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Volume 33 Number 1 2012 S U N B C E RUCE LUM THE UNIVERSITY OF ADELAIDE ADELAIDE LAW REVIEW ASSOCIATION EDITORIAL BOARD Professor J R Crawford Emeritus Professor R Graycar Whewell Professor of Dunhill Madden Butler Professor International Law Faculty of Law University of Cambridge University of Sydney United Kingdom New South Wales Professor W R Cornish Professor J V Orth Herschel Smith Professor of William Rand Kenan Jr Intellectual Property Law Professor of Law University of Cambridge UNC School of Law United Kingdom The University of North Carolina at Chapel Hill United State of America Emeritus Professor M J Detmold Emeritus Professor I Shearer Adelaide Law School Faculty of Law The University of Adelaide University of Sydney South Australia New South Wales The Hon J J Doyle Former Chief Justice Supreme Court of South Australia ADELAIDE LAW REVIEW Editors Paul Babie John Gava John Williams Book Review Editor Daniel McLoughlin Assistant Editor Michael Deves Student Editors Warwick Ambrose Lisa Muffatti Campbell Davis Esther Pearson Emily Haar Mario Reshan Shavin Silva Emma Harman Richard Sletvold Cassandra Hodzic Molly Snaith Zoe Irwin Monique Webber Publications Officer Panita Hirunboot Volume 33 Number 1 2012 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 subscribed for 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.law.adelaide.edu.au/review> This volume may be cited as: (2012) 33 Adelaide Law Review The articles in this volume are published in 2012. ISSN 0065-1915 © Copyright is vested in the Association and, in relation to each article, in its author, 2012. TABLE OF CONTENTS THE 2009 JAMES CRAWFORD BIEnniAL LECTURE ON intERNAtiONAL LAW Michael Kirby The Growing Impact of International Law on the Common Law 7 ARticLES Anna Chapman Reasonable Accommodation, Adverse Action and the Case of Deborah Schou 39 Michael I Jeffery and Going Beyond Mitigation: The Urgent Need to Include Xiangbai He Adaptation Measures to Combat Climate Change in China 79 Marina Nehme and The Evolution of Indigenous Corporations: John Juriansz Where to Now? 101 Justin Malbon Why Parties Enter into Unfair Deals: The Resentment Factor 137 Nicky Priaulx Humanising Negligence: Damaged Bodies, Biographical Lives and The Limits of Law 177 Christopher Tran New Perspectives on Australian Constitutional Citizenship and Constitutional Identity 199 Greg Carne Is Near Enough Good Enough? — Implementing Australia’s International Human Rights Torture Criminalisation and Prohibition Obligations in the Criminal Code (Cth) 229 CASE NOTES Jackie McArthur Conspiracies, Codes and the Common Law: Ansari v The Queen and R v LK 271 Warwick Ambrose Wotton v Queensland (2012) 285 ALR 1 281 BOOK REVIEW Melissa de Zwart Emerging Challenges in Intellectual Property 287 SUBMissiON OF MANUscRIPts 293 THE 2009 JAMES CRAWFORD BIEnniAL LEctURE ON intERNAtiONAL LAW The Hon Michael Kirby AC CMG* THE GROWING IMPACT OF INTERNATIONAL LAW ON THE COMMON LAW ** I INTRODUCTION his is the fourth Crawford lecture. The first was given by the Professor James Crawford himself. He was followed by Professors Ivan Shearer and Hilary TCharlesworth. Each of the first three lecturers was at one time a member of the Faculty, and a Professor of Law, of the University of Adelaide. I am the first outsider to be entrusted with the responsibility. Still I am no stranger to the University of Adelaide. During my service in the Australian Law Reform Commission (‘ALRC’),1 and later in the appellate judiciary, I enjoyed a close relationship with this law school. In particular, Adelaide has spawned many fine international lawyers. It has always been an important centre for research and teaching in international law. Like Caesar’s Gaul, this lecture is divided into three parts. The first will offer a tribute to James Crawford, a friend since early days in the ALRC. Secondly, I will describe the conversation that is occurring between the common law and the ever-growing body of international law that is such a powerful force in the contemporary world. I will do so not only by reference to developments that have been occurring in Australia and the United Kingdom (the original source of the common law), but also in Malaysia and Singapore, as well. I include these jurisdictions out of respect for our intellectual links with them and the video link that is established on this lecture as on past occasions, with alumni of the University of Adelaide and other colleagues in Malaysia and Singapore with whom the University of Adelaide enjoys a special relationship. Finally, I will offer some thoughts as to how one might conceptualise the growing use that is being made of * Justice of the High Court of Australia (1996–2009). Member, Eminent Persons Group on the Future of the Commonwealth of Nations (2010–11). The author acknowledges the assistance of Mr Scott Stephenson, Research Officer in the High Court of Australia, and of Mr James Krumrey-Quinn of the University of Adelaide in the preparation of this lecture. ** This was originally delivered as the fourth Crawford Lecture, at the Adelaide Law School, The University of Adelaide, 14 October 2009. Parts of this lecture are adapted from an earlier talk given at the City University of London on 23 April 2009. However, the text has been revised, expanded and updated. 1 The Australian Law Reform Commission (‘ALRC’) was, prior to 1996, called the ‘Law Reform Commission’. However, for consistency, it will be referred to as the ‘ALRC’ throughout this article. 8 Kirby – Impact of international law on common law international law in expositions of the domestic common law. In doing this, I will also provide some prognostications. The topic is technical. However, I hope to demonstrate that it is also interesting for the dynamic of change and development that it illustrates in the discipline of law. Clearly, it is important because it concerns the relationship of the law of national jurisdictions with the modern world of global law, technology, trade and other relationships. II THE HONORAND: JAMES CRAWFORD James Crawford was born in Adelaide in 1948. He was educated at Brighton High School and the University of Adelaide. He proceeded to Oxford University where he took his D Phil degree before returning to Adelaide as a lecturer in law in 1974. In fewer than ten years, he had been appointed a Reader and then Professor of Law. It was at that time, in 1982, that I persuaded him to leave leafy Adelaide and to accept appointment in the ALRC, whose foundation commissioners had included two other Adelaide alumni and teachers, Professors Alex Castles and David St L Kelly. I pay a tribute to the contributions that the Adelaide Law School and legal profession made to the creation of the ALRC. It may have been the influence of the early German settlers that rendered Adelaide a special place for reform and critical examination of society and its laws. Adelaide has long been a place open to new ideas about the law. James Crawford came to Sydney to take charge of a reference that had been given to the ALRC concerning the recognition of Aboriginal customary laws.2 He steered the Commission to producing an outstanding report. The topic was highly controversial, indeed divisive. Many of the report’s proposals have not been translated into positive law. Nevertheless, the conduct of the investigation, under Professor Crawford, materially altered the Zeitgeist in Australia concerning the interface of the received law and our indigenous peoples. It promoted the notion, novel for the time, that the Australian legal system had far to go in adjusting to the laws and customs of the indigenes of the continent. It is probably no coincidence that the crucial step of re-stating the common law of Australia to recognise Aboriginal native title took place in the Mabo decision of 1992.3 Moreover, the key that unlocked the door to that ruling, rejecting earlier statements of the common law, was a recognition, given voice by Brennan J (himself earlier an ALRC commissioner), that the universal principles of human rights law were inconsistent with a common law rule based upon discrimination against indigenous citizens by reference to their race. Such a rule had to adjust.4 James Crawford was energetic as an ALRC commissioner. He led other projects, including one on sovereign immunity,5 and another on reform, patriation 2 ALRC, The Recognition of Aboriginal Customary Laws, Report No 31 (1986). 3 Mabo v Queensland [No 2] (1992) 175 CLR 1 (‘Mabo’). 4 (1992) 175 CLR 1, 42 (Brennan J). 5 ALRC, Foreign State Immunity, Report No 24 (1984). (2012) 33 Adelaide Law Review 9 and federalisation of Admiralty law and jurisdiction in Australia.6 The recommendations made in those projects were, almost without exception, translated into Australian law.7 In 1986, whilst still serving as an ALRC commissioner, Professor Crawford was appointed Challis Professor of International Law at the University of Sydney. He became Dean of the Sydney Law School in 1991. He held that post until 1992. He was then elected Whewell Professor of International Law at the University of Cambridge. This is an appointment he still holds; whilst also serving for a time as Chair of the Faculty Board of Law; serving as a member and rapporteur of the United Nations International Law Commission (1991–2001); publishing several respected legal texts; building a large practice as an advocate before international courts and tribunals; and assuming important positions in international bodies, including as a conciliator and arbitrator nominated by the Chairman of the Administrative Council of the International Centre for Settlement of Investment Disputes (‘ICSID’).
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