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Shedding light on the darkest corners – the 13th Commonwealth Law Conference

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Cite as: (2003) 77(6) LIJ, p.20

Human rights and the rule of law took centre stage as more than 1500 lawyers from around the world gathered in Melbourne in April for the 13th Commonwealth Law Conference.

“Armed mobs roamed Baghdad and other cities, looting and burning government offices, hospitals, shops and abandoned foreign embassies. Vigilante groups were setting up their own patrols and checkpoints in the capital, shooting and beating looters. But US Defence Secretary Donald Rumsfeld dismissed the violent unrest as the inevitable ‘untidiness’ of war...” – Sunday Age, 13 April 2003.

On the day these disturbing images of lawlessness in Iraq appeared in the media, more than 1500 lawyers, judges and other legal professionals from around the Commonwealth began gathering in Melbourne to discuss the role of the rule of law.

It was no surprise that such incidents would loom large at the 13th Commonwealth Law Conference. The conference was originally scheduled to take place in the Zimbabwean capital of Harare in 2001, but was switched to Melbourne when violence broke out in that country over farm ownership.

Despite the late change of host city and fears over the impact of terrorism and the SARS virus, leaders of the Commonwealth legal profession assembled in large numbers at the Melbourne Convention Centre to take part in the conference. (The 13-17 April conference was held in conjunction with the 33rd Australian Legal Convention.)

While there were six business streams at the conference, including criminal law, litigation and technology, it was the topic of human rights that garnered the most attention.

After an opening ceremony punctuated by songs from around the Commonwealth performed by the grey-suited members of the Melbourne Welsh Male Choir, Prime Minister John Howard officially opened the conference by making a speech that focused heavily on the war in Iraq.

Speaking confidently and without the aid of notes, Mr Howard asked human rights lawyer Cherie Booth QC to pass on to her husband, British Prime Minister Tony Blair, “the profound respect and admiration that many Australians feel for the strength and courage of his leadership over recent weeks”.

Mr Howard went on to say that the course Iraq would take after the overthrow of Saddam Hussein’s regime would depend on the Iraqi people.

“It is not the desire of the Australian government ... to impose a form of government on Iraq unacceptable to the Iraqi people, whatever the critics may say to the contrary. And so it will rest with the Iraqi people over time to develop their system of governance.”

Despite the pall cast by the war in Iraq and acts of terrorism since 2001, Mr Howard said the governance of the Commonwealth and the impact of the rule of law had improved since the last time the Commonwealth Law Conference was held in Australia – in Sydney in 1965. That conference was opened by then Australian Prime Minister – and Mr Howard idol – Sir Robert Menzies.

He cited the return of South Africa to the Commonwealth after holding free, multi-racial elections as one example of this improvement.

The opening ceremony was brought to a close by a sombre rendition of Australia’s most famous anti-law song “Waltzing Matilda”.

Ms Booth delivered the conference’s opening address, which looked at the commitment made by members of the Commonwealth to the core values of human rights, the rule of law and democracy and the wealth – economic and otherwise – that flowed from such a commitment.

She contended that for the Commonwealth to stay true to its name, “it must actively promote democracy and human rights as core common commitments for its members and remind states about the wealth of advantages that flow from the realisation of those commitments”.

She took a thinly veiled swipe at democratic countries such as Australia and Great Britain that had failed to give rights to the marginalised, such as asylum seekers.

“If democracy is seen simply as an arithmetical process ... then we risk the acceptance of crass majoritarianism.

“In this guise, the right to democratic governance will have obscured the substantive moral content of a truly democratic political regime, one which is required to protect and proclaim the value of human life, and to provide the conditions for each individual’s flourishing, even in the case where a majority of the electorate may favour the deprivation or attenuation of rights for popular minorities – whether that may be present day asylum seekers in the more developed countries in the Commonwealth or Jews in the Germany of the early 1930s.

“It is the duty of the state authorities, especially in democratic systems, to stand up for and protect fundamental rights often against majority opinion.”

This theme of protecting democratic rights and upholding the rule of law was continued in the plenary session with human rights barrister and president of the Special Court of Sierra Leone, Geoffrey Robertson QC.

Mr Robertson spoke critically about the decision by the US to establish military commissions to try members of the Iraqi leadership. He said such commissions gave only the victor justice.

“Military commissions are to justice what military bands are to music,” he said.

He called on the US to instead establish open adversarial trials.

However, an off-the-cuff remark by Mr Robertson during his speech led to one of the few instances of bickering between delegates.

Mr Robertson observed that it seemed, according to press reports, that the newly created Caribbean Court of Justice had been set up just to carry out the death penalty.

The Chief Justice of Barbados Sir David Simmons told The Age newspaper that the remarks were offensive and an affront to those involved in setting up the Court, which had been developed to help the move toward a single economy and market for the Commonwealth states of the Caribbean.

The minor controversy generated by Mr Robertson’s plenary session speech continued on the third day of the conference when noted Malaysian advocate and solicitor Karpal Singh said the human rights records of some Commonwealth countries, including Australia, were “shocking and ... an affront to the conscience of mankind”.

He pointed to a 1997 report by Australia’s Human Rights Commission that found the actions of federal governments between 1910 and 1970 in integrating Aboriginal children into white families amounted to genocide.

“What has happened amounts to ethnic cleansing and Australia has to live down this blot on its human rights record,” Mr Singh said.

“The Australian government should be pragmatic and circumspect. Past Australian governments responsible for this genocide obviously had the backing of the Australian people.

“To my mind, the present Australian government should take responsibility for the seriousness of the mistakes of its predecessors and not make any excuses by disavowing culpability.”

He added that the Australian government would come out well in the eyes of the world if it apologised for the genocide.

The fourth day of the conference saw eloquent plenary sessions delivered by the Chief Justice of England and Wales Lord Woolf of Barnes and European Commissioner for External Relations Chris Patten.

Lord Woolf examined the role of the judiciary and its expansion over recent times to include an international element. He argued that by being proactive in the delivery of justice to the public, judges contributed to the quality of justice internationally.

He said it was also now the role of judges to exchange information and ideas with international colleagues and highlighted the sitting of Australian and New Zealand judges on the Benches of Pacific nations as a good example of this.

He raised the idea of formalising such exchanges through a mentoring program whereby jurisdictions from developed democracies “pair up” with those from emerging democracies.

“It should not be thought that the benefits of such programs are all one way or that it is only small countries that have need of assistance,” he said.

In his speech, Mr Patten examined the implications of globalisation on international order.

Again, the fallout from the war in Iraq was prevalent.

Mr Patten, seated in a wheelchair due to a ruptured Achilles tendon suffered just days before, said the best way to protect against the abuse of power was through the rule of law and there was no better way to uphold the rule of law than through the United Nations.

“That may not always produce a consensus. But if we do not try to apply the matrix of international agreements and institutions to the resolution of these issues, we will find ourselves increasingly living in a world where might is confused with right and double standards are seen to reign supreme,” he said.

While the headline acts of the conference concentrated on world events, Commonwealth practitioners were treated to a myriad of sessions detailing advances, future trends, problems, advantages, disadvantages, successes and failures of the Commonwealth legal profession.

Law Society of England and Wales vice-president Peter Williamson discussed the future for law firms.

Mr Williamson said underpinning all potential evolutionary changes for law firms over the next decade would be increased investment in information technology (IT), but many firms would need outside investment to enable them to buy the necessary IT.

He predicted an expansion of the global market with more firms expanding into other countries. With this in mind, firms would have to embrace a more business-oriented approach more attuned to the aspirations and culture of their clients, he said.

There would be more of a focus on profitability, with improved technology, a more business-like approach and flexible business strategies providing opportunities for greater efficiencies.

Mr Williamson said he was positive and optimistic about the future opportunities for law firms of all sizes, but did sound one word of caution.

“Whatever new service providers enter the market and however the mode of service delivery may vary, it is essential that the core of professional values of integrity, confidentiality and putting the client first are upheld.

“That means effective regulation is of paramount importance.”

At a different session but touching on similar themes, Minter Ellison partner and former Law Council of Australia president Anne Trimmer spoke about the threat technology posed to the traditional structure of the legal profession.

Ms Trimmer said the virtual world had created an enormous economic power shift from the service provider to the consumer.

“Lawyers who don’t understand market trends and changing consumer attitudes are in danger of becoming victims of ‘cutting out the middle-man’.

“Just like insurance agents, stockbrokers and others who have been displaced by Internet-based competitors, many lawyers are in danger of losing clients to technology-enabled competitors, some who are ‘practising law’ and some who don’t match that description.”

The development of self-help websites and software that assist with wills, divorces and conveyancing were perfect examples of technology taking over the tasks of lawyers. This, she said, would challenge small practice lawyers who relied on those areas for steady work and income.

The final day of the conference was highlighted by the State of the Judicature speech delivered by High Court Chief Justice Murray Gleeson. (An edited version of the speech appears on pages 27-32 of this edition of the LIJ.)

Apart from the speeches and panel discussion, numerous satellite meetings were held.

The Commonwealth Association of Legislative Counsel held a general meeting, as did the Commonwealth Association of Public Sector Lawyers. There was also a meeting of the International Bar Leaders Forum and a meeting of Chief Justices.

Delegates and local practitioners were invited to a gala dinner dance held at the Royal Exhibition Building with more than 2000 people attending.

The dinner dance allowed practitioners to mingle and chat with leaders of the Commonwealth legal profession such as Cherie Booth QC and Geoffrey Robertson QC.

Another one of the more social aspects of the conference was the billeting of delegates at the homes of practitioners.

About 20 practitioners housed almost 30 delegates from a diverse range of countries, including South Africa, Zimbabwe, Malaysia, the Solomon Islands and Sri Lanka.

Institute Fifth Executive member Tory Strong, who headed the committee that organised the billeting, said local practitioners were outstanding in their generosity.

She cited former Institute president Tina Millar, who agreed on the first day of the conference to take in three delegates, as an example of that generosity. Another host agreed to house a delegate for a further two weeks after the conference finished.

Ms Strong said both the hosts and guests would have gained an enormous amount from the experience.

“The experience would have made their world view so much richer.”

Law Institute president Bill O’Shea described the conference as an outstanding success.

“It demonstrated to the Commonwealth community that Australia, and Victoria in particular, has a world-class legal system and a legal profession that can hold its head up anywhere,” he said.

He praised the work of the conference organising committee, chaired by Institute councillor and former Institute president Mark Woods, in managing to gather so many delegates and speakers at such short notice.

“They were really up against it with the war and the SARS virus, but they worked so hard that they managed to exceed projected numbers and turn a profit.”

Mr Woods said he was pleased the conference went off without a hitch.

He said the war in Iraq had led many potential delegates, especially from Pakistan, to boycott the conference.

“On the other hand, many took the view that it was important that we demonstrate that Australia, at least as a country, has some concerns about the rule of law and that could be a key to our thinking in post-war reconstruction in Iraq,” he said.

He thanked former Institute CEO Ian Dunn and the chairs of the conference organising committee sub-committees – former Institute president Rod Smith, Supreme Court Justice Bernard Teague, Institute Council Executive member Tory Strong and former Institute councillor George Swinburne.

He also praised the work of Institute staff members Pauline Reid, Kathryn Allen and Pat Hogan.

The 14th Commonwealth Law Conference will be held in London in 2005.

To purchase a recording of selected sessions of the Commonwealth Law Conference, visit http://www.conferencemedia.com.au/products.asp.

Jason Silverii

A sobering vision among the celebrations

In between the elements of pomp and tradition contained in the opening ceremony to the 13th Commonwealth Law Conference – a welcome from the Queen, the singing of the national anthem, a welcome by indigenous people – was a four-minute video.

The video was described in the opening ceremony booklet simply as “a collection of images which will remind us of some of the work to be done by lawyers around the Commonwealth”.

But what confronted the more than 1000 people in attendance at the opening ceremony, including Prime Minister John Howard, was a provocative statement of the death and destruction that stems from disrespect for and disregard of the rule of law.

On the massive screen at the front of the Melbourne Convention Centre’s John Batman Theatre were searing images of the violence inflicted on the citizens of Zimbabwe, Sierra Leone, Fiji and Nigeria mixed in with shots of refugees on the MV Tampa and in Australia’s detention centres.

It was blood and politics amplified by a tribal beat.

Conference organising committee chair Mark Woods said the brief to the producer of the video, James McArthur of Carlton-based Yut Art, was to depict images of challenges to the rule of law in the Commonwealth since the last conference in 1999.

Mr McArthur said he was also told he “could be as provocative as I wanted to be, and I could use as strong a soundtrack as I wanted”.

When the idea of using Pink Floyd’s emotive instrumental “Great Gig in the Sky” fell through because of licensing issues, Mr McArthur decided to go the other end of the spectrum and use a song by Melbourne punk bank Sforzando called “Fanaticism”.

“So my original thought was that it would be all dramatic and slow and evocative and emotional. But when I couldn’t get that song I thought I might as well go the other end of the spectrum and make it ‘in-your-face’,” he said.

Only one image was cut from the final piece: a three-second slow-motion piece of footage showing an asylum seeker landing on barbed wire at the Woomera Detention Centre. The piece, which was to be the final scene in the video, was accompanied by a BBC reporter talking about how someone had almost died for their beliefs.

Mr Woods said the scene was cut because of its physically graphic nature.

He said he was not concerned about running a video aligning local issues with more bloody international issues in the presence of the Prime Minister.

“I certainly didn’t feel the need to apologise to the Prime Minister for showing his mugshot on the same video as dead kids because the issue was exactly the same.

“I might say that he did not seek to remonstrate at all afterwards.”

Mr McArthur said he was well aware while making the video that the Prime Minister would see it.

“I thought that if it was to be done properly we really did need to include some images of Australia. Australia can’t be depicted as having no human rights issues at all.”

Jason Silverii

VWL rewarded for groundbreaking work

Victorian Women Lawyers (VWL) has received the Law Council of Australia’s inaugural Equal Opportunity Award for its work in promoting flexible working practices within the legal profession.

The award was presented to VWL convenor Jo Renkin at a ceremony on 14 April held in conjunction with the 13th Commonwealth Law Conference.

Speaking after the ceremony, Ms Renkin said the award was excellent recognition for the work of VWL over the past five years.

“For some time VWL has recognised that women lawyers have been bearing a greater responsibility for family in a profession which did not acknowledge the need for change to enable the balancing of work and family responsibilities,” she said.

“This disadvantaged women and led to their departing the profession.”

She said VWL’s work had lifted the profile within the legal profession of flexible work practices.

VWL has pushed the issue of flexible work practices onto the legal profession’s agenda through reports such as Taking Up the Challenge (1999) and Flexible Partnership – Making it Work in Law Firms (2002) and through events such as the Millennium Best Practice conference in 2001.

The New South Wales Bar Association received a commendation for its Indigenous Lawyers Strategy, which aims to increase the number of indigenous barristers in New South Wales.

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