January 2004 - Gilbert + Tobin Centre of Public Law

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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
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January 2004 - Gilbert + Tobin Centre of Public Law

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