'Historicizing the Historical Turn in Human Rights Studies: Origins, Inequality, and Neoliberalism in the Modern Epoch' by Tomas Wedin and Carl Wilén in (2024) Nordic Journal of Human Rights comments
The historical turn in human rights studies is characterized by a deep cleavage between scholars who locate the origins of human rights in the Atlantic Revolutions of the late 18th century, and scholars who instead focus on the post-WWII period in general, and on the 1970s in particular as a breakthrough decade for international human rights. Against the background of what has been described as the threatened status of human rights today, we contend that the problem of origins remains as crucial as ever before, but that the way in which it is conceived is outdated and in need of reconceptualization in three ways. First, the historical turn should be seen as one body of literature with two distinct phases: one focused on origins and historical continuity and rupture, and a more recent, ongoing phase addressing the relationship between human rights and the concomitant neoliberalization of society and increasing economic inequality. We contend, secondly, that the debate itself needs to be historicized, and that the two thematic phases are rooted in two specific political, ideological, and economic contexts. The debate about origins relate to a pre-2007-2008 financial crisis era, marked by near-universal acceptance of human rights. Meanwhile, the issues of inequality and neoliberalism predominantly emerged in the post-crisis period as human rights faced more and more challenges. Thirdly, we present a theoretical argument for why the distinct issues constituting the two thematic phases should not be separated from each other. Indeed, in this setting, we demonstrate that the question regarding the relation between neoliberalism and human rights presupposes an account of the origins of human rights.
'Demystifying Legal Personhood for Non-Human Entities: A Kelsenian Approach' by Thomas Buocz and Iris Eisenberger in (2023) 43(1) Oxford Journal of Legal Studies 32–53 comments
This article aims to show that minimalist theories of legal personhood are particularly well suited to evaluating legal personhood proposals for non-humans. It adopts the perspective of Hans Kelsen’s theory of legal personhood, which reduces legal persons to bundles of legal norms. Through the lens of Kelsen’s theory, the article discusses two case studies: legal personhood for natural features in New Zealand and legal personhood for robots in the EU. While the New Zealand case was an acclaimed success, the EU’s proposal was heavily criticised and eventually abandoned. The article explains these widely differing outcomes by highlighting the relevant legal norms and their addressees rather than legal personhood itself. It does so by specifying the rights and obligations that constitute the legal persons, by preventing the attribution of any other rights and obligations to these persons and, finally, by tracing who is ultimately addressed by the relevant rights and obligations.
Steward J In the matter of an application by Mark Hobart, Valerie Peers and Denise Borsos for leave to issue or file [2024] HCASJ 30 has dismissed the application for leave to issue or file the proposed writ of summons dated 14 May 2024 in relation to three former health practitioners.
His Honour states
The facts and legal claims underlying the applicants' proposed writ of summons are as follows.
The applicants, who are self-represented, seek to commence proceedings in the original jurisdiction of this Court against the Chief Executive Officer of the Australian Health Practitioner Regulation Agency ("AHPRA") and the Chair of the Medical Board of Australia ("the Board").
Each of the applicants formerly practised as a registered health practitioner in Victoria. In November 2021, the Medical Board of Australia suspended the registration of each of the applicants pursuant to s 156 of the Health Practitioner Regulation National Law ("the National Law"); namely on the basis that the Board reasonably believed that, because of each applicant's conduct, each applicant posed a serious risk to persons and it was necessary to take immediate action to protect public health and safety. Pursuant to s 159(2) of the National Law, the suspension of each applicant will remain in place until, relevantly, the decision to suspend it is set aside on appeal or the suspension is revoked by the Board. The affidavit evidence before me indicates that the applicants' suspensions are continuing.
The Board's stated reasons for the applicants' suspensions were substantially similar in respect of each of the applicants. In short, the Board alleged that each applicant had: issued COVID-19 vaccine exemption certificates to patients who did not meet the requisite criteria to receive such certificates; and/or promoted, in consultation with patients, "unjustifiable, misleading and/or non-factual claims" in accordance with the applicant's medical and/or personal opinions. With respect to the first and second applicants, the Board alleged that they failed to comply with public health directives in the conduct of each applicant's respective medical practice. With respect to the first applicant, the Board further alleged that the first applicant had participated in the online publication or dissemination of information relating to COVID-19 that contravened "the position of local, state and federal government and health authorities".
The Board informed each applicant that their conduct reflected a "complete disregard" for the Board's position on COVID-19 vaccination and further contravened "the position of local, state and federal government and health authorities". The Board considered that, by reason of the alleged conduct, each applicant posed a serious risk to public safety and public confidence in the medical profession and brought into question each applicant's "ability to behave in accordance with the standards of the profession and broader health system", including the Board's Code of Conduct.
The Board's position on COVID-19 vaccination was communicated in a joint position statement dated 9 March 2021, issued by the Board and AHPRA, as well as State, Territory, and other medical boards. The position statement encouraged registered health practitioners to be vaccinated against COVID-19. It further stated that registered health practitioners were expected to be appropriately qualified and trained to administer COVID-19 vaccines if authorised, and to provide accurate information and advice about COVID-19 vaccination, including in social media and advertising. The position statement also acknowledged the possibility of conscientious objection by practitioners with respect to receiving, authorising, prescribing or administering the COVID-19 vaccination, and provided guidance to practitioners as to the appropriate steps to be taken in relation to such objections.
By the proposed writ of summons, the applicants contend, in substance, that each suspension decision made by the Board in respect of the applicants amounted to an improper use of the suspension power contained in s 156 of the National Law, and constituted an act of misfeasance in a public office by the defendants that was "calculated to cause damage" to the applicants. The applicants further contend that the power of suspension contained in s 156 of the National Law, together with the joint position statement, was used to "interfere" in the doctor-patient relationship and to replace it with "government enforced and controlled medical services". The position statement and the National Law (either as a whole, as enacted in the States and Territories, or in respect of s 156) are therefore said to amount to "civil conscription" contrary to s 51(xxiiiA) of the Constitution, which empowers the Commonwealth Parliament to make laws with respect to, relevantly, "medical and dental services (but not so as to authorize any form of civil conscription)".
The applicants seek damages and various declarations, including declarations regarding the operation of s 51(xxiiiA) of the Constitution both generally and with respect to the National Law and the Commonwealth's "funding [of] the medical service of Covid-19 vaccination".
As noted above, Gordon A-CJ directed the Registrar to refuse to issue or file the writ of summons without the leave of a Justice of the Court first had and obtained. The grounds of the application for leave to issue or file are stated in affidavits sworn or affirmed by each of the applicants. The grounds stated largely repeat or supplement the substance of the proposed writ of summons. The applicants do not advance any further argument as to why leave to issue or file should be granted. The discretion conferred by r 6.07.3 of the High Court Rules to refuse leave to issue or file a document will ordinarily be exercised where the document appears "on its face" to be "an abuse of the process of the Court, to be frivolous or vexatious or to fall outside the jurisdiction of the Court". The concept of abuse of process, which cannot be confined within closed categories, encompasses "an attempt to invoke the original or appellate jurisdiction of the High Court on a basis that is confused or manifestly untenable". Exercise of the discretion to refuse leave to issue or file a document is appropriate "only in the clearest of cases".
It is plain on the face of the proposed writ of summons that the applicants seek to invoke this Court's jurisdiction on a basis that is "confused or manifestly untenable". Neither the proposed writ of summons, nor the affidavits filed in support of the application for leave to issue or file, disclose an arguable basis for the relief sought. The claims described in the proposed writ of summons would be an abuse of process if the document was filed. Accordingly, it should not be issued or filed.
