Of Protest, the Commons, and Customary Public Rights: An Ancient Tale of the Lawful Forest

In this article, John Page and I explore an ancient tale of customary public rights that starts and ends with the landmark decision of Brown v Tasmania. In Brown, Australia’s highest court recognised a public right to protest in forests. Harking back 800 years to the limits of legal memory, and the Forest Charter of 1217, this right is viewed through the metaphor of the lawful forest, a relational notion of property at the margins of legal orthodoxy. Inherent to this tale is the tension that pits private enclosure against the commons, a contest that endures across time and place – from 13th century struggles against the Norman legal forest, through to modern claims of rights to the city.

This article is now available as an Advance copy with the UNSW Law Journal.

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Water justice struggles as a process of commoning

The discourse of the human right to water has been critiqued for being overly individualistic, technical, compatible with the commodification of water (Bakker, 2007; Roithmayr, 2010; Bond, 2012), and as running the risk of overly centring the state (Dwinell and Olivera, 2014; Haiven, 2015; Angel and Loftus, 2017). These concerns have also been borne out to varying degrees in the institutional recognition and articulation of the right at both the United Nations and national levels (Clark, 2017). Due to the consensus-driven, ‘post-political’ nature of these forums (Rancière, 2004), Sultana and Loftus (2012: 9) acknowledge that this institutional engagement risks stripping the right to water of its conceptual weight – rendering it ‘a floating signifier devoid of any political content’. But they also signal a note of caution against overemphasizing the significance of these largely theoretical debates at the expense of empirical realities (Sultana and Loftus, 2012, 2015).

I have argued elsewhere that community-level water justice campaigns that elect to employ the discourse of the human right to water often successfully resist the deradicalizing risks of engaging with both the state and rights discourse (Clark, 2017). Building on this thesis, this paper will emphasize the everyday empirical realities water justice campaigns to explore whether the process of articulating and, particularly, of claiming the right to water can itself be described as a practice of commoning.

— Read more over at the Community Development Journal

The inequity of this silent killer

When our kids were little, our family moved to Hanoi for my partner’s job. After we’d settled in to our new neighbourhood of Tay Ho (Westlake), we enjoyed walking the streets and admiring the beauty of the city. Hanoi is set around a number of lakes and filled with historic buildings and old winding laneways that are too narrow for cars. It is also surprisingly green. Plants grow on every available square inch, crammed into tiny pockets of dirt and pots.

But we hadn’t been there long until we begun bemoaning the frequency of foggy days and waiting hopefully for the rare clear days when Westlake would shine blue and we could see clearly over the rooftops from our sixth-story terrace.

I can’t remember exactly when I admitted to myself that it wasn’t fog that was obscuring visibility. But once I had fully acknowledged the extent of the airborne pollution, I felt a lot less keen on living in Hanoi with young children.

— Read more over at Eureka Street

The fight to make water a human right

[Excerpt from article over at Eureka Street.]

In 2010, the United Nations General Assembly and Human Rights Council recognised the existence of a human right to water, guaranteeing access for everyone to ‘sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic uses’.

Eight years on, it is past time that Australia incorporated this right into domestic law. Nonetheless, any push to do so will face an uphill battle, due to the awkward position occupied by human rights within our culture.

Surveys of the Australian population have found a significant gap between those who believe our human rights are sufficiently well protected, and those more disadvantaged groups who experience a very different reality. Our political class also has a history of ambivalence, or even hostility, to providing more comprehensive protection for human rights, and has been especially reluctant to legally recognise socioeconomic rights.

–Read more over at Eureka Street.–

#MeToo exposes legal failures, but ‘trial by Twitter’ isn’t one of them

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In a 2016 ABS survey, one in two women reported having experienced sexual harassment, but 90% of them did not contact the police. – Cindy Zhi/The Conversation NY-BD-CC

Cristy Clark, Southern Cross University

Six months after the explosive allegations of sexual harassment against Hollywood producer Harvey Weinstein came to light, giving impetus to the #MeToo movement, this series looks at the aftermath of the movement, and if it has brought about lasting change to sexual harassment and gender equality.


Critics have raised concerns that #MeToo has turned into a “trial by Twitter”, suggesting it has turned the legal principle of innocent until proven guilty on its head. The Australian’s opinion columnist Janet Albrechtsen argued this point on the ABC’s #MeToo Q&A special last month.

But such comments reveal an ignorance of the meaning and context of this principle. Leaving aside the fact that some people on social media side with the accused, public discussion – whether it takes place on Twitter or around a water cooler – is not comparable to state punishment.

Those concerned about the failure of a legal principle in relation to #MeToo might better focus on that of justice for victims.

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Law, legitimacy and activism in the Anthropocene

In the first episode of The Handmaid’s Tale, Offred reflects on how she and her fellow Handmaids found themselves in their current predicament – living in a world where a small group of elites have rewritten the law in line with an inhumane and brutally enforced ideology that serves their own interests.

When they slaughtered Congress, we didn’t wake up. When they blamed terrorists, and suspended the Constitution, we didn’t wake up then either. … Nothing changes instantaneously. In a gradually heating bathtub, you’d be boiled to death before you knew it.

In the real world, there’s a dominant narrative that we are blindly walking down the path to catastrophic climate change, which is a pretty depressing thought. But the truth is even scarier – we are being shepherded down this path quite deliberately. We may have taken a while to wake up, but ever since we did and began to object, our governments have been making ever increasing use of state power to silence us.

I reflected on this during a recent trip to Heron Island on the Great Barrier Reef. Heron’s reef supports around 4000 turtles, while many more return to the island in spring to nest. During one afternoon snorkeling trip, I was lucky enough to see three turtles, including a small juvenile, feeding on seaweed just metres from me. As I watched, my feelings turned from wonder to horror as it occurred to me that they are likely to see the reef die around them; gradually boiled to death.

[Please buy your copy of AQ: Australian Quarterly to read the rest of my article.]

Clearing homeless camps compounds the violation of human rights and entrenches the problem

On Wednesday evening, the New South Wales state government passed legislation empowering police to dismantle the Martin Place homeless camp in the heart of Sydney’s CBD. This follows similar actions in Victoria, where police cleared a homeless camp outside Flinders Street Station. Melbourne Lord Mayor Robert Doyle proposed a bylaw to ban rough sleeping in the city.

In March, the UN special rapporteur on the right to housing, Leilani Farha, censured the City of Melbourne’s actions, stating that:

… the criminalisation of homelessness is deeply concerning and violates international human rights law.

As the special rapporteur highlighted, homelessness is already “a gross violation of the right to adequate housing”. To further discriminate against people rendered homeless by systemic injustice is prohibited under international human rights law.

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Detroit

I’m in Detroit, Michigan for a few days, doing a bit of research into the water shut offs here and the contaminated water crisis in Flint. I’ll write more about this later, but here are a few photos for now.

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Deveny’s ‘financial abortion’ is a form of coercive control

I wrote an article for Overland in response to a recent article by Catherine Deveny supporting a right to so-called ‘financial abortions’ for men.

Deveny argues that men should have the opportunity to ‘opt out’ of fatherhood if a woman ‘chooses’ to continue with a pregnancy against his preferences. The fact that so many men already get away with washing their hands of any parental responsibility – including the payment of child support – is apparently not enough. Deveny is seeking to both formalise and legitimise this existing practice.

So what is the problem? Isn’t this a natural extension of being pro-choice? Shouldn’t women have to take responsibility for their choices?

In a word: no.

With that ring, I thee judge: why the law should not allow exceptions on marriage equality

[Originally published in The Conversation – 6 October 2016]

In July 2012, Charlie Craig and David Mullins went into Masterpiece Cakeshop in Lakewood, Colorado, to order a cake for their wedding. Jack Phillips, the owner of the shop, responded by informing them he would not make a cake for a same-sex wedding. Craig and Mullins immediately got up and left. Later they sued Phillips for discrimination.

What if this happened in Australia?

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