2024 Winter edition of the University of Southern Queensland Law Society Law Review

Law Review

Published by: USQ Law Society

Writing & Editing: USQ Law Society Editorial Board and Contributors

ISSN: ISSN 2653-1100 (Online)

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AGLC4

For scholarly law articles, the USQ Law Review has adopted the Australian Guide to Legal Citation (4th ed.) from the Melbourne University Law Review Association Inc© . When the type of submission varies from a standard legal article, such as a speech, research, or other material, the editorial panel may waive this requirement on an individual basis. Authors are required to undertake all attributions concerning their work and avoid plagiarism.

ABOUT THIS PUBLICATION

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

EDITORIAL PROCESS

In the evolution of the USQ Law Review, this journal has undertaken to develop and then follow a double-blinded peer review process for the consideration of submissions. This is undertaken by Editors who make up an editorial panel in conjunction with an editor-inchief. All editor-related positions are appointed through a USQLS process.

ABOUT THE USQ LAW SOCIETY

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

The core functions of the USQLS are:

1. To advocate our Members' interests and concerns;

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

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

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

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

Editorial Board

Gemma Keogh

Rohan Waddington

Judith Mines

Alex Chettiyath

Contributors

Professor Jonathan Crowe

Benjamin Spring

Ruth Chowdhury

Gemma Keogh

Matthew Acheson

Cathryn Sanders

Abhay Ressienberger

Robyn Edmanson

Editor-in-Chief

Editor

Editor

Editor

Acknowledgement of Country:

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

ACKNOWLEDGEMENT AND APPRECIATION

I would firstly like to acknowledge and express my sincere gratitude towards those who have come before, and to those who have contributed to making this edition possible. As a part of our team of editors and law faculty culture, we include an Acknowledgement of Country. Our team of Editors (including the Editor-in-Chief) at USQ Law Review recognises the importance of recognition and appreciates those who previously contributed to the USQ Law Review. From inception to date, I am grateful for previous contributors, and those with roles that created and continued to progress this journal. We currently have a small but dedicated editorial team: Gemma Keogh (Editor-in-Chief), Alex Chettiyath, Judith Mines and Rohan Waddington. I am most thankful to all of them for their extraordinary efforts in bringing this publication together.

The USQLS has received generous Law Review sponsorship support from Irish Bentley Lawyers, and additional guidance from the USQ law faculty and USQ Law Library. Lastly, I wish to thank anyone who has taken the time to read this publication, make a submission, or assist our publication with advertising or spreading the word. We also greatly appreciate the links this publication enables, and engagement with external bodies, groups, associations, societies, universities, and legal firms. There are too many to thank individually but they include our valuable Queensland Law Society District Law Associations (in particular Downs and South Western Queensland Law Association and the Ipswich District Law Association) and our colleague university associations across Australia who are members in the Australian Law Students’ Association (‘ALSA’). Together, this will further assist with future submissions, and our collective aim to publish a journal with maintained or improved standard.

Dr Matt Acheson MB BS, FANZCA VP Law Review

‘IS THE SILENCING OF QUEENSLAND’S MOST VULNERABLE ALLOWING THE PUBLIC TRUSTEE TO GO UNCHECKED AND RESULTING IN A BREACH OF AUSTRALIA’S COMMITMENT TO INTERNATIONAL HUMAN RIGHTS TREATIES?’ by Benjamin Spring.............................................................................................................23

BEYOND THE TRADITIONAL MINDSET: HOW COLLABORATIVE PRACTICE OUTSHINES MEDIATION AND LITIGATION by Ruth Chowdhury.............................................................................................................29

JUSTICE FOR THE FUTURE - EXAMINING JOHN RAWLS’ THEORY OF JUSTICE AND THE ‘MAXIMIN’ by Gemma Keogh................................................................................................................41

SHOULD QUEENSLAND RE-INTRODUCE AN UPPER HOUSE? LEGISLATIVE COUNCIL ISSUES, ABOLITION, UNICAMERAL AND BICAMERAL MODELS EXPLORED

LEGAL FORMALISM AND EMPIRICAL LEGAL RESEARCH

THE INFLUENCE OF BRITISH POSITIVISM ON THE FLOW OF NATIVE TITLE RECOGNITION by Abhay Ressienberger......................................................................................................74

CONSTITUTIONAL PROTECTION OF THE PRESUMPTION OF INNOCENCE FROM STATUTORY INCURSION BY PROBLEMATIC COMMONWEALTH CRIMINAL CODE PROVISIONS by Robyn Edmanson............................................................................................................82

LAW REVIEW VICE PRESIDENT’S ADDRESS

I welcome you as a Reader to the 2024 Winter Edition (in our 4th year of publication). As a part of our readership, I genuinely hope you take something positive away from our articles.

CˑAˑRˑE for the USQ Law Review.

With a CORE (of COOPERATION) and consideration for the publication, the year has involved process documentation, and induction of an anonymous peer-review process for this academic law journal. USQ Law Review reached out to external institutions, societies, and associations, and this was well received. We look forward to future cooperation for broader sources and readership. AIMS to maintain or improve standards have been combined with efforts to solidify our foundations for future publications. RESPONSIBILITY has presented challenges to progress such as engagement as a part of the university's academic publication. I have been glad of the support this publication continues to evoke. EVOLUTION in an everchanging environment, resulted in changes from internal operations to wider advertising seeking broader engagement, and inclusion of other external law-related groups, has helped to enhance, and further enshrine standards. Together, we look forward to the next potential edition and wish the publication and all of you the very best for the future.

THIS EDITION

After much consideration and deliberation, the editorial panel has presented the following 8 articles:

1. This Edition is heralded by an opening legal theory speech delivered by our esteemed Head of School, Professor Crowe, who has provided an insightful contemporary perspective from the starting point of Professor Finnis’ influential publications on natural law theory;

2. Importantly, “Queensland’s most vulnerable” and their ratified human rights are considered in this composition;

3. This article is a uniquely succinct, valuable, introductory outline into Alternative Dispute Resolution and Collaborative Practice from a relevant experienced evaluative legal practitioner;

4. This submission also relates to legal theory with a relevant theme of Justice explored and specifically related to John Rawls’ theory;*

5. This piece on Queensland issues that led to a unicameral parliament and potential structural reforms that could be considered including bicameralism;*

6. The topic of incarceration of minors is looked at philosophically as an area for important potential research;

7. Native Title is viewed through the lens of effects related to British positivism; and

8. Finally, potential legislative impacts on the presumption of innocence as a key tenet protected in Australia’s constitution completes the publication.*

Unfortunately, my tenure as Vice President of USQ Law Review will end with this effort but I thank all those who I have encountered and received assistance from. I look forward to working and contributing all that I can towards the next edition, and then handing over to the next team to lead this publication forward.

Please take the time to read and consider these articles and I hope you can gain some of the insights and enjoyment I got from reading the 2024 USQ Law Review Winter Edition

Dr Matt Acheson MB BS, FANZCA

VP Law Review

*It was noted and is declared that three articles came from parties previously or currently related to the USQ Law Review. These were anonymously appraised by unknown reviewers for approval and for myself, I contributed the article for review consideration prior to the uptake of a role that did not directly involve the editorial reviews or decisions the editorial panel made.

EDITOR-IN-CHIEF’S ADDRESS

The 2024 Law Review editorial panel is pleased to present for your reading the Winter Edition, this is the 8th edition since the Law Review first launched in 2020. Each year the editorial panel aims to add to the quality of the Law Review and leave a lasting legacy that transcends their year on the panel; this year’s panel is no different.

As a way to recognise past editions more easily and distinguish them from one another the use of volume and issue numbers have been assigned to this edition and retroactively assigned to those published prior.

Our efforts to elevate the stature and professionalism of the Law Review have continued from the work of the previous panel, who instigated the use of abstracts, with the introduction of stricter quality standards and a double-blind peer review process. The use of these two elements by the 2024 Editorial panel has enabled a higher level of academic writing to be received and prevented any unwanted nepotism or bias from occurring between the panel, the contributors or the society at large. This process has particularly been helpful when it comes to the inclusion of work by contributors in this edition with a current or past relationship with the Law Review.

Each submission was anonymised and given to two independent editors for review, their feedback was collated and then returned to the author for consideration. It is not until the article has been through that process and deemed suitable for publication that the names of the authors are released to the editorial panel. Where the author is an active member of the Law Review or Executive there is no chance for their influence to determine the outcome. It is purely based on the quality of the submission alone. Further, a relationship has been formed with AustLII who will publish, archive and index the Law Review.

This year’s editorial panel, comprised of Judith Mines, Rohan Waddington and Alex Chettiyath, have worked tirelessly to produce the edition within. Their dedication and willingness to see the work of others published at a high standard should not go unnoticed. It has been a pleasure to work alongside each of them.

It is the hope of this year’s editorial panel that we continue to bring in high-calibre submissions that relate to the legal field from all avenues of contributor. We will have a

continuous call for submissions to allow for a greater breadth of contribution and endeavour to publish quality Law Review editions each year as a result.

It is with great honour that I commend to you the latest edition of the Law Review filled with scholarly articles from students, practitioners and academics.

Gemma Keogh

Editor-in-Chief - USQ Law Society Law Review

CONTEMPORARY NATURAL LAW THEORY: FINNIS AND BEYOND

JONATHAN CROWE*

ABSTRACT: One of the main factors driving the contemporary revival of natural law theory was the publication of John Finnis’s important book, Natural Law and Natural Rights, in 1980. This article begins by discussing some of Finnis’s most enduring contributions to natural law thought. I focus here on three main ideas: the central case methodology; the foundational role of basic goods; and the role of law in promoting the common good. The article then moves to some significant developments in recent work on natural law theory. I show how these developments have put pressure on the core components of Finnis’s theory and discuss what they tell us about natural law thought beyond the Finnisian paradigm.

IINTRODUCTION

Natural law theory has undergone a revival since the 1980s. One of the main factors driving this revival was the publication of John Finnis’s important book, Natural Law and Natural Rights, in 1980.1 Finnis’s position at Oxford, the leading centre for legal philosophy in the English-speaking world, along with the cogency of his writing and arguments, helped make natural law theory academically credible.

The influence of Finnis’s work has meant that contemporary natural law theory is widely identified with his theory. For example, when natural law theory is taught in law schools, its contemporary version is generally represented by Finnis (perhaps alongside Lon L Fuller).2 However, it is now more than 40 years since Natural Law and Natural Rights appeared. Much has changed in that time.

* Head of School and Dean, School of Law and Justice, University of Southern Queensland. This article is the edited text of a lecture presented as part of the Jurisprudence Lecture Series at the Indian Law Society’s Law College (by video conference) on 3 October 2022.

1 John Finnis, Natural Law and Natural Rights (Clarendon Press, 1980).

2 See particularly Lon L Fuller, The Morality of Law (rev ed, Yale University Press, 1969). For discussion of Fuller’s natural law theory, see Jonathan Crowe, ‘Between Morality and Efficacy: Reclaiming the Natural Law Theory of Lon Fuller’ (2014) 5 Jurisprudence 109.

Finnis has continued to publish work on natural law theory, including a 2nd edition of Natural Law and Natural Rights in 2011.3 However, it is notable that the central tenets of his theory have changed little since their original exposition. The most important developments in natural law theory since 1980 have occurred not within Finnis’s theory, but beyond it. Hence the title of this article.

I will start this article by discussing what I regard as some of Finnis’s most enduring contributions to contemporary natural law theory. I will focus here on three main ideas: the central case methodology; the foundational role of basic goods; and the role of law in promoting the common good.

I will then move in the second part of the article to some significant developments in recent work on natural law theory. I will show how these developments have put pressure on the core components of Finnis’s theory and discuss what they tell us about natural law thought beyond the Finnisian paradigm.

IITHREE FINNISIAN THEMES

I turn, then, to three of Finnis’s important ideas. This is, of course, not an exhaustive list and somewhat arbitrary. It reflects my own interests, as well as the points of engagement with other contemporary natural law thinkers I want to highlight. It does, however, give a sense of some distinctive Finnisian themes.

A The Central Case Methodology

The first of these ideas is the central case methodology. Natural Law and Natural Rights ranges widely beyond legal theory, dealing with issues in normative ethics and political philosophy. The first chapter, however, is focused on methodology in jurisprudence. In this chapter, Finnis introduces his technique for analysing the concept of law. This method is core to his conception of natural law jurisprudence.

3 John Finnis, Natural Law and Natural Rights (2nd ed, Oxford University Press, 2011). Subsequent page references to this work appear in parentheses in the text.

Finnis is sceptical about the possibility of a purely descriptive approach to the concept of law. He notes that even making a list of social phenomena that count as law presupposes some criteria for what to include (4). Legal theorists have tended to pick out those characteristics of law that struck them as particularly important, but this is somewhat arbitrary. It can result in a definition that lacks explanatory depth (5).

Finnis then attributes to H L A Hart an important breakthrough in defining the concept of law. Hart, unlike some of his predecessors, appeals to what Finnis calls ‘the practical point of the concept’ (7). The point of a legal system, for Hart, is to remedy the defects of a social order composed purely of primary or duty-conferring rules. His conceptual analysis of law is advanced with this purpose in mind.

Finnis takes this insight one step further. He argues that legal theorists should seek to develop a ‘differentiated description of law’ by focusing on the term’s ‘focal meaning’ (9). They should not simply seek the common characteristics of everything that counts as law, as this would result in a ‘search for the lowest common denominator’ (10). Rather, they should seek to identify law’s ‘central case(s)’ (10).

The identification of law’s central cases requires the adoption of a viewpoint that pays attention to law’s practical point. This entails, for Finnis, not merely the adoption of what Hart calls the internal point of view; rather, it involves a point of view from which ‘legal obligation is treated as at least presumptively a moral obligation’ (14). This generates a refined and purposive definition of law.

Finnis’s central case methodology crucially shapes his understanding of natural law jurisprudence. He contends that the central case of law would have several features, including being directed to solve coordination problems ‘for the common good of [the] community’ (276). The notion of the common good, to which I will return later, imports a moral component to this definition.

Importantly, however, Finnis argues that social phenomena that do not count as central cases of law can still qualify as laws in a wider sense (278). He therefore rejects the classical

natural law slogan that ‘an unjust law is no law at all’.4 Finnis is scathing in his assessment of this claim, describing it as ‘pure nonsense’ and ‘self-contradictory’ (364). Unjust laws, in his view, are still laws, albeit not in the focal sense.

The contemporary natural law theorist Mark Murphy has described the claim that an unjust or unreasonable law is no law at all as the strong natural law thesis 5 Finnis, as we have seen, rejects this claim. Instead, he prefers a version of what Murphy labels the weak natural law thesis. 6 The weak natural law thesis holds that an unjust or unreasonable law is still a law, but only in a defective or partial sense.

I will conclude this section by noting some ambiguities in Finnis’s central case methodology. Finnis introduces the central case method in Chapter 1 of Natural Law and Natural Rights by using the term ‘central case(s)’ with the ‘s’ in brackets (10). He therefore leaves open the question of whether there is one central case of law or many. Finnis’s actual definition of law appears much later in Chapter 10 of the book. There, interestingly, he refers to the ‘central case’ of law in the singular (277-8).

The issue of whether the central case of law is singular or plural is related to another question. Is the central case of law an actual law or legal system or, alternatively, a theoretical ideal? Finnis’s reference to central cases in the plural in Chapter 1, along with the ensuing discussion, suggests he regards the central cases as actual laws or legal systems (11). However, he also compares the central case method with Max Weber’s notion of ideal-types (9), which are purely mental constructs.7

Finnis goes on, as we have seen, to refer to the central case of law in the singular in Chapter 10. The definition of law presented there seems more like an ideal-type in the Weberian sense than a description of any specific set of existing laws. Finnis has not, to my knowledge, definitively resolved this ambiguity.

4 The provenance of this claim is disputed, but a version can be found in Augustine, On Free Choice of the Will, bk I, pt V.

5 Mark C Murphy, Natural Law in Jurisprudence and Politics (Cambridge University Press, 2006) 10.

6 Ibid 10-11.

7 Max Weber, ‘Objectivity in Social Science and Social Policy’ in The Methodology of the Social Sciences (A Shils and H A Finch ed and trans, Free Press, 1949) 90.

Finnis makes it clear that each component of the focal meaning of law may be ‘more or less instantiated’ (277), meaning that ‘social arrangements can be more or less legal’ (279). The view that central cases of law actually exist would require a threshold to be set at which a given legal system sufficiently fits the focal meaning to count as a central case. Any such threshold would appear somewhat arbitrary.

It is plausible, given Finnis’s definition of law, that no actual legal system fully instantiates all the elements of the central case. This suggests the central case may be an ideal since it does not perfectly match any actual social arrangements. This interpretation, however, carries its own puzzles. It means that all actual laws are laws merely in a peripheral sense. Legality, in this view, is always a matter of degree; nothing is ever fully legal. However, this seems at odds with how we ordinarily talk about law.

It is ironic, in this respect, that Finnis criticises the strong natural law thesis on the basis that it doesn’t reflect how the term ‘law’ is generally used (364-5). People use terms like ‘unjust law’ or without apparent contradiction; for Finnis, this undermines the claim that an unjust law is no law at all. However, people also typically use the term ‘law’ without qualifiers such as ‘in a peripheral sense’. What does this mean for a theory according to which many and perhaps all laws are merely peripheral instances?

B The Role of Basic Goods

Let me turn now to a second important Finnisian theme: the role of basic goods. Natural law theorists, like other moral realists, have sometimes been accused of committing the logical fallacy of deriving values from facts. This fallacy is often said to have been pointed out by the great Scottish philosopher David Hume.8

Finnis accepts that deriving propositions of value purely from propositions of fact is fallacious. However, he claims that canonical natural law authors, such as Thomas Aquinas, avoid this fallacy (33-4). This is because their theories are premised on the existence of certain basic human values or goods. These values are not derived from facts. Indeed, they are not derived from anything; rather, they are self-evident.

8 David Hume, A Treatise of Human Nature, bk III, pt I, § I.

Finnis provides a list of seven basic goods in Natural Law and Natural Rights (ch 4). These are life, knowledge, play, aesthetic experience, friendship, spirituality and practical reasonableness. Practical reasonableness is a complex good which, Finnis explains, itself has nine components (ch 5). Finnis also discusses some other putative basic goods in later work. The most notable is perhaps what he calls the marital good; this is a distinctive good that he associates contentiously with traditional marriage 9

Finnis contends, as we have seen, that the basic goods are self-evident. How, then, do we come to know them? We discover them, Finnis argues, by reflecting on the experience of practical reasoning (64-5). We take for granted when we decide what to do that certain objectives are valuable for their own sake. Our decisions would make no sense outside the context of these presupposed intrinsic values.

What is the relationship between the basic goods? How, in particular, do we choose between different basic values when deciding how to act? Finnis contends the basic goods are all equally fundamental (92). There is no hierarchy or ranking between them. Rather, they are incommensurable. None of them can be reduced to any of the others; nor can they all be expressed in terms of a single measure.

It follows that we cannot simply say one basic good is more valuable than another. Rather, Finnis contends, we choose between different basic values by adopting commitments that we use to order the goods in our own lives (93). For example, I may decide that the pursuit of knowledge is more valuable to me, at this point in my life, than recreation. It will then be reasonable for me to act accordingly.

Finnis’s value of pluralism leads him to strongly criticise utilitarianism as a theory of practical reasoning. Utilitarianism holds that the correct decision is always the one that leads to the most beneficial consequences overall. However, from Finnis’s perspective, this view of moral reasoning is ‘senseless’,10 because it assumes that all our options can be weighed up by reference to a single measure of value. The incommensurability of basic values means this kind of utilitarian balancing is not possible.

9 John Finnis, ‘Law, Morality and “Sexual Orientation”’ (1994) 69 Notre Dame Law Review 1049, 1066.

10 John Finnis, Fundamentals of Ethics (Georgetown University Press, 1983) 87.

This does not entail, however, that our choice of basic commitments is unlimited. Finnis holds that the basic values give rise to absolute duties.11 We should always pursue at least one of the basic goods in every action, otherwise our choices will be senseless and arbitrary. And we should never act in such a way as to directly harm any of the basic goods. That would be contrary to their inherent worth.

Finnis’s theory of the basic goods is controversial both within and beyond natural law theory. A common worry about the basic goods is that they appear to come out of nowhere. The fact that the goods are underived means that no reasons are (or could be) given for selecting them. This makes it look like Finnis has just invented his list out of thin air. The contents of the list seem like a fait accompli

This worry strikes me as misplaced. Appeals to self-evident intrinsic goods are pervasive in normative ethics. Even classical utilitarians like Jeremy Bentham appeal to the self-evident value of happiness or pleasure.12 It would be extremely challenging to construct a theory of normative ethics from first principles without presupposing any existing goods. And why should we? It makes more sense to begin with what we already take ourselves to know about fundamental matters of value.

C Law and the Common Good

The third Finnisian theme I wish to explore in this article concerns the relationship between law and the common good. The central case methodology is core to Finnis’s jurisprudence, while the basic goods are central to his ethics. The common good, in turn, is crucial for Finnis’s political theory. It also serves as a bridge between Finnis’s ethics and his purposive account of the concept of law.

The common good, as Finnis defines it, represents the interest everyone has in living in a community where all the members can pursue the basic goods (155). This situation would be good for everyone; hence the name ‘common good’. The moral purpose of law is to facilitate

11 Ibid 109-112.

12 Jeremy Bentham, Introduction to the Principles of Morals and Legislation, ch 1, § XI.

this objective. This is why Finnis refers to the common good in his description of the focal meaning of law discussed earlier.

The common good is common because it promotes the interests of every member of the community. The purpose of the community, in this sense, is to serve the individuals within it. As Finnis puts it, the community’s role is to assist people to ‘help themselves’ (146); specifically, it assists its members to ‘co-ordinate their activities for the objectives and commitments they have chosen’.13 This type of language seems to cast Finnis’s political philosophy in an individualistic light.

At the same time, however, Finnis maintains that the common good transcends the value each individual places on pursuing the basic goods in their life. A and B might both have an interest in some goal X; this gives them reason to cooperate insofar as necessary to achieve that objective (139-40). A true community, however, does not arise for Finnis merely from this kind of instrumental cooperation.

A true community rather arises when both A and B act at least partly for the well-being of the other party. A cooperates with B to achieve X not merely because this is good for A, but also because it is good for B; and B likewise acts partly out of concern for A. Their individual interests cease to be merely coincident; rather, they form a genuine community (143-4). The common good, in this sense, is more than the mere aggregation of the separate interests of the various community members.

Why should we pursue the common good? It is relatively easy to explain why we should pursue the basic goods on the assumption that they make our individual lives go well. We also have an obvious interest in cooperating with others where necessary to secure these goods for ourselves. However, why should we care about the common good for other people’s sake as Finnis suggests we should?

Finnis offers no real explanation, largely presenting this as self-evident. One of the nine components of the basic good of practical reasonableness, as Finnis describes them, is having

13 John Finnis, ‘Is Natural Law Theory Compatible with Limited Government?’ in Robert P George (ed), Natural Law, Liberalism and Morality (OUP, 1996) 6.

regard to the common good (125). The value of the common good, on this account, is like that of the other basic values. That is, it is self-evident when one considers the presuppositions of normative reasoning.

Is there any community in the world today that fully realises the common good? Finnis’s theory does not produce a clear answer to this question. It seems clear that there is no currently existing community that gives all its members equal access to basic goods, but Finnis’s account of the common good does not require equality. What precisely, then, does it require? The answer is not easy to pin down.

It seems plausible that the common good requires all members of the community to enjoy a reasonable level of access to the basic goods.14 This formulation is admittedly ambiguous due to its inclusion of the vague term ‘reasonable’, although that could be defined to some extent by reference to community standards.

However, even this does not seem to be what Finnis has in mind. He describes the common good as ‘the securing of a whole ensemble of material and other conditions that tend to favour the realisation [of each individual’s] personal development’ (154; emphasis added). This suggests that the common good does not necessarily require that everyone can actually access the basic goods to a reasonable extent; rather, it involves providing certain material conditions instrumental to that end.

On the very next page of Natural Law and Natural Rights, however, Finnis offers a slightly different formulation of the common good. He says there that the common good is ‘a set of conditions which enables the members of the community to attain for themselves reasonable objectives’ (155). Does this mean, then, that there is no true common good unless all community members can actually pursue the basic goods to some minimal extent? The answer to this question is left unclear.

Let us turn now to the relationship between law and the common good. We saw earlier that law in the focal sense, as Finnis defines it, is directed to solve coordination problems ‘for the

14 Jonathan Crowe, Natural Law and the Nature of Law (Cambridge University Press, 2019) 111-15.

common good of that community’ (276). The notion of coordination is central to Finnis’s theory of how law serves the common good.

Finnis largely follows Aquinas’s account of how positive law can be derived from natural law.15 He describes two ways that this occurs. First, some aspects of positive law are deductions from the principles of practical reasonableness; for example, the law against murder follows logically from the good of life (281). However, even in these cases, the moral rule in question must be translated into legal language and further specified in order to become part of the positive law.

Second, some aspects of positive law fill in details that natural law leaves indeterminate. For example, practical reasonableness requires us to protect physical safety, but it does not tell us whether the speed limit on a certain road should be 65 or 70 kilometres per hour (285). It is part of the role of law to settle these kinds of issues authoritatively for the whole community. This thereby advances the common good.

Finnis argues that, to fulfil these two roles, law requires authority. He recognises a role for customary law in certain limited contexts, particularly international law; in general, though, he describes this as a clumsy solution to coordination problems (245). Law therefore requires, for Finnis, deference to the authority of rulers who are empowered by the community to settle coordination problems on their behalf (245-6).

Finnis’s natural law theory therefore generates a strong account of the moral authority of positive law. He denies that citizens can pick and choose among the laws according to their conscience; rather, they must treat the law as a ‘seamless web’ to maintain its authority as a source of coordinating norms.16 Finnis’s theory, in this respect, gives an even stronger role to positive law than many legal positivist theories, as illustrated by his disagreement with Joseph Raz on the issue of law’s moral authority.17

15 Thomas Aquinas, Summa Theologiae, I-II, q 95, art 2.

16 John Finnis, ‘Law’s Authority and Social Theory’s Predicament’ in Philosophy of Law: Collected Essays Volume IV (Oxford University Press, 2011) 50.

17 Ibid 48-51.

IIINATURAL LAW BEYOND FINNIS

My focus so far in this article has been on developing some key themes in Finnis’s thought. I want to conclude, as promised, by discussing some recent developments in natural law theory beyond the Finnisian paradigm. I will show how some other contemporary natural law theorists have responded to – and, in some respects, improved upon – the three Finnisian ideas previously discussed.

A Beyond the Central Case

Finnis, as we have seen, relies on the central case method to support a weak version of the natural law thesis. We also saw that some unresolved puzzles exist about the notion of central cases and the implications of this method for actual laws. Nonetheless, due to Finnis’s influence, the central case method is often viewed as the main contemporary route to a natural law position in jurisprudence.

It is important to note, in this context, that Finnis is an outlier among leading contemporary natural law theorists in his adoption of the central case approach. The central case method has been subjected to trenchant criticisms, particularly by Murphy. Other contemporary natural law authors have offered what I regard as more convincing methods for generating either a weak or strong natural law thesis.

Let’s turn first to Murphy’s criticisms of the central case method. Finnis uses various terms to describe non-central cases of law. He calls them ‘undeveloped, primitive, corrupt, deviant’, ‘diluted’, ‘peripheral’ and ‘watered-down’ (11, 14). However, Murphy points out that noncentral instances of a concept may diverge from the central case in different ways.18 Some are merely unusual cases, while others are defective.

Murphy discusses the example of a soccer game.19 The central case of a soccer game is a game governed by official rules, with eleven players a side, a qualified referee, a full-size field and so forth. The five-a-side game I play with my friends on the weekend, with informal

18 Mark C Murphy, ‘Defect and Deviance in Natural Law Jurisprudence’ in Matthias Klatt (ed), Institutional Reason: The Jurisprudence of Robert Alexy (Oxford University Press, 2011) 50-1. 19 Ibid 52.

rules and bags for goal posts, is not a central case. However, this does not mean it is defective; it is just a variation on the paradigm example.

Finnis’s central case method, then, is incapable of establishing even the weak natural law thesis. There need not be anything legally deficient about laws that depart from the central case. They might just be non-standard examples. Finnis could only support his conclusion if he were to provide a method for distinguishing defective laws from merely non-standard ones. However, he makes no attempt to do so.

Murphy’s criticism of the central case method is, to my mind, decisive. There are, fortunately, other natural law arguments available. One alternative strategy, developed by Robert Alexy and supported by Murphy, is to analyse law as a kind of speech act.20 Legal enactments, Alexy argues, make claims to moral correctness; laws that don’t live up to this claim are therefore defective as speech acts.

The speech act strategy, unlike the central case method, is at least capable of generating the natural law thesis. Its ultimate plausibility depends upon Alexy’s argument that laws claim moral correctness in the same way that assertions, for example, claim to be true. I am not sure I buy that idea. I will therefore turn to another possible line of argument which is also capable of supporting a natural law outcome.

This line of argument has its origins in classical authors such as Aristotle; it has been developed in different ways by contemporary natural law authors including Fuller, Murphy, Michael Moore and myself.21 One version of the argument begins by analysing law as a kind of human artifact.22 Artifacts generally have a particular function. Chairs, for example, have the function of providing a place for people to sit.

Some chairs may be better suited to their function than others. An unstable chair that is difficult to sit upon is still a chair, but if the instability reaches a certain level – for example,

20 Robert Alexy, The Argument from Injustice (B L Paulson and S L Paulson trans, Oxford University Press, 2002) 35-9; Murphy (n 5) 37-56.

21 Fuller (n 2) 33-41; Michael S Moore, ‘Law as a Functional Kind’ in Robert P George (ed), Natural Law Theory: Contemporary Essays (Clarendon Press, 1992); Murphy (n 5) 29-36; Crowe (n 14) ch 8-9.

22 I follow here the line of argument developed in Crowe (n 14) ch 8-9. For discussion of Fuller’s related argument, see Crowe (n 2).

if the chair constantly threatens to tip over – we might say it is a defective chair. An artifact plausibly counts as defective if it is poorly adapted to its function. This kind of analysis can then also be applied to law.

What, then, is the function of law as an artifact? I have argued in my book, Natural Law and the Nature of Law, that law’s function is to serve as a deontic marker by setting limits on social conduct.23 An unreasonable law is unsuited to this function because it can only guide action if people are willing to behave unreasonably. It is therefore a defective law. This argument supports the weak natural law thesis.24

The argument can also be applied to support the strong natural law thesis.25 Artifacts, such as chairs, are defective if they are poorly adapted to their function. However, imagine that someone tries to design a chair, but the design is so flawed it is not even possible to sit on it. Perhaps they forgot to include a seat; there are just some legs and an empty space. It seems plausible to say that, in this case, the person did not even create a defective chair. Rather, they failed to produce a chair at all.

Laws, too, can fail in this way. It is possible for a law to be so flawed that it is not even capable of guiding social action in the way its function requires. Fuller argues that this is what happens when laws are secret or otherwise impossible to follow.26 I have argued it can also happen if laws are so unreasonable that they are incapable of gaining social acceptance.27 Some unjust laws, then, are plausibly no laws at all.

Finnis, as we have seen, argues for a weak natural law thesis and criticises the strong one. His influence has led many people to assume that the strong natural law thesis is not a live option. However, this is misleading. A majority of the leading contemporary natural law theorists I have mentioned – including Fuller, Alexy, Moore and myself – argue for versions of the

23 Crowe (n 14) 174-5.

24 Ibid 177-80.

25 Ibid 176-7. For further development of this argument, see Jonathan Crowe, ‘Defects and Failures in Legal Artifacts’ in Luka Burazin, Kenneth Einar Himma, Corrado Roversi and Pawel Banaś (eds), The Artifactual Nature of Law (Edward Elgar, 2022).

26 Fuller (n 2) 39.

27 Crowe (n 14) 176-7.

29

strong natural law thesis.28 Finnis and Murphy are alone in this group in rejecting the strong thesis in favour of the weak one.

B Rethinking Basic Goods

An emphasis on human goods is characteristic of the natural law tradition. However, Finnis’s specific account of basic goods is somewhat idiosyncratic. We have seen that he provides a list of goods that he argues are self-evident and incommensurable. His appeal to selfevidence is intended to avoid committing the is-ought fallacy. However, this strategy arguably sits uneasily within the natural law tradition.

Natural law is called ‘natural law’ in part because it is supposed to be natural. Finnis suggests that the basic goods are aligned with human nature in the sense that they represent ‘what is good for human beings with the nature they have’ (34). However, he denies that the basic goods are in any way derived from human nature; they are not derived from anything, but rather are self-evident.

Finnis’s so-called ‘new natural law theory’ departs in this respect from what is often labelled the ‘old natural law theory’.30 The old natural law theory adopts arguments found in classical thinkers such as Aristotle. It contends that natural law theory must begin by exploring the natural functions of human beings. The basic human goods are those things that support the best performance of these functions.

The old natural law theory relies upon an account of the natural functions of humans and what it means to perfect or frustrate them. This kind of reasoning is contentious and can be criticised for ignoring or oversimplifying biological evidence. Finnis’s argument sidesteps these challenges, jumping straight to the list of basic goods. However, the disadvantage of this approach is that it makes the goods look unmoored from human nature and therefore lacking a clear explanatory foundation.

28 Fuller (n 2) 38-41; Robert Alexy, ‘The Dual Nature of Law’ (2010) 23 Ratio Juris 167, 176-7; Moore (n 21) 198; Crowe (n 14) 176-7.

29 See Murphy (n 5) ch 2.

30 See, for example, Melissa Moschella, ‘Sexual Ethics, Human Nature, and the “New” and “Old” Natural Law Theories’ (2019) 19 National Catholic Bioethics Quarterly 251.

Other contemporary natural law theorists, including Murphy, Gary Chartier and myself, have offered their own lists of the basic goods.31 There is some overlap between these lists but also points of contention. For example, Chartier and I afford pleasure the status of a basic good, while Finnis and Murphy deny this. These disputes are not easy to adjudicate, since they turn significantly on appeals to intuitions about the ends we value for their own sake when engaging in practical reasoning.

Sophie Grace Chappell’s early work on natural law theory defended a list of basic goods with some interesting features. For example, she argued that each person should be regarded as a good in themselves.32 Chappell’s more recent work is critical of the whole idea of a list of basic goods. She worries that lists of this kind are overly reductionist and fail to reflect the phenomenology of ethical experience.33

Finnis has argued that the basic goods are timeless and exist outside history. However, Chappell and I have both suggested that the basic goods can and do change over time.34 If basic goods mirror human nature, then changes in human nature could be expected to bring about corresponding adjustments in the goods.

I have argued that human nature should be understood in an extended way as encompassing not only the biological features of humans but also their social environments.35 This means that changes in the structure of human societies might affect the basic goods. An example is the good of knowledge; the kinds of knowledge that are valued now are radically different to those that were valued a few hundred years ago. It seems plausible to regard this as a shift in the good of knowledge itself.

The relationship between the basic goods has also received further attention. Finnis contends that these goods are incommensurable; they cannot be meaningfully weighed against each

31 Mark C Murphy, Natural Law and Practical Rationality (Cambridge University Press, 2001) ch 3; Gary Chartier, Economic Justice and Natural Law (Cambridge University Press, 2009) 7-13; Crowe (n 14) ch 2.

32 Sophie Grace Chappell, Understanding Human Goods (Edinburgh University Press, 1998) 42.

33 Sophie Grace Chappell, Knowing What to Do: Imagination, Virtue and Platonism in Ethics (Oxford University Press, 2014) 131-157.

34 Chappell (n 32) 44-5; Crowe (n 14) 27-30; Jonathan Crowe, ‘Is Natural Law Timeless?’ (2021) 33 Bond Law Review 1.

35 Crowe (n 14) 7; Jonathan Crowe, ‘Philosophical Challenges and Prospects for Natural Law Foundations of Human Rights’ in Tom Angier, Iain T Benson and Mark Retter (eds), The Cambridge Handbook of Natural Law and Human Rights (Cambridge University Press, 2022) 486-9.

other or objectively compared. However, it seems that we do at least sometimes objectively weigh goods against each other.

Suppose you face a choice between watching your best friend get married or watching a rerun of the show Friends on television.36 Each option holds some degree of value, but it seems clear that one is weighty while the other is trivial. Chartier, like Finnis, maintains that this is ultimately a matter of basic commitments; it is your choice to treat someone as your best friend that weighs in favour of the former option.37

However, what if we imagine two people with different basic commitments: one systematically chooses real life friends over watching television, while the other makes the opposite choice. It is hard to avoid the conclusion that the former’s priorities are preferable; this must be based on something other than their commitments. I have argued for this reason that Finnis’s strong view of incommensurability needs to be qualified; the basic goods are at least sometimes objectively comparable.38

C Understanding the Common Good

I will conclude by returning to the issue of law and the common good. Murphy usefully distinguishes three conceptions of the common good.39 Instrumental conceptions regard the common good as instrumental to human flourishing; aggregative conceptions equate the common good with the situation where each individual is flourishing; and distinctive conceptions treat the common good as a distinctive value that is neither instrumental nor reducible to the flourishing of individuals.

Finnis’s conception of the common good is instrumental since he equates it (as we have seen) with certain ‘material and other conditions that tend to’ promote people’s flourishing (154). His theory also has elements of the distinctive conception, insofar as he argues that a true community arises only when people cease to focus on their individual goods and act purely out of concern for others.

36 Compare Crowe (n 14) 67-8.

37 Gary Chartier and Jere L Fox, ‘Incommensurable Goods’ in Jonathan Crowe and Constance Youngwon Lee (eds), Research Handbook on Natural Law Theory (Edward Elgar, 2019) 261-2.

38 Crowe (n 14) 66-72.

39 Murphy (n 5) 62-3.

Murphy, by contrast, argues for an aggregative conception of the common good.40 This has the virtue of simplicity. It treats the common good as the same thing as the flourishing of all the members of the community, rather than as a set of conditions prior to this or a distinctive value with separate content.

The aggregative conception helps resolve a puzzle for Finnis’s conception of the common good. We saw earlier that it is ambiguous whether Finnis’s conception of the common good requires that all members of the community can actually access the basic goods or merely that they are provided with certain material conditions. Murphy’s aggregative view, by contrast, makes it clear that the common good is not realised unless everybody actually has access to human flourishing.

Finnis uses the common good to argue for a strong view of legal authority. He further identifies legal authority with the nation state; the common good, for him, requires central coordination. Other natural law authors, including Murphy and myself, have criticised Finnis’s arguments for legal authority.41

Finnis contends that each person’s duty to promote the common good translates into a duty to follow the positive law. This assumes that positive law is the only feasible source of social norms that can solve coordination problems for the community. However, many coordination problems are solved by informal norms or conventions rather than positive laws. Indeed, a strong conception of legal authority can sometimes undermine social coordination by crowding out more effective informal solutions.

Finnis thinks that centralised legal authority is the best solution to the social coordination problems arising from the common good. However, as Murphy points out, even if we accept Finnis’s premise that law is the best solution to coordination problems, this is not sufficient to make law authoritative.42 For that to happen, members of the community would have to agree to give law authority over them for this purpose. Unless they do that, law cannot be said to be truly authoritative; at best, we have a moral duty to obey particular laws where this is the best way to promote the common good.

40 Ibid 63-5.

41 Ibid 109-11; Crowe (n 14) ch 10.

42 Murphy (n 5) 109-11.

I have argued, for this reason, that natural law theory should abandon the notion of legal authority in favour of a focus on the obligation to obey specific laws.43 I have also, along with Chartier, questioned the central role of the state in Finnis’s theory.44 Finnis is generally somewhat dismissive about the potential of non-state law, such as customary law, to coordinate social behaviour, but I argue that this understates the role consensual agreements and evolved norms play in social coordination.

IVCONCLUSION

Finnis is clearly the most influential natural law thinker of the past century. His work has set the agenda for contemporary natural law theory. However, his views are, in some respects, atypical when compared to other contemporary authors. His preferred jurisprudential methodology, the central case method, has few (if any) other prominent defenders. His theory of basic goods is one of several live options, while his account of legal authority is also an outlier among recent natural law authors.

Finnis deserves to be recognised for his influence on natural law thinking. He remains an important figure for students of contemporary jurisprudence. However, those who continue to portray him as representative of the tradition risk giving a misleading impression. Natural law theory has been far from static over the past 40 years. There is much valuable work beyond the Finnisian paradigm for readers to discover.

43 Crowe (n 14) ch 10.

44 Ibid ch 6; Jonathan Crowe, ‘Natural Law Anarchism’ (2014) 7 Studies in Emergent Order 288; Gary Chartier and Jere L Fox, ‘Natural Law, the Common Good and the State’ in Jonathan Crowe and Constance Youngwon Lee (eds), Research Handbook on Natural Law Theory (Edward Elgar, 2019).

IS THE SILENCING OF QUEENSLAND’S MOST VULNERABLE

ALLOWING THE PUBLIC TRUSTEE TO GO UNCHECKED AND RESULTING IN A BREACH OF AUSTRALIA’S COMMITMENT

TO

INTERNATIONAL HUMAN RIGHTS TREATIES?

BENJAMIN SPRING1

ABSTRACT: The Trustee Services sector within Australia has received increased media attention in recent years. This attention, mainly focused on Government Trustees, has focused on the ‘fee gouging’ of clients for services, either not performed or performed poorly, along with the inability of clients under an Order by a relevant Court or Tribunal to speak openly and publicly about their concerns. This paper identifies Australia’s commitment to International Law including relevant Treaties and whether the prohibitions legislated in Queensland are likely to be a breach of International Law including relevant Treaties to which Australia has committed.

IINTRODUCTION

An individual should have an automatic unrestrained right to freedom of speech as well as the legal system in all States and Territories in Australia, these basic rights are something that sounds so straightforward and simple yet those members of our community who are the most vulnerable are devoid of such rights.2 This paper will investigate the laws currently in place to determine whether they remove human rights from individuals within many States and Territories. Therefore, establishing a clear breach of the Human Rights Conventions that Australia is a signatory to.3

1 This paper was originally submitted as an assessment for the subject LAW3405 Human Rights & AntiDiscrimination Law, some changes have been included to expand following feedback during the assessment phase.

2 Cason Ho, ‘Gag laws prevent people from speaking out, even after leaving the Public Trustee's care’ (News Article, 11 April 2023) <https://www.abc.net.au/news/2023-04-11/wa-public-trustee-identity-gag-laws-stoppeople-speaking-out/102107868>.

3 Australian Government Attorney-General’s Department, ‘International human rights system’ (Web Page, 15 October 2023) <https://www.ag.gov.au/rights-and-protections/human-rights-and-anti-

IIHUMAN RIGHTS ISSUES & INTERNATION HUMAN RIGHTS LAW

Australia, by virtue of its States and Territories, is a signatory to the Universal Declaration of Human Rights4 (UDHR) which was adopted by the United Nations in 1948.5 Following its commitment to the UDHR Australia, as a voluntary party, has ratified seven core internal human rights treaties including, inter alia, the International Covenant on Civil and Political Rights (ICCPR)6 and the Convention on the Rights of Persons with Disabilities (CRPD).7

Recent media attention8 with respect to Public Trustees in Australia has raised a genuine and important question; does State legislation in the relevant jurisdictions breach Australia’s commitments with respect to the UDHR, ICCPR and CRPD?

If there are potential breaches of Australia’s commitments to the UDHR, ICCPR and CRPD, how does this affect an individual’s rights under international law in relation to a person’s right to recognition,9 their equality before the courts and tribunals,10 their ability to hold opinions and express such opinions freely and openly11 and their ability to have equal access to public service?12

A Breaches of Conventions and Treaties?

discrimination/international-human-rightssystem#:~:text=Australia%20is%20a%20party%20to,Forms%20of%20Racial%20Discrimination%20(CERD)>; The Public Advocate, ‘Public accountability, private lives’ (Report, August 2022).

4 Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, UN DOC A/810 (10 December 1948) (‘UDHR’).

5 Australian Government Department of Foreign Affairs and Trade ‘Australia’s commitment to human rights’ (Web Page, 15 October 2023) <https://www.dfat.gov.au/international-relations/themes/humanrights#:~:text=Australia%20promotes%20and%20protects%20human,its%20consistent%20and%20comprehens ive%20implementation.>.

6 International Convention on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) (‘ICCPR’).

7 Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 2515 UNTS 3 (entered into force 3 May 2008) (‘CRPD’)

8 Anne Connolly and Hannah Meagher ‘Silenced by the state’ (News Article, 30 August 2023) < https://www.abc.net.au/news/2023-06-20/former-public-trustees-clients-speak-out-on-statecontrol/102488532>.

9 ICCPR (n 6) art 2; UDHR (n 3) art 7.

10 Ibid art 14.

11 Ibid art 19; UDHR (n 3) art 19.

12 UDHR (n 4) art 21(2).

A recent ABC investigation13 detailed that persons who are subject to an order of the relevant Tribunal, the Queensland Civil and Administrative Tribunal (QCAT), are prohibited from being named or otherwise identified pursuant to the specific and wide-natured application of section 114A of the Guardianship and Administration Act 2000 (Qld) (GAAT Act).14 The prohibition this section of the GAAT Act details translates, in layman’s terms, that any details including the identity of parties are prohibited from publication.15

Queensland’s Public Trustee of Queensland (PTQ) has appeared in a string of media stories in recent history documenting some harrowing accounts relating to the treatment of some of Queensland’s most vulnerable people. In May 2022, the Attorney General and Minister for Justice, Minister for Women and Minister for the Prevention of Domestic and Family Violence the Honourable Shannon Fentiman, announced a new advisory board16 to “enhance transparency and public accountability of the services provided by the Public Trustee”. The statement by the Minister outlines that, “…[t]he Board will monitor the performance of the Public Trustee’s functions and provide advice and make recommendations to Minister Fentiman for legislative change or improvements, while also being able to provide advice and recommendations to the Public Trustee…”.17 It is however noted that the media release falls short in explaining whether clients of PTQ will be able to make representations to the Board.18

As of May 2022, the PTQ acted as financial administrator for 9731 adults identified as individuals with impaired decision-making capacity,19 with these appointments made by the QCAT pursuant to their powers, and subject to the privacy provisions under the GAAT Act.20 As a result, those 9,731 persons and all materials deposited in QCAT and discussed during the hearing, including the final orders, will be prohibited from being published by support

13 Connolly and Meagher (n 8).

14 Guardianship and Administration Act 2000 (Qld) s 114A (GAAT).

15 Queensland Law Reform Commission, ‘Confidentiality in the Guardianship System: Public Justice, Private Lives’ (Discussion Paper No WP No 60, Queensland Law Reform Commission, July 2006) 27.

16 Department of Justice and Attorney General, ‘New advisory board enhances transparency of the Public Trustee’ (Media Release, 11 May 2022) <https://statements.qld.gov.au/statements/95129>.

17 Department of Justice and Attorney General, ‘New advisory board enhances transparency of the Public Trustee’ (Media Release, 11 May 2022) <https://statements.qld.gov.au/statements/95129>.

18 Ibid.

19 The Public Trustee of Queensland ‘Annual Report 2022-2023’ (Report, September 2023) 5 <https://www.pt.qld.gov.au/media/2388/the-public-trustee-annual-report-2022-23.pdf>.

20 GAAT (n 14).

entities and journalists. It is unsurprising that a large proportion of those 9,731 persons would have limited assets with PTQ reporting that delivered services worth more than $34.4 million and such costs were delivered for a minimal fee or completely free.21

It goes without saying, that for those 9,731 persons, having access to financial resources is almost non-existent and therefore having the ability to retain the services of an experienced lawyer to advocate on their behalf is also almost non-existent.

So, when a person in society has no funds to access legal representation, where generally do members of the community turn? The answer, in this author’s opinion, is quite simple, they seek help from the media and journalists. The problem for those 9,731 persons is that by law a journalist is unable to assist as they are unable to publish the identity of any person subject to a GAAT order.

Consequently, according to lawyer Rowena Petrenas, there is almost no recourse or access to any advocacy service available to persons who are caught up within the guardianship and administration system. This in turn removes any real accountability, which is problematic. Laws preventing journalists from identifying persons who are subject to a QCAT order are more prejudicial than probative and do not assist in ensuring there is an acceptable level of accountability within the Trustee Services sector.22

Without any real level of ability in the Trustee Services sector for persons subject to a GAAT Act Order enabling them to question their treatment, in some cases very impersonal and inhumane treatment, how do said persons question their treatment in a manner where they will be heard? Is this allowing agencies like PTQ to go unchecked allowing for their rights that the Australian Government has committed to be eroded?

According to Professor Rosalind Croucher, President of the Australian Human Rights Commission ‘… Autonomy and agency are the key principles in the equation of dignity that is

21 The Public Trustee of Queensland ‘Annual Report 2022-2023’ (Report, September 2023) 10 <https://www.pt.qld.gov.au/media/2388/the-public-trustee-annual-report-2022-23.pdf>.

22 Cason Ho ‘Peering into the secret world of state care reveals bleak picture, but things are changing’ (News Article, 14 May 2023) < https://www.abc.net.au/news/2023-05-14/public-trustees-control-thousands-behindveil-of-secrecy/102340264>.

at the heart of the international convention23 ...give them the confidence that they need to act as individual people with full agency.’24

IIICOMPLAINTS MECHANISMS

Complaints relating to breaches of human rights with respect to decisions or services in Queensland must first be made directly to the agency that made the decision or provided the service. In the event the outcome of the complaint to the agency is unsatisfactory then a complaint can be lodged with the Queensland Human Rights Commission.

The international procedure for complaints with respect to breaches of human rights is specific to each treaty concerned. With respect to the ICCPR and the CRPD, an individual can make a complaint to the relevant Committee if the individual has exhausted all domestic remedial avenues.25

Those subject to GAAT orders are at a distinct disadvantage, with a diminished and or limited ability to understand and negotiate the complaints process. Without access to their finances to fund legal or other professional representation then it is therefore unlikely they will be able to access and navigate the relevant complaints process at all let alone successfully.

IVHUMAN RIGHTS ACT

The Queensland Human Rights Act (HRA) was introduced in 2019 and took effect on 1 January 2020.26 Its primary focus is to respect, protect, and promote the human rights of all people in Queensland27 and that Courts and tribunals must ‘think about human rights when

23 This references the ICCPR and CRPD.

24 ABC News ‘VIDEO: Should there be major reforms made in the public trustee and guardianship systems?’ (Web Page, 20 June 2023) < https://www.abc.net.au/news/2023-06-20/should-there-be-major-reforms-made-inthe-public/102502890>.

25 Optional Protocol to the International Convention on Civil and Political Rights, 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976); Optional Protocol to the Convention on the Rights of Persons with Disabilities, 13 December 2006, A/RES/61/106, Annex II (entered into force 03 May 2008).

26 Human Rights Act 2019 (Qld) (HRA).

27 Queensland Government ‘Fact sheet: A human rights approach for Queensland’ (Fact sheet, Department of Justice and Attorney-General, February 2020).

they interpret the law.28 Section 15 of the HRA outlines, inter alia, that every person has the right to recognition as a person before the law.29 Additionally, they are entitled to equal protection of the law without discrimination,30 however, the GAAT Act, in this author’s opinion, is not consistent with the provisions of the HRA31 and, as outlined earlier, also breaches the UDHR, ICCPR and the CRPD.

VCONCLUSION

The GAAT Act governs the appointment of financial administrators including the PTQ and outlines that an administrator must adhere to the ‘general principles.’32 This includes, inter alia, empowering [the] adult to exercise human rights and fundamental freedoms.33

This author contends that although the GAAT Act details provisions for human rights following Australia’s commitments to the relevant treaties, it is not consistent with such. The GAAT Act contradicts itself in section 114A by removing the adult’s inherent human right of freedom of opinion and expression. This contention is supported by a 2016 report compiled by the Disability Human Rights Clinic of Melbourne Law School.34

The desired outcome of an individual concerning any breaches identified where Australia has committed itself with the adoption of International Law and Treaties would be for the removal of the restrictions placed upon persons subject to a GAAT order and restore their ability of freedom of speech and their ability to communicate with and be identified by journalists.35

Queensland needs to take appropriate steps in returning a voice to those silenced by GAAT orders as such an action will likely assist the most vulnerable and those seeking to assist and advocate on their behalf whilst not breaching human rights.

28 Ibid.

29 HRA (n 26) s 15(1).

30 Ibid s 15(4).

31 The Public Advocate, ‘Public accountability, private lives’ (Report, August 2022).

32 GAAT (n 14) s11B.

33 Ibid s11B(3).

34 Emma Blakey and Stephen Fodrocy ‘Does Australian and German Law Fulfil Article 12(4)’s Requirement of Ensuring the Rights, Will and Preferences of Persons with Disabilities?’ (Report, Melbourne Law School, October 2016) 16; Note Victoria and Queensland Legislation are comparable.

35 The Public Advocate (n 31) 20.

BEYOND THE TRADITIONAL MINDSET: HOW

COLLABORATIVE PRACTICE OUTSHINES MEDIATION AND LITIGATION

RUTH CHOWDHURY1

ABSTRACT: This paper explores the emerging role of collaborative practice as an innovative approach to dispute resolution in Australia, contrasting it with traditional litigation and mediation. Collaborative practice is recognised for its potential to deliver cost-effective, emotionally supportive, and time-efficient solutions, with an emphasis on cooperation and mutual problem-solving. The paper highlights the key benefits of collaborative practice, as well as addressing its challenges and limitations. This paper will demonstrate why collaborative practice is becoming a preferred alternative to traditional methods of dispute resolution in Australia.

IINTRODUCTION

Collaborative practice has emerged as a groundbreaking alternative to resolving disputes in Australia, offering a more financially and emotionally viable approach to traditional litigation and mediation. It ‘has the potential to play an important role in ensuring a legal system that is fair, simple, affordable and accessible.’2 This process, which focuses on cooperation and mutual problem-solving, is increasingly being recognised for its potential to provide a more cost-effective and time-efficient model of conflict resolution. Collaborative practice globally ‘has been developed mainly as a response to the shortcomings identified in both litigation and adversarial negotiations.’3 This article explores the significance of collaborative practice in the Australian legal landscape, detailing its benefits, challenges, future prospects and how it differs from mediation and is a better option than litigation where appropriate.

1 Principal, Abridge Mediation, LLB (QUT), Mediator, FDRP, Collaborative Practitioner, Parenting Coordinator and Approved Costs Assessor (Qld).

2 Alex Boxsell, ‘Better to collaborate than litigate’ , Newspaper (online, 27 March 2009) < https://www.afr.com/companies/professional-services/better-to-collaborate-than-litigate-20090327-jmpi8>.

3 Timothy Nugent, ‘Collaborative Practice in Australian Civil Disputes’ (PhD Thesis, University of Southern Queensland, 2020) 145.

IIDISTINGUISHING COLLABORATIVE PRACTICE FROM MEDIATION IN DISPUTE RESOLUTION

Litigation is no longer the only option for dispute resolution in Australia and needs no introduction or explanation of its process. The earliest known litigation systems date back to ancient civilizations, such as Egypt, Greece, and Rome.4 Other alternatives to litigation for dispute resolution include direct negotiation between parties (with or without lawyers), mediation, collaborative practice, case appraisal, expert determination, the appointment of a referee, arbitration, conciliation, and parenting coordination. Except for mediation, collaborative practice, direct negotiation and parenting coordination, all the other alternatives to litigation continue to delegate decision-making power to an independent third party. The other alternate dispute resolution processes allow parties to retain decision-making power and control over the outcome. Instead of having a judge or independent third party impose a decision or determine the outcome, parties work together to develop solutions that are mutually beneficial. This paper focuses on collaborative practice and how it differs from mediation and is preferable to litigation.

Collaborative practice and mediation are distinct in their approaches, processes, and outcomes and it may be that parties will use both forms of dispute resolution to reach an agreement. Both mediation and collaborative practice are known as confidential processes that enable flexibility and adaptability, making them suitable for a wide range of disputes, from family matters to commercial conflicts. However, to date, mediation is more widely recognised and accepted than collaborative practice, and, along with some of the other more widely known alternate dispute resolution processes, is now ‘an institutionalised and normalised part of conflict resolution.’5

A Mediation

Mediation is a confidential facilitated negotiation process involving a neutral third party, the mediator, who helps the disputing parties communicate issues and explore solutions while assisting the parties to reality test options and either narrow the issues or reach an agreement.

4 ‘Law in the Ancient World’, Tulane University (Blog, 15 May 2017) <https://online.law.tulane.edu/articles/law-in-the-ancient-world>.

5 Henry Kha, ‘Evaluating collaborative law in the Australian context’ (2015) 26(3) Australasian Dispute Resolution Journal 178.

It is usually a one-off process in a dispute, although subsequent mediation may take place. However, time constraints may increase the pressure on parties to reach an agreement that may not be sustainable or in the interests of any of the parties. Indeed, there are cases and articles where mediators have been criticised for coercing parties to reach an agreement often late in the day or into the evening when exhaustion may be the main motivator for agreement.6

However, mediation is a more flexible and informal process than collaborative practice and is led by a mediator who is a neutral facilitator, with only the parties and, if represented, their lawyers present. There is no requirement for a party to be legally represented. If represented, lawyers may take a back-seat role in the negotiations, allowing the parties to communicate directly. However, some lawyers may prefer their clients to refrain from contributing to the negotiations out of concern that the client may inadvertently reveal a crucial piece of information that they had been withholding up until that point.

The mediator's role is to create a safe environment for open conversation and help the parties understand each other’s perspectives. The mediator does not take sides or make decisions for the parties, but rather acts as a facilitator, guiding the conversation but not advocating for either party. Mediators help clarify issues, identify interests, and explore possible solutions. Anything discussed at mediation is confidential and cannot be used as evidence in any trial or judicial proceeding, except so far as required by law or with the consent of the parties.7 This confidentiality encourages open communication and allows parties to explore solutions without fear of repercussions. Mediation does not preclude parties from engaging in litigation, with or without the same legal team.

B Collaborative Practice

Collaborative practice is a highly structured process where all parties and their lawyers commit to resolving the dispute without going to court. The process is committed to open communication, transparency, and respect. Unlike the ‘draw and swords and charge’

6 Judy Gutman, ‘Legal Ethics in ADR practice: Has Coercion Become the Norm?’ (2010) 21 Australasian Dispute Resolution Journal 218, 223.

7 ‘Confidentiality’, National Mediator Accreditation System (NMAS), (Practice Standards, 1 July 2015) https://msb.org.au/themes/msb/assets/documents/national-mediator-accreditation-system.pdf.

approach of traditional litigation, collaborative practice encourages a team approach where lawyers act as facilitators rather than adversaries.

It is a series of regular meetings with specific agendas and goals for each meeting devised and agreed in advance. All parties must have a lawyer8, preferably one who has been collaboratively trained as ‘not only do the lawyers need to be able to give sound legal advice, they need to have advanced skills in dispute analysis, negotiation preparation and strategising skills, excellent people skills and a sound understanding of conflict dynamics and conflict management.’9 The key feature of collaborative practice is the binding agreement not to litigate, which stipulates that if the process breaks down, the collaborative lawyers must withdraw, and the parties must hire new representation for subsequent litigation.10

Collaborative practice involves a team-oriented approach with legal and other professional support. The approach is inherently cooperative, with all lawyers and clients working together as a team to find mutually acceptable solutions. It often involves other neutral professionals, such as financial advisors, forensic accountants, tax experts, mental health experts, valuers, medical specialists, and child specialists to address various aspects of the dispute comprehensively, and to help the parties resolve the dispute. Occasionally, senior legal counsel may act as an information neutral to advise on complex points of law.

The process also involves a communication neutral or coach, who is tasked with managing the process, keeping the parties focused on their agreed goals while also acting as the keeper of the peace, the guardian of the process and the protector of respectful conversations. The

8 See, e.g., 'Standards and Ethics', International Academy of Collaborative Practitioners, (Practice Guidelines, 2018) 4 <https://www.collaborativelaw.org/wp- June content/uploads/2020/11/11.1.20.2_IACP-Standards-andEthics-2018.pdf>;

‘Australian Collaborative Practice Guidelines for Lawyers’ Law Council of Australia (Policy and Guidelines, 10 March 2011) 12 [61] <https://lawcouncil.au/resources/policies-and-guidelines/australian-collaborativepractice-guidelines-for-lawyers>

9 Marilyn A.K Scott, ‘Collaborative Law: Dispute Resolution Competencies for the “New” Advocacy’ (2008) 8(1) Queensland University of Technology Law Journal 213, 216.

10 International Academy of Collaborative Professionals, (Standards & Ethics, 2018) 4 <https://www.collaborativelaw.org/wp-content/uploads/2020/11/11.1.20.2_IACP-Standards-and-Ethics2018.pdf> and ‘Australian Collaborative Practice Guidelines for Lawyers’ Law Council of Australia (Policy and Guidelines, 10 March 2011) 12 [61] <https://lawcouncil.au/resources/policies-and-guidelines/australiancollaborative-practice-guidelines-for-lawyers>.

communication neutral can also actively participate in the problem-solving process, something a mediator cannot engage in.

As with mediation, collaborative practice is also private and confidential. However, the process involves a more formal structure of confidentiality agreements and protocols that all parties and professionals must adhere to. The collaborative process is designed to maintain confidentiality throughout, protecting the reputations and personal information of the parties involved.

In collaborative practice, lawyers play a central role as both advisors and facilitators. They actively participate in the negotiation process, providing legal guidance to their client in the presence of all parties and their lawyers and ensuring that the solutions are legally sound and in the best interests of their clients. It means that everyone has access to the same information at the same time, including legal advice, and any discussions about the validity of any option involve everyone, including the neutrals.

Collaborative practice focuses on a holistic resolution that considers the legal, emotional, financial, and relational aspects of the dispute. This again differs from mediation, particularly in the civil space, which often focuses purely on the legal elements of the dispute. The collaborative process aims to achieve a comprehensive and sustainable agreement that benefits all parties involved. By fostering a non-adversarial approach, the practice helps preserve relationships and promotes long-term cooperation, which is particularly valuable in disputes involving ongoing interactions, such as business partnerships or co-parenting arrangements. Collaborative practice also models effective communication and conflict management skills for clients, which may help them avoid disputes in the future.

C Other forms of Alternate Dispute Resolution

Engagement in the other forms of alternate dispute resolution including mediation, case appraisal, expert determination, appointment of a referee, arbitration and conciliation often only occurs once litigation is well advanced, and often as a final attempt to settle the dispute before trial. By that point, significant legal costs have already been incurred which may not be recoverable by any party as part of the dispute resolution process. A collaborative process avoids the costs of any litigation and any ancillary costs incurred by using any of the other forms of alternate dispute resolution.

IIIKEY FEATURES OF COLLABORATIVE PRACTICE

Essential aspects of collaborative practice include the voluntary engagement of all participants, a commitment to settle disputes without resorting to litigation, and the inclusion of professionals from diverse fields as previously mentioned. This process not only aims for comprehensive dispute resolution but also empowers clients to enhance their own communication and conflict management abilities both personally and professionally. The key features of collaborative practice are summarised below.

A Key Features

1. Voluntary participation: All parties must willingly engage in the process in good faith.

2. Commitment to not going to Court: If the collaborative process fails, the collaborative process lawyers cannot represent the parties in subsequent litigation.11

3. Interdisciplinary approach: The process may involve other professionals, such as financial advisors, valuers, engineers, medical specialists, child consultants, mental health experts and other relevant experts, to address all aspects of the dispute.

4. Opportunity for lawyers and neutrals to model effective communication and conflict management skills to clients.

IVBENEFITS OF COLLABORATIVE PRACTICE

Collaborative practice offers several benefits that make it a more appealing alternative to traditional litigation. By emphasising cooperation and mutual respect, this approach reduces legal costs and allows for a timelier settlement between the parties. It also fosters emotional well-being, while allowing parties to retain control over their outcomes.

A Cost-Effectiveness

11 International Academy of Collaborative Professionals, (Standards & Ethics, 2018) 4 <https://www.collaborativelaw.org/wp-content/uploads/2020/11/11.1.20.2_IACP-Standards-and-Ethics2018.pdf> and ‘Australian Collaborative Practice Guidelines for Lawyers’ Law Council of Australia (Policy and Guidelines, 10 March 2011) 12 [61] <https://lawcouncil.au/resources/policies-and-guidelines/australiancollaborative-practice-guidelines-for-lawyers>.

One of the primary advantages of collaborative practice is its cost-effectiveness compared to litigation. In the context of a family law matter, a ‘fully litigated action can cost between $50,000 and $150,000 and take 2 years to 2 1⁄2 years to get to court. More complex cases can cost up to $500,000.’12 ‘On average, a family law collaborative practice matter will cost each party $20,000 to $60,000’13 and take around six months to reach a resolution. A fully litigated commercial matter including a 5-day trial can cost more than $1,000,000 per party.14 The unsuccessful party is also at risk of paying the successful party’s costs as well as their own. If there are multiple parties, the financial risk to the losing party or parties increases exponentially. By avoiding lengthy court battles, parties can save on legal fees and associated costs. This is particularly important in civil law disputes where the legal costs can be both astronomical and catastrophic.

B Emotional Well-being

Collaborative practice reduces the emotional toll on all parties involved by avoiding litigation and the ‘emotional distress and guardedness generated by the tactical nature of the court process.’15 The process fosters a supportive environment that can help maintain and even improve relationships, which is crucial in disputes involving ongoing personal or business relationships. This aspect is in stark contrast to the adversarial nature of litigation, which often exacerbates conflict and stress, and harms the physical, social, and emotional wellbeing of the parties, their families, and communities. Mediation often focuses on the black letter law issues, including legislation, case law and legal precedent, with a settlement at any cost, and ignores the harmful effect that the dispute has on the parties. Even if a party to the dispute is an entity and not an individual, the conflict will still have an adverse effect on an individual, or individuals, involved with that entity at some level.

C Control Over Outcomes

12 Duncan Hughes, ‘This Increasingly Popular Divorce Strategy Can Save Money and Tears’ (online, 10 April 2024) Australian Financial Review< https://www.afr.com/wealth/personal-finance/this-increasingly-populardivorce-strategy-can-save-money-and-tears-20240404-p5fhc4>.

13 Ibid.

14 Author’s experience as Approved Costs Assessor (Qld).

15 Scott (n 9) 216.

Collaborative practice allows parties to retain decision-making control over the outcome.16 Instead of having a judge or third party impose a decision or determine the outcome, parties work together to develop solutions that are mutually beneficial, and the clients become the decision makers. This empowerment can lead to more satisfactory and sustainable outcomes, as parties are more likely to adhere to an agreement they have actively participated in crafting.

D Confidentiality

The collaborative process is private and confidential, offering a level of discretion not possible in public court proceedings. This confidentiality and absence of public visibility, scrutiny and criticism is particularly beneficial in sensitive matters, protecting the personal and business reputations of the parties involved. For example, billionaire Roy E Disney, nephew of Walt Disney, and his wife of 52 years, Patricia, chose a collaborative practice process for their divorce in 2007 to protect their privacy, and avoid public scrutiny and publication of the details of their wealth, assets and finances. Similarly, a collaborative practice process may have shielded Gina Rinehart and her family from the court of public opinion in their litigated battle concerning the Family Trust.

Although mediation also affords confidentiality, if it takes place late in the litigation process, information may already be in the public domain due to the filing of court documents.

E Flexibility and Creativity

Collaborative practice allows for flexible and creative solutions tailored to the specific needs of the parties involved and determined by the parties themselves with the assistance and support of the collaborative team. This flexibility can lead to more innovative and effective outcomes that are not typically possible with traditional adversarial litigation and are more likely to be complied with by all concerned.

16 ‘Australian Collaborative Practice Guidelines for Lawyers’ Law Council of Australia (Policy and Guidelines, 10 March 2011) 11 [48] <https://lawcouncil.au/resources/policies-and-guidelines/australian-collaborativepractice-guidelines-for-lawyers>.

Like all processes, collaborative practice is not without its challenges and may not be appropriate for certain disputes. While it offers a promising and exciting approach to dispute resolution, there are inherent limitations that must be acknowledged. The effectiveness of collaborative practice relies heavily on the genuine commitment and integrity of all parties involved. This requirement for mutual willingness can be particularly challenging in highconflict situations where trust has been compromised. Additionally, the risk of failure, which necessitates the withdrawal of the entire collaborative team, can lead to increased costs and delays, potentially deterring some parties from choosing a collaborative practice process. Furthermore, limited awareness and training among legal professionals and the general public hinder the widespread adoption of collaborative practice as a viable alternative to the other traditional and more widely accepted dispute resolution pathways.

A Need for Willing Participation

Successful collaborative practice hinges on the genuine commitment to the process and the integrity of all parties to commit to not going to court. This can be a significant barrier, especially in high-conflict situations where trust and good faith have been eroded. Parties need to be reassured that the process is not a fishing expedition on the part of the other parties. The success of the collaborative approach hinges on the willingness of all parties to engage in open, transparent, and honest negotiations.

B Risk of Failure

If the collaborative process fails, the entire team must withdraw and cannot have any further involvement in the dispute.17 The parties must then engage new lawyers and experts. This requirement can lead to additional costs and delays, potentially discouraging some from opting for a collaborative process initially. It is this risk of failure and the possible loss of a loyal client or trusted legal adviser that is one of the major barriers to engagement in collaborative practice in Australia as ‘lawyers are fearful of losing their long-term client,

17International Academy of Collaborative Professionals, (Standards & Ethics, 2018) 4 <https://www.collaborativelaw.org/wp-content/uploads/2020/11/11.1.20.2_IACP-Standards-and-Ethics2018.pdf> and ‘Australian Collaborative Practice Guidelines for Lawyers’ Law Council of Australia (Policy and Guidelines, 10 March 2011) 12 [61] <https://lawcouncil.au/resources/policies-and-guidelines/australiancollaborative-practice-guidelines-for-lawyers>.

should the matter need to go to litigation, and the clients do not want to take the risk of losing a professional relationship in which they have heavily invested.’18

C Limited Awareness and Training

Greater awareness and training amongst legal professionals and the public about the benefits of collaborative practice are essential in improving the level of engagement in collaborative practice as the preferred alternative to litigation.

Raising awareness of the collaborative practice option in our communities and industry groups is also important if collaborative practice is to gain traction in areas other than family law in Australia. Most people are familiar with mediation and anticipate and expect it to be utilised in resolving a dispute, but very few have heard of collaborative practice as an option.

VDISPUTES BEST SUITED FOR COLLABORATIVE PRACTICE

Although collaborative practice is an excellent alternative to litigation, it may not always be appropriate. Some disputes simply need to be resolved by way of litigation such as complex commercial disputes, disputes with multiple plaintiffs, defendants and third parties all with different arguments, matters where there are significant power and control issues or a power imbalance that cannot be managed are some examples of matters where a collaborative practice process may not be appropriate, and the examples are not an exhaustive list.

However, the following types of disputes will benefit from a collaborative practice process.

A Preservation of Relationships and a desire to avoid court

In disputes where the preservation of ongoing relationships is crucial, such as business partnerships or family matters, collaborative practice is particularly beneficial. By focusing on respectful communication, and genuinely trying to understand the interests, needs and concerns of all parties to the dispute, collaborative practice can help maintain relationships that could otherwise be irreparably and publicly damaged through litigation.

18 Scott (n 9) 221-222.

Similarly, matters where a client who has no desire to go to court or risk having to give evidence and be cross examined are particularly suited to a collaborative practice process.

B Preservation of reputation

Collaborative practice is particularly suited to matters where reputation is important and at stake. Because collaborative practice is a confidential process that takes place outside of the court system, credibility is protected and maintained, and personal and professional information remains private and out of the public domain.

C Retention of control over outcomes

Collaborative practice is also an ideal option for parties who do wish to relinquish decision making power and control, or risk adverse findings at trial which are then on public record.

VIFUTURE DIRECTIONS AND POTENTIAL

The future of collaborative practice in Australian dispute resolution is both promising and exciting. It is already becoming the preferred model of dispute resolution in the family law space and is quickly gaining traction in the areas of estate planning, contested wills and estates, and employment and industrial relations. To fully realise its potential, several steps need to be taken.

A Education and Training

Increasing awareness among legal professionals and the community through training programs and public education campaigns is crucial. This can help increase engagement with collaborative practice more widely across the different areas of dispute resolution.

It is particularly important to include collaborative practice, as well as other non-litigious forms of dispute resolution at the undergraduate level in law schools in order to provide an ‘alternative conception of legal professional identity,’19 and dispel the strong belief held by

19 Nugent (n 3) 111.

some law students that they ‘must take all matters to a hearing, as only a judge can make the ‘right’ decision, and it is their duty to the client to do so.’20

Raising awareness amongst legal professionals and law students and supporting them to implement the process in their practice and reassure their clients of its benefits will be of great benefit in raising awareness.

B Cultural Shift

Encouraging a shift from adversarial embattled litigation to collaborative practice within the legal profession requires a cultural shift in mindset and ongoing advocacy and support from legal institutions and educational bodies.

C Research and Adaptation

Ongoing research to adapt collaborative practice to various types of disputes can help identify best practices and refine the process. Pilot programs and case studies can provide valuable insights and demonstrate the effectiveness of this approach in different contexts, and we have a growing number of these in the family, estate planning and contested wills and estates practice areas.

VICONCLUSION

Collaborative practice offers a unique approach to resolving disputes in Australia. It offers parties more control over outcomes as they work together openly and honestly, generating resolution options and empowering shared solutions. By emphasising cooperation, costeffectiveness, and mutually satisfactory outcomes, it presents a compelling alternative to traditional litigation. As awareness and acceptance of collaborative practice grows, it has the potential to vastly reshape the landscape of dispute resolution across all areas of legal practice in Australia.

20 Scott (n 9) 230.

JUSTICE FOR THE FUTURE - EXAMINING JOHN RAWLS’ THEORY

OF JUSTICE AND THE ‘MAXIMIN’

GEMMA KEOGH1

ABSTRACT: Over time, the law that governs a civilised society has been examined through numerous legal and political theories. Significant emphasis has been placed not only on how the law is created, but for what purpose. John Rawls and his Theory of Justice is a theoretical giant within political and legal schools of thought. With his theories of equality, justice for all, and fairness becoming undercurrents of legal discourse, Rawls was a pioneer within the political theories space. This paper identifies Rawl’s principles of justice, discerns how they have influenced Social Contract Theory historically, examines their criticisms and considers how they can aid in the continuation of future justice.

IINTRODUCTION

John Rawls was a well-known political philosopher, whose famous work, A Theory of Justice, 2 was influenced by his experiences as a young man, particularly his time in combat during the Vietnam War.3 This, combined with the historical events of the Holocaust and Hiroshima, resulted in him having a crisis of faith.4 Rawls sought to understand the world, wishing to develop a philosophy that was comprehensive in its coverage of a free and fair society through which human unity and cooperation would be promoted.5

His teachings have had a significant impact over the years, establishing Rawls as a pioneer alongside many other significant theorists,6 such as John Locke, Thomas Hobbes and Jean-

1 This paper was originally submitted as an assessment for the subject LAW5224 Advanced Theories of Law, some changes have been included to expand on the discourse within the paper.

2 John Rawls, A Theory of Justice (Oxford University Press, 1971).

3 Ibid 2.

4 Julian Coman, ‘John Rawls: can liberalism's great philosopher come to the west's rescue again?’, The Guardian (online, 20 December 2020) <https://www.theguardian.com/inequality/2020/dec/20/john-rawls-canliberalisms-great-philosopher-come-to-the-wests-rescue-again>.

5 Ibid.

6 Catherine Audard, John Rawls (Taylor & Francis Group, 2006) 1.

Jacques Rousseau.7 For Rawls, it is specifically the aspects of his work that cover fundamental issues within political contemporary philosophy, constitutional law and distributive justice that have bolstered his reputation.8 His theories focus on the relationship between ethics and politics, which is noteworthy as it did not exist in the years prior,9 and is still celebrated.10

This paper aims to discuss Rawls, examining his principles of justice in the context of Social Contract Theory to discern why his theory ‘maximin’, is regarded highly. During this discussion, the benefits and drawbacks of ‘maximin’ as a distributive justice theory will be superficially evaluated. This analysis will also posit the idea that Rawls’ theory, particularly his focus on equal justice for all, can be developed further as justice for the future, cementing the notion that this theory continues to have a significant impact on the contemporary political space.

IIJOHN RAWLS –ORIGINS OF THEORY OF JUSTICE

Significant weight in society is given to the notion of justice as being fair so long as the correct and fair procedure is followed to reach the concluded outcome; for Rawls, justice does not solely encompass this understanding of procedural justice.11 Scholars suggest that if this was the only interpretation for justice, the conduct taken by the Nazis would amount to ‘just’, as they followed their laws and procedures. 12Most would conclude that their conduct was unjust, as justice requires more than simply the following of procedure.13 The concept of ‘pure’ procedural justice surmises that there is no ‘independent criterion’ for the right outcome; rather, where there is a ‘correct’ or ‘fair’ procedure the outcome itself is also ‘correct’ or ‘fair,’ so long as the procedure is followed.14

7 Sue Slate Donaldson, ‘From the natural to the civil state: the evolutionary process as viewed by Thomas Hobbes, John Locke and Jean-Jacques Rousseau’ (Master of Arts in History, Master’s Thesis, The University of Richmond, 1978) 2.

8 Audard (n 6) 2.

9 Ibid.

10 Coman (n 4).

11 Rawls (n 2) 75.

12 Audard (n 6) 15.

13 Ibid.

14 Rawls (n 2) 75.

In contrast, the notion of justice within Rawls’ theory focused on the empowerment of everyday citizens.15 This focus enabled Rawls to better understand ‘the deep moral and political values’ that govern most social and political institutions; this element of Rawls’ theory suggests that a deeper understanding could invite significant reflection and lead to potential social change.16 This, Rawls believed, had the potential to influence people's thoughts of such social and political institutions in their entirety, not simply on a superficial level.17 A broad coverage of the social and political institutions would then provide space for a ‘unified framework’ or foundation where answers could be consistently sought for any divisive questions that society may have.18 Consequently, Rawls’ focus was both practical and political, and so he sought to bring greater clarity to the meaning of justice.19 He endeavoured to show society how his understanding of justice could aid in the governing of new and existing institutions.20

Rawls asserted that through the principles of freedom and equality, there can be a central vision open to all within that society, regardless of their life circumstances or station, which enables consideration of all peoples in the decision-making process; an aspiration that is engrained within most liberal democracies.21 Rawls posited that reasonable people could reach an agreed consensus, with his analysis comparing political liberalism and social liberalism.22 Where political liberalism is particularly defensive of the rule of law, social liberalism is more concerned with equality, inclusion, and social justice.23 It should be noted that for political liberalism, this focus on social justice regards the ‘welfare of individuals’ due to the importance of social structures and nothing deeper.24 This is in contrast to the broad understanding of social justice within contemporary society. The current understanding, from the United Nations perspective, is that social justice means ‘a society for all’ where equality, equity and the protection of fundamental rights and freedoms are a

15 Ibid.

16 Audard (n 6) 65.

17 John Rawls, Justice as Fairness: A Restatement, ed Erin Kelly (The Belknap Press of Harvard University Press, 2001) 2

18 Ibid.

19 Charles R. Beitz, ‘Rawls’s Law of Peoples’ (2000) 110(4) Ethics 669, 677.

20 Ibid.

21 Rawls (n 17) 68.

22 Audard (n 6) 257.

23 Coman (n 4).

24 Ibid; Audard (n 6) 257.

central focus.25 An argument could therefore be made that the current understanding of social justice aligns with Rawls’ theory of justice in the purest sense.

Regardless, Rawls proposes two ‘basic principles’, arguing that any ‘free and rational persons ’ would accept them to improve their interests.26 The first principle of justice necessitates equality in assigning ‘…basic rights and duties…’27 That is, they focus on constitutional liberties and involve ‘stringent protection’ for them, allowing for fair, equal, and full participation in society's political processes.28 This is known as the liberty principle and is comparable to the well-known American concept of ‘liberty for all’.29 Largely because this principle of Rawls’ theory focuses on the equal liberties and basic rights of individuals as they pertain to property, political interests and the rule of law, specifically as it relates to political institutions.30 Accordingly, the fundamental aim is to pursue the equal protection of the basic rights of each individual within society.

The second principle in Rawls’ theory is framed with two components and is known as the Fair and Equal Opportunity, and the Difference principle.31 Firstly, the Fair and Equal Opportunity component posits that socioeconomic inequalities are ‘just’ so long as they allow for the benefit of everyone.32 Rawls asserts that there should be an equal distribution of ‘natural assets’ allowing for individuals who have ‘similar abilities and skills’ to be afforded the same ‘prospects of success’ without considering where they have initially started within society.33 Rawls argues that individuals who are willing to use their gifts, talents and skills should be afforded equal opportunity.34 As such scholars suggest it is therefore the responsibility of political and societal institutions to adjust, to ensure that all members of

25 United Nations, ‘World Day of Social Justice’, Social Development Issues (Webpage, 30 July 2015) <https://social.desa.un.org/issues/poverty-eradication/events/world-day-of-social-justice-20-february>.

26 Rawls (n 2) 10.

27 Ibid 14-15.

28 Audard (n 6) 9.

29 Olatunji A. Oyeshile, ‘A Critique of the Maximin Principle in Rawls' Theory of Justice’ (2008) 3(1) Humanity and Social Sciences Journal 65-69.

30 Rawls (n 2) 108; Samuel Freeman, ‘Original Position’ in Edward N. Zalta & Uri Nodelman (eds) The Stanford Encyclopedia of Philosophy (Online, Winter 2023 Edition) <https://plato.stanford.edu/archives/win2023/entries/original-position/>.

31 Alex Miele ‘An Explanation of John Rawls's Theory of Justice with a Defense of the Veil of Ignorance’ (Senior Thesis, No 1537, Claremont McKenna College, December 2016) 30.

32 Rawls (n 2) 14-15; Oyeshile (n 29).

33 Rawls (n 2) 63; Miele (n 31) 30.

34 Ibid.

society have access to good education, healthcare, employment and other such opportunities.35 Secondly, the Difference component simultaneously specifies that socioeconomic inequalities are ‘just’ so long as they are for the ‘maximum advantage’ to those who are most disadvantaged within society, thus leading to fair and equal opportunity.36

A key area that scholars have emphasised is that Rawls did not intend for this component to endorse increased amounts of ‘free’ support or ‘handouts’ to the most disadvantaged in society.37 In fact, Rawls argued that redistributing societal wealth in such a way as to complete equality, where each individual had the same amount of wealth regardless of their role in society, would lead to an ‘economic disaster’.38 Rather, Rawls suggested that, through the difference principle, socioeconomic inequalities influence the institutional structures of society in such a way that they function more effectively, equally and fairly.39

It is important to note that the principles of justice theorised by Rawls were not intended to be imposed on individuals specifically, but rather on the structures and institutions which govern society.40 A society’s government is tasked with implementing social institutions that protect and support the most disadvantaged within their communities by providing them with sufficient support, healthcare, education, and welfare as some examples. These basic principles have been defended by scholars as solutions to the problem of what constitutes a ‘just’ societal structure.41 Rawls describes this as ‘justice as fairness’, speaking to liberty and equality for ‘all’ to ensure that even the most disadvantaged within a social structure is provided for.42

Rawls’ emphasis on ‘everyone’ and ‘all’ opens the intriguing idea that his theory could not only be significant in analysing current political institutions and societal structures but also be useful in pursuing future aspects of justice. It raises the prospect of preparing society, and humanity, for future generations by establishing, maintaining and improving a societal structure where the well-being of ‘everyone’ is considered in all decision-making. Those

35 Miele (n 31) 30.

36 Rawls (n 2) 14-15; Oyeshile (n 29).

37 Rawls (n 2) 30; Miele (n 31) 31.

38 Ibid.

39 Rawls (n 2) 65.

40 Miele (n 31) 32.

41 Oyeshile (n 29).

42 Audard (n 6) 9.

charged with developing policies, legislation, and other governing materials would do so with the future impact of such decisions in mind. Any implications on the next generation of society, as key stakeholders, would be given a central focus. Interestingly, this concept of ‘justice as fairness’ is his understanding of Social Contract Theory, as most notably reworked from the ideas of Hobbes and Locke.43

IIISOCIAL CONTRACT THEORY INFLUENCES

Social Contract Theory is the philosophical view where an individual’s morality and beliefs influence how they participate in society.44 It originated from Hobbes’ concept of the ‘state of nature,’45 which is the understanding of a time when humanity existed but did not comprehend the notion of a society.46 Hobbes believed that when operating within this state, there are no obligations to others, and no rules to follow.47 Essentially, this was a time when lawlessness, anarchy, and a lack of accountability for one's actions prevailed. For Hobbes, this was a state in which life was ‘solitary, poore, [sic] nasty, brutish, and short’48 and those living in this state were in a perpetual war against all others.49 Hobbes asserted that this state allowed humanity to do what they like, particularly in protecting or defending themselves. Due to the lack of legal or moral constraints, nothing in this state could be unjust.50 Living in a ‘state of nature’ is not ideal for a rational individual, and as such, there is an understanding that individuals would enter into a contract for the benefit of all: one governed by obligations and laws leading to civil society.51

Locke continued this concept, suggesting that it exists wherever an agreed-upon and legitimate authority is not present.52 Further, it is a relational concept that defines the moral and ethical obligation that exists between people who have not currently determined an

43 Ibid 9.

44 Miele (n 31) 14.

45 Ibid 14.

46 Ibid 14.

47 Ibid 14.

48 Thomas Hobbes, Leviathan (Electric Book, 2017) 113.

49 Ibid 203.

50 Ibid 207.

51 Miele (n 31) 14.

52 Alex Tuckness, ‘Locke’s Political Philosophy’, in Edward N. Zalta & Uri Nodelman (eds) The Stanford Encyclopedia of Philosophy (Online, Fall 2023 Edition) <https://plato.stanford.edu/archives/fall2023/entries/locke-political/>.

authority.53 Locke’s perspective was that individuals, upon proclaiming an authority, like the government, would be liberated of some of their rights to ensure stability and provide comfort and enjoyment to their lives.54 This act of consent, some scholars believe, is generally implied through a person’s act of living within the confines of a particular society.55 However, other scholars argue that Locke’s concept of consent needs to be explicitly given to the authority, for the individual to leave the ‘state of nature’ or by providing a choice to stay.56

Rawls agreed with the broad parameters of Locke’s theory; however, he took issue with this aspect of consent. He suggested that most members of a society are born into a social contract, negating the need for consent and often having the pre-existing obligations imposed upon them.57 Therefore, the reality of the laws imposed by a governing authority are those which individuals would consent to if given the choice.58 Rawls further suggests that individuals would likely provide consent to an immeasurable amount of things when there are no guidelines.59 Scholars note that the traditional understanding of Social Contract Theory does not articulate if laws ought to be fair but rather that society is better with their existence than without.60 Building from this desire for a better society, Rawls developed his theory by reimagining the ‘state of nature’ through the lens of a hypothetical thought experiment. 61

IVTHE ORIGINAL POSITION

‘The original position,’ is the foundational marker for Rawls’ theory,62 from which his principles of justice are formed.63 Rawls posits that individuals come with the motivation to

53 Ibid.

54 Fred D’Agostino, Gerald Gaus, and John Thrasher, ‘Contemporary Approaches to the Social Contract’, in Edward N. Zalta (ed)The Stanford Encyclopedia of Philosophy (Online, Winter 2021 Edition) <https://plato.stanford.edu/archives/win2021/entries/contractarianism-contemporary/>.

55 Miele (n 31) 15.

56 John T. Bookman, ‘Locke’s Contract: Would People Consent to It?’ (1984) 43(3) The American Journal of Economics and Sociology 357-368, 357.

57 Miele (n 31) 15.

58 Rawls (n 2) 17.

59 Ibid 127.

60 Miele (n 31) 15.

61 Rawls (n 2) 104.

62 Sampurnaa Dutta, ‘Rawls’ Theory of Justice: An Analysis’ (2017) 22(4) Journal of Humanities and Social Science 40-43, 41.

63 Oyeshile (n 29) 66.

ensure and pursue rational plans for their lives.64 In this position, Rawls believes it is vital to enforce ‘informational constraints’ which he identified as the ‘veil of ignorance’.65 Ideally, those approaching a situation from this position are equals, who are striving to reach a mutually agreeable place that will ultimately result in an effective and democratic society.66 Depriving select information about individuals avoids bias, as those making the decision would pursue the best choice for everyone.67 This, according to Rawls’ supposition, enables individuals to determine a fair, just and equal outcome for everyone. This concept speaks to his ‘justice as fairness’ and also aids in the potential for considering future justice. Rawls’ ‘original position’ enables individuals to start from equal places and discern what is in the best interest of society as a whole.

In similarity, Locke emphasised an ‘intimate connection’ that exists between the rights of the individual and their ‘mutual equality’.68 Locke, like Rawls, had developed a theory of an ‘original state’ of being; where what existed was ‘…a state of perfect freedom’ yet simultaneously ‘…a state also of equality, wherein all the power and jurisdiction is reciprocal, no one having more than another.’69

The premise of completely depriving individuals of information which could lead to biased outcomes is solely theoretical, especially given the state of society today.70 However, it is worth considering whether entering into a space of decision-making where an individual's own priorities are set aside in order for equality, justice and fairness to prevail for the benefit of future generations is achievable. Regardless, it is from the foundation of the ‘original position’ that Rawls’ ‘maximin’ develops through his principles of justice.

64 Ibid.

65 Ibid.

66 Ibid.

67 Ibid.

68 John Locke, Second Treatise of Government, ed Thomas P. Peardon (Indianapolis: The Bobbs-Merrill Company 11th ed, 1980), 56.

69 Marc F. Plattner, ‘From Liberalism to Liberal Democracy’ (1999) 10(3) Journal of Democracy 121, 123; Locke (n 68).

70 Jarek Gryz and Marcin Rojszczak, ‘Black box algorithms and the rights to individuals: no easy solution to the “explainability” problem’ (2021) 10(2) Internet Policy Review, 11.

VTHEORY OF JUSTICE –THE ‘M

AXIMIN’

Rawls relies on the understanding that a rational decision-maker emerges from ‘the original position’ to enact principles of justice that are void of any socioeconomic, physical, or mental injustice.71 To do this, and as previously discussed, Rawls posits two principles of justice. While each is placed in specific orders to denote which one would prevail should a conflict arise,72 it is the second principle where his notion of ‘maximin’ is established. It is separated into two parts by Rawls and as a result, is occasionally considered as two distinct principles by scholars.73 It seeks fair and equal opportunity due to any social or economic inequalities: first by allowing everyone equal access to education, employment, and cultural opportunities, and second by requiring the inequalities of wealth, income, power, or entitlement be maximally arranged, to benefit the most disadvantaged within society and afford them a better circumstance.74

Notably, it is argued that distribution ought to yield the ‘absolute maximum,’ which requires ‘an economic system more just than any other ’75 In Rawls’ time, despite multiple possibilities, no such system met his unique criterion.76 As such, the second principle is where Rawls chose to define the concept of ‘maximin’: essentially the merging of maximum and minimum.77 Rawls articulates that any inequalities within society should be ‘…to the greatest advantage of the least advantaged …’ and ‘… under conditions of fair equal opportunity.’78 Therefore, the concept articulates when making distributions fairly ‘the original position,’ and consequently the ‘veil of ignorance,’ allows the decision-maker to provide for everyone equally.79 This places particular emphasis on a person providing for the least advantaged within society, without trying to further their standing or benefit.80

71 Norman E. Bowie, ‘Some Comments on Rawls’ Theory of Justice’ (1974) 3(1).

72 Ibid.

73 Miele (n 31) 29.

74 Freeman (n 30).

75 Norman Daniels, Reading Rawls: Critical Studies on Rawls’ ‘A Theory of Justice’ (Stanford University Press, 1989) 76.

76 Ibid.

77 Ibid.

78 Rawls (n 2) 302.

79 Ibid.

80 Ibid.

Rawls seeks to distribute economic, political and social resources, whether they are beneficial or burdensome, in an equal way amongst members of society.81 The common understanding of distributive justice is that every society or social system contains some mechanism to aid in the distribution of resources, as well as for allocating specific rights and responsibilities along with their costs or burdens.82 These mechanisms are vital in achieving a distribution that is ‘just’ or ‘fair’ resulting in an equitable allocation that enhances the wellbeing of all within society.83 His use of ‘maximin’ could also speculate that the consideration of future justice, or the equitable interests of future generations, ought to be taken into account when undertaking distributive justice in this way. This is because future generations have as much, if not more, stake within the fair distribution of a society's resources and the potential costs or burdens that may result in their distribution.

Accordingly, Rawls asks decision-makers, who come to this ‘original position’ and who set out to make decisions on behalf of society, to ‘rank alternatives by their worst possible outcomes’84 and expresses that they are to act as though their societal position is the worst possible one. He specifically identified that they should think they have been assigned that position by their enemies.85 Under these two requests, Rawls believes that the decision-maker will adopt a rational and conservative approach, this is the foundation of the ‘maximin’ principle.86 It is this approach that sets Rawls’ theory apart from others, along with the understanding of the ‘maximin’.87 Fittingly, this distributive justice theory has the fundamental consideration of distributing resources within society equally. There are, however, some challenges raised by scholars.

VICHALLENGES TO ‘MAXIMIN’

Rawls’ ‘maximin’ theory allows for changes in an economic and political system,88 to accommodate a ‘just’ and ‘fair’ response to the needs of society. Rawls’ theory persuades

81 Karen S. Cook, and Karen A. Hegtvedt, ‘Distributive Justice, Equity, and Equality’ (2003) 9 Annual Review of Sociology 217-241, 218.

82 Ibid.

83 Ibid.

84 Rawls (n 2) 152-3.

85 Daniels (n 75) 296.

86 Ibid 296.

87 Ibid.

88 Ibid 106.

society to turn away from a traditional utilitarianism theory in favour of the ‘original position’.89 However, there have been two key challenges to Rawls’ theory. The first pertains to his insistence on the ‘maximin’ and its connection to ‘choice’, and the second is the correlation of the ‘maximin’ and the risks associated with liberties.90

Moral philosopher R.M. Hare regarded the ‘maximin’ negatively, believing that the level of uncertainty within its foundations does not lead to good choices.91 Hare also suggested that once the minimum has been achieved there is no further incentive to strive for the ‘maximin’ that Rawls describes.92 Rawls has himself articulated that there is a level of uncertainty, however, he argues that there are features of the principle that allow for plausibility when administering the principles of justice.93 Namely, the absence of knowledge provides objectivity, the decision-maker can make decisions without any bias, and intolerable outcomes may not exist through the ‘maximin’.94 Hare concluded that the ‘maximin’ is not necessarily bad, simply that Rawls has not articulated a strong enough case for it to be considered good.95 This criticism allows for Rawls’ theory to be accepted, provided it is given a more comprehensive consideration and its principles further examined.

Notably, other scholars have determined that the ‘maximin’ is accepted more readily if solely compared to the liberties afforded within utilitarianism and the significant risks involved when not protecting them.96 However, when compared to other theories that also protect liberties, the contrasting risk is less apparent.97 The differing risk analysis does not persuade scholars to discern that Rawls’ theory ought to be pursued above others; rather this criticism argues that it is merely comparable to other utilitarianism theories. These two points are where the main criticisms largely fall, along with the challenges to the uncertainty that Rawls is not able to counter adequately.

89 Ibid xxv.

90 Ibid xxv.

91 A. L. Levine, ‘Review of Reading Rawls: Critical Studies on Rawls’ “A Theory of Justice.,” by N. Daniels’ (1977) 15(2) Journal of Economic Literature 512, 513.

92 Daniels (n 75) 106.

93 Rawls (n 2) 154.

94 Ibid.

95 Levine (n 91) 514.

96 Daniels (n 75) xxv.

97 Ibid.

VIICRITICISM OF LIBERAL DEMOCRACY

Further criticism of Rawls’ theory can be found when observing its links to liberalism and consequently liberal democracy. Rawls’ theory of justice posits the understanding that the rights of the individual remain important while striving for equality, justice and fairness in the decision-making process. Liberalism, at least twentieth-century liberalism, is rooted within the idea of a ‘constitutional and limited government, the rule of law, and the protection of individual rights’98 These liberalist ideals have led to the development of Liberal Democracy; there are even some scholars who posit that they are the same. 99 However, this notion that liberalism and democracy are connected is slowly becoming less evident.100 Scholars have surmised that political regimes calling themselves democratic are not necessarily based on the fundamental principles of liberalism.101 Further, some scholars have suggested that some countries that claim to be democratic, merely do so because they have met the ‘free and open election’ element.102 Yet they fail to consider the ongoing needs of their citizens by upholding individual rights.103

This paper’s pursuit of justice for the future brings this criticism to the forefront. It asks the question: are liberal democracies and therefore liberalism, with their focus on ‘individual’ rights and a rocky capacity to ensure the rights of all are protected, the right avenue? Former United Kingdom Prime Minister Winston Churchill is attributed as saying that ‘…democracy is the worst form of government – except for all the others that have been tried…’104 Some scholars also agree with him, but others expand on this cynical thought, suggesting that there are far worse forms of government and that Democracy is the lesser alternative.105

This is because liberalism is, in its purest sense, the protection of ‘individual rights’ to property, life, liberty and overall happiness there remains a need for mechanisms to protect

98 Plattner (n 69) 121.

99 Ibid 121.

100 Ibid 122.

101 Ibid 121.

102 Fareer Zakaria, ‘The Rise of Illiberal Democracy’ (1997) 76(6) Foreign Affairs 22.

103 Ibid.

104 United Kingdom, Parliamentary Debate, House of Commons, November 11 1947, vol 444, col 207 (Winston Churchill).

105 Peter Millett, ‘The Worst Form of Government’ Foreign Commonwealth & Development Office (Blog Post, 5 March 2014) <https://blogs.fcdo.gov.uk/petermillett/2014/03/05/the-worst-form-of-government/>.

them.106 A government and its institutions are some such mechanisms, but in their protection of these rights, they may also infringe upon them.107 Yet the principles of liberalism do not suggest that this government necessarily needs to be elected by the people democratically. Especially with scholars arguing that liberal democracy, particularly in Western societies, perpetuates ‘amensalistic’108 oppression with its competitive individual and hierarchical nature.109 Perhaps it is worth investigating if other forms of governmental structure can balance the principles of liberty more effectively. Rawls theorises the concept of political liberalism in an attempt to legitimise the use of power in a democracy.110 He does so, as scholars suggest, intending to demonstrate that unity is achievable despite any diversity, with his theory imagining a societal structure that is peaceful and tolerant.111

VIIICONCLUSION

The foundation of Rawls’ theory is his belief that equality and justice for everyone within society stem from decision-makers beginning their considerations from ‘the original position’. In passionately pursuing equal liberties, they would afford themselves and those around them as much liberty as possible. In addition, they are ensuring that if any inequalities do exist, they will be advantageous to the least of those within society, seeking the ‘maximin’ benefit for society. This culminates in Rawls’ concept of ‘justice as fairness’, with society acting from the principles of justice working for the equal benefit of all despite inequalities. It is here that the theory could go further than Rawls originally discerned and seek future justice. This could establish, maintain, and protect justice, equality, and fairness for the future society. Despite several scholars challenging aspects of the theory, Rawls’ theory of justice is still regarded highly within political theorists' circles. Yet further criticism of the foundational elements of Rawls’ theory in liberalism and its connection to liberal democracy warrants deeper consideration. However, Rawls’ understanding of ‘maximin’ still offers society a way to protect liberties beyond other historical theories. Rawls’ theory of justice is a

106 Plattner (n 94) 122.

107 Ibid 122.

108 Amensalism is the scientific term where ‘one species adversely affects another species while they remain unaffected.’ Collins Dictionary (online at 3 June 2024) ‘Amensalism’ (def 1).

109 Tumelo Marema, ‘A Critique of Conqueror South Africa, Post-1994 Liberal Democracy and Liberal Democratic Law’ (2024) Phronimon - University of Pretoria, South Africa.

110 Sampurnaa Dutta, ‘Rawls’ Theory of Justice: An Analysis’ (2017) 22(4) ISOR Journal of Humanities and Social Science, 40.

111 Ibid.

starting point in striving for justice for future generations. It provides a way to engrain the principles that protect the interests and rights of those who are yet to come within the political and societal structures that govern the world.

SHOULD QUEENSLAND RE-INTRODUCE AN UPPER

HOUSE? LEGISLATIVE COUNCIL ISSUES, ABOLITION, UNICAMERAL AND BICAMERAL MODELS EXPLORED.

MATTHEW ACHESON*

ABSTRACT: Queensland remains the only state in the Commonwealth of Australia with a unicameral system (only one Chamber or House in the State’s Parliament). This article attempts to introduce and explain the historical events, processes and reasons for the abolition of the Queensland Legislative Council early in the 20th century (as part of the federation of Australian states). The article will also outline subsequent Queensland events and relate these to a discussion around some of the pros and cons of a return to a bicameral system compared to maintaining the status quo.

IINTRODUCTION

The application of an updated version of a democratically elected Council to the legislature should occur with a balanced modern constitution containing restraint mechanisms to curtail parliamentary dysfunction or impropriety, and one that performs a legislative function for the evaluated current and developing needs of the people of Queensland. The abolition of the previous incarnation occurred on 23 March 1922 by Royal Proclamation of enacted legislation passed in only three days on 3 November 1921.1 Revisitation would require processes, including constitutional convention,2 and public education to inform a politically

* This paper was originally submitted as an assessment for the subject LAW5115 Advanced Legal History.

1 ‘Constitution Act Amendment Act’, Documenting a Democracy (Web Page, 27 April 2023) <https://www. foundingdocs.gov.au/item-did-63.html>; ‘History of the Legislative Council’, Overview-Queensland Parliament (Web Page, 27 April 2023) <https://www.parliament.qld.gov.au/Visit-and-learn/History/Overview# :~:text=In%20May%201917%2C%20an%20attempt%20was%20made%20to,bill%20was%20introduced%20to %20abolish%20the%20Legislative%20Council>; Constitution Act Amendments Act 1922 (Qld) ss 2(1)-(3); Justin Harding, ‘Ideology or Expediency: The Abolition of the Queensland Legislative Council 1915-22’ (2000) 79 Labour History 162, 173; Constitution Act Amendment Act 1922 (Qld) 12 Geo V 32.

2 See, eg, Edward Watt, ‘Secession in Western Australia’ (1958) 3 University Studies in Western Australian History 43. See also Paul Kildea, ‘The Law and History of State and Territory Referendums’ (2022) 44(1) Sydney Law Review 31,32-3. See also Constitution of Queensland 2001 (Qld); ‘The Queensland Constitution’, Queensland Parliament (Web Page, 27 April 2023) < https://www.parliament.qld.gov.au/Visit-and-learn/AboutUs/The-Queensland-Constitution>.

sceptical and cynical Queensland electorate about the benefits of such a change. A successful referendum with subsequent constitutional modification would also be required.3 The antecedent causes of abolition will be outlined, consideration given to the historical reasons in effect at the time this occurred, and the grounds for opposition that existed over a century ago. As bicameralism may be considered a vexed concept or a retrograde step, clear reasoning for a return to bicameralism must be weighed against the continuance of what may be considered a functional unicameral Legislative Assembly.4 Any bicameral proposal would require appraisal and development; there needs to be Queensland specific refinement and proposal from the key determinants for a bicameral system that objectively indicates an intrinsic value for the re-introduction of an upper house in Queensland.

IIHISTORICAL ISSUES IN THE QUEENSLAND UPPER HOUSE

The Queensland Legislative Council (‘QLC’) appointments and terms were important determinants in the ways the QLC functioned, and an initial reason that abolition was considered. From original proposals for a new separately governed colony in Queensland from around 185` through to time as Governor of New South Wales, Sir William Denison had previously stated opposition to the rapid separation of states from the colony of New South Wales (‘NSW),5 but later appointed 11 members to the inaugural QLC for five-year terms, and opened the QLC in 1860.6 Subsequent appointments were for life,7 with the uniquely conceived inception of the QLC within a Westminster-style democracy

3 See generally Constitution Act 1867 (Qld); Constitution Act Amendment Act 1922 (Qld); Constitution Act Amendment Act 1934 (Qld); Constitution of Queensland 2001 (Qld); Constitution (Fixed Term Parliament) Referendum Act 2015 (Qld).

4 See, eg, ‘Queensland Versus Democracy’, UNSW Sydney Newsroom (Web Page, 28 April 2023) <https://newsroom.unsw.edu.au/news/law/queensland-versus-democracy>; Nicholas Aroney, ‘Four Reasons for an Upper House: Representative Democracy, Public Deliberation, Legislative Outputs and Executive Accountability’ (2008) 29(2) Adelaide Law Review 205, 232-3.

5 ‘Denison, Sir William Thomas (1804-1871)’, Australian Dictionary of Biography (Web Page, 27 April 2023) <https://adb.anu.edu.au/biography/denison-sir-william-thomas-3394>; ‘A list of the Governors of New South Wales’, Parliament of New South Wales (Web Page, 27 April 2023) <https://www.parliament.nsw.gov.au/ about/Pages/A-List-of-Governors-of-New-South-Wales.aspx>; William Coote, History of the Colony of Queensland from 1770 to the Close of 1881 (William Thorne, 1882) vol 1, 172.

6 Paul D Williams, ‘Queensland’s Quandry: To Re-introduce a Legislative Council?’ (2022) 29(1) Queensland Review 36, 41; ‘Factsheet 3.1 – Queensland Electoral and Parliamentary History’, Queensland Parliament (Web Page 28 April 2023) <https://www.parliament.qld.gov.au/Visit-and-learn/Education/Resources/3-Parliament>.

7 Kay Saunders and Lynne Armstrong, ‘The Beginning of the End: The Failure to Reform the Queensland Legislative Council, 1859–1912’ (2022) 25(3) Queensland History Journal 225, 226, 230.

incorporating philosophies such as the element of ‘Chartism’.8 Historian, Mr William Coote, criticised Governor Denison’s foundation role in his landmark historical text from the period as:

…impossible to acquit Sir William Denison of the charges of unfairness and inconsistency brought against him when this distribution of electoral power was published. That it was purposely designed to give the then pastoral interest an overwhelming preponderance in the legislature, and thus strengthen the hold which their connection with the banks and agency houses of New South Wales gave that colony upon Queensland, was freely asserted, and there were few who doubted the fact.9

Sir George Bowen,10 as the inaugural Queensland Governor,11 favoured democratically elected representation. He was, however, responsible for the selective appointment of the interim executive, and added four QLC members in May 1860.12 Lifelong member tenures came from a homogenous cohort of wealthy male settlers, often pastoralists, and these appointees had ‘exclusive class associations’, and a ‘serious absentee rate’ from QLC duties.13 This would not have satisfied expectations for the Queensland democracy and may have fuelled derision towards the QLC.

The progressive nature and the opportunity to form a new democratic state were not delivering an ideally functioning legislature for Queensland. In addition to the tenure and operation of the QLC, issues such as narrow-minded nepotism, within a framework of ‘nomineeism’,14 prevailed in Queensland politics during the Nineteenth century. This was despite the aspirational intent at the conception stage of Queensland’s statehood, with the state formed from Acts together with ‘Letters Patent’ and ‘Order-in-Council’ provisions, that

8 Lynne Armstrong and Kay Saunders, ‘Colonial Cavaliers and Roundheads: The Establishment of the Queensland Legislative Council’ (2022) 25(3) Queensland History Journal 189, 189-90, 200-4; ‘Chartism’, British Library (Web Page, 27 April 2023) <https://www.bl.uk/romantics-and-victorians/articles/chartism>.

9 Coote (n 5) 227.

10 ‘Bowen, Sir George Ferguson (1821-1899)’, Australian Dictionary of Biography (Web Page, 27 April 2023) <https://adb.anu.edu.au/biography/bowen-sir-george-ferguson-3032>; Coote (n 5) 228.

11 ‘Queensland Governors’, Queensland Government (Web Page, 27 April 2023) <https://www.qld.gov.au/ about/about-queensland/history/governors>.

12 Armstrong and Saunders (n 8) 230; Coote (n 5) ch 10; Williams (n 6) 41.

13 Armstrong and Saunders (n 8) 204.

14 Oxford English Dictionary (online at 17 August 2024) ‘nomineeism’.

allowed the Queensland colony to undergo separation with a foundation constitution.15 Ideological and political debate existed, including surrounding bicameralism, and strong nationalism perspectives were being espoused by a prominent protagonist, Reverend Dr John Lang.16 The QLC did not evolve from its inception as a bastion of conservative viewpoints,17 despite electing Premier Anderson Dawson as a progressive first Labour government (1899),18 and this traditionalism was reflected in political debates. Premier Dawson’s government lasted only one week (1 December 1899 – 7 December 1899),19 but was historically significant as the world’s first Labour movement government.20 This electoral governing instability may have been indicative of the tumultuous political disharmony that would plague the Queensland legislature for the next 20 years.

IIITHE STEPS TOWARDS AN EVENTUAL ABOLITION

In the belief that the QLC had undermined democratic mandates, successive Queensland governments acted in a unicentric manner by seeking constitutional change to abolish the QLC.

Premier Ryan’s proposed initial eradication efforts were stalled by the failure to pass legislation introduced for the abolition of the QLC, and the rejection deadlock led to a referendum (5 May 1917).21 The referendum coincided with the federal election,22 won by

15 Australian Constitutions Act 1842 (Imp) 5 & 6 Vic c 76; Australian Constitutions Act 1850 (Imp) 13 & 14 Vic c 59; New South Wales Constitution Act 1855 (Imp) 18 & 19 Vic c 54; ‘Letters Patent erecting Colony of Queensland 6 June 1859 (UK)’, Documenting Democracy (Web Page, 28 April 2023) <https://www.foundingdocs.gov.au/item-did-60.html>; ‘Order-In-Council Establishing Representative Government in Queensland 6 June 1859 (UK)’, Documenting Democracy https://www.founding docs.gov.au/item-did-61.html>.

16 Armstrong and Saunders (n 8) 192, 199, 201.

17 Ibid 189.

18 Saunders and Armstrong (n 7) 233, 235.

19 Ibid 233.

20 Ibid.

21 Gerard Carney ‘Labor’s Aspiration Realised: Abolition of the Legislative Council of Queensland, 1915 to 1922’ (2022) 25(3) Queensland History Journal 242, 245; Harding (n 1) 164. The long title: “Bill to Amend the Constitution of Queensland by Abolishing the Legislative Council” 1915 (Qld), introduced 12 November 1915 and 14 September 1916; ‘Factsheet 6.2 – Referendums’, Queensland Parliament: Elections and Referendums (Web Page, 27 April 2023) <https://www.parliament.qld.gov.au/Visit-and-learn/Education/Resources/6Elections-and-Referendums>.

22 Harding (n 1) 166; ‘Election Dates 1901 – Present’, Australian Electoral Commission (Web Page, 28 April 2023) <https://www.aec.gov.au/Elections/federal_elections/election-dates.htm>.

Prime Minister William (‘Billy’) Hughes for the Nationalist Party,23 and the outcome of the Queensland referendum resulted in around 60% of Queenslanders voting down the proposal.24 The mandate of the people against abolition appeared to be as clear and evident as the question posed: “I vote for/against A Bill to Amend the Constitution of Queensland by Abolishing the Legislative Council”.25 Failure at the referendum did not end Council obstruction, or abate the drive of Premier Ryan,26 and later Premier Theodore,27 for devolution. No reforms or amendments were made to the QLC, with efforts concentrated on lobbying for Governor appointments for members who would support a future abolition vote.28

Apart from legislative attempts and the referendum, there had been other reactionary judicial steps taken towards dissolution, such as legal cases for a determination that provisions available held validity for utilisation in a parliamentary abolition process. The legal actions that supported the plan for abolition included the High Court ruling in Taylor and Others v Attorney-General of Queensland and Others (1917).29 The Taylor case judgment was important as it upheld the notion that an Act of Parliament in Queensland could be utilised to remove the QLC.30 Specific powers existed under section 5 of the Colonial Laws Validity Act 1865 (Imp),31 and further powers existed under the Constitution Act 1867 (Qld),32 with the effect of the latter described by Justice Barton as:

23 ‘William Hughes: Elections’, National Archives of Australia (Web page, 28 April 2023) <https://www. naa.gov.au/explore-collection/australias-prime-ministers/william-hughes/elections>; ‘Federal Election Results 1901-2016’, Parliament of Australia (Web Page, 28 April 2023) <https://www.aph.gov.au/About_Parliament/ Parliamentary_Departments/Parliamentary_Library/pubs/rp/rp1617/FederalElectionResults#_Toc390336853>.

24 Nicholas Aroney and William Isdale, ‘Bicameralism: An Antipodean Perspective’, Verfassungsblog (Blog Post, 28 October 2014) < https://verfassungsblog.de/bicameralism-antipodean-perspective-2/>; Kildea (n 2) 33; ‘Referendums’, Electoral Commission Queensland (Web Page, 28 April 2023) <https://www.ecq.qld.gov.au /elections/election-events>; Anonymous, ‘Queensland Referendum’ Sydney Morning Herald (Sydney, 29 May 1917) 8.

25 ‘Factsheet 6.2 – Referendums’ (n 21).

26 Williams (n 6) 42; Harding (n 1) 162-8; ‘Queensland Premiers’, Queensland Government (Web Page, 28 April 2023) <https://www.qld.gov.au/about/about-queensland/history/premiers>; Colin A Hughes and B D Graham, ‘Queensland’ in A Handbook of Government and Politics 1890-1964 (Australian National University Press, 1968) 165, 177.

27 Harding (n 1) 162-3, 168-76; ‘Queensland Premiers’ (n 26); Hughes and Graham (n 26) 178.

28 Carney (n 21) 250-2; Williams (n 6) 43; Harding (n 1) 174-5.

29 Taylor and Others v Attorney-General of Queensland and Others (1917) 23 CLR 457 (‘Taylor case’).

30 Carney (n 21) 246, 249; R D Lumb, ‘The New South Wales Legislative Council Abolition Case’ (1961) 4(1) University of Queensland Law Journal 23, 32, 37-8; Harding (n 1) 164.

31 Colonial Laws Validity Act 1865 (Imp) 28 & 29 Vic, c 63.

32 Constitution Act 1867 (Qld).

provided for all laws passed under it to be enacted ‘by Her Majesty by and with the advice and consent of the Legislative Council and Legislative Assembly in Parliament assembled,’ and that the Constitution did not recognise the making of laws by any other authority.33

Following the Taylor case, the pathway to removal of the QLC was clear; the Taylor case was followed by another constitutional law dispute in McAwley v The King (1918),34 a case related to judicial appointments in Queensland. The McCawley case was dismissed on appeal by a split decision in the High Court, but granted further appeal to the Privy Council, under jurisdictional appellate rights. That application was upheld in the judgment of five Lordships led by Lord Birkinhead L.C. two years later.35 The initial rejection of the appointment and the legal cases were indicative of politics in Queensland, “motivated by underlying ideological, partisan, and even personal factors” according to Professor Aroney.36

IVOPPOSITION AGAINST ABOLITION

The opposition rallied against the abolition of the QLC, but the conservative chamber had become so unpopular by obstruction, that the doomed fate of the QLC may have been sealed by such actions. For example, Around 800 Bills had been rejected or altered significantly in the first Ryan term of government (1915-1918).37 When the first proposed Constitution Act Amendment Bill 1915 (Qld) was debated,38 the Nationals leader Mr Tolmie, and “the influential Andrew Thynne providing his list of 22 reasons for retaining the Council”,39 contributed to four days of opposition speeches against abolition.40 Those against the unicameral push were not confined to the members of the public in a referendum, but included the conservative appointed members of the QLC, and the opposition conservative

33 Taylor case (n 28) 469; Nicholas Aroney, ‘Politics, Law and the Constitution in McAwley’s Case’ (2007) 30(3) Melbourne University Law Review 605, 629; See also Sir Pope Cooper, Chief Justice of the Supreme Court of Queensland v Commissioner of Income Tax for the State of Queensland (1907) 4 CLR 1304 (‘Cooper v Commissioner of Income Tax (Q)’)

34 McAwley v The King (1918) 26 CLR 9 (‘McAwley case’)

35 Ibid; McCawley v The King (1920) 28 CLR 106, 121; Aroney (n 33) 605; See also Industrial Arbitration Act 1916 (Qld) s 6(6).

36 Aroney (n 33) 650.

37 Harding (n 1) 164; Williams (n 6) 42.

38 Harding (n 1) 165.

39 Ibid 164-5; Carney (n 21) 245.

40 Carney (n 21) 245.

parties, including the National Party, the new Northern Country Party, and the re-formed Country Party.41 From the conservative ranks, there were parliamentary protestations and petitions made in an effort to stop the unicameral push, with a late change to support for abolition from the Country Party.42 Petitions were initially made to the Colonial Office, then later to London, and the opposition members sat in silent protest some years later at the passing of the Constitution Act Amendment Act 1934 (Qld) which entrenched provisions that removed any future potential return of the QLC by new legislation.43 Having rejected two war-related Bills,44 then a tax Bill,45 further QLC obstruction to industrial relations had led to the determination that the Constitution of Queensland did not contain entrenched provisions that prevented abolition by parliament. Ultimately, this was used to achieve abolition of the QLC by enacting the Constitution Act Amendment Act 1922 (Qld).46

The opposition to a unicameral push may have appeared to be self-serving by conservative pastoralists defending an ineffectual bicameral Queensland parliament. However, the architects designed the original Queensland parliament as bicameral having considered unicameralism,47 and notably a successful bicameral parliament has endured in NSW despite a similar unicameral movement. At the time of the conceptual foundation for the Queensland state, the possibility of an elected upper house was raised, and “urban Liberals never wavered from their commitment to an elected Legislative Council”.48 This included observation of four other Australian bicameral states’ origins.49 One of these, South Australia, has undergone a 21st-century review for potential reforms related to the size, term lengths, and conduct including “Deadlock Provisions”.50 Premier John Lang led a significant unicameral

41 Carney (n 21) 247; Harding (n 1) 173; ‘Election of 9 October 1920’, Australian Politics and Elections Archive 1856-2018 (Web Page, 28 April 2023) <https://elections.uwa.edu.au/elecdetail.lasso?keyvalue=778>; See generally Hughes and Graham (n 26) 165-195.

42 Carney (n 21) 253-5; Harding (n 1) 173.

43 Williams (n 6) 43.

44 Carney (n 21) 247; Harding (n 1) 164.

45 Carney (n 21) 247.

46 Constitution Act Amendment Act 1922 (Qld).

47 See generally Saunders and Armstrong (n 7).

48 Armstrong and Saunders (n 8) 202.

49 Armstrong and Saunders (n 8) 201-2. Note the upper houses observed from Australian colonies becoming states were NSW, Victoria, Tasmania, and South Australia; See also Aroney (n 4) 207-8; Bruce Stone, ‘Bicameralism and Democracy: The Transformation of Australian State Upper Houses’ (2002) 37(2) Australian Journal of Political Science 267.

50 Jordan Bastoni, ‘The South Australian Legislative Council: Possibilities for Reform’ (2012) 47(2) Australian Journal of Political Science 227, 229-34, 237.

movement in NSW,51 and he was considered a master of political persuasion and demagoguery.52 Premier Lang’s push for the abolition of the NSW Legislative Council,53 which had followed a similar path to Queensland, used legislation and several constitutional legal cases, including under Premier Heffron.54 The determination in Clayton and Others V Heffron and Others (1960) considered the case of Attorney-General for New South Wales v Trethowan (1931), and made the finding that abolition required specific amended constitutional provisions, under sections 7A and 7B from 1929 and 1959 respectively, be amended only by referendum.55 As a result of the manner required for these types of constitutional provisions, the NSW was considered to have entrenched constitutional bicameral protections.56

VOTHER UNICAMERAL PARLIAMENTS

Since the origins of British colonial governments under Westminster system constitutions, those with upper houses based on nominated positions like the historical Queensland Governor appointments, have undergone reforms or abolition.57 Unicameral legislatures were formed by upper house abolition in New Zealand (1950),58 and Canadian Territory governments, although the Canadian appointed federal Senate remains.59 Following decades of dissatisfaction with the unicameral system in New Zealand,60 the electoral system was reviewed by a Royal Commission (1985), which was reported in December the following year.61 This led to significant electoral voting reforms with a proportional voting model,62 and

51 ‘Premiers of NSW’, NSW Government (Web Page, 28 April 2023) <https://www.nsw.gov.au/aboutnsw/premiers-of-nsw>.

52 See Bede Nairn, The Big Fella: Jack Lang and the Australian Labor Party, 1891-1949 (online eBook, Ligature, 2021). The Honourable John Lang was also referred to as ‘JT Lang’, ‘Jack’ and ‘The Big Fella’.

53 Lumb (n 30) 24.

54 ‘Premiers of NSW’ (n 51).

55 Attorney-General of New South Wales v Trethowan (1931) 44 CLR 394 (‘Trethowan case’); Clayton and Others V Heffron and Others (1960) 105 CLR 214 (‘Clayton v Heffron’); Lumb (n 30) 23-4, 28-30, 32, 34, 40.

56 Lumb (n 30) 32, 38-40.

57 Robin Archer, ‘From an Aristocratic Anachronism to a Democratic Dilemma: An Elected House of Lords and the Lessons from Australia’ (2013) 51(3) Commonwealth and Comparative Politics 267, 269.

58 Ibid.

59 Ibid; See also Meg Russell and Mark Sandford, ‘Why are Second Chambers so Difficult to Reform’ (2002) 8(3) Journal of Legislative Studies 79, 79-85.

60 Aroney and Isdale (n 24).

61 New Zealand Parliament-Pāremata Aotearoa, Report of the Royal Commission on the Electoral System (Report, December 1987) <https://gg.govt.nz/sites/default/files/2021-06/RC%20139%20Electoral %20System.pdf>.

a specialised or select committee system.63 This reformative ‘Justice and Electoral’ Committee,64 now reduced to only ‘Justice Committee’, with the Minister responsible for electoral matters,65 has not returned to a bicameral system, with future reforms to be considered from a 2022 review.66

To validate the removal of the QLC based on historical reasoning, then claim this represents the success of a unicameral parliament, ignores the functional, partisan, and individual factors that were predominant a century ago. NSW did not convert to unicameralism, all other states of Australia have remained bicameral, and there remain few relevant Westminster unicameral parliaments. Only the New Zealand parliament, and the Canadian territory legislatures mentioned are unicameral; other sizeable Western democratic examples include Sweden, Denmark, Finland, and Israel.67

A single democratic unicameral parliament exists within the United States of America (‘USA’); Nebraska became unicameral in 1934,68 and there were failed attempts at unicameral reforms in Ohio (1935-9) and Missouri (1935-1944).69 These two states and the remaining similar colonial federated states remain bicameral.70 In the United Kingdom, parliamentary reform remains difficult, and proponents tend to consider the composition, tenure, powers, governance, and codifying conventions, within the current bicameral

62 Aroney (n 4) 206, 233-4; Elizabeth McLeay, ‘Parliamentary Committees in New Zealand: A House Reforming itself’ [2001] (Spring) Australasian Parliamentary Review, 16(2) 121, 121–3,9; Archer (n 57) 269.

63 Mcleay (n 62) 126-9; ‘List of Select Committees’, New Zealand Parliament-Pāremata Aotearoa (Web Page, 28 April 2023) <https://www.parliament.nz/en/pb/sc/scl/>.

64 McLeay (62) 126-7.

65 ‘Justice’, New Zealand Parliament-Pāremata Aotearoa (Web Page, 28 April 2023) <https://www.parliament .nz/en/pb/sc/scl/justice>.

66 ‘The Independent Review is considering the future of Aotearoa New Zealand’s Electoral System’, He Arotake Pōtitanga Motuhake-Independent Electoral Review, (Web Page, 28 April 2023) <https://electoralreview .govt.nz/>.

67 Bognetti et al, ‘Constitutional Law: Executives and Legislatures’ Encyclopaedia Britannica (Web Page, 28 April 2023) <https://www.britannica.com/topic/constitutional-law/Executives-and-legislatures>; See also Louis Massicotte (2001) ‘Legislative Unicameralism: A Global Survey and a Few Case Studies’, 7(1) Journal of Legislative Studies, 151.

68 Adam S Myers, ‘The Failed Diffusion of the Unicameral Legislature, 1934-1944’ 32 (October) Studies in American Political Development 217, 217, 223-4.

69 Ibid 224-31.

70 Ibid 217-8; LexiNexis Halsbury’s Laws of Australia (online at 28 April 2023) 90 Constitutional Law ‘2 The Parliaments’ [90-610]; Stone, Bruce, ‘Bicameralism and Democracy: The Transformation of Australian State Upper Houses’ (2002) 37(2) Australian Journal of Political Science 267, 267.

system.71 Only through the significant reforms in New Zealand, both electorally (Mixed Member Proportional Voting) and functionally (through the select committee structures),72 has the unicameral model remained.

VIPARLIAMENTARY BICAMERAL REFORMS

The Westminster-based bicameral parliaments have evolved over time, and with reforms made, together with appropriate upper house powers balanced by restrictions, continue the rational viability of these models. The functional roles include representation of constituents and minorities not represented when a partisan party member is the sole representative, or when the majority of lower house representation is held by a single party or bloc.73 An elected upper house generally strengthens democratic representation, particularly when coupled with the balance of power to review and amend Bills, provide scrutiny of government,74 and not block or cause constitutional crises.75 As the makeup usually delivers more members not aligned to the governing party, a level of scrutiny and accountability can avoid a tendency towards autocratic behaviour in government.76 Involvement in policy developments and scrutiny of policy implementation represent further bicameral roles that reflect citizen’s views.77 In these regards, a functional upper house can deliver further oversight of the executive, monitor the separation of powers in these roles, and facilitate public dialogue, discourse, and deliberations.78 In growing populations with ever-changing political issues, the application of these functions and increased representation can contribute towards a more responsible and accountable government.

VIIUNICAMERAL SYSTEMS EXAMINED

71 Archer (n 57) 271, 277-8; Scott Prasser and Nicholas Aroney, ‘Real Constitutional Reform After Fitzgerald: Still Waiting for Godot’ (2009) 18(3) Griffith Law Review 596, 596-604, 616.

72 See generally McLeay (n 62).

73 Prasser and Aroney (n 71) 600, 602, 604-6, 616.

74 Ibid 602-3.

75 Archer (n 57) 269-70.

76 Ibid 276.

77 Ibid 269-70.

78 See generally Aroney (n 4); Archer (n 57); Bruce Stone, ‘Changing Roles, Changing Rules: Procedural Development and Difference in Australian State Upper Houses’ (2005) 40(1) Australian Journal of Political Science 33.

The unicameral model provides for a more efficient form of government, however, the absence of these upper house roles, the risks associated with a dominant party government, and misfeasance in public office have seen problems occur in Queensland governments.79 The most significant example would be the government under Premier Bjelke-Petersen,80 considered the most powerful and autocratic government in the modern history of Australian state legislatures.81 Beyond just direct power of government business in office, executive power, the separation of powers, and significant corruption existed and were later determined.82 The findings from the Fitzgerald Inquiry (into ‘possible illegal activities as associated police misconduct’) were extensive and expansive, and the recommended reformative and preventative measures have not prevented the ongoing risks of electoral dominance,83 the abuse of power and position by government members, or corruption. A subsequent example of corruption in the Premier Beattie government,84 is the distinct absence of convention, changes in representation such as those delivered by proportional voting systems,85 or a true select committee system with oversight, governance, and accountability.86 Any impact of the Electoral and Administrative Reform Commission (‘EARC’) has been limited,87 and the current trajectory in governing continues without any measures that define roles, stipulate governance, outline conventions to be followed, or monitor and entrench the separation of powers from the executive government.

Proponents of unicameralism might suggest this has delivered stable and efficient government for the state of Queensland; however, the population has grown significantly over the century. Westminster democracy origins were based on two houses of government, and comparative democracies tend to have unicameral parliaments reserved for territorial governments such as the Northern Territory, the Australian Capital Territory, and in Canadian Territories. Functions of government have not led to ongoing unicameral movements, and there have been no further constitutional crises, or highlighted obstruction to

79 Prasser and Aroney (n 71) 596-603,608, 612-7.

80 See generally Williams (n 6); Prasser and Aroney (n 71); ‘Queensland Premiers’ (n 26).

81 Williams (n 6) 38-9; Aroney (n 4) 223-3, 229.

82 Williams (n 6) 40.

83 Prasser and Aroney (n 71) 599.

84 Ibid 597.

85 Aroney and Isdale (n 24); Williams (n 6) 37, 43-4; Russell and Sandford (n 59) 86.

86 Aroney (n 4) 233; Archer (n 57) 267, 278.

87 Prasser and Aroney (n 71) 605, 607, 611-2.

emergency Bills or money Bills in the bicameral states of Australia. Within comparable democratic systems, unicameral governments tend to be in smaller populations,88 and other common unicameral parliaments are more autocratic,89 statistically less stable,90 or less related to Westminster system origins. The arguments against the QLC surrounding elitism, issues of nomination, obstruction, and a lack of role definition or governance should be resolved through reformative evolution rather than abolition. The emergence of several farright parties in the state of Queensland has not been based on widely held views of the citizenry but rather reflects the unique Queensland political system in operation.91 The majority of claims about bicameralism related to democracy functioning efficiently with stability could be addressed or prevented, and many of the issues raised also apply significantly to unicameral legislature.

VIIICONCLUSION

The historical reasons for the abolition of the QLC were partisan, individual, and political issues that should have been resolved, ameliorated, or prevented. The re-introduction of an upper house with a different model, appropriate power restraints or legislative power restrictions means a bicameral parliament remains a valid concept today. Viewed as an outdated anathema, without a clearly defined role or governance, the nominated (unelected) members of the QLC were permanently removed rather than continue to work with the QLC or consider changes that have transpired in other bicameral jurisdictions.92 A version of any political differences, representation issues, party based power issues, roles and governance conventions remain issues for the unicameral parliament in any case. From the time of conception of the QLC by architects including Governors Denison and Bowen, there was a model of bicameralism inducted that was later not accepted and abolished. Other political and economic issues currently prevail in Queensland and constitutional reforms are difficult to consider. The rationale and basis for a bicameral system remain valid and sound. Pragmatically, the current unicameral paradigm will remain for some time yet, but the QLC reworked could be revisited to meet the needs of Queensland’s growing population.

88 Massicotte (n 67) 154.

89 Williams (n 6) 44.

90 Massicotte (n 67) 152.

91 Williams (n 6) 37.

92 Aroney and Isdale (n 24).

Aspirational electoral reforms may not ever deliver “this ‘perfect bicameralism’”,93 yet Queensland should still consider, and could potentially achieve, “Lijphart’s classic definition of ‘strong’ (that is, effective) bicameralism”,94 that would provide a functional bicameral democracy in all Australian States’ houses of parliament once more.

93 Russell and Sandford (n 59) 80. Attributed to Professor Gianfranco Pasquino regarding co-equal powers in two chambers in relation to the bicameral model in Italy.

94 Ibid 82. Attributed to Dr Arend Lijphart from: A Lijphart, Democracies: Patterns of Majoritarian and Consensus Government in Twenty-one Countries (Yale University Press, 1984).

LEGAL FORMALISM AND EMPIRICAL LEGAL RESEARCH

CATHRYN SANDERS*

ABSTRACT: This paper describes the philosophy of legal formalism and the empirical legal research methodology. It includes a discussion of the strengths and weaknesses of each. Possible applications of each method are then considered in the context of the proposed research topic Mandatory Incarceration of Minors in Australia: Are we meeting our International Human Rights Obligations?

IINTRODUCTION

A dichotomy of philosophies dominates the academic discipline of law,1 with many research methodologies used to conduct research in and about law.2 Legal research requires consideration of the underlying philosophy and its assumptions; the topic to be researched; the purpose of conducting the research; the nature, breadth and depth of data to be collected and analysed; and the purpose and intended future use of the findings. Together these should inform methodological selection and application.3

This paper discusses the philosophy of legal formalism and then the empirical legal research methodology before outlining its possible applications to a specific research topic.

II LEGAL FORMALISM

Legal formalism describes the logical and objective application of rules and laws to a set of facts to reach a determination consistent with the principles of judicial autonomy and corrective justice.4 It is idealistically advocated by Preuß citing Landell as ‘judicial

* This paper was originally submitted as an assessment for the subject LAW8001 Legal Research Methodology

1 Hanoch Dagan, ‘Law as an Academic Discipline’ (Working Paper 171, Tel Aviv University Law School, 2012) 3-4 (‘Dagan’).

2 Chris Dent, ‘A Law Student-Oriented Taxonomy for Research in Law’ (2017) 48(2) Victoria University of Wellington Law Review 371, 376-385 (‘Dent’); Philip Langbroek et al 'Methodology of Legal Research: Challenges and Opportunities' (2017) 13(3) Utrecht Law Review 1, 4 (‘Langbroek’); Dawn Watkins and Mandy Burton Research Methods in Law (Taylor and Francis Group, 2013) 1 (‘Watkins’).

3 Dent (n 2) 373; Langbroek (n 2) 4-5; Watkins (n 2) 3-4.

4 Dagan (n 1) 88-89.

interpretation … committed to logical classification, deductivism and “bloodless abstraction” … fostering an individualist understanding of economy and society … “apathetic towards issues of social policy”’.5 Legal formalism purports the legal system to be autonomous, logically closed and self-justifying while applying deductive reasoning to determine outcomes that are internally predictable and consistent without consideration of the impact of a verdict on an individual.6

Legal formalism employs the doctrinal legal research methodology which is at the heart of legal practice and is fundamental to the interpretation of common law.7 In legal research the doctrinal research methodology dominates, seeking to apply logic to uncover the doctrine in a field of law from all its sources.8

Doctrinal research is usually a two-step process beginning with the location of the sources of law, and then proceeding with interpretation and analysis.9 Methods used to locate, interpret, and analyze the law in doctrinal research are rarely discussed but are implicitly and artfully applied by lawyers.10 The findings can be used to articulate a particular point of law, or when combined with other research methodologies, for comparison or advocacy purposes.11

A Strengths of Legal Formalism

A key strength of legal formalism is that the law is perceived as a finite body of written sources that can be collated and analyzed by applying doctrinal research methods that determine a consistent and predictable outcome and present a cohesive articulation of the point of the law in question. This methodology, even without articulation, is well understood

5 Karlson Preuß ‘“Legal Formalism” and Western Legal Thought (2023) 14(1) Jurisprudence 22, 41-42 (‘Preuß’).

6 Ibid 43; Dagan (n 1) 3-4.

7 Terry Hutchinson and Nigel Duncan, ‘Defining and Describing What We Do: Doctrinal Legal Research’ (2012) 17(1) Deakin Law Review 83, 84 (‘Hutchinson’).

8 Ibid; Dagan (n 1) 3.

9 Hutchinson (n 7) 110.

10 Ibid 100.

11 Hutchinson (n 7) 103-104; Giacomo Negro and Wesley Longhofer ‘World Society, Legal Formalism, and Execution of Legal Procedures’ (2018) 97(2) Social Forces 649, 668-670 (‘Negro’).

and respected by practicing lawyers, as it is the method they apply to facts that clients bring to them.12

The resulting overt statements of the law can then be analyzed and scrutinized by applying other research methodologies that seek to compare, evaluate, or recommend changes to the law. When combined with socio-legal research methods, legal formalism grounds research.13

B Weaknesses of Legal Formalism

Traditionally, when legal formalism research has been reported it has not included a detailed methodological description. This omission is frowned upon in the modern interdisciplinary landscape and has severe implications for funding and publication to an audience broader than purely legal professionals. Conversely, if legal formalism research includes a detailed methodological description it is viewed as out of step by legal professionals.14

Legal formalism has also been criticized for merely producing a summary of the law in a particular area of law, without significant analysis. As true research also requires analysis, evaluation and critique, it has been argued that legal formalism does not result in research output unless it is combined with other research methods, thus may be little more than a review of the literature.15

IIIEMPIRICAL LEGAL RESEARCH

‘Empirical legal research (ELR) covers all major fields of law … however, [it] is not primarily or only interested in laws … but in law(s) in action’.16 ELR methodology involves systematic data collection, collation and analysis employing the scientific method.17 To begin, specify the research questions and goals. Consider developing them into a

12 Hutchinson (n 7) 84;

13 Ibid 103-104; Negro (n 11) 668-670; Watson (n 2) 55; Langbroek (n 2) 6-7.

14 Hutchinson (n 7) 85.

15 Ibid 105.

16 Frans Leeuw, Empirical Legal Research: A Guidance Book for Lawyers, Legislators and Regulators (Edward Elgar Publishing Limited, 2016) 2 (‘Leeuw’).

17 Watkins (n 2) 55; Mike McConville and Wing Hong Chui ‘Introduction and Overview’ in Mike McConville et al (ed), Research Methods for Law (Edinburgh University Press, 2007) 1, 5 (‘McConville’).

hypothesis.18 Next, identify the population, or a valid and reliable sample, to study.19 ELR may include the collection and analysis of quantitative numerical data, qualitative descriptive data or a mixture of both.20 Data collection needs to be valid, unbiased, and as substantial as feasible.21 Sources of data may be primary (surveys, interviews or observations), stored (administrative, stored on registers) or Big Data (generated by machines).22 Record details of methods used to collect data. Select and apply analytical methods appropriate to the data. Interpret and report findings.23

A Strengths of Empirical Legal Research

Quantitative analyses can answer questions about the extent of a phenomenon, identify trends and quantify relationships between variables, all of which can be used to formulate strong arguments.24 Large data sets may be analyzed digitally in a time-effective manner and statistically significant relationships may become evident.25

Qualitative research can uncover previously unidentified phenomena or produce rich interpretations and meanings.26

The ELR methodology may be applied in conjunction with other legal research methodologies to improve validity.27

B Weaknesses of Empirical Legal Research

Methods used to conduct empirical research in a legal context are imported from sociology with the implication that the resulting research is likely to be less respected by legal

18 Ian Dobinson and Francis Johns ‘Legal Research as Qualitative Research’ in Mike McConville et al (ed), Research Methods for Law (Edinburgh University Press, 2007) 18, 33 (‘Dobinson’); Watkins (n 2) 55.

19 Dobinson (n 18) 33.

20 Watkins (n 2) 55; McConville (n 17) 7; Langbroek (n 2) 6-7.

21 Dobinson (n 18) 33; Lee Epstein and Andrew Martin ‘Quantitative Approaches to Empirical Legal Research’ in Peter Cane and Herbert Kritzer (eds), The Oxford Handbook of Empirical Legal Research (Oxford University Press, 2010) 901, ch 37 (‘Epstein’).

22 Leeuw (n 16) 2 and 131; Watkins (n 2) 55; Epstein (n 21) 909.

23 Dobinson (n 18) 33.

24 Langbroek (n 2) 7-8; Wing Hong Chui ‘Quantitative Legal Research’ in Mike McConville et al (ed), Research Methods for Law (Edinburgh University Press, 2007) 48, ch 2 (‘Chui’).

25 Chui (n 24) 61; Epstein (n 21) ch 37.

26 Dobinson (n 18) 21.

27 Hutchinson (n 7) 103-104; Langbroek (n 2) 6.

professionals than doctrinal legal research. Further discouragement exists when considering ‘the amount of time one needs to invest to do [empirical] research is enormous compared to … writing traditional law review articles’.28

Ethics approval is required in many cases before data collection can be undertaken.29 Experience has taught this researcher that gaining ethical approval to research vulnerable groups is challenging and may require data collection to be restricted to stored publicly available sources.

IVRESEARCH TOPIC

The proposed research topic is Mandatory Incarceration of Minors in Australia: Are We Meeting Our International Human Rights Obligations?

A Applying Legal Formalism to this Research Topic

Applying legal formalism to this research topic will employ the doctrinal research method to determine the existing laws that are sending minors into detention. It will begin with a search of legal encyclopedias and loose-leaf commentary. The relevant Australian law will need to be located from within the constitution, legislation, regulations and caselaw, with consideration for jurisdictional differences. Treaties, conventions, reports, and commentaries will then require consideration as they will inform the researcher of our international obligations. Subsequently, conclusions may be drawn about the adequacy of Australian laws to meet international human rights obligations.

B Applying Empirical Legal Research to this Research Topic

ELR of minors in detention must only be conducted within the constraints approved by the appropriate ethics research committees. It is unlikely that an application would be approved to survey minors in immigration or corrective justice detention, so data collection is likely to be limited to stored publicly available information. Freedom of information provides access to stored raw figures which include the number and ages of minors in immigration and

28 Chui (n 24) 49 quotes J G Getman, ‘Contributions of Empirical Data to Legal Research’ (1985) 35 Journal of Legal Education 493.

29 Chui (n 24) ch 2.

corrective justice detention in Australia directly from the respective government departments. Transcripts of cases that have been heard in court are available directly from the courts or via Lexis Advance Research or Westlaw.

The quantitative data can be analyzed and evaluated to determine the numerical adequacy with which Australia is meeting its human rights obligations with respect to detaining minors. Qualitatively, recent cases involving minors sentenced to immigration or criminal justice detention may be scanned to identify data that may indicate other violations of human rights (such as torture or other claims made by detainees or their legal counsel during hearings) and to provide an anonymous voice directly from some incarcerated minors.

VCONCLUSION

Different research methodologies serve different purposes, from locating and articulating the law as it is written, to critiquing or comparing written law, and even analysing or evaluating the implications of laws on society.30 Legal formalism and ELR are complementary and thus may be ‘used simultaneously to examine a legal issue’.31 Giacomo Negro and Wesley Longhofer did this when they quantified and qualified the impact of legal evolution on the execution of legal proceedings in different jurisdictions.32

30 Watkins (n 2) 4-5.

31 McConville (n 17) 6.

32 Negro (n 11) 649.

THE INFLUENCE OF BRITISH POSITIVISM ON THE FLOW OF NATIVE TITLE RECOGNITION

ABHAY REISSENBERGER

ABSTRACT: The discourse regarding native title, the recognition process and whether it has been inhibited over the years by various legal theories continues to be relevant. Particularly where the need to develop and improve native title jurisprudence grows. Understanding and examining native title through the past, present and future lens as well as analysing the impact that positivist legal theorists have had in this area enables a greater depth to be seen in the instances of Mabo and the Yorta Yorta, who sought their connection to land be recognised.

IINTRODUCTION

The recognition of native title as a legal cause of action has experienced many obstacles, with competing political forces pushing it side to side like a ship in a storm. In recognising native title, Mabo set out legal tests for native title claimants to prove to obtain a successful determination. Yorta Yorta arguably made the test more stringent, requiring the native title group to prove a continuous connection to the land. This essay argues that the development of this test can be attributed to British positivism inspired reasoning, and has led to impediments to the flow of native title recognition. Within this essay, an analogy will be used comparing native title recognition through jurisprudence to the flow of a river (see Annexure 1). The essay is split into three parts comprising time periods: past, present, and future. Firstly, the intersection of positivist thinking and foundational native title decisions will be considered. Second, it will examine how the theory has been used in subsequent native title decisions. Finally, with native title recognition as the ultimate objective, new frameworks will be evaluated.

IIPAST (BEGINNING OF THE RIVER AND THE SEVERE INTERRUPTION)

A A broad summary of British positivism

 This paper relates to an assessment piece for LAW5224/2224 Theories of Law

As a canvassing statement, British positivism is well accepted in Australia and spreads its roots into native title jurisprudence. The principal works are that of Austin and Hart,1 although they date back to Hobbes and Bentham.2 Broadly, the objective of the theory is for the utility of society. It considers that laws are a product of human authority.3 Morality is not necessarily a precondition for a law to exist.4

Austin made significant contributions to the theory, though there were some shortfalls that were later identified. Large leaps in reasoning were made, with a distinction being made between law and religion.5 One pronounced element is the command theory, which describes the law as being made by a command backed by a sanction.6 However, mainly due to the passing of time, intricate aspects of his theory have not aged well, specifically those relating to the sovereign being the source of power. This is shown by the following critiques of his work.7

The key work that is considered within the essay is that of Hart in The Concept of Law. 8 Hart dedicates an entire chapter to a comprehensive discreditation of Austin’s theory.9 The significance of Hart’s works is expressed by Simpson, describing his work as ‘the most successful work of analytical jurisprudence to ever appear in the common law world’.10 Now, what is relevant to this essay is Hart’s creation of two types of rules. First, primary rules refer to rules created to respond to human behaviour.11 Second, secondary rules are utilised to

1 John Austin and Wilfred E Rumble (ed), The Province of Jurisprudence Determined (Cambridge University Press, 1995) (‘Austin’); Herbert Lionel Adolphus Hart, The Concept of Law (Oxford University Press, 2nd ed, 1972) (‘Hart’), discussed in Suri Ratnapala, Jurisprudence (Cambridge University Press, 3rd ed, 2017) (‘Ratnapala’).

2 J Bentham, An Introduction to the Principles of Morals and Legislation (Oxford University Press, 1789); T Hobbes, Leviathan or the Matter, Forme and Power of a Commonwealth Ecclesiastical or Civil (Oxford University Press, 1946).

3 See Ratnapala (n 1) 23-30; Robin Barrow, Utilitarianism: A Contemporary Statement (Routledge, 1991), discussed in Austin (n 1); Hart (n 1).

4 Ratnapala (n 1) 24 [1].

5 Austin (n 1) 18, 38.

6 Ibid 24.

7 Hart (n 1) ch 2.

8 Ibid.

9 Ibid ch 2.

10 Brian Simpson, Reflections on the Concept of Law (Oxford University Press, 2011) 1, quoted in Diana Anderrson, ‘Indigenous Australia and the Pre-Legal Society in HLA Hart’s The Concept of Law’ (2023) 48(1) Journal of Legal Philosophy 1, 2 (‘Andersson’).

11 Hart (n 1) 70-79.

effectively enforce these primary rules.12 In the realm of secondary rules, three types are present: rules of change, rules of adjudication and rules of recognition.13 When these secondary rules exist, Hart says that a complex legal system is present, which he coined as a ‘critical reflective attitude’.14 As will be discussed, Indigenous legal systems fall short when assessed as complex legal systems under this methodology.

B British positivism and foundations of native title jurisprudence (the start and interruption to the flow of the river)

British positivism has been instrumental in influencing foundational native title jurisprudence. The metaphorical river (of native title recognition) could be considered to have started upon the 1992 High Court decision – Mabo v State of Queensland (Mabo).15 Although no specific reference was made to Hart, consistent lines of reasoning are present. For example, Mabo created tests that searched for a normative system of rules to assess whether a society exists.16

The decision, Members of the Yorta Yorta Community v State of Victoria & Ors (‘Yorta Yorta’) had direct references to Hart, and arguably used British positivism as a basis for the tests it developed – namely the test of continuity of connection.17 In line with the river analogy, Yorta Yorta could be described as the construction of a levee that completely obstructs the flow. In essence, the decision involved a consideration of s 233 of the Native Title Act 1993 (Cth) and found that a continuous connection to the land would need to be proved to establish native title, and if not, it would be extinguished.18 Given how the test of

12 Ibid.

13 Ibid 93-4.

14 Ibid 79, discussed in Marcelle Burns, ‘Challenging the Assumptions of Positivism: An Analysis of the Concept of Society in Sampi on Behalf of The Bardi And Jawi People v Western Australia [2010] And Bodney v Bennell [2008] (2011) 4(7) Land, Rights, Laws: Issues of Native Title 1 (‘Burns’).

15 (1992) 175 CLR 1.

16 Ibid. See also Mark Leiboff and Mark Thomas, Legal Theories: Contexts and Practices (Lawbook Co, 2009) 297, cited in Burns (n 14) 1.

17 (2002) 214 CLR 422 (‘Yorta Yorta’).

18 Yorta Yorta (n 17) [70], [76], discussed in Peter Seidel, ‘Native Title: The Struggle for Justice for the Yorta Yorta Nation’ (2004) 29(2) Alternative Law Journal 70.

native title became much more stringent after this, it has been subject to torrents of scorn from native title lawyers and academics.19

As alluded to, themes of positivism were eminent throughout the judgement. Andersson expresses that the majority ‘was unusually philosophical, overtly citing legal theories as legal authority’.20 Continued reliance was placed on the need for a rule of recognition.21 Further, the judgment made reference to ‘Hart’s analysis of the normativity that distinguishes rules from patterns of behaviour’.22 In doing so, stringent legal tests were formulated through ‘anchoring these terms into positivist concepts of law’.23

IIIPRESENT (EFFECTS FROM THE INTERRUPTION TO THE FLOW)

A Native title jurisprudence following Yorta Yorta

The continuity of connection test put forward in Yorta Yorta has been followed and developed in subsequent native title jurisprudence. This has arguably reinforced the levee, further interrupting the flow to native title recognition. The decisions of Sampi on Behalf of the Bardi and Jawi People v Western Australia24 and Bodney v Bennell25 are illustrative of this. In considering them, Burns notes two key elements.26 First, it is noted that ‘the internal view of applicants with respect to their acknowledgment of the Law as law, mirrors Hart’s critical reflective attitude’.27 Second, Burns discusses that ‘the courts references to rules relating to the succession of rights are consistent with Hart’s categorisation of secondary

19 See, e.g., Andersson (n 10); Simon Young, The Trouble with Tradition: Native Title and Cultural Change (Federation Press, 2008) (‘Young’); Burns (n 14).

20 Anderrson (n 10) 29 [3].

21 Ibid 33 [2], discussing Kirsten Anker, Declarations of Interdependence: A Pluralist Approach to Indigenous Rights (Routledge, 2014); Shaunnagh Dorsett and Shaun McVeigh, ‘An Essay on Jurisdiction, Jurisprudence, and Authority: The High Court of Australia in Yorta Yorta (2001)’ (2005) 56(1) Northen Ireland Legal Quarterly 1.

22 Andersson (n 10) 33 [2].

23 Burns (n 14) 4 [2].

24 [2010] FCAFC 99, discussed in Ibid.

25 [2008] FCAFC 63, discussed in Burns (n 14).

26 Burns (n 14) 11.

27 Ibid 11.

rules of change’.28 The practical effect of this was a reinstatement of Yorta Yorta’s stringent connection test, with positivism being used as a basis to formulate them.

B Blucher on behalf of the Gaangalu Nation People v State of Queensland

The recent decision of Blucher on behalf of the Gaangalu Nation People v State of Queensland (No 3) found that no native title rights exist over a large area of Queensland.29 A glimpse is provided into the present difficulties for native title claimants to make out a successful native title claim. His Honour, Rangiah J, found that the Gaangalu people failed to prove the continuity of connection, like Yorta Yorta. 30 In this way, similar lines of reasoning arising from British positivist influences on Yorta Yorta still remain highly influential, and the flow of native title recognition remains inhibited.

IVFUTURE

A Critical views on the application of British positivism

British positivism inspired reasoning has been a dominant force in a multitude of native title decisions. However, it is to be considered whether the levee constructed by Yorta Yorta was necessary in the first place. Considering that the limitations of Hart were acknowledged by the majority in Yorta Yorta, it makes sense that critiques would follow.31 Andersson emphasises that the High Court’s reliance on the theory as containing ‘an obvious pre-legallegal dualism reminiscent of the state of nature – civil society mechanism that was instrumental in the application of terra nullius to Australia’.32 As a result and rather ironically, the principles that led to Australia being declared as terra nullius remain.33 Andersson argues that it has resulted in Indigenous Law being interpreted so as to be ‘a deficit version of an Anglo-Western model of law’.34 Given the glaring differences between the mode of delivery of information and views between the systems, it would not be fair to impose tests solely based on one system. Andersson further notes that only Western

28 Ibid.

29 [2023] FCA 600.

30 Ibid.

31 Yorta Yorta (n 17) 442-6, discussed in Burns (n 14).

32 Andersson (n 10) 1.

33 Ibid 37.

34 Ibid.

perspectives have been at play in the formulation of native title rights.35 In view of the lack of involvement from Indigenous people, there are questions along the lines of whether natural justice has been afforded.

Replacements, from a different perspective, have been proposed. Burns proposes ‘an internal view based on Indigenous worldviews’.36 It is suggested that this framework is superior due to having a different perspective, one that is ‘intrinsically linked to the spiritual and ancestral connection to country’.37 Young also proposes a more holistic approach to be taken to questions of proof.38 At a minimum, a faceted approach would arguably be more beneficial, especially considering the apparent differences between Western and Indigenous views, and the need to account for this.

On the flip side, there are still reasons supporting the application of positivism in native title jurisprudence.39 A glaring point is the established nature of the framework in Australia. Considering the river analogy, as a result of the interruption to the flow, it may be the case that a new path has been eroded in place, meaning that the flow of the river will forever be that way. In line with the work of Karl Llewellyn, the study of law is treated as a craft, requiring years of effort.40 With the foundations of legal thinking being based on British positivism, it may be difficult to diverge from it. This would be due to all legal practitioners acquiring legal knowledge with positivism as a constant backdrop. This was displayed in Yorta Yorta, where the backdrop of positivism was used as authority for difficult and complicated decisions.41 Therefore, it may be more difficult than expected to introduce change, especially in the current environment.

B Suggested reforms to the Native Title Act 1993 (Cth)

35 Ibid 34. Note these views appear to share similarities with feminist critics put forward in Jacques Derrida, ‘Force of Law: The Mystical Foundation of Authority” (1990) 11 Cardozo Law Review 1613.

36 Burns (n 14) 1.

37 Ibid 1.

38 Young (n 18) chs 13-14.

39 See, eg, Wil Waluchow & Stefan Sciaraffa (eds), Philosophical Foundations of the Nature of Law (Oxford University Press, 2013) 22; Fabio Perin Shecaira, ‘Dealing with Judicial Rhetoric: A Defence of Hartian Positivism’ 37 Australian Journal of Legal Philosophy 131.

40 Karl Llewellyn, The Common Law Tradition: Deciding Appeals (Quid Pro LLC, 2015).

41 Yorta Yorta (n 17).

There have been suggested legislative reforms to the Native Title Act 1993 (Cth) which aspire to put an end to the stringent test of continuity of connection. The Australian Law Reform Commission passed down Report 126, titled Connection to Country: Review of the Native Title Act 1993 (Cth) 42 Although a full discussion of its contents is outside this essay’s scope, a key proposal is that a more holistic approach is undertaken to the assessment of connection.43 The recommendations are yet to be adopted. The suggested reforms to the NTA may assist with native title recognition, doing away with a reliance on positivist frameworks.

VCONCLUSION

In view of the above, the inception of British positivism into native title has had prominent effects, however, there are questions as to whether it has precariously inhibited the flow of native title recognition. First, the essay discussed the role British positivism played in the foundations of native title (Mabo), and the severe disruption (Yorta Yorta). Second, the longlasting impacts of Yorta Yorta as evidenced by the reliance of judges on positivist inspired frameworks in preceding judgements were discussed. Finally, a critical analysis of British positivism was made. It was concluded that reform may provide an opportunity to. In light of proposed reforms and frameworks, the development of native title jurisprudence is an uncertain and riveting area to follow.

42 Australian Law Reform Commission, Connection to Country: Review of the Native Title Act 1993 (Cth) (Report No 126, April 2015).

43 Ibid 133-70.

Annexure 1 – Diagram of Flow of Native Title Jurisprudence:

CONSTITUTIONAL PROTECTION OF THE PRESUMPTION OF INNOCENCE FROM STATUTORY INCURSION BY

PROBLEMATIC COMMONWEALTH CRIMINAL CODE PROVISIONS

ROBYN EDMANSON

ABSTRACT: Reverse onus provisions are statutory departures from the presumption of innocence because they require an accused to disprove one or more elements of an offence. Serious drug and counter-terrorism provisions in the Commonwealth Criminal Code 1995 (Cth) (‘Criminal Code’) should be amended in light of comparable international principles and the limitations of traditional judicial powers developed under Chapter III of the Constitution 1

IINTRODUCTION

This essay critically analyses statutory departures from the presumption of innocence using as examples existing serious drug and counter-terrorism offences in the Criminal Code. The general rule in the administration of criminal justice that the legal (persuasive) burden is with the prosecution to prove each and every offence element, and rebut any defences, was derived from the axiomatic common law principle of the presumption of innocence.2 However, there is a critical distinction between the legal burden and merely an evidentiary burden in the context of the practical effect of obligations placed on the accused to rebut the reverse onus.3 Drawing on jurisprudence from comparable Canadian and UK jurisdictions, it is this essay’s contention that these Criminal Code provisions unacceptably erode the

 This paper was originally submitted as an assessment for the subject LAW8701 Advanced Constitutional Human Rights.

1 Criminal Code 1995 (Cth) (‘Criminal Code’); Australian Constitution 1901 (Cth) (‘Constitution’).

2 Australian Low Reform Commission Traditional Rights and Freedoms - Encroachments by Commonwealth Laws ALRC Report 129 (ALRC Report) December 2015, [1.40]; Sheldrake v DPP [2005] 1 AC 264, [9] (Lord Bingham); Albert Kiralfy, The Burden of Proof (Professional Books Ltd, 1987) 12.

3 Andrew Hemming and Robyn Layton, Evidence Law in Qld, SA and WA (Thomson Reuters Limited, 2017) [3.20]. ‘In the absence of a statutory provision to the contrary, the Crown bears the legal burden of persuading the fact finder of the evidence of each and every element (the essential elements) of the offence charged…’; cf R v Lambert [2002] 2 AC 545, 589 (Lord Hope) stated that the practical effect of reading an onus as merely evidential ‘is likely in almost every case that can be imaged to be minimal.’

presumption of innocence because of the practical difficulty for an accused in proving their innocence to the legal standard.4 It is argued that no circumstances exist that warrant restriction of the presumption of innocence and these laws should be amended to preclude circumstances where a defendant may be punished despite the existence of reasonable doubt.5 Justification for this position is derived from applicable international principles and the limitations of rights-protective judicial powers developed under Chapter III of the Constitution.

IITHE PRESUMPTION OF INNOCENCE: BRIEF HISTORY AND RATIONALE

The fundamental principle of the presumption of innocence in Western legal systems dates back many centuries.6 As Fortescue wrote in about 1470, its rationale is the preference for ‘twenty guilty men to escape death through mercy, than one innocent to be condemned unjustly.’7 But by the 18th century, this ratio was only half as favourable when English jurist William Blackstone famously simplified the idea of ‘10:1’ ‘that it is better that ten guilty persons escape than one innocent suffer.’8 This concept entrenches the presumption of innocence principle in the common law to ensure the innocent are not wrongfully convicted outweighing the need for successful criminal prosecutions. The presumption derives moral support9 from the modern democratic ideal of minimal state interference in people’s lives while maximising individual freedoms.10 While this principle is generally accepted as ‘a

4 Simon Breheny and Morgan Begg, ‘Legal Rights Audit 2017’, The State of Fundamental Legal Rights in Australia: An Audit of Federal Law, (Web Page, December 2017) https://ipa.org.au/wpcontent/uploads/2018/01/Legal-Rights-Audit-2017.pdf. This Institute of Public Affairs report found in 2017 that six provisions were added to the 49 existing federal provisions which reverse the onus of proof.

5 James Whitman, The Origins of Reasonable Doubt (Yale University Press, Connecticut, 2008). Whitman argues that ‘reasonable doubt’ developed in common law and civil law systems not to protect the accused, but to protect those judging the accused, the judge and the jurors because if they were mistaken the accused faced death.

6 Anthony Gray, Presumption of Innocence in Peril: A Comparative Critical Perspective (Lexington Books, 2017) 1. Gray traces the earliest reference to the presumption of innocence between 1792 and 1750 BC in the Code of Hammurabi.

7 John Fortescue, De Laudibus Legum Anglie (trans S B Chrimes, Cambridge University Press, 1942) ch XXVII, 65 (first published 1545-46).

8 William Blackstone, Commentaries on the Laws of England (Clarendon Press, 1765) Book IV, Ch 27, 353.

9 Morris Hoffman, ‘The Myth of Factual Innocence,’ Chi-Kent Law Review 82 (2007) 663, 683. Hoffman argues the rise of the presumption of innocence coincides with the decline in faith in the oath because there was no need for a presumption of innocence while people feared the oath.

10 Anthony Gray, Criminal Due Process and Chapter III of the Australian Constitution (Federation Press, 2016) 183.

hallmark of a fundamentally decent society’11 there is disagreement as to the extent of its applicability in an adversarial legal system which often takes a formalist, rather than a substantive, view of what constitutes an offence and defence.12 For example, these serious drug and counter-terrorism offences in the Criminal Code side-step the presumption through parliamentary removal of offence definitions by incorporating them within a defence the accused is required to prove.13

Many decisions have considered the presumption of innocence as the foundation of the legal burden of proof. The leading judgment in Woolmington v DPP14 by Viscount Sankey LC described the prosecutorial burden of proving guilt beyond reasonable doubt as the ‘golden thread’ running through English criminal law subject to the common law’s insanity defence and any statutory exception.15 As Lord Bingham of Cornhill for the majority in the Privy Council’s decision in Khan v Trinidad and Tobago16 emphatically declared, the presumption of innocence is ‘the most fundamental principle underlying the administration of criminal guilt’ requiring the prosecution to bear ‘fairly and squarely’ the duty to prove guilt.17 However, the thread’s unravelling through the subsequent catalogue of statutory exceptions is now considerable with legislative incursions across both the criminal and civil contexts.18

While reference to the presumption of innocence is absent from the Constitution, given the lack of a federal bill of rights, High Court jurisprudence firmly situates it in the long-held common law tradition of fair trial rights.19 It has become a principle of vintage pedigree firmly ingrained in ensuring a fair trial.20 That is, if the prosecution cannot prove all elements, especially those crucial to culpability, of a criminal offence the case remains undisturbed and the accused is entitled to acquittal. This is justified on the basis of the 11 Ibid.

12 Anthony Gray, 'The Presumption of Innocence under Attack' (2017) 20(4) New Criminal Law Review 569, 587.

13 Ibid.

14 [1935] AC 462 [481]─[482] (‘Woolmington’).

15 Ibid; Hemming and Layton (n 3) [3.20].

16 [2004] 2 WLR 692.

17 Ibid [14].

18 Gray (n 10) 190. An example in the civil context is the forfeiture of property in the absence of a conviction in the context of proceeds of crime legislation across Australian jurisdictions, including Queensland’s Criminal Proceeds of Crime Confiscation Act 2002 (Qld), which requires a person to prove the lawfulness of their wealth and/or property.

19 ALRC (n 2).

20 Gray (n 10) 186.

substantial resource imbalance between the State and the defendant; the fallibility of the trial system; and the considerable sanctions imposed on citizens if guilt beyond reasonable doubt is made out.21 In criminal prosecutions, the right to a fair trial is described as the most important of all rights because it affects a defendant's ability to assert his or her other rights.22 These other rights are the right to silence23 and privilege against self-incrimination24 which reflect the accuser’s onus to prove any allegation against the accused to the criminal standard of beyond reasonable doubt.25

However, as reported by human rights bodies, loyalties to the presumption of innocence can waver in circumstances of real or imagined fears of terrorists,26 drugs,27 extra-territorial child sex offending28 and health pandemics.29 Underlying these fears is the ‘ubiquity and argument’ that the more serious the crime the greater the threat which operates to justify placing the legal burden of proof on the accused.30 On the other hand, the seriousness of the offence is a given ‘against which the presumption is pitted from the beginning, not a new element to be put into the scales as part of a justificatory balancing exercise.’31 In this light, the presumption of innocence may be viewed as a beleaguered warrior in the arena of

21 Andrew Ashworth ‘Four Threats to the Presumption of Innocence’ (2000) 10 International Journal of Evidence and Proof 241, 251.

22 Dietrich v The Queen (1992) 177 CLR 292 (‘Dietrich’) is authority that a person has a right to counsel when accused of a serious crime.

23 Weissensteiner v The Queen (1993) 178 CLR 217 is authority for the right to remain silent at trial.

24 Azzopardi v The Queen (2001) 205 CLR 50; see generally Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328 where Murphy J at 346 emphasized that the principle is grounded in part of the common law of human rights; Blunt v Park Lane Hotel Ltd [1942] 2 KB 253, [253] Lord Goddard CJ stated ‘[T]he rule is that no one is bound to answer any question if the answer thereto would, in the opinion of the judge, have a tendency to expose the deponent to any criminal charge, penalty or forfeiture which the judge regards as reasonably likely to be preferred or sued for.’

25 LexisNexis, Cross on Evidence (online at August 2022) 2 Incidence of Burden, ‘Presumptions Expressing the Incidence’ [7085] ‘When it is said that an accused person is presumed to be innocent, one meaning is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt, and unless and until this is done the accused is taken to be innocent, not merely not guilty.’

26 ALRC (n 2) [9.66]─[9.68]. The ALRC also identifies at [9.106] the reversal of the presumption of bail for terrorism offences as disproportionate to the right to liberty and the presumption of innocence under articles 9 and 14(2) of the ICCPR respectively.

27 Ibid [9.69]─[9.77].

28 Ibid [9.78].

29 Australian Human Rights Commission 2023 ‘What is the Human Rights Commission’s view on Limiting Human Right’s During COVID-19?’ https://humanrights.gov.au/about/covid19-and-human-rights/whatcommissions-view-limiting-human-rights-during-covid-19; Joseph Lelliott, Andreas Schloenhardt and Ruby Ioannou ‘Pandemics, Punishment and Public Health: COVID-19 in Australia’ (2021) 44(1) University of New South Wales law journal 167, 186. The authors argue the presumption of innocence may be eroded by the low bar of criminal liability and coercive police powers.

30 State v Coetzee [1997] 2 LRC 593 [220] at 677 quoted in ALRC [9.51].

31 Ibid.

individual rights. Whilst not unduly fragile32 its protection, as highlighted by reverse onus provisions, is frequently abrogated by statute.33

IIISERIOUS DRUG AND COUNTER-TERRORISM LAWS IN THE CRIMINAL CODE

Several examples exist of serious drug and counter-terrorism offences in the Criminal Code which represent serious incursions on the presumption of innocence In the context of serious drugs, there is s 302.5 regarding trafficking; s 303.7 in relation to cultivation; and s 305.3 concerning manufacturing.34 One specific example is s 302.5(1) which creates the offence of trafficking35 which is broadly defined to include selling, preparing, transporting, guarding or concealing and possessing a substance with the intent to sell.36 This section’s breach incurs a maximum of life imprisonment or 7500 penalty units or both. Section 302.5 elaborates on what it means by a presumption where trafficable quantities are involved as ‘the person is taken to have the necessary intention or belief concerning the sale of the substance to have been trafficking in the substance.’37 It is legislatively clear that parliament intended for the accused to discharge the legal onus.38 However, evidence of intention or belief as elements of the offence would normally be for the prosecution to prove, on the facts, beyond a reasonable doubt. By contrast, these laws place the onus on the accused to the legal standard. It is not merely an evidentiary standard requiring the defendant to lead evidence they did not possess the required intention or belief.

In relation to counter-terrorism laws in the Criminal Code, s 102.6 similarly places a legal burden on the accused regarding ‘getting funds to, from or for a terrorist organisation.’39 A breach of this section is punishable by 25 years imprisonment. Section 102.6 includes a ‘note’ stating that ‘the defendant bears a legal burden in relation to’ proving that he or she

32 Momcilovic v The Queen (2011) 245 CLR 1, 47 [45] (French CJ).

33 Ibid; Leask v Commonwealth (1996) 187 CLR 579; Milicevic v Campbell (1975) 132 CLR 307; Andrew Ashworth and Meredith Blake, ‘Presumption of Innocence in English Criminal Law’ (1966) 9 Criminal Law Review 306.

34 Criminal Code (n 1) s 302.5, s 303.7, s305.3.

35 Ibid s 302.5(1).

36 Ibid div 302.

37 Ibid s 305.2.

38 Ibid ss 13(4)─(5) state that an onus on the accused is a legal one if stated so, if the section requires the defendant to prove the matter of the section creates a presumption that the matter exists unless proven otherwise and makes it clear that a legal onus on the accused must be discharged on the balance of probabilities.

39 Ibid s 102.6.

received funds from a terrorist organisation for the provision of legal representation,40 or to help the organisation comply with the law.41 As with serious drug offences, the note refers to s 13.4 stating the onus on the accused is a legal one, requiring the defendant to prove the matter of the section creating a presumption that the matter exists unless proven otherwise. From s 13.5 it is clear the accused’s legal onus must be discharged on the balance of probabilities. However, in its latest report, the Australian Law Reform Commission (‘ALRC’) states that placing a legal burden on the accused has significant consequences for the erosion of the presumption of innocence and that any future reviews ‘should consider whether placing an evidential rather than legal burden on the defendant would be sufficient to balance the presumption of innocence with the legitimate objectives pursued by these laws.’42 These reverse onus provisions undermine the extent to which defendants are afforded the protection of the presumption of innocence. In this context, the ALRC recommended that the federal Parliament consider amending these Criminal Code legal reverse onus provisions to only impose an evidentiary onus as has transpired in Canada and the UK through direct statutory mechanisms.43

IVTHE PRACTICAL EFFECT OF REVERSE ONUS PROVISIONS

For the proper administration of criminal justice for those accused of serious drugs or terrorism offences should the presumption of innocence yield in the face of threats to the community and public security? Should it not be extended to the accused in these circumstances? Such propositions are anathema to fundamental human rights and freedoms in Australia’s liberal democracy. They should be so repugnant that a criminal justice system should not be resigned to them.44 Yet, as the ALRC found, legislatures in liberal democratic

40 Ibid s 102.6(3)(a).

41 Ibid s 102.6(3)(b).

42 ALRC (n 2) [9.6]; Shahram Dana and Ben White, ‘Terrorising Innocence: Australia’s Counter-Terrorism Laws Trump Freedom of Liberty (2021) 27(2) Australian Journal of Human Rights 352, 352. Dana and White expand upon the far-reaching effects of these counter-terrorism laws which broadly encroach on the presumption of innocence to ‘create a separate bail framework that is inadequately justified, disproportionate to its legitimate objectives.’

43 ALRC (n 2) 260.

44 Nicola McGarrity and George Williams, ‘When Extraordinary Measures Become Normal: Pre-emption in Counter-Terrorism and Other Laws’ in Andrew Lynch, Nicola McGarrity and George Williams (eds), CounterTerrorism and Beyond: The Culture of Law and Justice after 9/11 (Routledge Press, 2010) 131.

systems clearly depart from the presumption of innocence by, amongst other techniques,45 reversing the onus of proof by placing a legal burden on the defendant.46 In fact, the ALRC reports that the presumption of innocence is undermined most strongly by reversals of the onus of proof47 which alter the balance of rights between the accuser and the accused.48

Amongst the rationale for reversing the burden of proof is the difficulty prosecutors face in evidence gathering to secure convictions;49 and strong public policies designed to deter serious crime. Laws that prima facie uphold national security, and public order, and the public’s health and safety have been found to be valid so long as they are proportional and pursue a legitimate objective that is ‘suitable and necessary to meet that objective.’50 For example, UK courts51 have found statutory compatibility with the presumption of innocence in the context of evidentiary reversals of the onus of proof where ‘the defendant is only required to raise some probative evidence which leaves the prosecution with the ultimate burden of proving the defendant’s guilt beyond reasonable doubt.’52 However, legal reversals of the onus of proof in circumstances where an element of an offence is essential to serious culpability require the defendant to prove his or her innocence on the balance of probabilities.53 As such, the risk of unfair conviction is significantly raised because legal

45 ALRC (n 2) [1.41]. The report contends reversal of the legal burden of proof on a crucial issue requires the greatest justification because it amounts to the strongest interference with the presumption of innocence which is by and large permitted by the courts.

46 ALRC (n 2) [9.65]─[9.80]; Gray (n 9) 182-225 classifies reverse onus provisions as either placing a legal burden to the civil standard, or an evidentiary burden on the defendant to produce exculpatory evidence which may be created by statutory provision or by implication or by deeming provisions that locate proof of a particular fact on a defendant or by a narrow interpretation of the presumption of innocence.

47 ALRC (n 2) [9.64].

48 Ashworth (n 21) argues that putting the standard of proof at beyond reasonable doubt in criminal law reinforces and justifies societal values of respect for individual freedom from wrongful conviction, the fragility of fact-finding, and the disparity of resources of the individual against the state.

49 Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Provisions of the Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Bill 2005, (August 2005) 21; For example in Momcilovic v The Queen (2011) Heydon J stated at [467] that while the placement of a legal burden on the accused was ‘unpalatable’ it ‘facilitates proof of possession much more than a simple placement of the evidential burden …’.

50 ALRC (n 2) [2.63].

51 See, eg, R v Director of Public Prosecutions; Exparte Kebilene [2000] 2 AC 326. (‘Kebilene’).

52 R v Lambert [2001] UKHL 37, [37] (Lord Steyn); ALRC (n 2) [9.42].

53 ALRC (n 2) [9.14]-[9.16].

reversals encroach more significantly, than do evidentiary reversals, on the presumption of innocence.54

VLESSONS FROM COMPARABLE JURISDICTIONS

Because the fundamental right to a fair trial is entrenched in Australia’s common law,55 the experience of reverse onus provisions in comparable common law systems may inform a principled approach for Australian courts and regulators despite the lack of a direct statutory mechanism to ensure the presumption of innocence. While Viscount Sankey apparently accepted the statutory override of the presumption of innocence in Woolmington it is unlikely he contemplated its application to a broad range of offences. Although this no longer reflects the current UK context, given the introduction of the Human Rights Act 1998 (UK), there are a number of examples of how the Canadian and UK courts have responded to reverse onus provisions. In the Canadian context, the presumption of innocence is enshrined in s 11(d) of the Human Rights charter of human rights and freedoms (‘Charter’) and for the UK it is embedded in article 6(2) of the European Convention on Human Rights (‘ECHR’) of the Human Rights Act 1998. These are the direct means by which the courts, recognising the centrality of the presumption of innocence, have invalidated reverse onus provisions offensive for abrogating human rights by either reading down or striking out such provisions.

One original case pleaded under the Canadian Charter implicated a deeming provision similar to the serious drug provisions in the Commonwealth Criminal Code.56 It contained s 4(2), a drug trafficking provision under the Narcotics Control Act,57 which presumed a person was in possession of drugs for trafficking purposes unless the accused could prove otherwise. Contrary to the presumption of innocence the court found the provision invalid and could not be saved by s 1 proportionality reasoning. However, the presumption of innocence in s 11(d) of the Charter is not an absolute right. According to the principle of proportionality, a reversal of the legal burden of proof is allowed only where it is absolutely necessary to abrogate the presumption of innocence, as has occurred in European and UK

54 Kuan Chung Ong, ‘Statutory Reversals of the Onus of Proof: Justifying Reversals and the Impact on Human Rights’ (2013) 32(2) University of Tasmania Law Review 248, 262-3.

55 Dietrich (n 22) at 299 (Mason CJ and McHugh J) at 325 (Brennan J) at 326 (Deane J) at 353 (Toohey J at 362 (Gaudron J).

56 R v Oakes [1986] 1 SCR 103, 134-139 (Dickson CJ, Chouinard, Lamer, Wilson and Le Dain JJ) (‘Oakes’).

57 RSC 1970, c N-I.

courts.58 This principle has been applied as the yardstick for justifying and validating reverse onus provisions if they are proportionate and contained within reasonable limits.59 That is, the proportionality analysis ‘requires the government to demonstrate the provision is aimed at a legitimate objective, is a rational means to achieving it and is not arbitrary or unfair.’60 However, in R v Oakes61 the majority Supreme Court accepted the onus on the accused should be an evidentiary not a legal one as that required the accused to disprove the allegation on the balance of probabilities. By the evidentiary standard, this left residual doubt as to the accused’s possession of the drugs for trafficking purposes as specified by the provision. For the Canadian Supreme Court, and distinguished evidence scholar, Sir Rupert Cross to whom the court referred, the legal onus was an unacceptable incursion on the presumption of innocence.

In the counter-terrorism context where an accused was reasonably suspected of possessing an article for terrorism purposes, the Canadian courts’ approach was applied in the UK in R v Director of Public Prosecutions; Ex Parte Kebilene62 to a reverse onus provision similar to s 102.6 of the Criminal Code regarding one or more elements of an offence. Subsequent to the Oakes decision, Lord Bingham in Kebilene agreed with the Canadian courts’ approach that reverse onus provisions posed an unacceptable risk that an accused could be convicted despite the existence of reasonable doubt as to whether they committed the crime. As in the experience of Canadian courts, provisions inconsistent with s 6(2) of the ECHR may be saved by a proportionality analysis where they give ‘margins of appreciation’ to justify rights interferences.63 The UK courts’ powers under s 4(1) of the Human Rights Act 1998 enable the reading down of legislation, otherwise offensive to the ECHR so that, if possible, it complies with it.

64

On the other hand, without an equivalent of a Charter or Human Rights Act enacted at the commonwealth level in Australia to provide the courts with the statutory basis for re-

58 See, eg, Salabiaku v France (1988) 13 EHRR 379; R v Lambert [2001] UKHL 37.

59 Simon Cooper, ‘Case Notes: Human Rights and the Legal Burden of Proof’ (2003) 7 Web Journal of Current Legal Issues.

60 Gray (n 6) 98.

61 [1986] 1 SCR 103, 134-139 (Dickson CJ, Chouinard, Lamer, Wilson and Le Dain JJ) (‘Oakes’).

62 [2000] 2 AC 326 (‘Kebilene’).

63 Gray (n 6) 98; George Letsas, ‘Two Concepts of the Margin of Appreciation’ (2006) 26(4) Oxford Journal of Legal Studies 705-732.

64 Gray (n 6) 98.

interpretation of reverse onus provisions, there is a real risk an accused may be convicted notwithstanding the existence of reasonable doubt.65 Any identified justifications for the burden’s reversal such as problems of evidence for the prosecution to obtain a conviction,66 or the seriousness of the crime in society, are insufficient to justify derogation from the presumption of innocence by placing a legal onus on the accused. There can be no justification in Australia’s liberal democracy, the heart of which is a fair criminal justice system that upholds the presumption of innocence, for conviction of an accused where reasonable doubt exists. This principle must be absolute and no exceptions should be entertained to whittle it down to allow government interests to justify conviction for those not proven guilty beyond a reasonable doubt.

VITHE IMPLIED PROTECTION FROM CHAPTER III OF THE CONSTITUTION

While in Australia the direct rights protective statutory mechanisms that allowed the Canadian and UK courts to modify or strike out reverse onus provisions are unavailable, limits may be placed on government power through the separation of powers doctrine67 and the exclusive Constitutional vesting of judicial power68 in Chapter III courts (‘The Judicature’). The centrality of the separation of powers doctrine, or more precisely, separation of the federal judiciary from interference by the federal legislature and the federal executive, as interpreted and highlighted by the High Court, firmly locates exclusive judicial power within the constitutional framework. Through this indirect mechanism the concept of ‘institutional integrity’ protects fundamental due process rights, such as the presumption of innocence, by opening legislative encroachments to challenge.69 As has been shown, it is problematic for the presumption of innocence, a fundamental due process right, where a

65 Ibid 101.

66 Breheny and Begg (n 4) 7.

67 LexisNexis, Halsbury’s Laws of Australia (online 20 July 2016) 2 Judicial Power of the Commonwealth, ‘Implied Constitutional Requirement’ [90-5010]. Essentially, the High Court has recognised that the Constitution’s structure separates powers between legislative (Chapter I), executive (Chapter II) and judicial (Chapter III).

68 Huddart, Parker & Co Pty Ltd v Moorehead (1908) 8 CLR 330, 357 Griffith CJ stated at 357 defined judicial power ‘… as used in sec. 71 of the Constitution mean the power which every sovereign must of necessity have to decide controversies between its subjects or between itself and its subjects, whether the rights relate to life, liberty or property. The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action.’

69 Bass v Permanent Trustee Co Ltd (1999) 199 CLR 334, 359 (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ); Gray (n 10); Fiona Wheeler, 'The Doctrine of Separation of Powers and Constitutionally Entrenched Due Process in Australia' (1997) 23(2) Monash University Law Review 248.

reverse onus provision applies to an element of an offence combined with a legal as opposed to evidentiary onus on the accused. Whilst recognised internationally this is yet to be recognised by Australian courts.70 Further, where the Australian parliament is clear in its legislative intent, as indicated by the Criminal Code reverse onus provisions, the principle of legality is ineffective as it only applies in the event of ambiguity.71

While early High Court precedent exists validating reverse onus provisions on grounds of legislative power to enact laws in relation to rules of evidence,72 the strict separation of judicial power from the other arms of the federal government began to emerge early in the 20th century73 culminating in the twin principles that judicial power could only be vested in Chapter III courts, and Chapter III courts could only exercise federal power.74 The High Court subsequently developed a ‘general preoccupation in the early 1990s with constitutional protection of civil and political rights’75 in the ‘rights-oriented’ phase of the rise of judicial power. The ascendency of the potential for Chapter III to protect fundamental rights then arose rapidly through the development of the ‘incompatibility doctrine as part of the separation of powers jurisprudence’76 in Grollo v Palmer77 and applied subsequently in Kable v Director of Public Prosecution (NSW).78 Essentially, Chapter III of the Constitution may be breached if a law undermines the public’s confidence in the judiciary,79 or departs from traditional judicial procedure80 or compromises the court’s independence and impartiality.81

70 Gray (n 6) 100.

71 Ibid 99.

72 Commonwealth v Melbourne Harbour Trust Commissioners (1922) 31 CLR, 12 (Knox CJ, Gavan, Duffy and Starke JJ), 18 (Isaacs J); Williamson v Ah On [1926] 39 CLR 95, 116-117 (Isaacs J, with whom Power J agreed).

73 New South Wales v Commonwealth (1915) 20 CLR 45 (the Wheat Case).

74 R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254 (known as the ‘Boilermakers’ Principles).

75 Fiona Wheeler, ‘The Rise and Rise of Judicial Power Under Chapter III of the Constitution: A Decade in Overview’ (2000) Australian Bar Review Lexis 29, [11].

76 Gray (n 10) 42.

77 (1995) 184 CLR 348, 365 (Brennan CJ, Deane, Dawson and Toohey JJ). The majority stated Chapter III might be infringed by a law requiring ‘the performance of non-judicial functions with integrity is compromised or impaired. Or…in the performance of non-judicial functions of such a nature that public confidence in the integrity of the judiciary…is diminished.’

78 (1996) 189 CLR 51, This case involving the challenge to legislation for the ongoing detention of a serious sex offender established the Kable principle which has given rise to a number of further challenges to the scope of the implied judicial power of Chapter III courts including in International Finance Trust Co v New South Wales Crime Commission (2009) 240 CLR 319 (‘Kable’).

79 Ibid.

80 Wainohu v New South Wales (2011) 243 CLR 181 where, because of a provision relieving judges of the duty to declare organisations criminal, the court struck down the relevant control order.

These principles apply to reverse onus provisions such as those identified in the Criminal Code which departs from the essential characteristics of courts that operate in an adversarial system.82 That is, the accuser bears the onus of proving the case against the accused in this system, without their help, at the standard of beyond reasonable doubt.83

It is difficult to envisage a more egregious undermining of public confidence in judicial power than the conviction of an innocent person despite reasonable doubt of their guilt. Any departure from this should lead to invalidating that law on Chapter III grounds. As Gummow J’s obiter comments in Nicholas v The Queen84 affirmed, constitutional difficulties arise where a provision deals with ultimate issues of guilt or innocence, such as these Commonwealth serious drugs and counter-terrorism provisions, as they infringe upon that essential court function by presumptively deeming the accused guilty unless they can prove otherwise. In further obiter in Nicholas, Gaudron J referred to the centrality of the Boilermaker’s principle that notions of procedural fairness and equality before the law are at the heart of the fair judicial process.85 If the presumption of innocence has status axiomatic to judicial due process, as it does internationally and as the High Court has indicated, then these reverse onus provisions for serious drugs and counter-terrorism offences in the Criminal Code should be invalidated or modified as breaches of Chapter III. However, where the Australian High Court differs from the superior courts of comparable jurisdictions is that it must frequently resolve problems of reverse onus provisions without referring to legal human rights standards, the heart of which is the presumption of innocence.

VICONCLUSION

By requiring the accused to disprove one or more of these Criminal Code offence elements the presumption of innocence is not only undermined, it casts them in a comparatively poor

81 South Australia v Totani (2010) 242 CLR 1 Here the court struck out part of South Australia’s anti-organised crime control order regime requiring Magistrates to issue a control order against a member of a criminal organisation if declared as such by the Attorney-General.

82 Gray (n 6) 100.

83 Lee v New South Wales Crime Commission (2013) 251 CLR 196, 236 (Hayne J), 266 (Kiefel J, with whom Bell J agreed), 293-4.

84(1998) 193 CLR 173, 236 (Gummow J) stated constitutional difficulties arise ‘which deemed to exist, or have been proved to the satisfaction of the tribunal of fact, any ultimate fact, being an element of the offences with which the accused is charged. A law of that nature…might well usurp the constitutionally mandated exercise of the judicial power for the determination of criminal guilt’ (‘Nicholas’).

85 Ibid (Gaudron J) 208─9.

light. These reverse onus provisions are made worse by the fact the defendant must prove their innocence to the legal standard, which should invalidate them by Canadian and UK standards. As has been demonstrated there are critical differences in the effect of a legal burden and a mere evidentiary burden in relation to the practical effect on the accused to rebut a statutory reverse onus. This effect is not minimal considering the significant penalties involved; the severe imbalance of power between the state and the accused; and the obvious risks for an accused associated with an unfair trial. Despite the vastly different international legal landscape which allows specific statutory mechanisms to either strike out or modify reverse onus provisions, the seriousness of the drug or terrorism offence does not justify departure from the fundamental principle of the presumption of innocence. To do so turns the presumption of innocence into a presumption of guilt. In the absence of an enforceable bill of rights at the federal level, and in the face of unchecked government and parliamentary power, High Court jurisprudence has developed the rights-protective separation of judicial power and incompatibility doctrines under Chapter III of the Constitution of which the presumption of innocence is axiomatic. However, as traditional judicial power continues to be undermined, which these Criminal Code reverse onus provisions do, the presumption of innocence should not solely depend on the legislative wisdom of elected parliamentary representatives but be subject to stricter scrutiny by the protective, albeit limited, powers afforded under Chapter III of the Constitution.

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