Canberra Law Review (2020) 17(1) ii Canberra Law Review (2020) 17(1) iii Canberra Law Review The Canberra Law Review is a peer-reviewed law journal published each year by the Canberra Law School at the University of Canberra. It brings together academics, other scholars, legal practitioners, and students within and outside the University. It provides a peer-reviewed open access venue for innovative, cross-disciplinary and creative scholarly articles and commentaries on law and justice. Submissions The editors of the Canberra Law Review seek submissions on aspects of law. We welcome articles relating to theory and practice, and traditional, innovative and cross-disciplinary approaches to law, justice, policy and society. Guidelines • Scholarly articles should be 5,000-14,000 words, case notes 1,500-3,000 words and book reviews 1,000-1,500 words (including references). • Submissions should conform to 4th edition of the Australian Guide to Legal Citation (AGLC4) and be 12 pt Times New Roman. • Scholarly articles should be accompanied by an abstract of no more than 250 words. • Submissions should not have been previously published in another journal. Submissions should be emailed as MS Office .docx or .doc documents to [email protected]. Peer-Review Scholarly articles are blind peer-reviewed by reviewers. Open Access Consistent with the Canberra Law School’s emphasis on inclusiveness, the Review is open access: an electronic version is available on the University of Canberra website and on the Australasian Legal Information Institute (AustLII) website. ISSN ISSN 1320-6702 (Print) and ISSN 1839-2660 (Online) Canberra Law Review (2020) 17(1) iv TABLE OF CONTENTS The Editors 1 Introduction to Issue 17(1) Bede Harris 3 Human Dignity and the Australian Constitution – A Critique Brendon Murphy 23 Constructing Consent in the Australian Capital Territory Bruce Baer Arnold 43 Thawing-out Personhood: Australian Law and Cryonics Brad Thomas 61 The Right to Freedom of Religion and Belief in the Australian Education Sector Tess Watson 73 Delores Down The Rabbit-Hole: Westworld, Androids, Contracts and the Rule of Law in Australia Canberra Law Review (2020) 17(1) v Canberra Law Review (2020) 17(1) 1 INTRODUCTION This issue of Canberra Law Review appears during the COVID-19 Disruption of 2020, an inflection point for Australian higher education, much of business, government and law. The pandemic has seen restrictions on the freedom of movement and association that Australians take for granted. It has coincided with assertion by the People’s Republic of China of restrictions on speech and association across the globe rather than merely in Hong Kong. Articles in this issue engage with principles and practice regarding law, especially Australian law’s foundation in human rights as a basis of the liberal democratic state, and with questions regarding agency, technology and administration. Bede Harris offers an insightful critique of the Australian Constitution in relation to dignity. Dr Harris comments that dignity is the foundational value of human rights documents and of the constitutions of several jurisdictions, in particular those of Germany and South Africa, where it is expressly recognised both as a substantive right and as an interpretative principle governing the entire constitution. In contrast to these values-based constitutions, the Commonwealth Constitution is ‘value-less’ in that it was drafted as a pragmatic response to competing claims of the colonies that would form the Australian federation, rather than under over-arching theory of the relationship between the individual and the state. That anti-theoreticism is reflected in the way in which the Constitution has been interpreted by the courts. Its failure to protect dignity imposes a moral duty on legal academics to encourage their students to think about the ways in which the Constitution should be reformed. ‘Constructing Consent in the Australian Capital Territory’ by Brendon Murphy considers the way in which consent has been constructed and evolved in the criminal law in the context of sexual assault. Dr Murphy’s article compares and contrasts the test for consent across the Australian jurisdictions, with particular interest on consent in the ACT – the only jurisdiction in Australia with a negative consent model. The article examines the intersection of common law and legislation in that jurisdiction, and considers how consent came to be framed this way in that jurisdiction. It suggests that the ACT will likely adopt a two-part reform based on the law of New South Wales. As a precursor of postmodernism Nietzsche quipped ‘Let us beware of saying that death is the opposite of life. The living is only a species of the dead, and a very rare species’. In ‘Thawing-out Personhood’ Bruce Baer Arnold takes a different view, critiquing the belief system known as cryonics, summarized as ‘freeze store reanimate’ the legally dead. Dr Arnold’s article discusses the culture and law of cryonics in relation to Australia, asking whether claims regarding reanimation are unconscionable and necessitate a specific statutory prohibition. The article further considers the implications for health, welfare and other law if cryonics was practical. ‘The Right To Freedom of Religion and Belief in the Australian Education Sector’ was written by a University of Canberra graduate student on a semester at the United Kingdom in 2019. The article by Brad Thomas offers a perspective on issues around Australia’s contentious Religious Freedoms Bills. It explores questions about curriculum and delivery in Australian schools, discussing law’s engagement or indifference to expression in classrooms within a multicultural state that has no established religion, lacks a constitutionally-enshrined justiciable Bill of Rights and adheres to international human rights agreements Canberra Law Review (2020) 17(1) 2 Tess Watson’s ‘Delores Down The Rabbit-Hole’ argues that popular culture offers a lense through which we can understand and examine how law functions in practice. The dystopian sci-fantasy Westworld is set in a world without the rule of law; rather it is governed by click-wrap contracts and a shadowy corporate culture where android hosts offer a sublime vacation in exchange for the complete commodification of the human “guests”, mirroring the rise of surveillance capitalism in the real-world. The article examines how Westworld might work in practice, demonstrating that the concepts underpinning it are not so very far removed from our present-day common experience of law in Australia. *** HUMAN DIGNITY AND THE AUSTRALIAN CONSTITUTION – A CRITIQUE Bede Harris* Today dignity is referred to as the foundational value of human rights documents and of the constitutions of several jurisdictions, in particular those of Germany and South Africa, where it is expressly recognised not only as a substantive right but also as an interpretative principle governing the entire constitution. In contrast to these values-based constitutions, the Commonwealth Constitution is ‘value-less’ in that it was drafted as a pragmatic response to competing claims of the colonies that would form the Australian federation, rather than in accordance with any over-arching theory of the relationship between the individual and the state. This anti- theoreticism continues to be reflected in the way in which the Constitution has been interpreted by the courts. Respect for human dignity is a universal entitlement, and the failure of the Constitution to provide protection for it imposes a moral duty on legal academics to encourage their students to think about the ways in which the Constitution should be reformed. I INTRODUCTION This article examines the concept of human dignity as a fundamental legal value and then discusses the extent to which the Constitution is consistent with that value. Part II examines the concept of dignity in Ancient Rome, both in its broadest jurisprudential sense as a value underlying all law, and in the sense of a private right that could be vindicated by means of a civil action. This Part also discusses the way in which dignity jurisprudence was developed in the Roman-Dutch legal system of South Africa. Part III discusses how Renaissance and Enlightenment concepts of human dignity provided a foundation for natural rights, which in turn led to dignity becoming the value upon which international human rights documents were based. Part IV discusses 20th century jurisprudential writings on human dignity, with a focus on the McDougal-Lasswell school. Part V illustrates the role of dignity in the constitutional law of Germany and South Africa and the effect it has had on constitutional interpretation. Part VI argues that constitutional debate in Australia has been marked by a profound anti-theoreticism, reflected in the absence at the Constitutional Conventions of the 1890s of debate on the question of what values the Commonwealth Constitution should be founded on, a phenomenon which is still evident today. Part VII critiques the Commonwealth Constitution in light of human dignity, with a particular focus on protection of human rights. The article ends with Part VIII which calls for Canberra Law Review (2020) 17(1) 3 transformative action by the legal community in order to press for reform which will make our constitutional order consistent with human dignity. * BA (Mod) Dublin, LLB Rhodes, DPhil Waikato. Senior Lecturer in Law, Charles Sturt University. Canberra Law Review (2020) 17(1) 4 II DIGNITY IN ROMAN AND ROMAN-DUTCH LAW A Roman law The earliest references1 to dignity are found in Ancient Rome,2 where dignity had two distinct meanings. The first was the philosophical concept articulated by Cicero that all human beings were entitled to dignity by virtue of their capacity to use reason,3 and were therefore bound by an obligation of mutual respect:4 ... nature prescribes that a human being should be concerned for a human being, whoever he may be, for the very reason that he is a human being.