Blackstone Onyx 2017

ONYX Academic Journal of The Blackstone Society The Law Students’ Society of the University of Western Australia

Volume 26 2017

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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 Isabella Wilson Written Editor Linda Mulenda Creative Editor Natalie Thompson Printed by Graphic Source BLACKSTONE EXECUTIVE COMMITTEE 2017 President Simon Ogden Vice President (Education) Emma Boogaerdt Vice President (Careers) Kenny Chen Vice President (Administration) Garrett Peace Vice President (Competitions) Ellie Tapsell Vice President (Social) Mitch Blott Vice President (Equity) Cassie Ferrier Vice President (Wellness) Samantha Rumenos Vice President (Pre-law) Sharni Cutajar We acknowledge that the University of Western Australia is situated on the land of the Wadjuk people of the Nyoongar nation. The Blackstone Society acknowledges that this land was stolen, never ceded, and pays respect to Elders past, present, and emerging.

The views and opinions expressed in the articles of this journal do not necessarily reflect 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

From the Director

01

Isabella Wilson

Speech at the Opening of the

02

The Hon. Robert French AC

Colonial Accountability and Historical Justice in Mutua v Foreign and Commonwealth Office

10

Abdi Fatah Ismail Hassan

To Akiba and Beyond - Economic

18

Quentin Wong

Selection or Confirmation?

Considering Appointments to our Nation’s Highest Court

33

Joseph Sabbagh

The Effect of Engineers’ Approach on Federalism

40

Giorgia Papalia

Fair to Whom? Examining the Notion of Procedural Fairness Within Administrative Law

51

Emma Boogaerdt

Refurbished Beasley Law Library

Empowerment through Commercial Native Title Rights

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Contents

The Eyes (Don’t) Have It: Indigenous People and Cultural Miscommunication in Court

59

Clinton Arnold

From Just Interpreting to Just Interpreting

68

Josephine Kwok

The Interpretation of Dangerous Act Murder following the 2008 Amendments to the Criminal Code

78

Christopher Minus

Freedom of Movement: Universal Human Right or Mere Ideal?

84

Jordan Soresi

Female Genital Mutilation and Cosmetic Surgery: Conceptually Analogous Practices?

92

Grace Bettridge

Policy Considerations in Cases of Television Reception Interference: A Right to Unimpeded Viewing of The Bachelorette?

103

Warren Hennessy

Is Maleness Inherent in Tort Law Principles?

109

Nicole Chung

The Remedy of Abatement: An Anachonrism in the 21st Century?

117

Mitchell Caubo

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From the Director

FROM THE DIRECTOR Welcome to the 2017 issue of The Onyx Journal, The Blackstone Society’s student law journal. This journal is an opportunity to publish some of the exceptional research undertaken

by UWA law students. Once again, we are fortunate to have the journal accepted into the Law Library’s journal collection.

Much like its namesake, this year’s issue of Onyx is sleek, refined, monochrome and ontrend. The articles in this year’s issue cover a variety of topics ranging from constitutional law and administrative law to criminal law and evidence law.

Firstly, I would like to thank all of the students who submitted research papers and case notes. The quality of submissions received was impeccable.

I would like to express special thanks to the Hon. Robert French AC, who has kindly provided us with a copy of his speech from the opening of the newly refurbished Beasley Law Library.

Mr French is a luminary of the law and an inspiration to many law students. We count him among our most successful alumni, as someone who has had a marked impact on the law - not least as Chief Justice of the High Court of Australia and a justice of the Federal Court of Australia. I personally found the speech incredibly interesting and humorous. It speaks of Mr French’s passion for history, scholarship and learning. The University of Western Australia is fortunate to welcome Mr French as our 15th Chancellor in 2018. Thank you to Professor Natalie Skead and Natasha Terbeeke for sourcing this submission on our behalf.

Finally, I would like to thank my Written Editor, Linda Mulenda, my Creative Editor, Natalie Thompson and The Blackstone Society Education Sub-Committee, Bella Hancock and Thomas Coltrona. Linda and Natalie have committed months to this project. This publication would not have come together if not for their efforts. It was an honour to work alongside such motivated and talented young women. Along with Linda and Natalie, I would like to thank Stephen Puttick, the 2016 Onyx Director, and Emma Boogaerdt, the 2017 Blackstone Education Vice-President, for their wisdom and guidance.

I hope you enjoy the articles contained herein. We are confident that volume 26 is the best issue yet (yes, we say that every year).

Isabella Wilson Director

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The Hon. Robert French AC

SPEECH AT THE OPENING OF THE REFURBISHED BEASLEY LAW LIBRARY The Hon. Robert French AC * 29 September 2017, University of Western Australia

A few years ago Valerie and I had the pleasure of visiting All Souls College at Oxford and, in particular, the Codrington Law Library. The library was a place with books reaching from its floors to its ceilings in a succession of fine rooms and in one of them an imposing statue of William Blackstone seated in reflective splendour. There were students in the library — at desks and, to all appearances, working diligently. It was, however, a striking fact that few of them appeared to have a book open. They were, for the most part, working from computer screens.

The scene brought to mind the young person’s definition of a book as ‘an iPad that doesn’t work’. It also brought to mind the dismissive observation of an evangelist of electronic library databases who, on a visit to my chambers in Canberra, pointed to my bookcases and dismissed their contents as ‘just wallpaper’. My own old-school view is that there is a special place for holdable books in any library. Books have a history. In my office in Perth I have an old set of the Commonwealth Law Reports and the Authorised Reports from the United Kingdom which have variously been held by Sir Edward McTiernan, Sir Owen Dixon, Sir Keith Aicken and Sir Anthony Mason. One can always pick up an old book and ask ‘who has held this before me – whose mind has received and worked upon its content?’ A book provides spatial referents — eight corners and a thickness, a special tactile sensation, all in addition to what appears in the text. That is a set of referents which inform how our minds receive * The immediate past Chief Justice of the High Court of Australia, the Honourable Robert French AC, has been appointed the 15th Chancellor of The University of Western Australia. Justice French was the 12th Chief Justice of the High Court of Australia, and the first Western Australian to head the highest court in Australia. He is a graduate of The University of Western Australia with a Bachelor of Science in Physics in 1968 followed by a Bachelor of Laws in 1971. He received an Honorary Doctorate from the University in 2011. He was made an Adjunct Professor at the Law School in 2016.

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Speech at the Opening of the Refurbished Beasley Law Library

and deal with the contents of a book. They are, I may venture to say, a thicker set of referents than those provided by a screen with a cursor at the bottom indicating the percentage of pages read or remaining to be read.

Grumpy old men and women in the law can complain about the apparent aversion to books of some modern law students — an appearance which may or may not be real. But a law library with books and people who read at least some of them, some of the time, is a special space in a law school. It is a space which speaks of the ongoing endeavours of the educator, the scholar and the student. It also speaks of history — the history of the institution in which the library is found and the intellectual history which the library preserves and upon which its users build.

The Beasley Law Library takes its place in the history of this University and its Law School. The establishment of a Faculty of Law was one of the recommendations of the Royal Commission of 1909, chaired by Sir John Winthrop Hackett, which led to the establishment of the University of Western Australia.2

Hackett became the first Chancellor of the University in 1912 and served until 1916. His successor, Bishop Riley, served from 1916 to 1922. In his retirement speech in 1922 Riley outlined plans for the future of the University including the establishment of a Faculty of Law, subject to funding from private and public sources.3

In October 1927, Premier Collier made a grant of £1,000 for the establishment of a Faculty of Law. Frank Reginald Beasley, after whom this Library is named, was appointed as the first Professor of Law. The first members of the Faculty, apart from Professor Beasley, included the Chancellor, the Pro-Chancellor and Vice-Chancellor, the Chief Justice, Sir Robert McMillan, Justice Northmore, the Solicitor-General, the Senior Practising Queens Counsel, Sir Walter James, and two lawyer members of the Senate, HP Jackson and HCF Keall. There were also three lecturers on legal subjects: FW Leake, Ross McDonald and Sir John Dwyer, who later became Chief Justice. There were two nominees from the Law Society, MG Lavan and TAL Davey and two from the Barristers Board: HP Downing and WH Ackland.

In the early years of the University there was no University Library. Staff were expected to use the public library and students were expected to buy their own 2 3

Fred Alexander, Campus at Crawley (University of Western Australia Press, 1963) 30.

Alexander, above n 1, 114.

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textbooks. There was no position of University Librarian until 1927 when a part-time librarian was appointed, responsible for a modest collection of 10,000 volumes.4

The Law Library was initially a small collection within the general library at the original university ‘campus’ in Irwin Street in the city. It was established in 1927 with £200 out of the Hackett bequest made available to the Faculty for books and £1,000 in 1928 for a collection of Law Reports. Professor Beasley acquired a set of the Law Reports (1826-1927), the Commonwealth Law Reports (1901-1927) and the Western Australian Law Reports (1890-1927). He invited donations from the Attorneys-General of the States and of the Commonwealth as a result of which the Library acquired almost complete sets of statutes and was put on distribution lists.

The law collection became a small separate departmental library after the University moved to the Crawley Campus in the 1920s. It was kept in a converted chemical laboratory under the supervision of Enid Russell.

Enid Russell, was among six notable Western Australian women in the early intake of the Law School. She was the first woman in Western Australia to enter into articles of clerkship and the second admitted to practice. She went to London in the early 1930s as part of a delegation to petition the British Parliament for secession of Western Australia from the Commonwealth. She came back to Western Australia and was appointed Secretary/Librarian and part-time Secretary of the Law School in 1946 until 1951 when she went into private practice at Harvey. She put together a history of the legal profession in this State but died before it was completed. It was subsequently completed and published.

While mentioning a woman prominent in the earlier history of the State with a connection to the Law Library, I should make reference to other notable Western Australian women in that early intake. One of them was Shelia McClemans, with whom I worked when an articled clerk and young practitioner at Hammond & Partners in the early 1970s. Valerie did locum work for Sheila a few years later when she took leave from Hammonds. On 11 July 1933, she made legal history as the first woman in the State to appear in wig and gown as counsel before a judge.5 Another of the women, Toby Burrows, ‘Collecting and Informing: The University Library’ in J Gregory (ed) Seeking Wisdom: A Centenary History of The University of Western Australia (UWA Publishing, 2013) 147-58.

5 Geoffrey Bolton and Geraldine Byrne, May it Please Your Honour: A History of the Supreme Court of Western Australia 1861-2005 (Supreme Court of Western Australia, 2005) 154.

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Molly Kingston, was a leading proponent of the establishment of a women’s college at the University and became a foundation member of what turned into St Catherine’s College.

The early students were not all of a studious character and one might wonder how much time some of them spent at such books as were available. In Marion Dixon’s history of the Law School she referred to an account in the student publication, Black Swan, of Mr F W Leake’s lectures:

If that writer is to be believed, students engaged in smoking, poker playing, tickling, pencil-pinching, sleeping that was accompanied by loud snoring and inventing excuses for absence when the attendance roll was called by the lecturer Mr FW Leake.6

The Library collection was assisted by some significant donations in its early years. Professor Beasley tried to buy a law library from the estate of a deceased solicitor, RW Hall. In the event, the collection was donated. Another accretion was the library of Septimus Burt, the first Attorney-General of Western Australia under responsible government, whose father, Archibald Burt was the first Chief Justice of Western Australia. Septimus Burt bequeathed his books to his grandsons if they chose to enter the legal profession. If they did not, the University was to receive them. As it turned out, he had only one grandson, Francis Theodore Page Burt, later to become Chief Justice of Western Australia. Francis was 10 years old when Septimus died.

The Law Library therefore received the books on loan. Sir Francis ultimately gave them to the Law School. He also opened the extensions to the Law Library in 1988.

The Library developed slowly after its initial explosive expansion. Between the depression and the Second World War little money was made available for the acquisition of books. Professor Beasley tried an early version of ‘crowd funding’. He approached graduates and businesses in 1946 for individual donations of two guineas. £900 was contributed and spent on post-war textbooks, reference books and the Victorian and New South Wales Law Reports. In a canny strategic step, The University of Western Australia Law Review was established in 1948 in part, at least, as a device to obtain copies of other journals on exchange. In 1952 the Law Library was receiving

Marion Dixon, Looking Back: A Short History of the UWA Law School 1927-1992 (University of Western Australia Law School, 1992) 10 cited in Bolton and Byrne, above n 4, 158.

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copies of 64 legal journals in exchange for its in-house publication.7 Nevertheless, in 1967 when the new law building opened the collection only held 35,000 volumes, which was small compared with other Australian libraries. As a law student here from 1968 to 1970 it still seemed to me to be a very large collection of unaccessed knowledge and learning about the law. By 1988, long after I had left, the Law Library extensions had been completed, and the collection had grown to 62,500. It was, however, well short of Melbourne’s 120,000 and Adelaide’s 89,000 volumes.

An experienced librarian, Ms Muriel Brawl, was appointed Librarian in 1952.

However, it was not until 1963 that the Law School Librarian became a member of the staff at the main library. By way of footnote, following his retirement as Dean in 1963, following a tenure which lasted 36 years, Frank Beasley was engaged by the newly created Monash Law School as a Special Lecturer with the particular responsibility of setting up its Law Library. Bill Ford, later to become one of Professor Beasley’s successors as Dean of the Law School, was fulltime librarian from 1969 to 1976 and later went on to serve as the librarian at the High Court. He was followed by Alison Southern from 1976 to 1979 and by Andrew Domahidy until 1985. There is no longer a dedicated Law Librarian but rather librarians within the general library system who are given responsibilities with respect to the Law Library.

The Pearce Committee Report on Tertiary Education in 19878 described the Beasley Law Library as ‘basic’ and ‘not really an adequate research library’. The Report suggested that the Library should have at least 100,000 books with an annual accretion of 3,000 to 4,000. Following that Report, Professor Bob Berring, the Law Librarian at the University of California at Berkeley, came to Perth in 1988 as the Robinson Cox Visiting Fellow to help with the development of a collection policy. The Faculty received $500,000 from the Public Purpose Trust. The University contributed a similar amount to improve the collection to the standard recommended by the Pearce Committee.

Emma Hawkes has suggested in her history of the University of Western Australia library system, the great significance of the Pearce Report was not so much 7 Marion Dixon, above n 5, 36-8 cited in Hawkes, History of the Collection of the University of Western Australia Library, 1913-1999 (Centre for West Australian History, March 1999).

8 Denise Pearce, Enid Campbell and Don Harding, Australian Law Schools: A Discipline Assessment for the Commonwealth Tertiary Education Commission (Canberra, Australian Government Publishing Service, 1987).

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in the administration of the libraries as in their collection policies. These were ‘of vital importance’ to law faculties. In the event, the Law Library prospered where prosperity is defined by its hard copy collection. In 1992, the collection had grown to 92,950 books. By 1999, it had reached 100,000 volumes.

The Law Library has always maintained a separate identity within the University library system generally. This was not an unusual phenomenon in Australia.

As the Pearce Report noted, Australian law libraries generally did not see their particular needs as recognised by central campus libraries.

The Library cannot now be defined simply as a repository of books. It provides access to online databases and creates learning spaces to serve a new kind of student cohort who must learn how to access a vast and rapidly changing mass of legal information, including developments in domestic statutes, international conventions and case law, of a volume unimagined when I studied law.

A snapshot of contemporary student perspectives can be gained from a perusal of the University Library Suggestions Section relating to the Law Library which appears on the University’s website. The recorded online suggestions date back to March 2011. They have a pleasingly timeless quality about them even though they are responding to contemporary circumstances. One, I was pleased to see under the headline ‘More books please’ on 22 March 2011, said ‘please provide more books to borrow especially text recommended by a lecturer’. There were complaints reflective of the new age in which the library operates, about the intermittent character of the Wi-Fi connection and slow computer loading times. There was a complaint of a more familiar character, translated into the world of technology, about the disregard of some students for basic hygiene. The complaint was ‘some students need to understand that they cannot cough all over the keyboards … the same goes for constant sniffing! Can the library provide some masks or tissues for the sanity and health of other students?’

Then there was a complaint about the Guild and clubs arranging parties on the Oak Lawn during library opening hours. A further rather mysterious complaint, made in August 2014, was that the library had been persistently closing unexpectedly during its opening hours. My aging traditionalist heart warmed to one anonymous recommendation on Saturday, 2 May 2015 that the library should acquire Roman Law and the Origins of the Civil Law Tradition by George Mousourakis. Moving considerably down-market there was a complaint in September last year about somebody leaving (2017) 26 The Onyx Journal 2

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The Hon. Robert French AC

a bunch of ‘PePe the Frog’ trading cards and a pencil case on the top floor which had not been moved for two weeks. More recently, noise control on the top floor has been a concern, the complainant saying ‘there are bands of kids up here in gaggles talking absolute nonsense for hours on end’.

Looking back to the origins of the Law School and the Library and the account in the Black Swan of student behaviour during Mr F W Leake’s lectures, one might remark that the spectrum of student behaviours has not changed all that much.

Despite the suggestions they have a good deal less to complain about than their predecessors. The Beasley Library is subject to serial refurbishment. The most recent, which we acknowledge tonight, now provides 60 additional seats in a new collaborative study space. The UWA website tells us ‘The new space has been filled with power points throughout for greater ease of working with technology.’

For grumpy old men like myself, the importance attached to USB outlets over the books on the shelves might be cause for complaint. But it would be an hypocritical complaint. I had the assistance, in preparing my speech notes, of hard copies of Fred Alexander’s Campus at Crawley, Geoff Bolton and Geraldine Byrne’s May it Please Your Honour: A History of the Supreme Court of Western Australia and Jenny Gregory’s edited Centenary History of the University. However, I found Emma Hawkes’ History of the Collection of the UWA Library online which, in dealing with the Law Library, drew substantially, with attribution, from Marion Dixon’s history of the Law School. I must accept also the contemporary reality of a changing student demographic, a largely post-graduate teaching program and the necessary availability of online legal information.

In this Library, we can say the old coexists with the new. And not only the old, but also the ancient. That is present in Richard Walley’s artworks which, as the UWA website says, acknowledge and celebrate the Aboriginal history of the land on which the Law School stands and the Whadjuk Noongar People who are its traditional owners and custodians.

The Beasley Library is not just a place to go and get information. It is a space suffused with the ancient tradition of the land reflected in its artworks and the long global and local history of the law reflected in its books and databases, as well as the history of education, scholarship and learning which define this Law School. It 8

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provides manageable access to the vast tsunami-like wavefront of legal information which moves across our societal landscape with a speed and complexity that no single mind can comprehend. Knowing how to manage its currents is a necessary skill of all serious legal practitioners.

It is a real pleasure to be here and to join in the celebration of this place from which so many of us began our legal journeys and from which so many embark upon those journeys today.

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Abdi Fatah Ismail Hassan

COLONIAL ACCOUNTABILITY AND HISTORICAL JUSTICE IN MUTUA V FOREIGN AND COMMONWEALTH OFFICE Abdi Fatah Ismail Hassan* This paper critically discusses the relevance and operation of historical justice in Mutua v Foreign and Commonwealth Office. The inherent legal and judicial difficulties of the Court’s response to issues of historical justice are contemplated alongside the violent legacies of late British imperialism in the former Kenyan colony. The methods by which the law has developed procedural, evidentiary, special and temporal barriers against the provision of remedies for trans-generational harm and trauma sustained in the colonial context is examined. Similarly, the conceptual limitations exhibited by historical justice, as distinct from traditionally individual notions of Western justice, are considered.

More generally, Mutua v Foreign and Commonwealth Office demonstrates first, the effectiveness with which the separation of British-Kenyan colonial responsibilities occurred, and second, the various legal constraints encountered by victims of colonial violence who seek justice within post-colonial institutions.

I Introduction In 2013, the British Government agreed to a secret, out of court settlement worth £19.9million in damages to more than 5000 claimants for crimes committed during the Mau Mau uprising.1 The uprising, and the British counter-insurgency, marked a turning point in Kenyan colonial history, and hastened the decline of the Empire in East Africa, the ramifications of which were partly exposed in the case of Mutua and Others v Foreign and Commonwealth Office (Mutua).2 In that case, a great deal of the evidence discussed was of a historical nature; initially, the testimonies of the five (later four) claimants, evidence presented by historians, and British colonial * Abdi is a Juris Doctor student and holds a Bachelor of Arts (Honours) from the University of Western Australia.

1 United Kingdom, Parliamentary Debates, House of Commons, 6 June 2013, vol 563, col 1692 (William Hague).

2 (‘Mutua’) [2011] EWHC 1913 (QB) (21 July 2011).

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archival records. Notably, the case is an example of ‘historical justice’, as it concerned crimes that were committed in the past, where attempts were made in the present to remedy those crimes. Historical justice, often linked to but separate from restorative justice, involves, though is not limited to, the present acknowledgment of past wrongs, memorialised in the public and often accompanied by apologies, compensation and/ or further memorialisation.

This essay seeks to examine the conditions that brought about the historical justice in the case of Mutua. In so doing, the overriding historical, ideological and legal issues that allowed for this case to be heard and responded to by the British Government are discussed. As a consequence, the limitations of historical justice, with specific reference to the operation and legacy of the British Empire, are presented.

Mutua suggests the institutional, evidentiary and conceptual difficulty of seeking justice, in the first instance for crimes committed substantially in the past, and second, the additional difficulty of being served justice within a context where the legacies of the mechanisms through which the crimes were committed (the Empire) permeate and sustain the present circumstances where justice is being sought.

II The Case Before the Court

The case before the Royal Courts of Justice was heard over a week in April 2011, though it was the culmination of efforts by Kenyan survivors of the counter-insurgency since the late 1990s.3 The Kenyan Human Rights Commission formally took up the cause in 2003, and civil proceedings commenced in 2006.4 The claimants lodged that, in addition to the liability that may be incurred by the Colonial Government, Her Majesty’s Government (HMG) in the United Kingdom also had a case to answer ‘for having encouraged, procured, acquiesced in, or otherwise having been complicit in, the creation and maintenance of the “system” under which the claimants were mistreated’.5 The ‘system’ the claimants refer to involved the state of emergency declared by the then Governor of Kenya, Sir Evelyn Baring, on the 20th 3 Kenya Human Rights Commission, Court Case, Settlement and Memorial; Memorial to the Victims of Torture and Ill-Treatment During the Colonial Era (1952–1960) (2015) <http://resource.khrc.or.ke:8181/ khrc/handle/123456789/178>; David M. Anderson, ‘Mau Mau in the High Court and the ‘Lost’ British Empire Archives: Colonial Conspiracy or Bureaucratic Bungle?’ (2011) 39(5) International Journal of African Historical Studies 714.

4 Anderson, above n 4.

5 Mutua [2011] EWHC 1913 (QB) (21 July 2011) [13].

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of October 1952 in response to resistance amongst the Kikuyu.6 Lonsdale traces Mau Mau to 1948, with its beginnings as the unrest of Kikuyu labourers on white farmland.7 The origin of Mau Mau is then not too dissimilar from other agitations across the British Empire in its centuries long history. However, the elements of ethnicity, land tenure conflict, and repression arising from the Emergency escalated soon thereafter.

By July 1953 more than 100,000 suspects, mostly Kikuyu, came into contact with the authorities. Two years later, over 1,000,000 Kikuyu’s were forcibly relocated to 804 ‘villages’, surrounded by barbed wire, ostensibly for protection from the Mau Mau.8 In the course of their duties, the security forces (comprising the Kenyan police force, the Home Guard and/or the Kenya Regiment) conducted ‘screening’ exercises to determine whether or not suspects had any association with the Mau Mau, or were Mau Mau themselves. It was not uncommon for the ‘screening’, or more appropriately ‘interrogation’, to share characteristics of torture.9 The claimants, Ndiku Mutua, Paulo Nzili, Wambugu Nyingi, Jane Muthoni Mara and Susan Ngondi, were all screened, and some subjected further to the ‘Dilution Technique’. Elkins describes this procedure as ‘isolating small numbers of detainees from the larger group, and systematically using force, together with confessed detainees, to exact compliance and cooperation’.10

III Imperial Legacies in Mutua v Foreign Office

The facts of the case are intimately related the function and decline of the Empire, taking the form of a colonial government, in Kenya. In understanding how the case was brought before the Court, the specifics of how the British left Kenya is relevant. Darwin finds that in relation to the British Empire: Decolonisation was a subtle, intricate and deceptive process. External alternations concealed inner continuities. The substance of the colonial relationship may have been unchanged by the concession of autonomy or independence. If 6 John Lonsdale, ‘Mau Maus of the Mind: Making Mau Mau and Remaking Kenya’ (1990) 31(3) Journal of African History 394; Bruce Berman, Control & Crisis in Colonial Kenya: The Dialectic of Domination (James Currey Publishers, 1990) 347-350; Caroline Elkins, Britain’s Gulag: The Brutal End of Empire in Kenya (Jonathan Cape, 2005) 31-61.

7 Lonsdale, above n 6, 394.

8 Mutua [2011] EWHC 1913 (QB) (21 July 2011) [42].

9 David M. Anderson, ‘British Abuses and Torture in Kenya’s Counter-insurgency, 1952-1960’ (2012) 23(4–5) Small Wars and Insurgencies 704.

10 Mutua [2011] EWHC 1913 (QB) (21 July 2011) [45].

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decolonisation is to mean more than a superficial modification of constitutional statutes, it must refer to wider changes in the relations between the developed and less developed states.11 Independence was granted on the 12 December 1963.12 Soon thereafter, the Parliament of Kenya enacted the Constitution of Kenya (Amendment) Act which seemingly vested all ‘rights, liabilities and obligations’ of HMG with respect to the colonial government in the new Kenyan Republic.13 This would imply that in the future, should any justice be sought for the crimes of the counter-insurgency, it would have been the independent Kenyan Government that would be responsible. Indeed, this was the logic used by the Foreign and Commonwealth Office.14 The Office further relied on the fact that ‘the constitutional arrangements under which the government of Kenya was the responsibility of the Colonial Administration under the Governor’ meant that responsibility lay with that Administration.15 Separately, Johnson finds that, at the conclusion of the Emergency, ‘[i]t was already clear that the Britain would pull out of Kenya, but they aimed to leave behind a constitution that would safeguard the interests of all races’.16 These developments in turn manifested themselves in the preoccupation of the Court with whether or not a case could be brought at all given how HMG had disengaged from its colonies ties with Kenya. Here, the exact nature of British imperial retreat becomes central to the claimant’s case. Although separated by a half-century of distinct social, political, and economic developments, the forces of imperialism must still be seen to exert an influence on present realities of former colonial subjects operating within a system that is itself inextricably linked with an imperial past. This is precisely the issue that makes historical justice with regards to the British Empire so difficult. Whilst it is a well-established fact that international law had in many ways legitimised colonialism, Anghie also notes that this process also developed ‘mechanisms to prevent any claims for colonial reparations’ being made after the fact.17 Although Mutua differs in substance, it is identical in principle.

In his judgement, McCombe J was unwilling to contest the issue of the John Darwin, Britain and Decolonisation: The Retreat from Empire in The Post-War World (Palgrave Macmillan, 1988) 7.

12 Kenya Independence Act 1963 (UK) s 1(1).

13 Constitution of Kenya (Amendment) Act 1964 (Kenya) s 26.

14 Mutua [2011] EWHC 1913 (QB) (21 July 2011) [142].

15 Ibid (emphasis added).

16 Rob Johnson, British Imperialism (Palgrave, 2003) 196.

17 Antony Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge University Press, 2004) 2.

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transferability of liability for the crimes committed in the counter-insurgency to the Kenyan Government.18 As the Foreign and Commonwealth Office argued, any case brought by the claimants would need to be taken up with the then colonial administration, whether or not it had ceased to exist as of 12 December 1963. The above legal history indicates he complexity of imperial responsibility. It also demonstrates the specific conditions under which the four claimants could be heard. The British ‘pull out’ from Kenya was not done without a clear and careful separation of responsibilities, and with all of the implications this would have on future developments. Even when decolonisation was accelerated by the British, this was always done with a view to orchestrating the desired outcome of an African ruled Kenya.19 The case of Mutua must be understood within this context; the claimants were brought to seek justice in Britain precisely because of the structures that facilitated the imperial violence of the Mau Mau counter-insurgency and because those same structures had sought to prevent any responsibilities from being connected with HMG. To illustrate this point Brendon finds that: The Colonial Office continued to use every technique to defend Baring [Governor of Kenya, 1952-59]. It denied the most serious charges against his administration. It supressed evidence, discredited witnesses, and spun a web of deception worthy of Albion at its most perfidious.20 By 2011, it certainly appeared as though there was a suppression of evidence in relation to Mau Mau by the Colonial Office after the discovery of formally secret files in HMG Communications Centre at Hanslope Park.21 The Colonial Office itself eventually morphed into the Foreign and Commonwealth Office further underscoring the imperial legacy associated with the circumstances under which Mutua was heard.

In fact, the claimants had initially submitted to the court that: It is averred that the Colonial Secretary and/or officials within the Colonial office, encouraged, procured, acquiesced in or were otherwise unlawfully complicit in the torture and ill treatment inflicted upon the Claimants thereby making them liable as joint tortfeasors [along with the Colonial administration].22 Mutua [2011] EWHC 1913 (QB) (21 July 2011) [75].

Ronald Hyam, Britain’s Declining Empire: The Road to Decolonisation 1918-1968 (Cambridge University Press, 2006) 281-282.

20 Piers Brendon, The Decline and Fall of the British Empire (Vintage, 2008) 562.

21 Mutua [2011] EWHC 1913 (QB) (21 July 2011) [32].

22 Ibid app D [38] (emphasis added).

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Darwin’s reference to the ‘continuities’ of imperialism are well illustrated in the above claim. The Foreign Office’s response to the case, on behalf of HMG, implicitly acknowledges the continuing relation between the history of imperialism and the unresolved issues arising out of that history in the present. Mutua may be viewed as one such ‘issue’ since the violence of the counter-insurgency was not dealt with in the context of its occurrence.

IV Limitations of Historical Justice

The case of Mutua constitutes a direct engagement with the British Empire in addressing the liability of the Colonial Office in their mistreatment. The relationship between this case and late British imperialism holds much significance for the possibilities and limitations of historical justice arising out of the colonial experience. Vernon defines historical justice (or redress) in three categories: restitution, compensation, and apology.23 In all three forms, justice is sought from the perpetrator by the victim. In this case, the claimants sought justice, but it was not initially clear from whom that justice could be derived. In this case, the claim for compensation was joined with a claim for an apology.24 Both forms of justice require separate considerations.

The significance of an apology is closely linked with the memory of the past.

The Mau Mau uprising is indivisible from the decolonisation of Kenya. However, the public memory of Mau Mau has been contentious, with historians noting the use of this memory for political purposes. ‘Mau Mau is popularly depicted as a jolly good thing, which has the power to unite all Kenyans in their post-electoral hour of need’, Hughes finds that the uprising has been repositioned as a dichotomous anticolonial movement, in turn erasing the characteristics of civil war between rebellious and loyalist Kikuyu’s.25 In light of this memory, the function of an apology is to remove ‘any remaining legitimacy from’ the historical injustice.26 The argument may also be made that an apology together with compensation works to address both the memorialisation and substantive impact and legacy of an injustice.

Richard Vernon, Historical Redress: Must We Pay For the Past? (Continuum, 2012) 7.

Caroline Elkins, ‘Alchemy of Evidence: Mau Mau, the British Empire, and the High Court of Justice’ (2011) 39(5) International Journal of African Historical Studies 733.

25 Lotte Hughes, “Truth Be Told’: Some Problems with Historical Revisionism in Kenya’ (2011) 70(2) African Studies 184.

26 Ibid 7.

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To a certain extent, the settlement of the Mutua case may also be viewed as exceptional, as far successful historical justice claims go. The fact that the original claimants were all alive to press their case was substantial in reaching an agreement on compensation. This is due to the fact that the liberal understanding of justice, as was the case in Mutua, ‘typically focuses on individual rights and a modest redistribution of resources’.27 That is to say, such a conceptualisation of justice is very unreceptive to most kinds of historical injustices, particularly when the original victim has died. Within the colonial context, this is further complicated as the consequences of colonialism, and the violence’s committed with it, are often quantified in net terms; colonial harm is seen as collective harm.28 This presents two difficulties for justice. Firstly, the individualisation of Western justice means that collective claims for reparations are immediately contentious as this requires the demonstration that ‘members of former colonies are still suffering a net loss’.29 Even when this could be shown in the case of Mutua, McCombe J was only willing to conclude that ‘there may have been systematic torture of detainees during the Emergency’.30 At this point, further limitations on the extent to which historical justice is viable in connection with the British imperial past becomes apparent. Elkins and Anderson remain the two foremost historian involved in the case.31 In fact, the case often rested upon the statements made by both historians and the body of literature they contributed to. In Justice McCombe’s observations, ‘it is not possible to resolve that dispute simply on the documents that I have seen to date’.32 The involvement of historians and the reliance on (British imperial) archival documentation firstly indicates that the facts of the case as set out above were not out-rightly accepted

by McCombe J. This may also stem from the fact that there is a higher burden of evidentiary proof applied to historical injustice than contemporary injustice. For example, had it not been for the discovery of the Hanslope records, the case of Mutua would not have progressed to later stages as the Foreign Office sought to have the case dismissed on a preliminary application of the Limitation Act 1980.33 The Act, Jeff Spinner-Halev, Enduring Injustice (Cambridge University Press, 2012) 56.

Daniel Butt, ‘Historical Justice in Postcolonial Contexts: Repairing Historical Wrongs and the End of Empire’ in Klaus Neumann and Janna Thompson (eds), Historical Justice and Memory (University of Wisconsin Press, 2015) 175.

29 Ibid 177.

30 Mutua [2011] EWHC 1913 (QB) (21 July 2011) [125].

31 Elkins, above n 24.

32 Mutua [2011] EWHC 1913 (QB) (21 July 2011) [48].

33 Ibid. [3]; Limitation Act 1980 (UK) c 58, ss 11, 14, 33.

27 28

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much like the vast majority of public law, both domestic and international, would have placed time limitations on the ability of the claimants to bring about a case.

Ultimately, however, McCombe J ruled that a formal trial could proceed on the newly discovered documentation, which thereby led to the out of court settlement by the UK Government. On 6 June 2013, the then Foreign Secretary William Hague made the following statement to the House of Commons, acting upon the notion of historical justice in the form of an apology, However I would like to make clear now and for the first time, on behalf of Her Majestyâ&#x20AC;&#x2122;s Government, that we understand the pain and grievance felt by those who were involved in the events of the Emergency in Kenya. The British Government recognises that Kenyans were subject to torture and other forms of ill treatment at the hands of the colonial administration. The British government sincerely regrets that these abuses took place, and that they marred Kenyaâ&#x20AC;&#x2122;s progress towards independence.34

V Conclusion

It is evident then that the conditions that are necessary for historical justice to be exacted are quite specific in their limitations. The Mau Mau uprising was crucial to the course of decolonisation taken by the British Empire in Kenya. After some fifty years, the violence sustained from the counter-insurgency was brought before the Royal Courts of Justice. This process highlights the residual imperial legacy of the Mau Mau and its effect on historical injustices. Furthermore, the case of Mutua also shows the difficulty of seeking justice for colonial violence within a post-colonial context. Even though in many respects, this case is exceptional in the involvement of the Colonial Office in the uprising, the discovery of the Hanslope files, and the use of historical evidence by the Court, the case suggests possibilities for the exercise of historical justice in formerly-imperial environments.

â&#x20AC;&#x160; United Kingdom, Parliamentary Debates, House of Commons, 6 June 2013, vol 563, col 1692 (William Hague) para 4.

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TO AKIBA AND beyond Economic Empowerment through Commercial Native Title Rights Quentin Wong* Native Title has often been seen as a potential vehicle for the economic empowerment of Aboriginal and Torres Strait Islander peoples. This paper submits that Australia’s native title jurisprudence has been slow to recognise commercial rights as an incident of native title and that much could be learnt from our Commonwealth neighbours in the Great White North. Despite Australia’s reluctance to elaborate on this newly recognised right, the privatisation of Native Title rights through Prescribed Body Corporates and Payment for Environmental Services are quickly becoming real alternatives to the recognition of commercial rights. Given the recent events at Uluru, understanding these rights is just one step (of many) towards the ultimate goal of Constitutional recognition.

‘One does not need to delve deeply into the history of engagement between Indigenous peoples and settlor states to find examples of the relationship between land ownership, economic leverage and political power.’1

I Introduction The idea of using native title as a mechanism for Indigenous economic empowerment is becoming a reality in Australia. It has been more than 20 years since the landmark decision of Mabo v Queensland (No 2) (‘Mabo’)2, yet the courts attitude to the recognition of commercial rights as an incident of native title is only just starting to change. The decision in Mabo marked a point when the courts recognised that there were in fact traditional land owners with an established legal system in place in before 1788. The development of Australian jurisprudence on property rights suddenly had to accommodate a subsisting right arising from native title. This essay highlights Aus* Quentin is a final year Juris Doctor student and holds a Bachelor of Science from the University of Western Australia.

1 Hon. Patrick Keane, ‘Opportunity and Responsibility’ (Paper presented at the Native Title Conference 2011: Our Country Our Future, Brisbane, 3-5 June 2011), 1. (‘Keane’).

2 (1992) 175 CLR 1 (‘Mabo’).

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tralia’s inadequacy in recognising commercial native title rights and questions whether or not it is even worth exploring economic empowerment through native title. This essay focuses on a particular subset of native title law referred to generally as commercial rights, particularly whether the right to take natural resources in native title can exist separately form part of the bundle of different rights. Australia’s native title jurisprudence has been described as being ‘persistently parochial’ 3 so by referencing Canadian jurisprudence on ‘Aboriginal title’, this essay aims to highlight key lessons on judicial elaboration from a country with a similar history. 4 II Development of Native Title Jurisprudence in Australia As the focus is on whether commercial rights exist as a separate incident of native title, this essay will focus primarily on the period post Mabo, following the creation of the Native Title Act 1993 (‘NTA’), and the decision handed down in Akiba on behalf of the Torres Strait Regional Seas Claim Group v Commonwealth of Australia (‘Akiba’)5. It is however still important to understand the roots of native title to understand the tensions that arise in considering the potential economic exploitation of native title by native title holders.6 Native title is commonly referred to as a ‘bundle of rights’7. The content of that bundle will ultimately depend on the native title holders evidenced traditional laws and customs as well as Australia’s legal capacity to recognise the rights and interests they hold. As such it is not legal title but rather a bundle of rights that can each be extinguished.8 Successive governments have seen the potential for native title to contribute to the economic development of Indigenous peoples in Australia.9 Despite this, Australia’s development of native title jurisprudence has been said to have been met only by ‘legal tightfistedness and scholasticism.’10 See Kirby J in Fejo v Northern Territory (1998) 195 CLR 96.

The author recognises the distinct cultural identity of the peoples discussed and all attempts have been made to distinguish the two groups in text. For more see: Office of the High Commissioner for Human Rights, The Rights of Indigenous Peoples (Fact Sheet No 9) (Rev 1), United Nations 1997), available online at <http/://www.ohcr.org/documents/ublications/factsheet9rev.1en.pdf>.

5 [2013] HCA 33.

6 Lisa Strelein and Tran Tran, ‘Building Indigenous Governance from Native Title: Moving Away from ‘Fitting in’ to Creating a Decolonised Space 18(1) (2013) Review of Constitutional Studies 19.

7 As established in Ward v Western Australia (1998) 159 ALR 483.

8 See for example Commonwealth v Yarmirr (2001) 184 ALR 113.

9 Sean Brennan, Megan Davis, Brendan Edgewater and Leon Terrill (2015) Native title from Mabo to Akiba: a vehicle for change and empowerment. Chapter 1: The Idea of Native Title as a Vehicle for Change and Indigenous Empowerment Annandale, NSW: Federation Press 4. (‘Federation Press’).

10 Noel Pearson, ‘The High Court’s Abandonment of the ‘Time-Honoured Methodology of the Common Law’ in its Interpretation of Native Title’ (2003) 35 Sydney Law Review 1,13.

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A Mabo to Native Title Act The NTA was created to clarify the legal position of landholders, provide for the coexistence of native title with the national land management system and the processes to be followed for native title to be claimed, protected and recognised through the courts.11 The introduction of the NTA sparked hopes of a path towards greater empowerment of many Aboriginal and Torres Strait Islanders. The years following Mabo were an exciting time for native title jurisprudence as several test cases soon followed to see how far the NTA could be stretched.12 There was a highly legalistic approach in response to Mabo and early on it was clear that the Commonwealth, State and Territory governments were relentless proponents of a severed connection, narrow rights and native title extinguishment.13 Native title claims were met with strong political resistance.14 Unfortunately against all odds,15 strategies, doctrines and techniques were developed with the effect of containing the potential implications of Mabo. This artificial restriction ultimately hindered the applicability of Native Title as a means of economic empowerment. Post Mabo has resulted in significant hurdles to not only the granting of a Native Title right but also technical objections to the limits of what they can do with the land.16 B Akiba and Reform The facts of Akiba concerned a native title determination made under s 223 of the NTA regarding 13 Torres Strait Islander communities over parts of the water.17 Interestingly the offshore native title existed was not in dispute but rather the scope of rights held by the Torres Strait islander group was brought into dispute. The Torres Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2007, (2008) Ch 1.

See for example, Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422.

13 For example, Commonwealth v Yarmirr (2001) HCA at 145. ‘There is a fundamental inconsistency between the asserted native title rights and interests and the common law public rights of navigation and fishing, as well as the right of innocent passage. The two sets of rights cannot stand together and it is not sufficient to attempt to reconcile them by providing that exercise of the native title rights and interests is to be subject to the other public and international rights.’.

14 For example, Jon Altman, ‘Mapping Indigenous Land Wealth: The Revolution We Had to Have’, Crikey, 4 July 2013 Available online at <https://www.crikey.com.au/2013/07/04/mapping-indigenousland-wealth-the-revolution-we-had-to-have> ‘That was clearly demonstrated on the ABC’s 7.30 Report

by John Howard with a map showing 78% of Australia coloured brown, suggesting such an area might be indigenous-owned legally...’

15 These included trying to unify Aboriginal and Torres Strait Islander communities, find resources, navigate the legal system etc.

16 See for example, Lovett on behalf of the Gunditjmara People v Victoria [2007] FCA 474.

17 Akiba v Queensland (No 3) (2010) 204 FCR 1, 20 [6] (‘Akiba (Federal Court)’).

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12

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Strait Regional Seas Claim Group persisted through three ‘rounds’ of litigation since the claim was first lodged in 2001 with the final decision in the High Court agreeing with the original trial judge determination in 2013.18 This decision ultimately has now tipped the scales in native title land holders in the eyes of law. As a result of Akiba, trial judges would now appear to have a greater licence from the High Court to frame rights in a broad term which ultimately decreases the risk of extinguishment. Akiba is significant to native title jurisprudence as it clarified the distinction between partial extinguishment of native title and its regulation. It was found that the (since repealed) fisheries legislation was found to regulate as opposed to extinguish native title and this marked a transition to a more accommodating approach to recognition native title as a property. The inconsistent legislative schemes could generally be described as having a provision that prohibits a person from engaging in commercial fishing unless that person holds a licence. 19 1 Trial Judgment In 2010 Justice Finn found that the Torres Strait Islanders Sea Claim group held native title in the waters of the Torres Strait. His honour did not completely disavow the sectioning of rights in the ‘bundle’ but his analysis was not sympathetic to it, and ultimately defined the claimants’ native title rights broadly.20 Justice Finn parted ways from some fellow members of the Federal Court in earlier cases on the question whether a trading right was dependent on the establishment of exclusive possession.

His honour questioned why at common law a group with non-exclusive native title rights in an area should be denied the opportunity to put resources taken from their traditional country to trading and commercial purposes.21 Justice Finn accepted that the commercial aspect of the right to fish was a ‘distinct incident of the right for extinguishment purposes’22. Of importance was his honour’s finding that a commercial right was ‘a discrete and severable characteristic of a general right to take resources.’ 23 History of litigation; Akiba v Queensland (No 3) (2010) 204 FCR 1; Commonwealth v Akiba (2012) 204 FCR 260; Akiba v Commonwealth (2013) 250 CLR 209.

19 Laurent Butterly, ‘Before the High Court: Clear Choices in Murky Waters: Leo Akiba on behalf of the Torres Strait Regional Seas Claim Group v Commonwealth of Australia’ (2013), 35 Sydney Law Review, 238. (‘Butterly’) 20 See for example Akiba (Federal Court) at 136. ‘he was not averse elsewhere in the judgement to rejecting rights expressed with ‘uninformative generality’ where he though more specificity was necessary in terms of evidence and legal submission’.

21 Ibid, 188.

22 Ibid, 211.

23 Ibid, 212.

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2 High Court and subsequent cases The High Court of Australia reinforced Justice Finn’s interpretation of the native title determination. This marked a departure from previous interpretations of the NTA and now focused on a broader ‘right’ as opposed to a discrete right capable of extinguishment.24 The argument that a characterisation of a specific right is the creation of a lesser right specific to that purpose was rejected. The HCA focused on the native rights itself and considered whether there was an inconsistency between the statute and the interest.25 In regards to the issue of the extinguishment of native title rights a distinction was drawn between a traditional practice and custom and that of an extinguishment arising through statute or a common law right.26 This widening of what was to be considered as the ‘right’ has made it more difficult to be extinguished by an inconsistent statute. French CJ and Crennan J concluded that the originally determination of the native title right did not include a native title right of the kind found by the Full Court to have been extinguished.27 The right to take for commercial purposes was a discrete and severable characteristic of a general right to take marine resources. 28 Further cases emphasise the coexistence over extinguishment and send a strong message that should hopefully create a more positive approach to the litigation of extinguishment questions. 29 What this means for commercial fishing rights, and more broadly commercial rights, is a greater recognition under native tile.

III Commercial Rights As of 2013 Indigenous ‘lands’30 accounted for roughly 30% of Australia’s landmass.31 Estimates from 2009 suggest that nearly all (98.6%) Indigenous owned or controlled land is in very remote areas of Australia.32 Given the potential for resource exploitation, native title groups are in a powerful position. The outcome of Akiba signals an exciting opportunity to promote integrating sea rights, Indigenous governance See Yarmirr v Northern Territory (No 2) (1998) 82 FCR 533, 586-588.

Akiba v Commonwealth [2013] HCA 33; 250 CLR 209 at [31] (‘Akiba (High Court)’).

26 Akiba (High Court) at [65].

27 Ibid at [29] (French CJ and Crennan J).

28 Ibid at [67].

29 See for example, Western Australia v Brown [2014] HCA 8; Karpany v Dietman [2013] HCA 47.

30 Jon Altman, ‘Mapping Indigenous Land Wealth: The Revolution We Had to Have’, Crikey, 4 July 2013 Available online at <https://www.crikey.com.au/2013/07/04/mapping-indigenous-land-wealth-the-revolution-we-had-to-have>.

31 Ibid.

32 Steering Committee for the Review of Government Service Provision, Overcoming Indigenous Disadvantage: Key Indicators 2005, Productivity Commission, (2005), [11.26].

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and commercial development in Australia.33 The NTA does not preclude commercial rights and interest as falling within native title, as the two are not mutually exclusive.

There is a growing tension between the commercial rights and interests that are not traditional rights and interests as defined in section 223 of NTA and the concept of exclusive possession.34 It has been suggested that s 223(2) should be extended to include a reference to trade and commerce to further protect commercial fishing as a legitimate means of indigenous economic empowerment.35 Given that these rights exist as separate rights many Indigenous landholders fail to gain exclusive possession and may receive only limited access. 36 This is a major stumbling block as the true economic potential of native title relies on exclusive legal title being granted which Indigenous groups to enter commercial agreements unencumbered. 37 That said, only 10 years prior in the case of Yarmirr v Northern Territory 38 the common law was incapable for recognising commercial aspects of native title because of an inherent limit within the common law itself, 39 or, as it has been suggested, some misplaced notion that commercial industry is somehow un-aboriginal.40 This notion that economic development is contradictory to traditional land use and what it means to be Indigenous is still unfortunately apparent today and the number of Indigenous groups participating in offshore natural resource development is still limited.41 The recognition that native title resource rights are capable of commercial exploitation is an important development. Recognising commercial exploitation of rights and interest on land and resources under a communal title requires a decision-making and dispute resolution processes which ultimately empower Indigenous groups.42 The Butterly, above n 19.

Federation Press, above n 9, Bret Walker, Chapter 2 The Legal Shortcomings of Native Title, 14-15.

35 Native Title Amendment (Reform) Bill 2011 (Cth) CL13.

36 Aboriginal and Torres Strait Islander Social Justice Commissioner, native title Report 2009 (Australian Human Rights Commission, 2010).

37 Neva Collings, ‘Native title, economic development and the environment’ (2009) 93 Australian Law Reform Commission Reform Journal 45 (‘Collings’).

38 [2001] HCA 56.

39 Collings, above n 37, 47.

40 Lisa Strelein, ‘A Comfortable Existence: Commercial Fishing and The Concept of Tradition in Native title’, Balayi: Culture, Law and Colonialism Volume 5 Issue 2002 (2002).

41 Melanie Durette, Indigenous Property Rights in Commercial Fisheries: Canada, New Zealand and Australia Compared, Centre for Aboriginal Economic Policy Research, Working Paper No. 37/2007 ISSN 1442-3871 ISBN 0 7315 4936 8, available online at <http://caepr.anu.edu.au/sites/default/files/Publications/WP/CAEPRWP37.pdf> (‘Durette’) .

42 Andrea McCallum, ‘Dispute Resolution Mechanisms in The Resolution of Comprehensive Aboriginal Claims: Power Imbalance Between Aboriginal Claimants and Governments in Negotiation’, [1995] Murdoch University Electronic Journal of Law 13.

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benefits that flow from commercial exploitation need to be negotiated with as there is no reason to deny Indigenous peoples the full enjoyment of the rights to their territories to their entitled natural resources.43 A Economic Empowerment Economic value is derived from the right to exclude, the right to make decisions about the use of land and resources and the right to take and use resources.44 The previous presumption of inalienability and Crown right of pre-emption have significantly impacted on the economic value of land by artificially restricting the extent to which any native title can be full engaged.45 In Yanner v Eaton 46 the courts found that the recognition of native title is not inconsistent with the Crowns power to manage scarce resources is not extinguished by regulation of resource exploitation.47 Regardless in the event where commercial purposes are not specifically excluded economic development needs of the society or group are caught within the notion of communal needs.48 As discussed above the High Court unanimously upheld commercial fishing rights in the Torres Strait in Akiba. Commercial fishing rights are not only traditional rights but they form an integral part of the economic development of Indigenous communities. 49 This is a testament to their persistent and the recognition of native title rights. The right to fish for commercial purposes was not an explicit claim in Akiba but was found to be a part of the broader right to fish. 50 Recognition that native title rights can have a commercial aspect has symbolic significance to Aboriginal and Torres Strait Islander peoples. Not only does it confirm the importance of the spiritual connection between Indigenous groups and land but also acknowledges the materiality of native title.51 It is clear that with recognition of commercial rights significantly improves Indigenous people’s governance.

Biregitte Fering (2013) Indigenous Peoples’ rights to lands, territories, and resources. Rome: International Land Coalition.

44 Butterly, above n 19.

45 Ibid.

46 [1999] HCA 53.

47 Ibid 351, 361.

48 Federation Press, above n 9, 4.

49 Mick Gooda, Indigenous Property Rights: Land, Business and Governance, Speech delivered at Garma Festival 2016, Northern Territory, available online at >https://www.humanrights.gov.au/news/speeches/ indigenous-property-rights-land-business-and-governance>.

50 Akiba (Federal Court), 1, 21 [11] 751.

51 Federation Press, above n 9, Sean Brennan, Chapter 4 The Significance of the Akiba Torres Strait Islander Claim Case, 42.

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An inadvertent benefit from pursuing commercial native title claims is the increase in unity and indigenous governance. The case of Akiba highlighted how various Indigenous groups could set aside difference and divisions and show strong political unity to pursue a single unified native title claim. 52 As a result of the acceptance of a commercial right as an incident of native title, policy makers should now include native title holders in policy calculations about commercial fishing.

IV Lessons From Canada There is a real potential for Indigenous economic empowerment through the process of judicial elaboration akin to what has happened in Canada.53 Canadian jurisprudence approached Aboriginal title as a priority against other interest in defined circumstances.54 This is something Australia can learn from. Despite both Canada and Australia having shared Commonwealth histories the development of Indigenous property rights has not been the same.55 It was ultimately a policy decision in 1995 that brought governmental recognition of Canadian Aboriginal peoples group and their right to self-govern.56As a result this entrenched Aboriginal title in Canada’s constitution and resulted in federal and provincial governments only being allowed to infringe upon Aboriginal title lands only in situations where it would be consistent with their fiduciary obligations towards Aboriginal peoples.57 This compounded by a liberal approach and a common law notion of a fiduciary duty that obliges the government to act in the best interest of Indigenous groups, makes Canadian Aboriginal title a better system of recognising commercial native title rights.58 A Development of Aboriginal Title Aboriginal title shares many similar characteristics to native title however Ibid, 45.

Federation Press, above n 9, 3.

54 Sean Brennan, Brenda Gunn and George Williams, ‘Sovereignty’ and its Relevance to Treaty-Making Between Indigenous Peoples and Australian Governments’ [2004] SydLawRw 15; (2004) 26(3) Sydney Law Review 307.

55 Margaret Stephenson, Resource development on Aboriginal lands in Canada and Australia. James Cook University Law Review, 2002/2003 9: 21-73.

56 Federation Press, above n 9, Lisa Strelein, Chapter 5, The Right to Resources and the Right to Trade, 46.

57 Durrette, above n 41.

58 Maria Morellato, Blake, Cassels & Graydon, The Crown’s Fiduciary Obligation Toward Aboriginal Peoples conference held by Pacific Business & Law Institute on September 23rd and 24th 1999. Vancouver, B.C. 52 53

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is best described as analogous to Crown provincial land as it is ‘collectively held, internally governed by a distinct legal system and a limiting of authority of other levels of government.’ 59 Contrary to Australia’s classification of native title as a bundle of rights, Canadian courts treat Aboriginal title as something distinct and separate from original harvesting and activity rights.60 Aboriginal title has a clear proprietary dimension to it and title holders retail all beneficial interest in their title lands and can use it for a wide variety of purposes notably the exploitation of their subsurface minerals.61 Canadian native title is defined as ‘a legal right derived from Indians’ historic occupation and possession of their tribal lands.’62 The case of Lax Kwalaams Indian Band v Canada (Attorney General)63 concerned a First Nation group that set out to prove an Aboriginal right to commercially harvest and sell specifies of fish within their traditional waters. Aboriginal title was not found as there was insufficient evidence to prove a connection ever existed and there was in fact a limit to the evolution of ‘pre-contact’ Aboriginal rights.64 Canada has two established claims processes.65 One that deals with specific claims against treaties group which seeks to fulfil lawfully treaty obligations and secondly a system for claims in parts of country where native title has not been dealt with a treaty or other means. 66 This means that consensus based negotiations and modern treaties and agreements are crucial in the determination of Aboriginal title in Canada.67 Currently 6.3% of Canada’s land rights are held under Aboriginal title.68 Indigenous people in these areas control access to minerals in most of this area and receive royalties or compensation for mining. Given not only their location but economic potential, Aboriginal title attracts immense commercial bargaining power. Aboriginal title pro Brian Slattery, ‘The Constitutional Dimensions of Aboriginal Title’ (2015) 71 Supreme Court Law Review 45.

60 See Tsilhqot’in [2014] 2 SCR 257; R v Sappier; R v Gray [2006] 2 SCR 686.

61 See Tsilhqot’in Nation v British Columbia [2014] 2 SCR 257, 292 [70], 306 [116] (Tsilhqot’in); see obiter dicta in Delgamuukw v British Columbia [1997] 3 SCR 1010, 1084 [118[-[124 (Delgamuukw).

62 See generally, R v Guerin [1985] 1 CNLR 120 (SCC) at [132].

63 2011 SCC 56.

64 2011 SCC 56, [46].

65 Indian and Northern Affairs Canada, Resolving Aboriginal Claims: A Practical Gide to Canadian Experiences, available online at < http://www.aadnc-aandc.gc.ca/DAM/DAM-INTER-HQ/STAGING/ texte-text/rul_1100100014175_eng.pdf> (‘Indian and Northern Affairs Canada’).

66 Ibid.

67 Indian and Northern Affairs Canada, ‘In All Fairness: A Native Claims Policy’, paper presented Ottawa 1981.

68 For more see; The Comprehensive claims policy and status of claims as at November 1997 is available on: Indian and Northern Affairs Canada homepage at: http://www.inac.gc.ca (March 1998).

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vides opportunities for the private sector to build relationships with local Indigenous groups but also with non-government and philanthropic entities that can open doors to greater opportunity for self-determination and indigenous empowerment. The doctrine of legitimate purpose is the corollary to the extinguishment principle in Australia.69 It aims to prioritise Indigenous non-commercial rights above all non-Indigenous interest but are subject to legitimate environmental and conservation measures. There is a fiduciary duty upon the Crown which arises from the Crowns power to regulate and extinguish rights. This in addition to modern treaty settlements in Canada provide the opportunity for the negotiation of rights for communities that may address any limitations imposed by the common law. 70 B Culturally Sensitive Test Justice Finn’s trial judgement crystallised a turn towards greater moderation and realism in the judicial treatment of native title.71 In Canada this method of judicial treatment is well established. Known as a culturally sensitive approach to Aboriginal Title, this method of interpreting arises from the decision of Tsilhqot’in Nation v British Columbia (‘Tsilhqot’in’) 72. The case marks first successful title claim in Canadian history and cements Canada’s commitment to a culturally sensitive test for proving Aboriginal Title.

Tshilqot’in concerned a declaration of ownership and governance rights over 1700km of land. The Canadian Supreme Court decision built upon and further clarified the parameters of a culturally sensitive approach to proving of Aboriginal title that must be now applied future cases. 73 It was found that occupation ‘must also reflect the way of life of the Aboriginal people, including those who were nomadic or seminomadic.’74 A culturally sensitive test also requires courts to take note of the claimant group’s laws, practices, size, technological ability and the character of 2

Australian Law Reform Commission, Connection to Country: Review of the Native Title Act 1993 (Cth), ‘9. Native Title: Comparisons with Common Law Jurisdictions (ALRC Report 126), available online at <https://www.alrc.gov.au/publications/alrc126> 70 Melanie Durette, A compartative approach to Indigenous legal rights to freshwater: Key lessons for Australia from the United States, Canada and New Zealand (2010) 27 EPLJ 296, 298.

71 Federation Press, above n 9, Sean Brennan, Chapter 4 The Significance of the Akiba Torres Strait Islander Claim Case, 45.

72 2 SCR 257. (‘Tsilhqot’in’) 73 William v British Columbia 2012 BCCA 285, 69 [221], 71 [230].16 [41]-[42[, 18 [50].

74 Tsilhqot’in [2014] 2 SCR 257, 280 [38].

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the land claimed.75 This means that evidentiary requirements are to accommodate the unique way of life of the specific claimant group. This is incredibly relevant given that Canada’s previous position was that Indigenous peoples sit too ‘low in the scale of social organization ‘for their land interests to be translatable into ‘rights of property’.76 Extrapolating this means that Indigenous territories for hunting, fishing, trapping and foraging are sufficient occupation to ground a claim for Aboriginal title.77 An increased emphasis on cultural sensitivity in Aboriginal title litigation holds the promise that such claims might be recognized in Canadian law in spite of their unique complexities.78 Meanwhile in Australia interpreting the extinguishment doctrine is a difficult task given that it is a relatively new body of law which mixes both common law and statutory elements.79 A culturally sensitive approach to native title determination would be a welcomed change in Australia. Finn J and a unanimous High Court on the issues legitimised native title claims and essentially updated it to reflect modernity and normalise the notion of commercial use as a separate part of native title. It is absurd to consider that only recently that for a right to trade and to exploit natural resources in a modern economy must have persisted throughout the time of sovereignty. Australia should be more open to seeing a right as something capable of evolving with time.

C Stronger Negotiation and Consulting Culture Modern treaty negations in Canada suggest an appreciable title towards negotiation.80 The courts in Canada play an active role in the interpretation of rights however legislation is still pervasive. This concept of negotiations appears throughout Australia in consent determinations and Indigenous Land Use Agreements (‘ILUA’).

81 Australia’s native title system lacks the substantial decision-making powers as opposed to Canada. The NTA’s ‘right to negotiate’82 provisions are limited and confer Australian Law Reform Commission, above n 69.

Re Southern Rhodesia [1919] AC 211, 233-234.

77 Tsilhqot’in[2014] 2 SCR 257, 283 [42].

78 Benjamin Ralston, Aboriginal title to submerged lands in Canada: Will Tsilhqot’in sink or swim?, Indigenous Law Bulletin Volume 8 Issue 27 (Nov/Dec 2016).

79 Akiba (Federal Court), 212.

80 Federation Press, above n 9, 2.

81 See NTA s 56. This section provides ‹that native title rights and interests held by the body corporate are not able to be assigned, seized or sold or made subject to any charge or interest as a result of any debt or liability of, or any act done by, the body corporate unless that debt was incurred in connection with dealings authorised by the Commonwealth NTA or Regulations.› 82 See NTA s 28.

75 76

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very little bargaining power. In Canada, there is an additional requirement for the Crown to seek Aboriginal Title holders’ consent before development is to take place as opposed to in Australia when the duty arises only in cases of a potential breach of a future acts regime. This consulting culture is deeply entrenched in Canadians legal system and is often critiqued for its red-tape and superficial consultations ultimately hindering development. 83 Aboriginal title relies on proof that an Indigenous group not only occupied its territory prior to the assertion of European sovereignty over it but the occupation was an intensity sufficient to ground title. 84 In Australia, the future acts regime regulates activities that may impact on native title rights and interests such as infrastructure development and land management. The NTA achieves this by making it illegal for a government or a private party to engage in an activity that might impair with compliance with the requirements of a future act regime.85 This is exacerbated by the non-extinguishment principle and means that in Australia the duty to consult is effectively delegated to private companies.86 Practically what this means is that the parties will attempt to negotiate terms for obtaining the native title parties’ consent to the proposal.87 Meanwhile the Canadian Supreme court has specifically held that the Crown cannot delegate its duty to consult.88 The fiduciary obligation owed by the Crown in Canada has unfortunately not made its way to Australia as a result of the NTA creating a framework which pushes native title into a more private law sphere.89 In the event that negotiations fail, parties will default to arbitration where it’s almost guarantee that the act will go ahead.90 Regardless of the good faith principle in negotiations (note that clarifications of the term were not passed)91 Indigenous groups in Australia are constantly negotiating a share of Robin Junger, Aboriginal Title and Mining In Canada— More Questions Than Answers paper was originally published by the Rocky Mountain Mineral Law Foundation in the Proceedings of the 61st Annual Rocky Mountain Mineral Law Institute (2015) available online at <http://www.mcmillan.ca/ Files/185836_AI61,%20Ch.%2017A%20with%20legend.pdf> 84 Tsilhqot’in [2014] 2 SCR 277.

85 See NTA s 28.

86 Tony Corbett and Ciarana O’Fairchellaigh, ‘’Unmaking Native Title: The National native Title Tribunal’s Application of the NTA’s Arbitration provisions’ (2006) 33(1) University of Western Australia Law Review 153.

87 Chris Humphry, Compensation for Native Title: The Theory and the Reality [1998] MurUEJL 2.

88 Kauth G, ‘Facing Off with First Nations’ (2009) Canadian Lawyer 46.

89 Look at any provisions.

90 Tony Corbett and Ciarana O’Fairchellaigh, ‘’Unmaking Native Title: The National native Title Tribunal’s Application of the NTA’s Arbitration provisions’ (2006) 33(1) University of Western Australia Law Review 153.

91 Native Title Amendment Bill 2012 (Cth).

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the development against a backdrop of compulsion. 92 V Privatising Native Title Native Title is not a perfect system. Bret Walker SC suggests that the ‘NTA’s structural bias towards mediation results in a property right being quantified by its erosion through compromise.’93 The claim process itself has been described as a constant ‘gridlock’94 and fails to adequately consider continuation of connection of Indigenous groups to the land.95 Whether Aboriginal and Torres Strait Islander native title land holders can benefit economically depends on whether full recognition of legal title to their traditional lands has been granted.96 The privatisation of native title could empower Indigenous Australians with the right to self-govern. This new field marks a departure from the traditional governmental or public law nature of native title groups.

Regardless if economic empowerment arises from one of the following alternatives or through traditional native title claims, these are all positive steps forward in meeting Australia’s obligation to the Declaration on the Right to Development.97 A Prescribed Body Corporates Once a native title determination has been found, the NTA allows for the establishment of Prescribed Body Corporate (‘PBC’) as a means for native title holders to surrender, or transfer or otherwise deal with native title rights and interest. 98 This would mean that even if land is not alienable in the common law sense,99 PBC provisions empower native title holders to deal with native title in ways that can unlock economic potential.100 PBCs could prove a sound basis for economic empowerment of native title holders and ensure they have the capacity to develop their lands in ways Federation Press, above n 9, Lisa Strelein, Chapter 5, The Right to Resources and the Right to Trade, 48.

93 Federation Press, above n 9, 4.

94 Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2006 (2007).

95 Yorta Yorta Aboriginal Community v Victoria (2002) HCA 58.

96 Collings, above n 37, For example, carbon credits, bio-banking, geo-sequestration, bio-mass power generation and wildfire.

97 Declaration on the Right to Development, Article 1. Indigenous peoples (like every other person, and all peoples) are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development.

98 See NTA s 56(4)(c) ‘The determination by the Federal Court of a prescribed body corporate to replace the trustee, and any other matter in relation to the replacement of the trustee; and’.

99 As sold as either mortgage or leases.

100 Keane, above n 1, p.16.

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that best meet their aspirations. It is however important to retain the sense of choice native title holders’ have to whether they exercise their native title rights. In the case of PBCs even though they afford a vehicle in which native title can be used to into a broader economy, the responsibility and opportunity must ultimately rest with the native title holders who are the beneficiaries of the PBCs whom holds the title. 101 Former Chief Justice Keane called for legislative amendment to clarify the mandate for PBCs to deal with land in ways that bring native title into the broader economy.102 Not only would this overcome the legal complexity of defining native title but clear the uncertainty currently hampering native title holders in their pursuit of economic empowerment.

B Payment for Environmental Services A Payment for Environmental Services (PES) model can offer indigenous groups economic empowerment and also ensures a sustainable future for Australia’s largest natural reserves. Government organisations essentially employ indigenous groups to co-manage a resource in return to access.103 A 2006 report found that this was Indigenous groups preferred method of engagement with the economic development process as they ‘consider their roles as custodians and managers of their land and seas’.104 Take for example the successful implement of wildlife harvesting and management in the Northern Territories. 105 The Garnaut report indicated that a significant portion of Indigenous land falls within the Australian National Reserves System (10%) and in order to mitigate the effects of climate change Indigenous groups must have a say in its management.106 When considering development beyond pure economic indicators,107 PES models allows Indigenous groups to not only achieve community empowerment through the recognition of customary rights, but also legitimises Indigenous groups knowledge and contribution to the conservation of an area Christos Mantziaris, Problems with Prescribed Bodies Corporate Mualgal People v Queensland [1999] Indigenous Law Bulletin 21.

102 Keane, above n 1, p.17.

103 Collings, above n 37, ‘For example, carbon credits, bio-banking, geo-sequestration, bio-mass power generation and wildfire management.’

104 Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2006, Human Rights and Equal Opportunity Commission, Sydney, 2006, p23.

105 Nanni Concu, ‘16. Environmental Conservation and Indigenous Development through Indigenous Protected Areas and Payments for Environmental Services: A review.’ Indigenous Participation in Australian Economies II (2012): 287.

106 Ross Garnaut, The Garnaut Climate Change Review Final Report (2008), Ch 15.

107 These being social, political and cultural benefits.

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for centuries.108 VI Conclusion Akiba has paved the way for judges to approach the characterisation of native title rights with a greater degree of generality. No longer should Australian courts read native title rights with a high degree of over-specification and the recognition of commercial native title rights could possibly expand beyond commercial fishing. That said Australia’s native title system has been described as ‘no conveyor belt, automatically transporting people from a place of political or economic marginalisation to somewhere better.’ 109 The courts reluctance to elaborate on this new right has unfortunately hindered its utility to Indigenous economic empowerment, but fortunately this is not the only vehicle for change. Alternatives such as PBC’s and PES systems already exist and arguably achieve the same, if not more, than the Canadian system of Aboriginal title. Comparatively Australia could learn a lot from Canada as to the way it negotiates and assign Indigenous land rights. Given the recent events at Uluru it is now more important than ever that Australia refocuses their efforts for recognition through treaties which will ultimately empower economic development, something that happened in Canada decades ago.

Jessica Weir, Native title and ecology. In Country, Native Title and Ecology; Weir, J., Ed.; Australian National University: Canberra, Australia, 2012; pp. 1–20.

109 Federation Press, above n 9, 1.

108

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Selection or Confirmation? - Considering Appointments to our Nation’s Highest Court

SELECTION OR CONFIRMATION? Considering Appointments to our Nation’s Highest Court Joseph Sabbagh* It is a question often posed in Australian political and social discourse – when (and to what extent) should we follow the lead of the United States of America? This paper aims to consider that question in a supreme judicial context and examine potential avenues for reform in Australia. Analysing the processes of appointment in the respective nations, evaluating key criticisms, and considering the difficult question of legislative confirmation in Australia, this paper concludes with brief ruminations on the role of appointment within the broader context of the Australian federal balance.

‘[W]hile an unbounded field for cabal and intrigue lies open, all idea of responsibility is lost’. 1 US Founding Father Alexander Hamilton suggested over two centuries ago that the power of judicial appointment could reside either in ‘a single man, or in a SELECT assembly of moderate number; or in a single man, with the concurrence of such an assembly’.2 Naturally, it follows that, as a fellow democratic federal ex-colony, Australia must afford serious consideration to the latter option, which embodies the confirmation process ultimately adopted by the US. This necessity is compounded by the considerable number of criticisms faced by the current appointments process of the High Court of Australia (‘HCA’). Ultimately however, it is unclear how a US-style process would ameliorate these issues, and may in fact exacerbate existing shortcomings in a manifestly unbeneficial way.

* Joseph is a first year Juris Doctor student and holds a Bachelor of Arts (Honours, First Class) from the University of Western Australia.

1 Alexander Hamilton, The Federalist Papers No. 77 - The Appointing Power Continued and Other Powers of the Executive Considered, 1788, http://avalon.law.yale.edu/18th_century/fed77.asp, (accessed 15th July).

2 Alexander Hamilton, The Federalist Papers: No 76 - The Appointing Power of the Executive, 1788, http:// avalon.law.yale.edu/18th_century/fed76.asp, (accessed 15th July).

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I Judicial appointment – High Court of Australia In Australia, HCA appointments are to be made ‘by the Governor-General in Council’, with the Governor-General appointing HCA justices under instructions from the incumbent executive government.3 ‘Consultation’ is required between the Commonwealth and State Attorneys-General prior to formal appointment.4 Criticisms While generally enjoying high institutional public approval5, the HCA appointment process has attracted significant criticism over the years, including that it is dominated by political concerns6, used for political patronage7, lacking in accountability8, characterised by inadequate consultation9, unable to engage a breadth of talent10, and conducive to a centralisation of Federal power.11 Perhaps most concerningly, a constitutional ‘point of weakness’ may manifest when the interests of the executive government ‘conflict with its duty to exercise the power of judicial appointment’12, leading to unmeritocratic appointments13 or attempts to ‘stack’ the court and influence judicial outcomes.14 Concerns also surround the varying depth and quality of the con Australian Constitution, s 72(i).

George Williams, ‘High Court Appointments: The Need for Reform’, Sydney Law Review, vol. 30, no. 1, 2008, p. 162, (accessed 15th July 2017); High Court of Australia Act 1979 (Cth), s 7.

5 This approval hit a high watermark in March 2013, where 73% of those surveyed had ‘a lot’ or ‘some’ trust in the High Court of Australia. See: Essential Vision, Trust In Institutions, 2015, http://www.essentialvision.com.au/trust-in-institutions-7, (accessed 15th July).

6 Greg Craven, Chapter Two: Reforming the High Court, 7th Conference of the Samuel Griffith Society, Adelaide, Samuel Griffith Society, 1996, https://www.samuelgriffith.org.au/papers/html/volume7/v7chap2. htm, (accessed 15th July 2017); P. McMurdo, Hot Topics, Supreme and Federal Courts Judges’ Conference, Darwin, 2014, pp. 4-5, (accessed 15th July 2017).

7 Ibid.

8 Ibid.

9 Ibid.; Pip Nicholson, ‘Appointing High Court Judges: Need for Reform?’, The Australian Quarterly, vol.

68, no. 3, 1996, p. 76, (accessed 15th July 2017); Ronald Sackville, ‘The Judicial Appointments Process in Australia: Towards Independence and Accountability’, Journal of Judicial Administration, vol. 16, no. 3, 2007, pp. 125-128, (accessed 15th July 2017).

10 Sackville, above n 9, 125.

11 Craven, above n 6; Amber Agustin, ‘Federalism and the High Court - Fixing the Appointment Process’, Institute of Public Affairs Review, vol. 58, no. 1, 2006, pp. 23-25, (accessed 15th July 2017).

12 Philip McMurdo, Supreme and Federal Courts Judge’s Conference, p. 5.

13 The appointments of Justices Evatt, Murphy, Barwick and Bowen come to mind. For further discussion see: Rob Davis, ‘Appointing judges - is it time for a change?’, Proctor, vol. 26, no. 5, 2006, p. 2, (accessed 15th July 2017).

14 Consider Tim Fischer’s calls for the appointment of ‘capital-C conservative’ High Court judges, with this expectation tacking itself to the next appointment (Justice Callinan) for a period of time. For more information see: David Bennett, ‘What ‘Capital-C’?’, University of Queensland Law Journal, vol. 27, no. 1, 2008, p. 23, (accessed 15th July 2017); S. Rice, How to: choose a judge, http://www.abc.net.au/news/2008-0423/31494, 2010, (accessed 15th July).

3 4

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sultation process and an overreliance on ‘existing networks in the legal establishment’ to bring candidates to the attention of the Attorney-General.15 Such issues are compounded by procedural secrecy and the lack of any real accountability for decisions.16 Critics also link the HCA’s ‘dismal’ record of ‘steady centralisation of power in favour of the Commonwealth’ with the disproportionate representation among justices of the larger eastern States.17 They allege that broader State representation is needed for the highest court of a federation.18 Unsurprisingly then, reformed HCA appointment consultation requirements were implemented in 1979 to ‘ensure that the Court continues to be truly national in character and fully equipped to discharge its constitutional functions as a federal Supreme Court’, although wider State representation has not improved as a result.19 II Judicial appointment - US Supreme Court When a Supreme Court (‘SC’) vacancy arises in the US, the President may fill the role with the ‘advice and consent’ of the Senate.20 Presidential nominees testify before the Senate Judiciary Committee and are either confirmed or rejected by ballot.21 Senate questioning usually deals with current and formerly controversial areas of law.22

Such an appointment process, based on nomination by one party and confirmation by another, is alleged to avoid the impracticalities of competing interests, streamline investigation, foster accountability, and prevent ‘a spirit of favouritism’ in appointment, ‘constrain[ing] the federal government in ways that would limit the Nicholson, above n 9, 76; Craven above n 6; Sackville, above n 9.

Craven, above n 6.

17 Ibid.

18 Ibid.

19 No HCA justice has ever hailed from South Australia or Tasmania, with 95% of HCA appointments originating from the three largest States - New South Wales, Victoria and Queensland - hence the somewhat derisive rebranding of the institution as the ‘High Court of Sydney and Melbourne’ (Agustin, Institute of Public Affairs Review, pp. 23-25); R Viner, Commonwealth Parliamentary Debates, House of Representatives, 25 October 1979, p. 2500.

20 Rule of Law Institute of Australia, Judicial appointments: US and Australia, http://www.ruleoflaw.org. au/judicial-appointments-us-and-australia/, 2016, (accessed 15th July).

21 Ibid.

22 Lori A. Ringhand, ‘In Defense of Ideology: A Principled Approached to the Supreme Court Confirmation Process’, The William and Mary Bill of Rights Journal, vol. 18, no. 1, 2009, p. 149, (accessed 15th July 2017).

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possibilities for governmental abuse’.23 The power of confirmation may also be argue to act as a democratically-controlled check on power that legitimises judicial appointments and validates existing jurisprudence in a public forum where electorally accountable actors debate the constitutional consensus in a transparent dialogue ‘between the Court, the Senate and the public’. 24 Criticisms However, this ‘democratic validation’25 is in reality an intensely partisan political performance whereby the power of the Senate and the media is brought wholly to bear upon a nominee as their ideology and personal history is dissected by partisans who jostle vigorously over the opportunity to shape the nation’s highest court in the image of a conservative or liberal weltanschauung.26 This desire for partisan advantage often comes to outweigh the ‘legitimate search for truth’, with the whole process sending the message that politically-motivated inquiries into judicial ideology are compatible with the function of a politically independent judiciary. This may create an ideological judicial cadre convinced that their appointment is ‘subject to their political and ideological views, not their ability to act as neutral arbiters’.27 By diffusing the power of appointment in such a way, the US Founding Fathers established a highly-politicised process far ‘more prone to obstructionism than other comparable systems’, sacrificing expediency for principle.28

Hamilton, above n 2; Russell L. Weaver, ‘”Advice and Consent” In Historical Perspective’, Duke Law Journal, vol. 64, no. 8, p. 1717, (accessed 15th July 2017).

24 This level of transparency is not however rooted in tradition. Indeed, for most of US history, judicial confirmation hearings in the Senate were heard under a ‘veil of secrecy’ (see Taylor McConkie, ‘The Senate’s New Battlefield: The Role of Ideology in Supreme Court Confirmation Hearings’, Georgetown Journal of Law & Public Policy, vol. 1, no. 1, 2002, p. 180, (accessed 15th July 2017)); Lori A. Ringhand and Paul M. Collins, ‘Functioning Just Fine: The Unappreciated Value of the Supreme Court Confirmation Process’, Drake Law Review, vol. 61, no. 4, 2013, p. 1025, (accessed 15th July 2017).

25 Ringhand and Collins, above n 24, 1025.

26 This process has been described as ‘partisan entrenchment’ – the process by which by which parties use SC appointments to entrench their own particular constitutional preferences. See: Jack M. Balkin and Sanford Levinson, ‘Understanding the Constitutional Revolution’, Virginia Law Review, vol. 87, no. 6, 2001, pp. 1066-1083, (accessed 15th July 2017).

27 Ironically enough, ‘the fear that the Senate would sacrifice judicial independence for political purposes is precisely why the Framers rejected giving the Senate the appointment power in the first place’ (McConkie, Georgetown Journal of Public Policy, pp. 188-190). See also: Horace Cooper, ‘Tilting at Windmills: The Troubling Consequences of the Modern Supreme Court Confirmation Process’, Southern University Law Review, vol. 33, no. 3, 2006, p. 451, (accessed 15th July 2017).</style>vol. 33, no. 3, 2006, (accessed 15th July 2017 28 Weaver, above n 22, 1717.

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III Legislative Confirmation in Australia Cognisant of these shortcomings, could such a US-style confirmation system be implemented in Australia? Undeniably, the unique nature of the Australian ‘Washminster’ system would complicate any direct transplant of US process.29 What role would be played by the Governor-General and convention? Would the Prime Minister, as member of both the executive and the legislature, nominate a candidate? Would this candidate be confirmed by the Upper or the Lower House? Or by both? Regardless, given that appointment power is constitutionally vested in the ‘Governor-General in Council’, such sweeping change would entail a (notoriously difficult) constitutional amendment via referendum, requiring widespread, uncritical public and bipartisan political support – a difficult barrier to overcome.30 Reality aside, one of the stronger arguments in favour of US-style Senate confirmation in Australia is to enhance State participation in the appointment process.

Unfortunately, this argument is based on a misunderstanding of the contemporary role of the Senate. Although originally intended to represent and protect the interests of the (smaller) States, the emergence of disciplined political parties shortly after Federation rendered the Senate a ‘party house where voting was determined by loyalty to party and not by loyalty to state’.31 Vesting the power to confirm or reject a HCA nominee in a partisan House would in no way remedy concerns regarding eastern State overrepresentation and its associated jurisprudential effect. Furthermore, publicly interrogating judicial nominees in a partisan Senate is, as the lobbying and theatrics surrounding US SC appointments suggests, an acrimonious and bitter process ushering in the natural consequences of unbridled politicking; delay, dissatisfaction, and, in an age of increasing political polarisation, an obstructionist system characterised by increasing backlog

Elaine Thompson, ‘The ‘Washminster’ mutation’, Politics, vol. 15, no. 2, 1980, pp. 32-33, (accessed 15th July 2017).

30 The oft-repeated mantra that only 8/44 referenda since Federation have passed comes to mind. For further discussion, see: Australian Human Rights Commission, Constitutional Reform: Historical Lessons for a Successful Referendum, 2016, https://www.humanrights.gov.au/publications/constitutional-reform-fact-sheet-historical-lessons-successful-referendum, (accessed 15th July 2017).

31 Campbell Sharman, ‘The Australian Senate as a State’s House’, Politics, vol. 12, no. 2, 1977, p. 64, (accessed 15th July 2017); Scott Brenton, ‘State-based Representation and National Policymaking: The Evolution of the Australian Senate and the Federation’, The Journal of Legislative Studies, vol. 21, no. 2, 2015, p. 270, (accessed 15th July 2017).

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and vacancies.32 Concerningly also, a public confirmation process may serve to discourage candidates who are not prepared to undergo public interrogation. Indeed, Australia’s current confidential selection process preserves institutional respect, encourages candid responses and avoids adverse reactions to a potential nomination.33 In addition, given that initial judicial nominations in the US system are canvassed in a secretive process equally as unlikely to tap neglected pools of judicial talent as Australia’s, our current process does not stand to benefit from the emulation of such practices.34 Finally, although it is true that a US-style process may (theoretically) diffuse power more effectively between the executive and the legislative, many of our framers nonetheless felt that it was not, in practice, effective. Indeed, future HCA Chief Justice Isaacs noted in 1898 that, ultimately, politics can never be entirely eliminated from the process, with executive subversion of the judiciary in the US deliberately ‘done in a way that could not be prevented, and we cannot prevent it here’.35 Emphasis was instead placed upon the role of apolitical convention and the principles of responsible government.36 In this sense, any attempt to implement an ineffective US-style process undercutting this ‘accepted tradition of government abstaining from seeking the views of candidates’, would be countered by a reticent public ‘unlikely…[to] accept any institutionalised alteration’ to this tradition. 37

Taylor McConkie, pp. 183-184; Horace Cooper, Southern University Law Review, pp. 443-445; Sheldon Goldman, Tracking Obstruction and Delay in U.S. Senate Confirmations of Judges to the Federal Courts, http://www.scholarsstrategynetwork.org/brief/tracking-obstruction-and-delay-us-senate-confirmations-judges-federal-courts, 2013, (accessed 15th July).

33 Simon Evans and John Williams, ‘Appointing Australian Judges: A New Model’, Sydney Law Review, vol. 30, no. 2, 2008, p. 304, (accessed 15th July 2017); McMurdo,above n 24, 8; Christopher N. Kendall, ‘Appointing Judges: Australian Judicial Reform Proposals in Light of Recent North American Experience’, Bond Law Review, vol. 9, no. 2, 1997, p. 190-191, (accessed 15th July 2017).

34 Rule of Law Institute of Australia, Judicial appointment.

35 1898 Australasian Federation Conference, 1898 Australasian Federation Conference - Third Session, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;adv=yes;db=CONSTITUTION;id=constitution%2Fconventions%2F1898-1133;orderBy=customrank;page=0;query=Dataset%3Aconventions;rec= 1;resCount=Default, Melbourne, 1898 (accessed 15th July 2017).

36 Ibid.

37 Kendall, above n 33, 187.

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IV Conclusion If not to the US, then to whom else can we turn?38 Indeed, there are very real issues in the HCA appointment process that deserve attention and redress. Popular election is frequently derided as an unsuitable alternative.39 A UK-style council of appointment is also problematic - unaccountable, potentially incompatible with federalism, and simply shifting emphasis from the appointment of justices to the appointment of council members.40 This author takes, as a starting point, that ‘[i]f a federal system is to work well, the appointment of judges to its highest constitutional court cannot be the exclusive province of one level of government’.41 Thus, expedient and acceptable reforms to begin with would include amending the HCA Act 1979 (Cth) to include consultation with the Attorneys-General of the mainland territories, as well as formalising the convention that the role of Chief Justice of the HCA is assumed by the most senior serving justice on the bench. Other authors have also canvassed a series of further reforms, including a three State confirmation process42, a formalised consultation process43, and enumeration of desired judicial criteria44, although these are outside the scope of this paper.

With all of the above discussion in mind, could a US style confirmation process be beneficial in Australia? The answer is an overwhelming no. The system would be impractical to implement, undercut the accepted tradition regarding political neutrality and confidentiality, and offer alleged benefits that are loftily theoretical and do little to ameliorate the aforementioned issues associated with the Australian process at best, deepening and entrench them at worst. Such reform would not be beneficial in Australia.

A question Australia seems to ask itself in many contexts.

See the objections of Kendall above n 33, 186, as well as Robert French, In Praise of Unelected Judges, in The John Curtin Institute of Public Policy Public Policy Forum, Perth, 2009, p. 6, (accessed 15th July 2017).

40 Sackville, above n 9; Hamilton, above n 1; Bruce. Debelle, Judicial Appointments: The Case for Reform, 21st Conference of the Samuel Griffith Society, Adelaide, Samuel Griffith Society, 2009, Vol. 21, pp. 79-89, http://samuelgriffith.org.au/docs/vol21/vol21chap11.pdf, (accessed 15th July 2017).

41 Gabrielle Moens, The Role of the States in High Court Appointments, 8th Conference of The Samuel Griffith Society, Canberra, Samuel Griffith Society, 1997, Vol. 8, https://www.samuelgriffith.org.au/papers/ html/volume8/v8contents.htm, (accessed 15th July 2017).

42 Ibid.

43 Debelle, above n 40, 84.

44 Nicholson, above n 9, 80; Debelle, above n 40, 80.

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Giorgia Papalia

The Effect of Engineers’ Approach on Federalism Giorgia Papalia* The literalist approach to constitutional interpretation that was adopted in the Engineers Case has significantly widened the Commonwealth Government’s power in relation to legislating on external affairs. The broadening of this power has often been criticised as undermining Australia’s federalist system and allowing the Commonwealth to extend into unexpected legislative terrain. This has led to calls for the approach in Engineers to be jettisoned. While the literalist approach has undoubtedly allowed the Commonwealth to legislate on a wider range of subject matters, and has reduced the power of the States to govern their own affairs, this does not warrant the rejection of a literalist approach.

Other factors, such as the significant limitations that continue to exist on Commonwealth power, and the importance of the Commonwealth Government being able to give effect to its international commitments, need to be considered when assessing whether the literalist approach is appropriate.

I Introduction The decision in Amalgamated Society of Engineers v Adelaide Steamship Co Ltd 1 has been described as driving a stake into the heart of federalism in Australia.2 The literalist approach adopted in Engineers has centralised legislative power in the Commonwealth at the expense of the states, blurring the division of power between the two levels of government and allowing the Commonwealth to extend into unexpected terrain.3 The starkest example of this is in relation to the external affairs power in section 51(xxix) of the Commonwealth Constitution (‘the Constitution’). The case that has received the most attention is that of Commonwealth v Tasmania,4 in which the Commonwealth successfully used the external affairs power to regulate Tasma* Giorgia is a second year Juris Doctor student and holds a Bachelor of Arts from the University of Western Australia.

1 (1920) 28 CLR 129 (‘Engineers’).

2 Shipra Chorida and Andrew Lynch, ‘Federalism in Australian constitutional interpretation: signs of reinvigoration?’ (2014) 33 University of Queensland Law Journal 83, 85.

3 James Allan and Nicholas Aroney, ‘An Uncommon Court: How the High Court of Australia has Undermined Australian Federalism’ (2008) 30 Sydney Law Review 245, 294.

4 (1983) 158 CLR 1 (‘Tasmanian Dam’).

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nia’s use of the natural environment. It has been suggested that the wide breadth of legislative power that the literalist interpretation has provided to the Commonwealth in cases such as Tasmanian Dam, and the effect it has had in significantly reducing the ability of States to govern their own affairs, are reasons why the Engineers approach should be jettisoned.5 However whilst the approach does seem to be inconsistent with the text and structure of the Constitution, other considerations should be accounted for in deciding whether Engineers is inappropriate. Two key factors are that significant limitations continue to exist on Commonwealth power, and, in the context of external affairs, the wide breadth of power may be essential for the Commonwealth to give effect to its international commitments. Thus when other considerations are taken into account, the effect that Engineers has had on the federal structure may not of itself warrant the approach being jettisoned.

II The Effect of the Engineers Approach on Federalism Federalism is one of the fundamental political principles of the Australian governmental structure.6 Based on the notion of self and shared rule,7 a key feature of federalism is the separation of power between central and state governments in such a way that each of them cannot encroach upon the power or autonomy of the other.8 Engineers decided three things that affected the federal balance. Firstly, it removed the ‘intergovernmental immunity doctrine’ that had professed that the Commonwealth and State governments were not bound by each other’s legislation.9 The court decided that the States were not free from interference by the Commonwealth on the basis of any immunity implied from the federal nature of the Constitution.10 Secondly, Engineers abandoned the ‘reserved state powers doctrine’ that had previously been expounded by the High Court.11 According to this doctrine, section 107 of the Constitution reserved by implication certain powers to the States, except to the extent that 5 Leslie Zines, ‘The Commonwealth’ in Gregory Craven (ed) Australian Federation: Towards the Second Century (Melbourne University Press, 1992) 84.

6 George Winterton, ‘The High Court and Federalism: A Centenary Evaluation’ in Peter Cane (ed) Centenary Essays for the High Court of Australia (LexisNexis Butterworths Australia, 2004) 197, 197.

7 Cheryl Saunders, ‘Constitutional Structure and Australian Federalism’ in Peter Cane (ed) Centenary Essays for the High Court of Australia (LexisNexis Butterworths Australia, 2004) 174, 174.

8 Augusto Zimmermann and Lorraine Finlay, ‘Reforming federalism: a proposal for strengthening the Australian Federation’ (2011) 37 Monash University Law Review 190, 191; David Mercer, ‘Australia’s constitution, federalism and the ‘Tasmanian dam case’’ (1985) 4 Political Quarterly 91, 92.

9 Winterton, above n 6, 202.

10 Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129, 155.

11 Ibid154.

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they had been given to the Commonwealth.12 The High Court in Engineers stated it was a “fundamental and fatal error” to read section 107 in this way,13 as no areas of law are assumed to be reserved to the States and their powers are merely residual.14 Lastly Engineers established a new method of constitutional interpretation known as literalism.15 Literalism endorses the view that the words of the Constitution are to be interpreted according to their natural and ordinary meaning, 16 without reference to the rest of the document.17 The words must also be given the widest literal meaning that they can bear.18 The majority decided that the Constitution was to be understood as an imperial statute,19 rather than as a document deriving its legitimacy and underlying logic from the federalising agreement between the States.20 It was decided that this approach would reveal the intention of the legislature.21 Thus the approach required that reference not be made to history, to implications from the concept of federal balance or even the other terms of the Constitution itself.22 Through the use of these principles, the court endorsed an expansive interpretation of Commonwealth legislative powers as expressed in sections 51, 52 and 122 of the Constitution, ignoring any impact such interpretation may have on Australia’s federal architecture.23 III The Constitutional Text One argument for discarding the approach in Engineers is that the literalist method of interpretation sits uncomfortably with a number of aspects of the text and structure of the Constitution itself.24 It is widely recognised that the Constitu H.P Lee and George Winterton, Australian Constitutional Landmarks (Cambridge University Press, 2004) 41.

13 Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129, 154.

14 Ibid.

15 Michelle Evans, ‘Engineers: The Case that Changed Australian Constitutional History’ (2012) 24 Journal of Constitutional History 65, 68.

16 Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129, 149.

17 Ibid.

18 Ibid 153; Commonwealth v Tasmania (1983) 158 CLR 1, 127-128; R v Public Vehicle Licensing Appeal Tribunal (1964) 113 CLR 207, 225.

19 Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129, 152.

20 Allan and Aroney, above n 3, 272.

21 Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129, 149.

22 Geoffrey Walker, ‘The Seven Pillars of Centralism: engineers’ case and federalism’ (2002) 76 Australian Law Journal 678, 688.

23 Evans, above n 15, 67; Winterton, above n 6, 204.

24 Zines, above n 5, 88.

12

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tion espouses a federal governmental structure,25 and that this structure mandates a balance between the central and state governments.26 The notion of dual sovereignty appears firstly in the preamble, in the agreement to ‘unite in one indissoluble Federal commonwealth.’27 From there, the federal concept appears at least twenty-eight times throughout the document.28 Chapter V is dedicated to the states, portraying them as an integral part of the Constitution. The division of powers is entrenched through a number of express provisions such as the requirement of State representation in the process of amending the Constitution,29 the granting of a limited list of legislative powers to the Commonwealth,30 the House of Representatives being elected on a State

by State basis,31 and the requirement that the States be equally represented in the Senate.32 The preservation of the State constitutions, parliaments and laws, subject to the ultimate authority of the Constitution,33 and the sections imposing duties on one level of government to another,34 are constitutional recognitions of the sovereignty remaining with the states.35 Therefore it seems that the purpose of the structure and text of the Constitution was to act as a buttress against the consolidation of Australia into a unitary state.36 Despite this, the Engineers methodology prescribes that each power in the series of Commonwealth powers is to be read independent of all others.37 This approach is inconsistent with the well-established general principle of interpretation that a passage in a document is to be read as part of a whole, rather than devoid of context.38 The fact that the concurrent heads of power were conferred in a single section of the Constitution suggests that the powers should in fact be read together.39 Additionally, R v Kirby; ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254, 275; Chorida and Lynch, above n 2, 84.

26 Evans, above n 15, 65.

27 Australian Constitution covering clause 3.

28 Walker, above n 22, 11.

29 Australian Constitution s 128.

30 Ibid s 51.

31 Ibid ss24 & 29.

32 Ibid s 7.

33 Ibid ss106 & 108.

34 Ibid ss119 & 120.

35 Chorida and Lynch, above n 2, 104.

36 Ibid, 93.

37 Russell v Russell (1976) 134 CLR 495, 539.

38 Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129, 162; Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330, 350; 39 Allan and Aroney, above n 3, 271.

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Engineers took an expansive interpretation of the specific, limited legislative powers conferred upon the Commonwealth, which is contrary to the ideals espoused by the rest of the document.40 An objective reading of the Commonwealth legislative powers demonstrates that they are expressed in cautious words, inconsistent with any intention to create an all-powerful national authority.41 Many of the powers appear to have been carefully formulated with a narrow expression, rather than providing a broad and unstinting grant.42 As Allan and Aroney contend, where a document that has clearly been aimed at setting up a federal system is read as conferring near un-trammelled legislative power for one side and not the other, then that reading ceases to be a plausible interpretation of that document.43 Therefore on this ground, many have criticized the Engineers approach and called for it to be disregarded in the interests of maintaining the federal balance.

IV The Broad Commonwealth Legislative Power One argument proposed for jettisoning the approach in Engineers is that it significantly expands the legislative reach of the Commonwealth.44 The view that the enumerated Commonwealth legislative powers should be construed as plenary and ample,45 has enabled the Commonwealth to advance its jurisdiction in an unpredictable and unprincipled way.46 An example of this is the High Court’s interpretation of the external affairs powers in section 51(xxix) in relation to treaty implementation. In Tasmanian Dam, it was confirmed that section 51(xxix) allows the Commonwealth to legislate on matters that are the subject of an international treaty so as to affect domestic issues.47 This principle was first adopted in R v Burgess.48 In that case, the external affairs power was sufficient to authorise a law giving effect to the Convention Alan Fenna, ‘The Malaise of Federalism: Comparative Reflections on Commonwealth–State Relations’ (2007) 66 Australian Journal of Public Administration 298, 298.

41 Walker, above n 22, 5.

42 Gregory Craven, ‘The States – Decline, Fall or What?’ in Gregory Craven (ed) Australian Federation: Towards the Second Century (Melbourne University Press, 1992) 62.

43 Allan and Aroney, above n 3, 294.

44 Chorida and Lynch, above n 2, 83.

45 Hodge v the Queen (1883) 9 App Cas 117, 132; Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129, 153.

46 Allan and Aroney, above n 3, 294.

47 Commonwealth v Tasmania (1983) 158 CLR 1, 122; Chorida and Lynch, above n 2, 101; Bradley Selway and John Williams, ‘The High Court and Australian Federalism’ (2005) 35 The Journal of Federalism 467, 481.

48 (1936) 55 CLR 608.

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for the Regulation of Aerial Navigation, allowing the Commonwealth to legislate in an area that did not come within any head of power in section 51.49 It was decided that entry into an international agreement by the executive pertains to external affairs and this makes section 51(xxix) available to give effect legislatively to the terms of the agreement within Australia.50 The most controversial consequence of this decision has been that the Commonwealth has the power under section 51(xxix) to legislate no matter the subject matter of any treaty,51 providing a very wide legislative ambit. The Commonwealth has successfully legislated by reliance on section 51(xxix) in areas such as antidiscrimination,52 industrial relations,53 and in Tasmanian Dam, environmental protection.54 In Tasmanian Dam, the broad interpretation of section 51(xxix) allowed the Commonwealth to prevent the Tasmanian government from damming the Franklin River for the purpose of generating hydroelectric power.55 The Commonwealth was able to achieve this by implementing Commonwealth legislation denying the Tasmanian Hydro-Electric Commission the legal right to construct the dam without a Commonwealth Minister’s consent,56 thus overriding Tasmania’s legislation on this particular issue pursuant to section 109 of the Constitution.57 The Commonwealth was justified in doing this because the site was World Heritage Listed and Australia was a signatory to the Convention Concerning the Protection of the World Cultural and Natural Heritage.58 Thus to fulfil their obligation to the Convention the court decided that the Commonwealth was permitted to preserve the Tasmanian wilderness against development.59 The significant expansion of Commonwealth power provided by this case has been widely regarded as a failure by the High Court to maintain a balance between the Lee and Winterton, above n 12, 268.

R v Burgess; ex parte Henry (1936) 55 CLR 608, 645; G.E Fisher, ‘External affairs and federalism in the Tasmanian Dam case’ (1985) 1 Queensland Institute of Technology Law Journal 157, 157.

51 Koowarta v Bjelke-Peterson (1982) 153 CLR 168, 234.

52 Ibid.

53 Re Dingjan; Ex parte Wagner (1995) 183 CLR 323.

54 Commonwealth v Tasmania (1983) 158 CLR 1, 302.

55 Ibid 111.

56 Natural Parks & Wildlife Conservation Act (1975) (Cth) and World Heritage Properties Conservation Act (1983) (Cth).

57 Mercer, above n 8, 96.

58 Commonwealth v Tasmania (1983) 158 CLR 1, 299.

59 Mercer, above n 8, 105.

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Commonwealth and States.60 The federal executive has entered into over one thousand treaties on a wide range of matters.61 Many of these are related to topics that are not otherwise covered by the enumerated powers in the Constitution.62 Thus the current interpretation of the external affairs power means that there is a wide range of subject matters that could be used to underpin federal legislation,63 and potentially no field of activity that the Commonwealth cannot legislate upon without having to rely on the cooperation by States.64 As the minority decisions in Tasmanian Dam and Koowarta v Bjelke-Peterson65 suggested, the assignment of carefully limited legislative power to the Commonwealth parliament would be rendered otiose if section 51(xxix) were construed as allowing a universal power of legislative authority.66 Therefore because of the broad power the Engineers approach provides to the Commonwealth, many argue it should be rejected in favour of an approach that is conducive with maintaining a federal balance. 67 V Limitations on the Broad Power However one response to this argument is that despite the theoretical ability of the Commonwealth to have an extensive legislative power, the broad interpretation doesn’t necessarily mean that the Commonwealth will be able to enact legislation on any subject.68 The power remains subject to a number of institutional and political limitations that prevent the Commonwealth from exercising the legislative powers to the fullest extent.69 For example, the power is subject to overriding express and implied constitutional limitations, such as the inability of the Commonwealth to legislate in a way that places special burdens or disabilities on State governments.70 Additionally it is necessary for the Commonwealth to show that there is a sufficient connection

Allan and Aroney, above n 3, 247; R. D Lumb, ‘The Franklin Dam Decision and The External Affairs Power: A Comment’ (1984) 13 The University of Queensland Law Journal 138, 138.

61 Zimmermann and Finlay, above n 8, 208.

62 Ibid.

63 Ibid.

64 Lee and Winterton, above n 12, 270.

65 (1982) 153 CLR 16.

66 Fisher, above n 50, 158.

67 Lumb, above n 60, 140.

68 Allan and Aroney, above n 3, 258.

69 Ibid.

70 Melbourne Corporation v. Commonwealth, (1947) 75 CLR 31; R v Burgess; ex parte Henry (1936) 55 CLR 608.

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between the legislation and a particular head of power,71 and the statutes have to be passed by both houses of parliament, with the Senate being controlled by the States.72 In relation to the external affairs powers, there are a number of other limitations that prevent section 51(xxix) from conferring a comprehensive and unlimited power.73 For the power to exist there must be a treaty and entry must be bona fide.74 The exercise of federal power must be confined to the strict implementation of the treaty obligations.75 This means that ratification of a treaty does not confer an unlimited power on the Commonwealth with respect to the general subject matter of the treaty.76 Furthermore there must be a reasonable proportionality between the purpose and object of the agreement, and the legislative measures for achieving it.77 This constrains the growth of Commonwealth legislative power by preventing the Commonwealth from dealing with the subject of the treaty as a new head of power.78 The invalidity, on this ground, of a number of statutory provisions in Tasmanian Dam and other cases,79 indicates that this is a real limitation on the use of the power.80 Therefore although this limitation does not restrict the range of subject matters within the power of treaty implementation in section 51(xxix), it clearly affects the extent to which these subject matters may be dealt with by the Commonwealth.81 There are also political considerations that constrain the use of section 51(xxix). Fisher asserts that it is State power and criticism, rather than constitutional impediment, which has been responsible for the reluctance of the Commonwealth to act unilaterally under section 51(xxix) since Tasmanian Dam.82 He notes that even though it was employed in Tasmanian Dam despite State opposition, the significant backlash the case received has discouraged governments from using this power as a Allan and Aroney, above n 3, 258.

Ibid.

73 Fisher, above n 50, 170.

74 R v Burgess; ex parte Henry (1936) 55 CLR 608, 642.

75 Anthony Mason, ‘Reflections on legal issues in the Tasmanian Dams Case’ (2015) 24 Griffith Law Review 16, 18.

76 Ibid.

77 Commonwealth v Tasmania (1983) 158 CLR 1, 260.

78 Fisher, above n 50, 172.

79 R v Burgess; ex parte Henry (1936) 55 CLR 608. ; Airlines of New South Wales v New South Wales [No. 2] (1965) 113 CLR 54. Victoria v Commonwealth (1971) 122 CLR 353.

80 Zines, above n 5, 94.

81 Fisher, above n 50, 172.

82 Ibid.

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routine device to acquire a universal legislative jurisdiction.83 Zines concludes that this means that much bargaining, sharing of tasks and cooperative arrangements between the two levels of government persists.84 Therefore considering these significant limitations, it may be unwarranted to view the power that the Commonwealth is granted under section 51(xxix) as being totally unfettered. Although it may disturb the federal balance, it may not be appropriate to reject the literalist approach on the grounds that the power granted to the Commonwealth is unlimited.

VI Reduced the Power of the States A further argument suggested for rejecting Engineers on the basis of federalism is that increasing Commonwealth legislative power results in a corresponding diminution in the power of States to regulate their own internal affairs.85 For example in Tasmanian Dam, the Tasmanian government was denied the ability to construct a dam which was considered necessary to generate electricity at a low cost for the purpose of achieving economic growth and employment within the State.86 The decision received substantial criticism on the basis that the Commonwealth was becoming dominant in the daily lives of citizens at the expense of the powers, functions and status of the States.87 This undermines the federal system because it potentially prevents the States from possessing any ability to make autonomous legislative decisions in their States.88 Sections 109 and 51(xxix) of the Constitution offer the potential to ‘annihilate State legislative power in virtually every respect,’89 as the Commonwealth would have the potential to enter and take over the field of state policy in any area.90 For example a good deal, if not all, of the criminal law of the States could be affected by the passage of legislation implementing such broad arrangements as the International Covenant on Civil and Political Rights.91

Ibid.

Zines, above n 5, 99.

85 Craven, above n 42, 58; Selway and Williams, above n 47, 483.

86 Michael Black, ‘The Tasmanian Dam Case: an advocate’s memoir’ (2015) 24 Griffith Law Review 22, 22.

87 Ibid 26.

88 Lee and Winterton, above n 12, 275.

89 Harry Gibbs, ‘The Decline of Federalism?’(1994) 18 University of Queensland Law Journal 1, 5.

90 Allan and Aroney, above n 3, 260.

91 Craven, above n 42, 55.

83 84

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Central to a federal system of government is the maintenance of the powers and autonomy of States to allow decisions to be made, and problems solved, locally where possible.92 Tasmanian Dam denied this by allowing the Commonwealth to interfere in the affairs of a State and eroding the fundamental right of the State communities to govern themselves.93 It would be inappropriate to interpret the concept of ‘international concern’ in a manner that reduces the State’s residuary power to zero.94 Thus it has been contended that the literal approach is not suitable, as if section 51(xxix) is interpreted that broadly, the States power would be null in comparison to the ability of the Commonwealth to legislate and overrule them in a particular area.95 If the States were rendered powerless the federal system would be seriously undermined.96 VII Power Necessary for the Commonwealth However the literalist approach in Engineers, and its application to external affairs in Tasmanian Dam, may be justified by the changing political circumstances.97 As noted by Windeyer J, the decision in Engineers recognised that, “Australians were now one people and Australia one country,” 98 requiring national laws to meet national means. As a matter of legal and constitutional power, if Australia is to be a fully sovereign member of the international community and fulfil its international responsibilities, there is no practical alternative to the present interpretation of section 51(xxix).99 The need for Australia to be represented as one united nation on the world stage means that the Commonwealth should be given a broad power in relation to section 51(xxix).100 Furthermore the expansion in the range of matters dealt with by international treaties is the consequence of expanded international activity, and should not necessarily constitute a reason for denying the Commonwealth legislative power.101 The fact that the Commonwealth can enter into fields that have been formerly occupied by the Evans, above n 15, 65.

Black, above n 86, 38.

94 Winterton, above n 6, 209.

95 Evans, above n 15, 77.

96 Winterton, above n 6, 209; Polyukhovich v Commowewalth (1991) 172 CLR 501 (Brennan J).

97 Walker, above n 22, 19; Selway and Williams, above n 47, 481.

98 Victoria v Commonwealth (1971) 122 CLR 353, 396.

99 Peter Heerey, ‘The Commonwealth’s Use of the External Affairs Power’ (1995) 14 University of Tasmania Law Review 189, 196.

100 Zines, above n 5, 94; Fisher, above n 52, 174.

101 Mason, above n 75, 20.

92 93

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States was always likely to occur due to increasing globalisation, even if the drafters of the Constitution did not contemplate it.102 As Brennan J submitted in Koowarta, where a particular aspect of the internal legal order of a nation is made the subject of a treaty obligation, “there is a powerful indication that the subject does affect the parties to the treaty and their relations with one another.”103 Whether that is in relation to social welfare and human rights, as in Koowarta, or the environment as in Tasmanian Dam, the need for Australia to consequently act in conformity with its international obligations cannot be denied.104 Therefore a broad interpretation of section 51(xxix) is necessary to enable the Commonwealth to appropriately and adequately discharge Australia’s responsibilities in international affairs.105 The impact that it has on the federal balance may be a necessary consequence of this. Furthermore it cannot be assumed that this centralisation is necessarily detrimental or that its ill effects will outweigh its benefits, just that it impacts the federal structure.106 VIII Conclusion The High Court’s decision in Engineers has tipped the balance of constitutional power decisively, and apparently permanently, in the favour of the Commonwealth. The literalist approach has prevailed despite it being at odds with the federal structure expressed in the Constitution itself. The interpretation of the external affairs power under this approach has significantly broadened the scope of Commonwealth power at the expense of the States. However these effects do not necessarily warrant the approach in Engineers being jettisoned. Limitations continue to constrain the use of the external affairs power, preventing it from conferring a universal power of legislation. Additionally, in the context of this head of power, the reach of the Commonwealth may be appropriate since the national government must respond to matters of international concern.

Ibid.

Koowarta v Bjelke-Peterson (1982) 153 CLR 168, 258.

104 Richard Marlin, ‘The External Affairs Power and Environmental Protection in Australia’ (1996) 24 Federal Law Review 71, 92.

105 Koowarta v Bjelke-Peterson (1982) 153 CLR 168, 255; Commonwealth v Tasmania (1983) 158 CLR 1, 135.

106 Fenna, above n 40, 299.

102 103

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Fair to Whom? Examining the Notion of Procedural Fairness within Administrative Law

FAIR TO WHOM? Examining the Notion of Procedural Fairness within Administrative Law Emma Boogaerdt* Former-Chief Justice French was right to argue that procedural fairness is “deeply rooted in our law”,1 but that does not necessarily make it “indispensable to justice.” If our legal system instead focused on actual or substantive justice, then procedural fairness would not be considered as central to our legal system as French argues it is. Procedural fairness is often used as a tool of those in positions of power; it does not necessarily provide individuals with any real justice, and is subject to exclusions. The focus on procedural fairness has been to the detriment of actual fairness and used as a mechanism to justify the delivery of substantively unfair outcomes on the basis that the process was conducted in line with procedural fairness. In the alternative, if the emphasis of the legal system was on achieving fairness in outcome, rather than merely process, there would be no need for procedural fairness to be considered ‘indispensable to justice.’ In order to make this argument, this essay will examine the ways the concept of procedural fairness has failed to deliver justice within the realm of administrative law, compare it to a system which focused on achieving substantive fairness, and critique the arguments put forward by French CJ and other proponents of procedural fairness.

The first question to ask is what ‘justice’ actually is. At the University of Western Sydney Biennial Dinner then-Chief Justice French quoted Roscoe Pound and defined justice as “… the standards of conduct in the relations of man with man and of man with society which will advance civilisation and will make for the best and * Emma is a second year Juris Doctor student and holds a Bachelor of Arts from the University of Western Australia.

Robert French, ‘Procedural Fairness: Indispensable to Justice’ (Speech delivered at the Sir Anthony Mason Lecture, Melbourne, 7 October 2010).

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noblest society.”2 In terms of administrative law specifically, justice is the philosophy that in administrative decision-making, the rights and interests of individuals should be properly safeguarded.3 Procedural fairness means acting fairly in administrative decision making, and relates to the fairness of the procedure by which a decision is made, and not the fairness in a substantive sense of that decision.4 While procedural fairness has previously been described as a different way of expressing the same concept as natural justice it actually covers a wider range of decision making, but to a lower standard, as it only focuses on the process for decision making. Procedural fairness has two questions: the threshold question of whether the rules of natural justice apply, and the content question of the hearing rule and bias rule. Absence of procedural fairness or natural justice is grounds for judicial review.5 Under the status quo, procedural fairness is about preventative and procedural protection. The threshold question dictates whether a matter can be considered under the rules of natural justice and the content question examines the right to be heard by a decision-maker free from bias. These elements are focused on the fairness of the decision making process. If the Court were to add an element of actual unfairness to these other two questions it would create an additional burden for citizens to be able to bring matters in administrative law. When the Court has tried to focus on both procedural unfairness and actual unfairness, as per Gaegler and Gordon JJ’s judgment in WZARH, it has been difficult to distinguish between the two circumstances in practice.

Therefore, if justice is focused on procedural fairness is mutually exclusive, or at the expense of, a focus on actual unfairness.

There are a number of broad issues that have derived from the legal system’s emphasis on procedural fairness instead of actual fairness. The first is that natural justice requirements do not automatically apply in matters where administrative bodies Robert French, ‘Justice as Fairness – A Contested Ideal’ (Speech delivered at the University of Western Sydney Biennial Dinner, Sydney, 7 May 2010).

3 Robin Creyke and John McMillan, ‘Administrative Justice—The Concept Emerges’ in Robin Creyke and John McMillan (eds) Administrative Justice— the Core and the Fringe (Australian Institute of Administrative Law Inc, Canberra, 2000) 4.

4 Mark Aronson and Matthew Groves, Judicial Review of Administrative Action (Thomson Reuters Australia, 2013) 399.

5 Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 5(1)(a)(b), 6(1)(a)(b).

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determine issues that affect people’s rights, and those requirements may be replaced with “watered-down benchmarks.”6 Furthermore, often the procedures themselves can be a barrier, either deliberately or coincidentally, for the people who most need to access them. Many post-modern legal theorists would argue that the legal framework we exist in has been designed for the interests of those who hold power, namely white, middle-class, heterosexual, able-bodied men.7 One of the most significant ways in which the law can be oppressive is through the way it constructs ‘normalcy’ through the establishment of legal standards, like merit or standing. The assumption that those categories are ‘neutral’ reinforces the perceived inferiority of those who don’t fit into that characterisation, namely anyone that isn’t the benchmark male.8 Therefore, the procedures which exist within administrative law are often exclusionary to the most vulnerable in society.

Migrant and refugee law have been the subject of a number of key administrative law decisions relating to procedural fairness since they gained the right to appeal negative status determinations to an independent administrative tribunal almost 15 years ago.9 However, this right hasn’t changed the Australian government’s micromanaging approach to refugees, and Immigration Ministers have been vocal in criticising courts and tribunals when their rulings conflict with their opinion on the law.10 Emphasising the procedural fairness only serves to reinforce the existing legal framework, which in turn reinforces those already in positions of power. Courts have taken a formulaic and rigid approach to adhering to the rules of procedural fairness.11 Conversely, if the emphasis was on actual fairness, instead of procedural fairness, courts would be better able to focus on the justice of the individual case as they are looking to uphold justice based on outcomes, rather than whether or not established procedures have been followed.

Marina Nehme, ‘Enforceable Undertakings: Are They Procedurally Fair’ (2010) 32 Sydney Law Review 474.

7 Melinda Jones, ‘Administrative Justice: Some Preliminary Thoughts on a (Post)Modern Theoretical Perspective ’ in Robin Creyke and John McMillan (eds) Administrative Justice— the Core and the Fringe (Australian Institute of Administrative Law Inc, Canberra, 2000) 44.

8 Ibid; R Graycar, “Equality Begins at Home” in R Graycar (ed), Dissenting Opinions: Feminist Explorations in Law and Society (Allen & Unwin, 1990).

9 Migration Reform Act 1992 (Cth), pt 4A. 10 Mary Cook, ‘Judging Refugees: The Clash of Power and Institutions in the Development of Australian Refugee Law’ (2004) 26(1) Sydney Law Review 60.

11 Kristina Stern, ‘Procedural fairness - its scope and practical application’ (Paper presented at AGS Government Law Group Seminar, Sydney, October 2017) 2.

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Those who claim procedural fairness is indispensable to justice would argue that an outcomes-based approach gives room for more subjective decision-making.

However, as has been enumerated above, this flexibility can be a benefit rather than a hindrance, as it allows judges to account for differing experiences when considering whether a decision is ‘fair’ or not. Furthermore, under a system of procedural fairness judges already have to exercise their subjective judgment. The decisions as to what qualifies as a ‘right’ or ‘interest’ from the threshold test in Kioa v West12 is a perfect example. As a country without a Bill of Rights and very limited Constitutional rights protection, the High Court was left to make a subjective judgment as to what fits within this category, evidenced by the difference between Mason J and Brennan J’s decisions.13 Courts already have to ‘future gaze’ about what might have happened in an alternative scenario (e.g. determining tortious causation) or make judgments about whether an outcome is actually fair or not (e.g. sentencing appeals) so there can be no reason why they would be unable to do the same in relation to administrative law.

In addition to the general way the concept of procedural fairness serves to undermine justice for those not in positions of power, there are also a number of specific instances where it fails to deliver justice: The first is to say that if the court upholds an appeal on the basis of procedural fairness that doesn’t necessarily mean the outcome is any different. It is likely that in that circumstance the court would issue a writ of certiorari to set the decision aside and a writ of mandamus to require the decision to be remade. This does not even guarantee any kind of real fairness of the outcome. For example, in the case of Minister for Immigration and Border Protection v. WZARH14 the decision was set aside because the High Court found that there would have been a legitimate expectation that the process would be completed by the first reviewer, or that the second reviewer would conduct the second interview. While there has been a breach of procedural fairness here, the outcome may have been completely fair. The eventual fate of the respondent isn’t publicly known, but should the remade decision have come to the same conclusion, and in compliance with procedural fairness, there is no real difference to him. The only actual difference to the respondent would be the added time spent going through the Kioa v West [1985] HCA 81.

Ibid.

14 Minister for Immigration and Border Protection v WZARH [2015] HCA 40.

12 13

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Fair to Whom? Examining the Notion of Procedural Fairness within Administrative Law

legal system and any costs, be they financial, emotional or otherwise, that he had to bear as a result. The reality is that a breach of procedure, whether by a failure of procedural fairness or an administrative fault, cannot give a remedy in the courts, unless the failure has resulted in the loss of something of substance.15 Many proponents of the indispensability of natural justice posit the dignitaries theory,16 that process is inherently valuable in terms of respect to dignity of individuals. Whether or not adherence to this process assists in reaching fair outcomes or social goals is of secondary importance.17 These arguments often fail to explain why the absence of a hearing constitutes a moral harm or injustice that is distinct from the outcome of the substantive decision.18 Procedures can only be judged as fair or unfair in reference to an independent value.19 Sociological research has shown that people usually base their feelings about a decision on the outcome, with their feelings about the process stemming from that.20 That also responds to the ‘public confidence’ argument21 mounted by procedural fairness proponents. Irrespective of whether the process is considered ‘fair’ if the outcomes are not perceived by the public to be fair, then they will not have confidence in the courts. The processes with the judicial system and the written decisions provided by judges are often inaccessible to the average citizen,22 so the public confidence is more likely to be determined on whether they perceive the outcome to be ‘fair’ than whether legal principles or procedures were correctly followed.

Even if the argument that procedural justice affords some kind of dignity which is valuable in and of itself was proven, it falls far from the reality of how decision making operates at the moment. Former Chief Justice French argued that one of the rationales for procedural justice is a participatory rationale, as it is an “opportunity Malloch v Aberdeen Corporation [1971] 1 WLR 1578.

French, above n 1.

17 Margaret Allars, ‘Due Process and Fair Procedures: A Study of Administrative Procedures by D J Galligan and Administrative Law: Cases, Text, and Materials by J M Evans, H N Janisch, David J Mullan and R C B Risk’ (1997) 19 (3) Sydney Law Review 411.

18 Ronald Dworkin, A Matter of Principle (Oxford University Press, Oxford, 1986) 101-103.

19 D J Galligan, Due Process and Fair Procedures: A Study of Administrative Procedures (Clarendon Press, New York, 1996) 91.

20 Francesca Gio, ‘What We Miss When We Judge a Decision by the Outcome’ (2016) Harvard Business Review <https://hbr.org/2016/09/what-we-miss-when-we-judge-a-decision-by-the-outcome>.

21 French, above n 1.

22 Susan Kenny, ‘Maintaining public confidence in the judiciary: a precarious equilibrium’ (1999) Federal Judicial Scholarship <http://www.austlii.edu.au/au/journals/FedJSchol/1999/1.html>.

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for all to play their part in the political process.”23 However, in Western Australia, applications for judicial review of administrative decisions are relatively rare.24 Chief Justice Wayne Martin argued this is because of arcane procedures, and also the lack of a general right to reasons.25 There is no general duty at common law that requires decision makers to provide reasons for their decisions,26 the courts leaving this question to legislation as their scope doesn’t extent to creating rules with respect to a document containing a statement of reasons for the relevant decision.27 It is difficult to argue that procedural fairness enables human dignity if people don’t know the reasons behind official action that affects them.28 The Administrative Decisions (Judicial Review) Act 1977 provides some scope for obtaining the reasons for a decision.29 However, this puts the burden on the citizen to apply for those reasons, rather than them always being provided as part of the process.

Furthermore, the Act also provides a significant list of classes of decisions which reasons for decision cannot be requested for.30 The fact that someone who is appealing a decision made under the Migration Act 1958 regarding the issue of a visa31 or relating to the administration of criminal justice32 are exempt from the requirement under the Act to provide reasons if they are requested, demonstrates how procedural fairness does not guarantee justice. The exemptions under the Act enable the Executive to ensure their decisions are upheld and cannot be challenged on the basis of procedural fairness as it limits the basis on which individuals can appeal. If instead there was an emphasis on actual unfairness reasons would have to be provided, because if review or appeal was permitted based on substantive unfairness then the reasons for the judgment would have to be considered in order to make an assessment as to the fairness. Under the current system, which focuses on procedural fairness, there is no need to entrench the right to reasons for decisions because it is assumed justice has been carried out if the established process has been followed.

French, above n 1.

Chief Justice Wayne Martin, ‘Judicial Review of Administrative Decisions in Western Australia - Procedural Reform’ (Speech delivered at the University Club of WA, Perth, 24 February 2012).

25 Ibid.

26 Public Service Board of NSW v Osmond (1986) 9 ALN N85.

27 Martin, above n 25.

28 Ibid.

29 Administrative Decisions (Judicial Review) Act 1977 (Cth), s 13.

30 Ibid, sch 2.

31 Ibid, sch 2 s 13(d) 32 Ibid, sch 2 s 13(e).

23 24

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Finally, statutory exclusion of procedural fairness is a limit to being able to consider procedural fairness indispensable to justice. Neither the common law nor the Administrative Decisions (Judicial Review) Act assumes procedural fairness must apply in all cases.33 It is possible, albeit difficult, to expressly exclude procedural fairness within a statute. The principle of legality34 has created the presumption that it is highly improbable that Parliament would overthrow fundamental principles or depart from the general system of law, without expressing its intention with irresistible clearness.35 A statement made in an Explanatory Memorandum is not sufficient to overcome procedural fairness36 – there must be a clear and contrary statutory intention37 which is carefully construed within the statute.38 On rare occasions, the court can read an implied exclusion into the statute. In Plaintiff S10 the High Court found an implied exclusion based on the nature of the ministerial and their place in the regime.39 While to date the courts have been hesitant to find exclusions of procedural fairness, that does not mean the same approach will follow in the future. Procedural fairness cannot be considered ‘indispensable to justice’ if it is accepted that this right can be excluded at the will of the Executive.

Procedural fairness, as it exists in Australia, cannot be considered ‘indispensable to justice’ when it fails to deliver true justice to citizens in the realm of administrative law. The processes only serve to entrench the power of those currently dominant within society, be it deliberately or coincidentally, and therefore cannot be considered as a mechanism for achieving justice for all people. Furthermore, there is no reason why citizens should value a ‘fair’ process over achieving a just outcome, and so the emphasis on procedural fairness within administrative law does not serve to uphold personal dignity of societal faith in the judiciary. Finally, the absence of a duty to give reasons and statutory power to exclude the necessity to provide reasons for decision illustrate how tenuous the status of procedural fairness truly is. Comparatively, striving to achieve actual fairness is more likely to deliver truly fair outcomes and eliminate many of the issues raised by the practical delivery of procedural fairness. Given the Plaintiff S10/2011 (2012) 246 CLR 636.

Electrolux Home Products Pty Ltd v Australian Workers’ Union (2004) 221 CLR 309 at 329 [21], referring to R v Secretary of State for the Home Department; Ex parte Pierson [1998] AC 539 at 587, 589.

35 Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252, 15.

36 Ibid.

37 Kioa v West [1985] HCA 81.

38 Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252.

39 Plaintiff S10/2011 (2012) 246 CLR 636.

33 34

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two approaches cannot exist coincidentally without there being a stronger emphasis put on one over the other, itâ&#x20AC;&#x2122;s wiser to focus on the delivery of a substantively fair outcome than a procedurally fair process. While some, including the Former Chief Justice, might believe that procedural fairness is indispensable to justice, its failure to genuinely deliver a â&#x20AC;&#x2DC;fair goâ&#x20AC;&#x2122; for citizens indicates it is time to look to an alternative approach to actually uphold justice.

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The Eyes (Don’t) Have It - Indigenous People and Cultural Miscommunication in Court

The Eyes (Don’t) Have it: Indigenous People and Cultural Miscommunication in Court Clinton Arnold* This paper examines the use of nonverbal communications in the justice system by Indigenous peoples. It is argued that observers place too great a reliance on their assessment of nonverbal cues, which is especially problematic as evidence suggests these assessments are often inaccurate. The role of culture in shaping nonverbal communication is widely misunderstood and leaves Indigenous people vulnerable to injustice due to the Anglo-centric framework of the Australian legal system. The author concludes that legislative reform is necessary to address these difficulties.

I

Introduction

The role nonverbal cues play in communication is often underappreciated.

Most researchers accept that nonverbal cues are more important than words used in face-to-face interactions. However, nonverbal communication is informed by cultural context. Cues used by members of one cultural group may be misconstrued by members of other groups. The resulting misunderstandings can have tragic results when they occur in legal settings. Indigenous people are particularly affected by these miscommunications due to their disproportionate engagement with the justice system.

Misidentification of cultural nonverbal cues can, and often does, result in unfavourable outcomes for Indigenous people in court.

II

Nonverbal Communication

Face-to-face communication is comprised of verbal and nonverbal aspects.1 The nonverbal aspects contain ‘all the messages other than words that people ex* Clinton is a third year Juris Doctor student and holds a Bachelor of Commerce from the University of Western Australia.

1 Valerie Manusov and Miles Patterson, Sage Handbook on Nonverbal Communication (Sage Publications, 2006), 98.

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change in interactive contexts.’ 2 This covers a very wide variety of conduct including facial expressions, eye movements, gestures, postures and the use of silence.3 These nonverbal aspects may be more important than the actual words a speaker uses, 4 with some researchers suggesting they can produce over 90% of information communicated. 5 Even conservative estimates place the figure at around 70%. 6 Nonverbal cues can supplement, expand or even contradict the literal meaning of spoken words. 7 It is vital that parties have a shared understanding of the meaning of nonverbal cues in order to engage in effective information transfer.

III

Cultural Effects on Nonverbal Communication

A Culture’s Role in Shaping Nonverbal Communication The use of nonverbal communication is profoundly influenced by culture. 8 Although ‘culture’ is conflated with subjects such as race and nationality, 9 it is most appropriately defined as a ‘unique meaning and information system, shared by a group and transmitted across generations.’ 10 Culture can facilitate social coordination and prescribe norms and expectations. 11 Nonverbal cues are used to transmit culture, creating a rich communicative framework which ultimately means people use not only different spoken languages but also different nonverbal cues.12 This unique communications system assists intragroup communication, 13 but may also create barriers for intergroup communication in circumstances where parties are unfamiliar with the ‘cultural codes.’ 14 2 Pamela Peters, ‘Gaining Compliance Through Non-Verbal Communication’ (2007) 7(1) Pepperdine Dispute Resolution Journal 87, 87.

3 Roland Sussex, ‘Intercultural Communication and the Language of the Law’ (2004) 78 Australian Law Journal 530, 531.

4 John Barkai, ‘Nonverbal Communication from the Other Side’ (1990) 27 San Diego Law Review 101, 102.

5 Peters, above n 2, 88.

6 Sussex, above n 3, 531.

7 Ibid 532.

8 David Masumoto, Mark Frank and Hyi Sung Hwang, Nonverbal Communication: Science and Applications (Sage Publications, 2013) 83.

9 Ibid 98.

10 Ibid; David Masumoto, ‘Culture, Context, and Behavior’ (2007) 75(6) Journal of Personality 1285, 1290.

11 Masumoto, above n 8, 98.

12 Ibid 97.

13 Ibid 109; Sussex, above n 3, 532.

14 Chantal Crozet, ‘Characteristics of Indigenous Languages and Cultures’ (2001) 9(1) Australian Language Matters 3, 3.

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Unfortunately, many incorrectly assume that cultural features are shared. 15 To an extent, people are primed to recognise cultural differences when participants speak different languages. 16 On the other hand, the use of a shared language can lead to misplaced assumptions that nonverbal cues will also hold a shared meaning. 17 The resulting miscommunication can be drastic, creating ambiguity and uncertainty. 18 Distinctions between cultural nonverbal cues can be observed across the world. 19 For example, the ‘OK’ hand gesture is received positively in Western countries, but considered obscene in Brazil, Greece and Russia. 20 In an Australian context, similar miscommunications may arise between Indigenous and Anglo-Australians.

B

Indigenous Nonverbal Communication

Indigenous Australians have developed rich nonverbal communications systems which are often misunderstood or overlooked by Anglo-Australians. 21 Although there are many types of nonverbal communication which can create miscommunications, the two most notable are the use of eye contact and silence.

1. Eye Contact The use – and avoidance – of eye contact plays a significant role in the communication of most cultures. 22 However, crucially, the meaning of eye contact varies dramatically across cultures. 23 In Anglo-Australian culture, maintaining eye contact communicates respect and honesty24 and indicates active listening25 whereas avoidance conveys overwhelmingly negative meanings. 26 People who avoid eye contact are characterised as ‘shifty,

Sussex, above n 3, 534.

Ibid 535.

17 Manusov, above n 1, 285.

18 Masumoto, above n 8, 112; Sussex, above n 3, 532.

19 Sussex, above n 3, 534.

20 Elena Jongh, ‘Cultural Proficiency and Nonverbal Communication in Court Interpreting’ (1991) 7(1) Confluencia 99, 102.

21 Sussex, above n 3, 538.

22 Jongh, above n 20, 102; Masumoto, above n 8, 83.

23 Jongh, above n 20, 102; Masumoto, above n 8, 112.

24 Peters, above n 2, 109.

25 Jongh, above n 20, 102.

26 Diana Eades, Aboriginal Ways of Using English (Aboriginal Studies Press, 2013) 183.

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devious, dishonest,’ ‘slippery’ or ‘untrustworthy’. 27 Indeed, avoidance of eye-contact is considered the strongest indicator of lying. 28 However, these meanings are not consistent with the culture of Indigenous Australians. In Indigenous cultures, eye contact may be avoided to indicate respect or politeness when speaking to persons of authority. 29 In fact, direct eye contact with people outside of close relations or peers is considered ‘rude, disrespectful or even aggressive.’ 30 Different cultural meanings for the same nonverbal cue risks creating a serious mismatch between the message intended and the message received. 31 As a result, Indigenous people intending to show respect, may be mischaracterised as devious or guilty. 32 2. Silence Silence sounds identical in every culture, but can create different meanings.

Use of, and reaction to, silence differs dramatically between Anglo-Australian and Indigenous cultures. 34 33

Anglo-Australian culture treats conversational silence as a ‘deviant mode of behaviour’ 35 representing a breakdown in communication. 36 Research indicates that the ‘maximum tolerance for silence’ is less than one second. 37 Further, there is a perception lengthy periods of silence before responding to questioning corresponds to dishonesty, with some believing that if ‘a person is being honest, the time to respond Stephen Porter and Leanne ten Brinke, ‘Dangerous Decisions: A Theoretical Framework for Understanding How Judges Assess Credibility in the Courtroom’ (2009) 14(1) Legal and Criminal Psychology 119, 124.

28 Charles Bond and Adnan Atoum, ‘International Deception’ (2000) 26(3) Personality and Psychology Bulletin 384, 394.

29 Supreme Court of Queensland, Equal Treatment Benchbook (2006) 88; Victorian Aboriginal Legal Service, Aboriginal English in the Courts (2008) 5.

30 Supreme Court of Queensland, above n 29, 88.

31 Sussex, above n 3, 530.

32 Porter, above n 27, 124.

33 Masumoto, above n 8, 112; Sussex, above n 3, 177.

34 Alexandra Smykowsky and Allison Williams, ‘Improving Communication with Indigenous People’ (2011) 19(3) Australian Nursing Journal 28, 28.

35 Adam Jaworski, The Power of Silence (Sage Publications, 1993) 56.

36 Diana Eades, Courtroom Talk and Neocolonial Control (Boston De Gruyter, 2008) 109.

37 Ibid 108; Derek Roger and Peter Bull, Conversation: An Interdisciplinary Perspective (Clevedon, 1989) 166-196.

27

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is going to be shorter than it is if they are going to be dishonest.’ 38 Conversely, Indigenous speakers accept silence as a ‘positive and productive’ feature of interactions39 and use it to indicate comfort or to take time to think. 40 This relationship to silence can lead to lengthy pauses. For example, when the Indigenous Garrwa language was compared to a study of 10 other languages (ranging from Danish to indigenous Mexican), 41 it was found that the Garrwa language had the highest average delay before answering questions. 42 Research establishes that this approach to silence remains present when Indigenous people use English dialects. 43 Silences in Aboriginal-English commonly last two to three seconds44 and even extend past eight seconds without creating discomfort or offence. 45 This distinction in cultural meaning has resulted in Indigenous silence regularly being misidentified by Anglo-Australian audiences. 46 IV Consequences of Nonverbal Miscommunication in Court Nonverbal communications are equally important in legal contexts as they are in social contexts. 47 Despite the importance of accurately interpreting nonverbal cues, legal professionals are relatively poor at doing so, even in intracultural communications. 48 However, the legal system is particularly prone to miscommunications when dealing with Indigenous people, which can have tragic results. 49 A Reliance on Nonverbal Communication in Court Although some aspects of the legal process rely on ‘hard evidence,’ the work of police, lawyers and judges largely turns on assessments of interpersonal communi Eades, above n 36, 112.

Ibid 107.

40 Ibid 108.

41 Tanya Stivers, Nick Enfield and Stephen Levinsion, ‘Question-Response Sequences Across Ten Languages: An Introduction’ (2010) 42(10) Journal of Pragmatics 2615, 2615.

42 Rod Gardner and Ilana Mushin, ‘An Introduction to “Studies in Australian Indigenous Conversation”’ (2010) 30(4) Australian Journal of Linguistics 393, 394.

43 Eades, above n 36, 108.

44 Rod Gardner and Ilana Mushin, ‘Post-Start-Up Overlap and Disattentiveness in a Garrwa Community’ (2007) 30(3) Australian Review of Applied Linguistics 35.1, 35.3.

45 Ibid 35.10.

46 Eades, above n 36, 108.

47 Neil Brewer, Carla Welsh and Jenny Williams, ‘Determinants of Tribunal Outcomes for Indigenous Footballers’ (2010) 1 Australian Aboriginal Studies 19, 21.

48 Eades, above n 26, 102.

49 Sussex, above n 3, 533.

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cations. 50 Many court cases contain minimal hard evidence and are essentially ‘credibility contests’ which focus primarily on assessing nonverbal cues. 51 Although the High Court has cautioned against overreliance on nonverbal evidence, 52 both international and domestic case law suggests an attitude that nonverbal assessments are simple, ‘common sense’ matters for judges and juries. 53 This is a surprisingly relaxed approach given mistakes can lead to miscarriages of justice and fundamentally alter innocent peoples’ lives. 54 Unfortunately, research overwhelmingly demonstrates that participants at every stage of the justice process are poor at assessing nonverbal cues – from police, 55 to defence and prosecution lawyers56 and even judges and juries. 57 A study of 91 detectives indicated that they regularly ascribed incorrect meanings to nonverbal cues and, as a result, were slightly worse at interpreting nonverbal cues than would be expected by random chance. 58 Similarly, studies of mock jurors have found that they misidentify the meaning of witnesses’ nonverbal cues, and even that their attention to nonverbal cues reduces the overall accuracy of their assessments. 59 Empirical evidence shows that those involved in the legal system are unable to reliably interpret nonverbal communication, even without the added difficulty of cultural barriers. These difficulties are amplified when Indigenous people are assessed in the Anglo-centric framework of the Australian legal system.

B

Indigenous Impact of Nonverbal Miscommunications

Indigenous people are disproportionately involved with the justice system, both as alleged perpetrators and as victims. In 2016, despite accounting for less than 3% of the population, Aboriginal and Torres Strait Islander prisoners represented 27% Masumoto, above n 8, 183.

R v Malik & Bagri [2005] BCSC 350, [702].

52 State Rail Authority v Earthline Constructions (1999) 160 ALR 588.

53 R v Francois [1994] 2 SCR 827; Abalos v Australian Postal Commission (1990) 171 CLR 167; Morales v Artuz (2002) 281 F.3d 55.

54 Porter, above n 27, 125.

55 Aldert Vrij, ‘Credibility Judgments of Detectives: The Impact of Nonverbal Behaviour’ (2001) 133(5) The Journal of Social Psychology 601, 609.

56 Eades, above n 36, 92.

57 Blake McKimmie, Barbara Masser and Renata Bongiorno, ‘Looking Shifty but Telling the Truth: The Effect of Witness Demeanour on Mock Jurors’ Perceptions’ (2014) 21(2) Psychiatry, Psychology and Law 297.

58 Vrij, above n 55, 609-610.

59 McKimmie, above n 57, 308.

50 51

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of the adult prisoner population. 60 Even when standardised for age, the imprisonment rate remains 13 times greater than the rate for non-Indigenous peoples. 61 This data indicates that Indigenous people have a high degree of contact with the legal system which, combined with the possibility of intercultural miscommunications, renders them particularly vulnerable to systemic cultural biases.

The 1988 case of Robyn Kina highlights the potential for accidental miscommunication in the legal system. 62 Kina, an Indigenous woman, was found guilty of murder after stabbing her violently abusive husband. Her case was transferred through multiple lawyers, partly because they struggled to take instructions from her. 63 The lawyers reported that Kina was difficult to elicit answers from, while Kina reported that they had asked questions without giving her time to answer. 64 This resulted from differing interpretations of Kina’s use of silence. Ultimately, the communication breakdown made it impossible to run an effective defence. 65 Fortunately, this was somewhat remedied on appeal, where – with the assistance of expert evidence – it was accepted that Kina was denied satisfactory representation due to ‘exceptional difficulties of communication.’ 66 Indigenous people are also vulnerable to deliberate exploitation of their nonverbal cues. The 1994 Pinkenba case concerned a committal hearing of six police officers who had picked up three Indigenous boys without charge and abandoned them in an industrial wasteland. 67 As prosecution witnesses, the boys were subjected to ‘devastating’ cross-examination, by defence counsel who appeared to deliberately manipulate their nonverbal cues to misrepresent their evidence.68 Here, Indigenous cultural communications were effectively weaponised against victims of crime.

Australian Bureau of Statistics, Corrective Services, (2016) cat. no. 4512.0.

Ibid.

62 Diana Eades, ‘Legal Recognition of Cultural Differences in Communication: The Case of Robyn Kina’ (1996) 16(3) Language and Communication 215, 215.

63 Ibid, 216.

64 Helga Kotthoff and Helen Spencer-Oatey, Handbook of Intercultural Communication (Walter de Gruyter, 2007) 287.

65 Eades, above n 62, 221-222.

66 R v Kina [1993] QCA 480, 40 (‘Kina Appeal’).

67 Eades, above n 26, 179.

68 Kotthoff, above n 64, 295.

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V Responding to Indigenous Miscommunication A Current Approach Already, some steps have been taken to address cultural miscommunications.

There is a gradually developing awareness of these issues evident in judicial practice.

For example, in 1976, R v Anunga69 set out guidelines for police interrogations, focusing on verbal difficulties faced by Indigenous suspects. The Kina Appeal acknowledged that nonverbal cultural miscommunications could also undermine justice. 70 In R v D, 71 Atkinson J noted with approval that the trial judge had demonstrated a ‘sophisticated understanding of the matters particular to an Indigenous person’ including ‘respect for long silences during interviews’. 72 While in Rowsell v Western Australia, it was stated that the cultural factors related to eye-contact had become ‘well-known’ to judges. 73 Further, state courts have published a variety of Benchbooks addressing Indigenous issues available to both judges and legal practitioners.74 B

Looking Ahead

Although expert witnesses were used in the Kina Appeal, 75 legislative reform, rather than ad hoc expert evidence remains the most appropriate way forward.

76 It has been argued that section 106R of the Evidence Act 1906 (WA) could already be used to declare appropriate Indigenous people as ‘special witnesses’ which would allow use of a ‘communicator.’ 77 However, the statutory criteria would prove too onerous to assist many Indigenous people in Court. 78 Accordingly, there has been advocacy to broaden the availability of facilitators for cultural grounds, although this has yet to be implemented. 79 As it stands, Indigenous people essentially bear the burden of clarifying communicative difficulties that arise as a result of cultural differences.

(1976) 11 ALR 412.

[1993] QCA 480, 40.

71 R v D [2003] QCA 347 72 R v D [2003] QCA 347 [10]-[11].

73 [2015] WASCA 2, 19.

74 See, e.g. Supreme Court of Queensland, above n 29.

75 [1993] QCA 480.

76 Eades, above n 62, 225.

77 Nigel Stobbs, ‘An Adversarial Quagmire – The Continued Inability of the Queensland Criminal Justice System to Cater for Indigenous Witness and Complainants’ (2007) 30(6) Indigenous Law Bulletin 15.

78 Law Reform Commission of Western Australia, The Interaction of Western Australian Law with Aboriginal Law and Culture, 94 (2006) 326.

79 Ibid, 326-327.

69 70

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The Eyes (Donâ&#x20AC;&#x2122;t) Have It - Indigenous People and Cultural Miscommunication in Court

This burden can, and should, be shifted to the state to ensure that the interests of justice are not undermined by cultural miscommunications. Providing facilitators for cultural grounds is an appropriate next step.

VI

Conclusion

Indigenous peopleâ&#x20AC;&#x2122;s culturally-informed use of nonverbal communication can result in miscommunication when dealing with predominantly Anglo-Australian systems. Acting as complainant, witness or accused presents Indigenous peoples with unique challenges. Each step along the judicial process presents the opportunity for miscommunications which can lead to devastating results for those affected. Although increasing awareness of these difficulties can be observed in the judgements of courts around Australia, targeted legislative amendment to provide Indigenous cultural facilitators is necessary to prevent unfavourable outcomes.

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Josephine Kwok

FROM JUST INTERPRETING TO JUST INTERPRETING Josephine Kwok* This paper seeks to examine the competence of court interpreters in Western Australia’s culturally diverse population by exploring court participants’ access to interpreters, interpreters’ levels of certification, as well as their appreciation for participants’ cultural backgrounds. While it is unlikely a lack of appreciation for court participants’ cultural backgrounds will result in a miscarriage of justice, this paper considers three recommendations to reduce the risk of unfairness in court proceedings derived from interpreters’ (lack of) competence. A specific focus is placed on North-East Asian migrants living in Western Australia, and their experiences with court interpreters.

‘How much less adequate is communication when parties and witnesses who do not speak with fluency, or perhaps at all, the language of the justice system, seek to convey their truths… and when a party comes from a culture which is not that of the judicial system and its actors, the alienness of the assumptions and the very process in which he or she is engaged will further diminish the capacity of that party to convey his or her truth.’1 I Introduction Navigating through the complex labyrinth of the Australian justice system is a difficult process even for legal professionals, and feelings of stress and unfamiliarity is often intensified for witnesses from Culturally and Linguistically Diverse (CaLD) backgrounds. While interpreters are engaged to assist CaLD witnesses during court proceedings, the accuracy of their interpretations may be compromised if they lack an appreciation for witnesses’ cultural backgrounds.

* Josephine is a final year Juris Doctor student and holds a Bachelor of Arts from the University of Western Australia. Josephine is also studying a Graduate Diploma of Chinese Business Law. 1 Chief Justice Robert French, ‘One Justice – Many Voices, Language and the Law Conference’ (Speech delivered in Darwin, 29 August 2015).

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Taking into account Western Australia’s (WA) culturally diverse population2 and the court interpreting services available to WA residents, this paper argues that in circumstances where court interpreters lack an appreciation for witnesses’ cultural backgrounds, it may lead to unfair court proceedings. Whether this unfairness is tantamount to a miscarriage of justice depends upon existing legal principles defining this concept. Where the court believes that a verdict, having regard to the evidence, is unreasonable or cannot be supported, or there was a wrong decision based on a question of law, the verdict must be set aside on grounds of there being a miscarriage of justice.3 Given that a verdict must be so unjust or unreasonable to warrant setting aside a judgment,4 it is unlikely that an interpreter’s poor appreciation of witnesses’ cultural backgrounds will result in a miscarriage of justice.

The second part of the paper considers recommendations to reduce the risk of actual and perceived unfairness in court proceedings derived from interpreters’ competence. Given the growing population of migrants from North-East Asian (NEA) countries living in Western Australia,5 this paper will focus on witnesses from NEA backgrounds, specifically Chinese, South Korean and Japanese witnesses, as they share similar cultural and linguistic characteristics.

II Access to Interpreters in WA In WA there is no absolute right for defendants or witnesses to access a court interpreter.6 However, there are statutory provisions and common law principles stating the importance of providing an interpreter where the need arises, and that to deny such a request would risk a party’s right to a fair trial.7 For example, the Evidence Act 1995 (Cth) provides that a witness may give evidence about a fact through an inter2 In WA, 30.7 per cent of the population were born overseas, making it the fastest growing state in Australia in terms of cultural diversity. See Australian Bureau of Statistics, Census of Population and Housing (2011).

3 Criminal Appeals Act 2004 (WA) s 8.

4 Gipp v The Queen (1998) 155 ALR 15, 60: The language used in the judgments on these matters is often that the decision was ‘unreasonable’ or that it was ‘unsafe or unsatisfactory’, ‘unjust or unsafe’, or ‘dangerous or unsafe.

5 15 per cent of Western Australians speak a language other than English, with Chinese languages being the second most spoken language in WA, accounting for 2.3 per cent of the state’s population. See Australian Bureau of Statistics, Census of Population and Housing (2011).

6 Dairy Farmers Co-Operative Milk Co Ltd v Acquilina (1963) 109 CLR 458, 464.

7 See for example Dietrich v The Queen (1992) 177 CLR 292, 363; R v Lee Kun [1916] 1 KR 337, 340-341. Sections 102 and 103 of the Evidence Act 1906 (WA) also provides for persons acting as an interpreter to be sworn or affirmed for the purposes of using interpreters for accused persons.

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preter.8 The decision as to whether a court interpreter is required is ultimately at the judicial officer’s discretion.9 Such discretion must ‘be exercised properly…with the object of attaining a fair trial for the parties in the court.’10 In R v Tran,11 Lamer CJ also reinforced the common law right of an accused to an interpreter, as an incident of the right to a fair trial rather than a separate right in itself. Nevertheless, in Dietrich v The Queen12 the court held that a trial may be deemed unfair if an interpreter is not provided where such a necessity arises. It will also be unfair if the selected interpreter lacks the skill and ability to interpret testimonies accurately.

III The Competence and Role of an Interpreter The National Accreditation Authority for Translators and Interpreters (NAATI) is the only officially recognised body for translation and interpreting in Australia.13 Specific to court interpreters, courts will consider an interpreter to be prima facie competent if the interpreter holds: a) a NAATI credential as a Professional Interpreter; or b) a nationally accredited Advanced Diploma in Interpreting.14 While there are various means of obtaining NAATI accreditation,15 such measures do not necessarily consider other less directly assessable factors such as the need to acquire special knowledge of the legal system, bilingual legal terminology, 8 Unless the witness can understand and speak the English language sufficiently to enable the witness to understand, and to make an adequate reply to questions that may be put about that fact: Evidence Act 1995 (Cth) s 30.

9 See also Department of Local Government and Communities Office of Multicultural Interests, ‘Western Australian Language Services Policy 2014 and Guidelines’ (Government of Western Australia, 2014), which establishes a three-stage test to assess whether an interpreter may be required in certain situations.

10 Gradidge v Grace Bros Pty Ltd (1988) 93 CLR 414, 423 (Kirby P). Kirby P (as he then was) also emphasised that the discretion is not exercised on the basis of idiosyncratic opinions, nor by reference to any personal views that a judge may hold.

11 [1994] 2 SCR 951, 967.

12 (1992) 177 CLR 292.

13 National Accreditation Authority for Translators and Interpreters, Accreditation, NAATI <http://naati. com.au/accreditation.html>.

14 District Court of Western Australia, ‘Language Services Guidelines – Circular to Practitioners GEN 2011/2’ (District Court of Western Australia, 2011).

15 This may include passing a NAATI accreditation test, completing a translation and/or interpreting course at an Australian institution approved by NAATI, or providing evidence of a specialised tertiary qualification in translation and/or interpreting. See NAATI, above n 13.

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and discourse practices and strategies particular to a courtroom setting.16 Furthermore, as an interpreter’s mediating act of speech is the result of a complex process, their cultural competence and appreciation is as important as, and inseparable from, linguistic proficiency.17 The fundamental duty of a court interpreter is to accurately convey questions and corresponding responses between the court and its participants.18 However, in reality, an interpreter’s role extends beyond merely relaying word-for-word utterances.

In order to convey the exact meaning and intent of the speaker, they must also be able to appreciate the context of the speaker’s style, culture, and nonverbal cues.19-IV Recognising North-East Asian Cultural Characteristics In a Western-style adversarial system, language becomes the main weapon for lawyers to fight their metaphorical battle.20 Where a witness’ testimony and communication style has the power to affect their credibility, it is imperative for interpreters to be aware of the impact such linguistic and cultural differences can have in conducting fair trials.

NEA countries are well known for adopting Confucius principles and values, and as a result, often display a ‘cultural abhorrence of dissensions’.21 Confucius emphasises the value of social institutions and basic human relationships.22 It believes that all human relationships involve a set of defined roles that contribute to reforming and perfecting the society.23 In Australia, displays of politeness may be interpreted as the avoidance of aggressive or disrespectful words or actions.24 However, in NEA Sandra Hale, ‘The Need to Raise the Bar: Court Interpreters as Specialised Experts’ (2011) 10 Judicial Review 237, 241-2.

17 Elena M. De Jongh, ‘Foreign Language Interpreters in the Courtroom: The Case for Linguistic and Cultural Proficiency’ (1991) 75 The Modern Language Journal 285, 294.

18 Justice M. A. Wilson, ‘Interpreters and the Courts’ (Speech delivered at the Queensland Law Society Symposium, Brisbane, 27 March 2010).

19 Alejandra Hayes and Sandra Hale, ‘Appeals on Incompetent Interpreting’ (2010) 20 Journal of Judicial Administration 119, 127.e Jongh, above n 17, 288. s s in the Courtroom: The Case for Linguistic and Cultural Proficiency 20 Sandra Hale, ‘The complexities of the bilingual courtroom’ (2001) Law Society Journal 68.

21 De Jongh, above n 17, 291.

22 Judith A. Berling, Confucianism, Centre for Global Education <http://asiasociety.org/education/confucianism>.

23 Ibid.

24 Roland Sussex, ‘Intercultural communication and the language of the law’ (2004) 78 Australian Law Journal 530, 536.

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countries, politeness can involve explicit and elaborate rituals. For example, gift-giving in Japan is a highly-structured practice, and the boundary between gifts and bribes is observed delicately amongst Japanese people.25 Power dynamics can also be expressed differently. In Australia, linguistic, social and cultural practices do not differ greatly across communities. Consequently, modes of interaction tend to be similar across the vertical social hierarchy.26 Conversely, NEA cultures follow a highly stratified power structure, to the extent that it affects the status of women who are often expected to adapt a subservient role in communication with male spouses, acquaintances or professional associates.27 Such a cultural contrast may impact on NEA witnesses’ willingness to testify, to whom they are willing to do so, and in what circumstances. It could also affect whether they feel comfortable to open a conversation, and the ways in which questions may be posed and answered.

Another cultural distinction that may affect NEA witnesses relates to the contrasting individualistic and collectivist cultures. Australian culture values individualism and readily promotes one’s personal achievements.28 Contrastingly, NEA cultures are generally collectivistic, and decision-making is largely influenced by the group’s benefit.29 This is particularly evident in concepts of family honour. For instance, Chinese families’ concept of honour translates into being self-sufficient as a family unit, dependent almost exclusively on reputation, premarital virginity and adherence to moral values.30 These values can impact on whether family members attend court as support networks, or whether it is too shameful, as the family honour may be threatened by the individual’s transgression. Social hierarchies in collectivist cultures can also influence the honorifics, word choices, and manner of one’s speech.31

Ibid.

Ibid.

27 Ibid.

28 Ibid 537.

29 Sophia Ra and Jemina Napier, ‘Community interpreting: Asian language interpreter’s perspectives’ (2013) 5(2) International Journal for Translation and Interpreting Research 45, 47.

30 Ibid.

31 Ibid.

25 26

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V Risks Involved in Failing to Appreciate Cultural Characteristics CaLD witnesses are often faced with two major difficulties within the Australian legal system; a lack of understanding of court procedures, and the court’s failure to understand the language and cultural characteristics of CaLD witnesses.32 While there is a general consensus that interpreters should be sensitive to cultural dimensions and linguistic differences in witnesses,33 very little practical guidance is offered to interpreters on how to recognise and deal with those cross-cultural factors.34 Even in instances where interpreters are aware of such differences, knowing how much cultural knowledge they share with CaLD witnesses and whether they should disclose this to the court, can be difficult to assess.35 A study on the discourse of Korean witnesses during examination in Australian trials posited that in the absence of cultural appreciation and disclosure by interpreters, witness testimonies may not be accurately interpreted,36 and this could have adverse impacts on adversarial court proceedings.37 For instance, in one sexual assault trial the interpreter failed to disclose relevant linguistic and cultural aspects of a Korean witness, allowing the defence counsel to attack the witness’ credibility by highlighting the witness’ unintentional inconsistencies in his evidence.38 While the interpreter’s incompetence did not justify a retrial on the grounds of there being a miscarriage of justice, it does reinforce the need for court interpreters to be sensitive to potential cultural differences in an adversarial courtroom, and alert the court to potential misunderstandings accordingly.

In another trial, an interpreter altered the pragmatic effect of a Korean witness’ politeness when giving his testimony,39 which resulted in ramifications at a later stage. Generally, deference in NEA countries is determined by power and solidarity according to age, gender, and other social factors.40 During examination-in-chief, the Elizabeth Raper, ‘We’re not quite a global village yet…interpreting in court’ (1997) 8(2) Polemic 30.

Jieun Lee, ‘When linguistic and cultural differences are not disclosed in court interpreting’ (2009) 28(4) Multlingua: Journal of Cross-Cultural and Interlanguage Communication 379, 381.

34 See for example Department of the Attorney General (WA), ‘Language Services Policy’ (Department of the Attorney General, 2009); National Accreditation Authority for Translators and Interpreters, Accreditation, NAATI <http://naati.com.au/accreditation.html>.

35 Sandra Hale, ‘Interpreting culture. Dealing with cross-cultural issues in court interpreting’ (2014) 22(3) Perspectives 321, 325.

36

37

38 Lee, above n 33, 390.

39 Ibid 394.

40 Ik-Seop Lee and Chae Wan, Korean Grammar (Hakyeonsa, 1999).

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witness spoke in a polite manner, but in cross-examination the witness changed to a non-deferential speech style towards the prosecutor. The author noted that in Korean courtrooms, such disrespectful and uncooperative behaviour would not have been tolerated, and assumed that the witness took advantage of the interpreter’s failure to reproduce the pragmatic effect of the witness’ impoliteness, leaving the court unaware of his original Korean speech style.41 While these examples demonstrate the adverse impacts an interpreter’s lack of appreciation of witnesses’ cultural background can have on adversarial court proceedings, the degree of unfairness is not tantamount to a miscarriage of justice. For instance, where the interpreter failed to replicate the Korean witness’ change in politeness during examination, this may have negatively impacted on the interpreter’s competence in conveying to the court the testimony’s content and speech style. However, the consequence of this would not have been so unreasonable, nor the interpreter’s services so inadequate or tainted that it would require the verdict to be set aside on grounds of there being a miscarriage of justice.42 VI Recommendations to Ensure Fairer Proceedings The cases illustrated above demonstrate how court interpreter’s lack of appreciation of a witness’ cultural background, and their disinclination towards clarifying relevant cultural and linguistic differences to the court can have potentially serious implications on fair and accurate communications in the courtroom. In determining how to limit these problems in order to ensure fairer court proceedings, this paper considers three practical recommendations. a. Court interpreters’ role and its scope requires better clarification.

Earlier views from the High Court treated interpreters as mere conduits that mechanically interpret words from one language to another,43 and this narrow perception was incorrectly endorsed amongst legal professionals for a long time.44 However, Lee, above n 33, 396.

In De La Espriella-Velasco v The Queen [2006] WASCA 3, the court held that even in circumstances where phrases were completely misinterpreted, this did not constitute a miscarriage of justice. Roberts-Smith JA at [113] argued that it was not ‘deficient as to mean that the appellant was effectively not present at his trial... or denied him the opportunity to adequately respond.’

43 Gaio v The Queen (1960) 104 CLR 419.

44 Hayes and Hale, above n 19, 127.

41 42

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subsequent cases expanded on the interpreter’s role, emphasising on the significance of communicating a witness’ ideas and intentions rather than merely substituting words from a source to a target language.45 Generally, courts do expect interpreters to be competent in conveying cultural information.46 Yet without a proper understanding of the scope of their roles, interpreters are sometimes reluctant to seek clarifications on potentially relevant cross-cultural differences in fear of overstepping the boundary. Therefore, it is crucial for judges and other legal professionals to offer further guidance and clarification over the interpreter’s role, especially because they possess material knowledge about each case preceding the witness examinations. In comparison, interpreters’ access to background information is limited to evidence that unfolds during witness examination.47 Such knowledge forms part of the contextual information that can shape interpreters’ abilities to identify relevant cultural codes from witnesses.48 In some instances where interpreters were provided with no contextual background knowledge, they omitted inexplicit expressions from witnesses’ testimonies, or made presumptions about the unexpressed elements based on the degree of their contextual knowledge.49 While an interpreter’s deductive skills may partially compensate for their lack of background knowledge, the accuracy of their interpretations may nonetheless still be at risk. b. Interpreters should be given better directions on how to disclose relevant cultural information during court proceedings.

An interpreter’s duty to provide accurate interpretations includes disclosing any relevant linguistic and cultural characteristics a witness exhibits that may impact on the evidence. However, interpreters are generally encouraged to remain as unobtrusive as possible. Accordingly, interpreters may refrain from disclosing relevant See for example in Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507, Kenny J rejected the notion of interpretation as a mere mechanical exercise. Her Honour observed that it requires both technical skill and expert judgment. Roberts-Smith JA in De La Espriella-Velasco v The Queen [2006] WASCA 31 (with whom Pullin JA agreed) recognised that social or cultural differences might mean that even the idea or concept itself had no equivalent in both societies.

46 Arlene M. Kelly, ‘Cultural parameters for interpreters in the courtroom’, in R. P. Roberts, S. E. Carr and A. Dufour (eds), The Critical Link 2: Interpreters in the community: Selected papers from the Second International Conference on Interpreting in Legal, Health and Social Services Settings (John Benjamins Publishing Co, 1998) 131-148.

47 Jieun Lee, ‘Interpreting Inexplicit Language during Courtroom Examination’ (2009) 30(1) Oxford University Press 93, 94.

48 Ibid. Contextual information and knowledge takes into account the cultural context of witnesses.

49 Lee, above n 47, 95.

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linguistic and cultural issues, thus hampering accurate interpretations and effective communication within the courtroom. As lawyers need to be informed on cultural issues in order to serve their clients’ interests, judges would even more so require this knowledge in order to preserve equity in the courtroom.50 Therefore, judges should be prepared for interpreters to ask them questions to clarify complex legal concepts and cultural issues.

A survey on cross-cultural issues in interpreting found that only a little over half of the interpreters surveyed felt comfortable advising the court of any potential cross-cultural miscommunications.51 Of those who were not comfortable, many believed that it was not appropriate to do so, or were unsure how to raise such issues.52 Nevertheless, it is important that interpreters maintain impartiality when seeking to interrupt an examination process. An interpreter’s intervention should not derive from sympathy with the witness or a personal belief in the witness’ credibility.53 c. When assessing court interpreters, they should also be measured on their intercultural communicative competence.

Given the potential impact a witness’ cultural background may have on ensuring a fair trial, interpreters’ fluency and understanding of the witness’ native language alone is insufficient to assess their competence. Similarly, NAATI accreditations do not adequately measure an interpreter’s competence in both a linguistic and cultural sense. To be truly competent in carrying out their role, interpreters must also be trained in recognising and appreciating CaLD witnesses’ cultural backgrounds, and how this can impact on interpreting witness testimonies.

Admittedly to a certain extent cultural sensitivity cannot be taught and interpreters must learn to develop and foster this appreciation through their experiences in court interpreting. Developing an enhanced level of intercultural awareness is the responsibility of all legal professionals, but it is especially crucial for interpreters to improve on their intercultural communicative competence.54 This means not only being aware of cultural differences and their implications, but becoming active, cultur De La Espriella-Velasco v The Queen [2006] WASCA 31, [75].

Sandra Hale, ‘Interpreter Policies, Practices and Protocols in Australian Courts and Tribunals: A National Survey’ (Australasian Institute of Judicial Administration Incorporated, 2011) 45.

52 Ibid.

53 Kelly, above n 46, 145.

54 Ibid.

50 51

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ally-competent communicators. While this may, to some degree, be aspirational given that no single person is culturally competent in the practices of all cultures, it is still possible to define a set of core cultural competencies for the major cultures represented in the WA population, and therefore in WA courts.55 VII Conclusion Court interpreters play a vital role in the administration of justice, by helping protect the rights of linguistic minorities in the Australian legal system. However, individualsâ&#x20AC;&#x2122; right to due process may be at risk if interpreters cannot demonstrate their linguistic and cultural proficiency as well as their expected interpreting skills through established standards of competence. Using examples of witnesses from NEA cultural backgrounds highlights the potential risks of conducting unfair trials. Nevertheless, it is unlikely that such risks of unfairness would be tantamount to a miscarriage of justice. However, it is vital for court interpreters, judges, and lawyers to understand that the medium of language hinges on culture. Accordingly, they must collaboratively seek to address the challenges faced by CaLD witnesses not only by appropriate use and encouragement of interpreters but by appreciating their cultural and linguistic differences and its potential impacts on fairness.

55

â&#x20AC;&#x160; Sussex, above n 24, 540.

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The Interpretation of Dangerous Act Murder following the 2008 Amendments to the CRIMINAL CODE Christopher Minus* The Criminal Law Amendment (Homicide) Act passed in 2008, reformed, amongst other provisions in the Criminal Code, the crime of homicide. Prior to 2008 an individual could only be charged with the most serious homicide offences if they were found guilty of the crime of wilful murder. This tasked prosecutors with the momentous task of proving that the perpetrator had an entirely subjective intent to commit the murder. As a result, prosecutors had to resort to lesser crimes such as general murder with less stringent part objective, or entirely objective, inquiries. The 2008 amendments sought to remedy this by granting courts more discretion during the sentencing stage so that the sanction would better fit the crime. However, in doing so, the amendments caused a separate, interpretational issue of its own, that being the interpretation of the crime of murder under section 279(1)(b). Following the 2008 amendments, section 279(1)(b) of the Criminal Code provides that the crime of murder is committed when a person unlawfully kills someone and intended to cause a bodily injury of such a nature as to endanger, or be likely to endanger, the life of the person killed or another person. As is discussed in the paper, the cases of Wonganol, Charlie and Schmidt have proved to be useful in providing a guide to interpreting the provision. The case law has shown that section 279(1)(b) provides 2 limbs to consider when conducting an inquiry as to whether a person is guilty under the provision. Firstly, a subjective inquiry must be undertaken to determine whether the alleged perpetrator intended to cause harm of a serious nature. Afterwards, an objective enquiry must be undertaken to assess whether such an act is either likely to endanger the life of the person killed, or another person. Only after proving both the subjective intent of the perpetrator to cause a serious bodily injury and an objective assessment of the actions of the perpetrator to indeed endanger someone’s life, will the requirements of section 279(1) (b) be made out.

The amendments created by the Criminal Law Amendment (Homicide) Act1 in 2008 highlight the nature of subjective and objective inquiries into the crime of murder. The case law following the amendments showcases the difficulty of both the courts and learned counsels in differentiating when to derive subjective intent or when *Christopher is a first year Juris Doctor student and holds a Bachelor of Commerce and a Masters in International Commercial Law from the University of Western Australia.

ACKNOWLEDGEMENT: I’d like to thank Brianna Harcus. She has been my rock, my eyes and my coffee pusher.

1 Criminal Law Amendment (Homicide) Act 2008 (WA).

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to objectively assess a situation. In evaluating this statement it is firstly important to consider the history of the amendments, why they came about, and how substantially they changed the offence of murder, paying particular attention to any changes in subjective and objective enquiries into the crime of murder. The way in which the courts conduct their subjective and objective enquiries will then be assessed in respect to section 279(1)(b). Special attention will be paid to the cases of Wonganol2 and Schmidt3 as well as extrinsic material that the courts use to aid their interpretation.

When the Criminal Law Amendment (Homicide) Act4 was passed the Attorney General at the time, Jim McGinty, mentioned the necessity for the amendments to murder in his second reading speech5 citing the complexities in prosecuting individuals. The amendments consolidated the crime of wilful murder and that of general murder. Under the previous statutory regime, a person was only liable to receive the most serious sentences if they were found guilty of the crime of wilful murder. This required an entirely subjective inquiry into the intent of the accused, which was often difficult to prove, especially in the case of random attacks. They were otherwise subject to the alternative crimes of general murder which either required a part subjective, part objective or even wholly objective inquiry into the actions of the accused. Although these general provisions of murder were easier to prove and obtain a conviction, they wielded more lenient penalties.6 Under the 2008 amendments, the crimes of murder were consolidated so as to grant the court more discretion in sentencing and imposing sanctions,7 however without changing the nature of the subjective and objective inquiries that went into each variant of murder. The provision for wilful murder, now found in section 279(1)(a)8, is still an entirely subjective inquiry as to the intention of the accused. For an accused to be found guilty of murder under section 279(1)(a) it must be shown that the person intended to cause the death of the person killed.9 The provisions for felony murder were Wongawol v The State Of Western Australia [2011] WASCA 222.

Schmidt v The State of Western Australia [2013] WASCA 201.

4 Criminal Law Amendment (Homicide) Act 2008 (WA).

5 Western Australia, Parliamentary Debates, Legislative Assembly, 19 March 2008, 1209-12 (Jim McGinty, Attorney-General).

6 Ibid.

7 Ibid.

8 Criminal Code (WA) s 279(1)(a).

9 Western Australian Law Reform Commission, A review of the law of homicide Final Report, Project No 97 (2007) 84.

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kept and condensed to what is now section 279(1)(c).10 Furthermore, as the wording is also entirely the same as it previously was in s 279(2),11 it can be said that the wholly objective inquiry into felony murder remains the same. However, there is a substantial alteration to the provisions of murder by grievous bodily harm, formally found in section 279(1).12 The provision no longer requires the intention to cause permanent injury.

Although the modification did create interpretational issues, as is obvious in the cases of Wongawol13 and Schmidt,14 the part subjective and part objective inquiry conducted by the courts into provision did not change.

In Wongawol,15 McLure J (with Buss JA and Mazza J agreeing) set important precedent for the Western Australian jurisdiction. McLure J stated that to determine the guilt of the accused, it must be shown that the accused subjectively intended to inflict bodily injuries of a nature which objectively either endanger life or is likely to.16 In Wongawol17 the appellate claimed that the judge at first instance had failed to recognise the significance of the appellant’s stabbing of the victim’s legs. The appellate claimed that the stabbings to the legs did not contribute in proving the intention of the accused to kill the victim or cause such an injury that would kill the victim. However, the court refused the appellant’s argument. McLure J comments that in properly constructing section 279(1)(b) there are two limbs to consider; (1) the person intends to cause a bodily injury of such a nature as to endanger the life of the person killed or another person; and (2) the person intends to cause a bodily injury of such a nature as to be likely to endanger the life of the person killed or another person.18 When viewing the two limbs of section 279(1)(b), it can be shown that the test is not entirely subjective; it does not require the accused to both intend to inflict a bodily injury and also contemplate that those injuries would endanger life or is likely Criminal Code (WA) s 279(1)(c).

Criminal Code (WA) s 279(2), later amended by Criminal Law Amendment (Homicide) Act 2008 (WA) s 10.

12 Criminal Code (WA) s 279(1), later amended by Criminal Law Amendment (Homicide) Act 2008 (WA) s 10.

13 Wongawol v The State Of Western Australia [2011] WASCA 222.

14 Schmidt v The State of Western Australia [2013] WASCA 201.

15 Wongawol v The State Of Western Australia [2011] WASCA 222.

16 Ibid, [25].

17 Ibid.

18 Ibid, [23].

10 11

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to.19 In fact, the use of objective language such as ‘likely to endanger’ is indicative of employing an objective view in assessing the nature of the injury and whether such an injury would or is likely to endanger life. From this interpretation it can be said that although the appellant’s actions were mainly directed at the legs of the victim, it did not matter. The appellant intended to cause bodily harm of a serious nature to the victim and when objectively viewed, that harm, along with the other wounds, lacerations and abrasions is most likely to have endangered the life of the victim. In constructing and supporting her interpretation of the provision, McLure J refers to relevant case law, but also to extrinsic materials that discusses murder in section 279(1)(b).

In interpreting the relevant provision, McLure J refers to the judgement of Callinan J in Charlie.20 Callinan J discusses the interpretation of a the word ‘likely’ in the context of murder from grievous bodily harm found in the previous Northern Territory Criminal Code,21 which was similar in wording to the previous iteration of section 279(1)(b) of the Western Australian Criminal Code. Callinan J observes that the provision failing to mention awareness or foresight is indicative of the provision containing both subjective and objective elements. For the accused to be found guilty of murder, their subjective intent to to cause a physical or mental injury must be shown, but whether or not they foresaw such injury to endanger life or cause permanent injury is to be objectively assessed.22 Callinan J references the case of Boughey23 which assesses the term ‘likely to cause death.’ It was found that the term should be interpreted as ‘a substantial or real chance as distinct from what is a mere possibility.’

The mere absence of exacting or determining whether an event is ‘likely to cause death’ is objective in nature as it requires an objective assessment of the circumstances and whether it would cause death.

Since Callinan J’s judgement in Charlie, the provisions for murder in the Western Australian Criminal Code have changed. McLure J took this into consideration when deciding whether this would have meant that the test in determining guilt according to s 279(1)(b) was now entirely subjective, or still part subjective, part Ibid, [24].

Charlie v The Queen [1999] HCA 23.

21 Criminal Code Act (NT) s 162, later amended by Criminal Reform Amendment Act (No. 2) 2006 (NT) s 17.

22 Charlie v The Queen [1999] HCA 23, [76].

23 Boughey v The Queen (1986) 65 ALR 609, 618 (Mason, Wilson and Deane JJ).

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objective. Referring to the Review of the Law of Homicide24 McLure J found that the nature of the injury caused under section 279(1)(b) should remain to be determined objectively. In their review the Commission did in fact consider a legal reform implementing a wholly subjective approach, where the prosecution must prove that the injury they intend to inflict was indeed-life threatening.25 However, the Commission commented that not only would this exclude some forms of misconduct, but that just because an individual fails to think about the consequences of their actions does not make them any less morally blameworthy. Another concern raised by McLure J was that since the judgement in Charlie, the relevant provision in the Criminal Code (WA) has changed to no longer include the requirement of intending to cause permanent injury as a mental element of murder. The effect of having an amended law could effect the way it is interpreted, however McLure J said that this was not the case. Because the amendment did not amount to a material alteration of the law and that the Commission did not intend to alter the interpretation of the law, only to the extent of removing the aforementioned requirement.

Further contention arises in the case of Schmidt26 where the trial judge misdirects the jury as to the elements of the offence of murder under section 279(1)(b).

When directing the jury, the trial judge at first instance misconstrues the two limbs of the provision as two separate elements. The trial judge states that to find the accused guilty, the prosecution must both prove the intention of the accused to cause bodily injury but also that the bodily injury is of a nature as to endanger or be likely to endanger the life of the person killed.27 Although presiding judges, Martin CJ, Buss JA and Mazza JA agree and affirm McLure J’s judgement in Wongawol, they provide clarification on the two limbs of section 279(1)(b). Martin comments that the two limbs do not form separate elements, there is only the one element of intention.28 The prosecution is only required to prove that the accused had the subjective intent to cause a bodily injury of a particular nature. The nature of the injury is in itself is not an element, but defines the range of injuries that the accused may have intended that the prosecution must establish in order to prove the offence.29 This is to be distinguished Western Australian Law Reform Commission, A review of the law of homicide Final Report, Project No 97 (2007) 50.

25 Ibid 49.

26 Schmidt v The State of Western Australia [2013] WASCA 201.

27 Ibid, [53].

28 Ibid, [93].

29 Ibid, [94].

24

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with the objective assessment of whether the nature of the injury will endanger life or is likely to.30 Buss and Mazza JJ then address the submission by the appellant’s senior counsel that the decision in Wongawol is in fact inconsistent with Callinan J’s judgement in Charlie. Senior counsel argues that the first limb of section 279(1)(b) is wholly subjective and not part subjective, part objective as is stated in Wongawol. Counsel claimed that the wording used in the Northern Territory criminal code contends that the bodily injury caused must be ‘of such a nature as actually to endanger’ life.’31 The argument by the senior counsel was that the use of the word ‘actually’ suggests the subjective nature of the limb and that as such, not only is it for the prosecution to prove the subjective intent of the nature of injury endangering life, but also that the law has been applied inconsistently from Charlie to Wongawol. Buss rejects this, claiming that the word actually only refers to whether or not an injury is of such a nature, as a matter of objective fact, to endanger life.32 Mazza J agrees with Buss J, however, also comments that he had agreed, when presiding with McLure J, that the two limbs proposed were to be interpreted part subjectively, as to the intent of the accused to cause bodily injury of a particular nature, and part objectively, where it was to be objectively assessed whether that particular nature would endanger life.

The case law following the amendments showcase the difficulty of both the courts and learned counsels in differentiating when to derive subjective intent or when to objectively assess a situation. The 2008 amendments, under the guidance of the Law Reform Commission, intended for subjective and objective inquiries into murder to remain the same. However, the fact that section 279(1)(b) received a substantial alteration lead to issues in interpreting whether this was still the case. The decision in Wongawol derived two limbs from section 279(1)(b), employing a subjective inquiry into the intent of the accused to cause bodily harm of a such a nature and an objective inquiry into whether that harm will or is likely to endanger life. The decision and interpretation of section 279(1)(b) proposed in Wongawol were affirmed in the decision of Schmidt, where the presiding judges provided further clarity and direction to interpreting the section.

Ibid, [95].

Ibid, [164].

32 Ibid, [167].

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Jordan Soresi

FREEDOM OF MOVEMENT: Universal Human Right or Mere Ideal?

Jordan Soresi* This paper seeks to provide insight into the extent to which the practical reality of human rights reflects their universal conception. Specifically, it considers the right to freedom of movement. By analysing its historical development, regional status and interplay with other laws, it determines whether this right is expansive or restrictive. The author concludes that the latter is the case.

I Introduction The concept of human dignity – one’s intrinsic moral and ethical considerations – is shared equally among all humans, and therefore serves as appropriate grounds on which to found human rights.1 Despite the theoretical innateness of human rights, there remains debate over whether they are expansive or restrictive. Ultimately, while human rights apply to all universally, the way in which they are expressed is reliant on State interpretation and it is in this way that they can vary. As such, an expansive right is one held by a population in its entirety, which can be expressed in the spirit originally held by the instrument of which it forms a part. By contrast, a restrictive right is limited either in the type of people who hold it or in the way they can express it. The right to freedom of movement will be analysed as a case study to understand whether human rights are expansive or restrictive. This dichotomy will be discussed in terms of the freedom of movement’s historical development, regional status and finally, its interplay with other areas of law.

* Jordan is a first year Juris Doctor student and holds a Bachelor of Commerce from the University of Western Australia.

1 Michelo Hansungule, The Historical Development of International Human Rights (Brill, 2010), 1.

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II Background The right to freedom of movement is an “individual civic liberty” found in the Universal Declaration of Human Rights, International Covenant on Civil and Political Rights and various other legal instruments, and for which there is “almost universal formal support”.2 It is based in principles that all are born free and equal before the law, and that the State should protect the family.3 Essentially, it represents the right to free movement within borders of a State, freedom to exit any country and enter one’s own. However, the International Covenant on Civil and Political Rights places limitations on this right, specifically to “protect national security, public order, public health or morals or the rights and freedoms of others”.4 Thus, despite theoretical support for this right, its derogability highlights how easily it can be manipulated such that it is no longer expressed in the manner originally intended.

III Development The right to freedom of movement has evolved as a personal liberty over hundreds of years. However, there is a disparity between the theoretical right and that in State practice. It could be considered restrictive, as it has “never been considered an absolute right”5. In other words, limitations have been placed on freedom of movement at each stage of its development. In antiquity, the Mediterranean region was a boon for large-scale migration, exemplified by the epithet, “I go wherever I wish; I come from whence I wish”.6 Foreigners constituted 90% of the Roman Empire, suggesting that this was a widely held and expressed right.7 However, the fact that 10% of the population was enslaved arguably undermines this notion of a universal freedom of movement.8 These facts more strongly indicate that it was fettered.

Jane McAdam, ‘An Intellectual History of Freedom of Movement in International Law: the Right to leave as a Personal Liberty’ (2011) 12 Melbourne Journal of International Law 27, 30.

3 B M Bresnahan, ‘Migrant Detention Centre: A Backward Step for Human Rights?’ The Argentina Independent (Online), 26 September 2016 <http://www.argentinaindependent.com/socialissues/humanrights/ migrant-detention-centre-a-backward-step-for-human-rights/>.

4 International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976) art 12(3).

5 McAdam, above n 2, 30.

6 Ibid 32.

7 Ibid.

8 Ibid.

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Nonetheless, support continued throughout the Late Middle Ages and into the Early Modern and Enlightenment periods (15th – 18th centuries). Prominent philosophers claimed that the right to freedom of movement was expansive. Francisco de Vitoria, for example, argued that “anyone” was allowed to “set forth and travel” according to natural and divine law.9 Hugo Grotius echoed this sentiment, claiming that free movement was not only within the dignity of the human but the “most unimpeachable axiom of the Law of Nations”.10 During the Enlightenment, this support manifested itself in the concept of libertarianism, or freedom from the State. Wilhelm Von Humboldt, one of many advocates, promoted individualism and free movement in his work, ‘The Limits of State Action’.11 Despite this, Grotius did qualify his beliefs, stating that large-scale movements could harm communities.12 Furthermore, de Victoria’s words can be seen merely as veiled justification for Spanish colonisation of the New World. Reading his discussions in this light restricts the right to freedom of movement to wealthy colonising powers, thereby stripping it of the value it would otherwise hold as advocating for an expansive right.13 As such, historical considerations of liberal movement, although apparently extolling a principle open to all people, actually provide further evidence as to the ways in which it was restrictive.

Jagerskiold highlights that it was not until the flows of mass immigration during the 19th century, particularly into the USA, that it was declared a “natural right of every free person who owes no debts and is not guilty of crime”.14 However, despite the extent of immigration into the country, it remained an undertaking of privileged European classes.15 Furthermore, although such instruments as the bilateral Treaty of Nanking facilitated the free movement of Chinese into Great Britain, it was borne largely out of the Empire’s need for a new “global working class” in the then recent absence of slavery.16 Given that these and other instruments did not embody the spirit of human rights, exemplified in human dignity, they are not proof of the right to freedom of movement in its truest sense as a personal liberty. In recent years, State powers have broadly turned against historically liberal attitudes towards human movement.

Ibid 33.

Ibid 35.

11 Bresnahan, above n 3.

12 McAdam, above n 2, 36.

13 Ibid 34.

14 Ibid 40.

15 Ibid 41.

16 Ibid.

9

10

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Triggered by 9/11, a movement of ‘securitarianism’ has grown out of the threat of terrorism and the supposed global war on drugs, as well as growing concerns for national security.17 Throughout history there have been turns for and against an expansive conception of freedom of movement. Moreover, what appear to be universal expressions of the right may in fact be limited.

III Regionalism Regional differences in the interpretation and practice of this right demonstrate the degree to which it is expansive. In Europe, for example, the European Convention on Human Rights has incorporated into Protocol No. 4, Article 2 the right to freedom of movement,18 which correlates closely with its counterpart in the International Covenant on Civil and Political Rights.19 In the 2003 case of Napijalo v Croatia,20 a man crossing the border from Bosnia and Herzegovina into Croatia failed to declare some items, which resulted in the seizure of his passport as per State law. The passport was not returned to him until two years later. The European Court of Human Rights agreed that the State had interfered with the man’s right to leave the territory but had, on the other hand, acted in “accordance with the law”.21 Ultimately, its failure to pursue the case and have the applicant charged meant that the State had lost all legitimate grounds on which to retain the passport. Thus, it ruled that their actions were unnecessary in a democratic society and that they had violated the man’s right to freedom of movement.22 Similarly, in Nalbantski v Bulgaria,23 the applicant was banned from leaving the country due to criminal proceedings pursuant to a 1998 (Bulgarian Identity Papers) Act. The Bresnahan, above n 3.

Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221 (entered into force 2 September 1953) as amended by Protocol No 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 16 September 1963, ETS No 5 (entered into force 2 May 1968).

19 International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976) art 12(3).

20 [2003] Eur Court HR 592.

21 Ibid [15].

22 Alastair Mowbray, Cases and Materials on the European Convention on Human Rights (Oxford University Press, 2007), 989.

23 [2011] Eur Court HR. 17 18

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court again held that this was a violation of his right to free movement. While travel restrictions could be necessary in order to prevent criminal activity, they were disproportionate and unjustified in this instance.24 These cases are indicative of the respect afforded to the European Convention on Human Rights and in particular, the right to freedom of movement. Wagner applauds both that the European society can grasp the gravity of this right and the fact that “states are willing to relinquish their sovereignty” to address them.25 Despite formalised limitations they provide evidence that the right to free movement is very much regionally expansive.

The right to freedom of movement and residence is enshrined in Article 22 of the American Convention on Human Rights, the South American equivalent of the European Convention on Human Rights. However, it differs in that it explicitly precludes the deportation of asylum seekers as an inherent right of freedom of movement.26 Interestingly, too, is the fact that several Latin American nations, Argentina and Ecuador among them, have recently legislated to open their borders in order to facilitate greater human movement into and out of their sovereign states.27 Argentina is noteworthy for having adopted and radically expanded upon Article 22, asserting in its own Law 25.871 that the “right to migrate is essential and inalienable to all” people.28 The way in which this law effectively guarantees protection to “all immigrants… regardless of legal status” is, as Hines highlights, “not found in the laws of any other… country nor… international human rights convention”.29 The considerable scope of their supranational human rights instrument and the examples set by such countries as Argentina illustrate that the right to freedom of movement in America is, prima facie, expansive.

Alejandro Saiz Arnaiz and Aida Torres Pérez, ‘Main trends in the recent case law of the EU Court of Justice and the European Court of Human Rights in the field of fundamental rights’ (Study, European Parliament’s Committee on Civil Liberties, Justice and Home Affairs, April 2012) 96.

25 Ursula B. Wagner, ‘Sovereignty and irregular migration: the dynamics of irregular movement through Colombia and Ecuador’ (Research Paper No 256, United Nations High Commissioner for Refugees, 2013) 2.

26 Organisation of American States (OAS), American Covenant on Human Rights ‘Pact of San Jose, Costa Rica (B-32)’, 22 January 1969.

27 Wagner, above n 22.

28 Barbara Hines, ‘The Right to Migrate as a Human Right: The Current Argentine Immigration Law’ (2010) 43 Cornell International Law Journal 472, 488.

29 Ibid 511.

24

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While Argentina’s achievements are laudable in theory, it could be argued that they have little basis in reality. Indeed, Hines further qualifies that the government is “yet to promulgate regulations… [to] ensure… implementation of the new law”.30 Moreover, in 2016 Argentina opened a migrant detention centre. Although not inherently wrong, some argue that it undermines the state’s liberal immigration stance. Law 25.871 allows for migrant detention only in rare cases. Seemingly in contradiction to this is the fact that the new centre will purportedly detain migrants on the basis of their irregularity.31 This raises the question of the extent to which Argentina and by extension, Latin America, is prepared to put their ostensible beliefs into practice.

Furthermore, other states in the region have evinced apparent non-committance to the American Convention through ‘containment’ policies, which effectively put pressure on and increase cases of irregular migration.32 In Case of Expelled Dominicans and Haitians v Dominican Republic,33 the Republic’s compliance with Article 22 was brought into question due to its history of collective and arguably arbitrary expulsion of citizens of Haitian descent. Despite legislation, which, as mentioned, sought to maintain the front of preserving human rights and a supra-national convention with supposedly binding powers, the republic’s practices illustrated a conflicting reality. In fact, violations were found with respect to Articles 22 (1), (5) and (9).34 In spite of policy changes and a regional shift in mentality towards greater liberty of movement, impediments continue to be put in place.

When Europe and Latin America are compared directly, two contrasting realities are exposed: one in which the right to freedom of movement is expansive and the other in which member states actively restrict it. Although this analysis is not exhaustive, generalisations can be made. In this case, they substantiate the argument that liberal movement does not exist in all regions in the ways envisioned by their respective instruments on a near-universal level. Therefore, given the large discrepancies both inter- and intra-regionally, the human right to freedom of movement is not expansive.

Ibid 473.

Bresnahan, above n 3.

32 Wagner, above n 22.

33 [2014] Inter-Am Court HR (ser C) 282, 155.

34 Organisation of American States (OAS), American Covenant on Human Rights ‘Pact of San Jose, Costa Rica (B-32)’, 22 January 1969.

30 31

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IV Interplay The right to freedom of movement is closely associated with others in the Universal Declaration of Human Rights, such as the rights to nationality (Article 15) and property (Article 17), and, in particular, freedom to seek asylum (Article 14). The right to freely leave a country (Article 13) enables one to ‘seek’ the asylum to which they are entitled under Article 14.35 As such, these two rights, and by extension the freedom of movement and international refugee law, are intrinsically linked. Epitomising the nexus that exists between freedom of movement and refugee law is the right of return. Although only a guiding principle and not explicitly entrenched in any legal instrument, this concept outlines that, based on articles 12(4) and 13(2) of the International Covenant on Civil and Political Rights and Universal Declaration of Human Rights respectively, refugees should be allowed to freely re-enter their home country. The issue of whether this right exists or is merely an aspiration is the subject of significant debate, particularly regarding the scope of the phrases, “his own” and “country”, and the parameters that should be placed on these.36 Rosand, an advocate for enforcing this as a right, argues that, “it’s important to make the right to return applicable in ‘all situations of displacement’”, for, he continues, “nothing in… any other international human rights instrument… forecloses such an interpretation”.37 Indeed, in Loizidou v Turkey,38 the European Court of Human Rights asserted that Loizidou, a refugee of the Turkish governed northern Cyprus, was able to retain legal ownership of her property, despite being in occupied territory. While this and other international cases do encourage the notion that the right of return is an expansive legal right, Saideman points out that the “subjective belief of a few states alone does not determine… international law”.39 It should also be noted that certain states, such as Serbia regarding the return of Kosovar refugees following The Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3rd sess, 183rd plen mtg, UN Doc A/810 (10 December 1948).

36 Eric Rosand, ‘The Kosovo Crisis: Implications of the Right to Return’ (2000) 18 Berkeley Journal of International Law 229, 235.

37 Ibid 238.

38 [1996] Eur Court HR 70.

39 Lewis Saideman, ‘Do Palestinian Refugees Have a Right of Return to Israel – An Examination of the Scope of and Limitations on the Right of Return’ (2004) 44 Virginia Journal of International Law 830, 845.

35

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the Kosovo War, â&#x20AC;&#x153;did not [accept their return] out of a subjective sense of legal obligationâ&#x20AC;? but rather from large-scale international military pressure.40 There is uncertainty over whether the right of return is being exercised or whether these occurrences depend wholly on external forces. This would suggest that freedom of movement is restrictive in its interplay with refugee law.

V Conclusion In principle, human rights are universal. Ultimately; however, their existence and expression depend on State interpretation. In the examples provided of historical development, regional differences and links with other fields, it is evident that national parameters can and do alter the extent to which this freedom of movement is, indeed, free. Although in many states it is very much upheld, encouraged and practised, this does not necessarily translate across borders. Fundamentally, this highlights the fact that human rights are not expansive but, in actuality, restrictive.

40

â&#x20AC;&#x160; Ibid 844.

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Female Genital Mutilation and Cosmetic Surgery: Conceptually Analogous Practices?

Grace Bettridge* This paper reviews the literature on the conceptually analogous nature of female genital mutilation (FGM) and cosmetic surgery, and reviews proposals for treating FGM as legal when performed on consenting adult women. The author argues that Australian law should be altered to reflect a mid-way/ middle-course approach, which allows adult women to undergo FGM or cosmetic surgery, although prohibits minors from undergoing either practice.

I Introduction Arguments against the toleration of female genital mutilation (FGM) are difficult to make where adult women are the subjects of the practice.1 This is because arguably adult women are capable of providing informed consent and therefore as autonomous agents (especially in Western liberal democracies) they should be able to choose to undergo FGM. 2 When discussing this topic an analogy is often drawn between FGM and cosmetic surgery on the grounds that these practices are conceptually similar. 3 In Australia, ‘[p]erforming FGM is a criminal offence in all jurisdictions, Grace is a first year Juris Doctor student and holds a Bachelor of Arts degree from the University of Western Australia.

1 Bhikhu Parekh, ‘Minority Practices and Principles of Toleration’ (1996) 30 The International Migration Review 251, 270.

2 Ibid.

3 Theodore Bennett, ‘“Beauty” and “the Beast”: Analogising Between Cosmetic Surgery and Female Genital Mutilation’ (2012) 14 Flinders Law Journal 49; Aileen Kennedy, ‘Mutilation and Beautification: Legal Responses to Genital Surgeries’ (2009) 24(60) Australian Feminist Studies 211; Ylva Hernlund and Bettina Shell-Duncan, Transcultural Bodies Female Genital Cutting in Global Context (Rutgers University Press, 2007); F J Green, ‘From Clitoridectomies to ‘Designer Vaginas’: The Medical Construction of Heteronormative Female Bodies and Sexuality Through Female Genital Cutting’ (2005) 7(2) Sexualities, Evolution and Gender 153; Christine Mason, ‘Exorcising Excision: Medico-Legal Issues Arising from Male and Female Genital Surgery in Australia’ (2001) 9 Journal of Law and Medicine 58; Sally Sheldon and Stephen Wilkinson, ‘Female Genital Mutilation and Cosmetic Surgery: Regulating Non-Therapeutic Body Modification’ (1998) 12(4) Bioethics 263; Atoki Morayo, ‘Should Female Circumcision Continue to Be Banned?’(1995) 3(2) Feminist Legal Studies 223. *

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regardless of the consent of the person to be subjected to it’. 4 In contrast, cosmetic surgery is generally permitted under the law. 5 The differential legal treatment of FGM and cosmetic surgery in Australia is reflective of a legal double standard that ideally should be resolved.

Firstly, this paper provides background information on FGM and cosmetic surgery. Secondly, it reviews the literature on the conceptually analogous nature of FGM and cosmetic surgery on the grounds that consent provided by adult women to undergo either practice can be questioned, and both practices can be viewed as harmful and oppressive. Given this analogy, this paper subsequently reviews the literature on proposals for treating FGM as legal when the practice is performed on consenting adult women. In conclusion this paper argues that the case for treating FGM and cosmetic surgery as conceptually analogous is persuasive, and thus Australian law should ideally be altered to allow adult women to choose to undergo FGM. II Background Information A FGM FGM is a contested, 6 umbrella term, defined by the World Health Organisation (WHO) as comprising of ‘all procedures involving the partial or total removal of the external female genitalia or other injury to the female genital organs for non-medical reasons’. 7 The WHO classifies FGM procedures into four categories.8 The severity of the procedures increases from category I (clitoridectomy), to category II (excision), to category III (infibulation). 9 Category four encompasses ‘all other harmful procedures to the female genitalia for non-medical purposes’. 10 Worldwide, it is estimated that between 100 and 140 million girls and women have undergone FGM and that Bennett, above n 3, 56.

Ibid 53.

6 The term female genital mutilation or FGM is criticised for its offensive connotations. Nevertheless, many utilise the term to emphasis the gravity of the practice. For instance, the term FGM is utilised by the Inter-African Committee on Traditional Practices Affecting the Health of Women and Children, and

by United Nations agencies. Other terms used, include female mutilation/cutting or FGM/C, and female circumcision, although they do not escape criticism: United Nations International Children’s Emergency Fund, Female Genital Mutilation/Cutting: A Statistical Overview and Exploration of the Dynamics of Change (2013), 6-7.

7 World Health Organization, Female genital mutilation: Fact Sheet (February 2016) <http://www.who.int/ mediacentre/factsheets/fs241/en/>.

8 Ibid.

9 Ibid.

10 Ibid.

4 5

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each year 3 million girls are at risk of undergoing FGM. 11 FGM ‘is most prevalent in: the western, eastern, and north-eastern regions of Africa, some countries in Asia and the Middle East and among certain immigrant communities in North America and Europe’. 12 The practice is most commonly performed on girls before the age of 15, 13 although is occasionally performed on adult women. 14 Several justifications are given for the age-old practice, such as: social acceptance, hygiene, the preservation of virginity, increased marriage prospects, increased sexual pleasure for men, and religious approval. 15 In Australia, FGM has been comprehensively criminalised by legislation in each state and territory. 16 It is even criminal for consenting adult women to undergo FGM. 17 In Australia, the prevalence of FGM, although difficult to gauge, is estimated to be low. 18 B Cosmetic Surgery Cosmetic surgery, which is disproportionately carried out on women, refers to a set of surgical procedures that are primarily aimed at improving one’s appearance.

19 These procedures are performed on various parts of the body20 and involve differing levels of interference. 21 Examples of these procedures include: liposuction (fat removal), facelift (facial skin tightening), 22 and forms of cosmetic genital surgery. 23 Cosmetic surgery is a relatively new phenomenon that has gained widespread legitimacy.

24 It is even increasingly common for procedures to be performed on adolescents. 25 It is estimated that that more than 9.5 million procedures were performed worldwide in

World Health Organization, Eliminating Female Genital Mutilation: An Interagency Statement (2008), 1.

Ibid.

13 United Nations International Children’s Emergency Fund, above n 6, 7.

14 World Health Organization, above n 11, 4.

15 United Nations International Children’s Emergency Fund, above n 6, 63-5.

16 Bennett, above n 3, 56.

17 Ibid.

18 Ian Patrick, ‘Responding to Female Genital Mutilation: The Australian Experience in Context’ (2001) 36 Australian Journal of Social Issues 15, 17; Mary-Jane Ierodiaconou, ‘“Listen to Us”!: Female Genital Mutilation, Feminism and the Law in Australia’ (1995) 20 Melbourne University Law Review 562, 564.

19 Bennet, above n 3, 52; Sheldon and Wilkinson, above n 3, 268; Atoki, above n 3, 228.

20 Atoki, above n 3, 228.

21 Bennett, above n 3, 53.

22 Ibid 52-3.

23 Kennedy, above n 3, 222; Hernlund and Shell-Duncan, above n 3, 19.

24 Bennett, above n 3, 53; Kennedy, above n 3, 211; Sheldon, above n 3, 269-70; Atoki, above n 3, 228.

25 Mary H McGrath and Wesley G Schooler, ‘Elective Plastic Surgical Procedures in Adolescence’ (2004) 15(3) Adolescent Medicine Clinics 487, 487.

11

12

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2015. 26 Justifications for cosmetic surgery focus on its therapeutic benefit, such as its ability to relieve ‘feelings of anxiety and alienation’, 27 and increase self-esteem and self-image. 28 In Australia, cosmetic surgery is routinely performed by medical professionals and is widely regarded as lawful. 29 III Literature Review A FGM And Cosmetic Surgery: The Analogy In Western nations, the criminalisation of FGM and the acceptance of cosmetic surgery can be viewed as a double standard, 30 due to the conceptually similar nature of these practices. 31 Kennedy argues that the West treats the two practices differently because cosmetic surgery is viewed as acultural and therapeutic, whereas FGM is viewed as cultural and nontherapeutic. 32 Similarly, Gunning argues that the West, an arrogant perceiver, treats the two practices differently because from its standpoint FGM, unlike cosmetic surgery, is a bizarre and barbaric practice that is performed by ‘others’. 33 Below, the conceptually analogous nature of FGM and cosmetic surgery is reviewed, on the grounds that consent provided by adult women to undergo either practice can be questioned, and both practices can be viewed as harmful and oppressive.

Australian law, a reflection of Western law more broadly, assumes that adult women cannot consent to FGM, but can consent to cosmetic surgery. Bennett challenges this assumption by firstly arguing that adult women should be able to consent to FGM, at least within Australia, and by secondly questioning the ability of Western women to consent to cosmetic surgery. 34 In relation to his first point, Bennett ar International Society of Aesthetic Plastic Surgery, Quick Facts: Highlights of the ISAPS 2015 Statistics on Cosmetic Surgery (2016) < http://www.isaps.org/Media/Default/global-statistics/ISAPSQuickFactsMS_V6%20(1).pdf>.

27 Kennedy, above n 3, 214.

28 Bennett, above n 3, 65.

29 Ibid 53.

30 Hernlund and Shell-Duncan, above n 3, 19; Birgitta Essén and Sara Johnsdotter, ‘Female Genital Mutilation in The West: Traditional Circumcision Versus Genital Cosmetic Surgery’ (2004) 83(7) Acta Obstetricia et Gynecologica Scandinavica 611, 612.

31 Bennett, above n 3; Kennedy above n 3; Hernlund and Shell-Duncan above n 3; Green, above n 3; Mason, above n 3; Sheldon and Wilkinson, above n 3; Atoki, above n 3.

32 Kennedy, above n 3, 226.

33 Isabelle R Gunning, ‘Arrogant Perception, World-Travelling and Multicultural Feminism: The Case of Female Genital Surgeries’ (1992) 23(2) Columbia Human Rights Law Review 189, 199.

34 Bennett, above n 3, 62-3.

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gues that in Australia the sociocultural pressure placed on adult women to undergo FGM doubtfully prevents the attainment of their valid consent. 35 In opposition to this, Parekh argues that it may be ‘on the whole unwise to allow exceptions [to an all encompassing ban on FGM]’, on the grounds ‘that the voluntary nature of the decision [to undergo FGM] is not easy to establish’. 36 He also argues that the decriminalisation of FGM when performed on adult women could lead to an increase in younger women illegally undergoing the practice. 37 Similarly, according to Atoki and Kennedy, many Western feminists view the reasoning put forth by women to undergo FGM as not genuine, as it is based on what men find appealing. 38 However, in line with Bennett’s second point, if the West is to question the capacity of adult women to consent to FGM, then it must also question the capacity of women to undergo cosmetic surgery. 39 Similarly, Kennedy questions the depiction of cosmetic surgery patients as being ‘highly autonomous and self-directed’. 40 Sheldon and Wilkinson even uncover support for the statement ‘no women can validly consent to it’, in application to both FGM and cosmetic surgery. 41 This suggests FGM and cosmetic surgery are analogous on the grounds that indirect and direct pressure can influence an adult woman’s decision to undergo either practice.

Unlike cosmetic surgery, the harmful consequences of FGM for women’s health are well documented and widely circulated. 42 According to the WHO as an immediate consequence of FGM ‘[a]lmost all…experience pain and bleeding’, and are at risk of long-term consequences such as chronic pain, infections, and psychological consequences. 43 In addition, according to the WHO, subjects of FGM are significantly more at ‘risk of adverse events during childbirth’. 44 Less well known, and subject to debate, are the harmful health consequences associated with cosmetic surgery.45 Bennett lists examples of these harms, which include, amongst others, the breaking of bone and cartilage, fat necrosis, and paralysis and death. 46 Given that both FGM Ibid 62.

Parekh, above n 1, 271.

37 Ibid.

38 Kennedy, above n 3, 223; Atoki, above n 3, 228-9.

39 Bennett, above n 3, 62-3.

40 Kennedy, above n 3, 211.

41 Sheldon and Wilkinson, above n 3, 263.

42 Bennet, above n 3, 57; Sheldon and Wilkinson, above n 3, 266-8.

43 World Health Organization, above n 11, 11.

44 Ibid.

45 Bennett, above 3, 57; Sheldon and Wilkinson, above 3, 266-8.

46 Bennett, above n 3, 57.

35 36

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and cosmetic surgery are associated with harms, Bennett, Mason and Green all draw parallels between the harms associated with both practices. 47 Bennett contends that both ‘involve the cutting and shaping of the body in physically harmful ways’,48 Mason contends that both can cause significant pain and scarring, 49 and Green contends that both can be associated with ‘painful intercourse, loss of sensitivity, scarring and excessive bleeding, and haemorrhage’. 50 Given that FGM and cosmetic surgery can be viewed as analogous on the grounds that both practices are harmful, Atoki notes that modern science could be applied to FGM (as applied to cosmetic surgery) so that women would be placed less at risk. 51 The patriarchal, sexist and oppressive nature of FGM, in contrast to cosmetic surgery, is widely noted. For instance, Cook, Dickens and Fathalla describe FGM as ‘the quest for control…of women’s sexuality’, 52 and, similarly, Alexi describes FGM as a practice that ‘removes the sexual identity of women’. 53 Atoki explains that the focus on the oppressive nature of FGM largely stems from the Western understanding that FGM - unlike cosmetic surgery, which is often understood as therapeutic54 - involves the removal of the clitoris, which consequently denies women sexual pleasure.

55 To refute this understanding, Atoki argues that other parts of the female body can be stimulated, and that ‘sexuality within the African context [unlike within the Western context] is linked with fertility and not orgasm’.56 Also, as Hernlund and Shell-Duncan note, research findings on whether FGM destroys female sexual pleasure are often ‘incomplete, contradictory, and difficult to interpret’. 57 For instance, Berg and Denison found that women who have undergone FGM are ‘more likely to experience increased pain and reduction in sexual satisfaction’. 58 However, others have found the Bennett, above n 3, 57; Mason, above n 3, 65; Green, above n 3, 175.

Bennett, above n 3, 57.

49 Mason, above n 3, 65.

50 Green, above n 3, 175.

51 Atoki, above n 3, 226-7.

52 R J Cook, B M Dickens and M F Fathalla, ‘Female Genital Cutting (Mutilation/Circumcision): Ethical and Legal Dimensions’ (2002) 79(3) International Journal of Gynecology and Obstetrics 281, 284.

53 Alexi Nicole Wood, ‘A Cultural Rite of Passage or a Form of Torture: Female Genital Mutilation from an International Law Perspective’ (2001) 12(2) Hastings Women’s Law Journal 347, 371.

54 Kennedy, above n 3, 226.

55 Atoki, above n 3, 230-1.

56 Ibid 231.

57 Hernlund and Shell-Duncan, above n 3, 30.

58 Rigmor C Berg and Eva Denison, ‘Does Female Genital Mutilation/Cutting (FGM/C) Affect Women’s Sexual Functioning? A Systematic Review of the Sexual Consequences of FGM/C’ (2012) 9 Sexuality Research and Social Policy 41, 41.

47 48

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reverse. For instance, Obermeyer called into question many of the detrimental effects on female sexuality that FGM is widely noted to have, 59 and Lightfoot-Klien found empirical evidence that FGM does not invariably destroy female sexual pleasure. 60 Less well noted is how cosmetic surgery can also be viewed as an oppressive practice, as discussed by Kennedy and Bennett. 61 Sheldon and Wilkinson discovered that the statement ‘it is an oppressive and sexist practice’ can apply to both FGM and cosmetic surgery. 62 Thus, both practices can be viewed as analogous on the grounds that a woman’s decision to undergo either practice is based on embedded beauty standards. 63 B Proposals For Legalising FGM On Consenting Adult Women Given the analogy that can be drawn between FGM and cosmetic surgery, Sheldon and Wilkinson suggest ‘that more careful thought be given to precisely why [FGM] is illegal for adult women’. 64 However, given the analogy, others have suggested more direct action be taken, in the form of legal change to allow adult women the choice to undergo FGM. In particular, Atoki, Bennett and Mason all argue in favour of a middle-course approach, which supports the criminalisation of FGM and cosmetic surgery when performed on minors, although not when performed on consenting adults. 65 Mason and Atoki argue that this approach protects children by recognising that they cannot consent to FGM (or cosmetic surgery), whilst it allows adult women the choice to undergo FGM.66 Atoki argues that this approach reflects a compromise between those supporting the ‘abolition, eradication and criminalisation’ of FGM and those that call for ‘the right to cultural determination’. 67 Under this approach, Bennett and Atoki emphasise the importance of obtaining valid consent from adult women wishing to undergo FGM. 68 Additionally, under this approach, Atoki emphasises the importance of limiting the performance of FGM to trained practitioners and approved settings. 69 The Public Policy Advisory Network on Female Genital Surgeries in Africa Carla Makhlouf Obermeyer, ‘Female Genital Surgeries: The Known, the Unknown, and the Unknowable’ (1999) 13 Medical Anthropology Quarterly 79, 94-6.

60 Hanny Lightfoot-Klein, ‘The Sexual Experience and Marital Adjustment of Genitally Circumcised and Infibulated Females in the Sudan’ (1989) 26(3) The Journal of Sex Research 375.

61 Bennett, above n 3, 64-6; Kennedy, above n 3, 221-4.

62 Sheldon and Wilkinson, above n 3, 263.

63 Ibid.

64 Ibid 284.

65 Bennett, above n 3, 68; Mason, above n 3, 67; Atoki, above n 3, 234-5.

66 Mason, above n 3, 67; Atoki, above n 3, 234.

67 Atoki, above n 3, 223-4.

68 Bennett, above n 3, 68; Atoki, above n 3, 234.

69 Atoki, above n 3, 234.

59

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takes a similar approach, holding that ‘adult women should be free to choose what makes them happy with their own bodies’, and in doing so asks that legislation that prohibits adult women from having genital surgeries be re-examined. 70 However, the Network makes no formal stance on whether legislation should prohibit the performance of FGM on children. The Network’s approach and the middle course approach recognise that adult women should be able to choose to undergo FGM. IV Critical Response to the Literature A FGM And Cosmetic Surgery: Conceptually Analogous Practices When preformed on adult women, a convincing case exists for viewing FGM and cosmetic surgery as conceptually analogous. Firstly, a persuasive analogy can be drawn between the practices on the grounds that consent provided by adult women to undergo either practice can be questioned. 71 This runs counter to the Western based understanding that adult women can consent to cosmetic surgery and cannot consent to FGM. 72 The Western based understanding is not persuasive, given the reality that both FGM and cosmetic surgery are culturally embedded practices, and therefore are both practices that women may be indirectly or directly pressured into undertaking, as found by Sheldon and Wilkinson. 73 Given this, Bennett’s argument that adult women should be able to legally consent to FGM, alike to cosmetic surgery, in the context of Australia, is persuasive. 74 However, it is uncertain whether decriminalising the performance of FGM on adult women could lead to an increase in younger women illegally undergoing FGM, as Parekh suggests. 75 This would be problematic, as minors cannot provide informed consent. Nevertheless, there is no concrete evidence supporting the application of this theory in Australia. Secondly, a persuasive analogy can be drawn between FGM and cosmetic surgery on the grounds that they are both harmful practices, as they involve ‘cutting and shaping’ and both result in side effects such as pain and scarring. 76 This calls into question the West’s well-informed position on the harmful consequences of FGM in contrast to its less well-informed position on the The Public Policy Advisory Network on Female Genital Surgeries in Africa, ‘Seven Things to Know about Female Genital Surgeries in Africa’ (2012) 6 Hastings Center Report 19, 25.

71 Bennett, above n 3, 62-3; Kennedy, above n 3, 211; Sheldon and Wilkinson, above n 3, 266-8.

72 Kennedy, above n 3, 23; Parekh, above n 1, 271; Atoki, above n 3, 228-9.

73 Sheldon, above n 3, 263.

74 Bennett, above n 3, 62-63.

75 Parekh, above n 1, 271.

76 Bennett, above n 3, 57; Mason, above n 3, 65; Green, above n 3, 175.

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harmful consequences of cosmetic surgery. Finally, a persuasive analogy can be drawn between FGM and cosmetic surgery on the grounds that they are both oppressive practices, 77 as women may choose to undergo them in order to meet culturally embedded beauty standards. Thus, the Western based understanding of cosmetic surgery as acultural and therapeutic78 is brought into question. Conflicting research findings also bring into question the Western perception that FGM is a sexually oppressive practice.

79 Overall, the case for viewing FGM and cosmetic surgery as conceptually analogous is persuasive.

Arguments against the conceptually analogous nature of FGM and cosmetic surgery are fairly weak, as they are reflective of a Western based understanding, as recognised by Kennedy and Gunning. 80 This understanding is based on the idea that cosmetic surgery is therapeutic practice and FGM is a life threatening, patriarchal and non-therapeutic practice. This reflects the West’s ‘us’ versus ‘them’ mentality, which it arrogantly employs to legally justify its own practice of cosmetic surgery and to criminalise FGM, a practice of ‘others’. 81 B Adopting The ‘Mid-Way’/’Middle-Course’ Approach Under Australian Law If FGM and cosmetic surgery, when performed on adult women, are conceptually analogous practices, then it logically follows that the practices should be treated in a similar manner under Australian law. Given that Australia is a Western liberal democracy, adults should largely be treated as autonomous agents, and thus a blanket ban on both practices would be illiberal, as it would restrict the choices available, mostly, to adult women. It would also likely drive cosmetic surgery underground, as has arguably already occurred with FGM following its criminalisation. 82 Thus, the mid-way/ middle-course approach suggested by Atoki, Bennett and Mason appears logical. 83 This is because this approach, which is reflective of a compromise between FGM abolitionists and cultural determinists, 84 allows adult women the freedom to choose to undergo cosmetic surgery or FGM. In relation to FGM, this protects women’s rights to Bennett, above n 3, 64-6; Kennedy, above n 3, 221-4; Sheldon, above n 3, 263.

Kennedy, above n 3, 226.

79 Hernlund, above n 3, 30.

80 Kennedy, above n 3; Gunning, above n 3.

81 Gunning, above n 3, 199.

82 Patrick, above n 18, 22.

83 Bennett, above n 3, 68; Mason, above n 3, 67; Atoki, above n 3, 234-5.

84 Atoki, above n 3, 223-4.

77 78

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cultural life and/or religious freedom. At the same time, this approach restricts minors from undergoing these practices, and thus protects their rights to bodily autonomy and integrity, life and health, amongst other rights. The ban on minors undergoing these practices is certainly warranted as they are unable to provide informed consent and are thus in need of the laws protection, as recognised by Mason and Atoki. 85 In Australia, the introduction of this approach would have the effect of banning the current performance of cosmetic surgery on adolescents and introducing FGM as an option for adult women, through legislation at the state and territory level. In theory, the former is an easier accomplishment than the latter, due to the less contentious nature of cosmetic surgery in contrast to FGM. In regards to introducing the option of FGM for adult women, a discussion of the unrealistic nature of this proposal is left out of the literature on the mid-way/middle course approach. Due to the contentious nature of the subject of FGM in Australia, a proposal to decriminalise FGM when performed on adult women would unlikely gain widespread public support. Unsurprisingly, the majority of citizens are likely to have a Western based understanding of FGM, and thus view it as a harmful and oppressive practice to which no adult woman could possibly give informed consent. Thus, a bill to legalise FGM when performed on adult women would unlikely be given proper consideration by most politicians, and unlikely to be passed, as neither major party would support it. In addition, although it has yet to be tried, it is unlikely that Australian courts would find consent to be a defence for FGM when performed on adult women. This is because, as argued by Mason, FGM would probably be considered as ‘intolerable as a matter of public morality’, alike to sadomasochism, in line with the persuasive precedent set

by R v Brown, in the House of Lords. 86 Therefore, it is unlikely that FGM performed on adult women be legalised by Australian parliaments or considered defensible by Australian courts in the near future.

Even if FGM performed on adult women were decriminalised or defensible under Australian law, it would need to be regulated, alike to cosmetic surgery, as recognised by Bennett and Atoki, to ensure the subjects of the practice provided valid consent, practitioners performing the practice were trained, and settings met approved standards, 87 amongst other matters. Whilst this seems theoretically possible, it would Mason, above n 3, 67; Atoki, above n 3, 234.

Mason, above n 3, 65.

87 Bennett, above n 3, 68; Atoki, above n 3, 234.

85 86

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result in the medicalisation of FGM. This would decrease the risk posed to women,88 as noted by Atoki. However, it would also change how FGM is traditionally practiced.

It is therefore questionable whether any or many adult women would undergo FGM under this approach if it were implemented.

V Conclusion When performed on adult women, FGM and cosmetic surgery are conceptually analogous practices on the grounds that consent provided by women to undergo either practice can be questioned, and both practices can be perceived as harmful and oppressive. Given this, ideally Australian law should be altered to reflect a mid-way/ middle-course approach, which allows adult women to undergo FGM or cosmetic surgery, although prohibits minors from undergoing either practice.

88

â&#x20AC;&#x160; Atoki, above n 3, 226-7.

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Policy Considerations in Cases of Television Reception Interference

POLICY CONSIDERATIONS IN CASES OF TELEVISION RECEPTION INTERFERENCE: A Right to Unimpeded Viewing of The Bachelorette?

Warren Hennessy*

Policy considerations are arguments that work towards achieving economic, political or social goals that are in the public interest.1 In Jones v Powell, a private nuisance case in which the plaintiff’s papers were damaged by fumes emanating from a brewery, the court thankfully looked to wider policy issues when it emphatically stated that ‘it is better that they [the plaintiff’s papers] should be spoiled than that the common wealth stand in need of good liquor’.2 Essentially, policy considerations deal with the wider social (including apparently the steady supply of high quality alcohol) and economic consequences for a decision.3 Policy considerations may be used to justify a legal decision on the grounds that it would benefit the community as a whole, rather than the individual parties concerned in the case.4 In the context of the tort of private nuisance, policy considerations are normally tied up in discussions of reasonableness and ‘reasonable user’ which are key components of the nuisance inquiry.5 Importantly, such considerations often pull in opposite directions. If the alleged nuisance benefits the public, it is poor policy to stop it, but if an activity which amounts to a private nuisance is allowed to continue, the claimant’s private right is allowed to override the public interest without com* Warren is a Juris Doctor student and holds a Bachelor of Arts and a Bachelor of Education from the University of Western Australia.

1 Ronald Dworkin, Taking Rights Seriously (Harvard University Press, 1977), 22.

2 Jones v Powell (1629), extracted in J.H. Baker and S. Milsom, Sources of English Legal History (Butterworths, 2nd ed., 2010), 660.

3 Julia Davis, Connecting with tort law (Oxford University Press, 2012), 50.

4 A MacAdam and J Pyke, Judicial Reasoning and the Doctrine of Precedent in Australia (1988), 285 citing MacCormick, Legal Reasoning and Legal Theory (1978).

5 G Williams, ‘Importance of Public Policy Consideration in Judicial Decision-Making’ (2000) 25 International Legal Practitioner 134, 139.

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pensation.6 In considering issues of public policy, therefore, the courts must balance two reasonable, but conflicting, interests.7 In line with this, Burrough J conservatively referred to public policy as a ‘very unruly horse, and when once you get astride it you never know where it will carry you’.8 Within the Australian context, some academics have argued for greater, not less, consideration of wider policy issues.9 Dan Svantesson, Associate Professor in the Faculty of Law at Bond University, colourfully stated that ‘the good of society as a whole should not be sacrificed on the altar of judicial expediency serving the parties’ and that courts should always be mindful of the wider consequences of their decisions.10 Bridlington Relay Ltd v Yorkshire Electricity Board, a private nuisance case involving electromagnetic interference to the plaintiff’s television reception, addressed a number of policy considerations. It will be argued that Bridlington is not likely to be persuasive authority in Australia and also that, due to changing social circumstances, the same policy considerations may not be accepted today.

I Policy Considerations Against Imposing Liability There are a number of policy considerations against imposing liability in cases of television reception interference. Firstly, in Bridlington, the court was heavily persuaded by Yorkshire Electricity Board’s need to bolster Bridlington’s electricity needs as the town at the time was relying on only two transformers to service the entire area.11 In his judgment, Buckley J considered the costs involved in diverting the line further from the plaintiff’s aerial (so as to avoid interference) and hinted that the costs involved in laying the length of the line underground (to completely avoid interference) would have been prohibitive.12 Furthermore, in the Canadian case of Nor-Video, the Canadian town of Atikokan was in dire need of updating its power transmission line system in order to meet the future electrical needs of the community and the court also gave consideration to the significant costs that Hydro would have been subjected Mark Lunney and Ken Oliphant, Tort law: text and materials (Oxford University Press, 5th ed., 2013), 623.

7 Danuta Mandelson, The new law of torts (Oxford University Press, 3rd ed., 2014), 744.

8 Richardson v Mellish (1824) 130 ER 294 (Burrough J).

9 Dan Svantesson, ‘Australian Courts Shying Away From Policy Considerations’ (2012) 50 Law Society Journal 74, 74.

10 Ibid.

11 Bridlington Relay Ltd v Yorkshire Electricity Board [1965] Ch 436, 428 (Buckley J).

12 Ibid 440 (Buckley J).

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to in re-routing the line to avoid the interference.13 Secondly, in Bridlington as well as other private nuisance cases, the policy consideration of indeterminacy is raised where the courts highlight the possible unfairness of subjecting a defendant land owner to indeterminate liability.14 Essentially, the argument is that important projects would not be undertaken if managers are unable to calculate their true costs.

In a more recent television interference case, Hunter v Canary Wharf, the House of Lords considered and were strongly persuaded by policy considerations relating to the overall economic benefits in refusing to impose liability in private nuisance. The Isle of Dogs region, which was the area affected by the Canary Wharf tower, was economically downtrodden and construction in the area intended to attract capital investment, revitalise the area and promote economic recovery.15 In being persuaded by such policy considerations, the majority in Hunter treated television interference in the same way as buildings affecting views. In justifying his decision, Lord Lloyd referred to the oft quoted passage from Lord Hardwicke that ‘there could be no great towns; and I must grant injunctions to all the new buildings in this town’.16 The majority view in Hunter, therefore, is founded on floodgate and indeterminacy policy considerations.17 If an exception were to be created for large buildings which interfere with television reception, it was argued the developers would be exposed to legal action by an unknowable number of plaintiffs and that defending such actions not be cost-effective.18 Ursula Cheer has argued that the House of Lords in Hunter gave too much credit to this policy issue19 and others are doubtful that this policy consideration should even provide a justification for the denial of liability in private nuisance.20

Nor-Video Services v Ontario Hydro (1978) 84 DLR (3d) 221, [4] (Robins J).

Anthony Mason, ‘Courts and Community Values’ (1996) 6 Eureka Street 32, 33.

15 Maria Lee, ‘Hunter v Canary Wharf Ltd (1997)’ in Charles Mitchel and Paul Mitchell (eds), Landmark Cases in the Law of Tort (Hart, 2010), 315.

16 Attorney-General (ex rel. Gray’s Inn Society) v Doughty (1752) 2 Ves.Sen. 454 (Lord Hardwicke LC).

17 Ursula Cheer, ‘Private Nuisance Clarified’ (1997) 5 Torts Law Journal 141, 142.

18 Hunter v Canary Wharf Ltd [1997] 2 WLR 684, 712.

19 Cheer, above n 17, 146.

20 Ken Oliphant, ‘Unblurring the boundaries of nuisance’ (1998) 6 Tort Law Review 21, 23.

13 14

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II Policy Considerations in favour of Imposing Liability Bramwell B asserted in Bamford v Turnley that ‘the public consists of all the individuals in it, and a thing is only for the public benefit when it is productive of good to those individuals on the balance of loss and gain to all’.21 In the Australian context, Scholl J declared in Munro v Southern Dairies Ltd that the public utility of a business undertaking ‘is insufficient to justify what otherwise would be a nuisance’.22 These cases show that, while there are convincing policy considerations against imposing liability, they often are not strong enough to override private interests in the use and enjoyment of land.

In the context of television interference, the court in Nor-Video conceded that Hyrdo was an ‘important public utility’ but that this alone was not sufficient to avoid the imposition of liability in private nuisance.23 The court explained that the social utility of Hydro’s undertaking ‘does not provide, as argued, justification for the infringement in this case of private interests’.24 In arguing this point, the court also referred to the social value of uninhibited television reception and that this was especially true given the remoteness of the affected community.25 The utilitarianism argument, therefore, has not found favour and modern courts have thankfully been slow to extinguish private rights.26 Where the social utility of an interference is overwhelming, it is argued that this should be made expressly clear in statute by Parliament27 or that the cost should be spread among the public who reap the benefit, by way of the defendant’s liability in damages being passed on to the public in the form of higher charges for the defendant’s services.28

Bamford v Turnley (1862) 122 ER 27, 27 (Bramwell B).

Munro v Southern Dairies Ltd [1955] 332, 337 (Scholl J).

23 Nor-Video Services v Ontario Hydro (1978) 84 DLR (3d) 221, [38].

24 Ibid [40].

25 Ibid [28].

26 Mark Lunney and Ken Oliphant, Tort law: text and materials (Oxford University Press, 5th ed., 2013), 627.

27 K Barker and Francis Trindade, et al. The law of torts in Australia (Oxford University Press, 5th ed., 2012), 196.

28 Rosalie Balkin, and J Davis, Law of torts (LexisNexis, 5th ed., 2013), 474.

21 22

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III Liability for Television Reception Interference in the Australian Context The current position as to whether or not electromagnetic inference with television reception is an actionable nuisance is unclear as there has not yet been a case before the courts. Interestingly, Australian towns such as Apollo Bay in southwestern Victoria are currently experiencing significant television reception interference due to the construction of a number of 4G radio towers. Of further interest is Colac TV Antenna Service, a local business that operates an analog television relay tower of a similar variety as that in Bridlington and Nor-Video, the owner of which has reportedly received a significant number of complaints from customers who have not been able to access their television service.29 It is argued here that if this matter were to reach the courts, Australia would likely deviate from the Bridlington position and favour the reasoning in the Canadian decision in Nor-Video.30 Firstly, television viewing has now become part of the ordinary use of land and should no longer be considered as merely recreational as it once was.31 In Nor-Video, Robins J reasoned that ‘whatever may have been the situation in England at the time of Bridlington, in my opinion it is manifest that in Canada today television viewing is an important incident of ordinary enjoyment of property and should be protected as such’.32 Clearly, this reasoning must also be applied in our context almost four decades after the Canadian decision.33 Today, Australians spend an average of three hours and 20 minutes viewing television per day with over 13.2 million television sets being sold in this country over the last five years. This view was also supported more recently in Hunter v Canary Wharf whereby Lords Goff, Lloyd, Hoffmann and Cooke highlighted that television is a very important function in the lives of ordinary people.34 For those viewers glued to their screens during the season finale of The Bachelorette, Lord Goff’s statement that television ‘transcends the function of mere entertainment’ is unfortunately all too true.35 Lucy Battersby, ‘New mobile signals block TV reception in Victoria, South Australia coastal towns’, Sydney Morning Herald (online), 6 September 2015 <http://www.smh.com.au/digital-life/digital-life-news/ new-mobile-signals-block-tv-reception-in-victoria-south-australia-coastal-towns-20150111-12m912. html>.

30 Nor-Video Services v Ontario Hydro (1978) 84 DLR (3d) 221.

31 John Murphy, The law of nuisance (Oxford University Press, 2010), 38.

32 Nor-Video Services v Ontario Hydro (1978) 84 DLR (3d) 221, [26] (Robins J).

33 FreeTV Australia, Free TV Today, 13 September 2015, <http://www.freetv.com.au/SiteMedia/w3svc751/ Uploads/Documents/Free_TV_Australia_FREE_TV_TODAY-1.pdf>.

34 Cheer, above n 17, 141.

35 Hunter v Canary Wharf Ltd [1997] 2 WLR 684, 684 (Lord Goff).

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Secondly, while the majority in Hunter decided that there can be no actionable private nuisance in interrupting television reception as a result of the ‘mere presence’ of a building, they did not rule out that interference with television reception can never amount to an actionable nuisance.36 On this point, Lord Cooke stated that ‘in appropriate cases, television … should be protected by the law of nuisance’.37 Lord Goff observed that for nuisance to be actionable, there must be something more than the mere presence of a building and will generally arise ‘from something emanating from the defendant’s land’. Academics have clearly made a distinction between interference caused by the presence of buildings, such as Canary Wharf, and cases such as Nor-Video whereby the interference is caused by electromagnetic radiation.38 More recently, growing awareness of interference with television signals was highlighted in the case of Network Rail Infrastructure Ltd v Morris. This case recognises that electromagnetic interference from a section of a railway signaling system can be an actionable nuisance.39 While Professor Bradbrook was writing before the decision in Hunter, he was optimistic that the Nor-Video case would likely be followed in an Australian court40 and given the fact that the House of Lords did not rule out other kinds of electrical interference, there is little reason to doubt Bradbrook’s reasoning. Therefore, while there may be some difficulty in finding liability in private nuisance for interference with television reception caused by the ‘mere presence’ of buildings, the door is clearly open for other kinds of interference such as electromagnetic to be actionable.

Janet O’Sullivan, ‘Nuisance in the House of Lords – Normal Service Resumed’ (1997) 56 Cambridge Law Journal 483, 483.

37 Hunter v Canary Wharf Ltd [1997] 2 WLR 684, 719 (Lord Cooke).

38 John Wightman, ‘Nuisance – The Environment Tort – Hunter v Canary Wharf in the House of Lords’ (1998) 61 Modern Law Review 870, 871.

39 Network Rail Infrastructure Ltd v Morris (t/a Soundstar Studio) [2004] EWCA Civ 172.

40 Adrian Bradbrook, ‘Liability in Nuisance for the Operation of Wind Generators’ 1 (1984) Environmental and Planning Law Journal 128, 141.

36

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Is ‘Maleness’ Inherent in Tort Law Principles?

IS ‘MALENESS’ INHERENT IN TORT LAW PRINCIPLES? Nicole Chung * Feminist jurisprudence has commonly criticized tort law for incorporating legal principles that typically perpetuate a distinctively ‘male’ perspective of the world. This paper examines the validity of the proposition through an analysis of the ‘reasonable person’ standard and the ‘no duty to rescue’ principle. This paper ultimately finds that the inherent ‘maleness’ of these legal principles in tort law stem from their historical roots, and is maintained through features of the common law legal system.

I Introduction Feminist legal scholars argue that tort law incorporates legal principles that perpetuate typically male understandings of the world. The author critically evaluates this proposition through an analysis of the ‘reasonable person’ standard and the ‘no duty to rescue’ principle that are commonly criticized by feminist legal scholars. The paper commences with an introduction to feminism, feminist jurisprudence and its interaction with tort law. The paper then analyses the ‘reasonable person’ standard and the ‘no duty to rescue’ principle. The author ultimately concludes that tort law principles are inherently ‘male’.

II Feminism, Feminist Jurisprudence And Tort Law A An Introduction to Feminism, Feminists and Feminist Theories Patriarchy is the social structure that feminism attempts to deconstruct. 1Feminist scholars are concerned with educating both men and women about the ‘patriarchy’ through feminist theories in a process termed ‘frame-bursting’.2 Hence, feminist

* Nicole is a first year Juris Doctor student and holds a Bachelor of Commerce from the University of Western Australia.

1 Leslie Bender, ‘A Lawyer’s Primer on Feminist Theory and Tort’ (1988) 38 Journal of Legal Education 3, 5-6.

2 Ibid 9.

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methodologies such as ‘consciousness-raising’ are designed for the above purpose. 3 Generally, most feminist theories relate to the public-private dichotomy, sex-gender difference4 and the diversion of moral ethics between men and women in life. 5 B Feminism and the Law: The Rise of Feminist Jurisprudence Feminist scholars began directing their attention to law in the 1960s, as they believe that law is an institution crucial in perpetuating patriarchy. 6 Feminist jurisprudence examines the ‘relationship between law and society from the point of view of all women’. 7 It includes compensatory scholarship that seeks to fill in the gaps left by male legal scholars, criticises the law for the exclusion of women and the use of ‘patriarchally based assumptions’ that oppresses women, collects information for women regarding their experiences of law, and conceptualises feminist methods to help appreciate and scrutinize law. 8 C Feminist Jurisprudence and its Role in Tort Law Feminist jurisprudence has focused on tort law due to its flexibility and adaptability in responding to changing social conditions in everyday life. 9 Feminist legal scholars argue that feminist theories aid in the understanding of how tort law has been developed. 10 The feminist critique of the tort system is concerned with ‘justice’.

11 Ultimately, feminist legal scholars ‘challenge the assumption that tort law is fair’.

12 They argue that tort law perpetuates a distinctively ‘male’ perspective in terms of the language used, the mode of analysis adopted and the values it promotes. 13 If tort law were to be revised, it would require ‘new categories of analysis, new words, new

Ibid.

Ibid 25-7.

5 Carol Gilligan, In a Different Voice: Psychological Theory and Women’s Development (Harvard University Press, 1982).

6 Bender, above n 1, 10.

7 Heather Ruth Wishik, ‘To Question Everything: The Inquiries of Feminist Jurisprudence’ (1985) 1(1) Berkeley Women’s Law Journal 64.

8 Ibid 67.

9 Sherilyn J Pickering, ‘Feminism and Tort Law: Scholarship and Practice’ (2010) 29 Windsor Review of Legal and Social Issues 227, 235.

10 Bender, above n 1, 37.

11 Joanne Conaghan, ‘Tort Law and the Feminist Critique of Reason’ in Anne Bottomley (ed), Feminist Perspectives on the Foundational Subjects of Law (Cavendish, 1996) 47.

12 Ibid.

13 Sherilyn J Pickering, above n 9, 236.

3 4

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perspectives and new values’.14 Feminist legal scholars commonly criticize the ‘maleness’ of the ‘reasonable person’ standard and the ‘no duty to rescue’ principle in tort law. However, does the feminist critique hold true?

III Analysing Feminist Critiques On Tort Law Principles: The ‘Reasonable Person Standard’ And The ‘No Duty To Rescue’ Principle A The ‘Reasonable Person’ Standard 1 What is the ‘Reasonable Person’ Standard?

Prior to the enactment of the Civil Liability Act 2002 (WA) (Civil Liability Act), the ‘reasonable person’ standard was formerly known as the ‘reasonable man’ standard. 15 It has been described as the ‘man on the Clapham omnibus’, 16 the ‘man on the Bondi tram’, 17 the ‘reasonable man of ordinary intelligence and experience’, 18 and ‘the man who takes the magazines at home and in the evening pushes the lawn mower in the shirt sleeves’. 19 The ‘reasonable person’ or ‘formerly reasonable man’ standard, essentially ‘sets down the maximum permissible level of human failing’ that a defendant’s negligent conduct is measured against. 20 The standard achieves this function by providing an objective, abstract notion that encourages conformity to the standard of ‘ordinariness’ and rejecting individual idiosyncrasies. 21 The essence of this standard’s usefulness lies in its ‘abstractness’, ‘objectivity’ and ‘ability to moderate its conduct squarely within current social practice’. 22 2 The ‘Maleness’ Of the Original ‘Reasonable Man’ Standard The first inquiry relates to whether the original ‘reasonable man’ standard represents an abstract, universal concept for both men and women. Professor Bender, a prominent feminist legal scholar, argue that ‘man’ is not a gender-neutral word, and that the ‘reasonable man’ standard was originally conceptualised for and from men Bender, above n 1, 37.

Wyong Shire Council v Shirt (1980) 146 CLR 40, 47-8.

16 McGuire v Western Morning News Co Ltd [1903] 2 KB 100 per Collins MR at 109.

17 Papatonakis v Australian Telecommunications Commission (1985) 156 CLR 7 per Deane J at 36.

18 Glasgow Corporations v Muir [1943] AC 448 per Lord MacMillan at 457.

19 Hall v Brookland Auto Racing Club [1933] 1 KB 205 per Greer LJ at 22.

20 Wendy Parker, ‘The Reasonable Person: A Gendered Concept’ (1993) 23(2) Victoria University of Wellington Law Review 105, 106.

21 Ibid 107.

22 Ibid.

14 15

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alone. 23 The case of Vaughan v Menlove24 originated the ‘reasonable man’ standard.

At the that time women enjoyed impaired legal capacity such as restricted participation in the democratic voting process.25 Furthermore, in relation to the public-private distinction, men were considered active participants in the public domain involving economic activity, whereas women were involved in the private sphere of domestic housework. 26 Therefore, most, if not all tortious claims, were brought by male plaintiffs. 27 The legal profession, in terms of judiciary and practitioners were comprised exclusively of men. 28 Hence, the feminist argument appears to hold true in that the original ‘reasonable man’ standard was developed solely for and from men alone.

3 From the ‘Reasonable Man’ to the ‘Reasonable Person’: Has Much Changed?

The second inquiry questions whether the transition from the ‘reasonable man’ standard to the ‘reasonable person’ standard substantially changes the inherently ‘male’ nature of the former standard.

Professor Bender argues that the transition from the ‘reasonable man’ to the ‘reasonable person’ standard only makes the term ‘politically correct’, embeds instead of exorcises the underlying ‘male’ character of the former standard. 29 Cases post-enactment of the Civil Liability Act, such as Vairy v Wyong Shire Council30 continually reference back to the previous ‘reasonable man’ standard. This implies that the former, inherently ‘male’ ‘reasonable man’ standard is still used to guide judges and legal practitioners’ understanding of the new ‘reasonable person’ standard. However, it is unfair to claim that women’s perspectives are not taken into account when applying and interpreting the ‘reasonable person’ standard currently for two reasons. Firstly, women nowadays are more or less equally active participants in the workforce or ‘public’ sphere, which would see a larger number of female plaintiffs bringing tortious claims to the court. Secondly, the current legal profession contains a Bender, above n 1, 22-3.

(1837) 132 ER 490 (‘Vaughan’).

25 Wendy Parker, above n 21, 108.

26 Ibid.

27 Ibid.

28 Bender, above n 1, 22.

29 Ibid.

30 (2005) 223 CLR 422 (‘Vairy’).

23 24

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comparatively higher proportion of female lawyers than in the days of Vaughan. 31 The current High court of Australia has three female Justices out of seven, and is led by a female Chief Justice, Kiefel. Hence, it is most likely that women’s experiences and perspectives would be considered when determining what the ‘reasonable person’ is.

However, even with the higher representatives of women in the legal profession, there is concern that these women have been trained to think like their male counterparts, and hence propagate a ‘male’ rather than ‘female’ perspective. 32 As the ‘reasonable person’ was historically the ‘reasonable man’, there is a possibility that women are still being measured against a male standard of ‘reasonableness’, making the ‘reasonable person’ standard inherently male. 33 This argument finds favour from the principle of stare decisis and the use of precedents in the common law system. Prior standards of ‘reasonableness’ as established in case law during the ‘reasonable man’ standard would inform courts as to what action is regarded as reasonable. 34 Hence, it does appear that women’s actions are judged against what a reasonable man would do in those circumstances.

There is also an issue as to whether ‘reasonableness’ is a ‘male’ value. Western philosophy attributes logicality and rationality to men, emotion and intuition to women. Professor Bender opposes the use of the notion of ‘reason’ in the standard of care based on this reason-emotion dichotomy. 35 However, this argument is built on the yet to be proven premise that women are less reasonable than men. Her approach was criticised by fellow feminist Conaghan for encouraging, rather than dispelling gender stereotypes. 36 4 Conclusion: Is the ‘Reasonable Person’ Standard Inherently ‘Male’?

The former ‘reasonable man’ standard, which was formulated by men for men, perpetuates a wholly male perspective. The notions of ‘reasonableness’ of the former ‘reasonable man’ standard survives the transition to the ‘reasonable person’ standard due to the stare decisis principle and the use of judicial precedents in the common law system. Hence, female behaviour is still being measured against the stan Vaughan v Menlove (1837) 132 ER 490.

Bender, above n 1, 23.

33 Wendy Parker, above n 21, 110.

34 Vairy v Wyong Shire Council (2005) 223 CLR 422.

35 Bender, above n 1, 23.

36 Sherilyn J Pickering, above n 9, 242.

31 32

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dard of a ‘reasonable man’. Despite that, as women are being represented in greater numbers in the workforce and legal profession, it is most likely that women’s perspectives would gradually influence the ‘reasonable person’ standard. Whether ‘reason’ is ultimately a male value remains a philosophical question with no absolute answer.

Weighing all factors, the ‘reasonable person’ standard is most likely an extension of the ‘reasonable man’ standard, which embeds the ‘maleness’ of the former standard.

B The ‘No Duty to Rescue’ Principle 1 What is the ‘No Duty to Rescue’ Principle?

There is no legal duty to rescue in torts because tort law is hesitant to impose liability for pure omissions. In the drowning stranger hypothetical scenario, onlookers are not obliged by law to save the stranger. 37 The default position is that tort law should be confined to negative duties to uphold values of individual autonomy and freedom.38 The Stuart v Kirkland-Veenstra39 case, in which the court held that there is no duty for a police officer to rescue a suicidal man, illustrates the significance of individual autonomy and freedom in tort law. The tort law system also incorporates these values in the element of ‘control’ in the salient features test for novel fact situations.40 2 The ‘Male’ Origins of the ‘No Duty to Rescue’ Principle It was argued that modern courts have generally overlooked the fact that the ‘no duty to rescue’ doctrine has largely been created by a particular subset of men who are involved in ‘certain forms of socially unproductive, even foolhardy, behaviour’.

41 Hence, similar to the ‘reasonable person’ standard, the ‘no duty to rescue’ principle appears to also have an inherently ‘male’ origin.

Stovin v Wise [1996] 3 WLR 389.

Heiner Mommsen, ‘Time to Move On: The Case for Liability for Negligent Omissions’ (2005) 37 Bracton Law Journal 61, 62.

39 (2009) 237 CLR 215 (‘Stuart’).

40 Sullivan v Moody (2001) 207 CLR 562 (‘Sullivan’).

41 Peter F Lake, ‘Bad Boys, Bad Men, and Bad Case Law: Re-examining the Historical Foundations of NoDuty-to-Rescue Rules’ (1999) 43 New York Law School Law Review 385, 386.

37 38

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3 Feminist Critiques of the ‘No Duty to Rescue’ Principle Professor Bender, in reliance on Giligan’s findings that women value interconnectedness more than men, criticizes the current ‘no duty to rescue’ principle for viewing human relationships as ‘individualized’, ‘atomistic’ and ‘self-interested’. 42 She argues that if the feminist ethics of care was adopted, there would be an imposition of a general duty to rescue. 43 However, Schwartz, a non-feminist legal scholar condemns her arguments for three reasons. 44 Firstly, he argued that the imposition of a duty to rescue would take the form of a general rule, which is out of line with women’s ethics that favours an individualized contextual approach. 45 This argument seems to find favour from another feminist Cowie, who proposes an individualized contextual basis in determining duty to rescue instead of imposing a general duty. 46 Secondly, he noted that Bender’s treatment of Giligan’s findings focuses on examples where there is already a pre-existing relationship. He argues that ‘tort law in its existing form tends to recognise the existence of affirmative duties in cases of pre-existing relationship’. 47 This could be evidenced from the salient features test in tort law, which incorporates the element of ‘nature of relationship’ in determining whether a duty of care should be imposed in novel fact situations. 48 Thirdly, he uses statistical findings to claim that women are not necessarily more altruistic than men to disprove Bender’s argument. 49 4 Conclusion: Is the ‘No Duty to Rescue’ Principle Inherently ‘Male’?

Bender’s argument is essentially based on the premise that ‘individual autonomy and freedom’ are male ethics. If this premise does hold true, the current ‘no duty to rescue’ principle would perpetuate a male understanding of the world. However, there is doubt as to whether the imposition of a general duty to rescue would be in truly consistent with women’s ethics, as raised by both Schwartz and Cowie. Regardless of whether ‘individual autonomy and freedom’ are male ethics, the historical origins of Bender, above n 1, 30-3.

Ibid 34-5.

44 Gary T Schwartz, ‘Feminist Approaches to Tort Law’ (2001) 2(1) Theoretical Inquiries in Law 175, 195.

45 Ibid.

46 Sherilyn J Pickering, above n 9, 245.

47 Schwartz, above n 45, 196.

48 Sullivan v Moody (2001) 207 CLR 562.

49 Schwartz, above n 45, 197.

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the principle strongly suggest that the principle is inherently ‘male’.

IV Conclusion The tort law does incorporate legal principles, such as the ‘reasonable person’ standard and the ‘no duty to rescue’ principle which perpetuate a typically male understanding of how the world operates. The ‘maleness’ of these legal principles originates from their historical roots, and is maintained through the principle of stare decisis and use of precedents in the common law system. However, law is not static.

Even though these principles are inherently ‘male’, there is potential that they would change in accordance with evolving community standards, gradually incorporating females perspectives.

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The Remedy of Abatement: An Anachronism in the 21st Century?

THE REMEDY OF ABATEMENT: An Anachronism in the 21ST Century?

Mitchell Caubo* Abatement (or self-help) has existed for centuries as a common law remedy for nuisance. However, in 21st Century Australia it is one of limited application that creates significant uncertainty for those seeking to rely on it as an alternative to the courts. Abatement is not a viable substitute for legal proceedings, nor for the remedy of damages, and its treatment at by case law and NSW legislation reflect its anachronistic status in modern Australia.

In the 18th century, Sir William Blackstone stated that some forms of nuisance ‘require an immediate remedy; and cannot wait for the slow progress of the ordinary forms of justice’.1 This rationale evinces the need for the right of abatement (or selfhelp); a remedy that acts as an alternative to legal proceedings, allowing the injured party to remove a nuisance that does not allow for, or justify, the cost of engaging with the judicial process. 2 The exercise of this common law remedy has been limited and even condemned by subsequent case law and statute, so much so that its current relevance in 21st century Australia is somewhat dubious. However, it is clear that abatement is no longer an effective or necessary common law right in the law of nuisance.

I Scope and Application of Abatement The application of abatement in the 21st century is limited to a narrow area of nuisance. Lloyd LJ, in Burton v Winters, stated that the remedy is confined to emergencies or ‘simple cases such as an overhanging branch, or an encroaching root, which would not justify the expense of legal proceedings’.3 In that case it was considered that trespass by encroachment of a building was too complicated an issue for abatement to * Mitchell is a second year Juris Doctor student and holds a Bachelor of Arts from the University of Western Australia.

1 Sir William Blackstone, Commentaries on the Laws of England (Clarendon Press, 1765) vol 3, ch 1.

2 Burton v Winters [1993] 1 WLR 1077, 1081.

3 Ibid.

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apply. Excavations causing an erosion of land,4 and overflowing channels5 have also been considered nuisances capable of being abated. The remedy is also exercisable against nuisances before they have caused actual damage (i.e. that threaten damage)6 and actions of abatement must be reasonable in the circumstances. 7 In Richter v Risby, 8 it was not considered reasonable to use force against a person in order to abate a nuisance. A party may trespass on another’s land in order to abate a nuisance provided they have given notice (though this is not necessary in the case of an emergency).9 The right to abate is generally confined to these parameters and the issue of private nuisance created by neighbouring trees is the subject of the majority of recent case law.10 II An Appropriate Alternative To Legal Proceedings?

The primary function of abatement is to resolve a nuisance without recourse to the judicial system. This is to save unnecessary costs to both the parties and the courts, and allow for immediate action in the case of an emergency.11 However, it is this very function from which the issues with abatement stem. In the mid-12th century, courts in England began to handle the issue of nuisance in order to reduce the violent escalation of quarrels between individuals that often resulted from abatement.12 Concerns about the appropriateness of the remedy have continued to be raised by courts; that its use ‘inevitably tends to result in disorder’13 and is generally viewed as unfavourable or inadvisable by the law. 14 It is arguable that the remedy is able to reduce some demand on the judicial system and also serves a valuable purpose in saving time and resources. However, it is inevitable that not all parties will be amicable and therefore some cases are likely to escalate into legal action regardless of the remedy sought. Furthermore, it has been suggested in New South Wales that it is the uncertain Barbagallo v J & F Catelan [1986] 1 Qd R 245.

Traian v Ware [1957] VR 200.

6 Ibid 207.

7 Richter v Risby [1987] Tas R 36.

8 Ibid.

9 Traian v Ware [1957] VR 200, 207.

10 Robson v Leischke (2008) 72 NSWLR 98; Richmond City Council v Scantelbury [1991] 2 VR 38; Proprietors of Strata Plan No 14198 v Cowell (1989) 24 NSWLR 478; Young v Wheeler [1987] Aust Torts Reports 80-126.

11 Burton v Winters [1993] 1 WLR 1077, 1081.

12 Janet Loengard, ‘The Assize of Nuisance: Origins of an Action at Common Law’ (1978) 37(1) Cambridge Law Journal 144, 144-5.

13 Sedleigh-Denfield v O’Callaghan [1940] AC 880, 900 (Lord Atkin).

14 Lagan Navigation Co v Lambeg Bleaching, Dyeing and Finishing Co Ltd [1927] AC 226, 244 (Lord Atkinson).

4 5

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nature of common law remedies such as abatement that make it unlikely for people to be able to resolve their disputes. 15 While the remedy of abatement is intended to reduce the need for parties resorting to the courts to resolve a dispute, it often creates more problems than it solves.

Despite its function as an alternative to legal proceedings, abatement places a heavy burden on those seeking to utilise it. Lloyd LJ suggests in Burton v Winters that abatement is only available in a case where the court has not already refused or would not refuse a mandatory injunction.16 Therefore, an injured or threatened party must establish the existence of a nuisance, assess whether a court would provide an injunction if the matter were litigated and then ensure that the abatement is reasonable.17 The incorrect assessment of any of these could result in more issues occurring than if the injured party had simply applied to the court for a remedy in the first place.

The idea that the court’s decision in not granting an injunction may cause the plaintiff to lose the right to abate a nuisance is problematic. It means that if a person wishes to stop an interference they may as well abate the nuisance and then justify the action in court. While it may cost the abating party if they lose, the nuisance has been removed regardless of the court’s decision. This may be particularly effective if the nuisance regards trees, which take a long time to grow. The rules of abatement place a heavy burden on those seeking to exercise it and make it an attractive contingency to an unfavourable court decision.

III Abatement vs Damages Under Australian case law, the effect of abatement is to remove a nuisance, which generally leaves no cause of action except to claim damages suffered prior to the abatement.18 The costs of an abatement are usually not recoverable either.19 Sheahan argues that this approach means if you are aware that your neighbour’s tree is likely to collapse on your house, then it is better to let it happen rather than attempt to remove the risk at great expense – at least the damage to your house may be recoverable,

NSW Law Reform Commission, Neighbour and Neighbour Relations, Report No 88 (1998) [2.20].

[1993] 1 WLR 1077, 1082.

17 Richter v Risby [1987] Tas R 36.

18 Traian v Ware [1957] VR 200, 207.

19 Young v Wheeler [1987] Aust Torts Reports 80-126 68,966, 68,971.

15 16

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while you may not have any claim for costs of a successful abatement.20 However, in Proprietors of Strata Plan No 14198 v Cowell (‘Cowell’),21 Hodgson J argues that the capacity to claim damages can extend to costs of reasonably mitigating against the nuisance. In that case the issue was damage caused by encroaching tree roots, in which it was held that the costs of acts such as severing the roots and barrier wall construction were recoverable as reasonable costs of mitigating against the nuisance. Hodgson J also adds that the lack of favour borne by the law for abatement,22 refers primarily to that involving trespass onto another’s land and not to actions on one’s own property.23 This is a far broader interpretation of abatement; providing a more appropriate justification for its use. If abatement can be considered to be mitigation of a nuisance rather than only its removal, and the costs can be recovered, it is likely to be a more satisfactory remedy. However, this is only single judgement of the NSW Supreme Court, the first to make such a connection between abatement and mitigation,24 and therefore does not provide much certainty for application in the future exercise of the remedy.

The ability for an injured party to claim damages is an issue for the utility of abatement as a remedy. It must be considered that even Hodgson J’s approach in Cowell requires the intervention of the courts to assess reasonableness of the mitigation and the extent of damages.25 If the purpose of abatement is to act as an alternative to court proceedings, the increased capacity to recover damages somewhat reduces the effectiveness of the remedy. It begs the question whether abatement should apply at all in such circumstances or merely be where an action for damages is applicable. Regardless of whether a claim in damages has arisen (accompanied by abatement or not), the issue becomes subject to principles of damages, not abatement. The general rule is that every person who claims damages must to do everything reasonable to mitigate their loss (otherwise the court will deduct the value of what could have been mitigated from the total damages awarded).26 Therefore, whether an injured party seeking damages chooses to abate a nuisance or not, they are still required to mitigate its effect in order for an effective claim. This leaves abatement as a remedy only preferable to John Sheahan, ‘Use and Misuse of Legal History: Case Studies from the Law of Contract, Tort and Restitution’ (1998) 16(3) Australian Bar Review 280, 287.

21 (1989) 24 NSWLR 478, 486-7.

22 Lagan Navigation Co v Lamberg Bleaching, Dyeing & Finishing Co Ltd [1927] AC 226, 244.

23 Proprietors of Strata Plan No 14198 v Cowell (1989) 24 NSWLR 478, 487.

24 Ibid 486-7.

25 (1989) 24 NSWLR 478, 487-8.

26 Ardlethan Options Ltd v Easdown (1915) 20 CLR 285, 296.

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damages if a person does not wish to spend a copious amount of money on their abatement and wishes to avoid the courts. While it may be suitable for the mere cutting of overhanging branches, any serious abatement of nuisances such as encroaching roots or flooding would be far better handled under damages.

IV Intervention by the Legislature The difficulties with abatement have prompted calls for the intervention of the legislature in the law of nuisance. In 1895, Lord Herschell suggested this would be necessary if it became too common a practice between neighbours to cut overhanging branches as an exercise of their right to abate.27 A similar concern was expressed by Wood J in Young v Wheeler, nearly one hundred years later, who called for law reform to rectify the uncertainty of abatement and other remedies as well as provide a simple procedure for resolving disputes of neighbourly relations.28 This prompted enactment of the Trees (Disputes Between Neighbours) Act 2006 in NSW. It was introduced on the basis that the issues created by trees in neighbourhoods is a common issue that is not adequately managed by the common law remedies available.29 In effect the Act appears to prevent the exercise of abatement with regards to trees by removing the possibility of bringing an action in nuisance.30 It does not exclude the common law in all instances,31 but it significantly restricts its application. While this effectively requires mediation or, failing that, referral to the courts, it is a much more secure system than the abatement of old; where judgement is placed in the hands of an individual. The fact that some judges felt it necessary to call for intervention by the legislature, and the call was answered, reflects the serious issues created by the remedy. This legislation only affects NSW; however, its existence reflects the irrelevance of the right of self-help across 21st century Australia.

Lemmon v Webb [1895] AC 1, 4.

Young v Wheeler [1987] Aust Torts Reports 80-126 68,966, 68,972.

29 NSW Law Reform Commission, Neighbour and Neighbour Relations, Discussion Paper No 22 (1991); NSW, Parliamentary Debates, Legislative Assembly, 25 October 2006, 3502 (Bob Debus).

30 Trees (Disputes Between Neighbours) Act 2006 (NSW) s5; Neil Foster, ‘Trees and Nuisance in New South Wales’ (2007) 81(5) Australian Law Journal 291, 293.

31 Trees (Disputes Between Neighbours) Act 2006 (NSW) ss4(1)(a), 4(2).

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V Abatement as a Defence?

The use of abatement in emergency situations performs the function of a defence in the 21st century. The concept is that, in an urgent case, a person may abate a nuisance without first applying to the court.32 Therefore, in the event that another party sues for the trespass or any other actions taken in abatement, the abating party has a defence in court that such actions were to neutralise an immediate threat to life or health.33 This practical function of abatement was not considered by the NSW legislation,34 but this is where abatement proves to be an attractive common law right.

Therefore, it may be better placed to operate as a facet of the defence of necessity (trespass to land/chattels) rather than a remedy to nuisance. While it still requires a court to determine the existence of an emergency and the reasonable response, it has a much more appropriate application than the general right to abate.

VI Conclusion The right to abate a nuisance is an anachronism in the 21st century. It is a remedy that provides parties with an uncertain, limited method of rectification which may escalate into an involvement of the courts regardless of the original intentions of the abator. The remedy of damages is able to compensate for many issues created by nuisances, even where reasonable mitigation occurs, thereby limiting abatement’s effectiveness to the small, inexpensive removal of a nuisance. It is also clear from the intervention of NSW legislature into the common law that abatement is not suitable as a solution to as common and widespread an issue as trees and neighbourhood relations.35 This has robbed abatement of what is considered one of its primary functions.36 While abatement may be effective as a remedy in emergency cases, it is better placed as a defence to a suit in trespass. If abatement still has a place in 21st century Australia, it is no longer in the form of a separate common law remedy to nuisance.

Burton v Winters [1993] 1 WLR 1077, 1082.

Traian v Ware [1957] VR 200, 207; Jones v Williams (1843) 152 ER 764, 767.

34 Trees (Disputes Between Neighbours) Act 2006 (NSW).

35 NSW Law Reform Commission, Neighbour and Neighbour Relations, Discussion Paper No 22 (1991); NSW, Parliamentary Debates, Legislative Assembly, 25 October 2006, 3502 (Bob Debus).

36 Burton v Winters [1993] 1 WLR 1077, 1081.

32 33

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