knowledge. The UWSLR thanks the members of the Editorial Advisory Board and looks forward to a continuing productive relationship. The members of the Editorial Advisory Board are: Professor Michael Adams: Dean, Law School, University of Western Sydney, Australia. Professor Michael Adams is an internationally recognised specialist in corporate law, governance, securities markets regulation, and legal education. Professor Fernando Colon-Navarro: Associate Dean/Director Institute for International and Immigration Law at Texas Southern University, Thurgood Marshall School of Law, Houston, Texas. Professor Colon- Navarro’s interests are in immigration law, political asylum, property and international human rights. Professor Andrea A Curcio: Full Professor at Georgia State University College of Law. Professor Curcio’s research covers a wide range of social justice issues, including punitive damages, the intersection of gender with procedural and evidentiary rules, and potential avenues of redress for American Indians forced to attend U.S. boarding schools. Professor David A Frenkel: Emeritus Professor at Ben-Gurion University, Professor of Law at Carmel Academic Centre Law School, Israel and head of the Law Research unit of the Athens Institute of Education and Research. Professor Frenkel’s research interests are in medical and health laws and ethics, labour law and employment relations, business law and ethics, and philosophy of waw. Professor Harry Glasbeek: Professor Emeritus and Senior Scholar, Osgoode Hall Law School, York University, Adjunct Professor, Victoria University. Professor Glasbeek is an internationally recognised scholar in Australian and Canadian labour law and evidence law, torts law, Bills of Rights, legal education, corporate law, corporate criminality, corporate social responsibility and occupational health and safety. Professor Ronald C Griffin: Professor of Law, Emeritus, Washburn University, Topeka, Kansas; Professor of Law, College of Law, Florida A&M University, Orlando, Florida; Associate Fellow, International Center for Law and Justice, College of Law, Florida A&M University; Associate Fellow, Center for Great Plains Studies, University of Nebraska, Lincoln, Nebraska. Professor Griffin’s research interests are in bankruptcy, contracts, consumer protection, secured transaction, and technology innovation law and practice. Jason Harris: Senior Lecturer, Faculty of Law, University of Technology Sydney and Fellow, Chartered Secretaries in Australia. Mr. Harris’ research interests are in corporate law, securities law and corporate insolvency. Professor Michael P Malloy: Distinguished Professor and Scholar, University of the Pacific McGeorge School of Law, Sacramento, CA, USA, and an Academic Member of the Athens Institute for Education and Research, Athens, Greece. Professor Malloy is an internationally recognised expert on bank regulation and on economic sanctions. CONTENTS Volume 17 2013 Editor’s Note i UWS Law Alumni Occasional Address 1 Occasional Address ........................... The Hon Justice TF Bathurst Whitlam Institute and University of Western Sydney Law 13 Address Should Aboriginal Peoples be Recognised in the Australian Constitution? .......................................... Professor George Williams Articles Tinkering with the Right to Silence: The Evidence Amendment 25 (Evidence of Silence) Act 2013 (NSW) ............................. Victor Chu Forensic Use of DNA Information v Human Rights and 41 Privacy Challenges .................................................. Khaleda Parven Towards a New Framework in the Law of War: Incorporating 66 Transnational Organised Crime ........................ Regina M Paulose Case Notes The Devil in the Detail: Tarkine National Coalition Inc v Minister 82 for Sustainability, Environment, Water, Population and Communities ..................................................... Amanda Cavanough The Conscience of the King: Kakavas v Crown Melbourne 87 ........................................................................... Ludmilla K Robinson EDITOR’S NOTE I am pleased to present Volume 17 of the University of Western Sydney Law Review. This edition presents some wide ranging legal concerns and demonstrates the breadth of contemporary legal debate. I am pleased that the University of Western Sydney Law Review includes pieces by serving Judges as well as legal academics and legal practitioners, representing the concerns and interests of the legal community. This edition includes an occasional address by the Hon Justice T.F. Bathurst on how the practice of law has changed over the last forty years. We are also fortunate to be able to publish the 2013 Whitlam Institute and University of Western Sydney Law Address given by Professor George Williams, presenting the case for Aboriginal Peoples to be recognised in the Australian Constitution. The scholarly articles address: how the newly enacted Evidence Amendment (Evidence of Silence) Act 2013 (NSW) impact on the right to silence; the challenges to human rights and privacy posed by the increasing use of DNA databases; and how the law of war can incorporate the activities of transnational organized crime. As well, the Law Review contains case notes on two recently decided cases. This edition was made possible through the hard work, co-operation and collegial spirit of the editorial committee and the student editors. The editorial committee and student editors embraced the task with enthusiasm and determination to produce what we believe to be a quality publication. Such standards could only be achieved through the dedication of all those involved in the editorial process. In 2013 the University of Western Sydney Law Review was fortunate to be able to attract high quality submissions from academics covering a diverse range of topics. We wish to thank the academics from around Australia and abroad who generously gave of their time to double blind peer review the articles contained herein. I also wish to thank the contributors for their articles, case notes and commentaries, and for helping to make this edition of the University of Western Sydney Law Review a publication that continues to contribute to vibrant legal discussion. Dr Elfriede Sangkuhl Occasional Address UNIVERSITY OF WESTERN SYDNEY LAW ALUMNI OCCASIONAL ADDRESS 8 NOVEMBER 2013, DOLTONE HOUSE SYDNEY THE HONOURABLE JUSTICE TF BATHURST* I INTRODUCTION A few months ago, when I received a letter from the Dean of Law and the President of the Alumni Association inviting me to speak at this dinner, I accepted with delight. I then put the letter onto one of the piles of papers on my desk, where it vanished for some time. When I finally found it again recently, two things I read caused me to come to a sobering realisation. The first was reading that the University of Western Sydney has been providing high quality legal education for almost 20 years. I, on the other hand, have been attempting to provide moderate quality legal advice for some 40 years. The second was learning that 3,000 students have graduated from UWS’ LLB Program in those 20 years.