Law Protecting Rights:
Restoring the law of self-determination in the
neo-colonial world

Amy Maguire

Abstract

This paper explores the contemporary status and role of the collective human right of self-determination, with particular reference to the case studies of nationalists in (the North of) Ireland and Indigenous peoples in Australia. I argue that international law does not offer sufficient protection for the right of self-determination, and consequently powerful states frequently ignore or marginalise claims to the right. By demonstrating that contemporary claimant peoples continue to experience forms of colonialism in the present, I advocate a renewed focus on the decolonising mission of self-determination. This focus requires that international law itself be decolonised. Key means of achieving this goal include enabling the variety of legitimate manifestations of the right of self-determination, breaking down the artificial opposition between ‘internal’ and ‘external’ self-determination, and empowering peoples through the development of an inclusive international legal system.

If the law of self-determination is to adequately protect rights, the interests of all peoples affected by a self-determination claim must be addressed. I promote Robert McCorquodale’s ‘human rights’ approach to self-determination as a means of moving beyond the stifling question of ‘Who is the self?’ towards twenty-first century self-determination solutions. This approach requires self-determination claims to be evaluated on their merits, and promotes a process of negotiating the right which is better adapted to achieving rights-based solutions for all interested parties.

Legislating Away Indigenous Rights

Deirdre Howard-Wagner

Abstract 

From 1996 onwards the former Howard government initiated a number of major reforms to law relating to Indigenous Australians, overhauling native title and Indigenous heritage protection legislation to balance competing economic interests, establishing new funding and accountability regimes and corporation structures to govern Indigenous organisations through the passing of Aboriginal and Torres Strait Islanders Corporations legislation, and removing mechanisms of self-determination by, for example, the abolition of the Aboriginal and Torres Strait Islander Commission (ATSIC) and changes to the Aboriginal Land Rights (Northern Territory) legislation. The paper gives consideration to the former Howard government’s law reform agenda in relation to Indigenous issues and proposes that the different arguments presented to justify this agenda interrelate and operate to implement a particular model of neo-liberal governance. It explores how the deployment of neo-liberal rationalities operated to justify what I refer to as the legislating away of Indigenous rights.

The paper commences as a historical, political and reflective piece, stemming from my own experience working for a small legal policy team within the Department of the Prime Minister and Cabinet responsible for drafting the Aboriginal and Torres Strait Islander Heritage Protection Bill 1998 under the Howard government. It then moves to a critique of neo-liberal rationalities underpinning reforms to Indigenous heritage protection legislation, as well as reforms to federal law relating to Indigenous Australians more generally.

Toxic Tort and the Articulation of Environmental Risk

Jo Goodie

Abstract

 The common law principles of negligence and nuisance, which were originally developed in the nineteenth century in response to the new hazards of the industrial age, have been adapted by what is called ‘toxic tort’ to offer a remedy in the face of a set of previously unknown environmental hazards. Courts necessarily engage in a quite specialised legal sense with the vocabulary and techniques of risk in their adjudication of disputes involving the appropriate limits and responsibilities of risk-taking. Various understandings of risk are employed expressly and implicitly in the conduct of toxic tort litigation. This paper considers the interface and significance of the four interrelated conceptions of risk (the scientific, the insurantial, the clinical and the everyday or common sense) which, it is argued, are at play in most toxic tort cases. While the central focus of a toxic tort claim is the plaintiff’s situated and particular experience of a defined local environment, the claim is assessed in light of more theoretical and generalised constructions of the environment, as well as commonly held attitudes to managing environmental risk, which assumes the plaintiff, not just the defendant, is an informed and ‘rational’ individual, both risk-aware and -averse.

Protecting Law from Morality’s Stalking Horse: The ‘socio’ in much socio-legal studies

Gary Wickham

Abstract

For Roger Cotterrell and Paddy Hillyard, two leading socio-legal scholars, morality is the heart and soul of the law; without it socio-legal studies would be worthless. On the back of some critical remarks about their thinking, this article argues that the ‘socio’ of much socio-legal studies –– the type of socio-legal studies that relies on either the individual reason-based tradition or the communitarian tradition, both of which place morality at the centre of their concerns –– is far too readily allowed to serve morality against the law, sometimes threatening to displace the law altogether. Privileged as the fundamental locus of human interaction, ‘the social’ in this style of socio-legal scholarship serves as a higher ground, a place from which to view and condemn the instrumentalism of the law, as well as politics and the state. In this manner, the social, for this way of thinking, is the stalking horse of a universal morality of reason and community that is never clearly specified –– one that can be used, and is used often, to buttress ‘critical’ arguments against instrumentalism –– against, that is, treating the law as an instrument that works independently of morality, reason and community. Drawing on some research in intellectual history, the article argues that this problematic style of socio-legal studies needs to be clearer about which ‘social’, and associated morality, is being employed in its name and, at the same time, that it should be wary of the potential of this ‘social’ to minimise the role of law.

 Sovereignty: Some considerations

Ian Duncanson

Abstract

Pivotal for this article is Hume’s observation that government is always by opinion, since strength always lies with the governed. Opinion is for this purpose the language of government which proves most persuasive, which is most widely performed. If the script of our performance introduces an abstract sovereign without the constitution, no political and legal safeguards for the subject avail in extremis. If, conversely, we perform a convention, an ‘agreement of the people’, moderation and tolerance may prevail.   

 Terrorist v Sovereign: Legal performances in a state of exception

Nicole Rogers

Abstract

In this article, I engage with the work of political theorist Giorgio Agamben and interrogate his proposition that the contemporary Western political environment resembles a state of exception. I analyse the function of performances in which the executive’s power to wage war is challenged by activists, in both legal and quasi-theatrical settings, and then consider legal challenges mounted by accused terrorists against the executive. Although the courts approach these two categories of legal contest quite differently, the outcome of such challenges supports Agamben’s thesis; at best, the courts are prepared to adopt a formalistic and procedural approach in considering the ambit of the executive’s powers to detain, discipline and otherwise control the unruly bodies of accused terrorists.

By contrast, in the final category of legal performances involving the state and accused terrorists, the courts demonstrate a surprising adherence to the rule of law. These performances, the terror trials, are designed as state-orchestrated spectacle in which the accused terrorists, shackled and encased behind glass, are represented as homo sacer. However, here we find an application of fundamental legal principles relating to the inadmissibility of evidence obtained under oppressive conditions of inducement, false imprisonment and kidnapping. It would thus seem that the contemporary state of exception is not absolute.

 Stories of Jack: Myth, media and the law

Marcus O’Donnell

Abstract

This paper identifies three interacting narrative strands in the Australian media coverage of ‘Jihad’ Jack Thomas. The character story of Jack interacts with a broader story of law and the story of the war on terror. Secondly it argues that a set of mythic motifs emerge in the texts and these are read against a set of news and popular culture events and figures. This second part of the paper focuses on the figure of the ‘sleeper’, which became one of the key ways of describing Jack Thomas during the trial. This figure of the sleeper is linked to an ongoing set of figures in popular culture and to traditional mythic motifs such as the trickster.

 'Intersections: What is the current climate in which we work and live?'

Friederike Krishnabhakdi-Vasilakis

Abstract

Following the events of 9/11 in 2001, the notion of terror - in action, word and image, has institutionalised fear on several levels: the emotional, the social and the political. Fear, it seems, justifies varying degrees of administrative arbitrariness, which as long as there is a commonly acknowledged denominator like terrorism, public opinion (when informed by fear rather than knowledge), can be swayed to overlook politicised abuse of the law. The protection of law from arbitrariness and from fear that makes arbitrariness possible, then, is a pressing issue in the current climate we live in.

This essay explores aspects of visual culture and the rhetoric of terror and the Socratic notion of political management of fear. Also, by following Edward Said’s inquiry into the public role of the scholar in society, it discusses creative investigations of institutionalised fear in the exhibition Tactics against Fear- Creativity as Catharsis 2007.