JC 4 Draft Program 18 August

Justice Connections 4 PROGRAM Opening Session: 9:15-9:45 Dr Andrew Leigh MP 9:45- 10:15 – Rosalind Croucher AM and Simon Rice OAM Institutional Law Reform and Justice In 2015 the Australian Law Reform Commission celebrates 40 years of institutional law reform in Australia. This session will focus upon the contribution that an independent law reform commission can have towards justice—as an idea and in practice. After a critical account of the politics and practice of institutional law reform, the distinct role of the ALRC will be considered in the context of the many sites in which law reform happens and its impact assessed through a broad lens. The presenters will provide a dialogue around these key themes. MORNING TEA 10:15-10:45 Session 1: Justice and Violence chaired by Prof Rosalind Croucher AM 1. 10:55-11:05 – Allison Ballard and Patricia Easteal National Anti-Bullying Jurisdiction: The Mouse that Roared? The anti-bullying amendments the Fair Work Act 2014 (Cth) came into effect on 1 January 2014. There are indications that these changes are not translating into anti- bullying Orders. In the first six months of 343 applications, only one Order made. In this paper we look further to determine whether the legislation is in effect a paper tiger by examining the outcomes of the first 18 months. In addition to outcome we analyse decision-making and conclude that the scope of the provisions has been narrowed. For example, the FWC has confirmed that applications cannot be made by state government employees and will not be considered where an employee no longer works for the relevant employer. Both the ‘reasonable management action’ approach to defining bullying and the requirement that the offending conduct occur ‘while a worker is [at] work’ may be used to exclude from the new regime conduct which may amount to bullying in other jurisdictions. We also see what behaviours the FWC have considered as constituting (or not) bullying. 2. 11:10-11:25 - Caroline Doyle Public Policy or Public Action? Explaining declining patterns of urban violence in Medellin, Colombia This paper addresses the causes of urban violence and is concerned with explaining success in the reduction of urban violence. Urban violence is a dynamic phenomenon that requires a multi-layered approach to understand the physical and psychological harm against persons from homicides, assaults, rape and robbery that occurs in cities. Previous literature has suggested several approaches to reduce urban violence. These range from formal to informal solutions and can approaches such as broken windows, social capital or youth empowerment. Formal elements include the role of urban governance and criminal justice. I focus on Medellin, Colombia, which has emerged from being the ‘most dangerous city in the world’ in 1991 to having a 90% reduction in homicide rates. This paper presents preliminary findings in terms of the role played by both public policies and other societal mechanisms that have led to this reduction of urban violence. 11:25-11:35– Questions from the audience facilitated by Rosalind Croucher Session 2 : Justice and Process chaired by Dalma Demeter 1. 11:40-11:55- Paul Tan and Samuel Seow Community Interests & International Commerce: Moving Towards Convergence This paper explores the intersections of social justice and international law, particularly within the context of investor-state arbitration. Community participation in international arbitration, even in investor-state arbitration, has historically been viewed with scepticism. The twin notions of privacy and confidentiality has largely (though not always) held sway over wider community interests and notions of social justice. However, as observed in the Australia-Philip Morris “Plain-Packaging” dispute, there has been increasing pressure from civil society for the investor-state arbitration process to recognise the social implications of proceedings and ensuing arbitral awards. In recent years, governments from both developed and developing countries have faced an onslaught of criticism for submitting to treaties providing for investor-state arbitration. Examining trends in international arbitration, it is submitted that the continued legitimacy and relevance of investor-state arbitration is dependent on key structural refinements, ensuring that greater community interests are accounted for. In this regard, the authors examine efforts to increase transparency and hence community participation in investor-state proceedings, including the recent UNCITRAL Convention on Transparency in Treaty-based Investor-State Arbitration and pertinent developments in arbitral jurisprudence. 2. 12:00- 12:15- Doris Bozin Justice and Court-Referred Mediation Practices Court-referred mediation is a method of dispute resolution that is being used more and more by courts at all levels, in order to deal with disputes efficiently and effectively. The question I will consider is whether the fundamental principle of confidentiality in mediation, is necessary in court-referred mediation processes. One of the principles of mediation is that all discussions in mediation processes are understood to be confidential by all parties and all parties agree that issues raised, will only be communicated outside the mediation process with their agreement. The only exception to this rule of strict confidentiality is where there is evidence of serious risk to self or others. However in court-referred mediations, communications are confidential between the parties, but may be disclosed or admitted into evidence with prior leave of the Court or tribunal. What are the consequences if judicial officers disclose those discussions in future proceedings? Are parties aware of the significance of those discussions being disclosed? Is this really then, a mediation process? What does disclosure of discussions during a court-referred mediation mean for the justice system as a whole? 3. 12:20-12:35 –Benjamin Smith Suing for Systemic Justice: Civil Litigation against Police in Victoria 2005-15 This paper directs itself to recent developments in civil litigation against police in Victoria. In recent years a number of high profile cases created what appeared to be landmark precedents relating to civil actions brought against Victoria Police. Further, in 2014 major legislative changes took effect, redefining liability in such matters and creating provisions purporting to safeguard against frustrated judgments. The following paper explores the impact of these developments, Canvassing the views of a number of senior members of the state's legal profession, this paper investigates the extent to which High Court and Victorian Supreme Court judgments, United Nations Human Rights Committee findings and legislative changes, including the operation of the Charter of Human Rights and Responsibilities, have affected the way suits brought against Victoria Police are conducted and decided. 12:35-12:50- Dalma Demester wrap up LUNCH 12:50-1:40 Session 3: Justice and Oppression chaired by Heidi Yates 1:45-2:00 – Skye Saunders From Whispers to Clear Voices: Re-formulating the Norms in Rural Workplace Culture This paper focuses upon strategies for addressing the issue of workplace sexual harassment in rural Australia. It draws upon my doctoral research, entitled Whispers from the Bush- The Workplace Sexual Harassment of Australian Rural Women. The research shows that sexual harassment is tolerated by necessity in a large number of rural workplaces, with many respondents perceiving the behaviour as being a natural part of daily working life. This nature of desensitisation to sexual harassment is a cultural phenomenon, seeped in the mythical tradition of male dominance as a norm. There is work to be done in re-formulating the acceptable norms and standards in the Australian rural workplace and this paper explores a recommended three-stranded thematic thread. 2:05-2:20 – Jessica White and Patricia Easteal So this is justice? Feminist jurisprudence answers to Why and How the Australian Legal System Continues to Fail Female Victims of Intimate Partner Sexual Violence In this paper we briefly focus on intimate partner sexual violence (IPSV) and the Australian legal response by responding to five of Heather Wishik’s feminist jurisprudence questions. 1. What have been and what are now all women's experiences of IPSV addressed by the substantive and process of rape law? 2. What assumptions, descriptions, assertions and/or definitions of consent, corroboration and reporting does the law make in IPSV matters? 3. What is the area of mismatch, distortion or denial created by the differences between women's life experiences of IPSV coercion and the law's assumptions or imposed structures? 4 What patriarchal interests are served by the mismatch? 5. What reforms have been proposed or have already been implemented pertinent to IPSV rape law? How could these reforms affect women both practically and ideologically? 6. In an ideal world, what would this women's life situation look like, and what relationship, if any, would the law have to this future life situation? We conclude by looking at our vision of utopia, answering the seventh question: How do we get there from here? . 2:25-2:40 – Fleur Beaupert, Piers Gooding & Linda Steele Righting Legal Capacity?: Disability, Law Reform and Human Rights Disability legal capacity issues are increasingly prominent in Australian law reform activity. The UN Committee on the Rights of Persons with Disabilities has argued for non-discrimination in relation

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