TABLE OF CONTENTS THE UNIVERSITY OF ADELAIDE ADELAIDE LAW REVIEW ASSOCIATION ADELAIDE LAW REVIEW VOLUME 38 NUMBER 2 Adelaide Law Review Association Adelaide Law School The University of Adelaide Adelaide SA 5005 AUSTRALIA TABLE OF CONTENTS ARTICLES Kim Sorensen Sisyphus in the Agora? How the United Nations Working Group on the Use of Mercenaries Functions as a Special Procedure of the Human Rights Council 257 THE UNIVERSITY OF ADELAIDE Robert Cunningham Four Legs Good, Two Legs Bad? Animal Welfare ADELAIDE LAW REVIEW and vs the World Trade Organization (Featuring Susanah Vindedzis Article XX of the General Agreement on Tariffs ASSOCIATION and Trade and Article 2 of the Technical Barriers to Trade) 311 Greg Taylor The Judicial Incompatibility Clause — Or, How a Version of the Kable Principle Nearly Made It Into the Federal Constitution 351 ADELAIDE Carolyn Adams and What Can I Tell You? Sharing Personal Information Krista Lee-Jones in the Schools Sector 375 LAW REVIEW Grant Hoole and Integrity of Purpose: A Legal Process Approach to Gabrielle Appleby Designing a Federal Anti-Corruption Commission 397 Sarah Moulds Community Engagement in the Age of Modern Law Reform: Perspectives from Adelaide 441 The Hon Michael Fact-Finding and Report Writing by UN Human Kirby and Rights Mandate Holders Rebecca LaForgia 463 CASE NOTES James Morgan Protecting Democratic Integrity: Re Day [No 2] (2017) 343 ALR 181 483 Caitlyn Georgeson Re Culleton [No 2] (2017) 341 ALR 1 495 James Keeves Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd (2016) 340 ALR 25 503 Adelaide Law Review Association Adelaide Law School The University of Adelaide Adelaide SA 5005 AUSTRALIA S U N B C E RUCE LUM THE UNIVERSITY OF ADELAIDE ADELAIDE LAW REVIEW ASSOCIATION ADVISORY BOARD Emeritus Professor W R Cornish Emeritus Herchel Smith Professor of Intellectual Property Law University of Cambridge United Kingdom Judge J R Crawford International Court of Justice The Hon Professor J J Doyle Former Chief Justice Supreme Court of South Australia Emeritus Professor R Graycar Sydney Law School The University of Sydney New South Wales Professor J V Orth William Rand Kenan Jr Professor of Law The University of North Carolina at Chapel Hill United States of America Professor Emerita R J Owens Adelaide Law School The University of Adelaide South Australia Emeritus Professor I Shearer Sydney Law School The University of Sydney New South Wales Professor J M Williams Adelaide Law School The University of Adelaide South Australia ADELAIDE LAW REVIEW Editors Associate Professor Matthew Stubbs and Associate Professor Judith Bannister Senior Student Editors Elizabeth Carroll-Shaw and Rebecca Lynne Mahony Student Editors Loretta Foran Caitlyn Georgeson James Morgan Charles Hamra Luke Hannath Edward Hewitson James Keeves Isabelle Kimber Jake Kriticos Jemma Potezny Nihara Sarker Zoe Underwood James Williams Publications Officer Panita Hirunboot Volume 38 Issue 2 2017 The Adelaide Law Review is a refereed journal that is published twice a year by the Adelaide Law Review Association of the Adelaide Law School, The University of Adelaide. A guide for the submission of manuscripts is set out at the back of this issue. Articles and other contributions for possible publication are welcomed. Copies of the journal may be purchased, or a subscription obtained, from: Administrative Officer For North America: Adelaide Law Review Association William S Hein & Co Adelaide Law School 1285 Main Street The University of Adelaide Buffalo NY 14209 South Australia 5005 USA AUSTRALIA e-mail: <[email protected]> <http://www.adelaide.edu.au/press/journals/law-review> This volume may be cited as: (2017) 38 Adelaide Law Review The articles in this volume are published in 2017. ISSN 0065-1915 © Copyright is vested in the Association and, in relation to each article, in its author, 2017. TABLE OF CONTENTS ARTICLES Kim Sorensen Sisyphus in the Agora? How the United Nations Working Group on the Use of Mercenaries Functions as a Special Procedure of the Human Rights Council 257 Robert Cunningham Four Legs Good, Two Legs Bad? Animal Welfare and vs the World Trade Organization (Featuring Susanah Vindedzis Article XX of the General Agreement on Tariffs and Trade and Article 2 of the Technical Barriers to Trade) 311 Greg Taylor The Judicial Incompatibility Clause — Or, How a Version of the Kable Principle Nearly Made It Into the Federal Constitution 351 Carolyn Adams and What Can I Tell You? Sharing Personal Information Krista Lee-Jones in the Schools Sector 375 Grant Hoole and Integrity of Purpose: A Legal Process Approach to Gabrielle Appleby Designing a Federal Anti-Corruption Commission 397 Sarah Moulds Community Engagement in the Age of Modern Law Reform: Perspectives from Adelaide 441 The Hon Michael Fact-Finding and Report Writing by UN Human Kirby and Rights Mandate Holders Rebecca LaForgia 463 CASE NOTES James Morgan Protecting Democratic Integrity: Re Day [No 2] (2017) 343 ALR 181 483 Caitlyn Georgeson Re Culleton [No 2] (2017) 341 ALR 1 495 James Keeves Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd (2016) 340 ALR 25 503 Kim Sorensen* SISYPHUS IN THE AGORA? HOW THE UNITED NATIONS WORKING GROUP ON THE USE OF MERCENARIES FUNCTIONS AS A SPECIAL PROCEDURE OF THE HUMAN RIGHTS COUNCIL ABSTRACT The proliferation of private military and security companies (‘PMSCs’) in the wake of the end of the Cold War has prompted a variety of reactions concerning the regulation of PMSCs in the ‘market for force’. Some underscore a lack of accountability of the industry and regard PMSCs as having an inimical impact on human rights; others argue that PMSCs are legitimate actors in international society, able to provide efficient and effective support for humanitarian intervention and peacekeeping. While the literature about PMSCs is voluminous, how the United Nations (‘UN’) Working Group on the Use of Mercenaries (‘WGUM’) performs its functions as a Special Procedure of the Human Rights Council (‘HRC’) and thereby seeks to contribute to the promotion and protection of human rights is one of the least studied aspects in the literature on PMSCs. This article argues that how the WGUM performs its functions as a Special Procedure can be ascribed to the Sisyphean dynamics of norm change in the ‘agora’. The WGUM seeks to create a space in the agora for the elaboration of norms and legal discourse on the protection of human rights in the market for force. The WGUM’s efforts to create that space in the agora would appear, however, to be a Sisyphean task in light of widespread opposition from key Western states to the WGUM’s mandate, including the WGUM’s efforts to develop a treaty norm that proscribes the outsourcing of inherently state functions to PMSCs. I INTRODUCTION ursuant to its mandate as a Special Procedure of the Human Rights Council (‘HRC’), the Working Group on the Use of Mercenaries (‘WGUM’) carries Pout fact-finding regarding the impact of mercenaries and private military and security companies (‘PMSCs’) on the enjoyment of human rights. Addition- ally, the WGUM advocates a draft of international principles that proscribes the * In memory of my Dad, Peder Sorensen. Tak for alt. Hvil i fred. BA (Hons), PhD, Grad Dip Ed, LLB (Hons) (Adelaide); Liaison Librarian, Law, University Library, University of Adelaide. 258 SORENSEN — SISYPHUS IN THE AGORA? outsourcing of inherently state functions to PMSCs; these functions include direct participation in armed conflict and the interrogation of prisoners. The WGUM was established in 2005 by the United Nations (‘UN’) Commission on Human Rights (‘CHR’) with a thematic mandate to examine, inter alia, how PMSCs impact ‘on the enjoyment of human rights, particularly the right of peoples to self-determination, and to prepare draft international basic principles that encourage respect for human rights on the part of those companies in their activities’.1 The WGUM examines two broad concerns about human rights vis-a-vis PMSCs: human rights violations (allegedly) perpetrated by PMSCs on local civilian populations and on PMSC employees themselves.2 Examples of the former include allegations of summary executions, arbitrary detention, torture, trafficking of persons and involvement in violations of self- determination.3 Examples of the latter include allegations of harsh working conditions, partial payment or non-payment of wages and inadequate health care in the field.4 In a report to the Human Rights Council (‘HRC’) in 2010, the WGUM presented its Draft of a Possible Convention on Private Military and Security Companies (PMSCs) for Consideration and Action by the Human Rights Council.5 In seeking to create a space in the agora for the elaboration of a treaty norm on PMSCs, the WGUM trudges a Sisyphean path: it faces widespread Western opposition to its mandate and to a treaty norm on PMSCs, and faces widespread 1 Use of Mercenaries as a Means of Violating Human Rights and Impeding the Exercise of the Right of Peoples to Self-Determination, CHR Res 2005/2, UN ESCOR, 61st sess, 38th mtg, Supp No 3, UN Doc E/CN.4/RES/2005/2 (7 April 2005) para 12(e) (‘Use of Mercenaries’). 2 José L Gómez del Prado, ‘Private Military and Security Companies and the UN Working Group on the Use of Mercenaries’ (2008) 13 Journal of Conflict and Security Law 429, 433; José L Gómez del Prado, ‘A United Nations Instrument to Regulate and Monitor Private Military and Security Contractors’ (2011) 1 Notre Dame Journal of International, Comparative, and Human Rights Law 1, 17–23. 3 Gómez del Prado, ‘A United Nations Instrument’, above n 2, 17–23. 4 Ibid 23, citing Amada Benavides de Pérez, Chairperson, Report of the Working Group on the Use of Mercenaries as a Means of Violating Human Rights and Impeding the Exercise of the Right of Peoples to Self-Determination — Mission to Honduras, UN Doc A/HRC/4/42/Add.1 (20 February 2007) 8 [19].