2019 Seminar Series

The SLJ's Research Seminar Series invites leading scholars from Australia and ovrseas to present their current scholarship, as well as showcasing our own distinguished researchers. In 2019 the Series featured key environmental, theoretical, and critical property themes. 

Following is an archive of Seminars held during 2019.

Profile image of Dr Alessandro Pelizzon, School of Law and Justice, SCU

Dr Alessandro Pelizzon, Southern Cross University

Neither natural nor posited: a contemporary journey towards an Ecological Jurisprudence

Dr Alessandro Pelizzon, Southern Cross University

14 March 2019 at Lismore campus with Zoom links to other locations.

When Christopher Stone asked his provocative question at the end of an introductory class in property law at the University of Southern California in 1972, ‘should trees have standing?’, he could scarcely have predicted how his suggestion would have affected the dominant legal paradigm in decades to come. In the author’s words, ‘[this suggestion] has since assumed a modest but apparently enduring place in contemporary environmental law and ethics, quite out of proportion to its actual impact on the courts.’ 

Since Stone’s own reflection in 2010, the article’s impact on courts and legislators alike has been, arguably, far more noteworthy than that. The most significant outcome of Stone’s provocative suggestion has certainly been the proliferation of rights of nature cases and legislation across the planet.  From the Community Environmental Legal Defense Fund (CELDF) assisted local laws, or ordinances in the US (beginning in 2006 in Tamaquah Borough, Pennsylvania) to the 2008 Ecuadorian Constitution, which expressly grants constitutionally enshrined rights to nature or ‘Pacha Mama’; from the World People’s Conference on Climate Change and the Rights of Mother Earth, convened by Bolivian President Evo Morales in Cochabamba, Bolivia, in 2010, and the resulting Universal Declaration of the Rights of Mother Earth - an aspirational document that expanded upon both the legal innovations and the post-colonial conceptualizations introduced by the Ecuadorian Constitution - to the creation of the Global Alliance for the Rights of Nature; from the establishment of the United Nations Harmony with Nature programme to the Ecuadorian Vilcabamba river case in 2011, the Indian Ganges and Yumuna cases in 2017, and the Colombian Atrato and Amazon cases of 2017 and 2018; from the New Zealand's Te Awa Tupua (Whanganui Claims Settlement) Act to the Victorian Yarra River Protection (Wilip-gin Birrarung murron) Act, both of 2017: this brief list of examples would be in itself sufficient to vindicate Stone’s provocation.

More importantly however, these examples are representative of a conceptual shift that has occurred, both within environmental philosophy and legal theory, in the course of the past four decades.

What began as a self-described thought experiment in the halls of US legal academia in the early 1970’s has certainly become a lived reality in a number of jurisdictions and much more than a theoretical possibility for many activists and scholars alike. Stone asked ‘what would a radically different law-driven consciousness look like? … How would such a posture in law affect a community’s view of itself?’ The answer to his questions was fully articulated for the first time by eco-theologian (and self-described ‘Earth scholar’) Thomas Berry, who called for ‘a jurisprudence that would provide for the legal rights of geological and biological as well as human components of the Earth community.’ Berry called this an Earth Jurisprudence (more recently, other authors have embraced a term that wishes to move beyond the planetary boundaries suggested by Berry, and thus have named it an Ecological Jurisprudence). Berry’s invitation to articulate in political and legal terms the systemic approach to life on earth already advocated by a number of scientists was taken further by South African lawyer Cormac Cullinan in his seminal book Wild Law, where he expanded on the concept of the ‘Great Law’ that Berry had introduced by stating that ‘Earth is our primary teacher as well as the primary lawgiver’. It is Cullinan’s argument that seeded the theoretical terrain from which all aforementioned examples sprang, and Cullinan himself has been involved in a number of these very same initiatives. If Stone’s initial argument was significant in redefining the legal conceptualization of damages beyond the traditional anthropocentric terms within which they were traditionally defined, Berry and Cullinan’s suggestion have made it possible to re-conceptualize nature not anymore as an object of legal human rights – in particular, of property rights – but rather as a subject with and of intrinsic legal rights.

While inspiring in its undeniable momentum, the emergence of this Ecological Jurisprudence is arguably even more significant for the theoretical possibilities it entails: as suggested elsewhere, ‘nature and rights are contested concepts with negotiable meanings,’ and thus scholars should be fully aware of the fact that the yet largely indeterminate terrain occupied by the theory and practice of Ecological Jurisprudence may be already heavily ‘inscribed by humanist precepts of what “rights” and “nature” might consist of’, but, that notwithstanding, the proposal is replete with theoretical possibilities.

The invitation to an Ecological Jurisprudence thus represents a novel – and yet timeless – theoretical terrain in which different legal ontologies can re-imagine the interaction between humans and the great non-human other with and within which we all share our very existence. 

Alessandro Pelizzon is a Senior Lecturer in the School of Law and Justice. Alessandro completed his LLB/LLM in Italy, specialising in comparative law and legal anthropology with a field research project conducted in the Andes. His PhD thesis, conducted in Australia, focused on native title and legal pluralism in the Illawarra. Alessandro has been exploring the emerging discourse on rights of nature, Wild Law and Earth Jurisprudence since its inception, with a particular focus on the intersection between this emerging discourse and different legal ontologies. He is one of the founding members of the Global Alliance for the Rights of Nature and of the Australian Earth Laws Alliance, and has organised and participated in a great number of events and initiatives related to this emerging field, both in Australia and internationally. Alessandro’s main areas of research are legal anthropology, legal theory, comparative law, ecological jurisprudence, sovereignty, and Indigenous rights.

Afshin Akhtar-Khavari is a Professor of International Law and Governance, at the Law Faculty of Queensland University of Technology.

Professor Afshin Akhtar-Khavari, Faculty of Law, QUT

The Social Life of Plants and Trees and Ecological Recovery Law

Professor Afshin Akhtar-Khavari, Faculty of Law, QUT

18 April 2019 at the Gold Coast campus with Zoom links to other locations

Imagine a world where plants and trees are intelligent and capable of responding socially to each other and other living things. Our world is made up of more plants and trees than anything else, and because they don’t move around human beings have traditionally ignored their capacities for receiving, processing, storing and communicating information. There has been a recent proliferation of scientific studies examining how plants and trees respond purposefully to living and other inert things in their natural environments. In this presentation I draw on this fast-growing body of scholarship, and use Michel Serres and his idea of a natural contract to reimagine the foundations of environmental law moving forward in the Anthropocene Epoch. Serres in his wide-ranging scholarship has encouraged us to think about energy and information as significant for how life is organised. In this paper I argue that seeing plants and trees as capable of contributing significantly to the amount of information that is purposefully moved around in the natural world is critical to the idea of the natural contract. There is increasing recognition also that ecological recovery ideas and principles enable human beings to listen and connect more with nature and the information systems that exist amongst plants and trees in an ecosystem. This paper will discuss various ways in which ecologists have thought about recovery and discuss the extent to which ecological restoration can encourage and support the possible emergence of the natural contract in the Anthropocene epoch.

 Afshin Akhtar-Khavari is a Professor of International Law and Governance, at the Law Faculty of Queensland University of Technology. He earned his BSc (genetics) and LLB from the University of New South Wales, LLM from the University of Sydney and PhD from Griffith University.

As an international law legal academic he is interested in the intersections between nature, complexity and subjectivity. He is currently working on projects relating to the ecological restoration of wetlands, and also the idea that plants and trees have a social life. He has published widely in journals and books, including a monograph on the importance of environmental principles for international environmental law and politics (Edward Elgar, 2010); and another assessing the importance of ecological restoration in international environmental law (Routledge, 2017 (hardback) & 2019 (paperback)). He has co-authored a Cambridge University Press textbook, International Law: Cases and Materials with Australian Perspective, which is in its 3rd edition (current, 2018). Akhtar-Khavari recently completed work as a guest special issue editor for the Griffith Law Review, along with Benjamin Richardson, on a collection of papers dealing with eco-restoration and the law (2017). Richardson and Akhtar-Khavari also recently published a collection of papers on eco-restoration law for an edited book in the Law, Justice and Ecology series of Routledge (2019). 

SLJ Research Seminar - Dr Edwin Bikundo, Griffith Law School - June 2019

Enslavement as a Crime against Humanity: Some Doctrinal, Historical and Theoretical Considerations

Dr Edwin Bikundo, Senior Lecturer, Griffith University Law School 

6 June 2019 Gold Coast Campus with Zoom links to other locations. 

Although Slavery is legally defined as ‘the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised’ this paper argues that ‘status’ is emphasised at the expense of ‘condition’. Slavery was declared a crime against international law much earlier than the category of crimes against humanity crystallised. In international humanitarian law it is also punishable as a war crime. In international human rights law slavery bears the distinction of being prohibited both under the International Covenant on Civil and Political Rights as well as – albeit less prominently - the International Covenant on Economic, Social and Cultural Rights. In that way, it crosses the public/private divide as well as arguably sits at the threshold where entitlements almost seamlessly merge into rights. Historically slavery was justified on the one hand as an expression of natural law and contradictorily on the other hand as only justifiable through positive law because it was in breach of natural law. It therefore interrogated even the natural law/positive law dichotomy in illuminating ways. The inclusion of enslavement under the rubric of crimes against humanity therefore helps to not only further explain the essential elements of that category but also highlights how humanity itself is an evolving project and international criminal law plays a crucial role in this on-going anthropogenesis.

Mephistopheles: I’m your slave: I’m yours!

Faust: And what must I do in exchange?

Johann Wolfgang von Goethe Faust

Keywords: Giorgio Agamben – Roberto Esposito – international criminal law – international human rights law – Roman Law

Dr Edwin Bikundo is a Senior Lecturer at the Griffith Law School, Program Director for the Master of International Law, and Managing Editor of the Griffith Law Review. The Griffith Law School is located on the Gold Coast Campus of Griffith University. 

Assoc Professor Amelia Thorpe, SLJ Research Seminar Series, August 2019

Pop-Up Property: Enacting Ownership from San Francisco to Sydney

Associate Professor Amelia Thorpe, UNSW

1 August 2019, Lismore Campus, with Zoom links to other locations. 

Abstract:

Through a detailed examination of PARK(ing) Day, a loosely organized international event to reclaim street space from cars, this paper reveals the intimate connection between property and its social and material context. Private claims to public streets are not uncommon. In some cases, such claims are swiftly rejected. In others, they receive recognition and respect. Focusing on the particular set of proprietary claims within PARK(ing) Day, this paper examines the ways in which property on city streets is claimed and contested. Drawing primarily on fieldwork in Sydney, Australia, the analysis emphasizes the degree to which property depends on the networks in which it is situated. PARK(ing) Day was based on a creative rereading of the property producible by paying a parking meter, and this link with legality plays a key role in the event. Yet the property at issue is based on much more than that simple transaction. A more emergent and socially constructed conception of ownership is central in understanding both the making of claims to city streets on PARK(ing) Day and the range of responses they generate.

Amelia Thorpe is Associate Professor in the Faculty of Law at UNSW, where she teaches and researches in planning and environmental law. Amelia studied Architecture and City Policy before Law, and worked for several years in the planning, housing and transport departments for the state government in Western Australia. Her research centres on urban governance, ranging from small scale, citizen-led initiatives to institutional frameworks for decision-making in planning and development. Prior to joining UNSW in 2012, Amelia worked at EDO NSW, leading community outreach programs in NSW and the South Pacific. Amelia studied law at the University of Oxford (BA(Hons)), Harvard Law School (LLM) and ANU (PhD), and is a member of the New York Bar.

Professor Margaret Davies, Flinders University - Eco-legality or, Putting Nature into Natural Law

Professor Margaret Davies, Flinders University

Eco-legality or, Putting Nature into Natural Law

Professor Margaret Davies, Flinders University

5 September 2019, Lismore Campus with Zoom links to other locations.

The ‘nature’ in classical natural law theory, secular and not-so-secular, consists of human nature. In this context, ‘nature’ refers to an inherent quality or characteristic, rather than the physical world as a whole. It is the derivative of natura but not of physis even though both concepts appear in modern English simply as ‘nature’. The ‘nature’ of natural law is immanent, and not available to the senses. Thus, natural law concerns what Kant called ‘the moral law within’ rather than the ‘starry heavens above’ (or anything in between). By contrast to ‘natural law’ the ‘laws of nature’ refer to the observable regularities of the physical world, the realm of physis. But physical nature is regarded as the antithesis of the law applying to humans. Various attempts have been made to narrow the divide between physical nature and human law, but these efforts have been hampered by the abstract and entirely anthropocentric conception of law that is the stuff of legal theory. In this seminar I will consider possibilities for connecting physical materiality and its observable regularities with what we understand to be human law. Can an idea of law be conceived that is not dependent on a separate social sphere for human beings? Is an eco-legality possible?

Professor Margaret Davies, Flinders University

After studying law and English literature at Adelaide University in the 1980s, Margaret completed a doctorate in critical legal theory at Sussex University. Margaret was a foundation staff member of the Law School at Flinders University and has been a visiting scholar at Birkbeck College, Umea University, UBC, and Victoria University of Wellington, and has held a Leverhulme Visiting Professorship at the University of Kent. She has been a recipient of four Australian Research Council grants, and is a Fellow of the Academy of Social Sciences in Australia and the Australian Academy of Law. Margaret is author of five books - Asking the Law Question (4th edition 2017), Delimiting the Law (1996), Are Persons Property (with Ngaire Naffine, 2001), Property: Meanings, Histories, Theories (2007), and Law Unlimited (2017, winner of the SLSA Theory and History Book Prize). From 2010 to 2012 Margaret was a member of the Humanities and Creative Arts Panel of the ARC College of Experts, and chaired the panel in 2011. Margaret is on the advisory boards of Social and Legal Studies, Feminist Legal Studies, and the Macquarie Law Journal.

Associate Professor Kate Galloway, Faculty of Law, Bond University

Associate Professor Kate Galloway, Bond University.

Our Data Ourselves: A Case Study of Sperm

Associate Professor Kate Galloway, Bond University

17 October 2019, at the Gold Coast Campus with Zoom links for other locations.

Advances in biotechnology have facilitated the growth of the tissue economy, including the commodification of human gametes—sperm and eggs. Unlike eggs, and alone amongst human tissue, sperm are designed for exchange. They are readily extracted without the need for medical intervention and remain viable for a window of time without biomedical transformation. Yet these characteristics create challenges for the law in responding to ever more diverse contexts for the collection and utilisation of sperm. This is evidenced by the increase in applications to the court for extraction of sperm from deceased men and claims for their possession and use.

Broadly speaking, the characterisation of sperm before the courts is that of property, or at the very least quasi-property; a thing capable of an order for possession. Yet orders permitting post-mortem harvesting and utilisation raise complex questions about the basis for such decisions: both as to the reproductive autonomy of the deceased, and as to the grey area between what the law considers property and what it considers person.

This paper examines the law’s categorisation of sperm—from its natural state within the body of its progenitor up to the point of impregnation—to identify the inherent inconsistency of the law’s approach and the problematic consequences. It offers an alternative conceptualisation of sperm as a biological form of personal data, using the analogy of human gametes as a cryptographic key, requiring a match (a human egg) to unlock the reproductive potential they both contain. On this understanding of the nature of sperm, the consequences of intermingled data for the sperm donor—namely the creation of a potential new human—might provide a rationale for the law to determine permission to keep and to use sperm only where the donor has given active and ongoing informed consent. Consequently, this paper argues in favour of the legal categorisation of sperm even outside the body, and even post-mortem, as person and not as property.

Associate Professor Kate Galloway, is a member of the academic staff at the Faculty of Law, Bond University. Her principal academic interests lie in property law and legal education. She is a nationally recognised law teacher, using research-informed approaches to teach property law and in designing and teaching subjects that offer students a future-focussed view of legal practice.

Kate publishes and presents both in Australia and internationally in academic, professional, and community contexts. Her work encompasses legal education, property - particularly land tenure, sustainability, social justice, and gender equality. She is the editor-in-chief of the Legal Education Review, and the Queensland editor of the Alternative Law Journal.

In addition to her academic writing, Kate contributes regularly to various media outlets as a commentator on contemporary social justice issues, especially concerning gender equality. She is active on social media, blogging at https://kategalloway.net/.

Throughout her career, Kate has been involved in the community legal sector, including having worked to establish the North Queensland Women's Legal Service and currently serving on the management committee of the EDO (NQ).

Image of Professor Brendan Edgeworth. Presenter at November 2019 Law Research Seminar Series

Professor Brendan Edgeworth, UNSW, our November 2019 presenter.

Economic Value, Surplus Value, Cultural Value: Native Title after Northern Territory v Griffiths [2019] HCA 7

Professor Brendan Edgeworth, University of NSW Law School

21 November 2019, at the Lismore Campus with Zoom links for other locations. 

This paper analyses the recent Australian High Court’s decision in Northern Territory v Griffiths.

Arguably the court’s most important native title pronouncement since Wik Peoples v Queensland (Wik), the ruling has established for the first time clear criteria for quantifying the compensation payable where native title is, according to the Native Title Act, subject to “loss, diminution, impairment or other effect”. In a significant development, unlike Wik, and indeed the Mabo (No 2) decision before it, all eleven judges who heard the case were in agreement as to the amount of compensation for non-economic loss, the most contentious yet most substantial component of the Indigenous plaintiffs’ claim.

The paper will commence with an overview of the litigation and proceed to draw out some difficulties in the reasoning by reference to the criteria for compensation in cases of compulsory acquisition of non-Indigenous land. It will argue that while the decision is overall a just one for the Indigenous plaintiffs and native title holders generally, the High Court might have reached the same result by a more conventional application of those principles to the native title context both in relation to economic loss, and cultural loss.

The article concludes by examining the role and extent of the notion of non-economic ‘cultural loss’ that formed the key element in the largest component of the overall compensation amount. Finally, it will seek to locate the decision in the context of the broader development of native title law. The conclusion drawn is that the case can be seen as a watershed moment in the way the legal system has reached, albeit belatedly, an accommodation with the legacy of settler state dispossession, at least in the domain of Indigenous land rights and the Indigenous estate.

Professor Brendan Edgeworth has been a member of the academic staff at the UNSW Law School since 1989. His research interests span most of his teaching areas, as is reflected in his books such including:

  • The Precarious Home: Socio-Legal Perspectives on the Home in Insecure Times, Hart Publishing, Oxford (2018) (with Helen Carr, and Caroline Hunter, eds);
  • Butt's Land Law, 7th ed, Thomson Reuters, (2017);
  • Law and Poverty in Australia: 40 Years after the Poverty Commission, Federation Press, Leichhardt, NSW (2017) (with Andrea Durbach and Vicki Sentas);
  • Native Title from Mabo to Akiba: A Vehicle for Change and Empowerment?, Federation Press, Leichhardt, NSW (2015) (with Sean Brennan, Megan Davis and Leon Terrill);
  • Sackville and Neave: Australian Property Law, 10th ed, LexisNexis, Sydney (2016) (with Chris Rossiter, Pam O'Connor and Andrew Godwin), the most widely prescribed property law text in Australian law schools; and
  • Law, Modernity, Postmodernity: Legal Change in the Contracting State, Ashgate, Aldershot, UK (2003).

Research and publications cover the areas of law and social theory, and legal history. Professor Edgeworth's research is also directed to the reform of housing law and property law.