USQ Law Society Law Review Winter Edition 2023

Published by: USQ Law Society

Writing & Editing: USQ Law Society Editorial Board and Contributors

ISSN: ISSN 2653-1100 (Online)

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ABOUT THIS PUBLICATION

The USQ Law Society Law Review is a forum for debate for scholars and professionals, it provides a modern approach to a student run, peer-reviewed journal published biannually. Presenting current industry research, trends, points of law and legislative critique.

ABOUT THE USQ LAW SOCIETY

The University of Southern Queensland Law Society (USQLS) is a non-profit, volunteer organisation that aims to enhance student experience in all aspects of their personal, social, academic, and professional development. The core functions of the USQLS are:

1. To advocate our Members interests and concerns;

2. To support our Members with the appropriate guidance and opportunities; and

3. To mentor our Members while creating and nurturing strong relationships.

Established in 2008, the USQLS is comprised of law students from Toowoomba, Ipswich, and the external cohort. The USQLS is passionate about law and justice as well as strengthening our relationships the wider legal community. The USQLS organises, hosts, and promotes networking events, social events, competitions, education, and career development sessions.

A special thanks to the following for contributing to the USQLS Law Review

Editorial Board

Robyn EdmansonEditor-in-Chief

Farhan Khudir Editor

Takwa Murad Editor

Yoon Kim Editor

Contributors

Robyn Edmanson

Yoon Kim

Andrew Backhouse

Hayley Cohen

Esther Sophia

Chelsea Keirsnowski

Gemma Keogh

Acknowledgement of Country:

The USQLS Law Review Board acknowledges the traditional custodians of the land and pay our respect to the Elders both past, present, and emerging. We extend that respect to all Aboriginal and Torres Strait Islander peoples throughout Australia.

Law Review Vice President’s Address

It is my great pleasure and privilege to introduce the winter edition of the 2023 the University of Southern Queensland Law Society Law Review. This is the first edition of the law journal for this year.

This edition touches on a variety of ideas within the legal arena. We start with comparative Australian sentencing practices and their relative impact on the scope of judicial discretion. The law review will then explore some historical topics including First Nations, technologyrelated laws, corporate governance, and legal reasoning. The law review will then find itself considering data protection regimes, the minimum age of criminal responsibility and global trade regimes’ impact on environmental problems.

I would like to thank the 2023 Editorial board and my editor-in-chief, Robyn Edmanson whose passion, insightful editorial review and hard work helped create the edition to the high standard that it is today. I would also like to extend my gratitude to the whole 2023 USQ Law Society executive board, the University of Southern Queensland’s Law School for their ongoing support of the law review, and the Ipswich District Law Association for their generous sponsorship. Without all of your help and support, this edition of the paper would not be possible.

I hope that you, dear reader, will find that the effect of the articles that follow is not only to shed some light in terms of stirring and exchanging an idea in your mind but also to prompt you to think of what comes or ought to come next after that.

Yours faithfully,

Yoon Kim Vice President - Law Review USQ Law Society Law Review

Editor-in-Chief’s Address

We are pleased to present the Law Review’s Winter 2023 edition - the fifth since its inception two years ago.

Most notably, this edition is the first to require abstracts, not only to encourage students to orient their work from the reader’s perspective, but for practice in publishing in quality academic journals. We’ve tried not to over-edit articles by whittling down the student voice until effectively replacing it with our own. The balancing act of editing for style and substance while not losing an author’s voice is difficult, however it has taught us the valuable skill of learning how others think and write. In turn, the editing process has prompted consciousness of our own writing style and consideration of how others read and understand our work. While the Law Review might appear to be a purely academic exercise, a way for the law school to display its strong history and reputation, for us editors it means a lot more. The editorial team comprising Yoon, Farhan and Takwa would attest that it is one of the most challenging and rewarding experiences of our time at law school.

We’ve aimed to achieve our scholarly goals of showcasing a broad spectrum of student articles from both the Australian and International legal contexts. To this end, we present articles from Hayley Cohen, Gemma Keogh and Yoon Kim which encompass the theme of the historical and legal impacts of colonial settlement on our First Nations peoples pre- and post-Mabo, including the case for constitutionally enshrining a Voice to parliament. This edition also features Chelsea Keirsnowski’s contemporary analysis of the environmental impact of global trade, and Yoon and my responses to hypothetical scenarios involving the impact of a recent amendment to the Corporations Act on the use of digital signatures, and the legal requirements of a notifiable data breach. In the criminal law reform context, we present Esther Sophia’s case for raising the minimum age of criminal responsibility and my argument against mandatory sentencing. I also analyse comparative Australian sentencing practices including arguments for broadening the scope of judicial discretion in most jurisdictions. Finally, we are proud to publish Andrew Backhouse’s article addressing the issue of corporate governance principles and their application to Australian partnerships in light of the PwC tax avoidance scandal.

I commend to you our latest thought-provoking additions to the growing body of scholarly student law articles from the USQ Law Society.

Kind regards, Robyn

Edmanson Editor-in-Chief USQ Law Society Law Review

Robyn Edmanson Editor-in-Chief USQ Law Society Law Review

COMPARATIVE AUSTRALIAN SENTENCING PRACTICES, MANDATORY SENTENCING AND THE RELATIVE IMPACT ON THE SCOPE OF JUDICIAL DISCRETION

ROBYN EDMANSON

ABSTRACT: This essay responds to the following three questions: should sentencing be more objective (mathematical) or remain a subjective balancing act; how much discretion in the sentencing task should be given to the magistrate or judge; and whether there is a role for mandatory sentencing. While it is argued greater objectivity in sentencing should be injected using artificial intelligence for greater consistency in jurisdictions applying common law methodologies, in the context of Queensland’s comparative sentencing system and mandatory sentencing regimes, the judicial balancing act is adequately constrained.1

I INTRODUCTION

This essay draws on High Court authority, common law and scholarly research in response to three questions relating to contrasting sentencing methodologies, laws and practices in the context of Australia’s sentencing landscape. First, it will be argued that while the sentencing task requires balancing the inherent tension2 between conceptions of individualized justice3 and consistency4 there is greater scope for more objectivity using artificial intelligence (AI)5 in the ‘two-tiered or structured approach.’6 By contrast, the orthodox judicial view, mediated through the concept of ‘judicial discretion’7 as a consistency promoting mechanism, is that applying this structured approach to identify a sentence undermines the ‘instinctive synthesis’8 to decide each unique case.9 Second, as to whether judicial discretion is sufficiently wide, this essay argues for greater objectivity other than for Queensland courts which apply a comparative methodology. However, this essay finally argues that mandatory sentencing laws should play no role because of their largely unjustified interference in the

1 Submitted for assessment LAW3469

2 Justice James Spigelman, ‘Consistency and Sentencing’ (2008) 82(7) Australian Law Journal 450.

3 Elias v The Queen [2013] HCA 31, [27]; Bugmy v The Queen [2013] HCA 37, [36], [47] these High Court judgments emphasised the importance of individualised justice; Sarah Krasnostein and Arie Freiberg, ‘Pursuing Consistency in an Individualistic Sentencing Framework: If You Know Where You’re Going, How Do You Know When You’ve Got There?’ (2013) 76 Law and Contemporary Problems 265. The authors argue the balance is between ‘individualism’ and ‘comparativism.

4 See, eg, Lowe v The Queen (1984) 154 CLR 606 [610─611] (Mason CJ) stated: ‘Just as consistency in punishment – a reflection of the notion of equal justice – is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion in public confidence in the integrity of the administration of justice.’

5 Nigel Stobbs, Dan Hunter and Mirko Bagaric, ‘Can Sentencing Be Enhanced by the Use of Artificial Intelligence? Criminal Law Journal (2017) 41(5) 261, 262.

6 Wong v R (2001) 207 CLR 584 [74] (Gaudron, Gummow, Hayne JJ) (‘Wong’) in their joint judgment condemned the NSWCCA’s use of numerical guidelines for sentencing drug couriers which attached ranges of quantities for particular drugs stating “a mathematical approach to sentencing in which there are to be “increment[s]” to, or decrements from, a predetermined range of sentences…referred to as a “two-stage approach” to sentencing.’

7 Jurisic [1998] NSWSC 423 (12 October 1998) at 245 (Sully J) stated: ‘sentencing is an art and not a science;’ Geraldine MacKenzie, 'The Art of Balancing' (2003) 28 Alternative Law Journal 288, 289. The author stated all 31 judges surveyed in an interview-based study view sentencing as an art and not a science.

8 See, eg, R v Williscroft [1975] VR 292, 300 (Adam and Crockett JJ) stated: ‘Now, ultimately, every sentence imposed represents the judge’s instinctive synthesis of all the various aspects involved in the punitive process.’

9 Brian J Preston and Hugh Donnelly, Judicial Commission of New South Wales: Research Monograph No 32’ Achieving Consistency and Transparency for Environmental Offences 218 (2008) 9 https://www.judcom.nsw.gov.au/wp-content/uploads/2016/07/research-monograph-32.pdf

sentencing task otherwise open to divert individuals to non-custodial programs and sentences deemed without societal risk.

II THE CASE FOR GREATER OBJECTIVITY IN SENTENCING

It is contended that greater objectivity from the use of AI as part of a structured decisionmaking process provides for more consistency for offenders, victims and the public to the extent it conveys the desired degree of censure of the offender for the offence. 10 AI is currently used without judicial involvement to decide 90% of standardized sanctions for a range of criminal offences.11 Therefore its use could be extended to apply as a comparative reference point12 to enhance human decision-making for more numerically consistent and predictable sentences for serious offences.13 Prima facie, sentencing law and practice should be amenable to using computerised risk assessment tools involving AI for the higher courts because most of the relevant facts are already established prior to the passing of the sentence.14 The High Court majority in Markarian v The Queen (‘Markarian’)15 did not oppose greater objectivity in sentencing for ‘simple’ cases of only a small number of considerations although it stopped short of identifying what a ‘simple’ case is.16

Given the sentencer’s wide subjective discretion, AI could be used to improve transparency; 17 overcome potential subconscious bias; and reduce costs and sentencing disparity between sentencers from different courts.18 Stobbs, Hunter and Bagaric note the lack of transparency resulting from the prevention of the sentencer to ascribe the degree of weight to each sentencing variable as a considerable shortcoming because it compromises due process.19 In relation to costs, the use of AI would significantly save public expenditure which ran at over

10 Sarah Krasnostein and Arie Freiberg (n 3).

11 Gaye Lansdell et al, ‘Infringement Systems in Australia: A Precarious Blurring of Civil and Criminal Sanctions?’ (2012)

37 Alternative Law Journal 41; Mirko Bagaric, ‘Instant Justice? The Desirability of Expanding the Range of Criminal Offences Dealt with On the Spot’ (1998) 24 Monash University Law Review 231.

12 Stobbs, Hunter and Bagaric (n 5) 262.

13 Ibid at 272 the authors state US risk assessment tools focus on ‘measuring an individual’s chances of endangering public safety by re-offending;’ Terry Hewton, ‘Instinctive Synthesis, Structured Reasoning, and Punishment Guidelines: Judicial Discretion in the Modern Sentencing Process (2010) 31 Adelaide Law Review 79, 81.

14 Queensland Sentencing Advisory Council, ‘Queensland Sentencing Guide: Sentencing Process in Queensland’ (February, 2021) 8 https://www.sentencingcouncil.qld.gov.au/__data/assets/pdf_file/0004/572161/queensland-sentencing-guide.pdf

15 (2005) 228 CLR 357 [39] (Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan JJ) (‘Markarian’), affd Barbaro v R; Zirilli v R [2014] HCA 2 [34] (French CJ, Hayne, Kiefel, Bell JJ) stated sentencing is not a mathematical exercise that ‘cannot, and should not, be broken down into some set of component parts.’

16 Note the Markarian majority court neither identified what a ‘complex’ case is.

17 Stobbs, Hunter and Bagaric (n 5) at 266 argue that the sentencing process is obscured by the fact that sentencing courts are not permitted to set out the degree of weight ascribed to each variable.

18 Kevin Anderson, 'Sentencing in Magistrates' Courts' in Ivan Potas (ed), Sentencing: Problems and Prospects, Proceedings of a Seminar held at Australian Institute of Criminology, 18-21 March 1986, Canberra, 1987.

19 Stobbs, Hunter and Bagaric (n 5) 262.

$1.105 billion in 202220 comprising mostly sentencing, according to the latest figures from the Australian Bureau of Statistics.21

In addition, subconscious bias may account for significant variations in sentencing between groups and the courts. For example, Indigenous offenders are significantly over-represented in Australian prisons and, in some cases, twice as likely to be imprisoned as similarly placed non-Indigenous offenders.22 A further example of subconscious bias was the result of a US study finding 77% of unattractive defendants received a prison term while only 46% of attractive defendants were subjected to the same penalty.23 Sentencing disparity was found in the courts following a study involving identical facts given to 18 NSW magistrates with significant variation in outcomes.24

AI has long been used to inform legal practice25 and currently infuses a range of complex areas of law.26 For indictable offences, AI could be used to efficiently calibrate all relevant mitigating and aggravating factors and sentencing variables27 while also predicting the likelihood of re-offending.28 Stobbs, Hunter and Bagaric propose the development of an algorithm for use at two reference points: at the final stage of sentencing, and then applied to all subsequent sentencing matters. The authors assert AI could be used to analyse a large volume of decisions ‘ascertaining the emphasis and weight courts currently place on key factors that contribute to the formulation of a criminal sanction, namely, the maximum penalty, offence tariff (if one exists for the offence in question), sentencing objectives and aggravating and mitigating considerations.’29 Then the algorithm could be applied to all subsequent matters with the ‘advantage of making sentencing determinations quicker and more transparent, predictable and consistent.’30 The use of AI additionally benefits public expenditure by reducing court time and resources. AI’s primary disadvantage, however, is its

20 Australian Government Productivity Commission, Report on Government Services (2022) (Part C Section 7 Released 28 January 2022) Ch 7, table 7.3 ‘courts recurrent expenditure’https://www.pc.gov.au/ongoing/report-on-government-services/ 2022/justice/courts#downloads

21 Australian Bureau of Statistics, Criminal Courts, Australia (2020-21 financial year) https://www.abs.gov.au/statistics/people/crime-and-justice/criminal-courts-australia/latest-release. The ABS data shows 508,748 defendants were finalised in Australia’s criminal courts in 2020-2021 with 97% found guilty.

22 Mirko Bagaric, ‘Three Things That a Baseline Study Shows Do Not Cause Indigenous Over-imprisonment; Three Things That Might (but Shouldn’t) and Three Reforms That Will Reduce Indigenous Over-imprisonment’ (2016) 32 Harvard Journal on Racial and Ethnic Justice 1.

23 John E Stewart, ‘Defendant’s Attractiveness as a Factor in the Outcome of Criminal Trials: An Observational Study’ (1980) 10 Journal of Applied Social Psychology 348, 354.

24 Anderson (n 18).

25 Mary Ann Neary and Sherry Xin Chen, ‘Artificial Intelligence: Legal Research and Law Librarians’ AALL Spectrum 21(5) (2017) 16-20.

26 See, eg, the Australian government’s Department of Immigration and Border Protection which fully automates Tourist Visas and Working Holiday Visas while categories of visas issued considering human judgment include Partner Visas and Skilled Migration Visas.

27 Stobbs, Hunter and Bagaric (n 5) 261 contend there are more than 200 factors; s 9 of the Sentencing and Penalties Act 1992 (Qld) (‘PSA’) lists the sentencing factors the court must consider when deciding an appropriate sentence.

28 MacKenzie (n 8) 290 the author states that for judges predicting dangerousness is a particular concern in determining deterrence.

29 Stobbs, Hunter and Bagaric (n 5) 262.

30 Ibid.

predicted impact on the scope of subjectivity inherent in ‘individualised justice.’ Nonetheless, notwithstanding judicial resistance,31 AI-driven risk assessment guidelines could be trialled in increments as a sentencing tool to compare and contrast results with those of the sentencer prior to determination.

Stobbs, Hunter and Bagaric report the primary criticisms of AI’s use in some United States jurisdictions is it leads to ‘harsher assessments for minority groups’ and lacks confidentiality.32 However, the authors contend that subconscious bias may be eliminated from an algorithm’s sentencing decisions33 and confidentiality concerns can be similarly jettisoned if the court, parties to the proceedings and the wider community, are made aware of all the algorithm’s integers.34

III EXTENT OF JUDICIAL DISCRETION

The tension inherent in the judicial balancing act is reflected in the potential difference between a decision based on the unique circumstances of an individual case and one based on objective comparison with similar cases. The underlying rationale of the ‘instinctive synthesis,’ the High Court’s preferred sentencing method is sentencers are uniquely placed to apply Aristotelian logic to decide like cases alike and different cases differently to attain true equality in outcome.35 However, it is asserted that because judicial discretion in sentencing is a matter of degree ranging from broad discretion at one end to fixed penalties as in mandatory minimums and maximums at the other, there is room for a more structured approach from consistency-promoting measures such as computer-based sentencing in between.

While Australia’s sentencing law is a mix of common law and statute, and rightly a matter for the judiciary rather than juries,36 it requires sentencers to scrutinize each unique set of facts. Because decisions may result in significant restrictions on liberty, money or other assets, it is unequivocally correct that the rule of law should be applied to the maximum extent possible.37 Sentencing decisions, therefore, should be approached within a framework of guidelines, rules and principles established in advance so decisions are approached consistently and with reasonable predictability.38

31 See e.g, Markarian (n 15) [130] McHugh J disagreed with Kirby J’s criticism of the ‘instinct’ or ‘intuition’ of ‘instinctive synthesis’ to contend the alternative ‘two-tier sentencing’ is no more than ‘junk science.’

32 Stobbs, Hunter and Bagaric (n 5) 274.

33 Ibid.

34 Ibid.

35 Jurisic (n 8) at 221-224 (Spigelman CJ) stated: ‘It is generally desirable that cases which are broadly similar should be treated similarly and cases which are broadly different should be treated differently. As Aristotle observed: ‘True equality exists in the treatment of unequal things unequally.’

36 Eric Colvin, John McKechnie and Jodie O’Leary, Criminal Law in Queensland and Western Australia (LexisNexis, 8th ed, 2018) at 903 state while a judge may inform themselves as they wish, they ‘may not take the view of facts inconsistent with the verdict of a jury.’

37 Andrew Ashworth, Sentencing and criminal justice (Cambridge University Press, 5th ed, 2010) 417.

38 Ibid.

Statutory limitations,39 including sentencing guidance40 currently operate to varying degrees across Australia’s sentencing laws and practices to circumscribe judicial discretion’s aim to ensure individualised justice41 including adherence to the principles of parity,42 proportionality43 and totality.44 Orthodox sentencing discourse contends that sentencing decisions require account of a wide variation in circumstances in relation to both the offence and the offender.45 The High Court’s view is that the greater the scope of judicial discretion the less likelihood of a successful appeal.46 The argument is the broad discretion to choose between sentencing purposes, options and rules to safeguard justice in each individual case is ‘vital’47 to fair sentencing as justification for no further interference or restriction. 48 This principle was laid down by the majority Markarian High Court which stated that although ‘sentencing judges have discretion across a range of possible sentences’49 there is ‘no single correct sentence.’50 The High Court in Wong v The Queen (‘Wong’) had similarly indicated that while statements by appellate courts of principles affecting sentencing discretion can constitute precedents, sentences themselves are not precedents.51 However, the High Court’s favoured individualist approach is criticized as divisive because it ‘tends to regard consistency as a threat to the exercise of discretion.’52 The argument is that rather than identifying the contribution that individualism (individualised approach) and comparativism (the consistency approach) make, ‘Australian authorities often view individualism and comparativism as incompatible paradigms.’53

Depending on the jurisdiction, judicial constraints on individualism may arise from determinate measures such as guideline judgements from appeal courts,54 computerised

39 See, eg, Penalties and Sentencing Act 1992 (Qld) (‘PSA’) ss 9─14 and sentencing restrictions outlined in Queensland Sentencing Council, ‘Queensland Sentencing Guidelines’ (2021) https://www.sentencingcouncil.qld.gov.au/education-andresources/queensland-sentencing-guide

40 Note guidance in the Queensland context means factors to be taken into account in s 9 of the PSA. While the Queensland Court of Appeal has, from 2010, been granted statutory authorisation to issue guidelines in PSA ss 15AA-15AL they are yet to be delivered.

41 Elias v The Queen [2013] HCA 31, [27]; Bugmy v The Queen [2013] HCA 37, [36], [47] these High Court judgments emphasise the importance of individualised justice.

42 R v Nagy [2004] 1 Qd 63 [49] (Williams, Jerrard JJA, Muir JJ) cited the reasoning of the High Court in Lowe v The Queen (1984) 154 CLR 606 [which] recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to a ‘justifiable sense of grievance.’

43 PSA s 9(11) provides that, despite a court being permitted to treat a prior conviction as an aggravating factor, ‘the sentence imposed must not be disproportionate to the gravity of the offence.’

44 Nguyen v R (2016) 256 CLR 656, 677 (Bell, Gageler, Keane, Nettle, Gordon JJ) stated: ‘Ultimately the object of the sentencing exercise is to impose individual sentences that, so far as possible, accurately reflect the gravity of each offence while at the same time rendering a total effective sentence which, so far as possible, accurately reflects the totality of criminality comprised in the totality of offences.’

45 Justice James Spigelman (n 2) 450, 450.

46 Markarian (n 15) [39] (Kirby J) stated: ‘so long as all relevant considerations are given due attention, the discretionary character of sentencing will inhibit appellate interference’ in determining whether the sentence is manifestly excessive or manifestly inadequate.

47 Lowndes v The Queen (1999) 195 CLR 665, 672; R v MacNeil-Brown (2008) 20 VR 677, 681. Note, both judgments stated it was vital for individualised justice that judicial discretion be broad.

48 Mackenzie (n 7).

49 Markarian (n 15).

50 Ibid [27] (Gleeson CJ, McHugh, Gummow, Kirby, Hayne and Callinan JJ).

51 Wong (n 6) 584.

52 Krasnostein and Freiberg (n 3) at 268.

53 Ibid.

54 Note that from 2010 the Queensland Court of Appeal has had statutory authorisation to issue guidelines in PSA ss 15AA15AL but is yet to be delivered.

information retrieval systems,55 sentencing grids,56 and mandatory sentencing57 serving to narrow its scope.58 Measures such as judicial guidelines allow weighted factors for matters relevant to the offender and the offence.59 In Queensland, however, judges are unconstrained by these despite their potential benefits.60 The instinctive synthesis has no visible influence in that jurisdiction because sentencers adopt an informal ‘range-based’ strategy for sentencing for indictable offences.61 In applying this comparative sentencing methodology, the Queensland courts adopt the two-stage, structured approach whereby the sentence range is a starting point from which mitigating factors are discounted.62 Further, the Queensland Sentencing Information System is a statistical information source used to inform the general pattern of sentences for a particular offence which can specify key factors such as the offender’s age, guilty plea and prior conviction to more accurately match the statistics required for the case before them.63

In Queensland, the statutory starting point for sentencing is ss 9─14 of the Sentencing and Penalties Act 1992 (Qld) (‘PSA’) which sets out the governing principles to which the court must have regard. For example, ss 9(1)(a)─(f) sets out the purposes for which a sentence may be imposed, including rehabilitation, general and specific deterrence, denunciation, protection of the community, or a combination of these. Section 9(2) sets out the factors the court must regard in sentencing most offenders. These factors fall into distinct groupings, such as s 9(2) (a) a sentence of imprisonment as a last resort; the gravity of the offence under ss 9(2)(b)─(e) and s 9(10A), including the maximum and minimum penalties for an offence, the nature and seriousness of the offence; harm to the victim, and the extent of moral blameworthiness. Queensland sentencers also must have regard to mitigating factors as set out in ss 9(2) (f)─(ga) including age, the offender’s character and intellectual capacity. The interests of the justice system are also canvassed according to the offence’s prevalence, and any assistance the offender gave to authorities. Other factors to which the court must have regard include the totality of the offence in ss 9(2)(j)─(m), and miscellaneous aspects such as compliance with a community-based order.

Other than in Queensland and Western Australia,64 the use of computer-based sentencing guidelines and statistics as part of the determinate suite of sentencing systems has been largely eschewed by sentencing courts applying common law methodologies because of the orthodox view they unjustifiably interfere with judicial discretion. Colvin, McKechnie and O’Leary point out that in Barbaro v R; Zirilli v R65 the High Court clarified that while

55 See, eg, Stobbs, Hunter and Bagaric (n 5).

56 See, eg, Michael Kirby, ‘The Sentencing Council Re-visited’ in Ivan Potas (ed), Sentencing: Problems and Prospects, Proceedings of a Seminar held at Australian Institute of Criminology, 18-21 March 1986, Canberra, 1987. His honour states sentencing grids are primarily used in most US jurisdictions.

57 See, eg, Australian Institute of Criminology (‘AIC’), Mandatory Sentencing: Trends and Issues (Report 138)

58 George Zdenkowski, 'Sentencing Trends: Past, Present and Prospective' in Duncan Chappell and Paul Wilson (eds), Crime and the Criminal Justice System in Australia: 2000 and Beyond (Butterworths, 2000) 173-180.

59 Colvin, McKechnie and O’Leary (n 36) 916.

60 MacKenzie (n 8) 289.

61 Colvin, McKechnie and O’Leary (n 36) 917.

62 R v Houghton [2002] QCA 159 [30] (Fryberg J) stated comparable sentencing is “’the norm’, or perhaps, in accordance with Queensland practice, the range within which the norm falls’.

63 Supreme Court Library Queensland, ‘Queensland Sentencing Information Service’ (2018) https://www.sclqld.org.au/caselaw/queensland-sentencing-information-service

64 Colvin, McKechnie and O’Leary (n 36) 917.

65 (2014) 253 CLR 58 [40] (French CJ, Hayne, Kiefel, Bell, Gageler JJ) stated: ‘The setting of bounds to the available range of sentences in a particular case must, however, be distinguished from the proper and ordinary use of sentencing statistics

comparable sentences were acceptable and acknowledged, they ‘cast doubt on the use of any indicated range of sentences as limiting the scope of sentencing discretion or being determinative as to whether a sentence is manifestly excessive or inadequate.’ 66 However, this individualism argument is unpersuasive against systems which operate within the structured, two-tier framework to provide a more consistent and objective approach in tandem with reasonable predictability.67 Furthermore, as Stobbs, Hunter and Bagaric argue, there is a paucity of evidence that widening judicial discretion necessarily equates to enhanced fairness.68

IV NO ROLE FOR MANDATORY SENTENCING

Mandatory sentencing laws refer to legislation which sets fixed penalties69 ranging across various offences.70 While Queensland’s sentencing law as set out in ss 9-14 of the PSA71 provides a limited number of sentencing principles, it does not provide for mandatory minimum sentences of imprisonment. Sentencing is a highly politicized area of law with mandatory sentencing schemes representing overt legislative control. Arguments for these schemes are they introduce certainty in sentencing;72 promote efficiency by streamlining the process; and their specific and general deterrence reflect public condemnation of crime.73 While one of their primary purposes is to eliminate inconsistency, the Australian Institute of Criminology (AIC) argue while judicial sentencing may be more consistent,74 clear justification is required for their high public cost.75 Furthermore, mandatory sentencing schemes are problematic for privileging bureaucratic interests over the values of due process and human rights76 by fixing heavier penalties than justified on the facts,77 and disproportionately impact upon poor and marginalised groups.78

The argument for introducing mandatory sentencing schemes is their significant penalties prevent crime by deterring offenders from future offending (specific deterrence), and deter others in the community (general deterrence). However, the AIC argue these schemes rely on

and other material indicating what sentences have been imposed in other (more or less) comparable cases. Consistency of sentencing is important. But the consistency that is sought is consistency in the application of relevant legal principles, not numerical equivalence.

66 Colvin, McKechnie and O’Leary (n 36) 916.

67 Ashworth (n 37) 417.

68 Stobbs, Hunter and Bagaric (n 4) at 268 the authors argue while ‘discretion leaves open the greater prospect of a wider range of decisions [these are] not necessarily better decisions.’

69 AIC (n 57) 1.

70 The Australian Law Reform Commission, Incarceration Rates of Aboriginal and Torres Strait Islander Peoples (Discussion Paper, 84, 2022) at [4.4] mandatory sentencing laws are those requiring ‘a minimum or fixed penalty…upon conviction of an offender;’ Migration Act 1958 (Cth) s 236B; Crimes Act 1900 (NSW) 1900 s 19B(4); Criminal Law Consolidation Act 1935 (SA) s 11; Misuse of Drugs Act 1990 (NT) s 37(2); Sentencing Act 1995 (NT) s 78F; Domestic and Family Violence Act 2007 (NT) s 121(2); Crimes Act 1958 (Vic) ss 15A, 15B; Road Traffic Act 1974 (WA) ss 60, 60B(3); Criminal Code Act Compilation Act 1913 (WA) ss 297, 318.

71 PSA (n 26) ss 9─14.

72 AIC (n 57) 4.

73 Simon Bronitt and Bernadette McSherry, Principles of Criminal Law (Thomson Reuters, 4th ed, 2017) 48.

74 AIC (n 57) 4.

75 Neil Morgan, 'Why We Should Not Have Mandatory Penalties: Theoretical Structures and Political Realities' (2002) 23(1) Adelaide Law Review 141, 154.

76 See, eg, Law Council of Australia, ‘Policy Discussion Paper on Mandatory Sentencing in Australia’ (May, 2014) sets out Australia’s international and domestic human rights obligations; Human Rights Commission, ‘Mandatory Sentencing Laws in the Northern Territory and Western Australia’ Social Justice Report 2001 Ch 5 https://humanrights.gov.au/sites/default/files/content/pdf/social_justice/submissions_un_hr_committee/ 5_mandatory_sentencing.pdf.

77 See, eg, Terry Ernest Curnow v Leonard David Price [1999] NTSC 116, [112] (Mildren J).

78 AIC (n 57) 3.

invalid assumptions that people weigh the costs of crime before committing them. 79 Criminological research from the US indicates an extended prison stay for those with few other options is more attractive than for ‘a well-employed person with a family’. 80 Further, instead of incapacitating dangerous offenders, mandatory sentencing schemes are biased against the poor and marginalised because they are ‘more likely to commit the sorts of offences’ they cover.81 For example, the Northern Territory’s Office of Crime Prevention, s 53AE of the Northern Territory’s Youth Offenders Act 1994 (NT), which provided for mandatory sentences for repeat offenders in some categories, found no observable deterrent effect on property crime in the community between its introduction in 1997 and repeal in 2001.82

The AIC asserts any reductions in crime must be weighed against public expenditure because mandatory sentencing schemes are comparatively costly compared with other crime reduction measures such as diversionary programs.83 Comparing the expense of imprisonment with community corrections orders, the AIC found the cost to keep a single prisoner imprisoned for a year is more than $61,000 compared with about $6,500 a year for those given a community corrections order. 84 Imprisonment further increases pressure on time and court resources such as legal aid. Tonry argues there are more effective, less costly measures available to prevent crime both within and outside the criminal justice system. 85 Increased expenditure on detection and other crime prevention policies in Australia is a more effective deterrent than mandatory sentencing as these represent a greater return on public investment.86

Furthermore, because more defendants contest charges to try to avoid the mandatory penalty, there are increased costs in the court system because they ‘otherwise may have entered a plea of guilty.’87 Findlay, Odgers and Yeo similarly argue these schemes provide the ‘prosecution with too much bargaining power with which to influence defendants into pleading guilty to lesser offences when there is a substantial chance of acquittal of the original charge.’88

There is a common misconception that public opinion is the primary reason for mandatory sentencing regimes and laws such as Western Australia’s ‘three strikes legislation,’89’border control’ legislation under the Migration Act 1958 (Cth);90 and retention of mandatory sentences of life imprisonment for murder in Queensland. 91 Their underlying rationale is the

79 Ibid 4.

80 Alfred Blumstein, ‘Prisons’ in James Q Wilson and Joan Petersilia (eds), Crime (San Fransisco, Institute for Contemporary Studies Press, 1994) cited in Michael Tonry, Sentencing Matters (Oxford University Press, 1998) 138.

81 AIC (n 57) 3.

82 C Whyte, et al, ‘Review of the Northern Territory Sentencing Amendment (Mandatory Minimum Sentences) Act 2013’ (2013) Department of the Attorney General and Justice, Darwin 8.

83 AIC (n 57) 3.

84 Australian Institute of Criminology, How Much Does Prison Really Cost? Comparing the Cost of Imprisonment with Community Corrections (Research Report 05, 2018) x-xi.

85 Michael Tonry, Sentencing Matters (Oxford University Press, 1998) 135.

86 Ibid.

87 Ibid 4.

88 Mark Findlay, Stephen Odgers and Stanley Yeo, Australian criminal justice (Oxford University Press, 5th ed, 2014) 287.

89 Ibid at 286 the authors state it is mandatory for a judicial officer to sentence a repeat offender convicted of home burglary to a minimum of 12 months’ imprisonment for adults or detention for juveniles.

90 Note this legislation imposes mandatory minimum penalties of 5 years imprisonment for a number of offences involving illegal entry into Australia of five or more unauthorised people.

91 Criminal Code 1899 (Qld) s 305.

‘tough on crime’ approach appeals to voters driven by retribution.92 However, a review of international research reveals public opinion on sentencing issues are influenced by the types of survey questions asked and the degree of context provided.93 For example, when asked generalised questions about mandatory sentencing, without specific detail on the circumstances for the offence, public support for mandatory sentencing is at its highest. 94 A comprehensive study of jury opinion from 124 Victorian County Court trials from 2013 to 2015 showed ‘simple and generalised questions in polls and representative surveys may elicit support for mandatory sentences but more informed, contextual and considered lay views are against it.’95 However, even if people feel sentencing in general is too lenient, there is strong attachment to judicial discretion.96 This is a primary criticism of mandatory sentencing schemes; they remove the sentencing principle that offenders must be examined individually and penalties mitigated in some cases depending on the outcome of judicial scrutiny. However, UK research indicates that rather than eliminating judicial discretion, mandatory sentencing schemes ‘simply transfer or displace that discretion to an earlier part of the criminal justice system.’97

Moreover, Monterosso argues there is a broader interplay between policy and the media’s discursive practices which manipulates punitive sentiment to maintain the public castigatory view that crime and anti-social behaviour are more effectively controlled by harsh and authoritarian measures.98 While mandatory sentencing schemes claim to prevent crime with an injection of certainty and consistency into criminal justice systems to better reflect community condemnation, the AIC argues they result in only modest crime reductions.99 However, the AIC acknowledge the difficulty in gauging the actual effectiveness of these schemes as a crime prevention method due to the lack of systematic testing.

V CONCLUSION

The traditional common law methodological approach to sentencing is for courts to impose individualised sentences to ensure the punishment fits the offender and the crime. This essay has argued greater objectivity should be injected for indictable offences from algorithmicallydriven computerised guidelines as part of a more structured and consistent approach. There is little evidence that further widening judicial discretion would lead to better outcomes for the offender, victims or the community. By applying a structured, comparative methodology in Queensland, however, further restricting this highly circumscribed process may be inappropriate. Mandatory sentencing schemes, on the other hand, are not only a largely unjustifiable interference in the sentencing task, there was little evidence they are an effective

92 Nicholas Cowdery, 'Mandatory Life Sentences in New South Wales' (1999) 22(1) University of New South Wales Law Journal 290, 291.

93 Julian V Roberts, 'Public Opinion and Mandatory Sentencing: A Review of the International Findings' (2003) 30(4) Criminal Justice and Behaviour 483.

94 Ibid.

95 Kate Warner et al, 'Mandatory Sentencing: Use [with] Discretion' (2018) 43(4) Alternative Law Journal 289.

96 Barry Mitchell and Julian V Roberts, 'Sentencing for Murder: Exploring Public Knowledge and Public Opinion in England and Wales' (2012) 52(l) British Journal of Criminology 141, 142.

97 Ibid 5.

98 Stephen Monterosso, 'Punitive Criminal Justice and Policy in Contemporary Society' (2009) 9(1) Queensland University of Technology Law and Justice Journal 13, 13.

99 AIC (n 57) 4.

crime prevention strategy. While the public may hold the view that sentences are too lenient, research indicated there is no correlative opinion which favours mandatory sentencing over judicial discretion.

COULD THE FEUDAL SYSTEM OF LAND TENURE BE RECONCILED WITH THE RECOGNITION OF NATIVE TITLE FOLLOWING MABO?

YOON KIM

ABSTRACT: Following the High Court of Australia’s decision in Mabo, the feudal-based tenure system in relation to the native title was substantially shifted to respect the native title. This paper explores different views arising from potential implications or ramifications of the decision and a potential opportunity to reconcile between the Aboriginal peoples and the European settlers with respect to a land and associated rights and interests under the common law or an alternative legal framework.

I INTRODUCTION

In 1992, the High Court of Australia (‘the Court’) rendered its decision with respect to Mabo v Queensland (No 2)100 (‘Mabo’) concerning, among other things, the native title, which is considered the historic milestone Court decision defining ‘pre-Mabo’ (before the Court decision) and ‘post-Mabo’ (after the Court decision).101 It seems that, before Mabo or in ‘preMabo era’, the tenure system or feudal-based common law with respect to land including the native title and aboriginal land was mainly or exclusively relied upon in Australia as the English colonial legacy.102 However, after the Court decision in Mabo or ‘post-Mabo’, the old feudal-based tenure system in relation to the native title seems to have been substantially shifted in order to reflect or respect the native title, while there seems to be some different or alternative view of how to see Mabo in terms of the English common law application or something other than the common law.103

II ENGLISH COMMON LAW (FEUDAL-TENURE SYSTEM

In Mabo, the Court discussed about whether it could hear a case regarding the acquisition of a territory by a sovereign state, where the judicial branch might defer to the executive branch. However, the Court seems to have concluded that it would be able to hear the case on the basis that ‘the municipal courts have jurisdiction to determine consequences of an acquisition under municipal law‘, while there might have been some elements of international law attached to the common law to some degree.104

When Europeans expanded to and settled in the new colonial territories at the times of ‘the great voyages of European discovery’, they viewed the new land as terra nullius or an uninhabited land.105 The problem with this view of terra nullius by European settlers is that the new land they found was not uninhabited.106 There were already the Indigenous people who made a living in the land, though their culture or society was quite different from that of the European settlers, while the settlers viewed that as unorganized and inferior or ‘backward peoples’.107 The term of ‘backward peoples’, while obviously insulting to the native people and seems to have been attributable to lack of understanding and knowledge about the native

100 (1992)

107 ALR 1 (‘Mabo’).

101 Ulla Secher, ‘The Doctrine of Tenure in Australia Post-Mabo: Replacing the “Feudal Fiction” with the “Mere Radical Title Fiction”’ (2006) 13(1) Australian Property Law Journal 107, 140 (‘Secher’).

102 Ibid.

103 Ibid.

104 Mabo (n 1) 32.

105 Ibid.

106 Ibid.

107 Ibid.

peoples and their cultures at that time, it seems to have been used as justification for the European settlers to take the native peoples’ land or territory for the acquisition of sovereignty over that land.108

The notion of tenure or ‘the doctrine of tenure’, the origin of which came from the old English common law and being in force in England, was applied to the colonial territories, despite the fact or possibility that it was more likely that the tenure system might not work nor be applicable to the colonial territories in practice.109 Though the colonial territories might be a land that the Crown assumed sovereignty over via a radical title, however, the radical title could be more effectively applied in cases of terra nullius or an uninhabited land than in cases of an inhabited land. Specifically, the native lands, where the Indigenous peoples already made a living and vested at least some kind of rights and interests in the land before the Europeans settled in the land, would not be directly applied or applicable to a radical title, since such cases of not uninhabited lands do not need a grant from the Crown for their preexisting life such as rights and interests in the land.110 For example, as illustrated in Mabo, in the cases of both Ireland and Wales following the English conquest in their lands, the Irish and the Welsh, the original inhabitants who made a living and vested their interests and rights in their territories, did not need a new grant from the Crown to keep their land, rights and interests under the common law.111 Hence, there seems to be room under the common law that may be able to recognize the native title. And, if so, this can be done without introducing a new legal framework drastically different from the common law, despite the common belief or misconception that the feudal-based tenure automatically attaches interests and rights to a new territory acquired by the Crown over its sovereignty.112

In Canada, there is a legal interpretation or approach seemingly subtly different from and yet similar to the above, when the Crown assumed the sovereignty of a land, that title to land can be distinguished from the Crown’s assumption of the sovereignty.113 This means that the Crown cannot extinguish or infringe Aboriginal title, unless the title is transferred to the Crown (separated from the assumption of the sovereignty) or the title holders die intestate without heirs.114

III ALTERNATIVE VIEWS TO FEUDAL TENURE

While the Court in Mabo seems to have rendered its decision based on or within the boundary of the tenure under the common law, the native title in terms of its full possible effect enjoyed by the Indigenous peoples may not be fully explained or justified in the eyes of the tenure system or the common law.115 In other words, the common law has its own implications or limitations with respect to the full recognition of the native title due to the different nature and characteristics between the English tenure system based on European feudalism and Indigenous customary rules.116 For example, while alienability in relation to a land or territory is one of the factors defining a private or proprietary right based on the tenure system, it may not be so black and white to the Indigenous peoples or at least not in the same way. 117 While

108 Ibid.

109 Ibid 46-47.

110 Ibid 48.

111 Ibid 49.

112 Ibid.

113 Kent McNeil, ‘The Source, Nature, and Content of the Crown’s Underlying Title to Aboriginal Title Lands’ (2018) 96 Canadian Bar Review 277, 289 (‘McNeil’).

114 Ibid.

115 Secher (n 2) 177.

116 Ibid.

117 Ibid.

the Australian tenure system may have made substantial progress in terms of recognizing native title following Mabo, it may still have some challenges and implications in cases where un-alienability is involved with respect to a land that the Aboriginal people or Indigenous peoples occupy and yet cannot meet the definition of native title.118 To address the limitation or to reconcile the limitation and the feudal system of land tenure, native title may be treated as an exception to the tenure or allodial system, which differs from the tenure under the common law or 'Aboriginal customary law title' as suggested by Secher.119

While there may be some middle ground between the tenure system (the common law) and Mabo with respect to native title recognition, there is a more drastically different approach to applicability (or inapplicability) of the tenure, which is completely ignoring the feudal system and changing to or replacing with an allodial land system.120 This rather drastic view is attributable to the fact that the feudal tenure system is more of the historical contexts rather than of ‘a legitimate land system’ in Australia.121 In order to better understand and assess native title more objectively, a neutral lens independent of the tenure is required, which seems to lead to an allodial land system that can be ‘reconciling fundamentally different cultural perspectives to land ownership’.122

Along the same line of the above rather drastic view, there also seems to be ‘a pluralist property perspective’, other than the old or outdated feudal tenure, that may better assess or determine the native title (and non-native titles for that matter), as the society progresses.123 To this end, Hepburn states that:124

The introduction of native title rights has, however, fundamentally altered Australian land culture. In accepting native title as a valid and enforceable property interest, Australian land law has now embraced a pluralist property perspective. Within such an environment, it is no longer legitimate or justifiable to perpetuate a feudal fiction intrinsically inconsistent with native title perspectives. The longevity of feudal tenure must not inure it against the demands of social progression.

Based on the foregoing, Hepburn seems to suggest that due to inevitable incompatibility between the feudal tenure and native title, or anything that may arise from a different cultural background with respect to a land property, ‘a pluralist property perspective’ allowing different views or perspectives of a land, whether it is based on an allodial system or something else, needs to be explored and adopted.

IV RECOGNITION AND COEXISTENCE

Whether native title in Australia can be reconciled with the feudal system of land tenure or needs to invite a new legal framework drastically different from the tenure, such as an allodial land system as aforementioned, there are real issues to be dealt with following Mabo. For example, there may have been already some form of coexistence between the European settlers (the pastoralists) and Aboriginal and Indigenous peoples on a land that would or should have been subject to native title where the settlers made substantial efforts to improve

118 Ibid.

119 Ibid 178.

120 Samantha Hepburn, ‘Disinterested Truth: Legitimation of the Doctrine of Tenure PostMabo’ (2005) 29 Melbourne University Law Review 37(1) (‘Hepburn’).

121 Ibid.

122 Ibid 38.

123 Samantha Hepburn, ‘Feudal Tenure and Native Title: Revising an Enduring Fiction’ (2005) 27(1) Sydney Law Review 49.

124 Ibid.

the land by farming, building a shelter like a house and doing a business with or without recognizing native title.125 Specifically, if the land was under native title despite the fact that it was not properly recognized, due to a biased application of the tenure arising from the different cultural contexts, then the settlers or pastoralists’ right in relation to the land was technically more or less of a lease in nature that was in effect along with the Indigenous peoples’ title or original ownership.126

Some of the settlers may find discomfort in finding that they do not exactly have full ownership or possession of land they initially thought they would depending on whether there is native title with respect to the land that can be in effect following Mabo 127 However, there also can be an opportunity for both interests of native title and of settlers to coexist or be in harmony with each other in different forms that can be either monetary or non-monetary. For example, it can be some kind of showing of respect for ‘the first owners’, joint management of the land or/and transferring the land interests with appropriate compensations.128

V CONCLUSION

In summary, the Mabo decision has seemingly opened the door for reconciliation between the Aboriginal peoples and the settlers with respect to a land and associated rights and interests. While Mabo can be viewed within the boundary of the tenure originally from the English common law that may or may not have compatibility with Mabo to the full extent129, it is hard to deny the fact that Mabo has established its own law, or arguably Australia’s version of the common law, reflecting its unique circumstances with respect to native title matters and subsequent opportunities for reconciliation.

125 Mason, Anthony, ‘The Rights of Indigenous Peoples in Lands Once Part of the Old Dominions of the Crown’ (1997) 46 International and Comparative Law Quarterly 812, 830.

126 Ibid.

127 Ibid.

128 Ibid.

129 Hepburn (n 24).

HOW DOES A DIGITAL SIGNATURE LOOK FOLLOWING THE CORPORATIONS AMENDMENT (MEETING AND DOCUMENTS) BILL 2021

YOON KIM

ABSTRACT: This paper examines a hypothetical scenario, from a legal perspective, where a company (a potential client) wants to build an app that allows an electronic approval and esignature in light of the recent Corporations Amendment (Meetings and Documents) Bill 2021, and tests in terms of what may (or may not) help the company prepare for any legal implications and potential business opportunities arising from the Bill 2021.

I INTRODUCTION

The Corporations Amendment (Meetings and Documents) Bill 2021 received assent in February 2022130, which amended the Corporation Act (the CA).131 One of the amendments, among other things, is allowing an electronic signature or electronic means to sign an electronic form of the document for the purpose of the CA as long as it meets certain requirements.132 The requirements for an electronic signature can be met, if the method of an electronic signature identifies the person who is electronically signing and the signing person’s intent to do so.133 Furthermore, the method of an electronic signature needs to be ‘as reliable as appropriate’ to fulfill or be able to prove both the person’s identification and intent to do so.134

While the (amended) CA seems to have intended to dictate its intent and application of the law as clearly as possible, given the relatively new legislation, it is not clear enough whether the CA may mean or allow an electronic signature in the way the client has described which is a digital version of a person's actual signature or/and a generic but stylized representation of the person's name. To answer this, the provision(s) of the CA dealing with an electronic signature needs to be carefully examined.

II THE ACT’S PURPOSE

When an Act or legislation is interpreted or examined in terms of finding out what it actually means, the purpose or object of an Act is given preference over other potential interpretations as per the Acts Interpretation Act (the AIA).135 As per Mann and Secretary136, a Second Reading Speech made by a minister in relation to a Bill and Explanatory Memoranda can be referenced and helpful in understanding the purpose or object of an Act. Also, the AIA allows use of extrinsic material, such as a Second Reading made to the Parliament, in the interpretation of an Act.137

130 Corporations Amendment (Meetings and Documents) Bill 2021 < https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;page=0;query=BillId:r6784%20Recstruct:billhome> (‘the Bill’).

131 Corporations Act 2001 (Cth).

132 Ibid s 110A.

133 Ibid.

134 Ibid.

135 Acts Interpretation Act 1901 (Cth) s 15AA (‘AIA’).

136 (2014) 140 ALD 443.

137 AIA (n 6) s 15AB.

Since a Second Reading Speech can be referenced in ascertaining the purpose or object of an Act for the aforementioned reason, the Second Reading - Senate Hansard - 2 December 2021 can be referenced and assist the interpretation of the CA, which has the following excerpt138:

The reforms allow documents to be signed and executed in flexible and technology-neutral ways to ensure that, regardless of whether company officers execute documents electronically or physically, the execution will be valid. The reforms extend the ability of company agents to make contracts and execute documents - including deeds - flexibly.

The above Reading excerpt has the two key words that are flexible and technology-neutral, which seems to indicate that there is no limitation or boundary regarding which (electronic) form, method or a kind of technology can be used for an electronic signature in the electronic document for the purpose of the CA. The question then becomes what is ‘electronically’.

When the meaning of a provision of a statute is uncertain or obscure, section 15AB(1)(a) of the AIA suggests ‘the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act'.139 The ordinary meaning can be found in a well-known dictionary. As such, the Macquarie Dictionary defines electronically as ‘of or relating to electrons or concerned with electronics or any devices or systems based on electronics’.140 Also, the Dictionary defines digital as, among other things, ‘electronics of or relating to units of information that exist in two states only, on and off, as pulses (opposed to analog); binary’ or ‘involving or relating to the use of computer technology’.141 Hence, since the word of electronically (or electronical) includes digital or is digital-based for units of information, an electronic signature includes a digital signature (while the two words are often interchangeably used between them in practice). In other words, the CA permits any form of an electronic signature including a digital version of a person’s actual signature and a generic but stylized representation of the person’s name, which is, however, subject to other provisions of the CA discussed in detail below.

While the CA permits any method of an electronic signature flexibly and in a technologyneutral way, the method must comply with three conditions or requirements in order to be effective and valid.142 First, the method needs to identify the signing person.143 Second, the method needs to indicate the signing person’s intention with respect to the information in the document.144 Third, the method needs to be as reliable as appropriate or can be proved to satisfy or meet the two preceding conditions by itself or together with other relevant evidence.145 Hence, as long as the method meets these three conditions, it can be flexibly any form or method of an electronic signature.

III APPLICATION

A digital version of a person’s actual signature, which can be viewed as one of the electronic signature methods, may be used for a company’s execution of corporate document via its electronic signature for the company purpose, if it meets the aforementioned three

138 The Bill (n 1) Second Reading (2 December 2021) <https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=BillId_Phrase %3Ar6784%20Title%3A%22second%20reading%22%20Content%3A%22I%20move%22%7C%22and%20move%22%20Content%3A %22be%20now%20read%20a%20second%20time%22%20(Dataset%3Ahansardr%20%7C%20Dataset%3Ahansards);rec=1> (‘Second Reading’).

139 AIA (n 6) s 15AB(1)(a).

140 Macquarie Dictionary (online at 20 March 2023) ‘electronically’.

141 Ibid.

142 Corporations Act 2001 (Cth) s 110A(2).

143 Ibid.

144 Ibid.

145 Ibid.

requirements that are identification, intent, and reliability. However, a digital version of a person’s actual signature seems to be vague without further context or details around what a digital version means in terms of technology or method used. For example, a digital version of a person’s actual signature may refer to simply a computer-scanned copy of a person’s physical signature which may or may not have a technical feature of authentication or digital signature that seems to be based on a mathematical algorithm and a key element of determining whether the information being electronically transmitted is authentic, identifiable, safe, and reliable.146

So, if the client’s idea of using a digital version of a person’s actual signature (or of using a generic but stylized representation of the person's name for that matter) includes the features like authentication or digital signature, the information or context of which can be provided by the client to confirm that, such method may be able to prove that it meets the requirements (identification, intent and reliability) under the CA. Specifically, if the underlined technology behind the client’s method of electronic signature has a technological feature like an authentication, digital signature or some form of mathematical algorithm-based encryption for security, the method can be used for a company purpose under the CA.

However, this is not to say that an authentication or digital signature is the only technology that can be used or approved under the CA, since the CA notes that the method is technology neutral as can be found textually in the CA (‘Division 1 — Technology neutral signing’) and explicitly in the Second Reading for the intent of the CA. Regardless of a kind of technology used for the method of an electronic signature, any technology that meets the requirements can be used for an electronic signature under the CA

While the method of an electronic signature is technology neutral and must meet the requirements to be valid, the method does not need to be too strict or stringent in terms of format of the method or the way which it applies to. For a greater clarity purpose, section 110A(4) of the CA provides some flexibility around the manner in which an electronic signature can be made.147 Specifically, the signing person does not have to sign the same form of the document, the same page of the document, and the same method to sign the document as another.148 This flexibility may provide some room for the client to develop an app more cost-effectively or at a lower cost, as the app does not need to match or coincide with every signing person’s electronic signature page, form or/and method which can be administratively burdensome and costly from an app developer’s perspective. Also, when a person electronically signs a document, the app does not have to be in such a way that all the information in the record is included in that document,149 which then may allow the client minimizing or cost-efficiently managing any relevant or applicable data storage related to the electronic signature app development.

IV CONCLUSION

In conclusion, the client’s idea of either a digital version of a person's actual signature or a generic but stylized representation of the person's name can be used for an electronic signature in a corporate capacity, if they meet the requirements under the CA that are identification, intent and reliability. Also, there seems to be some room or potential for the client to develop the electronic signature app in a way that is simpler and less costly, since the

146 Ravneet Kaur and Amandeep Kaur, ‘Digital Signature’ (Research Paper 2012 International Conference on Computing Sciences) 295-301 < https://ieeexplore.ieee.org/document/6391693>.

147 Corporations Act 2001 (Cth) s 110A(4).

148 Ibid.

149 Ibid.

CA allows flexibility around technology (technology-neutral) and a way in which an electronic signature is made with respect to its form and method.

LESSONS FROM THE PwC TAX AVOIDANCE SCANDAL: CORPORATE GOVERNANCE IN AUSTRALIA

ANDREW BACKHOUSE

ABSTRACT: This article addresses the issue of corporate governance principles and their application to partnerships in Australia in light of the PwC tax avoidance matter. The concept of corporate governance is defined as involving three separate areas including ‘hard law’, ‘hybrid law’ and ‘soft law’. The article also considers whether these corporate governance principles should be mandated for partnerships.

I INTRODUCTION

The PwC Australia tax avoidance scandal has damaged the reputation of the firm and eroded trust, with the potential for huge consequences. The so-called ‘hard law’ and ‘hybrid law’ corporate governance principles do not apply to PwC because it is a partnership – not a corporation. Some of those corporate governance principles, such as disclosure obligations, could help partnerships by making them more open and transparent.

PwC Australia has already implemented ‘soft law’ corporate governance principles through the PwC code of conduct. However, the tax avoidance scandal potentially demonstrated a failure of some of those principles. Given that PwC Australia operates on a partnership model, the matter brings attention to whether corporate governance principles should be mandated for partnerships in Australia.

II THE PwC SCANDAL

PwC Australia is a member firm of PricewaterhouseCoopers International Limited and operates as part of a global network. It is a large accounting firm and professional services provider that operates on a partnership model.150 The PwC Australia tax avoidance scandal began when the Federal Government started developing the Combating Multinational AntiAvoidance law and brought in former PwC Australia partner Peter Collins to help design the laws.151 As part of that process, Mr Collins signed three separate confidentiality agreements.152 During Mr Collins’ participation in consultations with Treasury, he ‘received confidential information and documentation’. It is alleged that, without prior approval from the Commonwealth, Mr Collins shared that ‘confidential information and documentation … with other PwC personnel as well as with overseas PwC partners…[who] were not authorised to receive such information.’153 A hearing by the Tax Practitioners Board later held that Mr Collins breached the Code of Professional Conduct by failing to ‘act honestly and with integrity’ and also by failing to have ‘adequate arrangements for the management of conflicts of interest that may arise in relation to the activities that you undertake in the capacity of a

150 PwC, How we are structured (Web Page) https://www.pwc.com/gx/en/about.html; (‘PwC structure’); Australian Government Business Register, ABN Lookup (Web Page) <https://abr.business.gov.au/ABN/View/52%20780%20433%20757>.

151 Andrew Backhouse, ‘PwC tax avoidance scandal gripping the finance world’, news.com.au (online, 3 June 2023) https://www.news.com.au/finance/business/pwc-tax-avoidance-scandal-gripping-the-finance-world/news-story/ 4e6bc41d1fa1640df3914d82d3bdd915; Tax Laws Amendment (Combating Multinational Tax Avoidance) Bill 2015 (Cth).

152 Tax Practitioners Board (Web Page) <https://www.tpb.gov.au/tax-practitioner/tax-agent/39805002> (‘TPB’).

153 Ibid.

registered tax agent or BAS agent’.154 His registration to act as a tax agent was terminated for breaches of the Professional Conduct in the Tax Agent Services Act 2009 (Cth).155 It is alleged that PwC partners used that information to market tax schemes that would help companies avoid the government’s new tax avoidance laws.156 Treasury has referred the PwC matter to the Australian Federal Police.157 PwC Australia chief executive Kristin Stubbins has issued a public apology regarding the matter on behalf of PwC and has launched an internal investigation. Ms Stubbins cited the failures by PwC as including ‘a clear lack of respect for confidentiality’, a lack of ‘adequate processes and governance in place’ and ‘a culture… that both allowed inappropriate behaviour and [that the firm had not] … always properly held our leaders and those involved to account’.158 Her statement pointed towards a lack of good corporate governance at the firm.

III WHAT IS CORPORATE GOVERNANCE?

The words ‘corporate governance’ are located on the websites of many companies and organisations across Australia, often accompanied by corporate jargon about its implementation. Yet defining the phrase is a complicated task. On one level, corporate governance refers to the way corporations are ‘managed to ensure accountability’159 and how companies are ‘directed and controlled’ by boards, directors and officers.160 It also ‘encompasses the mechanisms by which companies, and those in control, are held to account’.161 In a narrow sense, it relates to the way shareholders can ensure a corporation is run in their interests.162

However, the term has also been used more generally and extended to include organisations, and how they ‘promote ethics, fairness, transparency and accountability in their relations.’163 Six key principles outlined in the Interim Report of the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry (Banking Royal Commission Interim Report) included ‘obey the law, do not mislead or deceive, act fairly, provide services that are fit for purpose, deliver services with reasonable care and skill, and act in the best interest of another’.164 Commissioner Hayne also warned that ‘untrammelled corporate greed and a poor governance culture’ could negatively impact firms in Australia.165 A failure to adhere to the principles of corporate governance can have serious consequences. The Banking Royal Commission Interim Report outlined how poor governance can lead to misconduct – such as failure to implement policies or dishonesty.166 For example, the final report of the Banking Royal Commission observed that ‘poorly designed and implemented

154 2022-23 Supplementary Budget Estimates Economics Committee, Treasury Portfolio, Parliament of Australia (Question on notice no. 221 Portfolio question number: AET221, 6 March 2023).

155 TPB (n 3); Tax Agent Services Act 2009 (Cth) ss 30.10(1), 30.10(5).

156 Neil Chenoweth and Edmund Tadros, ‘The inside story of PwC’s tax scandal’, The Guardian (online, 5 March, 2023) <https://www.afr.com/companies/professional-services/the-inside-story-of-pwc-s-tax-scandal-20230504-p5d5k5.

157 Steven Kennedy, Referral to the Australian Federal Police of the PwC-Collins matter (Media release, 24 May 2023) <https://treasury.gov.au/media-release/referral-australian-federal-police-pwc-collins-matter>.

158 Kristin Stubbins, Open letter from PwC Australia acting chief executive Kristin Stubbins (Media release, 29 May 2023) https://www.pwc.com.au/media/2023/open-letter-from-pwc-australia-acting-ceo-kristin-stubbins-230529.html

159 Australian Law Dictionary (3rd ed, 2017) ‘Corporate Governance’ (def 1) (‘Corporate Governance’).

160 Klaus J. Hopt, ‘Comparative Corporate Governance: The State of the Art and International Regulation’ in Andreas M. Fleckner and Klaus J. Hopt (eds), Comparative Corporate Governance: A Functional and International Analysis (Cambridge University Press, 2013) 3, 4.

161 Phillip Lipton, Abe Herzberg and Michelle Welsh, Understanding Company Law (Thomson Reuters, 2019) 401.

162 ‘Corporate Governance’ (n 10).

163 Tobias Coutinho Parente and Cláudio Antonio Pinheiro Machado Filho ‘Corporate Social Responsibility: Perceptions of Directors in Brazil’ in Niccolo Gordini, Lerong He and James Cordeiro (eds) Management Research Review Corporate Governance (Emerald Publishing Limited, 2016) 1472, 1473.

164 Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry (Interim Report, 28 September 2018) 85-86 (‘Banking Royal Commission Interim Report’).

165 Anil Hargovan, Michael Adams and Catherine Brown, Australian Corporate Law (LexisNexis Australia, 7th ed, 2021)

396. 400.

166 Banking Royal Commission Interim Report (n 15).

remuneration arrangements’ – at least in relation to financial institutions – may lead to ‘an increase the risk of misconduct’.167

Corporate governance can be divided into three areas: ‘hard law’ obligations for directors outlined in the Corporations Act 2001 (Cth), ‘hybrid law’ such as enforced self-regulation outlined in the ASX Listing Rules, and ‘soft law’, including standards that companies or organisations voluntarily choose to adopt and follow.168 This article focuses on all three areas, with a particular focus on ‘soft law’ given that the ‘hard law’ and ‘hybrid law’ do not apply to partnerships.

IV JUSTIFICATION BEHIND CORPORATE GOVERNANCE

The purpose of corporate governance is to protect those who have a ‘stake in the company's success’.169 Regarding companies, the narrow interpretation of corporate governance is justified as a way to protect shareholders – to ‘ensure they get a return on investment. 170 This is accomplished by governance that follows the principles of ‘openness, integrity and accountability’.171 Regarding partnerships, the profits and losses are shared by the partners.172 This logically means that any corporate governance obligations are in place to protect the partners themselves.

Partnerships are not legal entities, meaning a firm cannot contract with third parties. Therefore, third parties must contract with one or more individual partners.173 The partners, and potentially the firm, owe obligations to contracting parties through the laws of contracts and equity.174 However, the success of a partnership often in practice relies on its good reputation in the eyes of the people they deal with and the wider community. 175 A failure of corporate governance can lead to reputational and trust damage, which in turn could harm a partnership.176

V WHY IS CORPORATE GOVERNANCE NEEDED?

The focus on corporate governance has intensified following several high-profile scandals including the collapse of HIH Insurance.177 Key findings outlined in the Report of the Royal Commission into HIH Insurance included a lack of good corporate governance. Specifically, the HIH business model was flawed and there was culture at HIH where leadership decisions were not questioned.178 The management of an organisation has an important role, ensuring that corporate governance controls are in place – and to ensure those controls are working. 179

167 Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry (Final Report, 1 February 2019) 345.

168 Anil Hargovan, Michael Adams and Catherine Brown, Australian Corporate Law (LexisNexis Australia, 7th ed, 2021) 396.

169 HIH Royal Commission (The Failure of HIH Insurance A corporate collapse and its lessons, April 2003) Vol 1, 102 (‘Failure of HIH insurance, HIH Royal Commission’).

170 Lipton, Herzberg and Welsh (n 12) 401; Andrei Shleifer and Robert W. Vishny, ‘A Survey of Corporate Governance’ (1997) 52 (2) The Journal of Finance (New York) 737, 737.

171 Failure of HIH insurance, HIH Royal Commission (n 20)

172 Partnership Act 1891 (Qld) s 27; Re Albion Life Assurance Society (1880) 16 Ch D 83.

173 LexisNexus, Business Laws of Australia (online at 8 June, 2023) Authority to contract [24,110].

174 Ibid.

175 Petter Gottschalk, Corporate Social Responsibility, Governance And Corporate Reputation (World Scientific Publishing Company, 2011) 27

176 Monika Roth, ‘Conflict of interest: Compliance and its contribution to corporate governance in the financial services sector’ in Anne Peters and Lukas Handschin (eds), Conflict of interest in global, public and corporate governance (Cambridge University Press, 2005) 255, 255.

177 Hargovan, Adams and Brown (n 16) 393-394.

178 Failure of HIH insurance, HIH Royal Commission (n 20).

179 Ibid 107.

In particular, good corporate governance is needed to help avoid numerous issues including conflicts of interest and breaches of confidentiality.180

In the PwC tax avoidance matter, there were allegedly instances where the ‘soft law’ obligations were not adhered to by a member of members of the partnership – the issue is still being investigated by PwC and potentially by regulators. Corporate governance can arguably help a firm avoid such issues, however, there is arguably no point in having corporate governance obligations if they are not followed.

VI REPUTATION, TRUST AND RELATIONSHIPS

Allegations of business impropriety can have huge implications for a firm’s reputation – in the community, among stakeholders and clients. Professional services firms in particular are reliant on a good reputation and can suffer significantly if it is damaged. 181 Breaches of trust also have the potentially to negatively impact a firm’s reputation. This is because trust is ‘fundamental to business’.182 A firm’s reputation is based on estimations of its past actions and future prospects.183 Rebuilding a damaged reputation often relies on transparency and action. Social responsibility is linked to reputation and is related to ‘ethical behaviour’ and attempts to improve the life of the firm and the community at large.184

In her open latter, Ms Stubbins stated that in relation to the tax avoidance matter, PwC had ‘[betrayed] the trust placed in us’ and that it raised questions about PwC’s ‘integrity and trustworthiness’. She stated the firm would take action to ‘re-earn the trust of our stakeholders’ and that she was committed to ‘transparency’.185

The reputational damage is already having real-world impacts. The Australian Financial Review reported that the ‘Department of Finance effectively banned the firm from any new contracts’ due to a lack of trust and reputational issues.186 The firm won $537 million in federal government contracts over the past two years. The matter illustrates how a failure of corporate governance can damage a firm’s reputation and have major consequences. Therefore, firms such as PwC should consider placing a high priority on implementing corporate governance principles that avoid damage to reputation and trust, and that promote social responsibility, integrity and openness.

VII PARTNERSHIP DEFINED

A partnership is defined in all Australian jurisdictions as a ‘relation which exists between persons carrying on a business in common with a view of profit’.187 Partnerships are created by contract and there is no requirement that they be registered with the Australian Securities and Investments Commission – as companies must do.188 Liability can be unlimited or

180 Roth (n 27) 255, 255.

181 Gottschalk (n 26) 27.

182 Roth (n 27) 255.

183 Gottschalk (n 26) 28.

184 Ibid 35-36.

185 Stubbins (n 9).

186 Edmund Tadros, Tom McIlroy and Neil Chenoweth, ‘PwC shut out of future federal contracts’ Australian Financial Review (online, May 25, 2023) https://www.afr.com/companies/professional-services/pwc-effectively-banned-fromgovernment-contracts-20230525-p5dbde.

187 Partnership Act 1891 (Qld) s 5.

188 Hargovan, Adams and Brown (n 16) 104.

limited.189 Unlimited liability means a partner can be personally liable for the debts and obligations of a partnership.190 Limited partnerships consist of at least ‘one general partner with unlimited liability’ and at least one limited partner whose liability is limited to the capital they have contributed.191 The general partner is permitted to manage the partnership whereas limited partners cannot and are also barred from contractually binding the firm.192

VIII THE PwC PARTNERSHIP

PwC Australia is connected to PricewaterhouseCoopers International Limited (PwCIL), an ‘English private company limited by guarantee’. PwCIL does not provide services. Instead, its role is to act as an umbrella organisation that facilitates ‘coordination between member firms in the PwC network’.193 The PwC Australia partnership was established under the laws of the Australian Capital Territory. It operates some of its professional services through incorporated companies including PricewaterhouseCoopers Consulting (Australia) Pty Limited and PricewaterhouseCoopers Securities Ltd.194 PwC Australia has historically divided its partners as being either equity or non-equity partners. It converted almost all nonequity partners to equity partners in 2022.195 PwC states on its website that its ‘liability [is] limited by a scheme approved under Professional Standards Legislation’.196 PwC – like all partnerships - is not a corporation and therefore ‘not a separate legal entity; it is the partners as a whole.’197 This means that neither the ‘hard law’ nor ‘hybrid law’ applies to PwC. However, it has chosen to implement standards that staff must follow. PwC Australia has a board made up of the CEO and 10 partners which ‘acts as an oversight body’, which is somewhat analogous to the board of a corporation.198 One of the services offered by PwC is to advise companies on how they can implement good corporate governance. PwC lists the principles of corporate governance that companies should follow as including ‘honesty, transparency, accountability, responsibility, independence, fairness and social responsibility’.199

IX THE PwC CODE OF CONDUCT

PwC has a type of ‘soft law’ corporate governance in the form of a code of conduct. The code, which was developed for PwC staff includes, ‘speak up’ which it defines as ‘speaking up when something doesn’t seem right’. The code also requires that employees act with ‘integrity and adhere to, and are guided by, the applicable professional standards’. It states employees should build trust with the community by ‘adhering to applicable laws and regulations, and fulfilling ethical obligations’. The code also relates to the use of information and states ‘confidentiality is critical to our ability to maintain the trust of our clients, each other, and those with whom we do business’. It encourages the reporting of ‘unethical or illegal behaviour’ as well as conduct that is ‘wrong, against the PwC purpose or its values.200

189 Partnership (Limited Liability) Act 1988 (Qld).

190 Hargovan, Adams and Brown (n 16) 124.

191 Ibid 141.

192 Ibid 141-142.

193 PwC structure (n 1).

194 PWC, PwC Australia Report FY22 (Web Page) <https://www.pwc.com.au/about-us/assets/firmwide-transparency-reportfy22.pdf>.

195 Ibid 16.

196 PwC structure (n 1).

197 Belgravia Nominees Pty Ltd v Lowe Pty Ltd [2015] WASCA 143.

198 PwC, PwC's Board of Partners (Web Page) <https://www.pwc.com.au/about-us/pwc-board-of-partners.html>.

199 PwC, Corporate Governance (Web Page) <https://www.pwc.com/th/en/rcs/corporate-governance.html>.

200 PwC, Living our Purpose and Values PwC’s Code of Conduct (Web Page) <https://www.pwc.com/codeofconduct>.

The PwC tax avoidance matter is illustrative of a failure to follow the PwC code of conduct in virtually all the points listed above. An internal PwC investigation is still ongoing, and facts are yet to be brought to light, but there is evidence there was a failure to ‘speak up’ when confidential information was allegedly shared by Mr Collins. A heavily redacted 144page document made public by the Tax Practitioners Board during Senate Estimates showed emails relating to potentially confidential information involving more than 50 people at PwC.201 The emails are indicative of a failure to ‘speak up’ at PwC. The alleged use of the confidential information to market tax avoidance schemes was also arguably a failure to adhere to applicable laws, regulations and ethical obligations – areas that are under investigation by PwC and potentially regulators. The Tax Practitioners Board found that Mr Collins did not ‘act with integrity’ and failed to have adequate ‘arrangements to manage conflicts of interest’.202 Whether that failure extended beyond Mr Collins at PwC has not been established. Ms Stubbins stated that the matter raised questions about PwC’s ‘integrity and trustworthiness’.203 The firm’s reaction to the scandal has faced criticism in the Australian media and by politicians. PwC initially characterised the matter as a “perception issue”. An editorial in the The Age described PwC’s reaction to the matter as ‘doggedly [refusing] to admit to anything that is not already in the public domain’.204 The characterisation of PwC’s response does not fit with its code of conduct requirement to report problematic conduct. In the Banking Royal Commission Interim Report, Commissioner Hayne warned against the characterisation of misconduct as being due to a ‘few bad apples’. He stated the attempt by an organisation to distance itself from responsibility by using such a characterisation could ‘ignore the root causes of conduct’, which ‘often lie with the systems, processes and culture cultivated by an entity. It does not contribute to rebuilding public trust…’205

X THE CORPORATIONS ACT

The Corporations Act imposes several corporate governance obligations on corporations including those related to ‘directors’ duties, shareholders meetings, rights and remedies, continuous and periodic disclosure obligations, the requirement of audits and regulation regarding takeovers’.206 This is the so-called ‘hard law’ of corporate governance. These obligations largely relate to investor confidence.207 These obligations are not imposed on partnerships. However, the implementation of the disclosure obligations outlined in the Act by a partnership could arguably help a partnership, by allowing it to follow the principles of openness and transparency, therefore building trust in the firm and helping to avoid reputational issues. For example, if PwC had publicly disclosed the tax avoidance matter at an earlier date, it arguably could have lessened the impact of trust and reputational damage to the partnership.

XI FIDUCIARY DUTIES

Partners have fiduciary obligations they must follow. Arguably, the principle behind such obligations is to protect the partners from harming the partnership – and the other partners who have a stake in the firm. The fiduciary obligations owed by the partners to each other

201 2022-23 Supplementary Budget estimates Economics Committee, Treasury Portfolio, Parliament of Australia (Question on notice no. 243 Portfolio question number: AET243, 17 February 2023).

202 Ibid.

203 Stubbins (n 9).

204 Patrick Elligett, ‘PwC scandal demands that ethics bar be set much higher’, The Age (online, May 25, 2023) https://www.theage.com.au/business/companies/pwc-scandal-demands-that-ethics-bar-be-set-much-higher-20230525p5dbdo.html.

205 Banking Royal Commission Interim Report (n 15) 87.

206 Lipton, Herzberg and Welsh (n 12) 402.

207 Ibid.

includes a duty to avoid conflicts of interest, not make secret profits, not compete with the firm, and not disclose confidential information.208 Corporate governance principles that highlight a partner’s fiduciary duties could arguably help a partnership from being harmed by a partner breaching fiduciary obligations.

XII ASX PRINCIPLES

In 2018, the ASX published its guide Corporate Governance Principles and Recommendations. This is the so-called ‘hybrid law’ of corporate governance. The principles relate to corporations, and specifically to listed companies. PwC is neither listed nor a corporation and therefore the principles do not apply to the partnership. However, Principle 3 could be applied to non-listed companies and partnerships. It requires that firms ‘instil a culture of acting lawfully, ethically and responsibly’. It states, ‘a listed entity should instil and continually reinforce a culture across the organisation of acting lawfully, ethically and responsibly’.209 This principle is already largely embedded in PwC’s code of conduct. Principle 6 relates to risk management and calls for organisations to ‘disclose material exposure to economics, environmental and social sustainability risks and how they are managed’.210 Implementing such a principle in a partnership’s corporate governance model could arguably assist with promoting openness and integrity – by alerting the public or a regulator to problems. Principle 2 calls for companies to appoint a majority of independent directors. The justification is to allow people from outside the firm to ‘challenge management and hold them to account’.211 Such a proposal could be considered at a partnership but there are there are also arguments against doing that – namely that partners would not want outsiders to run the firm and be privy to the organisation’s business without being personally invested in the undertaking.

XIII DISCUSSION ON THE ROLE OF CORPORTATE GOVERNANCE IN PARTNERSHIPS

There is no legal requirement that firms operating under the partnership model implement corporate governance. However, some firms such as PwC have voluntarily adopted a code of conduct. The question remains, is it time to extend the rules of corporate governance to cover large partnerships in the wake of the PwC scandal? The analysis above indicates that there is a difference between the type of corporate governance described as ‘hard law’ and ‘hybrid law’, compared to ‘soft law’. The former two fields are mainly about ensuring shareholder interests are protected and that people can be held accountable. For a partnership, there are no shareholders but instead partners who share in the profits and losses. They are likely intimately familiar with the businesses of their firm, and it could be expected that they would follow their own interests, meaning so such obligations may not be needed. However, some obligations, such as those relating to the disclosure of information, could arguably help a partnership by promoting openness and integrity and therefore help reduce reputational damage. Whether such obligations should be imposed or left to partnerships to voluntarily implement is an issue for policymakers.

208 Hargovan, Adams and Brown (n 16) 129; Helmore v Smith (1886) 35 Ch D 436 Court of Appeal (UK).

209 ASX Corporate Governance Council, Corporate Governance Principles and Recommendations 4th Edition February 2019 (Web Page) <https://www.asx.com.au/documents/asx-compliance/cgc-principles-and-recommendations-fourthedn.pdf>.

210 Ibid.

211 Ibid.

Many of the ‘soft law’ corporate governance principles outlined in this article were present in PwC’s code of conduct. The governance principles were arguably not followed in some circumstances in the tax avoidance matter, as Ms Stubbins alluded to in her open letter.212 The evidence points towards the implementation of ‘soft law’ corporate governance principles being a positive thing for partnerships, particularly regarding the issues of openness and integrity. KPMG chief executive Andrew Yates recently suggested that governance and accountability could be strengthened by codifying voluntary code into legislation.213 Whether such ‘soft law’ principles should be imposed and enforced by legislation, or left for partnerships to implement voluntarily, remains an issue for policymakers to consider.

212 Stubbins (n 9).

213 Nicole Hegarty and Nour Haydar, ‘Treasury response to PwC scandal criticised as rival KPMG proposes reforms’, ABC News (online 07, June 2023) https://www.abc.net.au/news/2023-06-07/pwc-tax-leaks-consultants-senate-inquiryquestioned/102449442.

REASON, THE SOUL OF THE LAW

HAYLEY COHEN

ABSTRACT: Asking whether laws that lack rationality are in fact laws leads one to then ask: What is law and why do citizens generally obey them? To answer these important philosophical questions, this paper will outline the competing views of natural law theorists and legal positivists about what makes law legitimate. It will then expand upon natural rights and their place in contemporary legal thought.

I INTRODUCTION

Natural law theorists argue that laws are rational when they conform with fundamental moral principles.214 These principles are universal, based on human nature and can be discovered through human’s capacity to reason.215 Natural law is considered to be a ‘higher law.’216 If laws violate natural law, they are deemed void. They may look like laws but have no legal status.217 Saint Augustine said, ‘an unjust law is not a law.’218 In contrast, legal positivists are not concerned about whether laws have merit.219 What makes laws rational and valid is when they are ‘posited’ (duly enacted and applied by established authority).220 Legal positivists say, ‘law is law.’221 The schism between the two theories of jurisprudence was never so pronounced than in their treatment of the iniquitous laws perpetrated under National Socialism. After witnessing the horrors of World War II, German legal positivist Gustav Radbruch changed his beliefs about the law. He saw how easy it was for the Nazi regime to exploit subservience to the law and the lack of resistance from German judges against great injustice. Radburch concluded that positivism and its law-is-law formalism played a powerful role in the atrocities.222 It allowed the abuse of basic rights to be rationalised and legitimatised.223

II NATURAL LAW AND LEGAL POSITIVISM

Radburch’s observations led him to the theory that fundamental principles of morality cannot be separated from legality. A statute, no matter how clearly expressed or how well it

214 Randy Barnett, ‘Getting Normative: The Role of Natural Rights in Constitutional Adjudication’ (1995) 12(1) Constitutional Commentary 93, 106 (‘Barnett’); John Finnis, Natural Law and Natural Rights (Oxford University Press, 2nd ed, 2011) 356 (‘Finnis’).

215 Sidney Jaffe, ‘Natural Law and the Nuremberg Trials’ (1946) 26(1) Nebraska Law Review 90, 91; 'Natural Law for Today's Lawyer' (1957) 9(3) Stanford Law Review 455, 467 (‘Natural Law for Today’s Lawyer’); Jonathan Crowe, 'Is Natural Law Timeless?' (2021) 33 Bond Law Review 1, 2, 5 (‘Crowe’).

216 ‘Natural Law for Today’s Lawyer’ (n 2) 484.

217 Rodger Citron, ‘The Nuremberg Trials and American Jurisprudence: The Decline of Legal Realism and the Revival of Natural Law’ (2006) 2(1) Michigan State Law Review 139, 139 (‘Citron’); Suri Ratnapala, Jurisprudence (Cambridge University Press, 3rd ed, 2017) 163 (‘Ratnapala’).

218 Finnis (n 1) 363; Edward Corwin, ‘Debt of American Constitutional Law to Natural Law Concepts’ (1950) 25(2) Notre Dame Lawyer 258, 259; Santiago Legarre, ‘A New Natural Law Reading of the Constitution’ (2018) 78 Louisiana Law Review 877, 890 (‘Legarre’).

219 John Austin, The Province of Jurisprudence Determined (Cambridge University Press, 1995) 157.

220 Ratnapala (n 4) 30; ‘Natural Law for Today's Lawyer’ (n 2) 471.

221 Gustav Radbruch, Statutory Non-Law and Supra-statutory Law, Bonnie Litschewski Paulson and Stanley Paulson (2006) 26(1) Oxford Journal of Legal Studies 1, 1 (‘Radbruch’); Herbert Hart, ‘Positivism and the Separation of Law and Morals’ (1958) 71(4) Harvard Law Review 593, 618 (‘Hart’); Lon Fuller, ‘Positivism and Fidelity to Law — A Reply to Professor Hart’ (1957) 71(4) Harvard Law Review 630, 660 (‘Fuller’); Hans Kelsen, ‘The Pure Theory of Law of Law Pt II’ (1935) 51 Law Quarterly Review 1, 17 [29].

222 Radbruch (n 8) 9; Hart (n 8) 617.

223 Kenny Yang, ‘The Rise of Legal Positivism in Germany: A Preclude to Nazi Arbitrariness’ (2012) 3 The Western Australian Jurist 245, 250, 257 (‘Yang’).

conformed with formalities, would be invalid if it was unjust. To resolve the conflict between justice and legal certainty, Radburch held that not all unjust laws are invalid— only the most inhumane.224

The Radburch doctrine influenced many of the findings in the post-war courts, including the Nuremberg trials. In the Grudge Informer Case, a woman who wanted to get rid of her husband reported him to the Gestapo for vitriolic remarks he made about Hitler knowing that he would be sentenced to death under Nazi law. The husband was not executed but sent to the battlefront instead. After the war, he began proceedings against his wife for the offence of depriving him of his right to liberty.225

The informer claimed she acted under the law that was in force at the time and, therefore, had committed no crime. The court invalidated the Nazi laws that the informer relied on describing them as ‘contrary to the sound conscience and sense of justice of all decent human beings.’226

The Radburch doctrine sparked the famous exchange between Herbert Hart and Lon Fuller. Hart criticised the Radburch doctrine for erroneously conflating legal duty with moral duty. While a person may be under a legal duty to obey an unjust law, they may have a prevailing moral duty to defy it. Hart believed the informer should not have been found guilty since her actions violated morality, not law.227

Rather than declaring the Nazi laws void, Hart proposed enacting a retrospective statute to punish the informer.228 Hart believed a retrospective statute had the value of clarity.229 On the other hand, a duly enacted statute rendered void because it was immoral would cause uncertainty. Hart argued ‘what law ought to be’ is dependent upon subjective interpretation and ‘encourage[s] the romantic optimism that all the values we cherish ultimately fit into a single system.’230

Hart further challenges the legitimacy of law based on ‘what ought to be’ standards by arguing that immoral aims can be just as rational as moral ones. He uses the analogy of a poisoner rationalising that they ‘ought to’ give their victim a second dose to effectively carry out their objective.231

Fuller defends the post-war decisions and the Radburch doctrine. He answers Hart’s assertion that immoral aims can be as rational as moral ones by saying that ‘coherence and goodness have more affinity than coherence and evil.’232 He points out how absurd the common law

224 Radbruch (n 8) 7; Hart (n 8) 617; Ratnapala (n 4) 207-8; Heather Leawoods, ‘Gustav Radbruch: An Extraordinary Legal Philosopher’ (2000) 2(1) Washington University Journal of Law and Policy 489, 500.

225 Citron (n 4) 208; Fuller (n 8) 649; Hart (n 8) 618-19.

226 Ibid 147.

227 Hart (n 8) 616-7.

228 Ibid 619; Ratnapala (n 4) 208; Citron (n 4)147-8.

229 Hart (n 8) 598.

230 Ibid 620.

231 Ibid 613.

232 Fuller (n 8) 636.

would be if precedents were built upon the ‘perfect realisation of iniquity.’233 Fuller also observes how a retrospective statute that renders a once valid law void, and the belief that ‘this is law but too iniquitous to be obeyed,’ are essentially the same as saying, ‘an unjust law is not a law.’234

Fuller discusses the ‘inner morality of law’. He argues how the legal system under Nazi rule was so corrupt and perverted that it ceased to make law.235 For example, the Nazi regime destroyed the rule of law through secret laws, ad hoc decrees, ad hominem legislation, retrospective statutes, punishment without trial for legal acts, disregard of laws that were inconvenient to officials and the practice of state thuggery.236 With the Grudge Informer Case, Fuller argued that one of the statutes cited was interpreted too broadly and the other was a ‘legislative monstrosity’ that allowed ‘uncontrolled administrative discretion.’237

Fuller’s argument that laws corrosive to the rule of law should be found void is sound. For example, a legal positivist would regard a secret law duly enacted as legitimate. If people do not know what the law is or are unable to follow its rules, how can humans flourish?238 There would be no predictability in such a legal system and people will not know how to conduct themselves in the future to avoid sanctions.239 Natural law, however, suffers from the same problem. So-called universal notions of objective morality, human nature and reason have become watered down in modern pluralistic societies. To prevent value judgments from jeopardising legal certainty, natural law should cast itself in statutory form.240

With that said, when positive law is so positively evil, individuals have a duty to disobey the law.241 Natural law with its higher standards of justice and morality offers ‘the tools to resist arbitrariness’.242 If these higher standards were applied to Nazi laws, ‘perhaps it would have allowed the Germans to see what the Nazis truly were— a criminal gang.’243

III LETTER AND THE SPIRIT OF THE LAW

Natural rights are implied in natural law theory. However, Enlightenment philosophers give them special significance. ‘Natural rights’ is the idea that humans are endowed with certain inalienable rights that exist independently of any positive law.244 Whereas natural law

233 Ibid 636.

234 Ibid 210.

235 Ibid 660.

236 Ibid 651-2; Ratnapala (n 4) 212.

237 Fuller (n 8) 654; Citron (n 4)148.

238 Case of the College of Physicians (1609) 77 ER 638, 652; William Blackstone, Commentaries on the Laws of England (1st ed, 1765) 91 (‘Blackstone’).

239 Anthony D’Amato, ‘On the Connection Between Law and Justice’ (2011) 2 Faculty Working Papers 1, 6 (‘D’Amato’).

240 Legarre (n 5) 888-9; Radbruch (n 8) 7.

241 Yang (n 10) 254; Gabriel Moens, ‘The German Borderguard Cases: Natural Law and the Duty to Disobey Immoral Laws’ in Suri Ratnapala and Gabriel Moens (eds), Jurisprudence of Liberty (Butterworths, 1996) 147.

242 Yang (n 10) 256-7.

243 Ibid 257.

244 Blackstone (n 25) 124; John Locke, Two Treatises of Government (Project Gutenberg, 2003) s 89 (‘Locke’); Justice Spiegelman, ‘The Common Law Bill of Rights’ (McPherson Lectures Statutory Interpretation and Human Rights, University of Queensland, 10 March 2008) 8 (‘Spiegelman’).

emphasised duties, natural rights are about individual entitlements.245 The primary purpose of natural rights is to protect individuals from one other and overreaching governments.246

John Locke in Two Treatises of Government claimed that when humans lived in a ‘state of nature’ (without civil society and government) they were ‘free, equal and independent.’ 247 Nevertheless, they agreed to enter into governed society and surrender some rights (namely, the right to exercise executive and judicial power) in exchange for the protection of their ‘life, liberty and property’ against outsiders (‘the social contract’).248 The protection of these rights was achieved by positive laws and the establishment of an impartial judiciary that can adjudicate disputes and redress wrongs.249 Under the social contract, the people’s obligation to obey the government is conditional upon the protection of natural rights.250

William Blackstone in Commentaries of Law said: ‘No human legislature has power to abridge or destroy [natural rights].’ In the New Commentaries, Henry Stephen modified Blackstone’s statement to: ‘No human legislature can justifiably abridge or destroy them.’ Moreover, Blackstone’s assertion that ‘the principle aim of society is to protect individuals in the enjoyment of absolute rights, which were vested in them by the immutable laws of nature’ is nowhere to be found in the New Commentaries 251 Notwithstanding the above, Spiegelman J says that this is not to say natural rights no longer contributes to the ongoing development of the common law. He does concede, however, that the focus has shifted from ‘natural rights’ to ‘human rights.’252 For example, natural rights have become the philosophical source of national253 and international254 human rights law.

Natural rights are factored into the common law through statutory interpretation. In Australia, the principle of legality is where the courts presume Parliament to have not intended to interfere with fundamental rights in the absence of clear contrary language.255 Fundamental rights include rights to property, 256 personal liberty,257 freedom of movement,258 freedom of speech259 and natural justice.260

245 ‘Locke’s Political Philosophy’, Standford Encyclopedia of Philosophy (Web Page, 9 November 2005) < https://plato.stanford.edu/entries/locke-political/>.

246 Barnett (n 1) 108-9; Ratnapala (n 4) 203.

247 Locke (n 31) ss 2, 4-6, 95.

248 Ibid ss 95, 123.

249 Ibid ss 89-90; D’Amato (n 26) 9.

250 Locke (n 31) s 95.

251 Spiegelman (n 31) 8.

252 Ibid 8-9.

253 Declaration of the Rights of Man and of the Citizen 1789 (France); Declaration of Independence 1776 (US).

254 Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, UN Doc A/810 (10 December 1948).

255 Coco v The Queen (1994) 179 CLR 427, 437; Bruce Chen, The Principle of Legality: Protecting Statutory Rights from Statutory Infringement? (2019) 41(1) Sydney Law Review 73, 73.

256 Clissold v Perry (1904) 1 CLR 363, 373; American Dairy Queen (Qld) Pty Ltd v Blue Rio Pty Ltd (1981) 147 CLR 677, 682-3; Clunies-Ross v Commonwealth (1984) 155 CLR 193, 199-200.

257 R v Bolton; Ex parte Beane (1987) 162 CLR 514, 520, 523, 532; Al-Kateb v Godwin (2004) 219 CLR 562 [149]-[50]; Uittenbosch v Chief Executive, Department of Corrective Services [2006] 1 Qd R 564 [7], [12]-[8].

258 Commonwealth v Progress Advertising and Press Agency Co Pty Ltd (1910) 10 CLR 457, 464; Melbourne Corporation v Barry (1922) 31 CLR 174, 206.

259 Nationwide News Pty Ltd v Wills (1992) 177 CLR 1, 31; R v Secretary of State for the Home Department, ex parte Simms [2000] 2 AC 115, 125-7, 130.

260 Commissioner of Police v Tanos (1958) 98 CLR 383, 395-6; Annetts v McCann (1990) 170 CLR 596, 598; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, 575-6.

In Australia, the general approach to statutory interpretation over the last few decades has been contextualism and purposivism. Meantime, in the United States, there has been a resurgence of the textualist theory.261 This year, the Supreme Court in Dobbs v Jackson Women’s Health Organisation262 reviewed Mississippi's Gestational Age Act. The majority overruled Roe v Wade263 and Planned Parenthood v Casey264 to find that the United States Constitution does not confer an implied right to abortion. The majority took a positivist legal and textualist perspective when interpreting the Constitution. For example, the words ‘due process’ in the Fourteenth Amendment Due Process Clause meant that it did not confer any substantive rights to life, liberty or property.265

Since the Constitution did not expressly refer to abortion, the court left the decision of whether abortion should be banned or not to the state legislature.266 The dissenters criticised the decision as allowing the government the power to ‘control a woman’s body’ and ‘determine what a woman’s future would be.’267

The question then arises: should an assurance that the law has not infringed natural rights be a necessary condition of the legitimacy of the law-making process?268 Randy Barnett argues that if laws are to carry normative weight, then those who produce the laws must ensure quality mechanisms are in place to justify this presumption.269 One such mechanism is constitutional adjudication that takes natural rights into account when reviewing legislation.270 If the Constitution does not provide effective protection of rights, then the lawful commands of government will only be obeyed to avoid punishment (law will become a ‘gunman writ at large’).271

The Ninth Amendment has also drawn a divide between constitutional scholars. The amendment provides that specific rights enumerated in the Bill of Rights are not exhaustive.272 Originalists assert that the amendment is not a source of rights and must be paired with another amendment within the Constitution. Moreover, since it is part of the Bill of Rights, it can only review federal legislation.273

Barnett argues that if originalists are right that it was not the intention of the framers for all levels of government to protect unenumerated natural rights, they have ‘won the constitutional battle, yet lost the legitimacy war.’ He argues that if governments pay no respect to natural rights when they enact and review legislation, its citizens will naturally be

261 Spiegelman (n 31) 9.

262 597 US 19-1392 (2022) (‘Dobbs’).

263 410 US 113 (1973).

264 505 US 833 (1992).

265 United States Constitution amend XIV; Dobbs (n 49) 2 (Thomas J).

266 Dobbs (n 49) 2 (Kavanaugh J); Randy Barnett, ‘The Intersection of Natural Rights and Positive Constitutional Law (1993) 25(1) Connecticut Law Review 853, 860.

267 Dobbs (n 49) 1 (Breyer, Sotomayor, Kagan JJ).

268 Barnett (n 1) 105-6.

269 Ibid 104-5.

270 Ibid 97, 112.

271 Ibid 110; Ratnapala (n 4) 211; Hart (n 8) 603.

272 United States Constitution amend IX.

273 Earl Maltz. ‘Unenumerated Rights and Originalist Methodology: A Comment on the Ninth Amendment Symposium’ (1988) 64(3) Chicago-Kent Law Review 981, 982.

under no obligation to respect their laws.274 As Locke would say, the social contract is voidable due to a breach of an essential term.275

If governments are to take natural rights into account in the law-making process, the next hurdle is—what rights constitute natural rights? The Second Amendment has been interpreted by the majority Supreme Court in District of Columbia v Heller as the right to own firearms in furtherance of the right to self-defence. The majority reaffirms United States v Cruikshank that the right to own firearms is a pre-existing natural right.276

Literature both supports and challenges the theory that the right to own firearms is a natural right. Locke’s Two Treatises is often used by both camps to support their claims. The right to bear arms for individual self-defence is never mentioned in the Two Treatises 277 Locke does say, however, that there was a broad right to use force for self-preservation when individuals lived in a state of nature.278 Gun control advocates argue that this right is not inalienable. The whole reason why people entered into the social contract was to gain protection from the law against the threat of outsiders.279 It was the uncontrolled use of force and the partiality of private punishment that made the state of nature insufferable.280

For argument’s sake, say owning a firearm is a natural right, then this right should be abolished by virtue of being obsolete in modern society. Change and evolution are natural phenomena for humans and the natural world. Therefore, natural law should be viewed as a continually evolving activity.281 This idea is contrary to the view held by new natural law theorists (such as Germain Grisez and John Finnis) in which natural law is timeless and immutable.282 However, Thomas Aquinas recognises that changes in the social environment can change natural law.283

The Second Amendment was created a few years after the American Revolution and fear of outsiders was still very much scarred on the American psyche. Importantly, the United States was a new country that could not afford an army. The purpose of the amendment was to allow men easy access to weapons in case they were needed to serve in the militia.284 However, times have since changed. With one of the most powerful armies in the world, a collective (as opposed to an individual) right to bear arms is a far more logical interpretation.

Guns rights advocate David Kopel claims that ‘the natural right of resistance and selfpreservation is necessarily effectuated by the right of having and using arms for self-

274 Barnett (n 1) 111; Locke (n 31) s 222.

275 Locke (n 31) s 95.

276 David Kopel, ‘The Natural Right of Self-Defence: Heller’s Lesson for the World’ (2009) 59(30) Syracuse Law Review 999, 999-1000 (‘Kopel’).

277 Steven Heyman, ‘Natural Rights and the Second Amendment’ (2000) 76(1) Chicago-Kent Law Review 237, 241 (‘Heyman’).

278 Locke (n 31) ss 16-19.

279 Heyman (n 64) 241-2.

280 Ibid 242; Locke (n 31) ss 13, 13, 20-1, 90, 125, 132-7; Mark Tunick, ‘John Locke and the Right to Bear Arms’ (2014) 25(1) History of Political Thought 50, 69.

281 Crowe (n 2) 2-3; Ratnapala (n 4) 177, 187, 212.

282 Crowe (n 2) 2.

283 Ibid 6.

284 ‘Transcript: Interview with Supreme Court Justice Ruth Bader Ginsburg’, The Takeway (Web Page, 16 September 2013) <https://www.wnycstudios.org/podcasts/takeaway/segments/transcript-interview-justice-ruth-bader-ginsburg>.

preservation and defence.’285 To support his argument, Kopel says: ‘A right of self-defence without a right to at least some defensive arms would be a right of little practical utility. It is arms—especially, firearms—which allow a weaker person to defend herself against a stronger attacker or group of attackers.’286

Kopel’s reasoning is flawed. What stops thieves from arming themselves in case they need to self-defend? Moreover, one armed person defending themselves against a group of armed attackers does not equalise the power imbalance. One weak person with a firearm, however, can cause mass devastation. This year, there have been over 600 mass shootings in the United States.287 The critical point is that it is a lot easier to kill and be killed with firearms. I argue that ‘the natural right of resistance and preservation of life is necessarily effectuated upon the banning of the private use of arms.’288 However, that is not to say the underlining fundamental principle of self-defence must change— only its details.289

IV CONCLUSION

Rational laws are positive laws. If individuals pick and choose what law to follow according to their own conceptions of what is just and right, society would never have left the state of nature. That is not to say justice, morality and natural rights are unimportant. The whole purpose of having laws is to benefit humankind. When the government and its people completely lose sight of that — now, what reason do we have?

285 Kopel (n 63) 1015.

286 Ibid.

287 Julia Mueller, ‘US Passes 600 Mass Shootings for Third Straight Year’, The Hill (Web Page, 24 November 2022) < https://thehill.com/blogs/blog-briefing-room/3749222-us-passes-600-mass-shootings-for-third-straight-year/>; Janie Boschma, ‘Mass Shootings in the US: 2022 Could Be the Second Highest Year’, CNN (Web Page, 23 November 2022) < https://edition.cnn.com/2022/11/23/us/2022-mass-shootings-tracking-second-highest/index.html>.

288 Kopel (n 63) 1015.

289 Crowe (n 2) 6.

THE AUSTRALIAN AND EUROPEAN PRIVACY AND DATA PROTECTION REGIMES IN THE CONTEXT OF AN ELIGIBLE DATA BREACH

ROBYN EDMANSON

ABSTRACT: This report outlines the statutory and regulatory regimes in Australia and the European Union (EU) in February 2023 in relation to a data breach by fictitious Queensland technology firm, Privacy Possums. Included is brief advice on the law around data breaches; a data breach response plan; and the mandatory reporting requirements in circumstances of an eligible data breach affecting the personal information of 5,000 Australian and EU engineers. In this scenario, one of Possums’s managers has left an unlocked laptop, with the Google Drive open to an excel spreadsheet on a train and has been unsuccessful in its recovery 290

I ADVICE ON AUSTRALIA’S DATA BREACH NOTIFICATION SCHEME

Introduction

The Privacy Amendment (Notifiable Data Breaches) Act 2017 (Cth) enacted the Part IIIC ‘notifiable data breaches’ scheme into the Privacy Act 1988 (Cth) (‘the Act’) in 2018. The scheme applies to an eligible data breach291 by an Australian Privacy Principles (APP) entity. The scheme’s purpose is to protect the personal information292 the entity holds. Because Possums has an annual turnover exceeding $3 million, it is an eligible entity for the purposes of the scheme.293 The following advice defines and outlines the elements of an ‘eligible data breach;’ Possums’s mandatory reporting requirements; and the consequences of failure to comply.

294

What is an eligible data breach?

An ‘eligible data breach’ comprises three criteria. First, there needs to be an ‘unauthorised’ compromise by Possums as the holder of personal information of one or more individuals. This includes any access, disclosure, or loss of personal information including accidental loss or negligent or improper disclosures by internal parties, or malicious breaches involving hackers.295 Second, a ‘reasonable person’ would conclude such access, disclosure or loss

290 Submitted for assessment LAW3476 Privacy and Data Protection Law.

291 Privacy Act 1988 (Cth) s 26WE(1)(a) states the scope of an eligible data breach for an Australian entity is that it holds the personal information of one or more individuals (i); and is required under APP 15 not to act, or engage in a practice, that breaches 11.1 in relation to personal information (ii); Office of the Information Commissioner (‘OAIC’) ‘About the Notifiable Data Breaches scheme’ (Web Page) https://www.oaic.gov.au/privacy/notifiable-data-breaches/about-thenotifiable-data-breaches-scheme

292 Ibid s 6(1) defines ‘personal information’ to include ‘information or an opinion about an identified individual, or an individual who is reasonably identifiable: (a) whether the information or opinion is true or not; and (b) whether the information or opinion is recorded in a material form or not.’

293 Ibid s 6(4) states an entity includes a small business which has a turnover of more than $3 million.

294 OAIC, ‘Identifying eligible data breaches’ at https://www.oaic.gov.au/privacy/guidance-and-advice/data-breachpreparation-and-response/part-4-notifiable-data-breach-ndb-scheme#identifying-eligible-data-breaches; OAIC, ‘Data Breach Preparation Response’ at 24 states: ‘The NDB scheme only applies to entities and personal information holdings that are already subject to security requirements under the Privacy Act. This means that acts and practices of APP entities that are exempt from the Privacy Act will also be exempt from the NDB scheme.’

295 Australian Cyber Security Centre (ACSC), definition of a ‘hack’ is ‘an unauthorised exploitation of a weakness in a computer system or network’ at https://www.cyber.gov.au/acsc/view-all-content/glossary/h

would likely result in ‘serious harm’ to any of the individuals about whom the information relates. Third, the regulated entity has been unable to prevent the harm with remedial action.

What is a ‘reasonable person’?

This ‘reasonable person’ element involves Possums’s objective assessment296 as to whether the data breach has, or is likely to have, caused serious harm to any of the individuals to which the information relates.297

What is ‘serious harm’?

While the Act does not define ‘serious harm’298 it provides the following factors that may be considered when deciding the issue:299

 the type and sensitivity of the information;300

 whether security (e.g. a locked laptop or password-protected computer files and if so, the likelihood of security being breached) protects the information;301

 whether it was encrypted information and how strong that was;302

 assessing the person who has, or is likely to, obtain the information and whether or not they are likely to circumvent any security measures.303

What action must be taken?

While not all compromised data is subject to mandatory notification which needs reporting304 if Possums suspects a data breach is likely to cause serious harm it must first make a determination as to whether or not this is the case within 30 days.305 If Possums has not been

296 The Privacy Amendment (Notifiable Data Breaches) Bill 2016 (Cth) [4].

297 Privacy Act 1988 (Cth) s 26WG.

298 Explanatory Memorandum Privacy Amendment (Notifiable Data Breaches) Bill 2016 (Cth) (‘Explanatory Memorandum’) [10] states: ‘serious harm’ could encompass ‘serious physical, psychological, emotional, economic and financial harm’ as well as ‘serious harm to reputation,’ although the ‘most common forms of serious harm would likely be ‘serious financial, economic or physical harm’; Niloufer Selvadurai, Nazzal Kisswani and Yaser Khalaileh ‘Strengthening Data Privacy: the Obligation of Organisations to Notify Affected Individuals of Data Breaches’ (2019) 33(3) International Review of Law, Computers & Technology 271, 278 state that in circumstances ‘where an individual is upset or distressed by the unauthorised access, disclosure or loss of their personal information, this would not, on its own, be sufficient to require notification.’

299 Privacy Act 1988 (Cth) s 26WG.

300 Ibid s 26WG(c)-(d).

301 Ibid s 26WG(e).

302 Ibid s26WG(h); Note the OAIC states that password encryption was a basic security strategy failure in preventing unauthorised access to 245,000 Australian online user accounts in the Ashley Madison case at https://www.oaic.gov.au/privacy/privacy-decisions/investigation-reports/ashley-madison-joint-investigation#summary

303 Ibid s 26WG(h)(iii)-(iv).

304 Ibid s 26WF(3) provides for ‘limited circumstances in which a data breach does not need to be reported, although entities should consider the situation thoroughly before deciding that no further action need be taken because the consequences of misapplying exceptions could be highly damaging. The most relevant exception is that provided for if remedial action is taken; the action is taken before serious harm is done, and the action is taken such that a reasonable person would conclude serious harm was unlikely to occur.

305 Ibid s 26WH(2)(b).

able to prevent the likely risk of serious harm with remedial action then Possums must notify both the Privacy Commissioner306 and affected individuals as soon as practicable.307

Personal data of EU citizens

In circumstances of an eligible breach involving the personal data308 of EU citizens, mandatory notifications apply to Possums’s data handling activities.309 First, Possums will generally have to appoint a Data Protection Officer/representative in each EU member State who acts as the point of contact for affected individuals and Supervisory Authorities.310 Second, it must notify the competent311 Supervisory Authority of each EU member State to which the breach applies within 72 hours312 and advise affected individuals without undue delay.313

Failure to comply

Failure to comply with the scheme’s obligations will be considered an interference with an individual’s privacy and significant penalties, or other enforcement measures, may apply. 314 For example, the penalty for a person other than a body corporate is up to $2.5 million. In the event of an eligible breach involving the personal data of EU citizens, fines imposed may be the greater of €20 million (AUD30.8 million) or 4% of annual worldwide turnover.315

II DATA BREACH RESPONSE PLAN

Context

306 OAIC, ‘Notifiable Data Breach Form’ https://forms.business.gov.au/smartforms/servlet/SmartForm.html?

formCode=OAIC-NDB&tmFormVersion

307 Privacy Act 1988 (Cth) s 26WE(1)(a)(i); OAIC, ‘when to report a data breach’ at https://www.oaic.gov.au/privacy/notifiable-data-breaches/when-to-report-a-data-breach.

308 General Data Protection Regulation (GDPR) Art 4(1) ‘personal data means any information relating to an identified or identifiable natural person (‘data subject’); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier…’ at https://gdpr-info.eu/art-4-gdpr/.

309 OAIC, ‘Australian entities and the EU General Data Protection Regulation (GDPR)’ states a ‘controller’ under Art 4 of the GDPR ‘means the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the processing of personal data; and ‘processor’ means a natural or legal person, public authority, agency or other body which processes personal data on behalf of the controller; OAIC, ‘Does the GDPR apply to processing personal data for law enforcement purposes?’ (Web Page) https://www.oaic.gov.au/privacy/guidanceand-advice/australian-entities-and-the-eu-general-data-protection-regulation#does-the-gdpr-apply-to-processing-personaldata-for-law-enforcement-purposes

310 Ibid.

311 GDPR Art 55(1) states: ‘Each supervisory authority shall be competent for the performance of the tasks assigned to and the exercise of the powers conferred on it in accordance with this Regulation on the territory of its own member state.’

312 OAIC, ‘Australian entities and the EU general data protection regulation’ at https://www.oaic.gov.au/privacy/guidanceand-advice/australian-entities-and-the-eu-general-data-protection-regulation#ftn5; GDPR Art 33 https://gdpr-info.eu/art-33gdpr/

313 OAIC, ‘mandatory data breach notification’ at <https://www.oaic.gov.au/privacy/guidance-and-advice/australian-entitiesand-the-eu-general-data-protection-regulation#mandatory-data-breach-notification>; GDPR Art 34(1) at https://gdprinfo.eu/art-34-gdpr/

314 Privacy Act 1988 (Cth) s 13G(2); Note under s 13G(3) of the Act, the penalties for a large corporation is the greater of up to $50 million; 3 times the value of the benefit; or 30% of turnover; Note OAIC ‘Chapter 3: Enforceable undertakings’ the Commissioner has a range of enforcement powers depending on the seriousness of the breach, including accepting ‘an enforceable undertaking (s 33E) and bring proceedings to enforce an enforceable undertaking (s 33F); make a determination (s 52) and bring proceedings to enforce a determination (ss 55A and 62); seek an injunction to prevent ongoing activity or a recurrence (s 98); apply to court for a civil penalty order for a breach of a civil penalty provision (s 80W).’

315 GDPR Art 83(5); OAIC, ‘Comparison table’ https://www.oaic.gov.au/privacy/guidance-and-advice/australian-entitiesand-the-eu-general-data-protection-regulation#ftn5

This Data Breach Response Plan sets out Possums’s responsibilities under the NDB scheme316 in accordance with its obligations as an APP entity,317 and under the GDPR,318 as the holder of both Australians and EU citizens’ personal information.

Purpose

By establishing the reporting, containment, assessment, and notification processes in the event of an eligible data breach, Possums is able to:

 expeditiously and proactively mitigate and remediate the potential harm to affected individuals;

 reduce the risk of reputational, financial or other damage;

 document processes and data breach responses;

 demonstrate respect for the privacy of individuals; private investors (e.g. Peter Pan); and the public;

 promote staff awareness of the risk and their responsibilities.319

Procedures

This Plan is divided into the following parts:

 Part A – Identification;

 Part B - Containment and Assessment;

 Part C - Notification and Remediation;

 Part D - Additional GDPR administrative requirements.

Part A – Identification

Following are common examples of the causes of a data breach:

 Human error: resulting in loss of data storage device (e.g. laptop, USB or phone) containing personal information;320

316 Note the OAIC ‘Notifiable data breaches report January to June 2022’ (Web Page, 10 November, 2022) reported 396 notifiable data breaches 63% of which were attributable to malicious or criminal attack and 33% attributable to human error https://www.oaic.gov.au/privacy/notifiable-data-breaches/notifiable-data-breaches-statistics/notifiable-data-breaches-reportjanuary-june-2022.

317 See above nn 2-4.

318 Note the OAIC states ‘the GDPR applies to the data processing activities of processors and controllers outside the EU, regardless of size, and where the processing activities are related to offering goods or services to offering goods or services in the EU (irrespective of whether a payment is required); monitoring the behaviour of individuals in the EU, where that behaviour takes place in the EU (Article 30); data controllers and processors covered by the GDPR but not established in the EU will generally have to appoint a representative in the EU member State (Article 27); the representative is the point of contact for supervisory authorities and individuals in the EU on all issues related to data processing, to ensure compliance with the GDPR.’

319 OAIC, ‘Data breach response plan’ (Web Page, November 2021)

https://www.oaic.gov.au/privacy/guidance-and-advice/data-breach-preparation-and-response

320 Note the OAIC found human error resulted in 131 (33%) recent notifications in ‘Notifiable Data Breaches Report January to June 2022’ (Media Release, 10 November 2022) https://www.oaic.gov.au/privacy/notifiable-data-breaches/notifiabledata-breaches-statistics/notifiable-data-breaches-report-january-june-2022.

 Malicious insider321or corporate espionage:322 threats of, or actual, cyber-attack323 resulting in unauthorised access, loss or disclosure of personal information.324

Part B – Containment and Assessment

Possums will contain the breach by conducting an immediate review.325 In circumstances of unauthorised access, disclosure or loss of personal information, Possums must make an assessment within 30 days to the Privacy Commissioner as to whether the breach is likely to result in serious harm to any individual.326 The OAIC suggests adopting the following threestage risk assessment process to decide the issue:

1. decide whether the breach requires an assessment and identify the person responsible for its completion;

2. expeditiously gather relevant evidence about the suspected breach including what personal information is affected, who is likely to gain access to it, and the likely effects;

3. decide whether the breach meets the criteria of an eligible data breach.327

Part C – Notification and Remediation

Whatever the cause of the breach, harm can result to Possums’s representatives and associates whether in Australia or overseas.328 If the threshold requirements for ‘eligible data breach’ are satisfied, Possums must notify the Office of the Australian Information Commissioner (OAIC) within 30 days with the following information:

1. Possums’s identity and contact details;329

2. description of the breach Possums has reasonable grounds to suspect has occurred;330

3. the type of information that is the subject of the breach;331

4. recommendations about the steps affected individuals should take.332

321 Note the ACSC defines a ‘malicious insider’ as either current or former employee, contract or business associate at https://www.cyber.gov.au/acsc/view-all-content/threats/malicious-insiders

322 Note the ACSC defines corporate espionage as ‘the improper or unlawful theft of trade secrets or other knowledge proprietary to a competitor for the purpose of achieving advantage in the marketplace’ at https://www.cyber.gov.au/acsc/view-all-content/glossary/corporate-espionage

323 Note the ACSC for a list of the latest threats including from malware, ransomware, and phishing at https://www.cyber.gov.au/acsc/view-all-content/threats; Note criminal hacking and misuse carries a maximum 2 year imprisonment penalty of the Criminal Code 1899 (Qld) s 408E(1).

324 Note, for example, the OAIC cites the failure to take reasonable steps to safeguard information under APP 11.1 may result in a breach as in the case of Cupid Media Pty Ltd’s failure to secure personal information held on its dating websites at [45] https://www.oaic.gov.au/privacy/privacy-decisions/investigation-reports/ashley-madison-joint-investigation;

325 OAIC ‘data breach preparation and response checklist’ (Web Page, November 2021) https://www.oaic.gov.au/about-us/our-corporate-information/key-documents/data-breach-response-plan#oaics-data-breachresponse-check-list

326 Privacy Act 1988 (Cth) s 26WH(2)(b); OAIC, ‘how quickly must an assessment be done’ (Web Page, 13 July 2019) that if Possums cannot reasonably complete an assessment within 30 days, the Commissioner recommends this be documented to demonstrate the reasonable steps taken; reasons for the delay; that the assessment was reasonable and expeditious at https://www.oaic.gov.au/privacy/guidance-and-advice/data-breach-preparation-and-response/part-4-notifiable-data-breachndb-scheme

327 See above n 5 and accompanying text.

328 Explanatory Memorandum (n 8).

329 Privacy Act 1988 (Cth) s 26WK(3)(a).

330 Ibid s 26WK(3)(b).

331 Ibid s 26WK(3)(c).

332 Ibid s 26WK(3)(d).

Possums may also include an apology or description of what it has done to prevent reoccurrence. The OAIC also encourages sufficient descriptive information about the breach.333

Possums is responsible for notifying the Commissioner using the formal notification through the OAIC’s NDB form334 and affected individuals. In its additional capacity as ‘data controller’ of the personal data of EU citizens, Possums must notify the relevant Supervisory Authority no later than 72 hours after becoming aware of an eligible data breach335 and communicate it to the affected person without undue delay.336

Possums should also notify the following parties:

 internal staff;

 investors (e.g. Peter Pan);

 third party platform provider (e.g. Google);337

 Australian Cybersecurity Centre’s (ACSC) registration and reporting service.338

Review

After finalising notification and reports, the incident should be reviewed and changes recommended to the current procedures to prevent future breaches and ensure they are better managed. The following items are suggested for the purpose of review and remediation:339

(a) root cause analysis of the data breach and report to appropriate Data Breach Coordinator/s;

(b) strategy implementation to identify the data handling weaknesses that lead to the breach;

(c) policy and procedure updates;340

(d) involvement of external partners, such as the ACSC;341

(e) updating staff training practices as required;

(f) audit to ensure enactment of necessary outcomes.

333 OAIC ‘Part 4: Notifiable Data Breach scheme – what to include in an eligible data breach statement’ at https://www.oaic.gov.au/privacy/guidance-and-advice/data-breach-preparation-and-response/part-4-notifiable-data-breachndb-scheme#what-must-be-included-in-the-statement.’

334 OAIC, ‘Notifiable Data Breach Form’ https://forms.business.gov.au/smartforms/servlet/SmartForm.html? formCode=OAIC-NDB&tmFormVersion

335 OAIC, ‘Mandatory Data Breach Notification’ https://www.oaic.gov.au/privacy/guidance-and-advice/australian-entitiesand-the-eu-general-data-protection-regulation#mandatory-data-breach-notification; GDPR Art 33 https://gdpr-info.eu/art33-gdpr/

336 Ibid; GDPR Art 34 https://gdpr-info.eu/art-34-gdpr/

337 Note the ACSC’s list of potential risks and encryption recommendations associated with cloud computing at https://www.cyber.gov.au/acsc/view-all-content/publications/cloud-computing-security-considerations

338 ACSC, ‘ReportCyber: report a cybercrime, incident or vulnerability’ at https://www.cyber.gov.au/acsc/report

339 OAIC, ‘Part 3: Responding to data breaches - Step 4: Review’ at https://www.oaic.gov.au/privacy/guidance-and-advice/data-breach-preparation-and-response/part-3-responding-to-databreaches-four-key-steps#step-4-review

340 Note, for example, to avoid the risk of engaging in misleading and deceptive conduct Possums privacy policy should be consistent with APPs 3 and 6 in relation to true informed consent in relation to data collection, use and disclosure of personal information in Gordon Hughes and Lisa Di Marco ‘Online Privacy Policies - It’s Not Just About the Privacy Act’ (April, 2015) Internet Law Bulletin.

341 Note, for example, the Australian Cyber Security Centre at OAIC ‘Preventing data breaches: advice from the Australian Cyber Security Centre’ at https://www.oaic.gov.au/privacy/notifiable-data-breaches/preventing-data-breaches-advice-fromthe-australian-cyber-security-centre

Prevention Plan

To mitigate the extent of harm to individuals and prevent data breaches, Possums must ensure robust and detailed staff procedures and training is implemented regarding data security, including cloud and off-site data storage.

The following procedures should be employed by all Possums staff:

(a) report suspected data breaches to the Privacy Commissioner &/or EU State representative/s;

(b) assist in the prevention of data breaches through compliance with this Plan and the data breach policy,342 including implementing de-identification, data modification and reduction techniques as part of an overarching information life-cycle plan;343

(c) participate in data breach investigations;

(d) review all systems, services, and applications which incorporate personal information; 344

(e) require contracts or service arrangements to incorporate clauses which specify notification responsibilities, timeframes and investigation support.

Prevention Strategies

1. Enact remote deletion capabilities

 mobile devices such as laptops and phones should enable remote deletion of personal information if stolen or lost.345

2. Use of laptops, USBs & mobile devices

 put a lock on all staff laptops and mobile devices;346

 if managerial staff are storing data on a USB or other mobile device and taking them off-site, that data should be encrypted or hashed to obscure personal identifiers.347

342 Note, in the event of an eligible data breach where third parties (e.g. Google as information held in Google Drive) hold personal information in a third party agreement, Possums’s data breach policy should include clear procedural guidelines that only one entity need assess the breach (s26WJ) and notify affected individuals and the Commissioner (s26WM) however, if neither entity notifies the Commissioner or affected individuals, then both entities may be in breach of the NDB scheme (s26WL(2)).

343OAIC, ‘De-identification and the Privacy Act’ (Web Page, 21 March, 2018) https://www.oaic.gov.au/privacy/guidanceand-advice/de-identification-and-the-privacy-act.

344 Sebastian Clevy ‘The EU’s Right to be Forgotten: A Right to “Un-Google Yourself? (2014) 17(8) Internet Law Bulletin suggests, for example, implementing internal guidelines or privacy compliance programs to handle deletion requests following the finding by the European Court of Justice that EU citizens have a ‘right to be forgotten’ with a similar requirement possible in Australia.

345 Note the OAIC states that pursuant to s 26WE(2)(b)(ii) in circumstances where the subsequent unauthorised access to or disclosure of information is unlikely there is no data breach if, for example, the data on a lost device is able to be deleted at https://www.oaic.gov.au/privacy/guidance-and-advice/data-breach-preparation-and-response/part-4-notifiable-data-breachndb-scheme

346 ACSC, ‘Secure your mobile phone’ (Web Page, 18 January 2023) https://www.cyber.gov.au/acsc/view-all-content/guidance/secure-your-mobile-phone; OAIC ‘Guide to securing Personal Information’ (Web Page, 5 June 2018) https://www.oaic.gov.au/privacy/guidance-and-advice/guide-to-securing-personalinformation

347 OAIC, ‘De-identification and the Privacy Act’ (Web Page, 21 March 2018); Note generally OAIC, ‘Portable Device Wins’ at https://www.cyber.gov.au/acsc/view-all-content/publications/quick-wins-your-portable-devices

3. Password/passphrase security348

 Passphrase protect all files, including excel, that contain personal information;349

 Create strong, unique passphrases that are not repeated; 350

 Secure the architecture;351

 Set up a secured online workspace with different access levels.352

4. Electronic devices should be branded

 All work property and devices capable of storing data should have Possums’s name and contact details to ensure their return in the event of loss.

5. Checklists/Routines

 staff are encouraged to use mental checklists to utilise upon exiting public spaces and transport such as trains.

6. Third-party & vendor risk management

 develop a comprehensive risk plan to identify and mitigate data compromises.

NDB involving more than one entity

Possums’ obligations extend to personal information stored on a cloud353 service such as Google Drive. In the event of an eligible data breach, Possums’s data breach policy should advise whether only Possums need assess the breach354 for the purpose of fulfilling notification obligations.355 For example, when entering into service agreements or contractual arrangements with third parties, Possums should establish clear compliance procedures with the scheme.356

Part D – Additional GDPR requirements

The GDPR describes those who handle the personal information of EU citizens as ‘data controllers’357 and ‘data processors.’358 In the context of Possums’s information handling activities of European engineers, the administrative requirements for data controllers are to

348 ACSC, ‘Creating strong passphrases’ advises using passphrases not passwords because they are ‘easy for humans to remember and harder for machines to crack’ (Web Page, 6 October 2021)

https://www.cyber.gov.au/acsc/view-all-content/publications/creating-strong-passphrases

349 ACSC, ‘Small business cyber security guide’ (Web Page, 24 November 2021) https://www.cyber.gov.au/acsc/view-allcontent/publications/small-business-cyber-security-guide

350 Note generally ACSC’s ‘Small business cloud security guidance’ (Web Page, 24 November 2021) https://www.cyber.gov.au/acsc/small-and-medium-businesses/small-business-cloud-security-guides.

351 ACSC, ‘Multi-factor authentication’ at https://www.cyber.gov.au/mfa; Joel Witts, ‘How To Secure and Safely Share Business Passwords’ (Blog Post, 28 January 2022) https://expertinsights.com/insights/how-to-securely-share-pass/

352 Note generally ACSC, ‘Cloud Computing Security Considerations’ (Web Page, 6 October 2021) https://www.cyber.gov.au/acsc/view-all-content/publications/cloud-computing-security-considerations .

353 Note the ACSC defines the cloud as ‘a network of remote servers that provide massive, distributed storage and processing power’ https://www.cyber.gov.au/acsc/view-all-content/glossary/c

354 Privacy Act 1988 (Cth) s 26WJ.

355 Ibid s 26WM.

356 OAIC, ‘Data breach preparation and response’ [30] https://www.oaic.gov.au/__data/assets/pdf_file/0017/1691/databreach-preparation-and-response.pdf.

357 GDPR Art 4(7) states that a data controller ‘…determines the purposes and means of the processing of personal data.’

358 GDPR Art 4(8) defines a ‘data processor’ as an agency which processes personal data on behalf of the controller.

provide a detailed privacy notice prior to data collection,359 and appoint a Data Protection Officer/representative and Supervisory Authority for each EU member State in which the engineer is based.360 In the event of an eligible data breach, this Authority must be notified within 72 hours of becoming aware of the breach.361

III SPECIFIC ADVICE RELATED TO A POTENTIAL DATA BREACH AND MANDATORY NOTIFICATION REQUIREMENTS

Introduction

The following advice is in relation to whether or not the loss of personal information meets the criteria of an ‘eligible data breach’ and, if so, what mandatory reporting obligations apply to Possums as a regulated entity.362 However, it must first be established whether or not statutory reporting exceptions apply. If these do not apply, then it must be determined whether or not the loss of the personal information of 5,000 engineers constitutes a serious data breach such that serious harm is likely to result. If this is the case, then Possums must meet its mandatory reporting obligations as outlined in Parts C and D of the Data Breach Response Plan. Finally, this advice lists its mandatory obligations and further steps Possums should take to prevent future breaches.

Do any statutory exceptions apply?

There are limited circumstances in which the loss may not be reported.363 However, these should be considered carefully before deciding no further action is required because the consequences of misapplying exceptions could be financially and reputationally highly damaging for Possums. If Possums takes remedial action before serious harm is done such that a reasonable person would conclude this is unlikely to occur, the loss is taken never to have been an eligible data breach. However, considering the information is unable to be recovered as the laptop has been lost for two (2) weeks, then no exceptions are likely to apply.

Does the loss constitute an eligible data breach?

Whether the loss constitutes a serious data breach and serious harm turns on the results of a risk assessment of the nature of the information; whether it was secured; the strength of any encryption; and the person likely to obtain the information.364 The facts indicate the loss comprised the identification of 2,500 Australian engineers, and 2,500 engineers based in Sweden and France. Identifying components are names, addresses, dates of birth, and opinions regarding the costs and benefits of Possums’ unmanned aerial vehicle (a ‘drone’)

359 OAIC, ‘Privacy notices’ (Web Page, 8 June 2018) https://www.oaic.gov.au/privacy/guidance-and-advice/australianentities-and-the-eu-general-data-protection-regulation#privacy-notices

360 OAIC, ‘Australian entities and the EU general data protection regulation’ at https://www.oaic.gov.au/privacy/guidanceand-advice/australian-entities-and-the-eu-general-data-protection-regulation#ftnref10; GDPR Arts 36─37.

361 Ibid.

362 Note, the scheme applies to both the personal information of Australians and Europeans; see above nn 2-4 and accompanying text; see above nn 19-24 and accompanying text in relation to GDPR reporting obligations.

363 See above n 15.

364 See above nn 10-14 and accompanying text.

with facial recognition software (codename: Fruit Fly). Because the unencrypted information was directly accessible on an unlocked laptop and is unable to be deleted remotely, there is a high risk of either a hack or a cyber-attack.365 Whether access is gained unintentionally or maliciously, the loss of personal information in these circumstances could lead to serious financial and reputational harm for Possums while exposing the engineers’ to identity theft.

What mandatory steps are now required?

Step 1 Prepare a Statement for the Privacy Commissioner:

 Finalise the risk assessment within 2 (two) weeks;366

 Prepare a statement including the following information:367

o Possums’s name and contact details;

o description of the data breach and the lost components of personal information;

o recommendations for what the engineers can do to minimize their potential harm;

o An apology or description of what Possums has done to prevent reoccurrence.

Step 2 Meet GDPR administrative and notification requirements:

• Possums must appoint a Data Protection Officer/representative in each of the EU member States in Sweden and France who act as points of contact for the 2,500 engineers and the Supervisory Authorities in each State;368 and

• notify the Supervisory Authority in each State within 72 hours; and

• notify the 2,500 engineers based in Sweden and France without undue delay.

Step 3 Notify the Privacy Commissioner and Australian engineers:

• notify the Commissioner using the online DB Form;369 and

• directly notify the 2,500 engineers whose personal information was lost as soon as practicable.

The following information should also be included in the statement to both the Commissioner and the Supervisory Authorities:

1. The time the data breach was discovered, and the name of the individual who discovered it or made the report (management staff member and Mrs Possilith).

2. Details of the breach (excel spreadsheet left open on the desktop of a laptop copied from Google Drive with shared common password access);

3. Number of people affected (5,000 engineers);

4. Components of the lost information: names, addresses, dates of birth and opinions.

Step 4 Notify other parties

• Internal staff;

• Peter Pan;

• Google as the third party platform provider;

365 See above nn 32-35 and accompanying text.

366 Note this mandatory 30 day requirement is now shortened to two (2) weeks because the laptop was lost two (2) weeks ago.

367 See above Data Breach Response Plan Part C – Notification and Remediation. .

368 See above Data Breach Response Plan Part D – Additional GDPR Requirements.

369 See above n 45.

• The Australian Cyber Security Centre;

• IDCARE – a national identity and cyber support service at idcare.org.

Step 5 Address vulnerabilities370

 Strengthen security to prevent future breaches, especially eliminate the practice of common password sharing;

 Implement strategies as identified in the Plan.

Step 6 Review response371

 Determine the robustness of the Plan by reviewing your response to this breach;

 Make changes to the Plan as required.

Conclusion

This advice has determined the loss of the laptop directly accessing the personal information of 5,000 engineers constitutes an eligible data breach. Because Possums is a regulated entity, it must comply with its mandatory reporting obligations as no exceptions are deemed to apply. Failure to comply may result in significant reputational and financial damage

372 for Possums as this will be considered an interference with the privacy of these engineers because it exposes each individual to the real risk of serious harm from identity theft. 370

THE CASE FOR RAISING THE MINIMUM AGE OF CRIMINAL RESPONSIBILITY

ESTHER SOPHIA

ABSTRACT: The debate surrounding the minimum age of criminal responsibility is not new. However, it was recently heightened given the North Territory’s decision to raise theirs and the more recent decision in Victoria which had not been enacted at the time of writing. This essay discusses, in the context of the Queensland Criminal Code, the current status of the minimum age of criminal responsibility; current arguments against its raising; the effect of minimum age of criminal responsibility as it currently stands; introduces a potential reform to the legislation, and how this reform may be enacted.

I INTRODUCTION

In Queensland, section 29 of the Criminal Code Act 1899 (Qld) (‘the Code’) sets the minimum age of criminal responsibility (‘MACR’) as 10 years old.373 Further to the MACR, the rebuttable presumption of doli incapax exists to a child’s 14th birthday, stating that until that point in time it is on the prosecution to prove that a child was aware of the consequences of their actions or omissions and thusly may be held to be criminally responsible for them. Just across the border from Queensland, the Northern Territory has recently passed a bill to raise the MACR to 12 years old, with the rebuttable presumption of doli incapax still existing for 12 and 13 year old children.374 Meanwhile, internationally, the United Nations benchmarks 14 years old as the MACR.375 While the discrepancy between the Northern Territory and other jurisdictions of Australia may be explained away by the very recentness of the passing of the bill in the Northern Territory, why is it, that in general, Australia considers their children to be so much more mature than the children of the world such that they may understand the consequences of their acts and omissions and right from wrong where other jurisdictions do not agree. While there is opposition in Queensland to raising the MACR due to the impact on the victims of crimes and that in the opinion of the Queensland Attorney General Shannon Fentiman raising the MACR should be a national approach and the issue that raising the MACR will not lead to addressing the underlying causes of crime, it is still the opinion of many, including the author that now is the time for section 29 of the Code to be reformed.

II CURRENT STATUS OF THE MACR

In Queensland, under section 29(1) of the Code, it is considered that a child under the age of 10 years old cannot be held criminally responsible for their acts or omissions.376 Section 29(2) goes further to state that a child over the age of 10 but under the age of 14 years old cannot be held criminally responsible for their acts or omissions, unless the prosecution can prove beyond a reasonable doubt, that the child had the capacity to understand that said act or omission was wrong, this presumption under section 29(2) of the Code is known as the

373 Criminal Code Act 1899 (Qld) s 29 (‘Code’).

374 Criminal Code Amendment (Age of Criminal Responsibility) Bill 2022 (NT) (‘NT Bill’).

375 Committee on the Rights of the Child, General Comment No 10: Children’s Rights in Juvenile Justice, 44th sess, UN Doc CRC/C/GC/10 (25 April 2007), 30].

376 Code (n 1) s 29(1).

rebuttable presumption of doli incapax.377 In the High Court case of RP v The Queen, the rebuttable presumption of doli incapax was explained as being related to the moral and intellectual development of the child in question in relation to the offence in question.378 The distinction was further made that ‘…the further dimension of proof of knowledge of serious wrongness as distinct from mere naughtiness.’379 The Queensland case of R v KOD discusses capacity to know that the act was wrong as requiring consideration of education – both of moral issues and schooling, decision making and emotional development in relation to understanding, beyond the exploration of a general youthful nature.380 This subjective nature of the test for doli incapax, alongside the very young age of 10 years old to 14 years old creates a web of difficulty in the application of the test. All Australian jurisdictions currently have similar sections in their Criminal Codes or Crimes Acts, listing the MACR as 10 with doli incapax applying until the 14th birthday. The international standards for criminal responsibility and the rebuttable presumption of doli incapax generally differ. The United Nations recommends the age of 14 as being the MACR, and generally European countries have their MACR between 14 years old and 16 years old with a few outliers such as Scotland at 12 years old and England and Wales joining Australia at 10 years old.381

III OPPOSITION TO RAISING THE MACR AND REBUTTAL

There has already been significant opposition to the idea of raising the MACR with the primary focus of the opposition being the impact on the victims of crime to do so, whether the MACR should be a national approach, and how raising the MACR will address the causes of crime. While statistically, the majority of crimes committed by children are minor, such as theft, trespass to property and property damage, on occasion, a crime so horrific it piques the interest of the world media is committed by a juvenile.382 The murder of two year old James Bulger in the United Kingdom by two 10 year old boys is one such event which also occurred at the time raising the MACR was being considered in England and Wales. 383 For this reason, this murder, and the impact of the murder on the family of James is regularly raised as an argument against raising the MACR. Less widely publicised is the Western Australian murder of Patrick Slater who was attacked by a group of eight, which included an 11 year old child, a more localised argument against raising the MACR.384

It is true that the Bulger family and the Slater family have been impacted by the actions of these three youth offenders and that raising the MACR will not afford these families a feeling that justice has been done. However, there is no argument that can be raised, no term of imprisonment, and no criminal justice system action that could possibly ever hope to give recourse to these families either. Nothing can bring James and Patrick back to life, those families will never be whole again. Locking the offenders up only serves to give the appearance of justice, the closest we as a society can get to true justice is to ensure that we do all within our power to prevent these offences from being repeated, the key to prevention of crime, lays in breaking the cycle of recidivism. This applies to all crime in general, not only the crimes of youth offenders.

377 Code (n 1) s 29(2).

378 [2016] HCA 53 [12].

379 Ibid [11].

380 [2022] QChC 25 [69] – 74].

381 Australian Human Rights Commission, Review of the Age of Criminal Responsibility (Submission 26 February 2020) [4.7].

382 Australian Institute of Health and Welfare, Young People Aged 10–14 in the Youth Justice System 2011–2012 (Report, 2013) [7].

383 John Neville Turner, ‘The James Bulger Case: A Challenge to Juvenile Justice Theories’ (1994) 68(8) Law Institute Journal 734.

384 PRM (a child) v State of Western Australia [2017] WASC 139.

In June 2022, 56% of youth offenders in detention were Indigenous, while Indigenous people only make up 6% of the Australian population.385 While it is clear that the Indigenous population is drastically overrepresented in the Australian Criminal Justice System in general with Indigenous Australians making up approximately 32% of Australia’s incarcerated population in the September quarter of 2022, the ratio of incarcerated Indigenous youth offenders is significantly higher.386 In Australia, 45.2% of prisoners released from incarceration in 2018-2019 returned to prison within two years, in the same period 53.1% of prisoners released from incarceration returned to the criminal justice system in any form, inclusive of imprisonment.387 One argument against the MACR being set at 10 years old in Australia is the fact that the statistics show that by incarcerating our youth, society is starting a cycle of recidivism early, which additionally disproportionately affects the Indigenous population.

An additional argument against raising the MACR, has regularly been that raising the age will not address the causes of crime such as substance abuse, domestic violence, mental health, education, accommodation, and poor parenting. While this may be true, having the age of criminal responsibility as being 10 years old, also fails to address the same causes of crime. Raising the MACR need not affect the introduction of support services to youth offenders, it merely prevents an entry into the criminal justice system and the commencement of a cycle of recidivism at a young age. It can in fact, be seen as an opportunity for early engagement with support services who can address the abovenamed causes of crime and work towards the prevention of the recurring cycle of recidivism and intergenerational offending without the confusion of a court system that can be harmful to a child’s wellbeing.

Queensland Attorney General Shannon Fentiman has also consistently stated that raising the age should be a national approach, quoting former police commissioner Bob Atkinson as being for the purposes of preventing ‘…something in Tweed Heads that is not an offence but if they stepped over the border into Coolangatta it would be’.388 Her argument is effectively moot now following the November 2022 passing of the Northern Territory Bill to change the MACR to 12 years old.389 In fact, the Northern Territory change only makes the need for change elsewhere more emergent, as to have an 11 year old in Piturie deemed to be criminally responsible for a crime, which if committed 70km away in Alpurrurulam they would not be, is now a very real issue.

While the issue of the MACR in Queensland and Australia in general has become more widely discussed recently due to the Northern Territory’s November 2022 decision to raise their MACR to 12 years old and their commitment to revisit raising the MACR further in the future, this issue is by no means a recent topic of debate and has been widely discussed for many years with the ‘Raise The Age’ campaign born in 2020 following the Australian Human Rights Commission’s 2019 Children’s Rights Report.390 Alongside the issues of the impact on Indigenous communities and the cycle of recidivism is the issue of the maturity of a person as young as 10 years old. When considering the maturity of a 10 year old, a 12 year old and even a 14 year old, the author finds it hard to reconcile imprisoning them or

385 Australian Institute of Health and Welfare, Youth Detention Population in Australia 2022 (Web Report 13 December 2022).

386 Australian Bureau of Statistics, Corrective Services, Australia, September Quarter 2022 (Catalogue No 45120DO001_202209, 24 November 2022).

387 ‘Released Prisoners Returning to Prison’, Sentencing Advisory Council (Web Page 4 November 2022) <https://www.sentencingcouncil.vic.gov.au/sentencing-statistics/released-prisoners-returning-to-prison>.

388 Queensland, Parliamentary Debates, Legislative Council, 16 August 2022, (Hon. Shannon Fentiman, Attorney-General).

389 NT Bill (n 2).

390 Ibid; Megan Mitchell, Children’s Rights Report 2019, In Their Own Right: Children’s Rights in Australia (Report, 28 October 2019).

introducing them to the criminal justice system. The prefrontal cortex of the brain is the area of the brain associated with rationality, good judgment, and awareness of consequences, while the amygdala is associated with emotions and short term.391 Studies have shown that the connections between the amygdala and prefrontal cortex develop as a child matures and that this can take up to the age of 25 years of age, with the prefrontal cortex, the area of brain so critical to criminal responsibility being one of the last areas of the brain to finish maturing.392 It is understood through doli incapax that some children may or may not understand the consequences of their actions, however the understanding is not taken far enough, the science shows us that the MACR is clearly not high enough to afford justice to youth who do not have a fully developed brain.

When discussing the impact on Indigenous Australians, the maturity of children and the underlying sources of crime, these issues can all be linked together within the overall topic of disability, with a particular prevalence of Foetal Alcohol Spectrum Disorder (FASD) cases. The socio-economic issues facing Indigenous Australians are well known to include issues around substance abuse, and FASD is reported in significantly higher numbers in Indigenous communities than in non-Indigenous communities across all of Australia.393 A Western Australian study determined that between May 2015 and December 2016, 36% of youth offenders had been diagnosed with FASD.394 In its concluding observations on Australia in 2019, the United Nations Committee on the Rights of Persons with Disabilities expressed particular concern at the number of youths with disabilities in the Australian criminal justice system, which also raises the question as to the efficacy of the rebuttable presumption of doli incapax. If doli incapax is working to its design, a child between the ages of 10 and 14 years old is deemed to be ‘incapable of evil’ unless the prosecution can prove beyond a reasonable doubt, that they are capable of understanding the consequences of their acts or omissions, so then how are 36% of Western Australian youth offenders who suffer from FASD, which very often causes cognitive disability, deemed to be criminally responsible for their actions?

IV REFORM TO THE MACR IN AUSTRALIA

In the opinion of the author, a change to section 29 of the Code should look as follows:

SECTION 29 IMMATURE AGE

(1) Any person under the age of 14 years is not criminally responsible for any act or omission.

(2) A person under the age of 16 years is not criminally responsible for an act or omission, unless it is proved that at the time of doing the act or making the omission the person had capacity to know that the person ought not to do the act or make the omission.

It is not the intention of the author that any crime committed under the age of 16 where the person offending is not deemed to be criminally responsible should face no consequences, instead the author suggests a Court Integrated Services Program (CISP) to assist the offender with remaining outside of the criminal justice system until the age of 16 years old. CISP will be tasked with assigning a case manager to the offender and the immediate family/guardian/s

391 ‘Understanding the Teen Brain’, University of Rochester Medical Centre (Web Page, 2022) <https://www.urmc.rochester.edu/encyclopedia/content.aspx?ContentTypeID=1&ContentID=3051>.

392 Ibid; ‘The Teen Brain: 7 Things to Know’, National Institute of Mental Health (Web Page, 2020) <https://www.nimh.nih.gov/health/publications/the-teen-brain-7-things-to-know>.

393 Australian Institute of Health and Welfare and Australian Institute of Family Studies, Fetal Alcohol Spectrum Disorders: A Review of Interventions for Prevention and Management in Indigenous Communities (Resource Sheet No 36, February 2015) 5.

394 Carol Bower et al, ‘Fetal Alcohol Spectrum Disorder and Youth Justice: A Prevalence Study Among Young People Sentenced to Detention in Western Australia’ (2018) BMJ Open 1, 6.

of the offender, who will meet regularly with them and refer them to appropriate support services, not limited to mental health support services, drug and alcohol support services, accommodation services, Murri support services, parenting support services, education support services and domestic violence support services. Queensland already has many of these support services in place, both for adult and youth offenders, by integrating these services with the court, and assigning the offenders a case manager, the purpose will be to get to the root cause of crime and assist to manage those issues with the ultimate aim of prevention of further offending.395

Victoria already has CISP in place for criminal offending and CISP can be commenced at any stage between offending and sentencing in the Victorian Magistrates’ Courts so long as it is a Magistrates’ Court which offers the service.396 Other Australian jurisdictions also currently have specialist courts and diversion programs which operate in a similar manner.397 To extend CISP to youth offenders, below the age of criminal responsibility would not require a significant amount of extra services to be introduced, only the realigning of the existing services and the introduction of the specialised youth case managers.

As with the Northern Territory bill, all convictions, or charges against a person for any offence committed under the new MACR, that being 14 years old should be expunged under the proposed reform to section 29 of the Code. When it comes to cases already before the criminal justice system but not yet finalised, all charges should be immediately upon the commencement of the new MACR withdrawn and priority entry into the new CISP should be commenced. For the avoidance of doubt, any criminal matter finalised prior to the introduction of the new legislation in Queensland which involves a child between the age of 14 and 16 years old should also be expunged, however, any matter not yet finalised within the same doli incapax age group should follow the prior process to determine whether the youth can be deemed to be criminally responsible for their actions. As with the Northern Territory Bill, no compensation should apply to previous, finalised matters, including but not limited to the refunding of any fines that were payable in relation to the criminal offending.398

V CONCLUSION

Raising the MACR and the rebuttable presumption of doli incapax, to 14 and 16 years old respectively, will result in firstly the reduction of youth offenders in the criminal justice system, but long term will assist in addressing the disproportionate number of Indigenous Australians in the criminal justice system. With early intervention in a less formal manner, the underlying causes of crime such as mental health, education, accommodation, substance and parenting issues, amongst others, have an ability to be addressed and solutions put into place. To the authors mind, there is no doubt that any method we as a society can utilise to reduce the number of offenders in the criminal justice system at any age, results in a reduction of recidivism and is better for society, the well-known theory of therapeutic jurisprudence as created by Professors David Wexler and Bruce Winick in the 1980’s and the following introduction of the 1990’s of Collaborative Courts in Australia supports this. 399

395 ‘Alternatives to Prison’, Raise the Age (Web Page) <https://raisetheage.org.au/campaign>.

396 “Bail Support (CISP)’, Magistrates’ Court of Victoria (Web Page, 4 July 2019) <https://www.mcv.vic.gov.au/findsupport/bail-support-cisp>.

397 Australian Law Reform Commission, Incarceration Rates of Aboriginal and Torres Strait Islander Peoples (Discussion Paper No 84, 19 July 2017) [11.18] – [11.50].

398 NT Bill (n 2) s 469.

399 The Concept of Therapeutic Jurisprudence’, The Australasian Institute of Judicial Administration (Web Page, 2022) < https://aija.org.au/research/resources/the-concept-of-therapeutic-jurisprudence/>; Elena Marchetti and Kathleen Daly, ‘Indigenous Sentencing Courts: Towards a Theoretical and Jurisprudential Model’ (2007) 29 Sydney Law Review 415, 425.

Additionally, the author would be hard pressed to find a source that states a developing mind would be better off in prison as opposed to school. As to the issue of justice for the victims and their families, perhaps a CISP inclusive of restorative justice can be of assistance. As previously mentioned, there can never be true justice for the victims of crime, however understanding of the offender and a hope that future crimes can be prevented may be of some comfort and raising the MACR in the reform as outlined above is an easy first step towards the prevention of future crime.

THE GLOBAL TRADE REGIME’S IMPACT ON ENVIRONMENTAL PROBLEMS

CHELSEA KEIRSNOWSKI

Abstract: the world trade organization (wto) aims to create free and open trade, which creates opportunities for business growth and increased competition. it is widely held that increased competition correlates with increased enterprise efficiency and better outcomes for consumers.0 however, operating in a capitalist system, the current trade framework can be damaging for the environment as it creates emissions and overexploits resources in its pursuit of profit and growth.

I INTRODUCTION

In its entirety, this essay will argue that whilst the rules and operation of the global trade regime, in some ways, help progress environmental problems, overall, the regime hinders progress, and therefore the WTO should shift its focus away from preventing trade protectionism and towards promoting environmental protection. This essay will commence by critiquing the environmental aspects of the trade regime through the lens of Green International Relations (IR) Theory. Next, this essay will discuss how the current international trade rules of the WTO are not conducive to enacting environmental protection because the restrictions on trade protectionism limit the action states can take to ban environmentally harmful imports. Subsequently, this essay will discuss how the WTO’s support of Multilateral Environmental Agreements (MEAs) for environmental protection is insufficient due to the role of the trade regime in exacerbating environmental problems and the legal and practical uncertainties of the implementation of MEAs. Finally, this essay will use two strands of Green IR Theory, Environmentalism and Green Political Theory, to propose strategies to address the shortfalls of the global trade regime.

II GREEN IR THEORY

Green IR Theory seeks to integrate environmental concerns into the study of IR and therefore is useful in informing political understanding of environmental issues within the trade regime. The framework challenges the capitalist commitment to production and consumption. A prominent consideration of Green IR Theory is how to address environmental issues which transcend borders in the contemporary, state-centric, international model and consequently, how decision making should be facilitated at a national, international, or regional level.0 There are various strands of thought within Green IR Theory. For instance, a distinction can be made between Environmentalists and the more radical, Green Political Theorists. These strands of thought differ on ideas about how the environment should be valued.0 Environmentalists hold a more anthropocentric viewpoint which proposes that whilst the current global trade regime has caused environmental issues, these issues can be solved within the current framework. It supports the continuation of current strategies, such as MEAs, to tackle issues rather than seeing

0 Federal Trade Commission, ‘Competition Counts: How Consumers Win When Businesses Compete’, Federal Trade Commission (Report, 2023) 2, https://www.ftc.gov/sites/default/files/attachments/competition-counts/zgen01.pdf

0 Hugh Dyer, ‘Introducing Green Theory in International Relations’ (7 January 2018) E-International Relations Introducing Green Theory in International Relations (e-ir.info)

0 Ari Tayyar ‘Green Theory in International Relations’ in Tayyar Ari and Elif Toprak (eds), Theories of International Relations II (Anadolu University, 2019) 162, 167.

environmental concerns as requiring transformational action. Contrastingly, Green Political Theorists hold an eco-centric viewpoint which perceives human needs and desires from a wider ecological standpoint. It holds that nature has intrinsic value separate to the value that nature brings to humans. An idea within Green Political Theory is ‘green theory of value’; a moral vision which holds that environmental sustainability should be considered when evaluating the value of a product or service. For instance, it proposes that economic growth should not be pursued at the expense of environmental degradation.0

The current rate of global production and consumption is not sustainable, therefore practical policy implications of Green Political Theory are often incompatible with traditional assumptions and contemporary practices. Green Political Theory proposes that the prevalence of competitive relationships between states, as they strive to increase profits, is not conducive to effective environmental cooperation. In contrast to Environmentalists, Green Political Theory proposes that the global trade regime is the source of environmental problems and therefore a solution must involve a theoretical and practical transformation of the current trade framework. To exemplify the differences in beliefs, Environmentalists address the relations and environmental agreements between humans in different states, whereas Green Political Theorists address the relations between humans and the non-human environment.0 As recommended by Environmentalists, currently, environmental efforts are pursued using pathways in our current trade system such as the WTO dispute mechanism, however the outcomes have not been significant.

III WTO RULES LIMITIING ENVIRONMENTAL PROTECTION

Whilst the WTO rules have the potential to be used for environmental protection, the WTO was created for the primary purpose of facilitating trade liberalization and therefore its effectiveness for environmental protection is often limited. General Agreement on Tariffs and Trade (GATT) Article XX outlines each country’s prerogative to enact environmental policies which restrict trade if the policies are for the purpose of protecting human, animal, or plant life or health, or for the conservation of exhaustible natural resources.0 The enactment of this Article promoted the frequency of disputes over environmental issues related to trade. Despite not being adopted as a legally binding decision, the ‘Tuna-Dolphin’ case between the US and Mexico, heard by the WTO panel, was a pivotal case centered on Article XX and the relationship between trade and environmental protection. The US rejected Mexican imports of tuna on the grounds that Mexico’s fishing standards did not satisfy US dolphin protection standards. Consequently, Mexico initiated a complaint in 1991 through the GATT dispute settlement procedure. The WTO panel’s judgement stated that the US could not reject Mexico’s tuna imports on the basis of how Mexico’s tuna was produced, as GATT rules only allow restrictions based on the quality or content of imported products, as per the process and production methods (PPM) rule. Additionally, allowing the US’ restrictions would have resulted in the undesired outcome of permitting the US to enforce its domestic dolphin protection standards extra-territorially, violating state sovereignty.0 The

0 Dyer (n 2).

0 Tayyar (n 3) 168.

0 General Agreement on Tariffs and Trade 1947 Article XX.

0 Jonathan M Harris, Trade and the Environment (Global Development and Environment Institute, Tufts University, 2004) 1.

PPM rule has the potential to impede environmental protection in many industry areas. For instance, there have been disputes over the European Union’s (EU) ability to restrict imports of genetically modified organisms (GMO’s), particularly from the US: a major producer and exporter of GMO crops. Arguments against GMOs are largely based on environmental concerns, such as the possibility of genetically modified crops spreading unintendedly, disrupting ecosystems, and creating herbicide resistant species.0

However, the EU is limited by the PPM rule in the trade restrictions it can implement based on environmental concerns. The PPM rule governs that the process used to produce a product is not a valid reason for trade restrictions. This means that restrictions cannot be enforced on the basis that the food has been genetically modified. It must be proven that the product itself is harmful. Another example of the PPM rule inhibiting environmental action is that imports of illegal logging cannot be banned due to their unsustainable sourcing, as the timbre itself is not harmful.0

To help ensure that WTO rules are not exploited to permit trade protectionist measures under the guise of environmental protection, there are many requirements that the trade restrictions must satisfy additionally to the PPM rule. For example, a significant WTO case, adopted in 1998, concerned a joint complaint by India, Malaysia, Pakistan, and Thailand against the US’ ban on shrimp imports (WTO 2023).0 Under US law, shrimp trawlers must use Turtle Excluder Devices, a technology which protects turtles from being harmed by fishing activity. Since the exporting countries did not use this technology and were deemed by the US to pose a threat to sea turtles, their shrimp imports were banned. The WTO concluded the US’ restrictions were inconsistent with GATT because Article XX can only be implemented to protect animal life or health if certain criteria, such as non-discrimination, are met. The US’ restrictions on imports were found to be discriminatory because it granted countries, such as those in the Caribbean, assistance and more flexible time periods to begin using the Turtle Excluder Devices, whereas the US did not allow the complainants the same conditions.0 As seen with the PPM rule and principle of non-discrimination, the WTO has strict requirements to promote free trade, however this limits the ability of states to take unilateral action against environmental harm caused by products imported into their country.

IV LIMITATIONS OF MEAS

The WTO holds that MEAs, rather than unilateral action through trade policies, are the most effective way to pursue environmental protection, however, the current state of the climate indicates both methods have limitations. The WTO generally holds that trade should not be implicated in environmental issues. The specificity rule, an economic principle, proposes that policies should target problems at their source. According to this idea, trade policies should not be implemented to target environmental issues; rather, it is more effective to seek environmental protection through MEAs which deal specifically with environmental issues.0 Further, environmental issues often extend beyond national borders and warrant an

0 Ibid 7.

0 Ibid.

0 Appellate Body Report, United States - Import Prohibition Of Certain Shrimp And Shrimp Products, WTO Doc WT/DS58/AB/R (12 October 1998) [2].

0 Ibid [184].

0 Harris (n 7).

international or regional response rather than unilateral action. Therefore, the international trade regime helps advancement of environmental action through MEAs such as the Convention on International Trade in Endangered Species of Wild Fauna and Flora 1973 (CITES), signed by 184 nation states, which targets issues such as illegal logging and the illegal trade of ivory, birds of paradise and pangolin scales.0

However, currently, there is an absence of legal certainty on whether MEAs or WTO rules take precedence in circumstances of conflict. The 2002 Rio +10 Conference decided that neither would take precedence and instead, both would provide mutual supportiveness to ensure the integrity of each instrument.0 However, clarification may be required due to the potential for situations to arise where non- hierarchical solutions are not evident. For instance, the WTO rules prohibit export subsidies, whereas the Kyoto Protocol promotes subsidies for developing nations to support their adoption of energy efficient technology.0 This uncertainty leaves room for the influence of MEAs to be overpowered by rules upholding trade liberalization. Additionally, whilst the current trade regime promotes the implementation of MEAs to address environmental problems, it is likely that many of these environmental issues would not be so prolific if not for the liberalization of trade by the global trade regime. For instance, in our current system, most of our purchases are not benefiting the environment. Materials and products, such as palm oil, are sourced unsustainably, goods are then mass produced and subsequently transported in heavily polluting cargo ships.

By reducing trade barriers and increasing the flow of goods, the regime is promoting ease of access to goods which were manufactured or produced through harmful methods.0 This has led to overconsumption of fast-fashion and mass landfills of disposed products which were not designed to last. Furthermore, exacerbating the situation, since the trade regime is based on the goal of facilitating the flow of trade, less than 2% of container cargo is inspected by customs officers, as inspections are timely and costly.0 This figure is likely even lower in free-trade zones, as in certain jurisdictions, customs officers do not have the authority to inspect or seize illicit goods in these zones.0 Consequently, this bars MEAs such as CITES from being effectively implemented as criminals use international shipping lines to transport products constituting environmental crimes without being detected. The negative outcomes of efficient supply chains exemplify the proposition held by Green Political Theorists that the international trade regime is the cause of environmental problems and highlights the downfalls of the trade regime’s prioritization of trade facilitation.

V RECOMMENDATIONS OF GREEN IR THEORY

Evidently, there is room for improvement in the current trade regime’s protection of the

0 Convention on International Trade in Endangered Species of Wild Fauna and Flora 1973.

0 Jose Romero and Karine Siegwart, ‘A Survey of Kyoto Tools for Greenhouse Gas Reductions: Speculations on Post-Kyoto Protocols’, in Thomas Cottier, Olga Nartova and Sadeq Bigdeli (eds), International Trade Regulations and the Mitigation of Climate Change: World Trade Forum ( Cambridge University Press) 13, 15.

0 Harris (n 7) 14.

0 Ibid 5.

0 United Nations Office on Drugs and Crime, ‘UNODC-WCO Global Container Control Programme’, United Nations Office on Drugs and Crime (Webpage, 2023) https://www.unodc.org/ropan/en/BorderControl/container-control/ccp.html

0 World Customs Organization, ‘Practical Guidance on Free Zones’, World Customs Organization (Report, 2009) 49, https://www.wcoomd.org/-/media/wco/public/global/pdf/topics/facilitation/activities-and-programmes/free-zone/wco-fzguidence_en.pdf?la=en

environment. Green IR Theory is a useful tool for navigating contemporary challenges and devising various solutions to the harm caused by international trade. The solution of a compulsory carbon pricing scheme aligns with the ideas of both Environmentalists and Green Political Theorists. This is compatible with the Environmentalist Theory proposal that environmental issues can be addressed within the current international framework, and it is compatible with Green Political Theory’s concept of ‘green theory of value’, considering the environmental cost when evaluating the value of a product or service. It is a current market failure that the externalities, being the social and environmental costs, of emissions caused by products are not accounted for in their price. To counteract this, the carbon market provides a system where companies are required to neutralize their emissions by purchasing carbon credits or engaging in environmental restoration efforts. This enables environmental concerns to be woven into the current trade model: businesses have the overarching goal of maximizing profitability thus, a price is placed upon emissions.0 However, despite having the potential of being highly effective at motivating emitters to adopt more environmental practices, the carbon market has not yet become widely prolific due to concerns that the system will harm the competitiveness of the involved industries or impede development.

The International Monetary Fund (IMF) proposes that implementing an International Carbon Floor (ICF) is an advisable step to achieving the Paris Agreement goals of limiting global warming to 2 degrees Celsius. The IMF recommends that the world’s largest emitters should be required to pay $25-$75 USD per ton of carbon, depending on their level of economic development. If countries use carbon pricing policies that vary from the IMF’s recommendations, it is advised that these alternate policies at least achieve the same reductions in emissions as the ICF system. Using an ICF price also does not limit countries to take more substantial action if they wish. The IMF tested the effectiveness of various carbon pricing policies and found the ICF system, if implemented by all countries simultaneously, to be the only feasible carbon pricing option to achieve the Paris Agreement goals 0 Rather than simultaneously implementing a consistent carbon pricing strategy, a fragmented system of varying approaches is currently being enacted. Without coordination, this system risks creating competitive losses in regions with ambitious environmental policies and administrative burdens to account for the variations and transaction costs. This may cause a ‘race to the bottom’ in carbon pricing policies in countries wishing to avoid suffering a competitive disadvantage as well as specialization in pollution-intensive industries in areas with these relaxed standards.0 These ‘pollution havens’ would likely occur in developing countries, thus creating a system where developed countries are effectively exporting their pollution.0

For the effective implementation of a carbon pricing scheme to address greenhouse gas emissions within our trade system, the WTO should operate as a forum to formulate clear, consistent rules such as those outlined by the IMF’s ICF. WTO rules and mechanisms should then be used to monitor and enforce compliance. Stringent environmental policies can align harmoniously with a free trade framework by creating demand for environmentally friendly products in countries that also uphold high environmental

0 Harris (n 7) 8.

0 Ibid 5.

0 David Mackay et al, ‘Price Carbon – I Will If You Will’ in David Mackay et al (eds), Global Carbon Pricing (The MIT Press, 2015) 7, 10.

0 Ian Parry, Simon Black and James Roaf, ‘Proposal for an International Carbon Price Floor among Large Emitters’, International Monetary Fund (Report, 2021) 1 Proposal for an International Carbon Price Floor Among Large Emitters (imf.org)

standards as they capitalize on first-mover advantage.0 Therefore, the WTO should use its influence to implement the carbon pricing system recommended by the IMF, so that countries are required by an international agreement to neutralize their trade emissions, as this will have the ripple effect of creating demand for low emissions technologies.

VI RECOMMENDATIONS OF GREEN POLITICAL THEORY

On the other hand, Green Political Theory proposes more radical solutions, for instance, to re- organize our societies and global trade systems according to bioregionalism. Bioregionalism rejects traditional political borders and instead groups communities by bioregions which are large enough to encapsulate ecosystems necessary for human, plant, and animal life to sustain itself. This solution is based on the idea that the contemporary world order is inadequate at protecting the environment, as we have a growth-dependent economy that relies on overconsumption. It suggests that our modern system relies too heavily on international supply chains to maintain our basic living standards.0 Supply chains can be disrupted, as seen with the Covid-19 pandemic, and reliance on a few countries to produce fossil fuels can cause price shocks, as caused by the war in Ukraine.0 Rather than valuing the accumulation of wealth and accessing immediate gratification to our consumerist desires, bioregionalism values the self-sustainability of communities.0 Proponents of Green Political Theory suggest that protecting the longevity of human life on Earth not only requires technical changes but also a shift in values.0 Bioregional societies are envisioned to be reliant on what they can produce, only trading when necessary. This self-sufficiency aims to foster a connection between the citizens and their resources which may incentivize more mindful and sustainable use of those resources.0 However, bioregionalism and self- sufficiency are not the solution to all problems. International trade can be pivotal in climate disaster recovery, for instance, in improving food security and access to emergency goods and services, and for helping economic recovery.0 An additional drawback of self-sufficiency is that in comparison, strong trade relationships are beneficial for the formation of effective working relationships between countries to address transnational environmental issues. Currently bioregionalism is a purely theoretical, post- capitalist, economic model. However, the WTO and entire trade system does not have to be modified to benefit from the ideas proposed by bioregionalism. By incorporating localization, sustainability and increased self-sufficiency, the values of Green Political Theory can be adopted in a less radical way than a full-scale implementation of bioregionalism.

VII CONCLUSION

0 OECD, ‘Trade and the Environment’, OECD (Webpage, 2023) Trade and the environment - OECD

0 Tristan Bove, ‘Bioregionalism: A Model for a Self-Sufficient and Democratic Economy’,Earth.org (Webpage, 2021) Bioregionalism: A Model for a Self-Sufficient and DemocraticEconomy | Earth.Org.

0 Maciej Kolaczkowski, ‘How does the war in Ukraine affect oil prices?’, World Economic Forum (Article, 2022) https://www.weforum.org/agenda/2022/03/how-does-the-war-in-ukraine-affect-oil-prices/

0 Bove (n 24).

0 Dyer (n 2).

0 Bove (n 24).

0 World Trade Organization, ‘World Trade Report 2022’, World Trade Organization (Report, 2022) 34, https://www.wto.org/english/res_e/booksp_e/wtr22_e/wtr22_e.pdf

There is potential for the trade regime to advance environmental action in some instances. For instance, the WTO has stated in political forums that the WTO rules would support, rather than override MEAs. Additionally, there are enforcement efforts against environmental crimes, such as those covered by CITES, and GATT rules can be utilized to protect animal and plant life.

However overall, the WTO has fallen short in adequately addressing environmental concerns. GATT rules have blocked environmental actions and MEAs are not sufficiently enforced, in part due to the prioritization of efficient supply chains. Unfortunately, the facilitation of efficient trade correlates with the efficient destruction of the planet. It is recommended that instead of being primarily instrumental in promoting open trade and economic growth, the WTO re- evaluates its priorities to advance environmental action more substantially. The WTO’s proposition to not complicate trade issues with environmental issues is no longer possible or acceptable. Unsustainable consumerism, illegal trade of plants and animals, and the pollution caused by transportation are among the many issues where trade and the environment are intertwined. The solutions proposed by Environmentalists and Green Political Theorists of a compulsory carbon trading scheme and more sustainable use of resources must be implemented to adequately advance environmental effort.

THE MYALL CREEK MASSACRE: FULLY SATISFIED JUSTICE?

GEMMA KEOGH0

ABSTRACT: A full examination of the Myall Creek Massacre and the two subsequent trials helps deepen our understanding of the unjust treatment of First Nations peoples in contemporary society. This paper examines the factors that contributed to the verdicts which first acquitted and then convicted the accused. It also explores the trials’ historical accounts which reveal significant difficulties for the prosecution, including distance, minimal evidence, witness intimidation, pressure from the public and bias on the part of the jurors.

I INTRODUCTION

First Nations Peoples and their treatment within the Australian justice system has been a longstanding and continuous conversation. The Myall Creek Massacre, which involved First Nations Peoples, has significantly impacted this discussion. Understanding it fully requires consideration of the Massacre, along with what occurred in the search for justice during the trials and beyond. The massacre, viewed as a ‘shameful incident in Australian colonial history’,0 is an example of European settlers exerting their self-determined authority over an unarmed and non-violent group of First Nations Peoples. The trial, along with the laws of colonial New South Wales, colonial interests and public opinion, helped shape the contemporary discourse of First Nations Peoples and the law. In this paper, an examination of those factors contributing to the verdicts will be undertaken, enabling readers to ascertain if justice had occurred, as some claim, or if the injustice First Nations Peoples continue to face was prevalent in this case as well. This paper will acknowledge multiple sources ranging from newspapers, court proceedings and other grey literature in its hunt to argue that ‘justice was not fully satisfied’. Not all the perpetrators were held to account for their contributions in the massacre, for perpetuating the ill-treatment of First Nations Peoples that continues to this day.

II BACKGROUND – MYALL CREEK MASSACRE

Henry Dangar, a respected settler within the Hunter River region,0 was away from his land in Myall Creek leaving an overseer in charge.0 On 10 June 1838, while the overseer William Hobbs was elsewhere, twelve armed stockmen — a mixture of free settlers and convicts — entered Dangar’s land.0 This pastoral lease or station was a place where some of the Wirraaraay people of the Gamilaroi nation were invited to make camp.0 They were considered friendly, many of the men were employed by nearby stations and the community was welcomed by Hobbs to make a home on the land.0 After entering the station, thirty unarmed First Nations Peoples0 — men, women and children — were captured, restrained with bindings, deliberately shot, and decapitated by the stockmen in retaliation for lost cattle

0 This paper was originally submitted as assessment for the subject HIS5115 Legal History

0 Lyndall Ryan, ‘’A Very Bad Business’: Henry Dangar and the Myall Creek Massacre 1838’ (Web Page, 05 May, 2023) https://www.newcastle.edu.au/__data/assets/pdf_file/0015/31056/Henry-Dangar-and-the-Myall-Creek-massacre.pdf 1.

0 Ibid.

0 Ibid.

0 Sarah McKibbin, Libby Connors, and Marcus Harmes, A Legal History for Australia (Hart Publishing, 2021) 228.

0 Ibid.

0 Ibid.

0 Some records indicate it was between 28 to 30 people, see: McKibbin, Connors and Harmes (n 5) 228; Jane Lydon, ‘Pity, Love or Justice? Seeing 1830s Australian Colonial Violence’ (2017) 1(2) Emotions: History, Culture, Society 109, 110.

— a deed for which the victims were not responsible.0 Days after this heinous act, the stockmen returned to burn the bodies, along with any other incriminating evidence. 0 Some scholars have suggested this was nothing more than an ‘opportunity massacre’, where the perpetrators acted so ruthlessly as they believed they would not be held accountable.0 Hobbs returned to the station and was confronted with the ‘charred remains’ of the community he had gathered there.0 Unlike similar crimes,0 he immediately informed a neighbour who sent word via a horse-riding squatter to authorities in Sydney, as this was the closest police presence.0

The colony’s new Governor, Sir George Gipps, was instructed by the Colonial Office to ‘ensure the protection of Aboriginal people’ within the colony.0 This resulted in his profound desire to investigate all First Nations Peoples’ deaths linked to conflicts with white settlers. 0 Therefore, in the days following the massacre, an investigation was launched by Gipps. He sent Magistrate Edward Day to unearth the truth.0 After completing a preliminary report, Day initiated a full inquiry led by Lieutenant George Denis Pack of the Mounted Police. 0 This exploration for truth, both from Day and Pack, concluded with multiple eyewitness statements and bone fragments that lead to the arrest of eleven lawbreakers.0 The twelfth offender, John Fleming, fled – thus escaping charges for this particular incident. 0 Fleming and his notorious escape from justice have been the topic of many discussions, particularly when it comes to the suggested cover-up that allowed him to remain a free settler despite allegations that he was the ringleader.0 Those who were arrested were charged with wilful murder by Gipps and ordered to face trial.0

III THE FIRST TRIAL – AN ACQUITTAL

The perpetrators were subject to two trials, both led by Attorney-General John Plunkett, a renowned Australian-Irish attorney.0 It is suggested that Plunkett’s significant compassion for the victims of the massacre, and therefore his intense search for justice, stems from his own experience of unjust discrimination as an Irish Catholic.0 Or it could be an engrained desire to correct injustice, as he previously partnered with Daniel O’Connell, and the two successfully repealed Ireland’s Penal Laws in 1829.0 Regardless of his motivation, Plunkett resolved during his prosecution of the perpetrators that ‘the rule of law should be upheld’, irrespective of any consequences he may receive personally.0 Plunkett took charge of the investigation materials and carefully laid out his case. In doing so, he charged eleven of the twelve offenders for two of the thirty murders.0

0 McKibbin, Connors and Harmes (n 5) 228.

0 Ryan (n 2) 8–9.

0 Lydon (n 8) 119.

0 McKibbin, Connors and Harmes (n 5) 228.

0 Ryan (n 2) 1.

0 Ibid.

0 Greg Smith, ‘The Contribution of Irish-Australian Lawyers to the Australian Legal System’ (2012) 36 Australian Bar Review 110, 112.

0 Ibid.

0 McKibbin, Connors and Harmes (n 5) 228.

0 Ryan (n 2) 2.

0 McKibbin, Connors and Harmes (n 5) 228.

0 Ibid.

0 Patsy Withycombe, ‘The Twelfth Man: John Henry Fleming and the Myall Creek Massacre’ (2018) 20 Journal of Australian Colonial History 103.

0 McKibbin, Connors and Harmes (n 5) 228.

0 Smith (n 15) 112.

0 John Kennedy McLaughlin, ‘John Hubert Plunkett: An Irish Lawyer in Australia’ (2021) 50(1) Australian Bar Review 1, 4.

0 Ibid.

0 Ibid.

0 Ibid.

In early November 1838, Plunkett, assisted by Roger Therry, appeared before Chief Justice Sir James Dowling in the first trial.0 The biggest hurdle that the prosecution faced in this trial became the lack of substantial evidence.0 The prosecution was unable to definitively identify their victims. Bone fragments in modern cases can be identified through forensics; however, in 1838 they relied on eyewitness testimony. Some eyewitness statements were inadmissible. Historically, it was illegal for anyone other than a free white settler to testify. The prosecution had significant testimony from a station hand; however, it was not able to be heard. 0 Between the inadmissible testimony and the common understanding of the ‘settler code of silence’, the prosecution was left with limited options.0 One of the witnesses, George Anderson – a convict working alongside others on the station under Hobbs0 — shared his account of what had occurred, specifically that the order to burn the bodies came from Fleming, who was still at large.0 However, this testimony was combated by Dangar, who became a witness for the defence, and testified that Anderson was ‘addicted to lying’ and his testimony should not be considered.0 Dangar had been involved in previous peacekeeping efforts around the region0 and had hired experienced free men and ‘naturalised Aborigines’ to help run his stations to avoid conflict escalating to violence.0 Yet he expressed disappointment that the case had been brought forward,0 and did not renew Hobbs’ employment contract. As a result, Hobbs was never hired as an overseer again.0 Danger also began funding the defence of the perpetrators through the ‘Black Association’ along with other influential people.0 Because of Dangar’s reputation and influence, his testimony held sway with the jury. Additionally, tracking down sufficient testimony that was not corrupted or uncorroborated proved difficult. 0 This meant that the prosecution had little to no convincing proof of who had been murdered or by whom it had been done.0

After two days of arguments, the lack of sufficient evidence resulted in the jury returning an acquitted verdict after only fifteen minutes of deliberation.0 Plunkett did not let this diminish his resolve; instead, he successfully applied to have the prisoners remain in custody in lieu of further charges.0 Due to his earlier decision to only prosecute two of the murdered men’s cases, Plunkett could file new charges against the accused of other separately considered deaths.0 Additionally, he sought to charge seven of the eleven to improve his chances of conviction.0 Initially, the accused men entered the plea of autrefois acquit – a legal term meaning an individual has already been tried and acquitted of the same crime.0 However, it was determined that the second trial could go ahead due to Plunkett’s perseverance and compelling arguments in sustaining the indictments.0

0 McLaughlin (n 24) 4.

0 Ibid.

0 Smith (n 15) 112.

0 McKibbin, Connors and Harmes (n 5) 230.

0 Ryan (n 2) 3.

0 Withycombe (n 21) 119.

0 Ryan (n 2) 13.

0 Ibid 4.

0 Ibid 11.

0 Ibid.

0 Tony Earls, Plunkett’s Legacy: An Irishman’s contribution to the rule of law in New South Wales (Australian Scholarly Publishing, 2009) 91.

0 Ryan (n 2) 11.

0 McKibbin, Connors and Harmes (n 5) 229.

0 Ryan (n 2) 11.

0 McLaughlin (n 24) 4.

0 Ibid.

0 Ibid.

0 Ibid.

0 Merriam-Webster Dictionary (online at 13 May 2022) ‘autrefois acquit’ (def 1).

0 McLaughlin (n 24) 4.

IV THE SECOND TRIAL – FINALLY GUILTY

Sitting before Justice William Burton in late November 1838, Plunkett and Therry sought to prosecute seven men for the Myall Creek Massacre, specifically the death of an identified child.0 Within the second trial, the original evidence was heard; however, the prosecution was also able to uncover that some landowners in the area had used several tactics to sanction ‘the extermination of the native peoples’.0 While the evidence had not changed drastically and similar obstacles from the first trial existed, the fact that the victim was identified, and more testimony was included aided the result. Additionally, Dangar’s defence testimony was not as effective.0 In his closing statement, Justice Burton made it known he believed in the defendant’s guilt.0 Considering the legal arguments and the evidence shared, the jury found the accused men guilty of five out of fifteen charges.0 Although not a full conviction, or charges for all the victims, this verdict meant that some justice was to prevail for those affected by the massacre.

V SENTENCING

Following the trial, on 5 December, Judges Dowling, Burton, and Stephen of the Supreme Court considered but ultimately rejected, the appeals made on behalf of the accused, sentencing the seven men to death by hanging.0 While awaiting their final penalty the accused men admitted their guilt and shared ‘it was done … in defence of their master’s property’,0 despite their early claims of being unaware of the illegality of their actions.0 Governor Gipps managed to withstand significant pressure to pardon the guilty men from their impending death, and their sentence was carried out on 18 December 1838.0

A significant takeaway from this case was the rarity of white men being found guilty and their sentence carried out for their crimes, particularly those against First Nations Peoples.0 Newspapers at the time shared community fears that this would lead to an increase in white settlers being held to account for their illegal actions towards colonial growth and obtaining land.0

VI PUBLIC OPINION

Viewing the actions of Plunkett and Therry from a modern lens, little criticism can be found relating to their official duties in prosecuting the crimes. Most of the criticism stems from public outrage towards their pursuit of justice. Filing the initial charges in the first trial, following it up with a second round of indictments, and then persevering until final judgment

0 McKibbin, Connors and Harmes (n 5) 229.

0 Ibid.

0 McLaughlin (n 24) 4.

0 Ann Curthoys et al, ‘Forum: The Myall Creek Massacre of 1838: Genocide, War Crimes, Crimes Against Humanity?’ (2018) 5(1) Law & History 146, 147.

0 Ibid.

0 Ibid.

0 Withycombe (n 21) 120.

0 John Connor, The Australian Frontier Wars 1788–1838 (University of New South Wales Press, 2002) 112.

0 Ibid.

0 Rebecca Wood, ‘Frontier Violence and the Bush Legend: The Sydney Herald’s Response to the Myall Creek Massacre Trials and the Creation of Colonial Identity’ (2009) 6(3) History Australia 67.1.

0 Ibid.

and sentence were affirmed, Plunkett became a despised figure within the community. 0 He was not despised by those he sought to defend but by those who were ‘suffering’ as a result of his desire to change how the rule of law was enforced. 0 This suffering is interpretable, as many white settlers felt justified in their actions and believed they were above the law’s grasp.0 During the early years of Australia, squatting was considered a highly profitable business – squatting was an early settler concept of moving grazing herds onto land owned by the Crown or First Nations Peoples illegally.0 In this case, many settlers did not welcome the interference from the ‘law’ on how conflicts they endured with the First Nations Peoples should be dealt with.0

Many scholars have presented the viewpoint that the negative public opinion was swayed by those with financial power and influence, particularly as they aligned with the general interests of the colony.0 It was also suggested that some witnesses, who may have been eligible under the law to give testimony in the trials, were led to believe by those same people of influence they would not be safe should they do so.0 Witness tampering by the wealthy and influential was just one element of shielding the guilty.0 Public outrage was not limited to the prosecution: it was said that the foreman on the second trial was subjected to abuse for being a part of convicting white men.0 Not all colonists shared this viewpoint, as newspapers such as The Australian received noteworthy letters from allies of the verdict.0

VII LEGAL CHANGE

The impact that these cases had on Plunkett extended throughout his career with many continuing to show hostility towards him; however, Plunkett was resolved that he would be ashamed if he acted any other way.0 Plunkett progressively believed that everyone should be held accountable in the same way under the law.0 This was the foundation of his views on exconvicts being involved on juries, but specifically, in this case, it fuelled his campaign to change New South Wales’ law to enable First Nations Peoples to give evidence.0 Plunkett’s struggles to secure a conviction on all the perpetrators of the Myall Creek Massacre was due to his inability to put the key eyewitness testimony of Davvy – an Indigenous station hand –forward as evidence in the trials.0 Plunkett fought for years to change this law, as the ongoing mass killings of First Nations Peoples were difficult to prosecute without these vital firsthand accounts.0

This was a struggle for the government, which continually failed to develop and implement sufficient legislation that would allow the testimony of First Nations Peoples to be heard. The Legislative Council were under the impression that, as First Nations Peoples did not believe in God, an oath could not be taken and they were incompetent witnesses. 0 One member who passionately fought to keep the status quo was William Wentworth, who argued that it would

0 Ibid.

0 Ibid.

0 Ibid.

0 McKibbin, Connors and Harmes (n 5) 228.

0 Smith (n 15) 113.

0 Ibid.

0 Withycombe (n 21) 121.

0 Ibid.

0 Smith (n 15) 113.

0 Ibid.

0 Withycombe (n 21) 121.

0 Ibid.

0 Ibid.

0 Ibid.

0 Ibid.

0 Andrew Tink, ‘The 2007 Forbes Lecture’ (2009) 32 Australian Bar Review 316, 320

not be appropriate to have the ‘chattering’s of … this savage race’ in a court.0 Thankfully many found his public statements on this subject as indefensible as they would be today; however, there were still those who shared his views.0 This is believed to be a significant failure on the government’s part and one of the ‘saddest stains on the history of New South Wales.’0

Myall Creek and similar massacres helped reflect the legal inconsistency and limbo-like state that Australia was in.0 The understanding that the rule of law for the colony meant being mistreated by law and authority, coupled with ignorance and lack of basic human rights, would slowly be acknowledged and improved over time.0 During the Myall Creek trials, Plunkett stressed that this matter was about murder and ‘ignorantia juris non excusat’ – that being ignorant of the law does not make you less liable.0 The early government accepted British law as the prevailing power; however, the interpretation of and resistance to that law led to a misuse of power and authority.0 This can be seen in the disastrous implementation of ‘Aboriginal Protectors’ within the colony.0 The struggle for the protection of fundamental rights and equal recognition under the law has taken time to be fully recognised, such as the adoption of the Universal Declaration of Human Rights in 1948, along with the changes in governing systems and the concept we know today of everyone getting a ‘fair go’.0

VIII SYSTEMATIC RACISM

Another major hurdle was the bias of juries. The systemic racism that occurred in the Myall Creek trials was appalling. Upon exiting the courthouse from the first trial, one juror is reported to have said he knew they were guilty but refused to sentence a white man to hang for such a crime, stating: ‘I look on the blacks as a set of monkeys … and the earlier they are exterminated from the face of the earth the better.’0 This horrendous and indefensible statement was not uncommon during this period. Unfortunately, racism fuelled a significant amount of the violence and negativity that came when interacting with First Nations Peoples. For example, when discussing the land rights of First Nations Peoples, a report from the Select Committee described them as ‘barbarous,’ ‘destitute,’ lacking ‘civil polity,’ and for those reasons, any claims to land or sovereignty should be ignored.0 This has been a challenge that Australia is still battling, with current government bodies continuing to claim that First Nations Peoples’ sovereignty has not, does not and cannot ever exist. 0 The historical viewpoint that sovereignty ‘could never be exercised, claimed, or granted to a people who did not live in properly constituted societies’0 has been ingrained in the culture of Australian society, and not in a positive way.

Contemporary scholars have also begun debating whether Myall Creek and similar crimes were a form of genocide or a war crime.0 No consistent view has been established with

0 Ibid.

0 Ibid.

0 Smith (n 15) 113.

0 James Triggs, ‘Authority, Democracy and the Rule of Law’ (2008) 30 Australian Bar Review 221, 224.

0 Ibid.

0 Ibid; Merriam-Webster Dictionary (online at 13 May 2022) ‘ignorantia juris non excusat’ (def 1).

0 Triggs (n 78) 224.

0 Wood (n 57) 67.4.

0 Triggs (n 78) 224.

0 The Australian (Sydney, 8 December 1838) 2, quoted in McLaughlin (n 24) 4.

0 Connor (n 55) 112.

0 Bruce Buchan, ‘Aboriginal Welfare and the Denial of Indigenous Sovereignty in Australia’ (2002) 20(1) Arena Journal.

0 Ibid.

0 Curthoys et al (n 51) 148.

arguments for, against,0 and, even some, opposed to the unnecessary discussion.0 Regardless of one’s viewpoint, the actions of white settlers and the impact made by them have deep routed repercussions that have echoed through the history and development of Australia. They will continue to envelop our culture and story moving forwards. The Myall Creek Massacre and trials ‘intensified racial tensions’0 which prompted a culture of secrecy.0 Because officials were unaware of legal outcomes or the public reactions it hindered any pursuit of similar cases for decades.0 Ultimately, when reminiscing about his involvement in the case, Therry was adamant that 'justice was not fully satisfied'.0

IX CONCLUSION

The perpetrators of the Myall Creek Massacre undoubtedly acted unjustly and illegally. Yet, the historical accounts of the trials reveal significant difficulties felt by the prosecution, which included distance, minimal evidence, witness intimidation, public pressures and biased jurors. These elements allow one to see the injustice. First Nations Peoples during colonisation were indeed treated unjustly, and in many cases continue to be treated this way. When specifically asking if justice occurred in the Myall Creek case, one only must look at the words of Therry, ‘justice was not fully satisfied.’ Yes, some were held accountable, but not every victim was given a voice, and not everyone involved was held responsible for those deaths. This is purely linked to the indefensible ‘less than’ concept that many white settlers had towards First Nations Peoples. The Myall Creek Memorial committed to gathering at the site with descendants of victims and perpetrators in remembrance of what occurred and to work together for a better future.0 This is something every one of us can also strive for.

0 Ibid.

0 Ibid.

0 Lydon (n 8) 120.

0 Jane Lydon, ‘Anti-slavery in Australia: Picturing the 1838 Myall Creek Massacre’ (2017) 15(2) History Compass 8.

0 Ibid.

0 Withycombe (n 21) 106.

0 Ibid 148.

WHY A CONSTITUTIONALLY ENSHRINED FIRST NATIONS PEOPLE’S VOICE IS THE ONLY OPTION

GEMMA KEOGH0

ABSTRACT: This paper discusses aspects of affirmative action for constitutionally enshrining a First Nations Voice, including any attendant constitutional issues. Previous First Nations advocacy is first outlined along with recent developments in the Voice campaign. In addition, this paper discusses a contingency in the form of legislative reform.

I INTRODUCTION

Australia’s First Nations Peoples have long sought recognition for their sovereignty. The 2017 call for a constitutionally enshrined voice through the ‘Uluru Statement from the Heart’ is a formal plea for the Australian government. It focuses on First Nations peoples ‘constitutional vulnerability and powerlessness’0 and allows First Nations Peoples to speak into their affairs on a constitutional level.

A ‘First Nations Voice’ is also backed by international law, as it is a requirement that all Indigenous peoples are allowed to have meaningful participation in their government's decisions, particularly those which affect them.0 Further, Australia has endorsed the United Nations Declaration on the Rights of Indigenous Peoples, which states in Article 18, ‘Indigenous peoples have the right to participate in decision-making in matters which would affect their rights … as well as to maintain and develop their indigenous decision-making institutions.’0 Although non-binding, this declaration has aspirations for what the international community desires for their Indigenous communities. However, despite endorsing it, Australian law has yet to implement any First Nations participation in decisionmaking or accept any degree of First Nations Sovereignty.

This paper aims to discuss aspects of affirmative action for constitutionally enshrining a First Nations Voice, including any constitutional issues involved. It will start by outlining previous First Nations advocacy along with recent developments in the Voice campaign. Additionally, space will be given to discuss a contingency in the form of legislative reform.

II BACKGROUND

The concept of an empowered First Nations People’s voice within Indigenous affairs has a long history within its related advocacy.0 What started with a symbolic and uninformed

0 This paper was originally submitted as assessment for the subject LAW5211 Constitutional Law

0 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.

0 Patrick McCabe, ‘An Australian Indigenous Common Law Right to Participate in Decision-Making’ (2020) Oxford University Commonwealth Law Journal 20(1) 52-85.

0 United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UN Doc A/61/295 (2 October 2007, adopted 13 September 2007).

0 Shireen Morris, ‘The Argument for a Constitutional Procedure for Parliament to Consult with Indigenous Peoples When Making Laws for Indigenous Affairs’ (2015) 26 Public Law Review 166.

gesture from former Prime Minister John Howard in 1999 has sprung into a prominent legal and political discussion spanning indigenous and non-ingenious platforms.0 For example, in 2017, the constitutionally enshrined voice through an advisory body stemmed from a discussion between Indigenous leaders and conservative constitutionalists a few years earlier who were seeking common ground in the 'constitutional recognition debate’.0 This unlikely collaboration resulted from a previously proposed referendum to include a ‘racial nondiscrimination’ clause; however, due to low political support amid concerns for a power imbalance between the High Court and Parliament, it did not succeed.0 As a result, an alternative solution that would cover any previous objections while still allowing First Nations Peoples to achieve a constitutionally enshrined voice in their affairs was sought.0 In 2015, Anne Twomey drafted a constitutional amendment establishing such a voice through an advisory body0 to enable First Nations peoples to have a voice within the political process of law-making rather than attempting to bring change after the fact through the judiciary system.0

The proposal, as outlined by Twomey, spoke to the critiques of the earlier racial nondiscrimination clause. For example, it identified that there would be no veto powers, which would be ‘non-justiciable’. Also, there would be no risk of eliminated laws, and ‘parliamentary supremacy would be upheld.’0 Additionally, there would be no power imbalance between the High Court and Parliament, as this body would be constitutionally embedded, allowing First Nations Peoples to speak into decisions that would be made about them.0 Some scholars have recognised that the compromises within the Voice proposal are noble,0 with Greg Craven noting it is ‘an idea that is practical enough to work and profound enough to be worth doing.’0 Since first being drafted by Twomey, other First Nations Leaders and experts on the Constitution have joined the discussion, adding their options for how a First Nations Voice could be established.0 This culminated in 2017 with a national consensus of First Nations Peoples who agreed on how they wanted their voices to be heard.0

The iconic and historic Uluru Statement from the Heart proclaimed a consensus, with its call for reform through the First Nations Voice being constitutionally enshrined.0 Further, it called for the Makarrata Commission to be established through legislation, overseeing any ‘First

0 Dani Larkin and Sophie Rigney, ‘State and territory legislative vulnerabilities and why an Indigenous voice must be constitutionally enshrined’ (2021) Alternative Law Journal, 46(3) 205–211, 205.

0 Morris (n 2) 632.

0 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 Monash University Law Review, 488.

0 Morris (n 2) 632.

0 Anne Twomey, ‘Putting Words to the Tune of Indigenous Constitutional Recognition’, The Conversation (online), 20 May 2015; Anne Twomey, ‘An Indigenous Advisory Body: Addressing Concerns about Justiciability and Parliamentary Sovereignty’ (2015) 8(19) Indigenous Law Bulletin 6.

0 Ibid.

0 Morris (n 2) 632.

0 Ibid.

0 Ibid 633.

0 Greg Craven, ‘Noel Pearson’s Indigenous Recognition Plan Profound and Practical’, The Australian (online, 25 May 2015) <https://www.theaustralian.com.au/opinion/columnists/greg-craven/noel-pearsonsindigenous-recognition-plan-profoundand-practical/news-story/472ff0238ad4f48cd423fdd9f74a9363>.

0 Warren Mundine, Practical Recognition from the Mobs’ Perspective: Enabling Our Mobs to Speak for Country (Options Paper, Uphold & Recognise, 2017); Megan Davis and Rosalind Dixon, ‘Constitutional Recognition through a (Justiciable) Duty to Consult? Towards Entrenched and Judicially Enforceable Norms of Indigenous Consultation’ (2016) 27 Public Law Review 255.

0 Morris (n 2) 633.

Nations agreements with the government and truth-telling about Australia’s History.’0 This amendment to the Constitution pivoted from removing specific references or inserting any symbolic statements, rejecting ‘minimalist forms of constitutional recognition’0 to address any vulnerability or powerlessness felt by First Nations Peoples through substantial and functional reform.0 Additionally, this proposal moves away from ‘constitutional empowerment through litigation’, the historic solution offered to First Nations Peoples.0 Many scholars agree that this reform aligns with the ‘culture and design’ of the Constitutionfar more than mere words or poetic sentiments – and significantly more than trying to insert a non-discrimination clause around race into a Constitution that does not have a bill of rights within it.0 It is important to note that in the many years of First Nations advocacy, never has a consensus been reached that encompasses every region; historically past advocacy has singularly arisen from specific areas.0 Despite the overwhelming and powerful consensus, it should be noted that several delegates left during the convention at Uluru due to a desire for ’sovereign treaties’.0 Regardless, the unanimous view expressed through the Uluru Statement and the countless discussions preceding its proclamation was for a First Nations voice through constitutional reform.0

The referendum council produced a report supporting the Uluru Statement because the First Nations Peoples consensus backed it, and it was significantly popular with submissions made by the broader public.0 The council made its recommendations concerning the First Nations Peoples Advisory body, suggesting that the body come with specific legislated functions and processes like advising on how the government operationally practices sections 51 (xxvi) and 122 of the Constitution in the context of First Nations’ particular laws.0 However, the report did not stop there; it also called for further declarations in the Constitution to provide for symbolic statements of recognition, effectively uniting what some consider to be ‘the three parts of Australian’ culture - 'the Indigenous, the British and the multicultural.’0

Within months of the Uluru Statement being released, the Australian government, led by Malcolm Turnbull, released their statement rejecting any call for a constitutionally enshrined First Nations Voice.0 Within this statement were the governments’ concerns; that the proposal

0 Referendum Council, ‘Uluru Statement from the Heart’ (Statement, First Nations National Constitutional Convention, 26 May 2017).

0 Ibid.

0 Frank Brennan, ‘Contours and Prospects for Indigenous Recognition in the Australian Constitution, and Why it Matters’ 90(5), Australian Law Journal 340–354; Morris (n 1) 632.

0 Morris (n 2) 633.

0 Expert Panel on Constitutional Recognition of Indigenous Australians, Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution: Report of the Expert Panel (Report, January 2012).

0 Morris (n 2) 634.

0 Morris (n 5) 170–3.

0 Claudianna Blanco, ‘We Won’t Sell Out Our Mob: Delegates Walk Out of Constitutional Recognition Forum in Protest’, NITV News (online, 25 May 2017) <https://www.sbs.com.au/nitv/article/we-wont-sell-out-our-mob-delegates-walk-out-ofconstitutional-recognition-forum-in-protest/v42y9atu4>.

0 Referendum Council (n 18) 9–16.

0 Ibid 33–5.

0 Ibid 2.

0 Ibid; Morris (n 2).

0 Malcolm Turnbull, ‘Response to Referendum Council’s Report on Constitutional Recognition’ (Media Release, 26 October 2017) < https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22media%2Fpressrel %2F5596294%22>.

would not promote equality,0 that this advisory body would become ‘a third chamber of parliament’ and that most Australians would not support such a proposal.0

III RECENT DEVELOPMENTS

A government initiative with Indigenous participation issued a report in January 2021 providing an overview of potential ‘models’ of the Voice. Within this report, two interwoven processes are shared; however, neither option address the constitutional issue raised out of the Uluru Statement.0 Some would argue that this is deliberate.

The proposals include two legislated voices, one to the government and one to parliament. 0 In its rawest form, the Voice to the government would be purely administrative, providing advice to the incumbent government at an executive level. This advice would primarily focus on issues related to indigenous-specific service-delivery organisations, aiming to complement existing indigenous bodies rather than replace them.0 The voice to parliament depicts a ‘National Voice’ with its members able to advise the Commonwealth on any policies and laws that may impact First Nations Peoples and their affairs.0 It is worth noting that both of these options would allow for early intervention and advice by First Nations Peoples within the legislation and policy development processes.0 Additionally, it would be a link for ‘Regional and Local Voices’, ensuring all levels and their views would be considered at the national level of government.0

With all these positive aspects, the report also presented several provisions that would limit the First Nations Voice. For example, it does not include any form of ‘mediation or facilitation or specific government-led program delivery initiatives.’0 Most notably, the report advises that the First Nations Voice be ‘non-justiciable’, meaning if consultation on behalf of the Ministers failed to take place, no action could occur within the judiciary system.0 Additionally, laws would be passable through both houses of Parliament without consultation, even if First Nations Peoples were impacted.0 It also does not award any veto power to the Voice.0 The driving force behind the report’s proposals is its faith in ‘transparency mechanisms’,0 which supposedly will keep the government accountable for its actions concerning First Nations Affairs. However, this accountability and transparency are weak and contradict the desires expressed within the Uluru Statement.0

0 Ibid.

0 Ibid.

0 Larkin and Rigney (n 6) 205.

0 National Indigenous Australians Agency (NIAA), ‘Interim Report to the Australian Government’ (Interim Report, October 2020) <https://voice.niaa.gov.au/sites/default/files/2021-01/indigenous-voice-codesign-process-interim-report-2020.pdf>.

0 Larkin and Rigney (n 6) 207.

0 NIAA (n 34).

0 Ibid 44.

0 Ibid 48.

0 Ibid 47.

0 Ibid 51.

0 Ibid.

0 Larkin and Rigney (n 6) 207.

0 NIAA (n 34) 54.

0 Larkin and Rigney (n 6) 207.

The desire behind the First Nations’ Voice, as shared within the Uluru Statement, is for direct and in-person consultation with both houses of parliament, offering space for scrutiny and input into laws and policies that impact them. To provide anything less would ‘undermine the cultural authority’ held by First Nations Peoples.0 Consequently, the report and its proposals lack the constitutional enshrinement element, which is integral to the First Nations Voice.0

IV CONSTITUTIONAL ENSHRINED FIRST NATIONS VOICE

Having determined that the Constitutional enshrinement of the First Nations Voice is an essential feature, it should remain a focal point.0 The functionality of the Voice would be ‘clearly and concisely’ recognised within the Constitution, with the Uluru Statement delegates intending that the finer details – how it would work and what potential membership processes might look like - would occur after a successful referendum. This intention was for flexibility and change to emerge as the Voice is developed over time. Enshrining the Voice within the Constitution would ensure political legitimacy, and with a successful referendum, it would have significant public support.

In light of existing First Nations law reform vulnerabilities and Commonwealth legislative supremacy, the only effective way for a First Nations Voice is to protect it at all levels of governance through its constitutional enshrinement. This is because State and Territory-level laws are innately weaker than their federal and Commonwealth counterparts.0 Furthermore, the First Nations Voice is centrally linked to ‘the relationship between the Commonwealth and the States and Territories,’ which the Constitution will always govern.0 As a result, the First Nations Voice should be ensured the same constitutional protection and clarification. Accordingly, the First Nations Voice and the proposed structure or functions should be clear and concise and outline how to achieve its purpose.0

V ADDRESSING THE CONCERNS

Within the Turnbull government’s response to the Uluru Statement were some concerns that caused them to withdraw support for a constitutionally enshrined voice.

The first concern was the enshrinement of a constitutional ‘representative assembly’ that was comprised of Indigenous Australians who alone ‘could vote for or serve in it’ would be ‘inconsistent’ with the equal civic rights principle, which is fundamental to the foundation that the two chambers of Parliament and what Australia’s democracy is built upon.0 Scholars have argued against this claim, believing it to be incorrect and stating that a principle of equality does not exist within the Constitution. 0 However, the High Court has historically

0 Ibid.

0 NIAA (n 34) 178-83.

0 Larkin and Rigney (n 6) 206.

0 Ibid.

0 Ibid.

0 Ibid.

0 Turnbull (n 30) 1.

0 Shireen Morris, ‘Love in the High Court: Implications for Indigenous Constitutional Recognition’ (2020) Federal Law Review, 1-28, 5.

declined to hold a strong position on the principle of equality debate because of existing discriminatory clauses and historical evidence.0

Further, the Constitution already encompasses many voices as it ensures that the former colonies have the mechanisms to have their voices heard by the ‘bigger’ power.0 However, the Constitution protects all these political communities and recognises their worth; it even considers the smallest state, Tasmania, and grants it an ‘equal’ voice in the Senate under s 7.0 Scholars remind us that the equality argument is defeated by the constitutional system Australia is founded on, federalism, where ‘multiple political communities are constitutionally recognised.’0 However, the same courtesy has not been extended to the oldest of Australia’s political communities, First Nations Peoples, who were not invited to the table during early constitutional deliberations, nor were they included in the 1901 implementation of it. Therefore, the Constitution has no current mechanisms protecting First Nations People’s rights. Suppose a state such as Tasmania, with a population of 571,517 persons, has constitutionally protected rights.0 Should the same be extended to First Nations Peoples, who have a more significant population of 896,300 people, 0 and also have their rights protected? The Uluru Statement makes an equal and reasonable request by asking for a constitutionally enshrined voice.0

Further, the Constitution already creates division within Australia by race.0 The Commonwealth holds supreme power through sections 109 and 122. However, they also have concurrent heads of power, such as s 51(xxvi), which allows the government to create legislation regarding First Nations Peoples. The 1967 referendum is one case of successful First Nations advocacy under the ‘race’ element, with ‘the relationship between the Commonwealth and First Nations Peoples’ influencing a change to the Constitution. 0 The change was made to s 51(xxvi), where the words ‘other than the aboriginal race in any State’ were deleted; this change now allows the Commonwealth to legislate any ‘special laws’ regarding First Nations Peoples.0

Notably, this change has also been used in defence of legislation that discriminates against First Nations Peoples, such as the Hindmarsh Island Bridge Case, 0 where the Commonwealth passed legislation to restrict the operation of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth), which limited its application and made it not apply to a specific area.0 There were significant challenges against this action by Ngarrindjeri women

0 Leeth v Commonwealth (1992) 174 CLR 455; Kruger v Commonwealth (1997) 190 CLR 1.

0 Dylan Lino, ‘Towards Indigenous-Settler Federalism’ (2017) 28(2) Public Law Review 118; Dylan Lino, Constitutional Recognition: The First Peoples and the Australian Settler State (Federation Press, 2018) 244–9.

0 Australian Constitution s 7.

0 Dylan Lino, ‘The Uluru Statement: Towards Federalism with First Nations’ Australian Public Law (Blog post, 13 June 2017) < https://www.auspublaw.org/blog/2017/06/towards-federalism-with-first-nations>.

0 Tasmanian Government, ‘Tasmanian Population’ National, State and Territory Population (Report, 15 December 2022) < https://www.treasury.tas.gov.au/Documents/Population.pdf>.

0 Australian Government, ‘Profile of Indigenous Australians’ Australian Institute of Health and Welfare (Article, 07 July 2022) < https://www.aihw.gov.au/reports/australias-health/profile-of-indigenous-australians>.

0 Morris (n 52) 5.

0 Ibid.

0 Larkin and Rigney (n 6) 206.

0 Australian Constitution s 51(xxvi).

0 Kartinyeri v Commonwealth (1998) 195 CLR 337 ‘(Hindmarsh Island Bridge Case’).

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

on the foundation that the ‘race power’ was being used detrimentally and incorrectly. 0 The government made a counterargument, stating that the power given under this section was unrestricted, provided it was used based on the premise of race and that its use permitted discrimination.0 Ultimately the decision, in this case, rejected any arguments from the Ngarrindjeri women. Instead, it remained aloof, with the potential for the government to use this ‘race power’ to impose further racially driven discrimination or enact laws that would adversely affect First Nations Peoples.

This racial discrimination comes despite antidiscrimination laws on the Federal and State levels, including the Racial Discrimination Act 1975 (Cth) (RDA). As a result, Australia was placed on the ‘early warning urgent action list’ by the United Nations Committee on the Elimination of Racial Discrimination (CERD) because of concern regarding ‘race power’.0 This was further exasperated when the RDA was limited by the High Court’s decision in Wik Peoples v Queensland 1996. 0 This decision prompted the government to introduce the Native Title Amendment Act 1998 (Cth) suspending the RDA’s operation. This action alone allowed the Commonwealth to discriminate against Indigenous Native Title claims.0 The Hindmarsh and Wik cases prove that the Commonwealth has the powers and willingness to undesirably affect the rights of First Nations Peoples and their communities. It is important to note that although it is prohibited to discriminate under the RDA racially, there are special considerations that can be used in the name of advancement regarding individuals or groups of racial or ethnic backgrounds.0 These considerations can be observed in Maloney v The Queen, where the High Court held that no consultation or consent of the affected communities is required to enact them.0 This ruling is in direct contradiction to the opinion in CERD, as well as the mandate within the Expert Mechanism on the Rights of Indigenous Peoples 0 A voice enshrined in the constitution is the only option in achieving this. The ideal outcome would be to bring Australia in line with international standards and to create true equality amongst all Australian people.

The second concern was that the First Nations Voice would become, either by perception or reality, a third chamber of Parliament, if it contained the functions of something more than an advisory capacity – as was recommended in the Referendum Council report.0 This concern is null and void; no third chamber was proposed in the Uluru Statement or following discussions. Even the creator of the misconception, National Party member Barnaby Joyce

0 Kartinyeri (n 63).

0 Ibid.

0 Megan Davis, ‘Closing the Gap in Indigenous Disadvantage: A Trajectory of Indigenous Inequality in Australia’ (2015) 16

(1) Georgetown Journal of International Affairs 34, 40.

0 (1996) 187 CLR 1.

0 Larkin and Rigney (n 6) 208.

0 Human Rights Law Centre, ‘Palm Island alcohol restrictions are “special measures”’ Case Summaries (Online, 19 June 2013) <https://www.hrlc.org.au/human-rights-case-summaries/palm-island-alcohol-restrictions-are-special-measures>.

0 [2013] HCA 28.

0 United Nations Human Rights Commission, ‘Expert Mechanism on the Rights of Indigenous Peoples’ (2016) res 33/25 < https://www.ohchr.org/en/hrc-subsidiaries/expert-mechanism-on-indigenous-peoples>.

0 Turnbull (n 30) 1.

rescinded his statement and admitted it was a mischaracterisation.0 Instead, the recommendation of a First Nations Voice was ‘to Parliament, not in Parliament.’0 It intends to be an external body created by Parliament, having no power to make or veto laws, and there was no suggestion to reform the existing Houses of Parliament.0 Instead, its purpose is to provide a universal, unanimous and concise voice for First Nations Peoples. It would enable Parliament to hear concerns and make the necessary adjustments at the beginning of the law and policy-making process. Parliament Supremacy would prevail, but First Nations Peoples’ rights would be recognised and constitutionally protected. In addition, there is fear of a power imbalance between the courts and the parliament. However, scholars have shared that the integrity of Parliamentary Supremacy and Judicial Review would be retained if the structure of the First Nations Voice was impeccably drafted to maintain it. 0 There is a fine line between a simple gesture and implementing an advisory body that can influence Parliament on First Nations affairs.

The third concern was the unclear election process which could not ensure that the ‘diversity of Indigenous circumstance and experience’ would be represented democratically and fairly.0 Again, this speaks to the desire for a truly representative government that would allow citizens to feel they had an equal say in how they are governed. Interestingly this is linked to Edelman J’s decision in Love v Commonwealth0 where he argues that the proceedings within the matter offered no prospect for any First Nations Peoples to be heard.0 Further, Keane J argued that there was a case for ‘special recognition’ for First Nations Peoples in the Constitution because of historical events and the need for a representative voice.0 Having direct access to both houses of Parliament avoids unnecessary committee appearances for bringing issues to lawmakers. This means accurate and consistent cultural representation and enhancing the existing systems and institutions’ capacity for ‘good governance.’0

The final concern was the government’s belief that a drastic amendment to the Constitution and its representative institutions such as this would have no genuine support by enough of the general public to meet the standard in s 128 for a referendum to pass.0 This concern was and continues to be debunked through multiple independent polls. The first, a 2017 Omnipoll, established that 60.7% of Australians would vote favourably.0 A 2018 Newspoll continued to show that 57% would vote in favour, despite negative campaigning on the government's

0 Amy Remeikis, ‘Barnaby Joyce “Apologises” for Calling Indigenous Voice a Third Chamber of Parliament’, The Guardian (online, 18 July 2019) <https://www.theguardian.com/australia-news/2019/jul/18/barnaby-joyceapologises-for-callingindigenous-voice-a-third-chamber-of-parliament>.

0 Morris (n 52) 6.

0 Ibid.

0 Gabrielle Appleby, ‘Constitutionalising an Indigenous Voice in Australian Law-Making: Some Institutional Design Challenges’ (2015) 18(2) Australian Indigenous Law Review, 98-110, 100.

0 Turnbull (n 30) 1.

0 (2020) 375 ALR 597.

0 Ibid 715 [467] (Edelman J).

0 Ibid 639 [178] (Keane J).

0 Dani Larkin and Kate Galloway, ‘Constitutionally entrenched Voice to Parliament: Representation and Good Governance’ (2021) 46(3) Alternative Law Journal 193-198, 196.

0 Turnbull (n 30) 2; Australian Constitution s 128.

0 Calla Wahlquist, ‘Most Australians Would Support Indigenous Voice to Parliament Plan that Turnbull Rejected’, The Guardian (online, 30 October 2017) < https://www.theguardian.com/australia-news/2017/oct/30/most-australians-supportindigenous-voice-to-parliament-plan-that-turnbull-rejected>.

behalf.0 An unpublished poll by a lobbying group discerned that 56% of people would vote in favour, 17% would vote no, and 28% were undecided.0 More recently, research conducted in 2019 showed 66% of people in support,0 and then in 2020, the level of support had risen to 81%.0 Regardless of the government's rejections, there is a continued push for the Uluru Statement to come to fruition by Indigenous and non-indigenous Australians.0

In 2018 further support was given to a First Nations Voice by a Joint Select Committee, which stated constitutional recognition was the only viable pathway.0 The committee also called for further consultation regarding the Voice’s design.0 However, despite a cooperative design process beginning in 2019,0 former Prime Minister Scott Morrison indicated he would also oppose constitutionalising the Voice.0 In the face of the continued opposition from the government, the Attorney-General stated more ‘precise words’ and a draft amendment would need to be produced before the government could fully support it.0

VI THE CONTINGENCY

An ordinary legislative response to the Uluru Statement is possible. As mentioned earlier, the Interim Report made recommendations for such an action. Its non-justiciable instrument would create an obligation for Parliament to consult a First Nations Voice on any legislation that utilises the ‘race’ powers within the Constitution. It would also use the ‘special measures’ conditions within the RDA or suspend it.0 However, the legislative suggestion within the Report appears to have shifted from a significant political relationship between First Nations Peoples and Australia to a consultative group for policymakers.0 Another concern in this context is the potential loss of power for the Commonwealth. Specifically, the question is how to effectively protect and promote First Nations Peoples' interests while simultaneously having limited actions through legislative reform on discrimination.0 The fear is that this shift would overextend judicial review into what should be parliamentary power.

0 Simon Benson, ‘Bill Shorten Raising Voice a Winner with Voters: Newspoll’, The Australian (online, 20 February 2018) < https://www.theaustralian.com.au/nation/bill-shorten-raising-voice-a-winner-with-voters-newspoll/news-story/ 3d6ee299780b7ac6901df9ccdfa16cc5>.

0 Murray Goot, ‘Confused polling distorts the debate on an Indigenous Voice to Parliament’, The Conversation (online, 31 January 2022) <https://theconversation.com/confused-polling-distorts-the-debate-on-an-indigenous-voice-to-parliament175525>.

0 Katherine Murphy, ‘Essential Poll: Majority of Australians Want Indigenous Recognition and Voice to Parliament’, The Guardian (online, 12 July 2019) <https://www.theguardian.com/australia-news/2019/jul/12/essential-pollmajority-ofaustralians-want-indigenous-recognition-and-voice-to-parliament>.

0 Lorena Allam, ‘More Australians Want an Indigenous Voice Protected in Constitution, Survey Suggests’, The Guardian (online, 30 November 2020) <https://www.theguardian.com/australia-news/2020/nov/30/moreaustralians-want-anindigenous-voice-protected-in-constitution-survey-suggests>.

0 See the petition by Professor Fiona Stanley, ‘Australian Council of Social Service, Joint Statement: A Call to the Prime Minister and Australian Parliament’ <https://www.acoss.org.au/supportfirstnations/>.

0 Joint Select Committee on Constitutional Recognition Relating to Aboriginal and Torres Strait Islander Peoples, Final Report (Report, November 2018).

0 Ibid.

0 Deborah Snow, ‘Morrison Pledges Recognition But Will Take “As Long as Needed”’, Sydney Morning Herald (online, 26 May 2019) <https://www.smh.com.au/politics/federal/morrison-pledges-recognition-but-will-take-aslong-as-needed20190526-p51r80.html>.

0 Greg Brown, ‘Morrison to Veto “Voice” as Part of Constitution’, The Australian (online, 12 July 2019) <https://www.theaustralian.com.au/nation/politics/morrison-to-veto-voice-as-part-of-constitution/news-story/ c9753bbe3595470032ac7fa95636931e>.

0 Michael Pelley, ‘Public Won’t “Buy” Uluru Statement, Claims AG’, Australian Financial Review (online, 21 June 2019) <https://www.afr.com/politics/federal/public-won-t-buy-uluru-statement-claims-ag-20190620-p51zf6>.

0 Lino (n 54).

0 Jason O’Neil, ‘Designing an Indigenous Voice that empowers: How constitutional recognition could strengthen First Nations sovereignty’ (2021) Alternative Law Journal 46(3) 199-204, 201.

0 Appleby (n 77) 98.

Some scholars suggest the limitation could be directed within the ‘parliamentary process’ rather than afterwards.0 While ordinary legislation can be the instrument for a First Nations Voice, the proposal within the Interim Report does not recognise the genuine desire from the Uluru Statement, that is, the protection of their Voice from being snuffed out by future legislative changes.

A legislative voice is without ‘special status,’ has no significant input from the general public, and offers no stability or independence.0 This means that a voice through legislation can easily be removed or amended by Parliament without barriers or accountability due to its flexible nature.0 It can also be amended or overturned without First Nations consultations, simply at the whim of whoever holds a majority in both houses.0 As such, the constitutional protection of rights is pivotal to that desire and is doubtful through ordinary legislation.

VII CONCLUSION

Within everything mentioned in this paper is the unwavering importance of a clear and protected relationship between First Nations Peoples and those in different authoritative positions at all levels of government. Therefore, the only option for a First Nations Voice is to have it constitutionally enshrined, not mere legislation. The challenge that will continue to remain in seeking constitutional reform is education. Politicians and the public alike need to receive continued education about why a constitutionally enshrined Voice aligns with the heart of the Constitution.

0 Ibid.

0 Elisa Arcioni, ‘NAIDOC Week 2021: Why a legislated voice is not a “constitutionally enshrined voice to parliament”?’ Indigenous Constitutional Law (Blog Post, 05 July 2021) <https://www.indigconlaw.org/home/naidoc-week-2021-why-a-legislated-voice-is-not-a-constitutionally-enshrined-voice-toparliament>.

0 Ibid.

0 Ibid.

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