2023 Summer Edition of the University of Southern Queensland Law Society Law Review

Published by: USQLawSociety

Writing & Editing: USQ LawSocietyEditorial BoardandContributors

ISSN: ISSN2653-1100(Online)

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Although every effort has been made to verifytheaccuracyandcontentcontained within this publication, the USQ Law Society, it’s executive committee, and members disclaim all liability (except for any liability which by law cannot be excluded),foranyerror,inaccuracyin,or omission from the content or any loss or damagesufferedbyanypersondirectlyor indirectlythroughrelyingonthecontent. The USQ Law Society undertakes no responsibility to keep the content up to date.

ABOUT THIS PUBLICATION

TheUSQLawSocietyLawReviewisaforum for debate for scholars and professionals providing a modern approach to a student run, peer-reviewed journal published biannually. It presents current industry research,trends,pointsoflawandlegislative critique.

ABOUT THE USQ LAW SOCIETY

TheUniversityofSouthernQueenslandLaw 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 USQLSare:

1. To advocate our Members interests andconcerns;

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

3. To mentor our Members while creating and nurturing strong relationships. Establishedin2008,theUSQLSiscomprised 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 careerdevelopmentsessions.

AspecialthankstothefollowingforcontributingtotheUSQLSLawReview

EditorialBoard

Robyn Edmanson Editor-in-Chief

Farhan Khudir Editor

Takwa Murad Editor

Yoon Kim Editor

Contributors

Robyn Edmanson

Hayley Cohen

Farhan Khudir

Oliver Brown

Bonifacio Arribas

Fatema Nazari

Kaylene Waters

Neil Mahoney

AcknowledgementofCountry:

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 summer edition of the 2023 the UniversityofSouthernQueenslandLawSocietyLawReview.Thisisthesecondeditionof thelawjournalforthisyear.

Thiseditiontouchesonavarietyofideaswithinthelegalarena.WestartwithUS-style due process and equal protection clauses in relation to their potential inclusion in the AustralianConstitution.ThelawreviewwillthenexplorevarioustopicsincludingFirst Nations, moral wrong dilemma, religion law in the modern legal system, torts, truth findingincross-examination,legalrealism,andrenewableenergy.

Iwouldliketothankthe2023Editorialboardandmyeditor-in-chief,RobynEdmanson whosepassion,insightfuleditorialreviewandhardworkhelpedcreatetheeditiontothe highstandardthatitistoday.Iwouldalsoliketoextendmygratitudetothewhole2023 USQLawSociety executiveboard, theUniversityof SouthernQueensland’sLawSchool fortheirongoingsupportofthelawreview,andtheIpswichDistrictLawAssociationfor theirgeneroussponsorship.Withoutallofyourhelpandsupport,thiseditionofthepaper wouldnotbepossible.

Ihopethatyou,dearreader,willfindthattheeffectofthearticlesthatfollowisnotonly toshedsomelightintermsofstirringandexchanginganideainyourmindbutalsoto promptyoutothinkofwhatcomesoroughttocome next afterthat.

Iwouldliketoclosewithoneofmyfavouritequotes,fromtheU.S.SupremeCourtJustice Felix Frankfurter in United States v United Mine Workers, ‘There can be no free society withoutlawadministeredthroughanindependentjudiciary’. Theruleoflawisnottobe disregarded or diminished in bothpeaceful and at-war times. Law review publications suchasthis,Ihope,willhelpusmoveforwardtoonestepclosertoabetterfreesociety basedontheruleoflawtomorrowthantoday.

Yoursfaithfully,

YoonKim VicePresident-LawReview USQLawSocietyLawReview

(c) University of Southern Queensland

Editor-in-Chief’s Address

This edition once again presents a broad cross-section of thought-provoking historical andcontemporarylegaltopics.First,thereisacomparativeconstitutionalanalysisofthe law’s protection of Indigenous peoples’ life, liberty and property which argues rather thanentrenchingaUS-styleequalprotectionregimeinthe Australian Constitution,other optionsofferfarmoreeffectivesolutions.Thenthereisacasestudyofthe2004deathin custody of Cameron Doomadgee on Palm Island in Queensland in the context of therapeutic jurisprudence. Turning back 185 years, the Myall Creek Massacre is then assessedinthecontextofhumanitarianisminterestinIndigenouswellbeingontheone hand,andviolentdefensivereprisalontheother.

Legalethicsandlegaltheoriesareagainhighlightedasappliedtovaryingcontexts.One essayaskshowyouwouldrespondifaskedtoactunethically. Afeministethicsofcare frameworkisfirstappliedtothisquestion,thentothereal-lifeconductoflawyer,Robert Billotfromthelegalthriller, Dark Waters.Afurtheressayaskswhatrolereligionplaysin modernlegalsystemsifpositivelawisunbiased,scientific,andobjective?Thereisalso an exploration of law’s experiential life as the embodiment of the story of a nations’ centuries-olddevelopmentthroughthelensoflegalrealism.

Switchinggearstocontemporarytortsandevidencelaw,thereistheargumentthatDavid Friedman’s anarcho-capitalist theory which attempts to apply economic efficiency to torts law becomes an oxymoronic question of law and fact. Then, influential evidence scholar,JohnHenryWigmore’sfamousearly20th centurydictumthatcross-examination is ‘beyond…doubt the greatest legal engine…invented for the discovery of truth’ is reviewedinthecontextofDanHoward’scasestudyofcross-examinationin R v Milat. The final paper calls for policy makers, regulators, local government bodies, and the construction industry to adapt to anthropogenic climate change in order to avoid increasedcostsandchallenges.

AsthisissuemarksmyfinaltermasEditor-in-ChiefIwishtoconveymyheartfeltthanks fortheconsiderableprivilegeofreadingandeditingstudents’work.Myparticularthanks arereservedforYoonKimforhisdiligentco-ordinationofeachpublication,andforUSQ Law Society President Jaidyn Paroz and Treasurer Neil Mahoney for securing sponsorship,forthisandthepreviousissue,fromtheIpswichDistrictLawAssociation.

BestWishes

RobynEdmanson Editor-in-Chief

USQLawSocietyLawReview

(c) University of Southern Queensland

AN ARGUMENT AGAINST AMENDING THE AUSTRALIAN CONSTITUTION TO INCLUDE US-STYLE DUE PROCESS AND EQUAL PROTECTION CLAUSES

ROBYN EDMANSON

ABSTRACT: Applying the comparative method, this essay argues the Australian Constitution does not need entrenchment of a US-style equal protection regime to protect Indigenous minorities from government overreach. Despite its allure its application to the Australian legal landscape would prove unworkable given contrasting constitutional philosophies and power sharing arrangements. Alternative rights dialogues are required to fill the lacuna in Australia’s inadequate functional equivalents.

I INTRODUCTION

This essay applies the comparative method1 to examine differing historical and philosophical conceptions of rights in the context of the broad guarantee of due process2 and equal protection as enshrined in Amendment XIV (1868) and Amendment V (1870) to the United States Constitution 3 This US equal protection regime, specifically Amendment XIV, is compared withAustralianfunctionalequivalents4 toargueforbetterprotectionforIndigenousAustralians against state-government interference in their lives, liberty and property. However, the controversial recent ruling by the US Supreme Court in Students for Fair Admissions, Inc v President & Fellows of Harvard College5 (‘SFFA’) invalidating the race-based admissions practices of two universities highlights the difficulties of the regime’s practical application.6 In addition, despite its allure, Amendment XIV neither expressly commits to human dignity nor

1 John C Reitz, ‘How to Do Comparative Law’ (1998) 46(4) The American Journal of Comparative Law 617.

2 Mark Tushnet, The Constitution of the United States of America A Contextual Analysis (Hart Publishing, 2009) 26, 215. Tushnet traces the term ‘due process of law’ to the Magna Carta which is generally described as ‘the rule of law’ in the UK.

3 The primary clause of interest is Amendment XIV’s extension of civil rights which states: ‘No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws’; Jason L Pearce, ‘Rights Protection and Constitutional Justice: Some Comparative Reflections’ (2011) 22(3) Bond Law Review 219, 220. Pearce states many of the greatest gains of constitutional justice ‘occurred when the US Supreme Court applied the Bill of Rights to state action;’

4 Mark Tushnet, Introduction to Comparative Constitutional Law, (Edward Elgar, 2014) 4.

5 600 US 20-119 (‘SFFA’). The Supreme Court ran two cases together - one against Harvard University and the other against the University of North Carolina.

6 See, eg, Glenn Harlan Reynolds, ‘Opinion, Asians Get the Ivy League’s Jewish Treatment’, USA Today (online at November 24, 2014) <https://www.usatoday.com/story/opinion/2014/11/23/ivy-league-college-asians-race-jews-studentsdiversity-discrimination-quotas-column/19445201>. The author criticizes Harvard for imposing de facto Asian American quotas; Nancy Leong, ‘The Misuse of Asian Americans in the Affirmative Action Debate’ (2016) 64 UCLA Law Review Discourse 89, 91-92. Leong suggests the challenge was ‘an attempt to invalidate affirmative action in the guise of preventing discrimination.’

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to socioeconomic rights other than the right to property.7 For these reasons it should be eschewed in favour of changes to Australia’s rights dialogue.8

The first option for change is to alter Australia’s constitutional capacity to discriminate on the basis of race. The second option is for a more nuanced approach to constitutionalism focussed on alternative nodes of power from the subsidiarity principle that gives rise to a right to selfdetermination for minorities.9 Highlighting this potential was the recent decision to favour Indigenous rights in WesternAustraliaovermining rights bytheUNHumanRights Committee of the International Covenant on Civil and Political Rights (‘ICCPR).10 Finally, incorporation of international law principles similar to those within the Canadian Charter of Rights and Freedoms11 would provide an overarching guarantee against racial discrimination in the absence of either a Human Rights Act or Bill of Rights at the federal level.

II US-STYLE EQUAL PROTECTION IN OPERATION

SFFA highlights a number of differences between the Australian and US equal protection regimes to argue against its adoption in Australia. In SFFA a non-profit group of Asian American students successfully challenged Harvard University’s race-conscious admissions programs finding a breach for racial discrimination under Title VI of the Civil Rights Act (1964).12 In so doing it overturned a series of cases from Brown v Board of Education (‘Brown’)13 which validated affirmative action to allow a narrow form of racial discrimination in university settings.14 Grutter v Bollinger (‘Grutter’)15 had previously established that equal protection is not absolute but must undergo a two-step examination to justify formally unequal

7 Rosalind Dixon, ‘Partial Bill of Rights’ (2015) 63(2) American Journal of Comparative Law 403, 407. Dixon contends the due process clause of Amendment XIV was ‘quite broad’ initially from the perspective of social and political commitments to racial equality and echoes that of Amendment V which only applies to federal government action.

8 Benjamin Gussen, ‘Australian Constitutionalism Between Subsidiarity and Federalism,’ Monash University Law Review (2016) 42(2) 383. Gussen ‘s argument is that a more nuanced model of constitutional power sharing arrangements is required where power is located at the lowest level within the federalist structure.

9 Ibid.

10 Lauren Croft, ‘UN Human Rights Committee Rules in Favour of First Nations People’, Lawyers Weekly (online 16 August 2023) https://www.lawyersweekly.com.au/biglaw/37937-un-human-rights-committee-rules-in-favour-of-first-nationpeoples

11 Canada Act 1982 (UK) cl 11, sch B, s 35.

12 ‘Equal Protection – Affirmative Action – First Circuit Holds That Harvard’s Admissions Program Does Not Violate the Civil Rights Act – Students for Fair Admissions, Inc v President & Fellows of Harvard College, 980 F.3d 157 (1st Cir. 2020)’ (2021) 137(7) Harvard Law Review 2630 (‘Equal Protection’).

13 347 US 483 (1954) (‘Brown’).

14 Students for Fair Admissions, Inc v President & Fellows of Harvard College 980 F.3d 157 (1st Cir. 2020). The First Circuit ruled that Harvard’s admissions program was legal.

15 539 US 306, 326 (2003) (‘Grutter’).

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treatment based on substantively unequal access to prestigious universities for Black and Hispanic applicants.

The first question for the court in SFFA was whether racial classification in university admissions was used to further compelling government interests.16 The second question was whether the government’s use of race was narrowly tailored or necessary to achieve these legitimate government interests. Following Grutter the Supreme Court in SFFA compared all those favoured by a racial preference to those not favoured.17 However, in Grutter the court established the limitation that at some point these programs must end after having achieved their purpose which partially explains the reason for their constitutional validity. The plaintiffs in SFFA, however, successfully argued invalidity when examining Amendment XIV’s plain language. By a majority of 6 to 2 the Supreme Court agreed, reflecting a sharp turn away from race-conscious integration for US equal protection jurisprudence towards an ideology of colour-blindness.18

III COMPARATIVE JURIDICAL TRADITIONS AND PRACTICES

While the judiciary laudably established its prohibition against racial discrimination in school settings in Brown to rise ‘above political struggle and inertia to achieve powerful lucidity’

19 the benefits of strong judicial review20 is arguably outweighed by its less than desirable complexity and unworkability in practice.21 State interference on issues such as affirmative action stirs deep fears and distrust, the seeds of which were sown into the nation’s psyche since theAmericanfrontierclosedandthe Civil War endedin 1865.22 Theseevents shapedthesociopolitical preference for individualism which produces a sharp public/private divide encouraging endless claims of autonomy and rights over the common good.23

The SFFA decision also raises the criticism of un-elected judges undertaking a ‘moral reading’ of the Constitution 24 Judges are required to balance conflicting interests without limitation on

16 Both the District and First Circuit courts engaged with the question of whether SFFA’s evidence of discrimination against Asian American applicants should cause Harvard’s admissions program to fail the strict scrutiny test.

17 ‘Equal Protection’ (n 12).

18

David Schraub, '(The Limits of) Judicial Resegregation' (2023) 58(1) Harvard Civil Rights-Civil Liberties Law Review 311. Schraub argues the law should pay no heed whatsoever to racial categories.

19 Robert Nagel, ‘American Judicial Review in Perspective’ in Tom Campbell, Jeffrey Goldsworthy and Adrienne Stone (eds), Protecting Rights Without a Bill of Rights (Ashgate, 2006) 226, 227.

20 Marbury v Madison 5 US 137 (1803). This seminal case established the power of judicial review as a fundamental of constitutionalism.

21 Frank Brennan, ‘Thirty Years On, Do We Need a Bill of Rights’ (1996) 18(2) Adelaide Law Review 123, 139.

22 Nagel (n 19) 236.

23 David Hollenbach, Claims in Conflict: Retrieving and Renewing the Catholic Human Rights Tradition (Paulist Press, 1979) 152. Hollenbach contends the common good means ‘the social, economic and political conditions which are necessary to assure…social and political participation for all.’

24 Ronald Dworkin, Taking Rights Seriously (Duckworth Press, 1977).

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the rights and liberties leading to the regrettable vertical routinization of unequal enforcement across a range of settings.25 That is, equal protection first applied in the university setting is then applied in analogous settings descending to judicial mandate at every societal level.26 SFFA demonstrates that as admirable as the Brown decision was to vindicating high ideals, strong judicial review has led to judicially mandated resegregation causing political damage to the extent of exacerbating rather than quelling cultural division.27

However, what equal protection jurisprudence post Brown emphasizes, in the context of its potential transference to the Australian legal landscape, is ‘the importance of building constituencies who can leverage non-judicial nodes of power to effectuate necessary change.’28 Juridical practice in Australia, on the other hand, has arguably involved a more cautious rights dialogue focussing on freedoms from government overreach which has served to depoliticize rather than inflame public debate.29

IV CONTRASTING RIGHTS DIALOGUES

As SFFA highlights, while guarantees of the right to equal protection crystallize in individual liberties, Australia’s rights dialogue has favoured freedoms from government power. This is explained by differing historical constitutional traditions. While each constitution established the powers of their respective governments, they also set out their limitations in power sharing structures to reflect the values of the polity to which each document applies.30 The US constitutional founders were heavily influenced by contemporary libertarian and individualist philosophies whereas Australia’s egalitarian political culture, as embodied in the emblematic ‘fair go’31 was due largely to the primary role played by Benthamite utilitarianism, legalism and positivism.32 As Sir Owen Dixon pointed out, the combined processes of parliamentary

25 Nagel (n 19) 227.

26 Ibid.

27 Ibid 236.

28 Schraub (n 18) 337.

29 Anthony Mason, ‘A Bill of Rights for Australia?’ (1989) 5 Australian Bar Review 79, 83; Cf Adrienne Stone, ‘The Freedom of Political Communication since Lange’ in Adrienne Stone and George Williams (eds), The High Court at the Crossroads: Essays in International Law (The Federation Press, 2000) 19-20. Stone argues in the context of the High Court’s reasoning in Lange ‘the preclusion of more overtly value-laden reasoning will simply suppress articulation of the values on which the Court relies leaving the way open for future courts to take another path without reference to values that would effectively justify the narrowing of the doctrine that Lange seeks.’

30 Christine Sypnowich, 'Ruling or Overruled - The People, Rights and Democracy' (2007) 27(4) Oxford Journal of Legal Studies 757.

31 Brennan (n 21) 36.

32 Zelman Cowan, ‘Comparison of the Constitutions of Australia and the United States,’ (1955) 4(2) Buffalo Law Review 155, 174; Hugh Collins, ‘Political Ideology in Australia: The Distinctiveness of a Benthamite Society’ (1985) Daedalus 147, 149. Collins contends that ‘in an ideology faithful to Bentham’s system, natural rights will be an alien culture.’

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representative democracy and responsible government were considered sufficiently rights protective, precluding the need for a Bill of Rights.33

However, the Australian Constitution does contain a few scattered express provisions34 and implied rights, remaining mostly as written in 1901.35 At the time of the Australian Convention debates in the 1890s the founding fathers were influenced by both the UK and US models and by legal jurist AV Dicey’s notion of parliamentary supremacy to make any valid legislation.36 In addition prominent constitutional commentator, James Bryce, imbued healthy scepticism on the need for written express rights.37 Whilst Diceyan theory of parliamentary supremacy was popular in the 19th century it was not, however, fully adaptable to a written Constitution which limits the ability of parliaments to make laws.38

On the other hand, one of the reasons the founders of the United States Constitution were sensitive to human rights issues, manifesting in the Bill of Rights instrument in 1791, was its submission to British colonial rule at the time.39 There were prohibitive taxes on citizens as the UK sought to finance expensive wars in the mid-18th century. However, by the late 18th century there were severe human rights restrictions in the US including no jury trials which severely restricting due process and the rule of law. The cumulative effect of these rights violations lad to theAmerican War of Independencein 1776; andenactment ofthe United States Constitution in 1789 which was updated quite substantially in the enactment of the Bill of Rights. When citizens of a country have experienced egregious breaches it is unsurprising that the US founders sought to enshrine fundamental human rights. They agreed their new government should embrace Montesquieuan principles that constitutional power should be strictly separated across its three constitutional arms - the executive, the legislature and the judiciaryas a check on each.40

33 Owen Dixon, ‘Two Constitutions Compared’ (1942) 28(11) American Bar Association Journal 733, 734.

34 Australian Constitution s 41 (right to vote); s 80 (trial by jury); s 116 (freedom of religion); s 117 (rights of out-of-state residents); s 75(v) (right to review of government action); s 92 (freedom of interstate trade); s 51 (xxxi) (acquisition of property on just terms). Apart from ss 92 and 117, these express rights only apply to commonwealth laws and not to laws passed by state parliaments.

35 Nick O’Neill, ‘Constitutional Human Rights in Australia’ (1987) 7 Federal Law Review 85.

36 AV Dicey, Introduction to the Study of the Law of the Constitution (Macmillan, 10th ed, 1959).

37 James Bryce, The American Commonwealth (Macmillan, 3rd ed, 1912).

38 Australia should acknowledge that the UK Parliament, as part of acceptance of the European Convention of Human Rights is able to declare laws incompatible because it is empowered to interpret legislation as incompatible to this convention. It is, however, unclear post-Brexit whether the UK Parliament will amend or repeal the Human Rights Act (1988) (UK).

39 Cowan (n 32) 174.

40 Charles de Montesquieu The Spirit of Laws Book XI: Of the Laws Which Establish Political Liberty with Regard to the Constitution (1748) 6; Sir William Blackstone, Commentaries on the Laws of England (1765-1769) 1, 269. ‘…’in this distinct and separate existence of the judicial power in a peculiar body of men, nominated, indeed, but not removeable at pleasure, by the Crown, consists one main preservative of the public liberty; which cannot subsist in any state, unless the administration of common justice be in some degree separated both from the legislative and also from the executive power’.

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Influenced by the enlightenment theories of John Locke urging protection of individual liberties, echoing in the legal writings of Blackstone,41 these revolutionary philosophies on government particularly captivated the United States constitutional founders to the extent that every person has the fundamental right to the pursuit of life, liberty and property. These individuallibertiesweresocrucialthatnoparliamentorelectedbodycouldinterferewiththem, requiring enshrining in the Bill of Rights instrument. These liberties reflect a social contract between the people and the limited mandate of the sovereign, Congress or Parliament as the case may be.42 That is, whatever the type of elected body, it cannot simply legislate these liberties and freedoms away because they are so fundamental to society and to the human beings within.43 This has inevitably led, however, to the horizontal spread of a comparatively strong form of judicial review which shapes US political culture.44

V CONSTITUTIONAL IMPLICATIONS FROM FEDERALISM

In contrast to the United States Constitution’s absence of power sharing provisions, Australia’s common law principle of federalism,45 as implied from the text and structure of the Constitution, is that within the federal structure the states enjoy a measure of autonomy precluding the exercise of commonwealth power.46 Australia’s strong comparative federalist structure, worked out in the enumerated powers of ss 51 and 52 which limit centralisation,47 means the states enjoy plenary law-making powers subject to commonwealth veto.48 This may partially explain the rise in ‘judicial activism’ in the US, which essentially allows the courts the final word because of the stronger separation of powers between the legislature and the

41 John Locke, Two Treaties of Government and a Letter Concerning Toleration, Ian Shapiro (ed) (2003). The social contract theory between individuals and the sovereign exchanges trust in return for specific undertakings to protect their life, liberty and estate.

42 Sypnowich (n 30) 759. The author argues that since Locke the idea of constitutionalism involves a social contract as ‘an agreement among citizens which founds a legal and political order.’

43 Stanley N Katz, ‘The Strange Birth and Unlikely History of Constitutional Equality’ (1988) 75(3) The Journal of American History 747, 752. Katz argues that by grounding of the notion of equality in the social contract ‘served as a limitation upon the idea's reach, because it tended to focus analysis on political participation, on equality of citizenship, and away from social and economic equality.’

44 Nagel (n 19) 226.

45 Melbourne Corporation v The Commonwealth (1947) 74 CLR 31, 82 Dixon J observed ‘the Constitution is a political instrument’ meaning all constitutional cases have political consequences.

46 Harrison W Moore, The Constitution of the Commonwealth of Australia (Legal Books, 1997) 68.

47 Gussen (n 8); Brian Galligan, ‘Australia’s Political Culture and Institutional Design’ in Phillip Alston (ed), Towards an Australian Bill of Rights, (Human Rights and Equal Opportunity Commission) 68. Galligan argues that a Bill of Rights for Australia would provide a counterbalance to calls for increased centralisation of power.

48 Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 (Knox CJ, Isaacs, Rich and Starke JJ). In a joint majority judgment this seminal case is authority for the literal or ‘golden rule’ of statutory interpretation that the Constitution’s words are to be construed in their ordinary sense establishing that in the event of conflict, state powers are limited by the extent of the commonwealth’s veto power of s 109.

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executive.49 By contrast, the Australian High Court has long held that while the Constitution, particularly ChIII concerning ‘the judicature’, also demands the strict separation of powers, it has arguably shown greater adherence to common law practices and norms to act more prudently as a qualifier on juristic enthusiasm.50

VI LIMITED HUMAN RIGHTS PROTECTIONS

Despite global pressure, Australia retains its exceptionalism in human rights jurisprudence.51 While the aftermath of World War Two saw a renewed global push for human rights, culminating in a raft of human rights instruments, including the Universal Declaration of Human Rights to which Australia is a signatory, it has no validity as it is yet to be enacted in legislation. A Bill of Rights either entrenched or by legislative enactment is one possible solution as a protector of universal rights possessed by all members of the community.52

The only rights-protective mechanisms at the disposal for Australian citizens from parliamentary overreach are democratically elected representative government, limited rights protections afforded by ChIII courts,53 and common law principles. Dicey’s remedy for laws offensive to human rights is the citizen’s rights at the ballot box to change governments, reasoning that parliament is accountable to the people and would not pass laws invasive of human rights. He believed the rule of law to be the other remedy against abuses of power.54 Constitutional protection of individual rights is, however, a frail shield because parliament

49 Cowan (n 32) 164.

50 Nagel (n 19) 236.

51 Michael Kirby, ‘Implications of the Internationalisation of Human Rights Law’ in Philip Alston (ed), Towards an Australian Bill of Rights (Human Rights and Equal Opportunity Commission, 1994) 268; Daniel Reynolds and George Williams, A Charter of Rights for Australia (University of NSW Press, 2017) 84. The authors contend a charter of rights would be the catalyst for a new rights dialogue and would provide consistency of laws and government action.

52 Jeremy Webber, ‘A Modest (but Robust) Defence of Statutory Bills of Rights’ in Tom Campbell, Jeffrey Goldsworthy and Adrienne Stone (eds), Protecting Rights Without a Bill of Rights (Ashgate, 2006) 265. Webber argues that opponents of both statutory or entrenched bills of rights is that they fear a ‘wholesale and open-ended transfer of decision-making to the courts.’

53 Linda J Kirk, ‘Chapter III and Legislative Interference with the Judicial Process: Abebe v Commonwealth and Nicholas v The Queen’ in Adrienne Stone and George Williams (eds), The High Court at the Crossroads: Essays in Constitutional Law (The Federation Press, 2000) 119-141. Kirk argues Abebe and Nicholas demonstrate that the separation of judicial power is a potential source of individual rights; Leslie Zines, ‘The Present State of Constitutional Interpretation’ in Adrienne Stone and George Williams (eds), The High Court at the Crossroads: Essays in Constitutional Law (The Federation Press, 2000), 226. Zines contends ChIII as a source of rights is clearest in Cole v Whitfield where Justices Deane and Toohey declared ‘the people’ as sovereign and ‘would have taken this judicial trend to an extent that the rest of the Court would not follow. Going beyond ‘test and structure’, those justices, like Murphy J before them, relied on sources outside the Constitution to erect restraints on power, such as the supposed assumptions of the founders and Dr Bonham-type notions of fundamental common law restricting legislative power. Their only practical application of this method of interpretation, however, was a minority holding that there was a right of equality implied in the Constitution.’

54 Cf Megan Davis, ‘Chained to the Past: The Psychological Terra Nullius of Australia’s Public Institutions’ in Tom Campbell, Jeffrey Goldsworthy and Adrienne Stone, Protecting Rights Without a Bill of Rights (Ashgate, 2006) 175. Davis argues that far from protecting Indigenous rights, parliamentary democracy has operated to preclude the exercise of Indigenous sovereignty, customary law and traditional native title rights relegating Indigenous peoples to a ‘perennial footnote to Australia’s record as a civil and humane liberal democracy.’

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often clearly expresses its intention to abrogate fundamental rights,and when it does the court is hamstrung in interpreting legislation otherwise.55

Moreover,theHighCourthasgenerallynotbeenstronglyprotectiveofthosefewexpressrights that have been included in the Constitution. The following cases, however, demonstrate that it can reach rights protective conclusions through interpreting the words of legislation applying the principle of legality. Whilst it is a principle of statutory interpretation it has particular relevance in relation to human rights. Established early in Potter v Minahan56 the presumption is that legislation does not abrogate or trample on fundamental civil liberties.57 For a law to be held invasive of fundamental human rights it will be relevant for the High Court to assess whether the law is within a head of power. For example, the law in the Australian Communist Party v The Commonwealth case58 was based on the defence power purportedly allowing the Governor-General to declare an organisation to be criminal. In this case the High Court invalidated the Communist Party Dissolution Act 1950 (Cth) which sought to restrict the civil liberties of persons declared by the government to be dangerous which potentially restricted everyone’s civil liberties. While the Australian Communist Party case did not articulate very strong protections of human rights, the court determined whether there was a head of power to support the law. Similarly in Davis v The Commonwealth, 59 the High Court examined the breadth of the legislation which prohibited symbols and expressions associated with the bicentennial celebrations from being used outside of that context. While the court found the legislation trampled on established freedoms this was only relevant for determining the scope of the inherent nationhood power.60

While rights relating to natural justice, right to a fair trial, rights of the accused, procedural fairness, and the right to seek redress or a legal remedy are protected in human rights law61 there is currently no direct frame of reference on basic questions of human rights in Australia.62 Further, nospecifichumanright orindividualguaranteehas beenlocatedin ChIIIby amajority

55 See, eg, Commonwealth v Kruger (1997) 190 CLR 1 (‘Kruger’); Kartinyeri v The Commonwealth (1998) 195 CLR 337 (‘Kartinyeri’); Western Australia v Ward (2002) 213 CLR 1.

56 (1908) 7 CLR 277.

57 Ibid [304] (O’Connor, Isaacs and Higgins JJ) stated ‘it is improbable that the legislature would overthrow fundamental principles, infringe rights or depart from the general system of law without expressing its intention with irresistible clearness.’

58 (1951) 83 CLR 1 (‘Australian Communist Party’).

59 (1988) 166 CLR 79 (‘Davis’).

60 Ibid 94 (Mason CJ, Deane and Gaudron JJ) The court observed the commemoration of the bicentenary is ‘pre-eminently the business and the concern of the Commonwealth as the national government and as such falls fairly and squarely within the federal executive power’ and considered the interests of the states ‘of far more limited character.’

61 See, eg, the ICCPR identifies these in Arts 9, 10, 11, 14, 15 and 16.

62 Reynolds and Williams (n 51) 84.

of the High Court despite its potential.63 For example, the implied freedom of political communication is based on the text and structure of the constitution, particularly ss 7, 24, 64, 128.64 In Lange v Australian Broadcasting Corporation65 the High Court drew the distinction between ‘freedoms’ from state action and the abridgment of ‘rights’ validating the freedom only for the effective operation of the system of responsible and representative government. This has important implications for minorities such as Indigenous Australians who cannot rely on parliaments or the common law to protect their rights because they constitute a minor statistical portion of the population.66 This has resulted in their rights being ‘subject to the ideological fashions and the governing political party of the day.’67

VII THE FRAILEST OF SHIELDS FOR MINORITIES

Although similarly emerging in an optimistic and rational age, Australia’s human rights experience was not borne out of a struggle for freedom, but evolved across the next two hundred or more years. The socio-political context for the founding constitutional drafters was the concern for the defence of the continent, enabling free trade and breaking down residual colonial barriers among thestates.68 AsformerChiefJusticeSirOwenDixonsaid thefounders’ experience had not shown them the need for an express Bill of Rights, therefore, Australia does not have one.69

While the few scattered rights the constitution does contain are considered of low status, the Convention debates revealed that by not entrenching a rights chapter or Bill of Rights the founders expressed ‘a desire to maintain race-based distinctions when it came to ‘Chinamen, Japanese, Hindoos, and other barbarians’.70 Evidently, the founders were not as preoccupied with human rights as they were with defence and taxation matters.71 For example, neither of the two 1890s convention debates included any women, ethnic minorities or representatives of Australia’s Indigenous peoples who were believed, based on a discredited scientific theory, to

63 Fiona Wheeler, ‘The Doctrine of Separation of Powers and Constitutionally Entrenched Due Process in Australia’ (1997)

23 Monash University Law Review 248; Wendy Lacey, ‘Inherent Jurisdiction, Judicial Power and Implied Guarantees under Chapter III of the Constitution’ (2003) 31 Federal Law Review 57, 85-6.

64 Lange v Australian Broadcasting Commission (1997) 189 CLR 520 (‘Lange’).

65 Ibid.

66 Davis (n 54).

67 Ibid 8.

68 John Quick and Robert Garran, The Annotated Constitution of the Australian Commonwealth (LexisNexis Butterworths, rev ed, 2015).

69 Dixon (n 33).

70 Official Record of the Debates of the Australasian Federal Convention: 1891–1898, Melbourne, 3 March 1898, 1784 (Dr Quick).

71 George Williams and David Hume, Human Rights Under the Australian Constitution (Oxford University Press, 2013) 54. The authors contend ‘customs duties, tariffs, and the capacity of the upper house of the federal Parliament to veto money bills were of far greater concern to the Convention delegates than protecting human rights.’

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be dying out.72 This meant Indigenous Australians lacked any future institutional inclusion in building the new Australian nation. Moreover, the Constitution referred to Indigenous Australians in only negative terms by the races power in s 51(26). As drafted73 this clause was intended for the commonwealth to allow restrictions on the liberty and rights of some sections of the community because of their race74 and state governments were expected to pass laws for Indigenous peoples.75

Despite substantial ambitions for the introduction of an equal protection clause based on Amendment XIV of the US Constitution by Tasmanian Attorney-General Andrew Inglis Clarke, it did not eventuate. According to Quick and Garran, writing in 1901, s 110 as it was drafted, provided recognition of Australian citizenship while preventing ‘federal and state parliaments from discriminating on the basis of race.’76 Section 117, which merely prevents discrimination on the basis of a citizen’s state residence, was entrenched in the Constitution instead. Quick and Garran argued s 110 could have blunted the effect of s 51(26) so that the commonwealth parliament could not ‘make laws with respect to the people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws’.77 As one early High Court member said while there was no discrimination in Western Australia based on residence or citizenship, it would prevent ‘Asiatics or African aliens’ from obtaining miners’ rights in that state.78

Thecapacityforthe Constitution to discriminatebasedon raceis further reflectedin s 25which allowsittoeffectivelydisallowAboriginal peopletobecountedinthecensus.The Constitution was also found to restrict the broader freedom of religion and movement in Kruger v The Commonwealth (‘Kruger’).79 In addition, the commonwealth’s use of the races power as intended by the framers was used by the Howard government in Wik Peoples v Queensland

72 George Williams, ‘Removing Racism from Australia’s Constitutional DNA’ (2012) 37(3) Alternative Law Journal 151.

73 Quick and Garran (n 68) 1292 point out s 51(26) as drafted in 1901 stated ‘the people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws;’ In Kartinyeri (n 55) it was noted the 1967 referendum saw the removal of the words ‘other than the aboriginal race in any State’ from s 51(26).

74 See, eg, the Immigration Restriction Act 1901 (Cth) which enabled the White Australia Policy prohibiting immigration into Australia of any person who, when asked by an officer, was unable to ‘write out at dictation and sign in the presence of the officer a passage of fifty words in length in a European language directed by the officer.’

75 Megan Davis and George Williams, Everything You Need to Know about the Referendum to Recognise Indigenous Australians (NewSouth Publishing, 2015) 3.

76 Quick and Garran (n 68). Section 110 stated: ‘The citizens of each state, and all other persons owing allegiance to the Queen and residing in any territory of the Commonwealth, shall be citizens of the Commonwealth, and shall be entitled to all privileges and immunities of citizens of the Commonwealth in the several states; and a state shall not make or enforce any law abridging any privilege or immunity of citizens of the Commonwealth, nor shall a state deprive any person of life, liberty, or property without due process of law, or deny to any person within its jurisdiction the equal protection of its laws.’

77 Ibid 622.

78 Official Record of the Debates of the Australasian Federal Convention: 1891–1898, Melbourne, 3 March 1898, 1801 (Henry Bourne Higgins J).

79 Kruger (n 55).

University of Southern Queensland

(‘Wik’)80 to deny Aboriginal women access to a traditional sacred site. An inconclusive High Court left the scope of enactment of the races power open to the commonwealth to pass negative laws for Indigenous peoples.

VIII AUSTRALIA’S INADEQUATE FUNCTIONAL EQUIVALENTS

There is currently no capacity for individuals subject to human rights abuses to hold governments to account.81 This means ‘Australia has a unique set of national constitutional arrangements whereby Parliament is the only body capable of engaging in processes of rights protection that extend across the full ambit of human rights.’82 On the other hand, despite its applicability to commonwealth laws only, the Racial Discrimination Act 1975 (Cth) (‘RDA’) has substantially impacted Australian law as broadly analogous to an equal protection clause. For example, the RDA formed the essential basis for recognition by the High Court that Aboriginal title had survived, and could still survive, state government efforts to extinguish it in Mabo and Others and the State of Queensland (No 2).83 It again played an important role in Wik84 insubsequent attemptstoamendthe Native Title Act 1993 (Cth).Whileabroadguarantee of equal protection is mirrored in each Australian jurisdiction with two regimes of antidiscrimination or equality legislation specifically devoted to rights and equality protection,85 these are designed to achieve formal equalities and do not adequately address the systemic discrimination or promote substantive inequality.86 Their failure to protect small and powerless Indigenous minorities highlights the need for non-traditional nodes of power encompassed in alternative rights dialogues.

IX SOLUTIONS FROM ALTERNATIVE POWER SOURCES

The principle of subsidiarity is an alternative conception of rights so that constitutions should rest with the lowest level of government and, if properly arranged, should allow for corrected power sharing within federalist structures. The idea that constitutions should facilitate decision making at a level closest to the people, and thereby halt centralised power, resonates in the international instruments to which Australia is a signatory.87 For example, the recent finding

80 (1996) 187 CLR 1 (‘Wik’). The High Court was split 2:2 on this issue and so it remains open for the commonwealth to discriminate against Indigenous Australians on racial grounds.

81 The Attorney-General’s Department, Human Rights Scrutiny (Web Page) https://www.ag.gov.au/rights-andprotections/human-rights-and-anti-discrimination/human-rights-scrutiny. The Parliamentary Joint Committee on Human Rights merely scrutinises, but does not enforce, incompatibility with ‘Bills and other legislative instruments.’

82 George Williams and Daniel Reynolds, 'The Operation and Impact of Australia's Parliamentary Scrutiny Regime for Human Rights' (2015) 41(2) Monash University Law Review 469, 470.

83 (1992) 175 CLR 1.

84 Wik (n 80).

85 See, eg, Sex Discrimination Act 1984 (Cth), Disability Discrimination Act 1992 (Cth) and the Age Discrimination Act 2004 (Cth) which typically prohibit discrimination in the areas of housing, education and employment.

86 Davis (n 54) 189.

87 See especially, the International Covenant on Civil and Political Rights (‘ICCPR’).

by the UN Human Rights Committee of the ICCPR that in building on and mining a parcel of land belonging to Indigenous Australians in the Pilbara, Australia was found to have breached its international human rights obligations. Applying principles of subsidiarity this decision recognises an alternative conduit for power that lies in a right to self-determination for minorities as sharing in, rather than divided by, sovereignty.88 Although not binding on Australia, this decision demonstrates the potential for increased international pressure from alternative nodes of power on traditional constitutional presumptions.89

Further, ss 25 and 51(26) should not only be deleted from the Constitution, an overarching freedom from racial discrimination should also be enacted. This type of guarantee has become standard for other comparable nations.90 While this would protect Indigenous Australians, it would also protect all people against discrimination on racial grounds. The freedom should generally have a wide operation to federal, state and territory government action. However, there is the possibility, as the SFFA decision has shown, that the High Court may interpret such a freedom to strike down laws affecting affirmative action programs in Australia. Nonetheless, this could be avoided if the new law is subject to a savings clause as is available under s 15(1) of the Canadian Charter of Rights and Freedoms 1982.91 An equivalent clause would enable the High Court to determine whether laws and programs such as affirmative action are consistent or can be challenged for breach of the guarantee.

X CONCLUSION

Australia’s federal democratic arrangements were not designed to protect statistical irregularities such as Indigenous Australians92 who are inevitably negatively affected by majoritarian democratic rules and policies.93 Rather than fill the lacuna left by Australia’s inadequate equality landscape by entrenching a US-style equal protection regime, what is required is a more effective rights dialogue. Transferal of the US equal protection regime to Australia’s legal landscape would prove unworkable and complex because of competing constitutional philosophies that from the utilitarian perspective the ends justify the means, while individualism requires government to refrain from overreach into people’s lives, liberties

88 Gussen (n 8) 384.

89 See especially Newcrest Mining (WA) Ltd v The Commonwealth (1997) 190 CLR 513, 655-7. Kirby J stated that while international principles are not binding on Australian law, where there is ambiguity in the Constitution ‘this court should adopt that meaning which conforms to the principles of fundamental rights rather than an interpretation which would involve a departure from such rights.’

90 Reynolds and Williams (n 51) 16-17. The authors argue that the best measure for comparison with Australia on how well rights are protected are from countries with a similar political tradition and resources such as Canada, New Zealand, the United Kingdom and the United States, all of which have either an entrenched or statutory Bill of Rights.

91 Section 15(1) of the Canadian Charter of Rights and Freedoms 1982 s states ‘Every individual is equal under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.’

92 Kartinyeri (n 55). Kartinyeri highlights the problem of parliamentary supremacy for Aboriginal people which represent a minority of Australian electors so are, by definition, less likely to affect legislative change that protects their rights, freedoms and interests.

93 Hillary Charlesworth, Writing in Rights (University of NSW Press, 2002) 39.

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and property. Required instead is removal of the Australian Constitution’s capacity to discriminate on the basis of race; recognition of a right to self-determination for minorities based on a revised view of constitutionalism; and enactment of an overarching guarantee of equal protection - an unexceptional instrument among comparable nations. Whilst Australian common law principles protect human rights to a limited extent, the constitutional shield is frailest for minorities as parliaments can and do withdraw fundamental civil liberties such as the right to equal protection under the law.

(c) University of Southern Queensland

DREAMING OF INDIGENOUS JUSTICE HAYLEY

COHEN

ABSTRACT: While therapeutic jurisprudence is increasingly popular in the Australian legal system its benefits are still not fully embraced. This essay asks whether therapeutic jurisprudence is a worthy inquiry in the context of the 2004 death in custody of Indigenous Palm Islander Cameron Doomadgee (‘Mulrinji’).

I INTRODUCTION

Therapeutic jurisprudence is increasingly popular in the Australian legal system. However, many still doubt its appropriateness and claimed benefits.1 So, is therapeutic jurisprudence a worthy inquiry that leads to ‘a more comprehensive, humane and psychologically optimal way of handling legal matters?’2 To explore this question, a case study on the Palm Island death in custody will examine some of the disparities between the treatment of Indigenous and nonIndigenous offenders in the mainstream courts. This paper also uses ‘therapeutic jurisprudence principles and postcolonial frameworks’ to assess whether Indigenous Sentencing Courts achieve their intended aims and what further work is needed.

II THERAPEUTIC JURISPRUDENCE

Therapeutic jurisprudence studies ‘the role of the law as a therapeutic agent.’3 Political and legal institutions create normative behaviour, class structure and social reality. Consequently, the law can produce 'therapeutic and anti-therapeutic effects' on particular members of society. Therapeutic jurisprudence takes a multidisciplinary approach to explore and assess ‘whether the law can be made and applied in a way that leads to emotional and psychological wellness.’4

To gain a fuller understanding of therapeutic jurisprudence and how it works in practice, we must first travel to Palm Island, a small town in northern Queensland. Most of the community members of Palm Island are descendants of the Indigenous people who were forcibly removed from their families and traditional lands by government officials, including the police. Palm

1 Michael King, ‘Therapeutic Jurisprudence in Australia: New Directions in Courts, Legal Practice, Research and Legal Education’ (2006) 15 Journal of Judicial Administration 129, 134, 139-40 (‘Therapeutic jurisprudence’).

2 Ibid 141; Ian Freckelton, ‘Therapeutic Jurisprudence Misunderstood and Misrepresented: The Price and Risks of Influence’ (2008) 30 Thomas Jefferson Law Review 575, 578; Susan Daicoff, ‘The Role of Therapeutic Jurisprudence within the Comprehensive Law Movement' in Dennis Stolle, David Wexler and Bruce Winick (eds), Practicing Therapeutic Jurisprudence (Caraolina Academic Press, 2002) 465.

3 David Wexler, ‘Therapeutic Jurisprudence: An Overview’ (2000) 17(1) Thomas M Cooley Law Review 125, 125.

4 Ibid; Michael King, ‘What Can Mainstream Courts Learn from Problem-Solving Courts’ (2007) 32(2) Alternative Law Journal 91, 91 (‘Mainstream Courts’).

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Island was one of Australia’s most punitive reserves.5 Palm Island has maintained much of its colonial position.6

In 2004, Senior Sergeant Christopher Hurley arrested Indigenous Palm Islander Cameron Doomadgee (‘Mulrunji’) for swearing. Forty-five minutes later, Mulrunji is found dead in a police cell with bruising to the back of the head and jaw, abrasion on the right eyebrow, four broken ribs, a ruptured portal vein and his liver almost cleaved in two.7 Hurley was charged with manslaughter. He denied any foul play claiming Mulrunji’s death was the result of a ‘fall’ . 8

The officers who investigated Mulrunji’s death were Hurley’s close friends.9 Hurley had a history of violence against Indigenous people. However, the complaints were deemed 'fictionist' and were never put to the jury.10 Indigenous Palm Islander Roy Bramwell was at the police station at the time of Mulrunji’s death and saw Hurley violently assault Mulrunji.11 Bramwell was found to be an unreliable witness and did not testify.12 In 2007, an all-white jury acquitted Hurley of all charges.13

The anti-therapeutic effects of the way the matter was handled reverberated through the community. There was immense outrage and sadness over the death of Mulrunji and the continual lack of justice for Indigenous Australians.14 Over 500 Indigenous people have died in custody. Not one police officer has been found guilty or faced imprisonment over these deaths.15

5 Sarah Keenan, ‘A Blue Wristband View of History – The Death of Mulrunji Doomadgee and the Illusion of Postcolonial Australia’ (2009) 34(4) Alternative Law Journal 248, 249-50 (‘Keenan’); Chloe Hooper, The Tall Man: Death and Life on Palm Island (2008) 13:00- 14:20 (‘Hooper’); ‘Palm Island’ Queensland Government (Web Page, 21 March 2018) <https://www.qld.gov.au/firstnations/cultural-awareness-heritage-arts/communityhistories/community-histories-n-p/community-histories-palm-island>.

6 Keenan (n 5) 249; Hooper (n 5) 13:10-13:40, 21:17-21:23.

7 Inquest into the Death of Mulrunji (Brian Hine, Coroner, 14 May 2010) 2; Inquest into the Death of Mulrunji (Christine Clements, Coroner, 27 September 2006) 14; Hooper (n 5) 9:15-10:13, 29:27-30:00.

8 Hooper (n 5) 30:42-30:49, 30:00-30:39.

9 Wotton and Others v Queensland and Another (No 5) [2016] FCA 1457 [893] (‘Wotton’).

10 Hooper (n 5) 1:01:28-1:04:06.

11 Ibid 11:30-12:02, 14:37-14:49, 30:39-31:28, 50:50-51:45.

12 Ibid 1:07:05- 1:07:28.

13 R v Christopher James Hurley, Indictment No 4/2007.

14 Hooper (n 5) 50:50-51:45.

15 Declan Brennan, ‘Why Australia’s Indigenous People Fear the Police’ The Diplomat (Web Page, 22 March 2022) < https://thediplomat.com/2022/03/why-australias-indigenous-people-fear-the-police/>.

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Hurley continued working as a police officer. In 2015, Hurley was found guilty of two counts of dangerous driving. No conviction was recorded.16 In 2016, Hurley was found guilty of assaulting a female police officer. No conviction was recorded.17 In the 2017 case, Hurley v The Commissioner of the Queensland Police Service (‘Hurley’),18 Hurley successfully appealed against the recording of convictions for unlawful assault (he had choked, punched, kicked and threatened a man with a taser while on duty because he thought the man swore at him).19 One of the reasons why Hurley was able to overturn his recorded conviction was because he had no prior convictions.20 What seems to be judged here is whether 'punishment fits the identity of the offender' and not whether 'punishment fits the crime.'

In comparison, Indigenous man David McLean who had never committed a serious offence was sentencedto prison afterspittingin apoliceofficer’s face.21 McLean appealedthesentence in Richard David McLean v R (‘McLean’)22 claiming the trial judge failed to consider mitigating factors in his favour including Aboriginality and disadvantage.23 The defence counsel submitted that McLean had grown up in the Palm Island community where the death of Mulrunji caused an 'atmosphere of fear, mistrust and disrespect for the police.'24

White JA referred to section 9(2)(p) of the Penalties and Sentences Act 1992 (Qld) which allows broader considerations of an offender’s Aboriginality to be taken into account by a sentencing court. However, the considerations could not apply since a report was not submitted by the Palm Island Community Justice Group.25 White JA said that discriminating in favour or against an offender because they were Aboriginal was contrary to accepted sentencing principles.26

16 Paul Gregoire and Ugur Nedim, ‘Senior Sergeant Chris Hurley: A Criminal with a Badge’ Sydney Criminal Lawyers (Web Page, 15 July 2017) <http://www.sydneycriminallawyers.com.au/blog/senior-sergeant-ch> (‘Gregoire and Nedim’).

17 ‘Queensland Police Officer Cop Chris Hurley Fined for Assaulting Co-worker’ Brisbane Times (Web Page, 24 January 2017) <https://www.brisbanetimes.com.au/national/queensland/queensland-police-officer-cop-chrishurley-fined-for-assaulting-coworker-20170124-gtxz0a.html>; Louisa Rebgetz, ‘Chris Hurley Pleads Guilty Over ‘Low Range’ Assault on Female Officer at Shopping Centre’ ABC News (Web Page, 24 January 2017) <https://www.abc.net.au/news/2017-01-24/suspended-cop-chris-hurley-fined-assault-female-policeofficer/8209328>.

18 [2017] QDC 297 (‘Hurley’).

19 Ibid [2].

20 Ibid [171].

21 Richard David McLean v R [2011] QCA 218 [23] (‘McLean’).

22 Ibid.

23 Ibid [15].

24 Ibid [17].

25 Ibid [18].

26 Ibid [21].

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III INDIGENOUS SENTENCING COURTS

Indigenous Sentencing Courts are associated with therapeutic jurisprudence since they encourage rehabilitation, communication and a more humane application of the law.27 The courts were established to address key recommendations made by the Royal Commission into Aboriginal Deaths in Custody (‘RCIADIC’),28 especially ‘reducing Indigenous incarceration, increasing the involvement of Indigenous people in court processes and making sentencing hearings more culturally appropriate.’29 In more potent words, the courts aspire to remedy the relationship between 'Indigenous and white justice which for centuries has been rooted in mistrust and conflict.’30

Marchetti and Daly acknowledge the therapeutic and restorative aspects of Indigenous Sentencing Courts. However, due to its political aspirations to change racialised relationships through the rebuilding and empowering of Indigenous communities, they believe it deserves ‘a unique category of its own.’31 The writer asserts that the political aspiration for social change in race relations is in itself a therapeutic consequence for Indigenous Australians in a postcolonial society. The agency of empowerment on a group-based level will engender therapeutic benefits for Indigenous individuals.

A Voice

In the manslaughter case against Hurley, there was police collusion, tampering of evidence, an all-white jury and the exclusion of key witnesses from the legal process because they were Aboriginal.32 The failure to accord an inclusive and fair hearing led to disdain for the justice system,33 symbolically culminating in young McLean spitting in the police officer’s face.

Indigenous Sentencing Courts invite Elders and the accused to actively participate in the process. This provides Indigenous Australians with the opportunity to voice their story in a supportive and empathetic environment an opportunity that was denied to McLean in the

27 Elena Marchetti and Kathleen Daly, ‘Indigenous Sentencing Courts: Towards a Theoretical and Jurisprudential Model’ (2007) 29(3) Sydney Law Review 415, 442 (‘Marchetti and Daly’); Ann-Claire Larsen and Peter Milnes, ‘A Cautionary Note on Therapeutic Jurisprudence for Aboriginal Offenders’ (2011) 18(1) eLAw Journal: Murdoch University Electronic Journal of Law 2, 26 (‘Larsen and Milnes’).

28 Royal Commission into Aboriginal Deaths in Custody (Final Report, April 1991) (‘RCIADIC’).

29 Marchetti and Daly (n 27) 415, 422; Daniel Briggs and Kate Auty, ‘Koori Court Victoria: Magistrates’ Court (Koori Court) Act 2002’ (Conference Paper, Australian and New Zealand Society of Criminology Annual Conference, 1 October 2003).

30 Marchetti and Daly (n 27) 442-3.

31 Ibid 442.

32 Wotton (n 9) [858].

33 Michael King, ‘Therapeutic Jurisprudence Initiatives in Australia and New Zealand and the Overseas Experience’ (2011) 21 Journal of Judicial Administration 19, 133 (‘Therapeutic Jurisprudence Initiatives’).

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mainstream courts.34 As part of the therapeutic approach, the judge has 'direct and frank dialogue' with the offender to better understand personal circumstances.35 Similarly, lawyers do not approach the court as adversarial advocates. They allow Indigenous offenders to speak for themselves.36

B Rehabilitation

Rehabilitation is an important aspect of Indigenous Sentencing Courts.37 The therapeutic court collaborates with a multidisciplinary team to enhance the offender’s wellbeing.38 Specialist professionals provide information about treatment and services that will aid positive behavioural changes.39 Lawyers in the process approach their client’s legal problem holistically. They take into account underlying issues such as mental health illness and drug dependencies, referring them to treatment and support services where necessary.40

It is argued that the increased discretionary powers in Indigenous Sentencing Courts will lead to inequity between offenders who have committed similar crimes. A concern is that the mitigation of a sentence on the completion of a treatment program will decriminalise illegal acts. What will be judged is the subjective attitude of the offender and not the nature of the offence.41 However, conventional courts already mitigate sentences based on offenders' engagement with rehabilitation programs after the commission of crimes.42

In Hurley, the defence counsel relied on a report provided by a consultant psychiatrist in the mitigation of his sentence. The psychiatrist opined that 'the Palm Island death in custody inquiry and the subsequent legal cases contributed to [Hurley] suffering from post-traumatic

34 King, ‘Therapeutic Jurisprudence’ (n 1) 132; King, ‘Mainstream Courts’ (n 4) 92.

35 King, ‘Therapeutic Jurisprudence’ (n 1) 134-5; Jelena Popovic, ‘Judicial Officers: Complementing Conventional Law and Changing the Culture of the Judiciary’ (2002) 20 Law in Context 121, 128; King, ‘Mainstream Courts’ (n 4) 91.

36 Elena Marchetti and Janet Ransley, ‘Applying the Critical Lens to Judicial Officers and Legal Practitioners involved in Sentencing Indigenous Offenders: Will Anyone or Anything Do?’ (2014) 37(1) University of New South Wales Law Journal 1, 29 (‘Marchetti and Ransley’); King, ‘Therapeutic Jurisprudence Initiatives’ (n 33) 132.

37 Larsen and Milnes (n 27) 11.

38 King, ‘Therapeutic Jurisprudence’ (n 1) 135; David Wexler, ‘Practising Therapeutic Jurisprudence: Psychological Soft Spots and Strategies’ in Dennis Stolle, David Wexler and Bruce Winick (eds), Practicing Therapeutic Jurisprudence (Carolina Academic Press, 2002) 46; John McShane, ‘The Need for Healing’ (2003) 89(5) American Bar Association Journal 59.

39 Marchetti and Daly (n 27) 440.

40 King, ‘Therapeutic Jurisprudence Initiatives’ (n 33) 132.

41 Larsen and Milnes (n 27) 21.

42 Penalties and Sentences Act 1992 (Qld) s 9(7)(c); ACCC v Chubb Security Australia [2004] FCA 1750 [125] (Bennett J); Duncan v The Queen (1983) 9 A Crim R 356, 356; Scook v The Queen [2008] WASCA 114 [31] (McLure JA), [62] (Buss JA); Director of Public Prosecutions (Cth) v Garside [2016] VSCA 74 [82] (Redlich and Beach JJA); R v McGaffin [2010] SASCFC 22 [75].

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stressdisorder(PTSD).’43 ThereportidentifiedthatHurleyhasbeenundergoingpsychotherapy and was taking anti-depressant medication. The report noted that Hurley had shown 'some improvement' as a result of the treatment.44

Due to the evidence provided in the report and the supposed causative link between PTSD and the crime, Muir DCJ found that the need for general deterrence was not relevant to the sentence.45 Shefoundthat while 'publicconfidence depends upon [police] adherenceto the rule of law,'46 Hurley’s ongoing treatment meant that he was at 'little risk of re-offending.'47

When McLean appealed, he failed to mitigate his sentence. Since there was no explanation as to how McLean would rehabilitate, White JA found the order for a term of imprisonment to be suspended after serving two months in prison with an operational period of two years to be inappropriatein thecircumstances.48 Shesaid thatwithout anyguidanceas tohowtheapplicant was to be put on the right path, he was 'at risk of being returned to custody.'49 Contrary to the studies on the criminogeniceffects ofincarceration,50 WhiteJA believed that thecorrect course in preventing recidivism was sending young McLean to prison.51

Indigenous Sentencing Courts are beneficial for Indigenous Australians such as McLean who are economically disadvantaged. McLean was 20 years old, illiterate and had no work.52 For that reason, he was unable to put forward an adequate rehabilitation program like Hurley was able to. Consequently, McLean was incarcerated and the structural economic inequalities in society are maintained.

Undertaking research for this paper, it was soon apparent that there was a real concern that Indigenous offenderswould betreatedwith leniencybecauseoftheir ethnicity.53 Whileall eyes in the courtroom are fastened on Indigenous offenders, making sure they are not discriminated

43 Hurley (n 18) [145].

44 Ibid.

45 Ibid [166]-[7], [170].

46 Ibid [163].

47 Ibid [165].

48 Ibid [30]; Penalties and Sentences Act 1992 (Qld) s 144(2).

49 McLean (n 21) [30].

50 Charles Loeffler and Daniel Nagin, ‘The Impact on Recidivism’ (2022) 5 Annual Review of Criminology 133; Lynne Vieraitis, Tomislav Kovandzic and Thomas Marvell, ‘The Criminogenic Effects of Imprisonment: Evidence from State Panel Data, 1974-2002’ (2007) 6(3) Criminology and Public Policy 589; Don Weatherburn, ‘The Effect of Prison on Adult Re-offending’ [2010] (143) Crime and Justice Bulletin 1.

51 McLean (n 21) [35].

52 Ibid [30].

53 Ibid [21]; R v KU; ex parte A-G (Qld) (No 2) [2011] 1 Qd R 439 [133]; Arie Freiberg, ‘Therapeutic Jurisprudence in Australia: Paradigm Shift or Pragmatic Incrementalism?’ (2002) 20(2) Law in Context 6, 19; Nigel Stobbs and Geraldine Mackenzie, ‘Evaluating the Performance of Indigenous Sentencing Courts’ (2009) 13(2) AILR 90, 90 (‘Stobbs and MacKenzie’).

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against, either favourably or adversely, the privileged others slip silently through the cracks of justice.

Melbourne barrister Peter Faris criticised the Koori Court system as 'a touchy, feely criminal court designed to give soft justice to Aboriginal offenders.' He even went so far as to call the courts 'a form of reverse discrimination' and that their 'very existence threatens the rule of law.'54 Meanwhile, the mainstream courts explicitly allow supportive and cognitive psychotherapy and the consumption of antidepressants to override an officer’s duty to the rule of law.55

Indigenous Sentencing Courts do not purport to trump important legal principles nor do they impose penalties that are 'soft'.56 What they do authorise are broader cultural considerations57 and the recognition of underlying issues such as the historical oppression of Indigenous Australians thatcontinueto impact psychological, economicandsocialwelfare.58 Thecommon law only permits considerations of personal disadvantage arising from an offender’s membership ofa particularethnicgroupto elucidatetheparticularoffenceorthecircumstances of the offender.59 Disadvantage must be established by evidence and relevant to the personal offender.60 In other words, the common law principles are about 'social and economic disadvantage rather than considerations of Indigeneity.'61

C Culturally Appropriate

Indigenous Sentencing Courts attempt to make the process more 'culturally appropriate' to encourage mutual trust and respect.62 However, can such courts ever be culturally appropriate when established within a Eurocentric legal framework?63 Indigenous Sentencing Courts are like Homi Bhabha’s liminal spaces of hybridity where the colonisers and the colonised engage

54 Stobbs and MacKenzie (n 53) 90.

55 Hurley (n 18) [163] – [6].

56 Elise Wedrowicz, ‘An Overview of Evaluations Conducted’ (2014) 17(1) Journal of Australian Indigenous Issues 12, 15 (‘Wedrowicz’).

57 Penalties and Sentencing Act 1992 (Qld) ss 9(2)(p), 9(8); Sentencing Act 2005 (NT) s 104A; Magistrates Court Act 2004 (WA) s 24(3); Crimes (Sentencing) Act 2005 (ACT) s 33.

58 King, ‘Therapeutic Jurisprudence Initiatives’ (n 33) 131; Thalia Anthony, ‘Sentencing Indigenous Offenders’ (Brief No 7, Indigenous Justice Clearinghouse, March 2010) 1; Elana Marchetti an Kathy Daly, ‘Indigenous Courts and Justice Practices in Australia) (2004) 277 Trends and Issues in Crime and Criminal Justice 1; Marchetti and Ransley (n 36) 4; RCIADIC (n 28) vol 2, 10.1.

59 R v Fernando (1992) NSWCCA 58, 62-63 (Wood J); Neal v R (1982) 149 CLR 305, 326 (Brennan J).

60 R v KU; ex parte A-G (Qld) (No 2) [2011] 1 Qd R 439 [133].

61 Marchetti and Ransley (n 36) 17.

62 Pathways to Justice-Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander People (Report No 133, January 2018) recommendation 7-1; Marchetti and Daly (n 27) 429; King, ‘Therapeutic Jurisprudence Initiatives’ (n 33)128.

63 Marchetti and Ransley (n 36) 23.

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in a 'different dialectic' one based on negotiation, mutual recognition and exchange.64 The focus is not solely on how well the colonised can adapt to the hegemonic legal system but how the colonisers can 'redefine and reinvent themselves in relation to the Other.'65

The psychological impact of colonialism can be examined through symbols. Australian courts adorned with imperial insigniaare'sites ofideological domination and resistance.'66 Indigenous Sentencing Courts reconfigure the layout and appearance of the courtroom to rupture power hierarchies and embrace Indigenous culture and values.67 In some instances, the judicial officer and Elders sit at the same level, Indigenous artwork is displayed and round tables are used.68 However, does the reappropriation of mainstream courts truly create a hybridised space that transforms legal discourse? Or, is it just an ideal that cannot be realised, like Plato’s perfect triangle?

The participation of Elders in the sentencing process reinstates their authority and status.69 It can heal some of the colonial wounds such as displacement and cultural heritage degradation. However, as Marchetti and Ransley point out, legal professionals involved in the process must be mindful not to continue the trend of marginalising and suppressing Indigenous voices.70 Legal professionals must adapt their practices to account for the experiences of Indigenous people.71 Indigenous legal professionals may also need to adapt since they operate within a Eurocentric legal framework and are constrained by the normative practices associated with that system.72 Knowledge shared by the Indigenous community should not be assigned meaning or weight according to the values and standards of the Anglo-Australian legal system.73

64 Alpana Roy, ‘Postcolonial Theory and Law: A Critical Introduction’ (2008) 29 Adelaide Law Review 315, 318, 356 (‘Roy’); Homi Bhabha, ‘Signs Taken for Wonders’ in Bill Ashcroft, Gareth Griffiths and Helen Tiffin (eds) The Post-Colonial Studies Reader (1995) 29-35, 34; Gyan Prakash, ‘Postcolonial Criticism and Indian Historiography’ (1992) 31/32 Social Text 8, 8; Robert Young, Colonial Desire: Hybridity in Theory, Culture and Race (1995) 8, 10.

65 Roy (n 64) 314, 340, 356; Homi Bhabha, The Location of Culture (Routledge, 1994) 139-70; Marchetti and Ransley (n 36) 4; Stewart Mortha, ‘The Failure of 'Postcolonial' Sovereignty in Australia’ (2005) 22 Australian Feminist Law Journal 107 (‘Mortha’).

66 Roy (n 64) 339.

67 Marchetti and Ransley (n 36) 14, 29.

68 Marchetti and Daly (n 27) 436.

69 Wedrowicz (n 56) 435-6.

70 Marchetti and Ransley (n 36) 23.

71 Ibid 4.

72 Ibid 5.

73 Ibid 24.

(c) University of Southern Queensland

Legal professionals engaged in the process must also be culturally competent.74 The RCIADIC recommends judicial officials participate in training programs that will inform them about 'Aboriginal society, customs and traditions.' The programs should also make aware of the ongoing effects of historical oppression on Indigenous communities.75 If judicial officials in Indigenous Sentencing Courts lack cultural competency, their expanded discretion may be corrupted by the same racism and implicit bias that pervades the mainstream courts.76

D Self Determination

Therapeutic jurisprudence emphasises the importance of self-determination in promoting wellbeing.77 Indigenous Sentencing Courts largely owe their establishment to the activism of Indigenous organisations that sought to democratise the justice system.78 While Indigenous Sentencing Courts invite Elders to actively participate in the process,79 Indigenous offenders are sentenced under Australian criminal law and procedure.80

Indigenous Sentencing Courts do not accept the practice of customary laws.81 The conflict and struggle to recognise Indigenous law becomes part of the 'continuing story of colonisation.'82 Without the ability to influence social regulation, Indigenous Australians continue to be incarcerated at a rate that is disproportionate to any other in society.83 Elder and activist Michael Mansell asserts that 'for Indigenous Sentencing Courts to inspire political change, they must be operated within Indigenous communities and administered by the Indigenous people themselves.'84

Even without the practice of Indigenous laws in the sentencing process, objections are raised against the supposed legal pluralism of Indigenous courts.85 Fear of Indigenous selfdetermination and sovereignty were also present in Mabo v Queensland (No 2) with Brennan

74 Ibid 25; Vanessa Cavanagh and Elena Marchetti, ‘Judicial Indigenous Cross-Cultural Training: What is Available, How Good Is It and Can It Be Improved?’ (2015-2016) 19(2) Australian Indian Law Review 45, 45 (‘Cavanagh and Marchetti’).

75 RCIADIC (n 28) recommendation 96.

76 Cavanagh and Marchetti (n 74) 48.

77 King, ‘Therapeutic Jurisprudence’ (n 1) 130.

78 Marchetti and Daly (n 27) 441.

79 King, ‘Mainstream Courts’ (n 4) 94.

80 Marchetti and Daly (n 27) 420; Elana Marchetti, ‘Indigenous Sentencing Courts’ (Brief, 5 December 2009).

81 Ibid 420.

82 Roy (n 64) 355.

83 RCIADIC (n 28) vol 1, 1.3; Irene Watson, ‘Law and Indigenous Peoples: The Impact of Colonialism on Indigenous Cultures’ (1996) 14 Law in Context: A Socio-Legal Journal 107, 115 (‘Watson’).

84 Stobbs and MacKenzie (n 53) 91.

85 Ibid 100.

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J’s 'skeleton principle' evoking the image of death.86 Even though Native Title was a limited right, the case 'was met with howls of derision from many quarters.' 87 Newspapers across the country hysterically threatened the doomsday collapse of Australia’s political and economic institutions.88

IV CONCLUSION

Indigenous Sentencing Courts are 'a more comprehensive, humane and psychologically optimal way' of handling criminal law matters compared to the mainstream courts.89 However, judicial discretion is still exercised within the confines of internal colonisation.90 Perhaps what is needed is not just an Indigenous voice in the courtroom but a formal recognition of Aboriginal Sovereignty. Perhaps then the healing will really begin.

86 Mabo v Queensland (No 2) (1992) 175 CLR 1, 30 (Brennan J).

87 Roy (n 64) 327.

88 Ibid.

89 King, ‘Therapeutic Jurisprudence’ (n 1) 141.

90 Watson (n 84) 111; Keenan (n 5) 250; Mortha (n 65) 107.

(c) University of Southern Queensland

SHOULD A MORAL WRONG FOR THE COMMUNITY BE A MORAL WRONG FOR ME AND ROBERT BILLOT IN DARK WATERS?

ROBYN EDMANSON

ABSTRACT: Imagine a CEO of a chemical company asks you, a lawyer, to advise on the use of a new, unregulated product that could potentially harm the community and the environment. What would you do? This essay offers one ethical pathway through this moral dilemma as applied to both in these circumstances and to the lawyering practice of Robert Billot as depicted in the film Dark Waters.

I INTRODUCTION

Given the CEO’s request to provide lawful, albeit potentially harmful, advice how do I tell her I do not want to do it? In my response I address the broader philosophical question of whether a moral wrong for the community should be a moral wrong for me. By drawing on Parker and Evans’s three-step model: awareness of the ethical issue; choice and application of available ethical standards and values; and practical implementation of that choice,1 I aim to achieve a principled and reasoned response through understanding the law, professional norms, my values, and engagement with ethical concepts2 from a range of sources. In approaching this dilemma my choice of the feminist ethics of care framework3 is justified because Ivalue caring, relationships, conversation and responsibility from the perspectives of my personal and professional roles as a mother and librarian respectively. This choice is further justified because of its practical application in alternative dispute resolution (ADR), Australia’s predominant conflict resolution paradigm4 both within and outside the courts.5 As an alternative to the standard conception6 or ‘dominant view’7 which relies on professional rules or values, this

1 Christine Parker and Adrian Evans, Inside Lawyers’ Ethics (Cambridge Press, 3rd ed, 2018) 20.

2 See, eg, Aristotle, Nichomachean Ethics (Drummond Percy Chase trans, 1937) especially bk II. Aristotle’s classic formulation of ethics makes qualitative judgments about the rightness or wrongness of conduct in accordance with an agreed social standard.

3 Carrie Menkel-Meadow, 'Portia in a Different Voice: Speculations on a Women's Lawyering Process' (1985) 1 Berkeley Women's Law Journal 39. Menkel-Meadow highlights the complexity of what it means to engage in a ‘women’s lawyering process’ which is juxtaposed to the liberalist individualism philosophy because it wrestles with rules, makes contextual decisions, tries to keep the parties together and takes responsibility for others.

4 Judy Gutman, ‘Reality of Non-adversarial Justice: Principles and Practice’ (2009) 14(1) Deakin Law Review 29; Gay Clarke and Iyla Davies, 'ADR - Argument For and Against Use of the Mediation Process Particularly in Family and Neighbourhood Disputes' (1991) 7 Queensland University of Technology Law Journal 81. The authors contend that while ADR is not a cure-all its dominant use in contemporary Australian conflict resolution is because of its savings in cost and time and avoidance of the emotional turmoil that often accompanies adversarial proceedings.

5 Pauline Collins, Dalma Demeter and Susan Douglas, Dispute Management (Cambridge Press, 2021) 378-82.

6 Tim Dare, The Counsel of Rogues? A Defence of the Standard Conception of the Lawyer’s Role (Ashgate Publishing Ltd, 2009) 1-14. The author contends the standard conception’s three principles are: the principle of partisanship; the principle of neutrality; and the principle of moral non-accountability.

7 William H Simon, The Practice of Justice: A Theory of Lawyers' Ethics (Harvard University Press, 1998).

framework illuminates my dilemma’s complexity to generate innovative solutions8 first in responding to the CEO’s request, then to Billot’s lawyering practice in Dark Waters.9

II WHAT IS MY LEGAL PROFESSIONAL ETHOS?

My ethical dilemma arises because traditional conceptions of corporate lawyering,10 ‘compromise the core values and obligations of professional conduct.’11 While the Australian Solicitor’s Conduct Rules (ASCR) broadly covers the corporate lawyer’s obligations,12 ‘something more than merely re-stating and reinforcing current obligations in the law of lawyering is likely to be necessary to promote ethical conduct by corporate lawyers.’13

Considering the sources of the ethic of justice in social contractarianism from Locke,14 Hobbes,15 Kant16 and Rawls,17 underpinning professional conduct rules, lawyers have duties to clients and others, and the court as long as they operate within them. However, the extremes of the adversary system18 are tempered, from the feminist ethics of care perspective, by concern for others in resolving the problem that resulted in the dispute in the first place.19

Yet, as Wendell argues, the law and appropriate legal practises, embodies all the moral thinking I need to frame my response.20 However, this stance may be ‘too client-centred because it neglects other concerns about common morality, social values, or the public interest’.21 By opening my ‘sociological imagination’22 to all facets of my dilemma I may access a range of

8 Carrie Menkel-Meadow, 'Ethics in Alternative Dispute Resolution: New Issues, No Answers from the Adversary Conception of Lawyers' Responsibilities' (1997) 38(2) South Texas Law Review 407, 453.

9 Dark Waters (Focus Features, 2019). The film is based on Nathaniel Rich’s 2016 New York Times article ‘The Lawyer Who Became DuPont’s Worst Nightmare’.

10 Barbara Mesher, 'Corporate Law and Practice: Legal Advice and Ethics' (2018) 92(8) Australian Law Journal 636-650.

11 Chief Justice Bathurst, ‘Commercialisation of Legal Practice: Conflict Ab Initio; Conflict De Futuro’ (Speech, Commonwealth Law Association Legal Conference, 21 April 2012) 2.

12 See, eg, Australian Solicitor’s Conduct Rules (ASCR) r 2.1 which states: ‘The purpose of these Rules is to assist solicitors to act ethically…’

13 Parker and Evans (n 1) 306.

14 Suri Ratnapala, Jurisprudence (Cambridge Press, 3rd ed, 2009) 182.

15 Ibid 33.

16 Ibid 183.

17 Ibid 411.

18 Margaret Thornton, 'Towards Embodied Justice: Wrestling with Legal Ethics in the Age of the 'New Corporatism'' (1999) 23(3) Melbourne University Law Review 749. Thornton argues despite the positivist prescripts of adversarialism such as neutrality, promoting client interests, it requires total commitment to ends justify the means rationality.

19 Carrie Menkel-Meadow, 'Portia Redux: Another Look at Gender, Feminism and Legal Ethics' in Stephen Parker and Charles Sampford (eds), Legal Ethics and Legal Practice: Contemporary Issues (Clarendon Press, 1995) 40.

20 W Bradley Wendel, Lawyers and Fidelity to Law (Princeton University Press, 2010).

21Leslie Griffin, ‘What Do Clients Want? A Client’s Theory of Professionalism’ (2003) 52 Emory Law Journal, 1087.

22 Christine Parker and Tanina Rostain, 'Law Firms, Global Capital, and the Sociological Imagination' (2012) 80(6) Fordham Law Review 2347-2381.

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values and approaches. In articulating those values,23 I am able to craft an ethical response despite pressure to conform24 because as former Justice Mason put it, I am ‘a person first and a lawyer second.’25

Whilst I recognise my professional ethics are different to my firm’s business ethics grounded in maximising profit, on Pepper’s view, my role as a skilled tradesperson is essential in facilitating autonomous citizenship26 working in the public good and for my employer within a systemassumedtobefunctionalandappropriate.ThoughIcanseehowthis couldworkthrough the inculcation of shared values and strong professional sanctions for transgression, my dilemma represents practical pressure on traditional ideals of the lawyer [qua27 lawyer] as statesman.28 However, lawyering has changed with increased industry competition29 and more women30 and other diverse influences bringing it a different complexion. My values reflect these changes which align with sociological studies indicating a decline in lawyers’ adherence to traditional values.31 They also strongly accord with the potential emergence of a ‘women’s lawyering process’.32 Given these diverse influences on my thinking, I am reluctant to simply rely on professional rules or values and speak with lawyers within my firm for advice as to how they would respond.

III THE FEMINIST ETHICS OF CARE FRAMEWORK AND CRITIQUES

23 Mary Gentile, Terri D Barreiro and Melissa M Stone, Educating for Values-Driven Leadership: Giving Voice to Values Across the Curriculum (Business Expert Press, 2013).

24 Leanne Dzubinski, Amy Diehl and Michelle Taylor, 'Women’s Ways of Leading: The Environmental Effect’ (2019) 34(3) Gender in Management 233-250. This study found there is enormous pressure applied to women to conform to an organisation’s culture; Mesher (n 10) urges lawyers to adopt Aristotle’s virtue of justice to stand up to clients’ pressure; Christine Parker, Suzanne Le Mire and Anita Mackay, 'Lawyers, Confidentiality and Whistleblowing: Lessons from the McCabe Tobacco Litigation' (2017) 40(3) Melbourne University Law Review 999. The authors argue the corporate lawyering culture enables clients to apply considerable pressure to conceal wrongdoing.

25 Justice Keith Mason, ‘Admission to Legal Practitioners’ (Speech, The Supreme Court of New South Wales, Banco Court, May 2005) 2.

26 Stephen L Pepper, ‘The Lawyer’s Amoral Ethical Role: A Defence, A Problem, and Some Possibilities’ (1986) 4 American Bar Foundation Research Journal 613, 635.

27 Australian Legal Dictionary (3rd ed, 2017) ‘questioning where?’ (def 1).

28 Anthony Kronman, ‘Practical Wisdom and Political Fraternity’ in The Lost Lawyer: Failing Ideals of the Legal Profession (Belknap Press of Harvard University Press, 1993) 53-108. Kronman contends that to be described as a lawyer statesman is a term of praise.

29 IBISWorld, ‘Legal Services in Australia Trends (2018-2023)’, Industry Research Reports Australia (Database, 18 April 2023). The report shows the provision of legal services constitutes a major industry in Australia generating $29.6 billion in 2023 and employing 102,208 people.

30 Urbis Pty Ltd, 2021 Annual Profile of Solicitors NSW (Web Page) https://www.lawsociety.com.au/sites/default/files/202206/2021%20Annual%20Profile%20of%20Solicitors%20in%20NSW.pdf 8. The report found by October 2020, 53% of solicitors practicing nationally were female, representing a four-fold growth in the number of female lawyers, whereas the number of male lawyers only doubled.

31 Christine Parker and Tanina Rostain, 'Law Firms, Global Capital, and the Sociological Imagination' (2012) 80(6) Fordham Law Review 2347-2381.

32 Menkel-Meadow (n 3) 43.

(c) University of Southern Queensland

Menkel-Meadow and others33 elevate the female voice to aspire to ‘change the adversarial system into a more cooperative, less war-like system of communication between disputants.’34 Applying the psychological theorisation of Carol Gilligan35 which contends women’s connection with, and concern for, others leads them to reason differently, Menkel-Meadow adapts Gilligan’s web metaphor to capture this feminised style in lawyering.36 She reasons that females tend towards caring about reducing the harm their decisions may cause by adopting a participatory decision-making process. While Menkel-Meadow does not suggest caring is uniquely female, she contends the women’s lawyering voice, albeit in the male form, lets more into our ratio decidendi in order to make moral decisions and action more textured and more fully justified.37 However, critics argue Menkel-Meadow takes an essentialist reading of Gilligan’s theory which should be subject to rigorous tests of validity because caring should be detached from gender.38 While Menkel-Meadow maintains caring is socially constructed,39 she concedes care overload can cause all lawyers to lose sight of their own personal needs due to the limited resources required to care for all.40

A further criticism by Parker and Evans suggests ethics of care values may not be the most appropriate forall lawyers in all circumstances such as thoserequiring the advancementof legal and socialjustice abovea co-operative resolution.41 Menkel-Meadow,onthe otherhand, argues that before first principles are established in the legal community in attempting to resolve any ethical dilemma, lawyers, especially women and those from other diverse communities, should engage in more conversation for more, albeit complex, suggestions.42 She maintains that’ justice does not always require bipolar results, and binary solutions which would be better approached with more contextual and less oppositional solutions.’43

33 See eg Menkel-Meadow (n 3); Leslie Bender, ‘From Gender Difference to Feminist Solidarity: Using Carol Gilligan and an Ethic of Care in Law’ (1990) 15 Vermont Law Review 1.

34 Menkel-Meadow (n 3) 54-5.

35 Carol Gilligan, In a Different Voice: Psychological Theory and Women's Development (Harvard University Press, 1982). Gilligan’s study of both boys’ and girls’ responses to the Kholbergian Heinz dilemma involved a request by a husband to a pharmacist for a life-saving drug, priced beyond his means, to save his wife’s life. Individual responses to the question of whether the husband should steal the drug revealed a duality in girls and boys moral development with the girls wanting more information in the context of preserving relationships, while the boys viewed the dilemma in terms as black and white, or a hierarchy of rights (life v property) and the logic of justice.

36 Menkel-Meadow (n 3) 47.

37 Carrie Menkel-Meadow, 'Portia Redux: Another Look at Gender, Feminism and Legal Ethics' in Stephen Parker and Charles Sampford (eds), Legal Ethics and Legal Practice: Contemporary Issues (Clarendon Press, 1995) 33.

38 See, eg, Catherine A MacKinnon, Feminism Unmodified: Discourses on Life and Law (1987) 118-9. MacKinnon contends that associating care exclusively with gender further divides and subordinates the female voice; Joan C Tronto, ‘Beyond Gender Difference to A Theory of Care’ (1987) 12(4) Signs 644, 661.

39 Menkel-Meadow (n 37) 33-41. For example, the author cites a 1987 study by Rand Jack and Dana Crowley Jack of 36 female and male lawyers to find gender was associated with differing moral orientations and responses to ethical dilemmas.

40 Menkel-Meadow (n 37) 52.

41 Parker and Evans (n 1) 214.

42 Menkel-Meadow (n 37) 53.

43 Ibid.

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IV APPLICATION OF THE FEMINIST ETHICS OF CARE FRAMEWORK

Applying the feminist ethics of care framework to my ethical dilemma, the chemical byproduct’s potential community and broader environmental harm may be exposed through engaging in ADR44 with all relevant stakeholders, including the regulatory authority.45 This adopts a holistic view of the problem in order to prevent the firm’s tortious conduct and its harmful consequences, before it arises.46 That is, ADR allows a shared understanding of the dilemma’s bigger picture by, for example, informing the regulatory authority of the spirit and intent of the applicable legislation to enable both ethical and lawful solutions.47 It would also allow the company the opportunity to share its views on the continued viability of manufacturing this ‘useful and profitable’ product providing its prepared to divulge the waste disposal plan, and its potential harmfulness.

In these circumstances, as long as access to the courts are realistically available to vindicate the legal rights of the communities located close to the manufacturing plants, if necessary, then I view my role as promoting justice more broadly. In so doing I may assist the regulatory authority to seek additional funding and investigative powers in light of the potential for full public disclosure of its limited resources although there may be a potential conflict doing so whilst working for the company. This, ultimately, should encourage the CEO to devote the company’s likely considerable financial resources to the safe disposal of theproduct’s chemical by-product, or consider preventing the product’s manufacture in the first place. Either strategy would divert responsibility back towards the CEO as the company’s representative, averting a potentially disastrous, costly and lengthy litigious outcome for it. Although I appreciate this may not work, I may simply seek to convey my view to the CEO.

V FEMINIST ETHICS OF CARE APPLIED TO DARK WATERS

Dark Waters’ appeal is Billot’s struggle between ‘right’ and ‘wrong’ and emergent relationship with Tennant, a West Virginia farmer, in the context of the classic tale of David versus Goliath. As their relationship evolves, Billot’s caring voice emerges, directly applicable to the feminist ethics of care framework.48 At the start of the film Billot represents the traditional conception of the adversarial advocate,49 inhabiting an amoral universe50 devoid of responsibility for the harm caused by wealthy chemical companies such as DuPont. In this conception Billot

44 ASCR r 7.2 states solicitors have a duty to inform the client about ‘the alternatives to fully contested adjudication of the case which are reasonably available…’

45 Ibid 56.

46 Jonathan Herring, 'Compassion, Ethics of Care and Legal Rights' (2017) 13(2) International Journal of Law in Context 158. The author contends that tort law cannot compel good behaviour, only prevent bad behaviour because the standard is the reasonable person.

47 Menkel-Meadow (n 37) 42. The author recognises that because ethical dilemmas are situational and contextual, ADR methods are fair so long as access to the courts to vindicate rights are not precluded.

48 Ibid 57.

49 Parker and Evans (n 1) 28.

50 Richard Wasserstrom, ‘Lawyers as Professionals: Some Moral Issues’ (1975) 5(1) Human Rights, American Bar Association.

personifies the lawyer’s traditional role in the adversarial system to defend these clients who ‘have all the money, all the time, and they’ll use it, trust me, I know I was one of them.’ How does Billot’s moral compass pivot so drastically towards the feminist ethics of care approach? At Tennant’s mention of Bilott’s grandmother, he begins to understand all perspectives, including those of DuPont, the community’s largest employer.

In this personal connection to Tennant, Billot’s lawyering practice crystallizes to embody the feminist ethics of care approach by adopting a holistic view of the problem. For example, he observes Tennant’s dying cows, and sorts through hundreds of boxes from DuPont lawyers to find numerous references to the cause, namely the unregulated use of perfluoroctanoic acid (PFOA) in DuPont’s Teflon manufactured for carpet flooring and non-stick fry pans. In the process, Billot discovers the decades-long cover up of findings from PFOA testing, by DuPont and its lawyers, that it causes birth defects and cancer. He also finds evidence of clandestine toxic waste dumping in the adjacent landfill seeping into groundwater caused the poisoning of Tennant’s cows.

As these intolerable circumstances of tortious conduct, by DuPont and its lawyers, begin to emerge, Billot’s approach edges towards full-blown advocacy. This is themore effective option to remedy their collective harm to Tennant and the local community than engaging in ADR, the conventional feminist ethics of care method.51 However, from Menkel-Meadow’s perspective, Billot is motivated to see the bigger picture such as considerations of DuPont’s economically entrenched interests as the region’s biggest employer. That is, Billot chooses to see the grey, not simply the black and white, in the complexity of these human issues that require resolution.

However, for Billot the practical drawback to Menkel-Meadow’s theory soon materialises in his declining health. In too much caring, taking on too much responsibility, and valuing relationships too highly, Billot neglects not only his own health but the financial health of his family.52 This is exacerbated by Tennant’s refusal to accept DuPont’s confidential settlement. Tennant either‘dies penniless orhelets DuPont continuepillaginghis community’.Atthesame time, professional and financial pressure is applied to Billot in the form of his boss telling him

‘you want to flush your career down the toilet for some cowhand?’ Hence we arrive at the crux of Billot’s dilemma: does he continue caring for others potentially losing what is personally valuable to him, his health and his family, in the process?

It is Billot’s lawyer wife who girds his courage: ‘you saw a man hurting…you did the Christian [ethics of care]53 thing. You helped him…you’ve uncovered a threat to the public. This goes beyond lawyering.’ Billot makes the conscious and deliberate decision to gain a closer understanding of who he is as a person and as a lawyer. His wife strikes the match that lights the path out of his moral entanglement. He then seeks innovative solutions by tapping into his knowledge of DuPont’s legal manoeuvres because he ‘knows it better than anyone’. Billot legally weaves through the complexity to find a long-term, and creative, resolution for the local community. For example, he finds proof of a decades-long cover up by DuPont’s lawyers into

51 Menkel-Meadow (n 37) 53.

52 Ibid 52. Menkel-Meadow does not deny the practical application of the feminist ethics of care framework can present problems due to the unlimited resources required to care for all.

53 See, eg, Thomas Shaffer, On Being a Christian and a Lawyer (1981). The author contends another moral perspective of the lawyer’s role within an ethics of care framework is religious.

the harm caused by unregulated, liquid waste which prompts him to send it to the United States Department of Justice and the environmental protection authority (EPA).

While DuPont is fined $16.5 million, it is through the medical monitoring of the 70,000 local community residents, following a class-action lawsuit, that Billot achieves settlement. However, because DuPont is only required to undertake this monitoring if there is scientific proof that PFOA caused the community members’ illness, Billot is prompted to help an independent scientific review panel acquire data in the form of donated blood samples from 70,000 people. The panel then finds that PFOA is linked to two types of cancer, and four other diseases, meaning Billot wins three individual settlements before DuPont finally settles. Billot then manages to manoeuvre a $671 million win for 3,500 cases.

The message in Dark Waters is that a moral wrong for the community is a moral wrong for Billot – proving a good person can be a good lawyer. Applying Menkel-Meadow theorylistening to all sides, valuing stakeholder relationships and taking responsibility - Billot becomes both by the end. In opting for full-blown advocacy, Billot’s vigilance in promoting the ethic of justice alongside the ethic of care as seen throughout Dark Waters achieved the most effective solution for Tennant and the affected community.

VI CONCLUSION

This essay adopted a principled and reasoned approach to apply the feminist ethics of care lens to viewmy personal dilemmaandBillot’slawyering practice.This theory was most appropriate to affirm that a moral wrong for the community is a moral wrong for me. My choice was justified because of the value it places on relationships, responsibility and care which mirror my values and those applied to the lawyer-client relationship54 in Dark Waters. It framed my ethical response not simply because it practically applies to resolve most Australian legal disputes, but worked best to illuminate these complex human dilemmas. By allowing us to see the grey, rather than black and white, it revealed the difficulties of simplisticadversarialism and the traditional professional ethics paradigms which underpin it.55 However, the personal cost to Billot dramatically depicted the practical drawback of Menkel-Meadow’s theory.

54 See eg, Pepper (n 26) who sees the lawyer’s role as providing expertise to help citizens achieve a first-class citizenry, for example by helping the Parkersburg community understand complex chemical and medical terminology.

55 Menkel-Meadow (n 8).

(c) University of Southern Queensland

THE ROLE OF RELIGION LAW IN THE MODERN LEGAL SYSTEM

FARHAN KHUDIR

ABSTRACT: This essay responds to the following question: ‘What role does religion play in modern legal systems if Positive Law is unbiased, scientific, and objective’? The essay not only explains the position of religion law in the current legal world, but also argues that religion law can be more beneficial in some ways than positive law. It also lists some advantages of religion laws and how useful they can be in modern legal systems.

I INTRODUCTION

Law can be defined as set of rules to guide people to a specific path. Positive law, also referred to as ‘man-made-law,’ aims to not mix morality and human emotions with the way law should operate. In other words, it means that law should take its course regardless of the moral side of those laws. In contrast, religion law which is part of the natural law operates by looking at the moral side of the law. Religion laws are laws that are made or driven from religions such as Christianity (Church-made-laws) and Islam (Sharia laws). Nowadays some countries such as Iran, Qatar, and Vatican City State still use religion law as their primary source of law. These countries arguably believe that religion law is more effective than positive law, especially from a moral viewpoint. This essay will explain the role of religion law in modern legal systems even if Positive Law is unbiased, scientific, just, and objective. First, the essay will demonstrate that natural religion law is more morally just than other judicial systems. Then it will argue that religion law can be valid no matter when it started or what has changed in it. Thirdly, it will state that states for instance the Vatican City State managed to entirely or semi-entirely use church law as their statute law. Lastly, it will determine the role of religion law in some Islamic countries.

II RELIGION LAW IN MODERN LEGAL SYSTEMS

Religion law is crucial in modern legal systems because it can be more moral than its counterparts. As mentioned earlier positive law does not focus too much or depends on the moral measures of the legal decision making. This allows God-made-laws followers to have a counter argument against the question of validity of other systems. People who support religion law may argue that by taking the moral principles into consideration, religion law can be more human valuing and ethical than other legal systems. Germain Grisez said that:

Of course, like an upright commitment to maintain harmony within oneself, the commitment to act always in accord with all God's guidance would exclude choosing any option one judges morally unacceptable-that is, any option one judges to be at odds with the integral guidance of the principles of practical reason, the law God has written on human hearts.1

Therefore, religion laws are more moral because they are God-made-laws which prevents humans from doing immoral things as they are not in accordance with human values. By following certain laws that are made by God, people will be more organised morally and they

1 Germain Grisez, ‘Natural Law, God, Religion, and Human Fulfillment’ (2001) 46 American Journal of Jurisprudence 3, 16.

will be able reach self-fulfilment.2 If the whole community managed to follow these religion laws, there will be less misstructure and people will work for better moral life.3 Thus, religion plays a very important role in guiding people to obey moral based laws. Furthermore, Jonathan Rothchild et al mentioned that “Snyder notes the contentious but enriching relationships among culture, morality, and religion”.4 The bishop in the Catholic churches had different approaches to enhance religion law system to promote community safety and human respect.5 These ways that the bishops followed to reach justice objectives were based on human ethics, values, and forgiveness. 6 Hence, religion law was also a way to empower the societies by leading them to act in a moral way. In short, unlike other legal systems, God-made-laws play a moral role in the current legal systems.

Some people argue that religion law is always a valid and useable legal source. Moreover, this argument was launched to respond to critics of natural law who argue that this type of law was time limited and was only valid in the past and it cannot be relied on nowadays. Although religion law is not as quick as other legal sources in terms of developing because it is depended on old rules and religious books that are not changeable, it is still valid for use. Both of Germain Grisez and John Finnis believed that the new module of religion law is not a subject to time limitation and changes.7 Consequently, religion law can be a valid source of law even if the other sources are unbiased and just because this type of law tries to keep its core principles the same away from the influence of time and adjustment. Jonathan Crowe also explained that ‘Natural law is presented as if it were (in the words of Oliver Wendell Holmes) a “brooding omnipresence in the sky” a set of timeless, unchanging principles received fully-formed from above.’8 Therefore, Crowe meant that these laws are unchangeable and always valid because they were given to humans by the ‘God’,9 not like other man-made-laws which are easier to change because human nature changes due to the changes of technology and science. Religion law may not appeal to people easily as timeless legal source because it should be looked at from God’s point of view not humans’ point of view because God is not in a time-limited space.10 Thomas Aquinas said in the famous Summa Theologica that ‘Now the eternal law surpasses human reason: so that the knowledge of human actions, as ruled by the eternal law, surpasses the natural reason, and requires the supernatural light of a gift of the Holy Ghost.’11 Thus, when applying these laws to a matter, people should consider the above statement as it explains why natural law should not be affected by time and changes and it might not be easy for humans to understand without God’s guidance. In brief, the laws which were established based on religion/s can still take a part in the modern legal system because they are changeless and enduring unlike positive law (laws made by humans).

III RELIGION LAW IN THE CONTEMPORARY CONTEXT

2 Ibid 17.

3 Ibid 17.

4 Jonathan Rothchild et al, Doing justice to mercy: religion, law, and criminal justice (University of Virginia Press, 1st edition, 2007) 83.

5 Ibid 84.

6 Ibid 84.

7 Jonathan Crowe, ‘Is Natural Law Timeless?’ (2021) 33(1) Bond Law Review 1, 1.

8 Ibid.

9 Ibid 2.

10 Ibid 9.

11 Thomas Aquinas, Summa Theologica, Part II-II (Secunda Secundae) Translated by Fathers of the English Dominican Province, tr Fathers of the English Dominican Province (Project Gutenberg, 2006) 63.

Religion law is still in use in some states, especially in the Vatican City State. The Vatican City State (Vatican) is an independent state and is located in Italy. It is the home to the worldwide Catholic Church government which is referred to as the Holy See. The law of the Vatican operates based on the Canon law (Catholic Church law) which is their main source of law. The Vaticanisoneofthefewstatesthatisentirelybasedonthechurchlawnowadays.Fewcountries like Poland and Malta still allow religious marriage (Church marriage) beside civil marriage, but these countries are not entirely operated by church law. The head of the state of the Vatican is the Popa and the system of governing is purely based on Canon law which is driven from natural law and the Roman Curia even when it comes to the international matters.12 This shows that the state maintained the canon law and is using the natural religion law despite the changes to the legal systems of this world.

John Morss also pointed out that ‘The VHS is the institutional embodiment of one of many alternatives, faith-based international movements, ranging from sects to the great world religions, to newer faiths.’13 Therefore, the Vatican does not only use religion law (canon law) in domestic matters, but they also rely on it when it comes to global matters. In summary, states like Vatican rely on church law to prove the above points that religion law can still play a role in the legal systems, and it cannot be a subject to time-limitation and changes.

Some Islamic and Arab countries still rely on religion law in the modern legal system. They refer to this religion law as sharia law which is the law that is based on the Islamic principles and Quran rules. Arab countries like Qatar and Saudi Arabia use sharia law as their primary source of law. Other non-Arab Islamic countries like Iran, Afghanistan, and Pakistan also follow sharia law. The sharia law can vary from a country to another and that is depending on the doctrine of religion, the religious group, the major sect. For instance, in Saudia Arabia they rely on the Sunni module of sharia law and in Iran they mainly rely on Shia module of sharia law. The constitution, the political authenticity, diplomacy, and the common law of Saudia Arabia is depended on sharia law which is the main body of the legal system there.14 Robert Hefner stated that “And, most fundamentally, shariʻa is the central conception of the religion towhicheverySaudicitizenformallybelongs,layingdowntheintricaterulesofritualpractices, among them the monumental pilgrimage to the holy places which the kingdom directly administers”.15 Therefore, sharia is not only the religion law which people in Saudia Arabia follow when practicing their religious beliefs, but is also the primary legal system which their country rely on. In addition, Iran has a system of law that allows the ‘faqih’ who is a religion leader to adjust any bills that are passed by the parliament, those bills have to go through their Islamic (religion) council before they be approved as laws.16 Hence, it shows that some developing or newly developed Islamic countries still prioritise religion law (sharia law) over other legal systems because these laws are in accordance to religious beliefs and values. All in all, sharia law is still remarkably useable in some Islamic countries around the world.

IV CONCLUSION

12 John R. Morss, 'The International Legal Status of the Vatican/Holy See Complex' (2015) 26(4) European Journal of International Law 927, 930.

13 Ibid 946.

14 Robert Hefner, Shariʻa Politics: Islamic law and Society in the Modern World (Indiana University Press, 2011) 55.

15 Ibid.

16 Ibid 121.

Inconclusion,thisessayhasdescribedtheroleof naturalreligionlawin thecurrentlegalsystem even when Positive law is just and neutral. The essay started by illustrating the moral side of religion law and how it considers morality and human good are vital aspects of religion law compared to positive law for example. It also claimed that religion law can be valid throughout different time periods including the modern times. Also, because religion law was arguably made or set by God not humans, it is not changeless. Furthermore, it showed how church law is still in use in states like the Vatican, even some other states and countries still partly rely on church law in some aspect of their life, like marriage and inheritance. Additionally, the essay proved that some major Islamic countries like Iran still are dependent on the Islamic law which is their main and/or the only source of law. Ultimately, while not every aspect of religion law is correct or valid to use in modern days, it has some aspects that can be referred to as valid sources of law or be used as laws in the modern world.

UNRAVELLING DAVID FRIEDMAN’S ATTEMPTED TORTS: AN OXYMORONIC QUESTION OF FACT AND LAW

OLIVER BROWN

ABSTRACT: David Friedman’s statement ‘attempted crimes should be punished, and attemptedtortsshouldnot’isanattempttoapply economicefficiencytheorytolawwithlimited discussion or demonstrated understanding of torts law. Friedman’s argument that an ex-ante punishment of imprisonment can help deter the attempts of serious crimes is not balanced with a sufficient analysis of torts. This is because as a question of fact and law ‘attempted torts’ simply do not and cannot exist.

I INTRODUCTION

It is challenging to make full sense of David Friedman’s statement that ‘attempted crimes should be punished, and attempted torts should not.’1 The argument is made that an ex-ante punishment of imprisonment can help deter the attempts of serious crimes2 or of murder3 which is understood. However, Friedman’s discussion on ‘attempted torts’ is light if not discrete, as he only mentions the term ‘attempted torts’ in this paper on this one occasion. To understand the assertion, a broader understanding of the article and difference between torts law and criminal law is required.

II INTENT AND TORTS

AsFreidmanhad argued that punishing attempts ‘was aform ofexantepunishment’that should not be punished. He contends that this therefore implies that attempted crimes should be punished, and attempted torts should not. There is limited legal discussion or conceptualisation of ‘attempted torts’. Torts are often from unintended circumstances that could have been reasonably foreseen or anticipated. There is some scholarly discussion regarding unrealized torts that deal with potential future injuries. For example, scholars point out a fundamental distinction between criminal law, on the one hand, and tort law, on the other. Criminal law sometimes prohibits and punishes genuinely inchoate wrongs-uncompleted wrongful acts. Tort law does not.4

Friedman does, however, qualify his assertion that attempted torts should not be punished by stating ‘that corresponds reasonably well to actual law.’5 This does make sense of his assertion as attempted torts are not punished as they simply do not exist. ‘A failed attempt to destroy someone's property, unattended by any other consequence for the victim, is not actionable in tort.’6 An attempt implies there is intent which shifts the matter from a negligent civil harm matter to an intended criminal harm matter. ‘Although tort law concerns itself with wrongs, not every wrong or even every legal wrong is a tort. Tort utilizes a conception of wrongs that involves “realized” wrongs.’7

1 David Friedman, Law’s Order: What Economics Has to Do with Law and Why It Matters (Princeton University Press, 2000) 77.

2 Criminal Code Act 1899 (Qld) ss 535─6.

3 Ibid s 306.

4 John CP Goldberg and Benjamin C Zipursky, 'Unrealized Torts' (2002) 88(8) Virginia Law Review 1629.

5 Friedman (n 1) 79.

6 Goldberg and Zipursky (n 4) 1640.

7 Ibid 1638.

A Attempts & Speeding

Unlike the oxymoronic term ‘attempted torts’, attempted crimes are punished ‘so long as X can be found to have acted with the requisite intent, and to have made a "substantial step" toward completion of the intended crime, failure to complete the plan does not decriminalize the conduct.’ Friedman explains that punishment for attempted crimes such as murder operate in a similar manner with a similar intent to a speeding fine, as an ex-ante punishment to prevent behaviour and decreases probability of negative outcomes such as murder and high-speed crashes.8

B Punishments based on Forecasts and Results

Friedman highlights that for attempted murder and murder our legal system imposes an ex-ante punishment based on forecasts for an attempted crime and an additional ex post based on results punishment for success. There are advantages and disadvantages of both approaches with the ex-post having one significant advantage over the ex-ante, by creating an interest for the driver to avoid accidents and induces them to use their own know how to avoid behaviours that can lead to harm. Friedman explains that being distracted is most dangerous behaviour for him as driver, but there are no tickets for this.9

III EX-ANTE & POLLUTERS

Ex ante punitive measures are only on imposed behaviours that are easily observed and proven whereas Ex post punishments can be imposed based on outcomes irrespective of if the causational behaviours are initially observed. Comparatively this argument for the advantage of ex post over ex ante punishment looks to address similar issues identified by Coase’s work in a different context, examining the cost and benefit of pollution for polluters and neighbours. Similarlyforpolluters to thedriving analogy, direct regulation controls inputs causing pollution with effluent fees that punish unwanted output or pollution and shift the onus on the polluter to decide how best to reduce it similar to liability for accidents punishing the driver and inducing them to decide how best to avoid the harm. Both polluter fees and ex post punishment reduce the information required by the legal system to reduce harm. Friedman argues that the advantages of an ex ante punishment is that it prevents harm before it happens. ‘Both speeding tickets and tort liability are approaches to preventing accidents before they happen.’10

IV EX-POST & LITIGATION FOR TORTS

Conversely Friedman argues that ex post punishments will only penalise the perpetrator once the harm has occurred. He contends that tortious litigation that awards damages for liability after the harm is endured will not prevent the accident similar to the issuance of speeding infringement noticenot preventingthatact ofspeeding orharmcausedbyasubsequent accident but rather the thought that you might receive a penalty incentivises you to not drive over the speed limit. He elaborates that punishing those involved in accidents incentivises people not to have them.11

8 Goldberg and Zipursky (n 4) 77.

9 Ibid 75.

10 Ibid 77.

11 Ibid.

Friedman explains that a fine is a loss to the person speeding but it also someone else’s gain in terms of the money that goes back to the issuing authority and state coffers. Similarly in litigation if liability damages are awarded, they go to the plaintiff. Alternatively, the criminal punishments of execution and imprisonment sees the offender lose their life or liberty and yet nobody will gain or be compensated a life or extra freedom. The offender loses their liberty, and society pay to incarcerate them. Therefore, both execution and imprisonment are costly punishments in terms of economic efficiency compared to fines. Criminal law typically relies on these costly punishments and more so imprisonment which is still needed even for those sent to death row.12

Friedman explains that the committing of crimes usually results in costs in terms of economic efficiency with the cost borne by society to and as mentioned Tort or civil law for wrongs committed usually results in the payment of damages to the plaintiff. Friedman profoundly states that ideally low-level ex-post punishments should be used as “they are almost always superior to ex ante punishment, since they can be paid in money, impose little cost through risk aversion, and provide an incentive for actors to use their private information to avoid accidents. So an efficient system that uses ex ante punishments will supplement them with at least some level of ex post punishment. To provide a visual aid to understand Friedmans paper I have created the below table.13

VI CONCLUSION

Friedman correctly contends that attempted crimes should be punished as an ex-ante punishment of imprisonment which deters attempts of serious crimes and recklessness by polluters that also prevents the harm before it happens. He also states that attempted torts should not be punished as there is not, yet any harm caused to prevent. Arguably if there was enough reasonable foreseeability of the potential harm and it was ignored by the person, and they acted intentionally with knowledge of the harm, this could then lead to criminal prosecution. This is supported by the legal understanding that negligent acts do not occur from

intentional harm, which is usually treated instead as a criminal matter. Therefore, attempted tortswhichinmyminddon’treallyexist,shouldnotbepunishedunlikeattemptedcrimeswhere the perpetrator has the intention to commit a crime and cause harm.

THE VALIDITY OF TRUTH FINDING IN CROSS-EXAMINATION: WIGMORE THROUGH THE LENS OF R V MILAT: A CASE STUDY IN CROSS-EXAMINATION1

BONIFACIO ARRIBAS

ABSTRACT: Is cross-examination ‘beyond…doubt the greatest legal engine…invented for the discovery of truth?’2 John Henry Wigmore (‘Wigmore’) set the stage for this assertion within the legal community. Considering the historical (coined in early 20th century) and subjective frameworks in the decision whether to either cross-examine, could Wigmore have been misunderstood by contemporary jurists? This essay attempts to answer this question through investigation of Dan Howard’s case study of cross-examination in R v Milat.

I INTRODUCTION

Contextually, Wigmore’s ideal was that ‘a legal system need not degenerate into arbitrary justice.’3 He believed that cross-examination in evidence possessed both vitality and flexibility.4 This paper thus opines that cross-evidence application to truth finding may be the best legal engine only if the circumstances of a case merits it. An investigation through the lens of its validity will be looked at through Dan Howard’s case study via comparison of its unreliability and less-effectiveness in other situations.5 These include first, where evidence raises doubt. Second, judges’ direction through court control. And third, pressure that traditional cross-examination would have on vulnerable witnesses. Following the three situational break-downs, Wigmore will be mentioned showing an alternative interpretation of what he could have meant regarding cross-examination. A brief summary of the discussions presented will conclude this study.

II DAN HOWARD’S CROSS-EXAMINATION CASE STUDY VIS-À-VIS EVIDENCE DOUBT

‘There can be absolutely no doubt that whoever committed all eight offences must be within the Milat family or very…closely associated…There can be absolutely no doubt,’6 exclaimed Terry Martin (‘Martin’) to the jury. He was the defence council for the accused Ivan Milat (‘Milat’). The reason for Martin’s conceding despite his acting on behalf of Milat was because of the overwhelming evidence presented at trial. As described by Howard: ‘The evidence in the case for the prosecution against Ivan Milat was immensely strong.’7 In other words, the evidence was both relevant and admissible.8 Judicial discretions to exclude evidence did not apply. For example, there is the public policy discretion to exclude illegally or improperly

1 Dan Howard, R v Milat: A Case Study in Cross-Examination (LexisNexis Butterworths, 2014). Please note as the case of Milat was held in New South Wales, New South Wales and the Common Law will be applied in this paper.

2 John Henry Wigmore, Evidence in Trials at Common Law, ed James H Chadbourne (Little, Brown and Company, rev ed, 1974) 5, 32.

3 Andrew Pornwancher, John Henry Wigmore and the Rules of Evidence: The Hidden Origins of Modern Law (University of Missouri Press, 2016) 16.

4 Ibid 69.

5 Howard (n 1).

6 Ibid 18.

7 Ibid 25.

8 Evidence Act 1995 (Cth) s 55.

obtained evidence as per the Ireland or Bunning v Cross discretion.9 In this discretion, essentially it has been accepted that ‘convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price’10 and thus deemed inadmissible.

In Milat, the evidence collected, presented, and admitted in Court were obtained lawfully with search warrants by police at Milat’s home adhering to legislative requirements.11 Additionally, the evidence collected and admitted was directly linked to victims. Milat’s defence council appealed to the High Court in relation to identification evidence where the application was dismissed. McHugh J decided that ‘it is clear enough that the applicant seeks to agitate matters previously determined against him.’12 In other words, the High Court dismissed the appeal because it considered that there was no miscarriage of justice.13

In these circumstances, where evidence presented is overwhelming, casting little doubt to proof of guilt of an accused, then yes, ‘cross examination is the greatest legal engine ever invented for the discovery of truth.’14

Otherwise, as per other court discretions in addition to the Ireland or Bunnings v Cross discretion mentioned above, as well as the Evidence Act where it states that ‘the court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to a party, or be misleading or confusing, or cause or result in undue waste of time,’15 no cross-examination would exist.

III DAN HOWARD’S CROSS EXAMINATION CASE STUDY VIS-À-VIS JUDGES THROUGH COURT CONTROL

In circumstanceswhereevidencehasbeenadmittedbecauseitwaslegallyobtainedandrelevant to the case, a cross-examined witness can still be influenced through a judge’s direction, further lessening the credibility of cross-examination being the greatest legal engine ever invented for the discovery of truth maxim.

In Howard’s case study, where he analysed three-days of cross-examination of Milat by the chief Crown prosecutor Mark Tedeschi (‘Tedeschi’), on day-one the judge interceded a total of four times that dealt not with directions to the jury, but clarification questions with Milat regarding material evidence that Tedeschi was unable to confirm.16 The judge asked Milat: ‘You mean the door going into the house?’17 In essence, it can be inferred that the judge was actually supporting the crown prosecution due to the overwhelming evidence that connected Milat to the crimes.

A miscarriage of justice can occur, however, if a trial at first instance resulted in a conviction of an accused by a jury which may partly have been caused by the trial judge’s misdirection.18 In the Jamaican case Junior Leslie, the accused was charged with murdering a mother and his son. Capital punishment would have been the penalty. Here, the ‘judge directed the jury that if they accepted the truth of [the accused’s] written statement they should convict him of both

9 R v Ireland (1970) 126 CLR 321 and Bunning v Cross (1978) 141 CLR 54.

10 R v Ireland (1970) 126 CLR 321, 334-335 (‘Ireland’).

11 See Law Enforcement (Police Powers and Responsibilities) Act 2002 (NSW). Note that the Act also has provisions allowing police to enter premises without warrant if there are reasonable grounds (Part 4).

12 Ivan Robert Marko Milat v R [2004] HCA 17, 30 (‘Milat’).

13Criminal Appeal Act 1912 (NSW) s 6.

14 Wigmore (n 2).

15 Evidence Act 1995 (NSW) s 135.

16 Howard (n 1) 44, 56, 113, 135

17 Ibid 44.

18 Junior Leslie v The Queen [1997] 2 WLR 910 (PC).

murders under the principle of common design.’19 After appeals, the accused’s conviction was later commuted to life imprisonment.

During the initial trial of Junior Leslie, the attorney arrived late in court and there was a bias in the cross-examination of the prosecution witness. For one, the attorney arrived late in court. However, the trial judge did not intervene to correct the lawyer during cross-examining the witness nor did the judge extend the length of time to allow more questioning so the jury would understand the facts and circumstances of the case better.

Junior Leslie canbe comparedto theAustralianmurdercase Wood, whereonegroundofappeal was unanimously decided because ‘the trial miscarried by reason of the prejudice occasioned by the crown prosecutor.20

As shown in Junior Leslie, cross-examination played a part in the misdirection, which further questions the eligibility of it being the greatest legal engine to the finding of truth.21

IV DAN HOWARD’S CROSS-EXAMINATION CASE STUDY VIS-À-VIS CROSSEXAMIINATION OF VULNERABLE WITNESSES

Cross-examination is premised on the idea that face-to-face confrontation in open court...between witnesses and the defendant provides the strongest assurance of accurate testimony.22 It is further premised that ‘through cross examination…facts from the witnesses not raised in direct examination [can] challenge the credibility of that witness [and is] relevant to a jury’s determination of guilt.’23

Who, however, is required to give that evidence during cross-examination? Are all witnesses or accused required to do so in the traditional cross-examining form?

Australian uniform evidence legislation provides that a person is required to give evidence in court if he or she ‘is competent to give evidence and…is competent to give evidence about a fact and is compellable to give that evidence.’24 Competence and compellability for a witness to take the stand rests upon his or her capacity. A person is deemed not to have capacity if he or she possesses a mental, intellectual, or physical disability where ‘the person does not have the capacity to understand a question about the fact; or the person does not have the capacity to give an answer that can be understood to a question about the fact and that incapacity cannot be overcome.’25

In Milat, the accused was deemed competent and compellable. Ivan Milat was mentally, intellectually, and physically capable of being questioned. He had property. He knew how to operate machinery for his job and working knowledge of firearms. He had a job. He was fit.

However, unlike Milat, what if evidence admitted casts doubt? Would cross-examination still be the best approach to discover truth? A case-in-point would be when a witness being crossexamined is a vulnerable witness. Vulnerable witnesses belong to a certain class but this is not exhaustive. These include ‘children; persons who have cognitive and other impairments;

19 ‘Administrative Law’ (1997) 23 Commonwealth Law Bulletin 720, 800 and see Junior Leslie v The Queen [1997] 2 WLR 910 (PC).

20 Wood v R [2012] NSWCCA 21 [48], [659].

21 Junior Leslie v The Queen [1997] 2 WLR 910 (PC).

22 Johnathan Clow, ‘Throwing a Toy Wrench in the “Greatest Legal Engine”: Child Witnesses and the Confrontation Clause’ (2015) 92 Washington University Law Review 793, 793.

23 Ibid.

24 Evidence Act 1995 (Cth) s 12.

25 Ibid s 13.

Aboriginal and Torres Strait Islanders; persons from culturally diverse backgrounds; victims of sex offences or domestic violence; and others classified as “vulnerable” witnesses.’26

Uniform evidence legislation for determining if whether or not a witness is both competent and compellable is a court discretion based on the following policy considerations:

(1) For desirability, in the public interest, or having all relevant evidence available to the courts;

(2) The undesirability that the procedures for enforcing the criminal law should be allowed to disrupt marital and family relationships to a greater extent than the interests of the community really require; and

(3) That the community should not make unduly harsh demands on its members by compelling them, where the general interest does not require it, to give evidence that will bring punishment upon those they love, betray their confidences, or result in economic and social hardships.27

With regards to family witnesses, for example, uniform evidence legislation advises that a person who, when required to give evidence, is the spouse, de facto partner, parent or child of a defendant, they may object to being required to give evidence.28

In these instances, therefore, traditional cross-examination methods would not be the best legal engine for finding out the truth. Other less ‘hands-on’ methods should be used. Examples of other methods of questioning or finding out the ‘truth’ from ‘vulnerable’ witnesses may include being provided with a support person, admitting recorded evidence, giving evidence from another room, and being provided with a support person.29

V WIGMORE ON CROSS-EXAMINATION BEING THE GREATEST LEGAL ENGINE IN THE SEARCH FOR TRUTH: COULD HE HAVE BEEN INTERPRETED DIFFERENTLY?

First, Wigmore first observed that ‘cross-examination may be the greatest legal engine for the discovery of truth’ in his voluminous treatise summarily called Wigmore on Evidence, the publication of which began in 1904.30 At this time, court practices in the United States would havebeen different fromwhat theyaretoday.Jurisdiction should also beconsideredfor,despite United States law being classed as Commonwealth law, would not have been identical to other Commonwealth countries. Looking at time considerations and jurisdiction within an Australian perspective, the first quarter of the 20th century would have just seen Australia becoming independent from the United Kingdom, with the Australian Constitution only coming into

26 Andrew Hemming, Evidence Law in Qld, SA and WA (Thomson Reuters, 2nd ed, 2009) 78.

27 Ibid 115.

28 Evidence Act 1995 (Cth) s 18.

29 Office of the Director of Public Prosecutions (ODPP) (NSW), ‘Court arrangements for vulnerable witnesses’ (Web page, 2021) < https://www.odpp.nsw.gov.au/preparing-for-court/court-arrangements-vulnerablewitnesses> and see especially Phoebe Bowden, Terese Henning and David Plater, ‘Balancing Fairness to Victims, Society and Defendants in the Cross-Examination of Vulnerable Witnesses: An impossible Triangulation?’ (2014) 37 Melbourne University Law Review 539, 543, where it is argued that ‘all Australian jurisdictions for the questioning of children and witnesses with intellectual disability that entrusts this task to an independent interviewer with specialist qualifications [emphasis added] in questioning such witnesses’ should be implemented.

30 George James, ‘The Contribution of Wigmore to the Law of Evidence’ (1940) 8(1) University of Chicago Law Review 78.

(c) University of Southern Queensland

effect in 1901.31 In fact, Australian appeals from the High Court to the Privy Council in the United Kingdom did not end until the commencement of the Australia Acts 1986 (Cth).32

In essence, Wigmore’s theory should be looked at cautiously as it was intended with an AngloAmerican evidence law lens and not a heavily United Kingdom evidence law influenced, but newly independent, Anglo-Australasian standpoint.

Second, legal developments have considerably changed since Wigmore coined the term. The procedures in court continuously develop due to its organic nature. After only twenty years, since Wigmore’s dictum, for example, MacRae’s research found that ‘new cases…number some 30,000…new topics run to a hundred or more, not counting accretions to and expansions to former topics.’33 From this finding, he believed that the concept of cross-evidence, ‘in the light of one rule…may be admissible, but inadmissible in the light of another.34

And third, the sentiment of determining the validity or invalidity of Wigmore’s dictum seems to beconstant following thepassageoftime.Consideramore contemporary researcher,Booksh Jr who found the following in 1975:

Varying considerations have led to disagreement over the proper scope of cross-examination. The broad rule…permits cross-examination on any relevant issue; the narrow rule…limits the inquiry on cross-examination to matters elicited on direct examination to those affecting the witness’s credibility. The divergence of opinion illustrates that neither mode of crossexamination is without disadvantages.35

VI CONCLUSION

In conclusion, it is unlikely that Wigmore’s quote (‘cross-examination is the greatest legal engine ever invented for the discovery of truth’)36 would be able to hold weight as an absolute doctrine of law. The saying suggests that cross-examination should be a standard and expected procedure in all cases. Unfortunately, it fails to consider specific circumstances and different issues in each case. Three were investigated here.

First, that cross examination cannot be the greatest legal engine ever invented for the discovery of truth if there is doubt in the evidence that has been admitted in court. Second, that cross examination cannot be the greatest legal engine ever invented for the discovery of truth if there is a misdirection. And third, that cross examination cannot be the greatest legal engine ever invented if the case involves vulnerable witnesses.

In the end, Wigmore’s ideal of cross-examination should be looked at within the context of his other beliefs of the law. Specifically, where he opined that cross-examination in evidence possessed both vitality and flexibility.37 In other words, that the practice of cross-examination is “flexible” enough to bow down to other truth-finding procedures that would be equally, if not better able to find the truth if such an alternative is warranted.

31 Australian Constitution

32 Murray Gleeson, ‘The Privy Council –An Australian Perspective’ (Speech, The Anglo-Australasian Lawyers Society, The Commercial Bar Association, and the Chancery Bar Association, 18 June 2008) 2.

33 D. A. MacRae, ‘Wigmore on Evidence’ (1941) 4(1) The University of Toronto Law Journal 151, 151.

34 Ibid 152.

35 Robert W. Booksh Jr, ‘Article VI of the Federal Rules of Evidence: Witnesses’ (1975) 36(1) Louisiana Law Review 99, 100.

36 Wigmore (n 2).

37 Pornwancher (n 3) 69.

FATEMA NAZARI

ABSTRACT: The life of the law has not been logic; it has been experience...The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.1 This essay argues that legal realism is an analysis of the reasons that motivate the behaviour of judges and lawyers, and further explains its contribution to jurisprudence.

I INTRODUCTION

Legal realism is a descriptive theory of adjudication, about what judges really do when they decide cases. Legal realists state that common-law system of adjudication is subjective which produces inconsistent and incoherent results that are mostly based on the moral, social, and political preferences of judges. The behaviour of judiciary can be inclined to considerations of economic, pragmatic, sociological, and historical influences, along with psychological and personal prejudices and idiosyncrasies. They claim that the rules of law are imprecise in nature and discoveryof facts is animperfect process. Hence,theyseekto focus howcourts,in practice, reach decisions and regard the law as comprehensive predictions of what the courts will do. This essay will argue that legal realism is an analysis of the reasons that motivate the behaviour of judges and lawyers, and further explains its contribution to jurisprudence.

II THEORY OF LEGAL REALISM

Legal realism is a theory of law that arose in the early decades of the 20th century contending that law is best understood by focusing on what courts practically do in deciding cases2 rather than on what they say they are doing. The founder of this movement, Oliver Holmes Jr., condensed the law to the activity of courts and judges. This is a reference to a conception of adjudication rather than of law in general. Legal realism is the view that a legal system should follow the methods of natural science and should be based on empirical evidence.3

Principally, legal realism was a reaction to legal formalism, also known as ‘mechanical jurisprudence.’4 Legal formalism was the classical view that judges do not create law; instead, they mechanically and logically apply the law by arriving at a uniquely correct legal outcome5 from a set of clear, consistent, and comprehensive legal rules. Legal realists are convinced that there is more to adjudication than the mere mechanical application of established legal principles to uncontroversial fact-finding. For these scholars, the rules which legal formalism treats as uncontroversial, essentially conceals contentious moral and political choices. Realists also deem it uncertain whether the law and the facts recognized in the judge's reasoning are the actual reasons of the decision.6

Realism’s common themes are as follows:7

1 Oliver Wendell Holmes JR, The common law (Little, Brown, Boston 1881).

2 Brian Leiter, ‘Legal Realisms, Old and New’ (2013) 47 Valparaiso University Law Review 949, 950.

3 Brian Leiter, ‘Legal Realism and Legal Positivism Reconsidered’ (2001) 111(2) Ethics 278, 283.

4 Joseph W Singer, ‘Legal Realism Now’ (1988) 76(2) California Law Review 467, 496.

5 Timothy J Capurso, ‘How Judges Judge: Theories on Judicial Decision Making’ (1998) 29(1) University of Baltimore Law Forum 5, 9.

6 Glendon Schubert, ‘Judicial Attitudes and Voting Behaviour: The 1961 Term of the United States Supreme Court’ (1963) 28 Law and Contemporary Problems 100, 100.

7 Singer (n 4) 502.

(a) Influences of Authority and Economics

Realists believe that the common law principles protect the commercial and economic interests of most powerful figures of the society. Courts uphold the interests of the members in power, behind the judgement of what is right.

(b) Doubt about the Judicial Technique of Apparent Deduction of Legal Conclusions from the Rules of Law.

The realists believe that law is not a set of rules that is clear, consistent, and complete as formalists claimed. Relatively, the law is packed with ambiguities, vague terms, contradictions, and incompatible rules of interpretation. Resultantly, there is usually no correct answer unique to any hard case which judges decide.8

(c) Law as an Instrument for Society’s Welfare

Realism maintains that the law does and should serve social ends.9 Judges do take considerations of public policy and fairness into account to enhance society’s welfare.

(d) A Pragmatic Approach for Sustainable Results

Realists believethat lawshouldbeviewedscientifically,as anempirical scienceto resolvelegal disputes.Judges must surveycompeting interests, substituteapproaches and theirconsequences when they hand down opinions.10 It mandates to cite that Realists do not propose that judges disregard the rule of law. Rather, they uphold that the role of the rule of law is minimized in the process oftheirdecision-making.11 Nonetheless, legal realism is not aunifiedschool ofthought, but it generally analyses the motives that provoke the behaviours of judges.

III ANALYSIS OF JUDGES/LAWYERS’ BEHAVIOUR

Realism describes the causal connections between the fundamental situation types of cases and the actual judicial decisions.12 In regards to adjudication, Realists think that judges primarily react to the underlying facts of the case, when they decide cases, instead of responding with applicable rules and legal reasons. They ponder that judicial decisions carry distinct patterns which make the prediction feasible. However, these patterns do not derive from the existing legal rules. Rather, the decisions acquire patterns which are associated with the underlying factual scenarios of the case.13 Subsequently, it is the judicial response to the ‘situation type’14 that governs the outcome of the case at hand. Karl Llewellyn, upon observing a number of cases,15 found that background facts and commercial practices (the situation-type)16 determined

8 Brian Leiter, ‘Rethinking Legal Realism: Toward a Naturalized Jurisprudence’ (1997) 76 Texas Law Review 267, 301.

9 Singer (n 4) 515.

10 Ibid 502.

11 Capurso (n 4) 13.

12 Leiter (n 3) 283.

13 Ibid 281.

14 Ibid.

15 Karl N Llewellyn, The Common Law Tradition: Deciding Appeals (Little Brown, Boston, 1960) 122-124.

16 Ibid 126.

the decision. The court, being ‘sensitive to commerce or to decency’17 applied rules more severely in particular cases to accommodate the fluctuating market conditions.

Herman Oliphant’s comparison of two ‘promise-not-to-compete cases’18 demonstrates that decisions of these cases do not refer to the law but orient themselves to predominant norms in the commercial culture in which the disputes took place. In each case, the prevailing ‘commercial norms’19 brought the differing outcomes. Yet, the courts referred to the rules that did not explain the actual decisions, and to the principles of contract law, instead of clearly stating that they were, in effect, enforcing the norms of the prevailing ‘commercial’ culture.20 When Holmes attaches judicial decisions to legislative policy,21 he is professing that these policy concerns are not legal reasons in themselves.

Similarly, Realism asserts that the class of legal reasons given by judges in justification of a decision cannot justify a unique outcome in other cases.22 It correlates with Realism’s argument that law is rationally indeterminate. If laws were determinate, legal rules and legal reasons would beunfailing sources to predictjudicialconclusions.23 Nevertheless,indeterminacyin law is evident in many cases where there is no foundation to a particular decision of a court. Oliphant’s example of ‘the promise-not-to-compete cases’ shows that the law is indeterminate because the normative reasons24 the courts have used for justification, are not themselves legal reasons. Henceforth, such reasons would not render a unique outcome for other case scenarios. In that instance, legal reasons could then justify an equally conflicting result. If rules and legal reasons neither rationalise the decisions nor explain them; then, it compels the search for other influences to clarify the court’s decision as it did.25

Realism also places the indeterminacy of law in the legitimate but contradictory standards of interpretation that courts could make use of, to obtain different rules from the same precedent or statute.26 The Realists proclaim that by study of precedents, we can only predict;27 we cannot be certain that what was established in the past opinion will be followed in the next case. Indeterminacy of law is not in the rules themselves but in methods we have of portraying what rules the precedents and statutes could cover.

According to Llewellyn, there is more than one way of interpreting legal rules extracted from a relevant precedent. For him, one key reason for the misconception of the logical form is becausethedoctrineofprecedent is ‘two-headed’,28 andthetwoheads areequally contradictory when applied to the one case. Thus, it seems to make the doctrine of precedent a theory of possibilities. Llewellyn argues that any precedent can be read ‘strictly’ or ‘loosely’.29 The strict interpretation designates the rule of a precedent as specific to the facts of the case; the loose interpretation avoids distinguishing factors and abstracts from the specific facts to use the case

17 Ibid 124.

18 Leiter (n 3) 292.

19 Ibid.

20 Ibid 291.

21 Leiter (n 8) 301.

22 Ibid 285.

23 Ibid 284.

24 Ibid 292.

25 See Ibid.

26 Leiter (n 3) 295.

27 Llewellyn (n 15) 62.

28 Ibid 65.

29 Ibid 66.

as an authority for some general norm.30 In accordance with Realism’s view, if each precedent has two values, they cannot afford reasons for a unique result because one or more rule can be taken out from the same precedent.

Realism claims that when it comes to adjudication, judges basically respond to the stimulus of the facts in deciding cases.31 This claim is favoured by major Realists. Oliphant, for example, articulates that courts react to the stimulus of the facts of cases rather than to the stimulus of ‘over-general and outworn abstractions in opinion.’32 Judge Hutcheson has been cited to admit that ‘the vital, motivating impulse for the decision is an intuitive sense of what is right or wrong for that cause.’33 Likewise, Jerome Frank cited Chancellor Kent, confessing that:

[H]e first made himself 'master of the facts. Then saw where justice lay, and the moral sense decided the court half the time; I then sat down to search the authorities . . . but I almost always found principles suited to my view of the case.34

According to Frank, the ‘judicial hunch is a composite reaction’35 to a myriad of responses to the stimuli set up by various personal and environmental preconceptions. This intricate reaction which judges experience becomes the basis of a judicial conclusion.

One of the Realists’ concerns about the law was the impact it had on a lawyer and his/her client. The lawyer is the bridge between public and the law officials.36 It becomes necessary that the lawyer must know the rules of law and what they mean to predict what the courts will do. They must also know the norms of the community and the needs of the client. Jerome Frank is professed to illustrate his concern about law as it ‘affects the work of the practicing lawyer and the needs of the clients who retain him.’37 Holmes points to the meaning of the law to lawyers who would ‘appear before judges or advise people so to keep them out of court.’38 What people want to know about the law is what the courts will do when confronted with their dispute. Realists signify that, in practical sense, that is all the law that matters to a client, and to the advising lawyer of a client.39 This assertion aims to give a gainful use of law for lawyers who must advise clients and shape the client's conduct to suit their desires.

Additionally, Karl claims that, when dividing the law, the interplay between substantive law and adjective law40 directs the actions of lawyers. Substantive laws are determined and laid down by legislatures and they make clear what ought to happen. Adjective law is more like a procedure which regulates the work of the courts. Hence, procedural regulations become the gateway to making real41 the rules placed by substantive law. He claims that it is these procedures that cause lawyers to act as they do. This is a significant aspect because he contends that the lawyer's slip in following procedure is the client’s fall.42

30 Leiter (n 3) 295.

31 Leiter (n 8) 276.

32 See Ibid.

33 Joseph Hutcheson, ‘The Judgment Intuitive: The Function of the ‘Hunch’ in Judicial Decision’ (1929) 14(3) Cornell Law Quarterly 274, 285.

34 Capurso (n 5) 6.

35 Ibid.

36 Karl N Llewellyn, Bramble Bush: Some Lectures on Law and Its Study (New York, 1933) 14.

37 Leiter (n 3) 291.

38 Oliver Holmes, Jr., ‘The Path of the Law’ (1897) 10 Harvard Law Review 457, 457.

39 Leiter (n 3) 292.

40 Llewellyn (n 36) 7.

41 Ibid 8.

42 Ibid 19.

Realism’s continuing influence on legal thought has been profound. Most legal theorists would concur that the Realists were successful in their core ambition of contesting ‘formalist or mechanical’43 aspects of law and legal reasoning. It is generally accepted that law cannot be an exact science and therefore, it is essential to examine what judges are practically doing in deciding cases instead of merely accepting what they say they are doing. It succeeded in throwing light upon Formalist assumptions that judges always did what they said.44

The legal theorists, like legal realists, deny extracting specific rules from abstract legal principles.45 This idea has diverted their attention away from substantive legal principles to the operative process of legal institutions such as courts. They acknowledge that much of law becomes political when political figures disagree about substantive ends. They reason that legal rules can be justified when legitimate institutions stay within their appropriate roles,46 and if they are formed through a valid set of procedures.

Legal process school is flourished by Realism in a sense that the former cautions judges to allow the legislature as the main law-making body.47 When they cannot, these theorists encourage judges to reconcile the law with the purposes and the policies behind the rules they are enforcing, and not just mechanically. This necessitates an interpretation of the reasons behind existing law that resolves contradictory principles and governs the proper balance between competing social interests.48 Legal theorists want judges to use a ‘combination of analogy and policy analysis’49 to draw lines between opposing interests and principles which tends to be one of the themes of Realism.50

Legal realism efficaciously has changed the nature of persuasive argument.51 Receiving the Realist note, most legal scholars refuse answering legal questions by invoking the ‘inherent natureoftheabstract concepts ofproperty,contract, andliberty.’52 Thesescholars separatesuch concepts by line-drawing rather than by asserting definitions.53 For this resolution, these theorists bear in mind the ‘policies, principles, and purposes’54 which are the basis of legal rules. It is their objective to interpret and construct legal rules to accomplish those underlying purposes; it is also one of the themes of Realism.

Consequently, the approach that Realism has delivered to legal theory is a naturalistic method. The Realists advocate an empirical theory of adjudication because they contemplate that the traditional jurisprudential scheme of justifying decisions based on legal rules and reasons is futile.55 As Realists deem laws to be rationally indeterminate, this calls for inspecting, with a naturalistic vision, other elements which cause courts’ decisions. This feature of Realism seems engrained in legal theory.

Legal Realism has fundamentally changed our conceptions of legal reasoning, as well as of the connection between law and society. Although Realism did not triumph in framing ‘normative

43 Singer (n 4) 501.

44 Ibid.

45 Ibid 505.

46 Ibid.

47 Ibid 502, 508.

48 Ibid 508.

49 Ibid.

50 Ibid 502.

51 Ibid 503.

52 See Ibid.

53 Ibid.

54 Ibid.

55 Leiter (n 3) 284.

legal argument’,56 it did succeed in familiarising ‘interest balancing, line-drawing, policy analysis, purposive reasoning, and process concerns’ into legal thought.57 It could be revealed that the Realists’ insights have helped legal theorists in their attempt to formulate normative legal argument. According to Joseph, all major schools of thought are by-products of legal realism.58

V CONCLUSION

Legal realism is a theory of adjudication that focuses on the behaviour of judges when they render decisions. They claim to look at what the courts practically do since judicial processes and legal principles are imperfect and inconsistent, respectively. Realists put forward that judges are frequently influenced by their personal values, political beliefs and individual personalities, and many other non-legal factors (social interests and public policy) in their judgement.

THE MYALL CREEK MASSACRE: AN UNPRECEDENTED DECISION IN TURBULENT TIMES

KAYLENE WATERS

ABSTRACT: This paper explores how the Myall Creek Massacre was successfully prosecuted in apolitical climateunconduciveto its accomplishment Colonial conflict, theroleofthepress, key influential figures, common law procedures structurally excluding Aboriginal people, inherent difficulties and settlor justification of violence as self-defence or provocation is discussed This unprecedented and long overdue decision in turbulent times demonstrated a rising humanitarianism interest in indigenous wellbeing.

I INTRODUCTION

In June 1838, at Myall Creek, a posse of twelve armed stockmen roped together about 30 Aboriginal women, childrenand old men,andledthem awayto theirdeaths.1 Theywerehacked or clubbed to death, and then decapitated,2 with the stockmen returning the next day to cover up the ‘dreadful deed’ by burning the bodies.3 Against tremendous public opposition, seven white men faced two trials and were eventually convicted and executed.4 The case was unprecedented, borne out of significant humanitarian pressure5 for greater protection of native people6 and ‘their lands from settler acquisitiveness and brutality’ 7 Yet, in spite of the determination of the Colonial office to protect the rights of Aboriginals,8 any reference to indigenous policy simply created further colonial dissatisfaction with the current system of government.9

The 1830s was marked by rapid colonial expansion10 and intense frontier violence.11 As squatters claimed lands outside the legally established boundaries of the settlement12 without the imprimatur of the authorities,13 they competed with natives for territory and food.14 Determined to consolidate their power over newly seized land,15 the settlers were drawn into greaterconflict with thenatives as thelandhungerintensified.16 In an atmosphereofheightened public fear,17 political struggle, plummeting wool prices,18 and a ‘precarious financial

1 Richard Broome, Aboriginal Australians (Allen & Unwin, 5th ed, 2019) 46.

2 Jane Lydon, ‘Anti-slavery in Australia: Picturing the 1838 Myall Creek Massacre’ (2017) 15(5) History Compass 1, 2.

3 Jane Lydon and Lyndall Ryan, Remembering the Myall Creek Massacre (NewSouth Publishing, 2018) 3.

4 Lydon (n 2) 4.

5 Alan Lester and Fae Dussart, ‘Masculinity, ‘Race’, and Family in the Colonies: Protecting Aborigines in the Early Nineteenth Century’ (2009) 16(1) Gender, Place and Culture 63, 67.

6 Ann Curthoys and Jessie Mitchell, ‘The Advent of Self-Government, 1840s-90’ in Alison Bashford and Stuart Macintyre (eds), The Cambridge History of Australia (Cambridge University Press, 2013) 149, 157.

7 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, 67.4.

8 Julie Cassidy, ‘The Enforcement of Aboriginal Rights in Customary International Law’ (1993) 4(1) Indiana International & Comparative Law Review 59, 65.

9 Curthoys and Mitchell (n 6) 156.

10 Wood (n 7) 67.3.

11 Lydon (n 2) 2.

12 John N Molony, An Architect of Freedom: John Hubert Plunkett in New South Wales, 1832-1869 (ANU Press, 1973) 137.

13 Lisa Ford and David Andrew Roberts, ‘Expansion, 1820-50’ in Alison Bashford and Stuart Macintyre (eds), The Cambridge History of Australia (Cambridge University Press, 2013) 121, 129.

14 Tracey Banivanua Mar and Penelope Edmonds, ‘Indigenous and Settler Relations’ in Alison Bashford and Stuart Macintyre (eds), The Cambridge History of Australia (Cambridge University Press, 2013) 342, 349.

15 Curthoys and Mitchell (n 6) 156.

16 Mar and Edmonds (n 14) 350.

17 Lydon (n 2) 2.

18 Ford and Roberts (n 13) 132.

situation’19 with theendof transportation looming,colonial tensions werehigh.20 A‘calamitous drought’ lasting two to three years added to the difficulty 21 Under fear of imminent attack, the settlers believed killing the indigenous was a necessary and justified aspect of frontier life,22 to the point it was so common ‘it was barely regarded a crime’ . 23 However, as the Myall Creek trials shows, it was possible for legal authorities to prosecute whites for the frontier killing of Aborigines,24 but not without significant difficulty.

Thispaperwillarguethe successfulprosecutionoftheMyallCreekmassacrewasduetoseveral crucial factors. Firstly, the political context before and during the trials will be explored. The burgeoning conflict between the Colonial office and settlers’ interests will be discussed. Next, thekeyfiguresinvolvedinbringingthecasetoanswerwillbeidentifiedaspivotaltothesuccess of the prosecution Finally, the role of the press will be examined. Next, it will be examined howcommon lawprocedures structurallyexcludedAboriginal people despitebeing proclaimed as British subjects. It will be argued the inherent difficulties experienced by the indigenous were due to an ignorance and lack of understanding of common law Then, the restriction of Aboriginal witnesses due to inadmissible testimony will be discussed. Lastly, the usage of the common law notions of reciprocity and retaliation by settlers to justify their violent actions as self-defence or provocation will be discussed.

IITHE SUCCESS OF THE PROSECUTION

The Myall Creek massacre was a landmark case symptomatic of the racial attitudes in the colony expressedthrough humanviolence.25 It was dueto several crucialfactorsaguilty verdict was ultimately reached. Onefactor was thepolitical context as growing tensions ofcolonisation sat alongside emergent humanitarianism.26 When the colonial office heard of the atrocity,27 the struggle between the powerful British humanitarians and settler interests was at its peak.28 As such, the massacre was symbolic of the conflict between the actions of the settlers on the frontier and the ideals of the humanitarians and colonial authorities.29 The successful prosecution of the massacre was an extraordinary feat set against a backdrop of settler aggression and a law that was highly amenable to manipulation to serve settler interests.30 With the political influence of the British humanitarians at its peak in the mid-1830s,31 its members exerted significant influence on imperial aboriginal policy by lobbying their ideas and holding key positions in both the Parliament and the Colonial office.32 With anti-slavery successfully abolished in 1833, the focus shifted to the welfare of indigenous people in the colonies.33

19 Wood (n 7) 67.4.

20 Ibid 67.3.

21 Roger Therry, Reminiscences of Thirty Years’ Residence in New South Wales and Victoria (Sampson Low, Son, and Company, 1863) 227.

22 Brent Salter, ‘For Want of Evidence: Initial Impressions of Indigenous Exchanges with the First Colonial Superior Courts of Australia’ (2008) 27(2) University of Tasmania Law Review 145, 150.

23 Mar and Edmonds (n 14) 350.

24 Sidney L Harring, ‘The Killing Time: A History of Aboriginal Resistance in Colonial Australia’ (1994) 26(2) Ottawa Law Review 385, 398.

25 Michael Sturma, ‘Myall Creek and the Psychology of Mass Murder’ (2009) 9(16) Journal of Australian Studies 62, 62.

26 Mar and Edmonds (n 14) 346.

27 Lydon (n 2) 2.

28 Ibid.

29 Sturma (n 25) 62.

30 Libby Connors, ‘Witness to Frontier Violence; An Aboriginal Boy before the Supreme Court’ (2011) 42(2) Australian Historical Studies 230, 243.

31 Cassidy (n 8) 65

32 Ibid 64.

33 Mar and Edmonds (n 14) 350

Another crucial factor in the success of the trials was the key figures involved in the lead up to and during the trials. In the colonial office, prominent humanitarian, Lord Glenelg, was the Secretary of State,34 with his able and distinguished colleague, James Stephen, as the UnderSecretary.35 BothmenheldexaltedviewsonthehumandignityoftheAborigine36 andpromoted the equal legal status of indigenous people via administrative directives.37 According to official records, the full recognition of Aborigines as British subjects was a direct consequence of these administrative directives.38 On the colonial front, Governor Gipps, another evangelical humanitarian,39 was pivotal in seeing the trials come to light. He asserted the rule of law over the frontier40 by ordering the investigation and both trials of the massacre.41 Thomas Foster and William Hobbs, two station managers, deserve mention as the men who reported the murders and broke the code of silence, bringing the incident to attention.42 Next, Muswellbrook Police Magistrate, Denny Day,43 was directed by Governor Gipps to investigate without delay and arrest those involved.44 He faced many obstacles from unwilling witnesses who feared for their lives.45 However, despite great opposition and difficulty, he diligently investigated the murders,46 tracked down the culprits,47 and after 53 days captured eleven of the twelve accused men.48

Arguably, the most significant figure was Attorney-General John Plunkett. With his strong sense of duty, unflinching dedication to task and allegiance to Catholicism, he held a deep human compassion, strong resentment of injustice and a desire to ensure all men knew human dignity and value, in the context of the law.49 With colleague Roger Therry as acting counsel,50 Plunkett prosecuted the accused men over two trials before a civil jury.51 Plunkett faced great opposition from Myall Creek Station owner Henry Dangar, who joined the ‘Black Association’ to fund and assist the defence of the accused men.52 Dangar’s interference included damaging the reputation of key witness Hobbs, and undermining Anderson’s evidence.53 In selecting the jury for the second trial, the rarely used method of ‘pray a tales’ was engaged in response to suspected interference with potential jury members, so that jury members were selected off the street.54 However, despite the outcry against him,55 and determined to secure a conviction,56 Plunkett brought justice to the men accused of the massacre, who were hanged for their crimes,

34 Cassidy (n 8) 65.

35 Therry (n 21) 317.

36 Molony (n 12) 136.

37 Russell Smandych, 'Contemplating the Testimony of Others: James Stephen, the Colonial Office, and the Fate of Australian Aboriginal Evidence Acts, Circa 1839-1849' (2006) 10 Legal History 97, 100.

38 Castles (n 23) 517.

39 Mar and Edmonds (n 14) 350

40 Curthoys and Mitchell (n 6) 157.

41 Mar and Edmonds (n 14) 350

42 Lydon and Ryan (n 3) 99

42 Lydon (n 2) 4.

43 Molony (n 12) 140

44 Ibid.

45 Patsy Withycombe, ‘The Twelfth Man: John Henry Fleming and the Myall Creek Massacre’ in Jane Lydon and Lyndall Ryan (eds), Remembering the Myall Creek Massacre (NewSouth Publishing, 2018) 48

46 Ibid 47.

47 Ford and Roberts (n 13) 124.

48 Charles Manning Hope Clark, Manning Clark’s History of Australia (Melbourne University Press, 1997) 202, 203.

49 Molony (n 12) 8.

50 Withycombe (n 45) 106.

51 Molony (n 12) 140.

52 Lydon and Ryan (n 3) 28.

53 Ibid 29

54 Mark Tedeschi, Murder at Myall Creek (Simon & Schuster, 2016) 158

55 Therry (n 21) 282.

56 Lydon and Ryan (n 3) 31

and in doing so made it clear to all equality before the law existed for both black and white people.57

Another powerful impact on the trials was the press via newspapers, which was avidly consumed by the colonists daily.58 In the colony the press could be a ‘powerful auxiliary in rousing community outrage’59 as seen with the Sydney Herald. The second trial, for example, was referred to as a ‘persecution rather than a prosecution’ espousing settler sentiments and those in support of the defence.60 Yet, there were other publications like the Australian and the Colonist who encouraged readers to take a more magnanimous perspective.61 The Herald due to greater circulation,62 however, played a more significant role in colonial perspectives in ‘weaving its drama of pathos and pity’ in its one-dimensional story of life on the frontiers.63

III STRUCTURAL EXCLUSION

It will now be considered how the common law procedures structurally excluded Aboriginal people, despite being proclaimed British subjects. By the mid-1830s, ensuring justice for Aboriginal people during colonial legal proceedings was a major problem.64 Although recognised as British subjects,65 Aboriginal people often faced insuperable difficulties.66 The British law made them feel intimidated as they were ignorant and had no understanding of legal proceedings.67 The sanctions of the British legal system had no application,68 nor bore any relation to their own complex system of social and moral control,69 or concepts of justice and human social existence.70 As such, the Aborigines maintained their own law and methods of social control71 to resolve their own disputes and those with the settlers.72 They appeared before the courts only due to the predication73 from the Colonial office that Aboriginal people were to be treated as British subjects74 who were amenable to75 and protected fully by English law.76 In reality, the rule of law did not give equal rights to Aboriginal people.77 The authorities, whether locally orin Britain, foundit nearimpossibleto ensureequal treatment78 andprotect Aborigines from the ‘moral and physical dangers of white settlement’.79

57 Molony (n 12) 147.

58 Wood (n 7) 67.5.

59 Connors (n 30) 235.

60 Therry (n 21) 279.

61 Clark (n 48) 204.

62 Wood (n 7) 67.5

63 Ibid 67.15

64 Castles (n 23) 523.

65 Mark Finnane, ‘They were Subject to our Laws’: Aboriginal Defendants in NSW Courts 1850-1914’ (2020)

17(3) History Australia 448, 449.

66 Castles (n 23) 523.

67 Peggy Brock, ‘Protecting Colonial Interests: Aborigines and Criminal Justice’ (1997) 21(53) Journal of Australian Studies 120, 121.

68 Molony (n 12) 135.

69 Brock (n 67) 121.

70 Molony (n 12) 135.

71 Brock (n 67) 121.

72 Harring (n 24) 391.

73 Finnane (n 65) 458.

74 Castles (n 23) 522.

75 Smandych (n 37) 98.

76 Castles (n 23) 522.

77 Brock (n 67) 127.

78 Ibid 121.

79 Molony (n 12) 136.

One critical way Aboriginal people were excluded by the procedures of the common law was through the restriction of Aboriginal witnesses.80 The admissibility of Aboriginal evidence or testimony in the courts was a practical difficulty81 as both indigenous witnesses and their evidence were excluded from legal proceedings.82 This meant Aboriginal defence witnesses could not give evidence nor could indigenous testimony be used in cases where the accused was European.83 Consequently, a narrative of settler authority prevailed.84 Settlers who had committed crimes against Aborigines had little reason to fear conviction85 as they had a monopoly on any evidence raised before the courts.86 This not only deeply affected the rights of Aboriginal people,87 but contributed further to their ‘ambiguous legal status’88 and invisibility in the legal system.89 However, it is uncertain as to why Aboriginal evidence was inadmissible in most cases, 90 with trial records providing inconclusive or little evidence.91 One explanation may be the difficulties in communication due to the complete lack of or rudimentary understanding of English byAborigines 92 Further, the lack of a reliable interpreter made it more difficult93 or precluded indigenous evidence entirely.94 Another reason sworn testimony from Aborigines could not be received in court95 is that the system was based on the concept of a creator the indigenous had no faith in.96 They did not understand the nature of an oath97 and the belief in an afterlife98 based on the sanctions of a white man’s God.99 AttorneyGeneral Plunkett faced this difficulty first hand in the Myall Creek trials when material witness Davy, an Aboriginal male, was unable to give evidence.100

Further, Aboriginal people were excluded by common law procedures in the way settlers conveniently used self-defence and provocation under common law notions of reciprocity and retaliation.101 These concepts in their most rudimentary form102 were used to justify their acts of violence.103 Thus, to the settlers, the killing of natives was morally and legally justified.104 By using territorial logic, settlers shared norms of retaliation, self-defence and justifiable murder.105 The mere allegation106 or evidence of an imminent threat of indigenous violence or

80 Brent Salter, ‘Early Interactions Between Indigenous People and Settlers in Australia’s First Criminal Court’ (2009) 38(1) Australian Law Journal 56, 59.

81 Castles (n 23) 532.

82 Salter (n 80) 60.

83 Castles (n 23) 532.

84 Salter (n 80) 60.

85 Salter (n 22) 147.

86 Lisa Ford, Settler Sovereignty: Jurisdiction and Indigenous People in America and Australia, 1788-1836 (Harvard University Press, 2010).

87 Castles (n 23) 532.

88 Brent Salter, ‘Coming Clean in the Colonial Courts: The 1822 Confession Trial of Hatherly and Jackie’ (2009) 14(1) Deakin Law Review 125, 125

89 Ibid 130.

90 Salter (n 22) 156.

91 Salter (n 88) 129.

92 Castles (n 23) 532.

93 Ibid.

94 Molony (n 12) 149

95 Castles (n 23) 533.

96 Molony (n 12) 135.

97 Connors (n 30) 238.

98 Ibid 238.

99 Molony (n 12) 135.

100 Ibid 146.

101 Ford (n 86) 85.

102 Salter (n 80) 61.

103 Salter (n 22) 159.

104 Ford (n 86) 99.

105 Ibid 107.

106 Ibid 100.

retaliation invoked by settlers107 could prevent state enquiry into the matter.108 Consequently, actsofdepredationagainstAboriginesonthefrontierscouldgoundetectedoroverlookedwhere law enforcement was practically non-existent.109 Similar to the evolution of common law in England, the doctrine of provocation in the colony was developed ‘case by case’ on the basis of precedent.110 Thus, the lawlessness of settlers was constructed over time to fit within the ‘permissive parameters of legitimate violence’.111 These various interactive bodies of law operating in the context of the common law,112 introduced plurality into the legal process which limited the nature and reach of settler sovereignty.113 This plurality was most acute for indigenous cases, further excludingAboriginal peopleas most instances weredealt with outside of the colonial courts.114

IV CONCLUSION

The Myall Creek massacre was a rare instance of white men being tried and found guilty of the murders of Aboriginal people. It has been argued the trials were successfully prosecuted because of the political atmosphere of the time, where humanitarianism’s interest in indigenous wellbeing was on the rise. The efforts of key figures such as Governor Gipps, Attorney-General John Plunkett and police magistrate Denny Day and others were pivotal, as was the role of the press. However, the common law procedures structurally excluded Aboriginal people Critical factors such as a lack of understanding of British common law, coupled with limited or no English and a deficiency of belief in a God and afterlife, caused great difficulty. Settlers successfully used the common law notions of self-defence and retaliation further subverting indigenous rights. It is clear the procedures of the common law did not ameliorate indigenous rights, but rather excluded them from the very law that claimed to protect them

107 Salter (n 22) 159.

108 Ford (n 86) 100

109 Castles (n 23) 521.

110 Salter (n 80) 61.

111 Ford (n 86) 99.

112 Salter (n 22) 160.

113 Ford (n 86) 86.

114 Salter (n 22) 160.

INCENTIVES FOR CONSTRUCTION OF RENEWABLE ENERGY INFRASTRUCTURE IN AUSTRALIA

NEIL MAHONEY

ABSTRACT: The landscape of construction in Australia is changing as a result of anthropogenic climate change and policy makers; regulators; local government bodies; and construction industries need to adapt in order to avoid increased costs and challenges.

I INTRODUCTION

In recent years several factors have been driving Australia toward a renewable energy economy, and away from reliance on fossil energy.1 Even with recent exploration for oil in the Great AustraliaBight,it has becomeapparent thatoil productionmaynolongerallowAustralia to maintain energy sovereignty due to dwindling onshore processing capability, and reliance on importing finished fuels from Singapore.2 Australia has been lagging in energy security due to reliance on fuel import, and much of Australia’s secured fuel is stored offshore.3

As awareness of anthropogenic climate change (‘climate change’), and causal links between fossil energy production and climate change are more widely accepted, and recognised in decisions handed down by courts, it is foreseeable that wider legal challenges will be made against development of traditional energy sources.4 There are existing legal challenges centred around protection of biodiversity, and globally there are legal challenges from the wider community.5 It is foreseeable that restrictions applied to other developments based on climate change impacts, such as those in areas that are increasingly flood prone, may start to see wider application as impacts of climate change become accepted by courts.6

Private industry is currently the main driving force in the transition to renewable energy, and the construction of renewable energy infrastructure following inaction from the Australian government. The findings of the Stern Review,7 and Garnault Review,8 have not been adopted

1 Australian Government, Department of the Environment and Energy, Liquid Fuel Security Review Interim Report, (2019) < https://www.energy.gov.au/sites/default/files/liquid-fuel-security-review-interim-report.pdf>; 8 (‘Liquid Fuel Security Review 2019’).

2 Tina Soliman Hunter and Madeline Taylor, ‘Long-term and short-term liquid fuel security in Australia – What role for the Great Australian Bight?’ (2021) 157 Energy Policy, 13 (‘Liquid fuel security in Australia’); Ibid 3-4.

3 Liquid Fuel Security Review 2019 (n 1) 50.

4 Jacqueline Peel, ‘Climate Change Law: The Emergence Of A New Legal Discipline’ (2008) 32 Melbourne University Law Review 922, 956-959 (‘Climate Change Law: The Emergence Of A New Legal Discipline’).

5 Ibid.

6 Ibid 952.

7 Nicholas Stern, Cabinet Office and Her Majesty’s Treasury, United Kingdom, The Economics of Climate Change: The Stern Review, (2006) (‘Stern Review’).

8 Ross Garnaut, The Garnaut Climate Change Review: Final Report (2008) xviii <https://webarchive.nla.gov.au/awa/20190509040128/http://www.garnautreview.org.au/index.htm > (‘Garnaut Review’).

by the Australian government, leaving the policy framework and potential investor incentives absent.9

II NATIONAL ENERGY SECURITY

Australia is operating in non-compliance with the International Energy Agency’s requirement for member states to maintain 90 days of net oil imports.10 Australia is reliant on importation of finished products from other states in the region, and stockpiling reserves in the United States of America.11 The response to this problem has been approval for exploration of the Great Australian Bight to maintain reliable, sufficient and competitive fuel resources.12 Due to declines in onshore refining capacity, with recent oil refinery closures due to economic pressures, there are now only two refineries operating in Australia (May 2022), compared to eight in 2002, which has turned hydrocarbon energy reliance into a market-driven just in time approach with considerable strategic risk.13 This comes at a time of increasing demand for hydrocarbon consumption.14

The Australian Petroleum Production & Exploration Association stated in 2004: …do not see exploration as closing the emerging demand-supply gap in this country. We will still have to do energy sufficiency measures, we will still have to look at demand-side management and we will still have to look at alternative fuels. To deal with that issue requires a suite of measures, of which more exploration is only one.15

It is clear alternative supplies of energy need to be sourced, in order to maintain reliable and competitive energy supply. In order to promote international investment it is clear that the Australian government need to change their approach and incentivise investment in renewables, instead of reducing investment in the Clean Energy Finance Corporation and Australian Renewable Energy Agency.16

III PRIVATE INDUSTRY INFLUENCE

Even in the absence of decisive government driven incentives, Australia has shown one of the largest global shifts toward solar and wind energy production.17 In other countries, governments have been leading the way in developing renewable energy infrastructure, but in Australia the drive is from private industry and investors,18 building on a growing culture of

9 Tina Hunter, ‘It’s Time: Petroleum Policy Change For Sustainable Development In The Australian Offshore Upstream Petroleum Sector’ (2009) 2 Journal of Applied Law and Policy 31, 38-39 (‘It’s Time: Petroleum Policy Change For Sustainable Development In The Australian Offshore Upstream Petroleum Sector’).

10 Liquid Fuel Security Review 2019 (n 1) 10.

11 Liquid fuel security in Australia (n 2) 12-13.

12 Ibid 2-4.

13 Ibid 4.

14 Ibid 5.

15 Ibid 8.

16 Parliament of Australia (Cth), Budget 2022 – 2023 (Budget Paper No. 2, 29 March 2022) 9, 94-95; Parliament of Australia (Cth), Budget 2022 – 2023 (Budget Paper No. 3, 29 March 2022) 1, 77; It’s Time: Petroleum Policy Change For Sustainable Development in the Australian Offshore Upstream Petroleum Sector (n 9) 39, 47.

17 Zac Crellin, ‘Australia has undergone the world’s second-largest shift to solar and wind in recent years’ (31 March 2022) The New Daily < https://thenewdaily.com.au/news/national/2022/03/31/solar-wind-renewableenergy-australia/>.

18 Ibid.

corporate social responsibility.19 Most of the increase in renewables is through installation of domestic rooftop solar, and not replacement of fossil fuel power generation as seen in other countries.20

Concerted efforts have been made to acquire ALG Energy Limited (‘AGL’) by Brookfield Asset Management Inc. in order to accelerate the transition of AGL assets away from fossil fuel generation and replacement with renewables, to achieve a net zero carbon footprint a decade earlier than currently planned.21 As this takeover bid was voted down by the AGL board, Grok Ventures, a registered business under Cannon-Brookes Services Limited, sought to purchase an 11.3% stake in AGL to allow voting control in shareholder decisions, and to campaign for board positions.22 This is viewed by Michael Cannon-Brookes to be a significant measure in the delivery of reliable and affordable power to the Australian market. Grok Ventures has also levelled criticism that the slow decarbonisation of AGL assets will result in a reduction in AGL’s value.23 Even considering the resistance from AGL’s board, and the subsequent risk of significant loss in value, Cannon-Brookes still views this investment as being sound. Cannon-Brooks has also backed the Sun Cable solar and battery project which is set to be Australia’s first renewable energy export project.24

It is clear that even in the absence of decisive national policy, that interest in renewable infrastructure construction exists. It is open to conjecture as to how much more interest from private industry and international investment would be obtained through government incentivisation.

IV CLIMATE CHANGE

It is noted with irony that the effects of climate change may negatively impact development of fossil projects, as highlighted by the Alaskan Liberty project which gained approval under the Trump administration. The project required construction of an island in shallow waters to gain a stable operating base. In order to build this island, access to landfast sea ice was necessary, but this ice has proven susceptible to melting caused by climate change and may increase the cost to establish the project, or require abandonment.25 Approval for this project has since been removed due to failure to consider the climate impacts of the project.26

Climate change is affecting development applications in Australia that extend beyond the energy market.27 It is apparent that the importance of factoring future climate change into local development decision making needs to be considered as shown in Walker, 28 which was challenged on the grounds that the Minister failed to account for the impact of increased

19 Climate Change Law: The Emergence Of A New Legal Discipline (n 4) 968.

20 Ibid.

21 Jonathan Burgos, ‘Billionaire Climate Activist Mike Cannon-Brookes Invests $461 Million In AGL To Block Demerger’ (3 May 2022) Forbes < https://www.forbes.com/sites/jonathanburgos/2022/05/03/billionaireclimate-activist-mike-cannon-brookes-invests-461-million-in-agl-to-block-demerger/?sh=148ad9701f1e>

22 Ibid.

23 Ibid.

24 Giles Parkinson, ‘Sun Cable unveils staggering scale of world’s biggest solar and battery project’ (26 April 2022) Renew Economy < https://reneweconomy.com.au/sun-cable-unveils-staggering-scale-of-worlds-biggestsolar-and-battery-project/>.

25 David Goldman, ‘Climate Change Slows Oil Company Plan To Drill In The Arctic’ (21 November 2018) NPR < https://www.npr.org/2018/11/21/669373081/climate-change-slows-oil-company-plan-to-drill-in-thearctic>.

26 Center for Biological Diversity v. Bernhardt, No. 18-73400 (9th Cir. 2020), 20-21, 28-29, 45.

27 Climate Change Law: The Emergence Of A New Legal Discipline (n 4) 952.

28 Walker v Minister for Planning (2007) 157 LGERA 124.

flooding resulting from climate change on housing developments. There are also increasing limitations on how property owners may develop their property, and shown in Charles & Howard, 29 which challenged the requirement that land fill works could only take place above the one in a 100-year flood level.

Courtsarealreadyinagreementontheimportanceofenvironmentallysustainabledevelopment in planning applications as a factor in considering merits and adequacy of public risk. This was expanded to taking in account consideration of future climate change in the Gippsland Coastal Board decision,30 where VCAT refused application for residential development in low lying coastal areas that had been previously approved. Even though the decision was made on the basis of mixed zoning conflicts, environmentally sustainable development (‘ESD’) principles were applied when considering the risk of inundation as being a reasonably foreseeable consequence due to sea level rise from climate change. Decisions like these are adding to the legal principles used when approving future developments.31

As acceptance of the causal nature between the use of fossil fuels and the consequences of climate change, it is reasonably foreseeable that legal challenges such as Sharma will become more frequent.32 By limiting legal challenges to specific areas of concern, they may have a greater chance of success, as it is noted that among the reasons provided for overturning Sharma on appeal, was the lack of proportionality and the indeterminate liability that would result.33

V LEGAL CHALLENGES

Several cases have considered causation between the production of greenhouse gases (‘GHG’) and climate change impacts as being reflective of broader global trends in climate change litigation. In Anvil Hill, 34 and Hazelwood, 35 is was found that even production of a very small proportion of global GHG may have a larger impact over the local area,36 and environmental impact statements were mandated and should have been considered when approving the new project.37 Massachusetts v EPA also established causation between the production of GHG from vehicle emissions with climate change. 38

In Xstrata, 39 an environmental group objected to the lease grant for a coal mine, which saw the justice criticising the underlying science, including IPCC and Stern.40 The case was allowed appeal on grounds of procedural fairness, but the Queensland government intervened with legislation allowing bypass of the normal approval processes.41 In Wildlife Whitsunday case,42 Dowsett J determined that a causal link between climate change and the establishment of two

29 Charles & Howard Pty Ltd v Redland Shire Council [2007] QPELR 58.

30 Gippsland Coastal Board v Gippsland Shire Council [No 2] [2008] VCAT 1545.

31 Climate Change Law: The Emergence Of A New Legal Discipline (n 4) 957.

32 Minister for the Environment v Sharma [2022] FCAFC 35 (‘Sharma’).

33 Ibid.

34 Gray v Minister for Planning (2006) 152 LGERA 258 (‘Anvil Hill’).

35 Australian Conservation Foundation v Latrobe City Council (2004) 140 LGERA 100 (‘Hazelwood’).

36 Ibid 110; Anvil Hill (n 33) 287.

37 Anvil Hill (n 33) 275.

38 Massachusetts v Environmental Protection Agency, 549 U.S. 497 (2007).

39 Re Xstrata Coal Queensland Pty Ltd [2007] QLRT 33; Queensland Conservation Council Inc v Xstrata Coal Queensland Pty Ltd (2007) 155 LGERA 322 (‘Xstrata’).

40 IPCC, IPCC Fourth Assessment Report, (2007) 2 < https://www.ipcc.ch/assessment-report/ar4/>.

41 Mining and Other Legislation Amendment Act 2007 (Qld).

42 Wildlife Preservation Society of Queensland Proserpine/Whitsunday Branch Inc v Minister for the Environment and Heritage (2006) 232 ALR 510.

new coal mines was too small to be meaningfully considered.43 Even though these cases demonstrate resistance to the recognition of a causal link between fossil energy production and climate change, it is cases such as these that will develop awareness of the climate change factors that need to be considered in future cases.44

The Taralga case,45 found the development of a wind farm would have greater societal benefit in the offset of climate impact than opposition raised by local residents on grounds of local nuisance and impact to the local environment. It is decisions like these that are willing to consider long term impacts of climate change, broader environmental concerns over narrow viewpoints, and reduction of adverse consequences for future generations that will gain significance as the field of climate change law broadens.

There are attempts from communities to bring recognition of future climate change resulting from fossil energy production and which as a whole are looking at wide ranging responsibility for harm - none of these cases have been successful to date. In Sharma, 46 it was determined that there is duty of care toward human health, but there is a lack of control and liability over the resulting effects of climate change. Further, the Minister did not have sufficient closeness and directness with the exercise of statutory powers with respect to the EPBC Act (Cth).47 And any such duty imposed would result in indeterminate liability.48 In Rhode Island v Shell, 49 Rhode Island bought action against a class of fossil fuel production and refining companies in public nuisance for damage caused by the effect of fossil fuels on climate change – this is currently being moved between jurisdictions. As time goes on, it is likely that more litigation will be made against fossil fuel producers, which are likely to succeed or not based on filing in correct jurisdictions, limiting the scope and effect of cases so as to avoid situations of indeterminate liability, and ensure that they more closely fall within the statutory powers of a responsible minister.

VI CONCLUSION

Given the challenges facing traditional energy infrastructure it is apparent that there are significant climate, energy security, legal and business influences that will drive renewable energy infrastructure construction. The Australian governments at Federal and State level are lagging the interest from private industry and the international drive for the shift to renewable energy sources, and significant changes to statute will be required in order to bring Australia into the global market.50 Instead of providing financial incentives in order to prop up an industry in decline through the fuel security package, it may be better to provide similar incentives to attract research and development of renewable energy and energy storage technology, and incentives to attract international interest in investing in the domestic renewable market.51

43 Ibid 524.

44 Climate Change Law: The Emergence Of A New Legal Discipline (n 4) 957.

45 Taralga Landscape Guardians Inc v Minister for Planning (2007) 161 LGERA 1, 15-17.

46 Sharma (n 32) [359]-[363], [537]-[538] Beach J.

47 Environment Protection and Biodiversity Conservation Act 1999 (Cth).

48 Sharma (n 32) [3]-[5], [352], [557], [603]-[609].

49 State of Rhode Island v Shell Oil Products Co., L.L.C., No. 19-1818 (1st Cir. 2022), 20-21, 28-29, 45.

50 It’s Time: Petroleum Policy Change For Sustainable Development in the Australian Offshore Upstream Petroleum Sector (n 9) 38-39, 47.

51 It’s Time: Petroleum Policy Change For Sustainable Development in the Australian Offshore Upstream Petroleum Sector (n 9) 47-50.

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