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The TC Beirne School of Law at The University of Queensland is proud to host a private law conference on the theme "Private and Public Law - Intersections in Law and Method".  The conference will be held at the Marriott Hotel, 515 Queen Street, Brisbane on Thursday 21 and Friday 22 July, 2011, with the conference dinner taking place on Thursday, 21 July.

The conference will provide a forum for exploring some of the meeting points of private and public law and the increasingly common and often complex intersection between statutory and common law methods for implementing public and private ends.

Contributions are invited on any topic of private law theory, doctrine or method within the broad conference theme.  Example topics might include:

  • statutory recognition of privacy rights
  • trusts regulation
  • policy in private law
  • liability of public body
  • the impact of human rights in private law
  • statutory (partial) codifications of private law.

Information correct as at date of event.

Associate Professor Matthew Harding 

University of Melbourne

‘What is the point of charity law?’

Matthew graduated from the University of Melbourne in 1998 with first class honours degrees in law and in arts. He also holds a Bachelor of Civil Law degree (with distinction) and a D.Phil from the University of Oxford. During his time as a postgraduate student in Oxford, Matthew held Chevening and Clarendon Fund Scholarships and, during 2002-3, a research fellowship funded by the Andrew Mellon Foundation. His D.Phil thesis was on the moral foundations of fiduciary law. Prior to undertaking postgraduate study, Matthew also worked as a solicitor for Arthur Robinson & Hedderwicks (now Allens) in Melbourne.

Professor Steve Hedley 

University of Cork

‘Courts as public authorities, private law as an instrument of government’

Steve Hedley graduated in Law from Oxford University in 1980, subsequently taking a master’s in Law (Cambridge), the Bar finals (London) and a BSc (Open University). He taught at St Hugh’s College Oxford (1982-1985) and at Christ’s College Cambridge (1985-2003). He has published books on Tort, E-commerce and Restitution, and has edited books of statutory materials on e-commerce and on obligations generally. Topics of recent articles include the theory of unjust enrichment, the structure and future of the common law, and university management. Steve Hedley is currently Head of the Law Department and Dean of the Law Faculty.

Professor William Lucy

University of Manchester

‘Some Banalities about a Platitude (Public and Private Revisited)’

William studied law, jurisprudence and political philosophy as an undergraduate and postgraduate at the Universities of Leeds and Manchester. He taught law at the Universities of Essex, Hull, Keele and Cardiff before arriving at Manchester in 2006. He has been a visiting professor at a number of Universities, including the Law Faculty at McGill University, Montreal (Winter 2005). In the summer of 2007 he was a visiting fellow at the John Fleming Centre for the Advancement of Legal Research at the College of Law, Australian National University, Canberra. He was also a T. C. Beirnie Visiting Fellow at the School of Law, University of Queensland, in April 2009.

Professor Andrew Robertson

University of Melbourne

‘Public Aspects of the Duty of Care’

Andrew Robertson joined Melbourne Law School in 1999 and was appointed to a chair in 2006. His teaching and research interests are in the law and theory of obligations and remedies. He has written on many areas of private law, including issues in contract law, equitable estoppel, negligence and remedies. He is co-author of Principles of Contract Law (3rd ed, 2009) andContract: Cases and Materials (11th ed, 2009) and has edited two collections of essays on private law theory: The Law of Obligations: Connections and Boundaries (UCL Press, 2004) andThe Goals of Private Law (Hart Publishing, 2009).

Download the full program.

Thursday, 21 July 2011

8:30 - 9:00 Coffee and Registration
9:00 - 9:10 Opening
9:10 - 10:50

Values and Structure

"Courts as Public Authorities"
Professor Steve Hedley

"Some Banalities about a Platitude (Public and Private Revisited)"
Professor William Lucy

"Law's Public/Private Structure"
Professor Christian Turner

10:50 - 11:20 Morning Tea
11:20 - 13:00

Values and Structure cont...

"Using Regulatory Standards to Inform the Content of Private Law"
Professor Alastair Hudson

"Nineteenth Century Codification of Commercial Laws - Business and the State"
Professor Gail Pearson

"Judges, Commerce and Contract Law"
Associate Professor John Gava

13:00 - 14:00 Lunch
14:00 - 15:10

Issues in Corporate and Commercial Law

"Polyform Commercial Law"
Professor Keith Rowley

"Corporate Law at the Crossroads of Private and Public Law"
Professor Anita Krug

15:10 - 15:40 Afternoon Tea
15:40 - 17:20

Issues in the Law of Charities

"What is the Point of Charity Law?"
Associate Professor Matthew Harding

"Constitutionalism, Public Policy and Discriminatory Charitable Trusts"
Professor Francois du Toit

"The Definition of Charity and Public Law Equality Norms"
Associate Professor Adam Parachin


Conference Dinner
Golden Palace Chinese Restuarant, Cnr Ann and Duncan Streets, Fortitude Valley


Friday, 22 July 2011

9:00 - 10:40

Issues in the Law of Torts

"Public Aspects of the Duty of Care"
Professor Andrew Robertson

"A Public Role for the Intentional Torts"
Dr Dan Priel

"Pollution and the Common Law: Is there still a Role for the Toxic Tort?"
Dr Mark Wilde

10:40 - 11:10 Morning Tea
11:10 - 12:50

Torts, Contract and Beyond

"Pleural Plaques and the Politicisation of Tort: Adversarial Legalism in the UK?"
Ms Annette Morris

"Private Rights and Public Regulation: Breach of Statutory Duty and Workplace Safety"
Mr Neil Foster

"Appellate Adjudication as Conceptual Engineering"
Professor Heidi Li Feldman

12:50 - 14:00 Lunch
14:00 - 15:10

Private Law Remedies and Related Issues

"Unification and the Equity of the Statute"
Mr David Wright

"Public and Private Remedial Goals of Class Actions: Non-monetary Remedies"
Professor Robyn Carroll and Professor Jeff Berryman

15:10 - 15:40 Afternoon Tea
15:40 - 16:50

Human Rights and Private Law

"A Human Property Right"
Ms Sarah Nield

"Private Law and its Normative Influence on Human Rights"
Ms Michelle Flaherty

16:50 - 17:00 Closing Remarks
DAY ONE, SESSION ONE - Values and Structure

Professor Steve Hedley (Cork)

Courts as Public Authorities, Private Law as Instrument of Government

Recent attempts to define private law have typically been "internal" in character: presenting private law as an internally-consistent entity, stressing rigorous and logical internal classification, and declining to discuss what role it plays in the wider system external to it. Indeed, one noted theorist has denied that an "external" viewpoint is desirable or even possible: claims that private law has any particular goal will be at the expense of private law's inner logic, it is said, and a court that seeks to achieve particular policy aims has moved from the realm of private law into the realm of politics. Such "internal" theories are interesting thought-experiments, though they are subject to obvious criticisms - not least that they downplay or even ignore the more "public" features of the law, such as those that this conference focuses on. In this paper I attempt the converse thought-experiment: describing the role of private law as an instrument of government, and the role of the courts which apply it as public authorities. Topics covered include the authority of the courts, relations with other organs of government, and the means open to courts to carry out their functions. It is hoped that by supplying such an "external" description of private law to complement more "internal" ones, a more balanced picture of the status of private law will emerge.

Professor William Lucy (Manchester)

Some Banalities about a Platitude

The platitude is that there is no single, comprehensive and compelling distinction between ‘public’ and ‘private’. I suggest that this platitude is as true of law as it is of other socio-cultural domains and, that being so, examine some (fairly banal) inferences that we – lawyers and jurists – are entitled to draw from it. The discussion of these banalities yields three tentative conclusions. First, that the various distinctions between public/private that might be legally relevant, and thus used either within legal doctrine or as a means of structuring legal systems as a whole, are not particularly normatively significant. Second, that our – lawyers and jurists – preoccupation with ‘the’ public/private is therefore puzzling and might be mistaken; and, third, that if our preoccupation with various public/private distinctions does not rest upon a mistake, then it is simply a consequence of law’s malleability. It is entirely proper for us – lawyers and jurists – to be interested in law’s malleability, but law’s malleability is neither particularly new, nor deeply unusual, nor of great normative significance. That, at least, is what I try to show.  

Professor Christian Turner (Georgia)

Law's Public/Private Structure

Often derided for its incoherence or uselessness, the public/private distinction is rarely studied explicitly outside the state action doctrine in Constitutional Law. To ignore this distinction, however, is to miss the most fundamental sorting criterion in our law. Distinguishing whether public or private entities control (a) law creation and definition and (b) prosecution leads to a simple yet powerful taxonomy of legal systems. The taxonomy characterizes legal systems in terms of control over decision making by our most basic institutional forms: the public and private. Thus, the proper categorization of laws within the system, for example whether a policy should be administered by Tort or by Contract, should depend on the relative institutional capacities of public and private actors. I propose a small set of basic, or “atomic,” arguments concerning public and private capacities that can be used to generate such institutional comparisons. 

The taxonomic model unifies formerly disparate areas of law and scholarship around simple arguments concerning the relative advantages of public and private institutions. This method has many implications, and the Article begins to explore several, including a comparison of private and public Constitutional Law, the placement of various kinds of laws in the model's schema, an application to the recent Supreme Court case of Robertson v. United States ex rel. Watson, and a unification of substantive classification and the property and liability rules of Calabresi’s and Melamed’s famous Cathedral.


DAY ONE, SESSION TWO - Values and Structure

Professor Gail Pearson (Sydney)

Nineteenth century codification of commercial laws – business and the state

The nineteenth codification project for commercial laws links different actors: business groups, the nation state, the imperial state and colonial subjects. In thinking about the link between codification, sovereignty and the state we usually distinguish between the extension of state power through the new science of legislation for the benefit of the demos and fear of the absolutism of the state . It was for the latter reason that while the English embraced Bentham’s idea of what law is, they rejected attempts at practical codification. The role of the state is central to distinctions between private law and public law – a distinction between individual autonomy with its correlative rights and obligations of individuals and the power of the state to command or to be held to account.

Once via codes or legislation, the question of law became one of the creation or expression of rules by the state, there is a different question as to the evolution of the norms expressed through those rules. In the modern liberal state we accept the adjustment of norms and rules through the democratic process. Regulatory law, interposed between private and public law is one expression of this. The late nineteenth century codifications of commercial law were portrayed as a mere exposition of existing law, a reflection of existing norms. This was a practical matter to ensure their success. A closer reading of their formulation reveals key roles for business groups who coopted the power of the state, and an imperial state which on one hand was the antithesis of democratic governance, on the other concerned for the norms of its subjects. This paper takes aspects of the codification of bills and sales to explore what it means that private rights and obligations were formulated as an expression of business norms, and the outcome (in part) of an imperial state that its subjects could not easily hold to account.

Associate Professor John Gava (Adelaide)

Judges, Commerce and Contract Law

Formalism and anti-formalism are seductive ways of looking at transacting and the role of the law; seductive (in very loose terms) to both the right (formalism) and the left (anti-formalism). Neither of these stances owes any fidelity to the common law of contract. Indeed, both are challenges to the common law. While scholars should write about the complexities of the doctrinal aspects of contract law and that judges should judge in this way neither group seems willing to defend these stances against the allure of instrumental judging represented by formalism and anti-formalism.


DAY ONE, SESSION THREE - Issues in Corporate and Commercial Law

Professor Keith Rowley (Nevada)

Polyform Commercial Law

The Uniform Commercial Code (UCC) states that its "underlying purposes and policies ... are (1) to simplify, clarify, and modernize the law governing commercial transactions; (2) to permit the continued expansion of commercial practices through custom, usage, and agreement of the parties; and (3) to make uniform the law among the various jurisdictions" within the United States and among its territories.  Pursuing either of the first two goals often comes at the expense of the third.  The UCC exists in its "pure" form only in the annals of the American Law Institute and the Uniform Law Commission and in statutory supplements legal publishers sell to law students.  Every state has improvised -- sometimes minimally, sometimes not -- in the course of enacting, amending, and revising its own version of the UCC; many states have enacted non-UCC statutes that explicitly interact with, and may carve out exceptions from, that state's UCC; courts indifferent states (and sometimes different courts within a single state) apply the UCC differently; and federal; statutory and regulatory law; have injected themselves into a number of areas that were once entirely the province of state law (and earlier still entirely the province of common law). 

Moreover, gaps in the uniform version of the UCC and in individual states' UCC enactments regularly require resort to non-uniform common law and equity; and the real (and increasingly international and electronically-connected) world of commercial transactions adds foreign law, transnational law,and informal law, standards, and practices to the mix.

In a similar vein, although the preamble to the U.N. Convention on Contracts for the International Sale of Goods (CISG) advocates "uniform rules which govern the international sale of goods,"the CISG's text allows each country that becomes a member state to alter how the CISG applies to its residents, allows the parties to an individual transaction to agree to avoid the CISG altogether or to alter its rules, and allows courts and other tribunals to resort to non-CISG law to answer questions on which the CISG is silent or unclear. Consequently, the CISG's rules are neither uniform nor uniformly applied across its 75 member states and the multitude of transactions that fall within its scope.

Of course, the phenomena of idiosyncratic enactments of or accessions to purportedly uniform model statutes or treaties and of multiple, overlapping, and sometimes conflicting treaty,statutory, regulatory, common, and informal law are not isolated to the field of commercial law.  Similar variations and carve-outs from other purportedly uniform model statutes and treaties appear in individual states' enactments of or accessions to other purportedly uniform model statutes and treaties and lawyers grapple with multiple, overlapping, and sometimes conflicting domestic and transnational statutory, regulatory, common, and informal law in fields other than commercial law.


Professor Anita K. Krug (University of Washington, Seattle)

Corporate Law at the Crossroads of Private and Public Law

Even amidst the sporadic clamouring for increased oversight of corporations and their securities offerings and governance structures—most recently, in the wake of the global financial crisis—scholars and policymakers have continued to regard relationships among shareholders, officers, and directors as determined primarily by intra-corporate private choices and to see relationships between regulated firms and their clients as distinctly private relationships governed by private law norms. This paper calls these perceptions into question, arguing that, in the corporate law context, the line between public and private has blurred as corporate law doctrines have come to be shaped not only by state regulation of corporations and but also by transnational convergence of corporate law norms.

At the most basic level, public law has intruded further into private ordering in connection with governments’ imposing additional requirements on corporations’ oversight procedures and their relationships with shareholders. Yet a more subtle and arguably more interesting basis for the public/private “blurring” is the increasingly transnational character of corporate law, as jurisdictions shape their laws and norms in a manner that converges with other (hopefully more efficient) laws and norms. Whether transnational convergence is normatively desirable for global economies, whether converging rules and norms are necessarily efficient norms and rules, and what “efficiency” means given the wide range of global policy objectives are questions that fit comfortably among policy debates motivating traditional public law doctrines.

On the other hand, the question of whether we should expecttransnational convergence of rules and norms is inseparable from consideration of the private law origins of corporate law, which differ from jurisdiction to jurisdiction based on divergent cultures and trajectories of economic development. Similarly, private law considerations underlie the claim that corporate laws and norms can ever really “converge” because they are driven by customs, practices, and relationships—i.e., factors beyond efficiency or other transnational policy objectives—that create fundamental tensions among jurisdictional approaches to corporate law. The paper will explore the possible implications of these observations for corporate regulation and governance and, more broadly, for the traditional public law/private law dichotomy. Toward this end, it will contemplate whether, by placing corporate law within private law rubric, policymakers may think less critically about broader social and economic effects of corporate law than they otherwise might—and therefore may fail to seek the perspective and analysis that they otherwise would.


DAY ONE, SESSION FOUR - Issues in the Law of Charities

Associate Professor Matthew Harding (Melbourne)

What is the Point of Charity Law?

In December 2010, in its decision in Aid/Watch Incorporated v Commissioner of Taxation [2010] HCA 42, the High Court declared that there is no rule against political purposes in Australian charity law.  How are we to evaluate this decision, especially when a rule against political purposes persists in analogous jurisdictions?  A large part of the answer to this question depends on the answer to a more fundamental question: what is the point of charity law?  My paper addresses this fundamental question from a liberal philosophical perspective, arguing that the point of charity law is to enable the autonomous pursuit of collective goods.  It is argued that, in light of this understanding of the point of charity law, the decision of the High Court in Aid/Watch is both correct and, in a sense, unremarkable.


Professor Francois du Toit (Western Cape)

Constitutionalism, Public Policy and Discriminatory Charitable Trusts – A Legal-comparative Assessment of Recent Developments in South African Trust Law

South African private law holds individual autonomy in high regard. Consequently, settlors enjoy considerable freedom in the exercise of the power of dispositionto establish charitable trusts that restrict trust benefits on grounds such as race, gender and religion. On the other hand, South African trust law recognizes that settlors are confined by public-policy imperatives when setting up charitable trusts. In South Africa’s democratic constitutional dispensation, public policy has acquired a distinct constitutional dimension. South African courts have affirmed repeatedly that, since the advent of the constitutional era, public policy is rooted in the Constitution, thus establishing an objective normative value system. Recent South African cases, in which race, gender and religion-based charitable trusts were contested on public-policy, constitutional and statutory grounds, do not yield a uniform approach to the matter. This paper assesses the South African jurisprudential developments regarding so-called discriminatory charitable trusts from a legal-comparative perspective. To this end, the paper engages with English, American and Canadian law on discriminatory charitable trusts to provide a contextualized view on South African law’s stance towards such trusts.


Associate Professor Adam Parachin (Western Ontario)

The Definition of Charity and Public Law Equality Norms

This paper will explore the relationship between public law equality norms, specifically constitutional equality jurisprudence, and the legal meaning of charity. The issue I am exploring is the extent to which, if at all, constitutional equality jurisprudence should constrain the boundaries of legal charity. My thesis is that there are some serious concerns over using constitutional equality jurisprudence as a determinant of the legal meaning of charity and that those who argue otherwise make contestable assumptions about the nature of charity and the normative force of human rights jurisprudence. 


DAY TWO, SESSION ONE - Issues in the Law of Torts

Professor Andrew Robertson (Melbourne)

Public Aspects of the Duty of Care

Although the determination of duty of care questions is one of the most policy-rich areas of private law, the approach of the courts is strongly focused on the ‘private’ question of justice between the parties, rather than the ‘public’ question of community welfare. There are two significantly public aspects of the duty of care. First, the framework for assessing duty questions is ultimately concerned with identifying situations in which the state is willing to recognize obligations of care owed by individuals to each other, and to provide a means of redress for infringements of those obligations. This is reflected in the dictum that the most important policy goal is that wrongs must be remedied: the system for redressing private wrongs ultimately serves community goals, even though it operates by reference to notions of interpersonal justice. Secondly, like other private law obligations, duties of care are denied where their recognition would pose a significant threat to the community welfare. It is important to untangle the public from the private in the ‘policy’ reasons for denying duties of care, because these are ultimately very different motivations. It is sometimes suggested that there is an additional public aspect of the duty of care, which is that duties can be imposed for policy reasons. In fact, the tests for duty do not allow duties to be imposed for reasons of community welfare alone, and it is difficult to find cases in which the courts have done this. Although the test for duty ultimately, like the rest of private law, has public foundations, it is a mistake to assume that public goals inform its day-to-day operation.


Dr Dan Priel (Warwick)

A Public Role for the Intentional Torts

In debates on the foundations of tort liability proponents of the private conception of tort law often invoke the intentional torts as proof of the superiority of their model. In this essay I focus on the intentional torts in an attempt to challenge that position. The background for discussion is recent litigation that ended in the House of Lords’ decision in Ashley v Chief Constable of Sussex Police. Most commentary on this decision concentrated on a few dicta that purportedly show the decision supports the view that tort law is concerned with private vindication of rights. In this article I examine the intentional torts against a background of broad shift that has been taking place within tort law, and in particular the tort of negligence, away from ‘private law’ concern with the particular individuals involved in the litigation and towards broader ‘public’ concerns. After describing this shift in general, I turn to the intentional torts. I consider three possible private law interpretations of the role of the intentional torts, and I show that for different reasons they are all deficient. I then highlight an aspect of Ashley that has been ignored by other commentators and which fits the public interpretation of tort law. I argue that this aspect provides a more convincing explanation for the decision, and one that aligns the intentional torts with the more public conception of tort law.


Dr Mark Wilde (Reading)

Pollution and the Common Law: Is there still a Role for the Toxic Tort?

This paper considers whether the common law toxic tort still has any useful role to play in the field of pollution and environmental harm. The fact that environmental regulation has grown exponentially over the past 40 years or so means that such actions are likely to become increasingly rare. However, as the recent litigation concerning the redevelopment of the Corby steelworks site demonstrates, from time to time the common law may still be called upon to provide a remedy. However, many modern aspects of tort were forged at a time when there simply was no regulatory response in respect of many harms. In the nineteenth century, for example, there was no regulator to whom one Tipping could turn in respect of damage to his estate from a copper smelter. His only options were to move or pursue a cause of action in nuisance. He chose the latter and embarked upon litigation which led to the seminal House of Lords judgment in St Helens Smelting v Tipping. Today, the legal landscape is very different and in most cases one would expect to be able to rely upon a regulatory response to most environmental harms. Nevertheless, where individual harm has been caused and where the legislation provides no remedy in respect of such harms, one would still expect to be in a position to pursue a separate civil remedy. However, the growth of statute in this context means that such avenues may have been closed down to some extent. Indeed, some individual harms are expressly or impliedly authorized on the grounds that they are outweighed by the public interest. This paper examines the tensions which arise between the common law and statute in this new legal landscape and the extent to which there is still scope for asserting those private interests which may have been overlooked or overridden by the statutory response.


DAY TWO, SESSION TWO - Torts, Contract and Beyond

Ms Annette Morris (Cardiff)

Pleural Plaques and the Politicisation of Tort: Adversarial Legalism in the UK?

Tort lawyers in the UK tend to see tort as politically neutral and in seeking to provide an interpretive account of tort, tend to rely on corrective justice or distributive justice theories.  In practice, however, individuals and groups are increasingly seeking to use tort as a political tool to achieve wider political objectives, such as social justice.  In doing so, they seek to give private law a public function.  In many ways, this reflects practice in the US.  Kagan has argued that the US has a distinct legal style, which he calls 'adversarial legalism'.  He argues that whilst most economically advanced democracies rely on 'top-down', bureaucratic methods of policy development and implementation, Americans frequently rely on private litigation in tort and other areas.  Litigation has, therefore, a political function in the US and this 'litigious policy-making' is so pervasive that it has become a mode of 'bottom-up' governance.  Kagan asserts that adversarial legalism is exceptionally American.  I argue, however, that we are seeing signs of adversarial legalism in the UK as a result of political dissensus, increasing expectations of protection from harm and institutional factors, such as specialisation within the legal profession and the introduction of no-win no-fee arrangements.


Mr Neil Foster (Newcastle)

Private Rights and Public Regulation: The Action for Breach of Statutory Duty and Workplace Safety in Modern Australia

For many years the tort of “breach of statutory duty” (“BSD”) has operated at the intersection of private and public law by providing a civil remedy for those injured by statutory breach. One of the major areas of operation of the tort is that of workplace safety, the courts almost invariably holding that a statute designed to protect the health and safety of workers would be deemed to provide a civil remedy if breached, as well as criminal consequences. But in recent years the law of workplace safety has undergone a number of dramatic shifts. This paper continues earlier work on exploration of how the BSD action is operating around the common law world in responding to changes in the structure and scope of workplace safety regulation. It is particularly relevant to Australia, where proposed national model legislation may soon be introduced, to consider how the law of torts will respond.


  DAY TWO, SESSION THREE - Private Law Remedies and Related Issues

Mr David Wright (Adelaide)

The Way that Statute is changing the Law of Remedies

Traditionally, the law of remedies has been formulated by the courts with no input from Parliament. Now, legislation is playing a greater role in our legal system. Indirectly, this rise of legislation may have an impact on the traditional law of remedies. What this talk would address is the intersection between public and private law on the entire area of the law of remedies.


Professor Jeffery Berryman (Windsor/Auckland) and Professor Robyn Carroll (Western Australia)

Class Actions And Behavioural Modification: Remedial Issues Arising From The Convergence Of Private And Public Law Goals

Compensatory damages play a central role in private law and class actions. At the same time class actions further public law goals including access to justice and judicial economy. In recent times behavioural modification, or deterrence, has been identified as a goal of class action procedures. This raises questions about the place of private law litigation in the rubric of regulatory control over individual and state behaviour that warrants modification. In this article, proposals by the Victorian Law Reform Commission for improving remedies in class actions, supported by the previous NSW government, are reviewed in the light of the Canadian experience of the class action as an instrument for behavioural modification. We argue that the architecture of class actions privileges the damages remedy and marginalises and excludes consideration of other remedies that might better effect behavioural modification. In making this argument we touch upon studies that demonstrate that private law actions claimants often are seeking something other than damages as a remedy and explore whether there is scope for greater recognition of claimants’ desire for behavioural modification as an outcome of private and class action litigation through the development of the cy-pres remedy or other non-monetary remedies. The issues raised by this paper are not confined to private law claims. They are pertinent to the impact of class action suits and choice of remedy brought against government. In Canada, as a result of the Supreme Court of Canada’s 2010 decision in British Columbia v. Ward, the door has been opened more widely for damages to deter the infringement of Charter rights. Again, damages are being privileged in these suits against other more effective remedies traditionally sought against government. Will class actions become more viable to pursue this type of claim? Is faith in the ability of class actions to effect behavioural modification justified? If deterrence is a goal of class actions we need to ensure that they are capable of delivering this remedial outcome.


DAY TWO, SESSION FOUR - Human Rights and Private Law

Ms Sarah Nield (Southampton)

A Human Property Right

Recent decisions of the Supreme Court of England and Wales recognise the possibility of a human rights based protection to occupiers facing repossession of their home. This protection springs from the developing jurisprudence of the European Court of Human Rights on Article 8 of the European Convention of Human Rights (Respect for the Home and Family Life), which is incorporated into English law by the Human Rights Act 1998. This jurisprudence recognises that home is not defined or limited by recognised property rights but by the “sufficient and continuing” links that an occupier enjoys with the place in which they live. Furthermore, it acknowledges that the exercise of legal rights to repossession of an individual’s home is an extreme interference with respect for the home and thus must be justified (in both substance and process) and be proportionate in its effect. This proportionality balance not only requires justification of the policy underpinning the repossession but also an evaluation of its impact upon the individual occupier. This paper explores the emerging jurisprudence at the interface between human rights and proprietary rules governing repossession. Several matters still need to be worked out, including -

  • the meaning of home beyond proprietary rights from which the possibility of a human property protection springs,
  • the proper constitutional balance between Parliament and the courts in evaluating housing policy against human rights demands; and
  • determining the proper process by which repossession can be asserted.

The most pressing question is the impact of these landmark developments upon private landlords and mortgagees via the so-called ‘horizontal‘ application of the Human Rights Act 1998. Here, there is also a balance to be struck with landlords’ and mortgagees’ own property rights under Article 1 Protocol 1 of the European Convention, which protects their rights against unjustified deprivation or control.


Ms Michelle Flaherty (Ontario Human Rights Tribunal)

Private Law and its Normative Influence on Human Rights

This paper will argue that there has been a cross-pollination of sorts between human rights and private law and that, in a number of significant ways, private law concepts and rights have influenced and even defined the scope and development of human rights protections. Well before the advent of human rights legislation, the private law already reflected some of the values and morals later enshrined in human rights statutes. In this way, the line between human rights and private law has long, if not always, been blurred and porous to reciprocal influences. This paper posits that the reciprocal influences run deep. Not only do some private law principles underpin human rights thinking, but in some circumstances, private law has had a defining impact on human rights.

Two examples will be offered: human rights protection for property law rights and the limits human rights have placed on the freedom to bequeath.

First, many property rights afforded through human rights legislation derive from and are consistent with existing notions of protection for private property. In regards to expropriation, in particular, many human rights protections available essentially mirror rights available through ordinary, non-constitutional statutes. In the final analysis, human rights protection of property has often adopted the existing private law-inspired framework and has added little to the rights of property-holders.

Second, long before human rights legislation prohibited certain forms of discrimination, the private law had refused to give effect to testamentary clauses that were deemed to be against the public interest. In this regard, the private law had long accepted that public policy considerations had a role to play in determining the validity of testamentary conditions. The limits on the freedom to bequeath currently imposed through human rights legislation are, arguably, different from the early private law limits. However, the private law served as an important precursor to human rights legislation in this area and, to some extent, it continues to influence the human rights analysis today. In these two examples, private law and human rights have a shared goal: both seek to establish an equilibrium between individual rights and collective interests. Whether achieved through a human rights analysis or a more private law perspective, the resulting rights aim to establish a balance between the individual right to own, control, and dispose of property and collective interests in those rights being exercised in a way that advances (or at least does not detract from) the collective good.

(The hotels on this list are located within easy walking distance of the conference venue. The list is not exhaustive. Appearance on this list does not imply recommendation.)

Brisbane Marriott Hotel (Conference Venue)

515 Queen Street, Brisbane - Phone 61 7 3303 8000 – http://www.marriott.com.au/hotels/travel/bnedt-brisbane-marriott-hotel/

Stamford Plaza Brisbane

Corner Edward and Margaret Streets, Brisbane – Phone 61 7 3221 1999 – www.stamford.com.au/spb


249 Turbot Street (adjacent to Brisbane Central Station) – Phone 61 7 3835 3535 – www.sofitelbrisbane.com.au

Clarion Collection Rendezvous Hotel

255 Ann Street (opposite Brisbane Central Station) – Phone 61 7 3001 9888 –http://www.rendezvoushotels.com/default.asp?action=article&ID=21667

Quality Hotel The Inchcolm

73 Wickham Terrace (near Turbot Street) – Phone 61 7 3226 8888 – http://theinchcolm.com.au/

Astor Metropole Hotel and Apartments

193 Wickham Terrace, Spring Hill (near Upper Edward Street) – Phone 61 7 3144 4000 – www.astorhotel.com.au 

Novotel Brisbane

200 Creek Street (near Turbot Street/Wickham Terrace) – Phone 61 7 3309 3309 http://www.novotelbrisbane.com

Oaks Aurora Tower (Apartments)

 420 Queen Street, Brisbane – Phone 61 7 3838 9800 - http://www.oakshotelsresorts.com/oaks-aurora/

Mantra on Queen Hotel and Apartments

570 Queen Street, Brisbane – Phone 61 7 3234 8888 - http://www.mantra.com.au/queensland/brisbane-and-surrounds/brisbane/accommodation/hotels/mantra-on-queen/

Medina Executive Hotel and Apartments

15 Ivory Lane, Brisbane (On top of Hill next to Story Bridge) – Phone 61 7 3218 5800 -http://www.medina.com.au/medina-executive-brisbane/hotel