Harry teaches and researches in the areas of public law, Indigenous rights, human rights, and international law. His PhD explored whether and how an Indigenous representative body could empower Aboriginal and Torres Strait Islander peoples with the capacity to be heard in the processes of government in Australia.
Alternative Law Journal, Law and Culture Editor
- Constitutional law
- Indigenous legal issues
- Human rights law
- Public international law (including international criminal law)
- Legal history
- Democratic theory
- Foundations of Law (Sem 1 and 2, 2019)
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Williams, G & Hobbs, H 2020, Treaty, 2, Federation Press, Sydney Australia.
Last year Queensland joined Victoria and the Northern Territory in formally committing to a conversation about a treaty with Aboriginal and Torres Strait Islander peoples. This article explains what a treaty is, outlines the processes undertaken thus far, situates it within the broader national context, and explores several challenges moving forward.
Hobbs, H 2019, 'Treaty making and the UN Declaration on the Rights of Indigenous Peoples: lessons from emerging negotiations in Australia', The International Journal of Human Rights, vol. 23, no. 1-2, pp. 174-192.View/Download from: Publisher's site
No treaties between Aboriginal and Torres Strait Islander peoples and the Australian state have ever been recognised. In recent months, however, several states and territories have committed to entering treaty negotiations with the First Nations whose lands they claim. Negotiations are in their preliminary stages and it remains to be seen what eventuates, but these developments are promising. Nonetheless, many challenges exist. In this paper, I explore the initial developments in Victoria, and assess whether and how the United Nations Declaration on the Rights of Indigenous People has influenced the debate thus far. This analysis reveals lessons for all Indigenous peoples seeking to enter treaty negotiations with states across the globe.
Hobbs, H & Williams, G 2019, 'Protecting Religious Freedom in a Human Rights Act', Australian Law Journal and Reports, vol. 93, no. 9, pp. 721-733.
The legal protection of religious freedom in Australia has been subject to significant debate over recent years. In the last four years this question has formed the basis of inquiries by the Australian Law Reform Commission, a Parliamentary Committee, as well as specially formed Expert Panel, chaired by Philip Ruddock. In this article we outline the international and comparative approach taken to protect freedom of religion, and contrast this to the position in Australia. We find that Australian law does not adequately protect this foundational human right. We then assess the recommendations proposed by the Ruddock Review. We argue that although the Expert Panel recognised the extent of the problem, it did not propose a comprehensive or holistic solution that will resolve existing inadequacies. To protect religious freedom, and indeed human rights more generally, the Commonwealth Parliament should enact a national human rights act.
Hobbs, H & Williams, G 2019, 'The Participation of Indigenous Australians in Legal Education, 2001–18', University of New South Wales Law Journal, vol. 42, no. 4, pp. 1294-1327.
Indigenous Australians face many challenges in accessing and completing a legal education in Australia. Addressing this problem requires a clear empirical picture. However, no comprehensive study exploring the participation of Indigenous Australians in legal education has been conducted for almost two decades. This article rectifies this by presenting the results of a survey on Indigenous Australian students, graduates and staff members within Australian law schools. We find that while Indigenous Australians are increasingly commencing legal studies and graduating from law school, inequities and challenges persist.
Hobbs, H & Williams, G 2019, 'Treaty-Making in the Australian Federation', Melbourne University Law Review, vol. 43, no. 1, pp. 178-232.
For many generations, Aboriginal and Torres Strait Islander peoples have called for treaties to be negotiated with Australian governments. In the face of Commonwealth inaction, states and territories have commenced treaty processes with Indigenous communities whose traditional lands fall within their borders. This article examines how the United States and Canada have negotiated treaties with Indigenous peoples and details the ongoing Australian processes in order to determine the most appropriate means of entering into treaties in the Australian federation. It concludes that while the state and territory processes are positive and offer the potential to realise valuable outcomes, it is preferable for treaties to be conducted with both federal and subnational governments. This should be undertaken by a Makarrata Commission comprising representatives of Aboriginal and Torres Strait Islander communities and federal, state, and local governments.
Democratic governance is premised on the belief that all citizens are empowered to shape the society in which they live. Over generations, Aboriginal and Torres Strait Islander peoples have maintained that Australian democratic practice does not live up to this ideal, contending that the state's legal and political framework does not empower them with the capacity to have their voices heard and their interests considered in the processes of government. However, non-Indigenous Australians remain suspicious of Indigenous-specific political and legal mechanisms designed to rectify this structural fault. In this paper, I argue that this suspicion – and Australia's governance framework more broadly – arises from a particular conception of democratic theory that marginalises Aboriginal and Torres Strait Islander peoplehood. If, as the Uluru Statement from the Heart calls for, Australia's political institutions are to be rebuilt so as to empower Aboriginal and Torres Strait Islander peoples ‘to take a rightful place in [their] own country’, that conception of democratic theory must first be revealed and re-centred. Multinational federalism offers one path towards a more equitable future.
Hobbs, H 2018, 'Constitutional recognition and reform: developing an inclusive Australian citizenship through treaty', Australian Journal of Political Science, vol. 53, pp. 176-194.
Eight years after the Expert Panel on Recognising Aboriginal and Torres Strait Islander Peoples in the Australian Constitution was established, institutional reform to empower Indigenous peoples in this country has not been realised. This article argues that the persistent failure to progress constitutional reform stems, in part, from dominant conceptions of Australian citizenship that deny Aboriginal and Torres Strait Islander peoplehood. It follows that meaningful institutional reform is possible only if Australian citizenship is reconceptualised in a manner that makes room for the distinctive status of Aboriginal and Torres Strait Islander peoples. Treaties offer a path forward to develop this new understanding of Australian identity and ground institutional reform.
Hobbs, H & Trotter, A 2018, 'Lessons from history in dealing with our most dangerous', University of New South Wales Law Journal, vol. 41, no. 2, pp. 319-354.
The conundrum of dealing with dangerous sexual offenders is one that has never been too far from the public and legislative consciousness. Striking an appropriate balance between community protection and the human rights of the offender is a difficult task and one weighed down by many competing considerations. In this article, we survey historical and contemporary punishment of dangerous sexual offenders in order to inform that debate. Measures adopted or employed by political communities to respond to such offenders should be chosen with an eye to history. This article argues that such measures are often adopted as a cure for public fear, and as such, they risk being overzealous, imprecise, disproportionate, and unjust. Reflecting on this history, we provide three points that should guide legislative and executive responses when dealing with our most dangerous
Hobbs, H & Williams, G 2018, 'The noongar settlement: Australia’s first treaty', Sydney Law Review, vol. 40, no. 1, pp. 1-38.
There has been a resurgence in debate over the desirability and feasibility of a treaty between Aboriginal and Torres Strait Islanders and the Australian State. The discussion has proceeded on the assumption that no such treaties exist. But is this correct? In this article, we examine the concepts and ideas underlying a treaty, with a view to determining a standard against which agreements and negotiated settlements can be assessed. The standard we apply is informed by the modern treaty-making process in Canada to locate it in contemporary practices and values. We then examine whether any agreement reached in Australia can be regarded as a treaty, including settlements reached under the Native Title Act 1993 (Cth) and more recent agreements made outside that regime. We conclude that the South West Native Title Settlement, a negotiated agreement between the Noongar people and the Western Australian Government, is Australia’s first treaty.
Hobbs, H, Pillai, S & Williams, G 2018, 'The disqualification of dual citizens from parliament: Three problems and a solution', Alternative Law Journal, vol. 43, pp. 73-80.
Since August 2017, the rule in s 44(i) of the Australian Constitution that dual citizens are incapable of being chosen for or sitting in federal Parliament has led to the disqualification or resignation of 15 parliamentarians. This disruption may yet continue, with outstanding questions remaining about several sitting members. In this article, we outline three key problems with s 44(i), as well as a durable solution
Bai, J & Hobbs, H 2017, 'Appointing Attorneys-General to the High Court: A case for reform', Alternative Law Journal, vol. 42, pp. 286-291.
Throughout 2016, Attorney-General George Brandis QC repeatedly denied he intended to leave the Federal Parliament and take up a position on the High Court of Australia. In this article we explore the experiences of the two most recent politicians-cum-High Court Justices: Garfield Barwick and Lionel Murphy; and note that Australia’s current judicial appointment process would have permitted Brandis to make a similar transition. We argue that this process should be revamped to enhance transparency and accountability in the appointments process, to the benefit of our judicial system and its public perception.
Hobbs, H 2017, 'Democratic theory and constitutional design: Hearing persistent electoral minorities', International Journal on Minority and Group Rights, vol. 24, pp. 341-389.
Questions of constitutional design, that is, of structuring the political relationship between dominant and non-dominant communities, are recurrent across the globe. While the particular issues faced by each state are distinct, at their root lies a common problem: how should legal and political institutions and processes be designed to provide minority groups or peoples with the capacity to have their interests heard in the processes of government? In this article, I explore how democratic theory conceives of, and answers, this fundamental question.
Hobbs, H 2017, 'Towards a Principled Justification for the Mixed Composition of Hybrid International Criminal Tribunals', Leiden Journal of International Law, vol. 30, pp. 177-197.
The justification for a majority of international judges sitting on hybrid international criminal tribunals is tremendously undertheorized. At present, policymakers must rely on base pragmatic considerations that allege that local judges are either too incapable or too corrupt. This may or may not be true. It is, however, certainly unattractive and inadequate as an argument. In this article, I sketch out a principled theoretical argument defending internationalization of hybrid tribunals. Drawing on debates in municipal jurisdictions on the principle of fair reflection, my principled justification centres on institutional and sociological legitimacy. As international crimes strike at two societies – the local and the global – hybrid tribunals should be composed of both international and local judges. In principle, the severity of international crimes dictates that international judges should predominate. However, peculiar contextual factors may suggest moderating the principle of fair reflection in appropriate circumstances.
Hobbs, H & Trotter, A 2017, 'The constitutional conventions and constitutional change: Making sense of multiple intentions', Adelaide Law Review, vol. 38, pp. 49-85.
The delegates to the 1890s Constitutional Conventions were well aware that the amendment mechanism is the ‘most important part of a Constitution’, for on it ‘depends the question as to whether the state shall develop with peaceful continuity or shall suffer alternations of stagnation, retrogression, and revolution’. However, with only 8 of 44 proposed amendments passed in the 116 years since Federation, many commentators have questioned whether the compromises struck by the delegates are working as intended, and others have offered proposals to amend the amending provision. This paper adds to this literature by examining in detail the evolution of s 128 of the Constitution — both during the drafting and beyond. This analysis illustrates that s 128 is caught between three competing ideologies: representative and responsible government, popular democracy, and federalism. Understanding these multiple intentions and the delicate compromises struck by the delegates reveals the origins of s 128, facilitates a broader understanding of colonial politics and federation history, and is relevant to understanding the history of referenda as well as considerations for the section’s reform.
Australia’s anti-corruption system needs reform. The diffusion of responsibilities across multiple agencies risks underreporting of corrupt conduct, while gaps in the regime mean that the system fails to hold people accountable. As a result, community and public confidence in Australia’s institutions is eroded. The solution is a national whole-of-government anti-corruption body encompassing the public sector with the power to apply a uniform standard of corrupt conduct
Hobbs, H, Lynch, A & Williams, G 2017, 'The High Court under Chief Justice Robert French', Australian Law Journal, vol. 91, pp. 53-71.
On Chief Justice Robert French’s retirement from the High Court of Australia, it is appropriate to reflect on his impact and legacy. In this article we first revisit the circumstances of Chief Justice French’s appointment, before offering an overview of the dynamics of the French Court, noting the patterns of decision-making that emerged during his tenure.We then examine the French Court’s constitutional law jurisprudence, focusing on the three dominant and most contentious areas of its activity: cases on the executive power of the Commonwealth; the Ch III restrictions on State legislative power; and the legal problems raised by Australia’s asylum seeker policies.
Hobbs, H 2016, 'Hybrid Tribunals and the Composition of the Court: In Search of Sociological Legitimacy', Chicago Journal of International Law, vol. 16, pp. 482-522.
Sociological legitimacy is a critical yet undertheorized element of a successful international criminal tribunal. This Article examines the link between sociological legitimacy and the composition of hybrid courts by analyzing the practice of five international criminal tribunals: the ICC, ICTY, ICTR, SCSL, and the ECCC. It finds that the presence of local judges on international criminal courts offers a firmer normative basis for enhancing their legitimacy among the local community. However, the Article also finds that despite impressive scholarly efforts to demystify the “homogenous” international community, international judges are not sufficiently particularized. The solution I offer is both principled and pragmatic. The appointment of international judges should prioritize individuals from regional states (provided the states were not involved in the conflict), those of the same legal tradition, and individuals who speak a language of the affected state. This solution pays greater respect to national sovereignty and enhances the prospect that judges sensitive to local customs will be involved, increasing the likelihood that the court will be regarded as legitimate. The court’s sociological legitimacy, in turn, heightens the court’s prospect of success.
Hobbs, H 2016, 'Locating the logic of transitional justice in liberal democracies: native title in Australia', University of New South Wales Law Journal, vol. 39, pp. 512-552.
Hobbs, H 2016, 'Revisiting the Scope of the Race Power after McCloy', Public Law Review, vol. 27, pp. 264-270.
Hobbs, H 2015, 'Finding a fair reflection on the high court of Australia', Alternative Law Journal, vol. 40, pp. 13-17.
Boreham, K & Hobbs, H 2014, 'Khmer Rouge tribunal delivers judgment but not justice', East Asia Forum.
Hobbs, H 2014, 'Victim participation in international criminal proceedings: Problems and potential solutions in implementing an effective and vital component of justice', Texas International Law Journal, vol. 49, pp. 1-32.
Effective and meaningful victim participation in international criminal proceedings is a vital component of transitional justice. In post-conflict societies, victim participation can empower survivors, engender individual healing and social trust, and promote accountability and the rule of law. Although victim participation is well established and noncontroversial in domestic civil law jurisdictions, it cannot simply be translated into the international arena. A host of difficulties, beginning with the potentially enormous number of victims of international crimes, plague implementation of this crucial component of justice. This Article examines many of the difficulties involved in institutionalizing effective victim participation into international criminal proceedings, but it also proposes three solutions. These solutions offer a way forward for systemic development of the International Criminal Court (ICC) and future ad hoc international tribunals.
Trotter, A & Hobbs, H 2014, 'A historical perspective on juvenile justice reform in Queensland', Criminal Law Journal, vol. 38, pp. 77-90.
The Queensland government has recently implemented a substantial package of juvenile justice reforms designed to deal with 'a generation of arrogant recidivist young offenders'. These reforms, which have sought to sharpen the blade of the criminal law and strengthen the power to enforce it, have been heavily and almost uniformly criticised by the profession, the judiciary, and the academy. This article places the reforms in a historical context to illustrate that not only do they make undesirable policy, but that each is a step backwards which together unravel centuries of gradually calculated reform to improve the state of human rights in juvenile criminal justice.
Trotter, A & Hobbs, H 2014, 'The great leap backward: criminal law reform with the Hon Jarrod Bleijie', Sydney Law Review, vol. 36, no. 1, pp. 1-39.
On 3 April 2012, the Honourable Member for Kawana, Jarrod Bleijie MP, was sworn in as Attorney-General for Queensland and Minister for Justice. In the period that followed, Queensland’s youngest Attorney-General since Sir Samuel Griffith in 1874 has implemented substantial reforms to the criminal law as part of a campaign to ‘get tough on crime’. Those reforms have been heavily and almost uniformly criticised by the profession, the judiciary and the academy. This article places the reforms in their historical context to illustrate that together they constitute a great leap backward that unravels centuries of gradual reform calculated to improve the state of human rights in criminal justice.
Trotter, A & Hobbs, H 2014, 'Under the Oak Tree: Institutional Reform in the Deep North', Australian Law Journal, vol. 88, no. 5, pp. 335-358.
Strong institutions are a prerequisite to good governance and a critical aspect of the rule of law. The independence of a legally qualified judiciary and the transparency and accountability of government are the cumulative result of many centuries of progress. Recent reforms to the legislature, the judiciary, and the Executive in Queensland place these important principles under threat. This article places these reforms in their historical context to illustrate that they weaken the institutions of the state in a manner inconsistent with the course of history.
Hobbs, H 2013, 'Ubi jus ibi remedium or not?: Damages for executive breaches of human rights', Precedent (Sydney, NSW), pp. 10-14.
Hobbs, H & Trotter, A 2013, 'How far have we really come? Civil and political rights in Queensland', Bond Law Review, vol. 25, no. 2, pp. 166-203.
The 2012 state election landslide for the Liberal National Party has had significant consequences for minority groups in Queensland. The Premier’s election night declaration that his government would make the State a better place to live for all Queenslanders has been pushed to one side, as the Attorney General has set about ‘levelling the playing field so that the laws suit the majority and not the minority’. This article takes a critical look at the government’s legislative agenda, placing its reforms in a historical context to illustrate that each reform is a step backward that unravels centuries of gradually calculated reform aimed at protecting human rights.
Hobbs, HO 2013, 'The Security Council and the Complementary Regime of the International Criminal Court: Lessons from Libya', Eyes on the ICC, vol. 9, no. 1, pp. 19-52.
On February 26, 2011, in the wake of sweeping protest movements and resulting government-sponsored violence across the Arab world, the Security Council adopted Resolution 1970 referring the Situation in Libya to the Prosecutor of the International Criminal Court (ICC). This was only the second occasion that the Council had, in acting under its Chapter VII powers of the Charter of the United Nations, referred a situation to the Court pursuant to Article 13(b) of the Rome Statute. When, just two weeks later, the United Nations Security Council adopted Resolution 1973 creating the legal basis for military intervention in Libya, it appeared that the ICC was well placed to strike a powerful blow for international criminal law, justice, and the Libyan people. Unfortunately, this has not been the case. This article asks why—it finds that an impasse exists between the ICC and the Libyan National Transitional Council due to the doctrinal uncertainty as to the applicability of the principle of complementarity under Security Council referrals. Although complementarity has been described as the cornerstone of the ICC, questions persist as to whether the Security Council, as the body charged with the primary responsibility for the maintenance of international peace and security, can abrogate this principle and confer jurisdictional primacy upon the ICC. This article seeks to resolve this issue through a comprehensive analysis of the Rome Statute, the Charter of the United Nations and subsequent practice of the Office of the Prosecutor of the ICC. Finding that the Security Council must abide by the principle of complementarity, this article concludes by analyzing the consequences for Libya and for future Council referrals, proposing that an ICC trial in situ offers compelling benefits for this and similar cases involving states transitioning from despotism.
Hobbs, H 2012, 'International Justice: Foreign correspondent', Alternative Law Journal, vol. 37, pp. 122-123.
Hobbs, H 2012, 'The Dispute Resolution Act 2011 (Cth) and the Meaning of’Genuine Steps’: Formalising the Common Law Requirement of’Good Faith’', Australasian Dispute Resolution Journal, vol. 23, no. 4, pp. 249-252.
Prior to initiating litigation, parties should negotiate in order to limit the issues in dispute and avoid a costly court process. But what does it mean to negotiate? Historically the common law conditioned negotiation at a good faith standard – requiring parties to turn their minds to the issues in dispute and enter the process honestly and willingly. However, this standard proved difficult to grasp and many jurisdictions have since enacted legislation designed to formalise the process. This article examines the latest enactment – the Commonwealth formulation, which requires parties to “take genuine steps to resolve disputes” and compares it to both the New South Wales formulation, which requires parties “to take reasonable steps” and the common law good faith standard. This analysis will demonstrate that the concept of genuine steps formalises the common law approach, and as opposed to reasonable steps, more accurately achieves the object and purposes of alternative dispute resolution processes.
Boreham, K & Hobbs, H 2011, 'Justice Denied for Cambodia', East Asia Forum.
There has been a significant push in recent years for greater and more meaningful participation of refugees in decision-making processes that affect them. This push is identifiable in a range of international instruments, including the 2016 New York Declaration for Refugees and Migrants and the 2018 Global Compact on Refugees, as well as numerous initiatives developed by refugees, civil society organizations, and international organizations at the local, national, and international level. This article considers the emergent drive for refugee participation from the perspective of both law and policy. It examines the evolution of the international legal framework, analysing the extent to which international refugee and human rights law mandate the inclusion of refugees in decisions that affect them. The article also explores the notion of participation in detail, teasing out several key challenges for consideration in the development of inclusive participatory processes. Drawing this material together, it explores two options that could further promote the moral, political, and ultimately legal authority for meaningfully including refugees in the design and implementation of policy. These options are indicators that establish baselines and track refugee participation in decision-making processes, and a new, non-binding United Nations declaration that clearly details the right of refugees to have some authority in decision-making processes that affect them.
Hobbs, H 2020, 'Public Law, Legitimacy and Indigenous Aspirations' in Varuhas, J & Stark, SW (eds), The Frontiers of Public Law, Bloomsbury Publishing, pp. 227-253.
Over the last several years, the Australian community has debated whether and how to recognise Aboriginal and Torres Strait Islander peoples in the Australian Constitution. Following the Uluru Statement from the Heart and the Referendum Council’s Final Report, the question of constitutional reform has coalesced around the idea of a ‘First Nations Voice’, which would empower elected Aboriginal and Torres Strait Islander representatives to advise Parliament on all matters affecting Indigenous peoples. The idea is still in its infancy and many details are yet to be finalised, including even whether a referendum will be held.
However, the proposed First Nations Voice gives rise to a more fundamental question concerning public law’s relationship with Indigenous law, rights and culture. Article 18 of the United Nations Declaration on the Rights of Indigenous Peoples, endorsed by Australia in 2009, provides that Indigenous peoples have the right ‘to maintain and develop their own indigenous decision-making institutions’. This article maintains that the form of those institutions must reflect Indigenous peoples’ values, character and knowledge. The problem is, as Indigenous and non-Indigenous scholars have long remarked, accommodating Indigenous forms of decision-making within the political and legal architecture of the state necessarily involves transforming them in some manner. How does this occur in practice, and does it—like Kanien’kehaka scholar Taiaiake Alfred suggests—mean Indigenous self-governance is ‘meaningless’?
This paper examines two institutional forms aimed at providing Indigenous peoples with the capacity to have their voices heard in the processes of settler-state government. In exploring the Aboriginal and Torres Strait Islander Commission and the Canadian territory of Nunavut, this paper assesses whether and to what extent their form and operation was built on cultural principles, processes and knowledge distinct to the respective Indigenous natio...
Hobbs, H & Williams, G 2019, 'Trust and the Constitution' in Evans, M, Grattan, M & McCaffrie, B (eds), From Turnbull to Morrison: Australian Commonwealth Administration 2016-2019—Understanding the Trust Divide, Melbourne University Press, pp. 75-92.
The question of trust loomed large in the 45th parliament across a range of constitutional issues. In this chapter, we trace three of the more significant legal events that contributed to a breakdown in trust between government and citizen. We explore the eligibility crisis that saw 18 of parliament’s members disqualified under the various limbs of section 44, the Australian Marriage Law Postal Survey and the government’s rejection of the ‘Uluru Statement from the Heart’.
Tobin, J & Hobbs, HO 2019, 'Article 37: Protection against Torture, Capital Punishment, and Arbitrary Deprivation of Liberty' in Tobin, J (ed), The UN Convention on the Rights of the Child: A Commentary, Oxford University Press, New York, pp. 1420-1502.
Hobbs, HO & Williams, G 2017, 'Citizen Participation in Australia' in Morales, G (ed), Mechanisms of Citizen Participation: A Global Experience (Instituto Electoral del Estado de Queretaro), Tyrant, Mexico, pp. 49-64.