Corpus Juris Semester 1 2021

Volume 1 2021

Corpus Juris

the QUTLS law review

Acknowledgements Corpus Juris would not exist without the dedication and hard work of the Media and Communications team. Acknowledgement must go to the following people: Alexandra White, Director of Media and Communications Ashton Darracott, Publications Officer Ciaran Grieg, Publications Officer Thank you to all of the students who submitted their work. Every submission was of an excellent quality.

Legal and Copyright Information The views expressed in publication are solely those of the authors, and do not represent the views of the Editors, the QUTLS, the QUT Faculty of Law, or QUT. The QUTLS does not warrant or represent that the legal information presented in this publication is accurate.

All work represented in this document is the intellectual property of the authors, and falls under the protections of Australian copyright law stated in MOPP at D/3.1. The works published were submitted for academic grading in the course of each author obtaining their university qualifications. Copying any part of any work could constitute academic misconduct under the academic integrity provisions in the QUT Manual of Procedures and Policies (MOPP). The QUTLS urges students to refresh their understanding of their academic obligations under Chapter C/5.3 of the MOPP. This is accessible through mopp.qut.edu.au.

Acknowledgement of Traditional Owners The Queensland University of Technology Law Society (QUTLS) acknowledges the Turrbal and Yugara, as the First Nations owners of the lands where QUT now stands. We pay respect to their Elders, lores, customs and creation spirits. We recognise that these lands have always been places of teaching, research and learning.

The QUTLS acknowledges the important role Aboriginal and Torres Strait Islander people play within the QUT community

Reconciliation Statement We recognise that Aboriginal and Torres Strait Islander peoples are the custodians of the land, and have a traditional association with the land in accordance with their laws and customs. We acknowledge that for reconciliation to be sustainable over time, local communities and institutions must support, and be involved in, the process. We are committed to inclusion, reconciliation and consultation to ensure the future of Australia is one where our First Peoples are afforded equal opportunity.

In 2021, the QUTLS welcomes commencing First Nations students, and wish you every success in your studies and beyond.

Table of Contents Editorial

03

Policy Submission: Abhorrent Violent Material and the Rule of Law Leo Southcott

04

Gender Inequality in Queensland’s Commercialm Surrogacy Legislation Morgan Lynch

10

Embracing Every Type: Reformation of Lifeblood’s Donor Deferral Policy Naomi O'Reilly

15

Policy Proposal: Queensland Drug Possession Reform Georgia Haigh

21

The Criminal Justice System Continues to Fail LGBTIQ Victims of Intimate Partner Violence Renee Mallari

28

Native Title and Commercial Land Use through a Critical Race Theory Lens Morgan Larkin

36

Smart Contracts: An Analysis of the Cost, Efficiency, and Validity of Using Blockchain Technology to Complete Agreements Autonomously Ryan Swindells

44

Innocent Until Proven Negligent— Mitigation of Negligent Liability in Australia's Sporting 'Fields' Vanessa Mihov

48

A First Nations Voice to be Heard Scott Ball

56

Goldilocks and the Legality Distinction: Evaluating Limitations on Discretionary Powers Through Judicial Review Elise Miller

69

The Advantages and Disadvantages of Queensland’s Split Legal Profession Compared with the Unified Legal Profession in the United States of America Thomas Harvey The Impact of Covid-19 on QCAT Cassandra Grey

78 84

Editorial It is with great pleasure that the QUTLS presents the first edition of Corpus Juris, the QUTLS student law review. Corpus Juris means ‘body of law’ which is what this publication aims to encompass: the vast range of content that law students will cover in their time at QUT. Students who choose to attend a university that prides itself on being for ‘the real world’ likely value the practical, real-life, problem-solving skills that they take from their subjects.

Academia as a career path often falls to the wayside in the minds of undergraduate students, many of whom must spend time away from their studies to earn a living. The thought of being in the thick of practice, whether on Eagle Street or elsewhere, tends to ignite more enthusiasm than the thought of spending years wading through cases, legislation, commentaries, and data gathered during research. We hope that Corpus Juris can break some of these prejudices down and encourage students to become passionate about critically thinking about the world in which we live.

The Media and Communications team and the QUTLS hope that you find the insights and research that have gone into this publication educational, engaging, and inspiring. The 21st century is a time of enormous social change, largely being pushed by the democratisation and accessibility of education on all levels. Yet, fake news and sensational media can undermine the steady and objective march towards truth and justice. Now more than ever, this generation of students needs to be attuned to and critical of the issues of our world.

We hope this publication fosters an appreciation for the essay, analysis, and good old-fashioned critical thinking.

Ashton Darracott and Ciaran Greig Publications Officers

03

3

POLICY SUBMISSION: ABHORRENT VIOLENT MATERIAL AND THE RULE OF LAW LEO SOUTHCOTT I

INTRODUCTION & OVERVIEW

On 4 April 2019, the Australian Parliament passed the Criminal Code Amendment (Sharing of Abhorrent Violent Material) Act 2019 (Cth) (‘AVM Act’) in response to a terror attack known as the Christchurch Massacre in which a shooter broadcasted violent attacks on Christchurch mosques via Facebook. 1 The Act creates two new offences.2 Firstly, an internet service provider, content service provider or hosting service (collectively, ‘intermediaries’) will be criminally liable if they fail to report “abhorrent violent material” to the Australian Federal Police.3 Secondly, a content service provider will be liable if they fail to “expeditiously remove” such material from that service.4 The Act seeks to hold intermediaries accountable for shared content on their service,5 and to ensure perpetrators of violence cannot exploit and weaponize these platforms.6 However, due to the legislation’s hurried enactment, it fails to address several rule of law values. This policy document focuses on three rule of law principles: (1) laws should be reasonably clear; (2) laws should be capable of being met; and (3) procedural fairness. It concludes that the legislation is inconsistent with a thin interpretation of the rule of law as it fails to observe these principles.

1

Evelyn Douek, ‘Australia’s “Abhorrent Violent Material” Law: Shouting “Nerd Harder” and Drowning Out Speech’ (2020) 94 Australian Law Journal 41, 41-2; Justice François Kunc, ‘Current Issues’ (2019) 93 Australian Law Journal 427, 427.

2 Douek (n 1) 43; Kunc (n 1) 428.

3 Criminal Code Amendment (Sharing of Abhorrent Violent Material) Act 2019 (Cth) s 474.33 (‘AVM Act’); Thomson Reuters, Media and Internet Law and Practice (online at 17 April 2020) [25.1300] (‘Media and Internet Law and Practice’); Douek (n 1) 43.

4 AVM Act (n 3) s 474.34; Media and Internet Law and Practice (n 3) [25.1300]; Douek (n 1) 43.

5 Douek (n 1) 42; Kunc (n 1) 427; Explanatory Memorandum, Criminal Code Amendment (Sharing of Abhorrent Violent Material) Bill 2019 (Cth) 3 (‘Explanatory Memorandum’).

6 Explanatory Memorandum (n 5) 3.

4

II

LAWS SHOULD BE REASONABLY CLEAR

The AVM Act is not reasonably clear7 as its ambiguous and complex language creates legal uncertainty for intermediaries. The definition of “abhorrent violent material”, for example, is spread across several lengthy and complex elements. Such material must depict a terrorist act, murder, attempted murder, torture, rape or kidnapping and be regarded as offensive by a reasonable person.8 Also, the perpetrator or their accomplice must have recorded or streamed the material.9 Intermediaries are forced to make quasi-legal judgments as to whether content meets this definition, despite lacking the legal expertise possessed by the courts. 10 There arise two significant difficulties in doing so. Firstly, the words “offensive” and “reasonable person” are discretionary, requiring intermediaries to consider differing perceptions of offensiveness and reasonableness, including their own, before reaching a conclusion as to meaning. As intermediaries cannot accurately discern the meaning of these words, they would act cautiously by removing any material that meets the lowest standard of offensiveness. Secondly, the definition creates practical ambiguities in the sense that human reviewers or artificial intelligence (‘AI’) systems may find it difficult to discern who produced the material.11 This is problematic if the intermediary removes legitimate material, such as that produced by bystanders or the media, thinking that it was produced by the perpetrator or their accomplice.12 The term “expeditious” is also open to interpretation13 as it is not defined in the Act.14 The Explanatory Memorandum provides little clarity, only stipulating that the ‘type and volume of 7

Joseph Raz, ‘The Rule of Law and its Virtue’ in Richard Bellamy (ed), The Rule of Law and the Separation of Powers (Routledge, 1st ed, 2005) 77, 80; Nicolas Suzor, ‘The Role of the Rule of Law in Virtual Communities’ (2010) 25(4) Berkeley Technology Law Journal 1817, 1819, 1867; Andrew Murray, ‘Rethinking Regulation for the Digital Environment’ (Policy Briefing No 41, Department of Law, London School of Economics and Political Science, September 2019) 5; Alice Witt, Nicolas Suzor and Anna Huggins, ‘The Rule of Law on Instagram: An Evaluation of the Moderation of Images Depicting Women’s Bodies’ (2019) 42(2) UNSW Law Journal 557, 569.

8 AVM Act (n 3) ss 474.31(1)(a), (b); Douek (n 1) 42-3.

9 AVM Act (n 3) s 474.31(1)(c); Douek (n 1) 43.

10 Uta Kohl, ‘The rise and rise of online intermediaries in the governance of the Internet and beyond connectivity intermediaries’ (2012) 26 International Review of Law, Computers & Technology 185, 191; Kylie Pappalardo and Nicolas Suzor, ‘The Liability of Online Intermediaries’ (2018) 40 Sydney Law Review 469, 4745.

11 Douek (n 1) 48; Explanatory Memorandum (n 5) 15; Maurice Schellekens, ‘Liability of Internet Intermediaries: A Slippery Slope?’ (2011) 8(2) SCRIPTed 154, 168; Robert Todd, Paul Dimitriadis and Ted Talas, ‘Australian government pushes through expansive new legislation targeting abhorrent violent material online’, Ashurst (Media Update, 10 April 2019) <https://www.ashurst.com/en/news-and-insights/legalupdates/media-update-new-legislation-targeting-abhorrent-violent-material-online/>.

12 Kohl (n 10) 191; Douek (n 1) 47; Schellekens (n 11) 167; Margot Kaminski, ‘Positive Proposals for Treatment of Online Intermediaries’ (2012) 28(1) American University International Law Review 203, 205.

13 Torsha Sarkar, ‘A deep dive into content takedown timeframes’ (Research Report, The Centre for Internet and Society, 30 November 2019).

14 Douek (n 1) 45.

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[content], or the capabilities of…the provider’ are relevant factors.15 The second reading speech suggests an “expeditious” timeframe is measured hours and minutes,16 given that the AttorneyGeneral condemned the fact that it took an hour and 10 minutes for Facebook to begin taking the Christchurch Massacre video down.17 In order to meet this “expeditious” requirement, intermediaries will remove illegal material as quickly as possible, giving them little time to assess its legality. 18 However, even if these ambiguous terms were defined more precisely, it is not clear whether intermediaries are technologically capable of filtering online content.

III

LAWS SHOULD BE CAPABLE OF BEING MET

The AVM Act imposes obligations on intermediaries which are not capable of being met19 as they do not reflect technological and practical realities. Some critics argue that regulating the internet is not an issue of technical capability, but of will.20 However, intermediaries cannot be reasonably expected to identify all “abhorrent violent material”. Firstly, AI detection systems may not identify visually identical images which have been edited.21 Research indicates that state-of-the-art AI systems can be tricked into misclassifying an image by simply adding noise to the image or rotating it.22 The Christchurch Massacre video, for example, managed to evade Facebook’s detection mechanisms by being edited and reuploaded in various ways. 23

15

Ibid; Explanatory Memorandum (n 5) 19, 21.

Douek (n 1) 45; Sarkar (n 13).

17 Commonwealth, Parliamentary Debates, House of Representatives, 4 April 2019, 1849 (Christian Porter, Attorney-General); Douek (n 1) 45.

18 Douek (n 1) 49; David Kaye and Fionnuala Ni Aoláin, Mandates of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression; and the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism, OL AUS 5/2019 (4 April 2019) 4-5; Kaminski (n 12) 205.

19 Raz (n 7) 198; Witt, Suzor and Huggins (n 7).

20 Douek (n 1) 49-50; Raphael Cohen-Almagor, ‘The Role of Internet Intermediaries in Tackling Terrorism Online’ (2017) 86 Fordham Law Review 425, 439, 444.

21 Douek (n 1) 51; Isobel Asher Hamilton, ‘Facebook and Instagram are still struggling to shut down videos of the Christchurch mosque massacre’, Business Insider Australia (News Article, 3 May 2019) <https://www.businessinsider.com.au/facebook-and-instagram-still-hosting-videos-of-christchurch-massacre2019-5?r=US&IR=T>.

22 Douglas Heaven, ‘Why deep-learning AIs are so easy to fool’, Nature (News Article, 9 October 2019) <https://www.nature.com/articles/d41586-019-03013-5>; RMIT ABC Fact Check, ‘Scott Morrison said hate content on social media could be automatically screened out by algorithms. Is he correct?’, ABC News (News Article, 14 June 2019) <https://www.abc.net.au/news/2019-04-18/fact-check-can-algorithms-screen-out-hatecontent-social-media/10979770>.

23 Douek (n 1) 50; Guy Rosen, ‘A Further Update on New Zealand Terrorist Attack’, Facebook (Blog Post, 20 March 2019) <https://about.fb.com/news/2019/03/technical-update-on-new-zealand/>.

16

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The task of identifying illegal content online is made more difficult if the AI system is not familiar with the conduct being portrayed in an image. AI systems “learn” to identify offensive material by “training” on similar data sets.24 In the case of the Christchurch Massacre video, Facebook’s AI systems did not have access to large volumes of data depicting a terrorist attack filmed in first-person and therefore was not triggered by the footage.25 Due to the difficulties intermediaries face when identifying illegal content, “expeditious” removal timeframes are not feasible.26 Ordinarily, the removal process generally involves an AI system identifying (“flagging”) the content for a human reviewer who has the authority to remove it.27 However, Facebook’s AI system was never capable of flagging the Christchurch Massacre livestream to a human reviewer, meaning Facebook relied on user reports.28 The first user report was received 12 minutes after the end of the livestream,29 suggesting users cannot be relied on to give timely feedback. Delays of this length give malicious actors the opportunity to proliferate edited versions,30 after which point it becomes virtually impossible to contain the spread and to remove copies “expeditiously”. Even under Germany’s NetzDG Act, which imposes a more lenient 24-hour removal timeframe, Facebook was only able to remove 76.4% of illegal content reported by users within the timeframe,31 suggesting that some content invariably “slips through the cracks”.32 Where an intermediary fails to remove content “expeditiously”, procedural fairness issues may also arise due to the presumption of recklessness.

IV

PROCEDURAL FAIRNESS

The AVM Act does not observe procedural fairness. 33 The eSafety Commissioner (‘the Commissioner’) can issue a notice to an intermediary stating that “abhorrent violent material” is accessible on their service.34 Crucially, the Commissioner does not need to observe 24

Douek (n 1) 50.

Ibid; Rosen (n 23).

26 Douek (n 1) 45.

27 RMIT ABC Fact Check (n 22).

28 Eliza Laschon and Stephanie Dalzell, ‘Scott Morrison wants crackdown on social media companies after sharing of Christchurch shootings footage’, ABC News (News Article, 19 March 2019) <https://www.abc.net.au/news/2019-03-19/scott-morrison-social-media-companies-christchurchshootings/10915246>; Douek (n 1) 50.

29 Douek (n 1) 50.

30 Ibid; Rosen (n 23).

31 Sarkar (n 13).

32 Cohen-Almagor (n 20) 444.

33 Suzor (n 7) 1875; Raz (n 7) 201.

34 Douek (n 1) 44.

25

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procedural fairness requirements to issue a notice,35 and need only be “satisfied on reasonable grounds” that “abhorrent violent material” was accessible. 36 However, procedural fairness prohibits a decision maker basing a decision on weak probative evidence.37 The Commissioner should be required to provide reasonable evidence in the notice explaining why the material in question is illegal, instead of merely holding a belief.

If a notice is issued and the intermediary fails to remove illegal content “expeditiously”, they will be presumed reckless in prosecution.38 They may only rebut the presumption of recklessness at trial by ‘adduc[ing]…evidence that [they] were not reckless’.39 Procedural fairness requires the decision maker to be impartial and to refrain from pre-judging decisions.40 A notice effectively creates the presumption of recklessness, meaning the Commissioner has deemed the intermediary reckless despite showing no evidence to support this decision.

The lack of procedural fairness has been justified on the grounds that it is necessary to issue a notice ‘as quickly as possible’.41 However, this is likely to further incentivise intermediaries to remove legitimate content.42 Whilst intermediaries can rebut a presumption of recklessness if they genuinely believe there was no illegal material on their service at the time, many would not be willing to take this risk. Instead, they would broaden their detection and removal mechanisms, hoping to capture and “expeditiously” remove any illegal content, so as to avoid triggering the recklessness presumption.

V

RECOMMENDATIONS

The terms “abhorrent violent material” and “expeditiously” should be defined more clearly.

The definition of “abhorrent violent material” should be drafted for intermediaries to interpret.

This means using less complex legal language where possible. Furthermore, the words “reasonable person” and “offensive” should be removed as far as practicable without hindering the purpose of the provision. These amendments would enable intermediaries to apply the law

35

AVM Act (n 3) ss 474.35(4), 474.36(4).

Ibid 474.35(2), 474.36(2).

37 Matthew Groves and HP Lee, Australian Administrative Law: Fundamentals, Principles and Doctrines (Cambridge University Press, 2007) 241.

38 AVM Act (n 3) ss 474.35(5), (6), 474.36(5), (6); Media and Internet Law and Practice (n 3) [25.1300]; Douek (n 1) 44.

39 AVM Act (n 3) ss 474.35(5), 474.36(5).

40 Australian Law Reform Commission, Traditional Rights and Freedoms—Encroachments by Commonwealth Laws (Report No 129, December 2015) 396.

41 Douek (n 1) 44.

42 Ibid 47-8.

36

8

with greater certainty and consistency, also minimising the incentive to over-censor. Moreover, s 474.31(1)(c) should be amended so that intermediaries must only remove material if they reasonably believe it was produced by the perpetrator or their accomplice. If intermediaries need only have a “reasonable belief”, they will be more confident when making decisions to host or remove material, since they know they cannot be penalised. “Expeditiously” should be defined in the Act. The definition should refer to a schedule specifying the removal timeframe, which is determined by factors such as the type and volume of content as well as the technological capabilities of the provider. For example, material that is being spread quickly (high volume) would have a shorter timeframe, and vice versa. Not only would this amendment provide greater certainty and mitigate the incentive to over-censor, it would also make the removal timeframe achievable.

The Commissioner should be required to justify the issuing of a notice by providing evidence in the notice demonstrating that the material in question was accessible on the intermediary’s service and is in fact “abhorrent violent material”. This would restore some procedural fairness in the issuing of a notice. Furthermore, intermediaries should not be presumed reckless. Instead, the onus of proof should be on the prosecution to prove recklessness. This would restore procedural fairness by ensuring the Commissioner does not pre-judge a decision of recklessness. It would also relieve the pressure on intermediaries to remove content quickly, thereby reducing the incentive to over-censor.

9

GENDER INEQUALITY IN QUEENSLAND’S COMMERCIAL SURROGACY LEGISLATION MORGAN LYNCH*

I

INTRODUCTION

A 2016 study revealed less than 30% of Australians oppose allowing women to receive financial compensation for carrying another person’s child.1 Despite this, the practice remains illegal in Queensland.2 This essay contends that to achieve true gender equality, it is necessary to decriminalise commercial surrogacy. While Queensland’s legislation banning commercial surrogacy achieves formal equality, its substantive implications are far from equal, perhaps as a result of the lack of gender diversity in Queensland Parliament. In particular, the ban deprives female workers of financial equality and endangers surrogates overseas. Thus, Queensland Parliament should legalise commercial surrogacy while enshrining commercial surrogates’ rights in law. Please note that a discussion of the rights of children and commissioning parents in commercial surrogacy arrangements is beyond the scope of this essay.

II

FORMAL GENDER EQUALITY

Firstly, the ban on commercial surrogacy satisfies the requirement of formal equality. To achieve formal equality, the wording of the law must not ‘distinguish between individuals’.3 The Surrogacy Act 2010 (Qld) defines a surrogacy arrangement as an arrangement in which a ‘woman’ agrees to become pregnant with the intention of relinquishing custody of the resulting child to another person or persons. 4 The Act goes on to ban commercial surrogacy

*

Morgan is in her penultimate year of a dual degree in Law (Honours) and Business (Economics) on a QUT Vice Chancellor's Scholarship for Academic Excellence. She also works paralegal in the Dispute Resolution practice group at King & Wood Mallesons. Since 2018, Morgan has written over half a dozen articles for the QUT Law Society Magazine, Torts Illustrated, on topics ranging from constitutional law to election reform. She is also heavily involved in QUT Women in Law, where she serves as the Industry Engagement Officer on the Society’s Executive Committee. In 2021, Morgan was named one of the Women Lawyers Association of Queensland’s Inspirational Women in the Legal Profession. In the future, she hopes to apply her business and legal knowledge as a commercial litigator in a large law firm.

1

Kelton Tremellen and Sam Everingham, ‘For Love or For Money? Australian Attitudes to Financially Compensated (Commercial) Surrogacy’ (2016) 56 Royal Australian and New Zealand College of Obstetricians and Gynaecologists 558, 560.

2 Surrogacy Act 2010 (Qld) s 56.

3 Nikolas James and Rachael Field, The New Lawyer (John Wiley & Sons, 2013) 78.

4

Surrogacy Act 2010 (Qld) s 7(1).

10

by prohibiting a person from giving or receiving any material benefit in exchange for entering into a surrogacy arrangement.5 The use of the term ‘woman’ in the definition of surrogacy may initially appear to unfairly single out a particular sex. However, as only women have the biological ability to become pregnant, the wording of this section does encompass all individuals who may become commercial surrogates. Therefore, it achieves formal equality.

III

LACK OF SUBSTANTIVE GENDER EQUALITY

A Lack of Financial Equality for Women However, the ban does not achieve substantive gender equality, or ‘equality of opportunity’, 6 from a financial perspective. While some lobby groups contend it would be wrong to treat pregnancy as a commercial service,7 this argument fails to recognise that acting as a surrogacy clearly satisfies the definition of work.8 This is because it is a mentally and physically taxing activity performed for a purpose.9 This purpose is to give birth to another person’s child. As only women can perform this work, the prohibition of commercial surrogacy exclusively deprives one gender of the opportunity to receive financial compensation for their labour, despite the fact receiving remuneration for one’s work is a human right.10 This unfairly disadvantages women as workers.

B Implications for Women Overseas The ban further violates the principle of substantive equality due to its disproportionately negative repercussions for women overseas. The criminalisation of commercial surrogacy has 5

Ibid ss 10, 56.

James and Field, above n 2, 79.

7 L J Goody Bioethics Centre, Submission Number 30 to House of Representatives Standing Committee on Social Policy and Legal Affairs, Parliament of Australia, Inquiry into the Regulatory and Legislative Aspects of International and Domestic Surrogacy Arrangements, 3; FamilyVoice Australia, Submission Number 38 to House of Representatives Standing Committee on Social Policy and Legal Affairs, Parliament of Australia, 11 February 2016, 2; Australian Christian Lobby, Submission Number 39 to House of Representatives Standing Committee on Social Policy and Legal Affairs, Parliament of Australia, February 2016, 15–16.

8 Oxford University Press, Definition of Work in English, English Oxford Living Dictionaries <https://en.oxforddictionaries.com/definition/work>.

9 NHS England, Mental Health Problems and Pregnancy (4 April 2018) <https://www.nhs.uk/conditions/pregnancy-and-baby/mental-health-problems-pregnant/>; United States Department of Health and Human Services, Body Changes and Discomforts (9 February 2018) Office of Women’s Health <https://www.womenshealth.gov/pregnancy/youre-pregnant-now-what/body-changes-anddiscomforts>.

10 Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3rd sess, 183rd plen mtg, UN Doc A/810 (10 December 1948), art 23.

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pushed hundreds of Australians to engage the services of commercial surrogates in other countries each year.11 However, international surrogacy arrangements often target impoverished, relatively uneducated women in countries which provide little legal protection of their rights, placing the surrogates at a particularly high risk of exploitation.12 For instance, surrogacy agencies often force them into unnecessary caesarean births to comply with the commissioning parents’ travel itineraries.13 Therefore, Queensland Parliament is complicit in the exploitation of commercial surrogates overseas by failing to provide a better-regulated domestic alternative.

C Potential Cause: Gender Inequality in Queensland Parliament Queensland Parliament’s apparent lack of concern for the aforementioned substantive implications of the ban may be due, at least in part, to its lack of female members. A parliament without relatively equal gender representation is unlikely to pass legislation that achieves equal outcomes for both sexes.14 When Parliament passed the Surrogacy Act 2011 (Qld), just 36% of Queensland’s state parliamentarians were female.15 Thus, it is unsurprising Queensland’s commercial surrogacy legislation does not reflect the value of gender equality when this value is not evident in the composition of Parliament itself.

IV

RECOMMENDATION: LIFT BAN ON COMMERCIAL SURROGACY

A A Move Towards Economic Equality Lifting the ban on commercial surrogacy is necessary to achieve substantive equality. It is possible to argue that, as only women could financially benefit from reversing this ban, allowing commercial surrogacy would be unfair as it would provide them with a potential

11

Denise Cuthbert and Patricia Fronek, ‘Perfecting Adoption? Reflections on the Rise of Commercial Offshore Surrogacy and Family Formation in Australia’ in Alan Hayes and Daryl Higgins (eds), Families, Policy and the Law: Selected Essays on Contemporary Issues for Australia (Australian Institute of Family Studies, 2014) 55, 58.

12 Chief Judge John Pascoe, ‘Parenting and Children’s Issues: International Commercial Surrogacy and the Rise of Abuse’ (Paper Presented at Legalwise International Family Law Conference, Shanghai, 17–20 September 2014) 14–23.

13 Ibid 14.

14 Claire Devlin and Robert Elgie, ‘The Effect of Increased Women’s Representation in Parliament: The Case of Rwanda’ (2008) 61 Parliamentary Affairs 237, 239.

15 Joy McCann and Janet Wilson, ‘Representation of Women in Australian Parliaments’ (Background Note, Parliamentary Library, Parliament of Australia, 2012) 2.

12

source of revenue unavailable to their male counterparts. However, it is sometimes necessary to treat particular groups differently to remedy other injustices and thus achieve equal outcomes overall.16 Women continue to face multiple barriers to equal pay and representation in the labour force, perpetuating a cycle of female economic disempowerment. 17 Allowing women to profit from the use of a uniquely female ability would help bridge this gap and thus achieve substantive equality for this historically repressed group.

B Strict Regulation is the Key to Avoiding Exploitation Moreover, it would be possible to promote substantive financial equality without compromising the wellbeing of surrogates. Many critics of commercial surrogacy justify continuing to legally ban the practice as a way to protect women from exploitation.18 However, it is possible to minimise the risk of abuse in jurisdictions that exhibit a high degree of socio-economic and legal development, like Queensland, through effective regulation and enforcement. For instance, California law, which does not criminalise commercial surrogacy,19 requires surrogates to obtain their own legal representation.20 It also allows them to enshrine their rights in legally enforceable contracts.21 As a result, the vast majority commercial surrogates perceive the process as a positive and empowering experience.22 Were Queensland lawmakers to adopt this approach, they could also substantially decrease the risk of exploitation while promoting financial gender equality and decreasing Queenslanders’ reliance on exploitative international surrogacy arrangements.

V

CONCLUSION

In conclusion, the criminalisation of commercial surrogacy in Queensland achieves formal, but not substantive, gender equality. In particular, it prevents women from receiving fair compensation for their work and has particularly negative repercussions for many women 16

James and Field, above n 2, 79; Australian Human Rights Commission, Guide to the Law - Special Measures (16 June 2003) <https://www.humanrights.gov.au/guide-law-special-measures>.

17 Veronica Sheen, ‘The Implications of Australian Women’s Precarious Employment for the Later Pension Age’ (2017) 28 Economic and Labour Relations Review 3.

18 House of Representatives Standing Committee on Social Policy and Legal Affairs, Parliament of Australia, Inquiry into the Regulatory and Legislative Aspects of International and Domestic Surrogacy Arrangements (2016) 6 [1.19]; L J Goody Bioethics Centre, above n 6, 2–3.

19 Seema Mohapatra, ‘Stateless Babies & Adoption Scans: A Bioethical Analysis of International Commercial Surrogacy’ (2012) 30 Berkeley Journal of International Law 412, 417.

20 Cal Fam Code § 7962(b) (2017).

21 Ibid § 7962 (2017).

22 Castan Centre for Human Rights Law, Submission Number 19 to House of Representatives Standing Committee on Social Policy and Legal Affairs, Parliament of Australia, 8 February 2016, 18.

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overseas. This may reflect the lack of female representation in Queensland Parliament. Thus, to achieve true gender equality, Queensland Parliament must decriminalise and instead legally regulate commercial surrogacy arrangements.

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EMBRACING EVERY TYPE: REFORMATION OF LIFEBLOOD’S DONOR DEFERRAL POLICY NAOMI O’REILLY*

I

INTRODUCTION

Lifeblood is a branch of the Australian Red Cross and has been responsible for the collection and distribution of all blood and related products in Australia for the last 90 years.1 Prior to early 2021, Lifeblood’s policy was to defer any man who had sex with a man (MSM), including “safer sex” for 12-months after their last sexual contact.2 Following recent reform Lifeblood now applies a 3-month deferral for MSM, anyone who has sex with them, and transgender people who have sex with other transgender people, or men.3 Lifeblood states that the policy is for the health and safety of both donors and patients.4 This policy document argues that Lifeblood should reform its deferral policy to an individual risk-based assessment, allowing for the accurate assessment and exclusion of potential donors, irrespective of sexual orientation or gender identity. A queer legal theory framework has been applied to identify ways in which a heteronormative approach has conflated sexual *

Naomi O’Reilly holds a Bachelor of Fine Arts (Honours I) from the Queensland College of Art, Griffith University, and is currently completing a Bachelor of Laws (Honours) at the Queensland University of Technology. Their training as an interdisciplinary artist, and intersectional thinker informs all aspects of their approach to research, organising, and legal practice, as well as professional and personal development. Naomi has experience working in non-profit, academic and commercial structures, in sectors across Visual Arts, Music, Education, and Publishing, with previous experience at the Griffith Centre for Creative Arts Research, Griffith University, Supercell Festival of Contemporary Dance, Institute of Modern Art, Metro Arts, Ryan Renshaw Gallery, Queensland Youth Orchestras, and the Queensland Academy for Creative Industries. They balance professional work with active engagement in the volunteer and grassroots sector. Naomi co-directed The Laundry Artspace, and The Laundry Press, an artist-run-initiative dedicated to supporting the development of local interdisciplinary artists and thinkers through exhibitions, and publications. Naomi continues to provide volunteer hours to a range of emerging arts organisations, festivals, and thought movements in Brisbane, to help make space for the next wave of local thinkers and leaders.

1

Australian Red Cross Lifeblood, Blood and Beyond Strategy 2023 (2018) ('Lifeblood Strategy to 2023').

Australian Red Cross Lifeblood, The Blood Service Deferral for Men who have Sex with Men (Factsheet, 2017) <https://www.donateblood.com.au/sites/default/files/Male-to-male_deferral_factsheet_0.pdf>.

3 Australian Red Cross Lifeblood, Sexual activity deferral review (Web Page, 20 May 2021) <https://www.donateblood.com.au/sexual-activity-deferral-review>; Australian Red Cross Lifeblood, LGBTQI+ Donors (Web Page, 20 May 2021) <https://www.donateblood.com.au/lgbtqi-donors>.

4 Australian Red Cross Lifeblood, LGBTQI+ Donors (Web Page, 20 May 2021) <https://www.donateblood.com.au/lgbtqi-donors>.

2

15

activity and myths of associated risk with specific sexual orientation and gender identities, contributing to the further sigmatisation and marginalisation of those groups.

The document will explore: the ways Lifeblood’s current deferral policy is in direct contradiction to their organizational outcomes; the effect policy has on the education and representation of queer individuals; and how this intersects with government policy. It concludes with a suggested reform towards an individual risk-based assessment model, which would have the supplementary beneficial outcome of seeking a collective increase in wellbeing resulting from a previously marginalised groups liberation from social exclusion, resulting in an increased awareness and unity across communities irrespective of differences in sexual orientation or gender identity.

II

LIFEBLOOD’S POLICIES AND VALUES

Lifeblood’s current policies contradict their mission statement and are counterproductive to their principles, values and goals. Australian Red Cross is a member of the International Red Cross and Red Crescent Movement which was borne of a desire to bring assistance without discrimination.5 Lifeblood’s first core value is safety and quality, the others being integrity to act honestly and ethically at all times and provide service with an aim of meeting the needs of the patients, the community, donors, etc..6 Lifeblood’s current deferral policies could be seen as contradicting the core principles and values of Red Cross. They currently do not provide assistance without discrimination against the queer community, nor do their policies honestly and ethically represent associated risk of sexual activity to patients, the community or donors.

A core organisational goal for Lifeblood is to grow the donor panel to an active panel size of 520,000.7 Lifeblood regularly advertises across public platforms that donations are desperately needed, with recent sponsored ads targeting social media feeds emphasizing the dropping blood stock and unfilled appointments in light of Covid. Material facts such as “8,000 blood donations are needed immediately to meet patient demand” are readily used to

5

Australian Red Cross, Strategy 2020 (2020).

Australian Red Cross Lifeblood, Blood and Beyond Strategy 2023 (2018).

7 Australian Red Cross Lifeblood, Business Plan 2020/21-2021/22 (2020).

6

16

communicate the severity of the situation.8 For the queer community who would like to be donors and play an active role in alleviating the dire need, the targeted advertisements can be a painful reminder of their social exclusion from helping their fellow Australians.

III

EDUCATION AND REPRESENTATION OF THE QUEER COMMUNITY

Lifeblood’s current deferral policy incorrectly conflates sexual orientation with increased risk.

This is particularly concerning as it regards a social group that already experiences marginalisation and discrimination. Queer people face adversity accessing healthcare due to a distrust in the system.9 In his article to the Journal of Law and Medicine, Edward Davis highlights that the current deferral policies for queer donors go beyond what is necessary to maintain a safe blood supply and the overreach perpetuates negative perceptions of the queer community among broader society.10 The stigma towards queer people can lead to them concealing their sexual orientation, especially when accessing healthcare. 11 This history of discrimination emphasises the need to adopt the most accurate, current and relevant research when developing policies that affect queer individuals. 12 Doing so will help rehabilitate the health care system’s negative relationship with the queer community.13 This is especially pressing when we consider outcomes for young Australians. The 2018 National Survey of Secondary Students and Sexual Health shows that 35% of students indicated an attraction to the same gender or to multiple genders.14 The survey also identified some concerning perceptions regarding the transmission of HIV. 33% of students believed that if someone with HIV coughs or sneezes near other people, they could get the virus and

8

Australian Red Cross Lifeblood, ‘Blood donors urgently needed’ (Facebook), 30 March 2021 7:00am AEST) < https://www.facebook.com/lifebloodau/posts/3867224993321259>.

9 Georgios Karamitros, Nikolaos Kitsos and Ioanna Karamitrou, 'The ban on blood donation on men who have sex with men: time to rethink and reassess an outdated policy' [2017] PanAfrican Medical Journal 27:99.

10 Edward Davis, ‘Blood Libel: An Analysis of Blood Donation Policy As It Affects Gay Men in Australia’ (2017) 24(4) Journal of Law and Medicine 915.

11 Georgios Karamitros, Nikolaos Kitsos and Ioanna Karamitrou, 'The ban on blood donation on men who have sex with men: time to rethink and reassess an outdated policy' [2017] PanAfrican Medical Journal 27:99 12 Chana A Sacks et al, 'Rethinking the Ban - The U.S. Blood Supply and Men Who Have Sex with Men' (2017) 376(2) The New England Journal of Medicine 174.

13 Ibid.

14 Australian Red Cross Lifeblood, Blood and Beyond Strategy 2023 (2018).

17

5.7% believed HIV could be contracted by hugging someone who has it.15 7.8% believed HIV only affects gay men and injecting drug users.16 While the report does not allow for the crosstabulation of sexual orientation and concern relating to contracting HIV, a breakdown by gender was provided which indicated gender diverse students believed they were more likely to contract HIV than cisgender students.17 Transmission of HIV via receptive oral sex may be statistically estimated as zero.18 Further, a study of monogamous serodiscordant couples who engaged in oral sex without a condom and genital sex with a condom reported no cases of HIV transmission over a 10 year period.19 For this reason, Lifeblood’s questionnaire - which asks if you have had MSM sex, oral or anal, with or without a condom or have had sex with a man you think might have -20 projects misinformation to the general public about the realities of HIV transmission and related risk.

Some of these misconceptions may be filtering down to young Australians, affecting their perception of their peers, or themselves if they currently or were to later identify as queer.

IV

GOVERNMENT POLICY’S IMPACT ON QUEER REPRESENTATION

In The Constitution of AIDS in Australia: Taking “Government at a Distance” Seriously, John Ballard illustrates the ways government activity can create group identities through policies and their application.21 Ballard draws parallels of this idea to the evolution of a homosexual - and presently queer - group identity. Law and government, as patriarchal institutions, privilege heterosexual subjects.22 As the queer community often faces 15

Christopher M Fisher et al, National Survey of Secondary Students and Sexual Health 2018 (Report No 6, June 2019).

16 Ibid.

17 Ibid.

18 Edward Davis, ‘Blood Libel: An Analysis of Blood Donation Policy As It Affects Gay Men in Australia’ (2017) 24(4) Journal of Law and Medicine 915.

19 Edward Davis, ‘Blood Libel: An Analysis of Blood Donation Policy As It Affects Gay Men in Australia’ (2017) 24(4) Journal of Law and Medicine 915.

20 Australian Red Cross Lifeblood, ‘Donor questionnaire’, Donor questionnaire web sample (Document, December 2019) <https://www.donateblood.com.au/sites/default/files/Donor-questionnaire-web-sample-dec19.pdf>.

21 John Ballard, ‘The Constitution of AIDS in Australia: Taking “Government at a Distance” Seriously’ in Mitchell Dean and Barry Hindess (eds), Governing Australia: Studies in Contemporary Rationalities of Government (Cambridge University Press, 1998) 125.

22 Wayne Morgan, ‘Queer Law: Identity, Culture, Diversity, Law’ (1995) 5 Australian Gay & Lesbian Law Journal 1, 10.

18

discrimination when accessing healthcare,23 it is easy to see the ways in which Lifeblood’s targeted deferral policies exacerbate feelings of social marginalisation the queer community already feel in relation to government policy and healthcare. It stands to reason that if group identity can be developed through government policy, it can be progressed towards a more positive representation through the adaptation of that policy.

Any reform to Lifeblood’s deferral policy needs to be approved by the Therapeutic Goods Administration (TGA), a regulatory agency of the Australian Government that derives its powers from a legislative act.24 The TGA must approve any policy reforms submitted by Lifeblood as it provides protection from any liability arising under tort, contract, statute or otherwise.25 It should also be noted that the TGA’s orders only stipulate that deferrals are required for “persons whose sexual behavior puts them at high risk of acquiring severe infectious diseases that can be transmitted by blood.”26 Lifeblood are responsible for the determination and policy regarding what is considered ‘high risk’.27 Consideration could be paid to the Rule of Law issue arising from the burden of proof being placed on the donor to correctly disclose sexual activity and orientation in the donor questionnaire, which acts as a declaration attracting heavy penalties, including fines and imprisonment, for providing false or misleading information.28 The terms used for sexual activity and orientation by Lifeblood, and their conflation with risk despite established knowledge to the contrary, could lead to misinterpretation by queer individuals, particularly young people who may still be developing their awareness and understanding of their identity and orientation.

23

Georgios Karamitros, Nikolaos Kitsos and Ioanna Karamitrou, 'The ban on blood donation on men who have sex with men: time to rethink and reassess an outdated policy' [2017] PanAfrican Medical Journal 27:99.

24 Therapeutic Goods Act 1989 (Cth).

25 Edward Davis, ‘Blood Libel: An Analysis of Blood Donation Policy As It Affects Gay Men in Australia’ (2017) 24(4) Journal of Law and Medicine 915.

26 Therapeutic Goods Order No 81 – Standards for Blood and Blood Components (Cth).

27 Edward Davis, ‘Blood Libel: An Analysis of Blood Donation Policy As It Affects Gay Men in Australia’ (2017) 24(4) Journal of Law and Medicine 915.

28 Australian Red Cross Lifeblood, ‘Donor questionnaire’, Donor questionnaire web sample (Document, December 2019) <https://www.donateblood.com.au/sites/default/files/Donor-questionnaire-web-sample-dec19.pdf>.

19

V

SUGGESTED REFORMS

The Australian Red Cross Lifeblood Service has played an active role in advocating for the reduction of the deferral period in line with new research. 29 Previous applications to the TGA to reduce the deferral period from 12-months to 6 were denied.30 The recent policy reform to the 3-month deferral could be seen as a landmark stride towards equality for the queer community. Still, any deferral based on all sexual activity of a specific demographic is misaligned with the reality of HIV transmission. 31 Applying blanket deferrals for large sections of the queer community does not accurately reflect the sexual practices or associated risk of that community and could lead to misrepresentation and sigmatisation.

The European Union and the World Health Organisation have established new guidelines introducing the term ‘risky sexual behavior’ without any reference to the sexual orientation of the potential donor.32 Spain and Italy have already adopted risk-based deferrals that do not specifically ban queer donors with no measurable impact on their blood supply.33 The adoption of an individual risk-based assessment also has the support of researchers and academics within the medical community.34 It is for these reasons that Lifeblood should adopt the strong position of advocating to the TGA that the 3-month deferral policy for queer individuals be replaced with an individual risk-based assessment that would accurately determine risk relating to sexual activity. The TGA should also reform its approach to evaluation of the evidence presented by Lifeblood and the medical community and progress towards an approach that favors measurable risks over outdated stigmas and myths.

29

Australian Red Cross Lifeblood, Sexual activity deferral review (Web Page, 20 May 2021) <https://www.donateblood.com.au/sexual-activity-deferral-review>.

30 Australian Red Cross Lifeblood, The Blood Service Deferral for Men who have Sex with Men (Factsheet, 2017) <https://www.donateblood.com.au/sites/default/files/Male-to-male_deferral_factsheet_0.pdf>.

31 Chana A Sacks et al, 'Rethinking the Ban - The U.S. Blood Supply and Men Who Have Sex with Men' (2017) 376(2) The New England Journal of Medicine 174.

32 Georgios Karamitros, Nikolaos Kitsos and Ioanna Karamitrou, 'The ban on blood donation on men who have sex with men: time to rethink and reassess an outdated policy' [2017] PanAfrican Medical Journal 27:99.

33 Chana A Sacks et al, 'Rethinking the Ban - The U.S. Blood Supply and Men Who Have Sex with Men' (2017) 376(2) The New England Journal of Medicine 174.

34 Ibid.

20

POLICY PROPOSAL: QUEENSLAND DRUG POSSESSION REFORM GEORGIA HAIGH*

I

INTRODUCTION

This legal reform proposal analyses Queensland’s criminalisation of the possession of ‘dangerous drugs’ within the Drugs Misuse Act 1986 (Qld) against the fundamental principles of a liberal democracy and the core objectives of a rehabilitative justice system.1 As societal norms and opinions develop and evolve in contemporary Australian society, drug laws in Queensland present a particularly pressing opportunity for reform due to the increasing divergence between the current laws and community values.

Queensland drug laws have received few amendments since the first restrictions on opium in the early 20th century to discourage Chinese immigration in Australia.2 Since their introduction, drug laws have become progressively stricter and more comprehensive at the expense of individual liberties.3 However, recent research into the respective harm of 3criminalised drugs in Queensland suggests that the current legislative framework limits individual liberties and does not effectively regulate select drugs based on harm reduction.4

II

LIBERALISM AND NO-HARM

Australia is a liberal democracy,5 which can be broadly defined as a political system that incorporates the principles of liberalism; namely, individualism, freedom, equality and the rule of law, within a representative democracy.6 In Australia’s representative democracy, *

Georgia Haigh is studying a Bachelor of Business (Human Resources) and Laws (Honours) at the Queensland University of Technology. Through both employment and seasonal clerkships, she has gained experience in the mining and resources and construction industry. In the future, she hopes to gain more experience in the corporate law, especially in the area of litigation.

1

Drugs Misuse Act 1986 (Qld) s 9.

‘Drugs and stigma: a short history’, Alcohol and Drug Foundation (Web Page, 21 August 2019) <https://adf.org.au/insights/drug-stigma-history/>.

3 Ibid.

4 Queensland Police Commission, Inquiry into Imprisonment and Recidivism, (Final Report, August 2019) 226.

5 Andrew Parkin, ‘Liberal Democracy and the Politics of Criminal Justice in Australia’ (1998) 44(3) Australian Journal of Politics & History 445, 445.

6 Ibid.

2

21

liberalism protects and recognises the rights of individual citizens. 7 To maintain the integrity of this fundamental political framework, laws, including drug laws, must be consistent with the principles of liberalism to the greatest extent reasonably possible.

However, regulating drug usage is a complex multifactorial issue, which requires balancing individual liberties with other factors, primarily including harm reduction. Restrictions on liberty will only be justified on the basis that they are necessary to prevent harm to others (‘noharm principle’).8 Liberalism combined with the no-harm principle forms a critical lens for examining the current regulation of drug possession in Queensland.

The Drugs Misuse Act 1986 (Qld) governs and aims to prevent the misuse of drugs in Queensland through criminalising the possession and supply of ‘dangerous drugs’.9 Scheduled in the Drugs Misuse Regulation 1987 (Qld), dangerous drugs are categorized as ‘Schedule 1’ or ‘Schedule 2’, depending on their ingredients and structure.10 The penalties associated with dangerous drug-related offences are dependent upon their schedule, with Schedule 1 drugs carrying the highest penalties.11 By criminalising an individual's freedom to possess dangerous drugs, these laws inherently violate fundamental liberal principles. Restrictions on liberty will be justified if they are necessary to prevent harm to others. The issue is that the current scheduling fails to reflect the respective harm of each dangerous drug. For example, carfentanil, a Schedule 2 drug, has approximately 500 times the potency of heroin, a Schedule 1 drug, yet it carries a lower penalty.12 The New Zealand Ministry of Health Harm Index ranks ecstasy and heroin significantly differently (8 and 55, respectively) (Appendix 1), yet they carry the same penalty as Schedule 1 drugs.13 Evidently, the current scheduling of drugs is inconsistent with the noharm principle. A more nuanced approach to drug regulation based on the harm ranking of each dangerous drug is accordingly necessary.

7

Kenneth Bollen and Pamela Paxton, ‘Subjective Measures of Liberal Democracy’ (2000) 33(1) Comparative Political Studies 60,60.

8 Richard Epstein, ‘The Harm Principle - And How It Grew’ (1995) 45(4) (Autumn) University of Toronto Law Journal 269-417.

9 Drugs Misuse Act 1986 (Qld) s 1.

10 Drugs Misuse Regulation 1987 (Qld) sch 1.

11 Ibid.

12 Queensland Police Commission, Inquiry into Imprisonment and Recidivism, (Final Report, August 2019) 208.

13

Ibid 226.

22

A new drug law model reflective of liberalism and the no-harm principle would not require the complete repeal of current legislation. Instead, it would propose a new framework which categorises dangerous drugs based on their harm to users and others. This framework would restructure the current imbalance of liberalism and harm reduction undermining drug laws.

Reformative drug laws are necessary because they would be more consistent with the principles of Australia’s liberal democracy. To propose a cohesive recommendation for drug law reform, the issue will be analysed in conjunction with the theory of rehabilitative justice.

III

REHABILITATIVE JUSTICE

The possession of dangerous drugs in Queensland is penalised in accordance with the deterrence theory of retributive justice: the punishment of an offence should be maximised to reduce recidivism.14 As a whole, retributive justice aims to identify the level of punishment necessary for an offence.15 However, the current long-term incarceration penalties associated with drug possession in Queensland does not adhere to the correct theory of retributive justice. This legislative stance on drug possession dehumanises the offence because it does not consider the complex multifactorial health issues contributing to drug use. 16 In other international jurisdictions, such as Portugal, the rehabilitative theory of retributive justice has overcome this issue. 17 Therefore, the theory of rehabilitative justice forms a critical lens to analyse the current penalisation of drug possession in Queensland.

Penalised under section 9 of the Drugs Misuse Act 1986 (Qld), the possession of dangerous drugs carries a maximum penalty of 25-years imprisonment.18 As a response to drug possession, incarceration is intended to provide the community with temporary safety from drug users.

However, long term, the effect that incarcerating drug users has on the economy is detrimental.

It costs an estimated $107,000 to keep one prisoner in jail each year, and 30% of Queensland’s prison population are illicit drug possession offenders. 19 Other penalties have been shown to 14

Robert Hogan and Nicholas Emler, ‘Retributive Justice’ (1981) The Justice Motive in Social Behavior 125143.

Ibid.

16 World Psychiatry, Drug use disorders: impact of a public health rather than a criminal justice approach, (online, 12 May 2017) 213-214.

17 Portugal: Country Health Profile 2017, (Report, 2017) 1.

18 Drugs Misuse Act 1986 (Qld) s 9.

19 Inquiry into Imprisonment and Recidivism (Draft Report, February 2019) 4.

15

23

effectively reduce costs, with savings of up to $9,200 when diversion is chosen over criminal penalty.20 The deterrence theory of retributive justice is not the correct theory to use when penalising drug possession in Queensland.

Other international jurisdictions have adopted the rehabilitative theory to regulate drug use and possession. In 2001, Portugal decriminalised the possession of all drugs for personal use. This legal reform shifted the identification of drug users from criminals to patients,21 which has resulted in significant health and economic benefits. 22 The benefits of Portugal’s drug policy include a 91.87% decrease in overdose-related deaths from 1999 to 2016 and an increased life expectancy to 81.3 compared to the EU’s average of 80.6.23 The policy has also assisted in crime reduction because the proportion of drug-related offenders in the Portugese prison population has declined from 44% to 21% between 1999 and 2012.24 It is acknowledged that there is a need for different theories of retributive justice to be applied throughout the legal system for differing offences. The deterrence theory is necessary in violence-related offences, such as murder, to protect the community from dangerous citizens.

However, drug addiction, like alcohol and tobacco addiction, is a health disorder that should be rehabilitated, not criminalised.

IV

RECOMMENDATIONS

Liberalism in conjunction with the no-harm theory and rehabilitative justice was used to analyse the current criminalisation of dangerous drugs in Queensland. It identified the necessity for legal reform for which three major amendments are proposed: 1. Schedules 1 and 2 of the Drugs Misuse Regulation 1987 (Qld) are revised to categorise dangerous drugs according to their harm to users and others; 2. Section 9 of the Drugs Misuse Act 1986 (Qld) is amended to decriminalise the possession for personal use of certain drugs with harm ranking below 20 units; and

20

Ibid.

Portugal: Country Health Profile 2017, (Report, 2017) 1.

22 Ibid.

23 Ibid.

24 Ibid.

21

24

3. Incorporate more drug harm-reduction initiatives when sentencing and in the wider community.

A Recommendation 1 The current scheduling of dangerous drugs in Queensland does not reflect the respective harm of each drug. Therefore, it is proposed that Schedules 1 and 2 of the Drugs Misuse Regulation 1987 (Qld) are revised to categorise dangerous drugs as ‘low risk’ and ‘high risk’ based on their harm ranking in accordance with the New Zealand Ministry of Health’s harm index (Appendix 1). The proposed model would categorise low-risk drugs as those below 20 units, and high-risk as above 20 units (Appendix 2 for amended schedule). This amendment would facilitate the evolution of the current legislation to align with current research as well as increasing harm reduction because penalties would correspond to the severity of each drug.

B Recommendation 2 In conjunction with Recommendation 1, it is proposed that the possession for personal use of all ‘low-risk’ drugs is decriminalised under section 9 of the Drugs Misuse Act 1986 (Qld) (Appendix 3). This amendment works to rectify the present imbalance between individual liberalism and harm reduction that undermines current drug laws. Instead of targeting individual users, it is imperative that police target suppliers and traffickers, which is the bigger picture in the drug pandemic.

C Recommendation 3 In taking the theory of rehabilitative justice, it is also recommended that the majority of net benefits resulting from Recommendations 1 and 2 are used to improve and widen the threshold for rehabilitation and drug diversion programs.

It is also proposed that access to harm-reduction services, such as safe injecting rooms, pill testing and needle and syringe programs within the wider community, are expanded. This recommendation encompasses the health issues behind drug use, and aims to use rehabilitation as opposed to incarceration as a method to reduce recidivism.

25

V

CONCLUSION

The severity of current drug laws in Queensland is outdated and not supported by a proportionate balance between liberalism and harm reduction. To remedy this situation, it is recommended that laws are amended to reflect the relative harm of each drug and to place a greater emphasis on rehabilitation instead of incarceration as a deterrence method. This legal reform would allow drug laws to be more consistent with the principles of Australia’s liberal democracy and provide significant economic and health benefits.

VI

APPENDICES

A Appendix 1: Drug harm ranking by schedule

B Appendix 2: Schedule 1 and 2 revised Category 1: low risk < 20 units (refer to appendix 1) ● Anabolic steroids ● Benzodiazepines

26

● Buprenorphine ● Butane ● Cannabis ● Ecstasy ● GHB ● Ketamine ● LSD ● Mephedrone ● Methadone ● Mushrooms ● QAT Category 2: high risk > 20 units (refer to appendix 1) ● Amphetamine ● Cocaine ● Methamphetamine ● Crack cocaine ● Heroin *This is just a draft schedule based on current research, further research must be conducted to include all current dangerous drugs C Appendix 3:Revised section 9 9 Possessing dangerous drugs A person who unlawfully has possession of a dangerous drug that exceeds the quantity for personal use is guilty of a crime.

27

THE CRIMINAL JUSTICE SYSTEM CONTINUES TO FAIL LGBTIQ VICTIMS OF INTIMATE PARTNER VIOLENCE RENEE MALLARI*

I

INTRODUCTION

Intimate partner violence (IPV) can happen to anyone. However, a key vulnerable group— the LGBTIQ community—is constantly being overlooked. This is reflected through the lack of cohesive understanding and theory of IPV in LGBTIQ relationships.1 Coercive control is used to help define LGBTIQ-related IPV,2 as it relates to patterns of coercion, power and control and recognises that violence can be physical, sexual, emotional and/or financial.3 Queer legal theory critiques the underlying heterosexual norms within the law and thus provides a strong basis for this document’s aim: to conclude that LGBTIQ victims of IPV are being insufficiently supported by the criminal justice system.4

II

HETERONORMATIVE FRAMEWORKS RENDER LBGTIQ+ IPA VICTIMS INVISIBLE

LGBTIQ victims are rendered invisible by the heteronormative framework in which IPV law operates. Heteronormativity is the internalised expectation that all people are or should be heterosexual.5 Hence, this invisibility begins with the lack of research dedicated to IPV in

*

Renee will be commencing her third year of a Bachelor of Business/Laws (Honours) majoring in Finance in Semester 2 2021. She has a broad range of legal interests including commercial law, family law, human rights law and alternative dispute resolution. In her academic career, she hopes to further explore domestic and family violence, reproductive rights and modern slavery issues with an intersectional approach.

1

Jenna M Calton, Lauren Bennett Cattaneo and Kris T Gebhard, ‘Barriers to Help Seeking for Lesbian, Gay, Bisexual, Transgender, and Queer Survivors of Intimate Partner Violence’ (2016) 17(5) Trauma, Violence and Abuse 585.

2 Ibid.

3 Calton, Cattaneo and Gebhard (n 1); Catherine Donovan and Marianne Hester, ‘‘I Hate the Word “Victim”’: An Exploration of Recognition of Domestic Violence in Same Sex Relationships (2010) 9(2) Social Policy and Society 279, 280.

4 Graeme W Austin, ‘Queering Family Law’ (1999) 8 (May) Australasian Gay and Lesbian Law Journal 39, 51.

5 Monica Campo and Sarah Tayton, Intimate Partner Violence in Lesbian, Gay, Bisexual, Trans, Intersex and Queer Communities (Publication, December 2015); Our Watch et al, Summary Report: Primary Prevention of Family Violence Against People from LGBTIQ Communities (Report, October 2017) 32; Lorenzetti et al,

28

LGBTIQ relationships.6 As sexuality or gender identity indicators are omitted in data collection by mainstream services, researchers and policy makers are unable to assess the prevalence of IPV in LGBTIQ relationships and design the necessary programs to address this issue.7 However, international and local data available suggests that the patterns and levels of IPV in LGBTIQ relationships are similar to, or, if not higher than cisgender heterosexual relationships.8 For example, partner abuse was reported most frequently by transgender males (61.8 percent), followed by intersex females (42.9 percent), cisgender females (40.7 percent), transgender females (36.4 percent) intersex males (36.4 percent), and cisgender males (27.9 percent).9 The omission of sexuality and gender identity in data consolidates society’s binary mode of thinking. It frames IPV research around the heteronormative framework as straight men are perpetrators and women are victims.10 These concrete gender roles reinforce societal misconceptions surrounding LGBTIQ relationships. For example, IPV in queer women’s relationships may not be seen as serious as women are deemed incapable of inflicting physical harm onto other women, as this goes against their non-violent feminine nature.11 The heteronormative framework inherently marginalises the experiences of LGBTIQ victims and invalidates the violence perpetrated against them. 12

Domestic Violence in Alberta’s Gender and Sexually Diverse Communities: Towards a Framework for Prevention (Report, 2014).

6 DVConnect, Another Closet LGBTIQ Domestic and Family Violence (Handbook, 24 October 2014) 10 (‘DVConnect’).

7 ACON, Submission to: The NSW Legislative Council on Social Issues Inquiry into Domestic Violence Trends and Issues in NSW (Submission No. 46, 23 September 2011) (‘ACON 2011’).

8 DVConnect (n 6) 10; Kevin L Ard and Harvey J Makadon, ‘Addressing Intimate Partner Violence in Lesbian, Gay, Bisexual and Transgender Patients’ (2011) 26(8) Journal of General Internal Medicine 930; ACON, Submission to: House of Representatives Standing Committee on Family, Community, Housing and Youth Inquiry into the Impact of Violence on Young Australians (Submission No. 30, 23 October 2009).

9 Marian Pitts et al, Private Lives: A Report on the Health and Wellbeing of GLBTI Australians (Report, March 2006) 51.

10 Melissa Kay and Samantha Jeffries, ‘Homophobia, Heteronormativism and Hegemonic Masculinity: Male Same-Sex Intimate Violence from the Perspective of Brisbane Service Providers’ (2010) 17(3) Psychiatry, Psychology and Law 412.

11 Campo and Tayton (n 5); Bonnie Hart, ‘Intimate Partner Violence Between Queer Womxn: Shining a Light on the Second Closet’ (2019) 28(3) Human Rights Defender 26, 26; Dena Hassouneh and Nancy Glass, ‘The Influence of Gender Role Stereotyping on Women’s Experiences of Female Same-Sex Intimate Partner Violence’ (2008) 14(3) Violence Against Women 310, 319.

12 Our Watch et al (n 5) 34; Joan C McClennen, ‘Domestic Violence Between Same-Gender Partners: Recent Findings and Future Research’ (2005) 20(2) Journal of Interpersonal Violence 149.

29

III

HETEROSEXISM EXACERBATES THE INVISIBILITY OF LGBTIQ IPV VICTIMS

The invisibility of LGBTIQ victims is exacerbated by heterosexism—which generates and sustains homophobia, biphobia, transphobia and intersex discrimination—in society.13 These forms of discrimination are prohibited by Australian and Queensland law.14 Yet, LGBTIQ communities still face alarming levels of harassment, discrimination and abuse in their everyday lives as a result of their identities, including at work, 15 in public,16 at school or study,17 and in access to health and other services.18 This discrimination has been reflected in Queensland as one of Australia’s most homophobic states, 19 being one of the last to legalise homosexual activity and abolish the gay panic defence. 20

Heterosexism is the set of beliefs that privileges heterosexuality, and subordinates all sexualities and gender diverse identities, that sit outside of the institutionalised heteronormative framework.21 Heterosexism assumes that gender and sex are the same and fixed at birth, wherein men are born masculine and women are born feminine and society is built on the reciprocal attraction between them.22 Thus, it is clear that the heteronormative framework has been designed to punish and oppress LGBTIQ individuals for deviating away

13

Our Watch et al (n 5) 40; Bianca Fileborn, Sexual Violence and Gay, Lesbian, Trans, Intersex and Queer Communities (Publication, March 2012).

14 Sex Discrimination Act 1984 (Cth); Anti-Discrimination Act 1991 (Qld) s 8(l)–(m).

15 Statistics from the Australian Human Rights Commission 2018 National Survey found that workplace sexual harassment in the last 5 years was more prevalent among those identifying with diverse sexual orientation (52 percent) than among those identifying as a straight or heterosexual (31 percent): Australian Human Rights Commission, Face the Facts: Lesbian, Gay, Bisexual and Intersex People (Publication, 2014).

16 Up to 80 percent of same-sex attracted and gender questioning young Australians experience public insult: Hillier et al, Writing Themselves in 3: The Third National Study on the Sexual Health and Wellbeing of Same Sex Attracted and Gender Questioning Young People (Report, 2010).

17 45 percent of secondary school students from one study indicated that they had witnessed school-based physical harassment of classmates perceived to be sexuality and/or gender diverse: Jacqueline Ullman, Free2Be?: Exploring the Schooling Experiences of Australia’s Sexuality and Gender Diverse Secondary School Research (Report, November 2015) 7.

18 It was difficult to find studies that provided statistics for discrimination in public services due to the lack of research in this area.

19 Michael Flood and Clive Hamilton, ‘Mapping Homophobia in Australia’, Australian Institute (Webpaper, July 2005) < https://www.tai.org.au/sites/default/files/WP79_8.pdf>.

20 Criminal Code and Another Act Amendment Act 1990 (Qld); Criminal Law Amendment Act 2017 (Qld) s 304.

21 Our Watch et al (n 5) 32; William Leonard et al, Coming Forward: The Underreporting of Heterosexist Violence and Same Sex Partner Abuse in Victoria (Publication, 2008) 4.

22 Leonard et al (n 21).

30

from the norms of sex, gender and sexuality, in attempt to save and purify the patriarchal gender hierarchy that controls society.23 Furthermore, LGBTIQ communities also face stigma and social exclusion.24 This is particularly an issue for bisexual25 and transgender victims as they are not open with their sexual orientation or gender identity, especially if their friends, family or workplace is unaware of their LGBTIQ status.26 Transgender victims may want to change their preferred pronouns, name, physical appearance and/or undergo surgical procedures or hormonal therapies before they disclose their identity.27 In the same way, transgenders that “pass” publicly may fear that their trans history will be exposed. 28 Abusers can use coercive control and take advantage of a victim’s discomfort with their identity by threatening to “out” them.29 This internalised homophobia leads victims to feel worthless and incompetent as a result of an abuser’s “contempt for [their] intimate partner.”30Abusers can further exploit this by shaming the victim, suggesting that “no one will believe [them]”31 and that they should not report IPV as they will be discriminated against by services and the law.32 This vulnerable group is made even more invisible as they are silenced and discouraged from seeking help from IPV services.

23

Our Watch et al (n 5) 39; Grietje Baars, ‘Queer Cases Unmake Gendered Law, Or, Fucking Law’s Gendering Function’ (2019) 45(1) Australian Feminist Law Journal 15.

24 Calton, Cattaneo and Gebhard (n 1); Lorenzetti et al (n 5).

25 Several studies have shown that bisexual victims of IPV experience additional stress as they are both marginalised by heterosexuals as well as then within the LGBTIQ community. Bisexuals are assumed to have and use heterosexual privilege which thus lead homosexuals to minimise their victimisation: Adam M Messinger, ‘Invisible Victims: Same-Sex IPV in the National Violence Against Women Survey’ (2011) 26(11) Journal of Interpersonal Violence 2228; Danica R Bornstein et al, ‘Understanding the Experiences of Lesbian, Bisexual and Trans Survivors of Domestic Violence’ (2006) 51(1) 159; Naomi Freedner et al, ‘Dating Violence Among Gay, Lesbian and Bisexual Adolescents: Results from a Community Survey’ (2002) 31(6) Journal of Adolescent Health 469; Lori B Girschick, ‘No Sugar, No Spice: Reflections on Research on Woman-to-Woman Sexual Violence’ (2002) 8(12) Violence Against Women 1500; Kimberly F Balsam and Dawn M Szymanski, ‘Relationship Quality and Domestic Violence in Women’s Same-Sex Relationships: The Role of Minority Stress’ (2005) 29(3) Psychology of Women’s Quarterly 258; Susan Turell et al, ‘Lesbian, Gay, Bisexual and Transgender Communities’ Readiness for Intimate Partner Violence Prevention’ (2012) 24(3) Journal of Gay and Lesbian Social Services 289.

26 Calton, Cattaneo and Gebhard (n 1); Amana F Carvalho et al, ‘Internalized Sexual Minority Stressors and Same-Sex Intimate Partner Violence’ (2011) 26(7) Journal of Family Violence 501.

27 Calton, Cattaneo and Gebhard (n 1).

28 Campo and Tayton (n 5).

29 Ibid.

30 Campo and Tayton (n 5); Lorenzetti (n 5).

31 Krista S Gehring and Jamie C Vaske, ‘Out in the Open: The Consequences of Intimate Partner Violence for Victims in Same-Sex and Opposite-Sex Relationships’ (2017) 32(23) Journal of Interpersonal Violence 3669.

32 Calton, Cattaneo and Gebhard (n 1); Fileborn (n 13).

31

IV

MAINSTREAM SERVICES INADEQUATELY SUPPORT LGBTIQ+ IPV VICTIMS

LGBTIQ victims are not only prevented from accessing support; they are also inadequately supported by the current mainstream services available. There is minimal mainstream service delivery that specifically targets and is inclusive of LGBTIQ victims.33 In Queensland, gay men are unfortunately disadvantaged as there are very few services that offer them support.34 Most mainstream IPV services can assist women.35 However, support workers may not understand their needs, due to the lack of experience and training in working with LGBTIQ IPV and therefore, may not provide the most appropriate assistance. 36

Support workers may be unfamiliar with the terminology related to sexual and gender diversity such as nonbinary or intersex, and therefore may not use inclusive language when offering support to LGBTIQ victims.37 Furthermore, a support worker may be unaware of the particular strategies that LGBTIQ abusers use to control their victims38 such as “outing” or the withholding of hormones.39 These together, as a result of ignorance, invalidate their identity and support the heteronormative framework, as straight men and women are valued more than those who do not sit within it.

In general, the key existing mainstream IPV sector problems include the lack of LGBTIQfriendly crisis accommodation,40 legal and practical discrimination,41 the lack of perpetrator referral options,42 and distrust of police.43

33

Not to Violence, 2015 Victorian Royal Commission into Family Violence Safe Steps Family Response Centre and Not to Violence Joint Submission: Family Violence and LGBTIQ Communities (Submission, 19 June 2015) (‘Safe Steps’).

34 Brisbane Domestic Violence Service, Queer Without Fear (Booklet) 7 (‘Queer Without Fear’).

35 Queer Without Fear (n 34) 7.

36 Gabriel Aleksandrs and Tania Phillips, It Stops Here (Publication, February 2014) 8 (‘It Stops Here’); DVConnect (n 6) 12.

37 Calton, Cattaneo and Gebhard (n 1).

38 Fileborn (n 13); Angela Dwyer and Justine Hotten, ‘There is No Relationship: Service Provider Staff on How LGBT Young People Experience Policing’ (Conference Paper, TASA Conference, 1-3 December 2009).

39 DVConnect (n 6) 9.

40 Safe Steps (n 33); Calton, Cattaneo and Gebhard (n 1); Australian Human Rights Commission, Addressing Sexual Orientation and Sex and/or Gender Identity Discrimination (Report, 1 July 2011).

41 Safe Steps (n 33); Fileborn (n 13).

42 Safe Steps (n 33); Hart (n 11).

43 Safe Steps (n 33); Hart (n 11); Kate O’Halloran, ‘Family Violence in an LGBTIQ Context’ (2015) 2 Spring/Summer DVRCV Advocate 12, 12.

32

The issue of police distrust continues to persist, despite the recent commitments from the Queensland Government to better support LGBTIQ victims.44 This is a result of the police’s history of discrimination.45 For, example, at the ‘Tasty raid’, police officers engaged in homophobic police practices.46 During this event, police officers detained and strip-searched patrons at the gay nightclub, without wearing visible identification, ignoring existing guidelines for searches.47 This event has profoundly shaped the relations between the LGBTIQ community and police in the present, as evidenced in one study where only one in ten LGBTIQ victims chose to report IPV to the police. 48

Police culture needs to change in order for this relationship to be repaired. The introduction of LGBTIQ liaison officers was a good start, however, limited resources are provided to them.49 They are not enough to change police culture entirely as it is characterised by its male authority, intolerance and prejudice, conservatism and mutual solidarity.50 Through these characteristics, the police are advocates of society’s construction of the binary. In a backhanded way, the police have decided that some, but not all queer people can be deserving of respect.51 This phenomenon called respectable queerness concerns the particular representations of lesbians and gay men, which rely on conforming with the norms of middle-class respectability i.e. look straight, cisgender and monogamously coupled.52 Thus, LGBTIQ victims have to earn legitimate victim status by submitting themselves and their identity to the heteronormative framework.

44

Queensland Government launched a new campaign targeting the LGBTIQ community under recommendation 14 of the “Not Now, Not Ever” report: Di Farmer, ‘Queensland Government tackles domestic and family violence in LGBTIQ communities’ (Media Statement, The Queensland Cabinet and Ministerial Directory, 6 December 2018); Queensland Government invested $57,000 in the development and distribution of resources through a state-wide campaign and service provider training through the Queensland AIDS Council: Craig Crawford and Di Farmer, ‘LGBTIQ+ Community Stands Up to Domestic Violence’ (Media Statement, The Queensland Cabinet and Ministerial Directory, 23 May 2019).

45 O’Halloran (n 43).

46 Emma Russell, ‘Revisiting the Tasty Raid: Lesbian and Gay Respectability and Police Legitimacy’ (2015) 41(1) Australian Feminist Law Journal 121.

47 Ibid.

48 Angela Dwyer, Pleasures Perversities and Partnerships: The Historical Emergence of LGBTI-Police Relationships (Springer, New York, NY, 2014); ACON 2011 (n 7).

49 Angela Dwyer et al, Exploring LGBTI Police Liaison Services: Factors Influencing Their Use and Effectiveness According to LGBTI People and LGBTI Police Liaison Officers (Report, July 2017) 43-4.

50 David G Barrie and Susan Broomhall, A History of Police and Masculinities, 1700-2010 (Routledge, 1st ed, 2012); Janet Chan, ‘Changing Police Culture’ (1996) 36(1) The British Journal of Criminology 109; PAJ Waddington, Policing Citizens (UCL Press, 1999).

51 Ibid.

52 Ibid.

33

V

REFORM RECOMMENDATIONS

This policy document specifically seeks to improve the preliminary process of IPV offences so that, first and foremost, LGBTIQ victims are encouraged to seek help and support. Firstly, the Australian Government should provide ongoing support and funding to primary research projects focused on LGBTIQ IPV.53 These projects will focus on obtaining greater empirical data about LGBTIQ IPV, allowing researchers and policy makers to better understand the key drivers of IPV against LGBTIQ people.54 From these studies, researchers and policy makers should consult with each LGBTIQ community to develop tailored programs for all LGBTIQ abusers and victims, to help decrease IPV in these communities.55

Secondly, the Queensland Government should provide resources to these new queer specific programs and the existing mainstream IPV response agencies. 56 Service providers should undergo cultural competency training and queer inclusivity practices to ensure that they give meaningful support to LGBTIQ victims.57

Lastly, the Queensland Government should continue their commitments to reforming police culture. It is suggested that the geographical location of LGBTIQ liaison officers be made available to the public and their role should be clearly advertised by every police service to ensure that LGBTIQ victims are aware of this option.58 The Queensland Police Service should also employ a higher level coordinator to liaise with non-supporting senior management. They will promote the reform of police culture and ensure that programs operate effectively and are regularly reviewed and renewed in line with community expectations.59

These recommendations only address some of the issues that LGBTIQ IPV victims face. The criminal justice system requires significant change in order to fully provide them sufficient

53

Our Watch et al (n 5) 9; Hart (n 11) 26.

Ibid.

55 Hart (n 11) 26; O’Halloran (n 43) 13.

56 Hart (n 11) 27; Our Watch et al (n 5) 10; Elizabeth Broderick, ‘Not So Straight Forward: Domestic Violence in Australia’ (2011) 36(4) Alternative Law Journal 224.

57 Hart (n 11) 27.

58 Angela Dwyer et al (n 49) 16-7.

59 Ibid (n 62) 39, 42-3.

54

34

and meaningful support. Ideally, should these recommendations be implemented, the criminal justice system can begin to make amends and rightly serve this vulnerable community into the future.

35

NATIVE TITLE AND COMMERCIAL LAND USE THROUGH A CRITICAL RACE THEORY LENS MORGAN LARKIN*

I

OVERVIEW

Reform is required to level the playing field for Aboriginal and Torres Strait Islander peoples negotiating land use agreements with the mining industry. Reflected in the legal system are ideals of Australia’s liberal democracy that, operating within a racialized social structure, seek to provide equal opportunity but do not ensure equal outcomes for all citizens.

Analysing the legal landscape with a specific interest in the Native Title Act 1993 (Cth) (NTA) through a critical race theory lens highlights the role of legislation as maintenance for race-based inequalities that define the racialized social system. Considering the NTA in practice, economic and social benefits of mining operations, and corporate responsibility as a supplement for legislation, this essay lays out recommendations for reform aimed at encouraging self-governance by commercial parties.

While liberal democracies offer the promise of equal opportunity, they do not ensure equal outcome; instead, where outcomes are unequal, it is the fault of the affected group.1 This can be understood as a result of racialized social structure, the effect of imposing racial categories on societies' political, economical, and social systems.2 Subsequent hierarchy favours white people in all settings, to the detriment of non-white groups.3 Under this framework, Australia’s liberal democracy is abundantly anglo-centric, geared towards providing the best outcomes from equal opportunity for white Australians.

*

Morgan is undertaking her second semester of LLB (Hons) (Graduate Entry), and has a keen interest in discrimination law and intellectual property. With a background in commercial marketing, and her experiencing in the health and wellness space, Morgan is especially interested in the accessibility of healthcare and medicine. In fact, it was the COVID-19 outbreak and subsequent lockdowns that inspired Morgan to return to university and study Law. This piece was submitted for LLB104 Contemporary Law and Justice.

Ali Meghji, ‘Just what is critical race theory, and what is it doing in British sociology? From “BritCrit” to the racialized social system approach’ (2020) 72(2021) Br J Sociol 347, 348.

2 Eduardo Bonilla-Silver, ‘Rethinking Racism: Toward a Structural Interpretation’ (1997) 62(3) American Sociological Review 465, 469.

3 Bonilla-Silver (n 2) 270.

1

36

Critical race theory (CRT) incorporates themes of race from sociology for analysis of the legal system. CRT has two aims: understand how white supremacy and subordination of nonwhite groups have been established and reproduced, and to examine the relationship between social structure and equal protection under the law.4 Ultimately, CRT seeks to challenge constructions of race and power as represented in the legal landscape. 5

II

THE NTA

The NTA developed in response to Mabo v Queensland, by recognising and protecting native title as the rights and interests of Indigenous peoples in the land and waters, as per traditional laws and customs.6 The act was intended to establish a mechanism to determine where native title claims exist, provide the right to negotiate land use, and afford protections for native title.7 Section 75 provides the right to negotiate land use between native title parties and interested parties, such as mining companies.8 However, Indigenous Australians report significant issues with this process.9 The NTA requires good faith negotiations between native title parties and applicants for land use,10 to be referred to tribunals for future act determination should agreement not be reached in the first instance.11 Of 163 future act determinations, 160 have resulted in the act being permitted.12 Essentially, native title parties are deprived of bargaining power required for good faith negotiations over land use, as determinative tribunals result in future act approval with near certainty.13

In practice, the legislation favours the interests of applicants for land use agreements, representing businesses that benefit from disempowerment of Indigenous peoples. While legislation continues to maintain this power dynamic, it reproduces the subordination of

Christopher Dunbar Jr, ‘Critical Race Theory and Indigneous Methodologies’ in Norman K. Denzin, Yvonna S. Lincoln and Linda Tuhiwai Smith (eds), Handbook of Critical and Indigenous Methodologies (SAGE, 2008) 85, 87.

5 Alan Freeman, ‘Introduction’ in K. Crenshaw, N. Gotanda, G. Peller and K. Thomas (eds), Critical race theory: The key writings that formed the movement (New Press, 1995) i, xiii.

6 Mabo v Queensland (No 2) (1992) 175 CLR 1 (‘Mabo’).

7 Explanatory Memoranda, Native Title Bill 1993 (Cth) 1.

8 Native Title Act 1993 (Cth) s 75 (‘NTA’).

9 Joint Standing Committee on Northern Australia, Never Again (Final Report, December 2020) [1.48] (‘Never Again’).

10 NTA (n 8) s 31.

11 NTA (n 8) s 35.

12 Never Again (n 11) [1.48].

13 Ibid.

4

37

Indigenous peoples, consistent with the underpinning principles of CRT.14 Subsequently, equal protection under the law is not afforded, even where the legislation is intended to provide those protections to native title parties and Indigenous peoples by extension.

Ultimately, there are a number of economic and social factors considered motives for the maintenance of racist power imbalances in this context.

III ECONOMIC AND SOCIAL CONSIDERATIONS

The mining sector holds 10.4% market share in the economy, and contributed $202 billion in the last financial year.15 Furthermore, latest figures show the sector employs 252,000 workers,16 including 6600 Indigenous Australians,17 all whose livelihoods depend on the availability of work in mining. The Federal Court dismissed a review of the Environment Minister’s decision to allow coal mining to proceed on significant Aboriginal sites,18 on the basis that the potential economic and social benefits of the mine outweighed the heritage value of the Aboriginal sites.19 The Environment Minister exercised discretionary decision making power20 under section 10 of the Heritage Act,21 despite acknowledging the repercussions for traditional owners’ mental health and connection to land.22 Regarding the same mining project in Liverpool Plains, the NSW government bought back a 51.4% share of mining licence in order to protect agricultural lands of interest to farmers, while continuing to

14

Dunbar Jr, (n 4) 87.

Nickolas Zakharia, ‘Mining industry holds largest slice of Australian economy’, Australian Mining (Web Page, 2 November 2020) <https://www.australianmining.com.au/news/mining-industry-holds-largest-slice-ofaustralianeconomy/#:~:text=Australia%27s%20mining%20industry%20has%20delivered,The%20Australian%20Bureau %20of%20Statistics.&text=Mining%20operating%20surplus%20also%20saw,to%20higher%20iron%20ore%20 prices>.

16 ‘Regional Industry Data’, Labour Market Information Portal, (Web Page, February 2021) <https://lmip.gov.au/default.aspx?LMIP/GainInsights/IndustryInformation/Mining#:~:text=Mining%20employs %20approximately%20252%2C100%20persons,increased%20by%2015.7%20per%20cent.>.

17 ‘Indigenous Partnerships’, Minerals Council of Australia (Web Page, 2021) <https://minerals.org.au/indigenous-partnerships>.

18 Talbott v Minister for the Environment [2020] FCA 1042 [96] (‘Talbott’).

19 ‘Traditional owners lose Federal Court bid to protect culturally-significant sites at NSW coal mine’, SBS News (Web Page, 22 July 2020) <https://www.sbs.com.au/news/traditional-owners-lose-federal-court-bid-toprotect-culturally-significant-sites-at-nsw-coal-mine>.

20 Talbott (n 18) [2].

21 Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) s 10(1) (‘Heritage Act’).

22 Isabella Higgins and Sarah Collard, ‘Legal challenge over Sussan Ley’s decision to put potential mining jobs at Shenhua Mine before cultural heritage’, ABC News, (Web Page, 27 August 2019) <https://www.abc.net.au/news/2019-08-27/shenhua-coal-mine-cultural-heritage-challenge/11443096>.

15

38

encourage investments in mining.23 Such hypocrisy is a result of unbalanced discretionary powers enabled by the law where culturally profound sites are in question, further demonstrative of inherent racism embedded in legislation and governments as agents of legislation. This is another example of disempowerment of Indigenous peoples, in order to maintain the advantage experienced by those benefiting from an Anglo-centric legal system.

However, land use agreements for mining or other projects should not cease at the expense of social and economic enrichment in national interest. As mentioned, thousands of Indigenous peoples are employed by the mining sector.24 Seeking involvement by traditional owners in projects on traditional lands is a meaningful step towards reconciliation, and empowers Indigenous people to take a share in both economical and social benefits from projects affecting Indigenous countries.25 For example, carbon reduction projects in Queensland, enable Indigenous peoples to work on traditional lands. 26 This is mutually beneficial for both the commercial parties facilitating the projects who require workers, and the Indigenous peoples, who benefit through employment, and by strengthening connection to land and community.27 This challenges unbalanced power dynamics enabled by the NTA28 and other Acts, in which commercially vested companies typically ‘win’ land use agreements. In this case, native title parties are empowered to use knowledge and desire to work on traditional lands, in a way that has broad social and economic benefits. This lends to the idea that where legislation is currently designed to maintain subordination of Indigenous peoples within the context of racialized social structure, steps toward reconciliation and challenging the implicitly racist norms are possible through commercial self-governance.

Caitlin Furlong and Nour Haydar, ‘NSW Government renews Shenhua Watermark coal mine lease in Liverpool Plains’, ABC News, (Web Page, 19 July 2018) <https://www.abc.net.au/news/2018-07-19/nswgovernment-renews-shenhua-watermark-lease-in-liverpool-plain/10014058>.

24 ‘Indigenous Partnerships’ (n 17).

25 ‘Native title and cultural heritage - how is the legal landscape changing?’, In Practice, (McCullough Robertson Podcast, September 2020) 17:50-19:50 <https://player.whooshkaa.com/episode/735558>.

26 Ibid.

27 Ibid.

28 NTA (n 8) s 75.

23

39

IV CORPORATE RESPONSIBILITY

Adoption of corporate responsibility and self-governance measures by businesses seeking native land use is necessary to supplement legislation. Made clear in the case of Talbott29 and supported in practice by the NTA,30 commercial parties, especially mines, are prioritised over Indigenous culture, despite its immeasurable value. Prior to 2017, mining giant Rio Tinto was seen as a role model for self-governance and corporate responsibility, particularly in relations with Indigenous Australians.31 Self-governed reconciliation with Indigenous peoples is possible, as demonstrated in carbon reduction projects discussed previously, and supported with the government’s financial commitment backing such projects.32 The Minerals Council of Australia, which represents the mining sector, acknowledges the complex nature of engagement between the industry and Indigenous Australians.33 However, it reports that agreements reached through positively established relationships with Indigenous communities, rooted in respect for culture and history, do not contest native title.34 Such agreements seize opportunities neglected by the NTA35, including ‘wealth creation, sustainable development post project and transitioning from welfare dependency to economic participation’.36

The positive results of meaningful engagement of Indigenous peoples as assets to the workforce and society highlights the importance of reconciliation. Reconciliation Australia provides a ‘Reconciliation Action Plan’ (RAP) for organisations to take a structured approach to building relationships, respect, and opportunities for Indigenous peoples in an organisational setting.37 The framework has four stages: Reflect, which is to explore scope of reconciliation; Innovate, to implement reconciliation; Stretch, to embed implementation into

29

Talbott (n 18).

NTA (n 8) s 75.

31 ‘The destruction of Aboriginal heritage sites permitted because government has been captured - Lawyer’, NITV, (SBS NITV Radio, June 2020) 07:55-09:15 <https://www.sbs.com.au/language/english/audio/thedestruction-of-aboriginal-heritage-sites-permitted-because-government-has-been-captured-lawyer>.

32 ‘CarbonPlus Fund creates regional jobs’, Queensland Government (Web Page, 13 February 2019) <https://www.forgov.qld.gov.au/carbonplus-fund-creates-regional-jobs>.

33 Marcia Langton, From Conflict to Cooperation (The Minerals Council of Australia, February 2015) 7 (‘From Conflict to Cooperation’).

34 From Conflict to Cooperation (n 33) 7.

35 NTA (n 8).

36 From Conflict to Cooperation (n 33) 7.

37 ‘What is a RAP?’, Reconciliation Australia (Web Page, 2020) <https://www.reconciliation.org.au/reconciliation-action-plans/#ra-rap-actions>.

30

40

corporate practice; and Elevate, to take leadership toward broader reconciliation.38 Steps toward corporate responsibility in creating a RAP and employing self-governance at an organisational level, would ultimately challenge entrenched power structures based on race, and should be incorporated into the legal landscape.

V RECOMMENDATIONS

This essay makes two main recommendations. The first is to make an addition to the NTA section 31 which stipulates normal negotiation procedure:39 good faith negotiations must entail ‘meaningful engagement’ with native title parties. Moreover, if an arbitral body is sought for assistance in negotiations,40 the body may request the negotiation parties complete the first stage of a RAP (Reflect).41 This encourages the negotiation party to develop a relationship with Indigenous peoples and respect for culture from the outset of land use negotiations.

The second recommendation is to require the development of a RAP in land use agreements and determinations. This can be enforced in land use agreements reached under section 31,42 and determinations by section 38,43 in which the determination would include a condition that the RAP is developed and submitted to Reconciliation Australia within a specified time frame. In conjunction with the first recommendation, this seeks to elevate the status of Indigenous peoples as represented in the law, and as repressed under Australia’s racialized social structure, by requiring meaningful engagement and encouraging corporate responsibility.

Racially biased power dynamics that maintain the subordination of Indigenous peoples is entrenched in legislation, specifically the NTA in practice. However, commercial entities within the lucrative mining sector have the power to influence legal decision making.

Encouragement of corporate responsibility and self-governance challenges the reproduction

38

Ibid.

NTA (n 8) s 31(1)(b).

40 NTA (n 8) ss 31(3)-(4).

41 ‘What is a RAP?’ (n 38).

42 NTA (n 8) s 31.

43 NTA (n 8) s 38.

39

41

of implicit racial discrimination and could help to level the playing field in negotiations with Indigenous peoples. Reform such as has been recommended is required so legislation can support commercial self-governance, and in doing so pivot from ensuring equal opportunities, and seek equal outcomes for all.

42

BORN GLOBAL At Baker McKenzie we are different in the way we think, work and behave.

Like no other law firm, we were born global.

Baker McKenzie has been thinking globally in Australia for more than 50 years. In 2014, we opened our Brisbane office making our Australian practice the fourth largest in our network of 76 offices with more than 80 Partners and 220 lawyers across Sydney, Melbourne and Brisbane. In Australia, we act for leading multinational and domestic companies on market leading local and global transactions.

Founded in 1949, Baker McKenzie is one of the world’s largest law firms by markets, revenue and headcount. We offer our clients and lawyers the uncompromising commitment to excellence expected of a leading firm and a distinctive way of thinking, working and behaving as a passionately global and genuinely collaborative firm.

We understand the challenges of the global economy because we have been a global law firm from the start.

Our Clerkship Program

Right from the start, our Clerks get involved in real work.

You will be exposed to our Australian and international clients through client meetings, shadowing, research and other everyday activities within your assigned practice group.

Our Clerks work closely with other lawyers, are guided by a Supervising Partner and enjoy the extra support of an experienced Associate “Buddy”. You will develop practical and legal skills through our national learning program and by attending workshops specifically designed for Clerks, as well as Firm-wide sessions.

In Sydney, the Summer Clerkship Program runs from late November to early February each year during which Clerks complete two practice group rotations. Clerks who accept a Graduate role with Baker McKenzie are eligible to apply for an International Clerkship, with the opportunity to work in one of our overseas offices in the year following their Clerkship.

Our Graduate Program

Over the course of the program, Graduates gain experience in different areas of law before they join a particular practice group as an Associate. You will be supervised by a senior lawyer and an Associate “Buddy” in each rotation to oversee your on-the-job and formal learning.

Develop globally

At Baker McKenzie, we have a deep commitment to development. We work with each Graduate to create a tailored development plan and career goals. To help you reach your goals, we provide targeted learning opportunities — from seminars on core legal topics to practical skills development in areas such as communication, drafting and presenting.

We work hard to facilitate on-the-job learning and the many ways it happens — through informal mentoring relationships, client secondments, involving Graduates in global teams working on international deals and in managing their own files for our award-winning Pro Bono Program.

We also bring Graduates from our Sydney, Melbourne and Brisbane offices together to help our people foster networks across the Firm, and support professional development by covering the costs of Practical Legal Training and your admission.

Our regional practice group structure means many of our lawyers attend regional training in our Asia Pacific offices.

Once Graduates complete their Graduate Program, they will attend a regional orientation program with other mid-level Associates from the Asia Pacific region. The Firm also offers opportunities for lawyers at varying stages of their careers to work directly for clients or with our other offices globally.

What does the Firm look for?

Baker McKenzie looks for people who genuinely want to work with us and who understand Baker McKenzie's unique offering, values and position in the market. We look for well-rounded, motivated individuals who share our global perspective; who are intellectually curious and have sound academics; who display business acumen and are practical in their approach; who enjoy a challenge and seek new opportunities; who take responsibility and use their initiative; who act with integrity and honesty in all of their dealings, decisions and actions; who express themselves confidently while staying open to new ideas; who strive to provide excellent service to their clients; who seek a friendly, diverse, and inclusive culture; and who take seriously our role in making a difference to our local and global communities.

Thrive in a culture of inclusion

Quality and excellence along with team work, integrity and responsiveness are central in delivering outstanding service to our clients, as you would expect in a top tier law firm.

The values that make us a unique and great place to work are deeply embedded and you will notice our difference in all of your interactions with us, in Australia and across the globe.

We are passionately global, and leverage our global expertise for our clients.

We strive to stay ahead of the curve and encourage entrepreneurship.

We actively encourage and support contribution to the community, through our pro bono and community service programs.

We want everyone at Baker McKenzie to reach their potential so we invest in global, regional and local world-class development and mobility programs for our people.

Our award-winning diversity strategy, initiatives and programs are focused in six areas: BakerWomen – gender equality and supporting the progression of women BakerDNA – ethnic, indigenous and cultural diversity BakerBalance – supporting carers and parents, and workplace flexibility BakerLGBTI & Allies – lesbian, gay, bisexual, transgender and intersex diversity BakerIndigenousEngagement – commitment to engagement with our Aboriginal and Torres Strait Islander community BakerWellbeing – commitment to mental health and wellbeing.

How to apply

Applications for Clerkships can be submitted via www.bakermckenzie.com/careers/Australia.

Applications should include a cover letter, as well as details of your work experience, your extra-curricular activities and interests, and your academic results.

Applications for Clerkships open at 9.00am on 8 June 2021 and close at 11.59 pm on 4 July 2021.

Angelique Holden Talent Management Consultant +61 2 8922 5596 angelique.holden@bakermckenzie.com

We have a strong culture of friendship and collaborative working style.

We are commercial pragmatists who simplify issues for clients.

Our key areas of practice     

Banking & Finance Capital Markets Commercial Real Estate Construction Dispute Resolution

 Employment  Energy, Resources and Infrastructure  Environmental Markets

 Financial Services & Structured Transactions  Insolvency  Intellectual Property  Media

   

Mergers & Acquisitions Private Equity Tax Technology & Communications

www.bakermckenzie.com/careers/Australia Baker & McKenzie, an Australian Partnership, is a member firm of Baker & McKenzie International.

43

SMART CONTRACTS: COMING SOON TO A LAW FIRM NEAR YOU AN ANALYSIS OF THE COST, EFFICIENCY, AND VALIDITY OF USING BLOCKCHAIN TECHNOLOGY TO COMPLETE AGREEMENTS AUTONOMOUSLY

RYAN SWINDELLS

I

INTRODUCTION

Not since the introduction of the internet has technology given rise to such a disruptive method of doing business. The advent of blockchain technology enables electronically programmed ‘smart contracts’ to automatically execute the terms of an agreement. Naturally, businesses are interested in how this new technology may benefit them. This essay argues that smart contracts have the potential to be positive for Australian business, provided proper precautions and safeguards are used by parties wishing to contract this way. This will be demonstrated by first exploring how smart contracts work and how they differ from the ‘traditional’ way of doing business. The cost and efficiencies of using smart contracts will be analysed to establish that there are potential benefits and some risks associated with smart contracts. The essay will examine some of the extent to which smart contracts are facilitated under current legislation. Finally, this essay will show that smart contracts have great potential to benefit Australian business overall, despite some concerns about cost, efficiency, and validity under the law.

II

HOW SMART CONTRACTS WORK

Smart contracts are self-executing computer programs which utilise new blockchain technology to autonomously complete the terms of an agreement.1 Blockchain technology works by grouping cryptographically coded transactions into data packages called ‘blocks’.2

Philippa Ryan, ‘Smart Contract Relations in e-Commerce: Legal Implications of Exchanges Conducted on the Blockchain’ (2017) 7(10) Technology Innovation Management Review 10, 10; Mark Giancaspro, ‘Is a ‘Smart Contract’ Really a Smart Idea? Insights from a Legal Perspective’ (2017) 33 Computer Law & Security Review 825, 825.

2 Michael Nofer, Peter Gomber, Oliver Hinz and Dirk Schiereck, ‘Blockchain’ (2017) 59(3) Business & Information Systems Engineering 183, 183–4.

1

44

Newly created blocks of transactions are authenticated through peer-to-peer computer networks at regular intervals.3 If a majority of the peers in the network validate the transactions in the block, those transactions are instantly processed. 4 Then the block is permanently linked to the preceding block on the electronic ledger of blocks (the ‘blockchain’).5 Blocks that have been added to the blockchain are permanently unchangeable.6

Prior to the introduction of blockchain technology, electronic transactions have traditionally been processed through centralised clearing houses such as banks. 7 The role of the clearing house is to authenticate the transaction so that the parties (the recipient in particular) trust that the transfer will be honoured.8 Blockchain technology removes the need for a centralised third party to authenticate the transfer.9 Apart from the technological aspects, decentralisation is the major difference between smart contracts and ‘traditional’ contracts. 10 Smart contracts which use blockchain technology are viewed as the next step in doing business online.11

III

COST

Although for most small and medium size businesses, the cost of smart contracting is still too expensive to implement, smart contract technology has the potential to save costs. Depending on the complexity of the terms that need to be coded, smart contracts currently cost between USD7,000 and USD45,000 but may cost as much as USD100,000 for very complex transactions.12 However, the use of smart contracts can potentially save costs for businesses compared with the traditional method of transacting through intermediaries,13 provided the cost of smart contract implementation decreases.14 As explained above, smart contracts do

3

Andreas Sherborne, Blockchain, Smart Contracts and Lawyers (December 2017) International Bar Association, 1, 2 <https://www.ibanet.org/Document/Default.aspx?DocumentUid=17badeaa-072a-403b-b63c8fbd985d198b>.

4 Giancaspro (n 1) 827.

5 Sherborne (n 3) 2.

6 Nofer, Gomber, Hinz and Schiereck (n 2) 184.

7 Sherborne (n 3) 1.

8 Ibid.

9 Giancaspro (n 1) 826.

10 Sherborne (n 3) 1.

11 Ryan (n 1), 13.

12 Michiel Mulders, Problems & Costs of Smart Contract Development (25 March 2018) Hacker Noon <https://hackernoon.com/problems-costs-of-smart-contract-development-e86e9446ba9e>.

13 Giancaspro (n 1) 827.

14 Mulders (n 12).

45

not require trusted third parties to authenticate transactions. Common costs associated with intermediaries include administration fees, legal costs and contract preparation fees.15 Giancaspro gives the example of banks that charge merchants a processing fee for authenticating credit card payments.16 It is estimated that the average business spends between USD2,700 and USD3,300 on bank transaction fees annually.17 If the cost of developing smart contracts can be reduced, businesses should start to benefit from any potential cost savings as a result of eliminating the intermediary from the transaction.

IV

EFFICIENCY

Smart contracts that leverage blockchain technology can potentially provide substantial efficiencies to business. Although traditional intermediaries provide an adequate amount of trust to parties in the conventional contract model, they also cause significant delays in processing times.18 Even credit card payments take several days to clear.19 Transactions processed through smart contracts are instantly and autonomously executed once they are authenticated. This means that transactions which traditionally take days to process, can now happen in just ten minutes.20 Efficiencies generated through the use of smart contracts are also gained because the potential for human error is removed or significantly lowered.21

However, the implementation of smart contracts brings some unique inefficiencies as well. It has been pointed out that errors and disputes can arise from the use of blockchain powered smart contracts.22 When errors do occur, they are difficult and time consuming to fix due to their permanent and unchangeable design.23 Businesses that want to receive efficiency benefits from using smart contracts will also have to take the risks associated with any ‘bugs’ or system errors that are inevitable.

15

Giancaspro (n 1) 827.

Ibid.

17 Jincor Team, Costs of Smart Contracts: Can Your Business Afford It? (2 November 2017) <https://blog.jincor.com/costs-of-smart-contracts-can-your-business-afford-it-286e76b6355c>.

18 Giancaspro (n 1) 827.

19 Nofer, Gomber, Hinz and Schiereck (n 2) 185.

20 Sherborne (n 3) 2.

21 Giancaspro (n 1) 832.

22 Ibid; Angela Walch, ‘The Bitcoin Blockchain as Financial Market Infrastructure: A Consideratino of Operational Risk’ (2015) 18(4) New York University Journal of Legislation and Public Policy 837, 856–858.

23 Giancaspro (n 1) 832.

16

46

V

VALIDITY

Australian legislation provides an uncertain degree of validity about the utilisation of smart contracts across Australian business, particularly within the corporate sector. The Electronic Transactions Act 1999 (Cth) (“ETA”) provides that a transaction is not invalid because it took place by electronic communication,24 including the transfer of data.25 On the one hand, this piece of legislation provides some confidence about the validity of business conducted electronically, without fear of disputation.26 On the other hand, there are still many contracts that legislation mandates must be in writing and signed by the parties.27 The ETA also expressly excludes the Corporations Act 2001 (Cth), which has divided legal opinion on the validity of contracts entered into by companies depending on the operation of the ETA.28 As a result of these identified legislative issues, it is difficult for Australian business to benefit to its fullest potential from the use of smart contracts. 29

VI

CONCLUSION

There is a lot of attention being placed on the operation of smart contracts.30 Ever since blockchain technology was first developed, its potential use as a platform for self-executing contracts has ignited debate in the business world.31 This essay has limited itself to analysing the potential cost benefits and efficiencies, as well as whether current legislation affects the facilitation of doing business through smart contracting.

In conclusion, business in Australia has tangible potential to benefit from smart contracts if implementation costs become more affordable in order for businesses to swiftly and easily remedy errors or disputes, and if legislation is updated to expressly legitimise smart contracts as a method of doing business.

24

Electronic Transactions Act 1999 (Cth) s 8(1).

Ibid s 5(1) (definition of ‘electronic communication’).

26 Timothy Perry, Electronic Signatures: A Guide for Lawyers (25 January 2018) Thomson Reuters Legal Insight <http://insight.thomsonreuters.com.au/posts/electronic-signatures-guide>.

27 Farisa Tasneem, Enforceability of Electronic Contracts in Australia (PhD Thesis, RMIT University, 2015) 51 <https://researchbank.rmit.edu.au/eserv/rmit:161314/Tasneem.pdf>.

28 Perry (n 26).

29 Tasneem (n 27) 20.

30 Sherborne (n 3) 1.

31 Ibid.

25

47

INNOCENT UNTIL PROVEN NEGLIGENT–MITIGATION OF NEGLIGENT LIABILITY IN AUSTRALIA’S SPORTING ‘FIELDS’ VANESSA MIHOV* The aim of this paper is to investigate the tort of negligence for participants and employers in sport, analyse whether the ‘dangerous recreational activity’ exception should apply to professional athletes through statute and common law in all states as a removal of negligent liability, and critique the effects of this potential decision on Australian sporting organisations.

I

INTRODUCTION

Australia encourages participation in recreational and sporting activities as an amateur or professional athlete for physical wellbeing, economic benefits, and personal achievement.

However, this participation does not come without the acceptance of the risk of physical injury, and this scope allows those harmed by the negligence of others to seek legal remedy through litigation. Negligence is considered any conduct which involves a failure to conform to a legal obligation and failure to protect the interests of someone with whose interests a defendant ought to be concerned.1 This paper will explore the tort of negligence by providing an in-depth analysis of the three elements – liability, causation, and quantum – in a sporting setting. Focussing specifically on the relevant legislation from the Civil Liability Act 2003 (Qld)2 and application of Australian common law, this paper will also investigate whether the ‘dangerous recreational activity’ exception should apply to all states by examining their current statutory and common law positions, and analyse the implications of this decision on Australian sporting organisations.

*

Vanessa Mihov is a final year Bachelor of Laws (Honours) and Bachelor of Business (Economics) student.

She is interested in practicing in the areas of Employment/Workplace Law and Personal Injury/Compensation Law. Vanessa realised she was passionate about these topics after undertaking a Sports Law elective and researching negligence and liability in the sporting industry. Outside of these areas, Vanessa is interested in change in the legal industry and how it will adapt and transform due to rapid globalisation and expansions in technology.

1 2

Tame v New South Wales [2002] at [8].

With similar provisions nation-wide.

48

II

THE ELEMENTS OF NEGLIGENCE

Negligence is one of the most relevant tortious acts to participants and employers in professional and amateur sports, and consists of assessing liability, causation, and quantum.

A Liability The first element to prove in a negligence claim is liability which involves judging whether a duty of care exists between the parties. The following recognised relationships exist in the sporting industry: 1. Occupiers of sporting facilities with authority and control over a premise, owe a duty of care to all those on the premises to exercise reasonable care to avoid foreseeable risk of injury.3 2. The scope of the duty of care owed by volunteers is dependant on the type of activity, age and ability of athletes, and experience and protected by Queensland’s Civil Liability Act (CLA) which states that a volunteer does not incur any personal civil liability in relation to any act or omission done or made by the volunteer in good faith when doing community work organised by a community organisation or as an office holder of a community organisation.4 3. The scope of duty for referees and officials is significantly broad but focusses primarily on the person’s ability to ensure safety by guaranteeing the rules of any sporting game are strictly followed and prohibiting negligent breaches.5 This duty does not discriminate between professional and amateur games. 6 4. Athletes owe other athletes a duty of care to act in a manner that is reasonable in the circumstances and regulated by a legal relationship. Whilst athletes are expected to perform at their best to win, conduct outside the scope of the rules of the particular sport may give rise to liability.7 5. Coaches owe athletes a duty of care to remove inherent risk from training exercises and the ‘field’ by being appropriately qualified, providing adequate care, and warnings – where the level of supervision is dictated by the age of the athlete.8

3

Woods v Multi-Sport Holdings Pty. Ltd. [2002] HCA 9.

Civil Liability Act 2003 (Qld) s 39.

5 Foscolos v Footscray Youth Club [2002] VSC 418.

6 Vowles v Evans [2003] EWCA Civ 318.

7 McCracken v Melbourne Storm Rugby League Football Club & 2 Ors [2005] NSWSC 107.

8 Thomas Hurst and James Knight, ‘Coaches Liability for Athletes’ Injuries and Deaths’ (2003) 13 Seton Hall Journal of Sport Law 33.

4

49

In addition to the recognised duties of care, there exists ‘non-delegable’ duties of care where the defendant cannot escape liability by passing on the duty to take care for the plaintiff’s safety to a third party.9 This concept is related to vicarious liability which exists for an employer who assumes responsibility for the behaviour of its employees.10 Sporting organisations can be vicariously liable for employees including referees, officials, and athletes acting in the course of employment if the tortfeasor is an employee, the employee committed a tortious act, and the tort was committed in the course of employment.11 For instance, if a professional rugby player acting as an employee for a rugby club injures a player on another team during a match, the rugby club may be vicariously liable for their employees actions depending on whether these actions fall within the scope of the game’s rules.12 If the player punched the opposing player out of frustration after losing a game, then the club would not be liable for their actions; but if the opposing playing was injured as a result of an accidental punch during a scrum, then the club may be vicariously liable for the player’s actions if the Court is satisfied that the punch was a part of the scrum and therefore the player’s employment.

B Causation The element of causation within a sporting negligence claim requires the Court to make an assessment of what the accepted risks are when participating in the sport which do not eliminate all duty of care of one participant to the other.13 In Queensland, the test from the High Court case Wyong v Shirt14 is applied to each negligence case to determine whether, without hindsight, a defendant has breached a duty of care and requires an investigation in: 1. Whether a reasonable person in a similar position as the defendant would have foreseen a risk of injury to the plaintiff arising from their conduct.

2. What a reasonable person would have done in response to that foreseeable risk.

9

Caxton Legal Centre Inc, ‘The Queensland Law Handbook’, Duty of Care (Web Page, 28 March 2018) <https://queenslandlawhandbook.org.au/the-queensland-law-handbook/health-and-wellbeing/accidents-andinjury/duty-of-care/>.

10 Kondis v State Transport Authority (1984) 154 CLR 672.

11 Hollis v Vabu Pty Ltd [2001] HCA 44.

12 Canterbury Bankstown Rugby League Football Club Ltd v Rogers; Rogers v Bugden (1993) Aust Torts Reports 81–426 at 62,551.

13 Rootes v Shelton [1968] ALR 33.

14 Wyong v Shirt (1980) 146 CLR 40.

50

The same test is emphasised in Queensland legislation in s 9 of the CLA and s 305B of the Workers Compensation and Rehabilitation Act 2003 (Qld).15

C Quantum Ultimately, the final element that must be satisfied is damage or quantum. Court assesses damage suffered by the plaintiff only if the damage is legally recognised harm and occurred as a result of the defendant breaching a duty of care. Compensation and awards are given based on medical expenses, loss of past and future earnings, disfigurement, pain and suffering and loss of amenities.16

III

THE ‘DANGEROUS RECREATIONAL ACTIVITY’ EXEMPTION A The exemption

The ‘dangerous recreational activity’ (DRA) exception applies in most Australian states and allows defendants who have caused harm to a plaintiff to be relieved of legal liability if the injuries suffered by the plaintiff are a result of the materialisation of an obvious risk of a dangerous recreational activity.17 The exemption does not apply to activities involving a significant risk of an insignificant injury – for example, trips and falls as part of a regular football game – but rather activities that involve a significant risk of a significant injury as in many Australian contact sports.18 Whether the exemption applies in the applicable states is determined by an objective test of the level of risk of significant harm to a person participating in an activity and absolution of liability occurring if the injury occurs as a materialisation of an obvious risk of a dangerous recreational activity.19 However, whilst statutory law in some state jurisdictions agree that the DRA exemption excuses legal liability, whether this defence applies to professional athletes lies in the definition of ‘recreational activity’ which varies throughout these states based on the application of both statutory and common law authorities. The decisions in the Supreme Court of Tasmania and New South Wales Court of Appeal provide particularly conflicting legal opinions on this issue.

15

Workers’ Compensation and Rehabilitation Act 2003 (Qld) s 305B. H Luntz, Assessment of Damages for Personal Injury and Death, 4th edn, Butterworths, Sydney, 2002.

17 Civil Liability Act 2002 (NSW) ss 5J-5N; Civil Liability Act 2003 (Qld) ss 17-19; Civil Liability Act 2002 (Tas) ss 18–20; Civil Liability Act 2002 (WA) ss 5E, 5J. 18 Falvo v Australian Oztag Sports Association & Anor [2006] NSWCA 17, [30].

19 Ibid.

16

51

B States differing opinions In 2017, Paul Goode (the appellant) participated in a professional horseracing event as a professional jockey and suffered serious injuries when his horse fell on the racecourse. The appellant claimed that the physical harm he suffered and other resulting losses were caused by the competitor jockey Tye Angland’s (the respondent) negligence and breach of duty of care by riding in a manner that interfered with the appellant and his horse.20 One of the primary issues the Court assessed was whether the DRA exemption provided a defence to the respondent under s 5L of the Civil Liability Act 2002 (NSW). The New South Wales Court of Appeal ruled in favour of the defendant and allowed the application of the DRA exemption to dismiss the plaintiff’s appeal of the decision that left him unable to claim any damages for his participation in the professional event.21 The Court ruled that under NSW jurisdiction, professional horseracing was included in the definition of ‘recreational activity’ under ‘any sport’ and the DRA exemption extended to professional athletes as there was no relevant distinction drawn between recreational activities or those pursued by reason of employment.22 As a result, the Court found that the plaintiff falling from his horse and his resulting injury was an obvious and serious risk of harm that materialised while undertaking a ‘recreational activity,’ providing a complete defence against liability to the defendant.23 The same defence and definition is mirrored in Western Australia’s civil liability legislation.24 Prior to October 2019, Tasmanian statutory law also included the terms ‘any sport’ as part of the definition of ‘recreational activity’25 however, the Supreme Court ruled in Dodge v Snells that ‘recreational activities’ could not include professional sports on the grounds that legislature could not have intended to deprive employees of the rights to sue their employers.26 This prompted Parliament to pass a bill amending Section 19 of the Civil Liability Act 2002 (Tas) omitting any mention of sport in the definition of ‘recreational activity’ and substituting it with the definition ‘pursuit or activity engaged in for enjoyment, relaxation or leisure’.27 Under s 18 of the Civil Liability Act 2003 (Qld), Queensland also engages a similar definition exempting any mention of sporting activities.

20

Goode v Angland [2016] NSWSC 1014.

Ibid.

22 Civil Liability Act 2002 (NSW) s 5K. 23 Ibid s 5L. 24 Civil Liability Act 2002 (WA) ss 5H, 5E. 25 Civil Liability Act 2002 (Tas) s 19.

26 Dodge v Snell [2011] TASSC 19.

27 Civil Liability Amendment Act 2019 (Tas).

21

52

Civil liability legislation in both Australian territories, South Australia, and Victoria is silent as to any exemption for participating in dangerous recreational activities and continue to rely upon the common law or other defences to negligent liability28 – and where these defences rely on a definition of recreational activities, the Court adopts the same definition of ‘recreational services’ as the Trade Practices Act which includes sporting activities.29 This inconsistency between New South Wales and Western Australia including the definition of sport in recreational activity, Queensland and Tasmania exempting sport from the definition, and statutory silence among the rest of the states and territories result in a tripartite divide between the application of statute and common law in all of Australia.30 This lack of uniformity in the assessment of negligent liability claims produces outcomes with inconsistent rulings and application of the law which is unfair to sportspeople who rely on the Courts to provide them with a fair process to claiming compensation for injuries.

IV

COMMENT

The increase of professional participants in dangerous recreational sports in Australia, in addition to the number of people experiencing threatening injuries, gives rise to many civil liability claims. As of 2019, the sporting industry employs 60,000 employees ranging from sports coaches, instructors and officials to professional sportsmen and women.31 Additionally, the industry is projected to increase employment growth by 8.7 per cent over five years from 2019 to 2023, increasing the likelihood of negligence liability claims and injury compensation.32 The cost of treating these sportspeople is $2 billion per year with 36,000 Australians hospitalised in 2011-2012 because of sporting injuries.33 From this figure, a significant number of sportspeople can be potentially compensated under a negligence claim – particularly in football where up to 35% of injuries are caused by foul play.34

28

For example, obvious or inherent risk defences in Civil Liability Act 1936 (SA) ss 36–7 and Wrongs Act 1958 (Vic) ss 53–5.

29 Dominic Villa, ‘Liability for Personal Injury Arising from the Supply of Recreational Services’ (2009)4(1) Australian and New Zealand Sports Law Journal 55, 56.

30 Civil Laws (Wrongs) Act 2002 (ACT); Personal Injuries (Liabilities and Damages) Act (NT).

31 Australian Government, Department of Jobs and Small Business, ‘Australian Jobs 2019’ Jobs by Industry (Online National Government Publication, 2019) 20 <https://docs.employment.gov.au/system/files/doc/other/australianjobs2019.pdf>.

32 Ibid.

33 Australian Institute of Health and Welfare, Australian Sport Injury Hospitalisations 2011-12 (Report, 4 November 2014) 4 < https://www.aihw.gov.au/reports/injury/australian-sports-injury-hospitalisations-201112/contents/table-of-contents>.

34 Sports Medicine Australia, ‘Football (Soccer) Fact Sheet,’ Facts of Football Injuries (Web Page, 2008) <https://sma.org.au/resources-advice/sport-fact-sheets/football-soccer-fact-sheet/>.

53

However, decisions in the higher Courts in Australia creating a common law precedence over lower courts provides an unfair and conflicting system of claiming compensation for those affected by serious sporting injuries. Whether the Queensland courts rely on either Tasmania or NSW’s cases to form a common law precedent over future cases, or whether all legislation should be reformed to include sport and therefore professional athletes in the definition of ‘recreational activity’ comes down to whether this removal of negligent liability will provide a fair process for claims.

If professional sport is included in the definition of ‘recreational activity’ through reform of each state and territory’s legislation, then the interpretation of recreational activities has broadened, and the application of the DRA defence has expanded. This can negatively affect the result of claims by professional athletes seriously injured in high contact sporting games who may lose their only source of income – as opposed to amateur athletes who, by definition, participate in sport on an unpaid, recreational basis. Furthermore, the broader interpretation of the term ‘recreational activity’ poses a risk to an athlete’s ability to sue when harmed due to a direct decrease in a sporting organisation’s insurance premiums as the likelihood of liability decreases. The scope of a uniform definition to include ‘any sport’ prevents those participating in professional sports from taking legal action through the DRA exemption, further decreasing the window of liability. Contrariwise, there are other defences that can be argued should the DRA exemption be inapplicable to sportspeople; for example consent – where a player can argue that they did not consent to interferences that are infringements of the laws of the game.35 Other defences include waivers, though to be effective, plaintiffs must be adequately informed with warnings directed to the activity in question.36 Ultimately, athletes participating in high contact sports must assume a greater risk of injury with a restricted ability to pursue a civil liability claim should the definition of ‘recreational activity’ include ‘all sport’ nation-wide.

Alternatively, if the legislation is comprehensively reformed to exclude any mention of sport in the definition of ‘recreational activity,’ then theoretically the judicial system should become more consistent nation-wide due to the principle of parliamentary sovereignty which states that statue law prevails over common law. This reform would encourage the Courts to make more uniform decisions across Australia and prevent the current presence of lengthy and expensive court cases that often arise from plaintiffs appealing to a higher court and thus 35 36

McNamara v Duncan (1971) 26 ALR 584; 45 FLR 152.

Belna Pty Ltd v Irwin [2009] NSWCA 46.

54

inconsistent rulings and damages. The current consequences of this are highlighted by the damages awarded in Tasmania’s Dodge v Snell case and New South Wales Goode v Angland, where Mr Dodge suffered a non-catastrophic injury to the neck and was awarded $772,895 as opposed to Mr Goode who received no damages but suffered a catastrophic neck injury confining him to a wheelchair.37 However, counter-intuitively, if the DRA exemption does not exempt liability for professional athletes, employers are directly affected by the assessment of damages due to their non-delegable duty of care and vicarious liability. This could also lead to the abuse of monetary court-awarded damages by athletes, though most sporting negligence cases are a question of fact as opposed to question of law which the Court is able to assess through appropriate objective tests.

V

CONCLUSION

Ultimately, there are several arguments for both including and excluding the mention of sport in the definition of ‘recreational activity’ which affects both athletes and their sporting organisations. However, after thorough analysis of both contrasting sides, I am in the belief that the individuals suffering harm from the negligence of other players should have the right to sue both the negligent player and their employer. The current system is failing sportspeople whose damages and compensation, after an extensive and costly court process, will essentially depend on what jurisdiction applies to their event. There should be a change in legislation in all states and territories to create a uniform defence and clear definition to exclude sport from the DRA exemption, as the current system statute bars claims for injuries arising from negligence in professional sport.

37

David Thorpe and Leanne Houston, ‘Game Changer? Professional Sport and Dangerous Recreational Activity: Revisiting the Ruling In Dodge V Snell’ (2016) 11(1) Australian and New Zealand Sports Law Journal 75, 76.

55

A FIRST NATIONS VOICE TO BE HEARD

SCOTT BALL This essay seeks to address the ‘dialogue of the deaf’1 underlying the denial of Indigenous constitutional recognition. This is achieved by contending that the First Nations Voice to Parliament, 2 advanced in the Uluru Statement from the Heart,3 requires rejuvenated analysis following the decision in Love; Thoms v Commonwealth (‘Love’).4 Love strengthens the case for an entrenched Voice in the Constitution.5 This submission will be divided into three parts. First, a succinct definition of the Voice will be provided. Second, Anderson’s design for the Voice will be considered as a viable framework for implementing the Voice.6 Third, by exploring the concepts of equality and sovereignty raised by Love, jurisprudence delivered in Love underlines the political necessity of Indigenous recognition through an enshrined Voice in the Constitution, while producing a result broadly symmetric with Anderson’s Voice design.

I

THE FIRST NATIONS VOICE

The First Nations Voice seeks to establish a functional bicultural discourse against the backdrop of silence, intransigence, and historical discrimination.7 The Voice proposal diverges from historic proposals that favoured symbolic recognition through ‘fairness’ 8 or weakly veiled non-discrimination

1

Kenneth Hayne, ‘Trust, confidence and public institutions' (Speech, Sir Zelman Cowen Centre Oration, 5 August 2020).

2 For clarity, the ‘First Nations Voice to Parliament’ will, where convenient, be variously termed the ‘First Nations Voice’ or simply the ‘Voice’.

3 First Nations Constitutional Convention, ‘Uluru Statement from the Heart’ [2017] Indigenous Law Resources 1 (‘the Uluru Statement’); Referendum Council, ‘Final Report of the Referendum Council’ (Final Report, Referendum Council, 30 June 2017) <https://www.referendumcouncil.org.au/sites/default/files/report_attachments/Referendum_Council_Final_Rep ort.pdf>.

4 (2020) 375 ALR 597 (‘Love’).

5 Constitution of the Commonwealth of Australia (‘The Constitution’).

6 Anderson et al, Submission No 479 to The Joint Select Committee on Constitutional Recognition relating to Aboriginal and Torres Strait Islander Peoples, Parliament of Australia (3 November 2018).

7 Shireen Morris, ‘The Torment of Our Powerlessness”: Addressing Indigenous Constitutional Vulnerability through the Uluru Statement’s Call for a First Nations Voice in Their Affairs’ (2018) 41(3) University of New South Wales Law Journal 629, 635-646.

8 Shireen Morris, The Case for a First Nations Voice in the Constitution (Oxford: Hart Publishing, 2020) 94-7; See also Dylan Lino, ‘Written Constitutions and the Politics of Recognition: Symbolism and Substance’ (2014), 13 <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2470177>.

56

guarantees,9 which assumed recognition through ‘poetic’ statements,10 detailing that the unique position of Aboriginal Australians11 would suffice to remedy the historic misdeeds undertaken against Aboriginal Australians.12 The Voice envisaged in the Uluru Statement is designed to form a nonjusticiable ‘advisory’13 body within Commonwealth parliamentary machinery tasked with addressing the Parliament on matters affecting Aboriginal Australians. 14 The Voice shifts the paradigm of Indigenous recognition to enable substantive democratic participation through a practical, value-laden process that permits Aboriginal Australians to proactively provide input toward policy and law that affects them. The Voice intends to establish improved communication between the Commonwealth and the broader Indigenous community in view of securing self-determination, greater equality, sovereignty, Indigenous rights, and recognition,15 while respecting parliamentary supremacy.16

II

FRAMEWORK FOR IMPLEMENTATION

This section advances a framework for enshrining the Voice in the Constitution. Anderson’s Voice proposal will be evaluated.17 With the below amendments, this Voice design is a viable approach to empowering Aboriginal Australians within the constitutional geography.

9

See Expert Panel on Constitutional Recognition of Indigenous Australians, Parliament of Australia, Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution: Report of the Expert Panel (Report, January 2012); Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples, Parliament of Australia, Final Report (2015); Referendum Council, ‘Final Report of the Referendum Council’ (Final Report, Referendum Council, 30 June 2017) 38 <https://www.referendumcouncil.org.au/sites/default/files/report_attachments/Referendum_Council_Final_Rep ort.pdf>; Shireen Morris, ‘Undemocratic, Uncertain and Politically Unviable? An Analysis of and Response to Objections to a Proposed Racial Non-discrimination Clause as Part of Constitutional Reforms for Indigenous Recognition’ (2014) 40(2) Monash University Law Review 488, 495-504.

10 Morris (n 8) 633-4.

11 The term ‘Aboriginal Australians’ is used rather than the more inclusive ‘Aboriginal and Torres Strait Islander peoples’ for brevity and to accord with the terminology of the High Court in Love.

12 Adrian Little, ‘The Politics of Makarrata: Understanding Indigenous–Settler Relations in Australia’ (2020) 48(1) Political Theory 30, 42-51.

13 The term ‘advisory’ is used loosely.

14 Morris (n 8) 653; see generally Anne Twomey, ‘Putting Words to the Tune of Indigenous Constitutional Recognition’, The Conversation (online), 20 May 2015 <https://theconversation.com/putting-words-to-the-tuneof-indigenous-constitutional-recognition-42038>; Anne Twomey, ‘An Indigenous Advisory Body: Addressing Concerns about Justiciability and Parliamentary Sovereignty’ (2015) 8(19) Indigenous Law Bulletin 6, 7-9; Noel Pearson, A Rightful Place: Race, Recognition and a More Complete Commonwealth’ (2014) 55 Quarterly Essay 1.

15 Eddie Synot, ‘The Universal Declaration of Human Rights at 70: Indigenous rights and the Uluru Statement from the Heart’ (2019) 73(4) Australian Journal of International Affairs 320, 323.

16 Referendum Council (n 10) 36-8.

17 Anderson et al (n 7).

57

A Section 129 Anderson proffers s 129, providing that ‘[T]here shall be a First Nations Voice’.18 This is the constituting clause that operates to enshrine the Voice. The proposed function of Anderson’s Voice may be stated simply: ‘The First Nations Voice shall present its views to Parliament and the Executive on matters relating to Aboriginal and Torres Strait Islander peoples.’19 Granting the Voice agency to address the Parliament and the executive is the preferable modality for the Voice,20 enabling a wider ambit for scrutiny toward law and policy assumed by the Commonwealth on Indigenous affairs. Omitting an express advisory or consultative function may present some indeterminacy,21 but this need not be the case; omitting the defining modality to ‘present its views’ increases the latitude of the Voice by allowing it to liaise with government proactively rather than reactively, and to also independently raise avenues for reform for parliamentary consideration.22 Furthermore, indeterminacy borne absent of any express advisory or consultative function presents a felicitous opportunity for the Voice to be privy to policy-making pertaining to the procedure and practice of the Voice itself.23 This is a metaphysical dimension that allows the Voice to intuitively develop within the existing governmental mould in a way that best suits its purpose.

B Justiciability: s 129(2) The authoritative consensus regards non-justiciability as the preferable modality for the Voice.24 As a rule of law, the High Court does not interfere in the deliberative, intramural processes of Parliament, as the Court’s ambit of judicial review is delimited to ‘what is law rather than proposals to make law’.25 A non-justiciable provision would necessarily shift the domain of inquiry and enforcement 18

Ibid 6.

Ibid.

20 Morris (n 8) 653-654; Shireen Morris, ‘The argument for a constitutional procedure for Parliament to consult with Indigenous peoples when making laws for Indigenous affairs’(2015) 26(3) Public Law Review 166, 184; Anne Twomey, ‘An Indigenous Advisory Body: Addressing Concerns about Justiciability and Parliamentary Sovereignty’ (2015) 8(19) Indigenous Law Bulletin 6, 8; see generally Noel Pearson, A Rightful Place: Race, Recognition and a More Complete Commonwealth’ (2014) 55 Quarterly Essay 1.

21 Anderson et al (n 7) 7.

22 Morris (n 8) 666.

23 As the Voice, once created, would necessarily become a subject matter ‘relating to Aboriginal and Torres Strait Islander peoples’.

24 Morris (n 8) 653-654; Morris (n 9) 268-73; see generally Noel Pearson, A Rightful Place: Race, Recognition and a More Complete Commonwealth’ (2014) 55 Quarterly Essay 1; Twomey (n 21) 8-9; Fr Frank Brennan SJ AO, ‘Contours and prospects for Indigenous recognition in the Australian Constitution and why it matters’ (Speech, 21st Australasian Institute of Judicial Administration Oration in Judicial Administration, 16 October, 2015).

25 Glenn Worthington, ‘How Far Do Sections 53 and 56 of the Australian Constitution Secure a Financial Initiative of the Executive?’ (Parliamentary Studies Paper 12, Australian National University) 4. See also 19

58

unto the Voice from the judiciary toward the Parliament and the remit of executive influence. This obviates from capricious, possibly destructive, judicial oversight,26 that may erode the ongoing efficacy of the Voice were it justiciable and enforced through litigation.27 Absent veto power,28 non-justiciability necessarily means the recommendations of the Voice are nonbinding, and therefore liable to being ignored or dismissed. 29 This dulls the prospect of effecting tangible cross-cultural institutional interaction by placing reliance on moral persuasion rather than legal obligation in following the Voice’s recommendations.30 This underlines the common anxieties of institutionally shared rules in decision making,31 where alternative views may be dismissed or rejected by the dominant body without democratic or adversarial recourse, 32 which is historically consistent with governmental attitudes toward Indigenous claims.33 Thus, lacking any ‘teeth’34 a Voice of this design may merely add additional steps to being overlooked yet again. However, within the enabling legislation, a tabling function in tandem with statutory authorisation for Voice delegates to attend, address and respond to Parliament should be implemented to improve parliamentary availability of the Voice’s views,35 while concurrently enhancing the exposure and special authority of the Voice by being present during parliamentary proceedings.36 A concomitant obligation placed upon

‘proposed laws’ under s 53 of the Constitution in Osborne v Commonwealth (1911) 12 CLR 321, 336, 339; Western Australia v Commonwealth (1995) 183 CLR 373, 482; Henry Burmester, ‘Locus Standi in Constitutional Litigation’ in H P Lee and George Winterton (eds), Australian Constitutional Perspectives (Law Book Company, 1992) 148, 178 “the primacy of the political process and the subsidiary role of the judiciary”.

26 Morris (n 8) 659-660.

27 Ibid.

28 Anderson et al (n 7) 8-9.

29 Ibid; see also Megan Davis and Rosalind Dixon, ‘Constitutional Recognition through a (Justiciable) Duty to Consult? Towards Entrenched and Judicially Enforceable Norms of Indigenous Consultation’ (2016) 27(4) Public Law Review 249, 258.

30 Anne Twomey, ‘An Indigenous Advisory Body: Addressing Concerns about Justiciability and Parliamentary Sovereignty’ (2015) 8(19) Indigenous Law Bulletin 6.

31 See generally Harry Hobbs, ‘Aboriginal and Torres Strait Islander peoples and multinational federalism in Australia’ (2018) 27(3) Griffith Law Review 307, 322-4.

32 Morris (n 8) 663-6; Davis and Dixon (n 30) 258.

33 See generally Patrick Dodson, ‘Until the Chains are Broken’ (Speech, Vincent Lingiari Memorial Lecture, 8 September 1999); Noel Pearson, ‘Next Step for the Nation is to Leave Race Behind’, The Australian (25 May 2013) <https://www.theaustralian.com.au/national-affairs/in-depth/next-step-is-for-australia-to-leave-racebehind/news-story/f9acee8f859d79f8f3fac2b374d1300a>.

34 Megan Davis, ‘Some say a voice to parliament is toothless. But together our voices are powerful’, The Guardian, (Australia) 13 August 2020 <https://www.theguardian.com/commentisfree/2020/aug/13/some-say-avoice-to-parliament-is-toothless-but-together-our-voices-are-powerful>.

35 Anne Twomey, ‘An Indigenous Advisory Body: Addressing Concerns about Justiciability and Parliamentary Sovereignty’ (2015) 8(19) Indigenous Law Bulletin 6, 8-9; see also Shireen Morris, 'The Torment of Our Powerlessness’: Addressing Indigenous Constitutional Vulnerability through the Uluru Statement’s Call for a First Nations Voice in Their Affairs’ (2018) 41(3) University of New South Wales Law Journal 629, 666-7.

36 Morris (n 8) 666-7; see generally Fergal Davis, ‘The Problem of Authority and the Proposal for an Indigenous Advisory Body’ (2015) 8(19) Indigenous Law Bulletin 23.

59

the relevant minister to justify their ignoring or dismissing the Voice is also desirable to facilitate the leveraging of public pressure against Parliament, should cavalier disregard for the Voice occur.37

C Design: s 129(3) Here, the greatest strength of Anderson’s Voice is showcased: its flexibility. Anderson’s design employs the practice of constitutional deferral to define the basal elements of the Voice without entrenching its design;38 instead, the Voice would be developed through legislation.39 This method is preferable to static recognition,40 as it provides a narrow, but dynamic modality for Indigenous constitutional recognition focused on maximising the continuing efficiency in constitutionally empowering Indigenous peoples.41 This form of recognition has the innate capacity to allow reform to occur cumulatively, through progressive, qualitative legislative change following plurinational, shared-rule approaches to constitutional recognition and empowerment.42 Given this, adapted institutional procedures facilitating bicultural interaction beyond the unitary, dominant set of values are necessary.43 These procedures should aim to foster an environment that respects and accommodates Indigenous voices,44 because those procedures delineate the terms and parameters of Indigenous input. Similarly, eliminating partisan diminution or over-politicisation of the Voice is critical in ensuring meaningful institutional empowerment is created for Aboriginal Australians. The numerous safeguards operating within Anderson’s design, in conjunction with their adherence to the Uluru Guiding Principles, protect against hyper-partisanship subsuming the Voice.45 This has the effect of ensuring the Voice is not cultivated in a political vacuum that subjugates Aboriginal

37

John Chesterman, ‘National Policy-Making in Indigenous Affairs: Blueprint for an Indigenous Review Council’ (2008) 67 Australian Journal of Public Administration 419, 424.

38 See generally Rosalind Dixon and Tom Ginsburg, ‘Deciding not to decide: Deferral in constitutional design’ (2011) 9 International Journal of Constitutional Law 636, 637-9, 641-6, 655-7, 658-63.

39 Ibid 637-46.

40 See generally Megan Davis, ‘Political Timetables Trump Workable Timetables: Indigenous Constitutional Recognition and the Temptation of Symbolism over Substance’ in Simon Young, Jennifer Nielsen and Jeremy Patrick (eds), Constitutional Recognition of First Peoples in Australia (Federation Press 2016) 62, 81, 88.

41 Benjamen Franklen Gussen, ‘A Comparative Analysis of Constitutional Recognition of Aboriginal Peoples’ (2017) 40(3) Melbourne University Law Review 867, 877-81.

42 Ibid 877-80, 887-889.

43 Morgan Brigg and Lyndon Murphy, ‘Beyond Captives and Captors: Settler-Indigenous Governance for the 21st Century’ in Sarah Maddison and Morgan Brigg (eds), Unsettling the Settler State: Creativity and Resistance in Indigenous Settler-State Governance (Federation Press 2011) 16, 21.

44 Dale Turner, This is Not a Peace Pipe: Towards a Critical Indigenous Philosophy (University of Toronto Press, 2006) 94; see also James Tully (2005) ‘Exclusion and Assimilation: Two Forms of Domination in Relation to Freedom’ in Melissa Williams and Stephan Macado (eds), Political Exclusion and Domination (New York University Press, 2005) 213-4.

45 Anderson et al (n 7) 12-29.

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Australians, and endures to remain an Indigenous-led institution that accommodates and values their unique input.

III

LOVE: OVERVIEW

The High Court in Love was tasked with determining whether the plaintiffs, Love and Thoms, whom each claimed Indigenous ancestry,46 but did not possess Australian citizenship under statute,47 could rightly be considered ‘aliens’ under s 51(xix) of the Constitution,48 for the purpose of deportation following visa cancellation.49 By a 4:3 majority, the Court held that Aboriginal Australians could not answer to the description of ‘alien’ under the Constitution.50

IV

IMPACT OF LOVE

A Sovereignty Love invokes the politics of sovereignty. The Court observed the imposition of Crown sovereignty as non-justiciable, such that it is an unchallengeable, supra-constitutional fact of Australian existence.51 However, the consequences incidental to the imposition of sovereignty, are justiciable.52 The Court affirmed that Crown sovereignty, and therefore authority, is supreme.53 Kiefel CJ viewed that ceding constitutional authority to Indigenous peoples on the question of alienage would imbue Indigenous peoples with the sovereignty implicitly rejected in Mabo,54 and expressly rejected in subsequent cases.55 Gageler and Gordon JJ rejected any compact of existing Indigenous sovereignty.56 Indeed, Gordon J went so far as to suggest that the unequivocal acceptance of Aboriginal Australians as ‘part 46

Love (n 4) 603 [21]– [22] (Kiefel CJ).

Love (n 4) 598-9 [2]-[3] (Kiefel CJ); see Australian Citizenship Act 2007 (Cth).

48 Love (n 4) 599-300 [4]-[8] (Kiefel CJ); see Australian Constitution s 51(xix).

49 Love (n 4) 633 [153] (Keane J); 652 [240] (Nettle J); see Migration Act 1958 (Cth).

50 Love (n 4) 716.

51 Ibid 660-1 [264]-[265] (Nettle J), citing Brennan J in Mabo v Queensland [No 2] (1992) 107 ALR 1, 20 (‘Mabo’).

52 Ibid.

53 Ibid 604 [25], 606 [37] (Kiefel CJ), 623 [102] (Gageler J), 643 [199]-[202] (Keane J), 660 [264] (Nettle J), 683 [356]-[357] (Gordon J).

54 Ibid 604 [25] (Kiefel CJ), citing Brennan J in Mabo (n 51) 107 ALR 1, 53.

55 Ibid (Kiefel CJ), citing Coe v Commonwealth (1993) 68 ALR 110, 115; Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422 (‘Yorta Yorta’).

56 Ibid 623 [102] (Gageler J), citing R v Murrell (1836) 1 Legge 72, 73; R v Wedge [1976] 1 NSWLR 581; Coe v Commonwealth (1979) 24 ALR 118 at 128–9, 132–3, 137–8.164; Coe (on behalf of the Wiradjuri tribe) v Commonwealth (1993) 118 ALR 193, 199–200; Walker v New South Wales (1994) 182 CLR 45, 48–9; Mabo (n 51), see also 683 [356] (Gordon J).

47

61

of the people of Australia’57 necessarily precludes Indigenous people retaining or possessing a sovereignty that is separate from any other part of the ‘people’.58 Yet such a view only endures because, as a distinct political community, Indigenous sovereignty went and remains unrecognised against the background of settlers who imposed their own agonistic sovereignty.59 In this respect, Love accentuates the need for political action to effect the structural change necessary to receive Indigenous sovereignty through the Voice.60 Indigenous sovereignty exists in comity with Crown sovereignty. 61 The modern tenor of Indigenous sovereignty is divorced from the separatist sentiment that commonly invites claims of ‘competition’ to Crown sovereignty.62 For Aboriginal Australians, sovereignty entails the autonomy and selfdetermination that imbues Indigenous communities the agency to be the architects of, rather than subjects under, law and policy.63 The Uluru Statement underpins a spiritual sovereignty common to Indigenous peoples,64 predicated upon ancestral ties to land,65 the two-way ‘ownership of the soil’66 that denotes their sui generis relationship with Australia,67 and the sovereignty ‘which has never been ceded or extinguished, and co-exists with the sovereignty of the Crown’.68 The Uluru Statement requests a Voice because of this enduring, yet denied, sovereignty to remedy ‘the torment of our powerlessness’.69 The Voice is compatible with Crown sovereignty because it seeks to reform

57

Ibid.

Ibid; cf R v Murrell (1836) 1 Legge 72 available at <http://www.law.mq.edu.au/research/colonial_case_law/nsw/cases/case_index/1836/r_v_murrell_and_bummare e/>.

59 Shireen Morris, ‘Love and Thoms: Implications for Indigenous Constitutional Recognition’ (2020) Federal Law Review (In press) 17-18 (Note: the author received an advanced copy from Dr. Morris; the final product may reflect some structural changes); cf R v Ballard [1829] NSWSC 26 (Dowling J) available at <http://www.law.mq.edu.au/research/colonial_case_law/nsw/cases/case_index/1829/r_v_ballard_or_barrett/>.

60 See, eg, Love (n 4) 630-1 [134] (Gageler J), 639 [178] (Keane J), 715 [467] (Edelman J).

61 Morris (n 8) 85-90; Larissa Behrendt, Achieving Social Justice: Indigenous Rights and Australia’s Future (The Federation Press, 2003) 102-103; see generally Beth McKenna & Ben Wardle, ‘Usurping Indigenous sovereignty through everchanging legal fictions’ (2019) 28(1) Griffith Law Review 37.

62 Morris (n 8) 85-90.

63 Mick Dodson, ‘Towards the Exercise of Indigenous Rights: Policy, Power and Self-Determination’ (1994) 35(4) Race and Class 65, 65-66.

64 ‘Uluru Statement from the Heart’ (First Nations National Constitutional Convention, 26 May 2017) (‘Uluru Statement’) <https://www.referendumcouncil.org.au/sites/default/files/201705/Uluru_Statement_From_The_Heart_0.PDF>; cf Western Sahara (Advisory Opinion) [1975] ICJ Rep 12, 85– 86 (Vice-President Ammoun).

65 Ibid.

66 Ibid.

67 See Love (n 4) 615 [74] (Bell J).

68 Referendum Council (n 17) i.

69 Morris (n 8) 644-6.

58

62

fractious Indigenous-settler relationships by striking an equitable, shared-rule type equilibrium that empowers Aboriginal Australians without abrogating or derogating existing Crown authority.70 Where the Uluru Statement provides a sense that ‘the atom of sovereignty can be split’,71 such that our sovereignty may be divisible, the underlying communitarian and egalitarian values of the Australian federal structure may yield to affirm this by affording an Indigenous voice to Parliament.72 Federalism operates to organise and unify fragmented sovereign communities under a centralised shared-rule, self-rule type system that ensures equal power and representation,73 regardless of the proportionate size of the communities it ascribes.74 In comity with this view, Aboriginal Australians, as a political community,75 may be apportioned space within the Constitution to exercise distinct constitutional privilege through a representative Voice that enables participation in legislative decision-making on the federal scale.76 This would not contravene the principal objection to Indigenous sovereignty that rebukes parallel law-making systems,77 which definitionally fractures the ‘skeletal principle’ of Crown sovereignty itself.78 Indeed, no such fracture may present where there remains an unfragmented whole; the Indigenous connection with land that forms their sovereignty was not severed by settlement,79 and exists harmoniously with Crown sovereignty.80 The Voice and the sovereignty described in the Uluru Statement would seem to unnecessarily traverse between two worlds. Indigenous sovereignty secured by the Voice does not usurp authority, as much

70

Ibid; see also Dylan Lino, ‘Towards Indigenous Settler Federalism’ (2017) 28 Public Law Review 118, 134; Dylan Lino, ‘The Uluru Statement: Towards Federalism with First Nations’ on Australian Public Law (13 June 2017) <https://auspublaw.org/2017/06/towards-federalism-with-first-nations/>.

71 Dylan Lino, ‘Constitutional Recognition of Australia’s Indigenous Peoples: Law, History and Politics’ (PhD Thesis, The University of Melbourne, 2017) 221, citing US Term Limits, Inc v Thornton, 514 US 779, 838 (1995) (Kennedy J).

72 Morris (n 8) 71, 97-100, 250; see also Murray Gleeson, ‘Recognition in Keeping with the Constitution’ (2019) 93 Australian Law Journal 929, 935-6; Nicholas Aroney, ‘Reasonable Disagreement, Democracy and the Judicial Safeguards of Federalism’ (2008) 27(1) University of Queensland Law Journal 129, 139-140. Dylan Lino, ‘Towards Indigenous Settler Federalism’ (2017) 28 Public Law Review 118, 134; Dylan Lino, ‘The Uluru Statement: Towards Federalism with First Nations’ on Australian Public Law (13 June 2017) <https://auspublaw.org/2017/06/towards-federalism-with-first-nations/>.

73 William H. Riker, Federalism: Origin, Operation, Significance (Little Brown, Boston, 1964) 11-14.

74 New South Wales v Commonwealth (2006) 229 CLR 1, 322; Australian Constitution s 7; see also Murray Gleeson, ‘Recognition in Keeping with the Constitution’ (2019) 93 Australian Law Journal 929, 935-6. (Thus, federalism definitionally may cater to minority political communities by allowing them equal access to democratic decision-making power).

75 Morris (n 60) 11-16.

76 Dylan Lino, ‘Towards Indigenous Settler Federalism’ (2017) 28 Public Law Review 118, 129.

77 Yorta Yorta (n 55) 552 [44] (Gleeson CJ, Gummow and Hayne JJ).

78 Mabo (n 51) 29 (Brennan J).

79 Love (n 4) 669 [289] (Gordon J), citing Mabo (n 51) at CLR 15, 51–2, 57–8, 61, 68–70, 100, 184; Wik Peoples v Queensland (1996) 187 CLR 1 at 180, 206–7; Fejo (on behalf of the Larrakia People) v Northern Territory (1998) 195 CLR 96; Yanner v Eaton (1999) 201 CLR 351; Commonwealth v Yarmirr (2001) 208 CLR 1; Western Australia v Ward (2002) 213 CLR 1; Yorta Yorta (n 55); Northern Territory v Griffıths (on behalf of the Ngaliwurru and Nungali Peoples) (2019) 93 ALJR 327.

80 Morris (n 8) 88-90.

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as the Voice itself is not a command nor directive; it is a request for Aboriginal Australians to have a voice in their affairs.81 The tension between Crown and Indigenous sovereignty in Love dissipates at sight of the Uluru Statement and its call for a Voice. Anderson’s Voice proposes an entrenched intergovernmental ‘cog’ in the machinery of government that co-exists with the presupposed dominance of Crown sovereignty and concomitant parliamentary supremacy. Enshrining Anderson’s Voice design would imbue Aboriginal Australians with the power to express their sovereignty in a manner consistent with the sovereignty of the Crown enunciated in Love.82

B Equality and Difference The distinction between formal and substantive equality, and the role of Indigenous difference within that dichotomy was, at times, frustrated in Love. The minority proffered a somewhat trite account of equality. Their Honours noted that upon the imposition of British83 sovereignty and the resultant inception of common law in Australia, all Indigenous persons residing within Australia were accorded subjecthood, and thus afforded the same legal status as other Australians.84 The constitutional position of Aboriginal Australians was explored, with the Court observing a lack of constitutional text supporting the implication of Indigenous constitutional privilege distinct to non-Aboriginal Australians to warrant differential treatment.85 This endeavour to affix a comparator group to characterise the rights and legal privileges of Aboriginal Australians overlooks the difference-driven exclusion of Aboriginal Australians from the Constitutional compact as the historically relevant problem.86 The minority view is suffused with facets of the same recurrent problem that rallies objection against the Voice and restricts Indigenous recognition dialogues:87 misplaced reliance on the ‘ethic of formal equality’88 furnished through treating unequal matters similarly, in disregard of 81

Morris (n 8) 658; see also Russell A. Miller, ‘Collective Discursive Democracy as the Indigenous Right to Self-Determination’ (2006) 31 American Indian Law Review 341, 371.

82 Love (n 4) 604 [25], 606 [37] (Kiefel CJ), 623 [102] (Gageler J), 643 [199]-[202] (Keane J), 660 [264] (Nettle J), 683 [356]-[357] (Gordon J).

83 That is, Crown sovereignty.

84 Love (n 4) 600 [9], 604 [27] (Kiefel CJ), 623 [102], 624-5 [108]-[110] (Gageler J), 634 [160] (Keane J) citing Mabo (n 51) 25-6 (Brennan J).

85 Ibid 639 [178]-[180], 640 [182] (Keane J).

86 See generally Morris (n 8) ch 2.

87 See, eg, Malcolm Turnbull, Prime Minister, George Brandis, Attorney-General, and Nigel Scullion, Minister for Indigenous Affairs, ‘Response to Referendum Council’s Report on Constitutional Recognition’ (Media Release), 26 October 2017 https://parlinfo.aph.gov.au/parlInfo/download/media/pressrel/5596294/upload_binary/5596294.pdf; John Roskam and Simon Breheny, ‘Indigenous Treaty Would Divide Australia into Two Nations According to Race’, Sydney Morning Herald (online), 30 May 2017 https://www.smh.com.au/opinion/indigenous-treaty-woulddivide-australia-into-two-nations-according-to-race-20170530-gwgcjm.html; see also Megan Davis, ‘The Long Road to Uluru’ (2018) 60 Griffith Review 13.

88 The Right Honourable Beverley McLachlin CJ, ‘The Civilization of Difference’ (Speech, Opening Address at the 14th Lafontaine-Baldwin Symposium, Nova Scotia, March 7, 2003) https://www.scc-csc.ca/judgesjuges/spe-dis/bm-2003-03-07-eng.aspx.

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existing differences. 89 The minority view implicitly embraces the formal equality that alienates the realities of substantive inequality that is ‘subsuming legitimate difference’,90 and ‘de-legitimising the genuine position of the First Nations’,91 which in turn operates to undermine the bases that justify structural reforms like the Voice proposal.92 Australia has struggled with difference. Within the four corners of Australia’s liberal democratic constitutional framework, Indigenous claims inconsistent to the majoritarian expression are typically dismissed.93 This arises as rejection to that which violates the perceived commonality laying at the core of Australian national identity,94 driven by the logic that no group distinct to the presumed homogenous majority should be accorded ‘rights that are not enjoyed by another group’.95 While the Constitution does not imbue Aboriginal Australians with constitutional privilege distinct to nonAboriginal Australians, the implication of equality on that footing overlooks the salient detail: the omission of Aboriginal Australians at federation denotes the lack of cultural neutrality to our Constitution,96 which omits any express ideal of equality.97 It defers remedy for the ‘dispossession that underwrote the development of the nation’,98 and disregards a constitution that historically marshals exclusively against Aboriginal Australians.99 The utility and extent at which formal equality applies in Australia is such that the functional rubric of equality cannot be one-dimensional.100 Relative equality permitting differential treatment toward Aboriginal Australians manifests through history. The common law observes pre-existing ‘special’

89

See Street v Queensland Bar Association (1989) 168 CLR 461, 571 (Gaudron J), citing South West Africa Cases (Second Phase) [1966] ICJR 6, 305-6 (Tanaka J).

90 Michael Dodson, ‘Sovereignty’ (2002) 4(1) Balayi: Culture, Law and Colonialism 13, 61.

91 Ibid.

92 See Megan Davis, ‘The Long Road to Uluru’ (2018) 60 Griffith Review 13.

93 Morris (n 8) 663-6.

94 Megan Davis, ‘Ships that Pass in the Night’ in Megan Davis and Marcia Langton (eds), It’s Our Country: Indigenous Arguments for Meaningful Constitutional Recognition and Reform (Melbourne University Press, 2016) 86.

95 Larissa Behrendt, Achieving Social Justice: Indigenous Rights and Australia’s Future (Federation Press, 2002) 3.

96 Morris (n 8) 82-3, citing Charles Taylor, ‘Multiculturalism and the Politics of Recognition’ in Amy Gutman (ed), Multiculturalism (Princeton University Press 1994) 61-2.

97 Kruger v Commonwealth (1997) 190 CLR 1, 64-5 (Dawson J); Sarah Joseph, ‘Kruger v Commonwealth: Constitutional Rights and the Stolen Generations’ (1998) 24 Monash University Law Review 486, 491–2; see also Leeth v Commonwealth (1992) 174 CLR 455.

98 Mabo (n 51) 50 (Brennan J).

99 See Australian Constitution s 51(xxvi); Kartinyeri v The Commonwealth (1998) 195 CLR 337; Robert French, ‘The Race Power: A Constitutional Chimera’ in H P Lee and George Winterton (eds), Australian Constitutional Landmarks (Cambridge University Press, 2003) 180, 199–208; George Williams, ‘Thawing the Frozen Continent’ (2008) 19 Griffith Review 11, 25; Darryl Cronin, ‘Trapped by history: democracy, human rights and justice for indigenous people in Australia’ (2017) 23(2) Australian Journal of Human Rights 220, 225.

100 See Love (n 4) 711 [454] (Edelman J), 662 [267] “at least in theory…” (Nettle J); cf Murray Gleeson, “Recognition in Keeping with the Constitution” (2019) 93 Australian Law Journal 929, 935-6.

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rights and interests,101 while statute continues to observe cultural heritage protection,102 and native title.103 While Aboriginal Australians do now possess the legal privileges affixed to formal citizenship, their minority status disables them from effectively influencing substantive law and policy as a political community within the federal structure. 104 This subjugates them from formative political processes,105 which excises them ‘from the life of the ‘true’ political community’106 exclusively enjoyed by the dominant community.

The majority in Love comport a nuanced view of equality and Indigenous difference. Edelman J, proceeding upon the proliferation of antecedent Indigenous rights,107 observed that such a shift in the legal geography does not now confine Indigenous people into the statutorily governed, predominantly homogenous, Australian political community.108 To observe blanket assimilation predicated upon unitary legal standards amounts to a denial of Indigenous difference and community,109 and perpetuates non-recognition of their distinct atomistic being. Edelman J understood this well, aptly stating: ‘To treat differences as though they were alike is not equality. It is a denial of community. Any tolerant view of community must recognise that community is based upon difference.’ 110 The approach of Edelman J placates the apparent tension between the interrelated concepts of equality and difference. Addressing equality requires questioning and recognising existing difference; and where present, implementing different treatment adapted to the differences. 111 Anderson’s Voice proposal can appease this by operating to ameliorate the position of Aboriginal Australians by providing the institutional empowerment necessary to aid in better recognising and conciliating difference in the equation of equality within the constitutional mould.

101

See, eg, Mabo (n 51) 41–2 (Brennan J).

See Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth).

103 See Native Title Act 1993 (Cth).

104 See Thomas Christiano, ‘Reply to Critics of ‘The Constitution of Equality’ (2011) 5(3) Journal of Ethics and Social Philosophy 1, 12-4.

105 H. N. Hirsh, ‘The Threnody of Liberalism: Constitutional Liberty and the Renewal of Community’ (1986) 14(3) Political Theory 423, 437; see also Thomas Christian, The Constitution of Equality (Oxford University Press, New York, 2010) 296.

106 H. N. Hirsh, ‘The Threnody of Liberalism: Constitutional Liberty and the Renewal of Community’ (1986) 14(3) Political Theory 423, 437; cf Rowe v Electoral Commissioner (2010) 243 CLR 1, 111-2 [344] (Crennan J), citing John Stuart Mill, Considerations on Representative Government (2nd ed, 1861) Ch III. 107 Love (n 4) 710-1 [453]-[454].

108 Ibid [453].

109 Ibid.

110 Ibid.

111 Mary Gaudron, ‘Speech to launch Australian Women Lawyers’ (1998) 72 Australian Law Journal 119, 1234.

102

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V

CONCLUSION

‘In 1967 we were counted, in 2017 we seek to be heard.’112

The exclusion of Aboriginal Australians from the Constitution remains a glaring omission, at tension with the growing consensus favouring Indigenous constitutional empowerment.113 The proclivity of the Constitution to form a merely mechanical, fundamentally constituting rulebook114 should now transcend its basal function for good governance of state to underpin the well-defined value of the Uluru Statement and its call for an entrenched Voice in the Constitution. The disposition of the High Court in Love ought to not prompt pause in pursuance of this object of entrenching a Voice; rather, it should offer stay to the very purpose of the Voice by its restatement of the special relationship Aboriginal Australians maintain with the land of Australia. Against the backdrop of Love, the highwater mark of the Uluru Statement forms the apt gravamen for constitutional reform, such that the sovereignty advanced by the Uluru Statement ought to now crash, with all available impetus, across the body politic of Australia through referendum, so we may each walk together on a path beyond Uluru.

112

Referendum Council (n 17) i.

See generally Calla Wahlquist, ‘Most Australians Would Support Indigenous Voice to Parliament Plan that Turnbull Rejected’, The Guardian (online), 30 October 2017 https://www.theguardian.com/australianews/2017/oct/30/most-australians-support-indigenous-voice-to-parliament-plan-that-turnbull-rejected; Paige Taylor, ‘It’s time: growing support for Indigenous voice’, The Australian (online), 21 November 2020 https://www.theaustralian.com.au/nation/politics/its-time-growing-support-for-indigenous-voice/newsstory/9cf42760af1daffed00852eff55fcc50.

114 Sir Anthony Mason, ‘The Australian Constitution in Retrospect and Prospect’ in Robert French, Geoffrey Lindell and Cheryl Saunders (eds), Reflections on the Australian Constitution (Federation Press, 2003) 7, 8.

113

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68

GOLDILOCKS AND THE LEGALITY/MERITS DISTINCTION: EVALUATING LIMITATIONS ON DISCRETIONARY POWERS THROUGH JUDICIAL REVIEW

ELISE MILLER

I

INTRODUCTION

In recent decades, Australian administrative law has seen a profound increase in the scope of judicial review of discretionary powers.1 The majority judgement in Minister for Immigration and Citizenship v Li2 (‘Li’) reformulated the judicial review ground of unreasonableness, which already held a controversial place in Australian administrative law due to the legality/merits distinction.3 In accordance with the distinction, reviewing courts have a supervisory role through judicial review to evaluate the legality, not the merits, of administrative decisions. 4 The important role of judicial review as a mechanism of government accountability was described by Brennan J in Church of Scientology v Woodward,5 which states that ‘judicial review … is the means by which executive action is prevented from exceeding the powers and functions assigned to the executive by law and the interests of the individual are protected accordingly.’6

Concerningly, for many years the legislative and executive arms have tried to evade judicial review through privative clauses: provisions attempting to preclude or restrict access to judicial review of administrative decisions.7 This policy submission will argue that while the scope of judicial review is increasing, the judiciary is not crossing the line into conducting an impermissible merits review. Rather, an increase in scope is necessary with respect to the judiciary performing an essential function as an accountability mechanism of the executive, ever-increasingly important as the legislature and executive attempt to ‘opt-out’ of recourse to 1

Martin Smith, ‘“According to law, and not humour”: Illogicality and administrative decision-making after SZMDS’ (2011) 19 Australian Journal of Administrative Law 33, 33.

2 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (‘Li’).

3 Rossana Panetta, ‘Wednesbury Unreasonableness: Judicial or Merits Review?’ (2002) 9 Australian Journal of Administrative Law 191, 191.

4 Greg Weeks, ‘The Expanding Role of Process in Judicial Review’ (2008) 15(2) Australian Journal of Administrative Law 100, 101; Attorney-General (NSW) v Quin (1990) 170 CLR 1, 35–36 (Brennan J).

5 Church of Scientology Inc v Woodward (1980) 154 CLR 25.

6 Ibid 70.

7 Stuart Brady, ‘Privative Clauses: A Universal Approach and its Underpinnings’ (2007) 56 AIAL Forum 48, 48.

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judicial review. In doing so, this submission will first address the nature of discretionary powers and the implications for limiting executive action through judicial review, providing context regarding the separation of powers doctrine and the rule of law. Secondly, it will critically analyse in-depth the effect of widening the test of reasonableness in Li with regard to the legality/merits distinction, as well as implications for the courts adopting a notion of proportionality. Thirdly, it will discuss the relevant considerations ground of judicial review and its position regarding the legality/merits distinction. And finally, this submission will look to the court’s necessary ability to review discretion in the face of privative clauses.

II

DISCRETIONARY POWER, THE SEPARATION OF POWERS, AND THE RULE OF LAW

It is useful to begin a discussion of the limitations judicial review places on administrative discretion by delineating the concepts of the separation of powers, the legality/merits distinction, discretionary powers and the rule of law. The legality/merits distinction is a dichotomy supporting the constitutionally entrenched separation of power doctrine.8 The executive arm exercises executive power and the judicial arm exercises judicial power.9 Judicial review is not permitted to review the merits of administrative action, by ‘standing in the shoes’ of a primary decision-maker, as doing so would step outside the courts’ jurisdiction.10 Accordingly, the role of judicial review is ‘to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned.’11 While Davis argues discretionary powers have necessary practical value for executive action,12 appropriate accountability mechanisms to confine discretionary power within legal limitations are equally necessary with respect to the rule of law and the separation of powers. Discretionary powers are present when statute leaves a decision-maker the ‘choice’ among courses of inaction or action,13 allowing decision-makers to tailor their decisions, taking into account the 8

Janina Boughey, ‘The Reasonableness of Proportionality in the Australian Administrative Law Context’ (2015) 43 Federal Law Review 59, 60.

9 Matthew Groves, ‘The Return of the Almost Absolute Statutory Discretion’ in Janina Boughey and Lisa Burton Crawford (eds) Interpreting executive power (Federation Press, 2020) 129, 140.

10 Attorney-General (NSW) v Quin (1990) 170 CLR 1, 35-36 (Brennan J).

11 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 40-1 (Mason J) (‘Peko-Wallsend’).

12 Kenneth C Davis, Discretionary Justice: A Preliminary Inquiry (Louisiana State University Press, 1969) 3642.

13 Groves (n 9) 130.

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‘unique facts and circumstances of particular cases’.14 However, as discretionary powers have the potential for inconsistent and arbitrary application they can be seen as conflicting with the rule of law, conceptualised simply by Albert V Dicey as all citizens being equally subject to laws enacted by the legislature.15 As Lynch argues, through the separation of powers doctrine, the accountability of administrative decision-making through judicial review is complementary to the rule of law.16 In this light, judicial review is undoubtedly an important mechanism of government accountability and upholds the rule of law, with respect to the constitutional values underpinning the Australian Government and legal system, 17 by confining the legal limits of executive action.

As will be shown next, judicial review has not overstepped its jurisdiction in reviewing on the merits of a decision, despite the increasing scope of judicial review to review discretionary decisions. Instead, it is a function of the judiciary’s role in appropriately limiting excess executive power.

III

UNREASONABLENESS

A Shifting standards of unreasonableness The significance of Li formulations of unreasonableness, and its controversial status as verging on merits review, emerge when comparing Li to a prior and more strict test of unreasonableness. The standard of unreasonableness prior to Li was attributed, rightly or wrongly,18 to the decision of Lord Greene in Associated Provisional Picture Houses Ltd v Wednesbury Corporation (‘Wednesbury’).19 Termed ‘Wednesbury unreasonableness’, the test concerned whether a decision was ‘so unreasonable that no [administrative decision-maker] could ever have come to it’.20 Lord Greene emphasised in Wednesbury there must be ‘something overwhelming’ or ‘so absurd’, that it would cast the decision outside the decision14

Kenneth C Davis, Discretionary Justice: A Preliminary Inquiry (Louisiana State University Press, 1969) 17.

Albert V Dicey, An Introduction to the Study of the Law of the Constitution (St Martins Press, 10th ed, 1961); R (Nicklinson) v Ministry of Justice [2015] AC 657, 837 [238].

16 Andrew Lynch, ‘Is Judicial Dissent Constitutionally Protected?’ (2004) 4 Macquarie Law Journal 81.

17 Andrew Sykes, ‘The ‘Rule of Law’ As An Australian Constitutional Promise’ (2002) 9(1) Murdoch University Electronic Journal of Law 1, 2-5.

18 Li (n 2) 364 [68].

19 [1948] 1 KB 223.

20 Ibid 234 (Lord Greene MR).

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maker’s powers.21 Thus, the test held a high threshold, described by Aronson as the ‘lunatic standard’:22 the decision had to be outrageous or completely devoid of merit to warrant judicial intervention.23

This high threshold of unreasonableness, as advocated for in Wednesbury, can be attributed to courts’ consciousness of maintaining the legality/merits distinction. The ground of review was intended to vitiate only a restricted class of decisions, so unreasonable they exceed the powers entrusted to the decision-maker by Parliament, not those less reasonable than the reviewing court would have decided.24 The latter would necessarily involve the court substituting its own view for that of the decision-maker, therefore impermissibly reviewing a decision on its merits.

Despite its high threshold, Wednesbury unreasonableness has been described as ‘a constant source of judicial torment’ with courts continually stating the scope of their jurisdiction so as not to exceed their function and conduct a merits review.25 Cane argues Wednesbury unreasonableness is, in essence, a hidden merits review as the question of whether a decision is reasonable inevitably considers the merits of that decision.26 Smith argues that, at least prior to Li, there was a ‘prevailing consensus’ amongst Federal and Supreme Court judges that illogicality in reasoning ‘is not synonymous with error of law’.27 Accordingly, the High Court in loosening the standard of unreasonableness in Li to include illogical or irrational decisions,28 as well as those giving disproportionate weight to some factor,29 has bred concern of a ‘slippery slope’ into merits review. One decision-maker has described a burgeoning ‘judicial creep’, exemplified by the loosened standard in Li, whereby courts bring any matter they wish within the realm of judicial review.30 As discussed later, reasonableness can indeed be a means of

21

Ibid 30 (Lord Greene MR).

Mark Aronson, ‘The Growth of Substantive Review: The Changes, Their Causes and their Consequences” in John Bell, Mark Elliott, Jason Varuhas and Philip Murray (eds), Public Law Adjudication in Common Law Systems: Process and Substance (Hart Publishing, 2016) 9.

23 See Wednesbury (n 19).

24 Panetta (n 3) 196; Attorney General (NSW) v Quin (1989) 170 CLR 1, 36 (Brennan J).

25 Panetta (n 3) 191.

26 Peter Cane, ‘Merits Review and Judicial Review – The AAT as Trojan Horse’ (2000) 28 Federal Law Review 213, 221.

27 Smith (n 1) 33.

28 Li (n 2) 365-6 [72] (Hayne, Kiefel and Bell JJ).

29 Ibid.

30 Chris Wheeler, ‘Judicial Review of Administrative Action: An administrative decision-maker’s perspective’ (2016) 87 AIAL Forum 79, 79.

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judicially reviewing decisions in circumstances otherwise verging upon merits review, such as proportionality or relevant considerations.

However, on a practical level, ensuring discretion is exercised with evident and intelligent justification, and is a proportionate response, encourages better decision-making by those in power.31 This provides strong support for reasonableness not only as an accountability mechanism of power, but also as beneficial to those who are affected by administrative decisions. Nonetheless, the focus of the courts is on legality of decisions, regarding the limits of the exercise of power, as demonstrated by unreasonableness arising from statutory construction.

B Unreasonableness as a statutory presumption Ensuring decisions are reasonable does not constitute a review of merits, but rather, concerns an evaluation of whether power is exercised within legal limits. The counter-argument for unreasonableness as merits review is that it arises from statutory construction: based on a presumption that legislation conferring discretionary powers intends for those powers to be exercised reasonably.32 Thus, reasonableness is a condition of power, unless there is ‘affirmative basis for its exclusion or modification’.33 Reasonableness in this regard does not concern a court substituting its own view,34 but is an evaluation of whether an exercise of discretionary power is within its legal limits. Further, reasonableness in this regard can be likened to natural justice, which is a well-established condition on the exercise of power, unless excluded explicitly.35 Accordingly, the counter-argument is strengthened when considering that the inverse cannot be true without affirmative basis, namely, that the legislature intended discretionary powers to be exercised unreasonably. Thus, while Li has released reasonableness from the Wednesbury standard, reasonableness is a condition on the exercise of power conferred by statute, and concerns the legality of a decision. Unreasonableness as a ground of judicial review is therefore well within the scope of the judiciary’s function, forming a

31

Michael Barker and Alice Nagel, ‘Legal Unreasonableness: Life after Li’ (2015) 79 AIAL Forum 1, 4.

Kruger v The Commonwealth (1997) 190 CLR 1, 36 (Brennan J); Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, 650 (Gummow J); Justice William Gummow AC, ‘Rationality and Reasonableness as Grounds for Review’ (2015) 40 Australian Bar Review 1, 5.

33 Li (n 2) 371 [92] (Gageler J).

34 Ibid 363 [66] (Hayne, Kiefel and Bell JJ).

35 Kioa v West (1985) 159 CLR 550, 584 (Brennan J); Justice Andrew Greenwood, ‘Judicial Review of the Exercise of Discretionary Public Power’ 88 AIAL Forum 76, 84-5.

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necessary accountability mechanism for executive action in the face of arbitrary exercise of discretionary powers.

C Proportionality as a function of reasonableness As indicated above, Li provides support for a notion of ‘proportionality’ in unreasonableness review which, without the qualifying context of reasonableness, is considered a review of the merits of a decision.36 As Boughey describes, a standalone proportionality review would conflict with the ‘rigid grasp’ Australia has on the legality/merits distinction, attributable to the constitutionally entrenched separation of powers.37 Although there have been suggestions of adopting proportionality in Australian administrative law, such suggestions have rightly been met with the suspicion of the courts as exceeding their jurisdiction.38 However, the High Court in Li likened a disproportionate decision to ‘taking a sledgehammer to crack a nut’, thus amounting to an unreasonable exercise of power. This view has been confirmed post-Li.39 An in-depth discussion of proportionality is outside the scope of this paper as it does not presently amount to an independent ground of judicial review. However, for present purposes, adopting proportionality as a function of reasonableness represents an increased readiness of the courts to limit excess discretionary power whilst keeping within the judicial scope of legality.

IV

RELEVANT CONSIDERATIONS

Another judicial review ground of discretionary power, arguably on the verge of merits review, is the ‘relevant considerations’ ground.40 In essence, a decision may be invalid if the decisionmaker did not give ‘proper, genuine and realistic consideration’ 41 to factors they were bound to consider. These ‘relevant considerations’ are determined by the ‘subject-matter, scope and purpose’ of legislation.42 The appropriate weight to give considerations is left to the decision36

Janina Boughey, ‘The Reasonableness of Proportionality in the Australian Administrative Law Context’ (2015) 43 Federal Law Review 59, 60.

37 Ibid 68-9.

38 Cunliffe v Commonwealth (1994) 182 CLR 272, 356.

39 Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; Minister for Immigration and Border Protection v Haq (2019) 365 ALR 202, [119]-[120] (Colvin J).

40 Justice Brian Preston, ‘Judicial review of illegality and irrationality of administrative decisions in Australia’ (2006) 28 Australian Bar Review 17, 28-9; James Spigelman, ‘The integrity branch of government’ (2004) 78(11) Australian Law Journal 724, 730.

41 Khan v Minister for Immigration, Local Government & Ethnic Affairs (1987) 14 ALD 291, 292 (Gummow J).

42 Peko-Wallsend (n 11) 39-40 (Mason J).

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maker where statute is silent,43 with any question of inadequate weight becoming one of reasonableness.44 Preston argues that the requirement for ‘proper, genuine and realistic consideration’ invokes a jurisdiction to review the merits of any administrative decision.45 The High Court itself has noted this concern, although does not expressly reject the requirement.46 On one hand, the reality is that a court contemplating whether factors relevant to a decision were considered, and given appropriate weight, does come close to impermissibly reviewing the merits of that decision.47 On the other hand, ensuring discretion is exercised by considering factors the decision-maker was bound to consider is necessary to ensuring the proper exercise of such power. Further, while leaving ‘adequate weight’ considerations to the issue of reasonableness might be a creative way of circumventing the legality/merits distinction, reasonableness is a necessary condition on the exercise of administrative power. As the role of judicial review is to set limits on power exercised by the executive,48 limiting discretion in this regard concerns the legality of decisions, arising from the construction of legislature conferring such power.

V

PRIVATIVE CLAUSES AND REVIEWING DISCRETION

The preservation of the courts’ jurisdiction to review discretionary decisions, when there is an attempt to preclude it, was exemplified in Graham v Minister for Immigration and Border Protection (‘Graham’).49 Graham concerned discretionary power exercised by the Minister to cancel two visas under the Migration Act 1958 (Cth) (‘Migration Act’).50 The Minister had formed his opinion, and exercised his discretion, based on information ‘protected from disclosure’51 to courts and the plaintiffs. The Minister had no duty to disclose, and thereby withheld, the ‘protected information’.52 This had the practical effect of a ‘privative clause’,

43

Ibid 41 (Mason J).

Ibid 40 (Mason J); Li (n 2).

45 Preston (n 40) 28 citing Minister for Immigration & Multicultural Affairs v Anthonypillai (2001) 192 ALR 256.

46 See Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164.

47 Preston (n 40) 28.

48 Wednesbury (n 19) 228 (Lord Greene MR); Peko-Wallsend (n 11) 41 (Mason J).

49 (2017) 263 CLR 1 (‘Graham’).

50 1958 (Cth) s 501(3)(c) and (d) (‘Migration Act’).

51 Migration Act s 503A. 52 Ibid.

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both significant and concerning for two reasons. Firstly, the plaintiffs were denied opportunity to adequately present a case for judicial review, specifically on the ground of unreasonableness, constituting a significant impingement on their individual liberties. Secondly, both the Federal and High Court were prevented from exercising their jurisdiction to review a purported exercise of power by the Minister, thus preventing judicial review of the lawful exercise of discretionary power.53 The High Court ultimately held the Minister’s discretion invalid, exercised based on a misconstruction of the ‘privative clause’ amounting to jurisdictional error, namely, that it would prevent judicial review.54 This confirms the constitutionally entrenched jurisdiction of the court, to review administrative action, as a mechanism of accountability supporting the rule of law.55

Privative clauses are not invalid merely because they restrict, or operate to exclude evidence from, judicial review.56 However, an exercise of power under the assumption that there are limitless bounds is both concerning and incorrect at law: discretionary power must always have checks and balances, exercised ‘according to the rules of reason and justice…according to law, and not humour’.57 Indeed, judicial intervention should not involve reviewing cases on their merits where individual liberties are threatened. Rather, as demonstrated in Graham, the role of the courts is to set the legal limits on the exercise of discretionary power by the executive, and impugn decisions made outside those bounds, protecting liberties through its supervisory role.

VI

CONCLUSION

The line between judicial review of the legality, and a review of the merits, of administrative discretionary decisions can at times appear watery thin. However, returning continually to the concept of judicial review as an accountability mechanism of the legality of executive action, the above evaluation demonstrates courts have not slipped impermissibly into merits review.

Rather, judicial review has concerned itself with the proper exercise of power by the executive.

An increase in the scope of judicial review of discretionary powers can be attributed to statutory 53

Graham (n 49) 30 [59].

Graham (n 49) 33 [68].

55 Constitution s 75(v); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, 482-3 [5].

56 Graham (n 49) 32 [63].

57 R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177, 189, citing Sharp v Wakefield [1891] AC 173, 179. See also Minister for Immigration and Border Protection v Stretton (2016) 329 ALR 491.

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interpretation, through which the courts confine such power within its legal limitations. This is exemplified through contemporary formulations of the judicial review ground of unreasonableness in Li, the relevant considerations ground, and the continuation of the courts’ jurisdiction to review executive action in the face of privative clauses. Further, although reasonableness can be a means to review decisions that are disproportionate or weigh relevant factors inadequately, it is a necessary means to ensure the conditions on power are observed within legal limits. Ultimately, these limitations on discretionary power are necessary in order to safeguard against arbitrariness and inconsistency, and encourage better decision-making by those entrusted with power affecting individual liberties.

77

THE ADVANTAGES AND DISADVANTAGES OF QUEENSLAND’S SPLIT LEGAL PROFESSION WITH COMPARISON TO THE UNIFIED LEGAL PROFESSION IN THE UNITED STATES OF AMERICA

THOMAS HARVEY*

I

INTRODUCTION

Queensland’s legal profession is a system that separates lawyers who practice as solicitors from those who practice as barristers.1 This is a division that traces its roots to the very beginnings of the legal profession in England.2 For comparison, legal jurisdictions within the United States of America (‘US’) operate with a ‘unified profession’, whereby lawyers, sometimes referred to as attorneys, may fulfil the duties of both a solicitor and barrister. To critically evaluate the advantages and disadvantages of Queensland’s ‘split profession’ compared to a ‘unified profession’, some clarifications must first be made.3 Finding a distinction between Australian jurisdictions that are split or unified professions is a complex issue.4 This is because, even in Queensland, barristers do not have a monopoly over the right to make appearances in court.5 To categorise a particular jurisdiction as split or unified, the most conclusive test considers admission to and general regulation of the profession.6 The term ‘flexible’ for describing a ‘unified’ legal profession is preferred by some legal commentators and the New South Wales Law Reform Commission as they consider the term ‘unified’ to be historically ambiguous and misinterpreted.7 For the purpose

*

Thomas Harvey is in his fifth year of studying a double degree Bachelor of Laws (Honours) and Biomedical Science. He is particularly interested in both litigation and alternate dispute resolution and hopes to one day be admitted to the Bar. Reid Mortensen, ‘Becoming a Lawyer: From Admission to Practice Under the Legal Profession Act 2004 (Qld)’ (2004) 23 The University of Queensland Law Journal 319, 320.

2 Michael White, ‘The Development of the Divided Legal Profession in Queensland’ (2004) 23 The University of Queensland Law Journal 298, 298.

3 Cathy Green, Legal Profession Reform in Queensland: changing the divide between barristers and solicitors?

(Research Brief No 2002/16, May 2002) 1-5.

4 Legal Profession Reform in Qld (n 3) 2.

5 Law Council of Australia, A Discussion Paper – Challenges for the Legal Profession (Discussion Paper, September 2001) 8.

6 Julian Disney, John Basten and Paul Redmond, Lawyers (The Law Book Company Ltd, 2nd ed, Sydney, 1986) 93.

7 New South Wales Law Reform Commission, Report 31 (1982) – First Report on the Legal Profession: General Regulation and Structure (Report, February 1982) 33; Disney, Basten and Redmond (n 6) 93.

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of this critical analysis, the term ‘unified profession’ will be used instead of ‘flexible’ when referring to the opposite of a ‘split profession’.

A system where solicitors and barristers are admitted separately and have separate governing bodies is a split profession.8 If a system has joint admission but split regulatory bodies it may be considered split or unified depending on additional factors.9 A divided profession typically has barristers and solicitors admitted together and share regulatory bodies.10 In Queensland, the Supreme Court (Admission) Rules 2004 repealed the Barristers’ Admission Rules 1975 (Qld) and the Solicitors’ Admission Rules 1968 (Qld) to provide one uniform system of admission.11 The Bar Association of Queensland has regulatory authority over practicing barristers and the Queensland Law Society has authority over solicitors under the Legal Profession Act 2007 (Qld).12 Therefore, Queensland can be considered to have a split profession as although barristers and solicitors share admission as lawyers, the regulation of their professions and the duties they perform are very much separate. Consumers of legal services tend to view Queensland’s split legal profession as unnecessarily complicated. However, the following analysis will prove that a split profession protects the rule of law and the integrity of the legal profession.

II

ADVANTAGES OF THE SPLIT PROFESSION

The first benefit of the split profession is the independence of the Bar.13 In litigation matters especially, it is essential that barristers conform to a high standard of professionalism and independence.14 Chief Justice Dixon said that a barrister ‘who… maintains the very high tradition of honour and independence of English advocacy, in my opinion makes a greater contribution to justice than the judge himself.’15 Independence of the Bar is important for the way in which barristers conduct a case.16 Independence of Queensland Barristers is outlined

8

Green (n 3) 2.

Disney, Basten and Redmond (n 6) 93.

10 Green (n 3) 2.

11 Supreme Court (Admission) Rules 2004 s 29(1) (‘Admission Rules’).

12 Legal Profession Act 2007 (Qld) s 439.

13 Extra-Judicial Notes (1998) 17 Australian Bar Review 105-108.

14 Hon Justice Susan Kiefel AC, Practice at the Bar – what has changed and what remains the same (Bar Association of Queensland Annual Conference, 2012) 5.

15 Woinarski, Jesting Pilate (W.S Hein, 2nd ed, 1997) 247-248.

16 Bar Association of Queensland, Barrister’s Conduct Rules 2018 (at 23 February 2018) r 41.

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in rules 41-47 of the Bar Association of Queensland Barristers’ Conduct Rules (‘QBCR’).17 An independent barrister is not persuaded by clients or solicitors to present a case that lacks real issues, has no relevant evidence and makes a poorly researched argument.18 For comparison, in the US legal system, Professor Fred Zacharias characterised the concept of independence as a ‘myth’.19 When he state bar associations of the US refer to the independence of lawyers, they mean independence with regard to the separation of powers.20 The quality of independence is seen to be an important characteristic of an American attorney, however there is no regulation or common law that makes it obligatory.21 In a split profession legal system, barristers provide valuable objectivity to solicitors in legal contexts. This is supported by the detachment of the client from the barrister. The integrity of the judicial process may be compromised if a lawyer fails to show the objectivity and independence required by the court.22 Barristers have a duty to maintain discretion over the management of a case.23 Duty to the court is the paramount duty of the barrister, a unified legal profession, such as in the US, cannot prevent conflict from subjectivity towards the client or colleagues and may undermine this duty.24 Another benefit of the split profession is the standard of advocacy that can be provided by barristers as specialist advocates. 25 There have been heavy criticisms made of US courtroom lawyer performance.26 Chief Justice Burger criticised the performance of American lawyers in the courtroom, which he attributes to a “lack of adequate training in advocacy skills and technique.”27 Rule 5(c) of the QBCR states that Queensland barristers are specialist advocates and must act skilfully.28

17

Ibid rr 41-47.

Kiefel (n 14) 5-6.

19 Fred C. Zacharias, ‘The Myth of Self-Regulation’ (2009) 93 (1) Minnesota Law Review 1147, 1189.

20 Deborah M. Hussey Freeland, ‘What is a Lawyer? A Reconstruction of the Lawyer as an Officer of the Court’ (2012) 31 (1) St. Louis University Publications 425, 425.

21 Bruce A. Green, ‘Lawyer’s Professional Independence: Overrated or Undervalued? (2013) 46 Akron Law Review 599, 600-601.

22 Kooky Garments Ltd v Charlton [1994] 1 NZLR 587.

23 Giannarelli v Wraith (1988) 165 CLR 543.

24 Bar Association of Queensland, Submission in Response to the Queensland Department of Justice and Attorney-General on its Discussion Paper on Legal Profession Reform (Report, 1998) 26.

25 Marilyn J. Berger, ‘A Comparative Study of British Barristers and American Legal Practice and Education’ (1983) 5(3) Northwestern Journal of International Law and Business 540, 541.

26 David L. Bazelon, ‘The Defective Assistance of Counsel’ (1973) 42(1) University of Cincinnati Law Review 1, 1.

27 Burger, ‘‘The Special Skills of Advocacy’: Are Specialized Training and Certification of Advocates Essential to Our System of Justice?’ (1973) 42(1) Fordham Law Review 227, 229.

28 Bar Association of Queensland, Barrister’s Conduct Rules 2018 (at 23 February 2018) r 5(c).

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Perhaps the most significant advantage of the split profession is the ‘cab-rank rule’ that Queensland barristers are held to.29 According to rule 21 of the QBCR, a Queensland barrister must accept a brief from a solicitor to appear before a court in an area they practice in, so long as it is in their capacity, skill and expertise, they are available, there is no permitted reason to refuse a brief, and the fee offered is acceptable. 30 The cab-rank rule by design facilitates access to justice because it guarantees that any client can have access to specialist legal representation and advocacy.31 The cab-rank rule facilitates justice further by protecting barristers from criticism over the clients they represent.32 Without this rule, barristers may be dissuaded from representing controversial clients who also have a right to proper representation.33 In the US, no cab-rank rule applies to attorneys.34 Even when appointed a client by court, a US attorney may seek to decline the appointment on the grounds that the client has an unpopular cause.35 Therefore there is no mechanism to ensure people receive the best advocacy they can afford.36 US attorneys can discriminate between the clients they choose to represent in court, so long as the clients do not belong to a protected class.37 There are some economic factors that are advantages of the split profession. Firstly, barristers may be able to perform more efficiently and cheaper than solicitors because of low overheads when operating independently.38 Barristers see fewer clients and do not manage their client’s documents and funds.39 They therefore require fewer staff, with some barristers sharing secretary services with those in nearby chambers.40 Comparatively, lawyers in the US have to perform the services of Queensland solicitors and barristers combined. Most US lawyers have to hire administrative and secretarial staff to manage client documents, funds and fulfil advocacy duties where required.41

29

John Flood and Morten Hviid, The Cab Rank Rule: Its Meaning and Purpose in the New Legal Services Market (Report for the Legal Services Board, 2013) 1.

30 Bar Association of Queensland, Barrister’s Conduct Rules 2018 (at 23 February 2018) r 21.

31 Legal Profession Reform in Qld (n 3) 4.

32 Andrew Higgins, ‘Rebooting the cab rank rule as a limited universal service obligation’ (2017) 20(2) Journal of Legal Ethics 201, 202.

33 Flood and Hviid (n 29) 1.

34 American Bar Association, Model Rules for Professional Conduct 1983 (at August 2018) r 6.2.

35 Ibid.

36 Bagaric, Mirko, Dimopoulos and Penny, ‘Legal Ethics is (Just) Normal Ethics: Towards a Coherent System of Legal Ethics’ (2003) 3(1) Queensland University of Technology Law and Justice Journal 21, 21.

37 American Bar Association, Model Rules for Professional Conduct 1983 (at August 2018) r 6.2.

38 Legal Profession Reform in Qld (n 3) 5.

39 Legal Profession Reform in Qld (n 3) 5.

40 Legal Profession Reform in Qld (n 3) 2.

41 Jennifer Hill, The Changing Role of the Legal Secretary (Report, September 2017) 3.

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III

DISADVANTAGES OF THE SPLIT PROFESSION

The main disadvantages of the split profession relate to the experiences of consumers of legal services. In Queensland, the process of dealing with both solicitors and barristers can confuse clients who might not understand the roles both lawyers fulfil.42 A criticism of the split profession is that clients may resent being ‘lathered in one shop and shaved in another’.43 This is to say that clients may dislike the financial complexity and legal process that comes with having to deal with two different types of lawyers at different stages of legal services. 44 The Bar has been perceived by some legal commentators as seemingly old-fashioned and unapproachable.45 Whilst the Bar in England and Wales has been accused of this, there is nothing to suggest the Queensland Bar Association is old-fashioned and unapproachable.46 There is a belief that unified legal professions may allow for better cross-pollination of ideas and encourage discussion and communication.47 A common argument against the split profession is that it creates a duplication of work and wasted effort by lawyers.48 The splitting of the profession into barristers and solicitors actually creates an efficient division of labour.49 The New South Wales Bar Association supports Queensland’s split profession in this regard, with the belief that a lawyer presented with both jobs will do each less thoroughly than if they were able to focus on just one.50 This is due to the infinite complexity of law and its diverse branches that no individual could ever hope to fully comprehend.51

Leslie C. Levin, ‘Building a Better Legal System: The Queensland Experience (2006) 9(1) Journal of Legal Ethics 187, 190.

43 Rob McQueen, Lawyers and Vampires: Cultural Histories of Legal Professions (Essay, 2004) 300-302.

44 Berger (n 25) 553.

45 Sir David Clementi, Review of the Regulatory Framework for Legal Services in England and Wales (Final Report, December 2004) 1.

46 Clementi (n 45) 1.

47 Law Society of New South Wales, The Future of Law and Innovation in the Profession (Commission of Inquiry, March 2017) 5.

48 Disney, Basten, Redmond and Ross, Inquiry into the Future Organisation of the Legal Profession in Western Australia: (Report, May 1983) 110.

49 Legal Profession Reform in Qld (n 3) 2.

50 New South Wales Bar Association, Division of the Legal Profession in Two Branches (Submission to the New South Wales Law Reform Commission, 1977) 8.

51 Division of Legal Profession into Two Branches NSW (n 50) 8.

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IV

CONCLUSION

At first glance, consumers of legal services in Queensland might find the split profession confusing, overcomplicated or even daunting. What they may soon come to find however, is that the division of legal services between solicitors and attorneys truly works in their favour.

Barristers can provide advocacy cheaper because of low overhead costs. Solicitors can betterspecialise in fields of expertise. Barristers can provide a higher standard of courtroom advocacy than American attorneys in their unified profession provide.

For upholding the rule of law and principles of the justice system, there is greater benefit in the split profession. The paramount duty of the barrister is to the court. Barristers should be trusted to act independently from the persuasion of both clients and colleagues. In Queensland, the independence of barristers is regulated, protecting the duty to the court. In the US however, attorneys are not strictly regulated to be independent and objective as they must act in the manner of both solicitor and barrister. In Queensland, greater care is taken in keeping irrelevant matters out of court and so the judicial process may run more effectively.

The preservation of the cab-rank rule is perhaps the strongest argument for the split legal profession, especially in Queensland. The rule guarantees access to the best specialist advocacy a client can afford and works to prevent discrimination against clients. It also protects the reputation of barristers who choose to work for unpopular or unsavoury clients.

The cab-rank rule is a principle of the Queensland Bar and is of great benefit in upholding the judicial process. Unified professions, particularly the US, are without the cab-rank rule and therefore expose their people to the risk of discrimination from lawyers and ineffective representation.

The duplication of work argument against the split profession is ineffective and unpersuasive.

The Queensland Bar cannot convincingly be called out-dated or unapproachable. Finally, the difference between solicitors and barristers may confuse legal services consumers at first, however, this initial confusion is not persuasive grounds for merging the whole split profession when it can clearly provide a more specialised and effective level of advocacy than its unified counterpart.

Therefore, the advantages of the split profession make a convincing argument for its continued use in the Queensland legal system.

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THE IMPACT OF COVID-19 ON QCAT: HOW TECHNOLOGY CAN TRANSFORM QCAT INTO A MODERN TRIBUNAL PREPARED TO ENDURE AN INCREASINGLY TECHNOLOGY-BASED FUTURE, ADDRESS TRADITIONAL BARRIERS TO JUSTICE AND MEET THE NEEDS OF ITS USERS CASSANDRA GREY*

I

INTRODUCTION

COVID-19 emerged from the Hubei Province of China in late 2019.1 At the time of writing there have been over 37 million cases and over 1 million deaths worldwide. 2 A global pandemic was officially declared by the World Health Organization on 11 March 2020.3 COVID-19 reached Australian shores in late January 2020 and since then there have been over 27,000 cases and just over 900 deaths.4 Queensland declared a public health emergency on 29 January 2020 pursuant to the Public Health Act 2005 (Qld).5 Queensland has had only 6 deaths and just over 1,100 cases in total as of time of writing.6 With COVID-19 spread by aerosol and droplet transmission, social distancing of 1.5 metres, face coverings, masks, quarantine, isolation and lockdowns have become

*

Cassandra is currently in her final semester of a Bachelor of Laws (Honours) and is due to graduate at the end of Semester 1, 2021. She is also concurrently undertaking her Graduate Diploma in Legal Practice to be admitted to the profession in early 2022. Cassandra is interested in researching and writing on legal issues where there is a large society-wide impact with a particular focus on people with disabilities. Cassandra is looking to pursue a career with a similar community focus involving a sense of justice and the ability to make a positive impact in the world.

Steve Chaplin, ‘COVID-19: a brief history and treatments in development’ (2020) 31(5) Prescriber 23.

World Health Organization, ‘Coronavirus disease (COVID-19) pandemic’, World Health Organization (Web Page) <https://www.who.int/emergencies/diseases/novel-coronavirus-2019>.

3 World Health Organization, ‘Timeline of WHO’s response to COVID-19’, World Health Organization (Web Page, 29 June 2020) <https://www.who.int/news-room/detail/29-06-2020-covidtimeline>; Domenico Cucinotta and Maurizio Vanelli, ‘WHO Declares COVID-19 a Pandemic’ (2020) 91(1) Acta bio-medica: Atenei Parmensis 157.

4 Department of Health, ‘Coronavirus (COVID-19) current situation and case numbers’, Australian Government Department of Health (Web Page, 7 October 2020) <https://www.health.gov.au/news/health-alerts/novelcoronavirus-2019-ncov-health-alert/coronavirus-covid-19-current-situation-and-case-numbers>.

5 Public Health Act 2005 (Qld) ss 362B, 319, 315.

6 Queensland Government, ‘Queensland COVID-19 statistics’, Queensland Government (Web Page, 14 October 2020) <https://www.qld.gov.au/health/conditions/health-alerts/coronavirus-covid-19/current-status/statistics>.

1 2

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a part of daily life during the pandemic.7 Technology uptake in public institutions has previously been notoriously glacial.8 However, the necessity of the COVID-19 pandemic forced rapid conception and implementation of previously unimaginable online dispute resolution (‘ODR’) technologies to replace face-to-face operations of courts and tribunals.9

In light of the opportunity presented by the COVID-19 pandemic, the technological future of the Queensland Civil and Administrative Tribunal (‘QCAT’) must be considered.10 The role for ODR in QCAT and associated opportunities and challenges must be carefully balanced in a model with appropriate support and safeguards which prepares QCAT for an increasingly technology-based post-COVID-19 world.11 COVID-19 has forced a technological and cultural change which is to be ignored at QCAT’s peril.12 This article aims to explore challenges for QCAT posed by COVID19 and current ODR practices including benefits and risks. It will ultimately be shown that meaningful change, increased efficiency, access to convenient justice with reduced cost for both QCAT and parties can be achieved by integrating select ODR policies within the current QCAT structures. Development of a mobile-friendly online portal where parties can file applications and documents for all QCAT matters will decrease costs while increasing accessibility, efficiency and access to justice. Consolidating QCAT’s existing fact sheets and general information on QCAT’s website into user-guides which are matter specific can achieve similar benefits as well as decreasing some burdens imposed by self-represented parties. Using video-conferencing technology for all mediations and hearings will reduce costs, delays as well as hostility and allow important non-verbal communication. This modest yet comprehensive integration of technology will prepare QCAT to embrace an increasingly technological future.

World Health Organization, ‘Transmission of SARS-CoV-2: implications for infection prevention precautions’, World Health Organization (Web Page, 9 July 2020) <https://www.who.int/newsroom/commentaries/detail/transmission-of-sars-cov-2-implications-for-infection-preventionprecautions#:~:text=To%20the%20best%20of%20our,of%20COVID%2D19>.

8 Marilyn Warren, ‘Embracing technology: The way forward for the courts’ (2015) 24 Journal of Judicial Administration 227, 228.

9 Gerard Phillips, ‘Legal Practice after the Pandemic’ (2020) 10 Workplace Review 17, 17; Tania Sourdin and John Zeleznikow, ‘Courts, Mediation and COVID-19’ (2020) 48 Australian Business Law Review 138, 138.

10 Anna Olijnyk, ‘Civil Courts and COVID-19: Challenges and Opportunities in Australia’ (Research Paper No. 2020-143, The University of Adelaide, 2020) 3.

11 Ibid 3.

12 Sourdin (n 9) 139.

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II

QCAT AND COVID-19

QCAT is an independent statutory tribunal court of record representing an amalgamation of 18 former tribunals and 23 jurisdictions.13 QCAT deals with a large assortment of dispute matters including adult guardianship and administration, administrative decisions, anti-discrimination, building disputes, consumer disputes, minor civil disputes, professional regulation, and residential tenancy disputes, among others.14 With a central registry in Brisbane, QCAT delivers services to regional and remote areas of Queensland through local Magistrates courts supplemented by videoand tele-conferencing.15 Unique to QCAT and with few exceptions, parties are expected to selfrepresent before the Tribunal.16 QCAT fulfils a vital role in the Queensland legal system which can potentially be a person’s only exposure to the law and legal system. With a rising yearly caseload, it is essential that QCAT be as efficient as possible while reducing costs and meeting the needs of the diverse community it serves.17 QCAT’s original jurisdiction is subject to a monetary limit of $25,000.18 QCAT proceedings must be quick with ‘as little formality and technicality’ as possible.19 Rules of evidence and procedure are not binding but may be adopted.20

Proceedings may be conducted by remote conferencing (tele- and video-conferencing) if appropriate.21 Parties can be referred to voluntary or involuntary mediation by the Tribunal.22

Queensland Civil and Administrative Tribunal, ‘Former tribunals’, Queensland Civil and Administrative Tribunal (Web Page, 27 March 2012) <https://www.qcat.qld.gov.au/about-qcat/former-tribunals>; Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 164(1); Queensland Civil and Administrative Tribunal, Annual Report 2018-19 (September 2019) 7.

14 Queensland Civil and Administrative Tribunal, ‘About QCAT’, Queensland Civil and Administrative Tribunal (Web Page, 7 August 2019) <https://www.qcat.qld.gov.au/about-qcat>.

15 Queensland Civil and Administrative Tribunal, ‘Regional services’, Queensland Civil and Administrative Tribunal (Web Page, 26 March 2019) <https://www.qcat.qld.gov.au/about-qcat/regional-services>.

16 Queensland Civil and Administrative Tribunal, ‘Appearance and representation’, Queensland Civil and Administrative Tribunal (Web Page, 24 May 2016) <https://www.qcat.qld.gov.au/going-to-the-tribunal/appearanceand-representation>; Queensland Civil and Administrative Tribunal, ‘Appearance at QCAT’, Queensland Civil and Administrative Tribunal (Web Page, 23 May 2016) <https://www.qcat.qld.gov.au/going-to-the-tribunal/appearanceand-representation/appearance-at-qcat>; Queensland Civil and Administrative Tribunal, ‘Representation at QCAT’, Queensland Civil and Administrative Tribunal (Web Page, 29 June 2016) <https://www.qcat.qld.gov.au/going-tothe-tribunal/appearance-and-representation/representation-at-qcat>.

17 Queensland Civil and Administrative Tribunal, Annual Report 2018-19 (September 2019) 11.

18 Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 11A(3) Act, sch 3.

19 Ibid s 28.

20 Ibid.

21 Ibid s 32.

22 Ibid ss 66A, 67, 75.

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QCAT hearings are prima facie open to the public in accordance with open justice unless a limited number of circumstances exist, warranting a private hearing.23 Fees to file an application with QCAT depend on the value of the claim and can be from $25.45 to $326.80.24 Applications are made in approved forms per dispute type and filed at the nearest registry or the central registry in Brisbane.25 Documents (including applications) may be filed physically in person, by post, fax or email (only where no fee is payable) depending on the dispute type.26 Electronic filing (“e-filing”) is permitted for minor debt claims, however, this is very limited in its applicability. 27 Provision is also made for the delivery of electronic decisions in minor debt claims. 28 Decisions in other disputes are to be given either orally in a hearing or in a written document.29

QCAT has been active in responding to COVID-19 in issuing Practice Directions (applicable only to the Brisbane registry).30 During COVID-19, video-conferencing or telephone hearings were conducted for guardianship matters, minor civil tenancy disputes and mediations.31 Non-urgent disputes plus some mediations were indefinitely adjourned until restrictions lifted and were then heard by telephone or on the papers.32 E-filing via email was accepted for some matters until filing in-person at 259 Queen Street, Brisbane and via post were available again. 33 E-filing continues to be available for limited dispute matters and is limited to documents fewer than 30 pages. 34 QCAT

23

Ibid s 90(2).

Queensland Civil and Administrative Tribunal Regulation 2009 (Qld) r 5.

25 Queensland Civil and Administrative Tribunal Rules 2009 (Qld) rr 7, 8.

26 Ibid rr 24, 25, 26.

27 Ibid r 26.

28 Ibid r 63.

29 Ibid r 88.

30 Queensland Civil and Administrative Tribunal, ‘QCAT COVID-19 Update’, Queensland Civil and Administrative Tribunal (Web Page, 30 September 2020) <https://www.qcat.qld.gov.au/about-qcat/covid-19>.

31 Queensland Civil and Administrative Tribunal, Practice Direction No. 2 of 2020 (“PD 2 of 2020”); Queensland Civil and Administrative Tribunal, Practice Direction No. 3 of 2020: COVID-19 Arrangements for Urgent MCD Tenancy matters in Brisbane CBD from Monday 30 March 2020 (“PD 3 of 2020”); Queensland Civil and Administrative Tribunal, Practice Direction No. 4 of 2020 (“PD 4 of 2020”).

32 Queensland Civil and Administrative Tribunal, PD 3 of 2020 (n 31); Queensland Civil and Administrative Tribunal, PD 4 of 2020 (n 31); Queensland Civil and Administrative Tribunal, Practice Direction No. 7 of 2020: COVID-19 Arrangements for Non-Urgent Minor Civil Dispute Matters (“PD 7 of 2020”).

33 Queensland Civil and Administrative Tribunal, PD 2 of 2020 (n 31); Queensland Civil and Administrative Tribunal, PD 7 of 2020 (n 32).

34 Queensland Civil and Administrative Tribunal (n 30); Queensland Civil and Administrative Tribunal, Practice Direction No. 2 of 2016: Completing and submitting approved QCAT forms online; Queensland Civil and Administrative Tribunal, ‘Lodging your application and forms’, Queensland Civil and Administrative Tribunal (Web Page, 19 July 2019) <https://www.qcat.qld.gov.au/applications/lodging-your-application-and-forms>.

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has now returned to in-person hearings at all locations in Queensland except for mediations.35 Parties can seek leave from QCAT to have their matter heard remotely by telephone or videoconferencing.36

The COVID-19 practices and policies, while necessary, have had a disproportionate negative impact on key groups of society needing to access QCAT. People from low socio-economic backgrounds as well as elderly populations without access to or knowledge of technology would have been unable to file documents or communicate with QCAT via email or attend virtual hearings or mediation. People with disabilities would similarly have been disadvantaged depending on the nature of their disability, as well as people in rural and remote areas where internet and phone connection could impede participation in remote QCAT proceedings.

III

LITERATURE REVIEW

Literature to date on ODR’s use in courts and tribunals has fallen along a spectrum of comments, overviews, analyses and evaluations with either distinctly strong pro-technology or sceptic undertones.37 Very few authors have remained neutral in their assessments with some going to great lengths to discredit the opposite view.38 Early literature forecast wild predictions of technology completely disrupting the law, resulting in a radically different, reconceptualised

35

Queensland Civil and Administrative Tribunal (n 30).

Queensland Civil and Administrative Tribunal (n 30); Queensland Civil and Administrative Tribunal, ‘Apply to attend a proceeding by telephone’, Queensland Civil and Administrative Tribunal (Web Page, 21 October 2019) <https://www.qcat.qld.gov.au/resources/forms/our-online-services/apply-to-attend-a-proceeding-by-telephone>.

37 Tania Sourdin, ‘Justice and technological innovation’ (2015) 25 Journal of Judicial Administration 96; David Harvey, ‘From Sussking to Briggs: Online court approaches’ (2016) 5 Journal of Civil Litigation and Practice 84; Tania Sourdin, Bin Li and Donna McNamara, ‘Court Innovations and Access to Justice in Times of Crisis’ (2020) 14(2) Health Policy and Technology 1; Stefan Lancy, ‘ADR and technology’ (2016) 27 Australasian Dispute Resolution Journal 168; Stuart Morris, ‘Where is technology taking the courts and tribunals?’ (2005) 15 Journal of Judicial Administration 17; Sourdin (n 9); James Allsop, ‘Technology and the Future of the Courts’ (Speech, TC Beirne School of Law, University of Queensland, Special Lecture Series on Technology and the Future of the Legal Profession, 26 March 2019).

38 Keith Kaplan, ‘Will Virtual Courts Create Courthouse Relics?’ (2013) 52(2) The Judges’ Journal Chicago 32; Andrea Braeutigam, ‘What I hear you Writing Is... Issues in ODR: Building Trust and Rapport in the Text-Based Environment’ (2006) 38(1) University of Toledo Law Review 101; Helen Shurven and Archie Zariski, ‘The pros, cons, and maybes of telephone mediation: A conversation about the “fourth party”’ (2016) 26 Australasian Dispute Resolution Journal 146.

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system.39 This enthusiasm because of the possibilities of ODR appeared to quickly subside as the reality of the historic legal system sunk in. 40 Still, despite resistance at times, a few committed authors continue to push the cause in a more realistic and moderate approach.41

Since the COVID-19 pandemic there has again been a resurgence in the enthusiasm for the opportunities ODR can provide the legal system. In the wake of an evolving global crisis, authors are questioning whether the use of ODR in courts and tribunals should be made a permanent fixture.42 Once again previous ideas, ‘advantages’, ‘disadvantages’ and benefits (depending on the author) are at the forefront of legal minds during this crossroads for the legal system. 43 On one side authors are claiming that accessibility, access to justice and efficiency need to be given primacy.44 Outweighed, sometimes only trivially dealt with, are the competing concerns of privacy, confidentiality, symbolism, open justice and procedural fairness. 45

Anne Wallace, ‘The Challenge of Information Technology in Australian Courts’ (1999) 9 Journal of Judicial Administration 8; Harvey (n 37); Jane Donoghue, ‘The Rise of Digital Justice: Courtroom Technology, Public Participation and Access to Justice’ 80(6) The Modern Law Review 995.

40 Warren (n 8); Harvey (n 37); Morris (n 37).

41 Eugene Clark, George Cho and Athur Hoyle, ‘Online Dispute Resolution: Present Realities, Pressing Problems and Future Prospects’ (2003) 17(1) International Review of Law, Computers & Technology 7; John Zeleznikow, ‘Can Artificial Intelligence And Online Dispute Resolution Enhance Efficiency And Effectiveness In Courts’ (2017) 8(2) International Journal for Court Administration 30; Noam Ebner and John Zeleznikow, ‘Fairness, Trust and Security in Online Dispute Resolution’ (2016) 36(2) Journal of Public Law and Policy 143; Siew Fang Law and David Peter Leonard, ‘Culture clash – can online dispute resolution be the way forward?’ (2008) 19 Australasian Dispute Resolution Journal 55; Michael Legg, ‘The COVID-19 Pandemic, the Courts and Online Hearings: Maintaining Open Justice, Procedural Fairness and Impartiality’ (2021) 49 Federal Law Review (forthcoming); Janine Fenwick, ‘”See you in cyberspace!” The rise of online alternative dispute resolution’ (2009) 20 Insurance Law Journal 123; Michael Legg, ‘The future of dispute resolution: Online ADR and online courts’ (2016) 27 Australasian Dispute Resolution Journal 227.

42 Phillips (n 9); Sourdin (n 37); Fang Law (n 41); Legg (n 41); S.I. Strong, ‘Procedural Law in a Time of Pandemic: Australian Courts’ Response to COVID-19’ (Legal Studies Research Paper Series No. 20/38, The University of Sydney Law School, 2020); Sourdin (n 9).

43 Anthony Sissian, ‘Online dispute resolution: The advantages, disadvantages, and the way forward’ (2014) 42 Australian Business Law Review 445; Phillips (n 9); Sourdin (n 37); Lancy (n 37); Timea Tallodi, ‘Love of Video Mediation in the Time of Covid-19: An Initial Insight into Benefits and Challenges’ in Ferstman C and Fagan A, Covid-19, Law and Human Rights: Essex Dialogues. A Project of the School of Law and Human Rights Centre (University of Essex, 2020) 247; Fenwick (n 41); Olijnyk (n 10).

44 Sourdin (n 37); Donoghue (n 39); Zeleznikow (n 41); Sarah Moore, ‘Digital government, public participation and service transformation: the impact of virtual courts’ (2019) 47(3) Policy & Politics 495.

45 Andrew West, ‘COVID-19 and the courts’ (2020) 38 The Queensland Lawyer 209; David Harvey, ‘Courts and COVID-19: Delivering the rule of law in a time of crisis’ (2020) 9 Journal of Civil Litigation and Practice 59; Michael Legg and Anthony Song, ‘Commercial Litigation and COVID-19 – the Role and Limited of Technology’ (2020) 48 Australian Business Law Review 159; Suzanne Van Arsdale, ‘User Protection in Online Dispute Resolution’ (2015) 21(1) Harvard Negotiation Law Review 107; Donoghue (n 39); Emma Rowden and Anne Wallace, ‘Remote judging: the impact of video links on the image and the role of the judge’ (2018) 14 International Journal of Law in Context 504; Sharon Rodrick, ‘Opportunities and Challenges for Open Justice in Light of the 39

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While there is plenty of literature on this broader, theoretical level in many areas and applications of ODR in various contexts, there remains a distinctive lack pre and since COVID-19 of the practical application of these concepts to real-life legal systems, courts and tribunals. Authors are yet to consolidate research, concepts, analysis and evaluation of ODR to Australian courts and tribunals. With authors often limiting themselves to discussion of practices and policies, arguments have yet to be made for actual targeted reform of specific Australian courts and tribunals on the basis of ODR literature.46 Practical, achievable policies plus practices which can be implemented that will achieve the benefits stated above while balancing and mitigating potential dangers is yet to feature in ODR literature.

Looking further to the future, it is not yet clear whether this new found enthusiasm for ODR is part of a larger trend of disruption, enthusiasm and then a return routine. Also unclear is the impact of COVID-19 on Australian courts and tribunals in terms of rates of litigation, perceptions plus the acceptance of ODR by parties and the development of case law.

IV

ONLINE DISPUTE RESOLUTION

ODR has been a readily expanding field since its development alongside e-commerce, advancements in technology and access to justice concerns.47 ODR has spread beyond its inception in private extrajudicial consumer disputes and is now used by corporations, governments, courts

Changing Nature of Judicial Proceedings’ (2016) 26 Journal of Judicial Administration 76; Legg (n 41); Olijnyk (n 10).

46 Legg (n 41); Strong (n 42); Anne Wallace, Sharyn Roach Anleu and Kathy Mack, ‘Judicial engagement and AV links: judicial perceptions from Australian courts’ (20c19) 26(1) International Journal of the Legal Profession 51; Frederika De Wilde, ‘Courtroom technology in Australian Courts: An exploration into its availability, use and acceptance’ (2006) 26 The Queensland Lawyer 303; Philippa Ryan and Maxine Evers, ‘Exploring eCourt innovations in New South Wales civil courts’ (2015) 5 Journal of Civil Litigation and Practice 65; Vivi Tan, ‘Online Dispute Resolution for Small Civil Claims in Victoria: A New Paradigm in Civil Justice’ (2019) 24 Deakin Law Review 101; Sourdin (n 9); Allsop (n 37); Olijnyk (n 10).

47 Joe McIntyre, Anna Olijnyk and Kieran Pender, ‘Courts and COVID-19: Challenges and Opportunities in Australia’, Australian Public Law (Blog Post, 4 May 2020) <https://auspublaw.org/2020/05/courts-and-covid-19challenges-and-opportunities-in-australia/>; Katarina Palmgreen, ‘Time to go online’ Law Institute of Victoria (Web Page, 1 June 2019) < https://www-liv-asn-au.ezp01.library.qut.edu.au/Staying-Informed/LIJ/LIJ/June-2019(1)/Time-to-go-online>.

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and tribunals in a variety of areas of law.48 A generally accepted definition has been elusive, with debate on the scope of the concept and whether ODR has expanded past its alternative dispute resolution (‘ADR’) beginnings.49 The following definition of ODR is adopted: the resolution of a dispute substantially or partly via technology where parties are not required to physically meet.

This definition incorporates ODR practices across a spectrum from ADR methods such as mediation through to litigation.50 Technology as an enabler can be used to enhance existing systems and values. 51 Technology is not a foreign concept to the legal system with ‘supportive’ and ‘replacement’ technologies common such as publicly available case law, e-filing and online mediation.52

E-filing by email or online portals and video-conferencing were common technologies used by courts and tribunals during COVID-19. While the legal profession has been underwhelmingly accepting of this technology, there is no research on the acceptance of e-filing by parties and consumers.53 It can be assumed e-filing would not be rejected due to the heavy reliance on technology for many daily tasks by a majority of the population.54 E-filing promises to break the chain currently tying the courts to paper, resulting in greater convenience and efficiency.55

Video-conferencing similarly holds potential to reduce costs, increase efficiency and access to justice. Video-conferencing refers to ‘all synchronous (two-way) communication with audiovisual interface’ which can be conducted via assorted technologies such as Zoom, Microsoft Teams, Skype and WebEx.56 Valid questions are raised whether such systems are secure, plus whether it is constructive to simply replicate existing antiquated, problematic systems and procedures in a virtual setting via video-conferencing.57 Should technology go further and

48

Palmgreen (n 47).

Ibid.

50 Udechukwu Ojiako et al., ‘An examination of the “rule of law” and “justice” implications in Online Dispute Resolution in construction projects” (2018) 36 International Journal of Project Management 301, 303.

51 Morris (n 37) 19, 26.

52 Sourdin (n 9) 140-141.

53 Ibid 152.

54 Tan (n 46) 129; Shannon Salter, ‘Online dispute resolution and justice system integration: British Columbia’s Civil Resolution Tribunal’ (2017) 34 Windsor Yearbook of Access to Justice 112, 113-114.

55 Harvey (n 37) 85; Robert Nicholson, ‘The Paperless Court? Technology and the Courts in the Region’ (Speech, Australasian Institute of Judicial Administration Annual Conference, 1-2 October 1993) 66; Moore (n 44).

56 Sourdin (n 9) 146.

57 Sourdin (n 37) 2, 3.

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‘revitalise’ systems so that the full potential of technology is exploited?58 Drastic reform could bring about these benefits quicker. However, those advocating for such reform fail to appreciate the legislative framework in which these technologies must operate and the slow-moving pace of technology uptake to date. There is no indication that this will suddenly change. 59

V

A GREATER ROLE FOR ODR IN QCAT

Drawing on existing literature as well as the impact COVID-19 has made, now is an opportune moment to implement ODR permanently into QCAT operations. A mobile-friendly online portal where all forms and documents can be filed for all QCAT matters, as well as the development of matter-specific user guides with the use of video-conferencing technology for mediations and hearings are practical, achievable ways in which the following benefits can be achieved.

A Accessibility and access to justice Increasing societal use of technology means that courts must not fall behind and risk the loss of public confidence.60 Technology makes using courts and tribunals easier which enhances access to justice along with accessibility.61 Technology also eradicates barriers typically preventing parties accessing courts and tribunals such as geography, time, power imbalances, or lack of available information.62 Parties living in rural and remote areas can have instant access to QCAT’s services in their home without needing to travel.63 Parties from non-English speaking backgrounds can benefit from an online portal where information can be instantly translated into multiple languages.64 The ability for parties to access QCAT services at a time and place that suits them cannot be understated as an enhancement of access to justice in QCAT, especially for the lowvalue nature of many of the matters QCAT hears. Contributing to this increased access to justice is the cost savings involved in video-conferencing and e-filing, discussed below.

58

Ibid 3.

Warren (n 8) 228.

60 Allsop (n 37) 7.

61 Ibid 9.

62 Tan (n 46) 102.

63 Ryan (n 46) 87; Legg (n 41) 227; Allsop (n 37) 7.

64 Tan (n 46) 129.

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1 People with Disabilities One in five people in Australia live with a disability.65 People with disabilities are more likely to experience legal problems, are less likely to identify legal problems and are less likely to seek legal assistance.66 Technology has been identified by the International Disability Alliance as ‘a key to improving access to justice for people with disabilities’.67 As a public tribunal, QCAT must be accessible for all people with disabilities.68 People with disabilities’ right to access to justice (both directly and indirectly) is enshrined in the Convention on the Rights of Persons with Disabilities.69 Queensland’s Human Rights Act 2019 (Qld) contains similar provisions.70

ODR has very real potential to create barriers and be inaccessible for people with disabilities if not implemented appropriately.71 Digital accessibility through captions, Auslan interpretations, audio descriptions, alternative text plus voice recognition software compatibility will ensure that people with disabilities are able to equally access ODR and benefit from the opportunities ODR can provide QCAT.72 For disabilities such as Autism Spectrum Disorder (‘ASD’) ODR eliminates the disadvantages autistic people face in communicating during traditional face-to-face proceedings, and provides a level playing field.73 Technology’s use of visual data, structured information presented in explicit and predictable ways can benefit autistic people as well as potentially people with other disabilities.74 Further, an online portal where user guides and QCAT forms are available would eliminate the need to phone or attend QCAT and potentially lessen any anxiety that contacting QCAT may cause.

Australian Network on Disability, ‘Disability Statistics’, Australian Network on Disability (Web Page) <https://www.and.org.au/pages/disability-statistics.html>.

66 Community Legal Centres Queensland Inc., Evidence & Analysis of Legal Need (Consultation paper, June 2019).

67 Olijnyk (n 10) 9.

68 Salter (n 54) 116.

69 Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, A/RES/61/106 (entered into force 3 May 2008) art 13.

70 Human Rights Act 2019 (Qld) ss 15, 31.

71 Allsop (n 37) 11-12.

72 David Larson, ‘Digital Accessibility and Disability Accommodations in Online Dispute Resolution’ (2019) 34(3) Ohio State Journal on Dispute Resolution 431, 438, 443.

73 Roland Troke-Barriault, ‘Online Dispute Resolution and Autism Spectrum Disorder: Levelling the Playing Field in Disputes Involving Autistic Parties’ (2015) 6(2) Western Journal of Legal Studies 1, 7-8.

74 Ibid 9-10.

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2 Self-represented litigants (“SRLs”) SRLs make up the majority of the parties before QCAT. A SRL can be defined as any person facing a legal problem who does not have the assistance of a legal professional.75 As the legal system and litigation become increasingly unaffordable, more people are forgoing legal assistance which ‘has undesirable consequences for the administration of justice’ given that SRLs most often lack any knowledge of law or required procedures and do not have legal advocacy skills.76 This unfamiliarity with the system only exacerbates the negative emotions many SRLs experience during stressful, sometimes expensive and emotional times in their lives.77

Development of matter-specific user guides is a simple means to alleviate the pressures SRLs experience. QCAT’s existing fact sheets can be used as a foundation.78 Presentation of processes in visual flowchart form, step-by-step instructions for using the online portal as well as videoconferencing technology and information on costs plus appeals should be consolidated into userguides. Parties can refer to user guides to lessen the pressure on QCAT staff to deal with simple enquiries.

B Reduced costs, convenience and efficiency Affordability has been a central theme in reasons for proposing or adopting ODR. The use of video-conferencing technology for mediation or tribunal hearings saves costs for both the individual parties and government by eliminating the need for travel, conference room bookings, et cetera.79 E-filing and establishment of an online portal will also reduce costs by requiring less staff hours to transfer data into electronic form, eliminating the need for physical storage of documents and allowing faster filing, potentially resulting in reduced fees for parties.80 On a broader level, reduced costs can be achieved by ‘[a] sound system of civil justice... by providing certainty and predictability, which will reduce the need for further disputation’.81 Affordability has 75

Zeleznikow (n 41) 31.

Ibid 32.

77 Ibid.

78 Queensland Civil and Administrative Tribunal, ‘Fact sheets’, Queensland Civil and Administrative Tribunal (Web Page, 15 October 2020) <https://www.qcat.qld.gov.au/resources/fact-sheets>.

79 Shurven (n 38) 147; Nussen Ainsworth, Colin Rule and John Zeleznikow, ‘Piloting Online Dispute Resolution Simulations for Law Students Studying Alternative Dispute Resolution: A Case Study Using Modria Software at Victoria University’ (2019) 8 Journal of Civil Litigation and Practice 95, 102; Fenwick (n 41) 126, 127.

80 Wallace (n 39) 10; Nicholson (n 55) 71.

81 Morris (n 37) 22.

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a direct correlation with trust, confidence and use of ODR as well as access to justice.82 Parties are more likely to use an ODR system and have positive experiences where they are able to be in a familiar environment. Parties will also have minimal disruption to their daily lives by, for example, not needing to take a day off work and travel to attend a QCAT hearing.83

Efficiency is a second core aspect of ODR that is referred to when advocating for greater uptake.

Technology has been key in enhancing efficiency of courts and tribunals through means such as e-filing.84 Video-conferencing also plays a part by reducing waiting time for hearings.85 Claims that the efficiency of video-conferencing is affected by the potential for a lack of 'trust and rapport’ are without basis and as discussed below, appropriate safeguards can be implemented to mitigate this alleged ‘deficiency’.86 Together, the advantages discussed above provide a strong argument for ODR to be implemented in QCAT through the development of a mobile-friendly online portal where all forms plus documents can be filed, development of matter-specific user guides, and the use of video-conferencing technology for mediations and hearings.

VI

CHALLENGES, RISKS AND SAFEGUARDS

Risks and challenges facing ODR in QCAT have been categorised into three categories and the author proposes a fourth: implementation, effectiveness, confidence and maintenance. First, implementing ODR in any court or tribunal must consider the individual forum, subject matters which are handled, and parties using the forum.87 Second, technology adopted must be effective and not create additional barriers.88 Third, parties using the tribunal plus the tribunal itself must trust and have confidence in the technology used.89 Trust and confidence in ODR is multidimensional with personal aspects such as cost and systemic aspects such as user-friendliness, Ummey Sharaban Tahura, ‘Does Mandatory ADR Impact on Access to Justice and Litigation Costs?’ (2019) 30 Australasian Dispute Resolution Journal 31, 32; Legg (n 63) 235.

83 Robin Creyke, ‘Australian Tribunals: Impact of Amalgamation’ (2020) 26 Australian Journal of Administrative Law 206, 214.

84 Morris (n 37) 21.

85 Ibid 20.

86 Sourdin (n 9) 156.

87 Allsop (n 37) 9-10.

88 Ibid.

89 Ibid.

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reliability and support.90 Finally, maintenance of ODR recognises the inherent weaknesses and vulnerabilities in using technology. Internet failures, poor image quality, delays and external intrusions such as children, dogs et cetera are realities in ODR. 91 It is unknown how these issues may impact on the legitimacy of such technology.92 However, these challenges and risks should not be a deterrent to implementing ODR. There are practical safeguards which can be developed by relying on human-centered design principles to alleviate or mitigate challenges and risks.93

A Safety and confidentiality To ensure trust, confidence and effectiveness of e-filing and video-conferencing in QCAT it must be secure in three respects. First information must not be able to be accessed by unauthorised third parties.94 Second, the technology used must protect the data involved.95 Finally, the technology must not utilise parties’ information or data in unauthorised ways. 96 Zoom experienced security concerns during COVID-19. However, no technology will be absolutely secure, so a certain level of risk must be accepted with appropriate safeguards.97 There have been no reported breaches of security of existing online portals of Australian courts and tribunals. Therefore, a similar system of encryption and password protection with the possibility of digital signatures to increase integrity would be secure.98

B Deficiencies in online communications It is well accepted that any video-conferencing will be deficient in non-verbal aspects of communication including touch, smell and some body language.99 Text-based ODR faces further extreme deficiencies of facial expressions, tone, pitch and volume.100 These non-verbal aspects of 90

Ebner (n 41) 155.

Legg (n 41) 22.

92 Tallodi (n 43) 253-254.

93 Margaret Hagan, ‘A Human-Centered Design Approach to Access to Justice: Generating New Prototypes and Hypotheses for Intervention to Make Courts User-Friendly’ (2018) 6(2) Indiana Journal of Law and Social Equality 199, 200.

94 Sourdin (n 9) 153.

95 Ibid.

96 Ibid.

97 Sissian (n 43), ‘Online dispute resolution: The advantages, disadvantages, and the way forward’ (2014) 42 Australian Business Law Review 445, 450; Sourdin (n 9) 153.

98 Fenwick (n 41) 129; Sissian (n 43) 450-451.

99 Clark (n 41) 10.

100 Braeutigam (n 38) 105; Joseph Goodman, ‘The Advantages and Disadvantages of Online Dispute Resolution: An Assessment of Cyber-Mediation Web Sites’ (2006) 9(11) Journal of Internet Law 10, 14.

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communication are especially important in processes such as mediation which are collaborative and require rapport between the parties and the third party.101 However, there is no evidence that non-verbal communication provides any basis for determining truth which could potentially impact a decision-maker.102 Non-verbal communication plus party characteristics such as age, gender and race which can be relevant are visible in video-conferencing.103 Video-conferencing can also reduce hostility.104 Research insinuating that ODR increases the danger for offensive, crude or ‘risky’ behaviour or that parties will be less inclined to reach a resolution because of a lack of satisfaction are without evidentiary bases.105

C Open justice Open justice is ‘one of the most fundamental aspects of the system of justice in Australia’. 106 It requires that justice is ‘seen to be done’ in public, which consequently ensures public accountability and justice.107 Technology has increased the transparency of courts and tribunals but it has also threatened open justice. 108 In the COVID-19 pandemic, hearings were virtual and courts and tribunals used a variety of methods to publicise hearings, including live-streaming on YouTube or providing full transcripts or audio-visual recordings.109 COVID-19 has necessitated another change in the position of the public with the legal system from observers to viewers.110 Open justice has never been absolute and while COVID-19 should not be used to place restrictions on open justice, the principle must adapt and change with society.111 Virtual hearings means QCAT can also be available and accessible to a wider range of people who were otherwise unable or unwilling to sit in on in-person QCAT hearings.112

101

Lancy (n 37) 173; Braeutigam (n 38) 105; Sourdin (n 9) 156.

Donoghue (n 39) 1007-1008.

103 Fenwick (n 41) 127; Clark (n 41) 10.

104 Braeutigam (n 38) 112-114.

105 Sissian (n 43) 448; Fenwick (n 41) 128.

106 Legg (n 41) 6.

107 Olijnyk (n 10) 4; Moore (n 44) 501.

108 Morris (n 37) 21.

109 Sourdin (n 9) 146; 15,6; 30, 163 110 Moore (n 44) 502.

111 Rodrick (n 45) 78.

112 Olijnyk (n 10) 6.

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D Symbolism and courts as services Symbolism is a significant facet of the legal system. Courts and tribunals have been carefully and purposefully designed over the course of its history to reflect the formality and ‘majesty of the law’.113 The tradition of the judicial authority is reflected in the architecture, formalities, clothing and solemnity which give effect to the rule of law, justice, equality and impartiality. 114 Those opposed to the use of ODR in courts and tribunals point to the inattention to or lack of such symbolism or ‘gravitas’ and the ‘presence-based’ model of a court as a place as a core reason for their resistance.115 Using video-conferencing can allegedly promote distrust and delegitimisation of courts and tribunals because of the deformalisation plus purported distance. 116 Anecdotal evidence does suggest less formality exists in video-conferencing and virtual hearings.117 However, traditions which these commentators advocate for are merely ceremonial and do not contribute to the delivery of the service the court provides. 118 While not denying that legitimate concerns are raised, there are safeguards which can be implemented to accommodate symbolism in virtual courts and tribunals, particularly in QCAT, where informality is accepted. For example, this could look like having QCAT members in official dress, with the coat of arms in the camera frame and the bench being visible to parties appearing virtually.119 COVID-19 has at least raised significant doubts of the presence-based model of courts as places, and disproved that judicial or statutory decision-making models cannot be replicated virtually.120

E Digital literacy Not all QCAT users will have access to a phone or computer or be able to use a phone or computer.121 Digital exclusion has been one of the major arguments against implementation of ODR in courts and tribunals.122 In QCAT the SRL user base means that legal practitioners cannot

113

Harvey (n 45) 60; Legg (n 91) 21; Olijnyk (n 10) 7-8.

Anne Wallace, ‘Virtual Justice in the Bush: The Use of Court Technology in Remote and Regional Australia’ (2008) 19(1) Journal of Law, Information and Science 1, 15; Olijnyk (n 10) 7; Moore (n 44) 497; Harvey (n 45) 60.

115 Olijnyk (n 10) 7; Moore (n 44) 497; Harvey (n 45) 59.

116 Olijnyk (n 10) 7; Moore (n 44) 497.

117 Wallace (n 114) 15-16.

118 Harvey (n 45) 60.

119 Legg (n 91) 21; Rowden (n 45) 520.

120 Harvey (n 45) 59.

121 Olijnyk (n 10) 9.

122 Tallodi (n 43) 255.

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be relied upon to bridge this gap.123 At a basic level, expansion of an online QCAT portal to a mobile-friendly app would bridge part of the gap as low socio-economic households are more likely to own a mobile phone than a laptop.124 Another viable option could be to establish designated QCAT computer stations in QCAT itself and other public venues such as libraries where parties could freely access the online portal and participate in virtual hearings.125 Development of QCAT matter-specific user guides with instructions on using the online portal and video-conferencing technology would assist parties with low levels of digital skills to access QCAT.

VII

RECOMMENDATIONS AND IMPLEMENTATION

QCAT’s development of an online portal where facilities exist for filing of all forms and documents for all QCAT matters can be achieved by issuing a Practice Direction plus amending various rules to remove the limitation on methods of filing and dispute types where e-filing is prohibited.126 Video-conferencing for hearings and mediation as standard should be implemented with ability for parties to opt-for an in-person hearing with a discretion retained by the Tribunal.

Issuance of a Practice Direction and amendment of section 32 of the Queensland Civil and Administrative Tribunal Act will be required.127

VIII

CONCLUSION

COVID-19 has shone a light on the lack of use of technology in courts and tribunals. Interim measures were put in place to deal with the initial emergency response. However, as life returns to ‘normal’, a bigger conversation must be had about the use of technology, such as ODR, in tribunals such as QCAT. As Queensland’s primary tribunal, it is important that permanent,

123

Olijnyk (n 10) 9.

Troke-Barriault (n 73) 16.

125 Kaplan (n 38) 130.

126 Queensland Civil and Administrative Tribunal Rules 2009 (Qld) rr 8, 24, 25, 26, 62, 63.

127 2009 (Qld) s 32.

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practical policies and procedures are put in place now to ensure stability in the technological future.

Development of an online portal which is mobile-friendly would allow parties to access QCAT to file documents from the convenience of their home thereby increasing efficiency and access to justice as well as decreasing potential costs. Consolidating QCAT’s existing fact sheets and general information into matter-specific user-guides will assist self-represented parties accessing QCAT, thereby increasing access to justice. Utilising video-conferencing technology for all mediations and hearings (with options for parties to opt-out in favour of an in-person hearing) can provide the greatest benefits of access to justice and convenience, reduced costs, accessibility and efficiency.

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