NEWSLETTER

Zimbabwe Opposition Minister Visits Melbourne

His visit was kept secret until the last early 2000, when Mugabe was enraged at Volume 4, Issue 2 minute, yet ’s Shadow Minister the defeat of a referendum to increase his September 2005 for Justice, David Coltart, drew hundreds power. Since then, independent judges to hear him speak at two Castan Centre have been hounded out of office and functions in July. After hearing Coltart’s youth brigades terrorise the populace, all story, it is not hard to understand why. as the country continues its economic Castan Centre News 2 tailspin. Torture and killing are routine Coltart, a member of the opposition and the most recent outrage has seen Movement for Democratic Change, was about 700,000 people deprived of their elected to parliament in June 2000 with homes or market stalls in the govern- more than 84% of the vote in his mostly ment’s “cleaning out the filth” campaign, Defamation defender speaks out 6 poor, black electorate. Ever since he combined his stud- which has demolished squatter towns. ies in South Africa It is against this back- with his role as ground that Coltart vis- The gay marriage debate 7 director of a Legal ited in July, Aid Clinic in the speaking at universities early 1980s, Col- in three states, meeting tart has been a with senior politicians The long road to justice 8 strong human and giving numerous rights advocate. In media interviews. His 1987, he founded trip was taken at great the Le- personal risk: six of Col- Restoring Justice in Timor 12 gal Projects Cen- tart’s fellow parliamen- tre in Zimbabwe, tarians have been mur- which now runs dered in the last four 10 legal advice years. In order to en- Around the Faculty 14 clinics for the un- sure his safe passage derprivileged. from the country, all details of his trip were During his visit, kept secret until he was which was ar- in South Africa and he The Year in Review 16 ranged by his old has now returned to an friend, the Dean uncertain future al- of Law at Bond though, at the time of University, Dun- David Coltart at Monash Law can Bentley, Col- writing, he is safe. The Castan Centre was established tart spoke of the long history of human As for the purpose of his visit, Coltart by the Monash University Law rights abuses by ’s regime. ended his speech at the Monash Univer- School in 2000 as an independent, Mugabe came to power in 1980 as a sity Law Chambers with a plea. “I implore non-profit organisation committed hero: he had overthrown the white mi- you, ladies and gentlemen, to play your to the protection and promotion of nority government and yet he pursued part in bringing pressure to bear on the human rights. reconciliation with the white population. Australian government to act, and to act During this time, however, his troops with urgency, so that the plight of these Through research and public edu- conducted a campaign of torture and hundreds of thousands of Zimbabweans cation, the centre generates inno- murder against the Ndbele people which vative theoretical and practical ap- can be addressed”. resulted in almost 20,000 deaths – what, proaches to understanding and An edited transcript of David’s 2005 Gerard in the words of Coltart, “can only be implementing international and Brennan Speech to Bond University starts at domestic human rights law. described as an act of genocide”. page 8. The transcript of his Monash speech The latest wave of repression started in will be added to our website shortly.

Castan Centre for Human Rights Law, October 2005

Castan Centre News

Patrick Dodson Joins Castan Centre Advisory Board

Patrick Dodson, a life-long proponent was appointed Chairman of the Coun- of the rights of indigenous people, has cil for Aboriginal Reconciliation in agreed to join the Castan Centre’s 1991 until he resigned in 1997, stating Advisory Board, which includes pre- that “I fear for the spirit of this coun- eminent human rights scholars, advo- try”. cates and jurists from Australia and around the world. A full list of the When asked about the centre, Mr Advisory Board is at page 13. Dodson said “The Castan Centre bears the name of a great Australian Pat is currently chairman of the Lin- who truly understood the need to giari Policy Centre, a non-government protect and defend the Human Rights organization committed to developing of all the world’s people. I commend independent and informed thinking to and support the work of the Castan improve the lives of indigenous Aus- Centre for Human Rights Law and tralians. He was a commissioner of look forward to being able to assist in the Royal Commission into Aboriginal its work particularly at a time in this Deaths in Custody in 1980, having country where Human Rights are seen previously been a Catholic priest (he in many quarters as peripheral to our Patrick Dodson, Member of the was the first Aboriginal priest). He national values.” Castan Centre Advisory Board

Book Release: Human Rights 2004: The Year in Review

The Castan Centre has recently re- the right to maternity leave remains ill- pers on other “hot button” topics of leased the second in its annual Year In defined, childcare costs are prohibi- 2004. Debbie Mortimer SC reviews Review series. The book, Human tively expensive, women earn substan- the various Australian vilification laws Rights 2004: The Year in Review, is a tially less than men and have about half and asks whether they have caused as collection of papers presented to the of the accumulated superannuation of many problems as they have solved. centre’s annual conference of the same men. To conclude the volume, Richard name, held in Melbourne in December Bourke takes a unique look at the seri- Heisoo Shin, Vice Chairperson of the ous issue of the treatment of detainees 2004. Committee for the Elimination of All at Guantanamo Bay, Cuba, concluding The conference honoured the twin Forms of Discrimination Against that “like a spider web, it is simple anniversaries of the Commonwealth Women, writes about the interna- enough to step around [the] Geneva Sex Discrimination Act (20 years) and tional law system as it relates to gen- [Conventions] or gently pluck one’s the Convention on the der, while Elizabeth Evatt of the Inter- way through. However, like a crazed Elimination of all forms of Discrimina- national Commission of Jurists com- child, the Bush administration has set tion Against Women (25 years) and pares international law with the Aus- about attacking the spider web and featured some of Australia’s most im- tralian system and both women like- now finds itself covered in sticky portant feminist academics and jurists wise see success and failure. Ms Evatt strands that advertise to all the world who reflected on the huge hurdles still focuses on those parts of CEDAW its crime.” standing between women and equality. which were not included in domestic law, while Ms Shin documents the Human Rights 2004: The Year in Review The current Sex Discrimination Com- many obstacles standing in the way of is a lively and informative collection of missioner, Pru Goward, and Professor papers covering many of the most Margaret Thornton both critique the the Committee. Sex Discrimination Act and conclude A particularly pernicious activity affect- important human rights topics of 2004. that, although it has had certain suc- ing women is people trafficking and cesses, it has also failed to provide the Anne Gallagher discusses the practice To purchase the book, visit our website at bridge to equality between the sexes. and documents the fact that Australia www.law.monash.edu.au/castancentre Although the Human Rights and Equal is now a destination country for traf- and follow the links, or phone Kay Mag- Opportunities Commission has made a fickers. large contribution towards equality, nani on 9905 3327. This collection also contains two pa-

2 Castan Centre for Human Rights Law, October 2005

Castan Centre News

Arjun Sengupta Heads Impressive Line-Up for Conference

The line-up of speakers has been final- During his time in Australia, he will might have on the Bill of Rights. ised for the Castan Centre’s annual join the Castan Centre as a Holding The ongoing inquiry into a Bill of conference, Human Rights 2005: The Redlich Distinguished Visiting Fellow. Rights has been perhaps the biggest Year in Review. The conference, Other international issues on the human rights topic of 2005 in Victoria which will hold a spotlight to many of agenda are human rights in the context and Dr Helen Watchirs, the ACT Hu- the year’s most important human of tsunami relief; the likely implications man Rights and Discrimination Com- rights issues, will again be held at the of the UN reform process; and the missioner, will take up the issue from a Malthouse, at Southbank, on 2 Decem- lessons to be learned from Canada for local perspective. In particular, she ber 2005. the proposed Victorian Bill of Rights. will present the lessons learned from World-renowned economic and policy In particular, David Wiseman, of the the enactment of the ACT Bill of expert, Professor Arjun Sengupta, is University of Windsor, Canada, will Rights in 2004. the headline speaker. Professor Sen- consider what effect the exclusion of Bernadette McSherry of Monash Uni- gupta is the UN's Independent Expert economic, social and cultural rights versity will consider human rights and on Human Rights and Extreme Pov- mental health in light of the immigra- erty. He is also Chairman of the Cen- tion detention and Cornelia Rau con- tre for Development and Human troversies. Martin Flynn, of UWA, will Rights, New Delhi, and Adjunct Pro- consider whether low government fessor of Development and Human spending on Aboriginal health, housing Rights at the FXB Center of Harvard’s and education constitutes discrimina- School of Public Health. He is also a tion and Colin Fenwick, of the Centre Member of Parliament in India. Dr for Employment & Labour Relations Sengupta will examine international Law at the , cooperation for eliminating extreme will consider the human rights effects poverty in the context of the global of the Government’s proposed indus- push for a “new deal” for the world’s poorest nations. As the Independent trial relations laws. Expert, Professor Sengupta has been Now in its fourth year, the conference instrumental in developing and popu- is a vital occasion for the wider human larising this concept. Professor Sen- rights community. gupta has previously been an Executive For further details about the conference, Director of the International Monetary including prices and registration details, Fund and has written and edited a number of books, including Reflections please see our website at on the Right to Development and Re- www.law.monash.edu.au/castancentre forms, equity and the IMF: An economist’s world. Arjun Sengupta

New World Human Rights News Page

The Castan Centre has recently re- the situation in Iraq and Guantanamo to a company in Alabama allegedly launched its website and it now in- Bay, the deterioration of Zimbabwe; posting a “whites only” sign on the cludes a new feature to help you keep and the many developments in human bathroom in 2005, the World Human abreast of human rights developments. rights law coming from Canada. Rights News Page will keep you up to The World Human Rights News page Reports have focussed also on the date. features articles on important human uplifting – companies in South Africa Every other section of the website has rights issues from around the world. providing free AIDS treatment to all been improved and is constantly up- The page is updated three times each HIV+ employees; the depressing – the dated. Papers or transcripts from week with reports from human rights execution of two gay teenagers in Iran; each Castan Centre event are posted organisations, features from magazines and the offbeat – the leader of Liberia on the site and many of the papers and newspapers and important news warned all political candidates not to from the centre’s research projects stories. perform human sacrifices to improve are also available. In the last few months, the page has their chances of winning. From racism Go to http://www.law.monash.edu.au/ focused on many hot issues, including in Melbourne’s junior football leagues castancentre/news/world-news.html

Castan Centre for Human Rights Law, October 2005 3

Castan Centre News

Monash announces first human rights LLM degree in Australia

Monash Law School has announced ula at Monash. Castan Centre. A dedicated human that it will introduce the first masters rights course is vital for producing Professor Arie Freiberg, Dean of degree in Australia dedicated to the academics and professionals capable of Monash Law School, said that the pro- study of human rights law in 2006. The advancing human rights scholarship, gram was a logical development of the Master of Laws (Human Rights) will awareness and advocacy in Australia Centre's extensive research activities bring Monash Law's postgraduate pro- and will provide the opportunity for a and throughout the world. gram in line with leading human rights wider range of students to gain access universities in Europe and North to the work of the Castan Centre and The LLM (Human Rights) will be America. launched, together with the LLM its staff. The announcement is the culmination (Regulatory Studies), at an information Subjects to be taught during the first of a large amount of work by the Cas- session on 26 October 2005 at 5.30 pm. year of the course will be available on tan Centre and Monash Law School The launch will be at Monash University the Castan Centre website in October staff to develop the program and ex- Law Chambers, 472 Bourke St. For more tends the already strong presence of 2005. information, please email gradu- human rights subjects in both the un- The introduction of a specialised LLM [email protected] or phone (03) dergraduate and postgraduate curric- at Monash has long been a goal of the 9641 6206.

New Internship Program Introduced for Monash Law Students

After many years of supporting out- improve human rights in the Asian Commission, meaning that interns are standing students to work overseas on region. Not only does it undertake directly involved in the intricate nego- an ad hoc basis, the Castan Centre has research and advocacy, but it also in- tiations and consultations which take announced the establishment of its vestigates individual complaints of place. Should the current UN reform Global Internship Program. abuse and lobbies for international law process result in the replacement of reform. Its current focuses include the Commission, the centre will sup- The Program will assist four of the child rights, torture, disappearances, finest Monash Law School students to port an internship at the new body. the right to food and religious toler- work with some of the world's leading An important part of the Castan Cen- human rights institutions in Europe, ance. tre's mandate is to improve the level Asia and North America during 2005- The final intern will serve with the of human rights discourse in Australia. 06. Each intern will receive a grant Australian delegation to the annual UN By giving interns the opportunity to from the Law Faculty Student Travel Human Rights Commission in Geneva, undertake practical human rights work Fund to help cover their costs. as Monash law students have done overseas, the centre hopes to equip since 2002. The Commission has Australia’s next generation of human Two students will be placed with Hu- primary responsibility in the UN for rights leaders with the skills to con- man Rights First, in New York City, matters concerning human rights. for 12 weeks. Until 2003, HRF was tribute to this process. Australia is currently a member of the known as the Lawyers’ Committee for Human rights. It was established in 1978 and has long been an advocate of human rights issues, and especially of the rights of refugees and asylum- seekers. The organization has broad- ened its areas of focus over the dec- ades and is now a forceful advocate for a wide range of human rights issues. It has operated a robust internship pro- gram for many years and provides in- terns with excellent research, advo- cacy and case work opportunities. A third intern will work for six months with the Asian Commission for Human Rights, based in Hong Kong. The Commission has an ambitious goal to Monash intern, Simone Cusack, at the UN Human Rights Com- mission with Australian Amabassador Mike Smith 4 Castan Centre for Human Rights Law, October 2005

Castan Centre News

Advancing Indigenous Rights New: Online Donations Melissa Castan, an Associate Director of economic, social and cultural rights. of the Castan Centre, was invited to A similar recommendation on self de- In response to requests from our participate in a forum on Indigenous termination was rejected by the ACT members, the Castan Centre has Australian Human Rights at the Abo- Government, however many advo- now set up an online donation facility, rigines Advancement League in August. cates of indigenous rights contend that making it quick and convenient to The Forum was convened in response the protection of these rights is key to support the centre's work. to the Victorian State Government’s improving the lives of indigenous Aus- The centre is consolidating its exist- Discussion Paper Have your say about tralians. There was a vigorous discus- ing programs and planning to intro- human rights in Victoria, which has cre- sion about the issue at the forum, with duce new ones over the course of ated considerable interest in the in- several participants voicing the opinion 2005-06. The recently-introduced digenous community. The paper is part that self determination was an essen- Global Internship Program and the of a broader inquiry into the possibility tial human right the government had LLM (Human Rights) are the first new of enacting a Bill of Rights in Victoria to deal with, whether enshrined in a projects to commence. The centre similar to that enacted last year in the bill of rights or not. also hopes to increase its commit- ACT, and the Government has con- Professor George Williams, Chairper- ment to public education by offering vened the Independent Human Rights scholarships, introducing human Consultation Committee (IHRCC) to son of the IHRCC was in attendance at the forum. Joining Melissa to make rights education programs at primary lead the process. formal presentations were Frank and secondary schools and increasing The forum was the first opportunity Guivarra of the Victorian Aboriginal its commitment to bringing out high- for many representatives of indigenous Legal Service Co-operative Ltd, Muriel profile speakers. In the past, such organisations in Melbourne to meet Bamblett of the Victorian Aboriginal speakers have included Jose Ramos and discuss the issue and its likely im- Child Care Agency, former Chief Jus- Horta, David Weissbrot and Cherie pact on indigenous people. Melissa tice of the Children’s Court, Alistair Booth. discussed the role of self determina- Nicholson QC, and Larissa Behrendt. If you would like more information tion and the prohibition on racial dis- Larissa was a member of the ACT Bill about the Castan Centre’s programs, crimination in both international and of Rights Consultative Committee and or would like to receive a brochure, Australian law. Melissa explored the is Professor of Law and Indigenous please contact Kay Magnani on 9905 point made by the Castan Centre As- Studies and Director of the Jumbunna 3327 or castan.centre sociate Director, Julie Debeljak, in her Indigenous House of Learning at the @law.monash.edu.au. submission to the IHRCC – that any University of Technology, Sydney. bill of rights in Victoria must include To donate, or to sign up for free as a the right to self-determination, as well To view the Castan Centre’s submissions Castan Centre member, please visit as all the civil and political rights cap- to the IHRCC, click on “submissions and www.law.monash.edu.au/castancentre reports” at www.law.monash.edu.au/ tured in the ICCPR, and the full suite and follow the links. castancentre. Vietnamese Delegation visits Castan Centre The gradual opening up of Vietnam’s Vietnam, representatives of the Viet- sive human rights courses for officials centrally planned economy to the out- nam Research Centre for Human in the region, including Indonesia, side world has been accompanied by a Rights (VRCHR) recently visited Aus- Myanmar and Australia. Sarah said growing interest within Vietnam in tralia and Malaysia on a study tour. that the meeting was fruitful, focusing international human rights. In recent The purpose of the tour was to im- mainly on the role the Castan Centre years, Vietnam has signed a number of prove participants’ substantive knowl- plays in improving the human rights international human rights instru- edge of human rights and how they are discourse in Australia, and on its or- ments, however study of the discipline taught; and to improve understanding ganisational setup. is a relatively new academic field in of the organisational methods used by Vietnam: courses in human rights law human rights institutions. The VRCHR was founded in 1994 to are few and the teaching capacity is conduct research and provide training limited. Indeed, none of Vietnam’s As part of the tour, the representa- on human rights issues. It is charged universities incorporate human rights tives met with the Director of the with increasing awareness of human subjects in their international law Castan Centre, Sarah Joseph, at rights law among law enforcement courses. Monash University. The Castan Cen- officials and policy makers and assists tre has considerable expertise in build- the government to translate interna- In a bid to change the landscape and ing human rights capacity in the Asia- tional treaties into domestic legislation improve human rights education in Pacific, having conducted comprehen- and to implement these new laws.

Castan Centre for Human Rights Law, October 2005 5

Defamation Defender Speaks Out

Brian Walters, SC, President of Liberty Victoria and a promi- the consequences. nent civil liberties and defamation lawyer, spoke at a Castan There are, however, tactics which protesters can use in re- Centre public lecture at the Monash University Law Cham- turn. Mr Walters’ favourite tactic is to involve the media as bers on the 9th of August. His talk, Suing into Submission: soon as a threat is made. In the case of his friend, Alan Using Litigation to Quell Dissent, was a lively dissection of the Gray, a logging industry association threatened to sue him way that corporations have used the courts in Australia to for breaches of the Trade Practices Act for assertions made in stifle protest and public discussion. his book, Forest Friendly Building Timbers. Mr Walters alerted This type of litigation – commonly known as SLAPP Suits the media of the threat and the association backed down. (Strategic Lawsuits Against Public Participation) – has a long The book went on to top the non fiction best-seller list for history overseas, the most famous case being the “Mc Libel” several months. litigation in the UK. In that case, McDonalds sued two activ- The same course of action worked when Yarra Trams ists for defamation and became embroiled in a litigation that threatened the Public Transport Users’ Association, how- lasted for 314 sitting days and cost it more than 10 million ever such tactics are risky and hardly reliable. When they pounds in legal costs. McDonalds won judgment of 35,000 fail, litigation is stacked in favour of corporations which get pounds but lost the publicity war by a large margin. tax deductions for legal fees and almost always have far Mr Walters focused, however, on the fact that most SLAPP deeper pockets. The clear message of Mr Walter’s speech suits have much greater success and they have been used in was that the playing field has to be leveled. In most US Australia more widely than one might think. The litigation states, SLAPP suits are now prohibited by legislation and often takes the form of defamation proceedings but may also has recently amended the law to prohibit involve claims related to trespass to land (in the case of all but the smallest companies from suing for defamation. Mr demonstrations) and allegations of breaches of the Trade Walters concluded by saying that this is a matter of free Practices Act. speech, which is recognized in the Universal Declaration of Human Rights and is a cornerstone of western civilization. Mr Walters commenced by talking of the problems encoun- “It is essential that citizens have the freedom, in any medium, tered by community groups in attempting to stop the recent to engage in public debate” said Mr Walters. “Freedom of dredging trial in Port Phillip Bay: their request for an inter- expression permits knowledge to flourish and prejudices to locutory injunction was torpedoed when they were required be challenged, and diminishes the alienation of those who are to provide an undertaking to pay costs if they were unsuc- cessful. Costs were expected to be $32 million. As a result, not heard”. the injunction was not granted and the allegation that the Mr Walter’s is the author of Slapping on the Writs: Defamation, activity is unlawful was not tested by a court. This case is Developers and Community Activism (UNSW Press 2003). His similar to the Mount Etna Bat Caves case in 1989, where a paper Suing Into Submission: Using Litigation to Quell Dissent” is mining company was able to destroy a rare bat cave because available at http://www.law.monash.edu.au/castancentre/ the Central Queensland Speleological Association withdrew events/2005/walters-paper.pdf. its challenge to the legality of the action when asked to de- posit a significant amount of money with the court to cover possible legal costs. More recently, Barwon Water successfully used defamation proceedings to quell the public outcry over its plans to oblit- erate a woodland and replace it with a sewerage treatment facility, despite the fact that the land was protected under four separate listings in the Victoria Flora and Fauna Guaran- tee Act. Protesters came up with a bumper sticker which read “Barwon Water, Frankly Foul”, a reference to Barwon Water’s chairman, Frank de Stefano. Mr de Stefano sued a group of the protesters for defamation and his litigation was funded entirely at Barwon Water’s – and therefore taxpay- ers’ – expense. Facing crippling legal bills and a massive time commitment, the group apologized and paid $10,000 in com- pensation. Community dissent crumbled and, as Mr Walters pointed out, by the time Mr de Stefano was convicted and jailed for theft of $8.3 million from clients of his accountancy practice some years later, the wood was long gone and so was the $10,000. According to Mr Walters, writs are often timed to cause the most damage. In the Barwon water case, the defendants were served on Christmas Eve, ensuring that they could not Brian Walters addresses the audience at Monash get legal advice and would spend the Christmas break fearing University Law Chambers

6 Castan Centre for Human Rights Law, October 2005

Celebrating Marriage: Same Sex Marriage Forum

In 2004, the Australian Government took the extraordinary limiting the Marriage Act to heterosexual marriage, the Fed- step of restricting the rights of certain members of our com- eral Government may have inadvertently opened the way for munity when it passed a law to limit marriage to heterosex- states to make laws relating to homosexual marriage. In ual couples. In order to flesh the issue out, the Castan Cen- both Tasmania and New South Wales, same sex marriage tre held a forum on same sex marriage in May of this year, bills have been prepared and South Australia and the ACT inviting its speakers to address the philosophical and legal have both introduced bills to establish civil union registries. underpinnings of the issue. Grevis Beard provided an over- If the legislative field is perhaps moving slowly in favour of view of legal developments in Australia, Associate Professor same-sex marriage, Raimond Gaita sees the ongoing volatility Kristen Walker did the same for overseas jurisdictions and over the issue as an indication of the deep philosophical rift Professor Raimond Gaita spoke from a philosophical per- within our society. Professor Gaita recounted discussing the spective. Archbishop of Canterbury, Rowan Williamson, and his sup- Mr Beard commenced his talk by noting that the Marriage port for same sex marriage in front of a gay friend. “We Amendment Bill, passed by the Federal Government in 2004, agreed…that it was understandable that in order to prevent directly contravenes the International Covenant on Civil and a split in the Church, Williamson would at least play down Political Rights, which requires nations to ensure that all per- his support for gay clergy. Nick said not a word, but I caught sons are equal before the law. The bill amended the Mar- his eyes. In their pained expression I read these questions: Is riage Act to define marriage as “the union of a man and a it really so obvious that one shouldn’t be prepared to split woman to the exclusion of all others, voluntarily entered the church over this matter? Wouldn’t it be different if ra- into for life”. The bill also prevented same sex marriages cism were the issue?” from other countries from being recognised in Australia. Professor Gaita sees some parallels between the current As Kristen Walker noted in her talk, the number of those debate over same sex marriage and the history of racism in marriages is growing. Same sex marriage is legal in Holland, Australia. For him, both issues are less about rights than Belgium, Canada and Spain while the South African Supreme they are about humanity and dignity. For example, the belief Court has ruled that the constitution protects the right. that aborigines could not have a deep relationship with the More than a dozen countries recognize same sex civil un- land, or with their children, sprung from the failure to see ions. that aborigines were “like us”. Such views, according to Pro- fessor Gaita, can only be challenged by “coming, through On the other hand, Ms Walker noted that the situation in living with a people, to see dignity in faces that had all looked the United States is more mixed. The courts in New York alike to us, to see the full range of human expressiveness in and California have ruled that legislation banning same sex them, to hear suffering that lacerates the soul.” Similarly, marriage is unconstitutional, while Nebraska has gone to the much of the opposition to same sex marriage is driven by next step and passed a constitutional amendment prohibiting homophobia, which Professor Gaita considers to be a way of it. Massachusetts will consider a similar measure in 2006. “denigrating the entire lives of gays and lesbians”. This is Ms Walker noted that President Bush, like many other why the call for the right to marry is not simply a demand American politicians, has supported the idea of a similar fed- for fairness. It is, according to Professor Gaita, “the demand eral Constitutional amendment. for justice conceived as equality of respect”. The position of conservative politicians was a theme taken On the other hand, Professor Gaita suggested that much up by Mr Beard in his talk. He quoted Attorney-General, opposition to gay marriage comes not from homophobia but Philip Ruddock, who stated that heterosexual marriage rather from a belief that same sex unions are simply not “provides the best environment for the raising of children”. compatible with married love; that the legalisation of gay This view was, according to Mr Beard, a re-hashing of the marriage would “sow confusion and degrade the concept of myth that homosexual couples cannot or should not bring marriage”. Professor Gaita concluded by dissecting this ar- up children and a denial of the reality of same sex unions in gument, and in particular the notion that gay love cannot today’s society. There are almost 19,000 same sex couples deepen because it does not incorporate the possibility of registered in Australia. Mr Beard also quoted the Prime conceiving new life. He asked “why should that be a reason Minister, who said that the amendment was “reaffirming a for doubting that gay and lesbian love can worthily rise to, be bedrock understanding of our society” and was not directed vitally responsive to, a full and deep understanding of what it at gay and lesbian people. How can a law which denies gay means to be married, of what it means for love to be trans- people rights not be directed at them, he wondered. More formed by the marriage vow, for love worthily to become disturbingly, Mr Beard sees a connection between the atti- married love? Only ignorance, confusion or residual homo- tude of the Government and the upswing of violence and phobia, I suspect, could make one think that there is a com- intimidation directed against gays and lesbians. It starts at school, where 74% of homosexual youth are subjected to pelling reason.” physical or verbal abuse, and continues right through life. It seems, however, that the Australia states are providing a glimmer of hope. The Constitution prohibits the states from The papers of Mr Beard and Professor Gaita, and the powerpoint making laws governing certain areas if the Federal Govern- presentation of Ms Walker are available at http:// ment makes a law which “covers the field”. By expressly www.law.monash.edu.au/castancentre/public-edu/ssmforum.html

Castan Centre for Human Rights Law, October 2005 7 A Long Road Littered With Injustice Transcript of David Coltart’s Gerard Brennan Lecture to Bond University, 30 July 2005

Good Evening. Last week a UN special Envoy, Mrs Anna was a time of reconciliation. Robert Mugabe established his Tibaijuka, issued a report on the recent mass evictions by credentials as a statesman through enunciating his policy of the Zimbabwe Government of poor people who have been, reconciliation which was directed at the white minority and in the course of the last two months, evicted from their which was designed to bring this dreadful civil war which homes and many of whom have been deprived of their raged during the latter half of the 1970’s to an end. Mugabe source of income. This action, which the Zimbabwe Gov- during that period was correctly praised for that policy of ernment has termed Operation Murambatsvina, which is a reconciliation. But sadly the international community fo- Shona term for “clean out the trash”, commenced on 19 cused on that policy. Unbeknown to the international com- May and Mrs Tibaijuka’s report finds that 700,000 of the munity, unbeknown to many within Zimbabwe, at the very poorest of the poor have in the last two months been either time that the Mugabe regime was promoting a policy of rec- evicted from their homes or deprived of their source of live- onciliation with the white community, it was plotting the lihood or both. In the same report, she finds that 2.4 million demise of the most powerful opposition figures headed by Zimbabweans have been indirectly affected by this action. who ranked with Robert Mugabe as one of Zimbabwe’s leading black nationalist leaders. He was the Let me stress that this is the first United Nations report on Zimbabwe since it became independent in 1980. For some in leader of a party called ZAPU. the international community the actions of the Zimbabwe As early as 1980, Robert Mugabe travelled to North Korea government in the last two months are an aberration. Tragi- where he met with Kim il Sung and, during that meeting the cally, what has happened in the last two months is the direct two of them agreed that North Korea would provide mili- result of a culture of impunity. It is also the result of the tary expertise so that a new brigade could be trained under failure of the international community to respond to human the auspices of the - a rights abuses which took place 20 years ago in Zimbabwe, trained by the North Koreans with the specific objective of and it is also a failure of international law. quelling internal dissent. But that was kept under wraps. To understand why what I have just said is correct, one At the passing out of the 5th Brigade in November 1982, needs to appreciate the historical context in which Opera- Robert Mugabe made the chilling statement that their pur- tion Murambatsvina has taken place. In that regard, I need pose was “to go to the people to plough and reconstruct”. to trace the human rights history of Zimbabwe since Zim- The significance of those words will become apparent. That babwe obtained independence in 1980. I would divide it into passing out parade marked the ending of our first chapter. four chapters. The second chapter started in January 1983, I would term it The first I would entitle The Honeymoon. This period deals . This is another Shona word that describes the with the time from the signing of the Lancaster House Con- spring rain that falls and clears out the chaff that has accumu- stitution in late 1979 and the subsequent elections which lated over the dryer winter months. However, Gukurahundi brought about black Zimbabwean rule in 1980, to the end of had a far more sinister objective and meaning. 1982. The world’s superficial view of that period was that it During the period January 1983 through to mid 1984 the 5th Brigade was deployed into the south west of Zimbabwe, the heartland of the Ndebele people and the heartland of Joshua Nkomo and his ZAPU party. These North Korean-trained soldiers went systematically village by village. If they came across males aged between 16 and 40 and people who spoke Ndebele and especially people who were on the list supplied to the 5th Brigade detailing prominent leaders in ZAPU, they were summarily executed or hauled away to concentration camps. In the course of that period it is estimated that 20,000 Zimbabweans were massacred - that can only be de- scribed as genocide. Sadly the world at the time looked the other way, it was preoccupied with cold war concerns. It was also justifiably concerned about apartheid. Apartheid was unresolved at the time and the western world needed a good precedent on South Africa’s doorstep to encourage white South Africans in particular that there could be life after apartheid. The second chapter Gukurahundi came to an end in Decem- ber 1987 when Robert Mugabe achieved his objective of creating a de facto one party state. Joshua Nkomo and his ZAPU party were in effect swallowed up by Robert Mug- abe’s ZANU PF party. A unity agreement was signed on December 22, 1987 and The press has well documented what has happened in the that ushered in our third chapter of our history, a chapter I last five years. Three hundred MDC members have been would entitle ‘The Gathering Storm’, a chapter which deals murdered. Of the 57 colleagues elected with me in June with the period 1988 – 2000. This was a period of relative 2000, six died during that term of office, all as the direct or peace and calm in Zimbabwe. It already enjoyed acceptance indirect result of torture perpetrated by state agents. All of by the west, so much so that the British Government, know- this has now culminated in Operation Murambatsvina, which ing full well what had happened in Matabeleland between in turn was reported on by the UN special envoy last week. 1983 and 1987, conferred an honorary Knighthood on I wish now to address another more insidious assault on Robert Mugabe. The IMF and World Bank had offered Bal- Zimbabwe’s laws and legal system. What has gone largely ance of Payment support and encouraged the Mugabe regime unreported in the last five years is the systematic subversion to embrace its Structural Adjustment Programs. of our legal institutions which are there, or should be there, Many of us in the human rights community were alarmed. I to uphold the rule of law, to protect human rights, but which argued in the State Department in Washington in August have now been subverted to such an extent that these insti- 1992, pleading that conditions be attached. For Zimbabwe tutions are used as the principle weapons to oppress and to to liberalise its media; that conditions be imposed regarding deny Zimbabweans their constitutionally enshrined rights. the level of defence spending and the like. I was dismissed as And during the last five years virtually every single institution many of my colleagues were, in like manner. in our legal system has been so totally subverted that they This rooted the culture of impunity and it flourished. The are now virtually unrecognisable as law enforcement bodies. Zimbabwe Constitution was amended in 1988, it further The police force in the last five years has been politicised. entrenched executive power. At the time we recorded Lord Individuals who are independent and professional police offi- Atkin’s statement, ‘power tends to corrupt, absolute power cers have systematically been forced out. Senior officials corrupts absolutely’. But the human rights community was have been corrupted, they have been allocated farms, so ignored. much so that the Commissioner of Police in the course of the last few weeks described the poor people who have Almost inevitably with that consolidation of executive power came corruption and by the late 1990’s, corruption was been ejected from their homes as maggots. flourishing and consequently the economy started to plum- But it hasn’t just been subverted at the level of the hierarchy, met. That in turn led to dissatisfaction amongst workers and the rank and file have also been subverted. In the last three that in turn lead in September 1999 to the establishment of years, Zimbabwe has seen the emergence of something the Movement for Democratic Change, the party which I equivalent to the Hitler Youth. Youth brigades have been represent which was, and is, a broad church incorporating trained: we have 80% unemployment and young people have the Trade Union movement, churches, civil society groups very little hope. They have been attracted into youth bri- and the human rights community. gades, they are taken through a course of indoctrination and they have now been channelled back into the police. They It was the formation of the MDC in September 1999 and a are recognisable by their youth and their shaven heads and constitutional reform debate promoted by the MDC and its they have been the vanguard of those destroying homes and allies in civil society that ushered in the fourth and final chap- ejecting vendors from their vending sites in the course of the ter of this potted history which I will term the 3rd Chi- last two months. The police have even gone to the extent murenga, which deals with the period 2000 to current time. Chimurenga is another Shona term, it denotes a war of lib- of looting the goods of informal traders on a massive scale. eration. The first Chimurenga was fought against the British The Attorney General’s Office has also been affected. I have colonel settlers in the 1890’s and lost. The second Chi- spoken about 300 murders perpetrated and let me stress murenga was the liberation struggle during the 1970’s which that many of these were in broad daylight. Many of the per- brought to an end white minority rule. The third Chi- petrators are well known. My own polling agent, Patrick murenga was the name given by the Mugabe regime to de- Nabanyama, was abducted at four o’clock in the afternoon in scribe its policy of acquiring white farms which has drawn so much attention in- ternationally. Unfortunately, it has been the acquisi- tion of farms that has acted as a very effective foil for the regime, because our view is that the acquisition of farms, whilst a legitimate objective – no one in their right mind would argue that there was not a need for fundamental changes to our land holdings – was not the politi- cal objective of the regime. Their politi- cal objective was in fact the consolida- tion of power. And so we have seen in the last five years under the foil of ac- quiring white commercial farms a further attempt to obliterate a lawful political opposition.

the presence of his wife and children. We know the names terms of that act, if any politician wishing to have a political of his eight abductees, they have been reported to the po- meeting – and that is defined as a meeting in a public place lice, I have spoken about them in parliament persistently for involving more than one person – you have to notify the five years. They walk the streets of Bulawayo today. police and the police are given virtually absolute powers to approve of that meeting or to disallow it. If the police disal- That is but one of many cases [where] judges have – in civil low the meeting, you have a right of appeal not to the courts cases brought by the MDC – stated that these people clearly but to the Minister of Home Affairs, and our meetings are appear to be guilty of murders. Requests have been made to the Attorney General’s Office for further investigations to be routinely banned. done and prosecutions initiated. Nothing has happened and From this you will see that there has been a systematic cam- yet in contrast, we have seen during the same period the paign, an all embracing complex program to undermine insti- vigorous prosecution of political opponents. The most high- tutions that should uphold the rule of law. And that brings profile of these was the treason trial of Morgan Tsvangi- me full circle back to the current situation, to Operation rai the MDC leader. Murambatsvina, the so called clean out the trash operation. In a report produced by a South African Civil Society organi- One can only understand Operation Murambatsvina fully if sation – The Solidarity Peace Trust – in March last year, it one understands this historical perspective that I have set was documented that over 50% of all MPs have been sub- out for you this evening. In the run-up to the March election jected to some spurious prosecution, including myself. It this year, Robert Mugabe and ZANU PF declared that their continues. intention was to “bury the opposition” in the same way that the 5th Brigade was used in the 1980’s to crush ZAPU, The judiciary has not been immune. Let me stress that Zim- babwe had a fine judiciary, the Supreme Court in particular Joshua Nkomo’s party. deservedly built a great reputation in the first twenty years Despite all that I have told you, despite the human rights since Zimbabwe’s independence. It was often favourably violations, despite the murders, the rapes, the acts of arson, reported on by other commonwealth jurisdictions. Sadly despite the subversion of all these institutions, despite a that judiciary itself has been almost completely subverted. flawed General Election, the MDC was not buried in March, This process started in 2001. The Chief Justice Mr Antone in fact it won every single urban seat bar one. It did not win Gabe was personally threatened by the Minister of Justice rural seats because we were unable to counter the vile and who stated in mafia style that the government could not wide-spread acts of intimidation and fraud. But the point is guarantee the Chief Justice’s safety, and he then resigned. that the political objective of burying the opposition was not achieved and, it is our belief that, as a result of that, Opera- The Supreme Court is a mere shadow of its former self. Of the six Supreme Court Judges, only one is viewed as inde- tion Murambatsvina commenced. pendent by the legal profession. The Chief Justice, a Senior In Bulawayo, the city I represent, the city council is con- Judge, the Judge President, the head of our second tier of trolled by the opposition. When Mrs. Tibaijuka visited a few courts, the High Court, have been allocated farms. Judges weeks ago, she was handed a report which documented that have been threatened and driven out. This in turn has lead 74,165 people in Bulawayo alone had been evicted from to absolutely farcical judgements. their homes between 19 May and 6 July this year. In doing this the government has violated its own laws. These laws The Law itself has been subverted. We have seen the pas- have reasonable provisions, all of them say that even if there sage of what can only be described as draconian, unconstitu- are illegal structures, the owners of those structures are tional and fascist laws. entitled to personal service of a notice telling them that Let me give you two examples. The first is the so-called those structures are illegal. And after service of those no- Access to Information and Protection of Privacy Act. It is no tices, they are entitled to a period of grace, one month in such thing. It has been used in the course of just the last ten which to rectify the illegality. In the vast majority of cases, days to prevent a licence being given to an independent daily people were given no notice, in some cases a few hours. newspaper with the largest circulation in Zimbabwe. An- The maximum notice that I am aware of is a couple of days. other law is the so-called Public Order and Security Act. In In terms of the UN Report tabled last week, they estimate that 700,000 Zimbabweans have either been evicted from their homes or deprived from the source of their income since 19 May this year. A further 2.4 million Zimbabweans have been directly affected by what has gone on. But let me make this point: operation Murambatsvina came on the back of a humanitarian crisis that was already grave. James Morris the Executive Director of the World Food Program, said that “the greatest humanitarian crisis we face today is not in Darfur, Afghanistan or North Korean but is in fact in South- ern Africa and the epicentre of this humanitarian crisis is Zimbabwe where the world food program estimates four million Zimbabweans are desperately in need of food aid”. In the same address Mr Morris said life expectancy in much of Southern Africa is barely more than it was in Europe dur- ing the middle ages. Life expectancy in Zimbabwe has in fact David Coltart with Castan Centre Director, Sarah declined now to 54 years. 4,000 Zimbabweans die a week Joseph

10 Castan Centre for Human Rights Law, October 2005

through the dreadful culmination of AIDS and malnutrition despite the obvious need for food relief, the Zimbabwean and it is this catastrophic mix of AIDS and starvation which government would handle it itself. It did this with the Gen- is now combined with homelessness, in mid winter when eral Election in March this year in mind, it knew that if food temperatures go overnight to below freezing. was brought into the county by the World Food Program and distributed through NGOs, churches and the like, food Mrs Tibaijuka has produced what is in UN terms an excellent would not be able to be used as a political weapon. No report. I want to touch on two aspects of her report. The agreement has yet been reached for food supplies to re- first deals with her reference to the international responsibil- sume. The Mugabe regime persists in its stance that it is only ity to protect doctrine [which is defined as follows]: prepared to allow food in if it controls its distribution. “Where a population is suffering serious harm as a result of, The point that I am making is that whilst we commend Mrs. inter alia, repression or state failure and the state in question Tibaijuka’s comments, whilst we are delighted that the re- is unwilling or unable to act, or halt, or revert it. The princi- sponsibility to protect doctrine has been invoked, in practical ple of non-intervention, because of the sovereignty of the terms, unless the international community acts vigorously, country, yields to the international responsibility to protect”. her recommendations in this regard are simply going to be This document goes on to establish further principles. It ignored and this humanitarian crisis will not be averted. speaks about the responsibility of the international commu- But it goes further than that. Many of us including myself in nity to react urgently and quickly when a population is at my representations to Mrs. Tibaijuka made the point that in great harm. Mrs Tibaijuka made the following finding: “The terms of Article 7 of the Treaty of Rome, the deportation or issue remaining for the United Nations however, is whether forcible transfer of a population constitutes a crime against the government of Zimbabwe is able to offer effective assis- humanity and our contention is that this allegation needs to tance to its people in practical terms. It is the view of the be investigated. The Special envoy responded to those con- special envoy that the scale of the problem is too large and exceeds the present ability of the government to address the ditions as follows: basic needs by those affected by Operation Restore Order.” “It is the view of the Special Envoy that an international de- And she concludes “The international community has a re- bate on whether the statute of Rome could be successfully sponsibility to protect those affected. The impact will not be invoked is bound to be acrimonious and protracted. It easy to address and requires immediate large scale and un- would serve only to distract the attention of the interna- conditional humanitarian assistance to protect those in tional community from focusing on the humanitarian crisis need”. So far, so good. facing the displaced who need immediate assistance,” and she concludes “nevertheless, it remains the strong recommenda- The problem however, is that the Zimbabwean Government tion of the special envoy that the culprits who have caused has responded by rejecting this report. Robert Mugabe just this man made disaster are best handled and brought to this week has said in China that Mrs Tibaijuka has been put under pressure and the destruction continues in Zimbabwe book under Zimbabwean national laws”. even this week. Let me stress that Robert Mugabe in April The following two issues are raised by these comments. last year said to James Morris [World Food Program] that Firstly the report itself documents the rule of law in Zim- babwe, and to that extent the suggestion that the culprits of these crimes should be brought to book under Zimbabwean National laws is simply farcical. How that can even be put forward as a possibility is beyond our belief. Secondly, this culture of impunity which was sewn in the early 1980’s is demonstrated this week by the rejection of this report. The tragic irony is that perhaps the only way of addressing the special envoy’s principle concerns is through the threat of international law, but therein lies the problem. Professor Hersch-Lauterbach once said, “International law is not much good. It creates laws which the wicked do not obey and the righteous do not need”. I have another quote for you in closing from Martin Luther King. He once said “Human progress is neither automatic nor inevitable. Every step towards the goal of justice re- quires sacrifice, suffering and struggle, the tireless exertions and passionate concern of individuals. This is no time for apathy or complacency. This is a time for vigorous and posi- tive action”. Sir Gerard Brennan showed tireless exertion during his pro- fessional career in upholding the human rights of Australians. We all would be well advised to display similar vigorous and positive action in addressing the present crisis in Zimbabwe. Thank you. Bond University Dean of Law, Duncan Bentley, This is an edited transcript of Mr Coltart’s Gerard Brennan Lec- introducing his long-time friend ture to Bond University available at: www.bond.edu.au/law/

Castan Centre for Human Rights Law, October 2005 11

Restoring Justice in a Fragile Democracy

By Marika McAdam way through continents and eras. Every now and then a truck drives by, overflowing with people and fists and flags In February 2005, Edwina Howell and I began our three and slogans – quite reminiscent of the newspaper photos month legal internship in Timor at Advocats Sans Frontières that first stirred my interest in this country years ago. (ASF) - Lawyers without Borders in English. The mission of If Dili (and Canberra for that matter) is anything to go by, ASF is to contribute to the development of the justice sec- then it’s fair to say you can’t judge a country by its capital tor, no small task given that, like everything else in the city. The ‘real East Timor’ starts the minute the dust stops. world’s newest nation, the legal system is a work in pro- It’s divine. It’s surreal. It’s everything you would imagine on a gress. The formal justice system in these very early days is a tourist brochure, without so much as a hint of a tourist. mix of rules and codes which the powers that be are picking One wonders why that is, given the rolling green terrain, the and drafting as they go. In addition to the deficiency of avail- palm trees overhanging untouched beaches, the islands that able resources is the challenge of incorporating, preserving float off-shore and the sunsets that illuminate carpets of rice and adapting traditional justice into the matrix. Adat, as tra- fields and perfectly choreographed village scenes. I swear it ditional justice is known, is dispensed by village leaders – this is a beautiful country. But even the most far-flung (Chefe de Sucos). Sometimes issues are mediated to enor- place in the country mously good effect, but sometimes a rapist will be punished reveals clues to the by having to present the victim’s husband with a pig or goat trauma it has en- as ‘compensation’ for the damage done to his ‘property’. As a serious crime, rape must now be dealt with by the formal dured. justice sector, but one must wonder whether that system High on my list of can yet be offered as an alternative to Adat given the often things to do in Timor inconsistent findings and inordinate delays. There is a long Leste was visit Balibo way to go before the cultural and linguistic obstacles are – the scene of the overcome, but challenges are being identified and addressed. notorious murder of the ‘Balibo five’, East Timor’s psyche was born of revolution, and now the whose deaths caused frustrations of revolutionaries turned office staff, resonate a domino effect of throughout the dilapidated capital city of Dili, where a public consternation over protest can teeter for weeks on the verge of a riot. And Australia’s knowledge how indeed does one maintain one’s determination and re- and complicity with solve, while containing the disappointment of discovering Indonesia’s actions. that the new nation waiting on the other side of bloodshed is The site is now some- just another kind of struggle for democracy? One that in- thing of a place of volves building a country from the ground up, and deciding pilgrimage for Aussies what to accept and what to reject from the smorgasbord of who have ventured suggestions on offer from the international community. A fisherman in Dili over to their island Dili has to be looked at in the context of where it came neighbour to play their various cameos on the stage of its from and it must therefore seem, to its people, like the most history. Adding my name to the guest book evoked simulta- progressive, dynamic, modern, cosmopolitan city in the neous and incongruous feelings of both pride and shame in world. And in some ways it is. The number of UN soldiers my country’s relationship with this nation. and foreign police is progressively diminishing, but there is It takes years and years of human activity to replace sad sto- still an eclectic collection of people from all over the world. ries with new memories, but East Timor has only had six. Expats sit in bars to share beers and stories that weave their During our first month in the country, we experienced an earthquake. While I trusted in the misguided sense of invin- cibility that comes from a life of luck, locals ran into the streets to bang on tins to ward away evil spirits. They were genuinely terrified that they could die, because their history dictates that impossibly bad things are in fact possible. And indeed, a block down the road a two storey building came crashing down and remained scattered across the road for some time, as evidence of the fragility of order. But before leaving Dili, I was heartened to see that like every other bro- ken thing in this proud nation, the remnants of this tragedy were gradually being cleared away to make room for some- thing new to be built in its place.

Marika McAdam is a Castan Centre member. She was a legal Marika surrounded by some very excited locals intern with Advocats sans Frontières from February to May 2005.

12 Castan Centre for Human Rights Law, October 2005

More Castan Centre News

A Partner in Need Castan Centre Advisory Reprieve Australia, which has a close an associated office in Texas, trying to Board working relationship with the Castan locate clients and their clients' fami- Professor Philip Alston Centre, is calling for donations to help lies. Starting up a new office under New York University School of Law. the Justice Centre in New Orleans to such circumstances will be costly. recover from the devastation of Hurri- Much-needed donations can be sent Professor Virginia Dandan cane Katrina. to: Chair, UN Committee on Economic, The Justice Centre houses a number Reprieve New Orleans Relief Fund Social and Cultural Rights. of organizations assisting people GPO Box 4296 charged with capital crimes. While the Melbourne Vic 3001 Mr Patrick Dodson full extent of the damage is not yet Lingiari Foundation known it seems that the centre has Alternatively visit: been ruined. Many employees of the http://www.thejusticecenter.org/lcac/ The Hon Elizabeth Evatt AC organisations have lost their homes donations.html or International Commission of Jurists. and belongings and are working from http://www.reprieve.org.au Professor Claudio Grossman Dean, Washington College of Law, Castan Centre in the Media The American University. Castan Centre staff continued to com- the media. Associate Director Melissa The Hon Judge Felicity ment in the media on important hu- Castan was quoted in the National Hampel man rights issues in the first half of Indigenous Times in June and August County Court of Victoria 2005. discussing the centre’s collaboration with law firm Arnold Bloch Liebler in In April, the centre Director, Profes- Professor Christof Heyns assisting the Wadeye community in sor Sarah Joseph, appeared on Insight Professor of Human Rights Law, the Northern Territory to improve its on SBS as a special guest. The pro- Univ. of Pretoria, South Africa. dire economic situation. The issue gram was called Whatever it Takes, and was also picked up by The Age on June focused on the burgeoning debate sur- The Hon Justice Michael 17, where Melissa was again quoted, rounding the use of torture in the Kirby AC CMG together with Castan Centre member, “war on terror”. That debate further David Yarrow. David was interviewed High Court of Australia. intensified in Australia when two De- on ABC radio station Triple J about akin University academics published a Professor Ivan Shearer paper advocating the use of torture to the same matter. UN Human Rights Committee. combat terrorism. In response, Sarah Finally, the visit by Zimbabwe’s and the centre’s Project Manager, Shadow Minister for Justice, David His Excellence, Judge C.G. Marius Smith, wrote an opinion Piece Coltart, received widespread media Weeramantry for The Age on May 18 entitled coverage in Melbourne and around the Judge ad hoc, International Court of “Torture is Inhuman, Illegal and Futile”. country. Justice The centre has also continued to ac- For more information, click on “media” at tively address indigenous matters in www.law.monash.edu.au/castancentre. Castan Centre Welcomes its Newest Member All of the staff at the Castan Centre Institutional Dialogue: Lessons for and Monash Law School were de- Australia from Canada and the United lighted to welcome the centre's new- Kingdom,” and participated in an Aca- est member on May 11, 2005 when demic Roundtable with the Victorian Associate Director Julie Debeljak gave Human Rights Consultative Commit- birth to a healthy baby boy, McGregor tee relating to the protection of hu- (Mac) Debeljak. man rights in Victoria. Julie, Mac and Mac’s dad, Simon Julie is currently on well-earned mater- McGregor, are all doing well, except nity leave. She will be back at Clayton for some sleep deprivation! for second semester 2006. Julie also recently completed her Phd Opposite: Julie and Mac thesis, entitled “Human Rights and

Castan Centre for Human Rights Law, October 2005 13

Publications and Papers by Centre Members in 2005

Publications with Regard to Human Rights’, Amnesty Native Title Report Com- International Lawyer’s Group, Slater & pleted, Internships Established S. Joseph, ‘Human Rights Commit- Gordon, 21 April 2005. at Indigenous Bodies tee: Recent Cases (2005) 5 Human M. O'Sullivan, "Protecting the Rights of Melissa Castan, Associate Director of Rights Law Review, 105-116. Child Asylum Seekers - Case study: the Castan Centre, and Honorary Re- search Fellow Richard Potok, from the S. Joseph, ‘Human Rights Commit- Australia”, paper presented at the 4th University of New South Wales, have tee: Recent Jurisprudence (2004) 4 World Congress on Family Law and Chil- dren’s Rights, Cape Town, South Africa, completed a report examining Native Human Rights Law Review, 277-294. March 2005. Title law and practice. D Lindsay, 'an Exploration of the Con- The Report evaluates the challenges ceptual Basis of privacy and the Impli- B. McSherry and J. Kyriakakis, Submis- Native Title Representative Body cations for the Future of Australian sion to the Senate Legal and Constitu- (NTRB) lawyers face while represent- Privacy Law' (2005) 29(1) MULR 131- tional Legislation Committee regarding ing the interests of native title claim- 178. the Inquiry into the Criminal Code ants. The Report also sets out appro- Amendment (Trafficking in Persons Of- priate strategies for developing train- M. O’Sullivan, “Past” Violations under fences) Bill 2004, February 2005. ing and professional development pro- International Human Rights Law: The Indigenous ‘Stolen Generation’ in Aus- S. Joseph and J. Kyriakakis, Submission grams. tralia’ 23(2) 2005 Netherlands Quarterly to the United Nations For Human of Human Rights 243-72. Rights, regarding the Inquiry into the Research for the Report involved Revised Draft Guidelines on an Expanded comprehensive consultations with legal B. McSherry, “Indefinite and Preventive Core Document and Treaty-Specific Tar- and managerial staff of NTRBs, as well Detention Legislation: From Caution geted Reports and Harmonized Guide- as other professionals who work or to an Open Door” (2005) 29(2) Crimi- lines on Reporting Under the International otherwise deal with NTRB lawyers. nal Law Journal 94-110. Human Rights Treaties, March 2005. Substantial background research was also undertaken. B. McSherry and S. Bronitt, Principles of J. Kyriakakis, ‘International Corporate Criminal Law 2nd edition (Sydney: Criminal Liability through a Human The research project has the involve- Thomson LBC, 2005) Rights Lens’ presented at the Australian ment and support of NTRBs across and New Zealand Society of International the country, Aboriginal Torres Strait Law Post-Graduate Student Workshop, Islander Services, the National Native Media Canberra, 15 June 2005. Title Tribunal, the Federal Court of Australia, the Australian National Uni- S. Joseph and M. Smith, ‘Defending the J. Debeljak, Submission to the Human versity, the University of New South Indefensible: Torture is Inhuman, Ille- Rights Consultation Commission on Wales, law firms Chalk and Fitzgerald, gal and Futile’, Opinion piece, The Age, How Best to Protect and Promote Human Arnold Bloch Leibler and Gilbert + Tobin, as well as several philanthropic 18 May 2005 Rights in Victoria, August 2005. foundations. S. Kneebone and E. Howell, Submis- Papers sion to the Senate Legal and Constitu- As a result of the research and feed- tional References Committee regard- back gained during the project, student S. Joseph, ‘Multinational Corporations, ing the Inquiry into the Administration internships have been established to Development, and Human Rights’, In- and Operation of the Migration Act 1958, increase student participation and ternational Conference on Human Rights July 2005. awareness of career opportunities in and Development: Approaches to Reform native title. Students spend six weeks of Governance in Asia, School of Law, M. Castan, ‘Native Title and Mabo: An at an NTRB or a policy think tank such City University of Hong Kong, Hong insiders insight’, National Native Title as the Cape York Institute for Policy Kong, 9 May 2005 Tribunal. and Leadership. Students undertake a range of tasks including research and S. Joseph, Commentator on Leslie Zi- M Castan ‘Teaching Indigenous Legal preparation of witness evidence. nes’ ‘The Scope of Inherent Executive Issues’ Adelaide University, 22 August Feedback from the program has been Power’, Roundtable on Inherent Ex- 2005. overwhelmingly positive. Melissa and ecutive Power, University of Mel- Richard were assisted by Monique bourne, 15 July 2005 M. Castan ‘International Standards’ Sweetland, who provided tireless re- Indigenous Australian Human Rights, search work. S. Joseph, ‘The UN Norms on the Re- Aboriginal Advancement League, Au- sponsibilities of Transnational Corpo- gust 2005. The Report is available at: rations and Other Business Enterprises www.law.monash.edu.au/castancentre/

14 Castan Centre for Human Rights Law, October 2005

Castan Centre Directors and Members in 2005

Centre Directors Six Questions for Paula Gerber, new Associate Director of the Castan Centre Professor Sarah Joseph (Director): Sarah will be Visiting Where were you working prior to respect for human rights is to educate Fellow at the Lauterpacht Centre for coming to the Castan Centre? the young about their rights. One of International Law at Cambridge Uni- my favourite expressions is: versity from February to June 2006, I was a partner in a large Melbourne While there, she will work on an ARC law firm until 2000 when I left full-time If you are thinking a year ahead - plant grant on the WTO and human rights. private practice in favour of a portfolio seeds; if you are thinking 10 years ahead career consisting of: Senior Fellow in - plant a tree; if you are thinking 100 Dr Julie Debeljak (Associate Di- the Faculty of Architecture, Building & years ahead - educate the people (Kuan rector): Julie is on maternity leave. Planning at the University of Mel- Tzu). She recently took part in an Academic bourne and Director of Construction What do you see as the biggest Roundtable with the Victorian Human Law Studies at the Law School there; Rights Consultative Committee relat- consultant with Lander & Rogers, Law- human rights issues in Australia? ing to the protection of human rights yers; and Sessional Member at VCAT. Human rights has become a dirty in Victoria. phrase. It has been labeled as some- Tell us about your time as a con- Melissa Castan (Associate Direc- thing that only the “chattering class” is struction lawyer. tor): Melissa is currently overseeing a interested in. As a result human rights Native Title project in conjunction I was in private practice for 20 years here are regressing. This can be seen with UNSW. before making the move into acade- in ’ detention at Guan- mia. Most of the time I enjoyed it be- tanamo Bay and our government’s Paula Gerber (Associate Direc- cause it allowed me to work in some silence in the face of his pending ‘trial’ tor): Paula is completing her PhD. great places – I spent five years in Lon- which violates all standards of fairness See our interview opposite. don and five years in Los Angeles. and natural justice; the demonising of asylum seekers and their indefinite Law Faculty Centre Members What inspired the switch to hu- imprisonment; and the treatment of Dr Yet Bryant man rights law? indigenous Australians, in particular Jonathan Clough Basically I became jaded with construc- the lack of reconciliation. One way Patrick Emerton tion law; every dispute looked the that we can address these issues is same and there was nothing new or through formal and informal educa- Associate Prof Susan Kneebone exciting about it. So, in my search for tion. David Lindsay other areas of law that might be more Where do you see the Castan Oyiela Litaba meaningful and interesting, I decided Prof Bernadette McSherry to do a masters in law at Monash and Centre going in the future? Kwame Mfodwo one of the first subjects I did was In- The centre has a reputation as one of Dr Bronwyn Naylor ternational Human Rights Law with the preeminent human rights law cen- Sarah Joseph. I was hooked and knew tres in Australia. I see this continuing, Dr Pam O’Connor that I had found my niche. So I finished particularly in the field of human rights Maria O’Sullivan my masters doing as many human education. We have conducted human Tania Penovic rights subjects as I could and then en- rights training for delegations from Jenny Schultz rolled in a PhD at the University of Iraq and Indonesia as well as for our Adiva Sifris Melbourne. own Department of Foreign Affairs and Trade. I see these courses as a Which area of human rights law Dr Eric Wilson vital part of the centre’s work and David Yarrow are you most passionate about ? envisage them increasing in the future. My PhD looks at the international law Faculty Graduate Members In 2006, the Monash Law School will obligation to educate children about launch the first Masters in Human Nicole Bieske human rights. A few years ago, I taught Rights Law in Australia. This is in line a Human Rights course at the Univer- Susannah Jacobson with our mission to protect and pro- sity of Prishtina in Kosovo and was Joanna Kyriakakis mote human rights through the provi- surprised by my students’ lack of Adam McBeth sion of education. I would like to see knowledge about human rights. Then I the centre at the forefront of human Helen Potts realised that Australian students are rights education, not just for lawyers Natalie Bugalski no different because they don’t learn and law students but for the commu- Augusto Zimmerman about human rights at school. nity generally. We have a key role to So my passions are human rights edu- play in promoting human rights cation and children’s rights. I believe through inter-disciplinary education of that one of the best ways to improve people from all sectors of society.

Castan Centre for Human Rights Law, October 2005 15

Conference New Publication

Human Rights 2005: Human Rights 2004: The Year in Review The Year in Review

Friday, 2 December, CUB Malthouse, Southbank Edited by Marius Smith

Arjun Sengupta, UN Independent Expert on Human Rights and Extreme Poverty and Holding Redlich Dis- tinguished Visiting Fellow International cooperation for fighting extreme poverty

Kirsty Nowlan, World Vision Beneath the wreckage: Locating human rights discourse in the responses to the Asian tsunami and Hurricane Katrina

Bernadette McSherry, Monash University Human rights and mental health : The gap between legis- lating and implementing human rights

Martin Flynn, UWA Reconciling “Practical Reconciliation” with the Racial Dis- crimination Act 1975 (Cth)

Colin Fenwick, Centre for Employment & Labour Rela- tions Law, University of Melbourne The edited, collected papers of the Castan Centre’s Australia’s new labour laws: An international legal perspec- ‘Human Rights 2004: The Year in Review’ conference tive is now available in book form at AUD22 per copy (GST included). Andrew Byrnes, UNSW ‘Reform’ of the UN human rights bodies: an era of larger Authors include: Richard Bourke, Elizabeth Evatt AC, freedom or fighting the same battles once again? Anne Gallagher, Pru Goward, Debbie Mortimer SC, Heisoo Shin and Margaret Thornton. Helen Watchirs, ACT Human Rights and Discrimina- tion Commissioner To purchase, simply follow the links on our website: The ACT Human Rights Act 2004: Lessons and experience www.law.monash.edu.au/castancentre from 18 months of operation

David Wiseman, University of Windsor, Canada Poverty and a Victorian Bill of Rights: A view from Canada

For more information: 03 9905 3327 Email: [email protected] Visit: http://www.law.monash.edu.au/castancentre

The Castan Centre for Human Rights Law Faculty of Law Building 12 Monash University Victoria 3800 Australia t +61 3 9905 3356 f +61 9905 5305 www.law.monash.edu.au/castancentre

Castan Centre for Human Rights Law, October 2005