January 2004 - Gilbert + Tobin Centre of Public Law

G I L B E R T + T O B I N
C E N T R E O F
P U B L I C L A W
n e w s l e t t e r j a n u a r y 2 0 0 4 i s s u e 1 o f 2 0 0 4
Dear Friend
Welcome to the fi fth newsletter of the Gilbert + Tobin
Centre of Public Law. The last six months have again
been busy, with the Centre holding a National Forum
on The War on Terrorism and the Rule of Law, as well as
producing a number of important project outcomes.
Each of our projects is progressing well, and we
are now seeing some major publications, including
Realising Democracy: Electoral Law in Australia
published by Federation Press and edited by Graeme
Orr, Bryan Mercurio and myself.
A highlight of the last six months was the National
Forum. The event attracted a large audience, including
many members of the public, interested in hearing
an array of speakers such as federal Attorney-General
Philip Ruddock, New South Wales Police Minister
John Watkins and Senator John Faulkner, Leader of the
Opposition in the Senate. I am also pleased that, with
the support of UNSW, we now have a webcast of the
day on our website. A full report on the National Forum
can be found inside this newsletter.
Much of my time over the last six months has been taken
up with travel on behalf of the Centre. I have visited
Canada, the United States, the United Kingdom and
New Zealand to meet with people about current and
future Centre projects and to take part in international
conferences and other events. These trips have been
useful in developing links between us and like Centres
and interested academics overseas.
The travel was also particularly important in helping
to establish the latest Centre project on terrorism and
law. That project is being developed as a multi-year
study on the legal responses to terrorism in Australia
and internationally. It will draw in a number of partners
and other participants, and we are currently seeking
funding for it.
Professor George Williams
Director
inside:
2 - centre
activities
4 - national
forum on
terrorism and the
rule of law
6 - centre people
8 - project
reports
10 - publications
and
presentations
12 - centre
personnel
Attorney-General Philip Ruddock at the National Forum on Terrorism
Webcast of National Forum on
Terrorism now available at:
www.gtcentre.unsw.edu.au
2004 Constitutional Law Conference
and Dinner
The third in this series of annual events will be held on
Friday 20 February 2004. The conference will be held
at the Art Gallery of New South Wales, with the dinner
once again at the New South Wales Parliament House
Dining Room.
The last two events in this series have sold out, and
although we have a larger venue for the conference
this year, we encourage you to register early if you
would like to attend. The brochure can be found on
our website, and has been posted to everyone on our
mailing list.
The papers from our 2002 and 2003 conferences can
also be found on our website in the publications
section, along with papers from our other events.
Gilbert + Tobin Centre of Public Law Faculty of Law University of New South Wales Sydney NSW 2052 Australia
Phone: 61-2-9385 2257 Fax: 61-2-9385 1175 Email: gtcentre@unsw.edu.au www.gtcentre.unsw.edu.au
G I L B E R T + T O B I N
C E N T R E
O F
P U B L I C
L A W

Centre Activities
Stephen Lam
Breakfast roundtable with Stephen
Lam, Hong Kong’s Secretary for
Constitutional Affairs
On 28 September 2003, the Centre, in conjunction with
the Asia-Australia Institute and the Hong Kong Economic
and Trade Office, hosted a roundtable discussion with
Stephen Lam, the Secretary for Constitutional Affairs in
the Hong Kong Special Administrative Region (HKSAR).
Participants included former Chief Justice of the High
Court Sir Anthony Mason, Federal Court Judge Ronald
Sackville and NSW Senator Marise Payne.
Mr Lam’s position as Secretary for Constitutional
Affairs places him at the heart of the constitutional
controversies that Hong Kong currently faces. He has
responsibility for overseeing the implementation of
Hong Kong’s Basic Law and Hong Kong’s policies on
electoral affairs. In addition, he plays a pivotal role in
maintaining Hong Kong’s external relationships and
in developing a close relationship with the Chinese
mainland.
Discussion at the event mainly focussed on Hong
Kong’s recent constitutional crises. The event included
a challenging and stimulating discussion about the
present and future state of political affairs in Hong
Kong.
Rights and recognition
go hand in hand with
economic and social
development.
Sean Brennan, ‘Practical Reconciliation:
Only Half the Story’, Perspective, ABC
Radio National, (20 November 2003).
If the Australian people
are asked to vote on
reform of the Senate, any
proposal must balance
the Senate’s existing
strengths against the need
for stable and effective
government. This cannot
be achieved by piecemeal
reform, particularly reform
that will rightly be seen
by the people as serving
only the interests of the
government of the day.
George Williams, ‘Beware Senate
Reform that Seeks to Only Block the
Block’ Sydney Morning Herald (9
October 2003).
2
Quentin Baxter lecture, Victoria
University, Wellington
Centre Director George Williams delivered ‘The Case
that Stopped a Coup The Rule of Law in Fiji’ at the
2003 Quentin-Baxter Memorial Trust Lecture. The
lecture, held on 27 November 2003, was organised by
the New Zealand Centre for Public Law at the Victoria
University of Wellington, Wellington, New Zealand.
George Williams
Gilbert + Tobin Centre of Public Law
Newsletter

New books
Federation Press has recently
published Realising Democracy:
Electoral Law in Australia. The
volume draws together as
contributors a range of insiders and
other Australian and international
commentators with long experience
in electoral administration and
electoral law. Authors include
leading lawyers, political scientists, historians and
electoral administrators.
Centre Director George Williams is series editor of a
new line of books, entitled Law at Large, from University
of New South Wales Press. The books on legal topics of
broad contemporary significance are aimed at both a
legal and non legal audience.
The first book in the series, by
Professor Brian Horrigan of the
University of Canberra, Adventures
in Law and Justice: Exploring Big
Legal Issues in Everyday Life, has just
been published. It was launched in
Sydney by James O’Loghlin, evening
presenter on ABC Radio 702 in
Sydney.
The Law at Large series will include small to medium
sized books, and a number of authors are now under
contract. If you have any interest in contributing to the
series, please contact the Centre Director.
UNSW Press has also recently
published Terror Laws: ASIO
Counter-Terrorism and the Threat to
Democracy by Associate Professor
Jenny Hocking of Monash University.
The book, which contains a forward
by the Centre Director, marks an
important contribution to the
ongoing debate over new security
laws for Australia.
If [unilateralism, pre-emption
and humanitarian intervention]
are recognised
as part of the international
legal order, will they become
a destabilising force
in the delicate ecosystem
of the international community
… Of course,
it is always difficult to
forecast the effect of a
new legal order on future
international stability. We
might, however, question
whether the Israeli experience
provides a microcosmic
example.
Devika Hovell, Perspective, ABC Radio
National (7 November 2003)
3
Australian Policy Online grant
Centre Director George Williams was a partner with
other academics in a grant application to upgrade the
online social science research website Australian Policy
Online (www.apo.org.au). Australian Policy Online
provides access to research from nearly 100 member
centres and institutes to create a national, searchable
electronic gateway for academic researchers,
librarians, public servants, journalists and students. The
site is maintained by the Institute for Social Research at
Swinburne University of Technology.
The application was successful, with the Australian
Research Council awarding the project $108,045.
We are looking forward to working more closely
with Australian Policy Online in the future and in
continuing to develop innovative and accessible ways
of communicating with a broad audience about our
research and activities in the area of public law.
January 2004
www.gtcentre.unsw.edu.au

National Forum on Terrorism and the Rule of Law
The Centre held a successful National Forum on The
War on Terrorism and the Rule of Law on Monday,
10 November 2003 at New South Wales Parliament
House. Over 125 attendees from a wide spectrum of
the community participated in this timely and topical
event.
Given the controversy regarding the passage of the
ASIO Bill, the war on Iraq and continuing spectre of
terrorism in the Australian community since Bali, this
conference allowed Federal and State politicians,
experts in the legal and intelligence community and
public commentators to discuss the balance between
the need for increased security and Australia’s respect
for the rule of law and human rights.
A webcast of the event is available from the Centre
website. Papers from the conference are also available
on the website.
The Hon John Watkins MP, NSW Police Minister:
‘It is appropriate that the topic that I was asked to
address was the State response to September 11
because if a terrorist event were to occur in NSW - it
would overwhelmingly be dealt with as a State matter.’
The Hon Philip Ruddock MP, Commonwealth
Attorney-General:
‘In terms of Australia’s legislative response to terrorism
the very same principles of community acceptance,
opinion and tolerance apply.’
‘But I make no secret of the fact that I do not believe
the legislation as it stands is quite right. As I said
before, sometimes there are trade offs. And we are in
a position where we possibly have an outcome that is
third or fourth best.’
‘We have not - and we will not - shy away from our
responsibility to give our intelligence agencies the
powers they need to fi ght terrorism effectively. If this
means putting new powers into place - so be it.’
4
The Hon Senator John Faulkner, Leader of the
Opposition in the Senate (pictured speaking to
Dr Helen Irving):
‘It is somewhat ironic that Ministers and Government
members speaking to the media after the Bill was
passed focussed on the balanced nature of ASIO’s
new powers. They hang their hats on the safeguards,
reassuring everyone there are proper checks and
balances…But those safeguards are all in there as a
result of Labor insisting on them in negotiations with
the Government and because of our amendments in
the Senate.’
Devika Hovell
Devika Hovell, Director, International Law
Project, UNSW (right):
‘The international response to the [Lockerbie disaster]
took 15 years. It was slow and unwieldy, and people
became very frustrated in the process. Nevertheless,
the issue was resolved. And, notably, following the
loss of 270 lives in the bombing itself, no further life
was lost in the resolution of the issue.’
Gilbert + Tobin Centre of Public Law
Newsletter

Paul Kelly, Editor-at-Large, The Australian:
‘I identify fi ve defi ning strategic challenges for the
international community and for Australia. The fi rst...is
the crisis, or perhaps better described as the civil
war within Islam...[Secondly,] simultaneous with their
own civil war, the Islamic extremists are also waging
a war against the west, against Christians and against
Zionists... [Thirdly,] the new type of threat...this is an
asymmetrical war...the enemy is not a nation state, but
a privatised terror network... [Fourthly,] the rise of the
rogue state... [Fifthly,] the new role of the United States
in the world as a revolutionary power...[Bush] could
have responded in terms of the tradition of American
internationalism or he could have responded in terms
of the tradition of American exceptionalism and he did
the latter.’
Dr Jenny Hocking, Director, National Centre for
Australian Studies, Monash University:
‘There is no doubt that these counter-terrorism
measures represent the greatest contemporary
challenge to relations between the arms of government
(the judiciary, the parliament and the Executive) and
to long established civil and political rights since the
liberal Prime Minister Robert Menzies’ several failed
attempts, through three spheres of governance, to pass
the Communist Party Dissolution Bill.’
Stephen Kenny, Camatta Lempens, Lawyers
for the Hicks Family (pictured left with Philip
Ruddock):
‘What exactly does the Australian Government say
about this. Very little it would appear and certainly I
have not seen or heard any criticism from the Australian
Government about the procedures. Although they
have sought a number of changes and guarantees such
as that the death penalty shall not apply to David Hicks
and Mamdouh Habib, they have as far as I am aware on
no occasion sought to ensure that Australian citizens
receive a standard of justice equal to that provided to
Mr Walker Lind, an American citizen. It appears their
position is that they are happy for an Australian citizen
to receive a lesser standard of justice.’
January 2004
5
Michael Gawenda, Editor-in-Chief, The Age
(pictured left with Stephen Kenny and Megan
Davis):
‘People felt unsafe, threatened, at war even. And the
Government made it impossible for us [the media] to
make the asylum seekers human, to tell their stories, to
show that they were individual human beings with the
same hopes and dreams and aspirations as the rest of
us. We were not allowed into the detention centres,
despite repeated requests. We were not allowed onto
the Tampa. We were not allowed into the detention
centres on Nauru and PNG. We could not get to the
people who had been accused of being less than
human for throwing their children into the ocean to
see for ourselves whether they were human or not. We
made endless requests and demands. We failed.’
www.gtcentre.unsw.edu.au

Centre People
Cassandra Goldie, Homelessness,
Human Rights and the Law
Cassandra Goldie is Director of the Centre’s new
Homelessness Legal Rights Project and is also
undertaking related PhD research supervised by Garth
Nettheim and George Williams.
Homelessness is a major human rights issue for Australia.
Based on the most recent 2001 Census analysis, it
is estimated that about 100,000 people experience
some level of homelessness at any given time.
However, whilst a significant body of Australian public
policy knowledge and research has been generated
about the economic, social and cultural aspects of
homelessness, there has historically been relatively
limited scholarship about the legal and human rights
of people facing homelessness. The Homelessness
Legal Rights Project and the PhD research aim to make a
contribution to that end.
Cassandra commenced her PhD in 2002 whilst still
Coordinator and Principal Solicitor of the Darwin
Community Legal Service. She holds a Masters of Laws
from University College London specialising in Public
International Law and was awarded an Australian Post
Graduate Scholarship to undertake her PhD studies.
Using the case study of Darwin, the PhD examines
the extent to which domestic and international legal
resources may be available to homeless people to
assert greater legitimacy and control over their use of
this space. The thesis considers the Australian criminal
law, administrative and anti-discrimination law and
the common law regarding the extent to which there
are currently limits to the permissible regulation of
this space. The research also examines international
and comparative human rights law and discourse
to establish to what extent alternative jurisdictions
recognise ‘rights’ in relation to homeless people’s
use of public space. The thesis seeks to contribute
the development of alternative legal and institutional
arrangements for the regulation of public space that
might better respect the human rights of homeless
people without unduly infringing upon the legitimate
interests of third parties.
Gilbert + Tobin Centre of Public Law
6
Cassandra Goldie
In conjunction with the PhD research, Cassandra is
Director of the Homelessness Legal Rights Project.
Funded in part by the Law and Justice Foundation of
New South Wales, and the Centre, the Project is in
partnership with the Public Interest Law Clearing House
Homeless Persons’ Legal Clinic in Melbourne.
The Project administers a national email list on
Homelessness, Human Rights and the Law and
publishes a regulate Resource Bulletin. There are
over 250 subscribers to the national list, consisting of
tenancy and housing workers, crisis accommodation
services, lawyers and academics, people who have
experienced homelessness, journalists and public
policy makers.
The Project maintains the Homelessness, Human
Rights and the Law Resource Web Page and, subject
to available resources, also provides support to
research and advocacy initiatives that seek to promote
the human rights of people facing homelessness. To
date, the Project has contributed to or supported
a range of initiatives, including the Legal Needs of
Homeless People Research Project of the Law and
Justice Foundation of New South Wales, the New
South Wales Boarders and Lodgers Campaign, the
Longgrass Association Freedom to Sleep Protest, the
Homeless People’s Association in Melbourne, and the
Disability Discrimination Act 1992 (Cth) and Drug Use
Campaign.
Since commencing her PhD and the Homelessness
Legal Rights Project, Cassandra has published several
papers and presented in a range of forums, including
the ACOSS 2002 Congress in Hobart, the 2003 National
Homelessness Conference in Brisbane, the Housing and
Homelessness Action Planning Day in Melbourne, and
the Northern Territory Social Policy Forum in Darwin.
She has also been a Visiting Lecturer in International Law
at the Charles Darwin University in Darwin and a Guest
Speaker on Public Interest Law for the UNSW Kingsford
Legal Centre Clinical Legal Education Program.
Newsletter

Thomas Poole, Andrew Lynch and Sean Brennan
New Visiting Professor and Centre
Associate
Professor Jeremy Webber has joined the Faculty of Law
at UNSW as a Visiting Professor and the Centre as an
Associate. Jeremy holds the Canadian Research Chair in
Law and Society in the Faculty of Law at the University
of Victoria in Canada. He was previously Dean of Law at
the University of Sydney and is internationally known as
a law and society scholar working in the fields of cultural
diversity, constitutional theory and Indigenous rights.
He is the author of Reimagining Canada: Language,
Culture, Community and the Canadian Constitution
(1994). Jeremy will be teaching a subject in March
2004 in the Law Faculty’s postgraduate program called
‘Law, Constitutionalism and Culture’.
Centre Visitors
We will have a number of visitors over 2004.
Dan Meagher
Dan will be a visiting scholar at the Centre for two
months beginning in early January. He is currently a
lecturer in constitutional law and criminal procedure at
Deakin University in Geelong. Dan is presently enrolled
as a PhD student at UNSW with George Williams as
supervisor, the topic of his thesis being ‘Rethinking the
regulation of race hate in Australia’. His time at UNSW
will be devoted to progressing his thesis.
Andrew Lynch
Andrew will be visiting from December 2003 until June
2004. He is a Senior Lecturer at the Faculty of Law, UTS
and has been a postgraduate student of the School of
Law, UNSW since 2001. He is working on a thesis under
the supervision of Professor George Williams. His
thesis topic is concerned with the impact of judicial
disagreement, especially dissenting judgments, upon
the development of Australian constitutional law.
During his visit he will be continuing work on his
doctorate.
The use of force by
Australia can raise
different issues than
were imagined at the
time our Constitution was
drafted. A key question
in 2003 has been whether
Australia should breach its
international obligations,
as I believe it did, in using
force in Iraq. This can
have ramifications for the
nation and its long term
security and economic
prosperity beyond the
decision to use force in
a particular case. This is
one, legal reason why it is
no longer appropriate for
the decision to use force
to be left solely in the
hands of the government
of the day.
George Williams, ‘Changing the Way
we go to War’ Australian Financial
Review (21 November 2003).
7
Thomas Poole
Thomas has been a lecturer at the University of
Nottingham for over three years with particular
interest in public law subjects, including judicial
review and constitutional theory. He will visit UNSW
from December 2003 until August/September 2004.
Thomas will continue work on the idea of common
law constitutionalism that is influential amongst some
UK public lawyers at the moment. Furthermore, he
plans to take an active part in some of the project-work
of the Centre and, in so doing, hopes to learn a little
about Australian constitutional and administrative law.
He also promised not to talk too much about the rugby
(in any case, he supported Wales).
Launch of website:
International Law and the Australian
Legal System
www.ilals.unsw.edu.au
January 2004
www.gtcentre.unsw.edu.au

Project Reports
ELECTORAL LAW PROJECT
Project Director: Bryan Mercurio
The Electoral Law Project is proud to announce the
publication of Realising Democracy: Electoral Law
in Australia, the fi rst book written on the subject of
electoral law in Australia. The book, co-edited by
Graeme Orr, Bryan Mercurio and George Williams, is
published by Federation Press and can be purchased
directly by contacting Federation Press on (02) 9552
2200 or online at www.federationpress.com.au.
The Project is now focusing its attention on two
upcoming events. The fi rst is a workshop on ‘Political
Finance Law’, to be held at Griffi th University in January
2004. The workshop will bring academics, electoral
offi cials and party representatives together to discuss
this highly relevant and hotly debated issue. The other
event is a ‘virtual’ Electoral Law Symposium to be
featured in a special themed edition of the Federal Law
Review. The symposium will feature leading electoral
scholars refl ecting on the shape and development
of electoral law and its fi t with other areas of law.
These two events are further evidence of the Project’s
commitment to foster sustained research in this
important fi eld by bringing electoral administrators,
academics, and practitioners together both physically
and intellectually.
The Project also completed several research tasks since
the last newsletter, including a joint piece written by
Graeme Orr, Bryan Mercurio and George Williams for the
Election Law Journal. Project Director Bryan Mercurio
continued his work on electronic voting, writing a
piece entitled ‘Discrimination in Electoral Law: Using
Technology to Extend the Secret Ballot to Disabled
and Illiterate Voters’ published in the Alternative Law
Journal and another entitled ‘Democracy in Decline:
Can Online Voting Save the American Electoral System’
to be published in the United States by the John
Gilbert + Tobin Centre of Public Law
Bryan Mercurio
Without intense lobbying
by concerned citizens and
advocates, the issue [of
ballot access for disabled
voters] will continue to
be misunderstood and
not be included on the
political agenda. However,
as demonstrated in the
US, effective lobbying
and pressure can force
politicians to face the issue
and enact legislation to
reasonably accommodate
disabled voters.
Bryan Mercurio, “Discrimination in
electoral law: using technology to extend
the secret ballot to disabled and
illiterate voters”, (2003) 28 Alternative
Law Journal 273.
8
Marshall Journal of Computer and Information Law.
Our Project partner, Graeme Orr of Griffi th University,
has also recently written several articles, including a
piece entitled ‘Australian Electoral Systems - How
Well do they Serve Political Equality’ for the Electoral
Governance Workshop, Democratic Audit of Australia,
Research School of Social Sciences, at the Australian
National University.
Both Bryan Mercurio and Graeme Orr also presented
papers at the HS Chapman Society, Forum 24 on
Electoral Governance, held on the campus of UNSW
in October. Bryan presented a paper entitled ‘Some
Problems with Computerised Voting’ and Graeme’s
paper was entitled ‘Majors vs Minors: Ironies and
Inequalities in Electoral Law as Evidenced in the
Hanson Case and Others’. Graeme also recently
presented a paper on campaign fi nance reform to an
international workshop held in France.
BILL OF RIGHTS PROJECT
Project Director: Megan Davis
Australia appears likely to have its fi rst Bill of Rights with
the ACT Human Rights Bill 2003 being introduced into
the ACT Legislative Assembly on 18 November 2003.
The project has been busy revamping its popular Bill of
Rights resource webpage. The updated page includes
information about the ACT Human Rights Bill 2003 as
well as a survey of the history of Bill of Rights debates
in Australia, a new section on the Bill of Rights policies
for Australian political parties and an updated section
devoted to web writings on a Bill of Rights in Australia,
including law journal articles and newspaper pieces.
The resource page can be found on our website.
Megan also continues to conduct a research project
with the Jumbunna Indigenous House of Learning at
the UTS Faculty of Law, investigating the impact of
international trade law upon indigenous peoples’
rights and international human rights law in general. The
project is currently examining the potential benefi ts of
trade liberalisation for Indigenous Australia.
Megan Davis
Newsletter

INTERNATIONAL LAW PROJECT
Project Director: Devika Hovell
December marks the end of the first year of our threeyear
project on ‘International Law and the Australian
Legal System’. The Project aims to assess the interaction
between international law and the Australian legal
system in a systematic manner, and examine the need
for reform. In its first year, the Project partners (the Centre
together with the Centre for Public and International
Law at the ANU) have achieved the following:
• Publication of survey article in Sydney Law
Review
The Project partners have an article in the December
volume of the Sydney Law Review entitled ‘Deep
Anxieties: Australia and the International Legal Order’.
The Australian Constitution says little about the nature
of the relationship between international law and
the Australian legal framework. Accordingly, it has
been left to the executive, legislature and judiciary to
develop mechanisms to respond to international law.
Not unsurprisingly, this ad hoc approach has led to
incoherencies in Australia’s response to international
law. The Project’s role is now to determine whether
these incoherencies are unavoidable in Australia’s
approach to this inherently political body of law, or
whether the system should be streamlined to dispel
these incoherencies.
• Launch of website
Detailed information relating to ‘International Law
and the Australian Legal System’ can now be found
on the project website at www.ilals.unsw.edu.au.
The website contains information about the project
personnel, publications, conferences and events.
Most importantly, the website includes a Resources
page, which acts as a database of resources on the
relationship between international law and Australian
law, including Australian judicial decisions, executive
and legislative reports, and secondary materials. The
website also includes ‘Diary Extracts’ from Australia’s
relationship with international law, providing links to
newspaper articles, reports and government releases
depicting in a more tangible fashion Australia’s dayto-day
interaction with international law. Suggested
updates to the website can be emailed to Devika
Hovell at d.hovell@unsw.edu.au.
• Case studies
The Project partners are presently engaged in two
pilot case studies in order to examine in further detail
Australia’s approach to treaty negotiation, signature
and ratification. The case studies are focussing on
two treaties: the Optional Protocol to the International
Covenant on Civil and Political Rights (opened for
signature in December 1966 and acceded to by
Australia on 25 September 1991) and the Framework
Convention on Tobacco Control (opened for signature
in June 2003 and signed by Australia in December
2003). The Project partners are interviewing a range
January 2004
Given that race has been
the defining feature in
the relationship between
the state and Indigenous
peoples, who did not play
a role in state-building,
institutional symbolism
such as an apology would
go further to the creation
of a sense of belonging
than the maintenance of
the fiction that parliament
can be trusted to protect
the rights of Aboriginal
and Torres Strait Islander
people.
Megan Davis, “Indigenous Peoples and
Australian human rights tradition: the
perennial footnote”, paper delivered
at workshop ‘Protecting Human Rights
in Australia: Past, Present and Future’,
Melbourne, 10-12 December 2003.
9
of individuals involved in the ratification process of
both treaties. In doing so, we are attempting to piece
together the story surrounding Australia’s entry into these
treaties, to assess the issues impacting upon Australia’s
decision to enter into treaties and to determine the
nature of the decision-making process.
Diary extracts: Australia’s relationship with
international law
11 December 2003 - Australia commits $800 million to
restore order in PNG
10 December 2003 - Australia opposes successful General
Assembly resolution seeking International Court of Justice
decision in Israel barrier
9 December 2003 - High Court upholds gay refugee claim
1 December 2003 - PM concerned injecting rooms breach
international treaty obligations
18 November 2003 - ACT introduces Australia’s first Bill of
Rights
25 November 2003 - Government accepts Military
Commissions for Guantanamo Bay detainees
12 November 2003 - Australia’s boat people rejection
violates Refugee Convention, says UN
28 October 2003 - Australia to reduce military component
in Solomon Islands
3 October 2003 - WTO establishes dispute panel to hear
Australia’s challenge to EU geographical indications
6 August 2003 - UN Human Rights Committee finds Australia
violated human rights in Young (veterans’ pension for samesex
couples), Cabal (prisoners’ rights) and Baban (mandatory
detention of asylum seekers)
TREATY PROJECT
Project Director: Sean Brennan
The Centre’s Treaty Project has passed the halfway
point. Research in the past six months has focused on
Indigenous and non-Indigenous notions of sovereignty.
This month we publish the second of our issues
papers, which looks at that topic. Drawing on our June
workshop on sovereignty and the excellent work done
by our overseas intern from the University of Toronto,
Brenda Gunn, the paper wrestles with the differing
interpretations of the term, as part of a wider public
law question of who has the power and authority to
conclude treaties in Australia.
Sean Brennan, the Director of the Centre’s Treaty Project,
has also given a number of presentations, as part of the
Centre’s attempt to engage with different communities
while academic research and writing continues. Sean
has presented locally, interstate and overseas as well as
on ABC Radio National’s Perspective program.
The Centre’s submission and evidence to the Senate
Legal and Constitutional Committee’s inquiry into
progress on national reconciliation was quoted
a number of times in the Committee’s report
Reconciliation: Off Track released in October 2003.
In the coming six months, our attention will turn to the
relationship between native title and the treaty debate,
and to upgrading the project’s website and resources
page.
www.gtcentre.unsw.edu.au

Publications and Presentations
Publications
Joint Publications
Hilary Charlesworth, Madelaine Chiam, Devika Hovell
and George Williams, ‘Deep Anxieties: Australia and the
International Legal Order’ (2003) 25 Sydney Law Review
423.
Rachel Davis and George Williams, ‘Reform of the
Judicial Appointments Process: Gender and the Bench
of the High Court of Australia’ (2003) 27 Melbourne
University Law Review 819.
Devika Hovell and George Williams, ‘Advice to Hon
Simon Crean MP on the Use of Force Against Iraq’ (2003)
4(1) Melbourne Journal of International Law 183.
Graeme Orr, Bryan Mercurio, and George Williams
(eds), Realising Democracy: Electoral Law in Australia
(Federation Press, 2003).
Graeme Orr, Bryan Mercurio, and George Williams,
‘The Australian Electoral Tradition’ in Graeme Orr,
Bryan Mercurio, and George Williams (eds) Realising
Democracy: Election Law in Australia (Federation Press,
2003), 1.
Graeme Orr, Bryan Mercurio, and George Williams,
‘Australian Electoral Law: A Stock-take’ (2003) 2 Election
Law Journal 383.
John Pace and George Williams (eds), ‘Special Edition:
A Bill of Rights for Australia’ (2003) 9(1) Australian
Journal of Human Rights.
George Williams
‘Foreword’ to J Hocking, Terror Laws: ASIO, Counter-
Terrorism and the Threat to democracy (UNSW Press,
2003), vii-viii.
‘The Whitlam Government and Constitutional Reform’ in
Hocking, J and Lewis, C (eds), It’s Time Again: Whitlam
and Modern Labor (Cica, 2003), 195.
‘Constructing a Community-Based Bill of Rights’ in
Campbell, T, Goldsworthy, J, and Stone, A (eds),
Protecting Human Rights: Instruments and Institutions
(Oxford University Press, 2003), 247.
‘Review of Executive Action and the Rule of Law under
the Australian Constitution’ (2003) 14 Public Law Review
219 (with Duncan Kerr).
‘Australian Values and the War Against Terrorism’ (2003)
26 University of New South Wales Law Journal 191.
‘National Security, Terrorism and Bills of Rights’ (2003) 9
Australian Journal of Human Rights 263.
Sean Brennan
‘Native Title in the High Court of Australia a Decade after
Mabo’ (2003) 14 Public Law Review 209.
‘Whitlam and the Value of Law in Indigenous Affairs:
Lessons for the Contemporary Debate on Reconciliation
and a Treaty’ in Jenny Hocking and Colleen Lewis
(eds), It’s Time Again. Whitlam and Modern Labor (Circa,
2003), 138.
‘Book Review: A New Constitution for Australia’ by Bede
Harris [2003] Public Law 831.
Gilbert + Tobin Centre of Public Law
10
Megan Davis
‘Globalising Human Rights: Aboriginal Women, customary
Aboriginal law and the Australian common law’ based
on workshop ‘Women, Crime and Globalisation: Feminist
Perspectives for the New Millennium’ at the International
Institute for the Sociology of Law (IISL),Onati, Spain, 23-26
September 2003 (forthcoming Jan/Feb Hart Publishing).
‘Civics Education and Human Rights’ (2003) 9(1)
Australian Journal of Human Rights 235.
‘International Human Rights Law and the Domestic Treaty
process’ in ‘Treaty - Lets Get it Right!’ (ed) Aboriginal
Studies Press (2003).
Terrorism (Hot Topics No 42 Legal Information Access
Centre, State Library of New South Wales).
Devika Hovell
‘The Sovereignty Stratagem: Australia’s Response to UN
Human Rights Treaty Bodies’ (2003) 28 Alternative Law
Journal 297.
Bryan Mercurio
‘The Future of Dispute Settlement in the WTO: The
Implementation Phase Under Scrutiny’ in Ross Buckley
(ed), The WTO and the Doha Round: The Changing Face
of World Trade (Kluwer Law International, 2003) 115.
‘Discrimination at the Ballot Box: The Secret Ballot and
Blind Voters’ (October 2003) 12(2) Human Rights
Defender 2.
‘Beyond the Paper Ballot: Discovering Computerised
Voting’ in Graeme Orr, Bryan Mercurio, & George
Williams (eds) Realising Democracy: Election Law in
Australia, 230 (Federation Press, 2003).
‘Discrimination in Electoral Law: Using Technology to
Extend the Secret Ballot to Disabled and Illiterate Voters’
(2003) 28 Alternative Law Journal 273.
Presentations
George Williams
‘The Constitutional Role of Courts: Lessons from
Australia’ delivered at Courts, First Annual Conference
on the Primary Functions of Government, New Zealand
Centre for Public Law, Victoria University of Wellington,
Wellington, New Zealand, 28 November 2003.
‘The Case that Stopped a Coup The Rule of Law in
Fiji’ delivered at 2003 Quentin-Baxter Memorial Trust
Lecture, New Zealand Centre for Public Law, Victoria
University of Wellington, Wellington, New Zealand, 27
November 2003.
‘Aboriginal Peoples and the Australian Constitution:
Issues of Race and Reconciliation’ delivered at Faculty
Seminar, University of Auckland Law School, New
Zealand (with Sean Brennan), 25 November 2003.
‘The Executive and the Military: Commentary’ delivered
at 2003 Public Law Weekend, ANU, Canberra, 8
November 2003.
‘Aboriginal Peoples and the Australian Constitution’
delivered at School of Law, University of Glasgow,
United Kingdom, 25 September 2003.
Newsletter

‘Aboriginal Peoples and the Australian Constitution’
delivered at University College London, United
Kingdom, 23 September 2003.
‘Terrorism: The View from Down Under’ delivered at Public
International Law Speaker Series, Columbia University Law
School, United States, 17 September 2003.
‘Human Rights and Judicial Review in Australia’ delivered
at Constitutionalism in the Charter Era, University of
Western Ontario, Canada, 12 September 2003.
‘Terrorism and the Law in Australia after September 11
and the Bali Attack’ delivered at Osgoode Hall Law
School, York University, Canada, 10 September 2003.
‘Aboriginal Peoples and the Australian Constitution’
delivered at Constitutional Roundtable, University of
Toronto Law Faculty, Canada, 8 September 2003.
‘The Case that Stopped a Coup The Rule of Law and
Constitutionalism in Fiji’ delivered at Comparative
Constitutionalism Course, University of Sydney Law
School, 20 August 2003.
Sean Brennan
‘A Treaty Project’, delivered at National Community Legal
Centres Conference, Hobart, 2 September 2003.
‘Treaty Issues in Australia’, delivered at ANTaR WA forum
on Sovereignty, Identity and Justice – Recognising
Aboriginal Nations, Perth, 26 August 2003.
‘A Treaty or Treaties with Indigenous Peoples in
Australia’, delivered at NSW Law Society Human Rights
Committee, Sydney, 19 August 2003.
Megan Davis
‘Indigenous Peoples and Australian human rights
tradition: the perennial footnote’ delivered at workshop
‘Protecting Human Rights in Australia: Past, Present and
Future’ The Novotel Hotel, St Kilda, December 10-12,
2003.
‘International Human Rights Law and Aboriginal
Customary Law’ International Law Association/HREOC
Seminar, 20 November 2003.
‘Globalising Human Rights: Aboriginal Women,
customary Aboriginal law and the Australian common
law’ at ‘Women, Crime and Globalisation: Feminist
Perspectives for the New Millennium’ at the International
Institute for the Sociology of Law (IISL),Onati, Spain, 23-
26 September 2003.
‘Case Studies and Current Research regarding Customary
Protocols and Intellectual Property from Aboriginal
Australia’ WIPO North American Workshop on Intellectual
property and Traditional Knowledge, Ottawa, Canada,
7-9 September 2003.
‘International Trade Law and Indigenous Australia’, UTS
Jumbunna Indigenous House of Learning, Seminar Series.
Devika Hovell
‘A New Order of Things Terrorism and International
Law’, National Forum on The War On Terrorism and
the Rule of Law, NSW Parliament House, Sydney, 10
November 2003.
January 2004
11
‘International Law and Post-War Iraq’, University of New
South Wales Expo, 6 September 2003.
‘Anachronism or Answer: Australian Sovereignty and the
Human Rights Committee’, 11th Annual Australia and
New Zealand Society of International Law Conference,
Wellington, 5 July 2003.
Media
George Williams
‘Changing the Way we go to War’ Australian Financial
Review (21 November 2003).
‘Terrorist Laws Tough Enough, if Used’ Sydney Morning
Herald (4 November 2003).
‘Why ASIO Should Not be Given More Power’ The Age
(4 November 2003).
‘Anti-Terrorism Laws Threaten Freedoms’ Courier Mail (4
November 2003).
‘ACT Well on the Way to a Bill of Rights’ Canberra Times
(25 October 2003).
‘Beware Senate Reform that Seeks to Only Block the
Block’ Sydney Morning Herald (9 October 2003).
‘Human Rights Vulnerable to Assault’ Australian Financial
Review (29 August 2003).
‘Political Prisoner Status Earned, Not Stolen’ Sydney
Morning Herald (27 August 2003) (with Bryan
Mercurio).
‘Diversity and Australia’s Highest Court’ Australian
Financial Review (22 August 2003).
Sean Brennan
‘Practical Reconciliation: Only Half the Story’, Perspective,
ABC Radio National (20 November 2003).
Devika Hovell
‘Terrorism and International Law’, Perspective, ABC
Radio National (7 November 2003).
‘A New World Order Beckons when Violation Becomes
the Norm’ Sydney Morning Herald (10 November 2003).
Submissions
Submission by Tracey Stevens and George Williams to
United Kingdom Department for Consitutional Affairs on
‘Constitutional Reform: A Supreme Court for the United
Kingdom’ (9 December 2003).
Submission by George Williams to Consultative Group
on Senate Reform on ‘Resolving Deadlocks: A Discussion
Paper on Section 57 of the Australian Constitution’ (12
November 2003).
Submission by George Williams to Senate Legal and
Constitutional References Committee on ‘Inquiry into
State Elections (One Vote One Value) Bill 2001 [2002]’
(8 October 2003).
Submission by Rachel Davis and by George Williams to
United Kingdom Department for Constitutional Affairs
on ‘Constitutional Reform: A New Way of Appointing
Judges’ (5 September 2003).
www.gtcentre.unsw.edu.au

Centre Personnel
G+Ts at Coogee Beach: (from left to right) Devika
Hovell, Tom Poole, Sean Brennan, George Williams,
Megan Davis, Cassandra Goldie, Andrew Lynch.
Director
George Williams, Anthony Mason Professor, BEc LLB
(Hons) Macq, LLM UNSW, PhD ANU
Administrator
Belinda McDonald, BA UNSW
Project Directors
Sean Brennan, Lecturer, BA (Hons) LLB (Hons) LLM
ANU, Treaty Project
Megan Davis, Visiting Fellow, BA LLB UQ, Bills of Rights
Project
Devika Hovell, Lecturer, BA LLB (Hons) UWA, LLM New
York University, International Law Project
Bryan Mercurio, Lecturer, BA (Hons) Ohio Wesleyan
University, JD (Hons) Case Western Reserve University,
LLM UNSW, Electoral Law Project
Centre Associates
Nicole Abadee, Part-time Lecturer, BA LLB (Hons) Syd,
LLM (Hons) (Cambridge)
Roy Baker, Project Director, Communications Law
Centre, LLB, LLM UBC, LLM UNSW
Tony Blackshield, Adjunct Professor, LLM Syd
Dorne Boniface, Senior Lecturer, BCom (Ec) UNSW, LLB
UNSW, LLM Uni Syd
Adam Czarnota, Senior Lecturer, LLM PhD
N.Copernicus
Julian Disney, Professor, AO LLB Adel, Hon LLD UNSW
Colin Fong, Librarian, Australian Taxation Studies
Program, BEc (Syd); AALIA; MLS (Hons) (UTS)
Arthur Glass, Associate Professor, BA LLB PhD Syd
Janice Gray, Lecturer, BA LLB Dip Ed MA UNSW
Jill Hunter, Associate Professor, BA LLB UNSW, PhD
Lond
Martin Krygier, Professor, BA LLB Syd, PhD ANU
Irene Nemes, Senior Lecturer, BA Syd, LLB UNSW, LLM
Syd
Garth Nettheim, Emeritus Professor, LLB Syd, AM Tufts
Richard Potok, Visiting Fellow, BComm LLB NSW, BCL
Oxon
Ronnitt Redman, Lecturer, BA LLB Syd LLM McGill
Robert Shelly, Lecturer, BA LLB Syd
Alex Steel, Senior Lecturer, BA LLB (Hons) Macq, MA
(Media, Tech & Law) Macq
Jeremy Webber, Visiting Professor, BA (British
Columbia), LLB (McGill), LLM (Osgoode) 1988
George Winterton, Professor, LLM WAust, JSD
Columbia
Leslie Zines, Visiting Professor, AO LLB (Syd) LLM (Harv)
Hon LLD (ANU)
Gilbert + Tobin Centre of Public Law
12
Postgraduate Students
Peter Gerangelos, BA (Hons) LLB Syd, LLM UNSW
Cassandra Goldie, B Juris LLB (Hons) UWA, LLM Dist
UCL
Katherine Lindsay, BA (Hons) MA LLB UQ, LLM
Newcastle
Dan Meagher, BEc, LLB LLM Monash
Andrew Lynch, LLB LLM QUT
Anne Twomey, BA LLB Melb, LLM ANU
Centre Advisory Committee
Sir Anthony Mason, Former Chief Justice of the High
Court (Chair)
Professor Larissa Behrendt, Jumbunna Indigenous
House of Learning, University of Technology, Sydney
Professor James Crawford, Cambridge University
Ms Andrea Durbach, Director, Public Interest Advocacy
Centre
Mr Stephen Gageler SC, NSW Bar
Mr Danny Gilbert, Managing Partner, Gilbert + Tobin
Justice Ronald Sackville, Federal Court of Australia
Mr Michael Sexton SC, Solicitor-General of NSW
Professor Leon Trakman, Dean, Faculty of Law, UNSW
Professor George Williams, Centre Director
Professor George Winterton, Faculty of Law, UNSW
Centre Management Committee
Professor David Dixon, Associate Dean (Research),
Faculty of Law, UNSW (Chair)
Ms Carmel Harrington, Gilbert + Tobin
Professor Peter Saunders, Social Policy Research Centre,
UNSW
Associate Professor Elaine Thompson, School of
Politics & International Relations, UNSW
Dr Derek Wilding, Director, Communications Law
Centre, UNSW
Professor George Williams, Centre Director
Research Assistants
Edward Coper
Ben Golder
Melanie Schwartz
Tracey Stevens
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UNSW Publishing & Printing Services, ph: 9385 2840.
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