Guest editorial

An examination of Australian media reports over the last twelve months on the subject of Indigenous arts suggests a number of significant contradictions. Indigenous affairs Minister Amanda Vanstone called Aboriginal arts ‘Australia’s greatest cultural gift to the world’ (Australian, 24 January 2006), while the always-controversial expatriate Germaine Greer argued that much Indigenous art was in fact poor quality and ‘a big con’ (West Australian, 13 December 2005). Curators at France’s Musee du Quai Branly dedicated a wing of the new gallery to Aboriginal art. Yet many Indigenous leaders – including David Ross from the Central Land Council and Hetti Perkins, curator of Indigenous Arts at the Art Gallery of NSW – continue to publicise the widespread exploitation of Aboriginal artists in Central Australia by unscrupulous art dealers (Northern Territory News, 22 December 2005). Former head of the Northern Land Council and former Australian of the Year, Galarrwuy Yunupingu, who twenty years ago presented Bob Hawke with the painting Barunga Statement in celebration of the government’s commitment to a treaty, recently threatened to take the painting back from Parliament House in protest against ‘successive governments’’ neglect of Indigenous policy (Sydney Morning Herald, 21 January 2006). And in the performing arts, Richard Walley drew attention to the lack of professional recognition of Indigenous performing artists (Australian, 24 January 2006).

Such contradictions within the management and marketing of Indigenous arts have persisted for several years, and it was in response that this special issue of the Asia Pacific Journal of Arts and Cultural Management was initiated. As guest editors, we sought to present research that examines, more deeply and constructively, the marketing of Indigenous arts in Australia both historically and in the present. What emerges from this collection of five papers is a familiar scholarly theme: a tension between the ‘periphery’ and the ‘centre’, between outback and city, between larger and smaller Australian states and between Australia and other nations.

Jonathan Sweet’s ‘UNESCO and cultural heritage practice in Australia in the 1950s’ looks at the evolving relationship between Australia and the United Nations through an analysis of a significant touring exhibition: Australian Aboriginal Culture. Sweet pinpoints the 1950s as a period in which Australian museology’s approach to Indigenous cultures gradually changed, and in which Australian participation in UNESCO through the exhibition helped shape the ideological position UNESCO advocated. His article provides a useful historical contrast against which the following four articles may be read.

Chapman, Cardamone, Manahan and Rentschler look at local and contemporary issues in Indigenous arts marketing. Katrina Chapman’s ‘Positioning urban Aboriginal art in the Australian Indigenous art market’ investigates perceptions about contemporary urban Aboriginal art, concluding that the estrangement – and indeed stereotyping – of urban and traditional art creates a false set of values that urban artists are challenging. Similarly, Megan Cardamone, Esmai Manahan and Ruth Rentschler contrast perceptions of Aboriginal arts from the northern and south-eastern states, identifying crucial misconceptions that contribute to the value system applied to these arts. As Ruth Rentschler is a joint editor of this issue, the review process for this article has been managed by Katya Johanson as co-editor.

Two case studies of marketing the arts – which look at different artforms and in opposite sides of the country – then follow. Jennifer Radbourne, Janet Campbell and Vera Ding’s ‘Building audiences for Indigenous theatre’ analyses research on audiences and potential audiences for Kooemba Jdarra – Brisbane’s Indigenous performing arts company – to identify the ways in which audience attendance may be encouraged.

Finally, Jacqui Healy’s ‘Balgo 4-04’ provides a close examination of a unique art exhibition: a major commercial exhibition of the kind usually seen in Sydney and Melbourne, held in an arts centre in the middle of the Tanami Desert and retailing directly to collectors.

The editors are grateful to Warlayirti Artists Art Centre for permission to use the photographs that accompany Jacqui Healy’s article. We would also like to thank the contributors, Jo Caust for the opportunity to present this special issue, and Pearl Field for her assistance in putting it all together.

Australia and New Zealand: separate states but path-dependent

Australia and New Zealand (Aotearoa) have shared almost two centuries of close relations created through close geographic proximity, shared membership of political associations, and frequent policy exchange. The relevant context has shifted from the British Empire and Commonwealth to a rapidly globalizing world under US military hegemony. Australia and New Zealand were among the early settler colonies of the British Empire and this article argues that, as such, the settler colonies helped shape the form of the Empire, and subsequently the Commonwealth. This history created strong, separate, if somewhat similar, traditions of independent political experimentation. This article explores different models for explaining the cross-Tasman relationship and concludes that the path-dependent approach works best. The path was also influenced by external shocks, notably the second world war and Britain's moves towards Europe, and it was these shocks that created the necessary ruptures to create change. The first world war had catapulted Australia and New Zealand towards separate nationhood, and simultaneously strengthened their cultural and political links. The second world war pushed Australia towards the USA and led both Australia and New Zealand to develop a more explicit role as regional leaders in the Pacific. For New Zealand, Britain's membership of the European Community created an economic crisis and politico-cultural stresses which are reverberating still. Such shocks created the preconditions also for closer association, exemplified in the CER Treaty, which in turn draws upon historical precedents and experiences.

Treaties as tools of foreign policy : a psychopolitical inquiry via Keatings's vision for Australia

Paul Keating will be remembered by some Australians as a visionary. As Prime Minister he outlined the structure of external and domestic reform that he believed would guarantee global security for all Australians. Driving these reforms, more often than not, were interstate agreements, often in the form of multilateral treaties, sometimes in the guise of bilateral compromise, rarely as unilateral declarations. In areas as diverse as collaborative scientific research or the protection of children in the workplace, the Keating Executive set out, through codification, to transform Australia’s political landscape. The fields of trade, military, environmental and human rights were all included in the attempts by Keating to forge a new image of and for Australia in the Asia Pacific region. Treaties were vital agents of change in this milieu in the bid to reformulate regional perceptions of Australia. The path of inquiry in this thesis stemmed from a quest to examine the origin, role, purpose and efficacy of treaties in the Keating Government’s foreign policy aimed at regional military security. In order to make this examination it develops a polyphonic1 analytical model whose purpose is to explore the psychopolitical underpinnings of these agreements. Thus the thesis has a two fold task. To develop an analytical model of how treaties work as tools of foreign policy and to outline and assess the Keating treaty strategy. Its principal contribution is on the theoretical side.

Nuclear rivalry in South Asia : an examination of post Cold War nuclear arms control initiatives

South Asia has emerged in the post-Cold War era as a region where ongoing nuclear rivalry has the potential to result in a nuclear exchange between India and Pakistan. The United States, together with the global community, is devoting considerable effort to prevent the further development and deployment of nuclear weapons by India and Pakistan. This thesis analyses the underlying reasons for the ongoing nuclear rivalry between India and Pakistan, details post-Cold War initiatives to end the nuclear rivalry and examines the prospect of United States efforts to cap, reduce and eventually eliminate the nuclear arsenals of India and Pakistan. The thesis finds that historical factors form the basis of the continuing hostility and animosity between the two nations. The two nations have been bitter rivals since the time of partition in 1947 and the disputed territory of Kashmir continues to be the manifestation of deep seated antagonism and hostility. Pakistan's geography leaves it extremely vulnerable to conventional Indian attack and possession of nuclear weapons is seen as a means to redress the imbalance. Strong domestic support together with fervent nationalism and international prestige will continue to drive the nuclear programs of each nation. This thesis concludes that the nuclear rivalry between India and Pakistan is regional in nature and the end of the Cold War has done little to improve the prospects for nuclear disarmament in the region. United States led efforts have failed to persuade India or Pakistan to either accede to the Non-Proliferation Treaty (NPT) or dismantle their nuclear weapons. The thesis also notes that the United States has failed to take account of China as a significant regional power and it's impact on the nuclear programs of India and Pakistan. A fresh approach (to include China) with more emphasis on regional dialogue is suggested as a first step to ending the nuclear rivalry.

Does Australia's treatment of non-citizens accord with its international human rights obligations? with specific reference to the treatment of on-shore refugees

The son of immigrants, I was motivated to write a paper addressing the issues of alienation and discrimination which confronts non-citizens upon arriving in Australia. Apart from descendants of Australia's indigenous population, the common bond shared by all citizens and permanent residents of Australia is that they are either themselves immigrants or are descended from immigrants. In this paper I will look at whether Australia's law and practice meets its international human rights treaty and convention obligations vis-a-vis non-citizens. To investigate this issue I trace the history of immigration to Australia and look at the political policies which influenced the treatment of non-citizens from 1788 to present times. In 1958 when my parents stepped upon Australian soil as displaced persons, Australia was a very different place from Australia in the 1990s. At that time Australia was still firmly under the influence of the 'White Australia Policy' which openly encouraged discrimination against non-anglo saxons. Since those times Australia has advanced to become one of the most culturally diverse nations in the world where multiculturalism is encouraged and a non-discriminatory immigration program is supported by both Australia's major political parties. However, notwithstanding the great social advances made in Australia in recent decades the traditional legal sources of law, namely, judicial pronouncements, statutes and the Commonwealth Constitution have not kept pace and it is my submission that Australia's body of law inadequately protects the rights of non-citizens when compared to Australia's international human rights convention and treaty obligations. This paper will consider these major sources of law and will investigate how they have been used in the context of the protection of the rights of non-citizens. It will be asserted that the weaknesses exposed in the Australian legal system can be improved by the adoption of a Bill of Rights1 which encompasses Australia's international human rights treaty and convention obligations. It is envisaged that a Bill of Rights would provide a framework applicable at the State, Territory and Federal levels within which issues pertaining to non-citizens could be resolved. The direction of this thesis owes much to the writings, advice and supervision of Dr. Imtiaz Omar who was always available to discuss the progress of this work. Dr. Omar is a passionate advocate of human rights and has been a tremendous inspiration to me throughout my writing. I owe a debt of thanks to the partners of Coulter Burke who with good nature ignored the sprawl of books and papers on the boardroom table, often for days at a time, thus enabling me to return to my writing from time to time as my inspirational juices ebbed and waned. Thanks also go to my typists Julie Pante, Vesna Dudas and Irene Padula who worked after hours and on weekends always without complaint, on the various versions of this thesis. My final acknowledgement goes to my wife Paula who during the years that I was working on this thesis encouraged me during my darker moments and listened to all my frustrations yet never doubted that I would one day complete the task successfully. I wish to thank her wholeheartedly for her motivation and belief in my abilities. The law relied upon in the thesis is as at the 30th June, 1998. Bill or Charter of Rights 'are taken to be enactments which systematically declare certain fundamental rights and freedoms and require that they be respected'. See Evans, G. 'Prospect and Problems for an Australian Bill of Rights' (1970) 3 Australian Year Book of International Law 1 at 16. Some such notable exception is the New Zealand Bill of Rights Act 1990, contained in an ordinary statute.

Australia and East Timor : elitism, pragmatism and the national interest

For over two decades the issue of East Timor's right to self-determination has been a ‘prickly’ issue in Australian foreign policy. The invasion by Indonesian forces in 1975 was expected, as Australian policy-makers had been well informed of the events leading up to the punitive action being taken. Indeed, prior discussions involving the future of the territory were held between the Australian Prime Minister and the Indonesian President in 1974. In response to the events unfolding in the territory the Australian Labor Government at the time was presented with two policy options for dealing with the issue. The Department of Defence recommended the recognition of an independent East Timor; whereas the Department of Foreign Affairs proposed that Australia disengage itself as far as possible from the issue. The decision had ramifications for future policy considerations especially with changes in government. With the Department of Foreign Affairs option being the prevailing policy what were the essential ingredients that give explanation for the government's choice? It is important to note the existence of the continuity and cyclical nature of attitudes by Labor governments toward Indonesia before and after the invasion. To do so requires an analysis of the influence ‘Doc’ Evatt had in shaping any possible Labor tradition in foreign policy articulation. The support given by Evatt for the decolonisation of the Netherlands East Indies (Indonesia) gave rise to the development of a special relationship-so defined. Evidence of the effect Evatt had on future Labor governments may be found in the opinions of Gough Whitlam. In 1975 when he was Prime Minister, Whitlam felt the East Timor issue was merely the finalisation of Indonesia's decolonisation honouring Evatt's long held anti-colonialist tradition existing in the Australian Labor Party. The early predisposition toward Indonesia's cohesiveness surfaced again in the Hawke and Keating Labor governments of later years. It did not vary a great deal with changes in government The on-going commitment to preserving and strengthening the bilateral relationship meant Indonesia's territorial integrity became the focus of the Australian political elites’ regional foreign policy determinations. The actions taken by policy-makers served to promote the desire for a stable region ahead of independence claims of the East Timorese. From a realist perspective, the security dilemma for Australian policy-makers was how to best promote regional order and stability in the South East Asian region. The desire for regional cohesiveness and stability continues to drive Australian political elites to promote policies that gives a priority to the territorial integrity of regional states. Indonesia, in spite of its diversity, was only ever thought of as a cohesive unitary state and changes to its construct have rarely been countenanced. Australia's political elite justifications for this stance vacillate between strategic and economic considerations, ideological (anti-colonialism) to one of being a pragmatic response to international politics. The political elite argues the projection of power into the region is in Australia’s national interest. The policies from one government to the next necessarily see the national interest as being an apparent fixed feature of foreign policy. The persistent fear of invasion from the north traditionally motivated Australia's political elite to adopt a strategic realist policy that sought to ‘shore up’ the stability, strength and unity of Indonesia. The national interest was deemed to be at risk if support for East Timorese independence was given. The national interest though can involve more than just the security issue, and the political elite when dealing with East Timor assumed that they were acting in the common good. Questions that need to be addressed include determining what is the national interest in this context? What is the effect of a government invoking the national interest in debates over issues in foreign policy? And, who should participate in the debate? In an effort to answer these questions an analysis of how the ex-foreign affairs mandarin Richard Woolcott defines the national interest becomes crucial. Clearly, conflict in East Timor did have implications for the national interest. The invasion of East Timor by Indonesia had the potential to damage the relationship, but equally communist successes in 1975 in Indo-China raised Australia's regional security concerns. During the Cold War, the linking of communism to nationalism was driving the decision-making processes of the Australian policy-makers striving to come to grips with the strategic realities of a changing region. Because of this, did the constraints of world politics dominated by Cold War realities combined with domestic political disruption have anything to do with Australia's response? Certainly, Australia itself was experiencing a constitutional crisis in late 1975. The Senate had blocked supply and the Labor Government did not have the funds to govern. The Governor-General by dismissing the Labor Government finally resolved the impasse. What were the reactions of the two men charged with the responsibility of forming the caretaker government toward Indonesia's military action? And, could the crisis have prevented the Australian government from making a different response to the invasion? Importantly, and in terms of economic security, did the knowledge of oil and gas deposits thought to exist in the Timor Sea influence Australia's foreign policy? The search for oil and gas requires a stable political environment in which to operate. Therefore for exploration to continue in the Timor Sea Australia must have had a preferred political option and thoughts of with whom they preferred to negotiate. What was the extent of each government's cooperation and intervention in the oil and gas industry and could any involvement have influenced the Australian political elites’ attitude toward the prospect of an independent East Timor? Australia's subsequent de jure recognition that East Timor was part of Indonesia paved the way for the Timor Gap (Zone of Cooperation) Treaty signing in 1989. The signing underpinned Australia's acceptance of Indonesian sovereignty over East Timor. The outcome of the analysis of the issues that shaped Australia's foreign policy toward East Timor showed that the political elite became locked into an integration model, which was defended by successive governments. Moreover, they formed an almost reflexive defence of Indonesia both at the domestic and international level.

Creating the political will necessary for achieving multilateral disarmament : the need for a peace-industrial complex

This dissertation deals with the failure to end the central arms race and provides some alternative proposals. Chapters 1 and 2 look at the failure of governmental disarmament negotiations and the ineffectiveness of the non-governmental peace movement. Chapter 3 outlines the author's recommended comprehensive strategy for ending the arms race? both the need for the US to make a dramatic unilateral initiative to break the deadlock (Super GRIT) and a detailed disarmament treaty. The main problem, as argued by the author, is more one of political will and so it is necessary to find a way of creating the political will to stimulate the US to make that dramatic unilateral initiative. He calls for the creation of a Peace-Industrial Complex. The intellectual arguments for the potential basis of such a complex are to be found in the research done by the United Nations; this is examined throughout Part II (Chapters 4-7). Unfortunately very little attention has been paid by governments to this work. Part III (Chapters 8 and 9) deals in more detail with the recommended Peace-Industrial Complex. Chapter 8 looks at its possible creation and method of work. Chapter 9 suggests that the proposed complex creates a transcending vision: from ‘uclear winter’to ‘nuclear spring’.

The compliance of Australian preventative detention law with article 9(1) ICCPR

This thesis found that a provision of Australia's counter-terrorism policy, preventative detention, does not comply with a major international treaty, the ICCPR. This thesis provides an alternative model by which the Australian Government could achieve the legitimate purposes of preventative detention within the existing constraints of the Australian criminal law.

White cargo : Australian residents, trade and colonialism in Shanghai between the wars

This article follows Australians who went to treaty ports in China in the 1920s and 1930s to find work. By 1932 there were so many Australians in Shanghai that the British government asked Prime Minister Joseph Lyons to issue an official warning dissuading Australians from travelling there for employment. One result of this migration was the generation of files on Australians in the Special Branch’ surveillance files of the Shanghai Municipal Police (SMP) archives. Using these files, as well as Chinese language newspapers circulating in Shanghai at the time, this article examines links between Australians in Depression-era Shanghai and the development of Chinese anti-colonialism. It also suggests that reports on Australian behaviour in treaty port China in Australian newspapers recast the ways in which some Australians understood inter-colonial exchanges. Much is known about Australian attitudes to Asia in the first half of the twentieth century. Little, however, has been written about how Asian populations viewed Australians. The Shanghai Municipal Police files provide one register through which these viewpoints can be excavated.

Down under and in between : Australian security perspectives in the 'Asian Century'

This chapter will provide an overview of Australian perspectives on the US alliance in light of ongoing and emerging challenges in the Asia-Pacific region. After a brief discussion of the motivations behind the signing of the ANZUS treaty, the first part of the chapter examines the historical context of the alliance, with a particular focus on the longstanding and ongoing tussle in Australia between independence in foreign policy making vis-à-vis broader structural constraints. While this debate has been a constant feature of the political scene in Australia, it has come into particular focus since the US withdrawal from Vietnam, which marked a turning point in Australian perspectives with regard to its own role in Asia. The collision of ideas surrounding Australian identity and Australian national interest has been reflected in policy approaches as successive governments have sought to strike a balance between the two exigencies and thus, most optimally ensure Australia’s strategic future. The chapter concludes by examining current perspectives through the lens of an ongoing debate taking place in Australian academic circles about what the rise of China means for Australia and its commitment to the US alliance, and considers options for caucus-style cooperation with fellow US allies beyond the hub-and-spokes model.

Harmonisation and the United Nations Convention on Contracts for the International Sale of Goods

After many years of negotiation, the United Nations Convention on Contracts for the International Sale of Goods (“CISG”) came into force in 1988. Today, 62 states have adopted the CISG. Together these countries account for over two-thirds of all world trade.2 On this basis alone, the CISG is an outstanding success in the legal harmonisation of the law governing the international sale of goods. However, the CISG has its critics and much comment has been made on the failure of the CISG to achieve its goal of promoting international trade through a body of uniform rules.The primary motivation driving the push for a harmonised law on the international sale of goods is economic: a harmonised law makes it easier and more efficient for the business person to sell and buy goods across state borders. However, the engine driving the push for harmonisation is political and cultural; and the task of creating the harmonised law belongs to the diplomat.3 A study of the CISG demonstrates that the political and cultural demands on the diplomat also act as shackles that restrain the achievement of a harmonised law.This paper will consider the CISG and discuss the constraints on treaty making as a mechanism for legal harmonisation. Part one discusses the constraints faced when creating a uniform text.Part two discusses the problems with the text of the CISG that result from the negotiation process. Finally, part three discusses the constraints faced in maintaining the uniformity of the CISG.

Abortion and conscientious objection: the new battleground

This paper examines the vexed issue of conscientious objection and abortion. It begins by outlining the increasing claims to conscientious objection invoked by physicians in reproductive health services. After an examination of developments overseas, the paper turns to the acrimonious debate in Victoria concerning the conscience clause and the 'obligation to refer' contained in the Abortion Law Reform Act 2008 (Vic) ('ALRA'). This paper questions the interpretation by the Catholic Church that the clause breaches its right to freedom of conscience and freedom of religion. We argue that the unregulated use of conscientious objection impedes women's rights to access safe lawful medical procedures. As such, we contend that a physician's withdrawal from patient care on the basis of conscience must be limited to certain circumstances. The paper then examines international and national guidelines, international treaties and recommendations of treaty monitoring bodies, laws in other jurisdictions, and trends in case law. The purpose of this examination is to show that the conscientious objection clause and the 'obligation to refer' in ALRA is consistent with international practice and laws in other jurisdictions. Finally, the paper turns to the problematic interpretation of conscience and moral responsibility in the context of abortion. We believe that narrow interpretations of conscience must be challenged, in order to incorporate patients' rights to include the choice of abortion and other lawful treatments according to their conscience. We conclude that the conscientious objection provisions in ALRA have achieved the right balance and that there is no justifiable legal reason upon which opponents can challenge the law.

Conceptualizing The Schmittian ‘Exception’ in the European Union: from the ‘Opt-Out’ Procedure(S) to indirect forms of secessionism

Too often, legal and sociopolitical scholars concerned with European policies anddecision-making procedures focus their efforts only on the official essence ofconventional opt-out forms of nonparticipation in the European integration process,such as those established in the Treaty of Lisbon. Yet, far from being just an internalmatter, the independentist instances which informed the Scottish referendum had asignificant impact on delicate issues of EU law, biopolitics, political anthropology,political theology, and foreign policy which deserve to be properly addressed. Thenecessity of conducting such an analysis is self-evident, and mainly related to thepossibility that the Scottish experience may be soon replicated, with different results,in the Italian regions of Venetia, Sardinia, and Lombardy, and in the Spanishcommunity of Catalonia. Delving into this dimension through Schmitt’s politicaldecisionism and adopting a comparative and interdisciplinary approach thattranscends the limits of pure positivistic and analytical lines of inquiry, this paperpresents a country’s choice to leave the EU or stop cooperating with it through thedirect opt-out mechanisms officially regulated in its Treaties, or through indirectforms of secessionism, in terms of an ‘exceptional’ act of sovereign will.

From chemical warfare to peace

Following the horrors of chemical warfare in two World Wars and the Vietnam War (see box), the international community worked to develop an encompassing treaty to prevent the use of chemical weapons. After extensive work, the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction came into force in 1997. Commonly known as the Chemical Weapons Convention (CWC), it requires member states to declare and destroy chemical weapons and provides for inspection of facilities and investigation into alleged use. The CWC has been ratified by 190 countries and is administered by the Organisation for the Prohibition of Chemical Warfare (OPCW). In 2013, the OPCW won the Nobel Peace prize "for its extensive efforts to eliminate chemical weapons". Notable in the official announcement is the reminder that neither the US nor Russia met the 2012 deadline for destruction of their stockpiles of chemical weapons, although both have made significant progress. In July 2005, an invitational joint International Union of Pure and Applied Chemistry (IUPAC)/OPCW Conference concluded that for the work of OPCW to succeed and be sustainable, engagement in formal educational contexts and public outreach was needed. To this end, the Multiple Uses of Chemicals website