Blackstone Onyx 2016 by Blackstone Society

O NY X ACADEMIC JOURNAL OF THE BLACKSTONE SOCIETY THE LAW STUDENTSâ&#x20AC;&#x2122; SOCIETY OF THE UNIVERSITY OF WESTERN AUSTRALIA

V OLUME 25 2016

(2016) 25 The Onyx Journal

ONYX ACADEMIC JOURNAL OF THE BLACKSTONE SOCIETY Please address all enquiries to: The Editor, ONYX Blackstone Society Inc. c/- Faculty of Law M253 The University of Western Australia 25 Stirling Highway CRAWLEY WA 6009

PUBLICATION INFORMATION Director Stephen Puttick Editors Bradley Papaluca Evan Taylor Creative Editor Natalie Thompson Printed by Abbott & Co BLACKSTONE EXECUTIVE COMMITTEE 2016 President Alex Cook Vice President (Education) Holly Gretton Vice President (Careers) Scott Montarello Vice President (Administration) Matthew Clark Vice President (Competitions) Amelia Westerside Vice President (Social) Garrett Pearce Vice President (Equity) Claudia Giovannini Vice President (Wellness) Kelsey Montgomery Vice President (Pre-law) Thomas Coltrona

The views and opinions expressed in the articles of this journal do not necessarily reï¬&#x201A;ect the views and opinions of the Blackstone Society, or the editorial team of the Onyx Journal. All views and opinions expressed are solely those of the authors of the articles and all responsibility for the articles lies with them.

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Contents

C ON T EN T S EDITORIAL Stephen Puttick .................................................................................................................. 1

FAC U LTY A R T ICLE

WE ALL LOVE A GOOD STORY: USING STORYTELLING TO IMPROVE LEARNING AND TEACHING IN LAW Tracey Atkins, Renae Barker, Meredith Blake, Penny Carruthers, Jill Howieson, Ambelin Kwaymullina, Kate Offer and Natalie Skead ...................................................... 2

CONSTITUTIONAL LAW

AN ORIGINAL THOUGHT ABOUT ORIGINALISM: THE IMPORTANCE OF THIS APPROACH IN 2016 Holly Gretton .................................................................................................................... 7

‘MAKE FEDERALISM GREAT AGAIN’: DISTINGUISHING CONSTITUTIONAL INTERPRETATIONS WORKCHOICES AND WILLIAMS

Brad Papaluca ...................................................................................................................13

ADMINISTRATIVE LAW

‘THESE AREN’T THE [DECISIONS] YOU’RE LOOKING FOR: JUDICIAL REVIEW POST TANG TURNING TO THE DARK SIDE? Daniel McCluskey ............................................................................................................. 24

INTERNATIONAL LAW

TALK IS CHEAP: THE CUSTOMARY LAW STATUS SOUTH AFRICAN APARTHEID

OF THE

UN ASSEMBLY’S RESOLUTIONS

Lachlan Geddes ............................................................................................................... 34

ISLAMIC STATE: NOTIONS OF A DREAM OR A STATE IN THE MAKING? Aarahnan Raguragavan .................................................................................................... 52

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iii

TORTS

POLICE ‘IMMUNITY’ AND DOMESTIC VIOLENCE INCIDENTS – TIME TO RETHINK THE POSITION IN AUSTRALIA? James Harford .................................................................................................................. 64

PROLONGED AGONY FOR DECADES AND STILL NO ACCESS TO JUSTICE: EXTENDING THE LIMITATION PERIOD FOR SEXUAL ABUSE CASES Maha Abweh .................................................................................................................... 74

IN T E LLE C T UAL PROP E R TY

ENHANCING LEGAL MECHANISMS FOR THE PROTECTION OF THE TRADITIONAL CULTURAL EXPRESSIONS OF ABORIGINAL AND TORRES STRAIT ISLANDER PEOPLE IN AUSTRALIA Julien Blais ........................................................................................................................ 84

PROTECT MY PERSONA: EXAMINING INTELLECTUAL PROPERTY RIGHTS IN CELEBRITY PERSONALITIES Hana Lee ........................................................................................................................... 98

‘DON’T SHOOT THE MESSENGER’: IMPOSING LIABILITY FOR THE USE OF TRADEMARKS AS KEY-WORDS Scott Montarello ............................................................................................................. 112

MINING LAW

SHALE GAS IN THE CANNING BASIN: THE EFFICACY OF STATE AGREEMENTS IN WESTERN AUSTRALIA Edward H. Dymond ........................................................................................................ 124

C A SE NOTE S

CORPORATE LIABILITY FOR MARKET MISCONDUCT: PERENNIAL DEEP POCKETS BEWARE Matheo Vinciullo .............................................................................................................135

THE SORRY STATE OF THE IMPLIED FREEDOM OF POLITICAL COMMUNICATION Jonathan Bowes ............................................................................................................. 146

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Editorial

E DI TOR IA L Welcome to the 2016 issue of Onyx, The Blackstone Society’s student law journal. This journal is an opportunity to publish some of the outstanding research undertaken by UWA law students. We are fortunate this year to have had the journal accepted into the Law Library’s journal collection. The articles in this year’s issue cover a variety of topics ranging from constitutional and administrative law to intellectual property and corporations law issues. Firstly, I would like to thank all of the students who submitted research essays and case notes. All submissions were reviewed anonymously twice before being accepted into the journal. The quality of submissions received was outstanding. I continue to be impressed by the exceptional work produced by my fellow students. I would like to express special thanks to Professor Natalie Skead and the other members of Faculty who have kindly provided us with a special article on some upcoming changes to teaching in the Juris Doctor. Tracey, Renae, Meredith, Penny, Jill, Ambelin, Kate, and Natalie, along with other members of Faculty, your continued passion for improving teaching and pastoral care is laudable. The pressures that students experience in Law School are extreme. Your support- both in teaching and outside of the classroom- has undoubtedly been invaluable to many students. Finally, and perhaps most importantly, I would like to thank my two editors, Brad Papaluca and Evan Taylor. Along with Brad and Evan, I would like to thank our creative editor, Natalie Thompson. Brad, Evan, and Natalie have committed hours and hours to this project. The work required to put together an academic journal cannot be understated. This publication would not have come together if not for their efforts. Thank you. I hope you enjoy the articles contained herein. We are conﬁdent that volume 25 is the best issue yet, Stephen Puttick Director

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T Atkins, R Barker, M Blake, P Carruthers, J Howieson, A Kwaymullina, K Offer and N Skead

WE ALL LOVE A GOOD STORY: USING STORYTELLING TO IMPROVE LEARNING AND TEACHING IN LAW

TRACEY ATKINS, RENAE BARKER, MEREDITH BLAKE, PENNY CARRUTHERS, JILL HOWIESON, AMBELIN KWAYMULLINA, KATE OFFER AND NATALIE SKEAD∗ The human species thinks in metaphors and learns through stories. — Mary Catherine Bateson

INTRODUCTION

In a professional law degree, the hypothetical problem scenario is commonly the principal mechanism through which students are taught and assessed on both content and a range of legal skills. Typically, students are given a written hypothetical problem and are required to provide advice, either in writing or orally, to a speciﬁed party or parties. There is no doubt that using written hypothetical scenarios as the basis for teaching problem-solving in law is an appropriate and very effective tool in facilitating students’ ability to think critically and analytically and to improve their written and oral communication skills.1 As noted by Angela Burton, ‘storytelling suffuses the work of lawyers … the law is only meaningful in relation to some situation of factual circumstance’.2 The written hypothetical problem scenario does, however, have its limitations.

LIMITATIONS OF THE TRADITIONAL WRITTEN HYPOTHETICAL PROBLEM

The Juris Doctor (JD) at the University of Western Australia Law School (UWALS) is a 3-year postgraduate professional law degree comprising 17 core units and 7 option units. In most units, a different problem is written for each new topic in the unit. This could mean that in a single unit, 20 or more different written problem scenarios might * Faculty of Law, University of Western Australia. 1 Kurt M Saunders and Linda Levine, ‘Learning to Think Like a Lawyer’ (1994-1995) 29 University of Southern Florida Law Review 121, 133-135. 2 Angela Olivia Burton, ‘Cultivating Ethical, Socially Responsible Lawyer Judgment: Introducing the Multiple Lawyering Intelligence Paradigm into the Clinical Setting’ (2004) 11 Clinical Law Review 15, 34. 2

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We All Love a Good Story: Using Storytelling to Improve Learning and Teaching in Law

be used across a 13-week semester for tutorials, assignments, in-class examples and exams. Not only can the volume of problem scenarios be overwhelming both for the student - who has to read, analyse and answer them - and for the teacher who has to write them, but there are also signiﬁcant limitations in presenting a problem in written form. Whether in legal practice or other work context, it is very seldom that a problem requiring solving is presented entirely in written form. Far more commonly it will be presented orally in a client interview, a meeting, a negotiation, or in court. Relying solely on the written hypothetical does not, therefore, adequately prepare a student for the full range of skills they will need as law graduates to solve the wide range of problems with which they will be presented. These skills include: the ability to listen carefully and critically to what is being said,3 the ability to observe and interpret unspoken communication,4 the ability to identify and understand the ‘essential aspects of the narrative dealing with plot, character and context’ and, we would add, relationships.5 Effective lawyering is, at its heart, about building relationships with one’s clients. A good lawyer must be able see their client in a ‘broad social, familial and cultural context’6 to be able to counsel, advise and represent the client effectively; the development of good interpersonal skills is essential to achieving this.

III

UWA LAW SCHOOL JD STORYTELLING PROJECT

With these limitations in mind, members of the UWALS JD teaching team have embarked on a project to modify the way in which the hypothetical legal problem is presented to students so as to enhance learning and teaching in the degree. The project, entitled, ‘Enhancing student learning and engagement in the Juris Doctor through the rich tapestry of legal storytelling’ is funded by the University’s Centre for Education Futures and has the stated aim of ‘transform[ing] the teaching of critical thinking, Gary Slapper and David Kelly, The English Legal System (Routledge Taylor & Francis Group, 14th ed, 2013) 72. See also generally Robert C Bordone and Chad M Carr, ‘Critical Decisions in Negotiation: A New Video Resource for Teaching Negotiation’ (2013) 29 Negotiation Journal 463. 4 Jojappa Chowder, ‘The Nonverbal Dimensions of Presentation’ (2013) 1(4) Research Journal of English Language and Literature 1; Peter Andersen, Nonverbal Communication: Forms and Functions (Waveland Press, 2nd ed, 2007); Janine Driver, You Say More Than You Think (Crown Publishers, 2010); Loretta Malandro, Nonverbal Communication (Newbery Award Records, 1989) 8. 5 Ross Hyams, ‘Nurturing Multiple Intelligences Through Clinical Legal Education’ (2011) 15 University of Western Sydney Law Review 80, 85. 6 David B Wexler, ‘Therapeutic Jurisprudence, Criminal Law Practice, and Relationship-Centered Lawyering’ (2010) 2 Chapman Journal of Criminal Justice 93. 3

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T Atkins, R Barker, M Blake, P Carruthers, J Howieson, A Kwaymullina, K Offer and N Skead

analysis and communication skills in Law at UWA, by using a filmed narrative as the basis for law teaching throughout the core 3-year Juris Doctor program’. The project team will build on the work and research of two team members, Natalie Skead and Kate Offer,7 by creating a filmed hypothetical fact scenario for teaching across the JD. The script, which has been written by writer, illustrator and UWA law academic Ambelin Kwaymullina, draws for its content on the different areas of law covered in the JD core. The team will introduce the film to students in the first week of their JD studies in the new intensive Legal Process unit. It will then continue to be used as the basis for problem-solving, role-plays, case studies and assessments throughout the semester. The film will be developed incrementally and will be tailored for use in other core units of the degree, gradually incorporating different elements of substantive law as well as a range of moral, ethical, professional and personal challenges that commonly arise in legal practice.

BENEFITS OF THE PROJECT FOR STUDENTS AND TEACHERS

Presenting a single problem in visual form will have several beneﬁts for students. They will: 1.

be faced with a single problem scenario that becomes increasingly factually and legally complex as they progress through their degree. The ﬁlm will provide a more cohesive and integrated ‘capstone learning experience’ for students across the 3 years of the JD program, cutting across the traditional silos of 24 separate and often unrelated units;8

develop broader communication skills by having to critically listen and

Natalie Skead, ‘Uncle Jack, Jaycee and the Equitable Doctrine of Estoppel: Using Second Life to Support the Development of Advanced Oral Communication Skills in Law Students (2016) 50 The Law Teacher 230; Natalie Skead and Kate Offer, ‘Learning Law Through a Lens: Using Visual Media to Support Student Learning and Skills Development in Law’ (Paper presented at the International Association of Law Schools Conference, Segovia, Spain, October 2015). 8 Sally Kift, Des Butler, Rachael Field, Judith McNamara, Catherine Brown and Natalie Gambie, ‘Conceptualising a Capstone Experience for Law Students’ (Paper presented at the Australasian Law Teachers Association 65th Annual Conference, University of Auckland, 4-7 July 2010). 7

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We All Love a Good Story: Using Storytelling to Improve Learning and Teaching in Law

view, rather than just read, the fact scenario.9 Alongside this legal storytelling project, the project team is working on developing an integrated approach to embedding ‘legal professionalism’ across the core JD program, with specific focus on strategies to promote wellbeing in our students10 and ensuring students are work-ready upon graduation.11 By raising and allowing for the further development of issues of substantive law and moral, ethical, professional and personal challenges that may arise in legal practice, the film will form the core around which strategies for wellbeing and work-readiness will be developed and woven through the degree. From the student perspective, the film will assist in the development of a range of fundamental articulated threshold learning outcomes: critical thinking and analysis, legal problem-solving and communication.12 More broadly, the film will engage students from the very beginning of their law studies. As the characters and narrative develop progressively across the course of the JD, the film will incrementally reveal the complexities of law in context and reflect real life. Further, as students across all year groups will be working with a shared story and common characters, the film will contribute to building a learning community both within and across year groups, enhancing the sense of belonging and connectedness that the research indicates is so crucial to student wellbeing.13 Not surprisingly, we also anticipate that the project will deliver significant benefits for academic staff teaching into the JD. From a practical perspective, they will not be required to write multiple problem scenarios involving different legal actors Skead, above n, 7. James Duffy, Rachael Field and Melinda Shirley, ‘Engaging Law Students to Promote Psychological Health’ (2011) 36 Alternative Law Journal 250; Jill Howieson, ‘ADR Education: Creating Engagement and Increasing Mental Well-Being Through an Interactive and Constructive Approach’ (2011) 22 Australasian Dispute Resolution Journal 58; Natalie Skead and Shane L Rogers, ‘Stress, Anxiety and Depression in Law Students: How Student Behaviours Affect Student Wellbeing’ (2014) 40 Monash University Law Review 564. 11 Ben Heineman, William F Lee and David B Wilkins. ‘Lawyers as Professionals and as Citizens: Key Roles and Responsibilities in the 21st Century’ (2004) Centre on the Legal Professional, Harvard Law School <http://belfercenter.hks.harvard.edu/files/Heinemen_Lawyers%20as%20Professionals.pdf>. 12 Sally Kift, Mark Israel and Rachael Field, ‘Learning and Teaching Academic Standards Project: Bachelor of Laws’ (Learning and Teaching Academic Standards Statement, Australian Learning and Teaching Council, December 2010) 10. 13 Howieson, above n 10; Skead and Rogers, above n 10. 9

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T Atkins, R Barker, M Blake, P Carruthers, J Howieson, A Kwaymullina, K Offer and N Skead

and situations across the course of the semester. Rather, they will have the beneﬁt of the basic narrative and characters of the ﬁlm that each can develop, as needed, in an individual unit. Perhaps more importantly, it is anticipated that as each unit builds on earlier units there will be increased collaboration and sharing of ideas between the teaching teams of the otherwise often disparate JD units. V

CONCLUSION

The script for the film has been completed and the cast, including UWA students and staff, is in the process of being finalised. The premiere of the film is due for release to Legal Process students in March 2017. It is sure to be a blockbuster!

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An Original Thought about Originalism: The Importance of this Approach in 2016

AN ORIGINAL THOUGHT ABOUT ORIGINALISM: THE IMPORTANCE OF THIS APPROACH IN 2016 HOLLY GRETTON* This paper examines a number of different approaches taken in interpreting the meaning of the Commonwealth Constitution. The author argues that, despite some imperfections, originalism remains the most useful and justiﬁed approach in constitutional interpretation.

INTRODUCTION

Constitutional interpretation is determinative of whether legislation is valid or invalid. The outcome of this process has a significant effect on the prevailing attitudes and values that pervade Australian society in 2016 and as such constitutional interpretation cannot be seen to exist in isolation from societal concerns. Originalism, ‘the principle or belief that the original intent of an author should be adhered to in later interpretations of a work’,1 has been contended to be a useful approach to interpreting the Constitution2 because it provides direction for judges in making determinations with reference to the framers’ original intentions.3 In contrast, however, there has been growing concern that the ‘framers’ intentions…with respect to so many questions of interpretation,’4 are unknown’. Further, the usefulness of an originalist approach has been questioned because many of its critics argue that it does not accord weight to ‘contemporary needs and values.’5 In light of some ‘good arguments on both sides’6 this paper submits that despite its imperfections, originalism is the most useful approach to Constitutional interpretation in contemporary Australian society. * Holly is a second year Juris Doctor student and holds a Bachelor of Arts degree also from The University of Western Australia. The author wishes to thank Dr Murray Wesson for his help with this research. Thanks are also extended to The Samuel Griffith Society, Quentin Wong, and Stephen Puttick. This paper was the winning essay in the 2016 Samuel Griffith Society Constitutional Law Essay Competition. Oxford English Dictionary (2016) <http://www.oed.com>. See, eg, Mirko Bagaric, ‘Originalism: Why Some Things Should Never Change- Or At Least Not Too Quickly’ (2000) 19 University of Tasmania Law Review 173. 3 See for example Jeffrey Goldsworthy, ‘Originalism in Constitutional Interpretation’ (1997) 25 Federal Law Review 1. 4 Sir Anthony Mason, ‘Constitutional Interpretation: Some Thoughts’ (1997) 20 Adelaide Law Review 54. 5 Jeffrey Goldsworthy, ‘Interpreting the Constitution in its Second Century (Centennial Symposium: An Australian Retrospective’ (2000) 24 Melbourne University Law Review 678. 6 Ibid. 1 2

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THE ESSENCE OF THE ORIGINALIST APPROACH

Notably in Australia since the decision in Engineers7 the constitutional interpretation to be preferred in Australia is to read the law in its ‘natural sense’8 or as Michelle Evans puts it, ‘literally.’9 In essence, the High Court of Australia adopted a ‘literalist legalistic approach’10 to constitutional interpretation rather than an originalist approach. A mischaracterization of originalism as literalism is dangerous because it ignores the fundamental protection offered by originalism, which is to provide Australian citizens with ‘the exclusive authority’11 under s 128 of the Commonwealth Constitution12 to change its contents, rather than giving that ability to judges as they see ﬁt.13 Although the ‘literalist’ approach has prevailed in Australia since Engineers, it is submitted here that originalism is a more suitable interpretation. It is contended that originalism is motivated by three principles in Australia: ‘democracy, the rule of law and federalism,’14 and that such principles are fundamental to Australian contemporary values. A

The Strengths of Originalism

In Australia in 2016 an originalist approach to Constitutional interpretation is preferable for two reasons. Firstly, it prevents the judiciary from impeding on the democratic freedom to hold a referendum and secondly it provides the Court with principles to adhere to. Jeffrey Goldsworthy asks, ‘who has the right to decide whether contemporary needs and values have so changed that a constitutional change is desirable?’15 The answer is likely that by preferring non-originalism, the High Court would have the power to make decisions guided by their own judgment of contemporary values and government needs.16 This paper contends this is undesirable because it would undermine conﬁdence in the Court in a society, which values freedom and accountability to its citizens. Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129. Ibid. 9 Michelle Evans, ‘Engineers: the Case that Changed Australian Constitutional History’ (2012) 24 Journal of Constitutional History 65. 10 Mason, above n 4, 50. 11 Goldsworthy, Interpreting the Constitution, above n 5, 683. 12 Commonwealth Constitution s 128. 13 See, eg, Bagaric, above n 2, 173-204. 14 Goldsworthy, Interpreting the Constitution, above n 5, 683. 15 Ibid, 684. 16 Se, eg, James Allan, ‘The Three R’s of Recent Australian Judicial Activism: Roach, Rowe and (No) ‘riginalism’ (2012) 36 Melbourne University Law Review 744. 7 8

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An Original Thought about Originalism: The Importance of this Approach in 2016

Originalism acts as a safeguard and provides ‘subsequent generations’17 with an ‘accepted set of procedures.’18 This arguably maintains the legitimacy of the Constitution because it is not undermined with reference to, for example, contemporary issues and trends.19 This paper asserts that in line with Mirko Bagaric’s argument, the strength of the Constitution lies in its ability to codify attitudes and beliefs, which are deemed ‘so basic…they should be beyond alteration by transient majorities.’20 In those instances where the Constitution need be changed, it is the prerogative of electors to exercise their right pursuant to s 128.21 This is essential for the rule of law to be upheld because it prevents ‘lawyers and judges disguising substantive constitutional change as interpretation.’22 Prima facie it may seem contradictory that originalism, as a form of interpretation which is formed on the basis of past intention, is useful in a modern context. This paper submits the very strength of originalism lies in its adherence to the intended meaning of the Constitution, preventing it from being a document so ever-changing it loses any meaning at all.23 B

Concerns Surrounding Originalism

Despite its strengths, it is conceded ‘originalism has its faults’24 but that even with these flaws it is still preferable to any alternatives. A major issue with originalism is determining how to interpret the Constitution in situations where the framers’ intentions are silent or ambiguous.25 This is not confined to constitutional interpretation in Australia; Judge Wilkinson in the United States of America has identified the pitfall that a constitution ‘does not speak to everything.’26 When the framers’ intentions are absent or hard to interpret, difficult cases cannot be ‘satisfactorily resolved.’27 In these instances, critics of originalism in particular have ‘apprehension about being locked

Goldsworthy, Interpreting the Constitution, above n 5, 677-710 cited in Bagaric, above n 2. Ibid. 19 Bagaric, above n 2, 182. 20 Ibid 185. 21 Commonwealth Constitution s 128. 22 Goldsworthy, Interpreting the Constitution, above n 5, 683-4 cited in Dan Meagher, ‘New Day Rising? Non-Originalism, Justice Kirby and Section 80 of the Constitution’ (2002) 24 Sydney Law Review 157. 23 See, eg, Meagher, above n 22. 24 William J Michael, ‘When Originalism Fails (Constitutional Interpretation Through Original Intent)’ (2004) 25 Whittier Law Review 506. 25 Goldsworthy, Interpreting the Constitution, above n 5, 678. 26 Michael, above n 24, 507. 27 Meagher, above n 23, 143. 17 18

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in’28 to an originalist interpretation. This is because without any adaptation to modern considerations the meaning of a constitution may be absurd or not suitable to its context. It was submitted above that s 12829 provides a means of providing change in cases where it is deemed necessary by the citizens. Critics contend, however, that this does not provide an expedient method of change. It is conceded this may be a valid criticism for ‘hard… cases’30 because judges cannot ‘decide the issue’31 where the framers have not spoken to that issue. The fundamental role of the High Court is to hand down binding, authoritative decisions and where these cannot be made the difﬁculty lies in what kind of interpretation is then to be favoured. For example, in relation to s 8032 ‘it is arguable that the framers never intended its content to be frozen,’ however there is no way to determine this for certain. As a result, ambiguity surrounding the term ‘indictment’ in s 80 proved difﬁcult for the Court in Re Colina33 and Cheng v The Queen.34 In support of Dan Meagher’s argument however, it is asserted ‘what constitutes an indictment is clear enough’35 and therefore was not a matter of ambiguity for the Court. It is submitted in cases of ambiguity or absurdity originalism is not the ideal interpretative method in contemporary Australian society, but that the Court must be cautious in determining what is a matter of ambiguity. C

Alternative: Non-Originalism

A number of approaches to constitutional interpretation have been considered, but at the crux of the argument are two different approaches: one being originalism and ‘the other that modern day values are the appropriate interpretive standard.’36 Justice Kirby is arguably the most vocal proponent of the latter, purporting that the Constitution is a living document.37 This is supported by Andrew Inglis Clark’s assertion that social Mason, above n 10, 49. Commonwealth Constitution s 128. 30 Meagher, above n 27, 161. 31 Michael, above n 26, 502. 32 Commonwealth Constitution s 80. 33 Cheng v The Queen (2000) 203 CLR 248 cited in Meagher, above n 27. 34 Re Colina; Ex Parte Tomey (1999) 200 CLR 386 cited in Meagher, above n 27. 35 Meagher, above n 30, 166. 36 Bagaric, above n 19, 183. 37 See Michael Kirby, ‘Constitutional Interpretation and Original Intent: A Form of Ancestor Worship?’ (2000) 24 Melbourne University Law Review 1. 28 29

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An Original Thought about Originalism: The Importance of this Approach in 2016

conditions of every community produce new government problems to which the Constitution must be applied.38 It is not denied that contemporary values are taken into account when judgments are handed down, but interpreting the words of the constitution in light of them is arguably not the role of the Court. As Goldsworthy asks; ‘who was the right to decide whether contemporary needs and values have so changed that a Constitutional change is desirable?’39 In saying that, the text set free argument40 does seem to be more convincing in situations of ‘hard cases’41 because it is able to step in and ﬁll in the blanks left by ambiguity or absurdity. The major concern with non-originalism is that at its core is the notion of judicial activism and resulting from this, the substantial possibility that judges will ‘exceed their proper role in a democracy.’42 The reason that originalism is a more useful approach is because it prevents this speciﬁc issue- protecting the very freedom the Constitution was drafted to maintain. The plausibility of the Constitution as a ‘living tree’43 is idealistic at best, when in reality what it allows for is the alteration of the Constitution ‘as time goes by, as announced by the judiciary.’44 It is contended for these reasons that in most cases non-originalism would hinder rather than aid interpretation in 2016. D

Alternative: Moderate Originalism

It has been conceded that whilst originalism is useful it is imperfect. Attempts have been made to ﬁnd a middle ground between strict originalism and non-originalism. Justice Kirby describes this as being an interpretative approach where judges ‘accept those intentions as being relevant to their task; but decline to view them as necessarily determinative’45 The difﬁculty with this approach is that it seems to ‘collapse into’46 non-originalism because it is likely that any discretion would produce the same result. Goldsworthy supports moderate originalism following Dworkin who asserts that ‘decisions of political morality’47 do not subvert or replace the framers’ intentions, Ibid. Goldsworthy, Interpreting the Constitution, above n 5, 684. 40 Se, eg, Kirby, above n 37. 41 Se, eg, Meagher, above n 27. 42 Allan, above n 16. 43 Kirby, above n 37, 6. 44 Allan, above n 16, 751. 45 Goldsworthy, Interpreting the Constitution, above n 5, 678. 46 Goldsworthy, Interpreting the Constitution, above n 5, 679. 47 Ronald Dworkin as cited in Goldsworthy, Interpreting the Constitution, above n 5, 696-7. 38 39

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Holly Gretton

but aim to serve them.48 This paper warns that only considering the framers’ intent on an ‘abstract level of generality’49 may render that intent irrelevant, and undermine the Constitution’s legitimacy as a result. If anything, Dan Meagher’s assertion that in ‘hard cases’ where originalism cannot be strictly followed, non-originalism may be permitted ‘if applied in a manner that is faithful to the text… of the Constitution’50 is more persuasive than a case of applying a moderate approach at all times. III

CONCLUSION

This paper has asserted that originalism is the most useful form of constitutional interpretation in modern Australia because it protects against radical change and uncertainty. Whilst originalism remains imperfect, it is contended that moderate originalism and non-originalism produce undesirable discretion that would result in the undermining of the Constitution and the three principles it serves to protect.

See, eg, Andrew Leduc, ‘The Relationship of Constitutional Law to Philosophy: Five Lessons from the Originalism Debate’ (2014) 12 Georgetown Journal of Law & Public Policy 99. 49 Goldsworthy, Interpreting the Constitution, above n 5, 697. 50 Meagher, above n 35, 142. 48

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‘Make Federalism Great Again’: Distinguishing Constitutional Interpretations in Workchoices and Williams

‘MAKE FEDERALISM GREAT AGAIN’: DISTINGUISHING CONSTITUTIONAL INTERPRETATION IN WORK CHOICES AND WILLIAMS BRAD PAPALUCA∗ This paper argues that New South Wales v Commonwealth (Work Choices) (2006) 229 CLR 1 (‘Work Choices’) and Williams v Commonwealth of Australia (2012) 248 CLR 156 (‘Williams’) do not represent a coherent approach to constitutional interpretation. Comparison of the two decisions focuses on comparing the application of orthodox principles, federalism and intentions of the Constitution’s framers. It is submitted that Work Choices is heavily inﬂuenced by orthodoxy and gave little weight to considerations of federal balance, whereas Williams was primarily informed by federalism and intentions of the Constitution’s framers. It is concluded that approaches to constitutional interpretation in these cases cannot be reconciled.

INTRODUCTION

Work Choices1 and Williams2 were both controversial decisions, due in large part to their interpretations of the Constitution.3 Work Choices signiﬁcantly expanded the scope of Commonwealth legislative power under s 51(xx), while the majority in Williams ruled that there is no general power for the Commonwealth executive to enter into contracts and spend public funds without statutory authority or another recognised source of power. It is argued in this paper that these two decisions do not represent a coherent approach to constitutional interpretation. The most notable differences between them being their approaches to orthodox authorities, federal balance and the intentions of the Constitution’s framers. The ﬁrst section will recount the facts of Work Choices and the methods of constitutional interpretation used by the majority. The second section will recount the facts in Williams and discuss the methods of constitutional interpretation in the majority judgments. The third section will discuss the contrasting approaches to interpretation in both judgments and conclude that they do not represent a coherent approach to constitutional interpretation.

Brad is a Juris Doctor student and holds a Bachelor of Arts from The University of Western Australia. (2006) 229 CLR 1. 2 (2012) 248 CLR 156. 3 Commonwealth of Australia Constitution Act 1901 (Cth). * 1

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Brad Papaluca

FACTS IN WORK CHOICES

Work Choices concerned an amendment to the existing Workplace Relations Act 1996 (Cth) which substantially changed an existing system involving both the Commonwealth and the states. Under the amending legislation, the industrial relations scheme would be primarily controlled by the Commonwealth. Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ (Kirby and Callinan JJ dissenting) held that the amendment was a valid law with respect to s 51(xx).4 The decision marked a clear rejection of the ‘narrow’ view of s 51(xx) and dramatically widened the scope of the corporations power.5 III

CONSTITUTIONAL INTERPRETATION IN WORK CHOICES

Work Choices has been described as the zenith of the orthodox approach to constitutional interpretation.6 In reaching a very broad construction of the s 51(xx), the majority rejected the use of conceptions such as ‘the federal balance’ to restrict the scope of federal legislative power.7 A

Orthodox Interpretation

The approach to constitutional interpretation in Work Choices strictly adheres to established principles that can be traced back to the Amalgamated Society of Engineers v Adelaide Steamship Co Ltd.8 (‘Engineers’ Case’) The emerging principle from Engineers’ Case was that the Constitution should be read as a whole before attempting to construe a particular provision.9 ‘Subject to this consideration… the only safe course is to read the language of the statute in what seems to be its natural sense’.10 In Lynch and Williams’ view, the Engineers’ Case led to the High Court rejecting any suggestion that ﬁdelity to a concept of federal balance is consistent with both the contents and Work Choices (2006) 229 CLR 1. Tony Blackshield, ‘New South Wales v Commonwealth: Corporations and Connections’ (2007) 31 Melbourne University Law Review 1135, 1135. 6 David Hume, Andrew Lynch and George Williams, ‘Heresy in the High Court? Federalism as a Constraint on Commonwealth Power’ (2013) 41 Federal Law Review 71, 74. 7 Work Choices (2006) 229 CLR 1, 119 [192]-[193] (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ). 8 (1920) 28 CLR 129. 9 Ibid 148-149 (Knox CJ, Isaacs J, Rich J and Starke J). 10 Ibid. 4 5

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purpose of the Constitution and also the principle of a separation of powers.11 Particular consideration is given to the limitations of a commitment to federalism in only a structural sense, as reasoning of the majority in Work Choices revealed.12 The majority stressed very early in their judgment that the Court must adhere to ‘the accepted principles of constitutional interpretation’.13 Aroney argues that the issues in Work Choices presented a dilemma to the dissentients: resisting an outcome that dramatically altered the balance of power between the Commonwealth and the states, but in doing so, having to repudiate a long line of established interpretive conventions.14 Accordingly, Hume, Lynch and Williams observe that the majority decision in Work Choices ‘rested on, and may be seen as the logical culmination of, a set of interpretive principles that were established by the Engineers’ Case and developed in subsequent decisions’.15 Primary amongst these principles was that grants of federal legislative power are to be construed ‘with all the generality which the words used admit’.16 This originated from O’Connor J’s view that the court should always take the broader interpretation unless something in the Constitution indicates that the narrower interpretation is better suited to carry out its object or purpose.17 That is, one head of legislative power should not be read down to ensure that another has a separate and distinct field of operation. This principle underpinned the view of the majority in Work Choices in rejecting submissions from the plaintiffs that s 51(xx) should be read down in relation to s 51(xxxv).18 Their Honours held that grants of power are not to be construed on the basis of ‘extreme examples and distorting possibilities’ or ‘possible social consequences’ that might flow if a power was exercised to its full extent.19 Rather, it is first necessary to identify the particular ‘order or form of things’ upon which a negative implication may operate to exclude a matter.20 Furthermore, the fact that a power, if given its full Andrew Lynch and George Williams, ‘Beyond a Federal Structure: Is Constitutional Commitment to a Federal Relationship Possible?’ (2008) 31 University of New South Wales Law Journal 395, 400. 12 Ibid. 13 Work Choices (2006) 229 CLR 1, 71-2 [97]. 14 Nicholas Aroney, ‘Constitutional Choices in the Work Choices Case, or What Exactly is Wrong with the Reserved Powers Doctrine?’ (2008) 32 Melbourne University Law Review 1, 4-5. 15 Hume, Lynch and Williams, above n 5, 86. 16 Work Choices (2006) 229 CLR 1, 103 [142]. 17 Jumbunna Coal Mine NL v Victoria Coal Miners’ Association (1908) 6 CLR 309, 368. 18 Work Choices (2006) 229 CLR 1, 123 [204]. 19 Ibid 118 [188]. 20 Ibid 122-3 [202]. 11

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meaning, would result in a substantially diminished role for the states compared to the role enjoyed at Federation, was not itself considered a reason for rejecting that construction of the power.21 This reasoning can also be traced to the Engineer’s Case, where the majority held: ‘extravagant use of the granted powers in the actual workings of the Constitution is a matter to be guarded against by the constituencies and not by the courts’.22 B

Federal Balance

The idea that there exists a static federal balance was robustly criticised by the majority in Work Choices. McLeish agrees that recognising a required constitutional balance between state and Commonwealth power is to proceed by way of mere assumption, unsupported by the Constitution’s text or structure.23 A federal balance is only identiﬁed as a result of interpreting the Constitution, not as a precursor to its interpretation,24 as was also held by the majority.25 In dismissing submissions by the plaintiffs on the grounds of disturbing the federal balance, their Honours relied on two points from Dixon J in Melbourne Corporation v Commonwealth.26 Firstly: The position of the federal government is necessarily stronger than the states. The Commonwealth is a government to which enumerated powers have been afﬁrmatively granted. The grant carries all that is proper for its full effectuation. Then supremacy is given to the legislative powers of the Commonwealth.27

Secondly, that the Constitution’s framers ‘conceived the states as bodies politic whose existence and nature are independent of the powers allocated to them’ (emphasis added).28 On those grounds, the majority held that there is no evidence of a precise point where the division of legislative powers between the Commonwealth and the states would Ibid 73-4 [54]. Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (Engineers Case) (1920) 28 CLR 129, 151 (Knox CJ, Isaacs, Rich and Starke JJ). 23 Stephen McLeish, ‘Federal Implications Under the Australian Constitution’ (2014) 25 Public Law Review 172, 180. 24 Work Choices (2006) 229 CLR 1, 73 [54], 120 [195]-[196] (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ). 25 Work Choices (2006) 229 CLR 1, 120 [195]; McLeish, above n, 22. 26 (1947) 47 CLR 31. 27 Ibid 82-83. 28 Ibid 82. 21 22

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disturb the federal balance.29 C

Intention of the Constitutional Framers

Attempts by the plaintiffs to use the founders’ intention to interpret the Constitution were also criticised by the majority. Their Honours commented that even if such intention could be pinpointed, it would divert the Court from the real objective of interpreting the text ‘in accordance with accepted principles’.30 This was described as a textual approach to interpretation, giving the words of s 51(xx) their widest possible meaning without considering any other provisions in any signiﬁcant way.31 The plaintiffs submitted that s 51(xx) permits making law with respect only to the external relationship of corporations, not their internal relationships and the relationship between corporation and its employee should be considered internal.32 The majority responded that a distinction between the external and internal relationships of a corporation is: …a distinction rooted in a choice of law rules which cannot be transposed into the radically different area of determining the ambit of a constitutional head of legislative power. It is a distinction which ﬁnds no support in the Convention Debates or drafting history of s 51(xx). It is a distinction of doubtful stability but, if it were to be adopted, there seems every reason to treat relationships with employers as a matter external to the corporation.33

Their Honours also held that the distinction between internal and external relationships was based on a principle of comity.34 This principle did not have any useful place in considering questions about the ambit of legislative power as ‘it is apt to invoke presuppositions about allocation of legislative power that evoke the inoperative reserve powers doctrine’.35

Work Choices (2006) 229 CLR 1, 120 [195]. Ibid 97 [120]. 31 Aroney, above n 13, 27. 32 Work Choices (2007) 229 CLR 1, 75 [58]-[59]. 33 Ibid 78 [66]. 34 Ibid 89 [94]. 35 Ibid. 29 30

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FACTS IN WILLIAMS

Williams dealt with a challenge to Commonwealth legislation (‘the funding agreement’) creating a funding scheme for chaplaincy programs in state schools in Queensland. Mr Williams challenged the validity of the funding agreement and the expenditure of public funds thereunder. The majority of French CJ, Gummow, Bell, Hayne, Crennan and Kiefel JJ (Heydon J dissenting) held that the funding agreement was invalid and that the Commonwealth executive does not have a general power to enter into contracts and spend public money under s 61 of the Constitution. V CONSTITUTIONAL INTERPRETATION IN WILLIAMS A Orthodox Interpretation Although the general shift to examining substance over form was noted earlier, Williams represented the spread of this approach to the core constitutional question of delineating Commonwealth power.36 In doing so, the majority seemed to distance themselves from the approaches in Engineers’ Case and Work Choices, which focus on the text of a grant of power while perhaps overlooking the consequences of its exercise.37 B 1

Federal Balance

French CJ

Some considered Williams ‘unusual’ because of the extent to which the majority relied on federal considerations in their reasoning.38 This is most evident in French CJ’s judgment, which Chordia, Lynch and Williams note is in stark contrast to the majority in Work Choices.39 His Honour began by referencing Inglis Clark’s model of a ‘truly federal government’, at the heart of which is ‘the preservation of the separate existence and corporate life of each of the component states of the Commonwealth’.40 Hume et al agree that the majority in Williams used an approach to constitutional in Hume, Lynch and Williams, above n 5, 82. Ibid. 38 Shipra Chordia, Andrew Lynch and George Williams, ‘Williams v Commonwealth: Commonwealth Executive Power and Australian Federalism’ (2013) 37 Melbourne University Law Review 189, 215. 39 Ibid 216. 40 Williams v Commonwealth (2012) 248 CLR 156, 178 [1]. 36 37

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terpretation that was ‘federalism-reinforcing’.41 The considerations of constitutional structure, coherence and their willingness to read limitations into generally expressed powers without reference to a clear constitutional source in Williams represented a dramatic shift from Work Choices.42 It is even suggested that French CJ’s stance on state power comes very close to resurrecting the reserve state power doctrine.43 2

Gummow, Bell, Hayne, Crennan and Kiefel JJ

The majority’s ruling on whether the government’s chaplaincy program could be supported by the implied nationhood power can also be viewed as federalism-reinforcing. Following the test from Pape,44 the executive is allowed to engage in those enterprises and activities ‘peculiarly adapted to the government of a nation and which cannot otherwise be carried on for the beneﬁt of the nation’ or ‘peculiarly within the capacity and resources of the Commonwealth Government’.45 It was held that the chaplaincy program did not satisfy this test. The reasoning behind this conclusion was underpinned by ‘a conception of federalism that considered the state activity in determining the scope of s 61’.46 Gummow and Bell JJ held that the Queensland government had the legal and practical capacity to provide for the chaplaincy scheme, and that the public school system was the responsibility of the state.47 Kiefel J agreed that the funding scheme was ‘the province of the states… and not within a discernible area of Commonwealth responsibility’.48 Crennan J also held that there was no evidence to suggest that the Commonwealth executive was ‘the arm of government exclusively, best or uniquely authorised to act’ in the circumstances.49 These judgments were noted for using the historical exercise of state responsibilities to determine the scope of the impugned power.50 Such reasoning conﬂicts with the majority view in Work Choices, where it was held that using the framers’ intention diverts the court from their role of interpreting the text according to established principles.51 Hume, Lynch and Williams, above n 5, 74. Ibid. 43 Ibid 77. 44 Pape v Commonwealth (2009) 238 CLR 1. 45 Ibid 63 [133] (French CJ), 91-2 [241]-[242] (Gummow, Crennan and Bell JJ). 46 Hume, Lynch and Williams, above n 5, 78. 47 Williams v Commonwealth (2012) 248 CLR 156, 215 [146]. 48 Ibid 309 [594]. 49 Ibid 293 [503]. 50 Hume, Lynch and Williams, above n 5, 79. 51 Work Choices (2006) 229 CLR 1, 97 [120]. 41 42

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Relying on s 96 to read down s 61 in Williams has also been characterised as ‘federalism-reinforcing’.52 Informing this interpretation was Barwick CJ’s comments on the ‘consensual side’ to s 96 grants: ‘a grant under s 96 with its attached conditions cannot be forced upon a State, the State must accept it with its conditions’.53 This was relied upon by Gummow and Bell JJ,54 Crennan J55 and Hayne J.56 The importance given to the ‘consensual side’ of s 96 by their Honours has been viewed as a conception of federalism involving state sovereignty and sufﬁcient autonomy to determine the occasions and conditions with which states will participate in Commonwealth schemes.57 Reading down of s 61 in light of s 96 is also in tension with the majority’s refusal to rely on s 51(xxxv) to read down s 51(xx) in Work Choices.58 C

Intention of the Constitutional Framers

The Commonwealth submitted that the executive had power to enter into contracts on matters that could be the subject of legislation, even if such legislation had not been enacted. While acknowledging that the drafting history of s 61 gave some support to this submission,59 French CJ nevertheless dismissed it. Citing Andrew Inglis Clarke,60 His Honour concluded that there was insufﬁcient evidence to uphold the view that the Constitution’s framers ‘shared a clear common view of the working of executive power in a federation’61 and especially that s 61 supported the executive entering into contracts and spending without statutory authority in s 51.62 The rest of the majority agreed with this view.63

Hume, Lynch and Williams, above n 5, 79. Victoria v The Commonwealth and Hayden (the ‘AAP case’) (1975) 134 CLR 338, 357. 54 Williams v Commonwealth (2012) 248 CLR 156, 215-216 [148]. 55 Ibid 293 [501]. 56 Ibid 237-238 [247]-[248]. 57 Hume, Lynch and Williams, above n 5, 79. 58 Work Choices (2006) 229 CLR 1, 123 [204]. 59 Williams v Commonwealth (2012) 248 CLR 156, 189 [40]. 60 Ibid 192 [50]. 61 Ibid 194 [56]. 62 Ibid 195 [60]. 63 Ibid 211 [125]-[127] (Gummow and Bell JJ), 299 [542] (Crennan J), 224-225 [194] (Hayne J), 303-4 [565]-[566] (Kiefel J). 52 53

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COMPARING CONSTITUTIONAL INTERPRETATION IN WORK CHOICES AND WILLIAMS

Aroney argues that Work Choices presents something of a paradox. On one hand, it could be viewed as a dramatic upheaval of conventional views on Commonwealth legislative power and the federal balance. Conversely, the decision has also been considered unsurprising given the long line of established authorities relied on by the majority.64 The latter view seems slightly more accurate given the majority’s strict adherence to orthodox principles of constitutional interpretation. The majority stressed that before regard may be had to constitutional structure and coherence, or notions of federalism, it is necessary to identify what the content of those notions consists of, and to identify the constitutional text upon which they are founded.65 It was held by their Honours that if a provision is to be read in light of another provision in the Constitution, it should be read by reference to the words only and not some ‘paraphrase’66 of what that provision might mean. By contrast, one of the more signiﬁcant features of the Williams was the majority’s willingness to rely on considerations of constitutional structure and coherence in determining the ambit of Commonwealth power. Whereas the majority in Work Choices held that ‘to say that the Constitution is to be read as one coherent document merely occasions further inquiry with respect to the particular issue to be determined’.67 The decision in Work Choices can thus be viewed as arguing that each conferral of power is to be read fully on its own terms. By contrast, Williams may be understood as a decision strongly underpinned by a concern for ‘constitutional coherence’, similar in spirit to the dissenting judgments in Work Choices.68 Hume et al viewed the Work Choices approach to constitutional structure and coherence as ‘unequivocally centralising’.69 It requires positively-conferred Commonwealth powers to be read with full generality and without regard to the possible political and federal consequences of doing so. It is argued that this creates difﬁculty as a litigant who submits that an impugned provision should be read down on the basis of constitutional structure, as they would bear the onus of identifying the textual Aroney, above n 13, 3. Work Choices (2006) 229 CLR 1, 120-1 [196]. 66 Ibid 89 [94]. 67 Ibid 72 [52]. 68 Hume, Lynch and Williams, above n 5, 90. 69 Ibid 88. 64 65

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basis and nature of the structural principle said to justify the reading down.70 This approach is also drawn from the majority’s view in the Engineer’s Case: ‘it rests upon those who rely on some limitation or restriction upon the power, to indicate it in the Constitution’.71 At least in relation to the interpretation of executive power, Hume et al consider Williams to be a significant winding back of this approach.72 Despite its differences with s 51, s 61 is also a positive conferral of power upon the Commonwealth expressed in general terms.73 Unlike the majority in Work Choices, this positive conferral of power was not read with all the generality which the words used admit, nor was the wider meaning of the impugned power. Furthermore, the majority in Williams not only referred to federalism as a general consideration in constitutional interpretation, but did so without clearly stating the specific content of this concept, nor its specific location in the Constitution.74 Where Work Choices held that a proposition that a particular interpretation of the Constitution should not be used for fear of altering the federal balance, Williams took an opposite stance. It was held in Work Choices that to be valuable, ‘the proposition must have content, and the plaintiffs have not attempted to define that content’.75 By contrast, the majority in Williams read down s 61 on the possibility that it would compromise a ‘truly federal government’76 without defining the content of the federal balance. It is even suggested that Williams may have been a consequence of Work Choices.77 The breadth of legislative power recognised in Work Choices meant that if the executive did enjoy a general extra-statutory power to spend and contract provided it could be authorised by a hypothetical Act, it would be an extremely broad power. The potential breadth of that power may have been considered by the Court in Williams, warranting a narrowing of executive power.78 If that suggestion is true, it further distinguishes the approaches to constitutional interpretation in Work Choices and Wil Ibid. Amalgamated Society of Engineers v Adelaide Steamship Co Ltd 28 CLR 129, 154 (Knox CJ, Isaacs, Rich and Starke JJ). 72 Hume, Lynch and Williams, above n 5, 89. 73 Ibid. 74 Ibid; Williams v Commonwealth (2012) 248 CLR 156, 224 [192] (Hayne J); 307 [581] (Kiefel J). 75 Work Choices (2006) 229 CLR 1, 120 [196]. 76 Williams v Commonwealth (2012) 248 CLR 156, 217 [83]. 77 Hume, Lynch and Williams, above n 5, 86. 78 Ibid, 92. 70 71

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liams, given how differently the two decisions considered, and indeed affected, the federal balance. VII

CONCLUSION

For several reasons, the majority judgments in Work Choices and Williams do not represent a coherent approach to constitutional interpretation. Primary among these are the divergent use of orthodox principles, considerations of federal balance, reliance on the intention of the Constitution’s framers and considerations of constitutional structure and cohesion. Work Choices strictly upheld the orthodox approach to interpretation from authorities such as the Engineer’s Case. The majority in Work Choices also criticised reliance on considerations of federal balance, the intentions of the framers, and constitutional coherence. By contrast, the majority in Williams placed signiﬁcant importance on federalism, the framers’ intention, and coherence. While it may be too early to tell which case has left a greater mark on the court’s canon of constitutional interpretation, Williams is a compelling argument that federalism still has a role to play.

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Daniel McCluskey

THESE AREN’T THE [DECISIONS] YOU’RE LOOKING FOR’: JUDICIAL REVIEW POST TANG - TURNING TO THE DARK SIDE? DANIEL MCCLUSKEY* In Grifﬁth University v Tang (2005) 221 CLR 99, Kirby J stated: ‘For the second time in less than two years, this Court adopts an unduly narrow approach to the availability of statutory judicial review directed to the deployment of public power. The Court did so earlier in NEAT Domestic Trading Pty Ltd v AWB Ltd (128)... Correctly in my opinion, NEAT Trading has been described as a ‘‘wrong turn’’ in the law...Now, the error of approach, far from being corrected, is extended. This constitutes an erosion of one of the most important Australian legal reforms of the last century.’ This essay seeks to engage with the normative and primary claims underlying the quote from Justice Kirby. The author agrees with his honour’s primary claim that the decisions in NEAT and Tang represent both an erosion of the important reforms to Australian Administrative Law ushered in by the Administrative Decisions (Judicial Review) Act 1977 (Cth); and missed opportunities to clarify the public/private distinction in judicial review. However, the author does not agree with his honour’s normative claim that the decisions are deﬁcient for their lack of engagement with the political and meritocratic context.

INTRODUCTION

‘I could never get out of my mind the notion that the law of Australia is basically an instrument of justice. That its invariable tendency is to bend towards equal justice for all’.1 ‘It may be that the Court is thought to be excessively legalistic. I should be sorry to think that it is anything else. There is no other safe guide to judicial decisions in great conﬂicts than a strict and complete legalism’.2

In the original Star Wars, a Jedi knight uses a ‘mind trick’ to persuade gullible guards * Daniel is a ﬁnal year Juris Doctor student. He also holds a Bachelor of Arts (Hons) from The University of Western Australia. 1 Justice Michael Kirby, Judicial Farewell (2 February 2009) High Court of Australia <http://www.hcourt. gov.au/assets/publications/speeches/former-justices/kirbyj/kirbyj_2feb09.pdf>. 2 Sir Owen Dixon, ‘Address Upon Taking the Oath of Ofﬁce in Sydney as Chief Justice of the High Court of Australia on 21st April, 1952’ in Severin H Woinarski (ed), Jesting Pilate and Other Papers and Addresses (The Law Book Company, 1965) 247. 24

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that the fugitive robots accompanying him are ‘not the droids you’re looking for.’ With this simple utterance, good prevails and evil is thwarted. Judicial statements, though lacking mind control’s appeal, often thinly veil a battle between competing normative positions on both what and why the law should be. I believe, to agree or otherwise with Kirby J’s statement in Grifﬁth University v Tang3 (‘Tang’), requires two levels of analysis: •

•

Firstly, the primary claims he makes regarding the law of judicial review’s direction and its relationship to its most signiﬁcant reform, the Administrative Decisions (Judicial Review) Act 1977 (Cth) (‘ADJRA’). Secondly, the normative position underlying Kirby J’s statement, evidenced by the terms ‘unduly’ and ‘wrong.’

I conclude that, whilst I readily agree with Kirby J’s primary claims, his honour’s normative position makes assumptions about the role of the courts in modern administrative law with which I do not agree. II

THE PRIMARY CLAIMS

Justice Kirby’s statement in Tang referring to both that decision and NEAT v AWB4 (‘NEAT’) as a ‘“wrong turn” in the law’ and, ‘an erosion of one of the most important Australian legal reforms,’ invites two further inquiries: 1. 2.

What was turned away from? What ADJRA purpose has been eroded?

His Honour’s footnotes in the passage make his intended answers clear: 1. 2.

‘[B]roader engagement by the High Court with the public/private distinction’5 in the law of judicial review. The creation of a ‘a single simple form of proceeding in the Federal Court of Australia for judicial review of Commonwealth administrative actions as an alter-

(2005) 221 CLR 99. (2003) 216 CLR 277. 5 Christos Mantziaris ‘A “Wrong Turn” on the Public/Private Distinction: NEAT Domestic Trading Pty Ltd v AWB Ltd’ (2003) 14 Public Law Review 197, 198. 3 4

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native to the [then] present cumbersome and technical procedures for review’.6

Broader Engagement

Successfully arguing that Australian courts have embraced broader engagement with the public/private power distinction seems implausible. Only Kirby J in NEAT has referenced the leading English decision in Datafin7 in the High Court.8 Basten JA, more recently in Chase Oyster Bar9 traces judicial consideration of Datafin in Australian courts,10 concluding that ‘there is an absence of authority in Australia addressing the question of whether or not Datafin applies’.11 Each cited decision avoids applying Datafin with its focus upon the nature, not the repository, of the power rendering decisions of otherwise ‘private’ bodies susceptible to public law remedies.12 B

Simpler Alternative

The ADJR bill’s second reading speech,13 and the ADJRA’s simplified structure, evince a clear intention to bring judicial review to a wider segment of the community through codification without ossification,14 and simplification with attendant cost benefits. I have uncovered no source claiming the Tang decision has aided these goals.15 Tang seems, at the very least, to have generated considerable confusion regarding just what kind of,16 and who’s17 legal rights and obligations must be affected to satisfy ADJRA’s Commonwealth, Parliamentary Debates, House of Representatives, 28 April 1977, 2 (Bob Ellicott). [1987] QB 815 (‘Datafin’). 8 NEAT Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277, 300 [68], 313-4 [112]–[113], 314 [115], 315 [119] (Kirby J); point also noted in Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSLWR 393, 411-2 [77] (Basten JA) (‘Chase’). 9 (2010) 78 NSLWR 393. 10 Chase (2010) 78 NSLWR 393, 411-3 [74]–[81]. 11 Ibid [81]. 12 Datafin [1987] QB 815, 847 (Lloyd LJ). 13 Commonwealth, Parliamentary Debates, House of Representatives, 28 April 1977, 2 (Bob Ellicott). 14 Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5(1)(j), 6(1)(j). 15 See Mark Aronson ‘Private Bodies, Public Power and Soft Law in the High Court’ (2007) 35 Federal Law Review 1, 2 n 6 for a list of at least 25 articles critical of the Tang majority. More recently Anthony Cassimatis ‘Judicial Attitudes to Judicial Review: A Comparative Examination of Justifications Offered for Restricting the Scope of Judicial Review in Australia, Canada and England (2010) 34 Melbourne University Law Review 1. 16 See discussion in Mark Aronson and Matthew Groves, Judicial Review of Administrative Action (Lawbook Co., 2013) 100. 17 Ibid 93; Guss v Commissioner of Taxation (2006) 152 FCR 88, 100 [38] (Edmonds J), 103-6 [58]–[69] (Greenwood J). 6 7

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‘decision …made …under an enactment’ requirement.18 The resort to the Constitutional concept of ‘matter’ has been critiqued as highly problematic.19 ADJRA’s goal was simpliﬁcation and broadening of access to judicial review, Tang has almost certainly not aided that cause.20 III

THE NORMATIVE POSITION

A more fundamental question is whether one agrees with the normative position underpinning Kirby J’s comment that, put simply, the majority position in Tang was undue and wrong. I will explore ﬁrst his honour’s normative position, then turn to some alternatives. A

Kirby J’s Position

Justice Kirby has never hidden his view that the primary goal of the law is justice.21 If this means an uncomfortable engagement with policy then so be it.22 His Honour’s ‘wrong turn’ refers to an article where author Christos Mantziaris states: ‘[the High Court] must sometimes mak[e] normative judgments about the proper functions of the state and [the] appropriate form of control over the exercise of power’ and that this means ‘courts must take greater account of movements within the political realm’.23 More recently, with Leighton McDonald, the authors ‘applaud’ Kirby J’s exploration and weighing of the competing policy considerations attendant upon the judicial review of administrative action across the public/private divide.24 The normative position underpinning these views can be summarized thus:

Administrative Decisions (Judicial Review) Act 1977 (Cth) s 1(a). Christos Mantziaris and Leighton McDonald ‘Federal Judicial Review Jurisdiction After Griffith University v Tang’ (2006) 17 Public Law Review 22, 32–41; see also Graeme Hill, ‘Griffith University v Tang - Comparison with NEAT Domestic, and the Relevance of Constitutional Factors’ (2005) 47 Australian Institute of Administrative Law Forum 6. 20 Rebecca Heath has argued that Tang’s rejection of proximity as a test of connection between the enactment and the decision ‘may have slightly broadened the scope of ADJRA review.’ Rebecca Heath, Untangling Tang: Has Griffith University v Tang Altered the Availability of ADJR Act Review? (LLB Honours Thesis, The University of Western Australia, 2007) 43–46, 52. 21 Justice Kirby, above n 1, for his last judicial statement to this effect. 22 His Honour’s judgments in Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 on the role of international law, and Garcia v National Australia Bank Ltd (1998) 194 CLR 395 on the ‘outmoded’ resort to ‘wife’s special equity’ are but a few prominent and diverse examples. 23 Mantziaris, above n 5, 200. 24 Mantziaris and McDonald, above n 19, 47. 18 19

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•

The law is a creature of policy and competing assumptions about what is right.

•

Judges must directly engage with this reality.

•

Legalism and technicality should not be hidden behind in lieu of this engagement. B

Separation Anxiety: The Spectre of Marbury?

Mantziaris, in support for this position quotes the majority in Enfield v Development Assessment Commission25 a highly technical decision on the doctrine of jurisdictional fact. 26 The doctrine has been said to let courts assume a merits evaluation role typically reserved to non-judicial bodies, and whose decision the court can substitute with its own.27 In the cited passage, Kirby J joins Gleeson CJ, Gummow and Hayne JJ, noting that adherence to the judiciary’s declaratory role first expounded in Marbury28 is not an abdication of the Court’s ‘control over administrative interpretation of legislation’.29 The majority immediately quote with favour Henry Monaghan stating, distinguishing the flexibility applied to Constitutional matters from the relative rigidity of judicial review of administrative action which ‘stands on a different footing from constitutional adjudication’ in so far as there are ‘alternative methods both political and administrative …[to] confine agencies within bounds… the judicial duty is to ensure that the administrative agency stays within [its statutory] zone of discretion’.30 Then follows citation of Brennan J in Quin31 distinguishing legality from merits32 and Mason CJ’s warning in Peko-Wallsend33 that ‘[t]he limited role of a court [in] reviewing the exercise of an administrative discretion must constantly be borne in mind’.34 Thus in the same reference, evidence is exhibited of a very different normative position: (2000) 199 CLR 135, 152-3 [43]. Mantziaris, above n 5. 27 Robin Creyke and John McMillan ‘Control of Government Action’ (LexisNexis Butterworths, 2012) 348, [7.2.28]–[7.2.30]. 28 (1813) 5 US 137. 29 Enfield (2000) 199 CLR 135, 153. 30 Ibid. 31 (1990) 170 CLR 1. 32 Ibid citing A-G (NSW) v Quin (1990) 170 CLR 1, 36. 33 (1986) 162 CLR 24. 34 Enfield (2000) 199 CLR 135, 154 citing Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 40. 25 26

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•

The Constitutionally mandated separation of powers renders determinations on the legality of government action the sole responsibility of the

• •

judiciary.35 This is a great power and a grave responsibility. To introduce meritocratic (read policy and political) considerations into this domain would usurp the power of the legislature, upsetting the constitutionally mandated separation. C

To Each their Own: Parliament Supreme

Keane J’s36 defence of Tang further evidences this position and conﬁrms the supremacy of Parliament within its domain. His Honour has two broad themes on the appropriate role of judicial review of public power: 1.

The law is, and always has been, fundamentally concerned with the protection of legal rights and interests, and the determination of rights and liabilities. That the courts would seek to conform judicial review of public power to this long-standing approach should come as no surprise.37 NEAT and Tang represent the appropriate limits of judicial review in the face of the ‘ultimate power’ of Parliament.38

His Honour describes NEAT as ‘a decision which reﬂects the ultimate power of Parliament, subject to the Constitution, to avoid the occasion of judicial review’.39 Mantziaris might respond that this doctrinal approach is precisely the kind of abdication of genuine engagement with the policy and political considerations he urges judges to eschew. Keane J comes closest to such engagement when he makes implicit reference to Parliament’s democratic and representative role. His Honour’s ﬁnal line is telling: ‘[p]ublic authorities represent communities; communities have rights too’.40 This R v Kirby; Ex parte Boilermakers’ Society of Australia (1956)94 CLR 254; A-G (NSW) v Quin (1990) 170 CLR 1; see also Stephen Gageler ‘The Underpinnings of Judicial Review: Common Law or Constitution?’ (2000) 28 Federal Law Review 303, 306–12. 36 At the time of writing a Judge of the Queensland Court of Appeal. 37 Justice Patrick Keane, ‘Judicial Review: The Courts and the Academy’ (2008) 82 Australian Law Journal 623, 633–4. 38 Ibid 635. 39 Ibid. 40 Ibid. 35

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potentially disturbing nod towards majoritarianism is tempered somewhat by a brief reference to judicial review as not ‘the only mechanism for ensuring public accountability, much less …the best available mechanism’.41 On the issue of democratic legitimacy, it is worth noting that the Administrative Review Council has advised successive Attorneys-Generals on appropriate reforms to the ADJRA to either harmonise with more progressive developments in the common law (198942 and 201243 removal of the ADJRA’s blanket exclusion of the Governor-General) or broaden the range of decisions to which the act would apply (1989 addition of publicly funded decision-makers).44 Those who share Keane J’s normative position with its narrow adherence to the separation of powers, may remark that the people, through their democratic representatives, have had multiple opportunities to broaden the scope of judicial review through statutory amendment and declined every time. Any dissatisfaction with the law’s state is appropriately directed to these political representatives, not the judiciary. These same representatives have overseen a signiﬁcant expansion of the scheduled exclusions to the ADJRA in recent years.45 D

McMillan: Separation Re-think

John McMillan explores a number of possible updates to the narrow separation of powers position. The former Commonwealth Ombudsman, writing post-Tang, expands upon Keane J’s point that courts often represent a sub-optimal mechanism for accountability of the exercise of public power.46 He notes that courts are far and away the smallest contributors by workload, and increasingly, by inﬂuence in this task.47 McMillan mildly chides academics and the judiciary for their ‘obeisance to the

Justice Keane, above n 36, 633. Administrative Review Council (‘ARC’), Review of the Administrative Decisions (Judicial Review) Act: the Ambit of the Act, Report No 32 (1989) 46–7. 43 ARC, Federal Judicial Review, Report No 50 (2012) 108–111. 44 ARC, Review of ADJRA, above n 41, 40–1. 45 Aronson and Groves, above n 16, 63–5. 46 Justice Keane, above n 36, 633. 47 John McMillan, ‘Re-thinking the Separation of Powers’ (2010) 38 Federal Law Review 423, 427–8. 41 42

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elite role of courts’.48 He then charts the growth in size and inﬂuence of the various administrative tribunals, ombudsmen and other complaint resolution mechanisms. He concludes that placing non-judicial mechanisms of accountability within the executive branch is illogical49 and however framed, the tripartite separation of powers has been overtaken by reality.50 Importantly for present purposes, McMillan does not suggest an expanded role for courts: quite the opposite.51 McMillan notes that ‘few if any’ articles critical of Tang mention the availability of ombudsmen in cases just like Ms Tang’s.52 He suggests three new conceptual approaches to the separation of powers,53 without endorsing any one theory, including a conceptual 4th integrity arm of government.54 Thus a new formulation of the normative position (one I personally agree with) might be: •

•

Australia’s constitutionally mandated separation of powers renders determinations on the legality (but not the merits) of government action the sole province of the judiciary. There is considerably more to accountability in the exercise of public powers than determinations of legality: parties usually seek new decisions not just invalidation of the original ones. It serves the community’s best interest in holding government administration to account to empower and preference the non-judicial bodies speciﬁcally adapted to that purpose.

It might be argued that increasing reliance upon non-judicial bodies represents the courts’ failure as much as the former’s success. Underpinning this argument is the assumption that only judicial power (only properly exercised by courts) can ever truly and effectively hold government to account.55 I would argue that the High Court has demonstrated sufﬁcient ﬂexibility in its approach to the power of non-judicial

Ibid 426. Ibid 438. 50 Ibid 443. 51 Ibid 426. 52 Ibid. 53 Ibid 438–442. 54 Ibid 440–1. 55 Ibid. 48 49

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accountability bodies, that after some initial setbacks (Brandy56and Fourmile v Selpam57) a balance has been struck (Breckler58 and Alinta59) such that these bodies have the requisite power to satisfactorily deal with the vast majority of applications coming before them.60 IV

CONCLUSION

I agree with Mark Aronson that the Tang majority’s description of the nature of Ms Tang’s relationship with the university as merely consensual, is ‘breathtaking’.61 But judicial review is a grave option. Given the law’s complexity in this area, calculated or not, it was a risky proposition.62 I too would like the Court to more thoroughly engage with, and clarify the public/private distinction. Though unsatisfying in this regard, the NEAT majority expressly quarantined its decision from this broader issue.63 Whilst disquieted over Tang’s personal consequences, my task has been to examine and contrast the underlying normative assumptions leading Kirby J to label it wrong and undue. I want rigorous mechanisms of government accountability. I believe judicial review, capable of rendering whole legislative schemes invalid, represents the most powerful such mechanism. But I believe Kirby J’s position would see the judicia-

Brandy v Human Rights & Equal Opportunity Commission (1995) 183 CLR 245: striking down an ill-conceived attempt to give Commission’s determinations the imprimatur of judicial orders through a mere ‘rubber stamp’ registration process. 57 Fourmile v Selpam Pty Ltd (1998) 80 FCR 151: striking down the Native Title Tribunal’ enforcement powers. 58 A-G (Cth) v Breckler (1999) 197 CLR 83: afﬁrming the validity of determinations of the Superannuation Complaints Tribunal (Vic) created the ‘factum by reference to which’ curially enforceable rights and obligations were created – it did not exercise judicial power in its own right. 59 A-G (Cth) v Alinta Ltd (2008) 233 CLR 542: holding valid the enforceability of orders of the Takeovers Panel (Cth) due to the unsuitability of the matters before the panel for judicial consideration and fact that orders for enforcement were only to be awarded by a court independently exercising judicial power. 60 Administrative Appeals Tribunal, ‘Chapter 3: Our Performance’ Annual Report 2012–13 (2013) 40 <http://www.aat.gov.au/docs/Reports/2013/AR2013-Chapter3.pdf>; and see also Robin Creyke, ‘Integrity in Tribunals’ (2013) 32 University of Queensland Law Journal 45, 52 for empirical evidence of executive views of tribunal performance. 61 Aronson, Private Bodies, Public Power, above n 15, 23. 62 Justice Keane, above n 36, 632–3. 63 NEAT (2003) 217 CLR 277, 297 [49]–[50]; see also Aronson, Private Bodies, Public Power, above n 15, 10–11. 56

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ry lose the most powerful card it has to play against sustained attacks64 upon its power: its independence. To this end, I cannot agree with his honour’s position. If NEAT and Tang were not the decisions the academy was looking for, I would suggest they have been looking in the wrong place.

Donna Field, ‘Expert Lashes Queensland Premier Campbell Newman’s ‘Reprehensible’ Swipes at Judicial System’ ABC News (online), 28 April 2014 <http://www.abc.net.au/news/2013-10-25/expert-lashes-newman27s-swipe-at-judicial-system/5047008>; Michael McKenna, ‘Campbell Newman says judges don’t understand Queenslanders have had enough’ The Australian (online) 27 April 2014 <http:// www.theaustralian.com.au/business/legal-affairs/campbell-newman-says-judges-dont-understand-thatqueenslanders-have-had-enough/story-e6frg97x-1226746320906>; Justice Michael McHugh, ‘Tensions between the Executive and the Judiciary’ (Speech delivered at the Australian Bar Association Conference, Paris, 10 July 2002) <http://www.hcourt.gov.au/assets/publications/speeches/former-justices/mchughj/ mchughj_paris.htm>.

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TALK IS CHEAP: THE CUSTOMARY LAW STATUS OF THE UN GENERAL ASSEMBLY’S RESOLUTIONS ON SOUTH AFRICAN APARTHEID LACHLAN GEDDES* This paper makes ﬁve propositions. First, UN action is ultra vires where an intervention occurs in the domestic jurisdiction of a state and it is not permitted by international law. Second, the UN General Assembly’s (Assembly)’s resolution on apartheid in South Africa constituted an ‘intervention’. Third, the appropriate position on the customary status of Assembly resolutions is that resolutions can evidence state practice and opinio juris but cannot generate Customary International Law (CIL) per se. Fourth, applying this methodology to the apartheid resolutions establishes a clear opinio juris in resolutions beginning in the mid 1960s, but the absence of consistent state practice independent of these resolutions meant that a prohibition against apartheid did not crystallise into a norm of CIL until the mid 1980s. Fifth, a consequence of a rejection of the ‘instant custom’ theory is that the Assembly cannot establish customary international law on matters within a state’s domestic jurisdiction where no practice or evidence of opinio juris previously exists.

INTRODUCTION

An understanding of the morally repugnant apartheid policies implemented by the South African Government for almost half of the twentieth Century, and of the forceful statements made by the world community in the United Nations General Assembly during that time, conceivably motivates a presumption that a norm of customary international law prohibiting apartheid is long-established. An analysis of the history of apartheid, and of these resolutions will show that this is not the case. Consequential upon rejecting a theory of instant custom is a conclusion, mandated by the lag between these resolutions and more substantive state practice, that such a prohibition did not crystallise into a norm of customary international law until the mid 1980s.

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Talk is Cheap: The Customary Law Status of the UN Assembly’s Resolutions on South African Apartheid

APARTHEID: POLICY AND RESOLUTIONS A

Policy

‘Apartheid’ is an Afrikaans term meaning ‘separateness’.1 It identifies a system of racial segregation promulgated by South African government from 1948 to 1993. It was a system whereby “the non-white population [of South Africa were] reduced to permanent political, social, economic and cultural inferiority” in virtually all aspects of life.2 Apartheid extended and institutionalised segregation existent in South Africa since Dutch colonisation.3 Apartheid legislation comprised ‘grand apartheid’ and ‘petty apartheid’.4 ‘Grand apartheid’ facilitated racial segregation and disenfranchisement on a larger scale. Its key elements were: first, the formal classification of the population into four racial groups: White, Black, Indian and Coloured. 5 Second, the separation and forced resettlement of these groups into designated areas of the country.6 Third, restricting freedom of movement by requiring non-white citizens to carry a ‘passbook’, verifying

* Lachlan is a final year Bachelor of Laws and Bachelor of Commerce student. 1 J Kwame S Feimpong and Sylvanus A Tiewel, ‘Can Apartheid Successfully Defy the International Legal System?’ (1997) 5 National Black Law Journal 287. 2 Secretary-General of the International Commission of Jurists quoted in Report on South Africa 6 United Nations Security Council 1960. 3 Alexander Laverty, Impact of Economic and Political Sanctions on Apartheid (7 June 2007) The African File <http://theafricanfile.com/politicshistory/impact-of-economic-and-political-sanctions-on-apartheid/>. 4 Robert S McNamara, Before It’s Too Late in South Africa (14 August 1985) The New York Times <http:// www.nytimes.com/1985/08/14/opinion/before-it-s-too-late-in-south-africa.html>; Bray, Roddy, Apartheid: Petty Apartheid Roddy Bray’s Guide to Cape Town <http://www.capetown.at/heritage/history/apart_ petty.htm>. 5 Population Registration Act 1950 (South Africa) established a formal policy of racial classification and required a person to be registered in accordance with his or her racial characteristics. 6 Non-white South Africans were forcibly ‘resettled’ into designated areas of the country. These homelands were granted ‘independence’ by the South African government, allowing new ‘citizens’ to be stripped of their South African citizenship: see for example Group Areas Act 1950 (South Africa) (and following Acts) which assigned certain residential and business sections in urban areas to corresponding racial groups; Bantu Authorities Act 1951 (South Africa), Promotion of Black Self-Government Act 1959 (South Africa) and Bantu Self-Government Act 1959 (South Africa) which established and extended provision for separate government administration for blacks and whites via a system of ‘homelands’. See also Prevention of Illegal Squatting Act 1951 (South Africa) which facilitated the demolition of black shantytowns. (2016) 25 The Onyx Journal 34

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their reason for being outside their designated area.7 Fourth, the disenfranchisement of non-white citizens.8 Fifth, the use of coercive force to achieve the objectives of apartheid.9 ‘Petty apartheid’ was a policy that segregated everyday life where racial interaction occurred. It regulated interracial contact and segregated public facilities and transport.10 Internal resistance in South Africa eventually prevailed and apartheid was dismantled between 1990 and 1993.11 B

Resolutions

The Assembly has the power to discuss and make recommendations on any matter within the scope of the Charter.12 During the period of apartheid, the Assembly and

Natives (Urban Areas) Consolidation Act 1945 (South Africa) outlined requirements for African peoples’ ability to reside legally in white metropolitan areas. It was amended by the Black (Natives) Law Amendment Act 1952 (South Africa) to require all black people over the age of 16 to carry a pass. The Natives (Abolition of Passes and Co-ordination of Documents) Act 1952 instituted a single nationwide pass law, requiring black South Africans to carry a ‘pass book’, similar to a passport, at all times in white areas The Pass Laws have been credited as “the key-stone to the successful implementation of the practice of apartheid” because they enabled policemen to check a person’s race and verify whether they had an official reason for being in a certain racial area, under punishment of jail or flogging: Feimpong, above n 1, 287. 8 Separate Representation of Voters Act 1956 (South Africa). 9 Dissidence was labelled ‘communism’ and enabled unprecedented arrest powers and the banning of certain gatherings and organisations: Suppression of Communism Act 1950 (South Africa) aimed to suppress resistance to apartheid, by allowing dissidence to be labelled ‘communism’. The consequence was the ability for the government to ban gatherings and certain organisations and to arrest a person suspected of being a threat to the apartheid ideology, without warrant. Associated with each of these developments was an expansion in government power: after judicial review struck down a the Separate Representation of Voters Bill 1951 (South Africa) and the Court of Parliament Bill 1952 (South Africa), which was to give Parliament power to overrule decisions of the Appeal Court, the Strijdom government increased the Appeal Court bench to 11 and appointed pro-Nationalist Party judges. See for example Feimpong above n 1, 291. 10 Non-whites were provided with services of an inferior standard to whites. Jean Burdzik and David Van Wyk, ‘Apartheid Legislation 1976-1986’ [1987] Acta Juridica 119, 161. See for example the Separate Amenities Act 1953 (South Africa), the Native Laws Amendment Act 1957 (South Africa) which prohibited Africans from going to church services in white areas (although it was not enforced), the Prohibition of Mixed Marriages Act 1949 (South Africa) (an element of grand apartheid according to some authors), the Immorality Amendment Act 1950 (South Africa) which prohibited ‘unlawful racial intercourse’ and the Industrial Consolidation Act 1956 (South Africa) which prohibited mixed race trade unions. The Bantu Education Act 1953 (South Africa) furthered educational segregation already in effect by social custom and law prior to the rise of the National Party. 11 South African History Online, United Nations and Apartheid Timeline 1946 – 1994 (20 March 2011) South African History Online <http://www.sahistory.org.za/topic/united-nations-and-apartheid-timeline-1946-1994>. 12 United Nations Charter Article 10; subject to restrictions in Article 12, qualifications in Article 11 (1) and Article 13 (1). 7

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Talk is Cheap: The Customary Law Status of the UN Assembly’s Resolutions on South African Apartheid

the Security Council made numerous resolutions about apartheid.13 Starting in 1950, these resolutions initially expressed concern about apartheid and urged South Africa to change its course. 14 In the 1960s, the Assembly’s approach hardened: appealing to members to do all within their power to cause South Africa to yield, 15 afﬁrming that apartheid violates the Charter and is a threat to international peace and security, 16 and urging members to break off diplomatic relations and close their borders to South Africa.17 These resolutions were often repeated in similar terms year on year and were approved in increasing numbers:18 support for South Africa’s position waned in the light of condemnation of Western policies of ‘constructive engagement’ with the Pretoria regime.19 A number of resolutions condemned apartheid as a crime against humanity.20 In 1979, the Assembly called upon its members to cease economic, nuclear and sporting collaboration with South Africa and to refrain from supporting the regime.21 These resolutions continued throughout the 1980s and 1990s until apartheid was abolished.22 In response to these resolutions, South Africa ﬁrst purported to rely on article 2(7), claiming that the Assembly’s actions contravened the principle of non-interven-

GA Res 395 (V) 1950; GA Res 616A (VII) 1952; GA Res 616B (VII) 1952; GA Res 721 (XVII); GA Res 820 (IX); GA Res 917 (X); GA Res 1016 (XI); GA Res 1178 (XII); GA Res 1248 (XIII); GA Res 1357 (XIV) (November 17, 1959); GA Res 1375 (XIV); GA Res 1564 (XV) 1960; GA Res 1593 (XV) 1961; GA Res 1598 (XV) 1961; GA Res 1761 (XVII) 1962; GA Res 1881 (XXII) 1963; GA Res 1978 (A) (XVIII) 1963; GA Res 2074 (XX) 1965; GA Res 2145 (XXI) 1966; GA Res 2202 (XXI) 1966; GA Res 2324 (XXII) 1967; GA Res 2396 (XXIII) 1968; GA Res 2439 (XXIII) 1968; GA Res 2547 (XXIV) A;; GA Res 2626 (XXV) 1970; GA Res 2671 (XXV) 1970; GA Res 2625 24 October 1970; GA Res 2647 (XXI) 1970; GA Res 2764 (XXXI) 1971; GA Res 2775; GA Res 3207 (XXIX) 1974; GA Res 3411 C (XXX) ; GA Res 31/6A ; GA Res 32/105; GA Res 34/93; GA Res 39/72; GA Res 40/64 A; GA Res S-16/1 GA Res 44/24; GA Res 45/176A-H; GA Res 46/79A-F; GA Res 47 116A-G; GA Res 48/258A-B * Details required by AGLC rule 8.2 have been omitted due to the sheer number of resolutions. 14 GA Res 615 (VII), GA Res 820 (IX), GA Res 917 (X), GA Res 1016 (XI); GA Res 1178 (XII), GA Res 1248 (XIII), GA Res 1357, GA Res 1564 (XV). 15 GA Res 1593 (XV), GA Res 1598 (XV). 16 GA Res 1598 (XV), GA Res 1761 (XVII), GA Res 2202 (XXI). 17 GA Res 1761 (XVII), see also GA Res 1881 (XVIII) and 1978 (XVIII) which appeal to states to intensify efforts to shift South Africa’s course. See GA Res 2202 (XXI) which appealed to States to further restrict contact with South Africa. 18 GA Res 2671 (XXV) F, GA Res 31/6, GA Res 40/64. 19 GA Res 2396 (XXIII). 20 GA Res 2074 (XX), GA Res 2202 (XXI). 21 GA Res 34/93. 22 GA Res 44/24, GA Res 45/176A-H, GA Res 46/79A-F, GA Res 47 116A-G, GA Res 48/258A-B. After the abolition of apartheid, the Assembly removed apartheid from its agenda: GA Res 48/258. 13

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tion.23 South Africa withdrew from full participation in the UN between 1956 and 1958, protesting that its domestic affairs were being interfered with.24 The validity of this claim will be explored in the following section sections. III

ARTICLE 2(7)

The United Nations Charter is the foundational treaty of the United Nations. Its member are bound by each of its 111 articles. The principle of non-intervention as a rule governing relations between member states and the United Nations is set out in article 2(7).25 A number of points must be made in relation to this article. First, the result of this immunity is the preservation of a ‘reserved domain’ of state activity that is not regulated by international law.26 It was intended, in recognition of state sovereignty, to ensure that the UN does not have unlimited authority to determine members’ affairs.27 Article 2(7) represents a limitation on the powers of the General Assembly under article 9-22. Two contrary views exist about the appropriate authority to determine the UN’s competence to act. 28 The ﬁrst view, supported by evidence from the time of the establishment of the UN, is that the determinant is the state wishing to reply on article 2(7). 29 The view supported by the majority of publicists is that, on the basis of its practice,

General Assembly, Ofﬁcial Records, 7th Session (1952), Ad Hoc Political Committee, 13th Meeting [14]; General Assembly, Ofﬁcial Records, 7th Session, Plenary, 401st Meeting, [80]. UN SCOR 855th Meeting (1960); Dugard, C. J. R, ‘The Legal Effect of United Nations Resolutions on Apartheid’ (1966) 83 The South African Law Journal 44, 52; see also the position of South Africa in relation to the Security Council: s/538A, S 5438, 2. 24 South African History Online, above n, 11. 25 Kristen Walker, ‘An Exploration of Article 2(7) of the United Nations Charter as an Embodiment of The Public/Private Distinction in International Law’ (1993) 26 New York University Journal of International Law and Politics 173: Walker writes at 174 that Article 2(7) is a statement of a wider principle of non-intervention. 26 Ibid 175 quoting Ian. Brownlie, Principles of Public International Law (Clarendon Press, 1973) 284, 284-86. 27 Seventeenth Meeting of Committee 1/1 of the United Nations Conference on International Organization, San Francisco, 1945 (John Foster Dulles) cited in Walker above n 25, 177. 28 Müge Kmacioglu, ‘The Principle of Non-Intervention at the United Nations: The Charter Framework and the Legal Debate’ (2005) 10(2) Perceptions 15, 29. 29 See a discussion in Walker, above n 25, 177; Kmacioglu, above n 28, 28. 23

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the UN has determined itself to be the appropriate authority.30 This view should be preferred, given that the UN shows no indication of changing its position. ‘Domestic jurisdiction’ is not explained in article 2(7).31 The ICJ has stated that this is “an essentially relative question [that] depends upon the development of international relations”.32 A view that domestic jurisdiction is delimited by the development of international law accords with prevailing opinion amongst academics.33 The qualiﬁer ‘essentially’ constitutes a recognition that few issues are solely within a state’s domestic jurisdiction.34 What constitutes an ‘intervention’? A narrow and a broad view exist on this point. The narrow view is that an intervention for the purposes of article 2(7) is “dictatorial interference…amounting to the denial of the independence of the state”.35 The broad view is that any action outside of mere discussion and Chapter VII enforcement actions constitutes an intervention. 36 The narrow view deprives the article of effectiveness, leaving a wide range of actions that would not constitute an intervention. In light of this and evidence that the drafters of the Charter intended a broad interpretation, this construction should be preferred.37 In sum, the Assembly was the competent body to determine its authority to intervene in South Africa. The numerous resolutions of the Assembly went beyond a mere discussion and therefore constituted an intervention. Whether the Assembly was within power in its intervention will turn on whether there was a customary norm that states cannot institute apartheid policies. See for example Walker, above n 25, 177 citing Cancado Trinidade, ‘The Domestic Jurisdiction of States in the Practice of the United Nations and Regional Organizations’ (1976) 25 International and Comparative Law Quarterly 715, 723, 724, 730. 31 Cf art 15 (8) of the League of Nations Covenant that deﬁned the scope of ‘domestic jurisdiction’ by ‘international law’. 32 National Decrees Issued in Tunis and Morocco (Advisory Opinion) [1923] PCIJ Rep (ser B) 23, 24; Anglo Norwegian Fisheries [1951] ICJ Rep 116; Nottebohm (Liechtenstein v Guatemala) [1955] ICJ Rep 1, 4-20. 33 See for example Malcolm N Shaw, International Law (Cambridge University Press, 7th ed, 2014), 471; Walker, above n 25, 176 citing Ian. Brownlie, Principles of Public International Law (Clarendon Press, 1973) 284; Hans Kelsen, The Law of the United Nations (The Lawbook Exchange, 1950), 769. 34 Kmacioglu, above n 28, 29. 35 Hersch Lauterpacht, International Law and Human Rights (Archon, 1950) 169. 36 Walker, above n 25, 177-178. 37 Ibid 178. 30

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ASSEMBLY RESOLUTIONS AS CUSTOMARY LAW A

Customary Law

International custom is a recognised source of international law.38 It has a vital role where more formal sources of law are absent.39 A rule of customary law binds all in the international community, except a state that persistently objects during the formation of the norm. The ICJ has consistently emphasised the need for two separate elements to constitute a rule of customary international law (CIL): (1) sufficient state practice and (2) the manifestation of a conviction that the practice is required by international law (opinio juris).40 State practice must be of a sufficient duration and generality, but need not be universal.41 The practice of specially affected states is a significant factor. 42 Opinio juris requires that states taking action, or States in a position to react to it, behaved by evidencing a belief that the practice in question was made obligatory by a rule of law.43 Acknowledging the criticisms of Kirgis’ sliding scale concept,44 Mendelson regards the concept as useful in areas not specifically regulated in international law, where it dictates that an abundance of one element of CIL means less of the corresponding element. 45 B

Perspectives on CIL Status of Assembly Resolutions

Article 38 of the Statute of the International Court of Justice is regarded as the most authoritative statement of the sources of international law: Shaw, above n 33, 50. 39 This is clear from examples like the Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226 where, in the absence of sufﬁcient treaty law, the ICJ had regard to ICL in determining the rules of international law around nuclear weapons. 40 North Sea Continental Shelf [1969] ICJ Rep 43, 77 and earlier decisions of the Permanent Court of International Justice such as SS Lotus (Fr. v Turk) (Merits) [1927] PCIJ (ser A), 18. 41 The Republic of Nicaragua v The United States of America [1986] ICJ 1, 98 42 North Sea Continental Shelf [1969] ICJ Rep 3, [74]; Frontier Dispute (Burkina Faso v Mahli (Provisional Measures) [1986] ICJ Rep 554, 564-5; Continental Shelf (Libyan Arab Jamahirya/Malta) (Judgment) [1985] ICJ Rep 13, 29; Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226, 253; see discussion in Michael P Scharf, ‘Accelerated Formation of Customary International Law’ (2014) 20 International Law Students Association Journal of International & Comparative Law 305, 315-316. 43 The Republic of Nicaragua v The United States of America [1986] ICJ 1, 98, 108-9. 44 Frederic L Kirkis, ‘Custom on a Sliding Scale’ (1987) 81 American Journal of International Law, 146 and criticism in Anthea A Roberts (2001) 95 American Journal of International Law 757, 774. 45 Maurice H Mendelson, The Formation of Customary International Law (Martine Nijhoff, 1998) 386. 38

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It appears well accepted amongst publicists that Assembly resolutions are recommendatory, not mandatory.46 This was broadly the view taken by the ICJ in the Voting Procedure case.

However as Judge Lauterpacht signalled in that case, it would be

incorrect to surmise based on this that Assembly resolutions cannot inﬂuence international law. It is important to distinguish binding nature from legal effects.48 A number of perspectives exist about the customary status of Assembly resolutions:49 1

Clariﬁcation

The most conservative view in conventional literature is one that Assembly resolutions can only codify and explain existing rules; acting to clarify and declare an understanding of the law.50 Under this view, the resolution is not the true source of the custom, it simply clarifies pre-existing norms. 2 Evidence In the Territory of the Congo case, the ICJ cited an Assembly resolution in determining the presence of state practice.51 Academics concur that resolutions can be used as evidence of state practice.52 In addition, a number of ICJ cases have established that, with sufficient care and an accompanying state practice of sufficient conformity, opinio juris may be “deducted from…the attitude of the parties and the attitude of States

Note that Lauterpacht and Klaestad in the Voting Procedure case identiﬁed an obligation to consider resolutions in good faith; Lauterpacht stated that a state which chooses not to comply must provide an explanation: Voting Procedure on the Questions Relating to Reports and Petitions Concerning the Territory of South-West Africa [1955] ICJ. Rep 67, 88 (Judge Klaestad J), 118 (Judge Lauterpacht). 47 Voting Procedure on the Questions Relating to Reports and Petitions Concerning the Territory of SouthWest Africa [1955] ICJ. Rep 67, 88 (Judge Klaestad), 118 (Judge Lauterpacht). 48 Obed Asamoah, ‘The Legal Effect of Resolutions of the General Assembly’ (1965) 3 Columbia Journal of Transnational Law 210, 214. 49 See also consideration of the status of GA Resolutions as treaty law, as general principles of law and as declarative statements of law in Christopher C Joyner, ‘U.N. General Assembly Resolutions and International Law: Rethinking The Contemporary Dynamics of Norm-Creation’ (1981) 11 California Western International Law Journal 445, 453-462. 50 Ibid 445; Jurato Higashi, ‘The Role of Resolutions of the United Nations General Assembly in the Formative Process of International Customary Law’ (1982) 25 Japanese Annual of International Law 11; This view is consistent with a view prevalent in international arbitration tribunals: Oxford Public International Law, Max Planck Encyclopaedia of Public International Law (at November 2006) Customary International Law citing Sedco Case (1986) 25 ILM 629, [33]. 51 Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Rwanda) [2005] ICJ Rep 168, 54. 52 Asamoah, above n 48, 224; Joseph Isanga, ‘Counter-Terrorism and Human Rights: The Emergence of a Rule of Customary Int’l Law from UN Resolutions’ (2009) 37 Denver Journal of International Law and Policy 233, 241-2; Scharf, above n 42, 313. 46

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towards certain General Assembly resolutions”.53 In the Crime Against Genocide case, the applicable Convention was considered a sufﬁcient expression of opinio juris for the ﬁnding of a rule of customary law.54 In this way the Assembly is a “global sounding board”55 that can help crystallise customary norms, but cannot of themselves constitute new norms of CIL per se.56 3

Accountability

States that vote for resolutions evince a pledge to uphold the norm embodied in the resolution and may be bound by it later.57 4 Instant custom A more controversial proposition is that an Assembly resolution adopted unanimously or by large majority, can create ‘instant custom’, by constituting both the state practice and opinio juris requirements necessary to establish a rule of CIL.58 This is controversial because it is inconsistent with a widely held view that the General Assembly is not able to ‘legislate’. Writing in 1970, Yusuf considered: …to the extent that more respect, in fact, is shown to General Assembly recommendations by the Member States, they may come more and more close to being recognised as decisions having a binding effect on those concerned.59 Military and Paramilitary Activities (Nicaragua v U.S.) [1986] ICJ Reports 14, 99-100; see also the ICJ opinion in Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226, 254-255 and the ICJ opinion in The Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) [2007] ICJ 2, 46; Western Sahara Western Sahara (Advisory Opinion) [1975] ICJ Rep 12, 31-33; East Timor (Portugal v Australia) [1995] ICJ Rep 90, 102; See also Isanga, above n 52, Asamoah, above n 48, Shaw, above n 33. 54 The Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) [2007] ICJ 2, 46. 55 Joyner, above n 49, 458. 56 Ibid 477. 57 Land and Maritime Boundary Between Cameroon and Nigeria (Cameroon v Nigeria, Eq. Guinea intervening) [2002] ICJ Rep 303, 410. 58 Scharf, above n 42, 313, 324; Cheng, ‘United Nations Resolutions on Outer Space: “Instant,” Customary International Law?’ (1965) 5 Indian Journal of International Law 23, Bin Cheng, ‘Custom: The Future of General State Practice in a Divided World’ in Ronald MacDonald and Douglas M Johnson (eds), The Structure and Process of International Law (Martinus Nijhoff Publishers, 1983) 513: Cheng argues that opinio juris is sufﬁcient to establish a rule of CIL. 59 Heliliah Bte Yusof, ‘The Impact on International Law and Relations of the ‘Legislative’ Activity of the General Assembly’ (1970) 2 Singapore Law Review 216, 226. 53

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Talk is Cheap: The Customary Law Status of the UN Assembly’s Resolutions on South African Apartheid

In 71 years since the establishment of the UN, has the Assembly’s standing grown to the point that instant custom could be a valid source of CIL? On the one hand, the General Assembly is the closest thing the international community has to a legislature. Instant custom could be a pragmatic and democratic solution that enables states to quickly and flexibly influence international law in a modern environment where new rules of law are needed to regulate rapidly emerging problems. It is perhaps the natural extension of the acceleration in the formation of customary law and shows a consistency with a “discernable trend from consent to consensus as the basis for international legal obligations”.60 On the other hand, flaws in the instant custom theory abound.61 First, the Charter’s text and the intent of its framers disclose a relatively clear view that the Assembly was not to have legislative authority.62 If the international community wishes to give the Assembly the qualities of a municipal legislature, it could utilise Chapter XVII procedures to amend ‘recommendations’ in Chapter IV to ‘decisions’. Second, resolutions are too ambiguous of a medium for the unilateral formation of CIL because they often fail distinguish between the present state of the law and what it is desired to be.63 Third, states may vote based on political considerations, without an expectation that their votes are generating new norms and without consenting to be bound.64 Fourth, a rule based only on Assembly resolutions is unlikely to achieve compliance in the real world and as a result would only serve to weaken the rule of law.65 Fifth, it would seem inconsistent with the ICJ’s pronouncement that both elements of ICL are necessary in every case to effectively sideline state practice as an effective element.66 Relatedly, it Mark E Ellis, ‘The New International Economic Order and General Assembly Resolutions: The Debate Over the Legal Effects of General Assembly Resolutions Revisited’ (1985) 15 California Western International Law Journal 647 citing Richard A Falk, ‘On the Quasi-Legislative Competence of the General Assembly’ (1966) 60 American Journal of International Law 782. 61 Andrew T Guzman, ‘Saving Customary International Law’ (2005) 27 Michigan Journal of International Law 115, 158; Scharf, above n 42, 324; Ellis, above n 60. 62 This is derived from the terminology of Articles 10-14 (‘recommendation’ instead of ‘decisions’ of the Security Council (Art 25)), from the records of the San Francisco Conference and from the fact that Assembly resolutions are not listed as sources of law in Article 38: see for example Scharf, above n 42, 324-326 and Ellis, above n 60, 666-668 citing Doc 2, G/14(K), UNCIO Documents (1945), 563-567. 63 Scharf, above n 42, 325. 64 Ibid; Ellis, above n 60, 669-673. 65 Ibid. 66 Instant custom does not appear to be entirely consistent with McDougal’s claim and response theory or D’Amato’s articulation and act theory when applied in the context of a novel norm of CIL. 60

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is incompatible with McDougal’s ‘claim and response’ theory or D’Amato’s ‘articulation and act’ theory of the formulation of customary values to have both claim and response constituted in the same resolution.67 5

Preferable view?

This paper suggests that whilst a resolution can constitute evidence of both state practice and of opinio juris, it cannot establish new rules of CIL per se. An additional element of state practice is required beyond just a strongly constituted resolution, and perhaps beyond a series of similar resolutions. This view balances the need for ﬂexibility with respect for concerns about the legislative capacity of the Assembly and avoids some of the ﬂaws set out above. In appraising the value of a General Assembly resolution, the ICJ stated that “it is necessary to look at its content and the condition of its adoption”.68 A number of factors have a bearing on the weight given to resolutions: (1)

(2) (3) (4) (5)

Voting conditions: the resolution should be adopted near anonymously:69 a large number of negative votes or abstentions do not commend a resolution as capable of establishing a customary norm.70 Objections: the resolution should be adopted without objection or qualiﬁcation. Repetition and recitation: the repetition and recitation of resolutions aids the developments of norms.71 Language: it must be clear from the language and the speciﬁcity of the resolution intends to create legal obligations.72 Expectations: member states must have an expectation that the resolution will create or affect a rule of CIL.

Discussion of these formulations in Scharf, above n 42, 314. Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226, 254-255. 69 Ellis, above n 60, 693. 70 Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226, 255. Where a norm affects parts of the international community differently, support across all groups weighs in favour of recognition: The Texaco Overseas Petroleum Co and California Asiatic Oil Co v Government of the Libyan Arab Republic reprinted in 17 International Legal Materials 1 (1978), 28 cited in Scharf, above n 42 and Ellis, above n 60. 71 Yusof, above n 59, 224; Samuel A Bleicher, ‘The Legal Signiﬁcance of Recitation of GA Resolutions’ (1969) 63 American Journal of International Law 444. 72 Ellis, above n 60, 697. 67 68

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Talk is Cheap: The Customary Law Status of the UN Assembly’s Resolutions on South African Apartheid

Application to Apartheid

The difficulty in pinpointing the moment of the formation of a new CIL is well-recognised.73 Nonetheless, this paper will argue that in approximately 1986 a customary norm was established to the effect apartheid is contrary to customary international law. Consideration of specially affected states is not applicable here. Aside from South Africa (which was affected by the undermining of its contemporary system of law), all nations have an equal stake in compliance with the UN Charter and respect for human rights.74 The series of Assembly resolutions from the 1950s are an insufficient foundation for the formation of a new rule of CIL.75 They are not expressed in mandatory language and, vitally, they did not receive sufficient support. In the Nuclear Weapons Advisory Opinion the ICJ refused to derive opinio juris from resolutions because of the substantial numbers of negative votes and abstentions76 ‘No’ votes and abstentions in the resolutions concern constitute a combined 17-45% of the total voting population.77 Apartheid resolutions during the 1950s received similar levels of dissent and abstention.78 GA Res 1598 (XV) of April 1961 is a significant resolution. It was passed with overwhelming support: 60 to one (South Africa), with no abstentions. In strong language, it affirmed that apartheid is a violation of the UN Charter and requested all states take action to bring about the abandonment of South Africa’s policies. It cited Scharf, above n 42, 330. Whilst in some historical literature practical significance has been given to the position of Commonwealth countries, in this regard they are no more significant than African nations. 75 GA Res 395 (V), GA Res 616 A (VII), GA Res 616B (VII), GA Res 721 (XVII), GA Res 820 (IX), GA Res 917 (X), GA Res 1016 (XI), Ga Res 1178, GA Res 1248 (XIII), GA Res 1357 (XIV), GA Res 1375 (XIV), GA Res 1564 (XV), GA Res 1593 (XV). 76 Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226., 255. 77 GA Res 1653: 55-20, 26 (2 non-voting): 19.4% no, 25.2% abstaining, 44.6% total; GA Res 33/71B: 103-18, 18 (11 non-voting): 12% no, 12% abstaining, 24% total; GA Res 34/83G: 112-16, 14 (10 non-voting): 10.5% no, 9.2% abstaining, 19.7% total; GA Res 35/152D: 112-19, 14 (9 non-voting): 12.3% no, 9% abstaining, 21.4% total; GA Res 45/39B 125-17, 10 (7 non-voting): 10.7% no, 6.3% abstaining, 17% total; GA Res 46/37D: 122-16. 22 (6 non-voting): 0.6% no, 13.3% abstaining, 22.9% total. 78 See Appendix 1. Alternatively, ‘no’ and ‘abstaining’ votes represented 45% in GA Res 395 (V), 40% in GA Res 616A (VII), 58.3% in GA Res 616B (VII), 36.7% in GA Res 721 (XVII), 33.3% in GA Res 820 (IX), 23.3% in GA Res 917 (X), 21.3% in GA Res 1016 (XI), 24.4% in GA Res 1178 (XII), 11.1% in GA Res 1248 (XIII), 15.9% in GA Res 1357 (XIV), 7.1% in GA Res (XIII). 73 74

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earlier resolutions to the same effect. In light of the factors outlined above, it is suggested that this was the point where the resolutions to date constituted a sufficiently well formed opinio juris. If it is accepted that Assembly resolutions cannot of themselves constitute both opinio juris and state practice, regard must be had to other evidence of beyond the successive resolutions of the Assembly. This paper suggests that even if the sliding scale theory is adopted, the profound lack of consistency of member states is a bar to the recognition of a norm of customary law. Although the Assembly resolved a great many things, the practice of member states was not consistent with this. In line with the proposition that no state is specially affected here, practice would need to show a practice comprised in a generality of states. There are a number of actions that could constitute sufficient state practice: starting in the 1950s, countries broke sporting ties with South Africa and a number of cultural boycotts began; during the mid-1960s 18 countries (15% of the member states at the given time) severed ties with and/or closed air and sea borders to South Africa;79 in 1973 OPEC nations applied an oil embargo to South Africa; in 1977, a mandatory arms embargo was introduced by the Security Council; throughout this period many states contributed financially to victims of apartheid. However at the same time, the vast majority of the world maintained substantial economic and political connection with South Africa until the mid 1980s, as evidenced by the trade and other agreements signed by South Africa.80 This conduct is out of step with the condemnation of South Africa and apartheid and consequently during this time there was no consistent state practice. This situation did not change until the 1980s. In 1985, the 12 European Community members placed sanctions on South Africa and in the Comprehensive Anti-Apartheid Act 1986 (US) was signed.81 At this point, a generality of states had taken steps to isolate South Africa by severing relations or by embargoes. At this point, a comprehensive and consistent state practice was evidenced. In 1986, the numerous and near unanimous resolutions, strong words, recitation of resolutions and height Jacqueline A Kalley, Elna Schoeman and Lydia E Andor, Southern African Political History: A Chronology of Key Political Events (Greenwood Publishing Group, 1999), 623-640. 80 Ibid 331-360. 81 Phillip I Levy, ‘Sanctions on South Africa: What Did They Do?’ Center Discussion Paper No. 796, Yale University. 79

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Talk is Cheap: The Customary Law Status of the UN Assembly’s Resolutions on South African Apartheid

ened expectations amongst states for the formation of a norm (as they now acted with less self-interest) generated a clear opinio juris that needed a relatively small amount of state practice, and once this consistency was achieved, the norm formed. V

IMPLICATIONS

First, the necessary implication from the rejection of ‘instant custom’ is that the General Assembly cannot originate custom where there is no existing state practice or opinio juris and where there are issues of domestic jurisdiction involved. Conventional models of norm creation describe a transgression of existing norms as the means for the establishment of new norms. This same transgression constitutes a breach of article 2(7) if the UN’s ‘ﬁrst move’ cannot generate an instantaneous norm. Second, the present examination highlights the risk in an instant custom view that places too much value on Assembly resolutions, by demonstrating just how disparate state practice and opinio juris can be, even in the context of fundamental human rights issues that some in the community may expect to generate a stronger response from member states. VI

CONCLUSION

This paper has argued that between 1950 and 1986, the Assembly’s resolutions were an ultra vires intervention that offended South African sovereignty. Until this point, no norm of customary international law prohibiting apartheid had crystallised. Two more fundamental understandings ﬂow from this conclusion. First, of the intractable conﬂict between state sovereignty and the will of the worldwide community. Second, that the demonstrable lag between opinio juris and more substantive state practice may indicate that states want the Assembly to be all talk, no consequence.

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Lachlan Geddes APPENDIX 1: LIST OF VOTES ON RELEVANT UN GENERAL ASSEMBLY RESOLUTIONS UN Resolution Symbol

Abs

Total Voting %(N+Abs) Membership

Non-voting

GA Res 395 (V) 1950

GA Res 616A (VII) 1952

GA Res 616B (VII) 1952

58.3

GA Res 721 (XVII)

36.7

GA Res 820 (IX)

33.3

GA Res 917 (X)

23.3

GA Res 1016 (XI)

21.3

GA Res 1178 (XII)

24.4

GA Res 1248 (XIII)

11.1

GA Res 1357 (XIV) (Nov. 17, 1959)

15.9

GA Res 1375 (XIV)

7.1

GA Res 1564 (XV) 1960

9.1

GA Res 1593 (XV) 1961

GA Res 1598 (XV) 1961

GA Res 1761 (XVII) 1962

110

35.5

GA Res 1881 (XXII) 1963

106

111

0.9

100

113

2.7

113

1.8

GA Res 2074 (XX) 1965

117

17.9

GA Res 2145 (XXI) 1966

114

121

4.1

GA Res 2202 (XXI) 1966

122

1.6

GA Res 2324 (XXII) 1967

110

123

2.4

GA Res 2396 (XXIII) 1968

126

12.7

GA Res 2439 (XXIII) 1968

126

18.3

GA Res 1978 (A) (XVIII) 1963

GA Res 2547 (XXIV)

GA Res 2626 (XXV) 1970

adopted without vote

GA Res 2671 (XXV) 1970 A

105

127

6.3

111

127

2.4

107

127

6.3

106

127

7.1

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Talk is Cheap: The Customary Law Status of the UN Assemblyâ&#x20AC;&#x2122;s Resolutions on South African Apartheid

111

127

2.4

127

17.3

GA Res 2625 24 October 1970: adopted without vote GA Res 2647 (XXI) 1970

adopted without vote 49

127

33.9

109

131

15.3

A: Arms embargo

107

131

5.3

B: Educational material

112

131

3.1

C: Programme of work of the Special Committee on Apartheid

108

131

4.6

D:Apartheid in sports

106

131

6.9

E : Establishment of Bantustans

110

131

3.1

F: Situation in South Africa resulting from the policies of apartheid

131

18.3

G: Dissemination of information on apartheid

108

131

6.1

H:The policies of apartheid of the Governemnt of South Africa

104

131

7.6

GA Res 3207 (XXIX) 1974

125

138

7.2

101

144

21.5

145

0.7

GA Res 2764 (XXXI) 1971 GA Res 2775

GA Res 3411 (XXX) A B

adopted without vote

GA Res 31/6A

134

GA Res 32/105 A United Nations Trust Fund for South Africa

adopted without vote

B International Anti-Apartheid Year

114

149

C Trade union action against apartheid

138

149

32.9

D Relations between Israel and South Africa E Political prisoners in South Africa

adopted without vote

F Military and nuclear collaboration with South Africa

113

149

16.1

G Economic collaboration with South Africa

111

149

19.5

H Dissemination of information on apartheid

140

149

I Programme of work on the Special Committee on Apartheid

136

149

2.7

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Lachlan Geddes J Assistance to national liberation movement of South Africa

112

149

17.4

K Situation in South Africa

113

149

18.1

L Programme of work of the Special Committee on Apartheid

136

149

2.7

M World Conference for Action against Apartheid

140

149

N International Declaration against Apartheid in Sports

125

149

9.4

O Bantustans

140

149

P Investments in South Africa

120

149

3.4

109

152

21.7

GA Res 34/93 A Situation in South Africa B United Nations Trust Fund for South Africa

adopted without vote

C International conference on sanctions against South Africa

125

152

12.5

D Arms embargo against South Africa

132

152

7.9

E Nuclear collaboration with South Africa

119

152

14.5

F Oil embargo against South Africa

124

152

13.2

G Bantustans

adopted without vote

H Political prisoners in South Africa

adopted without vote

I Assistance to the oppressed people of South Africa and their national liberation movement

134

152

6.6

J Dissemination of information on apartheid

142

152

12.5

152

7.9

K Women and children under apartheid L Role of mass media in international action against apartheid

adopted without vote 125

M Role of non-governmental organizations in international action against apartheid N Apartheid in sports

8 adopted without vote

131

O Declaration on South Africa

10 adopted without vote

P Relations between Israel and South Africa

102

152

26.3

Q Investments in South Africa

130

152

7.9

R Programme of work of the Special Committee against Apartheid

134

152

3.9

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GA Res 39/72 A Comprehensive sanctions against the apartheid regime and support to the liberation struggle in South Africa

123

159

18.9

B Programme of work of the Special Committee against Apartheid

152

159

1.3

C Relations between Israel and South Africa

108

159

27.7

D Apartheid in sports

148

159

3.8

E Public information and public action against apartheid

152

150

1.3

F UN Trust Fund for South Africa

adopted without vote

G Concerted international action for the elimination of apartheid

146

159

GA Res 40/64 A

122

159

20.1

GA Res S-16/1

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adopted without vote

Aarahnan Raguragavan

ISLAMIC STATE: NOTIONS OF A DREAM OR A STATE IN THE MAKING? AARAHNAN RAGURAGAVAN∗ We hear it on the news, the claim for conquest continuously appears on our television screens; but what does this all mean? From a legal perspective, do these claims of conquest and colonise imply a state in the making? This paper investigates whether Islamic State satisﬁes the conditions of statehood, or remains a dream awaiting further foundations. In doing so, this answer considers the implications for Australia in recognising such an entity and considers the relevance of the Montevideo Convention as an adequate measure in 21st century nationhood debate.

INTRODUCTION

The post-uprising Arab world is facing a challenging socio-political situation. For some, infusing the political realm with Islamic principles and reasoning is crucial for their emancipation.1 For others, such an infusion demands authoritarianism. But social and political transformation should be driven by local experience, history and aspiration.2 If so, then to do justice to this social reality, both the emancipatory and the authoritarian potentials of Islamic politics must be accounted for.3 The challenge of social and political philosophy is to develop a framework that accommodates both, the call for emancipation and the fear from authoritarianism - to unleash the emancipatory potentials of Islamic politics while curbing its authoritarian potentials.4 It is clear that the recent conﬂict affecting the Middle East has had many far reaching consequences. II

BACKGROUND

On 29 June 2014, the entity known variously as ISIL, ISIS or DAESH rebranded itself as ‘Islamic State’ (‘IS’). Following this announcement, the group declared areas under Aarahnan is a second year Juris Doctor student. He also holds a Bachelor of Commerce from The University of Western Australia. 1 Sadek Karim, Islamic Democracy: The Struggle For and Limits of Recognition’ (PhD Thesis, Georgetown University 2012) 1; Raymond Hinnebush, ‘Change and Continuity after the Arab Uprising: The Consequences of State Formation in Arab North African States’ (2015) 42 British Journal of Middle Eastern Studies 12. 2 Karim, above n 1 . 3 Ibid. 4 Ibid. ∗

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Islamic State: Notions of a Dream or a State in the Making?

its control in Iraq and Syria to be the territory of this state and proclaimed the new state as a caliphate led by Abu Bakr al-Baghdadi.5 IS territory led claim to an area spanning some 500 kilometres across both nations, many of which had been taken quickly and forcefully.6 The ruthless pursuit for success combined with the ambition demonstrated by the Islamic State proclamation, gave rise to an obvious question: was ‘Islamic State’ merely a name, or had the entity in fact established a new state? Clearly, the sudden creation of a State raises several important theoretical questions worthy of close consideration. It is submitted that while IS satisfies the requirements of a State under the current provisions of international law it cannot be recognised as one. However, before arriving at such conclusions, the main premise of this paper critically examines, through the appropriate use of relevant international instruments, case law and current state practice the implications of granting such recognition. It is also important to note that, whist the criteria in an elementary sense seem to be satisfied, the deeper theoretical considerations such as self-determination remain unanswered. This paper examines whether the proclamation of Islamic State is legal by analysing whether the four criteria of the Montevideo Convention on the Rights and Duties of States (1933)7 (‘Montevideo Convention’) are sufficiently fulfilled. Doing so reveals that Islamic State has no true claim, under international law as it has been formulated and applied, to statehood. Yet the fact that Islamic State is not and will not be a state under the terms of international law is only part of the story; because for a wide variety of reasons it is clear that the definition of statehood is as much a function of contemporary circumstance as positive legal norms. That is, while there can be no doubt that ‘states retain their attraction as the primary focus for the social activity of humankind and thus for international law’,8 in the age of global capitalism, the power of the multinational corporation has given rise to the observation that ‘[s]tatehood and its near relative sovereignty have come under increasing pressure, even erosion, in recent years’.9

See, eg, Andrew Coleman, ‘The Islamic State and International Law: An Ideological Rollercoaster? (2014) 5 Journal of Philosophy of International Law 75. 6 Ibid. 7 Montevideo Convention on the Rights and Duties of States, opened for signature 26 December 1933 165 LTNS 19 (entered into force 26 December 1934) art 1. 8 Malcolm Shaw, International Law (Cambridge University Press, 7th ed., 2014) 143. 9 Robert Delahunty, ‘Statehood and the Third Geneva Convention’ (2005) 46 Virginia Journal of International Law 131. 5

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III

IS THE ISLAMIC STATE CALIPHATE LEGAL?

A central feature of the international legal system is that States are the predominant actors within that system, and possess an international legal personality.10 This international legal personality gives rise to the ‘personality’ claiming statehood.11 As this section aims to consider the question of ‘what is a State?’ this gives rise to the question of who possesses international legal personality and what it is. As O’Connell notes, ‘Legal action is the index of juristic personality; only persons comprehended by the law can perform actions prescribed by the law’.12 In other words, States possess an international legal personality and are recognised legal actors in the international legal system. It is submitted that while IS fulﬁls the categories of statehood below, its execution of principles create a sufﬁcient omission for its claim to statehood not to be acknowledged by the international community. A

Applicability of Statehood to the Islamic State Caliphate

States and the notion of ‘statehood’ have undergone significant evolution in recent centuries. The definition of what a State is has been notoriously difficult to define as a consequence of the continuous development of this topic in international law. The integration of a new state in the international community takes place through co-optation; that is, by individual and collective recognition on the part of the already existing states.13 As Rothwell, Kaye, Davis and Akhtarkhavari make clear, a state is an international notion that ‘has the capacity to act on behalf of citizens who are individuals within a certain territory’.14 In short, Statehood is to conceive of international law less in terms of ‘the stagecraft of an exclusive pantheon of permanent players’,15 and more in terms of ‘networks, patterns and probabilities’.16 In saying so, traditionally, reliance has placed important consideration on the elements of what constitutes a

Donald R Rothwell et al, International Law Cases and Materials with Australian Perspectives (Cambridge University Press, 1st ed, 2011) 216. 11 Ibid. 12 Daniel O’Connell, International Law (Stevens, 2nd ed, 1970) 80. 13 See, eg, Christoforos Ioannidis, ‘Are the Conditions of Statehood Sufﬁcient? An Argument in Favour of Popular Sovereignty as an Additional Condition of Statehood’ (2014) 21 Jurisprudencija 974. 14 Rothwell et al, above n 10, 217. 15 Valeirie Epps and Paul Williams, ‘What Makes a State?’ [2012] American Journal of International Law 445. 16 Ibid. 10

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Islamic State: Notions of a Dream or a State in the Making?

‘State’ outlined in the Montevideo Convention.17 As Hillgruber notes, the ability and willingness of the new state to respect international law constitutes the central criterion of statehood in terms of international law.18 They are decisive for the conferment of legal capacity under international law.19 In saying so, Articles 1 to 4 will be useful to aid our discussion whether Islamic State sufficiently satisfies the definition of a State. 1

Article 1

[The state] as a person of international law should possess the following qualifications; (a) a permanent population (b) a defined territory (c) government and; (d) capacity to enter relations with the other states 2 Article 2 The federal state shall constitute a sole person in the eyes of international law. 3 Article 3 The political existence of the state is independent of recognition by the other states. Even before recognition the state has the right to defend its integrity and independence, to provide for its conservation and prosperity, and consequently organise itself as it sees fit, to legislate upon its interests, administer its services, and to define its jurisdiction and competence of its courts. The exercise of these rights has no other limitation than the exercise of the rights of other states according to international law. 4 Article 4 States are judicially equal, enjoy the same rights and have equal capacity in their exercise. The rights of each one do not depend on the power it possess to assure its exercise, but upon the simple fact of its existence as a person under international law.

Perhaps no topic is better suited to an international law conference on ‘confronting complexity’ than the perennial question: ‘what makes a state?’20 International law casebooks teach students by example that despite the simple deﬁnition of a state in the Montevideo Convention – permanent population, deﬁned territory, government, and Montevideo Convention on the Rights and Duties of States, opened for signature 26 December 1933, 165 LTNS 19 (entered into force 26 December 1934) arts 1-4. 18 Christian Hillgruber, ‘The Admission of New States to the International Community’ (1998) 9 European Journal of International Law 491. 19 Ibid 492. 20 Rothwell et al, above n 10, 446. 17

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capacity to enter into relations with other states but it must be noted that determining statehood is anything but simple. These criteria can be distilled down to a simple question: does the putative state exert control over the population and territory to which it lays claim in both an independent and an effective manner? When framed in these terms, the question as to whether Islamic State is, in fact, a State can only be answered in one way: under international law, Islamic State is not a state. Furthermore, it seems highly unlikely, should it continue in its current guise, that Islamic State will ever acquire statehood. Although the 2010 ICJ advisory opinion on the legality of Kosovo’s declaration of independence caused a ﬂurry of commentary, the general question of what constitutes a state has slipped down, even off, many scholarly agendas.21 In the aim of reviving the debate, the discussion below applies the four criteria of Article 1, to discuss the implications of Statehood from the Islamic State perspective. B

The Notion of a Permanent Population

As suggested earlier, one of the critical ideas accompanying the development of the idea of the State was that the people were not merely the accidental objects of a sovereign’s authority, but that they also partook in that sovereignty.22 There is no threshold of a minimum number of nationals necessary for a State.23 All that is necessary is a permanent population that identifies itself as citizens of the nation that makes up the State. This requirement is fulfilled when the population ties its fate to the place in which the entity has been established and exercises its power of governance.24 It is argued that the caliphate established by the Islamic State does not meet this requirement. As a population, there is no census, and it often fluctuates given the gain or loss in territory. Moreover, the citizens of Iraq and Syria who are now in territory controlled by the caliphate did not choose to tie their fate to that of IS. It is also important to note that individuals can seldom afford to oppose IS beliefs and values. In this Milena Sterio and David Wippman, ‘Creating and Building a State – International Law and Kosovo’ (2010) 104 American Society of International Law Proceedings 361, 361-9. 22 Rothwell et al, above n 10, 81. 23 Aditya Silawat, Creating States in an International Community (19 February 2013), SSRN, <https:// papers.ssrn.com/sol3/papers.cfm?abstract_id=2220865>. 24 Delahunty above n 9, 219; See also, East Timor (Portugal v Australia) (Judgment) [1995] ICJ Rep 90. 21

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vein, it is impossible to say that they chose to be citizens of the caliphate. However, there is a possibility that could result in the population requirement being met in the future: if the thousands of members of the organisation, who identify completely with the caliphate, were to be considered the citizens of IS. The depth of the identification of members with the caliphate can be seen both from symbolic acts that they have performed, such as burning the passports of their States of origin, and from more concrete actions, ranging from active participation in activities of the IS through sacrificing their lives for the common cause. However, this possibility must be qualified, because at this stage, the extent to which the members of the organization have chosen to permanently tie their fate to the fate of the territory under their control is unclear. C

The Role of a Deﬁned Territory

In the words of Williams,25 under the Montevideo Convention, a prospective state must meet four criteria. Of these requirements, territory presents the major obstacle. As Dixon puts it, it would seem essential that for a State to exist there should be a deﬁned territory. In saying so, although the world has no shortage of groups seeking independence, it does have a shortage of real estate.26 A new state necessarily takes territory from an existing state. Since existing states make international law, it is no surprise that the law is designed to make it very difﬁcult for a new state to form out of an existing state’s territory. Territorial integrity, along with sovereignty and political independence, form the ‘triumvirate of rights’27 that states enjoy under international law. From these rights, the notion has emerged that new states can only be formed with the consent of the existing state where the territory lies.28 First, the Islamic State Caliphate reaches over the territory of Iraq and Syria. This gives rise to the question of territorial sovereignty, which is fundamental to dissecting Paul Williams, ‘What Makes a State? Territory’ (2012) 106 American Society of International Law 445, 448. 26 Martin Dixon, Textbook on International Law (Oxford University Press, 5th ed., 2005) 107. 27 Frederica Gioia, ‘State Sovereignty, Jurisdiction, and Modern International Law: The Principle of Complementarity in the International Criminal Court’ (2006) 19 Leiden Journal of International Law 1095. 28 North Sea Continental Shelf (Federal Republic of Germany v Denmark; Federal Republic of Germany v Netherlands) (Judgment) [1969] ICJ Rep 3; Ian Shearer, Starke’s International Law (Butterworths, 11th ed., 1994) 88-9. 25

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the aspects of international law. Territorial sovereignty places great importance on the exercise of rights by the ways in which land can be acquired and retained.29 It is submitted that simply proclaiming territory is insufﬁcient to claim ownership. Yet, it is clear that Islamic State meets the criterion of possessing some territory where title to territory is based on sovereignty. Yet it is also important to note the words of Huber J that [S]overeignty in the relation between States signiﬁes independence. Independence in this regard to portion of the globe is the right to exercise therein, to the exclusion of any other State, the functions of a State.30

Whilst it is clear that possession of land in Iraq and Syria ties Islamic State to territorial sovereignty, it also raises questions over the exercise of rights by an independent state. It also gives rise to the question of occupation, where the claim by Islamic State is deemed lawful where there has been continuous establishment by peoples belonging to that State, displacing the notion of terra nullius as the Court recognised in the Western Sahara (Advisory Opinion) [1975] ICJ Rep 12. There also exists a critical date, 29 June 2014, where the Court is able to prove the ownership of territory and give recognition to the Caliphate. The Court established this in Legal Status of Eastern Greenland Case (Denmark v Norway) (1933) PCIJ Reports Series A/B, no. 53, giving primacy to the behaviour of States in relation to others. Hence, given the recent context of Islamic State atrocities, it is clear that it must be held responsible for committing an internationally wrongful act.31 The importance of State responsibility is that in the conduct of an action, in a given territory (Iraq and Syria) over which an International Legal Personality claims to exercise sovereignty, the conduct of such an act (such as the Turkish Diplomatic Hostage) constitutes as a breach of an international obligation by the State. This breach of an international obligation is a wrongful act and would be attributed to IS. The issue of attributability is important, as States are artiﬁcial constructions that consists of individuals, and are incapable of acting without the actions of individual

Delahunty, above n 9, 265. Islands of Palmas Case (The Netherlands v United States) (Judgement) (1928) 2 RIAA 829. 31 James Crawford, The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries (Cambridge University Press, 2002); see also Claire Claim (1929) 5 RIAA 516. 29 30

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humans.32 As we have identified the existence of a permanent population, it should be stressed that the wrongful act is determined by international law, not the domestic law of any State. In reality, the elaborate framework of international law regarding statehood provides independence-seeking groups with only two options. They can fight their way out, as South Sudan did, and obtain ‘consent’ at gunpoint.33 Alternatively, they can suffer so many human rights violations that democratic states are forced by their constituents to intervene and essentially extract the new state from the predecessor state, as with the case of Kosovo.34 Either way, the likely result is more violence. This raises two important considerations. First, under the responsibility to protect (‘R2P’) doctrine, sovereignty is no longer absolute. Rather than only imparting rights, ‘sovereignty’ imposes the duty on states to protect their populations. If states cannot or will not fulfil this duty, then the responsibility to protect the population shifts to the international community, which may respond by assisting failed states or confronting criminal ones. Second, the International Criminal Court (‘ICC’) provides a legal framework for determining when states and their leaders have overstepped their legitimacy. The ICC makes it more difficult for the international community to accommodate and appease states that brutalize their citizens in an effort to deny them the right of self-determination. It also de-legitimises the need for consent from the originating state. A final obstacle consists in international law’s rigid notion of consent.35 Earned sovereignty is the process by which an aspiring state is brought into full statehood in close cooperation with the international community and provides a more realistic picture of how consent emerges. Earned sovereignty gives aspiring states the opportunity to prove that they can become responsible members of the international community, protect their own minority populations, and govern in a democratic fashion.36 In its essence, earned sovereignty is achieved through a combination of the assessment of the will of the people, international engagement/supervision, conditionality, and the Delahunty, above n 9, 386. Jure Vidmar, ‘South Sudan and the International Legal Framework Governing the Emergence and Delimitation of New States’ (2012) 47 Texas Journal of International Law 541. 34 Sterio and Wippman, above n 21, 361-5. 35 James Crawford, International Law (Cambridge University Press, 2007). 36 Paul Williams, Michael Scharf and James Hooper, ‘Resolving Sovereignty-Based Conflicts: the Emerging Approach of Earned Sovereignty’ (2003) 31 Denver Journal of International Law and Policy 349. 32 33

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phased transfer of sovereign rights and responsibilities.37 Under an earned sovereignty approach, international law focuses not on territorial integrity, but on a graduated version of sovereignty. Consent is no longer a function of a parent state’s acquiescence, but rather recognition from the international community.38 It is submitted that IS has no clear intention at present to represent the will of the people. D

Government

Another of the Montevideo Convention’s requirements of a ‘State’ is the existence of a ‘stable political organisation’. This ‘stable political organisation’ is capable of exercising levels of governmental control preferred under state practice. While Islamic State have effectively proclaimed the Caliphate, their effectiveness to control and style of governance is not well recognised by the international community of States. Indeed, in the Aaland Islands Case, the Court noted that: [I]t is difﬁcult to say at what exact date the Finnish Republic, in the legal sense of the term. This did not take place until a stable political organisation had been created, and certainly not until the public authorities had become strong enough to assert themselves through the territories of the state without the assistance of foreign troops.39

Moreover, Islamic State has been able to assert themselves without the assistance of foreign troops. Yet, it is submitted that Islamic State has not been a stable political organisation. In aiming to gain control over conquered areas, the Islamic State uses tough and brutal means in order to establish its governmental authority in the territory it controls, resulting in population ﬂuctuations. These include beheading opponents and using extreme violence against those who refuse to accept the Islamic faith. The caliphate exercises governmental authority over varied facets of life in the territory it controls, ranging from regulating local businesses to impacting personal status.40 This is not effective government. Based on the above, it seems that the caliphate in Ibid. Ibid. 39 ‘Report of the International Committee of Jurists Entrusted by the Council of the League of Nations with the Task of Giving an Advisory Opinion upon the Legal Aspects of the Aaland Islands Questions’, Ofﬁcial Journal of the League of Nations, Special Supplement No. 3, Oct. 1920, 3. 40 Michelle Burgis, ‘Faith in the State? Traditions of Territoriality, International Law and the Emergence of Modern Arab Statehood’ (2009) 11 Journal of the History of International Law 37. 37 38

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deed exercises governmental authority in the regions under its control. While there are military forces that are ﬁghting against the Islamic State for control of the territory, it seems that these forces are currently concentrating on the hostilities, and are not exercising competing governmental authority in areas controlled by the Islamic State. This provision can only be clearly fulﬁlled if the caliphate succeeds in exercising governmental authority in a consistent and stable manner. E

The Capacity to Enter Into Relations

In order to be able to be recognised, new states must ‘have accepted the appropriate international obligations and have committed themselves in good faith to a peaceful process and to negotiations’.41 The capacity to engage in relations with other States seems to be the least important requirement of the Montevideo Convention and reflects the legal capacity of a State under both international law and applicable municipal law to enter into such relations. As Anzilotti J suggests,42 ‘this criteria goes to the independence of the State rather than the capacity of the State institutions to enter legal relations’. This criterion pertains to the entity’s ability to conduct foreign relations and it does not necessarily mean that other States agree to maintain diplomatic, economic, or other relations with it.43 In other words, a State that is not recognised by most States in the world can still theoretically meet this criterion. History has shown, however, that when a State is not recognised by most countries, such as in the case of Somaliland, the existence of the State becomes largely meaningless.44 In the current context, it is not clear whether caliphate seeks to conduct relations with other States (yet the Hostage of Turkish diplomats suggest otherwise). Similarly, it seems that the States of the world are not interested in recognising the caliphate or in conducting any sort of relations with it. Nonetheless, in the manipulation of various media techniques, IS has been able to influence public relations and this could be a medium by which relations sufficient to meet this condition are fostered.

Delahunty, above n 9, 223. Customs Regime between Germany and Austria (Advisory Opinion) (1931) PCIJ Reports, Series A/B no.41. 43 Delahunty, above n 9, 224. 44 Dimitrios Lalos, ‘Between Statehood and Somalia: Reﬂections of Somaliland Statehood’ (2004) 10 Washington University Global Studies Review 789. 41 42

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Other Important Considerations

As Triggs has observed, whilst a State may have met all the other important indicia of Statehood as prescribed by the Montevideo Convention, the international community has regularly denied recognition of States,45 where the principle of self-determination has not been satisfied. As in the case of Southern Rhodesia, the Court added, in breach of the principle of ‘self-determination’, that all states ‘not recognise this illegal authority and not… entertain any diplomatic or other relations with it’.46 Similarly, it is submitted that the harsh treatment of Christian minorities by IS encourages the international community not to recognise its claims for statehood. Another remarkable condition mentioned was the democratic commitment that the new entities have to show before recognition can be granted.47 The guidelines explicitly require the new republics to ‘constitute themselves on a democratic basis’, in the same breath demanding respect for human rights and minority rights as well. At present, it seems this is not the path pursued by the Islamic State movement. 1 Consideration of recognition by a nation state The above presents a clear consideration of whether conceptual states like that of the IS movement will ever gain statehood. In the hypothetical situation that such entities became lawfully recognised, there are a myriad of challenges that present themselves. Recognition presents opportunity to foster development of culture, ideas and the interaction of people represented through a symbol of unity.48 Given the current context of divide and rule, conceptual dreams like that of Islamic State, although valid in pushing its claim for statehood by satisfying the statehood criteria, present a challenge that the Montevideo Convention no longer applies given the context of a changing global apparatus of recognition that is somewhat fluid and transparent.49 Gillian Triggs, International Law: Contemporary Principles and Practices (LexisNexis Butterworths, 2006) 150. 46 Ibid 158-9. 47 James Crawford, International Law as An Open System (Cameron May, 2002) 199-200. 48 Errol Mendes, Statehood and Palestine for the Purposes of Article 12(3) of the ICC Statute: A Contrary Perspective (2010) 3-15 <https://www.icc-cpi.int/NR/rdonlyres/D3C77FA6-9DEE-45B1-ACC0B41706BB41E5/281876/OTPErrolMendesNewSTATEHOODANDPALESTINEFORTHEPURPOS.pdf>. 49 Thomas Grant, ‘Defining Statehood: The Montevideo Convention and its Discontents’ (1998) 37 Colombia Journal of Transnational Law 405, 405-55. 45

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CONCLUSION

From the essential criteria, the existence of a government, sovereignty of a territory and the existence of a population seem to satisfy the right to grant IS recognition as a â&#x20AC;&#x2DC;Stateâ&#x20AC;&#x2122; within the international community. Yet it is submitted that this approach is outdated, and a more encompassing view of Statehood needs to be formulated given the current global context of conďŹ&#x201A;ict and conquest. Moreover, IS and its approach to achieving these goals seem somewhat confrontational and ruthless. This conclusion is reached not by appealing to any legal rule, but by invoking the moral imperative that violence and terror cannot be rewarded. Politics provides the morality and subjectivity that the law lacks. Moreover, effectiveness (that is the ability to operate as a state) may in the modern context be able to take priority over formal legality. Therefore, total recognition can only be gained if the self-determination and rights of all its citizens are upheld and respected. This can only occur when other international actors see Islamic State as a credible nation representing its people.

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James Harford

POLICE ‘IMMUNITY’ AND DOMESTIC VIOLENCE INCIDENTS – TIME TO RETHINK THE POSITION IN AUSTRALIA? JAMES HARFORD∗ This paper critically evaluates police ‘immunity in cases of a failure to protect victims of domestic violence. The essay includes an examination of the positions in the United Kingdom and Australia. It includes also an in-depth focus on the policy foundation rationale for the immunity. It is ultimately argued that the policy rationale underlying the immunity is inadequate.

INTRODUCTION

The concept of police immunity originated in the seminal House of Lords decision in Hill v Chief Constable of West Yorkshire (‘Hill’),1 in which a claim alleging police should ‘exercise all reasonable care and skill to apprehend the perpetrator of crimes and so protect members of the public’, was struck out.2 The recent decision in Michael v Chief Constable of South Wales Police3 highlights the controversial application of this immunity in instances of domestic violence involving failure to protect from a known source of harm. In Australia, the High Court has not expressly endorsed the immunity as a substantive feature of Australian negligence law,4 nor speciﬁcally considered whether it applies to failures to protect from a known source of harm.5 Part I of this paper sets out the current approach of the High Court to novel duty of care and contends that a duty may be owed where the source of harm is known to police. Part II outlines the extent to which police immunity has been applied in Australia with a view to asserting that a ﬁnding of duty as per Part I will likely be precluded by application of police immunity. Part III critically analyses and contrasts the policy foundation of Hill against the policy rationale for implementing a duty on police to protect from known sources of harm. This is undertaken with a view to arguing that the * James has recently completed a Bachelor of Law and Bachelor of Arts at The University of Western Australia. 1 Hill v Chief Constable of West Yorkshire [1989] AC 53. 2 Ibid 58 (Lord Keith). 3 Michael v Chief Constable of South Wales Police [2015] UKSC 2. 4 Rush v Commissioner of Police (2006) 150 FCR 165, [99] (Finn J). 5 Mandy Shircore, ‘Police Liability for Negligent Investigations: When Will a Duty of Care Arise?’ (2006) 11 Deakin Law Review 33, 48. 64

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policy rationale underlying Hill is inadequate and should be avoided in order to assist victims of domestic violence. II

IS A DUTY OF CARE OWED TO DOMESTIC VIOELNCE VICTIMS? A

Novel Duty of Care in Australia

The High Court has not decided whether the police owe a duty of care where they fail to protect an individual from a known source of harm. In determining novel duty of care, the High Court favors a salient features approach that considers a range of factors, the relevant importance of which will differ in different contexts.6 Issues of control by the defendant and vulnerability of the plaintiff are typically critical salient factors.7 This is particularly signiﬁcant in the context of domestic violence incidents, where the police have a high degree of control over individuals who are vis-à-vis vulnerable pursuant to statutory powers to arrest, investigate events and provide persons with mandatory directions.8 Given these considerations, it has been argued that a duty of care may be owed to domestic violence victims. However, the imposition of duty is restricted by two general principles of negligence law in Australia.9 These restrictions are not a police ‘immunity’, but general principles of Australian negligence law militating a ﬁnding of no-duty in this instance. B

Relevant Restrictions on Imposition of Duty

1 Inconsistency of obligations The High Court is sensitive to claims that acceptance of a common law duty of care for police would be inconsistent with other legal duties owed by them.10 This principle is oft cited in finding that the duties of police officers lie elsewhere, and that imposing a private duty to domestic violence victims would conflict with those duties.11 Perre v Apand Pty Ltd (1999) 198 CLR 180, 194 (Gleeson CJ), 254 (Gummow J). Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540, 597 [149] – [152] (Gummow and Hayne JJ), 577 [84] (McHugh J), 664 [321] (Callinan J). 8 Anthony Gray, ‘Liability of Police in Negligence: A Comparative Analysis’ (2016) 24 Torts Law Review 34, 48. 9 Ibid. 10 Hunter and New England Local Health District v McKenna; Hunter and New England Local Health District v Simon (2014) 253 CLR 270. 11 Tame v New South Wales (2002) 211 CLR 317, 335 [25] (Gleeson CJ), 396 [231] (Gummow and Kirby JJ). 6 7

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No duty to control another from causing damage to a third party

The High Court is also reluctant to impose duties on one party to prevent another from doing damage to a third party.12 This is signiﬁcant in domestic violence cases where the harm is caused by the criminal acts of a third party and not directly by the police. The imposition of a duty will be precluded unless an exception applies. In Modbury Triangle v Anzil (‘Modbury’),13 Gleeson CJ carved out an exception where the criminal conduct is attended by such a high degree of foreseeability and predictability that it is possible to argue that the case would be taken outside of the general principle.14 This exception was relied on in Batchelor v Tasmania (‘Batchelor’),15 where Blow J refused to strike out the plaintiff’s statement of claim alleging police negligence in failing to protect the plaintiff’s mother from being fatally shot by his father. In apparent disregard of the ‘pro-charge pro-arrest’ policy then in force, the police did not arrest the father for the purpose of issuing a restraining order where they were aware of the source of harm, namely the father. It was held, inter alia, that a duty was owed pursuant to the exception in Modbury, taking into account the foreseeability of harm to the plaintiff, special vulnerability of the victim, and the control exercised by the police.16 However, as noted in Batchelor,17 even when the prerequisites of a duty of care requiring one person to protect a second from the criminal conduct of a third are satisﬁed, the imposition of a duty on the police will generally be precluded upon consideration of the public policy ‘immunity’ posited in Hill. II

POLICE ‘IMMUNITY’ IN AUSTRALIA A

The Hill Immunity Principle

In accordance with the two-stage test prevailing in England at the time,18 Lord Keith held, inter alia, that there were policy grounds for denying a duty of care to protect Smith v Leurs (1945) 70 CLR 256. Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254. 14 Ibid 267 (Gleeson CJ). 15 Batchelor v State of Tasmania (2005) 13 Tas R 403. 16 Ibid 414-5 [26] (Blow J). 17 Ibid 411-2 [20]. 18 See Lord Wilberforce’s judgment in Anns v Merton London Borough Council [1978] AC 728. 12 13

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individual members of the public.19 Firstly, it was asserted that police might develop a ‘defensive frame of mind’ if their investigations were open to judicial scrutiny. Secondly, many decisions made by police in the course of investigations were based on policy and discretion, and thus not justiciable. Finally, the House of Lords considered that allowing such claims against police ofﬁcers would divert police resources away from the suppression of crime.20 B

Blanket Immunity from Liability?

In Australia, despite judicial recognition of the reasoning in Hill,21 it has been acknowledged that there is no blanket immunity in relation to the investigation and suppression of crime.22 In this regard, Hill does not provide police ofﬁcers with ‘immunity’ in law.23 Rather, the policy grounds identiﬁed in Hill are relevant considerations in the balancing of salient factors when determining duty.24 ‘Immunity’ suggests a blanket exemption from liability to which the world is subject, rather than a general principle of law based on countervailing’ policy which may apply to the factual situation at hand and from which exceptions may exist.25 C

Exceptions to Hill Policy Rationale

Many cases have been brought against the police at a lower court level in Australia. In most instances, a no-duty ﬁnding has been based on Hill-type policy reasoning.26 In rare cases where a duty has been held to exist, the courts, while acknowledging the blanket immunity does not exist in Australia, have identiﬁed exceptions to the Hill policy rationale to justify the imposition of a duty of care.27

Hill v Chief Constable of West Yorkshire [1989] AC 53, 63. Ibid 63. 21 See, eg Sullivan v Moody (2001) 207 CLR 562, 581 [56] – [57] (The Court); Tame v New South Wales (2002) 211 CLR 317, 396 [231] (Gummow and Kirby JJ), 430 [335] (Callinan J). 22 Peat v Lin [2004] QSC 219, 10 [24] (Atkinson J). 23 Shircore, above n 5, 41. 24 Ibid. 25 Jane Stapelton, ‘Duty of Care: Peripheral Parties and Alternative Opportunities for Deterrence’ (1995) 111 The Law Quarterly Review 301, 303. 26 Cran v New South Wales (2004) 62 NSWLR 95, 109 [48] (Santow JA); Australian Capital Territory v Crowley (2012) 273 FLR 370, 413 [274] (The Court). 27 Shircore, above n 5, 54. 19 20

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1 Non-compliance with training and instruction In Batchelor, the defendant asserted they were immune from a duty on Hill policy grounds. In response, Blow J interpreted the English authorities as proposing that the immunity in Hill ‘…is not available to a police officer who has acted otherwise than in accordance with his or her training and instructions’.28 Hence, given the disregard of the ‘pro-charge pro-arrest’ policy then in force, the Hill ‘immunity’ did not apply in Batchelor and a duty was held against the police. Blow J’s position was consistent with the decision in Zalewski v Turcarla29 that Hill ‘immunity’ would not attach to incidents involving ‘specifically identified antecedent negligence’.30 This aspect of the Batchelor decision has been judicially criticised on the basis that most instances of police negligence arise pursuant to failure to act in accordance with training and instructions.31 Nonetheless, in the absence of clarification by the High Court, the Hill policy rationale will arguably not apply where police officers are alerted of an imminent threat of harm but fail to act. 2 Express assumption of responsibility and control It has been opined that police immunity may not apply if the police have expressly assumed responsibility for protecting that individual.32 There are various ways in which police may assume a duty of care in a particular situation. Where the police are attempting to take control of a situation in reliance on their authority and powers as police officers, it is posited that they have assumed a duty of care to anyone who is directly caught up in their exercise of authority.33 It has been suggested that the police do not have control in domestic violence scenarios because they cannot control another person.34 However, it is contended that police do exercise control over the legal mechanisms that exist to enforce the law prohibiting the use of domestic violence – including the power to make arrests and lay charges in respect of assaults and breaches of protection orders.35 Where a police officer is notified of imminent source Batchelor v State of Tasmania (2005) 13 Tas R 403, 413-5 [22]-[26] (Blow J) citing Zalewski v Turcarola [1995] 2 VR 562; Knightley v Johns [1982] 1 All ER 851; Rigby v Chief Constable of Northamptonshire [1985] 2 All ER 985. 29 Zalewski v Turcarola [1995] 2 VR 562. 30 Ibid. 31 Shircore, above n 5, 57; New South Wales v Klein [2006] NSWCA 295. 32 Australian Capital Territory v Crowley (2012) 273 FLR 370, 419 [308] (The Court). 33 Ibid. 34 State of New South Wales v Godfrey [2004] NSWCA 113, [48]-[51] (Spigelman CJ). 35 Julia Tolmie, ‘Police Negligence in Domestic Violence Cases and the Canadian Case of Mooney: What Should Have Happened, and Could it Happen in New Zealand?’ [2006] 2 New Zealand Law Review 243, 256. 28

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of harm, they may be deemed to have taken control and Hill policy considerations will not apply. III

CONTRASTING POLICY RATIONALE: A DUTY SHOULD BE OWED WHERE POLICE FAIL TO

PROTECT FROM A KNOWN SOURCE OF HARM

Inadequacy of Hill Policy Rationale

Given the judicial recognition of Hill in Australia, it is instructive to critically consider each policy rationale underlying the ‘immunity’. It is contended that the policy rationale underpinning the immunity is no longer adequate in Australia and therefore should not immunize police from liability where there is a failure to protect from known harm. 1 Development of defensive policing techniques The essence of this consideration is that imposing duties on the police will result in ofﬁcers not making the decisions that they should in the public interest, but instead making them on the basis of avoiding civil liability.36 While this sentiment has been accepted in Australian courts,37 the High Court of Australia, in the context of advocates’ immunity, has dismissed arguments about the effect of the imposition of a duty of care and the way it might change practice as ‘not of determinative signiﬁcance’ in deciding whether such a duty should exist.38 Given the position of the High Court, it is arguable that this policy consideration is no longer adequate in Australia. This conclusion is supported by studies suggesting there is little actual evidence that the recognition of duty would, or has, greatly affected actual police behaviour in Australia.39 Furthermore, the likely real impact of imposing liability on police is diluted by legislation making police authorities vicariously liable

Ibid 266. Cran v New South Wales (2004) 62 NSWLR 95, 109 [48]-[51] (Santow JA); Australian Capital Territory v Crowley (2012) 273 FLR 370, 413 [274] – [275] (The Court); Halech v South Australia (2006) 93 SASR 427, 435 [35] (Duggan J), 450 [110] (Besanko J). 38 D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1, 15-6 [29] (Gleeson CJ, Gummow, Hayne and Heydon JJ). 39 Jude McCullogh and Darren Palmer, Civil Litigation by Citizens Against Australian Police between 1994 and 2002 (Report to the Criminology Research Council, Criminology Research Council) 88. 36 37

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for the actions of their police ofﬁcers acting in the course of their employment,40 and providing that police ofﬁcers are not personally liable in tort if they act in good faith.41 2

Police discretion unsuitable for judicial examination

It has been argued that this consideration has merit because of the limited knowledge of courts on a range of policing issues.42 However, Lord Keith used the fact that policy or discretionary issues may arise to justify a ﬁnding that it is never appropriate to impose a duty of care on the police when investigating or suppressing crime.43 There are instances in which no policy or discretionary issues arise, so that it would be wrong to deny a duty of care on that ground.44 Furthermore, limitations have been placed on the judicial review of public authority decisions by common law,45 as well as legislative provisions, which prevent judicial scrutiny over ‘core policy-making decisions’, and decisions based on the ‘general allocation of resources’.46 It is therefore clear that abandoning the Hill principle would not prevent the court from considering policy implications, yet would ensure that the court considers the question based on the merits of the case.47 3

Diversion of police resources

Lord Keith argued that public money should not be diverted into defending litigation and paying compensation, and away from more pressing priorities.48 While this rationale has been reiterated in subsequent English cases,49 in Australia it is arguably of marginal relevance due to the civil liability legislation in operation in every jurisdiction. In determining whether a public authority has breached its duty of care (or whether a duty is owed at all), the court should take account of the authority’s limited See, eg, Australian Federal Police Act 1979 (Cth) s 64B; Police Act 1892 (WA) s 137(5). For example the Police Act 1892 (WA) s 137(3) protects the police ofﬁcer from liability for anything done in the absence of ‘corruption or malice.’ 42 Elizabeth Brownhill, ‘Police Duty of Care and the Application of ‘Hill Immunity’ in Australian Tort Law’ (2013) 21 Torts Law Journal 152, 164. 43 Ibid 158. 44 Stelios Tofari and Sandy Steel, ‘Negligence Liability for Omissions and the Police’ (2016) 75 Cambridge Law Journal 125, 134. 45 Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1, 25-56 (McHugh J). 46 See, eg, Civil Liabilities Act 2002 (NSW), s 42. 47 Brownhill, above n 42,160. 48 Hill v Chief Constable of West Yorkshire [1989] AC 53, 63-64 (Lord Keith). 49 Van Colle v Chief Constable of Hertfordshire; Smith v Chief Constable of Sussex Police [2009] 1 AC 225; Michael v Chief Constable of South Wales Police [2015] UKSC 2. 40 41

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resources, and that decisions that it has taken regarding the allocation of those limited resources are not challengeable.50 This legislative position suggests that the issue of resources is weighed in the balance of determining breach, not used to deny duty of care.51 Furthermore, it is arguably too simplistic to assert that the overall impact of resource allocation is negative.52 It has been suggested that the imposition of a duty may uncover organizational failings missed by internal inquiries and in this way enable the police to adopt a more efﬁcient system in the future.53 B

Rationale for Imposing a Duty of Care

1 Public confidence in the police The rule of law supports the approach that those charged with enforcing the law should be subject to it themselves.54 Public confidence in the police is critical and enhanced when citizens can feel confident that police are subject to, and compliant with, the same standards expected of others.55 Incompetent police work can indirectly undermine public confidence in the legal system more generally. Public confidence is particularly important in preventing domestic violence by indirectly encouraging persons in fear of harm to take active steps to seek assistance. 2 Foreseeability of harm In instances where the police are aware of the source of harm, the degree of foreseeability and predictability will be of such seriousness as to fall within Gleeson CJ’s exclusion for imposing liability to protect from harm by a third party. This is particularly the case in ongoing domestic violence, where future incidents of harm are objectively foreseeable.56 In domestic violence cases the perpetrator is targeting a specific individual, who is thus distinct from the general population. Furthermore, if there is a For example, Civil Liability Act 2002 (WA) s 5W. Gray, above n 8, 55. 52 Simon Hallida, Jonathan Ilan and Colin Scott, ‘The Public Management of Liability Risks’ (2011) 31 Oxford Journal of Legal Studies 527, 527. 53 Tofari and Steel, above n 44, 135. 54 Gray, above n 8, 56. 55 Steve Herbert, ‘Tangled up in Blue: Conflicting Paths to Police Legitimacy’ (2006) 10 Theoretical Criminology 481, 482; Graham Smith, ‘Police Complaints and Criminal Prosecutions’ (2001) 64 Modern Law Review 372, 375. 56 Tolmie, above n 35, 252. 50 51

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protection order in place, the victim will have been speciﬁcally tagged by the courts as a person who is in need of protection from the criminal activities of the perpetrator in question.57 3 Police’s special status and victim’s dependence The police have been described as ‘specialist repositories for the state’s monopolisation of legitimate force in its territory.’58 The House of Lords has commented that a person faced with serious, imminent threats of violence is permitted by law to take reasonable measures of self-protection, but beyond that their only option is to inform the police.59 This gives rise to a relationship of dependence between the police and an individual who ﬁnds them in this unfavorable position.60 Given the vulnerability of domestic violence victims vis-à-vis the control exercised by the police, a duty of care is imperative. This is particularly so in light of Stapelton’s assertion that the ‘golden thread’ of tort law is the protection of the vulnerable.61 4

No inconsistency of obligations

In Tame v New South Wales62 it was noted that a common law duty of care for police would be inconsistent with other legal duties owed by them to the public.63 However, no relevant police legislation was cited to demonstrate the ﬁnding of inconsistency in that case. It has been argued that the statutory framework detailing the powers and responsibilities of police is not inconsistent with the recognition of a duty of care against police.64 These powers are usually conditioned upon ‘reasonableness’, such as ‘reasonable suspicion’ for search powers or for arrests.65 This indicates that if police act outside these parameters, their actions might be challenged in some forum.66 Arguably, the ‘reasonableness’ concept demonstrates parliament’s intention that police use of power against individuals ought to be limited, consistent with the rule of law. Ibid 255. Robert Reiner, The Politics of the Police (Oxford University Press, 4th ed, 2010) 7-8. 59 Van Colle v Chief Constable of Hertfordshire; Smith v Chief Constable of Sussex Police [2009] 1 AC 225, 268 [63] (Lord Hope). 60 Tofari and Steel, above n 44, 146. 61 Jane Stapleton, ‘The Golden Thread at the Heart of the Law: Protection of the Vulnerable’ (2004) 24 Australian Bar Review 135. 62 Tame v New South Wales (2002) 211 CLR 317. 63 Tame v New South Wales (2002) 211 CLR 317, 335 [25] (Gleeson CJ), 396 [231] (Gummow and Kirby JJ). 64 Gray, above n 8, 58-59. 65 See, eg, Crimes Act 1914 (CTH) ss 3W, 3T. 66 Gray, above n, 58. 57 58

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CONCLUSION

In Australia, discussion of a police ‘immunity’ in law is misguided. The Hill ‘immunity’ is not a blanket immunity on police liability in Australia. Rather, its policy underpinnings are relevant considerations in determining duty of care. It is evident that, in most civil claims against the police, Hill policy considerations are decisive in finding no-duty unless an exception applies. Hill will not protect a police officer that has been notified of imminent harm if they fail to act in accordance with instruction, or has assumed responsibility for the situation. This article has argued that a duty should be owed to domestic violence victim who, having notified police of imminent threats, are harmed by police inaction. In such a case, the foreseeability of harm to the plaintiff, special vulnerability of the victim, and the control exercised by the police justify imposition of a duty. The policy underpinnings of Hill are no longer adequate, and there is a strong policy rationale for this imposition that echoes calls for the law to develop to assist victims of domestic violence.67

See, eg, the strong dissent of Lord Kerr in Michael v Chief Constable of South Wales Police [2015] UKSC 2 with whom Lady Hale agreed (at [197]).

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Maha Abweh

PROLONGED AGONY FOR DECADES AND STILL NO ACCESS TO JUSTICE: EXTENDING THE LIMITATION PERIOD FOR SEXUAL ABUSE CASES MAHA ABWEH∗ The trauma experienced by sexual abuse victims is not well addressed within the Western Australian legal system. Most sexual abuse victims do not commence action for decades due to the long latency period associated with a victims suppression of memories and ongoing suffering. With only three years after the cause of action accrues to commence a claim, and a few exceptions providing inadequate extensions, most victims are statute-barred from bringing a sexual abuse claim under the current Limitation Act 2005 (WA). This paper proposes that the Limitation Act 2005 (WA) be amended to include special limitation provisions for sexual abuse cases or, more favourably, to abolish the limitation period for sexual abuse victims altogether.

INTRODUCTION

Statutory limitation periods are laws enacted by the legislature to impose a time limit within which a plaintiff can bring an actionable claim.1 Statutes of limitation may include special limitation provisions that provide longer limitation periods or provide courts with the discretion to extend limitation periods for certain causes of action. Unfortunately, in Western Australia there continues to be no special limitation period provisions for sexual abuse cases.2 Victims of sexual abuse must thus rely on the existing provisions of the Limitation Act 2005 (WA) (‘LA 2005’), which, in most cases, causes victims to be statute-barred from bringing a claim.3 This presents a severe injustice to

* Maha is a sixth year Bachelor of Laws and Bachelor of Commerce at the University of Western Australia. Whilst her interests lie in commercial law, she relishes the opportunity to research, investigate and critically analyse other ﬁelds of law, such as torts and law and religion. After all, embracing the immense phenomena of the law is what makes the study of the law so varied and interesting. The author would like to thank Tom McCarthy and Josh Singer for bringing this issue to the attention of the public. Maha would also like to thank Winthrop Professor Peter Handford for sharing his extensive knowledge and interest in torts with his students so full-heartedly. 1 Annette Marfording, ‘Access to Justice for Survivors of Child Sexual Abuse’ (1997) 5 Torts Law Journal 221, 221. 2 Lisa Sarmas, ‘Mixed Messages on Sexual Assault and the Statute of Limitations: Stingel v Clark, The Ipp Reforms and an Argument for Change’ (2008) 32 Melbourne University Law Review 609, 635. 3 Department of Justice (NSW), ‘Limitation Periods in Civil Claims for Child Sexual Abuse’ (Discussion Paper, Department of Justice, January 2015) 5. 74

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victims of sexual abuse.4 The LA 2005 should therefore be amended to include special limitation provisions for sexual abuse cases. II

PURPOSE OF LIMITATION PERIODS

The main purpose of statutory limitation periods is to enable the finding of a resolution to an actionable claim within a reasonable period of time.5 In the Australian case of Brisbane South Regional Health Authority v Taylor6, the High Court recognised four reasons for the existence of limitation periods, which are arguably applicable to sexual abuse cases.7 Firstly, in light of the public interest, disputes should be settled in a timely manner and with reasonable diligence, so as to uphold the quality of justice.8 Secondly, delays in bringing an action may cause the defendant to lose relevant evidence.9 For example, memories of events may become distorted over time and access to forensic evidence may become impossible after many years.10 Nevertheless, it seems absurd that evidence strong enough to satisfy the highest standard of proof in a criminal trial for sexual abuse is considered ‘inferior or inadequate’ in a civil claim, ‘…where similar evidence need only be established on the balance of probabilities’.11 Furthermore, the ‘Betrayal of Trust’ report by the Family and Community Development Committee concludes that sexual abuse cases rarely involve a significant amount of evidence in the first instance as offenders are likely to take extra precautions to hide their misconduct and ensure the victims silence.12 Therefore, deterioration of evidence for sexual abuse cases may be irrelevant.13 Thirdly, people should be able to continue with their lives, by way of arranging their affairs and resources, without consideration for long lasting potential claims against them.14 Lastly, it can be ‘oppressive’ or ‘cru Ibid. Ibid 4. 6 (1996) 186 CLR 541. 4 5

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 550-6 (McHugh J). See Department of Justice, above n 3. See also Hamish Ross, ‘Adults as Grown-Up Children – a Perspective on Children’s Rights’ (2013) 27 Australian Journal of Family Law 235, 256. 8 Department of Justice, above n 3, 4. 9 Ibid. 10 Ben Matthews, ‘Issue Paper 5: Civil Litigation – Limitation Periods’ (2014) 5 Queensland University of Technology Law & Justice Journal 1, 21. 11 Ross, above n 7, 257. 12 Family and Community Development Committee, Parliament of Victoria, Betrayal of Trust: Inquiry into the Handling of Child Abuse by Religious and Other Non-Government Organisations (2013) 541. 13 Ibid. See also Alice Jonas and Marianne Aroozoo, ‘Limitation of Actions (Child Abuse) Bill 2015’ (Research Note No 1, Parliamentary Library, Parliament of Victoria, 2015) 6. 14 Department of Justice, above n 3, 4. 7

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el’ to a defendant to have to defend a long dormant claim.15 However, the ‘cruelties’ imposed on a defendant by way of delayed civil proceedings ‘…pale in signiﬁcance when compared with the cruelties inﬂicted upon children…’16 and the ongoing psychological trauma victims experience for the rest of their adult lives.17 Thus, the arguments for limitation periods are outweighed by the severity of injury born by sexual abuse victims. III

REASONS FOR DELAY IN REPORTING SEXUAL ABUSE

Limitation problems are usually faced by victims of sexual abuse, who are unlikely to bring an action until many years after the occurrence, often triggered by memories creeping back after being suppressed for many years.18 According to the Royal Commission’s Interim Report volume 1, ‘…the average time for a victim to disclose the sexual abuse was 22 years’.19 Additionally, the Project Axis survey in Queensland revealed that of the 212 adult survivors of sexual abuse surveyed, ‘25 took 5-9 years to disclose it, 33 took 10-19 years and 51 took over 20 years’ with even longer delays in cases where the perpetrator was closely related to the victim.20 The reason for the delay in bringing an action is that in most cases, the victim is suffering from depression, post-traumatic stress disorder or other psychiatric illness caused by the initial abuse.21 Special limitation provisions are crucial to combat this issue. IV

CURRENT LIMITATION PERIODS FOR SEXUAL ABUSE CLAIMS A

General

Child sexual abuse ‘…is a form of personal injury for limitation periods’.22 Limitation Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 552 (McHugh J). See also LexisNexis, Halsbury’s Laws of England, vol 68 (at 2008) 1 Statutory Time Bars on Civil Proceedings, ‘1 The Legislation’ [905]. 16 Ross, above n 7, 257. 17 Ibid. 18 Peter Handford, ‘A New Limitation Act for the 21st Century’ (2007) 33 The University of Western Australia Law Review 387, 394-395. 19 Department of Justice, above n 3. 20 Michael Dunne and Margot Legosz, ‘The Consequence of Childhood Sexual Abuse’ in Queensland Crime Commission and Queensland Police Service, Project AXIS – Child Sexual Abuse in Queensland: Selected Research Papers (2000) 23, 25. 21 Department of Justice, above n 3. 22 Handford, above n 18, 395. 15

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periods in Western Australia are managed by two Acts; the Limitation Act 1935 (for causes of action arising before 15 November 2005), and the LA 2005 (for causes of action accruing on or after 15 November 2005).23 Under the LA 2005, victims of sexual abuse must commence an action within three years of the cause of action accruing as per s 55, or apply for an extension of time by proving they were not aware of the cause of injury or any of the other facts stated in s 39.24 Furthermore, an alternative claim could be made under s 38, whereby sexual abuse ‘…may give grounds for a court to extend time on the basis that there is “improper conduct”’.25 B

Existing Exceptions

The LA 2005 contains extensions of the limitation periods for persons under 18 years old (a ‘minor’) or a person with a disability.26 If the child is under the age of 15 years when the cause of action for personal injury accrues, the victim will have six years from the date of accrual27 to bring an action.28 If a person is aged 15, 16 or 17 years when the cause of action accrues, they must bring an action before they reach 21 years of age.29 The special provisions also include a suspension of time for any time during the accrual period where a minor30 or a person with a mental disability31 is without a parent or guardian. However, the action must still be brought before the person turns 21 years old.32 For minors with a guardian, a court may extend the limitation period until the person reaches 21 years of age unless the court ﬁnds that there was an irrational basis for why the parent or guardian failed to bring an action before the limitation period expired.33 Furthermore, s 33 of the LA 2005 provides a special limitation period that runs until the child reaches 25 years of age in cases where the defendant is a parent or guardian or a close associate of the parent or guardian.34 Jonas and Aroozoo, above 13, 3. Handford, above n 18, 395. 25 Ibid. See also James T O’Reilly and Margaret S P Chalmers, The Clergy Sex Abuse Crisis and the Legal Responses (Oxford University Press, 2014) 134. 26 Limitation Act 2005 (WA), ss 30, 31. 27 Cause of action no longer accrues on the time of suffering of damages, but according to the rules in Limitation Act 2005 (WA), ss 6, 55, 56. 28 Limitation Act 2005 (WA), s 30. 29 Ibid s 31. 30 Ibid s 32(1). 31 Ibid s 35. 32 Ibid s 32(2). 33 Ibid s 41. 34 Ibid s 33. 23 24

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V A

WHY EXISTING EXCEPTIONS ARE INADEQUATE

Problem with the ‘Parent or Guardian’ Exception

The current exception suspending time whilst a person is under 18 years old and is without a parent or guardian is inadequate.35 This is because in many cases, the parent or guardian has no knowledge of the abuse and, thus, do not report it.36 Therefore, time should be suspended until the person reaches 18 years of age, regardless of whether or not they are with a parent or guardian.37 Furthermore, the special provision for minors fails to cover all victims of sexual abuse, regardless of their age, a distinction that denies access to justice for all.38 B

Problems with the ‘Mental Disability’ Exception

The ‘mental disability’ exception is based on the type of psychological trauma suffered.39 Sexual abuse victims who suffer a recognised psychiatric illness may be covered by the ‘mental disability’ exception.40 However, other injuries arising from the abuse and causing a failure to commence proceedings within the limitation period, such as extreme feelings of shame and embarrassment connected to the abuse or fear that their disclosure will not be believed may not satisfy the exception.41 Furthermore, the burden placed on the victim to prove the ‘mental disability’ exception applies can be a harsh and traumatic experience for the victim.42 If Western Australia does not amend the LA 2005 to include special provisions for these victims, then it should at least seek to redeﬁne ‘mental disability’ so that it includes all forms of psychological injury caused by sexual abuse.43

Department of Justice, above n 3, 6. Ibid. 37 Ibid. 38 Ibid. 39 Ibid. 40 Ibid. 41 Commonwealth, Royal Commission into Institutional Responses to Child Sexual Abuse, Report of Case Study No. 8 (2015) 6. 42 Department of Justice, above n 3, 6. 43 Ibid 8. 35 36

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Problems with the ‘Close Associate’ Exception

Furthermore, the exception related to ‘close associates’, whilst providing a longer limitation period, does not offer just results, because victims sexually abused by offenders falling outside this category are not given the same extension of time.44 A victim of sexual abuse suffers both physically and mentally regardless of the identity of the offender and, thus, the limitation period should not be governed by the defendant’s relationship to the victim.45 D

Difﬁculties Associated with Applications for Extension of Time

Although most jurisdictions have provisions for an extension of time,46 such application requires the plaintiff to show that a fair trial will ensue,47 as per the test established in Brisbane South Regional Authority v Taylor (1996) 186 CLR 451. Accordingly, a victim experiences immense difﬁculty and trauma when recalling the incidents of abuse in their application for an extension of time or in proving disability.48 Such agony was evident in John Ellis’ torment when bringing his case against the Catholic Church in John Ellis v Pell and the Trustees for the Roman Catholic Church for the Archdiocese of Sydney [2006] NSWSC 109. Mr. Ellis was sexually abused by Father Duggan from about 1974 to 1979, when he was aged between 13 and 17 years old.49 In 2001, 25 years after the abuse and well after the expiration of the limitation period, he began to experience emotional trauma. The Catholic Church resisted the claim based on the expiration of the limitation period.50 As a result, Mr Ellis had to apply for an extension of time, which was at the discretion of the court. In his application, Mr Ellis was required to discuss the abuse in detail. He had difﬁculty reporting the abuse as ‘the memories were painful and frightening and they came with strong physical memories of the abuse … [that] … made him feel ashamed’.51 As a result, his emotional wellbe-

Ibid 15. Ibid. 46 Law Council of Australia, ‘Redress and Civil Litigation’ (Consultation Paper, Law Council of Australia, 19 March 2015). An extension of time is not possible in a number of jurisdictions that contain a ‘long-stop’ provision, but this is not the case in Western Australia. 47 Ibid. 48 Royal Commission into Institutional Responses to Child Sexual Abuse, above n 41, 4. 49 Ibid 20. 50 Law Council of Australia, above n 47. 51 Royal Commission into Institutional Responses to Child Sexual Abuse, above n 41, 21. 44 45

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ing started to diminish with ‘each disclosure of further details about the abuse’.52 Such distress is only the beginning of what is ahead, in proving the abuse had occurred and the following cross-examination.53 VI

THE NEED FOR SPECIAL PROVISIONS

The inadequacy of the application of limitation periods to victims of sexual abuse is seen in cases such as DJ v Trustees of the Christian Brothers,54 where the inﬂexible Western Australian statute of limitations meant the case was ‘dead in the water’.55 Some of the victims were forced to accept a very low settlement with Christian Brothers, amounting to only $4,000, for years of torment and psychological distress.56 This illustrates the need for ‘…a special limitation period for child sexual abuse victims’.57 Generally, sexual abuse cases have a long latency period considering most victims do not realise their psychological injuries until many years after the incident.58 This long latency period is similar to that of asbestos-related diseases. Section 56 of the LA 2005 carries forward the special provisions enacted in the Acts Amendment (Asbestos-related Diseases) Act 1983 (WA), whereby an asbestos-related cause of action is said to accrue when the victim has knowledge of the relevant facts,59 the ‘date of discovery’.60 This is different to the accrual period provided for general personal injury claims under s 55 of LA 2005, whereby the accrual date is either knowledge or when the ﬁrst symptom or clinical sign of injury becomes apparent, whichever is earlier.61 A special provision similar to that under s 56 should be included for sexual abuse cases, which is still governed by the more restrictive limitation period for general personal

Ibid. Department of Justice, above n 3, 7. 54 (Unreported, Supreme Court of New South Wales, Levine J, 15 December 1994). 55 Ibid. 56 Senate Standing Committee on Community Affairs, Parliament of Australia, Legal Actions and Limitation Periods (2002) [9.16]. 57 Law Council of Australia, A Model Limitation Period for Personal Injury Actions in Australia: Position Paper, Canberra (2011), cited in Family and Community Development Committee, above n 12, 540-541. 58 Ben Matthews, ‘Post-Ipp Special Limitation Periods for Cases of Injury to a Child by a Parent or Close Associate: New Jurisdictional Gulfs’ (2004) 12 Torts Law Journal 239, 243. See also Commonwealth of Australia, Review of the Law of Negligence Report, Canberra (2002) (Ipp Report) 85-6. 59 Limitation Act 2005 (WA), s 56. 60 Peter Handford, Limitation of Actions: The Laws of Australia (Thomson Reuters, 3rd ed, 2012) 85, 165. See also Limitation of Actions Act 1958 (Vic) s 27F. 61 Cartledge v E Jopling & Sons Ltd [1963] AC 758; Limitation Act 2005 (WA) s 55. 52 53

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injury cases.62 Such special provision should include one of the two limitation periods recommended by the Western Australia Law Reform Commission,63 namely, the three year discovery period, coupled with a discretion to extend. This would provide victims three years after discovering their injuries to commence proceedings. However, Western Australia should not include the second limitation period recommended, the longstop period,64 whereby a plaintiff is barred from bringing an action even if they had not or could not have discovered they had a claim.65 The ‘potential harshness of… [this]…ultimate period’ would be unjust for victims of sexual abuse due to the latent psychological injuries.66 Furthermore, Western Australia should also suspend the limitation period whilst the victim is a minor, regardless of the characterization of the perpetrator or whether or not the victim is with a parent or guardian. Such amendments for sexual abuse cases should operate both prospectively and retrospectively.67 Retrospective application would provide justice for historical child sexual abuse victims.68 Although the general principle precludes re-litigation of a cause of action that has already been given ﬁnal judgment,69 these cases should be allowed to be heard if they were previously ‘…defeated solely on the basis of the expiration of the limitation period’.70 VII

ALTERNATIVE REFORM OPTION

The removal of the limitation period for sexual abuse cases, inspired by the British Alberta Law Reform Institute, Limitations, Report for Discussion No 4 (1986); Alberta Law Reform Institute, Limitations, Report No 61 (2000).Cf Cartledge v E Jopling & Sons Ltd [1963] AC 758. 63 Western Australia Law Reform Commission, Report on Limitation and Notice of Actions, Project No 36 Part II (1997). 64 Jonas and Aroozoo, above n 13, 2. See, eg, Limitation of Actions Act 1958 (Vic) s 27E; Limitation Act 1969 (NSW) s 50C. 65 Natalie Skead, ‘Limitation Act 2005 (WA) and Equitable Actions: A Fatal Blow to Judicial Discretion and Flexibility - How Other Australian Jurisdictions Might Learn From Western Australia’s Mistakes’ (2009) 11 University of Notre Dame Australia Law Review 1, 15. 66 Dunne and Legosz, above n 20. See also Ben Matthews, ‘Limitation Periods and Child Sexual Abuse Cases: Law, Psychology, Time and Justice’ (2003) 11 Torts Law Journal 218, 218. 67 See Department of Justice, above n 3, 18; Peter Handford, ‘Limitation and Personal Injury Claims: Retrospective Application of the Limitation Act 2005’ (2014) 37 The University of Western Australia Law Review 160, 168; Burns v Minister of Health (2012) 45 WAR 276, 281 [15] (Martin CJ). 68 Ibid. 69 The principle of Res judicata. See Department of Justice, above n 3, 18. See also Stokes v McCourt [2013] NSWSC 1014. 70 Department of Justice, above n 3, 18. 62

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Columbia legislation in Canada, has already been adopted in Victoria and NSW.71 This option would be simple to apply, would eliminate the need for plaintiffs to prove the extent of their psychological injury, would remove time and costs wasted on disputing limitation periods and may direct the defendants focus on the merits of the case.72 It would be ideal if Western Australia and the remaining states adopt this approach in order to have a nationally uniform approach.73 By abolishing limitation periods, Western Australian courts can avoid cases like Taylor v Trustees of the Christian Brothers [1994] ATR 81-288 and Reidy v Trustees of the Christian Brothers (1994) 122 WAR 583. The plaintiffs were two men who claimed to have been sexually abused in Christian Brothers Institutions.74 They brought an action in Victoria with the hope that ‘… the Victorian Supreme Court would exercise its discretion to grant an extension of the six year limitation period, as permitted by the Limitations of Actions Act 1958 (Vic)’.75 However, the proceedings were transferred to Western Australia, where the facts had taken place. 76 Anderson J in the Supreme Court of Western Australia subsequently applied the Limitation Act 1935 (WA), in which the limitation period had already expired.77 Thus, the plaintiffs’ cases were statute-barred.78 The disparity of results based on the jurisdiction in which a sexual abuse case is heard could be avoided if a nationally uniform approach is adopted. VIII

CONCLUSION

Limitation periods applicable to sexual abuse victims under the LA 2005 do not accommodate for the nature of the injury suffered and consequent long latency period. Therefore, the LA 2005 should be amended to include special limitation provisions for

Limitation of Actions Amendment (Child Abuse) Act 2015 (Vic) s 1. See also Attorney-General, Time Limitations for Child Abuse Cases Abolished (24 February 2015) Premier of Victoria <http://www.premier. vic.gov.au/time-limitations-for-child-abuse-cases-abolished/>. 72 Department of Justice, above n 3, 10. 73 Matthews, above n 10, 8. 74 Taylor v Trustees of the Christian Brothers [1994] ATR 81-288; Reidy v Trustees of the Christian Brothers (1994) 122 WAR 583. 75 Handford, above n 69, 164. 76 Taylor v Trustees of the Christian Brothers [1994] Aust Torts Rep 81-288. 77 Ibid; Reidy v Trustees of the Christian Brothers (1994) 122 WAR 583. See also Handford, above n 75. 78 Taylor v Trustees of the Christian Brothers [1994] ATR 81-288; Reidy v Trustees of the Christian Brothers (1994) 122 WAR 583; DJ v Trustees of the Christian Brother (Unreported, Supreme Court of New South Wales, Levine J, 15 December 1994). See also Handford, above n 75. 71

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sexual abuse cases.79 This could be in the form of a provision extending the limitation period for sexual abuse victims. However, the most ‘…appropriate long-term solution for all Australian legislatures would be to abolish the limitation period altogether for sexual assault claims’.80 A nationally consistent approach is preferred, as victims of sexual abuse would receive the same treatment in all Australian jurisdictions.81 Abolition would offer justice and compensation for victims of the most heinous crime, child sexual abuse, no matter how long it takes a victim to commence proceedings.

Mark Moshinsky, The Victorian Bar Response to the Law Council of Australia Position Paper Entitled “A Model Limitation Period for Personal Injuries Actions” (9 November 2011) Victorian Bar <http://www. vicbar.com.au/GetFile.ashx?file=BarCouncilSubmissionFiles%2FThe+Victorian+Bar+Response+to+the+LCA+PP+-+A+Model+limitation+period+for+personal+injuries+actions.pdf>. 80 Sarmas, above n 2, 638. 81 Matthews, above n 10, 4. 79

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Julien Blais

ENHANCING LEGAL MECHANISMS FOR THE PROTECTION OF THE TRADITIONAL CULTURAL EXPRESSIONS OF ABORIGINAL AND TORRES STRAIT ISLANDER PEOPLE IN AUSTRALIA JULIEN BLAIS* The Australian intellectual property framework continues to grapple with how best to protect the rights of Aboriginal and Torres Strait Islander (‘ATSI’) people to their traditional cultural expressions (‘TCEs’) at law. This essay examines some of the institutional and legislative hurdles which have historically impeded outcomes which successfully address ATSI interests and the unique status of TCEs. Avenues for reforming the Copyright Act 1968 (Cth) are suggested in light of deﬁciencies highlighted in cases including Yumbulul v Reserve Bank of Australia (1991) 21 IPR 481. This essay argues that meaningful reform must incorporate ATSI voices and perspectives in the interests of engaging with the most pertinent issues facing ATSI people and groups.

INTRODUCTION

The landmark decision of the High Court in Mabo v Queensland (No 2)1 provided renewed impetus to recognise and protect the rights of Aboriginal and Torres Strait Islander people and groups to their traditional cultural expressions at law.2 To the dismay of commentators, the response of the legislature has marked the ensuing period as ‘one of failed opportunities’.3 Despite recommendations from the Australian Law Reform Commission4 and the Working Party on the Protection of Aboriginal Folklore,5 specific legislation which addresses Aboriginal rights in traditional cultural expressions has not been enacted. *Julien holds a Juris Doctor and a Bachelor of Arts (Communication Studies) from The University of Western Australia. Thanks are extended to The Blackstone Society for the fantastic role they perform advocating for the interests of students and enriching the university experience. 1 (1992) 175 CLR 1. 2 Michael Blakeney, ‘Milpurrurru and Ors v Indofurn Pty Ltd and Ors – Protecting Expressions of Aboriginal Folklore under Copyright Law’ (1995) 2 Murdoch University Electronic Journal of Law, available at <http://www.austlii.edu.au/au/journals/MurUEJL/1995/4.html>. 3 Michael Blakeney, ‘Protecting the Knowledge and Cultural Expressions of Aboriginal Peoples’ (2015) 39 University of Western Australia Law Review 180, 200. 4 Australian Law Reform Commission, The Recognition of Aboriginal Customary Laws, Report No 31 (1986) 470. 5 Department of Home Affairs and Environment, ‘Report of the Working Party on the Protection of Aboriginal Folklore’ (1981). 84

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Firstly, this paper will provide an overview of relevant terminology and explore the qualities of traditional cultural expressions that complicate their protection as a form of property under the Australian intellectual property framework. Secondly, Australia’s commitment under relevant international instruments will provide context to the objectives of future policy development. Thirdly, the scope of protection available to traditional cultural expressions under the Copyright Act 1968 (Cth) (‘Copyright Act’) will be examined in light of signiﬁcant case law and statutory requirements. Finally, alternative legislative solutions will be canvassed as mechanisms for providing enhanced recognition and protection at law. II

TRADITIONAL CULTURAL EXPRESSIONS A

Terminology

Reference is made throughout to the ‘traditional cultural expressions’ of Aboriginal and Torres Strait Islander persons. For the sake of discussion, this term refers to the ‘tangible and intangible forms in which traditional knowledge and cultures are expressed, communicated or manifested’6 as deﬁned by the World Intellectual Property Organisation (‘WIPO’). Examples referred to throughout this discussion include music, designs, symbols and narratives. A reference to TCEs does not encompass what WIPO terms as ‘traditional knowledge’ which includes ecological, medicinal, cultural and spiritual knowledge.7 Traditional cultural expressions form part of what the United Nations Education, Science and Culture Organisation (‘UNESCO’) Convention for the Safeguarding of Intangible Cultural Heritage (2003)8 (‘UNESCO Convention’) terms ‘Intangible Cultural Heritage’ – non-physical characteristics, practices and expressions that identify and deﬁne a group or civilisation.9 Importantly, Intangible Cultural Heritage is typ World Intellectual Property Organisation, Intergovernmental Committee on Intellectual property and Genetic Resources, Traditional Knowledge and Folklore, Glossary of Key Terms Related to Intellectual Property and Genetic Resources, Traditional Knowledge and Traditional Cultural Expressions (3 June 2016) World International Property Organisation <http://www.wipo.int/edocs/mdocs/tk/en/wipo_grtkf_ic_30/ wipo_grtkf_ic_30_inf_7.pdf>. 7 Ibid. 8 Convention for the Safeguarding of the Intangible Cultural Heritage signed 17 October 2003, in force 20 April 2006, 2368 UNTS 1. 9 Ibid. 6

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ically transmitted between generations and is maintained by a system of ownership or custodianship which is vested in the collective whole, rather than individuals.10 These characteristics have been grappled with by the legislature and the judiciary in attempting to afford protection to TCEs within the Australian intellectual property law framework. B The Challenge of Protecting Traditional Cultural Expressions Anderson notes that the challenge of protecting TCEs under Australian law assumes; firstly, that the objects of protection may be identified, and secondly, that the law is the vehicle most suited to protecting them.11 Indigenous Australian barrister and academic, Professor Mick Dodson, suggests that this disconnect may be attributed to fundamental differences between western legal systems and traditional laws and customs: It is clear that our laws and customs do not fit neatly into the pre-existing categories of the western system… The existing legal system cannot embrace what it cannot define and that is what lies at the heart of the problem.12

Notwithstanding the difficulties associated with identifying intangible subject-matter such as stories and songs, the law has also struggled to justify a right in property in relation to them.13 Specifically, whether the right should conform to the ‘pre-existing categories’ referred to by Professor Dodson, or alternative modes of recognition that acknowledge different conceptions of property and ‘ownership’ under traditional laws and customs. Whilst there is utility in recognising the shortcomings of Western legal systems in this regard, property (and therefore law) remain the primary vehicles through which Indigenous interests are being expressed.14 Accordingly, the challenge is whether the Australian legal system can find ways to accommodate what Professor Dodson refers to as ‘not simply a different type of intellectual property;

Ibid. Jane Anderson, ‘The Making of Indigenous Knowledge in Intellectual Property Law in Australia’ (2005) 12 International Journal of Cultural Property 347. 12 Ibid 347. 13 Anderson, above n 11, 350. 14 Ibid 351. 10 11

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[but] a completely different entity’.15 III

INTERNATIONAL INSTRUMENTS

On 3 April 2009, the Commonwealth Government formally announced its support for the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). Whilst UNDRIP does not create any binding legal obligations itself, it establishes a useful framework for the future development of ATSI intellectual property law and policy. Relevantly, Article 31 provides that Indigenous people have the right to: …maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures.16

Article 31 envisages that Indigenous people engage directly with the institutions that determine the means and scope of protection afforded to TCEs under Australian law. Australian Aboriginal and Torres Strait Islander Social Justice Commissioner, Mick Gooda, echoed this sentiment, noting that: We will not be able to continue to enjoy this precious knowledge and culture if we are not in a position to maintain and protect it. We must insist on an intellectual property regime that recognises and enforces the right of Aboriginal and Torres Strait Islander peoples to determine the nature and extent to which their cultural expression and heritage is used.17

This position is reﬂected in the composition of WIPO’s Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC). Sessions of the IGC commence with presentations by a panel of repre-

Michael Dodson, Report on Indigenous Traditional Knowledge (21 March 2007) Permanent Forum on Indigenous Issues <http://webcache.googleusercontent.com/search?hl=en&gbv=2&q=cache:w5el0g0SxIYJ:http://www.un.org/esa/socdev/unpfii/documents/6_session_dodson.pdf%2Bdodson%2Bcustomary%2Blaw%2B2007%2Bpermanent%2Bforum&gs_l=serp.3...17249.21733.0.21998.21.17.0.0.0.0.593.2 157.0j2j2j2j0j1.7.0.cish.1.0.0.Oc-R_gO9Brs&ct=clnk>. 16 United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UN GAOR 61st sess, 107th plen mtg, Supp No 49, UN Doc A/RES/61/295 (13 September 2007). 17 Mick Gooda, ‘Commissioner Says Enjoy the Richness of Indigenous Culture’ (Speech delivered at the Australian Human Rights Commission, Sydney, 9 August 2011). 15

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sentatives of Indigenous and local communities,18 where information presented during the panel sessions is used to inform the development of IGC policy. The most recent policy document issued by the IGC on this area is the Draft Articles for the Protection of Traditional Cultural Expressions.19 IV

The approach taken by Australian courts towards actions for infringement of copyright under the Copyright Act highlights the difficulties associated with protecting TCEs under Australian law. Notably, actions for infringement of copyright are only available in respect of expressions in their material form, rather than the ideas or information which contribute to them.20 This requirement immediately disqualifies oral expressions of knowledge, ideas and clan owned stories from attaining protection under the Copyright Act unless they have been reproduced in a recognised material form. Janke notes that this is particularly problematic in relation to ATSI people and groups, as many forms of cultural expression are typically transferred in intangible forms.21 This distinction is also reflected in matters arising before the courts – the most notable relating to visual representations of traditional stories, such as paintings and drawings. A Cases 1

Yumbulul v Reserve Bank of Australia

In Yumbulul v Reserve Bank of Australia22 (‘Yumbulul’), the Reserve Bank of Australia issued a commemorative ten dollar bank note which reproduced a design created by Terry Yumbulul, an Aboriginal artist. The design depicted a morning star pole which retained cultural signiﬁcance in ceremonies commemorating the deaths of individuals WIPO Secretariat, How Do Communities and NGOs Participate in the IGC? Word Intellectual Property Organisation < http://www.wipo.int/tk/en/resources/faqs.html#c3>. 19 Word Intellectual Property Organisation, Intergovernmental Committee on Intellectual property and Genetic Resources, Traditional Knowledge and Folklore, The Protection of Traditional Cultural Expressions: Draft Articles (7-9 July 2014) Word Intellectual Property Organisation <http://www.wipo.int/edocs/mdocs/ tk/en/wipo_grtkf_ic_28/wipo_grtkf_ic_28_6.pdf>. 20 Copyright Act 1968 (Cth) s 22(1). 21 Terri Janke and Company IP Lawyers, New Tracks: Indigenous Knowledge and Cultural Expression and the Australian Intellectual Property System (31 May 2012) IP Australia <https://www.ipaustralia.gov.au/ sites/g/ﬁles/net856/f/submission_-_terri_janke_and_company_ip_lawyers.pdf>. 22 Yumbulul v Reserve Bank of Australia (1991) 21 IPR 481. 18

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in the Aboriginal community. One of Mr Yumbulul’s morning star poles was made and sold to the Australian Museum. Mr Yumbulul had entered into a licence agreement that allowed his agent to license the work to the Reserve Bank. Mr Yumbulul attracted considerable criticism from his clan when it was discovered that the morning star pole had been reproduced on the ten dollar note. Mr Yumbulul’s knowledge of the clan’s sacred designs was passed down in various initiation and revelation ceremonies. It was submitted by the clan that under Aboriginal customary law, Mr Yumbulul had a cultural obligation to ensure a morning star pole was not used or reproduced in a way which offended perceptions of its signiﬁcance.23 Mr Yumbulul commenced an action against his agency and the Reserve Bank. Dismissing Mr Yumbulul’s action to set aside the assignment of his copyright on the basis of unconscionability, French J remarked that ‘Australia’s copyright law does not provide adequate recognition of Aboriginal community claims to regulate the reproduction and use of works which are essentially communal in origin’.24 Further, the question of the recognition of communal interests in the reproduction of sacred objects was said to be ‘a matter for consideration by law reformers and legislators’.25 Accordingly, Aboriginal customary law on whether communally owned works could be reproduced was not a matter relevant to the validity of the assignment of the copyright in works by their creator.26 2

Milpurrurru & Ors v Indofurn Pty Ltd & Ors

Following Yumbulul, the Federal Court considered substantial infringements in Milpurrurru & Ors v Indofurn Pty Ltd & Ors27 (‘Milpurrurru’). A number of carpets made in Vietnam were imported into Australia which reproduced signiﬁcant and wellknown Aboriginal artworks, including a painting by the ﬁrst applicant, Mr George Milpurrurru. The respondent delivered to the applicants a letter enclosing a cheque for Ibid 483. Ibid 490. 25 Ibid 492. 26 Michael Blakeney, ‘Communal Intellectual Property Rights of Indigenous Peoples in Cultural Expressions’ (1998) 37 Journal of World Intellectual Property 985, 988. 27 (1994) 130 ALR 659. 23 24

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$750 representing an 8% royalty for use of the works, despite some carpets selling for in excess of $4000.28 The cheque was returned and the respondent continued to import approximately 200 carpets prior to an injunction at the commencement of the trial. A claim was made in relation to alleged breaches of s 37 of the Copyright Act, which prohibits the unauthorised importation for sale of infringing works. At trial, the cultural importance of the artworks was emphasised, and the applicants submitted that as the artworks retold creation and dreaming stories, any errors in reproduction could cause offence to persons familiar with the stories.29 Further, the right to reproduce such stories was said to be limited to their traditional owners or custodians. Notwithstanding the established principle that damages under copyright law could only be awarded to compensate a loss to a copyright owner,30 von Doussa J considered the cultural ramifications of the infringements to be relevant to the loss sustained.31 Whilst the available statutory remedies did not recognise the cultural significance of the infringements under Aboriginal customary law, von Doussa J made an award of damages for ‘flagrant infringement’ under s 114(5) of the Copyright Act. Although the damages attributable to commercial depreciation were relatively low, an additional sum of $70,000 was awarded between the applicants, partly to ‘reflect the harm suffered by the first three applicants in their cultural environment’.32 The approach taken by the Federal Court in Yumbulul and Milpurrurru confirms the limitations of the Copyright Act in taking account of Aboriginal customary laws when examining a defendant’s liability for infringement of copyright. The decision in Milpurrurru is useful to creators and owners of traditional cultural expressions, as it provides one example of how courts may regard harm suffered under traditional laws and customs as relevant to issues of quantum only.

Ibid 663. Ibid 664. 30 Ibid 691; Sutherland Publishing Co Ltd v Caxton Publishing Co Ltd [1936] 1 Ch 323, 336 (Lord Wright MR). 31 Milpurrurru & Ors v Indofurn Pty Ltd & Ors (1994) 130 ALR 659, 692. 32 Ibid 696. 28 29

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John Bulun Bulun v R&T Textiles Pty Ltd

In John Bulun Bulun v R&T Textiles Pty Ltd 33 (‘John Bulun Bulun’), von Doussa J considered whether notions of communal ownership by clan groups under Aboriginal customary law may give rise to an equitable interest in copyright works. The copyright owner, John Bulun Bulun, commenced an action against R&T Textiles Pty Ltd seeking remedies for infringement under the Copyright Act for the importation of printed fabric bearing a design he produced. Following the settlement of proceedings brought under Mr Bulun Bulun’s name, a claim proceeded by Mr Milpurrurru on behalf of the clan owners, claiming that they were equitable owners of the copyright in the artwork. This right was asserted on the basis that they controlled the copyright in the artwork under customary law, and that they were the beneficiaries of the creation of the artwork by the artist acting as trustee on their behalf. The court was presented with an opportunity to address perceived shortcomings of the Australian copyright regime, specifically the recognition of private rights in preference to traditional notions of communal ownership.34 Von Doussa J concluded that a fiduciary relationship existed between Mr Bulun Bulun and the clan group. Whilst Mr Bulun Bulun could exploit the artwork for his own benefit, his fiduciary obligations required him to refrain from any action which may harm the communal interests of the clan in his artwork, including violating traditional laws and customs. As Mr Bulun Bulun had successfully enforced his copyright, the court found that the clan were not able to sue the infringing party in their own names. The court’s approach stopped short of treating the traditional laws and customs of the clan as part of the Australian legal system. Rather, the laws and customs were a consideration which formed part of the factual matrix which characterised the relationship as one of mutual trust and confidence. It is the nature of this relationship which gives rise to the fiduciary relationship and its associated obligations.35 The judgment represents a novel approach to protecting the umbrella of interests typically arising [1998] FCA 1082. Von Doussa J noted that s 35(2) of the Copyright Act 1968 (Cth) effectively precludes any notion of communal ownership in an artistic work, unless the artistic work is a work of ‘joint ownership’ within the meaning of s 10(1) of the Copyright Act. No evidence was led to this effect as joint ownership requires the contribution of skill and labour to the production of the work itself: Fylde Microsystems Ltd v Kay Radio Systems Ltd (1998) 39 IPR 481, 486, rather than the mere supply of an artistic idea. 35 Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41. 33 34

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from TCEs which extend beyond the private rights of the creator or author. B Statutory Requirements In addition to the requirement of material form, advocates for a national Indigenous intellectual property authority argue that the Copyright Act contains a number of provisions that act as structural impediments to the protection of traditional cultural expressions.36 1

Authorship requirement

The Copyright Act requires that there be an identifiable author of the work.37 This complicates matters for communities seeking to protect historic TCEs where the specific author is unknown. Further, Janke notes that identifying an author may contravene customary law if the expression is considered sacred or secret.38 In such cases, it may be desirable for ownership or authorship of the expression to be vested in the relevant community. However, the findings of the court in John Bulun Bulun indicate that the Copyright Act does not support the notion of communal authorship per se, rather, a fiduciary relationship may be imposed between the author of the work and their clan or community. 2

Duration of copyright

Copyright in a literary, dramatic, musical or artistic work subsists for 70 years following the death of the author.39 The Copyright Act does not recognise any continuing right of ATSI custodians to TCEs after the term of copyright protection has expired. Janke and Quiggin argue that this is at odds with the perpetual cultural signiﬁcance of such works, and may increase the likelihood that they will be reproduced contrary to the wishes of their traditional custodians.40

Terri Janke, above n 21. Copyright Act 1968 (Cth) s 35(2). 38 Terri Janke, above n 21. 39 Copyright Act 1968 (Cth) s 33(2). 40 Law Reform Commission of Western Australia, Indigenous Knowledge and Customary Law, Background Paper No 12 (2005) 461.

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Originality requirement

To attract the protection of copyright, the work must be original.41 Janke and Quiggin note that by their nature, TCEs are a ‘continuing expression of culture’ which draw upon pre-existing designs, stories and ceremonies.42 In light of these attributes, commentators have expressed concern that ‘new’ expressions may not meet the originality requirement under the Copyright Act.43 However, the treatment given to Mr Bulun Bulun’s design in John Bulun Bulun suggests that courts may readily recognise the skill, effort and labour expended in the production of TCEs: …although the artworks follow traditional Aboriginal form and are based on dreaming themes, each artwork is one of intricate detail and complexity reﬂecting great skill and originality.44

A similar approach was adopted in Bulun Bulun v Neljam Investments Pty Ltd45 and Milpurrurru.46 C Moral Rights The Moral Rights Act 2000 (Cth) amended the Copyright Act to provide protections in respect of the moral rights of attribution of authorship and the right not to have a work treated in a derogatory manner. The Commonwealth Government assured constituents that the regime would ‘give Indigenous communities a means to prevent unauthorised and derogatory treatment of work that embodies community images or knowledge’.47 An independent review into the visual arts and craft sector advised that the amendments ignored the communal rights of ATSI people, and further amend-

Copyright Act 1968 (Cth) s 32. Terri Janke and Robynne Quiggin, above n 40, 458. 43 Ibid. 44 John Bulun Bulun [1998] FCA 1082. 45 Unreported settled matter, Federal Court, Darwin, 1989. 46 Milpurrurru (1994) 130 ALR 659. 47 BOSTES, Aboriginal Education Board of Studies, NSW, Indigenous Communal Moral Rights (ICMR) Board of Studies Teaching and Educational Standards NSW http://ab-ed.boardofstudies.nsw.edu.au/go/ aboriginalart/protecting-australian-indigenous-art/background-information/proposals-for-change/indigenouscommunal-moral-rights-icmr/ quoting Liberal Party of Australia, The Howard Government: Putting Australia’s Interests First: Election 2001 - Arts for All (2001) 21. 41 42

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ments should be made for treatment that causes cultural harm to the relevant clan.48 A draft of the Copyright Amendment (Indigenous Communal Moral Rights) Bill 2003 was subsequently circulated. The legislation was directed toward giving ‘Indigenous communities legal standing to safeguard the integrity of creative works embodying traditional community and wisdom’.49 The Bill attracted criticism on account of its inaccessibility and ambiguous language.50 The Bill languished, and the subsequent Labor government did not implement any recommendations made in the earlier review.51 V AVENUES FOR REFORM A Community Engagement Having regard to the intent underpinning UNDRIP Article 31, meaningful dialogue on how best to enhance the protection afforded to TCEs should begin by engaging ATSI people and groups on the issue. In regards to copyright, community responses indicate that an ATSI perspective on what constitutes adequate ‘protection’ for TCEs differs substantially from the exclusive rights afforded to copyright holders under the Copyright Act.52 In the consultation phase of Janke’s Our Culture: Our Future report,53 submissions were received in response to the rights Indigenous people wanted recognised to TCEs. Of speciﬁc interest included: a.

The right to control the commercial use of TCEs in accordance with traditional customary laws;

The right to protect sacred and signiﬁcant sites; and

Department of Communications, Information Technology and the Arts, ‘Report of the Commonwealth by the Contemporary Visual Arts and Craft Inquiry’ (2002) 21. 49 Department of Communication, Information and Technology, Department of the Attorney General and the Department of Immigration and Indigenous Affairs, ‘Indigenous Communities to Get New Protection’ (Joint Press Release, 19 May 2003). 50 Jane Anderson, ‘Indigenous Communal Moral Rights: The Utility of an Ineffective Law’ (2004) 5 Indigenous Law Bulletin, 8. 51 Blakeney, above n 3, 203. 52 Copyright Act 1968 (Cth) s 31. 53 Terri Janke, Our Culture: Our Future – Report on Australian Indigenous Cultural and Intellectual Property Rights (1998) Charles Darwin University <http://www.cdu.edu.au/sites/default/ﬁles/Our%20culture%20our%20future%20report[2]%20copy.pdf>. 48

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The right to prevent uses of TCEs which may offend traditional laws and customs.54

Arguably, the treatment of TCEs in the courts and under the existing statutory framework indicates that TCEs are not ‘protected’ to the extent sought by the ATSI community. A disconnect is apparent between the exclusive rights afforded to copyright holders under the Copyright Act and legal mechanisms which account for the unique attributes of TCEs and their status in ATSI groups and clans. B Amending the Copyright Act A general consensus exists among academics and advocates that amending the Copyright Act would be an inappropriate measure. The Australian Copyright Council has noted several problems with this option including: a. b. c.

The conceptual and practical differences between copyright and indigenous customary law; Copyright regulates property rights in the creations of individuals, whereas indigenous law prescribes cultural rights linked to communities; and Copyright ignores aspects of genres and styles and offers a host of exceptions to infringement which may be irrelevant to indigenous rights.55

C Certified Trademarks The introduction of a certified trademark which identified Indigenous art and craft as ‘authentic’ to consumers was administered by the National Indigenous Arts Advocacy Association (NIAAA) until it ceased operation. Certified trademarks may be employed to establish a nationally consistent demonstration of compliance that raises consumer awareness and enhances the integrity of the market for the work.56 Any attempt to reintroduce a national certification scheme such as the ‘Boomerang Tick’ administered by the NIAAA should be mindful of the criticisms it attracted. Terri Janke and Robynne Quiggin, above n 40, 456. Australian Copyright Council, Protecting Indigenous Intellectual Property: A Copyright Perspective (March 1997) 60. 56 Krista McMeeken, ‘Certification Trade Marks: Protection of Indigenous Art and Intellectual Property Rights in Australia’ (2013) Intellectual Property Law Bulletin, 121. 54 55

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For example, the rules of certification provided for a ‘test for Aboriginality’ which over 75% of applicants failed on account of its complexity.57 Further, Croft notes that any requirement for applicants to prove their ‘authenticity’ as an ATSI person would require artists to validate their identities to others – a process likely to be opposed by the broader ATSI community.58 The introduction of a certified trademark would not account for the deficiencies of the Copyright Act. It is primarily a marketing device aimed at deterring passing off and misleading and deceptive conduct in relation to Indigenous artwork and crafts, and ensuring the proper remuneration of creators.59 D Stand-alone Legislation and Administration Due to the difficulties associated with protecting TCEs under the Copyright Act, many ATSI people and representative bodies have called for the introduction of legislation which would recognise TCEs and traditional knowledge as unique categories of intellectual property which require tailored protection.60 This is the essence of the recommendation made by Janke in response to IP Australia’s public consultation on Indigenous Knowledge. The focus of the law would be directed towards providing rights that are currently not protected under existing legislation. The law may be adapted from WIPO model laws for the protection of Indigenous knowledge and cultural expression, such as the Pacific Model for the Protection of Expressions of Culture. Janke proposes that the legislation may be administered by a central body such as a ‘National Indigenous Cultural Authority’ (NICA) which would maintain a database of rights holders and cultural material. Janke proposes that a certified trademark system could also be administered by the NICA.

Ibid. Ibid. 59 Marianna Annas, ‘The Label of Authenticity: A Certiﬁcation Trade Mark for Goods and Services of Indigenous Origin’ (1997) 3 Aboriginal Law Bulletin 4, 5. 60 See, for example, the submissions made to IP Australia in the course of their Indigenous Knowledge Consultation, available at <https://www.ipaustralia.gov.au/about-us/public-consultations/indigenous-knowledge-consultation>. 57 58

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VI CONCLUSION The question of whether the TCEs of ATSI people are protected cannot be answered without consideration of what constitutes ‘protection’ in light of ATSI interests. Jurisprudence reveals that the protections afforded to owners of copyright under the Copyright Act in its current state are inadequate in accommodating the unique status of TCEs within the Australian intellectual property landscape. Speciﬁcally, mechanisms should be developed which recognise and protect communal forms of ownership and take traditional customary law into account in considering whether protection has been infringed. The introduction of a new legislative and administrative regime may oversee the effective implementation of these changes in preference to amending the Copyright Act.

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PROTECT MY PERSONA: EXAMINING INTELLECTUAL PROPERTY RIGHTS IN CELEBRITY PERSONALITIES HANA LEE∗ This paper explores the existing Australian model of granting protection to celebrity personalities that, arguably, hold commercial value. In response to calls for reform to the existing system, intellectual property laws are assessed for their suitability as alternative protection mechanisms. Additionally the existing model is compared with personality protection laws in the US. In conclusion the paper reveals Australia’s intellectual property regime to be unsuitable for protecting celebrity personality.

INTRODUCTION

In March 2015, Google patented a system that generates personalities expressed by a robot,1 leading to speculation that one day a deceased loved one’s personality, or even that of a celebrity, could be downloaded onto said robot.2 A related question arose: if Google can patent the robot, can the celebrity (or deceased loved one, if post-mortem) get protection for their personality? In answering whether celebrity personality can, and furthermore should be, afforded protection under the intellectual property regime, I will discuss the possibility of personality protections being afforded by trademark and copyright, and then assess the current model in Australia of using the tort of passing off as a protection mechanism for celebrity personalities. Passing off will be compared to the explicit right of publicity as developed in the United States. In concluding, the comparison of the various methods of potentially protecting celebrity personality will reveal that the intellectual property regime’s speciﬁc property types are unsuitable for the protection of personality.

* Hana holds a Bachelor of Arts (International Studies) from the University of California, San Diego and a Master of International Studies (International Development Cooperation) from the Ewha Womans University, Graduate School of International Studies. Hana is currently studying the Juris Doctor at The University of Western Australia. 1 Anthony Francis Jr and Thor Lewis, ‘Methods and Systems for Robot Personality Development,’ 31 March 2015, US Patent 8 996 429. 2 Mark Prigg, ‘Google Patents System That Could One Day Download the Personality of a Celebrity or Even a Deceased Loved One to a ROBOT’, Daily Mail (online), 2 April 2015 < http://www.dailymail.co.uk/ sciencetech/article-3022251/Google-patents-download-robot-personalities-says-one-day-able-download-apps-replicate-celebrity-deceased-loved-one.html>. 98

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WHY SHOULD WE PROTECT FAME?

What exactly is the celebrity personality? The individual celebrity can be separated into three main facets: the ‘indicia of identity’, such as the name, likeness, and voice; the ‘acquired characteristics’ which are the individual’s skills, achievements, and opinions; and the ‘perceived attributes’ which are the characteristics of the persona portrayed to the public.3 The ‘perceived attributes’ is the facet with potential for commercial value, and is an amalgamated product of what Tan refers to as the ‘celebrity trinity’; the individual celebrity, the audience, and the cultural producers.4 Viewed as a trinity, the celebrity personality is a complex creation involving multiple participants. There are two general rationales for protecting personalities– individual privacy and dignity, and the right to one’s own commercial value. Individual privacy and dignity arguments are weak when speaking specifically about ‘perceived attributes’ of a celebrity. The crafted external image projected to the public is modified based on reactions from the audience and is capable of commercial exploitation.5 This persona is not the same as the internal, personal characteristics that would be relevant in protecting individual privacy or dignity. Still, the dichotomy between individual privacy and commercial value is prominent in discussions, likely because commentators do not always consider a nuanced definition of personality.6 Barbas outlines the historical development of these two rationales, noting the decline of arguments for privacy: The right of publicity eclipsed the right of privacy when modern consumer culture came to see loss of profit as the more serious and probable consequence of the unauthorized commercial exploitation of a person’s image, rather than harm to one’s dignity or emotions.7

Andrew McGee, Sarah Gale and Gary Scanlan, ‘Character Merchandising: Aspects of Legal Protection’ (2001) 21 Legal Studies 226. 4 David Tan, ‘The Fame Monster Reloaded: The Contemporary Celebrity, Cultural Studies and Passing Off’ (2010) 32 Sydney Law Review 291, 291. 5 McGee, Gale and Scanlan, above n 3, 240. 6 Hajo Rupp, ‘Who Owns Celebrity? Law and the Formation of Fame’ (2014) 12 Entertainment and Sports Law Journal 4, [46]. 7 Samantha Barbas, ‘From Privacy to Publicity: The Tort of Appropriation in the Age of Mass Consumption’ [2013] 61 Buffalo Law Review 1119, 1125. 3

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If, assuming one has a right to his or her own commercial value, the issue becomes whether that right should be a personal or a property right. Property rights would survive post-mortem and be assignable, like other proprietary interests with commercial value.8 Deeper discussion of the personal/property right divide is outside the scope of this paper, the focus being whether personality protection should fall within the sphere of intellectual property rights. A

Madow’s Moral, Economic, and Consumer Protection Rationales

Madow claims moral principles were tactically invoked at the inception of the right of publicity9 to make the ‘proposed commodification of celebrity personas…more acceptable to court and legislatures, as well as the general public.’10 He identifies two arguments based on moral principles.11 First, the plaintiff-sided argument: that a celebrity should reap what she has sown, and the defendant-sided argument disavowing free riding. The defendant-sided argument has garnered more fans, likely because it echoes rationales for unjust enrichment and unfair competition.12 Madow dismisses the plaintiff-sided argument because the celebrity individual is not wholly responsible for the creation of the ‘perceived attributes’, and the defendant-sided argument on the basis that prevention of free riding is an insufficient basis to impinge on general liberties (he is referring, assumedly, to freedom of expression). Divorced from the moral arguments are the purely economic rationales. First, to generate economic incentive for creativity, much like the rationale behind copyright13 and second, to avoid the tragedy of the commons by vesting property rights.14 Madow lists a third, relating to trademarks: the consumer protection argument. This, he says, is the need to protect consumers from deceptive practices.15 In the context of celebrity Esther Milne, ‘Materialities of Law: Celebrity Production and the Public Domain’ (2010) 104(15) Fibreculture Journal <http://fifteen.fibreculturejournal.org/fcj-104-materialities-of-law-celebrity-production-and-the-public-domain/ > 6. 9 Note that Madow’s article is on the American right of publicity, but has immense relevance to the discussion at hand, notwithstanding that Australia does not have a right of publicity. 10 Michael Madow, ‘Private Ownership of Public Image: Popular Culture and Publicity Rights’ (1993) 81 California Law Review 125, 175. 11 Ibid 184-201. 12 Hazel Carty, ‘The Common Law and the Quest for the IP Effect’ [2007] 3 Intellectual Property Quarterly 237, 259. 13 Madow, above n 10, 206. 14 Ibid 222. 15 Ibid 229. 8

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personalities, this would amount to deceiving a consumer into thinking his favorite celebrity had endorsed a certain product, or agreed to feature in a certain advertisement. Madow also offers very persuasive counterarguments questioning the purely economic rationales for protecting personalities. For now, it is sufficient to compare the economic rationales identified to the stated aim of the intellectual property system, to: create sufficiently strong property rights to ensure adequate incentives for the creation and dissemination of works, while not permitting the use of excessive market power through pricing. In both cases, the focus is on the consumer, not the producer.16

The above sentence encapsulates all three arguments – creative incentive, property rights, and consumer protection. Cathering Ng, advocating for a separate model of personality protection, has put forward the suggestion that if the underlying rationales are the same and the thing being regulated is the same (intangible property rights), then the doctrinal basis should also be the same.17 III

THE INTELLECTUAL PROPERTY REGIME

If the intellectual property regime is based on the same rationales underlying the argument for personality protection, then is it possible that the intellectual property regime could be the source for that protection? Carty has identified an ‘IP effect’: the intellectual property regime allows control over the exploitation of intangible, yet commercially valuable, property.18 As a result, there is a rise in attempts to broaden the scope, to protect more forms of intangible property, either by creating new rights or by manipulating pre-existing ones.19 The two forms of intellectual property capable of such manipulation to fit celebrity personality are trademarks and copyrights. There are definitely strong conceptual challenges with bringing a personality under the intellectual property regime – a personality is not, prima facie, capable of Productivity Commission, ‘Intellectual Property Arrangements’ (Draft Report, Productivity Commission, April 2016) 100. 17 Catherine Ng, ‘A Common Law of Identity Signs’ (2007) 20 Intellectual Property Journal 285, 363. 18 Carty, above n 12, 237. 19 Ibid. 16

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being protected by trademark or copyright. Some innovative interpretations of definitions are necessary for a celebrity’s commercial value to qualify as a trademark or copyright, however it is not entirely impossible to imagine such a scenario. Indicia of identity can be conceptualised as falling under the protection of trademarks, as long as it pertains to a brand or specific item. Additionally, the ‘perceived attributes’ of the celebrity personality, if acknowledged to be a fiction and not an accurate representation of the celebrity individual herself, could possibly fall under copyright protection. With some level of ingenuity, the manipulation necessary is not too far-fetched. A

Trademark

Trademarks can be any ‘letter, word, name, signature, numeral, device, brand, heading, label, ticket, aspect of packaging, shape, colour, sound or scent’ that is used, or intended to be used, to distinguish goods or services from someone else’s goods or services.20 They are considered personal property,21 but must be registered22 to receive protection. Once registered, they are protected for ten years23 and can be renewed.24 However, there are certain restrictions, for example wholly descriptive marks may face rejection.25 1

Advantages

Trademark infringement requires only that the violating mark be ‘deceptively similar’ or ‘substantially identical.’26 Malicious intent or damage to the plaintiff need not be shown.27 Once registered, the unlimited renewal of the protection period virtually guarantees a monopoly over that particular celebrity’s personality.28 Trademarks thus offer a potentially broad protection to personality.

Trademark Act 1995 (Cth) ss 6, 17. Ibid s 21(1). 22 Ibid Pt IV. 23 Ibid s 72(3). 24 Ibid s 80D. 25 Ibid s 41. 26 Ibid s 120(1). 27 Peter Charleton and Sinéad Reilly, ‘Passing Off: An Uncertain Remedy’ (Paper presented at Fordham Intellectual Property Conference, Cambridge University, April 2015) 4. 28 Productivity Commission, above n 16, 324. 20 21

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Limitations

It is far easier to find limitations to personality protection via trademark. The advantages themselves are cited as reasons to oppose trademarking personalities– limited material available in the public domain,29 misuse of trademarks as a tool to establish monopoly,30 undue restriction of competition,31 and the further bent of trademark protections in favor of corporate interests at the cost of small businesses32 are all oft-cited reasons against widening the scope of trademarks generally, as well as against trademark protection of personalities specifically. Some pragmatic concerns arise as well. Trademarks are capable of revocation for non-use.33 What would constitute ‘non-use’ of the celebrity persona, lack of commercial advertising or merchandising? Would it be sufficient if the celebrity individual made a public appearance? Trademark applications can also be opposed on the grounds that the applicant is not the owner of the mark.34 If, accepting the ‘perceived attributes’ theory, the celebrity individual is not the sole creator of the personality, to whom does ownership fall? Would it be the cultural producers, the handlers, agents, or perhaps the audience? The conceptual limits of ownership are difficult to define. Because trade mark infringement and passing off are often argued together, some commentators believe personality protection is best left to the common law doctrine rather than stretching the confines of trademark law.35 In fact the trademark regime was built heavily off the passing off tort.36 There is, it seems, insufficient rationale to ‘blur the legal role of trademarks’37 when an alternative cause of action exists. Ibid. Guido Westkamp ‘Personality Trade Marks and Their Limits: Frank Zappa Family Trust Inc. v Arf e.V.’ (2011) 6 Journal of Intellectual Property Law and Practice 320, 321. 31 Ibid 269. 32 Charleton and Reilly, above n 27, 20. 33 Trademark Act 1995 (Cth) Pt 9. 34 Ibid s 58. 35 Carty, above n 12, 246. 36 Apostolos Chronopoulos, ‘Legal and Economic Arguments for the Protection of Advertising Value Through Trademark’ (2014) 4 Queen Mary Journal of Intellectual Property 256, 262. 37 Lynne Weathered, ‘Trademarking Celebrity Image: The Impact of Distinctiveness and Use As a Trade Mark’ (2000) 12 Bond Law Review 161. 29 30

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Copyright is the personal property38 of the creator of a work,39 consisting of the right to reproduce, publish, perform, communicate, adapt and otherwise manipulate a creative expression. It is automatically vested once the idea is sufﬁciently expressed, or performed.40 Depending on the nature of the work, the duration differs, but generally lasts for the duration of the creator’s life plus 70 years.41 1

Advantages

Because copyright is a purely economic right based on a system of monetary reward for creative effort,42 its underlying objective fits hand-in-glove with the objective of protecting the commercial value of a celebrity personality. A wide range of remedies, including criminal penalties, are available and specifically tailored to instances of commercial scale infringement.43 Post-mortem rights would become available since the term of the copyright ends 70 years after the death of the creator and no registration process is needed. If the copyright were to be vested in the celebrity, it would not necessarily forsake the ‘celebrity trinity’ that Tan mentioned. This is because of a particular weakness in the copyright system, whereby a proliferation of collecting societies, agents, and intermediaries profit off the copyright system.44 Licensing, and joint ownership of copyright, would make profit available not just to the celebrity but also to the cultural producers and agents that took an active part in the creation of the ‘perceived attributes’ of the celebrity. Only the audience members who have contributed to the fame of that individual would be left without protection.45 However, fair dealing provisions carve out some exceptions where those audience members could access the material,

Copyright Act 1968 (Cth) s 196. Ibid s 31. 40 Ibid s 27, 29, 31. 41 Ibid s 33-4, 93-6. 42 Marett Leiboff, Creative Practice and the Law (Thompson Legal and Regulatory Australia, 2007) 90. 43 See, eg, Copyright Act 1968 (Cth) s 132. 44 Australian Law Reform Commission, Copyright and the Digital Economy, Report No 122 (2013) 195. 45 Westkamp, above n 30, 324. 38 39

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and further reforms are in progress to expand fair dealing into fair use.46 2

Limitations

While the indicia of the individual could not be protected, as names or images are not considered creative works (or subject matter other than works),47 perceived attributes could fall under copyright. However, under what category (a literary work, a performance, a sound recording) is less clear.48 The idea-vs-expression dichotomy is the biggest limitation to copyright.49 Because copyright protects expressions and not ideas, the creative work must be performed or published or otherwise expressed before it is capable of receiving protection.50 At what point would the personality be sufﬁciently expressed? And upon what medium? Would a celebrity individual’s day of shopping, if photographed by paparazzi, constitute sufﬁcient expression? This scenario also raises the issue that copyright in photographs usually belongs to the photographer, not the subject.51 The rationale for copyright, namely that without granting limited monopoly there would be little motivation to innovate,52 may not necessarily be true with celebrity personality. Fame and fortune are often motivation enough.53 Furthermore, as Australia is a net importer rather than creator of copyrighted works,54 expanding the copyright regime is akin to Australia shooting itself in the (metaphorical) foot. It directly contradicts the expressed overarching objective of the intellectual property regime to ‘improve the wellbeing of Australian society’.55 3

Moral rights?

The outcome in Perez v Fernandez [2012] FCMA 2 conjures up the possibility of using moral rights as protection for celebrity personality. The court found that both Australian Law Reform Commission, above n 45, 126-59. Carty, above n 12, 241. 48 McGee, Gale and Scanlan, above n 3, 229. 49 Milne, above n 8, 11. 50 Charleton and Reilly, above n 27, 28. 51 Copyright Act 1968 (Cth) s 208(1); Carty, above n 12, 242. 52 Australian Law Reform Commission, above n 45, 59. 53 Madow, above n 10, 231. 54 Productivity Commission, above n 16, 96. 55 Ibid 44. 46 47

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copyright and moral right infringement had occurred.56 The copyrighted work was the song; however, the moral rights infringement is of higher interest as moral rights are vested in the author or creator himself. The Court required prejudice to be shown to Pitbull’s honour or reputation, without proof of damage.57 This seems like a low threshold to meet, and moral rights may be an avenue of protecting celebrity personalities within the copyright system. However, as McCutcheon states, ‘…the moral right of integrity relies on a defendant attacking an author’s work, not an author’s character.’58 In the case of a celebrity’s ‘perceived attributes’, the line between the work and the character is blurred. Arguably, the ‘perceived attributes’ are a fabricated work of what, externally, appears to be the individual’s character. It is not the actual character of the celebrity individual. Thus, while moral rights may protect an author’s reputation, it is less clear why it is appropriate for moral rights to protect a fabricated reputation. The rationale for moral rights is also misaligned with the purpose of protecting commercial value: the celebrity seeks to protect their ‘perceived attributes’ in order to maximise commercial value,59 not to vindicate their good name. Finally, in the event that a personality was to receive copyright, it remains unclear whether the author would be the individual, her agent, her manager, or some other cultural producer involved in the ‘celebrity trinity.’ IV

PASSING OFF

Passing off is a common law tort requiring a misrepresentation that has, or (in quia timet actions) is likely to have, caused damage to the plaintiff’s goodwill,60 and in Australia has been the most relied upon cause of action for cases involving celebrity personalities.61 Misleading and deceptive conduct under the Competition and Consumer Act 2010 (Cth) s 18 has also been relied upon in the past.62 Breach of conﬁdence63 and defamation64 have also been argued in similar celebrity personality cases, despite Ibid [108]-[110]. Ibid [96]. 58 Janice L McCutcheon, ‘The Honour of the Dead - The Moral Right of Integrity Post-Mortem’ (2014) 42 Federal Law Review 485, 492. 59 Madow, above n 10, 175. 60 Erven Warnink BV v J Townend & Sons (Hull) Ltd [1979] AC 731. 61 Milne, above n 8, 7 citing Radio Corporations v Henderson (1960) SR (NSW) 576. 62 Paciﬁc Dunlop v Hogan (1989) 23 FCR 553. 63 Douglas v Hello! Ltd (No3) [2005] EWCA Civ 595; [2006] QB 125. 64 McGee, Gale and Scanlan, above n 3, 237. 56 57

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conﬁdence or damage to reputation not being the heart of the matter, but commercial misappropriation.65 These causes of action will not be discussed in depth here, but it is worth mentioning that they are often argued together with passing off, demonstrating the myriad ways personality cases have been argued without a directly relevant cause of action to support them. The tort of passing off offers a good starting point for protection of personality, as it is explicitly concerned with the protection of commercial value, in contrast to defamation or other causes of action that are based more on individual privacy and dignity.66 A

Advantages

The elements: goodwill, damage to goodwill, and misrepresentation have, over time, become easier to establish perhaps as a result of a deliberately liberal interpretation by courts. Carty accuses judges of embracing this liberal interpretation, particularly when the ‘judge is unhappy with the tactics used by the defendant.’67 For whatever reason, passing off has become the cause of action that is most accommodating to assert a right to commercial value in celebrity personality. 1

Goodwill

Goodwill, meaning a reputation worth being protected, must exist locally. Conceptually, the idea of goodwill is very similar to reputation in copyright.68 However, the existence is relatively easy to prove,69 even for foreign stars, given the hyperconnected nature of the 21st century. Given that famous people with abundant resources are usually the plaintiffs in personality cases, goodwill is often conceded.70 In the past, goodwill was confined to the same field of activity. This meant that Ian D F Callinan, ‘Privacy, Confidence, Celebrity and Spectacle’ (2007) 7 Oxford University Commonwealth Law Journal 1, 3-5. 66 Rupp, above n 6, [37]. 67 Carty, above n 12, 252. 68 Tan, above n 4, 292. 69 Ibid 299. 70 Charleton and Reilly, above n 27, 8. 65

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the plaintiff traditionally had to be in the same line of business as the defendant. However, in Henderson v Radio Corporation (1960) SR (NSW) 576, the Court established that the phrase ‘in business’ would be interpreted as widely as possible, to include all professions and callings, lessening the threshold to meet the goodwill requirement. 2

Misrepresentation

In personality cases, the question is often whether consumers were misled to believe that the celebrity had endorsed the defendant’s company or product, or consented to appearing in an advertisement.71 In Pacific Dunlop v Hogan (1989) 23 FCR 553, the court acknowledged that the ‘peculiar nature of character merchandising depends on the subtle processes of association’.72 While the subtlety of association is definitely a reality in brand marketing and advertising, the impact of the decision in law was to widen the scope of ‘misrepresentation’. Any misrepresentation that may lead consumers to think the celebrity was somehow connected to the defendant’s company or product is sufficient.73 3

Damage

Possibly because damage to goodwill, in a case involving a personality, is a highly subjective assessment, commentators note that ‘damage is often assumed once misrepresentation has been established.’74 Thus, with goodwill being easy to establish and damage assumed, misrepresentation is critical to establishing passing off.75 B

Limitations

Because passing off is concerned with commercial value, some commentators lament that it fails to recognise the cultural and social signiﬁcance of celebrity personality.76 Passing off also does not explicitly confer a property right onto the celebrity, but is a Tan, above n 4, 301. Paciﬁc Dunlop v Hogan (1989) 23 FCR 553, 584. 73 Tan, above n 4, 308. 74 Charleton and Reilly, above n 27, 8. 75 Ibid 10. 76 Ng, above n 18, 322. 71 72

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remedy only available in the event a wrong has occurred.77 Conversely, Tan believes this is preferred to the proprietary right of publicity as it caters better to the ‘celebrity trinity’ interrelationships mentioned above.78 Charleton and Reilly’s main contention is that passing off does not afford protection for personalities in merchandising cases, due to the element of misrepresentation.79 In merchandising cases, the consumer is purchasing the face or likeness of the celebrity. They are not under the assumption that the celebrity himself or herself is the producer of that merchandise, nor are they likely to be concerned with where the merchandise is coming from.80 However, if misrepresentation is the heart of passing off and it is done away with, what will be left of the action? C

Right of Publicity in the United States of America

The American right to publicity model, created in the 1960s,81 mixes property law and privacy law, but establishes a separate tort speciﬁcally protecting the right to one’s own commercial value.82 Commentators have likened the American right of publicity’s proprietary nature to reputation and goodwill in passing off.83 Unlike passing off, the right of publicity does not require proof of consumer confusion.84 Also, its explicitly proprietary character clearly answers the question of post-mortem assignability in the afﬁrmative. The question of whether Australia should adopt the right to publicity model has generated mixed answers. Some, such as the former Justice Callinan merely ask, ‘Why not?’85 Others laud the honesty of the American tort as it protects commercial value without any pretenses, but still disapprove of any proprietary rights being vested to celebrity individuals, given the collaborative nature of the ‘celebrity trinity’.86 Carty, above n 12, 250. Tan, above n 4, 297. 79 Charleton and Reilly, above n 27, 18. 80 Ibid. 81 Haelan Labs Inc. v. Topps Chewing Gum Inc, 202 F 2d 866 (2nd Cir, 1953). 82 Milne, above n 8, 3. 83 Tan, above n 4, 291. 84 Ibid 292. 85 Callinan, above n 68, 3. 86 Rupp, above n 6, [43]. 77 78

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Perhaps the strongest consideration against the implementation of an American style right of publicity in Australia is the existence of the First Amendment freedom of speech in the US. There, freedom of speech is often successfully used as a strong defence against asserting the right to publicity,87 including the derivative argument that celebrities who seek to commodify themselves by use of the limelight cannot then be offended when others commodify them in turn.88 Absent such a strong, opposing right to freedom of expression, the right of publicity in Australia would generate an unbalanced system in favor of celebrities and to the detriment of the wider public. V

CONCLUSION

The Productivity Commission recommends that an ‘efficient IP system encourages the use of alternatives to IP rights where appropriate and should not default to a reflexive use of IP rights.’89 Thus, absent convincing arguments demonstrating a need to use the intellectual property regime, an efficient system will leave related but unessential causes of action by the wayside, perhaps for other legislation or for the common law to address. This approach would better respect parliamentary intent (leaving personality out of the regime if Parliament intended to leave it out of the regime) and also guarantee a continued role for the common law. Even in the future, if the intellectual property regime were to extend to cover personality rights, it is important that the changes be made with a ‘balanced approach’.90 Without the intellectual property regime to rely on, the question is whether the current common law system affords sufficient protection of personalities. Some commentators are strong advocates for increased protection of celebrity commercial value, arguing that merely because others (audience, cultural producers) have contributed to the success of that celebrity, the misappropriation of that individual’s celebrity by others is not justified.91 Others oppose the blatant endorsement by the justice system of a cause of action that appears to advantage the rich and famous at the expense of the public interest, particularly when those celebrity individuals have other, primary

Tan, above n 4, 304. Barbas, above n 7, 1181. 89 Productivity Commission, above n 16, 62. 90 Carty, above n 12, 266. 91 Milne, above n 8, 13. 87 88

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sources of income.92 In contrast to copyright, which protects the works of all artists equally, personality protection is biased towards those who have already achieved fame.93 Then there are those who suggest that the system we have in place now is fine as it is. ‘It is suggested that the law already provides general, effective and sufficiently extensive remedies against the unauthorized use of aspects of a celebrity’s persona for commercial gain.’94 It is with these commentators that I most agree. Celebrity personality should not, for now, merit additional consideration. If it ain’t broke, why fix it?

Madow, above n 10, 211. Ibid. 94 McGee, Gale and Scanlan, above n 3, 240. 92 93

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‘DON’T SHOOT THE MESSENGER’: IMPOSING LIABILITY FOR THE USE OF TRADEMARKS AS KEY-WORDS SCOTT MONTARELLO∗ As online marketing strategies become increasingly important in e-commerce, the use of paid online marketing programs such as AdWords has increased. These programs allow companies to advertise their goods or services on search-engines, with certain user entered keywords triggering ‘sponsored links’. Google has recently amended its AdWords trademark policy to allow companies to purchase trademarks of other companies as their keywords. Courts have already absolved liability on SEs for such conduct. This article examines these recent decisions and whether such judicial movements have led to a want of protection for consumers’ interests and businesses’ reputation.

INTRODUCTION

Search engines (‘SEs’) are becoming an increasingly popular tool for navigating the internet. In conjunction with this, the use of paid advertising services on such websites has also risen. Modern businesses are thus attempting to attract as many customers to their brand as possible, through optimising their visibility on search engines.1 One common method is through the purchase of keywords from SEs, which will result in their website being highlighted to the consumer. This includes the purchase of third-party trademarks of similar businesses. Courts internationally are thus facing a balancing act between encouraging these competitive market practices, and protecting the rights of brand holders and consumers.2 Recent cases in Europe and Australia all demonstrate a reluctance of the court to impose liability on SEs.3 In Australia, two actions potentially exist against an SE, such as Google, where a business has purchased another’s trademark for use as a keyword that will trigger their own competing goods or services. These are an action in passing off, a coterminous action to misleading and *Scott is a ﬁnal year Juris Doctor student. He also holds a Bachelor of Commerce from The University of Western Australia. 1 Elizabeth Godfrey, ‘Recent Google Adwords Cases in Australia - From Googles to Spectacles’ (2012) 15 Internet Law Bulletin 78, 78. 2 Sally Foreman, ‘Improper Use of Trademarks as Keywords and Meta Tags - The Current Position in Australia’ (2014) 17 Internet Law Bulletin 243, 243. 3 See, eg, Google Inc v Australian Competition & Consumer Commission (2013) 249 CLR 345; Google France SARL v Louis Vuitton Malletier SA (C-236/08) [2010] ECR I-2417; Victor Andrew Wilson v Yahoo! UK Ltd [2008] ETMR 33 Ch D. 112

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deceptive conduct under s 18 of the ACL,4 and trademark infringement. However, it is essential that Australian courts continue on their current approach of limiting the success of actions against SEs in situations where the SE has little involvement in the selection of advertiser’s keywords. Such a stance will not threaten business’ reputation or consumers’ protection as alternative avenues of relief exist against the advertiser themselves. II

OVERVIEW OF ‘ADWORDS’ A

What Is It?

Google’s AdWords program offers advertisers the ability to pay Google a fee to list their website as a top ‘sponsored’ search result when the searched term corresponds to speciﬁed keywords. These keywords are selected by the advertiser, and typically, Google is not involved in the selection of these words.5 As part of the agreement entered into by an advertiser with Google, the advertiser is required to agree that they are solely responsible for all keywords used, and these keywords must directly relate to the landing page of the advertiser.6 It is speciﬁcally stipulated in Google’s AdWords Trademark Policy that Google will not restrict or investigate the use of trademarks in keywords, even if a trademark complaint is received.7 In effect, this allows for a company to use a competitor’s trademark as a keyword, triggering their website as a link. For example, if travel company A was to pay for travel company B’s trademark as their keyword, travel company A’s results would appear as a ‘sponsored’ result where an individual search for travel company B’s trademark.8 In such situations, issues arise as to whether this conduct is infringing upon another company’s trademark, thereby misleading consumers into believing one company’s goods and services belong to another.

Competition and Consumer Act 2010 (Cth) sch 2.(‘Australian Consumer Law’). Marlia Saunders, Anita Cade and Alysha Salinger, ‘ACCC Wins Appeal Against Google - Case Summary: Australian Competition & Consumer Commission v Google Inc [2012] FCAFC 49’ (2012) 27 Competition & Consumer Law Bulletin 282, 282. 6 Ibid. 7 Google, Google AdWords Trademark Policy <https://support.google.com/adwordspolicy/answer/6118?h l=en-GB&ref_topic=1626336&vid=1-635801363921637562-3732645859>. 8 These facts appear in the case of Google Inc v Australian Competition & Consumer Commission (2013) 249 CLR 435 (‘Google v ACCC’). 4

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B 1 (a)

Potential Actions

Passing off Law

An action in passing off exists where one company passes off another company’s goods or services as their own. This involves three elements.9 Firstly, it must be established that the plaintiff has goodwill or reputation attached to the goods or services. This is deﬁned as the ‘attractive force that brings in custom’.10 This reputation must exist in the jurisdiction in which the defendant is trading, even if the plaintiff does not have a trading presence in that area.11 Secondly, there must be a misrepresentation by the defendant to the public. This requires the plaintiff to show that the damage to their goodwill is a result of the defendant’s misrepresentation leading to consumer confusion as to the relationship between the defendant’s and the plaintiff’s goods or services.12 Thirdly, the plaintiff must prove that he has suffered or is likely to suffer damage as a result of the misrepresentation. An action in passing off is treated as being coterminous to that of misleading conduct under s 18 of the Australian Consumer Law (‘ACL’).13 Although s 18 only requires the plaintiff to show misleading or deceptive conduct on the part of the defendant, Australian courts have continuously recognised that if the conduct involves the use of a trader’s sign, then the conduct is only misleading where the plaintiff has a protectable reputation attached to the sign.14 Further, damages are required to be proved for an injunction or compensation to be awarded under the ACL.15 Thus, the actions are often pleaded in conjunction with each other as the requirements for each are, in effect, identical. Yet while passing off is intended to protect a business’ goodwill, s 18 is intended to protect members of the public.16

Reckitt & Colman Products Ltd v Borden Inc [1990] 1 WLR 491; ConAgra Inc v McCain Foods (Aust) Pty Ltd (1992) 33 FCR 302. 10 Inland Revenue Commissioners v Muller & Co Margarine Ltd [1901] AC 217, 224 (Lord Macnaghten) 11 See, eg, Alain Bernandie et Compagnie v Pavillon Properties [1967] RPC 581; BM Auto Sales Pty Ltd v Budget Rent A Car System Pty Ltd (1976) 12 ALR 363. 12 ConAgra Inc v McCain Foods (Aust) Pty Ltd (1992) 33 FCR 302, 308-9 (Lockhart J). 13 Competition and Consumer Act 2010 (Cth) sch 2, as applied in Fair Trading Act 2010 (WA) (‘ACL’). See, eg, Mars Australia Pty Ltd v Sweet Rewards Pty Ltd (2009) 81 IPR 354, 360 (Perram J). 14 See, eg, Mars Australia Pty Ltd v Sweet Rewards Pty Ltd (2009) 81 IPR 354, 360. 15 Competition and Consumer Act 2010 (Cth) sch 2, ss 234, 236. 16 See, Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Pty Ltd (1978) 140 CLR 216, 220 (Barwick CJ). 9

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(b) Application If company A uses Adwords to purchase the trademark of company B as a keyword, an action in passing off may be successful. Provided that company B has goodwill attached to their goods or services relating to their trademark, then Google may be accused of misrepresenting to consumers that company A’s goods or services belong to company B and their associated reputation. If this leads to damage to company B’s reputation, then company B will be successful in claiming passing off against Google’s Adwords program. Similarly, this is also likely to amount to a breach of s 18 of the ACL. This, so far, has been unsuccessfully alleged in Australia, as discussed below.17 2 (a)

Trademark infringement Law

A registered owner of a trademark has a right to obtain relief if the trademark has been infringed.18 A person is recognised to have infringed a trademark if the person uses as a trademark a sign that is substantially identical with, or deceptively similar to, the registered trademark.19 The ‘use’ of the sign is therefore critical to the issue of infringement. ‘Use’ is not speciﬁcally deﬁned in the Trade Marks Act 1995 (Cth), however guidance is provided in s 7. Where the use of a trademark is in relation to goods, then use of the trade mark upon, or in physical or other relation to, the goods is required.20 Similarly if in relation to services, ‘use’ of the sign means use of the trade mark in physical or other relation to the services.21 A defence is available if the defendant is able to prove that the actual use of the alleged infringing trademark is ‘not likely to deceive or cause confusion’.22 (b) Application Google’s Adwords program allows a company to register another company’s trademark as a keyword to trigger their own company’s websites. For an infringement action to be successful, it must be found that Google has ‘used’ another company’s See, eg, Google v ACCC (2013) 249 CLR 435. Trade Marks Act 1995 (Cth) s 20(2). 19 Trade Marks Act 1995 (Cth) s 120 (emphasis added). 20 Ibid s 7(4). 21 Ibid s 7(5). 22 Ibid s 120(2). 17 18

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trademark resulting in consumers being deceived as to which company the goods or services belong. However, thus far, this action in relation to the Adwords program has not been successful globally.23

III A

CURRENT LEGAL POSITION

High Court Stance Pre-Policy Change

Prior to May 2013, Google’s AdWords policy did not allow an advertiser to use a trade mark that was the subject of a complaint or investigation as a keyword.24 However, in the case of Google v ACCC25 it was found that Google, as an SE, was not responsible for the content of third party AdWords advertisements. This case concerned an action by the Australian Competition and Consumer Commission (‘ACCC’) against Google alleging misleading or deceptive conduct in relation to sponsored links, pursuant to the former equivalent of s 18 of the ACL. Speciﬁcally it was alleged that AdWords, in allowing advertisers to purchase other company’s trademarks, amounted to a misleading representation by Google as to the products or services being advertised.26 One such example was a travel company, STA Travel (‘STA’), purchasing from Google the trademark of a competitor, Harvey World Travel (‘Harvey’).27 This resulted in STA’s advertisement being triggered when ‘Harvey World Travel’ was used as a search term. The High Court unanimously held that Google did not make the misrepresentation contained in the advertisements, as it was in fact the advertiser who misrepresented to the public.28 Therefore, Google had not engaged in misleading or deceptive conduct. This conclusion was reached as a result of the principle in Yorke v Lucas29 where a corporation was said not to be liable for merely passing on information for what it was

See, eg, Google France SARL v Louis Vuitton Malletier SA (C-236/08) [2010] ECR I-2417. Minna Paltiel, ‘Google’s Change in Policy Regarding Unauthorised Use of Trade Marks as Keywords — Still not Free Reign for Advertisers: Interﬂora Inc v Marks and Spencer Plc’ (2013) 16 Internet Law Bulletin 150, 150. 25 (2013) 249 CLR 435. 26 Ibid 441. 27 James A Longden, ‘Trade Mark Use and Misleading Advertising in Google AdWords: A Comparative Analysis of Search Engine Liability in Australia and Europe’ (2014) 25 Australian Intellectual Property Journal 35, 36. 28 Ibid. 29 (1985) 158 CLR 661. 23 24

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worth.30 It is only where the representation is in fact adopted by the corporation that they will be held liable.31 The High Court concluded that adoption can only be found where it appears to ‘ordinary and reasonable members’ of the relevant class that the corporation has endorsed the representation.32 However, on the facts, it was found that the advertiser was the creator of the sponsored link and all relevant aspects, with Google having no control over a user’s search term or an advertiser’s choice of keywords.33 Ordinary and reasonable SE users would be aware that the links were created by the advertiser, and were not adopted or endorsed by Google.34 Thus, Google was absolved of liability for misleading and deceptive conduct in relation to sponsored links, given their limited involvement in the advertiser’s selection of keywords. Similarly, although not discussed in the judgment, an action in passing off would likely have reached the same conclusion due to the absence of a misrepresentation being made by Google themselves. B

Trademark Infringement

The approach taken by the High Court in Google v ACCC is entirely consistent with that taken in Europe in relation to trademark infringement. In recent European cases, Google has been held by the European Court of Justice (‘ECJ’) to not be liable for trademark infringement in acting as a mere conduit for the advertiser.35 Google France36 concerned the use by advertisers of keywords containing Louis Vuitton’s trademarks, which triggered advertisements for counterfeit Louis Vuitton goods. It was alleged, pursuant to article 1 of the Trademark Directive, that the proprietor of a registered trademark is entitled to prevent a third party from using without the proprietor’s consent, in the course of trade, any sign that is identical with, or similar to, those for which the trademark is registered.37 The liability of an SE in relation to trademark infringement was considered to be largely dependent on the interpretation of ‘use’ and in ‘the course of trade’. Google v ACCC (2013) 249 CLR 435, 443 (French CJ, Crennan and Kiefel JJ); citing Yorke v Lucas (1985) 158 CLR 661, 666 (Mason ACJ, Wilson, Deane, and Dawson JJ). 31 Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592, 605 (Gleeson CJ, Hayne, and Heydon JJ). 32 Google v ACCC (2013) 249 CLR 435, 446. 33 Ibid 458-9. 34 Ibid 460. 35 See, eg, Google France SARL v Louis Vuitton Malletier SA (C-236/08) [2010] ECR I-2417; Interﬂora Inc v Marks & Spencer plc [2010] EWHC 925. 36 Google France SARL v Louis Vuitton Malletier SA (C-236/08) [2010] ECR I-2417 (‘Google France’). 37 First Council Directive 89/104/EEEC of 21 December 1988 (OJ 1989 L 40, p 1) (emphasis added). 30

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The ECJ held that a sign is used in the ‘course of trade’ where ‘it occurs in the context of commercial activity with a view to economic advantage’.38 On this basis, it was found that an SE, in allowing advertisers to select other proprietor’s trademarks as their keywords in the Adwords program for an economic beneﬁt, was operating ‘in the course of trade’.39 However, it does not follow that the SE ‘uses’ those signs within the terms of Article 5 of the Trademark Directive.40 The ECJ stipulated that ‘use’ requires the SE to use the sign in their own ‘commercial communication’, irrespective of whether the SE is paid by the advertiser for the use of the signs as keywords.41 Although the language of ‘commercial communication’ has been subsequently criticised,42 it has been suggested that this merely seeks to remind parties that the use will constitute an infringement only where the trademark is used in their own communication in an effort to promote their own goods or services.43 On this basis, the ECJ held that Google did not in fact infringe upon Louis Vuitton’s trademarks as it was not used by them, rather it was used by the advertiser themselves.44 C

Comparing the Approaches

Both the ECJ and the High Court have viewed SEs, such as Google, as mere conduits conveying the message of advertisers. Google does not itself use the information provided by advertisers. Rather, its actions are limited to the automated assembly and conveyance of the advertisement for a third party.45 This does not amount to an infringement of a trademark or misleading and deceptive conduct, amounting to an action in passing off according to either jurisdiction’s approach. The approach in relation to trademark infringement taken by the ECJ is similarly likely to be followed by the High Court, if such a case were to arise. As in the European Trademark Directive, Australia’s Trade Marks Act 1995 (Cth) requires ‘use’ of the sign for an infringement Google France (C-236/08) [2010] ECR I-2417, I-2496; citing Arsenal Football Club (C-206/01) [2002] ECR I-10273, I-10314. 39 Google France (C-236/08) [2010] ECR I-2417, I-2497. 40 Ibid. 41 Ibid. 42 See, eg, Note, ‘Trademark Law - Infringement Liability - European Court of Justice Holds that Search Engines do not Infringe Trademarks’ (2010) 124 Harvard Law Review 648 cited in Longden, above n 26, 44. 43 Longden, above n 26, 44. 44 Google France (C-236/08) [2010] ECR I-2417, I-2498. 45 Longden, above n 26, 48. 38

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to occur.46 As Google merely assembles the advertiser’s information, this is highly unlikely to amount to ‘use’, given both the ECJ’s approach in Google France as well as the High Court’s current attitude to misleading or deceptive conduct by an SE in Google v ACCC. Thus, despite the differences in legal regimes, the underlying characterisation of an SE in both jurisdictions as a mere conduit for the advertiser is ‘remarkably similar’.47 IV

A STEP IN THE RIGHT DIRECTION?

In response to the High Court’s judgement in Google v ACCC, Google amended its Adwords trademark policy in Australia, amongst other countries.48 Under the new policy, Google will not restrict or investigate the use of trademarks in keywords, even if a trademark complaint is received.49 This is in line with the above cases establishing that an SE will not be liable for the acts of their advertisers in the absence of more substantial SE involvement. However, are these decisions by both European and Australian courts, leading to such policy changes, justiﬁed? Further, are consumers still provided with adequate protection from misrepresentations, and businesses from damage to their reputation? A

Wide Liability

As suggested by Heydon J in Google v ACCC, if the mere act of publication of an advertisement was sufﬁcient to ﬁnd liability for misleading and deceptive conduct, or alternatively passing off or trademark infringement, this would result in extremely wide absolute liability for intermediary publishers such as Google.50 Under this approach, as advocated by Hayne J, an SE would be liable for the publication of any advertisement that infringed a trademark or was misleading, unless it was shown that it had no reason to suspect that the advertisement was misleading or an infringement on a third party’s trademark.51 This would have the potential to result in liability being imposed on Google for any sponsored link containing another party’s trademark as a keyword Trade Marks Act 1995 (Cth) s 120. Longden, above n 26, 48. 48 Paltiel, above n 23, 150. 49 Google, Google AdWords Trademark Policy <https://support.google.com/adwordspolicy/answer/ 6118?hl=en-GB&ref_topic=1626336&vid=1-635801363921637562-3732645859>. 50 Google v ACCC (2013) 249 CLR 435, 491. 51 Longden, above n 26, 40. 46 47

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on Google, if this onus of proof could not be discharged.52 However, in ruling as both the ECJ and High Court did, an SE will not be liable unless or until the publisher engaging in the wrongful conduct endorses or adopts the conduct.53 This approach is thus justiﬁed, as it is would be entirely illogical and unfounded to hold an SE liable for merely re-communicating and assembling an advertiser’s information in the form of keywords, particularly as it is often conducted without any human involvement. B

Technological Neutrality

Heydon J has recognised that if a different rule were to apply to online publishers, as opposed to traditional media companies, technological neutrality would no longer exist in an action for passing off or misleading or deceptive conduct.54 Google, like any SE, is utilising its AdWords program merely as a means of providing communication between advertisers and their target audience. On this basis, Google is not relevantly different from any other intermediary such as a newspaper publisher or broadcaster who similarly communicate on behalf of advertisers to consumers.55 The mere existence of software behind AdWords which compiles and disseminates the advertiser’s message is not sufficient to distinguish Google from any other intermediary.56 The recognition of this by the High Court confirms that online advertising is to be treated in the same way as any other form of advertising media.57 That is, provided that the broadcaster or service provider does not determine the content of the advertisement itself, then they are unlikely to be found liable for misleading or deceptive representations amounting to an action in passing off, or for trademark infringement.58 This consistent approach to the treatment of all publication methods is sensible and appropriate. As all publishers are advertising for the same purpose of financial benefit, and provided that there is not a notable difference in the publishers’ respective contributions to the advertiser’s message, there is an absence of any real basis of differentiation between media formats. This consistency amongst formats is essential to Daniel Tynan, ‘Google Inc v Australian Competition and Consumer Commission’ (2013) 28(7) Competition & Consumer Law News 106, 108. 53 Peter Leonard, ‘Internet Intermediary Liability: A Landmark Decision by the High Court of Australia in Google Inc v ACCC’ (2013) 15 Internet Law Bulletin 158, 160. 54 Google v ACCC (2013) 249 CLR 435, 484. 55 Ibid 459. 56 Ibid cited in Longden, above n 26, 40. 57 Tynan, above n 50, 108. 58 Ibid. 52

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maintaining technological neutrality. C

Alternative Actions

In registering a trademark, it is stipulated in s 43 that the trademark must be rejected if, because of the connotation of the trademark, it would be likely to deceive or cause confusion.59 This purpose of such a provision is to ‘prevent the public from being deceived or confused as to the nature of goods being offered’, such as if the sign is deceptively similar to another mark.60 In preventing public deception, consumers’ interests are protected, while also acting to protect businesses’ with valuable reputation or goodwill attached to their trademarks. Similarly an action in passing off hinges upon the first element, as with an allegation of trademark infringement,61 of establishing that a business’s goods have acquired a reputation among the public, highlighting the importance of protection of this goodwill.62 Thus, it is essential that the courts maintain protection of these two interests, without imposing an unnecessary burden on SEs, thereby preventing a competitive marketplace. However it should not be considered that, in limiting the liability of SEs in relation to the use of trademarked keywords by advertisers, a threat to business reputation and consumer interests is arising. These interests are adequately protected by other means. Specifically, action should be taken against the advertiser directly, and not against the SE acting as a mere channel of communication for the advertiser.63 In the recent UK case of Cosmetic Warriors v Amazon,64 action was taken against an advertiser on the basis of trademark infringement. It was held that Amazon.co.uk Ltd (Amazon) had infringed upon Lush Ltd’s (Lush) trademark in the use of their trademark as a keyword by Amazon on AdWords. The facts in this case showed that where an internet user searched for ‘Lush’ on Google, they were presented with various links to Amazon.co.uk which, when clicked on, failed to display any products of Lush. Rather, similar products to those of Lush’s, but from different manufacturers Trade Marks Act 1995 (Cth) s 43. Pfizer Products Inc v Karam (2006) 219 FCR 585, 599 (Gyles J). 61 Trade Marks Act 1995 (Cth) s 120(3). 62 Reckitt & Colman Products Ltd v Borden Inc [1990] 1 WLR 491; ConAgra Inc v McCain Foods (Aust) Pty Ltd (1992) 33 FCR 302. 63 See, e.g., Interflora Inc v Marks & Spencer plc [2010] EWHC 925. 64 Cosmetic Warriors Ltd and Lush Ltd v Amazon.co.uk Ltd and Amazon EU SARL [2014] FSR 31 (‘Cosmetic Warriors v Amazon’). 59 60

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were displayed as sponsored links, with Lush’s trademark remaining visible in the link displayed to the consumer in some cases. It was held by the court that, in instances where the trademark remains visible in the link presented to the consumer, infringement is established.65 In such cases, the average consumer would not be able to ascertain that the link to the goods presented were not links to Lush’s goods.66 In situations where the trademarked name was not listed in the sponsored link, it was not considered an infringement as it is likely that the average consumer will understand that the link was ‘just another ad’ from a supplier of similar products.67 Although such an action is yet to be brought in Australia, it is likely a similar result will be reached. If the sponsored link of a competitor is to contain a company’s trademarked name, then this will amount to the consumer being deceived and confused as to the origin of the good.68 The result is that the advertiser is liable for trademark infringement.69 Thus, in allowing actions against the advertiser themselves, consumers’ interests remain protected, as they are not misled by the use of a trademark by a competitor. Further, the availability of this action acts to protect the reputation of businesses’ such as Lush who may not wish to be associated with their competitors’ products. V

CONCLUSION

It would be contrary to public policy to prevent an action being available for the use of trademarks in sponsored links. This would lead to the undesirable result whereby consumers would become vulnerable to being misled into purchasing goods or services of unknown origin, as in Cosmetic Warriors v Amazon.70 Further, the well-known reputation of many businesses could be exploited to the beneﬁt of competitors without an opportunity for legal redress. Transparency is thus key to prevent such outcomes.71 It is clear that, absent signiﬁcant contribution to the keyword selection process by an SE, an SE will not be liable in Australia or Europe for the use of trademarks as key Peter Knight, ‘When Does the Use of Adwords Become Unauthorised “Use of a Registered Trade Mark in Relation to” Goods or Services?’ (2014) 17 Internet Law Bulletin 69, 70. 66 Cosmetic Warriors v Amazon [2014] FSR 31, 725-6 [42]. 67 Ibid 726 [48]. 68 Trade Marks Act 1995 (Cth) s 10. 69 See, Trade Marks Act 1995 (Cth) s 120(1). 70 Cosmetic Warriors v Amazon.co.uk. Ltd [2014] FSR 31. 71 Ibid 723-4 [35]. 65

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words in their sponsored links programs, such as AdWords. However, this does not pose a bar to the protection of these consumer interests and business reputations. The appropriate action should, and does, lie against the advertiser themselves and not the SE. Provided that the infringement is sufﬁcient to amount to consumer deception or confusion, then the claim will be successful. In allowing the action to exist against the advertiser, technological neutrality is maintained and issues of inordinately wide liability for SEs are prevented. An SE, as with any publisher, should not be held liable for the mere act of assembling the message of an advertiser.

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SHALE GAS IN THE CANNING BASIN: THE EFFICACY OF STATE AGREEMENTS IN WESTERN AUSTRALIA EDWARD H. DYMOND∗

State agreements operate as a means of enshrining rights and obligations between companies and state governments in order to circumvent existing state laws which inhibit the viability of certain mining operations. In the Western Australian context, the ratification of the Natural Gas (Canning Basin Joint Venture) Agreement Act 2013 (WA) (‘Canning Basin Act’) raises important policy considerations involving legal ramifications, environmental concerns, Indigenous land rights, and mining competition – all of which determine its efficacy. This paper uses the Hon Premier Colin Barnett’s justification for ratifying the Canning Basin Act as a starting point in examining these policy considerations. The author suggests that the overarching economic necessity for such a state agreement, which not only provides security for local enterprises but encourages international investment, overrides policy considerations which would, ordinarily, raise valid concerns about its implementation.

INTRODUCTION

The ratification of the Natural Gas (Canning Basin Joint Venture) Agreement Act 2013 (‘Canning Basin Act’) provides a unique framework for shale gas exploration rights in Western Australia. Colin Barnett justifies the state agreement as a way of circumventing the restraints imposed by the Petroleum and Geothermal Energy Resources Act 1967 (WA) (‘PGERA’).1 The agreement suspends relinquishment obligations for developers and provides greater flexibility and certainty in order to meet the requirements of an evolving industry. Such a position does, of course, give rise to numerous policy considerations which dictate the efficacy of such an arrangement. It is essentially a balancing act of competing policy considerations which deal not only with the economic future of the State, but also with broader issues involving legal ramifications, environmental concerns, Indigenous land rights, and mining competition. Having said this, it is proposed that Barnett’s justification is a valid one. This essay will begin by defining a state agreement and exploring the ratification process before turning to the above policy considerations which, on balance, necessitate the ratification of the Canning Basin Act.

* Edward is a graduate of The University of Western Australia having graduated with degrees of Bachelor of Laws and Bachelor of Arts (Hons). 1 Western Australia, Parliamentary Debates, Legislative Assembly, 8 May 2013, 276 (Colin Barnett, Premier and Minister for State Development). 124

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II STATE AGREEMENTS A contract between a company and a government is known, among other things,2 as a state agreement. In Western Australia such agreements form the ‘central pillar’3 of the economy making up 80% of mining and petroleum production.4 They are, essentially, a legal framework which covers the ‘approval, management and monitoring of a large resource project’.5 They set out the rights and obligations of both parties even before the exact details of the project are known.6 Indeed, it is not usual for the exact parameters to be established nor final confirmation given on whether a project will go ahead,7 but they will specify land access, royalties, applicable taxes, as well as other financial and non-financial concessions.8 The overarching purpose is to provide flexibility and certainty in order to progress a project. As Barnett states, an agreement should not be used to ‘tie up vast areas of land for long periods without any development being achieved’.9 This is because, as John Southalan concludes, a state agreement is more than just a contract, but is a ‘public policy process because it ‘regulates’ a mining operation affecting citizens and economic development’.10 Due to this public policy aspect a state agreement undergoes a lengthy ‘ad hoc’ negotiation process between the state and the developer.11 Negotiations commence following the discovery of a mineral deposit or if further exploration is needed to verify a discovery.12 Barnett asserts that the State must be certain ‘that the project is suffi John Southalan, Mining Law and Policy: International Perspectives (Federation Press, 2012) 172. Anne Fitzgerald, ‘Mining Agreements in the Regulation of the Australian Minerals Sector’ in Elizabeth Bastida, Thomas Wälde and Janeth W Fernandez (eds), International and Comparative Mineral Law and Policy (Kluwer Law International, 2005) 681, 684. 4 John Southalan et al, ‘Parliaments and Mining Agreements: Reviving the Numbed Arm of Government’ The University of Western Australia IM4DC Action Research Report, 13 April 2015, [14]. 5 Anne Fitzgerald, Mining Agreements: Negotiated Frameworks in the Australian Minerals Sector (Prospect Media, 2010) 8. 6 Ibid 10. 7 Southalan, above n 2, 174; Leigh Warnick, ‘State Agreements’ (1988) 62 Australian Law Journal 878, 880. 8 Southalan, above n 2, 174; Auditor General for Western Australia, ‘Developing the State: The Management of State Agreement Acts’ (Report No 5, Office of the Auditor General, Jun 2004) 9. 9 Colin Barnett, ‘State Agreements’ (1996) 15 Australian Mining and Petroleum Law Association Yearbook 314, 318-9. 10 Southalan, above n 2, 176. 11 Richard Hillman, ‘The Future Role for State Agreements in Western Australia’ (2006) 25 Australian Resources and Energy Law Journal 293, 293. 12 Fitzgerald, above n 5, 6. 2 3

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ciently advanced to enable the government and the developer to address the key issues involved in an Agreement’.13 Part of this process involves the developer supplying a feasibility study which defines any issues; ensuring that all environmental, Aboriginal heritage, and native title requirements will not hinder a proposed site; as well as disclosing any equity participants to the agreement.14 Once a proposal has been reviewed by the relevant departmental authorities, it is signed by the developer and the Minister or Premier and presented, as a Schedule to a bill,15 for ratification by state parliament.16 A Ratification Once both houses of state parliament have passed the bill it will become ratified. In the process, Members of Parliament are often made aware of the pressing need to pass the bill in order to avoid the risk of ‘losing the project’17 – a point not lost on Members during the passing of the Canning Basin Act.18 The purpose of ratification is to enable the agreement to operate outside of conflicting state laws.19 The effect of this is to enable an agreement’s provisions to override ‘existing statutory laws of the state to the extent of any inconsistency’,20 with legal effect confirmed by the Government Agreements Act 1979 (WA).21 Such legislation may include the Mining Act 1978 (WA) and the Land Administration Act 1997 (WA),22 but does not include Commonwealth legislation by virtue of s 109 of the Commonwealth of Australia Constitution Act 1900 (Cth). This provides certainty that the project can progress unhindered and removes any ‘doubts about the State’s power to enter into the contract’.23 In addition, the ‘need for amendment of numerous existing individual statutes could be avoided’. 24 Ratification does not, however, provide safeguards against future statutory reform.25 Indeed, it was held in Re Michael, Ex parte WMC Resources Ltd [2003] WASCA 288 Barnett, above n 9, 319. Ibid. 15 Auditor General, above n 8, 9. 16 Fitzgerald, above n 5, 6. 17 Ibid 315-316. 18 Western Australia, Parliamentary Debates, Legislative Assembly, 21 May 2013, 827 (William Johnston). 19 Hillman, above n 11, 293. 20 Julia Horsely, ‘Conceptualising the State, Governance and Development in a Semi-Peripheral Resource Economy: The Evolution of State Agreements in Western Australia’ (2013) 44(3) Australian Geographer 283, 284. 21 Government Agreements Act 1979 (WA) s 3. 22 Auditor General, above n 8, 9. 23 Fitzgerald, above n 3, 682. 24 Fitzgerald, above n 5, 271. 25 Leigh Warnick, ‘State Agreements’ (1988) 62 Australian Law Journal 878, 882. 13 14

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(‘Re Michael’) that as ‘a matter of fundamental constitutional principle, no parties, not even the State acting by its Executive Government, can purport to bind the Parliament in respect of legislative action’.26 This forms the basis of parliamentary sovereignty.27 B

Enforcement and Amendment

Notwithstanding the decision in Re Michael, the provisions of state agreements operate with statutory effect.28 They are binding on both the State and the parties to the agreement for their duration, which can sometimes be for the lifetime of the project.29 The terms of the agreement have ‘public legal force beyond a simple contractual arrangement between the parties’.30 As Richard Hillman states, though a state agreement is ‘designed to lock in rights, it also locks in liabilities’.31 At the same time, as illustrated in Hancock Prospecting Pty Ltd v BHP Minerals Ltd [2003] WASCA 288, state agreements may also confer justiciable rights on third parties.32 Alteration of an agreement can be made by mutual consent in accordance with the terms of the agreement or by legislative amendment.33 According to Hillman this may prove a problem in unforeseen circumstances, as amending the agreement is a time-consuming process.34 In addition, John Southalan et al point out that it is generally a political process with governments agreeing to amend only after consent is given from the relevant company;35 neither party can force the other to do so.36 Such amendments may include the extension of timeframes which is evident from the Natural Gas (Canning Basin Joint Venture) Agreement Amendment Act 2016 (WA) which was given Royal Assent on 28 February 2016.37 Although parliament is not ‘shackled’ and may repeal any agreement,38 it has not done so, with Barnett concluding that it is ‘testimony to the importance of State Agreements that no Parliament has even attempted Re Michael; Ex Parte WMC Resources Ltd [2003] WASCA 288, 312 [45] (Parker J). Southalan et al, above n 4, [20]. 28 Southalan, above n 2, 177. 29 Auditor General, above n 8, 9. 30 Southalan, above n 2, 177. 31 Hillman, above n 11, 326. 32 [2003] WASCA 259, 319 [69]-[70] (Parker J). 33 Natascha Sommer and Alex Gardner, ‘Environmental Securities in the Mining Industry: A Legal Framework for Western Australia’ (2012) 31 Australian Resources and Energy Law Journal 242, 245. 34 Hillman, above n 11, 326. 35 Southalan et al, above n 4, [20]. 36 Fitzgerald, above n 5, 230. 37 Natural Gas (Canning Basin Joint Venture) Agreement Amendment Act 2016 (WA) s 7. 38 WA Government, above n 8, 9. 26 27

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such unilateral repeal action’.39 Perhaps the reason for this lies in the state’s desire not to ‘scare away other investment’.40 III

THE EFFICACY OF STATE AGREEMENTS

The implementation of state agreements is often fraught with legal difficulties. Leigh Warnick suggests that they offer a ‘treasure-trove of conceptual issues’ for lawyers.41 Such issues not only include statutory interpretation,42 but also the effect that certain terms have on the general law.43 Indeed, it has been argued that state agreements should be replaced by a uniform system which deals with all aspects of mining,44 with the broader criticism that state agreements impede the objective rule of law.45 However as Southalan et al state, parliaments do not have the time or resources to legislate for every conceivable arrangement especially given the uncertainty that surrounds a project’s implementation.46 Nevertheless, security and risk avoidance forms a core part of the desirability of state agreements. This includes not only security against political interference from governments,47 but also security of tenure for companies ‘where it might not be feasible … under the general legislation’.48 A corollary of this is that state agreements have the capacity to regulate natural resource development by complementing existing legislation.49 Barnett’s justification for ratifying the Canning Basin Act must be considered against numerous policy considerations. The overall purpose of the agreement is to modify the relinquishment obligations of the parties to the agreement, giving them greater flexibility as well as the security of retaining tenure for longer periods.50 Overall, it is the benefit of Western Australia that is paramount. As John Chandler articu Barnett, above n 9, 317. Southalan, above n 2, 188. 41 Warnick, above n 25, 878. 42 See, eg, Alyce Ricciardi, ‘Interpreting State Agreements: The Changing Role of Surrounding Circumstances’ (2014) 33 Australian Resources and Energy Law Journal 339, 351. 43 John Southalan, above n 2, 177. 44 Fitzgerald, above n 5, 35; Southalan, above n 2, 179. 45 Southalan, above n 2, 179; John Southalan, ‘Parliamentary-Ratified Agreements in the Resources Sector’ in Kanaga Dharmananda and Leon Firios (eds), Long Term Contracts (Federation Press, 2013) 163, 163. 46 Southalan et al, above n 4, [9]. 47 Fitzgerald, above n 5, 326. 48 Hillman, above n 11, 297. 49 Fitzgerald, above n 5, 33. 50 Western Australia, Parliamentary Debates, Legislative Council, 18 June 2013, 1596 (Peter Collier). 39 40

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lates: The bigger and more essential issue here is preserving the relative attractiveness of Western Australia (or indeed Australia) as against other jurisdictions where petroleum companies can explore, while ensuring that a proportion of the gas found will be developed for use within Australia.51

The need for the agreement is apparent from the inability of PGERA to facilitate mining operations that were not contemplated when it was drafted. However, the use of such an agreement must be considered in the context of the following policy considerations in order to determine its efﬁcacy. A

Economic Growth

State agreements are often propagated as a means of promoting economic growth.52 Such economic growthwas no doubt an important policy consideration in relation to implementing the Canning Basin Act. As Barnett stated in Parliament on May 8 2013: The onshore Canning Basin and the associated gas and liquids have the potential to make a signiﬁcant long-term contribution to Western Australia’s economy and stimulate economic growth.53

The extent of the Ordovician-age shale deposit is unknown,54 but it represents a significant solution to Western Australia’s gas needs, especially following the 2009 Varanus Island gas incident.55 According to Anne Fitzgerald, one of the most important aspects of state agreements is their ability to ‘identify the project’s economic significance to the State and the State’s support for it’.56 Without an agreement of this nature, a state would not receive ‘royalties, taxes, job creation nor other economic and social benefits’.57 In addition, state agreements provide the certainty that attracts foreign investment.58 This leads Fitzgerald to conclude that state agreements are responsible for ‘accelerating Australia’s emergence as a leading mineral producer and

John Chandler, ‘Shale Gas and Government Agreements in Western Australia’, (2014) 33 Australian Resources and Energy Law Journal 44, 52. 52 See, eg, Barnett, above n 9, 318; Fitzgerald, above n 5, 7; Auditor General, above n 8, 14. 53 Western Australia, Parliamentary Debates, Legislative Assembly, 8 May 2013, 275 (Colin Barnett). 54 Tina Hunter and John Chandler, Petroleum Law in Australia (LexisNexis, 2013) 182. 55 Ibid 196; Chandler, above n 54, 46. 56 Fitzgerald, above n 5, 8. 57 Auditor General, above n 8, 13. 58 Fitzgerald, above n 5, 119-120; Southalan, above n 2, 178. 51

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exporter’.59 The question is whether economic growth can outweigh other public policy considerations. B

Environmental Concerns

The impact of ‘fracking’ is an important policy consideration in granting shale gas exploration rights in anystate agreement. Fracking involves pumping a pressured chemical concoction into isolated shale formations in order to ‘fracture’ the shale and extract it.60 Public concern has arisen over the effect of fracking on the environment and to human health.61 Robin Chapple voiced her concerns in Parliament on 18 June 2013 by stating that ‘this is a state agreement over a development that has no approval from the Environmental Protection Authority and has not undergone an environmental assessment’.62 State Agreements are, however, subject to the Environmental Protection Act 1986 (WA) unless otherwise provided for in the Agreement.63 As Kate Doust conﬁrmed: It is … important to note that the bill does not set aside any environment regulations, and the ability for the companies to use fracking is neither enhanced nor hindered by this bill. The bill is technologically neutral.64

Peter Collier conceded that fracking may be required as part of the exploration process, but that such actions would be governed by ‘normal law’.65 Such laws, he declared, include the ‘Environmental Protection Act, the Petroleum and Geothermal Energy Resources Act, and the Rights in Water and Irrigation Act’.66 Indeed, the advent of onshore shale gas mining has necessitated the need for comprehensive regulations enforced by the Western Australian Department of Mines and Petroleum.67 This occurs in consultation with the ‘Environmental Protection Agency, Department of Water, and the Department of Environment and Conservation’.68 While it is true to say that the Fitzgerald, above n 5, 309. Tina Hunter, ‘Shale Gas Resources in Western Australia: An Assessment of the Legal Framework for the Extraction of Onshore Shale Gas’ (2011) 18(2) eLaw Journal 29, 35. 61 Ibid 30. 62 Western Australia, Parliamentary Debates, Legislative Council, 18 June 2013, 1593 (Robin Chapple). 63 Environmental Protection Act 1986 (WA) s 5. 64 Western Australia, Parliamentary Debates, Legislative Council, 18 June 2013, 1589 (Kate Doust, Deputy Leader of the Opposition). 65 Ibid 1597 (Peter Collier). 66 Ibid. 67 Hunter and Chandler, above n 57, 234. 68 Ibid 237. 59 60

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Canning Basin Act has not undergone the scrutiny of an environmental assessment, it is clear that any fracking operation would be heavily regulated by other state laws and departments. C

Indigenous Peoples

The passing of the Canning Basin Act also raises some important policy considerations with regard to the rights of Indigenous peoples. For the most part, mining operations in Australia occur without Indigenous agreement or input.69 As Southalan states, the mining of petroleum is ‘simply the latest resource for which indigenous people have been pushed from their lands in Australia’.70 This is not to say that Indigenous people are opposed to mining per se, but there is concern over the exclusion of Indigenous groups from decision-making in projects that impact upon their traditional lands,71 especially when Indigenous peoples have a ‘right to negotiate’ under the Native Title Act 1993 (Cth).72 Indeed, litigation has resulted from state agreements with Indigenous people concerned with their land rights.73 Yet Indigenous peoples often seek ‘cooperative engagement’74, a factor which is absent during the negotiation process of state agreements. The lack of ‘cooperative engagement’ was raised in Parliament during the passing of the Canning Basin Act. Josie Farrer questioned the Premier’s use of state agreements and the lack of consultation with Aboriginal people. She stated that [t]he ﬁrst step that should be taken is to show some respect to these people. We see this project covering a huge area of the country for some of the biggest language groups across the west and into part of the East Kimberley areas, including the Nyikana–Mangala, Karrajarri, Gooniyandi, Ngurrara, Tjurabalan, Walmajarri, Juwaliny, Yawuru, Bunuba and some Jaru land … We all know that a development of this type will have a big impact on the land use and practises of local Aboriginal people, and also the social impact that will occur once areas become established.75

Southalan, above n 2, 128. John Southalan, ‘Australian Indigenous Resource Developments: Martu People v Reward Minerals’ (2009) 27 Journal of Energy & Natural Resources Law 671, 672. 71 Fitzgerald, above n 5, 321. 72 Native Title Act 1993 (Cth) Preamble. 73 See, eg, State of Western Australia v Alexander Brown & Ors [2014] HCA 8; Graham (Ngadju People) v Western Australia [2014] FCA 700. 74 Fitzgerald, above n 5, 321. 75 Western Australia, Parliamentary Debates, Legislative Assembly, 21 May 2013, 834 (Josie Farrer). 69 70

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This was a point also raised by Chapple who could not understand why we have an agreement with native title parties in one area of gas development, which will bring in $1.5 billion in royalties to the native title parties, and here, theoretically, we have a gas development that is larger than the Browse development, and on land, and we actually have no negotiated process with the native title parties.76

Collier affirmed, however, that the agreement did not modify the statutory rights of Indigenous peoples under the Native Title Act 1993 (Cth).77 He also stressed that the parties to the agreement had to comply with the Aboriginal Heritage Act 1972 (WA) in regard to operating within places of Indigenous significance.78 In this instance, ‘places of Indigenous significance’ would include burial remains as well as landmarks of cultural and spiritual importance.79 Even so, it is difficult to rationalise why Indigenous groups should be excluded from involvement at such an early stage. Nonetheless, it could be said that the purpose of the agreement is to explore and verify the extent of shale gas reserves. The detailed provisions of an agreement – including the relationship between the government, companies, and Indigenous peoples – can only be settled once further information becomes available, including the feasibility of mining in the first place.80 D

Transparency

The lack of Indigenous input also highlights the lack of transparency in the process of negotiating state agreements. Although the ratiﬁcation process offers the opportunity for some public scrutiny, the negotiation process largely occurs ‘behind closed doors’.81 Fitzgerald suggests that because negotiations are over by the time the agreement reaches Parliament, there is ‘no opportunity for detailed scrutiny of the agreement either by the public or the legislature’.82 Similarly, Southalan et al assert that ‘there is scarce explanation by any Australian government of how negotiation occurs, and cer Western Australia, Parliamentary Debates, Legislative Council, 18 June 2013, 1592 (Robin Chapple). Ibid 1597 (Peter Collier). 78 Ibid. 79 Maureen Tehan and Lee Godden, ‘Legal Forms and their Implications for Long-Term Relationships and Economic, Cultural and Social Empowerment: Structuring Agreements in Australia’ in Marcia Langton and Judy Longbottom (eds) Community Futures, Legal Architecture: Foundations for Indigenous Peoples in the Global Mining Boom (Taylor and Francis, 2012) 111, 113. 80 Fitzgerald, above n 5, 324-5. 81 Ibid 314. 82 Ibid 315. 76 77

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Shale Gas In The Canning Basin: The Efﬁcacy Of State Agreements In Western Australia

tainly no requirement for any publicity or public involvement prior to the agreement being presented to parliament’.83 In the case of the Canning Basin Act, Members of Parliament were asked to pass the bill without knowing if shale gas existed let alone the method by which it might be obtained. As Chapple put it: ‘This agreement puts the cart before the horse before we have even assessed whether the technology is suitable’.84 In any event, the urgency of the bill hampered further discussion. E Work Program Bidding System The ﬁnal policy consideration involves the perceived discouragement of competition in the shale gas industry. David Maloney argues that the Canning Basin Act compromises the work bidding system under PGERA.85 The purpose of such a system is to ‘encourage and provide an incentive for companies to effectively explore for petroleum’.86 Maloney contends that because the shale reserves are unproven, the agreement effectively leaves the door open to those seeking the beneﬁt of a state agreement.87 In addition, he asserts that the agreement will leave industry participants wondering as to the status of the work program bidding system going forward and whether statutory provisions, such as mandatory relinquishment of blocks on renewal (which has applied since 1967), are now negotiable.88

Chandler disagrees with Maloney by suggesting that [n]ot every holder of a petroleum exploration permit will have the opportunity to enter into a state agreement. It is only those proponents who can demonstrate a sufﬁcient advantage for the State who may do so. Up to that point all holders of permits are governed by the same system.89

Southalan et al, above n 4, [28]. Western Australia, Parliamentary Debates, Legislative Council, 18 June 2013, 1593 (Robin Chapple). 85 David A W Maloney, ‘Natural Gas (Canning Basin Joint Venture) Agreement Act 2013’, (2013) 32 Australian Resources and Energy Law Journal 127, 127. 86 Tim Warman and Lauren Goldblatt, ‘The Work Program Bidding System for Exploration Permits Under the Petroleum (Submerged Lands) Act 1967 (Cth)’ (2008) 27 Australian Resources and Energy Law Journal 178, 180. 87 Maloney, above n 88, 134. 88 Ibid 134. 89 Chandler, above n 54, 52. 83 84

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Furthermore, Tim Warman and Lauren Goldblatt suggest that, under the current system, ‘wasteful drilling’ may occur as a result of the ‘undue weight placed on the number of wells included in a work program bid, without adequate consideration of whether the wells are supported by geophysical assessment’.90 Barnett’s justification for ‘proving the technical and economic feasibility’91 of the project by altering relinquishments is unlikely to impede competition and will minimise ‘wasteful drilling’ if the arguments put forward by Chandler, Warman, and Goldblatt are followed. IV CONCLUSION The ratification of the Canning Basin Act is undoubtedly significant for the future economic prosperity of Western Australia. Despite the extent of the shale deposit being unknown, it promotes exploration by giving developers the necessary certainty and flexibility previously curtailed by PGERA. The questions raised in Parliament during its debate demonstrate both a certain level of confusion and misunderstanding as to its overall impact and interaction with existing state laws. However, the argument for ratification was perhaps best summarised by Collier on 18 June 2013 who argued that because PGERA did not contemplate unconventional gas mining it was necessary for land to be ‘held for longer to allow for a lengthy program of evaluation and development’.92 This accords with Barnett’s justification. By evaluating the policy considerations it can be concluded that such a position is merited. The Agreement does not replace existing legislation designed to regulate the environmental impact of fracking, nor does it extinguish native title rights. Furthermore, it is arguable that state agreements do not affect competition in relation to onshore shale gas exploration. Overall, the positive aspects of the proposed state agreement outweigh its negative connotations.

Warman and Goldblatt, above n 89, 180. Western Australia, Parliamentary Debates, Legislative Assembly, 8 May 2013, 276 (Colin Barnett, Premier and Minister for State Development). 92 Western Australia, Parliamentary Debates, Legislative Council, 18 June 2013, 1596 (Peter Collier). 90 91

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Corporate Liability for Market Misconduct: Perennial Deep Pockets Beware

CORPORATE LIABILITY FOR MARKET MISCONDUCT: PERENNIAL DEEP POCKETS BEWARE MATHEO VINCIULLO∗ This is a case note on Selig, an important decision which provides a practical framework as to how the Corporations Act operates for claimants, defendants, and third party insurers. It does so under striking circumstances. This High Court decision clarifies two conflicting Full Federal Court decisions - issued consecutively, with markedly different practical outcomes. In doing so, Selig clarifies the scope of corporate liability for market misconduct, and related prohibited conduct. Further, the nature of defences and damages under the Corporations Act for breaching this conduct are also explored. Ultimately, Selig delivers both a warning and a promise: corporations engaging in misleading and deceptive conduct are warned they may lose it all, while those aggrieved are promised full retribution.

INTRODUCTION

In Selig v Wealthsure Pty Ltd (‘Selig’),1 the High Court resolved a conﬂict between two Full Federal Court decisions concerning the application of the proportionate liability regimes contained in the Corporations Act 2001 (‘Corporations Act’)2 and the Australian Securities and Investments Commission Act 2001 (‘ASIC Act’).3 The Court heard one issue: what is the meaning and scope of section 1041L(1) ‘apportionable claim’ in Div 2A of Pt 7.10 (‘Div 2A’) of the Corporations Act.4 This issue raised two distinct questions. First, does an ‘apportionable claim’ include causes of action that give rise to the same loss and damages a cause which falls within the scope of the proportionate liability regime,5 and secondly, should the scope * Matheo holds a Bachelor of Science (Hons) degree from Murdoch University and is currently studying the Juris Doctor at The University of Western Australia. The author wishes to extend his thanks to Professor Robert Cunningham for his exceptional teaching, and for recommending this decision as a topic for this essay. 1 [2015] HCA 18. 2 Corporations Act 2001 (Cth). 3 Australian Securities and Investments Commission Act 2001 (Cth). 4 Selig v Wealthsure Pty Ltd [2015] HCA 18, 8 [22] (French CJ, Kiefel, Bell and Keane JJ). Importantly, the Corporations and ASIC provisions are analogous. Consequently, this case note considers the two interchangeably. 5 Ibid 9 [27] (French CJ, Kiefel, Bell and Keane JJ). (2016) 25 The Onyx Journal 135

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of proportionate liability extend beyond misleading and deceptive conduct claims.6 The High Court unanimously found that proportionate liability is limited to claims of misleading or deceptive conduct, and allowed the appeal, answering both questions in the negative.7 This case note demonstrates that the Selig decision provided needed clarity as to the applicability of the proportionate liability regime. It contends that the Court correctly answered both questions, and aptly left questions of purpose and policy to the executive and legislature. Furthermore, it proposes that Selig will have signiﬁcant practical effects on pleadings and insurance in the corporations sphere. Claimants are now motivated to avoid apportionable claims, and target ‘deep-pocket’ defendants. Consequently, insurers will instinctively increase professional indemnity premiums. Selig and recent decisions also suggest that insurers should exercise caution when litigating solely to better their position.

II A

BACKGROUND

Proportionate Liability Regime

Proportionate liability provisions for misleading and deceptive conduct claims were inserted into the Corporations Act Div 2A, as part of the Corporate Law Economic Reform Program (Audit Reform and Corporate Disclosure) Act 2004 (Cth).8 This was inserted in response to a perceived liability insurance crisis, and to prevent claimants targeting ‘deep pocket’ defendants.9 Division 2A applies to ‘apportionable’ claims.10 Apportionable claims are ﬁrst, made under section 1041I for economic loss or damage to property, and secondly, caused by section 1041H: misleading and deceptive conduct.11 Proceedings involving apportionable claims limit the liability of a concurrent wrongdoer to an amount re Ibid 9-10 [30] (French CJ, Kiefel, Bell and Keane JJ). Ibid 11 [37] (French CJ, Kiefel, Bell and Keane JJ), 14 [50] (Gageler J). 8 Corporate Law Economic Reform Program (Audit Reform and Corporate Disclosure) Act 2004 (Cth); Selig v Wealthsure Pty Ltd [2015] HCA 18, 7-8 [21] (French CJ, Kiefel, Bell and Keane JJ); Alister Abadee, ‘Investor Claims and the Reach of Proportionate Liability’ (2015) 89 Australasian Law Journal 260, 261. 9 Selig v Wealthsure Pty Ltd [2015] HCA 18, 3 [10] (French CJ, Kiefel, Bell and Keane JJ) citing Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd (2013) 247 CLR 613, 625-6 [13]-[15] (French CJ). 10 Corporations Act 2001 (Cth) s 1041L(1), (4). 11 Ibid 1041L(1)(a)-(b); s 1041H. 6 7

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ﬂecting the proportion of their damage.12 Importantly, liability is limited regardless of whether concurrent defendants are insolvent or wound up.13 The onus is subsequently on the claimant to discover and claim against all defendants, and there is a risk claimants will fail to recover damages.14 Consequently, the regime has been described as ‘beneﬁting wrongdoers’.15 Importantly, apportionment is made on the basis that there is a single claim.16 That is, regardless of the number of ways concurrent wrongdoers contravene s 1041H, if the loss or damage is the same, they are considered as one.17 Further, a proceeding involving both apportionable claims and non-apportionable claims are treated individually and determined in accordance with relevant legal rules.18 B

Procedural History

The appelants, Mr and Mrs Selig, were victims of a ‘Ponzi scheme’.19 Money was invested into this scheme on thr advice of the second respondent, Mr Bertram’s advice, an authorised representative of the first respondent, Wealthsure Pty Ltd, a financial services provider.20 Multiple claims for damages were subsequently made against each respondent under the Corporations Act.21 This included contravening s 1041H.22 Importantly, each respondent asserted that all contraventions caused the same loss or damage as the misleading or deceptive conduct.23 Consequently, they contended that the defence of contributory negligence24 and proportionate liability applies.25 The primary judge rejected this contention and the appellants succeeded at first instance. Ibid 1041N(1). Ibid 1041L(5). 14 Selig [2015] HCA 18, 7-8 [21] (French CJ, Kiefel, Bell and Keane JJ). 15 Ibid; Alister Abadee, ‘Investor Claims and the Reach of Proportionate Liability’ (2015) 89 Australasian Law Journal 260-261. 16 Corporations Act 2001 (Cth) s 1041L(2). 17 Selig v Wealthsure Pty Ltd [2015] HCA 18, 10 [31] (French CJ, Kiefel, Bell and Keane JJ). 18 Corporations Act s 1041N(2). 19 Selig v Wealthsure Pty Ltd [2013] FCA 348, 190 [984] (Lander J). 20 Ibid 195 [1011] (Lander J). Notably, there were six respondents in this decision. The First and Second Respondents’ were the only individuals with assets, and consequently the only respondents considered by the Court. This case note refers only to the First and Second Respondents. 21 Claim for damages were founded on breach of Corporations Act 2001 (Cth) s 945A and s 1041E. s 12ED of the Australian Securities and Investments Commission Act 2001 (Cth) was also pleaded. 22 Selig v Wealthsure Pty Ltd [2013] FCA 348, 206 [1052] (Lander J); Corporations Act 2001 (Cth) s 1041H. 23 Ibid 211 [1073] (Lander J). 24 Corporations Act 2001 (Cth) s 1041I(1B). 25 Ibid 1041L. 12 13

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The respondents were held jointly and severally liable for all damage.26 The respondents appealed the decision, arguing that s 1041L(2) extends proportionate liability to contraventions of provisions other than s 1041H, where they cause the same loss or damage.27 A two-justice majority28 in the Full Federal Court upheld the respondent’s argument and overturned the decision.29 The appellants claim was apportioned to insolvent and bankrupt respondents, drastically limiting their award.30 In this appeal to the High Court, the appellants submitted that no feature of Div 2A provides foundation for the respondent’s contentions that proportionate liability should be extended to claims made other than under s 1041H.31 The Court unanimously32 accepted this argument and allowed the appeal, reversing the decision of the Full Federal Court.33 III

THE SELIG DECISION A

Context

In 2014, the Full Federal Court issued two consecutive, conflicting decisions on the scope of Div 2A. In Wealthsure,34 the Court extended the application of proportional liability to non s 1041H causes of action. The majority reasoned that s 1041L(2) extends Div 2A application to causes of action other than s 1041H granted they cause the same damage or loss.35 In ABN ARMO Bank NV v Bathurst Regional Council (‘ABN ARMO’)36 a differently constituted Full Court came to a contrary position. The majority limited the scope of ‘apportionable claims’ to section 1041H causes of action only.37 The majority referenced ordinary tenets of statutory construction and found that Div 2A expressly confines apportionable claims to conduct done in contravention of s Selig v Wealthsure Pty Ltd [2013] FCA 348, 214 [1084] (Lander J). Wealthsure Pty Limited and David Bertram, ‘First and Second Respondents’Submissions’, submission in Selig v Wealthsure [2015] HCA 18, 30 January 2015, [21]. 28 Mansfield and Besanko JJ (White J dissenting). 29 Wealthsure Pty Ltd v Selig (2014) 221 FCR 1, 4-5 [10] (Mansfield J), 19 [77] (Besanko J). 30 Judgement for the appellants was reduced from $1,760,512 to $875,506. 31 Ronald Selig and Janna Selig, ‘Appellants’ Submissions’, submission in Selig v Wealthsure [2015] HCA 18,19 December 2014, [16]-[21]. 32 French CJ, Kiefel, Bell, Keane, and Gageler J. 33 Selig [2015] HCA 18, 11 [37] (French CJ, Kiefel, Bell and Keane JJ), 14 [50] (Gageler J). Note that Gageler J gave a separate opinion concerning contributory negligence provisions. 34 Wealthsure Pty Ltd v Selig (2014) 221 FCR 1. 35 Ibid 4-5 [10] (Mansfield J), 19 [77] (Besanko J). 36 ABN AMRO Bank NV v Bathurst Regional Council (2014) 224 FCR 1. 37 Ibid [1091], [1561]-[1562] (Jacobson, Gilmour and Gordon JJ). 26 27

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1041H.38 Importantly, the Wealthsure decision was not overturned by the Full Court. Consequently, the outcome of Wealthsure and ABN ARMO, and the crux of Selig, is uncertainty as to whether s 1041L(2) means that other causes of action become subject to proportionate liability if they cause the same damage or loss under s 1041H. B

Application

In Selig the First and Second Respondents (‘respondents’) argued that an ‘apportionable claim’ is not restricted to section 1041H as first, the operation of s 1041L(2) expands the scope of apportionable claims to other causes of action,39 and secondly, it conflicts with the purpose and policy behind introducing Div 2.40 The first contention was not accepted. The High Court found that the respondents interpretation of s 1041L(2) conflicted with a plain reading of Div 2A.41 This discussion focused on the meaning given to the word ‘claim’ in section 1041L sub-ss (1) and (2).42 That is, whether sub-ss (1) and (2) ‘claim’ had a different meaning such that the scope of the claim is expanded. The Court answered in the negative, and explained that the respondents’ interpretation ‘directly contradicted’43 the ‘well-settled rules of statutory construction’.44 Importantly, the Court emphasised that absent express wording, a plain reading of section 1041L must be favoured.45 This is because deciding otherwise would produce ‘inconsistencies’46 and ‘extend’47 s 1041L(1) beyond what it clearly identifies as an apportionable claim.48 To reiterate, a claim must involve economic loss or property

ABN AMRO Bank NV v Bathurst Regional Council (2014) 224 FCR 1 [1561]-[1562]. [1572] (Jacobson, Gilmour and Gordon JJ) citing Wealthsure (2014) 221 FCR 1, [349]-[360] (White J). 39 Selig v Wealthsure Pty Ltd [2015] HCA 18, 9 [28] (French CJ, Kiefel, Bell and Keane JJ); Wealthsure Pty Limited and David Bertram, ‘First and Second Respondents’Submissions’, submission in Selig v Wealthsure Pty Ltd [2015] HCA 18,30 January 2015, [21]-[26]. 40 Selig v Wealthsure Pty Ltd [2015] HCA 18, 10 [32] (French CJ, Kiefel, Bell and Keane JJ); Wealthsure Pty Limited and David Bertram, ‘First and Second Respondents’Submissions’, submission in Selig v Wealthsure Pty Ltd [2015] HCA 18,30 January 2015, [17]-[20], [27]. 41 Selig v Wealthsure Pty Ltd [2015] HCA 18 (French CJ, Kiefel, Bell and Keane JJ), 15 [55]-[56] (Gageler J). 42 Ibid [27]-[31] (French CJ, Kiefel, Bell and Keane JJ), [57] (Gageler J). 43 Ibid 9 [29]. 44 Ibid 9-10 [30]. 45 Ibid 10 [31]. 46 Ibid 9 [29]. 47 Ibid 9-10 [30]. 48 Ibid. 38

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damage caused by s 1041H.49 Section 1041L(2) does not expressly contend otherwise. Therefore, the meaning of ‘claim’ given in sub-s (1) was imputed to sub-s (2), and the majority put aside any misconceptions arising from the Federal Court. The remaining point of contention questioned the legislative purpose, and policy behind the proportionate liability regime. The respondents argued that it was unlikely that a narrow reading of ‘claim’ was intended by the legislature.50 The Court also rejected this contention, and explained that Div 2A clearly demonstrates otherwise.51The Court referenced s 1041M and s 1041N(2) which explain that Div 2A excludes causes of action that involve moral culpability, and should be determined in accordance with their relevant legal rules.52 Importantly, Gageler J emphasised that expanding the scope of the proportionate liability regime is an exercise for the legislature, not the court.53 The respondents also argued that s 1041I(IB) contributory negligence provisions should limit their liability.54 This proposition was accepted by the Full Federal Court, but not by the High Court.55 Similar to section 1041L, section 1041I(IB) contributory negligence provisions apply only to s 1041H conduct. In argument, counsel for the appellant explained that the respondents’ contention assumes that this law exists to provide a ﬁnding for contributory negligence in the case of any and every contravention of the Corporations Act’.56 The Court accepted the appellants’ contention. Ultimately, the appeal was allowed and the respondents were held strictly liable for the appellants losses.57 Notably, the cost of appeal was awarded against QBE Insurance (Australia) Ltd (‘QBE Insurance’), the respondents’ insurer and a non-party to the proceedings.58

Corporations Act s 1041L(1); (4). Wealthsure Pty Limited and David Bertram, ‘First and Second Respondents’Submissions’, submission in Selig v Wealthsure Pty Ltd [2015] HCA 18, 30 January 2015, [30]-[31], [63]; Selig v Wealthsure Pty Ltd [2015] HCA 18, 10 [32] (French CJ, Kiefel, Bell and Keane JJ). 51 Selig v Wealthsure Pty Ltd [2015] HCA 18, 10 [31] (French CJ, Kiefel, Bell and Keane JJ). 52 Ibid 10 [32] (French CJ, Kiefel, Bell and Keane JJ) referencing Corporations Act 2001 (Cth) s 1041M, 1041N(2). 53 Ibid 14 [52]. 54 Ibid 10-11 [32]-[35] (French CJ, Kiefel, Bell and Keane JJ); Wealthsure Pty Limited and David Bertram,’First and Second Respondents’Submissions’, submission in Selig v Wealthsure Pty Ltd [2015] HCA 18,30 January 2015, [46]. 55 Wealthsure Pty Ltd v Selig (2014) 221 FCR 1, 4-5 [10] (Mansﬁeld J), 19 [77] (Besanko J). 56 Transcript of Proceedings, Selig & Anor v Wealthsure Pty Ltd & Ors[2015] HCATrans 54 (12 March 2015) (Paul Heywood Smith QC). 57 Selig v Wealthsure Pty Ltd [2015] HCA 18, 12 [43] (French CJ, Kiefel, Bell and Keane JJ). 58 Ibid 13 [48] (French CJ, Kiefel, Bell and Keane JJ). 49 50

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Analysis

The Selig decision reaffirmed the Full Federal Court’s reasoning in ABN AMRO.59 The legal correctness of Selig, with respect, is clear enough. The Court’s decision reflected the statutory reality. The broader operation of Div 2A clearly restricts the applicability of proportionate liability to misleading and deceptive conduct claims. This is readily apparent from the title,60 the broad operation and interaction of Div 2A provisions,61 and the explanatory memorandum.62 Importantly, there is no clear legislative intention to rebut this interpretation. The respondents’ contentions instead rely on a single provision, s 1041L(2), which does not have any substantive operation.63 This is no answer to express statements that apportionable claims are confined to section 1041H losses. The policy arguments underlying Selig and prior decisions are more contentious. On the one hand, Selig undermines the purpose of introducing proportionate liability to provide insurers relief and to alleviate ‘deep-pocket’ syndrome.64 On the other, Selig reinforces that conduct falling outside of s 1041H that involves ‘moral culpability’ is undeserving of the benefit of limited liability.65 Notably, the High Court avoided this discussion. The Court was correct to do so. It is well established that general ‘policy’ should not govern the judiciary where clear unambiguous language exists.66 Consequently, Selig marks a blatant affirmation and conscious reminder to all that the Court is not a repository for policy decision making.

Ibid 11 [36]. Corporations Act 2001 (Cth) Part 7.10, Div 2A. ‘Proportionate liability for misleading and deceptive conduct’. 61 See: Corporations Act 2001 (Cth) s 1041L(1) and (4) (expressly deﬁnes claim in relation to s 1041H misleading and deceptive conduct); s 1041M and s 1041N (expressly excludes conduct with ‘intent’ as an element and explains that proceedings with apportionable and non-apportionable claims are to be treated separately). 62 Australia, House of Representatives, Corporate Law Economic Reform Program (Audit Reform and Corporate Disclosure) Bill 2003, Explanatory Memorandum at [4.125], [5.348], [5.351]-[5.353]. 63 Wealthsure Pty Limited and David Bertram, ‘First and Second Respondents’ Submissions’, submission in Selig v Wealthsure Pty Ltd [2015] HCA 18, 30 January 2015, [17]-[27]. 64 Australia, House of Representatives, Corporate Law Economic Reform Program (Audit Reform and Corporate Disclosure) Bill 2003, Explanatory Memorandum at [4.100]. 65 Selig v Wealthsure Pty Ltd [2015] HCA 18, 11 [36] (French CJ, Kiefel, Bell and Keane JJ) citing ABN ARMO Bank NV v Bathurst Regional Council (2014) 224 FCR 1, 307 [1565], 307-8 [1568]-[1570] (The Court); Alister Abadee, ‘Investor Claims and the Reach of Proportionate Liability’ (2015) 89 Australasian Law Journal 260, 267. 66 Sir William Blackstone, Commentaries on the Law of England (Clarendon Press, 17th ed, 1830) 269. 59 60

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Broader Implications

The implications of Selig are far-reaching. This decision will assist plaintiffs in pursuing litigation concerning market misconduct and prohibited conduct related to financial products and services under the Corporations Act, and impede wrongdoers from escaping liability. Further, Selig has significant implications for Australia’s insurance market, and the future of the Australian Consumer Law. A narrow proportionate liability regime strongly benefits the plaintiff. In practice, apportionment and contributory negligence defences are now irrelevant unless the plaintiff succeeds only through a section 1041H claim. The plaintiff subsequently has the advantage of framing their best case. Plaintiffs with strong non-apportionable claims are motivated to avoid pleading section 1041H claims. This is because the plaintiff avoids the expense and difficulty associated with joining concurrent wrongdoers,67 the risk of insolvent concurrent wrongdoers,68 and the contributory negligence defence.69 Further, plaintiffs with weaker non-apportionable claims can feel safe with the knowledge that they can now plead this alongside an apportionable section 1041H claim without incidentally exposing themself to apportionment. The plaintiff ultimately has a ‘win-win’ scenario. Accordingly, non-apportionable claims are likely to now dominate Corporation Act claims for market misconduct. Plaintiffs are understandably motivated to target ‘deep-pocketed’ and well-insured defendants to fully recover their losses.70 Incidentally, defendants are now afforded limited protection under the proportionate liability regimes. What follows from Selig is that an individual who knowingly or recklessly misleads or acts dishonestly risks sole liability for any resulting loss or damage. Deprived of a broader apportionment defence, defendants bear the onus of limiting their liability. Sole defendants will consequently need to seek recovery from other wrongdoers by pleading a cross claim, or claim for contribution.71 This reversal of roles represents the status quo that existed before the CLERP reform.To reiterate, the question Robert P Austin and Ian M Ramsay, Ford’s Principles of Corporations Law (LexisNexis Butterworths, 15th ed, 2013) 877, 878. 68 Corporations Act s 1041L(5). 69 Ibid 1041I(2)(B). 70 Australia, House of Representatives, Corporate Law Economic Reform Program (Audit Reform and Corporate Disclosure) Bill 2003, Explanatory Memorandum at [4.100]. 71 Civil Dispute Resolution Act 2011 (Cth). 67

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of whether this is the ‘appropriate’ position is a matter for the legislature to determine. Flowing from this reversal is pressure on the Australia’s insurance market. Insurers are a perennial ‘deep pocket’. Naturally, a narrow scope of apportionable claims incidentally leads to higher risks of large-sum non-apportionable claims. Subsequently, insurers may increase their premiums in response to this risk.72 Regardless, it is unlikely we will see an ‘insurance crisis’ in the Australian insurance industry as perceived prior to the CLERP amendments.73 Notably, KPMG’s General Insurance Industry Review 2014 shows a stable and competitive market.74 Consequently, this pressure will likely present itself in higher industry rates for corporations seeking professional indemnity insurance.75 Further, Selig saw the Court exercise its discretion to award costs against QBE Insurance, a non-party to the proceedings. Importantly, non-party cost orders are generally applied only in exceptional circumstances.76 Here, the Court applied a broad discretion; an order for costs was awarded despite the insurer acting within reason. The crux of this cost order was that ﬁrst, the insurer acted for itself in seeking to better its position,77 and second, the policy was costs-inclusive, so that the insurers decision to litigate reduced the amount available to the appellants.78 What follows from Selig is that an insurer litigating on behalf of a corporation, despite acting entirely reasonable, may be liable for damages exceeding their policy agreements. It appears that the Court is conscious of insurers pursuing litigation solely to better its position where it also causes detriment to a party. The 2015 the New South W Supreme Court of Appeal cases Yu v Cao [2015] NSWCA 27679, Dean v Phung [2015] NSWSC 81680 and In the Matter of Vangory Holdings [2015] NSWSC 80181 Greg Pynt, Australian Insurance Law: A First Reference (LexisNexis Butterworths Australia, 3rd ed, 2015) 17-19, 34-37. 73 Bonnie Buchanan, Tom Arnold and Lance Nail, ‘Beware of the Ides of March: The Demise of HIH Insurance’ (2003) 17 Richmond Law Review 199, 199. 74 Richard Marrison and Scott Guse, ‘KPMG’s General Insurance Industry Review 2014’ (Report, KPMG, 23 September 2014) 4. 75 Pynt, above n 72, 13. 76 Knight v FP Special Assets Ltd (1992) 174 CLR 178, 192-193 (Mason CJ, Deane, Dawson, Gaudron and McHugh JJ); Yu v Cao [2015] NSWCA 276 (‘Yu’), [139] (The Court). 77 Selig [2015] HCA 18, 12 [41]. 78 Ibid 13 [46]. 79 [136]-[138] (The Court). 80 [10] (Beech-Jones J). 81 [10] (Black J). 72

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support this development. Strikingly, this constitutes three out of four decisions referring to Selig. Consequently, insurers with cost-inclusive indemnity policies should keep in mind that they are not immune from non-party cost orders when pursing claims under the Corporations Act. This may see insurers asking corporations to raise the indemnity cap on their professional indemnity policies to avoid this risk arising.82 On a broader scale, Selig has already inﬂuenced the Australian Consumer Law. In Williams v Pisano [2015] NSWCA 177, the New South Wales Court of Appeal unanimously held that for reasons of both construction and policy, the Selig interpretation of ‘apportionable claim’ should be adopted for s 18 misleading and deceptive conduct.83 This is because the proportionate liability regimes in the Corporations Act and the Trade Practices Act 1974 (Cth),84 and its successor, the Competition and Consumer Act 2010 (Cth),85 are functionally analogous. Consequently, the playing-ground for apportionable claims is now level under all federal proportionate liability regimes.

CONCLUSION

The High Court’s decision in Selig clariﬁed and limited the scope of the proportionate liability regime in the Corporations Act. Apportionable claims for the purpose of Div 2A are claims based upon a contravention of s 1041H. That is, the regime does not extend to claims based upon conduct of a different kind. This narrow interpretation affords greater certainty to plaintiffs seeking to recover damages. Conversely, this interpretation affords limited opportunity for defendants seeking to limit their liability. The implications of Selig are important and far-reaching. In practice, defendants who knowingly mislead or act dishonestly to any degree are now solely liable. Subsequently, professional indemnity insurance is imperative for corporations. Importantly, Selig will motivate plaintiffs to plead strong non-apportionable claims against ‘deep-pocket’ defendants. Consequently, this may pressure Australia’s insurance market into raising industry rates for corporate indemnity insurance. Further Selig marked two new developments. First, the discretion to award costs against non-parties insurers was broadened, and second, the Selig interpretation of ‘apportionable claim’ was ad Pynt, above n 72, 13-17. [3] (Bathurst CJ), [5] (McColl), [64] (Emmett JJA). 84 Trade Practices Act 1974 (Cth) s 87CB. 85 Competition and Consumer Act 2010 (Cth) Pt VIA. 82 83

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opted in Australian Consumer Law proportionate liability. It is unclear whether federal proportionate liability provisions will be amended in the future in accordance with more â&#x20AC;&#x2DC;defendant focusedâ&#x20AC;&#x2122; policy considerations. However, Selig did make clear that when any change occurs, it will come from the legislature and executive, not the whim of the court.

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THE SORRY STATE OF THE IMPLIED FREEDOM OF POLITICAL COMMUNICATION JONATHAN BOWES∗ Following Nationwide News v Wills (1992) 177 CLR 1, Australian Capital Television v Commonwealth (1992) 177 CLR 106 and Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, the High Court recognised an implied freedom of political communication in the Commonwealth Constitution. In doing so, it raised a serious challenge to the popular notion that the Constitution offers few protections of citizens’ rights. However, this has been less so in more recent decisions such as Tajjour v New South Wales (2014) 254 CLR 508. In its analysis of the Tajjour decision, this paper argues that Court’s “form based” approach to the validity of an impugned law should be abandoned, and that the implied freedom is losing relevance due to the Court’s increasing deference to Parliament.

INTRODUCTION

Deane J stated in 1989 ‘it is often said that the Australian Constitution contains no bill of rights. Statements to that effect, while literally true, are superﬁcial and potentially misleading’.1 Deane J alluded to a number of express and implied rights found within the Commonwealth Constitution that the framers intended to protect the rights of Australians.2 Three years after Deane J’s statement, the High Court’s decisions in Nationwide News v Wills3 and Australian Capital Television v Commonwealth4 marked a turning point in Australian constitutional development, where an implied freedom of political communication was recognised. In Lange v Australian Broadcasting Corporation,5 (‘Lange’) a majority of the High Court held provisions of the Constitution created a system of representative and responsible government which gave rise to an implied freedom to discuss political and governmental affairs (the implied freedom);6

*Jonathan is a ﬁnal year Juris Doctor student. He also holds a Bachelor of Arts from The University of Western Australia. 1 Street v Queensland Bar Association (1989) 168 CLR 461, 521-2. 2 Commonwealth of Australia Constitution Act 1900 (Cth). 3 Nationwide News Pty Ltd v Wills (1992) 177 CLR 1. 4 Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106. 5 (1997) 189 CLR 520. 6 Commonwealth of Australia Constitution Act 1900 ss 7, 24, 64, 128. 146

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and that legislation which contravened those principles could be deemed invalid.7 These decisions heralded a potential new era of a judicially based Bill of Rights in Australia.8 But the implied freedom arose sparingly in the coming years,9 and it was also marked by confusion in its application.10 The effectiveness of the implied right has recently become of particular interest, as several states have enacted anti-association legislation in order to combat organised crime.11 One such piece of legislation, s 93X of the Crimes Act 1900 (NSW), culminated in the High Court case of Tajjour v New South Wales,12 which sought to answer whether the implied freedom could invalidate the law. This essay will explain the decision, highlight the differing standards and discretional application between the judgments, and ultimately conclude that the implied freedom is losing relevance due to increasing Parliamentary deference. II

THE IMPLIED FREEDOM OF POLITICAL COMMUNICATION

The implied freedom of political communication arises from the text and structure of the Constitution.13 These sections require that the members of the Senate and the House of Representatives be ‘directly chosen by the people’.14 The High Court found that freedom of political communication is an ‘an indispensable incident’ of the system of representative and responsible government to which ss 7 and 24 of the Constitution give effect.15 The effect of the implied freedom is to protect the dissemination of information which may bear on electoral choice,16 and as Gaudron J observes ‘at least a significant measure of freedom to associate with others’ to allow the free flow of political debate between individuals.17 The implied freedom limits the legislative power of the Commonwealth, state and territory parliaments.18 The questions to be Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 557-8, 562 (The Court) (‘Lange’). Tom Campbell and Stephen Crilly, ‘The Implied Freedom of Political Communication, Twenty Years On’ (2011) 30 University of Queensland Law Journal 59, 61. 9 Ibid 67. 10 Jeremy Kirk, ‘Constitutional Guarantees, Characterisation and the Concept of Proportionality’ (1997) 21 Melbourne University Law Review 1, 1-64. 11 Kuczborski v Queensland (2014) 254 CLR 51. 12 Tajjour v New South Wales (2014) 254 CLR 508. (‘Tajjour’) 13 Leanne Griffiths, ‘The Implied Freedom of Political Communication: the State of the Law Post Coleman and Mulholland’ (2005) 12 James Cook University Law Review 93, 94. 14 Commonwealth of Australia Constitution Act 1900 (Cth) ss 7, 24. 15 Lange (1997) 189 CLR 520, 559. 16 Ibid 560, quoting: Anthony Birch, Representative and Responsible Government: An Essay on the British Constitution, (University of Toronto Press, 1969) 17. 17 Kruger v Commonwealth (1997) 190 CLR 1, 115. 18 Tajjour (2014) 254 CLR 508, 546-7 7 8

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answered in regards to whether an impugned law exceeds those limits were stated in Lange,19 and subsequently modified in Coleman v Power.20 (‘Coleman’) They are; (1) does the impugned law effectively burden the freedom of political communication either in its terms, operation or effect? (2) If the provision effectively burdens the freedom, is the provision reasonably appropriate and adapted, or proportionate, to serve a legitimate end in a manner which is compatible with the maintenance of the constitutionally prescribed system of representative government?21 According to Hayne J, the second question can be split into three steps. Firstly, to identify the purpose of the law and the means by which it is sought to be achieved, and whether that purpose and means are compatible with the maintenance of representative and responsible government.22 Secondly, the court must assess whether the means of the legislation is proportionate (‘reasonably and appropriately adapted’) to the law’s objective.23 Unions New South Wales prescribes that the court asks whether there are ‘alternative, reasonably practical means’ capable of reaching that purpose whilst being less restrictive on the freedom.24 Lastly, the extent of the burden effected by the law on the freedom is assessed.25 The second Lange question essentially asks whether there is a justification for placing a burden on the freedom.26 The central inquiry is, as stated in Unions New South Wales: ‘how does the impugned law affect the freedom?’27 The focus is to be on the effect on the freedom generally, rather than the rights of any particular person,28 unlike rights derived from the first amendment of the United States Constitution.29 III

TAJJOUR V NEW SOUTH WALES A

The Facts

The three plaintiffs were charged with an offence against s 93X of the Crimes Act 1900 (NSW), which makes it an offence to habitually consort with convicted offend Lange (1997) 189 CLR 520, 567. Coleman v Power (2004) 220 CLR 1. 21 Unions New South Wales v New South Wales (2013) 252 CLR 530, 553-4 [35], 556 [44]. (‘Unions New South Wales’) 22 Tajjour (2014) 254 CLR 508, 570-1. 23 Ibid 571 [113]. 24 Unions New South Wales v New South Wales (2013) 252 CLR 530, 556 [44]. 25 Tajjour (2014) 254 CLR 508, 572 [116] (Crennan, Kiefel, and Bell JJ). 26 Monis v The Queen (2013) 249 CLR 92, 212-3 [343]. 27 Tajjour (2014) 254 CLR 508, 550 [36] (French CJ). 28 Unions New South Wales v New South Wales (2013) 252 CLR 530, 554 [36]. 29 APLA Ltd V Legal Services Commissioner (NSW) (2005) 224 CLR 322. 19 20

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ers after having been given an ‘ofﬁcial warning’.30 Each plaintiff brought proceedings seeking a declaration that s 93X is invalid on grounds that: (1) it impermissibly burdens the implied freedom of communication concerning government and political matters, (2) it infringes a freedom of association found implied in the Constitution31 and because s 93X is in breach of the International Covenant on Civil and Political Rights (‘ICCPR’), a convention ratiﬁed by the Commonwealth.32 The plaintiffs were not communicating on matters of political or government matters, however the legal effect of the law is to prevent the opportunity for that sort of communication.33 B

The Judgments

All members of the High Court (except Keane J) acknowledged that s 93X was an effective burden on the implied freedom of political communication because it restricted the ability of persons to associate, and therefore restricted potential discussion of political or government matters.34 Hayne J, Crennan, Kiefel and Bell JJ held that s 93X passed the second limb of the Lange test by observing it was proportional to the legitimate end of preventing crime by limiting the occasions on which persons of the designated class might meet to consider or plan criminal acts.35 The objective of prevention of crime and the manner exercised was held to be compatible with the system of representative government.36 In considering whether there was a less drastic means of achieving the legitimate end with equal practicability, their Honours found no viable alternative.37 Gageler J held s 93X invalid by arguing the burden was not justiﬁed due to an absence of a defence of persons engaging in political communication, but held that the law could be read down as to exclude persons engaging in political communication.38 Keane J held that implied freedom does not extend to circumstances where political communication may occur, and found s 93X did not burden the implied freedom, given the requirement of ‘habitual consorting’ did not

Tajjour (2014) 254 CLR 508, 557. Ibid 533. 32 Ibid 590 [183] (Keane J). 33 Ibid 568-9 (Crennan, Kiefel and Bell JJ), 590 (Keane J). 34 Ibid 551-2 [38-40] (French CJ), 558 [61] (Hayne J), 569 [106], 570 [108] (Crennan, Kiefel, and Bell JJ), 582-3 [156-159] (Gageler J), 590 [185] (Keane J). 35 Ibid 573 [125] (Crennan, Kiefel, and Bell JJ). 36 Ibid 562 [77] (Hayne J). 37 Ibid 573 [125] (Crennan, Kiefel, and Bell JJ). 38 Ibid 576 [138], 589 [178] (Gageler J). 30 31

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encompass discussion of political and government matters.39 In dissent, Chief Justice French (French CJ) acknowledged that s 93X had a legitimate end of preventing crime, but argued that the law failed to meet the second limb of Lange.40 Whilst the legislation does not specifically target political communication, French CJ observes, the law does not restrict the discretion of police to do so; therefore its effect on political communication cannot be called ‘merely incidental’. Furthermore, the existence of a section (s 93Y) that excludes certain forms of ‘habitual consorting’ for innocent purposes reinforces that the breadth of s 93X is so wide that the law is not reasonably and appropriately adapted to serve its legitimate end.41 C Analysis of the Lange Test The standards and application of the Lange test are inconsistent in Tajjour. Stone argues that the High Court has issued no clear indication on the level of protection the implied freedom is to be given.42 Proportionality, according to Kirk, is not understood in Australian jurisprudence, and what would result is a substitution of the ‘reasonably appropriate and adapted to’ test with the mistaken idea it amounts to the same thing as the proportionality test.43 Subsequently, providing that the objective of the law has a legitimate end, and that end is reasonably and appropriately adapted to democratic government, there would be small discussion on the law’s actual effect of the implied freedom and whether it was proportional.44 This is the central issue of misapplication in Tajjour. All of their Honours, barring French CJ and Gageler J, engaged in little examination as to if the interest in crime prevention outweighed the restriction imposed on the implied right. The prevention of crime was held to be a legitimate end reasonably appropriated and adapted to representative government, and from that followed validity. Gageler J explains the dichotomy of the court. Firstly, Gageler J observes that the second limb Lange requires an analysis of the sufficiency of the justification for Ibid 604-5 [235]-[241] (Keane J). Ibid 534 [4], 553-4 [44]-[47] (French CJ). 41 Ibid 553-4 [43]-[47] (French CJ). 42 Adrienne Stone, ‘The Limits of Constitutional Text and Structure: Standards of Review and the Freedom of Political Communication’ (1999) 23 Melbourne University Law Review 668, 669. 43 Kirk, above n 10, 1-64. 44 Diana Sedgwick, ‘The Implied Freedom of Political Communication: An Empty Promise?’ (2003) 7 University of Western Sydney Law Review 35, 43. 39 40

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burdening the implied freedom.45 He outlines that a law that specifically targets political communication will be difficult to justify, but one that effects it incidentally will be less onerous.46 A law that specifically targets political communication will require a ‘compelling justification’ where it must be established ‘that the law pursues a … public interest which is itself so pressing and substantial to be labelled compelling and the law does so by means which restrict communication on governmental or political matter no more than reasonably necessary…’47 On the other hand, as we see Hayne J find, all that may be required is evidence that the legislation is rationally related to the pursuit of the end of the law.48 There is discretion in the test if the judge decides that the effect of the law on the implied freedom is incidental or direct. This is highly subjective, and therefore application of the second limb of Lange becomes unpredictable. If a judge can find that the law is indirect in its effect on the implied freedom, he or she can circumvent the need to consider whether the law’s effect on the implied freedom is justified. All that needs to be established is that the law’s objective was a legitimate end, its means was ‘reasonably necessary’ to achieve that legitimate end, that no ‘equally practicable’ law could exist, and that the effect was not undue. What results is to displace the purpose of the analysis;49 the freedom’s stature as a constitutional legislative restriction to be balanced against law making is ignored. The implied freedom becomes a draw bridge with a lever on the outside. This logic is followed by Crennan, Kiefel and Bell JJ and Hayne J separately. Their judgment does not consider the effect of the operation of the law on the freedom, but instead whether it is ‘reasonably necessary’ to its purpose of crime prevention, which they conclude it is.50 This conclusion is reached through finding that there is no other viable and equally practicable legislation, although it must be said that this reasoning is problematic, it is rare that there will be alternative legislation that can achieve the same purpose of the original law as efficiently as a law that burdens a person’s rights. By using this test, there is no need to closely examine the disproportionality or arbitrariness of the law, which might otherwise fail the Lange second limb.51 Their Honours circumvent the need to assess whether there is a justification Tajjour (2014) 254 CLR 508, 579-80 [149]. Ibid 580-1 [151] (Gageler J). 47 Ibid. 48 Ibid 562 [78] (Hayne J). 49 Ibid 584 [163] (Gageler J). 50 Ibid 573 [125]. 51 Roach v Electoral Commissioner (2007) 233 CLR 162, 199. 45 46

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for infringing the implied freedom by finding that the burden is not ‘substantial’, as it is incidental and will only effect those ‘habitually consorting’.52 Keane J explored this line of argument further, and thus analysis on this point will focus on his judgment. Keane J’s argument is essentially that communicating on political and governmental matters will usually not come within the definition of habitual consorting, which requires an intention to seek out acceptance of a personal social relationship with a requisite personal intimacy.53 This essay proposes that consorting is a technical definition for any sort of friendship.54 What Keane J’s argument (and that of the joint judgment) does not acknowledge is that the free flow of political communication most often occurs between friends and associates, not between ‘persons on a bus’, or between a political blogger and internet surfer.55 The law therefore prevents a large portion of political communication between friends and associates on the occurrence of a previous conviction. New South Wales alone has an estimated 200,000 persons with convictions within the state that come within this category, how many persons 56 can be expected to ‘consort’ with them? Keane J concludes that communications of political nature lack the ‘deliberate choice and personal intimacy that give rise to the criminogenic tendency which is the concern of s 93X’.57 With respect, this is not true, and as French CJ argues, the law is so wide in its berth that it encompasses any form of communication if the vague prerequisites of ‘consorting’ are met.58 No mention of ‘criminogenic tendencies’ can be noted in the legislation, and it is routinely repeated in the judgment that it not the purpose of the association being considered, just the occurrence.59 An argument that the law does not burden the implied freedom is inherently flawed. In line with French CJ and Gageler J, the practical effect of the law on the implied freedom cannot be dismissed as unsubstantial or merely incidental. What follows is that the majority ought to have considered whether there was a ‘compelling justification’, or at least balanced the effect of the law against its burden upon the implied freedom. Tajjour (2014) 254 CLR 508, 575 [133]. Ibid 596 [205]-[206] (Keane J). 54 O’Connor v Hammond (1902) 21 NZLR 573, 575-6 (Stout CJ): ‘consorting would be proved by companionship’. 55 Tajjour ((2014) 254 CLR 508, 596 [205] (Keane J). 56 Ibid 581 [153] (Gageler J). 57 Ibid 600 [220] (Keane J). 58 Ibid 553-4 [45]-[47] (French CJ). 59 Ibid 553 [44] (French CJ), 581-2 [154] (Gageler J). 52 53

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Secondary Submissions

All judges rejected an implied freedom of association found within the Constitution.60 Their reasons were all the same, in that precedent dictates no such constitutional implied freedom exists. Keane J cited Mulholland v Australia Electrical Commission (2004) 220 CLR 181; ‘there is no “free standing” right to be implied from the Constitution… of association’61 and in Wainohu v New South Wales where it was held that any freedom of association would only exist as a byproduct of the freedom of political communication.62 The plaintiff’s submissions were that the freedom of association could be sourced from the provisions of the Constitution separate from the implied freedom of communication.63 Whilst there has been support in dicta and academia for a potential freedom of association,64 there is no pressing need for analysis on this point given their Honours in Tajjour followed strong authority that deﬁnitively ruled out a free-standing implied freedom of association.65 All of their Honours also swiftly dismissed the submission that ratiﬁed but not incorporated international treaties can restrict the legislative power of domestic Parliaments and the Commonwealth citing various well established case authority.66 International law will only impede state law where Commonwealth legislation incorporates the international treaty and thus trumps state law by the operation of s109 of the Constitution which observes the legislative superiority of Commonwealth law over state.67 E

Consistency with Past Decisions

The majority decision in Tajjour cannot be said to be unique in comparison to its predecessors. The different standards and conclusions reached by their Honours is

Ibid 566-7 [95] (Hayne J), 576 [136], 578 [143] (Gageler J), 605 [242] (Keane J), 575 [134] (Crennan, Kiefel, Bell JJ), 553-4 [46] (French CJ). 61 Ibid 605 [242]. 62 (2011) 243 CLR 181. 63 Tajjour ((2014) 254 CLR 508, 605 [242] (Keane J). 64 ACTV v Commonwealth (1992) 177 CLR 106, 652 (Gaudron J); 232 (McHugh J); George Williams, ‘Sounding the Core of Representative Democracy: Implied Freedoms and Electoral Reform’ (1996) 20 Melbourne University Law Review 848, 861. 65 Anthony Gray, ‘Freedom of Association in the Australian ‘Constitution’ and the Crime of Consorting’ (2013) 23 University of Tasmania Law Review 149, 158. 66 Dietrich v R (1992) 177 CLR 292, 305-6, 321, 348-9, 359-60; Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1, 38 [248]. 67 Tajjour (2014) 254 CLR 508, 606-7 [249] (Keane J). 60

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nothing novel.68 It became apparent merely three weeks after Lange in Levy v Victoria (‘Levy’) that there was differences of opinion on the appropriate standard of review and how it should it applied.69 Sedgwick argues that this is due to the ambiguous concept of proportionality introduced in Lange.70 Meagher observes three ‘questions of degree’ the Lange test asks: (1) What is the scope of political communication? (2) When does a law place a burden on that communication? (3) When is that burden disproportionate to the attainment of other legitimate policy objectives?71 These questions inevitably lead to judges reaching different answers. A lower standard of review being applied to laws that incidentally effect the implied freedom was utilised by Gleeson CJ and Heydon J in Coleman72 and asserted by Gaudron J in Levy.73 In Wotton v Queensland,74 minimal scrutiny was afforded on laws that were deemed to have an incidental effect on the implied freedom.75 In Levy, Brennan J in particular imposed a limit on the Lange test by according a wide deference to Parliament in law making, even when the law was ‘unnecessarily restrictive’ on the implied freedom.76 APLA Limited v Legal Services Commissioner seems to point towards a modern trend where judges are wary to restrict laws through the implied freedom if the effect of the law is to curtail the possibility of political communication occurring.77 Tajjour appears to be consistent with recent jurisprudence concerning the implied freedom with wide deference to Parliament being granted. IV

CONCLUSION

The implication of the majority in Tajjour is that, provided the High Court can find a legitimate end in the impugned legislation that is reasonably and appropriately adapted to representative government, (which could arguably be any sort of universal benefit on the public) the legislation will be valid regardless of if the effect of the law is found to be indirect on the freedom. A subjective lens is magnified due to the discre Griffiths, above n 13, 105. Levy v Victoria (1997) 189 CLR 579. 70 Sedgwick, above n 44, 37. 71 Dan Meagher, ‘The Brennan Conception of the Implied Freedom: Theory, Proportionality and Deference. (2011) 30 University of Queensland Law Journal 119, 121. 72 Coleman v Power (2004) 220 CLR 1, 191-193 (Glesson CJ), 264, 266-7 (Heydon J). 73 Levy (1997) 189 CLR 579, 619 (Gaudron J). 74 Wotton v Queensland (2012) 246 CLR 1, 15 [29]. 75 Sam Thompson, ‘Wotton v Queensland (Implied Freedom of Political Communication)’ (2012) 31 University of Tasmania Law Review 168, 175. 76 Levy (1997) 189 CLR 579, 599. 77 (2005) 224 CLR 322. 68 69

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tion of the Lange test, and a deference to Parliamentary supremacy is enlarged. Any meaningful analysis of the legislation’s effect on the implied freedom and the justification for so can be circumvented. A specific consequence is that anti-association laws, even those with no requirement of unlawful purpose, now have precedent that validate their existence constitutionally. A broader consequence is that the implied freedom of communication is in a sorry state considering its potential and application in the 1992 cases. This approach based on the form of the law ought to be abandoned. What should be considered is the restrictive effect on the freedom and the significance of the justification for imposing a burden.78 As Kirk states, in any democratic system of government which has an entrenched constitution, the courts must have a role to play in overriding laws which breach constitutional requirements.79 For the supporters of a judicially based Bill of Rights, or any rights for that matter in Australia, Tajjour is a step backward.

78 79

Meagher, above n 71, 34. Kirk, above n 10, 55.

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