Laying Down the Law, 11th Edition [11 ed.] 9780409351934

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Laying Down the Law

Copyright © 2020. LexisNexis Butterworths. All rights reserved.

Eleventh edition

Creyke, Robin, et al. Laying down the Law, LexisNexis Butterworths, 2020. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/monash/detail.action?docID=6413182. Created from monash on 2021-02-01 22:26:48.

Contents Preface Table of Cases Table of Statutes Table of Exercises

Part 1: Introduction Chapter 1: Laying the Foundations Introduction Why study law Legal systems The civil law The common law Categories of law Technical language

xiii xvii xxix xliii

1 3 5 6 6 9 10 13 14

Copyright © 2020. LexisNexis Butterworths. All rights reserved.

Chapter 2: The Origins and Historical Development of the Australian Legal System 17 Introduction Roots of English law Reform of court procedure in the 19th century Foundations of modern constitutionalism The foundation of the Australian legal system Evolution of an independent legislature Development of judicial independence Continuing connection with English law The path to constitutional independence

Chapter 3: The Australian Legal System Introduction Origins and institutions Key constitutional principles Australian legal institutions

20 21 28 29 36 40 42 44 46

53 55 55 57 60

Creyke, Robin, et al. Laying down the Law, LexisNexis Butterworths, 2020. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/monash/detail.action?docID=6413182. Created from monash on 2021-02-01 22:27:08.

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LAYING DOWN THE LAW

International law Human rights law in Australia

67 71

Chapter 4: First Nations Australians and the Australian Legal System 81 Introduction Native title First Nations Australians and the criminal justice system Northern Territory Intervention First Nations Australians and the Australian Constitution

Chapter 5: The Legal Profession and Professional Legal Practice and Ethics

83 83 93 105 111

119

Introduction Legal profession Understanding and practising law Professional conduct Ethics Conclusion

Copyright © 2020. LexisNexis Butterworths. All rights reserved.

Chapter 6: Going to Law: Legal Dispute Resolution Processes

122 122 125 131 136 142

145

Introduction Overview of legal process The adversarial trial Finality and appeals Costs, delays and access to justice Distinction between matters of fact and matters of law

147 147 151 156 161 169

Part 2: Sources of Law: Case Law

173

Chapter 7: Case Law and Precedent

175

Introduction Reading and analysing a case Doctrine of precedent or stare decisis Judicial law-making Law reporting

Chapter 8: Precedent in Australian Courts

177 179 193 218 228

233

Introduction The High Court of Australia Other Australian courts Court hierarchies in the federal system

vi

Creyke, Robin, et al. Laying down the Law, LexisNexis Butterworths, 2020. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/monash/detail.action?docID=6413182. Created from monash on 2021-02-01 22:27:08.

235 235 244 251

CONTENTS

Overview of the doctrine of precedent in Australian courts Issues on the margins of the doctrine of precedent

266 266

Part 3: Sources of Law: Legislation

283

Chapter 9: Legislation Introduction Historical development Terminology Differences between legislation and case law Legislation takes precedence over case law Making statutes The legislative process Financial scrutiny of legislation Legislation: frequently asked questions Commencement of statutes Amendment and repeal of statutes Formal structure of a statute Legislative dictionaries — interpretation statutes Drafting statutes Different types of statutes Particular forms of legislation in the Australian territories Delegated legislation

Copyright © 2020. LexisNexis Butterworths. All rights reserved.

Chapter 10: Approaches to Interpretation of Legislation Introduction Summary of principles The goal of interpretation Common law approaches Purposive approach under legislation Context: the modern approach to interpretation

Chapter 11: Extrinsic Aids to Interpretation of Legislation Introduction Summary of principles Use of extrinsic materials at common law Use of extrinsic materials under statute

Chapter 12: Interpretation of Legislation in Context Introduction Summary of principles

285 289 289 290 290 292 293 293 295 296 296 302 305 316 320 322 326 328

337 339 341 342 342 351 356

365 367 367 368 374

385 387 387

Creyke, Robin, et al. Laying down the Law, LexisNexis Butterworths, 2020. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/monash/detail.action?docID=6413182. Created from monash on 2021-02-01 22:27:08.

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LAYING DOWN THE LAW

Interpretation with reference to accompanying words Interpretation with reference to punctuation All words are assumed to carry meaning Interpretation with reference to other parts of the legislation Consistent use of words is assumed Express mention of something may draw attention to the intended absence of something else General provisions do not override specific provisions Interpretation legislation Dictionaries may be consulted Words should be interpreted in accordance with their current meaning Provisions may be interpreted with reference to other legislation Provisions may be interpreted with reference to the audience Provisions may be interpreted with reference to prior or existing law

388 390 391 392 399 399 401 401 402 402 403 405 406

Chapter 13: Presumptions Used in the Interpretation of Legislation 413

Copyright © 2020. LexisNexis Butterworths. All rights reserved.

Introduction Summary of principles Presumptions of interpretation and a common law Bill of Rights Presumption that Parliament does not interfere with common law rights Presumption that statutes do not operate retrospectively Presumption that Parliament does not abrogate the privilege against self-incrimination Presumption that Parliament does not abrogate legal professional privilege Presumption that Parliament does not deprive people of access to the courts Presumption that penal provisions are construed strictly and beneficial provisions construed broadly Presumption that property rights are not taken away without compensation Presumption that re-enactment constitutes approval of previous judicial interpretation Presumption that legislation does not bind the Crown Presumption that legislation does not have extraterritorial effect Presumption that Parliament intends to legislate in conformity with international law

Chapter 14: Statutory Obligations and Discretions

415 415 416 419 424 427 428 429 429 430 432 434 435 436

441

Introduction Summary of principles How to determine whether a provision is obligatory or discretionary How to determine whether breach produces invalidity

Chapter 15: Applying Legislation to Complex Problems

443 443 444 448

455

Introduction

viii

Creyke, Robin, et al. Laying down the Law, LexisNexis Butterworths, 2020. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/monash/detail.action?docID=6413182. Created from monash on 2021-02-01 22:27:08.

457

CONTENTS

Practical guide to interpretation of legislation Interpreting the Wild Dog Destruction Act: question and answer

Part 4: Legal Research Chapter 16: Legal Research — Approaches and Steps Introduction Why legal research skills are important Goals and constraints Strategic approach to legal research Finding sources of legal information Legal research exercises

Chapter 17: Searching for Secondary Sources Introduction Strategies and steps Online legal research Textbooks Legal dictionaries Legal encyclopedias Journal articles Other sources of commentary

Copyright © 2020. LexisNexis Butterworths. All rights reserved.

Chapter 18: Searching for Case Law Introduction Researching case law: key tasks Researching case law: how to perform the key tasks Finding case law on a particular subject: principal research tools Finding case citations Finding full - text judgments Finding judicial consideration of cases Finding cases referring to specific legislation Finding cases defining legal words and phrases Finding case notes Guide to using CaseBase Guide to using FirstPoint

Chapter 19: Searching for Legislation Introduction Acts and delegated legislation Finding known Acts and delegated legislation

457 458

465 467 469 469 470 471 478 479

485 487 487 488 495 495 496 498 501

505 508 508 512 513 517 518 519 520 520 521 521 522

525 527 528 528

Creyke, Robin, et al. Laying down the Law, LexisNexis Butterworths, 2020. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/monash/detail.action?docID=6413182. Created from monash on 2021-02-01 22:27:08.

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LAYING DOWN THE LAW

Tracking the history of Acts and delegated legislation How to use the Federal Register of Legislation Finding legislation by topic Finding judicial consideration of legislation Finding commentary about legislation Finding extrinsic materials How to use the Parliament of Australia: Bills and Legislation website (F)

Part 5: Legal Writing, Study and Exam Skills Chapter 20: Legal Writing

531 531 533 534 535 535 537

541 543

Introduction General principles of good legal writing Specific principles of good legal writing Writing conventions Legal essay writing

Chapter 21: Referencing and Citation

545 547 552 557 560

565

Copyright © 2020. LexisNexis Butterworths. All rights reserved.

Introduction Conventions in legal citation What sources should be referenced and when? Subsequent references Citing cases Citing statutes Citing books Citing legal journals Citing newspapers, magazines and non-legal periodicals Citing material from the internet Citing parliamentary and government material Citing foreign material

Chapter 22: Study and Exam Skills

568 569 569 571 572 578 581 582 583 584 584 585

587

Introduction What are study skills? Organising study time Reading efficiently Taking notes and making the most of lectures Participating in seminars and tutorials Engaging outside of the classroom Finding the right study methods Critical thinking

x

Creyke, Robin, et al. Laying down the Law, LexisNexis Butterworths, 2020. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/monash/detail.action?docID=6413182. Created from monash on 2021-02-01 22:27:08.

589 590 590 591 591 592 593 594 595

CONTENTS

What are exam skills? Exam preparation In the examination

Part 6: The Essential Legal Toolkit A. Court Hierarchies Federal hierarchy State courts and tribunals Territory courts and tribunals British courts and tribunals Canadian courts and tribunals New Zealand courts and tribunals US courts and tribunals

607 609 609 612 616 617 618 619 620

B. Abbreviations of Commonly Used Law Reports

622

C. A Guide to Law Reports of Courts

625

Australian report series English report series Canadian report series New Zealand report series United States report series International report series

Copyright © 2020. LexisNexis Butterworths. All rights reserved.

597 597 601

625 628 629 629 630 630

D. Common Legal Abbreviations

631

E. Commonly Misspelt or Misused Words

635

F. Glossary

636

Index

643

Creyke, Robin, et al. Laying down the Law, LexisNexis Butterworths, 2020. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/monash/detail.action?docID=6413182. Created from monash on 2021-02-01 22:27:08.

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Preface The year 2020 marks the 35th year since the first publication of Laying Down the Law, now in its 11th edition. The longevity of this introductory law text is testament to a number of its features. Primary among these is the understanding its readers gain of the legal system in Australia. The law is a pillar of a civilised society; it shapes and is shaped by the society in which it operates and is, in turn, a product of its history and its institutions. In Australia, that inheritance comprised a common law legal system and a democratic and parliamentary system of government. The inherited law and those political and legal institutions, developed over a millennium, needed adaptation to this land, some 20,000 kilometres from the model of law and government in 18th-century Britain. Laying Down the Law charts the evolution of those changes since European settlement and the gradual reconciliation of that introduced system with the existing legal and cultural systems of Australia’s indigenous peoples. From these beginnings emerged a federal system of parliaments and executive government to make laws, the establishment of a multi-tiered system of courts and tribunals to interpret and apply those laws, and a complex and sophisticated regulatory system to develop standards and maintain a watchful eye over the operations of its institutions. Laying Down the Law provides a succinct account of that history and of those institutions. From its inception, the text has taken account of the need to efficiently introduce students of law to the knowledge and the skills needed to navigate their legal studies.This involves inculcating key substantive and procedural principles of the common law system, such as the doctrine of precedent which ensures consistency within the hierarchy of Australian courts, and to the processes that protect the less advantaged within the criminal justice system. The text also includes exercises to enable students to test their knowledge and to practise the skills they are taught. The law’s edicts are imposed through words. The meanings of words are not immutable and change with context and as societies change. For this reason, Laying Down the Law gives prominence to the principles developed by courts and tribunals for the interpretation of words encountered in legislation and other documents. A student of law needs to understand this background and appreciate that subtlety of language in order to choose an appropriate meaning in the context of the legal problem they face. Elucidating meaning and understanding context entails good research skills. The text is fortunate to have among its authors professional librarians trained to share those skills. In particular, Patrick O’Mara contributed the research chapters which are a feature of the text, with the invaluable assistance of Lesley Adukonu, Law Liaison Librarian at the Australian Catholic University.

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Other features contributing to the value of this text are the continuing support and enthusiasm shown by those involved in its production. That support has been maintained during the decades by its publisher, LexisNexis, from its long-standing and dedicated commissioning editor, Jocelyn Holmes, and the skilful editing and insightful suggestions for improvement by its editor, Linda Nix. Together with the input of the authors, they ensure that Laying Down the Law accurately represents current law, and remains relevant to the law as it applies within Australia. This edition marks another milestone with the departure of Robin Creyke, the only remaining author from those involved in the first and earlier editions. Under the able and enthusiastic input of the authorial team, the text will continue to instil those skills and understandings of the law that will provide guidance to its readers during their law studies and thereafter, whether they join the legal profession or find other callings or occupations. We trust that gaining this knowledge and skills will develop our readers’ judgement, and enable them to become contributing and valued members of the society in which they live.

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Robin Creyke David Hamer Patrick O’Mara Belinda Smith Tristan Taylor

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Introduction

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LAYING DOWN THE LAW

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Table of Cases References are to paragraph numbers

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1412960 (Migration), Re [2016] AATA 4193 …. 8.69 A A v Boulton (2004) 136 FCR 420 …. 13.19 Abdi v Release on Licence Board (1987) 10 NSWLR 294 …. 12.35 Abebe v Commonwealth (1999) 197 CLR 510 …. 2.65 Adler v George [1964] 2 QB 7 …. 10.13 AGS [2015] QCATA 189 …. 8.66 AJ v Western Australia (2007) 177 A Crim R 247 …. 21.19 Akiba v Commonwealth (2013) 250 CLR 209 …. 4.10, 4.12, 4.13, 4.15 Alberts v Pethick (Appeal No 19 of 1976) …. 7.12 Alcan Australia Ltd, Re; Ex parte Federation of Industrial Manufacturing and Engineering Employees (1994) 181 CLR 96 …. 13.28 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 …. 10.6, 10.8, 10.21, 11.17, 11.18, 13.22 Alcoa Portland Aluminium Pty Ltd v Victorian WorkCover Authority (2007) 18 VR 146 …. 11.29 Alfonso v Northern Territory (1999) 13 NTR 8 …. 12.33 Algama v Minister for Immigration and Multicultural Affairs (2001) 115 FCR 253 …. 8.55 Al-Kateb v Godwin (2004) 219 CLR 562 …. 12.39, 13.1, 13.10 Alqudsi v The Queen (2016) 258 CLR 203 …. 8.11, 8.12 Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 …. 10.6, 10.8, 12.11, 12.12, 21.22 Amatek Ltd v Googoorewon Pty Ltd (1993) 176 CLR 471 …. 12.14 Anglican Care v NSW Nurses and Midwives Association (2015) 231 FCR 316 …. 10.20 Antico v Heath Fielding Australia Pty Limited (1997) 188 CLR 652 …. 8.25 Anti-Doping Rule Violation Panel v XZTT (2013) 214 FCR 40 …. 12.16 Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 …. 11.10

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Application of Holland [2008] NSWSC 251 …. 6.35 Applications of Shephard, Re [1983] 1 NSWLR 96 …. 9.38 Ashford v Thornton (1819) 1 B & Ald 405; 106 ER 149 …. 2.17 Attorney-General v Prince Ernest Augustus of Hanover [1957] AC 436 …. 11.12, 12.15 — v Sillem (1864) 10 HLC 704; 11 ER 1200 …. 13.16 Attorney-General, Ex parte; Truth & Sportsman Ltd, Re [1961] SR (NSW) 484 …. 7.30, 7.31 Attorney-General (NSW) v Brewery Employés Union of New South Wales (1908) 6 CLR 469 …. 12.38 — v Mundey [1972] 2 NSWLR 887 …. 7.30 — v XX (2018) 274 A Crim R 30 …. 6.31 Attorney-General (NT) v Hand (1989) 25 FCR 345 …. 4.49 Attorney General of New South Wales v Melco Resorts & Entertainment Ltd [2020] NSWCA 40 …. 11.18 Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd (1987) 10 NSWLR 86 …. 5.31 Austin v Keele (1987) 61 ALJR 605 …. 2.75 Australian Capital Television v Commonwealth (1992) 177 CLR 106 …. 3.45 Australian Communist Party v Commonwealth (1951) 83 CLR 1 …. 3.6, 3.47 Australian Education Union v Department of Education and Children’s Services (2012) 248 CLR 1 …. 10.21, 11.24 — v General Manager of Fair Work Australia (2012) 246 CLR 117 …. 9.31 Australian Federation of Construction Contractors, Re; Ex parte Billing (1986) 68 ALR 416 …. 11.21 Australian Oil Refining Pty Ltd v Caltex Oil (Australia) Pty Ltd (Supreme Court of New South Wales,Yeldham J, 26 September 1986) …. 8.79 Australian Postal Corporation v Sinnaiah (2013) 213 FCR 448 …. 10.21 Australian Prudential Regulation Authority v Holloway (2000) 104 FCR 521 …. 12.18

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Australian Safeway Stores v Zaluzna (1987) 162 CLR 479 …. 7.61 Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 …. 8.43, 8.45, 8.47, 8.50, 9.70, 12.35 Australian Steel Company (Operations) Pty Ltd v Lewis (2000) 109 FCR 33 …. 8.22 Avel Pty Ltd v Attorney-General (NSW) (1987) 11 NSWLR 126 …. 10.15, 10.21 Awada v Linkarf Ltd (in liq) (2002) 55 NSWLR 745 …. 12.18 AZAFX v Federal Circuit Court of Australia (2016) 244 FCR 401 …. 8.19

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B B, Re [1981] 2 NSWLR 372 …. 5.19 Babaniaris v Lutony Fashions Pty Ltd (1987) 163 CLR 1 …. 8.7, 8.56, 8.65 Baini v the Queen (2012) 246 CLR 469 …. 13.27 Baker v The Queen [1975] AC 774 …. 8.55 Banjima People v Western Australia (2015) 231 FCR 456 …. 4.11 Bank Line v Capel [1919] AC 435 …. 7.50 Barclay v Penberthy (2012) 246 CLR 258 …. 8.80 Barker v The Queen (1983) 153 CLR 338 …. 11.6 Barns v Barns (2003) 214 CLR 169 …. 8.77 Barrell, Ex parte (1875) LR 10 Ch 512 …. 7.50 Barry R Liggins Pty Ltd v Comptroller-General of Customs (1991) 32 FCR 112 …. 11.30 Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 …. 12.25 Battaglini v Interfren Pty Ltd (1989) 16 NSWLR 378 …. 13.21 Beaudesert Shire Council v Smith (1966) 120 CLR 145 …. 7.61 Beckwith v The Queen (1976) 135 CLR 569 …. 13.21 Bell Lawyers Pty Ltd v Pentelow (2019) 372 ALR 555 …. 7.25 Bennell v Western Australia (2006) 153 FCR 120; 230 ALR 603 …. 4.19 Bermingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292 …. 10.30, 10.31, 10.32, 10.33 BHP Billiton Iron Ore Pty Ltd v National Competition Council (2009) 162 FCR 234 …. 8.52, 8.56 Binskin v Kangaroo Transport Pty Ltd (Supreme Court of New South Wales, Maxwell J, 22 May 1990) …. 8.62 Birch v Allen (1942) 65 CLR 621 …. 12.13 Bodney v Bennell (2008) 167 FCR 84 …. 4.11, 4.19 Bolton, Re; Ex parte Beane (1987) 162 CLR 514 …. 11.24 Booth v Federal Commissioner of Taxation (1986) 86 ATC 4049 …. 12.27 Bowtell v Goldsbrough, Mort & Co Ltd (1905) 3 CLR 444 …. 12.15

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Bradley v Commonwealth (1973) 128 CLR 557 …. 12.20 Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 …. 9.10 Brennan v Comcare (1994) 50 FCR 555 …. 11.23 Briginshaw v Briginshaw (1938) 60 CLR 336 …. 6.28 Broadbridge v Stammers (1987) 16 FCR 296 …. 14.9 Brodie v Singleton Shire Council (2001) 206 CLR 512 …. 7.61, 8.5 Brooks v Federal Commissioner of Taxation (2000) 100 FCR 117 …. 12.22 Bropho v Western Australia (1990) 171 CLR 1 …. 13.11, 13.32, 13.33 Brunner v Greenslade [1971] Ch 993 …. 7.47, 7.52 Buckle v Bayswater Road Board (1936) 57 CLR 259 …. 7.61, 8.5 Bugmy v The Queen (2013) 249 CLR 571 …. 4.35, 4.50 Building Construction Employees and Builders’ Labourers Federation of New South Wales v Minister for Industrial Relations (1986) 7 NSWLR 372 …. 3.27 Burch v South Australia (1998) 71 SASR 12 …. 8.71, 10.24 Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 …. 7.61 Burns v Corbett (2018) 92 ALJR 423 …. 3.26 C Cakmak v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 135 FCR 183 …. 8.28 CAL No 14 Pty Ltd v Motor Accidents Insurance Board (2009) 239 CLR 390 …. 8.42, 8.43 Calder v Boyne Smelters Ltd [1991] 1 Qd R 325 …. 8.22 Carlill v Carbolic Smoke Ball Co [1893] 1 QB 256 …. 21.18 Carr v Western Australia (2007) 232 CLR 138 …. 10.21, 10.32 Case of Proclamations (1611) 12 Co Rep 74; 77 ER 1352 …. 2.37 Case of Prohibitions del Roy (1607) 12 Co Rep 63; 77 ER 1342 …. 2.37 Case of Ship Money (1637) 3 How St Tr 825 …. 2.39, 2.41 Casey v Alcock (2009) 165 ACTR 1 …. 10.22 Cattanach v Melchior (2003) 215 CLR 1 …. 7.55, 7.61 Caughey v Spacek [1968] VR 600 …. 7.12 Cavalier v Pope [1906] AC 428 …. 7.34, 8.88 Central London Property Trust Ltd v High Trees House Ltd [1947] KB 130 …. 7.51 Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378 …. 11.19 CES v Super Clinics (Australia) Pty Ltd (1995) 38 NSWLR 47 …. 7.40 B =E I C I

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TABLE OF CASES

Chamberlain v The Queen (1983) 72 FLR 1 …. 8.28 Chandler v Webster [1904] 1 KB 493 …. 7.50 Chester v Council of the Municipality of Waverley (1939) 62 CLR 1 …. 7.44 Chew v The Queen (1992) 173 CLR 626 …. 13.21, 15.3 Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (2001) 188 ALR 493 …. 21.15 Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 …. 13.36 Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 …. 10.18 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 …. 10.26, 10.28, 11.12, 11.13, 11.15, 11.16, 11.17, 11.18, 11.19, 12.2, 12.18, 12.39 Clutha Developments Pty Ltd v Barry (1989) 18 NSWLR 86 …. 8.22 Clyne v East (1967) 68 SR (NSW) 385 …. 3.27 Coco v The Queen (1994) 179 CLR 427 …. 13.11, 13.18, 13.24 Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 …. 6.53 Coffs Harbour and District Local Aboriginal Land Council v Lynwood [2017] NSWCA 317 …. 14.6 Coggs v Barnard (1703) 2 Ld Raym 909; 92 ER 107 …. 7 (n 1) Cohen v Sellar [1926] 1 KB 536 …. 7.50, 16.9, 16.13 Cole v South Tweed Heads Rugby League Football Club Ltd (2002) 55 NSWLR 113 …. 8.42 — v — (2004) 217 CLR 469 …. 8.42, 18.40 — v Whitfield (1988) 165 CLR 360 …. 11.7 Coleman v Power (2004) 220 CLR 1 …. 7.25, 13.36 Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389; [1996] HCA 36 …. 6.56, 6.57, 6.58, 10.32, 12.37 — v Pozzolanic (1993) 43 FCR 280 …. 6.57, 6.58 Collins, Re; Ex parte Hockings (1989) 167 CLR 522 …. 12.9 Colquhoun v Brooks (1888) 21 QBD 52 …. 12.25 Commercial Banking Co of Sydney Ltd v Federal Commissioner of Taxation (1983) 14 ATR 142 …. 8.44 Commissioner for Prices and Consumer Affairs (SA) v Charles Moore (Aust) Pty Ltd (1977) 139 CLR 449 …. 11.5 Commissioner of Australian Federal Police v Curran (1984) 3 FCR 240 …. 11.21 Commissioner of Police, NSW Police Force v Lee [2016] NSWCATAP 234 …. 8.66

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Commissioner of Stamp Duties v Permanent Trustee Co Ltd (1987) 9 NSWLR 719 …. 12.34 Commissioner of State Revenue v EHL Burgess Properties Pty Ltd [2015] VSCA 269 …. 10.28 Commissioner of Taxation (Cth) v Whitfords Beach Pty Ltd (1982) 150 CLR 355 …. 11.5 Commonwealth v Australian Capital Territory (2013) 250 CLR 441 …. 3.20, 9.9 — v Baume (1905) 2 CLR 405 …. 12.10 — v Hospital Contribution Fund (1982) 150 CLR 49 …. 8.3, 8.7 — v Tasmania (1983) 158 CLR 1 …. 3.6, 3.36, 4.60, 21.22 — v Verwayen (1990) 170 CLR 394 …. 5.33 — v Western Australia (1999) 196 CLR 392 …. 21.25 — v Yarmirr (2001) 208 CLR 1 …. 2.1 Commonwealth Bank of Australia v Paola [2005] FCA 855 …. 7.26 Conigrave v Tanner [1978] WAR 225 …. 12.9 Construction, Forestry, Mining and Energy Union v Hodgkiss (2007) 169 FCR 151 …. 12.26 Cook v Cook (1986) 162 CLR 376 …. 7.61, 8.6, 8.80, 8.83, 8.88, 8.89 Cooper v Stuart (1889) 14 App Cas 286 …. 2.57, 4.3 Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 …. 10.25, 11.12 Crafter v Kelly [1941] SASR 237 …. 13.18 Crampton v The Queen (2000) 206 CLR 161 …. 6.29, 6.30 CSR Ltd v Eddy (2005) 226 CLR 1 …. 7.25, 8.53 CTM v The Queen (2008) 236 CLR 440 …. 7.48 Culleton, Re [2017] HCA 3 …. 21.25 Curran v Federal Commissioner of Taxation (1974) 131 CLR 409 …. 8.7, 8.8 D D & R Henderson (Mfg) Pty Ltd v Collector of Customs for New South Wales (1974) 48 ALJR 132 …. 11.9 Daly v Thiering (2013) 249 CLR 381 …. 13.13 Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 …. 13.19 Darkinjung Pty Ltd v Darkinjung Local Aboriginal Land Council [2006] NSWSC 1217 …. 7.52 Department of Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469 …. 8.21 Deputy Commissioner of Taxation v Clark (2003) 57 NSWLR 113 …. 12.5, 12.7, 12.31, 12.39 — v Dick (2007) 226 FLR 388 …. 12.5 — v Levick (1999) 168 ALR 383 …. 6.40 DG and the Adoption Act 2000, Re (2007) 244 ALR 195 …. 10.31 Dickenson’s Arcade Pty Ltd v Tasmania (1974) 130 CLR 177 …. 7.34 B 0=E I C

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31,

xix

LAYING DOWN THE LAW

Dietrich v The Queen (1992) 177 CLR 292 …. 3.45, 5.9, 6.20, 6.26, 6.39 Director General Department of Land and Water Conservation v Bailey (2003) 136 LGERA 242 …. 6.58 Director of Public Prosecutions v Chatters (2011) 21 Tas R 26 …. 8.49 — v Smith [1961] AC 290 …. 8.86 Director of Public Prosecutions (Cth) v Saxon (1992) 28 NSWLR 263 …. 5.32 Director of Public Prosecutions for Northern Ireland v Lynch [1975] AC 653 …. 8.89 Director of Public Prosecutions (Vic) v Ali (2009) 23 VR 203 …. 10.20 — v Leys (2012) 44 VR 1 …. 10.9, 10.26, 10.30, 10.31, 10.32, 10.33, 10.34 — v Patrick Stevedores Holdings Pty Ltd (2012) 41 VR 81 …. 8.56 Donoghue v Stevenson [1932] AC 562 …. 2.59, 7.4, 7.5, 7.27, 7.61, 8.84, 8.88, 20.37, 21.17 D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 …. 2.59, 8.89 Dr Bonham’s Case (1610) 8 Co Rep 107a; 77 ER 638 …. 2.38 Dugan v Mirror Newspapers Ltd (1979) 142 CLR 583 …. 12.20 Duke v Reliance Systems Ltd [1987] 2 All ER 858 …. 8.53 Dunkerley v Comcare [2020] FCAFC 8 …. 5.36 Dupas v The Queen (2012) 40 VR 182 …. 8.38, 8.58 Durham Holdings Pty Ltd v New South Wales (1999) 47 NSWLR 340 …. 13.7, 13.25 — v — (2001) 205 CLR 399 …. 13.25 Dutton v O’Shane [2002] NSWSC 1086 …. 8.40

0

PIA?

Q

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E Earl of Oxford’s Case, The (1615) 1 Ch Rep 1; 21 ER 485 …. 2.21 East End Real Estate Pty Limited v CE Heath Casualty & General Insurance Limited (1991) 25 NSWLR 400 …. 8.25 Eastman v Director of Public Prosecutions (ACT) [No 2] [2014] ACTSCFC 2 …. 6.33 Einfeld v HIH Casualty and General Insurance Ltd (1999) 152 FLR 211 …. 8.25, 8.34, 8.38, 8.60 El Greco (Australia) Pty Ltd v Mediterranean Shipping Co SA (2004) 140 FCR 296 …. 11.9 Electrolux Home Products Pty Ltd v Australian Workers’ Union (2004) 221 CLR 309 …. 13.13 Elias v The Queen (2013) 248 CLR 483 …. 4.35 Empire Waste Pty Ltd v District Court of New South Wales (2013) 86 NSWLR 142 …. 11.24 Endeavour Foundation v Weaver [2014] QCA 6 …. 21.16 Entick v Carrington (1765) 2 Wils 275 …. 13.11 Enzed Holdings Pty Ltd v Wynthea Pty Ltd (1984) 4 FCR 450 …. 11.9

xx

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Eslea Holdings Ltd v Butts (1986) 6 NSWLR 175 …. 7.47 Esmonds Motors Pty Ltd v Commonwealth (1970) 120 CLR 463 …. 9.80 Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49 …. 8.4, 8.74 Evatt v Mutual Life & Citizens Assurance Co Ltd (No 1) (1967) 69 SR (NSW) 50 …. 21.29 Evda Nominees Pty Ltd v Victoria (1984) 154 CLR 311 …. 8.2 F F v R (1983) 33 SASR 189 …. 21.21 F, BV v Magistrates Court of South Australia (2013) 115 SASR 232 …. 10.20 Fagan v New South Wales [2004] NSWCA 182 …. 13.19 FAI General Insurance Company Ltd v Perry (1993) 30 NSWLR 89 …. 8.25 — v Australian Hospital Care Pty Ltd (1999) 153 FLR 448 …. 8.25 Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union [2019] FCAFC 69 …. 10.20 Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 …. 7.52, 7.60, 8.35, 8.42, 8.43, 8.45, 8.46, 8.47, 8.50, 8.59 Federal Commissioner of Taxation v Salenger (1988) 19 FCR 378 …. 8.68 Federal Deputy Commissioner of Taxation v Clear Blue Developments Pty Ltd (No 2) (2010) 190 FCR 11 …. 5.36 Fencott v Muller (1983) 152 CLR 570 …. 8.32 Fernando v Commissioner of Police (1995) 36 NSWLR 567 …. 8.41 Field v Gent (1996) 67 SASR 123 …. 12.6 Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106 …. 14.7 Fish v Solution 6 Holdings Ltd (2006) 225 CLR 180 …. 13.20 Fisher v Bell [1961] 1 QB 394 …. 12.38, 12.39, 12.41 Flaherty v Girgis (1987) 162 CLR 574 …. 13.28 Fleming v The Queen (1998) 197 CLR 250 …. 6.29 Folbigg v The Queen [2007] NSWCCA 128 …. 6.30 Footscray City College v Ruzicka (2007) 16 VR 498 …. 10.11 Fordham v Brideson [1986] VR 587 …. 12.29 Foster, Re (1950) 50 SR (NSW) 149 …. 5.28 Frauenfelder v Reid (1963) 109 CLR 42 …. 12.20 G Gamser v Nominal Defendant (1977) 136 CLR 145 …. 6.30 Ganchov and Comcare, Re (1990) 11 AAR 468 …. 8.67 B =E I C I

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31,

TABLE OF CASES

0

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Q

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Gardenal-Williams v The Queen [1989] Tas R 62 …. 8.22 Gaynor v Attorney-General (NSW) [2020] NSWCA 48 …. 3.26, 6.43 Geelong Harbour Trust Commissioners v Gibbs Bright & Co (1974) 129 CLR 576 …. 13.28 General Merchandise and Apparel Group P/L and CEO of Customs and Australian Weaving (Party joined), Re (2009) 114 ALD 289; [2009] AATA 988 …. 5.34 Gerhardy v Brown (1985) 159 CLR 70 …. 4.55 Gett v Tabet (2009) 254 ALR 504 …. 8.56 Geyer v Downs (1977) 138 CLR 91 …. 18.40 Ghaidan v Godin-Mendoza [2004] 2 AC 557 …. 3.58 Giannarelli v Wraith (1988) 165 CLR 543 …. 5.38 Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269 …. 13.13 Gilham v The Queen [2012] NSWCCA 131 …. 5.52 Goodwin v Phillips (1908) 7 CLR 1 …. 9.38 Gorringe v Transport Commission (Tas) (1950) 80 CLR 357 …. 7.61, 8.5 Gould v Brown (1998) 193 CLR 346 …. 7.42 Governor, Goulburn Correctional Centre, Re; Ex parte Eastman (1999) 200 CLR 322 …. 8.11 Grant v Downs (1976) 135 CLR 674 …. 8.4 Greentree v FAI General Insurance Co Limited (1998) 44 NSWLR 706 …. 8.25 Grey v Pearson (1857) 6 HL Cas 61; 10 ER 1216 …. 10.11, 10.35 Grigby v Oakes (1801) 2 Bos & Pul 526 …. 19 (n 1) Groenvelt v Burwell (1700) 1 Salk 144; 91 ER 134 …. 21.28 Gumana v Northern Territory (2007) 158 FCR 349 …. 13.13 H Ha v New South Wales (1997) 189 CLR 465 …. 8.16, 9.10 Hagan v Trustees of Toowoomba Sports Ground Trust [2000] FCA 1615 …. 12.18 Halliday v Nevill (1984) 155 CLR 1 …. 13.11 Halvorsen v Baumgartner [2014] WADC 129 …. 15.6 Hamilton Island Enterprises Pty Ltd v Commissioner of Taxation [1982] 1 NSWLR 113 …. 8.43 Harrison v Melhem (2008) 72 NSWLR 380 …. 8.22, 8.48, 10.21, 11.22, 11.24, 12.33, 13.13 — v Schipp (2002) 54 NSWLR 612 …. 6.29 Harriton v Stephens (2006) 226 CLR 52 …. 7.55, 7.61, 18.40 Hart v Rankin [1979] WAR 144 …. 7.8, 7.12, 21.19 Haurelink v Furler (2012) 6 ACTLR 151 …. 10.22 Hawi v The Queen [2014] NSWCCA 83 …. 6.21

0I=PB= 8 :AE = C 4 PAE? 0I= = I D D E E

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2:

Hawkins v Clayton (1986) 5 NSWLR 109 …. 8.79, 8.81 Hayes v Federal Commissioner of Taxation (1956) 96 CLR 47 …. 12.38 Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465 …. 7.51 Helljay Investments Pty Ltd v Deputy Commissioner of Taxation (1999) 166 ALR 302 …. 6.40 Herbert Adams Pty Ltd v Federal Commissioner of Taxation (1932) 47 CLR 222 …. 12.37 Heydon’s Case (1584) 3 Co Rep 7a; 76 ER 637 …. 10.14, 10.17 Higgon v O’Dea [1962] WAR 140 …. 10.10, 10.13, 10.35 HIH Casualty and General Insurance Australia Limited v Dellavedova (1999) 10 ANZ Insurance Cases ¶61-431 …. 8.25 Hilton v Wells (1985) 157 CLR 57 …. 3.26 Horne v Chester and Fein Property Developments Pty Ltd [1987] VR 913 …. 8.89 Hospital Employees Pharmacists (State) Award, Re [1979] AR (NSW) 348 …. 7.22 House of Lords, Practice Statement (Judicial Precedent) [1966] 1 WLR 1234 …. 8.20 Howard v Bodington (1877) 2 PD 203 …. 14.9 Howarth v Adey [1996] 2 VR 535 …. 21.15 Howe v Smith (1884) 27 Ch D 89 …. 7.50 Hull v Australian Postal Corporation (2013) 62 AAR 94 …. 8.66 Humphries v Poljak [1992] 2 VR 129 …. 11.29 Hunter Resources Ltd v Melville (1988) 164 CLR 234 …. 11.24 Huon Valley Springs Pty Ltd, Re [1986] Tas R 112 …. 21.20 I IL v The Queen (2017) 262 CLR 268 …. 6.55 Imbree v McNeilly (2008) 236 CLR 510 …. 7.61, 8.6, 8.60 IMM v The Queen (2016) 257 CLR 300 …. 8.38 Imperial Chemical Industries of Australia & New Zealand Ltd v Commissioner of Taxation (Cth) (1971) 46 ALJR 35 …. 12.31 Independent Commission Against Corruption v Cunneen (2015) 256 CLR 1 …. 10.28, 11.13, 11.14, 11.17 Informax International Pty Ltd v Clarius Group Ltd (2012) 207 FCR 298 …. 13.30 Inland Revenue Commissioners v Gittus [1920] 1 KB 563 …. 12.21 Isherwood v Butler Pollnow Pty Ltd (1986) 6 NSWLR 363 …. 10.28, 11.12 Iskra, Re; Ex parte Mercantile Trasnport Co Pty Ltd [1963] SR (NSW) 538 …. 13.34 J Jacobs v Davis [1917] 2 KB 532 …. 7.50 Jacobsen v Rogers (1995) 182 CLR 572 …. 13.32 B 0=E I C

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31,

xxi

LAYING DOWN THE LAW

James v Keogh (2008) 102 SASR 51 …. 10.31 Jeffreys v Lack 153 LT Newspaper 139 …. 7.50 Jemena Gas Networks (NSW) Ltd v Mine Subsidence Board (2011) 243 CLR 558 …. 13.25 John v Federal Commissioner of Taxation (1989) 166 CLR 417 …. 8.3, 8.4, 8.5, 8.6, 8.7, 8.8, 8.14, 8.60 Johnson v Dibbin [2018] NSWCATAP 45 …. 6.43, 8.65 Jones v Bartlett (2000) 205 CLR 166 …. 7.34, 8.88 — v National Coal Board [1957] 2 QB 55 …. 6.25 Joshua v Thomson (1994) 119 FLR 296 …. 4.42 Joyce v Paton (1941) 58 WN (NSW) 88 …. 12.20 JT International SA v Commonwealth (2012) 250 CLR 1 …. 13.26 Judiciary and Navigation Acts, Re (1921) 29 CLR 257 …. 21.22 Jumbunna Coal Mine NL v Victorian Coal Miners’ Association (1908) 6 CLR 309 …. 13.34

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Q

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I= =I =

K K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 …. 10.27, 11.12, 12.2, 12.14 Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 …. 3.15, 3.49 Kalls Enterprises Pty Ltd (In liq) v Baloglow (2006) 58 ACSR 63 …. 7.52 Karpany v Dietman (2013) 252 CLR 507 …. 4.40 Kartinyeri v Commonwealth (1998) 195 CLR 337 …. 4.60, 4.62, 11.8 Katherine Prygodicz v Commonwealth of Australia (Federal Court of Australia, Murphy J, VID1252/2019) …. 5.14 KDSP v Minister for Immigration, Citizenship and Migrant Services [2020] FCAFC 108 …. 12.19 Kelly, Estate of (1983) 34 SASR 370 …. 11.6 Kennedy v The Queen [2010] NSWCCA 260 …. 4.35 Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286 …. 8.71 Kenny v South Australia (1987) 46 SASR 268 …. 5.32 Keramaniakis v Wagstaff [2005] NSWDC 14 …. 8.19 Kernn v Verran (1989) 88 ALR 125 …. 12.33 K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501 …. 11.7 King v Rowlings [1987] VR 20 …. 10.13 King-Ansell v Police [1979] 2 NZLR 531 …. 12.30 Kioa v West (1985) 159 CLR 550 …. 18.40 Kirk v Industrial Relations Commission of NSW (2010) 239 CLR 531 …. 6.43, 13.20 Kirmani v Captain Cook Cruises Pty Ltd [No 2] (1985) 159 CLR 461 …. 8.78 Knight v Raddie [2013] QMC 15 …. 8.63

xxii

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Kontikis v Schreiner (1989) 16 NSWLR 706 …. 7.10, 7.11 Koowarta v Bjelke-Petersen (1982) 153 CLR 168 …. 11.9 Kotsambasis v Singapore Airlines Ltd (1997) 42 NSWLR 110 …. 11.9 KP Welding Construction Ltd v Herbert (1995) 102 NTR 20 …. 10.14 Krell v Henry [1903] 2 KB 740 …. 7.50 Kruger v Commonwealth (1997) 190 CLR 1 …. 3.46, 4.61 Krysiak v Housing Authority [2019] WADC 162 …. 15.6 L Lacey v Attorney-General (Qld) (2011) 242 CLR 573 …. 11.24 Lake Macquarie Shire Council v Aberdare County Council (1970) 123 CLR 327 …. 12.31 Lam v Steve Jarvin Motors Pty Ltd [2016] NSWCATAP 186 …. 8.65 Lane v Morrison (2009) 239 CLR 230 …. 21.15 Lange v Australian Broadcasting Tribunal (1997) 189 CLR 520 …. 3.24 Langley v Langley [1974] 1 NSWLR 46 …. 7.43 Latoudis v Casey (1990) 170 CLR 534 …. 6.13 Lee v NSW Crime Commission (2003) 251 CLR 196 …. 6.19 Leichhardt Municipal Council v Montgomery (2007) 230 CLR 22 …. 7.61 Lembecke v SAS Trustee Corporation (2003) 56 NSWLR 736 …. 11 (n 1) Life Savers (Australia) Ltd v Frigmobile Pty Ltd [1983] 1 NSWLR 431 …. 8.82 Lipohar v The Queen (1999) 200 CLR 485 …. 2.1, 8.35 Lister v Romford Ice and Cold Storage Co Ltd [1957] AC 555 …. 7.62 Littlejohn and Secretary, Department of Social Security, Re (1989) 10 AAR 220 …. 8.67 Lockyer v Simpson Mosely 298 …. 7.50 London Tramways Co v London County Council [1898] AC 375 …. 8.20 Love v Commonwealth; Thoms v Commonwealth (2020) 94 ALJR 198 …. 2.54, 4 (n 1), 4.26, 4.64, 4.68, 4.69 Lowe v The Queen (2015) 48 VR 351 …. 10.33, 10.34, 11.18 Lower and Comcare, Re (2003) 74 ALD 547 …. 7.47 Ludlam v Johnston [2014] HCA 1 …. 21.16 LVR (WA) Pty Ltd v Administrative Appeals Tribunal [2012] FCAFC 90 …. 5.37, 5.38 M Mabo v Queensland [No 2] (1992) 175 CLR 1 …. 3.38, 4.3, 4.4, 4.5, 4.6, 4.7, 4.8, 4.23, 4.24, 4.41, 4.64, 4.69, 7.63, 8.77, 17.15 Mackay v Dick (1881) 6 App Cas 251 …. 7.50 B =E I C I

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0

PIA?

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TABLE OF CASES

MacKinnon v The Iberia Shipping Co Ltd 1955 SC 20 …. 7.54 Magor and St Mellons Rural District Council v Newport Corporation [1952] AC 189 …. 12.39 Maisey, Marriage of (1980) 6 Fam LR 180 …. 8.30 Malika Holdings Pty Ltd v Stretton (2001) 204 CLR 290 …. 13.12, 13.13, 13.17 Mallard v The Queen (2005) 224 CLR 125 …. 5.50, 5.51 Maloney v The Queen (2013) 252 CLR 168 …. 4.47, 4.54, 4.55 Maritime Services Board of New South Wales v Posiden Navigation Inc [1982] 1 NSWLR 72 …. 10.17 Maritime Union of Australia v Minister for Immigration and Border Protection (2016) 259 CLR 431 …. 11.14 Maroondah City Council v Fletcher (2009) 169 LGERA 407 …. 12.10 Marshall v Director-General, Department of Transport (2001) 205 CLR 603 …. 8.48 Masters v McCubbery [1996] 1 VR 635 …. 11.29 Match Projects Pty Ltd and ARCCON (WA) Pty Ltd [2009] WASAT 134 …. 8.70 Matter of The Fourth South Melbourne Building Society (1883) 9 VLR (Eq) 54 …. 12.16 Maxwell v Murphy (1957) 96 CLR 261 …. 13.16 — v — (1959) 101 CLR 629 …. 9.31 McAuliffe v The Queen (1995) 183 CLR 108 …. 6.55 McBride v Monzie Pty Ltd (2007) 164 FCR 559 …. 7.47 McDonald and Secretary, Department of Family and Community Services, Re (2002) 70 ALD 761 …. 21.20 McGlade v Native Title Registrar [2017] FCAFC 10 …. 4.22 McGrath v Cooper [1976] VR 535 …. 7.12 McHale v Watson (1966) 115 CLR 199 …. 18.40 McLeod v The Queen [2017] UKPC 1 …. 2.76 McNamara v Consumer, Trader and Tenancy Tribunal (2005) 221 CLR 646 …. 8.8, 8.57 Melbourne Steamship Co Ltd v Moorehead (1912) 15 CLR 333 …. 5.27, 5.32, 5.50 Members of the Yorta Yorta Aboriginal Community v Victoria [1998] FCA 1606 …. 4.9 — v — (2001) 110 FCR 244 …. 4.9 — v — (2002) 214 CLR 422 …. 4.8, 4.9, 4.11, 4.14 Mid-City Skin Cancer and Laser Centre Pty Ltd v Zahedi-Anarak (2006) 67 NSWLR 569 …. 8.26 Miliangos v George Frank (Textiles) Ltd [1976] AC 443 …. 7.25, 8.53 Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 …. 4.3 Miller v Commonwealth (1904) 1 CLR 668 …. 10.20 — v Minister of Pensions [1947] 2 All ER 372 …. 6.28

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— v The Queen (2016) 259 CLR 380 …. 6.55 Mills v Meeking (1990) 169 CLR 214 …. 10.6, 10.14, 10.20 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 …. 21.23 Minister for Foreign Affairs and Trade v Magno (1992) 37 FCR 298 …. 11.9, 11.30 Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 …. 6.48 Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 …. 12.22, 13.36 Minister for Immigration and Multicultural Affairs, Re (2003) 201 ALR 437 …. 6.48 Minister for Mines (WA)/Taylor on behalf of the Njamal People/Mullan [1996] NNTTA 20 …. 4.19 Mitchell v Bailey (2008) 168 FCR 370 …. 10.21 MLC Assurance Co v Evatt [1971] AC 793 …. 21.29 Momcilovic v The Queen (2011) 245 CLR 1 …. 3.48, 3.59, 13.4 Montreal Street Railway Co v Normandin [1917] AC 170 …. 14.9 Moore v Moore [2008] FamCA 32 …. 8.29 Moorgate Tobacco Co Ltd v Philip Morris Ltd (1982) 64 FLR 387 …. 8.26 Morelle Ltd v Wakeling [1955] 2 QB 379 …. 8.53 Morrison v Peacock (2002) 210 CLR 274 …. 11.9 Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 …. 7.55 (Mowbray, Re) Brambles Holdings Ltd v British American Tobacco Australia Services Ltd (No 6) [2006] NSWDDT 7 …. 7.16 Murphy v Farmer (1988) 165 CLR 19 …. 13.21 Murphy, Davidson & Ward v Watson [1975] WAR 23 …. 7.12 Mustac v Medical Board of Western Australia [2007] WASCA 128 …. 8.57, 8.70 Mutual Life & Citizens Assurance Co Ltd v Evatt (1968) 122 CLR 556 …. 21.29 N NAAT v Minister for Immigration, Multicultural and Indigenous Affairs (2002) 170 FLR 477 …. 8.24 Nagle v Rottnest Island Authority (1993) 223 CLR 486 …. 7.28 NAQF v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 130 FCR 456 …. 11.21, 11.22 NATB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 506 …. 8.28 National Justice Compania Naviera SA v Prudential Assurance Co Ltd (‘The Ikarian Reefer Case’) [1993] 2 Lloyd’s Rep 68 …. 6.34 Nationwide News v Wills (1992) 177 CLR 1 …. 3.45 New South Wales v Commonwealth (1990) 169 CLR 482 …. 11.8 B 0=E I C

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xxiii

LAYING DOWN THE LAW

— v — (2006) 229 CLR 1 …. 3.5, 8.10, 8.12, 21.25 New Zealand Shipping Co v Société des Ateliers et Chantiers de France [1919] AC 1 …. 7.50 Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 …. 11.12, 13.22 Nguyen v Nguyen (1990) 169 CLR 245 …. 7.52, 7.60, 8.20, 8.21, 8.22, 8.28, 8.81 Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178 …. 4.69, 8.15 Nolan, Re; Ex parte Young (1991) 172 CLR 460 …. 7.35 Nominal Defendant v GLG Australia Pty Ltd (2006) 228 CLR 529 …. 11.24 — v Ravenscroft [2008] 2 Qd R 32 …. 10.31 Norrie v NSW Registrar of Births Deaths and Marriages (2013) 84 NSWLR 697 …. 12.30 Northbuild Construction Pty Ltd, Re [2000] 2 Qd R 600 …. 13.33 Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313 …. 7.34, 7.61, 8.88 Northern Territory v Griffiths (deceased) and Jones on behalf of the Ngaliwurru and Nungali Peoples (2019) 93 ALJR 327 …. 4.15, 4.17, 4.18, 4.22 Northern Territory v Mengel (1995) 185 CLR 307 …. 7.61 — v Sangare (2019) 265 CLR 164 …. 6.13 Nowicka v Superannuation Complaints Tribunal [2008] FCA 939 …. 7.52

.CC IA?

I= =I =

O O’Brien v Tanning Research Laboratories Inc (1988) 14 NSWLR 601 …. 7.40 Oldenburgh’s Case Freeman’s KB 213; 2 Mod 140 …. 7.50 Ombudsman v Commissioner of Police (1987) 11 NSWLR 386 …. 11.21 — v Moroney [1983] 1 NSWLR 317 …. 12.20 Ostrowski v Palmer (2004) 218 CLR 493 …. 19.1 Owen v South Australia (1996) 66 SASR 251 …. 11.7

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PIA?

Q

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P Pacific Film Laboratories Pty Ltd and Collector of Customs, Re (1979) 2 ALD 144 …. 12.37 Palace Gallery Pty Ltd v The Liquor and Gambling Commissioner (2014) 118 SASR 567 …. 11.7, 11.25 Palmer v Parbery (in his capacity as liquidator of Queensland Nickel Pty Ltd (in liq)) (2016) 153 ALD 475 …. 8.19 Pambula District Hospital v Herriman (1988) 14 NSWLR 387 …. 10.15 Papakosmas v The Queen (1999) 196 CLR 297 …. 6.17 Papathanasopoulos v Vacopoulos [2007] NSWSC 502 …. 7.50

xxiv

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B 0=E I C

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Parker v South Australian Housing Trust (1985) 41 SASR 493 …. 8.79, 8.84, 8.85, 8.88, 8.89 — v The Queen (1963) 111 CLR 610 …. 8.86, 8.87, 8.89 Parrett v Secretary, Department of Family and Community Services (2002) 124 FCR 299 …. 11.21, 11.22 Patterson, Re; Ex parte Taylor (2001) 207 CLR 391 …. 8.15 Pell v The Queen (2020) 94 ALJR 394; [2020] HCA 12 …. 5.52, 6.21, 6.30 Peninsula Group Pty Ltd v Registrar-General for the Northern Territory (1996) 136 FLR 8 …. 10.14 Perara-Cathcart v The Queen (2017) 260 CLR 595 …. 7.41, 7.42 Perilya Broken Hill Ltd v Valuer-General (2015) 10 ARLR 235 …. 8.80, 8.81 Permanent Trustee Australia Ltd v Commissioner of State Revenue (Vic) (2004) 220 CLR 388 …. 8.12 Perpetual Executors and Trustees Association of Australia Ltd v Federal Commissioner of Taxation (1949) 77 CLR 493 …. 8.11 Pfennig v The Queen (1995) 182 CLR 461 …. 7.23 PGA v The Queen (2012) 245 CLR 355 …. 7.28, 7.59, 7.64, 7.65 Philip Morris Ltd v Commissioner of Business Franchises (1989) 167 CLR 399 …. 8.16 Phillips v Eyre (1870) LR 6 QB 1 …. 9.32 — v The Queen (2006) 225 CLR 303 …. 7.23, 7.52, 7.60 Piro v W Foster & Co Ltd (1943) 68 CLR 313 …. 8.82, 8.87 Pitcher v H B Brady & Co Ltd [2005] WASCA 159 …. 8.22 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 …. 12.10, 13.20, 13.29, 13.30, 13.36 Plenty v Dillon (1991) 171 CLR 635 …. 13.11 Police v Dunn (Dubbo Local Court, NSW, Heilpern SM, 27 August 1999) …. 4.30 Polyukhovich v The Commonwealth (1991) 172 CLR 501 …. 7.65 Pooraka Holdings Pty Ltd, Re (1989) 52 SASR 1 …. 8.22 Port MacDonnell Professional Fishermen’s Association Inc v South Australia (1989) 168 CLR 340 …. 11.8 Potter v Minahan (1908) 7 CLR 277 …. 13.10, 13.11, 13.13 Povey v Qantas Airways Ltd (2005) 223 CLR 189 …. 11.11 Preston v Commissioner of Fair Trading (2011) 80 NSWLR 359 …. 12.31 Preston Banking Co v William Allsup & Sons [1895] 1 Ch 141 …. 6.29 Prior v Mole (2017) 261 CLR 265 …. 4.31

B =E I C I

L=

D CA: D E

= AC

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31,

TABLE OF CASES

Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166 …. 8.55 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 …. 10.9, 10.34, 11.11, 12.2, 12.10, 14.8, 14.9 Prosecutor v Lubanga (Judgment) (International Criminal Court, Trial Chamber I, Case No ICC-01/04-01/06-2842, 14 March 2012) …. 3.42 Public Service Association and Professional Officers’ Association Amalgamated Union (NSW) v New South Wales [2014] NSWCA 116 …. 9.8 Public Service Association of New South Wales v Industrial Commission of New South Wales (1985) 1 NSWLR 627 …. 13.27 Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328 …. 13.18, 13.19

0

PIA?

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4= A

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Q Queensland v The Commonwealth (1977) 139 CLR 585 …. 8.2, 8.8, 8.13, 8.14, 8.57 Quickfind (Australia) Pty Ltd v Airmark Consolidators Pty Ltd (2014) 222 FCR 13 …. 11.18 Quinn v Leathem [1901] AC 459 …. 7.32 R R v A2; R v Magennis; R v Vaziri [2019] HCA 35 …. 10.28, 11.15, 11.17, 12.20 — v Abbrederis [1981] 1 NSWLR 530 …. 8.43 — v Ann Harris (1836) 7 Car & P 446; 173 ER 198 …. 12.5 — v Aubrey (2012) 82 NSWLR 748 …. 13.30 — v Baden-Clay (2016) 258 CLR 308 …. 6.21 — v Ballard (Supreme Court of New South Wales, Forbes CJ and Dowling J, 13 June 1829) …. 4.25 — v Barton (1980) 147 CLR 75 …. 6.20 — v BDX (2009) 24 VR 288 …. 8.23 — v Berchet (1688) 1 Show KB 106; 89 ER 480 …. 12.10 — v Bonjon (Supreme Court of New South Wales, Willis J, 16 September 1841) …. 4.25 — v Boucher [1995] 1 VR 110 …. 10.20 — v Bourchas (2002) 133 A Crim R 413 …. 5.57 — v Byerley (2010) 107 SASR 517 …. 10.31 — v Cain [2010] QCA 373 …. 8.49 — v Carroll (2002) 213 CLR 635 …. 6.31, 18.40 — v Darrington and McGauley [1980] VR 353 …. 8.82, 8.89 — v Davies; Ex parte Delbert-Evans [1945] 1 KB 435 …. 7.30 — v Di Maria (1996) 67 SASR 466 …. 10.30 — v Dookheea (2017) 262 CLR 402 …. 6.20, 6.32 — v Duffy; Ex parte Nash [1960] 2 QB 188 …. 7.30 — v Ellis (2003) 58 NSWLR 700 …. 7.23, 8.22 — v Esposito (1998) 45 NSWLR 442 …. 6.17

0I=PB= 8 :AE = C 4 PAE? 0I= = I D D E E

NE

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— v Farrell, Dingle, and Woodward (1831) 1 Legge 5 …. 2.67 — v Fernando (1992) 76 A Crim R 58 …. 4.34, 4.35, 4.50 — v Goldman (2004) 147 A Crim R 472 …. 8.89 — v — [No 2] [2007] VSCA 25 …. 8.89 — v Gotts [1992] 2 AC 412 …. 8.89 — v Harding [1976] VR 129 …. 8.89 — v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 …. 13.29 — v Hookham (1993) 31 NSWLR 381 …. 8.44 — v Horncastle [2010] 2 AC 373 …. 6.26 — v Independent Broad-based Anti-corruption Commissioner (2016) 256 CLR 459 …. 13.7, 13.9 — v Industrial Commission of South Australia (1986) 41 SASR 471 …. 9.38 — v Jogee [2017] AC 387 …. 6.55 — v JS (2007) 175 A Crim R 108 …. 6.31 — v Judge Bland; Ex parte Director of Public Prosecutions (Vic) [1987] VR 225 …. 8.79 — v Kean & Mills [1985] VR 255 …. 11.29 — v Keogh [No 2] (2014) 121 SASR 307 …. 6.33 — v Kidman (1915) 20 CLR 425 …. 13.15 — v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254 …. 3.25, 3.26, 6.43 — v L (1991) 174 CLR 379 …. 7.64 — v — (1994) 49 FCR 534 …. 10.20 — v Lavender (2005) 222 CLR 67 …. 13.22 — v MacDonagh [1974] 2 WLR 529; [1974] 2 All ER 257 …. 7.12 — v Milat (2005) 157 A Crim R 565 …. 6.35 — v Morrison [1999] 1 Qd R 397 …. 8.22 — v Murrell (Supreme Court of New South Wales, Forbes CJ, Dowling and Burton KJ, 11 April 1836) …. 4.25 — v N (Court of Criminal Appeal, Spigelman CJ, Sully and Ireland JJ, 21 July 1998) …. 8.54 — v O’Keefe [2000] 1 Qd R 564 …. 7.23 — v O’Neill; Ex parte Moran (1985) 58 ACTR 26 …. 10.12 — v Paddy and Wills (1886, EXE/4) …. 4.26 — v PL (2009) 199 A Crim R 199 …. 6.31 — v — [2012] NSWCCA 31 …. 6.31 — v PS [2004] QCA 347 …. 7.23 — v Quick (2004) 148 A Crim R 51 …. 11.29 — v Reynhoudt (1962) 107 CLR 381 …. 13.28 — v Roberts [1965] 1 QB 85 …. 7.12 — v Roussety (2008) 24 VR 253 …. 8.23 — v Scott (1990) 20 NSWLR 72 …. 12.36 — v Shamouil (2006) 66 NSWLR 228 …. 8.58 — v Sharma (2002) 54 NSWLR 300 …. 11.22 — v Shaw [1975] RTR 161 …. 7.12 — v Strawhorn (2008) 19 VR 101 …. 12.31 — v Turner [No 4] (2001) 10 Tas R 81 …. 12.38 — v Vinh Le [2000] NSWCCA 49 …. 7.23 — v W [1998] 2 Qd R 531 …. 7.23

B 0=E I C

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31,

xxv

LAYING DOWN THE LAW

= A /L =IN I

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I= =I =

— v Wanganeen (2010) 108 SASR 463 …. 4.37 — v White (1899) 20 LR (NSW) 12 …. 12.14 — v Wunungmurra (2009) 231 FLR 180 …. 4.42, 4.45, 4.50 — v XY (2013) 84 NSWLR 363 …. 8.38, 8.48, 8.50, 8.57, 8.58, 8.59 — v Young (1999) 46 NSWLR 681 …. 8.54, 10.31, 10.32 — v Zuber (2010) 242 FLR 416 …. 12.26 R & R Fazzolari Pty Ltd v Parramatta City Council (2009) 237 CLR 603 …. 13.24 Reich v Client Server Professionals of Australia Pty Ltd (2000) 49 NSWLR 551 …. 7.22, 7.32 Repatriation Commission v Vietnam Veterans’ Association of New South Wales Branch Inc (2000) 48 NSWLR 548 …. 11.22, 12.2 Republic of Costa Rica v Erlanger (1876) 3 Ch D 62 …. 13.16 Residential Tenancies Tribunal of New South Wales and Henderson, Re; Ex parte the Defence Housing Authority (1997) 190 CLR 410 …. 13.31 Retirements Benefits Fund Board v Elmore [2014] TASFC 1 …. 21.16 Rita McKindley v MJ Campbell Nominees Pty Ltd (Supreme Court of the ACT, Miles CJ, 5 December 1994) …. 21.27 Rizza v Fluor Daniel GTI (Australia) Pty Ltd [1999] 1 VR 405 …. 11.29 Roach v Electoral Commissioner (2007) 233 CLR 166 …. 3.45 Robertson v City of Nunawading [1973] VR 819 …. 13.14 Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550 …. 6.30 Rockwell Graphic Systems Ltd v Fremantle Terminals Ltd (1991) 106 FLR 294 …. 8.80 Rodway v The Queen (1990) 169 CLR 515 …. 9.40, 13.14, 13.16, 13.17 Romeo v Conservation Commission (NT) (1998) 192 CLR 431 …. 7.28 Ruddock v Taylor (2005) 222 CLR 612 …. 6.56, 7.11 Russell v Stephen [2013] WASCA 284 …. 12.34 Ryde Municipal Council v Macquarie University (1978) 139 CLR 633 …. 12.9 Rylands v Fletcher (1868) LR 3 HL 330 …. 7.61

0

PIA?

Q

4= A

S S v White [2005] TASSC 27 …. 13.17 Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 …. 3.49, 11.17, 11.19, 11.24, 12.10 Samad v District Court of New South Wales (2002) 209 CLR 140 …. 14.7, 14.9, 15.3 Saraswati v The Queen (1991) 172 CLR 1 …. 10.9, 10.21, 11.21 Scott v Avery (1856) 10 ER 1121 …. 6.53

xxvi

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2:

B 0=E I C

=:

— v CAL No 14 Pty Ltd (2009) 17 Tas R 331 …. 8.42 Seaman v Silvia (No 2) [2018] FCA 363 …. 5.36 Secretary, Department of Health v Harvey (1990) 21 ALD 393 …. 10 (n 1), 10.4 Selim v Lele (2008) 167 FCR 61 …. 11.8 Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28 …. 8.15 Shingles and Director-General of Social Security, Re (1984) 6 ALD 568 …. 11.26 Shire of Charlton v Ruse (1912) 14 CLR 220 …. 12.8 Skelton v Collins (1966) 115 CLR 94 …. 8.87 Skulander v Willoughby City Council (2007) 73 NSWLR 44 …. 7.39, 7.40 SM v The Queen (2012–15) 46 VR 464 …. 11.18 Smith v Ash [2011] 2 Qd R 175 …. 10.31 — v Corrective Services Commission of New South Wales (1980) 147 CLR 134 …. 13.21 — v New South Wales Bar Association (1992) 176 CLR 256 …. 6.29 — v Papamihail (1998) 88 FCR 80 …. 10.12 — v The Queen (1994) 181 CLR 338 …. 12.27 Snowkowski v Jones (Legal Practice) [2008] VCAT 1943 …. 5.30 Sok v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 144 FCR 170 …. 8.28 Solicitor’s Clerk, Re a [1957] 1 WLR 1219 …. 13.37 South Australia v Lampard-Trevorrow (2010) 106 SASR 331 …. 10.24 — v Tanner (1989) 166 CLR 161 …. 12.27 — v Teachers Appeal Board [2011] SASCFC 3 …. 8.56 South Australian Railways Commissioner v Egan (1973) 130 CLR 506 …. 6.53 Stapleton v The Queen (1952) 86 CLR 358 …. 8.86 State Chamber of Commerce and Industry v Commonwealth (1987) 163 CLR 329 …. 12.30 State Government Insurance Commission v Trigwell (1979) 142 CLR 617 …. 2.59, 8.84 Stubley v Western Australia [2010] HCATrans 269 …. 7.23 Superior IP International v Ahearn Fox Patent and Trade Mark Attorneys [2012] FCA 282 …. 5.36 — v — (No 2) [2012] FCA 977 …. 5.36 Sutton v Bradshaw (1987) 6 MVR 257 …. 9.40 Swain v Waverley Municipal Council (2005) 220 CLR 517 …. 18.40 SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 …. 21.21 SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 …. 11.17

B =E I C I

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TABLE OF CASES

T Tabet v Gett (2010) 240 CLR 537 …. 7.26, 7.46 Tasker v Fullwood [1978] 1 NSWLR 20 …. 14.9 Tasmania v Lee (2005) 15 Tas R 213 …. 21.19 — v Victoria (1935) 52 CLR 157 …. 7.42 Taylor v Attorney-General (Cth) [2019] HCA 30 …. 11.31 — v Centennial Newstan Pty Ltd (2009–2010) 76 NSWLR 379 …. 10.31 — v Owners — Strata Plan No 11564 (2013) 83 NSWLR 1 …. 10.32 — v Owners — Strata Plan No 11564 (2014) 253 CLR 531 …. 10.29, 10.30, 10.32, 10.33, 10.34 — v Rudaks (2007) 245 ALR 91 …. 7.26 Telstra Corporation Ltd v Treloar (2000) 102 FCR 595 …. 7.17, 8.2, 8.27, 8.28, 8.57 Teori Tau v Commonwealth (1969) 119 CLR 564 …. 8.14 The Banco [1971] P 137 …. 11.9 The Queen v Millis 10 Cl & F 534 …. 9.32 Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 …. 12 (n 1) Thornton v Newcrest Mining Ltd [2011] WASCA 92 …. 8.49 — v Shoe Lane Parking Ltd [1971] 2 QB 163 …. 7.29 Tillman v Attorney-General (NSW) (2007) 70 NSWLR 448 …. 8.40, 8.41, 8.47, 8.48, 8.49 Tokyo Mart Pty Ltd v Campbell (1988) 15 NSWLR 275 …. 10.30 Toonen v Australia (Human Rights Committee, Views: Communication No 488/1992, 50th sess, UN Doc CCPR/C/50/488/ 1992 (31 March 1994)) …. 3.43 Towney v Minister for Land and Water Conservation for New South Wales (1997) 147 ALR 402 …. 8.45 Tracey, Re; Ex parte Ryan (1989) 166 CLR 518 …. 7.35 Transurban City Link Ltd v Allan (1999) 95 FCR 553 …. 8.21, 8.28 Trevisan v Commissioner of Taxation (1991) 29 FCR 157 …. 10.20 Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107 …. 6.9 TSL v Secretary to the Department of Justice (2006) 14 VR 109 …. 8.47 Tyler v Whatmore [1976] RTR 83 …. 7.12 Tyler, Re; Ex parte Foley (1994) 181 CLR 18 …. 7.35 U Uber BV v Commissioner of Taxation (2017) 247 FCR 462 …. 12.38 Union Shipping New Zealand Ltd v Morgan (2002) 54 NSWLR 690 …. 7.54 United States v Wade 388 US 218 (1967) …. 5.53 Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 …. 18.40

0I=PB= 8 :AE = C 4 PAE? 0I= = I D D E E

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V Vairy v Wyong Shire Council (2005) 223 CLR 422 …. 7.28 Valentine v Eid (1992) 27 NSWLR 615 …. 8.62, 8.66 Van der Feltz v City of Stirling (2009) 167 LGERA 236 …. 12.30 Van der Meer v The Queen (1988) 82 ALR 10 …. 6.32 Velkoski v The Queen (2014) 45 VR 680 …. 7.23 Vella v Minister for Immigration (2015) 230 FCR 61 …. 12.7 Victoria v Commonwealth and Connor (1975) 7 ALR 1 …. 14.9 — v The Commonwealth (1971) 122 CLR 353 …. 8.11 Victorian Workcover Authority v Vitoratos (2005) 12 VR 437 …. 10.31 — v Wilson (2004) 10 VR 298 …. 10.31 Viro v The Queen (1978) 141 CLR 88 …. 7.22, 8.77, 8.79 W Wacal Developments Pty Ltd v Realty Developments Pty Ltd (1978) 140 CLR 503 …. 10.20 Wacando v Commonwealth (1981) 148 CLR 1 …. 11.5, 12.15 Wakim, Re; Ex parte McNally (1999) 198 CLR 511 …. 3.26, 7.42, 7.43, 8.11, 8.32, 8.33, 8.34, 9.32, 13.15 Walden v Hensler (1987) 163 CLR 561 …. 4.40 Walker v New South Wales (1994) 182 CLR 45 …. 4.41 Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2008) 233 CLR 259 …. 8.48, 8.50, 8.59 Wallace v Major [1946] 2 All ER 87 …. 7.12 Waller v James (2006) 226 CLR 136 …. 7.55 Walsh v Tattersall (1996) 188 CLR 77 …. 12.29 Walsh, Ex parte;Yates, Re (1925) 37 CLR 36 …. 3.48 Wang v Farkas (2014) 85 NSWLR 390 …. 6.13 Ward v The Queen (1981) 54 ALJR 271 …. 10.17 — v Williams (1955) 92 CLR 496 …. 14.7 Wardle v Agricultural and Rural Finance Pty Ltd [2012] NSWCA 107 …. 8.26 Warner v Murdoch (1877) 4 Ch D 750 …. 13.16 Warringah Properties Pty Ltd v Babij [2006] NSWSC 702 …. 7.10, 7.11 Waugh v Kippen (1986) 160 CLR 156 …. 13.22 Wentworth Securities Ltd v Jones [1980] AC 74 …. 10.30, 10.31, 10.33 Western Australia v Commonwealth (1975) 134 CLR 201 …. 8.13 — v — (1995) 183 CLR 373 …. 4.60 — v Willis (2015) 239 FCR 175 …. 4.14 Western Bank Ltd v Schindler [1977] Ch 1 …. 10.32 B 0=E I C

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xxvii

LAYING DOWN THE LAW

Woolworths Ltd v Kelly (1991) 22 NSWLR 189 …. 7.40 WorkCover Corporation v Jakas (2003) 86 SASR 20 …. 8.24, 8.71 Wright v Hale (1860) 6 H & N 227; 158 ER 94 …. 13.16 Wurridjal v Commonwealth (2009) 237 CLR 309 …. 8.14 Wynyard Investments Pty Ltd v Commissioner for Railways (NSW) (1955) 93 CLR 376 …. 8.8

Whitehouse v Queensland (1961) 104 CLR 635 …. 8.78 Whitlock and Comcare, Re [2019] AATA 1911 …. 5.34 Whittaker v Comcare (1998) 86 FCR 532 …. 10.21 — v Delmina Py Ltd (1998) 87 IR 268 …. 8.63 Wicks v State Rail Authority of New South Wales; Sheehan v State Rail Authority of New South Wales (2010) 241 CLR 60 …. 11.18 Wik Peoples v Queensland (1996) 187 CLR 1 …. 4.7, 4.8, 4.9, 7.62 Williams v Commonwealth (2012) 248 VLR 156 …. 3.5 Willis (Pilki People) v Western Australia [2014] FCA 714 …. 4.14 Wilson v Anderson (2002) 213 CLR 401 …. 4.20 — v Commissioner of Stamp Duties (1986) 6 NSWLR 410 …. 12.24 — v — (1988) 13 NSWLR 77 …. 12.31 — v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1 …. 3.26 Witheyman v Simpson [2011] 1 Qd R 170 …. 10.31 Wood v The Queen (2012) 84 NSWLR 581; [2012] NSWCCA 21 …. 6.34

X X v Amalgamated Television Services Pty Ltd [No 2] (1987) 9 NSWLR 575 …. 7.17, 8.79, 8.83, 8.85 X7 v Australian Crime Commission (2013) 248 CLR 92 …. 13.7

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Y Yew Bon Tew v Kenderaan Bas Mara [1983] 1 AC 553 …. 13.16 Yong Jun Qin v Minister for Immigration and Ethnic Affairs (1997) 75 FCR 155 …. 5.32 Young v Burrell Cary’s Causes in Ch 77; 21 Eng Rep 29 …. 7.50 Yrttiaho v Public Curator (Qld) (1971) 125 CLR 228 …. 9.40, 13.16

xxviii

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Table of Statutes References are to paragraph numbers

1

Q B AL R

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COMMONWEALTH Aboriginal and Torres Strait Islander Heritage Protection Act 1984 …. 4.62 Aboriginal Land Rights (Northern Territory) Act 1976 …. 4.3 Acts Interpretation Act 1901 …. 9.17, 9.51, 9.61, 9.73, 11.20, 12.13, 12.28 s 1A …. 9.60 s 2 …. 9.93, 12.16 s 2(2) …. 12.29 s 2B …. 9.60, 12.28 s 2D …. 12.28 s 2F …. 12.28 s 3A(2) …. 9.20 s 3A(3) …. 9.20 s 7 …. 9.93, 9.97 s 7(2) …. 9.40 ss 7–11 …. 13.17 s 13 …. 12.9, 12.11 s 13(1) …. 9.52, 9.53, 9.57, 12.11, 12.18, 12.19, 12.21, 12.23 s 13(2)(a) …. 12.13 s 13(2)(b) …. 9.48, 12.15 s 13(2)(d) …. 9.48, 12.18 s 15AA … 10.18, 10.20, 10.21, 10.22, 10.23, 10.24, 10.25, 10.26, 11.20, 11.23, 12.14, 12.41, 13.23 s 15AA(1) …. 10.20 s 15AB …. 11.12, 11.16, 11.20, 11.21, 11.22, 11.23, 11.23, 11.25, 11.27, 11.28, 11.31, 19.30 s 15AB(1) …. 11.30 s 15AB(1)(a) …. 11.21 s 15AB(1)(b) …. 11.21, 11.23, 11.28 s 15AB(1)(b)(i) …. 11.22 s 15AB(1)(b)(ii) …. 11.22 s 15AB(2) …. 11.21, 11.27 s 15AB(2)(a) …. 9.51 s 15AB(2)(d) …. 11.30 s 15AB(3) …. 11.25 s 15AC …. 12.24 s 15AD …. 12.23 s 21(1)(b) …. 13.34 s 23 …. 9.60, 12.28

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s 33 …. 14.6 s 33(2A) …. 14.6 s 46 … 10.19 Acts Interpretation Amendment Act 1984 …. 11.20 Administrative Appeals Tribunal Act 1975 …. 6.44, 6.48 Pt IV, Div 3 …. 6.52 s 2A …. 6.48 s 33(1AA) …. 5.34 s 33(1AB) …. 5.34 s 34D …. 6.52 s 34E …. 6.52 s 43(1) …. 6.47 Administrative Decisions (Judicial Review) Act 1977 s 5(1)(b) …. 6.47 s 5(1)(c) …. 6.47 Australia Act 1986 … 2.3, 2.71, 2.75, 8.77, 9.21 s 1 …. 2.88 s 9 …. 9.21 Australia (Request and Consent) Act 1985 …. 2.87 Australian Capital Territory (Self-Government) Act 1988 …. 3.27, 21.36 Pt VA …. 3.27 s 25 …. 3.18, 9.27 s 26 …. 9.12 s 28 …. 9.9, 9.78 s 28(1) …. 3.20, 4.49 s 34 …. 9.77 s 35 …. 9.42 s 36 …. 3.31 s 37 …. 3.31 s 38 …. 3.31 s 38A …. 3.31 Sch 4 …. 3.31 Australian Citizenship Act 1948 …. 8.15 Australian Constitution see Constitution Australian Consumer Law …. 18.36 Australian Human Rights Commission Act 1986 …. 9.37 Australian Organ and Tissue Donation and Transplantation Authority Act 2008 …. 19.37

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xxix

LAYING DOWN THE LAW

s 69 …. 3.30 s 71 …. 3.21, 3.24 s 72 …. 3.23 s 72(ii) …. 2.41, 3.23 s 72(iii) …. 3.23, 8.31, 8.32 s 73 …. 3.25, 8.35 s 74 …. 2.75, 8.78 s 75 …. 3.25 s 75(iv) …. 3.26 s 76 …. 2.39, 3.25 s 77(iii) …. 8.31, 8.32 s 80 …. 3.45, 6.21 s 90 …. 8.16, 9.10 s 92 …. 3.45 s 109 …. 3.5, 3.20, 4.49, 9.9 s 116 …. 3.45, 3.46 s 117 …. 3.45 s 122 …. 3.19, 3.46, 4.65, 8.14 s 125A …. 4.63 s 127 …. 4.61 s 128 …. 3.2, 4.1, 8.11, 9.12 Constitution Alteration (Aboriginals) Act 1967 …. 4.60 Copyright Act 1968 …. 8.40 s 131A …. 8.40 s 131B …. 8.40 Coronavirus Economic Response Package Omnibus (Measures No. 2) Act 2020 …. 19.19, 21.32 Corporations Act 2001 …. 12.7, 19.29 s 588M …. 7.26 Crimes Act 1914 …. 4.49, 9.68 s 13 …. 11.31 s 16A(2)(m) …. 4.44 s 16A(2A) …. 4.44, 4.49, 4.53 s 16AA(1) …. 4.44, 4.45, 4.46, 4.47, 4.49, 4.53 s 73(3) …. 13.11 Criminal Code Act 1995 …. 9.64, 9.68 Div 268 …. 11.31 Div 307 …. 8.43 s 268.121 …. 11.31 s 268.121(2) …. 11.31 s 268.122 …. 11.31 Customs Act 1901 s 233B …. 8.43 Diplomatic Immunities and Privileges Act 1967 s 7 …. 3.37 Director of Public Prosecutions Act 1983 s 9(5) …. 6.8 Disability Discrimination Act 1992 …. 3.53 Environment Protection and Biodiversity Conservation Act 1999 …. 3.36 s 137 …. 3.38 Evidence Act 1995 …. 7.23, 8.45 Dictionary …. 9.56 s 3 …. 9.56 s 143(3) …. 9.67

1

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/DD B AL

N =

Australian Security Intelligence Organisation Act 1979 …. 9.59 Pt 3, Div 3 …. 9.59 s 34ZZ …. 9.59 s 34Y …. 9.30 Australian Security Intelligence Organisation Legislation Amendment Act 2006 …. 9.30 s 34ZZ …. 9.30 Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Act 2003 …. 9.30 Broadcasting Services Act 1992 …. 14.9 s 4 …. 14.9 s 158(c) …. 14.9 s 158(e) …. 14.9 s 160 …. 14.9 s 160(d) …. 14.9 s 161 …. 14.9 s 162(2) …. 14.9 Captain’s Flat (Abatement of Pollution) Agreement Act 1975 …. 9.78 Civil Dispute Resolution Act 2011 s 3 …. 5.35 s 4(1A) …. 5.35 Cocos (Keeling) Islands Act 1955 s 15 …. 9.88 Commonwealth Electoral Act 1962 …. 4.61 Competition and Consumer Act 2010 …. 16.19, 18.36 Constitution …. 2.1, 2.3, 2.75, 2.81, 2.82, 3.2, 3.3, 3.4, 3.5, 3.7, 3.15, 3.16, 3.19, 3.23, 3.25, 3.29, 3.45, 3.46, 3.47, 3.48, 3.49, 3.54, 4.1, 4.59, 4.60, 4.61, 4.62, 4.63, 4.64, 4.65, 4.66, 4.67, 4.68, 4.69, 6.43, 8.1, 8.2, 8.10, 8.11, 8.12, 8.32, 8.77, 8.78, 9.9, 9.12, 9.13, 9.20, 10.32, 11.8, 21.36 Ch I …. 3.15 Ch II …. 3.15 Ch III …. 3.15, 3.24, 3.27 Ch V …. 3.46 s 7 …. 3.45 s 24 …. 3.45 s 51 …. 3.4, 3.16 ss 51–52 …. 3.19 s 51(xix) …. 4.68 s 51(xxi) …. 3.20 s 51(xxvi) …. 4.60, 4.62, 4.65 s 51(xix) …. 8.15 s 51(xxxi) …. 3.45, 8.14 s 51(xxxiii) …. 13.26 s 51(xxxix) …. 3.36 s 52 …. 3.4, 3.16 s 53 …. 9.12 s 57 …. 9.13 s 61 …. 2.81, 3.29, 3.31 ss 62–64 …. 3.29 s 64 …. 3.3, 3.29 s 68 …. 3.30

xxx

1 QC 9 B L :D :QB 1 :L = ? E E : A

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7 8

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42-

1

Q B AL R

PB 6 PB 0 LL

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/DD B AL

N =

TABLE OF STATUTES

Euthanasia Laws Act 1997 …. 3.19 Export Control Act 2020 …. 21.30 Extradition Act 1988 …. 8.40 Fair Work Act 2009 …. 6.10 Family Law Act 1975 s 30 …. 7.37 s 60CA …. 8.29 Federal Court of Australia Act 1976 s 16 …. 7.37 Flags Act 1953 …. 9.20 Freedom of Information Act 1982 …. 9.84 High Court of Australia Act 1979 …. 3.22 Hindmarsh Island Bridge Act 1997 …. 4.62 Human Rights and Equal Opportunity Commission Act 1986 …. 9.37 Human Rights and Equal Opportunity Commission (Transitional Provisions and Consequential Amendments) Act 1986 s 4 …. 9.37 Human Rights Commission Act 1981 s 36 …. 9.37 Human Rights (Parliamentary Scrutiny) Act 2011 …. 3.60, 4.57 s 3 …. 3.60 Human Rights (Sexual Conduct) Act 1994 …. 3.43 s 4 …. 3.43 Immigration (Guardianship of Children) Act 1946 …. 9.58, 21.32 s 1 …. 21.32 Income Tax Act 1972 s 25(3) …. 10.35 Income Tax Assessment Act 1936 …. 12.31 s 26AAA …. 8.68 s 46(3) …. 14.7 s 51 …. 8.8 s 51(1) …. 8.7 Income Tax Assessment Act 1997 s 995.1 …. 9.56 Industrial Chemicals Act 2019 … 21.32 Insolvency Law Reform Act 2016 …. 21.31 Insurance Contracts Act 1984 …. 8.25, 8.34, 8.38, 8.90 Judiciary Act 1903 …. 4.67 Pt VIIIC …. 5.32 s 16 …. 8.19 s 17 …. 8.31 s 20 …. 8.19 s 21 …. 8.19 s 23 …. 7.42 s 23(2) …. 7.37 s 23(2)(a) …. 7.42

1 QC 9 B L :D :QB 1 :L = ? E E : A

=

LA

: ,

PB 6 PB 0 LL ,

LA

7 8

L3

s 35A …. 6.30 s 39 …. 8.31 s 39(2) …. 2.38 s 39A …. 8.31 s 39B …. 8.31 s 39B(1A)(b) …. 2.38 s 55ZF …. 5.32 Jurisdiction of Courts (Cross-vesting) Act 1987 …. 8.32 Jurisdiction of Courts Legislation Amendment Act 2000 …. 8.33, 9.32 Legal Services Directions 2017 …. 5.32 Sch 1 cl 14 …. 5.36 Legislation Act 2001 s 7(3) …. 10.22 s 139 …. 10.22 Legislation Act 2003 …. 9.4, 9.81, 9.84, 19.8 Ch 3 …. 9.81 Ch 3, Pt 2 …. 9.88 Ch 3, Pt 3 …. 9.65 Ch 3, Pt 4 …. 9.92 s 12 …. 9.86 s 12(2)–(4) …. 9.86 s 13 …. 10.19 s 45 …. 9.89, 9.93 s 138 …. 10.22 s 139 …. 10.22 s 139(1) …. 10.22 Legislation (Exemptions and Other Matters) Regulation 2015 regs 11–12 …. 9.92 Live-Stock Slaughter Levy Collection Act 1964 s 7 …. 9.61 Marriage Act 1961 …. 9.9 s 5 …. 3.20 Marriage Amendment (Definition and Religious Freedoms) Act 2017 …. 9.9 Meat and Livestock Corporation Act 1991 …. 9.61 s 3(4) …. 9.61 s 34(2) …. 9.61 Medical Indemnity Act 2002 …. 19.37 Migration Act 1958 …. 11.10, 11.14, 13.29 s 4(1) …. 11.10 s 14 …. 13.10 s 134 …. 18.10 s 474 …. 13.20, 13.29 Migration Laws Amendment Act 1993 …. 9.65 Migration Regulations 1994 reg 1.23(2)(b) …. 8.28 Military Rehabilitation and Compensation Act 2004 s 3 …. 9.64

C1

L :D ALL ,

C

L :D

I

L

E DB E

: A = L:BD : LB

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42-

xxxi

LAYING DOWN THE LAW

Personal Property Securities Act 2009 …. 19.37 Privacy Act 1998 …. 3.53 Privy Council (Appeals from the High Court) Act 1975 …. 2.75, 8.76 Privy Council (Limitation of Appeals) Act 1968 …. 2.75, 8.76 Product Grants and Benefits Administration Act 2000 …. 19.37 Public Governance, Performance and Accountability Act 2013 …. 3.28 Racial Discrimination Act 1975 …. 3.53, 4.18, 4.48, 4.49, 4.52 Pt IIA …. 12.18 s 8 …. 4.48, 4.49, 4.53, 4.54, 4.55, 4.56 s 8(1) …. 3.37 s 9(1) …. 3.53 s 10 …. 4.48, 4.49, 4.53, 4.54, 4.55 s 18C …. 3.53 s 18C(1) …. 3.53 s 18C(1)(b) …. 12.18 s 18D …. 3.53 Royal Style and Titles Act 1973 …. 9.20 Safety, Rehabilitation and Compensation Act 1988 …. 18.11 Seat of Government Acceptance Act 1909 s 6 …. 2.58 Service and Execution of Process Act 1901 …. 13.28 Sex Discrimination Act 1984 …. 3.53 Social Security Act 1947 s 105J …. 11.26 s 105JA …. 11.26 Social Security (Administration) Act 1999 Pt 4A …. 6.46 Social Services Laws (Present Value of Unpaid Amount — Interest Rate) Determination 2018 …. 19.19 Statute Law Revision Act 2011 …. 19.19 Statute of Westminster Adoption Act 1942 …. 2.85 Stronger Futures in the Northern Territory Act 2012 …. 4.51, 4.52, 4.57 s 4A …. 4.52 Telecommunications Act 1997 …. 9.50 Territories Self-Government Legislation Amendment (Disallowance and Amendment of Laws) Act 2011 …. 9.42 Tobacco Plain Packaging Act 2011 …. 13.26 Tobacco Plain Packaging Regulations 2011 …. 21.38 Trade Practices Act 1974 s 155(1) …. 13.18 Veterans’ Entitlements Act 1986 …. 9.65

1

Q B AL R

PB 6 PB 0 LL

LA

/DD B AL

N =

Modern Slavery Act 2018 …. 21.33 National Security (Coal Mining Industry Employment) Regulations (Amendment) reg 17 …. 13.29 Native Title Act 1993 …. 4.3, 4.5, 4.6, 4.7, 4.12, 4.13, 4.16, 4.18, 4.20, 4.21, 4.23, 4.60, 4.62 Pt 2, Div 3, Sub-div P …. 4.6 Pt 2, Div 5 …. 4.15 Pt 4 …. 4.21 Pt 4, Div 4 …. 4.6 Pt 8A …. 4.21 s 51A …. 4.16 s 223 …. 4.5 s 225 …. 4.5 Native Title Amendment Act 1998 …. 4.7 Native Title Amendment (Indigenous Land Use Agreements) Act 2017 …. 4.21 Norfolk Island Act 1979 …. 9.80 s 18 …. 9.80 Norfolk Island Legislation Amendment Act 2015 …. 9.80 Northern Territory Acceptance Act 1910 s 7 …. 2.58, 9.79 Northern Territory (Administration) Act 1910 s 5 …. 9.79 s 13 …. 9.79 Northern Territory National Emergency Response Act 2007 …. 4.44, 4.51 s 6 …. 4.51 s 91 …. 4.44 s 132 …. 4.52 s 132(1) …. 4.52 s 132(2) …. 4.52 Northern Territory (Self-Government) Act 1978 …. 3.27, 21.36 s 3 …. 9.79 s 7 …. 3.18 ss 7–8 …. 9.28 s 9 …. 9.42 s 31 …. 3.31 s 51 …. 9.9 Sch 1 …. 9.79 Paid Parental Leave Act 2010 …. 19.19, 19.36 s 2 …. 19.19 s 8 …. 19.37 s 21 …. 19.19 Paid Parental Leave and Other Legislation Amendment (Dad and Partner Pay and Other Measures) Act 2012 … 19.19 Paid Parental Leave Rules 2010 …. 19.19 Parliamentary Service Act 1999 Pt 7 Div 2 …. 9.14 Patents Act 1990 s 3 …. 9.56 Sch 1 …. 9.56

xxxii

1 QC 9 B L :D :QB 1 :L = ? E E : A

=

LA

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LA

7 8

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C1

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42-

TABLE OF STATUTES

War Crimes Act 1945 s 12 …. 11.31 World Heritage Properties Conservation Act 1983 …. 3.36

1

Q B AL R

PB 6 PB 0 LL

LA

/DD B AL

N =

AUSTRALIAN CAPITAL TERRITORY Civil and Administrative Tribunal Act 2009 …. 6.44 Civil Unions Act 2006 …. 9.42 Crimes Act 1900 s 92 …. 4.31 Crimes (Sentencing) Act 2005 …. 4.43 s 33(1) …. 4.43 s 33(3) …. 4.43 Evidence Act 2011 …. 7.23 Human Rights Act 2004 …. 3.59, 13.4 s 30 …. 10.22, 13.4 Interpretation Act 1967 s 11A …. 10.22 s 11B …. 11.27 s 65 … 9.77 Legal Profession Act 2006 …. 5.27 Ch 4 Pt 4.7 …. 5.20 Legislation Act 2001 …. 9.17, 9.60, 12.28 Ch 5 …. 9.65 Chs 5–8 …. 9.81 Ch 8 …. 9.19 ss 5–6 …. 12.16 s 6(2) …. 13.6, 13.15 s 12 …. 9.78 s 19 …. 12.15 s 28 …. 9.27 s 30 …. 9.19 ss 61–62 …. 9.87 s 65 …. 9.88 s 66 …. 9.89 s 73 …. 9.27, 9.45 s 74 …. 9.17 s 75 …. 9.45 ss 75A–76 …. 9.32 s 75B(1) …. 13.15 s 75B(2) …. 13.15 ss 82–96 …. 13.17 s 84 …. 9.40, 9.93 s 86 …. 9.64 s 86(1) …. 9.64 s 122 …. 13.34 s 126(1) …. 9.53, 12.18 s 126(2) …. 9.50, 12.19 s 126(3) …. 9.48 s 126(4) …. 9.52, 12.23 s 126(5) …. 9.57, 12.21 s 126(6) …. 12.9, 12.19 s 127(1) …. 9.50 s 127(3) …. 12.19 ss 130–132 …. 12.17

1 QC 9 B L :D :QB 1 :L = ? E E : A

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LA

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s 132 …. 12.23 s 136 …. 10.19 s 139 …. 10.19 s 140 …. 12.12, 12.22 ss 141–143 …. 11.20, 11.27 s 141(1) …. 11.27 s 142 …. 11.27 s 142(1) …. 9.51, 12.20 s 145 …. 9.60, 12.28 s 146 …. 14.6 s 147 …. 12.24 s 155 …. 12.16 s 170 …. 13.6, 13.15 s 171 …. 13.6, 13.15 Sch 1, Pt 1.1 …. 9.78 Sch 1, Pt 1.2 …. 9.78 Liquor Act 2010 s 258 …. 9.8 Marriage Equality (Same Sex) Act 2013 …. 3.20, 9.9 Self-Government (Citation of Laws) Act 1989 s 5 …. 9.77 Supreme Court Act 1933 s 25 …. 2.28 s 37L(3) …. 7.38 University of Canberra Act 1989 …. 12.17

NEW SOUTH WALES Administrative Decisions Review Act 1997 …. 6.46 Anti-Discrimination Act 1977 …. 6.45 s 90 …. 6.45 Australia Acts (Request) Act 1985 …. 2.87 Births, Deaths and Marriages Registration Act 1995 …. 12.30 Children (Criminal Proceedings) Act 1987 s 15A …. 21.21 Civil and Administrative Tribunal Act 2013 …. 6.44 s 13 …. 6.44 s 30 …. 6.46 s 45 …. 6.48 s 60 …. 6.48 Civil Liability Act 2002 …. 8.47, 10.32, 13.13 s 15 …. 13.13 s 15(3) …. 13.13 s 45 …. 7.61 s 70 …. 7.55 s 71 …. 7.55 Civil Procedure Act 2005 s 26 …. 6.40 s 56(1) …. 6.40 s 56(3) …. 6.40 s 56(5) …. 6.40 s 99 …. 6.40

C1

L :D ALL ,

C

L :D

I

L

E DB E

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42-

xxxiii

LAYING DOWN THE LAW

Criminal Procedure Regulation 2010 …. 4.37 reg 35 …. 4.38 reg 36 …. 4.37 Crown Lands Act 1989 …. 15.3 s 4(2A) …. 15.3 s 4(3) …. 15.3 Dividing Fences Act 1991 …. 7.10, 7.11 s 3 …. 7.10, 7.11 s 7 …. 7.10 s 8 …. 7.10, 7.11 s 13 …. 7.10 s 14(c) …. 7.10 Dust Diseases Tribunal Act 1989 s 25B …. 7.16 s 25B(1) …. 7.16 Encroachment of Buildings Act 1922 …. 12.14 Evidence Act 1898 …. 12.14 Evidence Act 1995 …. 7.23, 8.45 s 84 …. 6.22 s 97 …. 6.22 s 98 …. 6.22 s 101 …. 6.22 s 135 …. 6.22 s 137 …. 6.22, 8.38, 8.58 s 138 …. 6.22 s 139 …. 6.22 s 165(1)(e) …. 6.23 Gaming and Betting Act 1912 …. 10.15 Graffiti Control Act 2008 …. 15.4 s 4 …. 15.4 s 6 …. 15.4 s 9 …. 15.4 Graffiti Control Regulation 2014 …. 15.4 reg 4 …. 15.4 reg 5 …. 15.4 Guardianship Act 1987 s 14 …. 6.44 Home Building Act 1989 s 48K …. 6.45 Impounding Act 1993 …. 15.5 Pt 2, Div 1 …. 15.5 Pt 2, Div 2 …. 15.5 Pt 2, Div 3 …. 15.5 Pt 2, Div 4 …. 15.5 Independent Commission Against Corruption Act 1988 …. 11.13 s 8 …. 11.13 Interpretation Act 1987 …. 9.17, 15.3, 15.5 Pt 6 …. 9.81 s 5 …. 9.93, 14.7 s 6 …. 12.16, 15.3 s 8 …. 9.60, 12.28, 15.3 s 9 …. 14.6, 14.7 s 9(1) …. 15.3 s 9(2) …. 14.6

1

Q B AL R

PB 6 PB 0 LL

LA

/DD B AL

N =

Coal Acquisition Act 1981 …. 13.25 s 5 …. 13.25 s 6 …. 13.25 s 6(3) …. 13.25 Companion Animals Act 1998 …. 8.36 s 14 …. 8.36 Companies (New South Wales) Code 1981 …. 12.36 Constitution Act 1902 …. 2.64 Ch 3, Pt 4 …. 3.31 Pt 2A …. 3.31 Pt 4A …. 3.31 Pt 8 …. 3.14 Pt 9 …. 3.27 s 2 …. 4.63 s 5 …. 3.16 s 7 …. 9.12 s 7A …. 9.12 s 7B …. 9.12 Conveyancing Act 1919 s 66G …. 12.34 Costs in Criminal Cases Act 1967 …. 6.13 Crimes Act 1900 …. 9.78, 12.36 s 18(1)(a) …. 6.23 s 45 …. 11.15, 12.20 s 419 …. 6.23 Crimes (Appeal and Review) Act 2001 …. 6.31 s 107 …. 6.31 Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2006 …. 6.31 Crimes (Local Courts Appeal and Review) Act 2001 Pt 3 …. 8.62 Crimes (Sentencing Procedure) Act 1999 s 25D …. 6.41 Crimes (Serious Sex Offenders) Act 2006 s 17 …. 8.47 Criminal Appeal Act 1912 …. 2.27 s 5 …. 6.30 s 5BA …. 6.58 s 5D …. 6.31 s 5F …. 6.31 s 6 …. 6.30 s 6(1) …. 7.48 s 10(1)(a) …. 6.30 Criminal Procedure Act 1986 Chs 3–5 …. 6.21 Pt 4 …. 6.52 s 29 …. 6.52 s 29(3) …. 6.52 ss 30–31 …. 6.52 s 48 …. 6.7 s 173 …. 6.7 ss 212–214 …. 6.13 s 215 …. 6.13

xxxiv

1 QC 9 B L :D :QB 1 :L = ? E E : A

=

LA

: ,

PB 6 PB 0 LL ,

LA

7 8

L3

C1

L :D ALL ,

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42-

1

Q B AL R

PB 6 PB 0 LL

LA

/DD B AL

N =

TABLE OF STATUTES

s 12 …. 13.34 s 21C …. 12.28 s 23 …. 9.22 s 24 …. 9.17 ss 27–30C …. 13.17 ss 28–30 …. 9.93 s 30 …. 9.40, 9.93 s 33 …. 10.19, 15.3 s 34 …. 11.20, 11.21 s 34(2)(a) …. 9.51, 12.20 s 35(1)(a) …. 9.53, 12.18 s 35(2)(c) …. 12.19 s 35(2)(c) …. 9.50 s 35(4) …. 12.19 s 39 …. 9.87 s 41 …. 9.88 s 41(3) …. 9.89 s 41(4) …. 9.89 s 41(5) …. 9.89 s 64A …. 9.57, 12.21 s 76 …. 15.3 Legal Profession Uniform Conduct (Barristers) Rules 2015 …. 5.26, 5.43, 5.51, 5.52, 5.55, 5.56 r 3 …. 5.26 r 4 …. 5.26 r 17 …. 5.55 r 26 …. 5.57 r 35 …. 5.53 r 49 …. 5.57 r 87 …. 5.51 r 89 …. 5.52 Legal Profession Uniform Law …. 5.25, 5.27 Pt 3.6 …. 5.20 Pt 5.4 …. 5.20 Pt 5.6 …. 5.20 Pt 8.3 …. 5.20 s 34 …. 5.35 s 101 …. 5.20 Sch 2 …. 5.20 Local Government Act 1993 …. 15.4 Mental Health Act 1958 …. 9.37 Native Vegetation Conservation Act 1997 …. 6.58 s 12(f) …. 6.58 Notification of Births Act 1915 …. 9.58 Poisons and Therapeutic Goods Regulation 1994 cl 149(f) …. 14.7 Prevention of Oil Pollution of Navigable Waters Act 1960 …. 10.17 s 7E …. 10.17 s 7E(3) …. 10.17 Professional Standards Act 1994 …. 5.27 Real Property Act 1900 …. 12.34 Road Obstructions (Special Provisions) Act 1979 …. 9.30 Road Obstructions (Special Provisions) Revival and Amendment Act 1979 …. 9.30

1 QC 9 B L :D :QB 1 :L = ? E E : A

=

LA

: ,

PB 6 PB 0 LL ,

LA

7 8

L3

Stamp Duties Act 1920 …. 12.34 s 65 …. 12.34 Subordinate Legislation Act 1989 …. 9.81 Pt 2 …. 9.65 Pt 3 …. 9.92 Summary Offences Act 1988 s 4A …. 4.31 Supreme Court Act 1970 …. 2.28 s 45 …. 7.38 s 45(2) …. 7.39 Supreme Court Rules 1970 Pt 31, r 2 …. 10.17 r 75.3J …. 6.34 Trustee Act 1915 …. 12.34 Uniform Civil Procedure Rules 2005 Pt 6 …. 6.7 r 2 …. 6.34 r 50.3 …. 6.30 Sch 7 …. 6.34 Valuation of Land Act 1916 s 132(1)(d) …. 12.9 Wild Dog Destruction Act 1921 …. 15.3, 22.33 s 2 …. 15.3 s 20(e1) …. 15.3 s 3 …. 15.3 s 6 …. 15.3 s 7 …. 15.3 s 7(a) …. 15.3 s 8 …. 15.3 s 23 …. 15.3 s 26 …. 15.3 Wills, Probate and Administration Act 1898 s 61B(3) …. 10.12 Work Health and Safety Act 2011 s 22(2)(e)(ii) …. 21.30 s 152 …. 6.8

NORTHERN TERRITORY Aboriginals Ordinance 1918 …. 3.46 Crimes (Victims Assistance) Act 1989 …. 12.33 Criminal Code Act 1983 s 189A …. 4.31 Evidence (National Uniform Legislation) Act 2011 …. 7.23 Interpretation Act 1978 …. 9.17 Pt 7 Divs 2–3 …. 9.81 s 4 …. 9.93, 10.19 s 6 …. 9.28 ss 11–12 …. 9.93 ss 11–16 …. 13.17 s 12 …. 9.40, 9.93 s 18 …. 9.79 s 24 …. 9.60, 12.28 s 28 …. 9.41 s 38 …. 13.34 C1

L :D ALL ,

C

L :D

I

L

E DB E

: A = L:BD : LB

.=

42-

xxxv

LAYING DOWN THE LAW

Interpretation Act 1978 (NT) – cont’d s 49 …. 9.79 s 55(1) …. 9.53, 12.18 s 55(2) …. 9.50, 12.19 s 55(4) …. 9.52, 12.19, 12.23 s 55(5) …. 9.57, 12.21 s 55(6) …. 9.50, 12.19 s 62A …. 10.19 s 62B …. 11.20 s 62B(2)(a) …. 9.51, 12.20 s 62C …. 12.24 s 62D …. 12.23 s 62D(c) …. 12.23 s 63 …. 9.87 s 63(8) …. 9.82 s 63(9) …. 9.88 s 63(9)–(10) …. 9.89 Legal Profession Act 2006 …. 5.27 Ch 4 …. 5.20 Liquor Act 1978 s 101U(1) …. 4.31 Northern Territory Civil and Administrative Tribunal Act 2014 …. 6.44 Powers of Attorney Act 1979 …. 9.33 Powers of Attorney Act 1980 …. 9.33 Professional Standards Act 2004 …. 5.27 Rights of the Terminally Ill Act 1995 …. 3.19 Summary Offences Act 1923 s 47 …. 4.31 s 53 …. 4.31 Supreme Court Act 1979 Pt IV …. 2.28 s 23 …. 7.38 Welfare Ordinance 1953 …. 4.61

ss 17A–22C …. 13.17 s 19 …. 9.93 s 20 …. 9.40 ss 32–32AB …. 12.16 s 32B …. 9.60, 12.28 s 32C …. 9.60, 12.28 s 32CA …. 14.6 s 35C(2) …. 12.23 s 36 …. 10.23 s 38 …. 13.34 Anti-discrimination Act 1991 …. 9.53 Civil Liability Act 2003 s 49A(2) …. 7.55 s 49B(2) …. 7.55 Constitution Act 1867 s 53 …. 9.12 Constitution Act Amendment Act 1922 …. 9.11 Constitution of Queensland Act 2001 …. 3.31 Ch 2, Pt 5, Div 2 …. 3.31 Ch 3, Pt 1 …. 3.31 Ch 3, Pt 2 …. 3.31 Ch 3, Pt 4 …. 3.31 Ch 4 …. 3.27 Ch 7 …. 3.14 s 3A …. 4.63 s 4A …. 9.12 s 51 …. 3.31 s 78 …. 9.12 Criminal Code Act 1899 …. 9.57, 9.68 ss 1–753 …. 9.57 s 302(1)(a) …. 6.23 Sch 1 …. 9.57, 12.21 Drugs Misuse Act 1986 …. 9.68 Election Acts Amendment Act 1965 …. 4.61 Evidence Act 1977 s 97 …. 7.23 s 98 …. 7.23 s 101 …. 7.23 Fisheries Regulation Act 1995 …. 9.34 Human Rights Act 2019 …. 3.59 Invasion of Privacy Act 1971 s 43 …. 13.11 s 43(2)(c) …. 13.11 Judicature Act 1876 …. 2.28 Legal Profession Act 2004 …. 5.6 Legal Profession Act 2007 …. 5.27 Pt 7 …. 5.20 Liquor Act 1992 …. 4.54, 4.55 s 168B …. 4.54 Penalties and Sentencing Act 1992 …. 4.43 s 9(2) …. 4.43 s 9(2)(p) …. 4.46 s 9(2)(r) …. 4.43

N =

QUEENSLAND

1

Q B AL R

PB 6 PB 0 LL

LA

/DD B AL

Acts Interpretation Act 1954 …. 9.17 s 11 …. 9.67 ss 12–12A …. 9.67 s 13 …. 13.33 s 14(1) …. 9.53, 12.18 s 14(2) …. 9.50, 12.19 s 14(3) …. 9.52, 12.23 s 14(4) …. 12.19 s 14(5) …. 9.57, 12.21 s 14(6) …. 12.9 s 14(7) …. 9.50, 12.19 s 14A …. 10.19, 10.23, 13.23 s 14A(1) …. 10.23 s 14B …. 11.20 s 14B(3)(a) …. 9.51, 12.20 s 14C …. 12.24 s 14D …. 12.23 s 14D(c) …. 12.23 s 15A …. 9.23

xxxvi

1 QC 9 B L :D :QB 1 :L = ? E E : A

=

LA

: ,

PB 6 PB 0 LL ,

LA

7 8

L3

C1

L :D ALL ,

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L :D

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.=

42-

TABLE OF STATUTES

Professional Standards Act 2004 …. 5.27 Queensland Civil and Administrative Tribunal Act 2009 …. 6.44 Safety in Recreational Water Activities Act 2011 …. 21.33 Statutory Instruments Act 1992 …. 9.81 Pt 7 …. 9.92 s 3 …. 9.93 s 14 …. 9.93, 10.19 s 15 …. 11.20 ss 32–35 …. 9.87 s 50 …. 9.88 s 51 …. 9.89, 9.93 Sch 1 …. 9.93 Summary Offences Act 2005 s 6 …. 4.31 Supreme Court Act 1921 …. 9.96 Supreme Court of Queensland Act 1991 s 42 …. 7.38

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SOUTH AUSTRALIA Acts Interpretation Act 1915 …. 9.17 Pt 3 …. 9.81 Pt 3A …. 9.92 s 3A …. 9.93, 10.19 s 5 …. 9.67 s 7 …. 9.23 s 12 …. 9.89 s 14A …. 9.93 s 16 …. 9.40, 9.93 ss 16–17 …. 13.17 s 17 …. 9.93 s 18 …. 13.28 s 19 …. 9.48, 12.15 s 19(1)(a) …. 9.57, 12.21 s 19(1)(b) …. 9.53, 12.18 s 19(1)(c) …. 9.52, 12.23 s 19(1)(d) …. 12.9 s 19(2) …. 9.50 s 19(2)(a) …. 12.19 s 19A …. 12.23 s 20 …. 13.33 s 21 …. 12.31 s 22 …. 10.14, 10.19, 10.24, 13.23 s 22(1) …. 10.24 s 26 …. 9.60, 12.28 s 34 …. 14.6 s 48 …. 2.58, 8.84 Alice Springs to Darwin Railway Act 1997 …. 9.35 Alice Springs to Darwin Railway (Financial Commitment) Amendment Act 1999 …. 9.35 Civil Liability Act 1936 s 67 …. 7.55 Constitution Act 1934 Pt 2A …. 3.14 Pt 3 …. 3.31

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Pt 4 …. 3.27 s 8 …. 9.12 s 10A …. 9.12 s 64A …. 9.12 s 88 …. 9.12 Criminal Law Consolidation Act 1929 …. 7.64 s 73(3) …. 7.64 s 73(5) …. 7.64 s 349 …. 7.41 s 353 …. 7.41 s 353(1) …. 7.41 Criminal Law Consolidation Act Amendment Act 1976 s 12 … 7.64 Criminal Law Consolidation (Rape) Amendment Act 1992 …. 7.64 Criminal Law (Sentencing) Act 1988 s 9C …. 4.37 Criminal Procedure Act 1921 s 152 …. 7.41 s 158 …. 7.41 s 158(2) …. 7.41, 7.48 s 159 …. 6.33 s 159(1) …. 6.35 Environment Protection (Sea Dumping) Act 1984 …. 9.57 Evidence Act 1929 s 34S …. 7.23 Hairdressers Act 1988 s 1 …. 9.47 Judicature Act 1878 …. 2.28 Legal Practitioners Act 1981 …. 5.27 Pt 6 Div 2 …. 5.20 Planning Act 1982 …. 12.27 Primary Producers Debts Act 1935 s 39(1)(a) …. 13.18 s 39(2)(d) …. 13.18 Professional Standards Act 2004 …. 5.27 Real Property Act 1858 …. 2.70 Sentencing Act 2017 s 22 …. 4.37 South Australian Civil and Administrative Tribunal Act 2013 …. 6.44 Subordinate Legislation Act 1978 …. 9.81 s 10AA …. 9.87 Subordinate Legislation Act 1992 …. 9.81 s 10 …. 9.88 Summary Offences Act 1953 s 7 …. 4.31 Supreme Court Act 1853 …. 2.28 Waterworks Act 1932 …. 12.27 Waterworks Regulations 1974 …. 12.27 C1

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LAYING DOWN THE LAW

Tasmanian Civil and Administrative Tribunal Act 2020 …. 6.44

TASMANIA

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Acts Interpretation Act 1931 …. 9.17 s 4 …. 10.19 s 5 …. 9.93 s 6(2) …. 9.53, 12.18 s 6(3) …. 9.57, 12.21 s 6(4) …. 9.50. 12.19 s 6(6) …. 13.33 s 6(7) …. 9.67 s 8A …. 10.19 s 8B …. 11.20 s 8B(3)(a) …. 9.51, 12.20 s 9 …. 9.24 s 9(5) …. 9.87 s 10A …. 14.6 ss 14–18A …. 13.17 s 16 …. 9.40, 9.93 s 24 …. 9.60, 12.28 s 24A …. 9.60, 12.28 s 27 …. 13.34 s 38A …. 9.87 s 47 …. 9.87 s 47(4) …. 9.88 ss 47(4)–(6) …. 9.89 Animal Welfare Act 1993 s 10 …. 12.4 s 10(2) …. 12.4 Constitution Act 1934 …. 3.15 Pt II …. 3.31 ss 8F–8G …. 3.31 s 41A …. 3.16, 9.12 Criminal Code Act 1924 …. 3.43 s 136 …. 13.16 s 400(2) …. 7.38 s 402(4A) …. 8.49 Evidence Act 2001 …. 7.23 Family Violence Act 2004 …. 13.17 s 12(1) …. 13.17 Guide Dogs and Hearing Dogs Act 1967 s 3 …. 9.49 Legal Procedure Act 1903 …. 2.28 Legal Profession Act 2007 …. 5.27 Ch 4 …. 5.20 Police Offences Act 1935 s 12 …. 4.31 Professional Standards Act 2005 …. 5.27 Statute Law Revision (Penalties) Act 1995 …. 9.35 Subordinate Legislation Act 1992 …. 9.81 Pt 3 …. 9.92 s 3A …. 9.65 s 10 …. 9.65 s 56 …. 9.65 Supreme Court Civil Procedure Act 1932 …. 2.28 s 15(9) …. 7.38

xxxviii

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VICTORIA Charter of Rights and Responsibilities 2006 …. 3.59, 13.4 Constitution Act 1975 Pt II Div 8 …. 3.31 Pt IIA …. 3.14 Pt III …. 3.27 s 1A …. 4.63 s 18 …. 9.12 s 77 …. 3.23 s 85 …. 9.12 Crimes Act 1958 s 7A …. 12.41 s 30F …. 12.41 s 398A …. 7.23 Domestic Animals Act 1994 …. 8.36 Evidence Act 2008 …. 7.23 s 137 …. 8.38 Interpretation of Legislation Act 1984 …. 9.17 s 4 …. 9.93 s 10 …. 9.46 s 11 …. 9.25 s 14 …. 9.40 ss 14–16 …. 13.17 s 28 …. 9.93 ss 28–29 …. 9.89 s 35 …. 11.28, 11.29 s 35(a) …. 10.18, 10.19, 11.29 s 35(b) …. 11.20 s 35(b)(i) …. 9.48, 9.51, 12.9, 12.14, 12.15, 12.20, 12.22 s 36(1)(a) …. 9.53, 12.18 s 36(2) …. 9.57, 12.21 s 36(2A) …. 9.50, 12.19 s 36(3) …. 9.50, 12.19 s 36(3A) …. 9.52, 12.19, 12.23 s 36(3B) …. 12.9 s 36A …. 12.23 s 37 …. 9.60, 12.28 s 37(a) …. 12.29 s 45 …. 14.6 s 48 …. 13.34 Judicature Act 1883 …. 2.28 Jury Directions Act 2013 …. 10.34 Legal Profession Uniform Law Application Act 2014 …. 5.25, 5.27 Pt 2 …. 5.20 Pt 3, Div 2 …. 5.20 Pt 3, Divs 2–4 …. 5.20 s 1 …. 9.55 s 10 …. 5.20 Sch 1 …. 5.20 Sch 1 cl 34 …. 5.35 Sch 1 cl 35 …. 5.35 C

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TABLE OF STATUTES

s 18 …. 10.19 s 19 …. 11.20 s 19(2)(a) …. 9.51, 12.20 s 20 …. 9.22 s 28 …. 9.67 s 31(1) …. 9.48, 12.15 s 31(2) …. 9.57, 12.21 s 32(1) …. 9.53, 12.18 s 32(2) …. 9.50, 12.19 ss 33–39 …. 13.17 s 34 …. 9.93 s 37 …. 9.40, 9.93 s 38 …. 9.92 s 41 …. 9.87 s 42 …. 9.88, 9.89 s 56 …. 14.6 s 73 …. 2.58 Justices Act 1902 …. 10.10 s 197(1)(a) …. 7.12 Legal Profession Act 2008 …. 5.27 Pt 13, Div 10 …. 5.20 Pt 16, Div 2 …. 5.20 s 638 …. 21.30 Mental Health Act 1962 …. 9.18 Mental Health Act 1981 … 9.18 Mental Health Act 1996 …. 9.18 Offenders Probation and Parole Act 1963-1964 s 37(3) …. 7.12 Offshore Minerals Regulations 2010 …. 21.38 Police Act 1892 …. 10.10 s 84 …. 10.10 Police Act 1963 s 3 …. 10.10 Professional Standards Act 1997 …. 5.27 Road Traffic Act 1974 s 5(1) …. 7.12 s 49 …. 12.34 s 49(1) …. 7.12 s 49(1)(a) …. 7.12 s 49(2) …. 7.12 State Administrative Tribunal Act 2004 …. 6.44 Supreme Court Act 1880 …. 2.28 Supreme Court Act 1935 s 62 …. 7.38

Sch 1 cl 174 …. 5.35 Sch 1 cl 470…. 5.35 Presbyterian Synod of Victoria Act 1867 …. 9.74 Professional Standards Act 2003 …. 5.27 Public Prosecutions Act 1994 s 22(1)(b)(ii) …. 6.8 Serious Sex Offenders Monitoring Act 2005 …. 8.47 Social Security Act 1991 …. 9.31 Subordinate Legislation Act 1994 …. 9.81 Pt 2 …. 9.65 Pt 3 …. 9.87 s 5 …. 9.92 s 23 …. 9.88 s 24 …. 9.89 Subordinate Legislation (Revocation) Act 1984 …. 9.90 Summary Offences Act 1966 s 17 …. 4.31 Supreme Court Act 1986 s 12 …. 7.38 Teaching Service Act 1981 s 30(1) …. 12.29 Town and Country Planning (Amendment) Act 1984 …. 9.31 s 2(2) …. 9.31 Victorian Civil and Administrative Tribunal Act 1998 …. 6.44

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WESTERN AUSTRALIA Aboriginal Affairs Planning Authority Act 1972 …. 7.12 s 49 …. 7.12 Australia Acts (Request) Act 1985 …. 2.87, 9.58 Constitution Act 1889 Pt IIIA …. 3.31 Pt IV …. 3.27 Pt V …. 3.27 s 73 …. 9.12 Criminal Code Act Compilation Act 1913 s 41(4) …. 8.49 s 74A …. 4.31 Dividing Fences Act 1961 …. 15.6 Electoral Act Amendment Act 1962 …. 4.61 Evidence Act 1906 s 31A …. 7.23 Fines, Penalties and Infringement Notices Enforcement Act 1994 …. 12.34 Interpretation Act 1984 …. 9.17, 15.6 Pt 6 …. 9.81 s 5 …. 9.93 s 8 …. 12.31 s 10 …. 9.60, 12.28

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IMPERIAL Acts of Parliament (Commencement) Act 1793 (33 Geo III, c 13) …. 9.18 Appeal of Murder, etc. Act 1819 (59 Geo 3, c 46) …. 2.17 Australian Constitutions Act (No 1) 1842 (5 & 6 Vic, c 76) …. 2.63 Australian Constitutions Act (No 2) 1850 (13 & 14 Vict, c 59 …. 2.64 L3

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LAYING DOWN THE LAW

Criminal Justice Act 2003 Pt 10 …. 6.31 Criminal Procedure and Investigations Act 1996 ss 54–57 …. 6.31 Factory Act 1833 …. 2.24 House of Lords Act 1999 …. 2.34 House of Lords Reform Act 2014 …. 2.34 Human Rights Act 1998 …. 3.58, 3.59 s 3(1) …. 3.58 s 4 …. 3.58 s 19 …. 3.58 Judicature Act 1873 …. 2.26, 2.27 Judicature Act 1875 …. 2.26, 2.27 Licensing Act 1872 s 12 …. 10.35 Magna Carta 1215 …. 2.2, 2.10, 2.32, 2.50, 2.67, 3.47 Official Secrets Act 1920 s 3 …. 10.13 s 7 …. 10.35 Patent Law Amendment Act 1852 …. 2.24 Road Traffic (Driving Offences) Act 1936 …. 7.12 Street Offences Act 1989 s 1 …. 10.35 s 2 …. 10.35 Uniformity of Process Act 1832 …. 2.26

Australian Courts Act 1828 (9 Geo 4, c 83) …. 2.58, 2.66, 2.69, 8.84 Colonial Acts Confirmation Act 1863 (26 & 27 Vict, c 84) …. 2.71 Colonial Laws Validity Act 1865 (28 & 29 Vict, c 63) …. 2.3, 2.71, 2.84, 2.87, 21.35 s 1 …. 2.71 s 2 …. 2.74 s 3 …. 2.71, 2.84 s 5 …. 3.16 Commonwealth of Australia Constitution Act 1900 (63 & 64 Vict, c 12) …. 2.80, 3.2 s 9 …. 21.36 Federal Council of Australasia Act 1885 (48 & 49 Vict, c 60) …. 2.78 Judicial Committee Act 1833 (3 & 4 Will 4, c 41) …. 2.73 New South Wales Act 1823 (4 Geo 4, c 96) …. 2.61, 2.62, 2.64, 2.66, 2.67 s 2 …. 2.66 New South Wales Constitution Statute 1855 (18 & 19 Vict, c 54) …. 2.64 Transportation Act 1717 (4 Geo 1, c 11) …. 2.55 Statute of Westminster 1931 (22 & 23 Geo 5, c 4) …. 2.3, 2.84, 2.85, 2.87, 21.35 s 4 …. 2.84 s 10(1) …. 2.85

UNITED STATES OF AMERICA

NEW ZEALAND

Constitution …. 2.49, 2.81, 3.8, 3.45, 3.54

N =

Goods and Services (Price Control) Act 1941 …. 12.39 Prices of Goods Act 1939 …. 12.39 Race Relations Act 1971 s 25(1) …. 12.30 Restriction of Offensive Weapons Act 1959 s 1 …. 12.39

INTERNATIONAL Convention for the Protection of the World Cultural and Natural Heritage 1975 …. 3.36 Convention on International Trade in Endangered Species of Wild Fauna and Flora 1975 …. 3.36 Convention on Wetlands of International Importance especially as Waterfowl Habitat 1975 …. 3.36 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter 1972 …. 9.57 Convention Relating to the Status of Refugees 1951 … 11.10 European Convention for the Protection of Human Rights and Fundamental Freedoms 1953 …. 3.43, 3.58 First Optional Protocol to the ICCPR: Optional Protocol to the International Covenant on Civil and Political Rights 1976 …. 3.43 International Convention on the Elimination of All Forms of Racial Discrimination 1969 …. 3.37,4.48 Art 1 …. 3.37 Art 1(4) …. 4.48

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Act of Settlement 1701 …. 2.2, 2.41, 2.66, 3.47 Air Force Act 1955 …. 2.40 Appeals Act 1972 …. 10.35 Armed Forces Act 2016 s 1 …. 2.40 Army Act 1955 …. 2.40 Australia Act 1986 …. 2.71, 2.75 s 1 …. 2.88 Bill of Rights 1689 …. 2.2, 2.40, 2.66, 3.47, 3.54, 3.55, 3.56, 13.1, 13.2, 13.3, 13.4, 13.8 Chancery Procedure Act 1852 …. 2.26 Common Law Procedure Act 1852 …. 2.26 Constitutional Reform Act 2005 …. 2.49 Criminal Appeal Act 1907 …. 2.27

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TABLE OF STATUTES

Protocol Relating to the Status of Refugee 1967 …. 11.10 Rome Statute of the International Criminal Court 2002 …. 3.42 Vienna Convention on Diplomatic Relations 1964 …. 3.37 Vienna Convention on the Law of Treaties Art 31 …. 11.10, 11.11 Art 32 …. 11.11

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International Covenant on Civil and Political Rights 1976 …. 3.43 Art 17 …. 3.43 Kyoto Protocol to the United Nations Framework Convention on Climate Change 2005 …. 3.35, 3.37 Protocol No 14bis to the Convention for the Protection of Human Rights and Fundamental Freedoms 2009 …. 3.43

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xli

PART

1

Table of Exercises References are to paragraph numbers

Chapter 2 EXERCISE 1: Timelines

2.89

Chapter 3 EXERCISE 2: Bill of Rights and Parliament’s role

3.61

Chapter 4 EXERCISE 3: Extinguishment of native title EXERCISE 4: Sentencing of First Nations offenders EXERCISE 5: First Nations Australians and the law

4.23 4.50 4.70

Chapter 5 EXERCISE 6: Legal professional practice and ethical duties

5.59

Chapter 7 EXERCISE 7: Analysing a case EXERCISE 8: Identifying ratio and obiter

7.12 7.50

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Chapter 8 EXERCISE 9: Precedent in Australian courts

8.90

Chapter 9 EXERCISE 10: Reading and identifying parts of a statute EXERCISE 11: Using interpretation legislation EXERCISE 12: Legislation

9.58 9.61 9.97

Chapter 10

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EXERCISE 13: Approaches to interpretation

10.35

Chapter 11 EXERCISE 14: Use of extrinsic materials

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Chapter 12 EXERCISE 15: Interpretation in context

12.41

Chapter 13 EXERCISE 16: Presumptions of interpretation

13.37

Chapter 14 EXERCISE 17: Statutory obligations and discretions

14.10

Chapter 15 EXERCISE 18: Interpreting the Graffiti Control Act EXERCISE 19: Interpreting the Impounding Act EXERCISE 20: Interpreting the Dividing Fences Act

15.4 15.5 15.6

Chapter 16 EXERCISE 21: Strategy for legal research

16.26

Chapter 17 EXERCISE 22: Searching legal encyclopedias

17.39

Chapter 18 EXERCISE 23: Researching cases by case name EXERCISE 24: Researching cases by topic

18.40 18.42

Chapter 19 19.37

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EXERCISE 25: Researching an Act

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PART

1

Introduction 1 Laying the Foundations

3

2 The Origins and Historical Development of the Australian Legal System

17

3 The Australian Legal System

53

4 First Nations Australians and the Australian Legal System

81 119

6 Going to Law: Legal Dispute Resolution Processes

145

Copyright © 2020. LexisNexis Butterworths. All rights reserved.

5 The Legal Profession and Professional Legal Practice and Ethics

Creyke, Robin, et al. Laying down the Law, LexisNexis Butterworths, 2020. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/monash/detail.action?docID=6413182. Created from monash on 2021-02-01 22:30:06.

CHAPTER

1

Laying the Foundations Wherever law ends, tyranny begins.1

John Locke, ‘On Tyranny’, in Two Treatises of Government (1690) bk 2, s 202.

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Introduction

1.1

Why study law

1.5

Legal systems

1.6 1.11

− Legal theory

1.14

− Legal globalisation and convergence of legal systems

1.18

The civil law

1.19

The common law

1.21

− Sources of law

1.22

− Legal reporting and scholarship

1.23

− Legal research

1.29

− Why rules are not always certain

1.31

Categories of law

1.34

Technical language

1.39

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− The Western legal tradition

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CHAPTER 1

LAYING THE FOUNDATIONS

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Introduction This book offers students an introduction to the foundational knowledge and skills needed for their further study of law, as well as a resource that can be used throughout these studies and beyond. In Part 1, first Chapter 1 explores reasons for studying law; provides an overview of the major legal systems in the world, focusing on common law (Australia’s legal system), and civil law systems; their foundations, including the Western legal tradition; and the convergence of these major systems; and includes a brief introduction to legal theory, ways to categorise laws, and a warning about technical legal language. Second, it outlines the origins of the Australian legal system (Chapter  2), before explaining the key institutions and guiding principles that govern the creation, administration and enforcement of laws in Australia (Chapter  3). To appreciate this history and some of the ongoing privilege and disadvantage that British ‘settlement’2 wrought, Chapter  4 provides an insight into how the Australian legal system has treated and still treats First Nations Australians. To help students understand the roles and responsibilities of lawyers, Chapter 5 outlines the legal profession and the professional and ethical rules that govern this profession. The final section of the book’s introductory part (Chapter 6) endeavours to explain the various ways legal disputes are resolved, with a focus on the actors, steps, safeguards and limits of the criminal trial as a dispute resolution process, but referring also to forms of dispute resolution outside the formal hearing. Considerable attention is then given to the two primary types of law — case law (Part 2) and legislation (Part 3) — explaining how each type of law is created, understood and interpreted.These sections provide an introduction for the student who is new to law, as well as a wealth of detail and insight that makes the text a resource that can be accessed throughout legal studies and into practice. Similarly, Part 4 on legal research provides a comprehensive guide that will be useful for students in their early or later years of study, and even practitioners seeking to update their legal research skills, which are crucial given the speed with which the law evolves. Since the practice of law is essentially about the provision of objective advice and persuasion, written and oral communication skills are equally important.Therefore Part 5 provides guidance on legal writing, referencing, study and exam skills, with practical advice for students navigating the challenging demands of tertiary study. Finally, Part  6 provides an Essential Legal Toolkit that contains a useful array of resources on courts, law reports and key legal terms used in the book. The foundations provided by this book should serve a range of readers. It will equip those students commencing a law degree as well as those about to enter legal practice or embark on other endeavours. It will also prove a useful resource for those in other professional fields who seek to grasp the fundamentals to navigate the law in their particular environment. It is worth making a preliminary point that affects the scope of this book and it concerns the question: what is law? Any group of human beings, large or small, develops rules and expectations to regulate behaviours within the group. Thus families, tribes, schools, societies, religious denominations, municipalities and nations all have rule systems that regulate dealings between their members and aim to prevent anti-social, and encourage desirable, behaviours. It is important to acknowledge such pluralism of 2

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1.1

1.2

1.3

1.4

See 2.56 for the legal meaning given to this term in international law.

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5

LAYING DOWN THE LAW

normative rules, but also to distinguish between them. The focus of this book is not on those informal or unwritten rule systems that govern families, cultures or religions, but the written, state-issued rules that constitute a formal legal system. The formal laws are those produced by public institutions — such as parliaments and courts — that are promulgated and administered publicly, interpreted by the courts, and enforced by power of the state. They might reflect, complement and even rely on social norms and customs, but are distinguishable in their public and formal nature. For further discussion of debates on what is law, see 1.14ff.

Why study law

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1.5

1.6 customary law: rules of conduct, obligatory on those within their scope, established by long usage, eg, First Nations Law

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The study of law is intrinsically rewarding and can equip students for a wide range of different occupations. Relevantly, law in Australia is practised by solicitors, barristers, legally qualified members of tribunals, magistrates and judges, all of whom are professional lawyers. But qualified lawyers also work in many other fields; for example, in government departments and agencies, whether or not in the legal section. Persons with legal qualifications are frequently recruited by banks, investment and publishing houses, and industrial or commercial concerns. Patent officers, police and accountants are among those professionals who need some legal knowledge, while law graduates can also go on to become politicians, academics, journalists, managers, advisers or administrators, among other possibilities. Legal studies can also complement study in many other fields including health, commerce, engineering, social work and creative arts. Studying law is not only about learning the rules; it also trains students to think logically, analytically and critically, and inculcates reading, writing, communication and research skills, in addition to other foundation legal skills discussed in this book. That training provides a broad liberal, as well as a specialist, education which equips the successful student for many different careers. Above all, the study of law leads to an appreciation of law as an important and powerful regulatory tool, but one that needs to be wielded carefully and accountably within the limits of fundamental constitutional principles (see Chapter 3).

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Different legal systems have evolved in different parts of the world, each from a range of sources. Ancient peoples developed principles governing various matters. Nowadays those principles — perhaps the earliest source of law — are called customary law. Similarly, the great religions were fertile ground for the growth of rules governing their adherents. For example, the rules of conduct developed under Islam — known as Shar’ia — still form the basis of the legal systems of a number of countries, including Australia’s near neighbours, Indonesia and, to an extent, Malaysia. In what has become known as the Western legal tradition — see  1.11 — two relatively distinct systems of law have developed and been adopted (or imposed) across the world: common law and civil law. The distribution of these two systems to some extent reflects regional similarities, but largely also colonialism; the common law system developed in England (see Chapter 2) is now seen predominantly in those countries that England colonised, while other European nations spread the civil law model.

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CHAPTER 1

LAYING THE FOUNDATIONS

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Australia, having been colonised by England, has a common law legal system: see Chapters 2 and 3. The essence of a common law system is that the judgments of courts operate not only to resolve the particular dispute of the specific parties before the court, but also stand as precedents for the resolution of future disputes of a similar nature. In this way, these judgments in legal cases are treated as a type of law, known as common law or case law. Other countries whose legal systems are based on the common law include the United States of America, New Zealand, Canada, Ireland, Kenya, India, most territories of the West Indies, Israel and, to some degree, Malaysia. In each of those countries the law has developed differently, reflecting local views of rights and justice and the prevailing social ethos. Most countries, however, use the other system of law in the Western legal tradition: civil law. This includes most of the states of continental Europe and South America, and some in Asia, such as Thailand and Japan. Generally speaking, in a civil law system much of the law is contained in comprehensive documents called ‘codes’ that are heavily influenced by principles derived from Roman law. The Chinese system is based on the civil law model overlaid on a socialist foundation. Important differences exist between the common law and civil law systems. Notably, civil law rules are generally developed by deduction from the principles in the codes, whereas at common law the rules emerge through an inductive process, in cases decided by the courts and tribunals. Both systems rely on precedent, that is, that like cases should be decided alike. But in countries that have a common law system, the doctrine of precedent has a more firm foundation. A number of countries have hybrid legal systems because of their historical relationships with English and Roman legal legacies. For example, Scotland, with its lengthy contacts with France, has a mixed legal system with features of both common and civil law systems. The same is true of Louisiana, which once belonged to France, and of Quebec in Canada.

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THE WESTERN LEGAL TRADITION The Western legal tradition is a name for the two legal systems — common law and civil law – that have evolved over centuries from a common heritage. The Romans created a body of law that they spread as they established their empire.The various parts of Roman law, which was influenced by Greek and Christian legal principles, were collected and organised by the Emperor Justinian into texts that came to be known as the Corpus Juris Civilis. With the disintegration of the Roman Empire and the subsequent disorder in the lands which had once formed that empire, the practice of Roman law ceased and the written records of the law were lost. Those inhabitants of Europe not living in complete lawlessness had only piecemeal local or customary laws with which to exert a civilising influence on their societies. Late in the 11th century in Italy, however, the missing Justinian texts containing the Roman code were found. Along with the Bible and the writings of the Greek philosophers, they became the focus of intensive study by scholars until, over time, the precepts and principles they contained came to form the basis for contemporary civil law, complementing and sometimes replacing the inadequate traditional and customary laws. From that point, the common law and the civil law developed separately — the common E D 8B 38 D = EC CED8I? ED

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1.10 civil law system: a legal system based on Roman law, comprised primarily of legislated ‘codes’ with a lesser role for judge-made precedent

1.11

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law by way of the procedure, methods and decisions of the English courts, and the civil law on the basis of the principles of Roman law combined with custom, canon law, local usages, royal decrees and judicial annotation. This history is relevant to Australia today because of the cultural and legal system superimposed by English colonisation. Although this history is contested, some have argued that it is important to appreciate it because it involves: an integrated understanding of the contribution of the early Romans and Greeks, the framework of what is frequently called the Judaeo-Christian ethic, the growth of the democratic tradition, particularly its British parliamentary iteration, the rule of law, the Enlightenment, and the spread of free and open intellectual inquiry. The Western tradition has further aspects, not least in the fields of literature, music and other art forms.Appreciating it is not an exercise in cultural triumphalism, rather recognition of a complex and enduring historical reality. Durability has been a key feature of that reality.3

natural law: the law of nature; law as the emanation of the Divine Providence, rooted in the nature and reason of humankind

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1.16 jurisprudence: (similar to legal theory) in this context, the science of the study of law; in other contexts, the study of a particular body of law, such as tort law or constitutional law, or simply the case law in any branch of law

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Another point of commonality is that both the common law and the civil law were inf luenced by the theory of natural law which, until the 18th century, was considered by many to be superior to any other theory. While the notion of natural law remains controversial, many of its themes underlie the present-day debate in the West over international human rights. Moreover, belief in the concept of natural law was, in part, the basis of the American and French revolutions — which, in turn, gave rise to much of our current understanding about the nature of democratic government. When the Americans said in their Declaration of Independence in 1776 that they held ‘these truths to be self-evident’, they were asserting a doctrine of natural law. LEGAL THEORY Legal theory is not easy to define. The expression broadly covers the definition, nature and function of law in modern societies, the nature of citizens’ obligations under law, the different theories underpinning legal reasoning, and the interpretation of legal texts. Legal theories have emerged and evolved over time as the following introductory history and discussion indicates. The concept of natural law was reintroduced to Western legal thought by Thomas Aquinas, the profoundly influential 13th-century philosopher and theologian. In his work he combined Aristotelian philosophy with the principles of Christianity. He argued that natural law is universal and informs national laws on the basis that certain values and rights are inherent in, or universally recognised by, human reason. Competing schools of thought, or legal theories and philosophies, have developed since the 14th century.These ideas, which are normally studied in courses on jurisprudence or legal theory, include accounts of the nature of law such as those of HLA Hart, Lon Fuller, Ronald Dworkin, John Austin, Hans Kelsen and Joseph Raz. Among other movements, positivism, legal formalism, utilitarianism, and feminism have all contributed to the understanding of law. Developed over time in response to changes in social, political, economic and ethical understanding, some of these schools of thought have coexisted with others and they have had varying degrees of influence over the evolution of the law in different jurisdictions. The study of the creation and meaning of law, as developed by

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legislatures and courts, is enriched by the study of jurisprudence or legal theory, which better enables an understanding of the factors informing that development. An example of the discourse is the 1958 Harvard Law Review debate between HLA Hart4 and Lon Fuller5 on positivism, morality, and the nature of law. Nearly 60 years later, discussion of their theories remains relevant and continues. Hart took the positivist view in arguing that morality and law are separate — so even ‘bad’ laws are valid. Fuller’s approach, which is consistent with the philosophy of Thomas Aquinas, is that morality is intrinsic to the law and is the source of its binding power or validity. For Hart, it makes no sense to say that laws cease to be laws when they violate certain moral standards — but the natural law tradition does just that. The effect of the opposing views can be seen when applied to the laws promulgated by the totalitarian Nazi regime in Germany. When democracy was restored after the Second World War, the courts had to decide how to deal with legal rules made by the Nazi government. For Hart, although those laws were extremely unjust, they remained valid because the legal system to which they belonged was valid. Nevertheless, because the laws were morally repugnant, they should be disobeyed. Fuller, in contrast, thought that the obligation of fidelity to law arises from the bond of reciprocity between government and citizens. When this bond of reciprocity is ruptured by the government, through its creation of immoral laws, nothing remains on which to ground the citizens’ duty to obey. Similar arguments support civil disobedience and conscientious objection, concepts which clash with the beliefs of those who maintain the need for universal compliance with existing rules, however unfair or unjust: see ‘Rule of law’ at 2.2, 2.48ff and 3.13. LEGAL GLOBALISATION AND CONVERGENCE OF LEGAL SYSTEMS It is not only theories of law that affect its principles. Geo-political forces are also important. Like other aspects of 21st-century life, the law is influenced by the forces of globalisation, leading to a degree of convergence in both the substantive and the procedural law of different jurisdictions. This convergence is occurring formally, through instruments and institutions of international law dealing with matters as diverse as trademarks, travel, climate change and organised crime. It is also occurring informally, as a consequence of increased contact and communication between nations.The convergence is particularly strong in the countries of the European Union. In many respects, the laws of the various European nations continue to operate quite separately. However, all are subject to numerous European treaties, laws passed by the European Parliament, and the decisions of the European Court of Human Rights and the European Court of Justice, bringing an unprecedented degree of uniformity to the laws of countries across continental Europe.

The civil law The above discussions of legal systems and the Western legal tradition have provided some insights into the history and sources of the civil law system. Those foundations have been built on and consolidated, particularly in France, from the 18th century. It was not until 4 5

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1.17 positivism: the theory that law is what humans declare it to be legal formalism: the theory that legal rules are separate from other social and political institutions

utilitarianism: the theory that an action is morally correct if the consequences of adopting it are more favourable to the majority than the consequences of not adopting it

1.18 feminism: the view that while law may provide nominal equality, it has been constructed by men, is under the control of men, and systematically favours the interests of men over women; therefore it should be reconceived to pursue genuine equality

1.19

HLA Hart, ‘Positivism and the Separation of Law and Morals’ (1958) 71(4) Harvard Law Review 593. Lon L Fuller,‘Positivism and Fidelity to Law: A Reply to Professor Hart’ (1958) 71(4) Harvard Law Review 630.

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the 19th century that most countries in continental Europe were in a position to develop wide-reaching and complex legal systems. Napoleon Bonaparte came to power after the French Revolution, which commenced in 1789; as well as expanding the French Empire, he drew up a detailed civil code to apply to the whole of France. By 1810, the Civil Code, the Code of Civil Procedure, the Commercial Code, the Code of Criminal Procedure and the Penal Code, together known as the Code Napoléon, had become law. The use of the Napoleonic Code spread throughout much of Europe and, although most nations have since drafted their own codes, and the French Code itself has been revised, it has had a strong influence on the current legal systems of civil law countries. Precepts from civil law systems have had a significant impact on the legal systems of countries with common law systems, wherever they are located, through trade and other interactions with the European Union by citizens, officials and corporations.This is another example of convergence of legal systems. That influence was experienced in the common law, notably by the United Kingdom during its membership of the European Union. This was due to the adoption, in accordance with the Treaty of Rome, of rules made by the European Parliament and through the findings of institutions such as the European Court of Justice. The decision by the United Kingdom to leave the European Union will inevitably result in a diminution of the effect of the civil law on the common law system as practised across the English channel.

The common law 1.21

legislation: new rules made by Parliament and by those to whom Parliament has delegated authority, generically known as subordinate legislation

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The common law, from its beginnings in the latter part of the 11th century, developed its particular characteristics precisely because it was common — it applied to all of England, Wales and, progressively, Ireland — and because of the relative stability of government in England over the subsequent centuries: see Chapter 2. SOURCES OF LAW A major source of the rules in a common law system is cases — the decisions, and the reasons for those decisions, made by judges in the courts: see  Chapters  7 and  8. Nowadays, however, an even more significant source of new rules is legislation, primarily the statutes enacted by Parliament. Part  3 deals in detail with legislation in Australia, explaining how it is made, the forms it takes and the purposes it serves (Chapter  9), followed by an explanation of the approaches taken by the courts and tribunals to the interpretation of legislation in this country (Chapters  10–14). Other sources are also increasingly important. These include international instruments such as treaties, agreements and conventions; international customary law, particularly in the mercantile area; and recognition of the laws and customs of the country’s First Nations peoples: see Chapter 4. LEGAL REPORTING AND SCHOLARSHIP To develop a body of law derived from court judgments to then apply across the land, there needed to emerge a system of reporting and publishing of those judgments. The evolution of case law principles depended on the existence of records of the previous cases. Today we take for granted our ready access to reports of court judgments, but that

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was not always so. Only in 1865 did the reporting of cases become systematic. The body of legal literature that developed during the early common law period was thin. But, however haphazardly it was applied, the doctrine of precedent, or stare decisis (see 2.8 and 7.13ff) — and thus the need to consult earlier decisions — was important even at that early stage. The few early law books that still exist are concerned with the workings of the courts. Unlike the Continental or Roman tradition, early English lawyers largely eschewed the scholarly treatise in favour of what we might think of today as the practitioner’s guide. Two of the earliest surviving works (dating from the 12th and 13th centuries, respectively), known as Glanvill and Bracton after their supposed authors, consist of the collected writs (see 2.11ff), together with notes on court procedure. These collections of writs — which were indispensable tools for the working lawyer — were followed in succeeding centuries by similar series. Perhaps the best known of the later writ compilations was Sir Edward Coke’s Book of Entries (1614). The earliest reports of cases came in two forms. First are the so-called ‘Rolls’: the court records which contain notes of the disputant parties and the final outcomes of cases, but without any indication of the reasoning used by the judges.6 The other source of information about early cases comes from what are known as the ‘Yearbooks’, of which the first surviving copy dates from the mid-13th century. The actual origin of the Yearbooks is obscure — we do not know whether they were written for practising lawyers or for law students — but, unlike the Rolls, the Yearbooks did make a record of the judges’ reasons for decisions. These Yearbooks were not officially sanctioned but compiled by private individuals. Gradually, the reports were ordered and published more systematically. By the mid-1500s, the Yearbooks were replaced by a more complete and formal (although still entirely private) series of reports. Because these reports were published by each reporter under his own name, they have become known collectively as the ‘Nominate Reports’. The Nominate Reports continued until 1865, when they were replaced by the series of officially sanctioned reports which are still in use in England today. Between 1900 and 1930, as many Nominate Reports as could be found were gathered together and republished in a 176-volume set called the English Reports. In the development of the common law, the writings of two men are worthy of special mention: Sir Edward Coke and Sir William Blackstone. Coke was a prolific author as well as a judge. In addition to his Book of Entries, he published a four-volume work entitled The Institutes of the Laws of England (1628–41). Coke’s Institutes, as they are known, are significant because they represent an early attempt to outline in a systematic way the entire body of English common law. Furthermore, he was one of the busier law reporters (producing 13 volumes of Coke’s Reports, or ‘The Reports’, as they are sometimes known). In the 18th century Sir William Blackstone, who was the first occupant of the Vinerian Professorship of English Law at the University of Oxford (the oldest university chair of common law in the world), followed Coke’s Institutes with his Commentaries on the Laws of England (1765–70). Also consisting of four volumes, Blackstone’s Commentaries, as they are popularly referred to, was a further attempt to canvass the entire field of English 6

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1.24

1.25

1.26

1.27 writ: initially a written command from the monarch that something be done; later developed into a form of written command in the name of a court or other legal authority to act, or abstain from acting, in a particular way

The head of the English Court of Appeal Civil Division today is known as the Master of the Rolls because the office they hold began as one of the official record-keepers.

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law in a systematic form. Blackstone’s Commentaries were very highly regarded both in England and the United States, and remain of occasional use as a research tool even today. Twenty-first century legal scholars in common law countries, whether judges, practising lawyers or academics, publish their writings in encyclopedias, books, monographs and periodical articles, which substitute for those earlier commentaries. So the variety of sources of law has expanded considerably. Mention need only be made of areas such as the law relating to reproductive technology, cyber law, animal law, or regulation of the internet, to illustrate how the law has developed to cover new fields of human endeavour or interest.This expansion has been matched by a comparable increase in the number and size of series of law reports, adding to the vast store of information available for use by the legal profession. LEGAL RESEARCH It might be thought that this explosion of knowledge would make it difficult to be a competent lawyer. There is undoubtedly a need for a legal practitioner or a law student to develop legal research skills. But legal practitioners tend to specialise in their practice, avoiding the need to master an ever-widening body of laws. Furthermore, technological advances have ameliorated some of the difficulties of dealing with the large amount of information now available. Case law and other sources of law are loaded into databases that the researcher can search electronically, thus speeding up the process considerably. So, while there has been an accretion of information and sources to which legal researchers, practising lawyers and others must refer, technology has assisted in making the task manageable. Nonetheless, finding the law — the rules appropriate to a particular case or legal problem — may be difficult. That is partly because there is so much law contained in both legislation and cases (for example, Acts such as the Income Tax Assessment Act and the Corporations Act run to thousands of pages) and partly because, at least in some areas, the law changes so rapidly. Well-developed legal research skills are therefore essential for anyone wishing to find and use the law.Techniques of legal research are outlined in Part 4. Finding relevant cases is only the first step. It is the principles for which the case is authority and what weight it deserves that is the object of the research. How to identify the rules in the cases and their legal status is explored in Chapters 7 and 8. Nowadays, however, an even more significant source of new rules is legislation. Chapter 9 deals in detail with legislation, explaining how it is made, the forms it takes and the purposes it serves. Chapters 10–14 explain the approaches taken by the courts and tribunals to the interpretation of legislation and illustrates the interaction between the courts and the legislatures in the development of legal principles. WHY RULES ARE NOT ALWAYS CERTAIN Glib talk of legal systems and rules might suggest that all the laws in force in Australia today could be listed, and that a lawyer need only search through the list until the rule applying to the client’s case is found. But understanding and practising the law is neither as dull nor as easy as that.The law, particularly legislation, is necessarily expressed in general terms and often permits the exercise of discretion.To apply the law to actual transactions or incidents is rarely mechanical, and generally requires interpretation and judgement. Furthermore,

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even though many rules are written down, there is an engrossing fluidity to the law. Resolution of a dispute may bring two basic, widely accepted, principles into conflict. An incident might raise issues which have never been raised before. What is reasonable, and hence probably lawful, behaviour changes with society’s values and perceptions. Some of the reasons for the lack of certainty in aspects of the law as practised in Australia are explored in Chapters 7 and 8 as to case law, and in Chapters 10–14 as to legislation. The complexity of common law systems is compounded by the richness of the English language. What is a boon to authors, playwrights and poets is often problematic for those wanting certainty of rules for lawful conduct. Many English words have multiple meanings. Choice of the most pertinent of those meanings that applies to a given situation must be determined by parliamentary drafters and those resolving disputes in courts and tribunals. Assistance in identifying meaning from the context of written documents, particularly legislation, is informed by the rules of statutory interpretation: see Chapters 10–14. A result of this uncertainty is that a law will not always be accepted as applicable to a given situation. An individual’s idea of justice in relation to a dispute is subjective — informed by that person’s own moral and social beliefs.The law and those who administer it, however, aim to be objective — to reach the right resolution to a dispute given the legal principles applicable to the case. But when the case raises a difficult issue, even expert lawyers may come to completely different conclusions and experienced judges may disagree as to the correct outcome. In other words, there may not be an objective right answer, let alone one which accords with the individual’s view of justice. Not surprisingly, these inadequacies have led to centuries of serious criticism and rejection of the law by philosophers, members of religious groups, and anarchists. Nevertheless, imperfect though the legal system may be, in our democratic societies it is acknowledged as being the most acceptable way of regulating our dealings with one another.

public law: the law governing relations between individuals and the state

1.32 private law: the law governing relations between non-state entities, including individuals and organisations

1.33 civil law: the law dealing with disputes between individuals, or between organisations, or between both, providing for compensation from the party in breach of an obligation

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Given the increasing complexity of the law, a key strategy for lawyers in researching and analysing a legal problem is to categorise it according to the area of law likely to be applicable.Various systems of categorisation may be employed. A commonly encountered distinction is between public law and private law. Public law governs the operation of the state and the relationship between the state and individuals, while private law is concerned with relations between individuals or entities. Public law matters include those where an individual has been accused of a crime, is questioning an entitlement to a government subsidy or income support, or is disputing a taxation assessment. Private law deals with, for example, commercial matters, claims arising out of accidents, wills, and disputes over property following the breakdown of a marriage. Another common distinction is between civil law and criminal law. (‘Civil law’ in this domestic law context has a different meaning from that used earlier to describe a national system of laws as either a civil law or a common law system: see 1.9.) Civil law is the law of private disputes between individuals — for example, over sums of money or which party should bear the cost of a loss or injury. A successful civil action most often results in the payment of compensation. Criminal law, however, is concerned with standards of conduct that are viewed as having such importance that their breach is of public importance, enforced E D 8B 38 D = EC CED8I? ED

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1.36 criminal law: the system of law concerned with the punishment of offenders by the state

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1.38

by a public agency that needs to satisfy a court to a high standard of proof in establishing wrongdoing, and possibly resulting in punishment (such as a fine or imprisonment). Of course, far more detailed systems of classification can be devised. Private and civil law can be broken down into contract, tort, property, succession, and so on. Each of these classifications is then subject to further divisions. Property law could be divided into personal property, real property, and landlord and tenant law. Although classification is useful, because of the prevalence of competing labels and the overlap between classes, no particular scheme can be said to be the only correct one. For example, in legal practice the terms ‘commercial law’ and ‘personal injury law’ are quite common. ‘Commercial law’ consists largely of contract law but also contains some tort law, while ‘personal injury law’ largely consists of rules of the tort of negligence but also includes some contract law. Further useful distinctions explored in subsequent chapters include the distinction between the two chief sources of law, cases and legislation, and the historical distinction between two types of case law, common law and equity. Another essential area of study for the aspiring lawyer is legal ethics. This consists of the set of rules and principles that govern the lawyer’s practice, including their relationships with other lawyers, clients, parties, and the court. Legal ethics are discussed in Chapter 5.

Technical language

puisne: (pronounced ‘puny’) from Old French meaning ‘born later’; a puisne judge is a judge who is inferior or junior in rank (ie not the chief justice)

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The newcomer to the study of law also has to become confident with its technical language, while always trying to use the clearest forms of expression available. Some legal terms originated in Latin (habeas corpus, ultra vires, mens rea) and others in Old French (chose in action, en ventre sa mere, tort, puisne — pronounced ‘puny’), words which illustrate the historical influences on the development of the common law. Some English words are used in an unusual or archaic sense (determine = bring to an end; touching = concerning; instant = present). When reading legal documents, therefore, a law dictionary (and a standard English dictionary) are often needed. Unfortunately, some lawyers use ‘pseudo-technical’ language or jargon, which tends to obscure meaning. Examples of this are the use of unnecessary words such as ‘aforesaid’; the use of synonyms in pairs, such as ‘fit and proper’; and the use of sentences with qualifications beginning ‘provided that’ or ‘notwithstanding’. Chapter  20 provides some guidelines for plain English which should help those engaged in legal writing to avoid the use of unnecessary, inappropriate and ambiguous language. Essential Legal Toolkit F contains a glossary of legal terms, including some of the more common and important Latin and Old French expressions. At this point, you have been introduced to the world’s major legal systems and their historical origins and developments, with particular emphasis on the common law system inherited by Australia and aspects of its operation. You have been exposed, in brief, to key inf luences on these systems, including legal theories, and geo-political and other forces; you have been provided with pointers to the chapters which examine in detail how to find, evaluate and use these rules. You are now ready to delve into the chapters setting out the foundational principles that underpin the common law system as practised in Australia.

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• Australian Legal Words and Phrases (online) (LexisNexis). An excellent reference tool, this work provides over 100,000 words and phrases defined in legislation or judicially interpreted in the Australian superior courts and selected tribunals. • Lauren Benton, Law and Colonial Cultures: Legal Regimes in World History, 1400–1900 (Cambridge University Press, 2002). • Michael Brogan and David Spencer, Surviving Law School (Oxford University Press, 2nd ed, 2008). • Ray Finkelstein and David Hamer, LexisNexis Concise Australian Legal Dictionary (LexisNexis Butterworths, 5th ed, 2015). This is the best dictionary for early-year law students.

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• Ellen Goodman, The Origins of the Western Legal Tradition from Thales to • • • • • •

the Tudors (Federation Press, 1995). Kathy Laster, Law as Culture (Federation Press, 2nd ed, 2001). A lively book on how to study law and ways of thinking independently about law. Trischa Mann, Oxford Australian Law Dictionary (Oxford University Press, 3rd ed, 2017). Also available online. Patrick Parkinson, Tradition and Change in Australian Law (Lawbook Reuters, 5th ed, 2012). An insightful exposition on the origins of, and influences on, the Australian legal system. Prue Vines, Law and Justice in Australia (Oxford University Press, 3rd ed, 2013). Glanville Williams, Learning the Law, ed ATH  Smith (Sweet & Maxwell, 15th ed, 2013). A new edition of a classic and concise introductory text on the law. Mick Woodley et al (eds), Osborn’s Concise Law Dictionary (Sweet & Maxwell, 12th ed, 2013).

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The Origins and Historical Development of the Australian Legal System

Copyright © 2020. LexisNexis Butterworths. All rights reserved.

[H]istory, in illuminating the past, illuminates the present, and in illuminating the present, illuminates the future.1 1

Benjamin N Cardozo, The Nature of the Judicial Process (Yale University Press, 1921) 53.

Creyke, Robin, et al. Laying down the Law, LexisNexis Butterworths, 2020. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/monash/detail.action?docID=6413182. Created from monash on 2021-02-03 06:32:52.

Copyright © 2020. LexisNexis Butterworths. All rights reserved.

18

Introduction

2.1

Roots of English law

2.5

− Birth of the common law

2.6

− Formalisation of court structures

2.9

− Writ system

2.11

− Trial procedures in the early common law

2.15

− Equity

2.20

Reform of court procedure in the 19th century

2.24

Foundations of modern constitutionalism

2.29

− Magna Carta and the first parliaments

2.32

− Reformation and Parliament

2.35

− English Civil War

2.36

− The Glorious Revolution and the constitutional settlement

2.40

− Emerging role of Parliament

2.42

− Development of an executive arm of government

2.44

− Separation of powers and the rule of law

2.48

The foundation of the Australian legal system

2.53

− Transportation and settlement

2.55

− Doctrine of terra nullius

2.57

− Reception of English law

2.58

Evolution of an independent legislature

2.60

Development of judicial independence

2.65

Continuing connection with English law

2.69

− Repugnancy and the Colonial Laws Validity Act

2.69

− Judicial Committee of the Privy Council

2.72

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CHAPTER 2 THE ORIGINS AND HISTORICAL DEVELOPMENT OF THE AUSTRALIAN LEGAL SYSTEM

2.77

− Federation

2.77

− Statute of Westminster 1931

2.84

− The Australia Acts 1986

2.87

EXERCISE 1: Timelines

2.89

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The path to constitutional independence

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Introduction 2.1

To gain a proper understanding of Australia’s current legal system it helps to understand its origins and historical development.2 As legal scholar Patrick Parkinson explains: In its legal institutions, as in other aspects of its national life, Australia bears indelibly the marks of its birth. The legal and political institutions of Australia find their roots not in the traditions of its native inhabitants, but in the traditions of a colonial power which imported its understanding of law and social organisation with the landing of the first white settlers in 1788.3

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2.2 rule of law: a central constitutional principle imposing principled limits on the government’s power: individuals and government officials are all subject to the law as administered by the courts

2.3

It is worth understanding the evolution of the English legal system because the Australian legal system shares much of this history. Both are systems of Westminster parliamentary democracy, so called because the Parliament of the United Kingdom (which now includes Scotland and Northern Ireland as well as England and Wales) is located in Westminster, a government district in Central London. Westminster has been the seat of England’s government since the 13th century; however, the origins of the English common law legal system can be traced back to the Norman Conquest of England in 1066. While the Australian legal system began its independent development with the arrival of the first British colonists in Sydney Cove in January 1788, English institutions continued to exert an important inf luence. Australian law still shares structures and doctrines with England and other common law countries. This is the case notwithstanding that Australia now has its own legislatures and legislation, and its own common law, that is, its own body of case law developed by Australian courts, informed by its own history, and operating under the Australian Constitution.4 Accordingly, this chapter begins with a discussion of the origins of the English legal system, starting with the birth of the common law system following the Norman Conquest. It outlines some of the key stages in the evolution of the English constitution and system of government. Parliament grew in strength during the Tudor era in the 15th century, in part because of Henry  VIII’s need for nobles’ support in dealing with his personal and political issues. During the Stuart era in the 16th century, conflicts developed between the monarch, the courts, and Parliament which cost many lives, but resulted in a stronger, more independent, legislature and judiciary. Over the centuries, the increasing demands placed on the courts led to a formalisation of its methods, including the writ system, and important procedural reforms such as the Judicature Acts of 1873 and 1875.This chapter also examines other important structural developments in British constitutional history. At key stages, formative legislation was passed, including the Magna Carta in 1215, the Bill of Rights 1689 and the Act of Settlement in 1701. Alongside these documents, unwritten constitutional principles emerged, such as the rule of law and separation of powers, that were subsequently extremely inf luential in both common law and noncommon law countries. Having explored English legal history, the chapter shifts its attention to the development of the Australian legal system. We begin with the arrival of English settlers 2 3 4

20

Paul Finn, Law and Government in Colonial Australia (Oxford University Press, 1987). Patrick Parkinson, Tradition and Change in Australian Law (Lawbook, 5th ed, 2013) 3. See Lipohar v The Queen (1999) 200 CLR 485 [50], [57]; Commonwealth v Yarmirr (2001) 208 CLR 1.

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CHAPTER 2 THE ORIGINS AND HISTORICAL DEVELOPMENT OF THE AUSTRALIAN LEGAL SYSTEM

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who brought English common law with them. As discussed further in Chapter  4, regrettably, at settlement and subsequently, little respect was paid to the significant history and wisdom of First Nations customary law. New South Wales was established as an English penal colony under military rule. Relevant English law was ‘received’ by New South Wales, and other Australian colonies on their establishment. In time, colonial governments acquired the power to develop their own law; however, this was subject to the repugnancy doctrine, which invalidated Australian laws that were inconsistent with English law. Legislatures’ independence grew and the repugnancy doctrine was narrowed in the Colonial Laws Validity Act 1865 (Imp). Australia’s constitutional structures followed a path of evolution similar to that of the corresponding English institutions. A court system developed in New South Wales that asserted its independence from the executive arm of the government. A bicameral legislature emerged that also achieved independence from the Crown. Australia adopted England’s Westminster system of responsible government. However, the Australian colonies grew in confidence and began to assert their independence from Britain. Impetus was provided by the federation movement of the 19th century, culminating in the Australian Constitution which commenced on 1  January 1901. However, it took much of the 20th century for Australia to gain full legal independence from England. Key steps included the Statute of Westminster 1931 and the Australia Acts 1986 (Cth and UK). The common law system is inextricably intertwined with history. This is because a key feature of this legal system is the degree to which it relies on precedent, or courts’ previous decisions. As will be seen in later chapters, this has important implications for the nature of legal reasoning in common law countries.When a common law court decides a case, the court looks to previous judgments for relevant precedents to apply to the facts in the case before it. The court uses the past as the yardstick against which to assess present conduct. Although history and law are very different disciplines, a good lawyer needs an appreciation of the way in which the common law legal system has developed over the past thousand years.

Roots of English law The year 1066 is one of the watershed dates in English legal history. The conquest of England by William, the Duke of Normandy, led to the evolution of the distinctive legal tradition that we now refer to as the common law. The conquest in 1066 did not bring a sudden or dramatic change. William found that England already possessed a quite sophisticated and longstanding system of dispute resolution. One of William’s first acts after slaying King Harold at the Battle of Hastings was to declare that the existing system of Anglo-Saxon laws would continue in force. One of the key problems with the pre-Conquest legal system in England was its variability. Anglo-Saxon law was based on local custom and, because England had been subject to so many invasions in the six centuries since the departure of the Romans, different parts of the kingdom had different customs. So even though a unified political entity called England had existed since the ninth century, there was no single set of rules and norms which applied to society as a whole.

separation of powers: an important constitutional principle which avoids the concentration of government power by dividing it up between the three arms of government: the legislature, the executive and the judiciary bicameral legislature: a legislative body consisting of two Houses of Parliament (a unicameral legislature has one House)

2.4 responsible government: a system of government in which the executive government (eg prime minister and cabinet) is responsible to the (generally, democratically directly elected) members of the legislature

2.5 1066: the year of the Norman Conquest of England, a seminal event in the development of the English common law

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2.6

2.7 feudalism: a strongly hierarchical system of social and political organisation based on land ownership that was dominant in medieval Europe including the British Isles

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2.8

stare decisis: Latin maxim, in full stare decisis et non quieta movere: ‘to stand by decisions and not disturb the undisturbed’

BIRTH OF THE COMMON LAW The Norman Conquest did not impose a new body of substantive law in England. However, it modified England’s economic and social system and this, in turn, allowed a new legal system to develop. Normandy possessed a hierarchical land ownership and social system called feudalism. The Normans introduced feudalism to England, and it was then to play a key role in the development of the ‘common’ law. Feudalism was a system both of land ownership and of governance, ref lecting a formal social hierarchy from the king down to the peasants. (England had male monarchs throughout the feudal period. The first female monarch after the Norman Conquest was Lady Jane Grey in 1553.) The king nominally owned all the land, but effectively leased it out to nobles (known as lords), as tenants-in-chief. Beneath the nobles was a series of descending levels of sub-tenants. Successive levels within the hierarchy were linked by mutual promises. While every subject was expected to be loyal to the king, they also owed allegiance to their landholding lord. Attached to the tenant’s bond of loyalty was an obligation to provide their lord with a share of their crops and, if necessary, to engage in military service on the lord’s behalf. In return, the king and the lords promised to protect and assist their tenants in times of need. The Norman kings employed the feudal system in their governance of England because they did not have sufficient power to exercise personal control over the whole country. The system allowed each feudal lord to govern their own specific territory or fiefdom, and this role included keeping the peace by resolving local disputes between subjects using local courts. In the early days these local courts provided little consistency or predictability; an early book about English law referred to the ‘utterly uncertain dice of pleas’.5 However, all subjects were ultimately answerable to the king, and it was the king’s role in resolving personal disputes that allowed for the emergence of the ‘common law’ system. Three particular aspects of the king’s role are relevant: precedent, impartiality and the force of his decisions. The king would travel the kingdom ‘holding court’, receiving petitions from the people, and hearing and addressing their complaints. Often, the petitioners complained of acts of injustice by local officials, or of general unfairness in local administration. Because they had no real local knowledge, the king or his delegate dealt with these petitions on the basis that like cases should be treated alike, bringing some consistency. That was the foundation of the system of precedent known as stare decisis, a legal principle by which courts are obliged to respect the principles established by prior decisions. This principle is discussed further in Chapter 7. It was this means of avoiding the arbitrariness so often complained of in the local courts that led to the common law’s success. Since the king or his delegate was less likely to be parochial and affected by local prejudice when he resolved disputes, people sought the king’s justice in preference to that of the local lords. Another attraction of the new system was that the king’s decrees were paramount and had force throughout England. In modern terms, for litigants shopping for the most suitable forum, the possibility that a judgment would be recognised, and enforced, throughout England had an understandable appeal.

5

22

Incerta penitus alea placitorum in Leges Henrici Primi (c. 1115), vi, 6, quoted in John H Baker, An Introduction to English Legal History (LexisNexis Butterworths, 4th ed, 2002) 13 n 3.

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Over time, a body of royal rulings built up. What developed as a corollary to the king’s need to establish and maintain peace and order throughout the newly conquered territories contained the seed of the system of private dispute resolution now known as the common law. The term ‘common’ reflected the fact that the king’s rules applied throughout the land to all English people, regardless of the custom in their own county. FORMALISATION OF COURT STRUCTURES The evolution of courts as legal structures operating independently of the individual monarch was gradual. A key first step was for the king to delegate some of his disputeresolution power.While the king’s rulings remained paramount, as a matter of convenience, the king began to allow one of his advisory bodies to determine disputes on its own.This formed a precursor to independent courts. From the earliest times after the Conquest, the kings gathered a body of trusted advisers, the Curia Regis, or ‘King’s Court’. In this context ‘court’ meant the sovereign’s personal retinue rather than a judicial body. The Curia Regis functioned as a general advisory body, providing the king with counsel and advice before he made decisions. Gradually some decisions regarding disputes were left to members of the Curia Regis itself. Some advisers, whose job it was to advise on more general questions of policy, became known as ‘the Council’. There was considerable overlap in the membership of the two bodies, at least initially. The appointment of the Curia Regis marked an important step in transforming the common law from a personal instrument of the king to an apparatus of government. In the early days, to seek the king’s intercession in a dispute required the individual to approach him in person. Seeking royal justice became more feasible when delegates were appointed who could act in the king’s absence, and make decisions in his name. In this respect, a further significant development was the appointment, beginning in the 12th century, of Justices in Eyre (travelling justices, not necessarily members of the Curia Regis), who carried the king’s commission to hear and resolve disputes in all parts of the country. For the purposes of these itinerant commissions, England was divided into a series of regions, or ‘circuits’, which formed a basis of legal administration until the 1970s. The Justices in Eyre were also instrumental in developing a bank of cases or precedents which they applied throughout the land. Eventually, a central standing court emerged. While Justices in Eyre roamed to hear disputes, the Curia Regis continued to deal with matters that were brought to the royal household. As the workload increased, the Curia Regis was divided into two specialised bodies.The first specialist body, made up of professional judges, heard disputes between commoners and became known as the Court of Common Pleas. In 1215 as part of the Magna Carta, King John reluctantly agreed the Court of Common Pleas would not travel with the king, but would remain in a fixed place: see 2.32. This was later designated as Westminster in London, and the Common Pleas were heard there until the court ceased to exist more than 660 years later. A second court, made up of financial advisers, heard disputes involving the royal revenue. Because the table at which this body sat was covered with a chequer-patterned cloth, it came to be known as the Court of Exchequer. (For this reason the modern-day British Treasurer is known as the Chancellor of the Exchequer.)

2.9

commission: a document certifying the appointment to a position of authority by the sovereign

2.10

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A third court emerged from travelling justices. Because this court carried the King’s commission it came to be known as the Coram Rege, or ‘King’s Bench’, (and later ‘Queen’s Bench’ when Elizabeth I took the throne). Unlike the Common Pleas, the King’s Bench had a monopoly on those disputes involving the king himself, or touching upon royal interests. These three dispute-resolving institutions — the Common Pleas, the Exchequer and the King’s Bench — are together known as the common law courts, and it was through their work that the distinctive English system of justice known as the common law flourished.

2.11

writ: a written command from the monarch that something be done

2.12

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plaintiff: a person making a formal legal complaint to the courts seeking redress from another person, the defendant

2.13

legal fiction: the legal acceptance of a fabricated version of facts so as to extend the reach of existing law to cover a novel situation

WRIT SYSTEM The formal division of the Curia Regis into the three common law courts and the Council was an attempt to cope with the demands of centralised government. But it was not enough. The new common law courts still struggled to manage the numbers that flocked to them. In response, the courts’ procedures were made more formal and regular. The chief means of organisation that evolved was a system of writs. Originally, a writ was a written formal command from the king to a sheriff, the king’s representative in each county, that a person, against whom a complaint had been made, must be brought to court to answer the allegation.The person making the complaint, the plaintiff, was required to purchase the appropriate writ from a royal official called the Chancellor, and it was through the royal authority flowing from the writ that the legal process was begun. There were a number of different types of writs; they were what we would think of today as standard forms with a different template for each different type of complaint. The writ system provided a means of organising the diverse types of disputes presented to the courts. The writ system became problematic in part because the lords stifled its development. As the common law continued to expand, the types of writs multiplied and local lords became suspicious about the degree to which the king’s system of justice was supplanting their authority over their feudal tenants. In 1258, the nobles extracted from the king a promise, known as the Provisions of Oxford, that no new types of writ would be issued without the express authorisation of the Council (whose membership included many of the nobles). Such was the popularity of the common law, however, that not long afterwards the nobles were forced to allow some new writs to be created. The courts themselves tried to alleviate some of the problems with the writ system. To accommodate the popular demand for court hearings in cases where new forms of writ were not available, the common law courts began to permit the use of what are known as legal fictions (that is, the use of fabricated facts) to enable new types of cases to be brought within the existing writs. For example, a legal fiction was used to extend the jurisdiction of the Court of Exchequer. As noted above at 2.10, the Exchequer’s original function was the collection of Crown revenue. However, the writ of quo minus enabled private citizens to use the Court of Exchequer to recover debts on the basis that they were indebted to the Crown, and recovering the debts owed to them would in turn enable them to repay the Crown. The first recorded use of this legal fiction is in 1230, and its use continued until writs were abolished in the extensive procedural reforms of the late 19th century: see 2.24ff.6 6

24

Harold Wurzel, ‘The Origin and Development of Quo Minus’ (1939) 49 Yale Law Journal 39.

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The writ system exemplifies an underlying feature of the common law that continues to the present day, namely its emphasis on procedure. The ability to bring a case, a suit, in the king’s courts depended upon being able to find a ‘form of action’ which would accommodate the claim. In 21st-century Australia, in order to sue the defendant, the plaintiff must still find an appropriate cause of action.This means that before a court can deal with the substance and justice of a dispute, the claim must be put into the proper procedural form. TRIAL PROCEDURES IN THE EARLY COMMON LAW Despite its popularity, the early common law system of trials for resolving disputes was not free of systemic deficiencies. In the early days, the king’s representatives sought to resolve some disputes by an appeal to divine intervention. Trials by ordeal and battle reflected an expression of faith that God would identify the wrongdoer. The ordeal was commonly used in criminal cases. There were different forms of ordeal. Two common forms were the scalding of a hand or arm with boiling water or the burning of a hand with a red-hot iron; the healing of the hand or arm within a given period was a sign from God that the person was not guilty. Another was the casting of an accused person in a pool of water; floating — being rejected by the water — was a sign of guilt.7 From a modern viewpoint these methods may appear irrational. However, it has been argued that in their historical context they may have been an effective and efficient way of revealing the truth.8 Parties facing the ordeal, believing that God would intervene, tended to reveal their guilt or innocence. Indeed, many guilty defendants would seek to avoid the ordeal altogether, and the priest administering the ordeal would seek to avoid harming innocent defendants. Trial by ordeal came to an end in 1215 when the Church forbade the participation of priests in the common law process. Trial by battle was used in non-criminal cases, but it was based on a similar premise — that God would not allow a party in the wrong to be victorious. In a battle, the participants were each armed with a long staff and a leather shield, and the fight continued until one party gave up or was knocked unconscious. Infants, women and the elderly could employ champions to fight in their stead. While virtually obsolete by the end of the 13th century, trial by battle was not formally abolished until the early 19th century. To the surprise of many, in Ashford v Thornton,9 one of the parties sought to claim the right to engage in battle in lieu of the ordinary court process. It was only then that a statute10 was (hurriedly) passed to abolish trial by this means. But some commentators still see elements of this approach in the modern adversarial trial: ‘a trial is a battle and the lawyer the client’s champion’.11 The adversarial system is discussed further at 6.16ff. Another, perhaps more modern, method by which a party could persuade the court to accept its version of events was the ‘wager of law’ or ‘compurgation’. The 7

8 9 10 11

2.14

cause of action: the essential facts that must be proven to ground a legal claim for redress

2.15

2.16

2.17 champions: derived from the French word ‘champ’ meaning field; a champion was someone who would take the field on your behalf

2.18

Given that the sign of innocence in the ordeal by water was sinking (being accepted by the deep), the unjustly accused person hoped for a speedy group of judges who would pull him or her up before drowning! Peter Leeson, ‘Ordeals’ (2012) 55 Journal of Law and Economics 691. (1819) 1 B & Ald 405; 106 ER 149. 1819: 59 Geo III, c 46. Elizabeth G Thornburg, ‘Metaphors Matter: How Images of Battle, Sports and Sex Shape the Adversary System’ (1995) 10 Wisconsin Women’s Law Journal 225; see also Jerome Frank, Courts on Trial (Mass, Atheneum Reprint, 1963) 91.

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2.19

2.20

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2.21

equity: a body of law which, in opposition to the more rigid and formal common law, was applied flexibly according to notions of fairness

party would swear an oath as to the truthfulness of their statement before the travelling justice, and then produce local people, ‘oath helpers’, who would swear that they believed the statement. A similar institution for resolving disputes is the assize. It was adopted under King Henry  II (1154–89) for settling property and inheritance disputes. Travelling justices would enlist the services of men from the locality who would determine which party was telling the truth, based on their local knowledge. This process was extended to criminal law as well and these men came to be known as the ‘jury’. Historically, the jury was to act on its own existing local knowledge. The modern jury, by contrast, should have no prior knowledge or connection with the disputed events. The jury should decide the case only on the evidence presented to it in court. In the age of the internet and the mobile phone, this is becoming increasingly difficult to achieve.12 It may be hard for jurors to avoid exposure to media reports about, and they may be tempted to do their own research on, the facts of the case, the applicable law, or the background of the defendant and other parties. EQUITY As the common law became more organised and systematic it also became more rigid. The writ system had been developed in response to the courts’ increasing case load; however, difficulty in negotiating the procedural complexities created the risk of injustice and delays. A plaintiff would fail if, for example, the writ they purchased turned out to be the wrong one.The common law courts’ preference for form over substance extended to the conduct of the trial. If a person had executed a document in the proper form, the common law would say that the person was bound by its terms, even if it could be shown that their actions had been based on a mistake or induced by trickery. ‘[T]he slightest error committed by either party lost him the suit irrecoverably’.13 Beginning in the 15th century, people increasingly approached the monarch with petitions complaining of injustice suffered at the hands of the common law courts. At first the monarch responded to these complaints personally or through the Council. But, as before, the monarch soon began to delegate the responsibility, this time to the royal official called the Chancellor (who already had the job of issuing writs).The Chancellor afforded claimants hearings and remedies, but in a way that created an alternative, complementary system of justice. The fact that the Chancellor was chosen to address these complaints of injustice had an important bearing on the way they came to be handled. For a long time, the Chancellors (or Lord Chancellors, as they later became known) were trained as priests. Importantly, they did not consider themselves confined by judicial precedent or purely formal requirements. Instead, they grounded their judgments on Christian precepts. These Chancellor-made, Christianity-based rulings formed a body of law that sat beside the body of common law rulings, and became known as equity. The institution set up

12

13

26

Roxanne Burd and Jacqueline Horan, ‘Protecting the Right to a Fair Trial in the Twenty-First Century: Has Trial by Jury Been Caught in the World Wide Web?’ (2012) 36 Criminal Law Journal 103. Hock Lai Ho, ‘The Legitimacy of Medieval Proof ’ (2003-2004) 19 Journal of Law and Religion 259, 267, quoting Henry C Lea, Superstition and Force: Torture, Ordeal, and Trial by Combat in Medieval Law (1996, originally published 1870) 69.

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by the Chancellor to hear equitable claims became known as the Court of Chancery. In a famous case, Lord Ellesmere, an early 17th-century Chancellor, held:

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The cause why there is a Chancery is, for that men’s actions are so divers and infinite, that it is impossible to make any general law which may aptly meet with every particular act, and not fail in some circumstances. The office of Chancellor is to correct men’s consciences for frauds, breach of trust, wrongs and oppressions, of whatever nature soever they be, and to soften and mollify the extremity of the law …14

A significant feature of equity is that it is highly discretionary, allowing the court f lexibility to do justice in the particular case. At common law, on proof of designated matters the plaintiff acquired a legal right to relief. In equity, however, the Chancellor retained a discretion not to grant a remedy if the plaintiff was not morally deserving. Equitable maxims developed to capture the essence of this discretion, such as ‘he who seeks equity must do equity’ and ‘he who comes into equity must come with clean hands’. Other equitable maxims include: • equity will not suffer a wrong to be without a remedy; • qui prior est tempore, potior est jure (‘he who is first in time takes precedence’); • equity assists the diligent, not the tardy; • equity is equality; • equity looks to the intent, rather than to form; • equity looks on that as done which ought to be done; • equity imputes an intention to fulfil an obligation; and • equity acts in personam (by making an order directed to a specific person). Equity continues today and is now administered concurrently with the common law (see 2.27), but the pathway to this position was not smooth. Initially, equity and the common law coexisted harmoniously administered by different courts. Equity was a means of tempering the harshness of the law, and the Chancellors and the common law judges cooperated. But eventually the two systems became rivals. In the early 1600s, this rivalry turned into open hostility as a result of personal enmity between the Chancellor of the day, Lord Ellesmere, and the Chief Justice of the King’s Bench, Sir Edward Coke. Their dispute was resolved only after the personal intervention of the king, who called a conference of all the senior judges to discuss the issue. One important outcome of this conference was to decide that, in the case of conf lict between the two, equity should prevail and this remains the rule today. Equity remains an important source of law. As Sir Anthony Mason, a former Chief Justice of the High Court of Australia, observed:

2.22

2.23

The underlying values of equity centred on good conscience will almost certainly continue to be a driving force in the shaping of law unless the underlying values and expectations of society undergo a fairly radical alteration.15 14 15

The Earl of Oxford’s Case (1615) 1 Ch Rep 1, 6; 21 ER 485, 486. Sir Anthony Mason, ‘The Place of Equity and Equitable Doctrines in the Contemporary Common Law World: An Australian Perspective’ in Donovan WM Waters (ed), Equity, Fiduciaries and Trusts (Carswell, 1993) 23.

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Reform of court procedure in the 19th century 2.24

2.25

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2.26

2.27

Social change often brings law reform. The first Industrial Revolution of the 18th and 19th centuries brought considerable social dislocation and growth in commercial interests. This led to pressure for law reform both to facilitate economic development and to deal with its more deleterious aspects. The Factory Act 1833 prohibited the employment of children under nine, and provided that children aged nine to 13 could work no more than nine hours a day.The Patent Law Amendment Act 1852 simplified and systematised the previously very inefficient processes for obtaining and protecting patents. The common law was slower to develop. But over time, the old writ system gradually evolved into what we now know as the private law of property, contract and tort. The substance of the common law slowly became more sophisticated, but also became less accessible for ordinary litigants. Due to the rigidities of the writ system, legal process was costly, slow and full of procedural pitfalls. Moreover, procedures differed in each of the common law courts. Equity was no better. What began as an attempt to mitigate the rigidity of the common law had come instead to imitate it. Indeed, the cumbersome workings of the Court of Chancery may have surpassed those of the common law courts. In Bleak House, Charles Dickens described the fictional Chancery case, Jarndyce v Jarndyce, as ‘so complicated that no man alive knows what it means. The parties to it understand it least, but it has been observed that no two Chancery lawyers can talk about it for five minutes without coming to a total disagreement as to all the premises.’16 The commercial, financial and industrial interests that had burgeoned during the Industrial Revolution were being hampered by the complexity of the law; a single dispute could require simultaneous proceedings in several different courts. To remedy this, and to improve access to justice, in the 19th century Parliament passed a series of statutes that reformed and simplified court procedure. The Uniformity of Process Act 1832 provided that most actions were to be commenced by a common form of writ which, unlike the old writs, had only to state the nature of the claim in general terms. The Common Law Procedure Act 1852 and the Chancery Procedure Act 1852 greatly simplified procedures once an action had been commenced. But by far the most significant reforms came in the 1870s, with the passing of the Judicature Acts of 1873 and 1875. Together, these two statutes had a profound effect on the way justice was administered in England. The Judicature Acts had a twofold purpose. First, they merged the three common law courts with the Court of Chancery and some other, more specialised, courts to form one general court known as the Supreme Court of Judicature. The new Supreme Court consisted of two parts: the High Court, which was a trial-level court (in contrast to the Australian High Court, which is principally an appellate court), and a civil Court of Appeal.17 The High Court was divided into five divisions, such as the Queen’s Bench Division and the Chancery Division, that corresponded closely with the pre-existing

16 17

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Charles Dickens, Bleak House (1852–53) 1. At common law there was no right of appeal against a criminal conviction until the Criminal Appeal Act 1907 (UK) which established the Court of Criminal Appeal. Australian jurisdictions followed suit: eg, Criminal Appeal Act 1912 (NSW) created a right of appeal for criminal defendants and established the New South Wales Court of Criminal Appeal, which still exists today.

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CHAPTER 2 THE ORIGINS AND HISTORICAL DEVELOPMENT OF THE AUSTRALIAN LEGAL SYSTEM

courts. However, the new High Court had one important advantage, namely that there was a single set of rules and a common procedure. The second main accomplishment of the Judicature Acts was to provide for the concurrent administration of common law and equity. This ‘fusion’ of the two systems meant that, regardless of the division of the courts, a judge could apply the rules of common law or equity (or both) as they deemed appropriate to dispose properly of the case. In Australia, Queensland was the first to follow the English reforms, by passing the Judicature Act 1876. The other colonies followed suit, beginning with South Australia with its Judicature Act 1878; South Australia had actually provided for the concurrent administration of law and equity before the English, in its Supreme Court Act 1853.18

2.28

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Foundations of modern constitutionalism Early English kings had a wide range of responsibilities, including the making of law, administering it, and applying it to individual disputes. As the kingdom evolved and grew in complexity, so too did the king’s responsibilities, and institutions were developed to regulate and share the burden of ruling the country, both in terms of developing policy and law, and resolving disputes.While independent of the king, these were still institutions of the Crown. As discussed at 2.9–2.10, a separate system of courts developed, with responsibility for interpreting the law and determining how it operates in individual cases. In this section we explore how, over time, the monarch also lost many law-making powers to an increasingly resilient and independent Parliament. The monarch was left with a diminished and constrained core of executive power. While the development of the judicial and legislative arms of government reduced the monarch’s workload, the monarch did not always welcome the loss of power. Indeed, as discussed below, the conflicts between a succession of kings and Parliament often became violent and bloody, with many fatalities on both sides. These conflicts and battles resulted in the development of a set of principles — constitutional law — that delineate and regulate the relationships between the growing Crown institutions. Key constitutional principles include:‘separation of powers’, the more or less sharp delineations between the executive, the legislature and the judiciary; the ‘rule of law’, which constrains arbitrary power by requiring that it be applied equally and in accordance with the law; ‘parliamentary sovereignty’, which gives the democratically elected Parliament power to develop and change the law; and ‘responsible government’, by which power over the executive is granted to the political party that commands the support of the lower, more representative, House of Parliament. England has no single document entitled ‘the constitution’. For this reason its foundational principles are described as an ‘unwritten constitution’, although England’s constitutional law is made up of Acts and reported judicial decisions as well as conventions developed through custom. Most modern states, including the various jurisdictions of 18

2.29

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2.31

See also Supreme Court Act 1880 (WA); Judicature Act 1883 (Vic); Legal Procedure Act 1903 (Tas); Supreme Court Civil Procedure Act 1932 (Tas). In New South Wales, however, fusion was not completed until 1970 (Supreme Court Act 1970). In the Northern Territory and Australian Capital Territory, judicature systems were set up with their Supreme Courts in 1933 and 1911 respectively: see now Supreme Court Act 1933 (ACT) s 25; Supreme Court Act 1979 (NT) pt IV.

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Australia, have a single written constitution.These modern constitutions embody the key constitutional principles outlined here, which were worked out at the cost of so many English lives.

2.32 Magna Carta: the ‘Great Charter’, which King John was forced by nobles to sign in 1215, restricted the king’s power in numerous respects, making it an early statement of the rule of law

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2.33

2.34

30

MAGNA CARTA AND THE FIRST PARLIAMENTS The first major step in the creation of the modern constitutional structure came in 1215, when King John was forced to sign the Magna Carta (the ‘Great Charter’). John was an unpopular king. Among other things, he was responsible for the loss of Normandy. After he imposed a heavy taxation burden to pay for his disastrous military campaign, a group of nobles known as ‘the Barons’ rose up and demanded that John provide a guarantee of certain freedoms. Some of the better known among 63 clauses are: • the promise that, in most cases, the Common Pleas would be heard in a fixed place; • a promise that justices and sheriffs would only be appointed from those who were learned in the law; • a guarantee that freemen would not be imprisoned or dispossessed of their property except ‘by the lawful judgement of their peers or by the law of the land’; and • a further guarantee that justice would be neither delayed nor denied. Originally only an advisory body, Parliament as a legal institution gradually grew more powerful and independent of the monarch’s control. The first assembly called a ‘Parliament’ was summoned in 1265 by Simon de Montfort, an important noble of the day, after he had led a rebellion and captured the king. It was 30 years later, however, in 1295, that a recognisable antecedent of today’s Parliament was summoned by King  Edward  I. The ‘Model Parliament’, as it is known, included nobles, representatives of the clergy, representatives of the commoners, two knights from each shire and two representatives from each city and borough. For a long time, Parliament remained a purely advisory body, and the king was under no obligation to summon it on a regular basis. It was not until 1414, during the reign of King Henry V, that the Crown formally acknowledged that no new statutes should be made without the assent of the Commons (as the lower House became known). The composition of the British Parliament today still resembles that of the Model Parliament. The upper chamber of the British Parliament, the House of Lords, consists of hereditary nobles, bishops (known as ‘Lords Spiritual’), together with men and women appointed to the peerage for their lifetime only (‘life peers’). The lower chamber, the House of Commons, is made up of local representatives elected by popular vote. Under the House of Lords Act 1999, most of the several hundred hereditary peers were eliminated from the House of Lords. Ninety-two of them were elected by their colleagues to remain, along with the life peers and the Lords Spiritual. The House of Lords Reform Bill 2012 made provision that 80 per cent of the members of the House of Lords would be elected. While this further reform was not pursued, the House of Lords Reform Act 2014 enabled members to retire or resign from the House of Lords, which had not previously been possible. It also provided for the exclusion of members convicted of serious criminal offences or who fail to attend the House for a complete session.

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CHAPTER 2 THE ORIGINS AND HISTORICAL DEVELOPMENT OF THE AUSTRALIAN LEGAL SYSTEM

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REFORMATION AND PARLIAMENT Parliament’s influence grew further during the reign of King Henry  VIII (1509–47). Henry wanted to divorce his first wife, Catherine of Aragon, but the Pope would not allow it. Henry’s solution was to separate from the Church in Rome and establish a Church of England, with himself at the head — the English Reformation. In order to secure the cooperation of influential people for this split, Henry agreed to give Parliament greater involvement in his decision-making processes. Moreover, the Reformation freed parliamentarians from what had previously been a strong limitation: the political authority of the Roman Catholic Church. ENGLISH CIVIL WAR The 17th century was in many ways the most important period in British constitutional development. When the century began, the throne was occupied by a person who claimed the right to be called a god, even by God himself.When it ended, there was in his place a monarch whose powers were confined by definite and ascertainable constitutional principles. These principles form the basis of our understanding of governmental power in both the United Kingdom and Australia today: a Parliament with supreme political authority and with an exclusive right to levy taxes; an executive whose power is subservient to that of Parliament; and an independent judiciary which should be allowed to conduct its work free of all political interference. This momentous century began with the accession to the English throne of the Scottish House of Stuart in 1603. The first of the Stuart kings, James I (who was also James VI of Scotland), was a firm adherent to the ‘divine right of kings’ theory. In a speech given to Parliament in 1610, James outlined his theory of the place of the monarch in the natural order. ‘Kings’, he asserted, ‘are not only God’s lieutenants upon earth and sit upon God’s throne but even by God himself they are called gods’. This attitude ran against expectations that Crown power would be shared with other societal interests and institutions, and quickly led to conflict. Incrementally the courts asserted their own independence from the king and affirmed growing independence of the Parliament. In 1607, in the Case of Prohibitions del Roy,19 when James expressed a wish to involve himself personally in the determination of cases, the judges held that this was not appropriate. Sir Edward Coke said that common law cases were ‘not to be decided by natural reason but by the artificial reason and judgment of law, which law is an art which requires long study and experience’.20 Reluctantly James acceded to the judges’ view. Not long afterwards, in the Case of Proclamations,21 the courts held that the king could not create new crimes or change the common law by royal proclamation. The right to do this was held by Parliament alone. However, the courts also clashed with Parliament. In 1610 in Dr Bonham’s Case,22 Coke CJ asserted that if a statute was ‘against common right or reason’ the common law courts could invalidate it. In other words, the courts reserve to themselves the right to be the ultimate arbiters of whether laws made by Parliament are valid. In Britain, Parliament 19 20 21 22

2.35 Reformation: European movements in the 16th and 17th centuries in which Protestant churches were established after splitting from the older Roman Catholic Church

2.36

2.37

2.38

(1607) 12 Co Rep 63; 77 ER 1342. (1607) 12 Co Rep 63, 65; 77 ER 1342, 1343. (1611) 12 Co Rep 74; 77 ER 1352. (1610) 8 Co Rep 107a; 77 ER 638.

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2.39

2.40

Bill of Rights 1689: an Act of Parliament settling the basis on which William and Mary took the throne, including that taxation could be levied only with the consent of Parliament

32

came to be viewed as sovereign, and there are now relatively few grounds on which a court can invalidate legislation. (In modern Australia, Parliament has supremacy over the common law, but does not have absolute sovereignty. It is the written Constitution that is sovereign, and the courts may invalidate legislation on the ground it is unconstitutional.23) By far the most tumultuous struggle of the century was between Crown and Parliament. James I, claiming a divine right to rule, sought to minimise his reliance on the services of Parliament. But since much of his reign was characterised by financial difficulties, he could not avoid summoning Parliament at least periodically to levy taxes. On these occasions Parliament sought to secure a royal acknowledgment of its role, with mixed success. The relationship deteriorated under James’s son, King Charles  I. He attempted to dispense with the services of Parliament altogether, and to raise taxes without parliamentary sanction. In the Case of Ship Money,24 a bare majority of the judges held that it was within the king’s prerogative to do so. That decision did not settle the issue. By 1642 Parliament was in open civil war against Charles. Led by Oliver Cromwell, the parliamentary forces defeated the Royalists in 1646. Charles I was put on trial for treason and in 1649 was convicted and beheaded. The monarchy and the House of Lords were abolished, and England was renamed a ‘Commonwealth’. Cromwell gave himself the title of ‘Lord Protector’ and in 1653 he dismissed the House of Commons, the sole remaining element of the pre-Civil War government. Cromwell, formerly Parliament’s champion, saw no greater need to govern with the consent of Parliament than had King Charles. Moreover, unlike Charles, Cromwell was a Puritan who despised any form of entertainment or fun. Dancing, for example, was forbidden during much of the Commonwealth, and many Church properties and works of art held by the Church were destroyed. In 1660, shortly after Cromwell died, Parliament (which had reassembled) invited Charles II, the son of the beheaded Charles I, to assume the throne. THE GLORIOUS REVOLUTION AND THE CONSTITUTIONAL SETTLEMENT Charles II appeared to share his father’s belief in absolute monarchy. Furthermore, he was suspected of having sympathy for the Roman Catholic faith, which raised concern in the now deeply Protestant England. James II, Charles II’s successor to the throne, was openly sympathetic to Catholicism, and when he attempted to suspend a duly passed statute which precluded Roman Catholics from holding public office, Parliament deposed him. In 1688, Prince William of the Dutch House of Orange and his wife Mary were invited by Parliament to assume the throne jointly, on terms that they accepted.While respectively nephew and daughter of James II, they were avowed Protestants. This second deposition of a king in 1688, which became known as the Glorious Revolution, provided a clear demonstration that English monarchs now ruled only by parliamentary consent. The terms of the offer that William and Mary accepted were laid out in a statute known as the Bill of Rights 1689. Among other things, the Bill of Rights:

23 24

Australian Constitution s 76; Judiciary Act 1903 (Cth) ss 39(2), 39B(1A)(b). (1637) 3 How St Tr 825.

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CHAPTER 2 THE ORIGINS AND HISTORICAL DEVELOPMENT OF THE AUSTRALIAN LEGAL SYSTEM

asserted that the Crown had no power to suspend the operation of law; reaffirmed the principle that taxation could be levied only with the consent of Parliament; • forbade the keeping of a standing army in England, remembering the power that Cromwell had wielded through his control of the army (a restriction which continues to the present day);25 • provided that parliamentary debates could not be called into question by the monarch or in any proceeding in the courts; and • reiterated that the Crown ought to summon Parliament on a regular basis. A further key element of the separation of powers between the judiciary and other branches of government was established in 1701 through the grant to judges of security of tenure. This was brought about as a refinement of the constitutional settlement, with the passage in 1701 of the Act of Settlement. Previously, judges had served ‘at the king’s pleasure’, which had left them susceptible to the king’s inf luence as, for example, in the Case of Ship Money mentioned at 2.39. Now, however, they were to serve ‘during good behaviour’ and could be removed only on an address (that is, a direction) passed by both Houses of Parliament. Australian judges today enjoy security of tenure and fixed salaries, meaning they are independent and not subject to pressure from the legislature or the executive. Section  72(ii) of the Australian Constitution corresponds closely to the provision in the Act of Settlement 1701, and similar provisions appear in the state constitutions.

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• •

EMERGING ROLE OF PARLIAMENT The constitutional settlement of 17th-century Britain cemented the legislative power of Parliament. Originally statutes were simply royal decrees; however, they came to be enactments of the monarch (or their representative) in Parliament. Nowadays, the monarch’s role is limited to the provision of royal assent to the law passed by Parliament. Royal assent has not been withheld since 1708;26 nevertheless, this formality provides a reminder of the historical origins of Parliament and its wresting of power from the monarch. From the 13th century, references are found to the monarch consulting others before passing statutes, but it was only during the reign of Henry VIII that legislation acquired the features it possesses today: that is, Bills passed by both Houses of Parliament and given to the Crown for assent. Gradually, the volume of statutes increased. Indeed, in Henry VIII’s reign alone, almost 700 statutes were enacted, more than doubling the size of the existing statute book.

25

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Act of Settlement: a key step in the constitutional settlement passed in 1701 which, among other things, provided judges with security of tenure

2.42

Consent for the armed forces must be provided annually by Parliament. Until 1955 Parliament passed annual Army Acts and later Air Force Acts. After 1955, these Acts were passed on a five-yearly basis under which annual approval was provided by Orders in Council, subject to Parliamentary approval: see, eg, Armed Forces Act 2016 s 1; see also SA de Smith, Constitutional and Administrative Law (Penguin Books, 1971) 204–5. The Scottish Militia Bill 1707, which passed both Houses in early 1708; see 18 HL Jour 506 (11 March 1708); FW Maitland, The Constitutional History of England, ed HAL Fisher (Cambridge University Press, 1908) 423.

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2.43

2.44

2.45

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2.46

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The transformation of legislative power was completed in the 17th century. The Glorious Revolution culminated in the balance of constitutional power that we know today. As far as law-making is concerned, Parliament is sovereign.Today, rather than being a royal decree, a statute is an instrument of Parliament.When Parliament wants to command something, it passes a statute (or an Act; the two words are synonymous) which will receive royal assent as a mere formality. DEVELOPMENT OF AN EXECUTIVE ARM OF GOVERNMENT As discussed at 2.10, some of the first English courts were formed from the Curia Regis, the body of the king’s close advisers. Other institutions also emerged from the Curia Regis. While some advisers took on the function of resolving disputes, other members of the advisory body travelled as part of the monarch’s entourage and assisted with general policy questions. A larger body remained in Westminster to manage the affairs of state, where they were assisted by officials.These are the origin of the government departments of today. What began as an efficiency measure after the Norman Conquest as a way for kings to coordinate the activities of their government throughout England is the genesis of today’s executive or government public service. The monarch’s closest advisers on general policy questions metamorphosed into what has been known since the late 16th century as the Cabinet, named after the small room where they met. Initially, this body always included the monarch. In the early 18th century, however, King George I and King George II were electors in Hanover as well as English kings. They focused on their German responsibilities and their English Cabinet increased its responsibilities and power as a consequence. In addition, as George I spoke little English, he ceased to attend meetings and the Prime Minister by convention became the chair of the Cabinet. The royal advisers who remained at Westminster came to head the departments of officials and in time became known as Secretaries of State (Ministers in Australian governments). Principal among them was the head of the Treasury who became the chief adviser to the monarch and is the precursor of today’s Prime Minister. The Prime Minister is still First Lord of the Treasury. A selection of the Secretaries of State are also members of the Cabinet. These advisers needed both the confidence of the monarch and the authority of Parliament for funds and to pass legislation. So began the practice of requiring a Secretary of State (or Minister) also to be a Member of Parliament, the origin of what is known as ‘responsible government’. Over time the task of government grew in complexity, and Secretaries of State increasingly relied on the advice of a growing number of officials. The effective functioning of government throughout the country became ever more dependent on the professionalism of their departments. The Northcote–Trevelyan Report on Civil Service Reform in England, published in the mid-19th century, led to the development of an apolitical and well-educated public service that could be trusted to implement legislation and government policy effectively.The various government departments are led by senior civil servants known as permanent secretaries; these are distinct from the Secretaries of State, politicians who would lose their position if an election led to a change of government.Today, the Secretaries of State and the officials comprising their departments collectively form the core of the executive arm of government.

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CHAPTER 2 THE ORIGINS AND HISTORICAL DEVELOPMENT OF THE AUSTRALIAN LEGAL SYSTEM

SEPARATION OF POWERS AND THE RULE OF LAW The historical evolution of the Crown’s powers resulted in their division among three distinct bodies: Parliament — the legislature — which enacts laws; the government and its officials — the executive — which puts the laws into operation; and the courts — the judiciary — which resolves individual disputes about the meaning or application of the law. Prominent political philosophers, such as Baron de Montesquieu in his De l’esprit des loix (The Spirit of the Laws) in the mid-18th century, viewed this separation of powers as an astute architecture for government, preventing a concentration of public power in one individual or institution, and avoiding abuses of power, such as those which led to the constitutional struggles chronicled in this chapter. The separation of powers principle influenced the constitutional development of other nations in the common law tradition, such as the United States and Australia. However, in England, while the governmental functions were distributed among separate institutions, there was considerable overlap in personnel. Key members of the executive, the Prime Minister and Secretaries of State, were also members of the legislature. Indeed, this remains a key feature of Westminster-style responsible government — the executive government is drawn from and accountable to Parliament. Further, the ultimate English appeal court also overlapped with the legislature. The Appellate Committee of the House of Lords (its elaborate formal title) was made up of the Lords of Appeal in Ordinary, who both decided appeal cases and could sit in the upper House, contributing to debates and voting on legislation. The most senior judge, the Lord Chancellor, was also a senior minister in Cabinet. This overlap between the judiciary and the legislature and, in the case of the Lord Chancellor, the executive, continued until the Constitutional Reform Act 2005. This Act replaced the Appellate Committee with the Supreme Court of the United Kingdom, which is now the apex of the court system and not part of the legislature. In practice, Supreme Court judges are still appointed to the House of Lords, but they are prohibited from voting on legislation while holding judicial office. The United States Constitution maintains a stricter separation of the three arms of government, in both function and personnel. As will be seen at 2.60–2.71, Australia adopted the Westminster system of responsible government. Members of the executive are also key members of the legislature, namely the Prime Minister and the Cabinet. A second fundamental doctrine of constitutional law, related to separation of powers,27 was given force through England’s tumultuous history — the rule of law. The rule of law provides a shield against capricious despotic government. Many commentators see the Magna Carta as an early expression of the values that are central to the rule of law. As discussed at 2.32, the Magna Carta is an early 13th-century list of demands that the Barons forced King John to accept, with the goal of protecting their freedom and property from his arbitrary exercise of power. Central to the rule of law is the principle of legality.28 This requires not only that people are obedient to the law, but, equally importantly, that public officials exercise their 27

28

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See, eg, Denise Meyerson, ‘The Rule of Law and the Separation of Powers’ (2004) 4 Macquarie Law Journal 1. See, eg, Jeffrey Jowell, ‘The Rule of Law and its Underlying Values’, in Jeffrey Jowell and Dawn Oliver (eds), The Changing Constitution (Oxford University Press, 6th ed, 2007) 5, 10.

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powers in accordance with the law. Related to this is the value of equality.The law should be applied consistently to all, regardless of wealth or status. The rule of law also places a high premium on the certainty and predictability of the law.29 The law should be clear and accessible. It must be made possible for people to know their rights and responsibilities under the law so that they can plan their lives accordingly. Further, people who are affected by any exercise of government power should be given a means of testing its lawfulness.30 In other words, the rule of law requires that people be accorded due process and that decision-makers are accountable. The virtues of the rule of law were celebrated in the late 19th-century work of AV Dicey.31 His influential treatise promoted the doctrine as a peculiarly British invention,32 one that justified and underpinned the exercise of British imperial rule. And yet Dicey was forced to acknowledge that the exigencies of imperial governance required arbitrariness and formal inequality at odds with the rule of law and the liberal Empire it was supposed to uphold.33 As discussed below, the British colony of New South Wales began as little more than a military prison; it took some time for legislative and judicial powers to separate from the executive, and for the rule of law to take root. The doctrines of the rule of law and separation of powers operate at a high level of abstraction. Their importance and impact are indisputable; however, they are open to different interpretations, and their specific applications and implications can be contentious. This is particularly the case in Britain given its unwritten constitution, but the same can be said for Australia despite its written constitution. Constitutional law, together with the related branch of administrative law which is concerned with the regulation of government decision-making, are considered in more detail in Chapter 3.

The foundation of the Australian legal system

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2.54

The preceding pages provide a discussion of the development of the English common law together with its constitutional framework and key institutions. The remainder of this chapter explores the foundation and subsequent development of the Australian legal system. The discussion explores the reception of English law in the colonies; the development of independent colonial courts and colonial legislatures based on the Westminster model; Federation, by which the nation of Australia was created; and finally Australia’s achievement of full independence from Britain, its former imperial power. But first we must acknowledge that an Aboriginal population has been present in Australia for more than 60,000 years.34 It is now recognised as one of the world’s oldest continuing cultures. However, Aboriginal customary law was largely disregarded in the development of the Australian legal system. Rather than discussing these issues briefly 29 30 31 32

33 34

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Ibid. Ibid, 11–13. Albert Venn Dicey, The Law of the Constitution (1885). Jowell (n 28) 6; Dylan Lino, ‘The Rule of Law and the Rule of Empire: AV Dicey in Imperial Context’ (2018) 81 Modern Law Review 739. Lino (n 32) 763–4. Chris Clarkson et al, ‘Human Occupation of Northern Australia by 65,000 Years Ago’ (2017) 547 Nature 306; cited in Love v Commonwealth (2020) 94 ALJR 198, 244 [242] (Nettle J), 264 [336] (Gordon J).

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here, we instead focus on them in Chapter 4, which examines how this ongoing systemic disrespect of First Nations culture has contributed to a complex set of problems with which the Australian legal system continues to grapple. TRANSPORTATION AND SETTLEMENT The Australian legal system originated as a penal outpost of the British Empire.At common law, no person could be forcibly exiled from England. In 1717, however, the Imperial Parliament passed a statute (4 Geo 1, c 11) which permitted judges to commute the death sentences of most prisoners on condition that they agreed to go to one of the colonies. Initially, these prisoners were ‘transported’ to the American colonies, but after the American Revolution, a new destination was needed. In 1786, Orders in Council were made designating New South Wales, Norfolk Island and Bermuda as places to which prisoners could be transported. The First Fleet sailed to Australia from England in May 1787 carrying 717 convicts and 290 free persons. The fleet arrived in New South Wales and on 26 January 1788, at Botany Bay, the British flag was unfurled and Governor Phillip formally claimed the territory for King George III. The transportation of prisoners to New South Wales was terminated in 1840 and to Van Diemen’s Land (Tasmania) in 1852. It was not until 1868, however, that the last prisoners were sent to Western Australia. All told, over 160,000 prisoners were dispatched to Australia from the British Isles. As will be seen, it is significant that legal authority in this country originated in the military administration of penal law over convicts and free persons. This had an important bearing on the way in which law and government subsequently developed. The law applicable to the people of the new colony was determined by international law. Traditionally, international law recognises three ways for a country to acquire new territory: conquest, cession (one power giving up or ‘ceding’ its sovereignty over territory to another) and settlement. At the time and subsequently, legal authorities have treated Australia as settled rather than conquered or ceded. Where a territory is conquered or ceded, the laws in force in the territory prior to takeover continue in force until they are changed by the new power.With respect to settled lands, however, the situation is different. As William Blackstone put it in an oft-quoted passage of his Commentaries, an early influential treatise on the English common law:

2.55 Imperial Parliament: the British Parliament, legislating for colonies Orders in Council: royal orders made on political advice

2.56

It hath been held that if an uninhabited country be discovered and planted by English subjects all the English laws then in being, which are the birthright of every English subject, are immediately there in force.35

Blackstone added to this a significant proviso, however: But this must be understood with very many and very great restrictions. Such colonists carry with them only so much of the English law as is applicable to their new situation and the condition of an infant colony …36

35 36

William Blackstone, Commentaries on the Laws of England (Burn and Williams, 11th ed, 1791) vol 1, 108. Ibid.

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2.57

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terra nullius: Latin, land belonging to no one

DOCTRINE OF TERRA NULLIUS The reason that Australia, unlike most other British colonies, was initially deemed to be settled rather than conquered, was that it was deemed terra nullius, land belonging to no one.The British did not consider the existing indigenous population — the First Nations peoples, being the various Aboriginal nations and Torres Strait Islanders — to inhabit or possess the land because their relationship with the land was so foreign to the British. Because the First Nations peoples did not appear to be using the land for recognisable purposes such as agriculture, residences, or commerce, it was assumed that they did not own the land. Moreover, the Aboriginal nations were not perceived as having an organised political structure or system of law. In Cooper v Stuart,37 the Judicial Committee of the Privy Council38 confirmed that, in the eyes of the common law, Australia had been settled. In more recent times the Australian legal system has learned that Australia’s First Nations, for tens of thousands of years, have had a deep connection with their land,39 giving rise to land rights movements and the belated recognition of native title at common law and under legislation. Squaring native title with the longstanding legal fiction of settlement has given rise to significant practical and jurisprudential problems, discussed in Chapter 4.

37 38 39

38

(1889) 14 App Cas 286. For more discussion of the Judicial Committee of the Privy Council, see 2.72–2.76, and 8.77ff. Bill Gammage, The Biggest Estate on Earth: How Aborigines Made Australia (Allen & Unwin, 2011).

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CHAPTER 2 THE ORIGINS AND HISTORICAL DEVELOPMENT OF THE AUSTRALIAN LEGAL SYSTEM

RECEPTION OF ENGLISH LAW According to Blackstone’s formulation, English law — including common law, equity and statute law — arrived in New South Wales with the settlers on 26  January 1788. But ‘only so much of the English law as is applicable to their new situation and the condition of an infant colony’.40 In Australia’s case, this limitation proved to be a source of confusion and uncertainty, one reason being that, for the first several years of its existence, New  South  Wales was little more than a penal colony under military rule. Arguably, not very much of the common law — and even less of equity — was applicable to the conditions in Australia when it was first colonised. To erase any doubt about the extent of the applicability of English law in New South Wales, in 1828 the Imperial Parliament passed the Australian Courts Act (Imp) 9 Geo 4, c 83. Among other things, this Act provided that all laws and statutes in force in England on 25  July 1828 that were applicable to the conditions in New South Wales and Van Diemen’s Land were deemed to be in force there. The respective Supreme Courts were given authority to determine whether a given law was ‘applicable’ to colonial conditions. Since the boundaries of New South Wales at the time included what are now Victoria and Queensland, the date of ‘reception’ (the date at which a colony, state or territory is considered to have acquired English law) is the same in those states.The date of reception of English law in the other states is the date of their foundation.41 40 41

2.58

Blackstone (n 35) 108. Western Australia received English law on 1 June 1829 (Interpretation Act 1984 (WA) s 73), and South Australia on 28 December 1836 (Acts Interpretation Act 1915 (SA) s 48). The Australian Capital Territory

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2.59

The Imperial Parliament retained the power to pass legislation with application to the colonies. However, regular British legislation passed after the date of reception would not be received. The distinction between the two was not always clear: see 2.69– 2.71. The position of subsequent developments in the common law is even less clear. In State Government Insurance Commission v Trigwell,42 Gibbs J suggested how the neighbour principle, laid down in the landmark negligence decision of the House of Lords, Donoghue v Stevenson,43 long after reception, could nevertheless form part of Australian common law: Legislation passed after [the date of reception] will of course not be applicable … But the common law which was adopted is not frozen in the form which it assumed in 1836 [the date of reception in South Australia]. It is the common law rules as expounded from time to time that are to be applied … [I]f it is not right to say that the principle of Donoghue v Stevenson became part of the law of South Australia in 1836, it is at least true to say that a body of principles, including those that developed into the rule subsequently expressed in that case, formed part of the law of South Australia from 1836 onwards … This … means that parts of the common law which are suitable to a more advanced state lie dormant until occasion arises for enforcing them …44

Of course, the principles of the common law must keep up with social, political and institutional developments. However, this statement appears problematic in two respects. First, it seems to embody the fiction that judges merely discover and declare the common law, rather than create it: see  7.57. Nowadays courts generally acknowledge that they have the power to develop and modify the common law. Second, this statement may be taken to imply that the British apex court (then the House of Lords, now the Supreme Court of the United Kingdom) is the ultimate authority on Australian common law. This may have been the position once, particularly while the Privy Council, whose composition overlapped with the House of Lords, was the ultimate appeal court for Australia: see 2.75. However, this is no longer the case and for some time now Australian courts have shown greater independence and confidence, leading to the ‘separate development of the common law in Australia’.45 See further at 8.76ff. Copyright © 2020. LexisNexis Butterworths. All rights reserved.

Evolution of an independent legislature 2.60

In the first decades after British arrival, the Governor of New South Wales wielded virtually all the political power in the colony. In this respect, the situation was not unlike the early years of the common law in England, where the monarch exercised great control in all areas of government: see 2.8 and 2.21. The Governor had a body of advisers (just as the monarch had the Curia Regis), but they exercised little constraint on the Governor’s powers. Transformation from a military to civil government, with an independent judiciary and democratic legislature, took several significant constitutional steps.

42 43 44 45

40

received the body of English law that was in operation in New South Wales on the date that the Territory was proclaimed, 1 January 1911 (Seat of Government Acceptance Act 1909 (Cth) s 6).The Northern Territory received the body of English law that was in operation in South Australia on the date that it was proclaimed, also 1 January 1911 (Northern Territory Acceptance Act 1910 (Cth) s 7). (1979) 142 CLR 617 (‘Trigwell’). [1932] AC 562. Trigwell (n 42) 625–6 (Gibbs J). D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1, 24 [59] (Kirby J).

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CHAPTER 2 THE ORIGINS AND HISTORICAL DEVELOPMENT OF THE AUSTRALIAN LEGAL SYSTEM

The New South Wales Act 1823 (Imp) began the transformation of the colony from a de facto autocracy to a constitutional state.The Act created a Legislative Council comprising between five and seven members nominated by the Crown. The Act conferred upon the Governor the power to enact laws for the ‘peace, welfare and good government’ of New South Wales with the advice of the Legislative Council. The Governor had the sole right to initiate legislation, but if one or more members of the Legislative Council disagreed with a proposed measure, it was not to become law except in certain circumstances, such as an actual or apprehended rebellion or insurrection. A further limitation on the Governor’s legislative power was that locally enacted laws could not be repugnant to (that is, inconsistent with) the laws of England. The Act also created an independent Supreme Court with jurisdiction to review legislation to ensure that no repugnancy existed. The development of the court system and the repugnancy doctrine are discussed at 2.65ff and 2.69ff, respectively. The creation of an Executive Council,a further significant constitutional development, occurred with the appointment of Governor Darling in 1825. His commission provided for an Executive Council appointed by the Crown. Under this commission, many executive acts relating to the military, civic and commercial development of New South Wales could be taken only with the ‘advice’, or in some instances ‘advice and consent’, of the Executive Council. In other areas, such as ‘resisting or withstanding all Enemies, Pirates and Rebels both at Sea and Land’, the Governor was given ‘full power and authority’.46While these developments went only some way towards establishing what we would consider to be democratic rule, they nonetheless represent important milestones in Australia’s constitutional evolution. Further significant changes were introduced incrementally. In 1828 the Imperial Parliament passed the Australian Courts Act, which increased the size of the Legislative Council to between 10 and 15 members, gave it power to veto a law proposed by the Governor, and provided for trial by jury. This Act also fixed the date of reception of English law into New South Wales. In 1842 a further step towards democracy was taken with the Australian Constitutions Act (No 1) (Imp) 5 & 6Vict, c 76.This Act expanded the Legislative Council to 36 members, of whom two-thirds were to be elected, the remaining third still to be nominated by the Crown. The Governor was no longer considered to be a part of the legislature. While the Governor retained the power to introduce Bills, the Legislative Council could reject or pass them, with or without amendment.The Governor, however, was empowered to give, or exceptionally withhold,47 royal assent to the Bills passed by the Council, a legislative role that Governors and the Governor-General in Australia still possess today. In 1850 a number of important constitutional changes were introduced by the Australian Constitutions Act (No  2) (Imp) 13 & 14 Vict, c  59. The separate colony of Victoria was formed in 1851 and provision was made for the creation of Queensland, which occurred in 1859. Further, the Act conferred upon the colonial legislatures the power, subject to final approval by the Imperial authorities, to remodel their constitutions to accommodate full responsible government. New South Wales quickly took this opportunity. In 1853, the Legislative Council forwarded to England a constitutional Bill 46 47

2.61

2.62

2.63

2.64

Governor Darling’s Commission, 16 July 1825. Greg Taylor, ‘Two Refusals of Royal Assent in Victoria’ (2007) 29 Sydney Law Review 85.

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that provided for a bicameral legislature, with an elected lower House and an appointed upper House. The Bill was enacted in London, with minor amendments, as a schedule to the New South Wales Constitution Statute 1855 (Imp) 18 & 19 Vict, c  54. The new constitution itself was called the New South Wales Constitution Act and it remained in force until it was replaced by the current Constitution Act 1902 (NSW). Similar steps were, in time, taken by the other colonies.

Development of judicial independence 2.65

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Letters Patent: letters from the Crown containing public instructions or directions

2.66

In order for the courts of New South Wales to implement fundamental principles such as the independence of the judiciary and trial by jury, they had to overcome the limitations of their origins as military courts in a penal colony. Shortly before the First Fleet left England, legislation was passed to create a criminal court in New South Wales. At the same time Letters Patent were issued to create a Court of Civil Jurisdiction.48 Initially these courts were staffed by military officers and run along military lines.49 It was not until 1810 that the first civilian judge, Ellis Bent, arrived in the colony. Bent soon found himself in conflict with Governor Macquarie, over attempts by the military to influence the workings of the court. In 1814 the conflict escalated when Bent’s brother, Jeffery Bent, was also appointed a judge in New South Wales. Essentially, the judges were seeking to establish the independence of the judiciary from the two other branches of government, the executive and legislature, both of which were largely in the hands of the Governor. Governor Macquarie demanded that London dismiss them. The Colonial Secretary acceded but expressed concern at Macquarie’s disregard for fundamental principles of English common law. In the meantime, pressure was exerted by some of the freed convicts, known as ‘emancipists’, to increase the protection of civil rights in the colony. Criminal trials were still being conducted along the lines of military courts-martial. The emancipists wanted the principle of trial by jury enshrined in colonial law. In 1818 the British Government appointed John Bigge, a former Chief Justice of Trinidad, to investigate the situation in New South Wales. Among other things, Bigge recommended that the colony’s court system be restructured and formalised along English lines. The two reports were favourably received in England and, in 1823, the Imperial Parliament passed legislation to enact many of their recommendations. The 1823 Act (4 Geo 4, c 96), which is commonly referred to as the New South Wales Act 1823, provided a statutory basis for the Supreme Court of New South Wales and the Supreme Court of Van Diemen’s Land. A court called the Supreme Court had been established in New South Wales by Letters Patent in 1814, but as the problems with the Bents had shown, its foundation was insufficiently firm to ward off interference by 48

49

42

New South Wales Charter of Justice, Letters Patent 2 April 1787. On the meaning of ‘jurisdiction’, see Abebe v Commonwealth (1999) 197 CLR 510 [24]. Although, interestingly, in its first case the Court of Civil Jurisdiction upheld a claim by two convicts against the captain of one of the ships in the First Fleet for the loss of some of their possessions during the voyage. See David Neal, The Rule of Law in a Penal Colony: Law and Power in New South Wales (Cambridge University Press, 1991) 5–7; Ian Holloway, Simon Bronitt & John Williams, ‘Rhetoric, Reason and the Rule of Law in Early Colonial NSW’ in Hamar Foster, Benjamin L Berger, AR Buck, and W Wesley Pue (eds), The Grand Experiment: Law & Legal Culture in British Settler Societies (UBC Press, 2008), 78, 80–83.

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CHAPTER 2 THE ORIGINS AND HISTORICAL DEVELOPMENT OF THE AUSTRALIAN LEGAL SYSTEM

the military. The New South Wales Act 1823 resolved these problems. Whereas Justice Ellis Bent’s commission had required him ‘to observe and follow such orders and directions as he might be given by our Governor or any other superior officer’, s  2 of the New South Wales Act 1823 gave the judges of the new courts ‘like jurisdiction and authority in New South Wales and Van Diemen’s Land … as the judges of the courts of King’s Bench, Common Pleas and Exchequer in England’. In other words, colonial judges were to enjoy the security and independence gained by English judges in the constitutional settlements arising from the Bill of Rights Act 1689 (UK) and the Act of Settlement 1701 (UK) (see 2.40–2.41). The New South Wales Act 1823 did not give the courts and the emancipists all that they hoped for. For example, it did not entrench trial by jury in criminal matters. Only in 1828 did the Australian Courts Act (Imp) give the Governor power to introduce a jury to criminal trials, which finally occurred in 1833. One of the key advocates for jury trials in the colony was the first Chief Justice of the new Supreme Court of New South Wales, Sir Francis Forbes.50 Forbes was a former Chief Justice of Newfoundland and one of the drafters of the New South Wales Act 1823. He served as Chief Justice of New South Wales until 1837. In the face of a culture of military rule, Forbes strove to free the judiciary from political interference. His tenure as Chief Justice has been described as ‘the Australian version of the Glorious Revolution — in the sense that it marked the end of claims to autocratic power in the Crown’.51 Interestingly, in a landmark criminal case, Forbes CJ delivered a dissent in support of a defendant’s liberties that would have largely negated the court’s jurisdiction. In 1831 in R v Farrell, Dingle, and Woodward (‘Farrell’),52 the defendants, on trial for bank robbery, argued that an alleged accomplice was precluded from testifying for the prosecution as he was a convicted felon. Under the felony attaint rule, the evidence of convicted felons is not admissible.53 With reference to the Magna Carta,54 Forbes CJ would have given the present defendant the benefit of this rule, notwithstanding that, given the high proportion of transported felons in the colony, this would have made the judicial administration of justice unworkable. Fortunately perhaps, the majority judgment of Dowling and Steven JJ adopted a more pragmatic position and held that this aspect of the English felony attaint rule was not applicable to New South Wales, ‘to all intents and purposes … an extensive gaol’.55 The alleged accomplice’s evidence was admitted, and the three defendants were convicted.The first two were sentenced to death, but the sentence was commuted and all three were transported to Norfolk Island. Forbes played a key role in the establishment of a strong, independent judiciary in Australia. By the time of Federation at the turn of the 20th century, the colonies had court systems comparable to the ones of today. They comprised three tiers: a Supreme Court; an intermediate civil and criminal court, usually called a District or County Court; and 50 51 52

53

54 55

2.67

2.68

Holloway, Bronitt and Williams (n 49) 89–90. Ibid 99. (1831) 1 Legge 5 (‘Farrell’); discussed in Holloway, Bronitt and Williams (n 49) 94–7. For an annotated report of the case, see Macquarie Law School, Decisions of the Superior Courts of New South Wales, 1788– 1899 (Website) . Bruce Kercher, ‘Perish or Prosper:The Law and Convict Transportation in the British Empire, 1700-1850’ (2003) 21 Law and History Review 527. Farrell (n 52) 8. Ibid 16.

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at the lower tier, the Local or Magistrates’ Court. That structure has largely remained.56 A  challenge at Federation was how to superimpose a federal system of courts on the existing court systems which had emerged during the colonial era.

Continuing connection with English law 2.69

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2.70

2.71

REPUGNANCY AND THE COLONIAL LAWS VALIDITY ACT One of the limitations placed on the law-making powers of the early Governors and Legislative Councils was that their enactments were not permitted to be repugnant to the laws of England. One of the problems with this restriction on colonial law-making powers was that the meaning of ‘repugnant’ was never expressly spelled out. How different from an English law could an Australian law be before it could be said to be repugnant? A further complication was that even after the date of reception had been fixed for New South Wales and Van Diemen’s Land by the Australian Courts Act in 1828, the Imperial Parliament could still pass legislation with application to the colonies. While the existence of this power was clear, the question often arose as to whether statutes passed in Westminster were intended to apply to the colonies. Could they extend to the colonies by implication? Or was it necessary for Imperial statutes to contain an express statement that they were intended to apply to the colonies? This problem came to be of more than theoretical concern during the mid-19th century. Following his appointment to the Supreme Court of South Australia in 1853, Benjamin Boothby invalidated many pieces of South Australian legislation, among them the Real Property Act 1858 (SA) which established the first ‘Torrens’ system of land registration, subsequently emulated around the world.57 In 1861 the South Australian Government appointed a committee to investigate this and other aspects of Boothby’s behaviour. (On one occasion, he locked up a jury for 22 hours without food when it refused to bring a finding in accordance with his direction.)58 In 1862, both Houses of the South Australian Parliament passed addresses asking that he be removed from the bench. The Imperial Government refused to agree to this but, not long after, it passed legislation aimed at curbing Boothby’s Anglophilic zeal. In 1863 the Imperial Parliament sought to narrow the repugnancy doctrine to give the colonies more independence. It passed An Act to confirm certain Acts of Colonial Legislature (Imp) 26 & 27 Vict, c 84, followed in 1865 by the Colonial Laws Validity Act (Imp) 28 & 29 Vict, c 63. The latter reiterated the premise of the supremacy of English law, but in s  3 it provided that no colonial law was to be invalidated for repugnancy unless it was inconsistent with Imperial legislation that ‘extended to’ the colony. Under s 1, legislation only ‘extend[ed] to’ a colony where it was ‘made applicable to such colony by the express words or necessary intendment of any Act’. This sent a clear message to both colonial legislatures and judges that they should not be overly deferential to British

56 57

58

44

See Essential Legal Toolkit A. Greg Taylor, ‘Is the Torrens System German?’ (2008) 29 Journal of Legal History 253; Greg Taylor, ‘The Torrens System – Definitely not German’ (2009) 30 Adelaide Law Review 195. Alex C Castles, ‘Boothby, Benjamin (1803–1868)’, Australian Dictionary of Biography (online) (National Centre of Biography, Australian National University) .

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CHAPTER 2 THE ORIGINS AND HISTORICAL DEVELOPMENT OF THE AUSTRALIAN LEGAL SYSTEM

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law. Their task was to develop bodies of law, in broad conformity with British notions of justice, but responsive to the various needs of colonial societies. Imperial legislation for the colonies diminished in volume over the 19th century with the establishment of local legislatures with responsibility for their own law-making. Residual power to legislate for the states was, however, retained by the British Parliament until the commencement of the British and Commonwealth Australia Acts 1986 on 3 March 1986: see 2.87–2.88. JUDICIAL COMMITTEE OF THE PRIVY COUNCIL Apart from the repugnancy doctrine, there was another way in which English norms continued to be the yardstick against which colonial law was measured.Australia’s ultimate appeal court was Imperial — the Judicial Committee of the Privy Council, which sits in London. The Judicial Committee of the Privy Council, usually referred to by lawyers simply as ‘the Privy Council’, can trace its origins to the King’s Council of the early middle ages, which was in turn an offshoot of the Curia Regis of the 12th and 13th centuries: see 2.8. During the struggles for political power in the 16th and 17th centuries, Tudor and Stuart monarchs began to use the ‘conciliar courts’ to combat the growth in influence of the common law courts. Initially, their lack of formality made the conciliar courts very popular. But as monarchs began to use the conciliar courts for more overt political ends (the chief of which was to get rid of enemies under the guise of the criminal law), they became first disliked and then feared.The Court of Star Chamber, whose name still conjures up images of arbitrary punishment and injustice, is perhaps the best known of these courts. So unpopular were the conciliar courts that the right of the Council to exercise court-like powers was abolished by statute in 1641. For a while the Council (by now called the Privy Council) operated as a political advisory body. Nowadays its main functions in Britain are ceremonial, such as attending the accession of a new sovereign. The Privy Council retained greater practical importance in the colonies than it did at home.The abolition of the Council’s judicial powers was limited to England.The Privy Council retained jurisdiction to entertain petitions to the monarch for justice filed by people in the colonies. Petitioners valued the Privy Council’s lack of local prejudice and parochialism. The French-speaking people of Canada, for example, were among the most ardent supporters of appeals to the Privy Council — the Counsellors were considered likely to be free of the anti-French bias that so permeated the North American colonies. The practice arose whereby petitions sent to the Privy Council were passed to a group of senior judges, most often members of the House of Lords who held judicial office. Over time, the judicial workload of the Privy Council was such that it was felt necessary to systematise the process. In 1833 the Imperial Parliament passed the Judicial Committee Act 1833 (Imp) 3 & 4 Will 4, c  41, which created a formal Judicial Committee of the Privy Council whose job was to hear appeals from the colonial possessions of the Empire. The Judicial Committee was chiefly composed of judicial members of the House of Lords, although provision was made for colonial and dominion judges to sit as well. While it had the advantage of freedom from local bias, the Privy Council suffered from two great handicaps: expense and distance. First, relatively few litigants could afford

2.72

2.73

2.74

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to take their cases to London, including the people whom the appeal was supposed to benefit most — those who might be at the greatest risk from local prejudice. At one of the sessions of the 1898 Melbourne constitutional convention, this point was made forcefully in an exchange between Henry Higgins and Richard O’Connor: Higgins: The poor man never goes to the Privy Council. O’Connor: A man is generally a poor man when he leaves it.59

2.75

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2.76

Second, there was the fact that the Privy Council was not really a colonial court. Most judges were British. While the Privy Council may have avoided local prejudices, on occasions it also lacked knowledge of local conditions. During the federation process some effort was made by drafters of the Australian Constitution to limit Privy Council appeals. However, the Colonial Secretary insisted that some provision be maintained for an appeal to the Queen in Council, both to preserve a symbolic tie to the Empire and to protect British financial interests from what were perceived to be the vagaries of the Australian judiciary. A compromise was reached: appeals from the High Court on questions of constitutional law were limited,60 but appeals on other matters were maintained. Decades later appeals to the Privy Council were eliminated in three steps. Appeals on federal matters were abolished by the Privy Council (Limitation of Appeals) Act 1968 (Cth), and appeals from the High Court on matters of state law were abolished by the Privy Council (Appeals from the High Court) Act 1975 (Cth). This left open the possibility of appeals from state courts directly to the Privy Council, bypassing the High Court. These were abolished by the passage of the Australia Acts in 1986. The Privy Council decided its last appeal from Australia in 1987.61 Most former British colonies have now abolished appeals to the Privy Council. The Privy Council reluctantly continues to hear appeals from several Caribbean states. In 2001 the Caribbean community voted to set up its own Caribbean Court of Justice as the ultimate court of appeal, but only a few states have adopted it. In a 2017 appeal against a murder conviction from Jamaica, the Privy Council indicated it would be ‘very unsatisfactory’ for it to resolve the dispute ‘when the Court of Appeal, sitting locally and with daily practical experience of the course of trials in the jurisdiction where the events occurred, did not feel able to do so’.62 The Privy Council provided a brief discussion of how the case might be approached and remitted it to the Jamaican Court of Appeal, commenting: ‘How that court goes about its resolution must be for it to decide.’63

The path to constitutional independence 2.77

FEDERATION Australia federated at the turn of the 20th century. Prior to that, the idea of federation had been discussed and debated for more than half a century, eventually garnering enough support, locally and in Britain, to be properly implemented. 59 60 61 62 63

46

Official Record of the Debates of the Australasian Federal Convention, Melbourne, 31 January 1898, 325. Australian Constitution s 74. Austin v Keele (1987) 61 ALJR 605. McLeod v The Queen [2017] UKPC 1 [18]. Ibid.

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CHAPTER 2 THE ORIGINS AND HISTORICAL DEVELOPMENT OF THE AUSTRALIAN LEGAL SYSTEM

The first discussion of the desirability of federation for the Australasian colonies came about in the late 1840s and 1850s — roughly the time that Victoria and Queensland were being carved out of New South Wales. The early proposals were quite limited in their ambit, but in a speech given in Melbourne in 1867, possibly influenced by Canada’s Confederation which took place that year, Sir Henry Parkes raised the question of federation directly. Nonetheless, the likelihood of any early action seemed remote. New South Wales and Victoria disagreed strongly about tariffs, New South Wales favouring free trade and Victoria advocating protectionism. What eventually overcame the intercolonial rivalry and distrust was a shared fear of German and French expansionism in the South Pacific. In 1885 the Imperial Parliament passed the Federal Council of Australasia Act 1885 (Imp) 48 & 49 Vict, c 60, which provided for a Federal Council with limited legislative power in areas of common concern. The Federal Council did not prosper, however, for New South Wales chose not to become a member and South Australia’s membership lasted only two years. (Interestingly, though, both New Zealand and Fiji did join the Council.) But the momentum within the colonies for union was maintained, and in March 1891 a National Australasian Convention met in Sydney. Out of this meeting came a draft Bill for a federal constitution. In the short term, the 1891 Bill came to nothing. The various colonial legislatures seemed to lose interest in the idea. But the quest for federation was kept alive by a populist movement, and further conventions, held in Adelaide, Sydney and Melbourne in 1897 and 1898, produced another draft federal constitution.The proposed constitution was put to referendum in all colonies except Queensland and Western Australia. These referenda passed by large majorities in Victoria, South Australia and Tasmania, but not by a sufficient majority in New South Wales. Some amendments were made to accommodate New South Wales’ concerns, and in the subsequent round of referenda, in which Queensland also took part, the constitution was approved in all five of the participating colonies. The constitution was then sent to the Imperial Parliament in London, for approval. In July 1900, after some minor amendments — chief of which concerned Privy Council appeals — the Commonwealth of Australia Constitution Act 1900 (Imp) 63 & 64 Vict, c 12 was passed by the Imperial Parliament. Shortly afterwards,Western Australia held a referendum on the Constitution, which passed by a majority. In September 1900, Queen Victoria proclaimed that the Act — and the new federal nation — would commence on 1 January 1901, the first day of the new century.64 The Australian Constitution combines a Westminster-style parliamentary democracy with a bicameral federal legislature. The Parliament comprises a lower people’s House (the House of Representatives) and an upper states’ House (the Senate), modelled on the United States Congress. However, unlike the United States system, there is no provision for the direct election of an executive. The Constitution vests executive power in the Queen, exercisable by her representative, the Governor-General.65 As in Britain, according to unwritten Westminster convention, the bulk of executive power is exercised by the parliamentary political party that commands support in the lower, more representative, 64

65

2.78

2.79

2.80

2.81

Popular belief may have it that the 20th century began on 1 January 1900. However, the first year of the first century CE was year one, not year zero. The 100th year CE was 100 CE, the second century CE began on 1 January 101, and the 20th century began on 1 January 1901. Australian Constitution s 61.

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LAYING DOWN THE LAW

2.82

2.83

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2.84

House of Parliament. This is the real executive government; the Crown almost invariably acts on the government’s advice. While the commencement of the Australian Constitution in 1901 created a new nation, it did not provide full legal independence from Britain. This took almost another century of incremental steps, and in large part occurred without formal legal change.This is not unusual for countries in the British constitutional tradition. Many key elements of constitutional structure are unwritten, and when formal change does occur, it may simply capture something that has already taken root in legal and political culture. In the decades following Federation and the proclamation of Australia as a new nation, most Australians still considered themselves to be British. The two identities, Australian and British, sat comfortably side by side. Clear evidence of this can be found in Australia’s relations with the outside world. In the eyes of the international community, Australia had no identity apart from its membership in the British Empire. When Great Britain declared war on Germany in August 1914, it was taken for granted that Australia was at war as well. The first hint of a change came in 1919, when the Treaty of Versailles was formally signed to end the First World War. At Great Britain’s insistence and over the objections of some of the other allies, Australia and Canada were permitted to sign the treaty themselves. STATUTE OF WESTMINSTER 1931 A more important, but still non-formal, step came at the Imperial Conference of 1926.The conference was called as a result of a constitutional crisis in Canada which turned on the question of the role of the Canadian Governor-General. Was the Crown’s representative to take political advice from the Canadian Government? Or was the Governor-General meant to be a representative of Imperial interests? The conference opted for the former model — Governors-General were to act on the advice of the locally elected governments, rather than that of Great Britain. In addition, the conference led to a statement of British Government policy, known as the Balfour Declaration of 1926 after AJ  Balfour, the British politician who drafted the document. (This is not to be confused with the more controversial Balfour Declaration of 1917, named after the same politician, in which the British Government expressed support for the ‘establishment in Palestine of a national home for the Jewish people’.) The 1926 statement declared that the ‘dominions’ — Australia, Canada, Ireland, Newfoundland, New Zealand and South Africa — were autonomous communities within the British Empire, equal in status, in no way subordinate one to another in any aspect of their domestic or external affairs, though united by a common allegiance to the Crown, and freely associated as members of the British Commonwealth of Nations.66

After another Imperial Conference held in 1930, the Balfour Declaration was committed to statutory form. The Statute of Westminster 1931 (Imp) 22 & 23 Geo 5, c 4 reiterated in its preamble the essence of the Balfour Declaration, and in s 4 provided that thereafter, the British Parliament would not pass legislation applying to any dominion except at the dominion’s request. Further, s 2 repealed the last vestiges of the repugnancy doctrine as contained in the Colonial Laws Validity Act 1865; dominion 66

48

Balfour Declaration, Imperial Conference 1926, 2.

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CHAPTER 2 THE ORIGINS AND HISTORICAL DEVELOPMENT OF THE AUSTRALIAN LEGAL SYSTEM

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laws would no longer be held void on the grounds that they were inconsistent with English law. Finally, s 3 formally conferred upon the dominion Parliaments the power to make laws of extra-territorial application (that is, laws which could apply outside the country’s own borders). In this sense, the Statute of Westminster 1931 marked a significant step forward on the road to independence of Australia and the other dominions.Yet political difficulties within Australia limited the Act’s practical effect.The problem was that the states, particularly New South Wales which at the time was embroiled in a controversy with the Commonwealth over financial power, did not want to sever their direct constitutional links with Britain. And so an express provision was included in the statute that excluded its application to the Australian states. Moreover, s 10(1) said that the operative provisions of the statute were not to come into effect in a dominion until the dominion passed legislation to that effect. In Australia, this did not happen for 11 years with the Commonwealth Parliament’s enactment of the Statute of Westminster Adoption Act 1942. This Act provided that the operative provisions of the Statute of Westminster 1931 were to be deemed to have had effect since 3 September 1939, the first day of the Second World War. That a sizeable number of Australians still considered themselves to be British was made plain in September 1939, when Great Britain declared war on Germany after the invasion of Poland. Again, the Australian Prime Minister stated that since Britain was at war, so too was Australia. (Canada saw fit to make its own declaration of war, a week after Britain’s.) But, as with the First World War, participation in international armed conflict led to an increase in Australia’s international status. In 1941 Australia separately declared war against Japan. In 1942 Australia’s first ambassador was accredited to the United States. And in 1945 Australia took full part in the surrender of the enemy forces, particularly the Japanese. THE AUSTRALIA ACTS 1986 Yet the anomaly created by the uneven adoption of the Statute of Westminster 1931 continued. While the Commonwealth had secured its de facto legislative freedom from the United Kingdom, the states retained a direct colonial link with the Imperial Parliament and were still bound by the repugnancy doctrine contained in the Colonial Laws Validity Act 1865. This situation was not resolved until 1986. Following Premiers’ conferences in the early 1980s, the states agreed in principle to cut the final direct constitutional links with the United Kingdom. Accordingly, in 1985 each of the states passed a statute to this effect, entitled the Australia Acts (Request) Act, requesting the British and Commonwealth Parliaments to pass legislation by which the United Kingdom would give up whatever remaining legislative powers it had over the state. At the same time, the Commonwealth Parliament, pursuant to the Statute of Westminster 1931, passed the Australia (Request and Consent) Act 1985, requesting that the United Kingdom give up whatever power it might still have over Australia as a whole. In 1986, the British and Commonwealth Parliaments each passed almost identically worded statutes, both called the Australia Act, which came into force at 5.00 am Greenwich Mean Time on 3 March 1986. Section 1 provides:

2.85

2.86

2.87

2.88

No Act of the Parliament of the United Kingdom passed after the commencement of this Act shall extend, or be deemed to extend, to the Commonwealth, to a State or Territory as part of the law of the Commonwealth, of the State or of the Territory.

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Section 11 terminated the final avenue of appeal to the Privy Council directly from state courts, bypassing the High Court: see further 2.75 and 8.76ff. With the passage of the two Australia Acts in 1986, Australia’s journey to legal independence was complete. EXERCISE 1: TIMELINES 2.89

Construct two timelines of Australia’s journey to legal independence, one for the judiciary and one for the legislature. Mark on each timeline the most important steps on the journey. Indicate in each case the means by which the step was taken, whether through legislation or some other event. In the case of legislation, note whether it is colonial, Imperial, British, state or Commonwealth. Briefly explain the significance and impact of each step.

Further reading • John H Baker, An Introduction to English Legal History (LexisNexis Butterworths, • • • •

5th ed, 2019). John Bennett and Alex Castles (eds), A Source Book of Australian Legal History (Lawbook, 1979). Alex Castles, An Australian Legal History (Lawbook, 1982). Michael Coper, Encounters with the Australian Constitution (CCH Australia, 1988). Paul Finn, Law and Government in Colonial Australia (Oxford University Press, 1987).

• Justin T Gleeson et al, Historical Foundations of Australian Law, vols  1 and  2

(Federation Press, 2013). • Ellen Goodman, The Origins of the Western Legal Tradition from Thales to the Tudors (Federation Press, 1995). Copyright © 2020. LexisNexis Butterworths. All rights reserved.

• William S Holdsworth, A History of English Law (Sweet & Maxwell, 7th  ed, 1956).

• Sir Ivor Jennings, The Queen’s Government (Penguin Books, 1954) ch 5. • Richard Lumb, The Constitutions of the Australian States (University of Queensland Press, 5th ed, 1991). • Frederic W Maitland, The Constitutional History of England (Lawbook Exchange, 1908). • David Neal, The Rule of Law in a Penal Colony: Law and Power in Early New South Wales (Cambridge University Press, 1991).

• Patrick Parkinson, Tradition and Change in Australian Law (Lawbook, 5th  ed, 2012). • Victor Windeyer, Lectures on Legal History (LawBook, 2nd rev ed, 1957).

50

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CHAPTER 2 THE ORIGINS AND HISTORICAL DEVELOPMENT OF THE AUSTRALIAN LEGAL SYSTEM

• George Winterton and HP Lee (eds), Australian Constitutional Landmarks (Cambridge University Press, 2003). • George Winterton (ed), State Constitutional Landmarks (Federation Press, 2006).

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To enhance your learning experience, use the student resources available on Lexis® Learning See the Visual Preface at the front of this book on how to register.

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CHAPTER

3

The Australian Legal System The Constitution of the Commonwealth of Australia entrenches the rule of law in the … vital sense that there is no Commonwealth power legislative, executive or judicial that can be exercised other than with the authority of the Constitution or laws made under it. The Constitution also sets limits, directly or indirectly, expressly or by implication, upon the law-making powers of the States.1

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1

Chief Justice Robert French AC (Speech, Book Launch [Nicholas Aroney et al, The Constitution of the Commonwealth of Australia: History, Principle and Interpretation (Cambridge University Press, 2015)], Australian National University, Canberra, 1 October 2015).

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Introduction

3.1

Origins and Institutions

3.2

− Parliamentary democracy

3.3

− Federal system

3.4

Key Constitutional Principles

3.7

− Separation of powers

3.8

− Responsible government

3.11

− Rule of law

3.13

Australian Legal Institutions

3.14

− Legislature

3.17

− Judiciary

3.21

•

Commonwealth

3.24

•

State and territory court systems

3.27

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− Executive

3.28

•

Commonwealth

3.29

•

States and territories

3.31

•

Administrative law

3.32

International Law

3.33

− Sources

3.34

− Impact on domestic law

3.37

− Enforcement

3.40

Human Rights Law in Australia

3.44

− Express and implied constitutional rights

3.45

− Constitutional rights infrastructure: rule of law, principle of legality, separation of powers

54

3.47

− Administrative law and the protection of rights

3.50

− An entrenched Bill of Rights for Australia?

3.54

− Protecting rights through intragovernmental dialogue

3.58

EXERCISE 2: Bill of Rights and Parliament’s role

3.61

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CHAPTER 3 THE AUSTRALIAN LEGAL SYSTEM

Introduction The Australian legal system is made up of key governmental institutions that make, interpret, administer and enforce laws, at the federal, state and territory levels. These institutions are guided by written constitutions, such as the Australian Constitution,2 and fundamental constitutional principles. The form of government, derived from English settlement, is a Westminster parliamentary system, but in a federal structure and within an international context. In this chapter we explain each of these elements of the Australia legal system as it stands today.

3.1

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Origins and institutions The Australian Constitution is the fundamental law of Australia. It took effect from 1 January 1901, uniting six constituent British colonies to form a nation with a federal system of government: see 2.77ff. It provides for the establishment of a national government — known as the federal or Commonwealth government — and sets out the structure and limits of each of the three key branches of government: the legislature, the executive and the judiciary. It reflects the agreement reached by the colonies on the relationship between these branches, between the federal government and the state governments, and between the federal government and the citizens of Australia. It also sets out, in s 128, the means by which the Constitution can be amended.3 The way the Australian government system operates now, more than a century after Federation, is not immediately evident on reading the Constitution, but it remains the touchstone for identifying the legality and limits of government action. The Constitution also reflects the history of British settlement of Australia. As explained in Chapter 2, the Australian legal system is modelled on the English legal system because the land was ‘settled’4 and colonised by Britain from 1788. Although originally established as a penal colony, for convicts ‘transported’ from Britain, the government of the colony of New South Wales and subsequent colonies evolved gradually to reflect the governmental structures of Westminster, the seat of British government. This model was then used to create the new Australian Government to sit above the six former colonies in a federal structure. PARLIAMENTARY DEMOCRACY There are key features of a parliamentary system of government, although not all are peculiar to this system. First, reflecting the principle of separation of powers, introduced in Chapter 2 and discussed further below at 3.8, there are three branches of government: legislature, executive and judiciary. Each of these branches has a primary role and is notionally separate from the others, with some important qualifications.

2 3

4

3.2

3.3

Commonwealth of Australia Constitution Act 1900 (Imp) 63 & 64 Vict, c 12. Note that the requirements for amendment are onerous. Section 128 requires proposed amendments to pass both Houses of Parliament and be approved at referendum by a majority of voters overall, and by a majority of voters in a majority of states. Only 8 of 44 referendums have passed. See 4.60ff for discussion of the 1967 referendum for constitutional amendment. See 2.56 for explanation of this term in international law and how it applied to the colonies.

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LAYING DOWN THE LAW

The second feature, one that is peculiar to a parliamentary system of government, is a particular overlap of personnel and powers among the branches of government (more so in the United Kingdom than Australia). In establishing the federal government, the Australian Constitution required the judiciary to be separate in personnel and powers from the other two branches, the legislature and the executive, which overlap, as they do in the British government in Westminster. The judiciary is comprised only of judges, who are charged with exercising judicial power, and only judicial power in that role at the federal level: see 3.24–3.26. However, in a parliamentary system the legislature and the executive are not distinct: key members of the executive, including the Prime Minister and the other Ministers, who are effectively secretaries of state or heads of executive departments, are also members of the legislature.5 Reflecting another constitutional principle, responsible government (discussed below), this overlap means that the executive government is drawn from and ostensibly responsible to Parliament and, in turn, to those who elect Members of the Parliament, the people. By convention, the government is constituted by those Members of Parliament whose party or coalition gains a majority of seats (or support of a majority) in the election of the lower House of Parliament. It is this majority that, by convention, authorises the head of state, which in Australia is the British monarch’s representative, the Governor-General, to appoint the Members as Ministers and to form government. Parliament, as the democratically elected branch, is supreme in respect of law-making and allowing the government to govern; generally, if the government loses support of a majority in Parliament, it will be expected to advise the Governor-General to call an election.

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3.4

3.5

FEDERAL SYSTEM In Australia’s federal system of government, the national Commonwealth Government sits atop the semi-autonomous governments of the six states and the two territories. Powers and responsibilities are divided and shared between the two levels of government. The states, originally operating as British colonies, each have a constitution that establishes and delineates the government powers and responsibilities within that state. In federating, the colonies ceded some powers to the new federal government but in many fields retained power to govern concurrently with the national government. This can be seen, for example, in the division of legislative powers in the Australian Constitution, with the Commonwealth Parliament being granted a small number of fields (referred to as ‘heads of power’) in which it alone can pass legislation,6 while also being granted power to make laws concurrently with state governments over a much longer list of fields.7 Under the Constitution, the High Court of Australia plays a significant role in the federal system. First, the High Court can resolve conflicts between federal and state laws; in the event of an inconsistency, the federal law will prevail to the extent of the inconsistency.8 Second, the High Court is the highest court for all disputes, which means that it can determine appeals from all courts. In this role, under the common law rules 5 6 7 8

56

Australian Constitution s 64. Ibid s 52. Ibid s 51. Ibid s 109.

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CHAPTER 3 THE AUSTRALIAN LEGAL SYSTEM

of precedent (see Chapter 7), it can harmonise conflicting authorities in case law from different states. In this sense, there is only one system of common law in Australia: see 8.35. Finally, the High Court has power to determine whether the federal government has operated within the powers given to it in the Constitution. This could mean assessing whether legislation falls within one or more of the heads of power,9 or assessing whether the executive government has legal authority to undertake a particular action.10 While the High Court has checked federal power,11 over time the federal government’s reach has grown substantially. This is in part because the court has interpreted the heads of power increasingly widely to allow federal legislation in areas not foreseen by the founding constitutional drafters.12 And the federal government has expanded its powers beyond those broadening legislative limits by holding the purse strings; dating from a fiscal crisis in the Second World War when the states were persuaded to give up their income taxing powers, the federal government has been able to regulate areas traditionally within state control by attaching conditions to grants offered to the states.

3.6

Key constitutional principles

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Underpinning and informing the legal institutions in Australia are key ideas that have developed over centuries about how governments should be constituted and operate. These are referred to as constitutional principles because of their foundational nature; they are reflected but not expressly referred to in the Australian Constitution (and state equivalents). Three constitutional principles introduced in Chapter  2 and explained further below are: the separation of powers; responsible government; and the rule of law. They are indisputably important in the operation of government today, but the principles are open to interpretation. Much has been written about them, each inspiring many treatises and ongoing debates but for our purposes we merely seek to introduce and outline them. SEPARATION OF POWERS The principle of the separation of powers emerged over time and reflects the now well-accepted idea that government power should not be too concentrated in any single individual or institution. Instead, it is better to distribute power across separate institutions and allow each of these institutions to keep the others in check. Articulated most notably by the French social commentator and political philosopher Baron de Montesquieu in his De l’esprit des loix (The Spirit of the Laws) in 1748,13 the ideas were controversial but influential. They clearly influenced the structuring of the United States Constitution in 1787 with the first three articles establishing respectively the three branches of government — legislature, executive and judiciary — and this structure was replicated in Australia: see 3.14ff.

9 10 11 12 13

3.7

3.8

See, eg, New South Wales v Commonwealth (2006) 229 CLR 1 (‘WorkChoices Case’). See, eg, Williams v Commonwealth (2012) 248 VLR 156 (‘School Chaplains Case’). See, eg, Australian Communist Party v Commonwealth (1951) 83 CLR 1 (‘Communist Party Case’). See, eg, Commonwealth v Tasmania (1983) 158 CLR 1 (‘Tasmanian Dam Case’). Baron D Montesquieu, De l’esprit des loix (Geneva, Barrillot & Sons, 1748).

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57

LAYING DOWN THE LAW

3.9

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3.10 delegated legislation: legal rules made by those to whom Parliament has delegated authority, usually members of the executive branch of government, such as Ministers; also known as ‘subordinate legislation’

3.11

58

This division of functions has come to be regarded as politically astute architecture for governments. Each branch of government has different powers and responsibilities, and different personnel, with some important qualifications. • The legislature, comprised of elected Members of Parliament, is designed primarily to make law, specifically to enact legislation. • The primary role of the judiciary, the judges, is to be the arbiter of disputes and, in doing so, provide authoritative guidance on the meaning of the laws. • The executive branch is by far the largest and most amorphous branch of government, as it is made up of numerous officers, departments and institutions whose primary role is to execute or administer the laws. This separation of functions prevents a concentration of public power in one individual or institution, and in turn avoids those abuses of power which led to the constitutional struggles chronicled in Chapter  2. This separation is not absolute, however, either in respect of powers or personnel. First, in respect of personnel, as noted above, a parliamentary system is defined as one where there is some overlap between the legislature and the executive: the Ministers, including the Prime Minister, who are the heads of each department of the executive, must be elected members of the legislature. While the term ‘government’ is loosely used to refer to all three branches, it is more specifically used for the Prime Minister and Ministers who are in and have the support of the Parliament but also control the executive. One of the main rationales for this overlap is the principle of responsible government, which is explained further at 3.11. In respect of powers, although each branch has a primary role of making, administering or interpreting laws, it also has other powers. The judiciary, for example, not only interprets legislation but also has power to create law in the form of case law precedent (as discussed in Part  2). The executive also creates law and, in fact, creates the most law in the form of secondary, subordinate, or delegated legislation, such as regulations (discussed in Chapter 9). This power is officially ‘delegated’ from Parliament to the executive; parliamentary committees in each jurisdiction are then established to examine delegated legislation. For example, the Senate Committee on Regulations and Ordinances ensures the subordinate law meets standards such as not exceeding the authority delegated, not unnecessarily curbing statutory discretions, and not trespassing unduly on personal rights and liberties. RESPONSIBLE GOVERNMENT The principle of responsible government refers to the relationship between the executive branch of government and Parliament. Specifically, it is the notion that the executive is responsible or accountable to the Parliament, via the Ministers who head the executive and are elected Members of Parliament. The idea is that every part of the executive — every department, centre or unit of public servants carrying out government administration — has an identified Minister to whom it reports and who is ostensibly responsible for that administration.The Minister is responsible in the sense of being answerable to Parliament about all activity within their domain. Ultimately, in theory, an individual Minister might be called upon to resign for significant administrative failures within their department, although this is increasingly rare. Further, if the government itself loses the confidence of

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CHAPTER 3 THE AUSTRALIAN LEGAL SYSTEM

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the House — that is, it loses support of a majority of Members of Parliament — it will be pressed to call an election. As a mechanism for parliamentary supervision over government business, the principle of responsible government has notable weaknesses. Most importantly, with the extraordinary growth over the centuries and complexity of government activity, there is little real capacity for Parliament to properly scrutinise the breadth and depth of activity including every piece of delegated legislation and administrative decision.With Members of Parliament mostly voting along party lines, there is also limited capacity for Parliament to extract from government the information it needs to assess government performance. The principle of responsible government still has significant rhetorical power though, as an idea that accountability of the executive is critical to good government. It has underpinned the development of many other mechanisms designed to promote both accountability and good performance of the executive branch. Examples of these include those within Parliament, such as committees made up of Members of Parliament established to operate in an ongoing way (standing committees) or for specific inquiries (select committees). Accountability mechanisms within the executive are noted below: see 3.28. RULE OF LAW While probably the most important constitutional principle, the rule of law is also one that defies a simple definition. It is a principle, or a set of interrelated principles, that is expressed in a range of ways, with different authors emphasising different aspects. As noted in 2.50, central to the rule of law is the notion of legality.14 At its simplest yet most profound, this means that the law applies not only to individuals but also to public officials, constraining them to do only what the law empowers and allows them to do. That authority may be found in the common or judge-made law or, more usually today, in legislation.15 Absent authority from these sources, governments are prevented from taking action. According to the scholar renowned for elaborating the idea, AV Dicey, this also meant that public officials were not to be granted wide discretionary power because this would be akin to granting arbitrary power that would not sufficiently constrain them.16 A second, related principle is that no-one should be punished without a crime, meaning a breach of a law. Sometimes described using a Latin formulation — nullum crimen sine lege, or ‘no crime without law’ — this means no-one should suffer a penalty or restriction imposed by the government unless they are found guilty of having broken a law, and that law must already have been in existence. In particular, the executive has no inherent authority to impose taxation, to interfere with private property, or to take punitive action against members of the public. This is integrally linked to a third aspect of the rule of law, which relates to the form of laws: they must be written or knowable, well-defined (including any possible penalties for breach), certain, able to be complied

14

15

16

3.12

3.13

See, eg, Jeffrey Jowell, ‘The Rule of Law and Its Underlying Values’, in Jeffrey Jowell and Dawn Oliver (eds), The Changing Constitution (Oxford University Press, 6th ed, 2007) 5, 10. There is a small but significant bundle of other powers that can authorise executive action, including prerogative executive powers (which originated in the prerogative of the monarch) and powers to contract. Albert Venn Dicey, The Law of the Constitution (1885). See also Lord Bingham, ‘The Rule of Law’ (2007) 66(1) Cambridge Law Journal 67, 72.

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LAYING DOWN THE LAW

with, and prospective.17 Finally, and this underpins the importance of independence of the judiciary and other adjudicative decision-makers, anyone affected by an exercise of government power must be accorded procedural fairness, which includes a fair hearing before an unbiased judge.18

Australian legal institutions 3.14

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3.15

3.16

The principal legal institutions in Australia are parliaments, which pass legislation and monitor delegated legislation; the courts, which interpret those laws in their application to individual disputes; and the executive, which administers those laws. This section examines each of these arms of government. Local government is another important legal tier of state governments but is not mentioned in every state constitution.19 This division of law-making functions is clearly apparent from the first three chapters of the Australian Constitution: • Chapter I ‘The Parliament’ identifies the topics on which the national Parliament has legislative power, concurrent for the most part with powers of state parliaments; • Chapter II ‘The Executive Government’ sets out in broad terms in s  61 the executive or non-legislative powers of the Australian Government; and • Chapter III ‘The judicature’ provides for the establishment of the High Court of Australia and defines the functions of a federal judicial system, superimposed on the state judicial systems. The clear division of government functions — legislative, executive and judicial — in the Constitution has been interpreted as an intentional introduction of separation of powers principles, as noted above in 3.9. This separation is not as distinct or forceful in the states and territories.20 None of the state or territory constitutional documents is as clearly divided, and not all refer to the three arms of government. For example, Tasmania’s Constitution Act 1934 contains no reference to the judicial arm, while other state constitutions establish the legislature, the executive and the judiciary, but refer only to the powers of the legislature, not the other arms of government. A constitution such as the Australian Constitution, which not only establishes the institutions of government but also sets out their powers, introduces a degree of inf lexibility into law-making. For example, the Constitution limits federal legislative capacity to the topics listed in ss  51 and  52, so the Commonwealth Parliament must ensure each Act falls within the scope of these sections. This is policed by the courts. The rule of law element requires that even Parliament does not act beyond its power. But while the Constitution sets limits, there is much scope for evolution within these limits. This is particularly the case for the executive, as evidenced later in this chapter (see 3.28ff), but also for Parliament (as noted above at 3.4).

17 18 19

20

60

Jowell (n 14) 10–11; Bingham (n 16) 69–70. Jowell (n 14); Bingham (n 16) 80–81. See Constitution Act 1902 (NSW) pt 8; Constitution of Queensland Act 2001 (Qld) ch 7; Constitution Act 1934 (SA) pt 2A; Constitution Act 1975 (Vic) pt IIA. Kable v DPP (NSW) (1996) 189 CLR 51 (‘Kable’).

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CHAPTER 3 THE AUSTRALIAN LEGAL SYSTEM

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By contrast, state constitutions are expressed in broad terms, commonly granting state legislatures full legislative power in words such as ‘power to make laws for the peace, welfare [or order], and good government [of the state] in all cases whatsoever’.21 Such constitutions are flexible. The limits that are imposed, often known as ‘manner and form’ provisions,22 merely prescribe a manner or form of passing laws. An example is requiring a more onerous majority to pass certain laws, such as a law to vary the term of Parliament.23 LEGISLATURE Each of the component parts of the federation — the Commonwealth, the states and the territories — has a legislature. This means that there are nine parliaments in Australia: the Commonwealth Parliament, the six state parliaments, and the Australian Capital Territory and Northern Territory parliaments. Most parliaments are bicameral, that is, have two Houses in the Westminster tradition: a lower House where the party or parties with a majority of Members elected forms the government; and an upper House often designated ‘a house of review’. Some parliaments, including those in Queensland and the two territories, are unicameral, that is, they have only one House. The primary role of the legislature is to enact legislation, otherwise known as Acts or statutes, and generally this involves two steps. First, the Bill must pass a vote of both Houses of Parliament (or the single House in unicameral systems). The Bill then needs to be assented to by the Governor-General in the case of the Commonwealth, or the relevant Governor in the case of the states; the equivalent step for the two mainland territories is for the legislation to be published in the government gazette in the Australian Capital Territory,24 or consented to by the Administrator in the Northern Territory.25 As noted above, in 3.4, at Federation the Constitution divided legislative powers between the parliaments of the six existing Australian colonies and the new national Parliament. The Commonwealth Parliament was given limited legislative powers, and most of these were granted concurrently with the state legislatures rather than exclusively to the Commonwealth.26 The Commonwealth was given power to legislate on issues the colonies agreed it needed in order to form a nation, including tax, trade and commerce, immigration, and industrial arbitration. Apart from the exclusive topics granted to the Commonwealth, such as defence and coinage, each state retained its plenary powers to legislate ‘for the peace, welfare and good government’ of the state. The territory parliaments, like the state parliaments, have plenary legislative power. However, the Commonwealth also has plenary legislative power over the territories under s 122 of the Constitution and so can override territory legislation on any topic — this is known as the Commonwealth’s territories power. A notable example of the exercise of the veto power is the Euthanasia Laws Act 1997 (Cth), which negated the Northern Territory’s Rights of the Terminally Ill Act 1995.

21 22 23 24 25 26

See, eg, Constitution Act 1902 (NSW) s 5. Colonial Laws Validity Act 1865 (Imp) s 5. See, eg, Constitution Act 1934 (Tas) s 41A. Australian Capital Territory (Self-Government) Act 1988 (Cth) s 25. Northern Territory (Self-Government) Act 1978 (Cth) s 7. Australian Constitution ss 51–52.

3.17

3.18

3.19 mainland territories: the Australian Capital Territory and the Northern Territory; as opposed to Australian external territories, such as Norfolk Island

territories power: plenary Commonwealth power to pass legislation for the government of a territory under s 122 of the Constitution

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3.20

3.21

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3.22

3.23

independence of the judiciary: the principle that judges, in deciding disputes, should be free from political or other influence

With most federal legislative powers being granted concurrently with the states rather than exclusively to the Commonwealth,27 there is potential for conflict between laws. This was anticipated in s 109 of the Constitution, which provides that in the case of any inconsistency between national and state laws, the Commonwealth law prevails to the extent of the inconsistency. A recent example of legislative inconsistency is provided by Commonwealth v Australian Capital Territory,28 albeit involving the invalidation of a territory rather than a state law.29 Marriage is a topic on which the Commonwealth may legislate under s 51(xxi) of the Constitution. This is a concurrent head of legislative power; however, the High Court held invalid the Marriage Equality (Same Sex) Act 2013 (ACT) as it was wholly inconsistent with the definition of marriage in s  5 of the Marriage Act 1961 (Cth). At the time, s 5 provided that marriage means ‘the union of a man and a woman …’. This definition did not appear in the Marriage Act 1961 as originally passed, but was inserted by the Howard Government in 2004 in a deliberate effort to prevent same-sex marriage. (Note that after the national postal plebiscite on same-sex marriage, this definition was amended in 2017 so that marriage now means ‘the union of 2 people’.) JUDICIARY There are nine different hierarchies of courts in Australia, although they have the High Court at the apex. Set up under s 71 of the Australian Constitution, the High Court hears appeals or reviews decisions on all legal issues from the federal court hierarchy, and from each of the six state and two territory court systems. Judges are appointed to particular courts. The appointment process is undertaken by the executive government, following advice from key bodies in the legal profession, such as the Law Council of Australia, representatives of the bar and other prominent legal institutions such as the Judicial Conference of Australia. Under the High Court of Australia Act 1979 (Cth), the federal Attorney-General is required to consult with the state Attorneys-General as well. Criticisms of this process are that it lacks transparency. However, the quality of the Australian judiciary is generally high, so the system has served Australia well. At Federation, the High Court only had three Justices, but that number has since increased to seven. Judges are generally appointed for life, which effectively means until they reach a particular age, and can only be removed earlier for ‘proved misbehaviour or incapacity, upon an address from both Houses of Parliament in the same session’.30 Such circumstances are rare. This provision secures the independence of the judiciary from governmental interference, as do restrictions on reducing the salaries or employment conditions of judges during their tenure.31 For the High Court Justices and all federal court judges, the

27 28 29

30

31

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Ibid. (2013) 250 CLR 441. Under Australian Capital Territory (Self-Government) Act 1988 (Cth) s 28(1) which is similar, but not identical, to s 109 of the Constitution. Australian Constitution s 72(ii). There are equivalent provisions in state and territory constitutions to the extent they cover the judiciary. See, eg, ibid s 72(iii).

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CHAPTER 3 THE AUSTRALIAN LEGAL SYSTEM

compulsory retirement age is fixed in the Constitution at 70.32 This is a common judicial retirement age.33

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Commonwealth Chapter III of the Australian Constitution provides for the establishment of the High Court of Australia and ‘such other courts as [the Parliament] invests with federal jurisdiction’.34 Those courts now are the Federal Court of Australia, the Federal Circuit Court of Australia, and state courts to the extent they are exercising federal judicial power, as well as the Family Court which resolves complex family disputes: see Essential Legal Toolkit A.2. Most matters heard by the High Court are appeals. A distinctive feature of this Court is that it is the final court of appeal for every court in Australia, that is, from federal, state and territory court systems on all legal disputes including those arising under the common law. The federal judicial system is contrasted with that in the United States where dual federal and state court systems exist side by side. A beneficial consequence is that the High Court can establish ‘one common law in Australia which is declared by this Court as the final court of appeal’.35 The High Court also has limited original jurisdiction, which means that in some cases a party can start an action in the High Court. The Court’s original jurisdiction includes disputes against the Commonwealth, affecting certain diplomatic personnel, concerning admiralty and maritime matters, arising under a treaty, or crossing state boundaries (the diversity jurisdiction).36 The High Court is empowered to determine whether the executive branch has exceeded its powers;37 whenever limits are placed on the exercise of power, there needs to be an institution that ensures these limits are not exceeded (according to the rule of law). Under the Constitution, the High Court’s original jurisdiction may be shared with other courts exercising federal judicial power. This includes all federal courts, but also includes state supreme courts. In what was dubbed the ‘autochthonous expedient’,38 which is a peculiarly Australian mechanism, the Constitution allowed for the High Court’s original jurisdiction to be vested in the state supreme courts. For a long time there was great reliance on this expedient; no general federal courts were established in the first seven decades of the nation. The separation of powers doctrine has particular force in relation to the nature of federal judicial power.Two principles have emerged. First, courts in the federal system can only exercise judicial power of the Commonwealth, not legislative or executive power,39 nor state judicial power.40 Second, judicial power of the Commonwealth may not be

32 33 34 35 36 37 38

39 40

3.24

3.25 original jurisdiction: the jurisdiction or power of a court to hear matters that commence in that court, as the first hearing, rather than on appeal from a lower court

3.26

Ibid s 72. For example,Victorian Supreme Court judges are appointed to age 70: Constitution Act 1975 (Vic) s 77. Australian Constitution s 71. Lange v Australian Broadcasting Tribunal (1997) 189 CLR 520, 563. Australian Constitution ss 75, 76. Ibid ss 73, 75. R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254, 268 (Dixon  CJ, McTiernan, Fullagar and Kitto JJ) (‘Boilermakers Case’). Ibid 273. Re Wakim; Ex parte McNally (1999) 198 CLR 511.

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exercised by bodies other than federal courts.41 As noted above, state supreme courts were granted federal jurisdiction and in this sense can be characterised as federal courts. However, tribunals cannot exercise federal judicial power because they are not courts. Federal tribunals operate as part of the executive, reviewing and remaking decisions of the executive, but not making authoritative determinations of law. Similarly, state tribunals are not able to exercise judicial powers of the Commonwealth,42 although they are not as strictly constrained in respect of judicial power of the state. A consequence of these principles is that judicial officers may not perform any non-federal judicial functions that would impair their independence or integrity. It has been determined that this permits federal court judicial officers to be appointed in their personal capacity to tribunals,43 such as the Administrative Appeals Tribunal or the Fair Work Commission, but incompatibility has been established in other circumstances in which the role is closely allied with political functions of government.44 State and territory court systems 3.27

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3.28

The constitutional frameworks of the states, as mentioned earlier, is less prescriptively defined into three elements. The consequence is that separation of powers is not constitutionally entrenched as it is federally.45 The typical framework of state court systems is found in Essential Legal Toolkit A.3. The issue of the status of the court systems of the mainland territories remains a vexed one in the absence of any reference to territory court systems in Chapter III of the Australian Constitution. Most state constitutions and the Australian Capital Territory (Self-Government) Act 1988 (Cth) refer to their courts and the appointment and tenure of judicial officers but generally refrain from mentioning the powers of the judiciary.46 There is no provision relating to the judiciary in the constitutions of South Australia and Tasmania, nor in the Northern Territory (Self-Government) Act 1978 (Cth). EXECUTIVE The executive arm of government administers and enforces the law.In the Commonwealth, the executive comprises the head of state, the Governor-General; the Prime Minister and Ministers who together make up the Federal Executive Council, with the most senior Ministers forming the Cabinet, which is the principal policy-making body of government; the government departments that the Ministers head; the defence force; the police force; and numerous statutory or non-statutory and some private sector entities that provide services to or for government. The different categories of bodies 41 42

43 44 45

46

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Boilermakers Case (n 37). This continues to be a barrier to state tribunals exercising some powers, such as those involving residents of different states, in contrast to the ‘diversity jurisdiction’ granted exclusively to the federal court system in the Australian Constitution s 75(iv): Burns v Corbett (2018) 92 ALJR 423. For examination of the NSW response to this case, see Gaynor v A-G (NSW) [2020] NSWCA 48. Hilton v Wells (1985) 157 CLR 57. Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1. Clyne v East (1967) 68 SR (NSW) 385; Building Construction Employees and Builders’ Labourers Federation of New South Wales v Minister for Industrial Relations (1986) 7 NSWLR 372. ACT: Australian Capital Territory (Self-Government) Act 1988 (Cth) pt VA; NSW: Constitution Act 1902 pt 9; Qld: Constitution of Queensland Act 2001 ch 4; SA: Constitution Act 1934 pt 4; Vic: Constitution Act 1975 pt III; WA: Constitution Act 1889 pts IV, V.

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CHAPTER 3 THE AUSTRALIAN LEGAL SYSTEM

and means by which they are made accountable are set out in the Public Governance, Performance and Accountability Act 2013 (Cth). There are equivalent executive structures in each state and territory. The executive puts into effect the legislation agreed to by parliaments and policy advice, establishes programs and makes decisions implementing legislation and policy. Otherwise known as the administration, this branch administers government action, including everything from issuing and cancelling licences, monitoring pollution levels, assessing visa applications, granting pensions and benefits, maintaining jails, and prosecuting crimes. The powers of the executive are found in legislation, often detailed in delegated laws, and the common law including royal prerogative powers. Prerogative powers are the remaining vestiges of the monarch’s absolute powers, such as to grant honours and pardons. The powers are generally exercised on government advice and are progressively being overtaken by legislation. In addition, governments possess many of the powers of an individual, including the power to introduce legal obligations through contract, the basis of governments’ commercial activities.

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Commonwealth The Australian Constitution barely defines the executive function, describing it simply as ‘vested in the Queen and … exercisable by the Governor-General as the Queen’s representative, and extend[ing] to the execution and maintenance of this Constitution, and of the laws of the Commonwealth’.47 The Governor-General is to be advised by a Federal Executive Council made up of the Ministers of State.48 Ministers must be Members of Parliament, signifying the adoption of responsible government in the Westminster tradition.49 Notably, however, there is no reference in the Constitution to Cabinet or the Prime Minister, and a literal reading of the Constitution would suggest that the Governor-General wields real executive power, taking only advice from Ministers. In reality, on most matters the Governor-General acts as directed by Ministers, the Prime Minister above all. The ‘reserve powers’, where the Governor-General may act independently, are limited and highly contentious.50 Upon Federation, the new Commonwealth Government took responsibility for departments of public service covering particular fields: ‘posts, telegraphs and telephones; naval and military defence; lighthouses, lightships, beacons and buoys; quarantine;’51 and customs and excise. The Governor-General was made head of the defence force.52 This skeletal description bears little relation to the size and functions today of the executive government, which has expanded considerably. Not only does it now cover ministerial departments, but also numerous other statutory entities or bodies set up under executive powers, such as bureaus, commissions, authorities and corporations, as well as selected private sector bodies that provide specialist research, advice and decision-making 47 48 49 50

51 52

3.29

3.30

Australian Constitution s 61. Ibid ss 62–64. Ibid s 64. The most notorious illustration is the Governor-General’s dismissal of Prime Minister Gough Whitlam in 1975. Australian Constitution s 69. Ibid s 68.

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on behalf of government.53 The entities include statutory bodies such as the MurrayDarling Basin Authority, a corporate Commonwealth entity, or those set up by executive power, such as the National Federation Reform Council (replacing the Council of Australian Governments (COAG)), or the Northern Australia Indigenous Development Accord designed to advance First Nations economic development across Australia’s north. States and territories 3.31

The constitutions of the states and territories refer to executive power to varying extents. All state constitutions provide for the office of Governor as head of state, explicitly or by implication,54 but only to establish or confirm the office, not to set out the Governor’s powers. In only Queensland explicitly and Tasmania by implication is Cabinet referred to.55 All the constitutions deal with the appointment of an Executive Council and some refer to Ministers of the Crown.56 A few refer to heads of departments and to the executive.57 The Constitution of Queensland 2001 (Qld) explicitly states that the state has all the powers of an individual;58 no other state constitution does this. Nevertheless, as a matter of common law, the principle is generally true for the Commonwealth and the states and territories. Queensland alone makes provision for the commercial activities of the state.59 Generally, however, the state constitutions are silent about the powers of the executive. The self-government legislation for the Australian Capital Territory both establishes an executive60 and sets out an extensive list of areas in which there is executive power.61 By contrast, the earlier self-government legislation for the Northern Territory sets out executive power in terms broadly similar to those in s 61 of the Australian Constitution.62 Administrative law

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3.32

Administrative law is the field of law that allows individuals to challenge executive action to ensure members of the executive only act within the legal power granted to them in accordance with separation of powers and principles of legality: see 3.47–3.49. There are numerous such institutions, many set up as independent statutory bodies to monitor the operations of the public service. Prominent among them are: • tribunals, which review administrative decisions by public servants that affect citizens and corporations, and uphold, overturn or vary decisions made by government;

53

54 55 56

57 58 59 60 61 62

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See Australian Government, ‘Government departments and agencies’ (Website) . See, eg, Constitution Act 1902 (NSW) pt 2A. Constitution of Queensland 2001 (Qld) ch 3 pt 3; Constitution Act 1934 (Tas) ss 8F–8G. Constitution Act 1902 (NSW) ch 3 pt 4; Constitution of Queensland 2001 (Qld) ch 3 pts 1, 2, 4; Constitution Act 1934 (SA) pt 3; Constitution Act 1934 (Tas) pt II; Constitution Act 1975 (Vic) pt II div 8; Constitution Act 1889 (WA) pt IIIA. See, eg, Constitution Act 1902 (NSW) pt 4A. Constitution of Queensland 2001 (Qld) s 51. Ibid ch 2 pt 5 div 2. Australian Capital Territory (Self-Government) Act 1988 (Cth) s 36. Ibid ss 37, 38, 38A, sch 4. Northern Territory (Self-Government) Act 1978 (Cth) s 31.

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CHAPTER 3 THE AUSTRALIAN LEGAL SYSTEM

an Auditor-General, who scrutinises and reports to Parliament on the activities of the executive; • the Independent National Security Legislation Monitor, which monitors the operation, effectiveness and implications of national security and counterterrorism laws and whether they sufficiently protect human rights; • the Australian Law Reform Commission, which provides recommendations for law reform to government on issues referred to it by the Attorney-General of Australia; • the Australian Human Rights Commission, which conciliates complaints of discrimination, and protects and promotes human rights nationally and internationally; • the Ombudsman, which investigates complaints by those affected by government decisions, or on its own motion undertakes reports on the actions of the executive, and recommends changes to government administration of its powers; • the Australian Information Commissioner, which conducts investigations, reviews decisions, handles complaints, and provides guidance and advice on privacy, freedom of information and government information policy; and • royal commissions, which are established as needed (and have proliferated in recent years) and are the highest form of inquiry on matters of public importance. These entities have different levels of reporting to government for accountability purposes. The investigative and reporting powers of these bodies motivate government decision-makers to comply with their obligations. An adverse report from bodies such as ombudsmen, parliamentary committees or auditors-general are often sufficient to ensure that deficiencies are rectified. Intervention by a court or tribunal is, however, available as a last resort. Recommendations to government from law reform, productivity or royal commissions may also lead to improved practices. Copyright © 2020. LexisNexis Butterworths. All rights reserved.

•

International law The term public international law refers to the rights and obligations of sovereign nation states, and has traditionally been viewed as largely a matter of politics and diplomacy. Public international law is distinguished from private international law, which governs transactions between private persons that cross national boundaries. The latter is also known as ‘conflict of laws’ as it is centrally concerned with questions of which state has jurisdiction and which state’s laws will have application. It resembles ordinary domestic law in its sources and means of enforcement. The connection between public international law, domestic law and private international law has strengthened in recent years. As noted in 1.18, with increasing globalisation the practical significance of national boundaries has diminished, and public international law has had a greater impact on the domestic law that governs the actions of private individuals. For example, free-trade agreements tend to bring a convergence in the commercial regulation of the states party to the agreements, simplifying the disputes of private international law. However, recent political events, such as the Brexit vote in the

3.33 private international law: the set of principles, also known as ‘conflict of laws’, which determines issues of forum and choice of law in connection with disputes that cross jurisdiction boundaries

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United Kingdom and increasing trade disputes and general international discord between the United States and China in the era of President Donald Trump and President Xi Jinping, suggest that the forces of globalisation may be losing their power. The effect may be some disintegration in international cooperation and a greater divergence in the domestic law of different states.

3.34

3.35

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3.36

SOURCES There are two main sources of public international law: customary international law and international conventions or treaties. Customary law consists of those rules of international law generally accepted and acknowledged by states in their practices and actions. The exact content of customary international law is a matter of some dispute, and can be difficult even for experts to divine. International conventions and treaties, in contrast, are easy to identify and the dates at which they come into force clearly specified. They are written instruments containing rules that will govern the actions of states and create rights and duties among them. Such treaties can be bilateral (between two states) or multilateral (between a number of states). Unless the rules they contain become recognised over time as customary international law, treaties create rights and obligations only among those states that are party to them (but see 3.37–3.39 below). It generally takes a number of separate steps for a state to become a party to a treaty: settlement of terms; opening for signature; signing by states; coming into force; and ratification. Some treaties only come into force after a specified number of states have ratified them. For example the Kyoto Protocol63 on climate change was negotiated and settled in December 1997 in Kyoto, opened for signatures in March 1998, was signed by Australia in April 1998, came into force in February 2005 (on the ratification of at least 55 parties representing 55 per cent of carbon dioxide emissions), but was not ratified by Australia until December 2007. In international law, it is the Australian Government that represents Australia, enters treaties and has responsibility in the international arena for ensuring that Australia meets its obligations under either treaty-based or customary international law. The High Court has determined that the external affairs power in s  51(xxxix) of the Constitution gives the Commonwealth power to enact legislation to ensure Australia’s compliance with its international obligations. One well-known example is Commonwealth v Tasmania64 (‘Tasmanian Dam Case’).The Commonwealth listed an area for protection under the World Heritage Convention65 that was to be dammed by the Tasmanian Government to create a hydro-electric power scheme. The Commonwealth then enacted the World Heritage Areas Conservation Act 1983 (Cth) to protect this area. Tasmania challenged the validity of the legislation on several grounds, but the High Court upheld the Commonwealth legislation on the basis that enacting the legislation, to give effect to Australia’s international obligations, was a valid exercise of the external affairs power. Australia’s obligations under the World Heritage Convention are now given force under the Environment Protection and Biodiversity 63

64 65

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Kyoto Protocol to the United Nations Framework Convention on Climate Change, opened for signature 16 March 1998, 2303 UNTS 162 (entered into force 16 February 2005). Tasmanian Dam Case (n 12). Convention for the Protection of the World Cultural and Natural Heritage, opened for signature 16 November 1972, 1037 UNTS 151 (entered into force 17 December 1975).

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CHAPTER 3 THE AUSTRALIAN LEGAL SYSTEM

Conservation Act 1999 (Cth), which also gives effect to Australia’s obligations under a number of other international conventions, including the Convention on International Trade in Endangered Species66 and the Ramsar Convention.67 IMPACT ON DOMESTIC LAW Once a state ratifies a treaty, it does not automatically bring about the required change in state practice and domestic law. This requires action by the various arms of government. In particular, public international law does not directly create legal rights and duties in Australian without domestic legislation. In some instances, the incorporation can be direct, such as s 7 of the Diplomatic Immunities and Privileges Act 1967 (Cth) which provides that the Vienna Convention on Diplomatic Relations is ‘to have the force of law’ in Australia.68 In other instances, definitions from a treaty may be incorporated in the Act itself, such the Racial Discrimination Act 1975, s 8(1) of which makes reference to ‘special measures to which paragraph 4 of Article 1 of the Convention applies’69: see further 4.48. However, the broad terms of many international treaties do not lend themselves well to such direct incorporation, and usually specific legislation will have to be drafted to give concrete effect to such obligations. The Kyoto Protocol, for example, establishes emission targets but largely leaves it up to state discretion as to how they are achieved. Australia’s international obligations can also have an indirect effect on domestic law. Although the exact scope is unclear, there is judicial authority that international law can serve as a ‘guide’ to the development of the common law, particularly in relation to human rights law.70 For example, Brennan J observed in Mabo v Queensland [No 2] that

3.37

3.38

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[t]he common law does not necessarily conform with international law, but international law is a legitimate and important influence on the development of the common law, especially when international law declares the existence of universal human rights.71

International obligations not implemented in domestic law can also have a role in the area of administrative law: see 3.32. In some instances, such as s 137 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth), the government decision-maker is explicitly directed to consider an international instrument. International law may also be relevant to the interpretation of domestic legislation, including the legitimacy of an administrative decision. There is a presumption in interpreting statutes, particularly those that have been passed in connection with Australia’s international obligations, that legislation conforms to international law. Thus, where possible, courts will resolve ambiguities in domestic legislation in a way that accords with Australia’s international obligations. Of course, this presumption will be

66

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Convention on International Trade in Endangered Species of Wild Fauna and Flora, opened for signature 13 January 1976, 993 UNTS 243 (entered into force 1 July 1975). Convention on Wetlands of International Importance especially as Waterfowl Habitat, opened for signature 2 February 1971, 996 UNTS 245 (entered into force 21 December 1975). Vienna Convention on Diplomatic Relations, opened for signature 24 April 1964, 500 UNTS 95 (entered into force 24 June 1964). Referring to International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature on 21 December 1965 (entered into force on 2 January 1969). R Balkin, ‘International Law and Domestic Law’ in S Blay, R Piotrowicz and M Tsamenyi (eds), Public International Law: An Australian Perspective (Oxford University Press, 2nd ed, 2005) ch 5, 118–20. (1992) 175 CLR 1, 42.

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displaced where Parliament expresses its intention that the legislation should diverge from orthodox understandings of the relevant international law. The presumption is discussed further in 13.35–13.36.

3.40

3.41

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3.42

ENFORCEMENT International law is quite different from domestic law in a number of respects. To a large extent, its subjects are nation states and international organisations (rather than individuals) and, in large part, the obligations are consensual (treaties are negotiated by states, and must be ratified by states to become binding). A further important difference is that systems of enforcement are generally weaker for international law than for domestic law. In some cases, this is apparent on the face of the treaty. The emissions targets coming out of the Paris Agreement72 are currently only aspirational. In its current form the treaty lacks proper compliance and enforcement mechanisms.73 Even where treaties are expressed to establish mandatory obligations, they may be difficult to enforce. International law does not have the equivalent of a police force and a court to encourage compliance and sanction noncompliance. While the International Court of Justice (‘ICJ’), established by the United Nations Charter following the Second World War, may rule on a very wide range of issues, its jurisdiction in contentious matters is by consent, and its rulings may be ignored by the losing party. Although the United Nations Security Council is empowered to take steps to enforce the ICJ’s orders, permanent members like the United States have the power of veto over its decisions. And even where a permanent member is not directly involved in a case, the Security Council is generally reluctant to take enforcement measures, preferring to rely instead on diplomacy. While the subjects of international law are generally states and international organisations, there are exceptions. For example, individuals can be held responsible for breaches of international criminal law, such as those governing the behaviour of individuals in war (known as international humanitarian law) or the international crime of genocide. Pursuant to these laws, individuals have been prosecuted before ad hoc international tribunals, such as the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda, created to hear accusations of genocide and crimes against humanity in relation to atrocities committed, respectively, in connection with the break-up of Yugoslavia in the early 1990s and in Rwanda in 1994. The International Criminal Court (‘ICC’) established in 2002 by the Rome Statute74 and located in The Hague will handle such matters in the future. The ICC handed down its first conviction in March 2012.75 As with the ICJ, however, the jurisdiction of the ICC is subject to a state’s consent. The United States and Russia both signed the Rome Statute in 2000 but neither ratified the treaty. Other notable states that have not signed or ratified

72 73

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Paris Agreement, opened for signature 22 April 2016 (entered into force 4 November 2016). Guri Bang, Jon Hovi and Tora Skodvin, ‘The Paris Agreement: Short-Term and Long-Term Effectiveness’ (2016) 4 Politics and Governance 209. Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 3 (entered into force 1 July 2002). Prosecutor v Lubanga (Judgment) (International Criminal Court, Trial Chamber  I, Case No ICC-01/0401/06-2842, 14 March 2012).

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CHAPTER 3 THE AUSTRALIAN LEGAL SYSTEM

the Rome Statute are Indonesia, India, China and Israel; the Philippines withdrew its ratification in 2019. Another area of international law with a direct impact on individuals is human rights. Several regional and global international conventions enable citizens of party states to make complaints of violations of human rights, protected by the relevant convention, to specialist courts or committees. These include specialist United Nations committees under various United Nations instruments, and the European Court of Human Rights under the European Convention on Human Rights.76 The United Nations committees, to which Australia is a party, may only investigate ‘communications’ and write ‘views’; they lack any enforcement powers. For an example, see 4.52. Nevertheless, their work can sometimes contribute to legal change. An example of this in the Australian context is the case of Toonen v Australia,77 where a Tasmanian homosexual complained in 1992 to the United Nations Human Rights Committee that the Tasmanian Criminal Code as it then stood, which criminalised private consensual homosexual relations, breached his right to privacy under art 17 of the International Covenant on Civil and Political Rights (‘ICCPR’).78 The Committee’s view substantiated his complaint. The Commonwealth then passed the Human Rights (Sexual Conduct) Act 1994 which, in s 4, referred to ICCPR art 17 and provided that ‘[s]exual conduct involving only consenting adults acting in private is not to be subject, by or under any law of the Commonwealth, a State or a Territory, to any arbitrary interference with privacy’. Eventually, in 1997 the offending provisions were removed from the Criminal Code by the Tasmanian Parliament.

3.43

Human rights law in Australia

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Human rights are fundamental rights to which people are entitled simply by virtue of being human. While the movement to improve the recognition and protection of human rights gained great impetus in the aftermath of the Second World War and the Holocaust, its roots run much deeper. In Australia, human rights receive protection at various levels from different sources. EXPRESS AND IMPLIED CONSTITUTIONAL RIGHTS The Australian Constitution, unlike the United States Bill of Rights, for example, includes few explicit statements of human rights. For example, there are express guarantees to:‘just terms’ for property compulsorily acquired by the Commonwealth;79 trial by jury for an indictable

76

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78

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3.44 human rights: fundamental, inalienable rights to which people are entitled simply by virtue of being human

3.45

European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953) as amended by Protocol No 14bis to the Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 27 May 2009, CETS 204 (entered into force 1 September 2009). Human Rights Committee, Views: Communication No 488/1992, 50th sess, UN Doc CCPR/C/50/488/ 1992 (31 March 1994) (Toonen v Australia). International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976). Individual complaints are allowed from states party to the First Optional Protocol to the ICCPR: Optional Protocol to the International Covenant on Civil and Political Rights, opened for signature 23 March 1976, 999 UNTS 171 (entered into force 23 March 1976). Australian Constitution s 51(xxxi).

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3.46

federal offence;80 freedom of trade, commerce and intercourse within Australia;81 freedom of religion;82 and a qualified right not to be discriminated against by laws of a state in which the person is not resident.83 Implied rights and freedoms have also been found in the Australian Constitution. Provisions such as ss 7 and 24, which respectively require that members of the Senate and House of Representatives be ‘directly chosen by the people’, have given rise to an implied freedom of political communication84 and the right to vote.85 And, as mentioned in 3.14ff, the Australian Constitution’s separation of powers recognises and protects the essential nature of courts, which gives litigants rights to due process and a fair hearing.86 Criminal accused have the right to a fair trial which, in serious cases, will be compromised if the accused is not legally represented.87 As with the United States Constitution, since these rights are entrenched in the Australian Constitution, laws that infringe these rights are invalid. However, the implied rights in the Australian Constitution are scattered and limited in scope. This is illustrated by the ‘Stolen Generations Case’, Kruger v Commonwealth.88 Several First Nations plaintiffs who had been directly affected by the protection regime established by the Aboriginals Ordinance 1918 (NT) brought an action arguing that the Act was constitutionally invalid, and claiming damages. The plaintiffs were members or parents of the ‘Stolen Generations’ of children taken from their families and their communities by the Chief Protector. The plaintiffs argued that the legislation, passed under the Commonwealth Parliament’s territories power,89 was invalid on several grounds: the removals occurred without due process of law, breached an implied constitutional right of equality, were contrary to the implied constitutional freedom of movement and association, inhibited the free exercise of religion contrary to the express constitutional right in s 116, and were genocidal and thus beyond the legislative power provided by the Constitution. The plaintiffs’ arguments were unsuccessful. The plaintiffs faced obstacles in relying on even the most clearly expressed constitutional rights. Section 116, for example, states that ‘[t]he Commonwealth shall not make any law … prohibiting the free exercise of any religion’. However, having regard to the structure of the Constitution, it was questioned whether this provision, situated in Chapter V ‘The States’, restricted the Commonwealth Parliament’s power to make laws with respect to the territories. Half of the Court either rejected this restriction (Dawson and McHugh JJ) or left the question open (Toohey J). Unsurprisingly, the plaintiffs faced still greater difficulties in relying on rights that were not expressed in the Constitution, but were purportedly implicit. Only Gaudron  J considered that the territories power was subject to a prohibition against laws authorising genocide. Justices Dawson, McHugh and Gummow were reluctant to read such a prohibition into the Constitution as it was inconsistent with the doctrine of 80 81 82 83 84

85 86 87 88 89

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Ibid s 80. Ibid s 92. Ibid s 116. Ibid s 117. Australian Capital Television v Commonwealth (1992) 177 CLR 106; Nationwide News v Wills (1992) 177 CLR 1. Roach v Electoral Commissioner (2007) 233 CLR 166. Dietrich v The Queen (1992) 177 CLR 292. Ibid. (1997) 190 CLR 1. Australian Constitution s 122.

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parliamentary supremacy. Similarly, only Toohey J considered the Constitution to contain an implied guarantee of substantive legal equality. The remainder of the Court rejected this proposition. Half the Court also rejected the view that the Constitution contained an implied freedom of movement and association. Those Justices who did recognise the freedom considered that it did not extend to First Nations people at the relevant time. Freedom of association and political communication are incidental to the Constitution’s system of representative and responsible government. However, over the period of the protection regime’s operation, 1918–1957, the Aboriginal people of the Northern Territory were disenfranchised and ‘had no part to play in the constitutionally prescribed system of government’90: see further 4.27ff. Because they were denied political representation, they were also denied the rights that facilitated political involvement. CONSTITUTIONAL RIGHTS INFRASTRUCTURE: RULE OF LAW, PRINCIPLE OF LEGALITY, SEPARATION OF POWERS A basic respect for rights is deeply embedded in Australia’s constitutional structure as a matter of history. As mentioned in Chapter 2, Australia inherited from England laws such as the Magna Carta of 1215, the Bill of Rights Act 1689 and the Act of Settlement 1701, and doctrines developed by the courts, such as the rule of law which protects against despotic power by rulers. Former High Court Chief Justice Robert French has described the rule of law as ‘a kind of societal infrastructure. It creates and maintains the space within which we can enjoy our freedoms, exercise our rights, develop our capacities, take risks and generally pursue life goals’.91 The precise contours of the rule of law are the subject of constant debate; however, there is broad agreement regarding its core meaning.The law applies equally to everyone: ‘nobody, private citizen, public official or government, is above the law’.92 In the words of former Lord Chief Justice of England and Wales, Thomas Bingham: ‘All persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly made, taking effect (generally) in the future and publicly administered in the courts.’93 There is no express statement of the rule of law in the Constitution. Instead, it is an assumption that underpins the Constitution.94 Australia’s constitutional history, inherited from Britain, is the source of a wide range of rights and freedoms. In Ex parte Walsh; ReYates,95 Isaacs J referred to ‘certain fundamental principles which form the base of the social structure of every British community’ dating back to the Magna Carta.96 These are not expressly mentioned in the Constitution, and Parliament can override them; however, they give rise to ‘an initial presumption in favour 90 91

92 93 94 95 96

3.47

3.48

Stolen Generations Case (n 88) 142 (McHugh J). Robert French,‘Rights and Freedoms and the Rule of Law’ (The Law Oration, Victorian Law Foundation, Banco Court, Supreme Court of Victoria, 9  February 2017)  5. Ibid. Thomas Bingham, The Rule of Law (Allen Lane, 2010) 8. Communist Party Case (n 11) 193 (Dixon J). (1925) 37 CLR 36. Ibid 42. See also Susan Crennan, ‘Magna Carta, Common Law Values and the Constitution’ (2015) 39 Melbourne University Law Review 331, 341.

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3.49

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3.50

of liberty’.97 In interpreting legislation, courts presume ‘that Parliament does not intend to interfere with common law rights and freedoms except by clear and unequivocal language for which Parliament may be accountable to the electorate’.98 These common law rights and freedoms include personal liberty, freedom of movement, freedom of speech, freedom of association and assembly, freedom of religion, the right to silence, and the right to a fair trial.99 This presumption, an element of the principle of legality, is an important principle of statutory interpretation that is discussed further at 13.9–13.13. The courts play a key role protecting rights, guided by the rule of law, including the principle of legality. Courts approach legislation on the basis that ‘it is highly improbable that Parliament would overthrow fundamental principles or depart from the general system of law, without expressing [this intention in language of] irresistible clearness’.100 The courts’ ability to protect rights is secured by a third key element of constitutional infrastructure, the separation of powers. Unlike the rule of law and the principle of legality, the separation of powers does find expression in the Australian Constitution, with a separate chapter for each branch of government: the Parliament, the executive government, and the judicature (see 3.14ff above).The structure of the Australian Constitution confirms that the legislature and the executive can only operate within defined limits, with the judiciary being given supervisory jurisdiction. Further, courts cannot be required to operate in a way contrary to their essential nature which includes ‘open hearings, procedural fairness and publicly available reasoned decisions’.101 And, under the Kable principle, these protections extend to the state courts since the Australian Constitution contemplates that they can exercise federal jurisdiction.102 ADMINISTRATIVE LAW AND THE PROTECTION OF RIGHTS In addition to the constitutional infrastructure outlined above, it is important to recall the role of administrative law in regulating government: see 3.32. The comprehensive institutions and principles of administrative law regulates, among other things, how organs and agents of governments exercise their statutory powers and duties. Unrivalled in other common law countries, Australian administrative law safeguards the rights and interests of people and corporations in their dealings with government agencies. Many of the protected rights are of practical importance to people, such as the right to income support, to an occupational licence, to a disability aid, or to compensation for work-related injury. These rights are accessible through the multiple avenues which administrative law provides to challenge government decisions and actions. These avenues include ombudsmen, the Australian Human Rights Commission, tribunals, and courts: see also 3.32. A person can ask an ombudsman to investigate an action or decision by government — and in some cases by the private sector — alleging that the action or decision is wrongful, unreasonable, unjust, oppressive or improperly discriminatory. If the ombudsman upholds the complaint, the ombudsman can recommend the decision or action be rectified or changed. Other inquiry or investigative bodies take a similar approach. 97 98 99 100 101 102

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Ex Parte Walsh; Re Yates (n 95) 79 (Isaacs J), cited in Crennan (n 96) 341. Momcilovic v The Queen (2011) 245 CLR 1, 46 [43] (French CJ). French (n 90) 13. Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252, 259 [15]. Ibid 3. Kable (n 19).

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Tribunals are designed to reconsider and, if appropriate, remake decisions that deny persons their rights or interests. There are multiple tribunals at both the federal level and the state and territory level. They deal with matters as diverse as a right to practise a profession, to compensation for dust diseases, to building approvals, not to be dismissed from employment without cause, and rights to pensions, benefits and insurance. Where a decision contains an error or an inappropriate exercise of discretion by the original decision-maker, the tribunal can substitute or vary the decision so that the person affected receives the benefit of a correct or preferable decision. This protects the rights, including human rights, of individuals. Although not technically authoritative and final, tribunal decisions are accepted and implemented by government, thus providing a less costly and formal avenue for redressing removal or denial of rights or interests. Most investigative or inquiry bodies, tribunals and, increasingly, courts seek to resolve disputes — including those involving human rights — by conciliation, mediation or other forms of alternative dispute resolution. These forms of dispute resolution have the advantage that they are private and can be significantly cheaper than hearings by courts or tribunals. Costs are usually minimal when a complaint is dealt with by an ombudsman or other inquiry or investigative body. Ultimately, administrative law disputes may be considered by courts with greater authority and finality, but at much greater cost. There are also limits on the role of courts in disputes which hear appeals from tribunals or, on occasion, other investigative bodies. Court review is often restricted to the lawfulness of the original decision, without reference to any new evidence. This contrasts with tribunals, which can consider new evidence and reconsider facts and law. The statutory protections contained in state and territory anti-discrimination and human rights legislation provide a safety net of laws to protect nominated rights against damage by government and in many cases against private sector encroachment. Legislation at the federal level includes the Racial Discrimination Act 1975 (Cth), the Sex Discrimination Act 1984 (Cth), the Disability Discrimination Act 1992 (Cth) and the Privacy Act 1998 (Cth).The operation of these Acts is generally uncontroversial. For example, the Racial Discrimination Act provides in s 9(1):

3.51

3.52

3.53

It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.

Section 18C(1) of the Act provides, however: (1) It is unlawful for a person to do an act, otherwise than in private, if: (a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and (b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.

There has been considerable recent debate as to whether s  18C of the Act goes too far.103 Indeed, some take the view that s 18C, while purporting to protect against racial 103

Commonwealth Parliamentary Joint Committee on Human Rights, Freedom of speech in Australia: Inquiry into the operation of Part  IIA of the Racial Discrimination Act 1975 (Cth) and related procedures under the Australian Human Rights Commission Act 1986 (Cth) (Inquiry Report, 28 February 2017).

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discrimination, inhibits the fundamental right of free speech. This raises an important fact about human rights — they are rarely absolute and generally need to accommodate other rights. Section 18C, for example, is subject to s 18D which provides a defence for acts performed ‘reasonably and in good faith’ for artistic, academic, scientific or other public interest purposes, including fair report and fair comment.

3.54

Bill of Rights: a statement of human rights, made in a constitution or other fundamental laws, that limits the legislature’s law-making power

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3.55

AN ENTRENCHED BILL OF RIGHTS FOR AUSTRALIA? Australian citizens enjoy the benefits of an inherited implicit constitutional respect for the rule of law, overlaid by a broad patchwork of rights protection. And, as mentioned in 3.14ff, the Australian Constitution’s separation of powers recognises and protects the essential nature of courts, which gives litigants rights to due process and a fair hearing. Despite this, the question regularly arises whether Australia should adopt a Bill of Rights to provide stronger protection of broadly described civil and political rights and, perhaps, economic and social rights. The United States Bill of Rights, for example, operates more strongly than most of the rights considered above. The United States Bill of Rights, consisting of the first 10 amendments to the United States Constitution passed in the late 18th century, among other things guarantees that governments will respect freedom of speech and due process of law, and protects against cruel and unusual punishment. Because these rights are entrenched in the United States Constitution, laws that infringe them are invalid.The Bill of Rights constrains the operation of the federal and state governments of the United States. Scattered across the Australian Constitution are a miscellany of rights and freedoms: see 3.45. As with the United States Constitution, since these rights are entrenched in the Australian Constitution, laws that infringe these rights are invalid. However, current constitutional Australian rights have limited scope, and the more extensive Australian anti-discrimination laws mentioned in 3.53 are not constitutionally entrenched. If the Australian Government wants to permit or engage in discriminatory behaviour it has the option of repealing the anti-discrimination laws. It has been suggested that a comprehensive Bill of Rights as part of the Constitution would provide more effective rights protection. It is easy to agree that human rights should be respected. But there is considerable disagreement as to how this can best be achieved. And many are opposed to the idea of a constitutionally entrenched Bill of Rights. Professor James Allan, for example, points out that rights tend to be expressed at a fairly high level of abstraction, requiring interpretation and the consideration of other competing rights and interests.104 Rights cases that end up being litigated tend to raise difficult moral and political issues on which reasonable opinions might differ. These issues include, for example, abortion, euthanasia, samesex marriage, and the extent of law enforcement powers. Under current constitutional arrangements in Australia it is the executive and Parliament that give rights and policy considerations concrete expression through the political process. (Although, in the federal system the question arises as to which level of government should have the power to decide, as illustrated by the Commonwealth’s intervention on euthanasia: see 3.19.) An entrenched Bill of Rights would give the judiciary a far greater role in resolving these controversial policy issues. Some consider this to be undemocratic, as politicians rely

104

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James Allan, ‘Siren Songs and Myths in the Bill of Rights Debate’ (2008) 49 Papers on Parliament 25.

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on public support to keep their jobs, while judges do not. If the power to make these decisions is transferred from the legislature and the executive to an unelected judiciary, the influence of members of the public will also be diminished. A related risk is that, in being called upon to make moral and political decisions about the validity of legislation and executive actions, the judiciary will become politicised. The appearance of judicial detachment and neutrality will be lost, and the public’s respect for the judiciary and the justice system may be threatened. It can also be questioned whether Bills of Rights are necessarily effective in preventing the abuse of minority groups. In the United States, slavery was legal under the Bill of Rights for over half a century until it was abolished by the 13th amendment to the Constitution in 1865. Despite the Bill of Rights and its protection against cruel and unusual punishment, the United States continues to use the death penalty, and uses it disproportionately against African Americans and others from minority groups.105 Opponents of Bills of Rights point to other countries and regimes where entrenched rights have failed to prevent extreme discrimination against minority groups — Joseph Stalin’s Soviet Union, Communist China, Nazi Germany, Robert Mugabe’s Zimbabwe. Australia may be one of the few democracies lacking a Bill of Rights, but it does not follow that rights in Australia are routinely disregarded. While rights have not been collected together and expressed in an Australian Bill of Rights, Australia’s strong democratic tradition, independent judiciary, respect for the rule of law, and extensive administrative law system together protect rights more effectively than many countries that do have a Bill of Rights. Nevertheless, the repeated violation of the rights of First Nations Australians since the arrival of the colonists, and of other vulnerable groups, makes it clear that Australia has no grounds for complacency. If an entrenched Bill of Rights is inconsistent with Australia’s tradition of responsible government and parliamentary sovereignty, perhaps other approaches are worth considering. PROTECTING RIGHTS THROUGH INTRAGOVERNMENTAL DIALOGUE Another method of protecting rights is through processes requiring dialogue between the courts, the executive and the legislature concerning rights protection. Such a process exists in the United Kingdom, where the European Convention of Human Rights and Fundamental Freedoms has been incorporated into domestic law through an Act of Parliament, the Human Rights Act 1998 (UK).This Act does not prevent Parliament from passing legislation that is incompatible with these rights; parliamentary sovereignty is retained. However, the Act contains several mechanisms that have the potential to strengthen rights protection. While Parliament is considering whether to pass a Bill, the responsible Minister should, under s 19, make a statement that the Bill is compatible with the Convention, or that the government wishes to pass the Bill notwithstanding incompatibility. Furthermore, a parliamentary committee, the Joint Committee on Human Rights, is charged with scrutinising all government Bills for their compatibility with the Convention. And where legislation is being considered by a court, the Act requires the court to prefer an interpretation of the legislation that complies with the Convention: ‘So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect 105

3.56

3.57

3.58

‘Race and the Death Penalty’, American Civil Liberties Union (Web Page) .

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3.59

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3.60

judicial review: a right of appeal limited to legality issues, as compared with a merits review: see 6.47

in a way which is compatible with the Convention rights.’106 Where it is not possible to construe an Act compatibly with protected rights, the court may draw attention to the breach by making a ‘declaration of incompatibility’.107 It has been suggested that this approach achieves a better balance between the executive, the legislature and the judiciary. It does not allow the executive or legislature to infringe rights with impunity, nor does it enable the judiciary to override the clearly stated wishes of the democratically elected government. Instead, the judiciary, the executive and the legislature can engage in a dialogue and work together to develop the law consistently with individual rights. Within Australia, the Australian Capital Territory, Victoria and Queensland have adopted legislation similar to the Human Rights Act 1998 (UK): the Human Rights Act 2004 (ACT), the Charter of Rights and Responsibilities 2006 (Vic) and the Human Rights Act 2019 (Qld). The validity and workability of the process appears to have been broadly upheld by the High Court.108 As well as the statutory interpretation and declaration provisions, the Victorian, Queensland and Australian Capital Territory legislation also adopted the British requirements of legislative scrutiny and government statement of compatibility. Justice Chris Maxwell, President of Victoria’s Court of Appeal, has suggested that these requirements, while ‘unseen’, have had a ‘salutary effect on the machinery of government … encourag[ing] the development of a culture of human rights … Proposals which are not human rights-compatible are likely to be refined, or abandoned, in favour of a rightscompatible alternative.’109 In 2008 the Federal Government established an inquiry into whether human rights in Australia require stronger protection. The National Human Rights Consultation Committee, charged with examining the issue, recommended a federal Human Rights Act incorporating an element of judicial review,110 but noted there was a lack of consensus on the issue in the community and in Parliament.The government rejected the Consultation Committee’s recommendation. Instead it took a more limited approach in the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), which requires a government statement of compatibility and scrutiny by a Parliamentary Joint Committee on Human Rights reporting to Parliament. The human rights protected are those in the seven international instruments listed in s 3 of the Act. This approach carries both the advantages and disadvantages of operating within a politicised democratic framework — representative decision-making but with the risk of excessive party-controlled adversarialism. A 2015 review of the operation of the Act, by Tom Campbell and Stephen Morris, has given it a largely positive appraisal, claiming that the Act has strengthened decision-making frameworks within which to build a more vigilant and bipartisan approach to human rights, while generating better informed political debate with 106 107

108 109

110

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Human Rights Act 1998 (UK) s 3(1). Ibid s 4. For the UK experience of the operation of this provision see Ghaidan v Godin-Mendoza [2004] 2 AC  557, 572. On every occasion in which the judiciary has made a declaration of incompatibility, Parliament has responded by amending or repealing the offending provision. Momcilovic v The Queen (2011) 245 CLR 1. Chris Maxwell, ‘Judges and Human Rights’ (Address to the Queen’s Inn Dinner, Queen’s College, University of Melbourne, 4 May 2012). National Human Rights Consultation Committee, National Human Rights Consultation Report (30 September 2009) [15.5].

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CHAPTER 3 THE AUSTRALIAN LEGAL SYSTEM

respect to the specific content and requirements of human rights in particular circumstances, thus bringing human rights considerations to bear in the formation of policy, the drafting of legislation, and parliamentary decision-making.111

Nevertheless, they suggest that the operation of the Act could be strengthened in a number of respects.112 The government should genuinely engage in the preparation of statements of compatibility. More time should be provided for scrutiny by the Parliamentary Joint Committee and Parliament. And there should be greater public consultation, particularly on important subjects such as asylum seekers and national security powers. EXERCISE 2: BILL OF RIGHTS AND PARLIAMENT’S ROLE Professor James Allan, a regular academic commentator on human rights matters, says he was tempted to entitle his presentation to Parliament113 on the Bill of Rights debate, ‘Whaling is for Scientific Purposes; Homeopathy Actually Works; and a Bill of Rights Will Enhance the Role of Parliament’. What threat does a Bill of Rights pose to Parliament? How might the threat be mitigated? Is Allan’s ‘dripping sarcasm’ warranted?

3.61

Further reading • Hilary Charlesworth et al, ‘Deep Anxieties: Australia and the International •

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• • • • •

111

112 113

Legal Order’ (2003) 25 Sydney Law Review 423. A provocative introduction to the relationship between international law and the Australian legal system. Michael Coper, Encounters with the Australian Constitution (CCH Australia, 1988). An accessible (and entertaining) discussion of Australian constitutional law and history. Susan Crennan, ‘Magna Carta, Common Law Values and the Constitution’ (2015) 39 Melbourne University Law Review 331. Carolyn Evans and Simon Evans, Australian Bills of Rights: The Law of the Victorian Charter and the ACT Human Rights Act (LexisNexis, 2008). Robert French, ‘Rights and Freedoms and the Rule of Law’ (The Law Oration,Victorian Law Foundation, Banco Court, Supreme Court of Victoria, 9 February 2017). Paula Gerber and Melissa Castan (eds), Contemporary Perspectives on Human Rights Law in Australia (Lawbook, 2013). Michael Kirby, ‘The Growing Impact of International Law on the Common Law’ (2012) 33 Adelaide Law Review 7.

Tom Campbell and Stephen Morris, ‘Human Rights for Democracies: A Provisional Assessment of the Australian Human Rights (Parliamentary Scrutiny) Act 2011’ (2015) 34 University of Queensland Law Journal 6, 9. Ibid 22–7. Allan (n 104) 25.

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• Richard Lumb, The Constitutions of the Australian States (University of Queensland Press, 5th ed, 1991). Part I deals with the evolution of responsible government in the Australian colonies. • George Winterton (ed), State Constitutional Landmarks (Federation Press, 2006). A collection of essays on state constitutional matters. • George Winterton and HP Lee (eds), Australian Constitutional Landmarks (Cambridge University Press, 2003). A collection of essays on the Federal Constitution.

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To enhance your learning experience, use the student resources available on Lexis® Learning See the Visual Preface at the front of this book on how to register.

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CHAPTER

4

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First Nations Australians and the Australian Legal System A strong moral case can be made for special recognition of Aboriginal people in the Constitution because of their special place as the first inhabitants of the continent and the historical injustices suffered by them. Indeed, the case for special recognition is the subject of public debate at the present time. The point is that the debate about constitutional recognition is necessary precisely because the Constitution, in its current terms, does not have that effect.1 1

Love v Commonwealth; Thoms v Commonwealth (2020) 94 ALJR 198 235 [178] (Keane J) (‘Love and Thoms’). Keane J was dissenting. The majority in Love and Thoms considered that, with regard to the narrow issue in that case, the current Australian Constitution does provide special treatment to First Nations Australians.

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Introduction

4.1

Native title

4.2

− Mabo [No 2] and the Native Title Act 1993 (Cth)

4.3

− Wik and the Native Title Amendment Act 1998 (Cth)

4.7

− Developing jurisprudence of native title: from Yorta Yorta to Akiba

4.8

− The ALRC’s Connection to Country report

4.12

− Compensation for extinguishment: the Timber Creek Decision

4.15

− Complexity of native title claims

4.19

EXERCISE 3: Extinguishment of native title

4.23

First Nations Australians and the criminal justice system

4.24

− Early jurisdiction over the ‘Aboriginal native’

4.25

− Protection regimes

4.27

− Royal Commission into Aboriginal Deaths in Custody

4.29

− ‘Crimes of poverty, despair and defiance’

4.33

− Indigenous sentencing courts

4.36

− Customary punishment

4.40

− Equality under the law

4.46

EXERCISE 4: Sentencing of First Nations offenders

4.50

Northern Territory Intervention

4.51

First Nations Australians and the Australian Constitution

4.60

− The race power and the 1967 referendum

4.60

− Constitutional recognition of First Nations Australians

4.63

− First Nations Australians, aliens and the Constitution

4.68

EXERCISE 5: First Nations Australians and the law

4.70

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CHAPTER 4 FIRST NATIONS AUSTRALIANS AND THE AUSTRALIAN LEGAL SYSTEM

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Introduction As discussed in previous chapters, on settlement Australia received English laws and subsequently developed a legal and justice system in the English common law tradition under which Australia’s First Nations and their pre-existing customary laws were largely ignored. In this chapter, we consider in more detail how the Australian legal system has treated First Nations Australians. It took the Australian legal system around 200  years to belatedly recognise native  title. The dispossession and discrimination suffered by Australia’s First Nations have resulted in social disadvantage and criminalisation, but governments have struggled to find a response that has not worsened the situation. Through the 19th and 20th centuries many Australian governments instituted protection regimes in which Chief Protectors took control over all aspects of the lives of First Nations people, frequently taking children away from their families. This paternalistic approach fell out of favour in the second half of the 20th century, with growing appreciation of First Nations peoples’ rights and the recognition of native title. However, at the beginning of the 21st century the Commonwealth Government, still struggling to address First Nations disadvantage, returned to paternalism with its Northern Territory Intervention, and some states implemented similar schemes. There is little evidence that these are having a positive impact on the lives of affected First Nations Australians. The social disadvantages suffered by many First Nations Australians are founded in deep historical injustice. It appears doubtful whether current problems can be remedied without properly addressing that historical injustice. On settlement, at the end of the 18th century, the First Nations and their cultures were disregarded. The Australian Constitution, introduced at the turn of the 20th century, discriminated against First Nations Australians, a flaw which was not corrected until 1967. Now, in the 21st century, steps are being taken to give proper constitutional recognition to Australia’s First Nations. There is a growing belief that constitutional amendments should provide more than symbolic recognition and should include a First Nations voice to Parliament, so that First Nations Australians can play a greater role in solving the problems that affect them and the rest of the nation. One hurdle will be meeting the demanding requirements for constitutional change under s 128 of the Constitution: see 3.2.

4.1

native title: a right or interest over land or waters that may be owned according to traditional custom

Native title At the time of settlement,Australia was considered to be terra nullius: see 2.57.The colonists had no appreciation for the traditional Aboriginal system of sociopolitical organisation and land ownership. They brought with them the English property law principle that ultimate — or radical, as it is termed — title to all land belongs to the Crown, with all subsequent ownership being derived from an original grant from the  monarch. Unsurprisingly, this had a destructive effect on the First Nations peoples, the traditional

4.2 radical title: the ultimate ownership rights over land, vested in the Crown

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custodians whose social, economic, and spiritual links with the land is central to their cultures.

4.3

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4.4

4.5

extinguishment: the loss of a potential native title claim through authorised use of the land inconsistent with customary usage

MABO [NO 2] AND THE NATIVE TITLE ACT 1993 (CTH) Only quite recently have attempts been made to address the effects of this dispossession of First Nations peoples from their land. The first major step was the passage of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), which allowed blocks of land in the Northern Territory to be granted to land trusts if traditional land ownership could be proven. This was a response to the decision by Blackburn  J in Milirrpum v Nabalco Pty Ltd2 that, although there were traditional customs and laws regulating the relations of First Nations people with the land, in light of a decision of the Privy Council in Cooper v Stuart3 that Australia was ‘settled’ not ‘conquered’ (see 2.57), such laws were not recognised by Australian common law. A fundamental reconsideration of the common law’s approach to land rights took place in 1992 with the High Court’s landmark decision in Mabo v Queensland (No 2) (‘Mabo [No 2]’).4 The Mabo litigation began in 1982, when a group of Torres Strait Islanders, led by Mr Eddie Mabo, began a battle to have their traditional land ownership recognised. The High Court’s decision, influenced by developing notions of human rights, recognised that in reality Australia was not terra nullius — it was inhabited by a stable, organised society that followed customary laws. At the same time, in what has recently been described as a ‘supreme jurisprudential paradox’,5 the High Court did not question that Australia was a settled colony, that English law came with the settlers in accordance with Blackstone’s formulation (see  2.56), or that radical title to all land in Australia was vested in the Crown. The Court sought to reconcile the history of settlement with pre-existing First Nations occupation by recognising that the Crown’s radical title coexisted with a beneficial native title. If a group of Torres Strait Islanders could show that they had exercised traditional rights over land since before British colonisation, then those traditional rights may have survived to the present day. But if the Crown had exercised its title to the land, either by using the land itself or by selling or granting it to someone else, native title might be extinguished. Although in Mabo [No  2] the High Court recognised that beneficial native title could coexist with radical Crown title, whether native title continues to exist in relation to a particular parcel of land raises difficult questions of fact. First, has the Crown or its successors in title used the land inconsistently with native title, bringing about extinguishment? Second, have the native title claimants maintained their connection with the land? To clarify and simplify the process by which Aboriginal and Torres Strait Islander groups could make native title claims, the Commonwealth Parliament passed the Native Title Act 1993 (Cth) (‘NTA’). Consistently with Mabo [No 2], the NTA defines native 2 3 4 5

84

(1971) 17 FLR 141. (1894) 14 AC 286, 239. (1992) 175 CLR 1. Daniel Lavery, ‘No Decorous Veil: The Continuing Reliance on an Enlarged Terra Nullius Notion in Mabo [No 2]’ (2019) 43 Melbourne University Law Review 233, 265.

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CHAPTER 4 FIRST NATIONS AUSTRALIANS AND THE AUSTRALIAN LEGAL SYSTEM

title in terms of ‘rights and interests in relation to land or waters … possessed under the traditional laws … and the traditional customs [of] Aboriginal peoples or Torres Strait Islanders [who], by those laws and customs, have a connection with the land or waters’.6 These include ‘hunting, gathering, or fishing, rights or interests’.7 The Federal Court is required, when making a native title determination, to specify a number of matters, including: the determination area; the persons or group holding the rights; the nature and extent of the rights; and whether or not the native title holders have ‘possession, occupation, use and enjoyment of that land or waters … to the exclusion of all others’.8 Depending on the traditional relationship of the claimants with the land, native title may be either exclusive or non-exclusive. A primary goal of the NTA was to provide a mechanism for the effective and efficient implementation of the common law as laid down in Mabo [No  2].9 While the Federal Court is the body empowered to make native title determinations, the NTA also set up the National Native Title Tribunal to mediate native title disputes and otherwise assist in the resolution of land claims, and to make recommendations to government on related issues.10 The NTA also requires state governments and other parties to negotiate in good faith with native title holders and claimants in respect of future acts — such as the future exploitation of the land by mining and agricultural interests.11

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WIK AND THE NATIVE TITLE AMENDMENT ACT 1998 (CTH) The significance of the Mabo [No 2] decision was underlined by Wik Peoples v Queensland (‘Wik’)12 where a majority of the High Court held that, contrary to the expectations of many, native title to land could coexist with pastoral leases. Native title was not extinguished by such a lease where its continuation was not inconsistent with the lease. This decision suggested that the geographical area open to native title claims was potentially far greater than many previously thought.

6 7 8 9

10 11 12

future acts: an act authorised by government after the commencement of the Native Title Act 1993 which impacts on an area the subject of a native title claim, such as the granting of an agricultural or mining lease

4.6

good faith: honest, sincere, without hidden ulterior motives

4.7

Native Title Act 1993 (Cth) s 223 (‘NTA’). Ibid. Ibid s 225. Paul Keating, ‘Mabo: An Address to the Nation — The National Interest’ (Speech, Parliament House, Canberra, 15 November 1993). NTA (n 6) pt 4 div 4. Ibid pt 2 div 3 sub-div P. (1996) 187 CLR 1.

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This map shows the geographical extent of native title claims as at 1 April 2020. Different shading indicates whether or not the claims were successful, and also the claims that are still working their way through the system. Copyright National Native Title Tribunal. Reproduced with kind permission of the National Native Title Tribunal.

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Wik generated uncertainty and unease in some segments of Australian society. Indeed, some states had already granted mining leases over land susceptible to native title claims under Wik without respecting the right to negotiate provided by the NTA. The Australian Government responded with the Native Title Amendment Act 1998 (Cth). Unlike the original 1993 legislation, which sought to implement the law as stated in Mabo [No 2] and provide protection for native title holders and claimants, the 1998 Act modified and restricted common law native title, strengthening the position of pastoralists and mining companies that wished to exploit land over which native title might be held. The then Deputy Prime Minister, Tim Fischer, promised that it would provide ‘bucket-loads of extinguishment’.13 Among other things, the amending Act downgraded or eliminated the right to negotiate in respect of certain mining grants and allowed states to validate mining leases and certain other grants that might have been inconsistent with Wik.

13

86

J Brough, ‘Wik Draft Threat to Native Title’, The Sydney Morning Herald, (Sydney, 28 June 1997) 3; see also Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report: July 1996 to June 1997 (Report, Human Rights and Equal Opportunity Commission, 1997) chs 4–5.

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CHAPTER 4 FIRST NATIONS AUSTRALIANS AND THE AUSTRALIAN LEGAL SYSTEM

DEVELOPING JURISPRUDENCE OF NATIVE TITLE: FROM YORTA YORTA TO AKIBA The Wik decision was widely perceived as manifesting a relatively broad and robust notion of native title. However, it actually continued the development, begun in Mabo [No 2], of quite a rigid and fragile conception of native title. The native title claimants were successful in Wik because they could establish that, in certain specific respects, they had continued their traditional way of life in a remote part of North Queensland with little disruption from the pastoral leases. The High Court held that, consequently, their corresponding specific rights had not been extinguished. It would prove far more difficult for claimants in other cases to satisfy the High Court’s strict and detailed demands regarding continuity. The 2002 case Members of the Yorta Yorta Aboriginal Community v Victoria (‘Yorta Yorta’)14 was concerned with a claim to some 2,000 square kilometres adjacent to the Murray and Goulburn Rivers in North Central Victoria. This area had been far more directly affected by colonisation than the remote area under consideration in Wik, and the High Court held 5:2 that the traditional rights and interests had not been shown to have had a ‘continuous existence and vitality’ since the time of settlement.15 This majority decision upheld the findings of the lower courts. At first instance in the Federal Court, Olney J had suggested: ‘The tide of history has undoubtedly washed away any traditional rights that the indigenous people may have previously exercised in relation to controlling access to their land within the claim area.’16 This rigid approach was resisted by dissentients in both appeal decisions. In the Full Court of the Federal Court, Black CJ, dissenting, objected to the majority’s view of the First Nations traditions as ‘dead, frozen or otherwise incapable of change’.17 In the High Court, Gaudron and Kirby JJ, dissenting, argued that traditional laws should accommodate ‘adaptations, alterations, modifications or extensions made in accordance with the shared values or the customs and practices of the people who acknowledge and observe those laws and customs’.18 Several years later, in Akiba v Commonwealth (‘Akiba’)19 a more flexible view of the continuity of First Nations traditions gained the unanimous support of the High Court. Akiba was concerned with a native title claim for fishing rights. The Commonwealth argued that this right had been extinguished by regulatory legislation which prohibited fishing without a licence. The High Court adopted a resilient conception of native title rights and found these rights survived despite the intrusive regulatory framework. The High Court viewed the ‘right’ in broad holistic terms, distinguishing it from the various ways in which the right may have been ‘exercised’ in the past.20 The Court found that while the fishing legislation may have interfered with the way in which the native title rights could be exercised, such interference did not mean that the underlying right was 14 15

16 17 18 19 20

4.8

4.9

4.10

(2002) 214 CLR 422. Ibid 444–7 [47]–[55], 456 [87] (Gleeson CJ, Gummow and Hayne JJ); discussed in Simon Young, ‘The Increments of Justice: Exploring the Outer Reach of Akiba’s Edge Towards Native Title “Ownership” ’ (2019) 42(3) University of New South Wales Law Journal 825, 840. Members of the Yorta Yorta Aboriginal Community v Victoria [1998] FCA 1606 [126]. Members of the Yorta Yorta Aboriginal Community v Victoria (2001) 110 FCR 244, 271;Young (n 15) 858. Yorta Yorta (n 14) 464 [114];Young (n 15) 858. (2013) 250 CLR 209. Young (n 15) 829, citing Akiba (n 19) 242 [68] (Hayne, Kiefel and Bell JJ), 229 [29] (French CJ and Crennan J).

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4.11

extinguished. Further, changing conditions may lead to new ways in which rights are exercised. Again, such change should not be taken as extinguishment. On the contrary, ‘contemporary variations are positive evidence of continued enjoyment of the broadly cast underlying rights, and of continued acknowledgement and observance of the attendant “traditional laws and customs” ’.21 In Banjima People v Western Australia,22 the Full Court of the Federal Court, quoting from Bodney v Bennell,23 expressed support for a broad interpretation of Yorta Yorta: [W]hen determining whether rights and interests are traditional, the proper enquiry is whether they find their origin in pre-sovereignty law and custom and not whether they were the same as those that existed at sovereignty. Clearly laws and customs can alter and develop after sovereignty, perhaps significantly, and still be traditional.24

4.12

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4.13 extrajudicial: where a judge makes a statement about the law that is not part of a judgment about a case before the court; this statement does not carry the precedential weight of a judicial statement

THE ALRC’S CONNECTION TO COUNTRY REPORT In 2013, 20 years after the NTA became law, the Commonwealth Government gave the Australian Law Reform Commission (‘ALRC’) a broad reference to consider the operation of the NTA. The reference was made only days before the Akiba decision. The result was the ALRC’s 2015 report, Connection to Country,25 which endorsed the direction taken by the High Court in Akiba and recommended reforms to ensure native title remain resilient and relevant in contemporary Australia. In particular, given the disruptive impact of colonisation on First Nations Australians, it should not be required that ‘the acknowledgment of traditional laws and the observance of traditional customs have continued substantially uninterrupted since sovereignty’.26 Rather, it must be acknowledged that ‘traditional laws and customs may adapt, evolve or otherwise develop’.27 Further, references in the NTA to a ‘traditional physical connection’ with the land or waters, which may be open to a more stringent interpretation, should be deleted.28 As Patrick Keane, then Chief Justice of the Federal Court, noted extrajudicially, a key practical issue regarding native title is ‘how [its] economic value … can be unlocked and managed for the future’.29 The terms of reference of the NTA review by the ALRC included the question of ‘the capacity of native title to support Indigenous economic development and generate sustainable long-term benefits for Indigenous Australians’.30 The ALRC recommended that the NTA be amended to expressly recognise that ‘native title rights and interests … may comprise a right that may be exercised for any purpose, including commercial or non-commercial purposes’.31 In Akiba the High Court recognised that there was a long history of the Torres Strait Islander claimants fishing for the purpose of trade and exchange. The High Court framed the Islanders’ native title 21 22 23 24 25 26 27 28 29

30 31

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Young (n 15) 862. (2015) 231 FCR 456. (2008) 167 FCR 84 114 [120]. Banjima People (n 22) 487–8 [75]. ALRC, Connection to Country: Review of the Native Title Act 1993 (Cth) (Report No 126, 4 June 2015). Ibid 29 (Recommendation 5–2). Ibid (Recommendation 5–1). Ibid (Recommendations 6–1 and 6–2). Patrick Keane, ‘Opportunity and Responsibility’ (Speech delivered at the AIATSIS Native Title Conference, Brisbane, 3 June 2011). ALRC (n 25) 5. Ibid 30 (Recommendation 8–1).

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CHAPTER 4 FIRST NATIONS AUSTRALIANS AND THE AUSTRALIAN LEGAL SYSTEM

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rights to include commercial fishing. A more difficult question is whether a native title right may be open to commercial exploitation where traditionally there has been no commercial exploitation. The ALRC report has yet to generate any legislative amendments. However, in the area of commercial exploitation, case law developments may be overtaking the ALRC report. The ALRC suggested, conservatively, ‘[t]here can be some degree of change and adaptation of the traditional laws and customs, but there cannot be new native title rights and interests’.32 A more f lexible approach is implicit in the distinction, endorsed in Akiba, between a broad holistic conception of native title rights and specific ways in which they may happen to be exercised. In Willis (Pilki People) v Western Australia,33 North J, applying Akiba, held that the Pilki People had the right to utilise natural resources for any purpose, including commercial purposes, and had had that right since colonisation. North J rejected the state government’s objections of a ‘lack of precision’ in the claims.34 The government’s appeal was dismissed,35 partly on the basis of evidence that the Pilki People had long used the resources of the area for trade as well as for subsistence and ceremony. However, the decision suggests that the Pilki People’s commercial rights would have been recognised even without evidence that these had traditionally been exercised. Trade was common in the broader area of the Western Desert. Even if the Pilki People had not engaged in trade in the past, that does not mean that they did not have the right to trade at any time. In the absence of evidence of a traditional prohibition on trade, the distinction that Western Australia invoked between commercial and non-commercial rights was unsustainable. The decision offers support for a presumption that native title rights cover the taking and use of resources for any purpose, with the onus to prove otherwise on the party seeking to limit those rights.36 COMPENSATION FOR EXTINGUISHMENT: THE TIMBER CREEK DECISION It may be expected that, under the influence of Akiba, there would be a reduction in the extinguishment of native title. Nevertheless, much native title has been extinguished in the past, and some extinguishment will continue into the future. Where native title is or has been extinguished, compensation may be payable under the NTA pt 2 div 5. The High Court had its first opportunity to consider these provisions in March 2019 in Northern Territory v Griffiths (deceased) and Jones on behalf of the Ngaliwurru and Nungali Peoples (‘Timber Creek Decision’).37 This was an appeal from Northern Territory litigation arising from the partial extinguishment of the Ngaliwurru and Nungali Peoples’ native title to 127 hectares of land at Timber Creek in the 1980s and 1990s. The High Court held that, under the NTA, compensation for the diminution of native title rights has three components: economic loss, interest on economic loss and cultural loss.The Court held that it was appropriate under NTA s 51A that the economic loss claim be calculated as a percentage of the value of the freehold estate. The Court 32 33 34 35 36 37

4.14

4.15

4.16

Ibid 256 [8.139], citing Yorta Yorta (n 14) 443 [43] (Gleeson CJ, Gummow and Hayne JJ). [2014] FCA 714. Ibid [128]. Western Australia v Willis (2015) 239 FCR 175. See also Young (n 15) 854. (2019) 93 ALJR 327.

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alienable: able to be transferred to a new owner; usually with reference to rights to land or other property

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4.17

4.18

rejected the claimants’ argument that this was discriminatory: ‘Non-exclusive native title [simply does have] lesser economic value than a freehold estate’.38 The Court held, however, that the valuation should not be discounted on the basis that the native title rights were inalienable and could not be sold or otherwise transferred.39 Despite this, the High Court reduced the award from 65% of freehold value in the Full Court of the Federal Court (which was down from 80% in the first-instance decision) to 50%. This amounted to a valuation of $320,250. The High Court held that interest was payable on this amount covering the period between entitlement to compensation and the date of judgment. Entitlement to compensation was taken to have arisen at the date of the acts of extinguishment, not the later date on which these acts were validated, for example by the NTA.40 However, the High Court rejected the claimants’ arguments that interest should be calculated on a compound basis. While not excluding the possibility that compound interest may be appropriate in other cases, the Court held that in this case the lower courts’ calculation of simple interest was just.41 The interest award amounted to $910,100. The issue that generated the most interesting and lengthiest discussion in the Timber Creek Decision was the assessment of compensation for cultural damage associated with extinguishment.The High Court held that this required a determination of ‘the essentially spiritual relationship which the Ngaliwurru and Nungali Peoples have with their country and to translate the spiritual hurt from the compensable acts into compensation’.42 The Court drew upon an expert report by two anthropologists, Palmer and Asche, who detailed ‘the travels of major Dreamings through the claim area [and] explained that Dreamings are spiritual beings that performed actions that resulted in physical and spiritual modifications to the countryside’.43 With reference to evidence from the claimants, the High Court noted ‘the breadth and depth of the claimants’ spiritual connection to the land; it explains that their loss of connection to country is incremental and cumulative and has to be understood in terms of the pervasiveness of the Dreamings and the significant sites’.44 The High Court adopted the trial judge’s findings that ‘loss of, and damage to, country caused emotional, gut-wrenching pain and deep or primary emotions accompanied by anxiety for the Claim Group’.45 Significantly, the High Court held that a proper determination of the damage required a holistic view of the claimants’ connection with country. ‘Each act affected native title rights and interests with respect to a particular piece of land. But each act was also to be understood by reference to the whole of the area over which the relevant rights and interests had been claimed.’46 Taking this approach, the High Court confirmed the trial judge’s award of $1.3 million. There is an important restriction on compensation for extinguishment which the High Court referred to but which was not the subject of argument. Compensation 38

39 40 41 42 43 44 45 46

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Ibid 349 [74] (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ) (emphasis added). Gageler and Edelman JJ expressed broad agreement with the joint judgment at [240] and [253] respectively. Ibid 355 [101]. Ibid 344 [43]. Ibid 362–3 [133]. Ibid 368 [155]. Ibid 371 [170]. Ibid 372 [180]. Ibid 375 [194]. Ibid 376 [204].

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CHAPTER 4 FIRST NATIONS AUSTRALIANS AND THE AUSTRALIAN LEGAL SYSTEM

for extinguishment is only payable where it occurs after the enactment of the Racial Discrimination Act 1975 (Cth) (‘RDA’). Prior to the commencement of the RDA, extinguishment occurred automatically as a result of the Crown dealing with the land inconsistently with native title. Once the RDA commenced operation, however, extinguishment would require validation under the NTA which also provided native title holders with an entitlement to compensation. In the Timber Creek Decision it was noted that the claimants had been ‘partly impaired from enjoying their traditional lands — before the compensable acts — and the current claim for compensation had to take into account the extent to which spiritual attachment to the land had already been impaired’.47 COMPLEXITY OF NATIVE TITLE CLAIMS Native title cases are among the most complex that courts face. An extreme example is the claim of the Noongar People in the South West of Western Australia. This claim involves 30,000 people and encompasses approximately 200,000 square kilometres including the greater metropolitan area of Perth. The litigation began in 1996.48 In Bennell v Western Australia49 in 2006, Wilcox J observed:

4.19

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The Court took evidence over a period of 20 days. On eleven of those days, the Court sat ‘on-country’ at eight different locations: Jurien Bay,Albany,Toweringup Lake near Katanning, Dunsborough near Busselton, Kokerbin Rock and Djuring in the Kellerberrin district and, in Perth, at Swan Valley and in Kings Park. The Court heard evidence from 30 Aboriginal witnesses and five expert witnesses: two historians, two anthropologists and a linguistic expert. A considerable volume of written evidence was also received.50

Wilcox J’s decision was 952 paragraphs long, almost 240 pages in the Federal Court Reports. However, it dealt with only a few preliminary issues. Wilcox J noted that the litigation ‘has gone on for a long time. It has undoubtedly cost much money — mostly taxpayers’ funds. Unless the parties make a determined effort otherwise, it will absorb a lot more money, before it is finished’.51 Two years later the Full Court of the Federal Court upheld the appeals of Western Australia and the Commonwealth in a judgment of 239 paragraphs, 61 pages.52 In the native title area, as in other areas of litigation, delays and costs are a major problem. As Robert French, former Chief Justice of Australia and former president of the National Native Title Tribunal, noted extrajudicially, ‘[t]here is a sense that the beneficial purpose [of the NTA] has been frustrated by the extraordinary length of time and resource burden that the process of establishing recognition, whether by negotiation or litigation, impose[s]’.53 Kirby J in Wilson v Anderson ref lected that ‘the benefits intended for Australia’s Indigenous peoples in relation to native title land and waters are being

47 48

49 50

51 52 53

4.20

Ibid 369 [163]. The first litigation appears to be Minister for Mines (WA)/Taylor on behalf of the Njamal People/Mullan [1996] NNTTA 20. (2006) 153 FCR 120; 230 ALR 603. Ibid ALR 609 (these passages appear in an additional statement by the judge which does not appear in FCR). Ibid 612. Bodney v Bennell (2008) 167 FCR 84. Justice Robert French, ‘Lifting the Burden of Native Title — Some Modest Proposals for Improvement’ (FCA) [2008] Federal Judicial Scholarship 18, [7].

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4.21 mediation: negotiations between parties in an attempt to resolve a dispute, with the assistance of a neutral third party

4.22

channelled into costs of administration and litigation that leave everyone dissatisfied and many disappointed’.54 The NTA provides parties with a number of alternatives to litigation.As noted at 4.6, mediation in the National Native Title Tribunal is a mandatory part of the process. The NTA makes provision for the Federal Court to make determinations, without a full trial, by consent of the parties,55 and for the registration of Indigenous Land Use Agreements (‘ILUAs’), which do not require a Federal Court determination.56 French also observed: ‘It is in the nature of native title litigation under the substantive law that it imposes heavy burdens on the human and financial resources of the principal parties involved. These can be alleviated, only to a limited extent, by process improvements.’57 However, efforts to streamline the litigation and provide greater opportunities for settlement are continuing. The 2013 reference to the ALRC required it to consider ‘delays to the resolution of claims caused by litigation’ and ‘the need to ensure that the native title system delivers practical, timely and flexible outcomes for all parties, including through faster, better claims resolution’.58 In its report, Connection to Country, the ALRC commented that,‘[g]iven the breadth of interests involved, it is perhaps inevitable that native title is complex and technical’.59 However, it made a number of recommendations to simplify the processes of negotiation and litigation, such as endorsing a more flexible and less technical conception of native title (see  4.12ff), and ways to clarify and simplify the selection of authorised claimant representatives and the joinder of parties.60 As yet, these recommendations have not led to any amendments to the NTA.61 In 2015 the parties to the Noongar litigation agreed on a series of ILUAs, the South West Native Title Settlement.62 It provides for legislative recognition of the Noongar people as custodians; the transfer of parcels of Crown land to the Noongar people; scheduled financial payments; housing, employment and cultural programs; and the establishment of various institutions to manage the settlement. However, this may not be the end of it. Following the Timber Creek Decision it has been reported that the Noongar people are seeking compensation of $290 billion.63

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EXERCISE 3: EXTINGUISHMENT OF NATIVE TITLE 4.23

Suppose that a First Nations group had a strong customary relationship with a large area of land at the time Australia was settled. Under Mabo and the NTA what events may result in the group’s loss of native title? List as many as possible, including actions by government, 54 55 56 57 58 59 60 61

62

63

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Wilson v Anderson (2002) 213 CLR 401, 454 [126]. NTA (n 6) pt 4. Ibid pt 8A. French (n 53) [1]. ALRC (n 25) 5. Ibid 16. Ibid 30–3 (Recommendations 10, 11 and 12). However, see Native Title Amendment (Indigenous Land Use Agreements) Act 2017 (Cth), which appears to be a response to the difficulties that arose at the final stage of the negotiations of the Noongar ILUAs noted at 4.22. Though this case ended up back in court in McGlade v Native Title Registrar [2017] FCAFC 10 with difficulties over the paperwork. Isabella Higgins and Sarah Collard, ‘WA Indigenous Group’s $290 Billion Claim Could Become One of the World’s Biggest Payouts’, ABC News (online, 29 November 2019) .

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CHAPTER 4 FIRST NATIONS AUSTRALIANS AND THE AUSTRALIAN LEGAL SYSTEM

agricultural and mining interests.What factors, geographical or otherwise, may determine whether a First Nations group would be vulnerable to these events? Outline the impact that these events may have on the group. Do you consider it just that the group should lose its title to their traditional land? What changes to the law would you recommend?

First Nations Australians and the criminal justice system Mabo [No 2] and its legislative and case law progeny seek to give recognition to native title, redressing to some extent the injustice perpetrated by the terra nullius doctrine. As we have seen, this project faces ongoing challenges. Another area where the treatment of First Nations Australians continues to raise complex issues and grave concerns is the criminal law. As historian Mark Finnane observes,

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the persistent intrusion of Indigenous difference exhibits a remarkable continuity through more than two centuries of Australian settler history, constantly raising the possibility of an alternative body of law and practice that government policy and criminal justice institutions have struggled to understand and contain.64

EARLY JURISDICTION OVER THE ‘ABORIGINAL NATIVE’ In the first decades following settlement, Australian courts did not routinely expect the First Nations population to comply with the law that the colonists brought with them from England, at least where the colonists were not directly affected. In 1829 in R v Ballard, Forbes CJ held:

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[T]he prisoner ought to be discharged for want of jurisdiction. … The prisoner is accused of the murder of one of his own tribe … [They are] wandering about the country and living in the uncontrolled freedom of nature. … [T]he savage is governed by the laws of his tribe — & with these he is content. In point of practice, how could the laws of England be applied to this state of society?65

In 1836 in R v Murrell, however, Burton J, delivering the judgment of the Full Court of the Supreme Court of New South Wales, noted that ‘[t]his Court has repeatedly tried and even executed aboriginal natives of this Colony, for offences committed by them upon subjects of the King’.66 In 1841 in R v Bonjon, Willis J of the New South Wales Supreme Court accepted that Aboriginal people are ‘subject to and protected by English law in relation to conf licts between them and the British’, but expressed doubt about whether the Court had ‘jurisdiction over crimes committed by Aborigines against one another’.67

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Mark Finnane, ‘The Limits of Jurisdiction: Law, Governance and Indigenous Peoples in Colonised Australia’ in Shaunnagh Dorsett and Ian Hunter (eds), Law and Politics in British Colonial Thought: Transpositions of Empire (Palgrave, 2010) 149, 165. R v Ballard (Supreme Court of New South Wales, Forbes CJ and Dowling J, 13 June 1829), extracted in Bruce Kercher, ‘R v Ballard, R v Murrell and R v Bonjon’ (1998) Australian Indigenous Law Reporter 410. R v Murrell (Supreme Court of New South Wales, Forbes CJ, Dowling and Burton KJ, 11 April 1836), extracted in Kercher (n 65). R v Bonjon (Supreme Court of New South Wales, Willis J, 16 September 1841), extracted in Kercher (n 65).

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Over the succeeding decades, the courts exercised increasing jurisdiction over First Nations defendants, even regarding incidents that involved only First Nations people.68 In R v Paddy and Wills69 in 1886, for example, counsel for the defendants admitted that they had killed another Aboriginal man, but argued that the defendants were ignorant of the law and that it was natural for the defendants to kill a man of a different tribe. As Finnane notes, ‘[i]n delivering their verdict after long deliberation the jury found both men guilty “& strongly recommended them to mercy on the grounds of ignorance of the laws of the country” ’.70 The defendants were convicted but the death sentence was commuted. PROTECTION REGIMES During the 19th century the practice developed of subjecting Aboriginal people to differential treatment within a broader colonial legal framework. Aboriginal people were drawn within comprehensive protection regimes where Protection Boards exerted almost total control over all aspects of their lives. One tragic aspect of this was that many First Nations children were forcibly removed from their families and communities to be placed in institutions or with non-Aboriginal foster parents.71 This severely damaged the children and their families — the ‘Stolen Generations’ — and has had a lasting impact on later generations. Along with their dispossession of traditional lands and the destruction of their culture, this continues to contribute to First Nations peoples’ alienation and disadvantage. Another consequence of the ‘absolutist welfare control’72 of the protection system was that criminal conduct by Aboriginal people was often not dealt with by the criminal justice system. Instead, extra-judicial and often brutal punishments were handed down administratively by the Chief Protector. An example is the methods of Reverend William Mackenzie who ‘ruled’ Aurukun, a mission on the Cape York Peninsula, for four decades from 1925: Mackenzie’s punishments were harsh, unorthodox, and arbitrary — they included the use of banishment, corporal punishment, including flogging and beating, use of his fists, use of the ‘electro magnet’, binding the mouth to stop verbal abuse and swearing.73

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As noted in 3.44, following the Second World War there was, in Australia as elsewhere, an increasing awareness of human rights, particularly those of the First Nations peoples of colonies and former colonies. This was accompanied by a shift away from the paternalistic ‘protection’ approach to indigenous peoples. As a consequence, Aboriginal people were no longer outside the criminal justice system. The rise in protection regimes at the beginning of the 20th century had led to a decline in the Aboriginal prison population. But with the fall of the protection regimes in the last quarter of the 20th century, the Aboriginal prison population increased alarmingly.74

68 69 70 71

72 73 74

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See also discussion in Love and Thoms (n 1) 251–2 [267] (Nettle J). 1886, EXE/4, Queensland State Archives, discussed in Finnane (n 64) 155. Finnane (n 64) 155. See Human Rights and Equal Opportunity Commission, Bringing Them Home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families (Report, 1997). Finnane (n 64) 157. Ibid. Russell Hogg, ‘Penalty and Modes of Regulating Indigenous Peoples in Australia’ (2001) 3 Punishment and Society 355.

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CHAPTER 4 FIRST NATIONS AUSTRALIANS AND THE AUSTRALIAN LEGAL SYSTEM

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Derby Boab Tree by R Wally. Copyright Mary Walters. Reproduced with kind permission of Mary Walters. In the 1940s this tree became known as the Derby ‘Prison Tree’, with reports that, in the past, Aboriginal prisoners had been locked up inside as they were transported to Derby jail from Fitzroy Crossing in Western Australia’s remote Kimberley region. More recent research, however, suggests that these reports were false, damaging and inconsistent with the sacred meaning of the 1500-year-old tree in local Aboriginal culture: Elizabeth Grant and Kristyn Harman, ‘Inventing a Colonial Dark Tourism Site: The Derby Boab “Prison Tree” ’, in Jacqueline Z Wilson et al (eds), Palgrave Handbook of Prison Tourism (Palgrave Macmillan, London, 2017) 735.

ROYAL COMMISSION INTO ABORIGINAL DEATHS IN CUSTODY A spotlight was shone on rates of First Nations imprisonment by the Royal Commission into Aboriginal Deaths in Custody (RCIADIC). It investigated 99 deaths that occurred between 1980 and 1989. Reporting in 1991, the Commission observed:

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Aboriginal people die in custody at a rate relative to their proportion of the whole population which is totally unacceptable and which would not be tolerated if it occurred in the non-Aboriginal community. But this occurs not because Aboriginal people in custody are more likely to die than others in custody but because the Aboriginal population is grossly over-represented in custody.Too many Aboriginal people are in custody too often.75

The RCIADIC made many recommendations for reforms to reduce the rate of Aboriginal incarceration. It noted that the arrest and detention of Aboriginal people often began with offences as trivial as using offensive language, and recommended that the law should operate less harshly, that police should show greater restraint, and that

75

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Royal Commission into Aboriginal Deaths in Custody: National Report (Final Report, 1991) vol 1, 1.3.3 (‘RCIADC Final Report’).

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arrest and imprisonment should be remedies of last resort.76 In Police v Dunn,77 several years after the Royal Commission ended, Magistrate Heilpern of Dubbo Local Court commented: Charges about language just become part of an oppressive mechanism of control of Aboriginals. Too often the attempt to arrest or charge an Aboriginal for offensive language sets in train a sequence of offences by that person and others — resisting arrest, assaulting police, hindering police and so on, none of which would have occurred if police were not so easily ‘offended’.78

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The RCIADIC recommendations have been poorly implemented. In New South Wales, the Australian Capital Territory and Western Australian, ‘offensive language’ and equivalent offences no longer carry a custodial sentence,79 but they do in other Australian jurisdictions.80 Aboriginal people continue to be arrested inappropriately and imprisoned for trivial offences. These police interventions continue to be counterproductive. In 2017 in Prior v Mole,81 a Northern Territory case, a majority of the High Court upheld the legality of the ‘protective’ arrest of an Aboriginal man, Mr Prior, who was intoxicated in a public place; the police claimed the arrest was in order to prevent Mr Prior from committing the offence, under s 101U(1) of the Liquor Act 1978 (NT), of drinking in a regulated area (an offence which does not itself carry a custodial sentence). The arrest led to an altercation between Mr Prior and the police, resulting in his conviction for assaulting a police officer, an offence carrying a maximum sentence of five years’ imprisonment even if the officer is not harmed.82 First Nations people make up a little over 3% of Australia’s population.83 In 1991 First Nations people made up almost 15% of the prison population. Today the figure is approaching 30%.84 First Nations people are imprisoned at a rate more than 15  times higher than for non-First Nations people.85 Aboriginal Australians may be ‘the most imprisoned race in the world’.86 More than 25  years after the RCIADIC, Aboriginal deaths in custody remain a shameful indictment of the Australian criminal justice system.87

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76 77

78 79

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81 82 83

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85 86

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Ibid vol 3, ch 23; vol 5, Recommendations 87, 92. Police v Dunn (Dubbo Local Court, NSW, Heilpern SM, 27 August 1999), reproduced in David Heilpern, ‘Judgement: Police v Shannon Thomas Dunn’ (1999) 24(5) Alternative Law Journal 238. Ibid. Summary Offences Act 1988 (NSW) s 4A; see also Crimes Act 1900 (ACT) s 92; Criminal Code Act 1913 (WA) s 74A. Summary Offences Act 1923 (NT) ss 47, 53; Summary Offences Act 2005 (Qld) s 6; Summary Offences Act 1966 (Vic) s 17; Summary Offences Act 1953 (SA) s 7; Police Offences Act 1935 (Tas) s 12. (2017) 261 CLR 265. Criminal Code (NT) s 189A. Australian Bureau of Statistics, Estimates of Aboriginal and Torres Strait Islander Australians (Catalogue No 3238.0.55.001, June 2016). Australian Bureau of Statistics, Corrective Services, Australia, December Quarter 2019 (Catalogue No 4512.0, March 2020); see also ALRC, Pathways to Justice: An Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples (Report No 133, December 2017) 93–97 (‘Pathways to Justice’). Australian Bureau of Statistics, Prisoners in Australia, 2019 (Catalogue No 4517.0, December 2019). David Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in NSW (Federation Press, 5th ed, 2011) 1179. Lorena Allam, Calla Wahlquist and Nick Evershed, ‘Indigenous Deaths in Custody Worsen in Year of Tracking by Deaths Inside Project’, The Guardian (online, 23 August 2019) ; Thalia Anthony, ‘Deaths in Custody: 25 Years After the Royal Commission, We’ve

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CHAPTER 4 FIRST NATIONS AUSTRALIANS AND THE AUSTRALIAN LEGAL SYSTEM

‘CRIMES OF POVERTY, DESPAIR AND DEFIANCE’ The disproportionate imprisonment of First Nations Australians cannot be wholly attributed to discriminatory and clumsy law enforcement by police. Many First Nations communities experience higher rates of offending, including serious offences,88 reflecting their severe social disadvantage. As Russell Hogg notes, ‘crimes committed by Aboriginal offenders are overwhelmingly crimes of poverty, despair and defiance’.89 Higher crime rates among First Nations Australians correlate with their lower levels of education, higher unemployment and poorer health. The Federal Government’s efforts to ‘close the gap’ across these areas have had limited success.90 The high rates of offending and imprisonment of First Nations Australians are both a consequence and a cause of social disadvantage. The crucial question this raises is how the criminal justice system can help break this cycle. This complex and multidimensional issue involves many different legal institutions and actors. Sentencing courts, in particular, are regularly required to take account of the impact of past social disadvantage on the offending behaviour, and the relative prospects of rehabilitation and reoffending. The sections following outline different approaches to sentencing of First Nations offenders. An inf luential statement of the applicable sentencing principles was provided by Wood J in R v Fernando (‘Fernando’):

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It is proper for the court to recognise that the problems of alcohol abuse and violence which to a very significant degree go hand in hand within Aboriginal communities are very real ones and their cure requires more subtle remedies than the criminal law can provide by way of imprisonment.91

Wood J called for the realistic recognition by the court of the endemic presence of alcohol within Aboriginal communities, and the grave social difficulties faced by those communities where poor self-image, absence of education and work opportunity and other demoralising factors have placed heavy stress on them, reinforcing their resort to alcohol and compounding its worst effects.92 Copyright © 2020. LexisNexis Butterworths. All rights reserved.

Wood J added: In sentencing an Aborigine who has come from a deprived background or is otherwise disadvantaged by reason of social or economic factors, or who has little experience of European ways, a lengthy term of imprisonment may be particularly, even unduly, harsh when served in an environment which is foreign to him and which is dominated by inmates

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Gone Backwards’, The Conversation (online, 13 April 2016) . See, eg, Simone Georg and Matthew Manning, ‘Safety in Indigenous Communities: Identifying Gaps and Opportunities in Australian Crime Prevention Policy’, Policy Studies (online, 20 May 2019, DOI: 10.1080/01442872.2019.1606902); Stephen Gray, ‘Scoring the Intervention: Fail Grades on Closing the Gap, Human Rights’ (2016) 8(23) (Mar/Apr) Indigenous Law Bulletin 10, 12. Hogg (n 74) 368. Gray (n 88); Diana Perche, ‘Closing the Gap is Failing and Needs a Radical Overhaul’, The Conversation (online, 15 February 2017) ; Department of the Prime Minister and Cabinet (Cth), Closing the Gap: Report 2020 (Report, 12 February 2020). (1992) 76 A Crim R 58, 62. Ibid 62–63.

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and prison officers of European background with little understanding of his culture and society or his own personality.93

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It should be emphasised that Wood J was not proposing that Aboriginal offenders be treated differently from any other offenders. ‘The same sentencing principles are to be applied in every case irrespective of the identity of a particular offender or his membership of an ethnic or other group.’94 As a general principle, ‘where the abuse of alcohol by the person standing for sentence ref lects the socio-economic circumstances and environment in which the offender has grown up, that can and should be taken into account as a mitigating factor’.95 Unfortunately, however, as a generalisation, this factor is more likely to arise for consideration where courts are presented with First Nations offenders. This approach has recently been confirmed by the High Court in Bugmy v The Queen (‘Bugmy’).96 The majority indicated that [t]here is no warrant, in sentencing an Aboriginal offender in New South Wales, to apply a method of analysis different from that which applies in sentencing a non-Aboriginal offender. … ‘Properly understood, Fernando is a decision, not about sentencing Aboriginals, but about the recognition, in sentencing decisions, of social disadvantage that frequently (no matter what the ethnicity of the offender) precedes the commission of crime.’97

This is just another instance of the operation of ‘individualised justice’.98 A few months before deciding Bugmy, in Elias v The Queen99 the Court held, in a unanimous judgment: It is the duty of the judge to balance often incommensurable factors and to arrive at a sentence that is just in all of the circumstances. The administration of the criminal law involves individualised justice, the attainment of which is acknowledged to involve the exercise of a wide sentencing discretion.100

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INDIGENOUS SENTENCING COURTS A number of the RCIADIC recommendations sought to further the involvement of First Nations communities in setting and implementing appropriate sentences.101 This, it was thought, would address ‘the sense of powerlessness and alienation felt by many Aboriginal people caught up in the criminal justice system’.102 Significant steps have been taken in that direction. The first Indigenous sentencing court was established in 1999 in Port Adelaide, and they now operate in most Australian jurisdictions.103 While their features vary between jurisdictions, they all operate with less than usual formality and enable 93 94 95 96 97 98 99 100 101 102

103

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Ibid 63. Ibid 62. Ibid. (2013) 249 CLR 571. Ibid 592–3 [36]–[37], quoting from Kennedy v The Queen [2010] NSWCCA 260 [53]. Ibid 592 [36], [41]. (2013) 248 CLR 483. Ibid 494–5 [27]. RCIADC Final Report (n 75) vol 5, Recommendations 104, 111, 113, 114. Justice Jenny Blokland, ‘Foreword’ in Paul Bennett, Specialist Courts for Sentencing Aboriginal Offenders: Aboriginal Courts in Australia (Federation Press, 2016) v. Elena Marchetti,‘Indigenous Sentencing Courts’ (Research Brief No 5, Indigenous Justice Clearinghouse, December 2009) 1, 5–6; Elena Marchetti and Janet Ransley,‘Applying the Critical Lens to Judicial Officers and Legal Practitioners Involved in Sentencing Indigenous Offenders: Will Anyone or Anything Do?’ (2014) 37 University of New South Wales Law Journal 1, 9–14.

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CHAPTER 4 FIRST NATIONS AUSTRALIANS AND THE AUSTRALIAN LEGAL SYSTEM

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representatives of the offender’s community to play a role in determining how a First Nations offender should be punished. It should be noted that, despite the more informal setting and structure, the court retains the authority to decide on the ultimate sentence, which should be consistent with the usual sentencing principles. Indigenous sentencing courts generally have limited jurisdiction. In New South Wales, for example, under the Criminal Procedure Regulation 2010 (NSW), the Circle Court operates within the local court, which has no jurisdiction over more serious offences tried on indictment before a jury. At the same time the offence must be one for which the offender may be sentenced to imprisonment, a community service order or a good behaviour bond,104 which would exclude the least serious offences. South Australia’s ‘Nunga Court’ also operates at the lowest level of the court hierarchy, and is presided over by a magistrate. However, in South Australia there is a discretion, under s 22 of the Sentencing Act 2017 (SA),105 for a court at any level to convene a sentencing conference. It seems this tends to only be used for less serious offences. In R v Wanganeen,106 five years after the reform was introduced, Gray J noted that the Supreme Court of South Australia, the highest first-instance court in that state, had only used it twice.107

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‘Kartiya Boat’ by Jimmy Pike (1988). Copyright Pat Lowe. Reproduced by kind permission of Pat Lowe. Jimmy Pike started painting in Fremantle Prison in the early 1980s. Released in 1986 he continued his art until his death in 2002. Much of his work captures the physical and spiritual quality of his traditional Walmajarri country. This piece depicts the boat bringing the first Kartiya (European) people to Australia.

104 105 106 107

Criminal Procedure Regulation 2010 (NSW) reg 36. Formerly s 9C of the Criminal Law (Sentencing) Act 1988 (SA). R v Wanganeen (2010) 108 SASR 463. Ibid 463 [3].

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4.38

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4.39

Indigenous sentencing courts serve several related goals.108 They aim to show respect for First Nations Australians and improve communication between them and the courts. This should help the court achieve a more appropriate sentence, and one that is understood and accepted by the offender and their community. The offender, with the community’s support, may have a greater chance of understanding the consequences of criminal behaviour and to accept responsibility, reducing the risk of their recidivism. Evidence is mixed as to whether these goals are being achieved. Pathways to Justice,109 a 2017 ALRC report, noted that ‘establishment of such courts “demonstrate respect for Indigenous culture and the Elders who are its authority figures. Their processes, collaborative in nature, promote the resolution of underlying problems that have brought individual offenders to court” ’.110 The Murri Court in Queensland has been reported to have had ‘ “considerable success” in improving relationships between Aboriginal and Torres Strait Islander communities and Queensland Magistrates Courts’.111 However, it is less clear whether such courts bring lower rates of recidivism. There are indications both of rates being reduced112 and of them being unaffected.113 The Pathways to Justice report noted that Western Australia abolished its specialist courts in 2015 ‘following evaluations … that found that recidivism either did not significantly reduce, or because it in fact increased’.114 Queensland abolished its Murri Court in 2012 for similar reasons, though it has since been re-established.115 The conf licting views may ref lect limitations in the empirical evidence, together with uneven success in committing to and fully implementing the reforms. Legislative and procedural change, creating space for First Nations community participation in sentencing, is clearly a good first step. However, the current legislative reforms have only patchwork coverage. There is room for Indigenous sentencing courts to be used more extensively, with better follow-through116 and greater sensitivity to local conditions.117 Further, commentators have argued that, for the reforms to fulfil their potential, they should be accompanied by educational measures for courts and lawyers, so that the legal change is accompanied by a proper awareness of First Nations culture.118 The Pathways to Justice report recommended not only that specialist courts be created, but that they ‘incorporate individualised case management, wraparound services, and be culturally competent, culturally safe and culturally appropriate’,119 and, further, that

108 109 110

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114 115 116 117 118 119

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Ibid 463 [4]; Criminal Procedure Regulation 2010 (NSW) reg 35. ALRC, Pathways to Justice (n 84). Ibid 328–9 [10.33], quoting Australasian Institute of Judicial Administration, Indigenous Issues and Indigenous Sentencing Courts (Web Page) . Ibid 329 [10.34], quoting Anthony Morgan and Erin Louis, Evaluation of the Queensland Murri Court: Final Report (Technical and Background Paper No 39, Australian Institute of Criminology, 2010) 150. See, eg, Sarah Xin Yi Chua and Tony Foley, ‘Implementing Restorative Justice to Address Indigenous Youth Recidivism and Over-Incarceration in the ACT: Navigating Law Reform Dynamics’ (2015) 18 Australian Indigenous Law Review 138, 143; Morgan and Louis (n 111); Bennett (n 102). See, eg, Jacqueline Fitzgerald, ‘Does Circle Sentencing Reduce Aboriginal Offending?’ (2008) 115 Crime and Justice Bulletin 1. ALRC, Pathways to Justice (n 84) 330 [10.36]. Ibid, citing Bennett (n 102) 71. Ibid 331–3 [10.43]–[10.50]. Ibid 333 [10.51]–[10.52]. Marchetti and Ransley (n 103) 15, 31; Chua and Foley (n 112) 147–8. ALRC, Pathways to Justice (n 84) 328, Recommendation 10–2.

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First Nations communities ‘should play a central role in [their] design, implementation and evaluation’.120 CUSTOMARY PUNISHMENT We have seen that to break the cycle of social disadvantage experienced by many First Nations communities, it is crucial that the criminal justice system respect their culture. This goal raises difficult issues where sentencing courts are presented with cases involving the administration of customary punishment.121 Suppose one young First Nations man assaults another within a traditional community. The two young men meet with community Elders who agree the first man should receive a traditional ‘payback’ punishment — a  spear wound to the thigh, inflicted by an Elder. This punishment is carried out and then the local police find about what happened. Should they arrest the first young man for assault and the Elder for wounding, and bring them both to justice? Or, given that the situation has been handled under customary law, should the police and the Australian criminal justice system stay out of it? In Walker v New South Wales,122 Mason CJ rejected the proposition that Mabo [No 2], which recognises native title, provides support for also recognising customary Aboriginal criminal law.

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In Mabo (No.2), the Court held that there was no inconsistency between native title being held by people of Aboriginal descent and the underlying radical title being vested in the Crown. There is no analogy with the criminal law. English criminal law did not, and Australian criminal law does not, accommodate an alternative body of law operating alongside it.There is nothing in Mabo (No.2) to provide any support at all for the proposition that criminal laws of general application do not apply to Aboriginal people.123

However, while customary punishment is not recognised as a separate system of law operating alongside Australian criminal law, its operation may still be recognised as a fact that is relevant to the sentencing court’s provision of individualised justice.124 In the scenario outlined at 4.40, if the court fails to take any account of the fact that the first young man has received traditional punishment, he may suffer double punishment, considerably more in total than a defendant in a like case who had not received traditional punishment. Further, his willingness to accept his traditional punishment is a strong sign of remorse and the potential for rehabilitation. On an individualised justice approach, these are all relevant mitigating factors.125 The fact of the operation of customary punishment will also be relevant to the sentencing of the First Nations Elder who inf licted ‘payback’. The Elder did not act for financial gain, or in anger, but was acting in accordance with traditional practice.

120 121

122 123 124

125

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Ibid Recommendation 10–3. Similar issues arise where First Nations defendants seek to rely on customary law to mount a criminal defence. See, eg, Karpany v Dietman (2013) 252 CLR 507; Walden v Hensler (1987) 163 CLR 561. (1994) 182 CLR 45. Ibid 50 [6]. See also Law Reform Commission of Western Australia (‘LRCWA’), Aboriginal Customary Laws: The Interaction of Western Australian Law with Aboriginal Law and Culture (Project 94, Final Report, September 2006) 13. Ibid 15.

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Such  practices are designed to mend the rift between the aggressor and the victim, and between their respective families, and to restore balance within the community. As Southwood J noted in R v Wunungmurra (‘Wunungmurra’),126 on occasion sentencing courts held that the moral culpability of an offender was lessened because he or she had acted in accordance with traditional Aboriginal law or cultural practices. Such matters were taken into account in accordance with established sentencing principles …127

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In such a case the positive motivation and effect of the administration of customary punishment reduces the blameworthiness of the conduct. Further, by acknowledging traditional law, the court would be contributing to ‘the continued unity and coherence of the group’.128 In some jurisdictions, sentencing legislation reinforces the position outlined above. For example, Crimes (Sentencing) Act 2005 (ACT) s 33(1) requires a court, in sentencing an offender, to consider, among other things: (m) the cultural background … of the offender; … (v) the reason or reasons why the offender committed the offence; [and] (w) whether the offender has demonstrated remorse; …

Section 9(2) of the Penalties and Sentencing Act 1992 (Qld) similarly provides that ‘[i]n sentencing an offender, a court must have regard to’, among other things:

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(d) the extent to which the offender is to blame for the offence; and … (g) the presence of any aggravating or mitigating factor concerning the offender; and … (p) if the offender is an Aboriginal or Torres Strait Islander person—any submissions made by a representative of the community justice group in the offender’s community that are relevant to sentencing the offender, including, for example— (i) the offender’s relationship to the offender’s community; or (ii) any cultural considerations …

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In both Acts the long lists of sentencing factors are expressly made non-exhaustive.129 But despite the several strong arguments favouring the consideration of First Nations traditions and customs in sentencing, the Commonwealth Government has expressed opposition to the practice.130 In 2006, legislation131 was passed which removed from s 16A(2)(m) of the Crimes Act 1914 (Cth) the requirement that ‘cultural background’ be considered at sentencing, replacing it with a prohibition against such consideration. The sentencing court ‘must not take into account any form of customary law or cultural practice as a reason for … excusing, justifying, authorising, requiring or lessening the 126 127 128

129 130

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(2009) 231 FLR 180. Ibid 184 [17]. Joshua v Thomson (1994) 119 FLR 296 [39]; Heather Douglas, ‘Customary Law, Sentencing and the Limits of the State’ (2005) 20 Canadian Journal of Law and Society 141. Penalties and Sentencing Act 1992 (Qld) s 9(2)(r); Crimes (Sentencing) Act 2005 (ACT) s 33(3). See Jack Maxwell, ‘ “Two Systems of Law Side by Side”: The Role of Indigenous Customary Law in Sentencing’ (2015/2016) 19 Australian Indigenous Law Review 97. Northern Territory National Emergency Response Act 2007 (Cth) (‘NTNERA’).

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seriousness of the criminal behaviour to which the offence relates’.132 This restriction is now contained in ss 16A(2A) and 16AA(1) of the Crimes Act 1914 (Cth) for federal and Northern Territory offences respectively. Southwood  J considered the meaning of this amendment in Wunungmurra.133 The  defendant intended to plead guilty to aggravated assault. Southwood  J needed to determine whether, at sentencing, he could consider evidence from an Elder in the offender’s community indicating that the defendant was a Dalkaramirri, a senior person within the clan group, similar to a magistrate.The evidence would indicate that it was the defendant’s role to enforce traditional Aboriginal law, and that he had acted in accordance with this law when he did the actions constituting the offence. Southwood J held that the new provision ‘precludes a sentencing court from taking into account customary law or cultural practice as a basis for finding that an offender who acted in accordance with traditional Aboriginal law is less morally culpable because of that fact’.134 He added:

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The fact that legislation might be considered unreasonable or undesirable because it precludes a sentencing court from taking into account information highly relevant to determining the true gravity of an offence and the moral culpability of the offender, precludes an Aboriginal offender who has acted in accordance with traditional Aboriginal law or cultural practice from having his or her case considered individually on the basis of all relevant facts which may be applicable to an important aspect of the sentencing process, distorts the well-established sentencing principle of proportionality, and may result in the imposition of what may be considered to be disproportionate sentences, provides no sufficient basis for not interpreting [what is now Crimes Act 1914 (Cth) s 16AA(1)] in accordance with its clear and express terms. The Court’s duty is to give effect to the provision.135

EQUALITY UNDER THE LAW This issue — whether the sentencing court should or should not consider a First Nations offender’s cultural background — highlights the distinction between formal and substantive equality.136 It may be objected that provisions that require sentencing courts to take account of the traditional culture of First Nations offenders137 introduce an inequality as they refer to a consideration that is not applicable to other offenders. On this view, ‘[t]he law would be fragmented on the basis of race, which implies inbuilt biases that deny equal treatment in contradiction of the doctrine of the rule of law.’138 Such a view argues that provisions like s 16AA(1) of the Crimes Act 1914 (Cth), which limits a sentencing court’s ability to take account of an offender’s First Nations culture, further legal equality, because they have the effect of ‘one law applied to all Australians’.139 132 133 134 135 136

137 138

139

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Ibid s 91 (emphasis added). Wunungmurra (n 126). Ibid 185 [24]. Ibid 185 [25]. See generally, Sandra Fredman, ‘Substantive Equality Revisited’ (2016) 14 International Journal of Constitutional Law 712. See, eg, Penalties and Sentencing Act 1992 (Qld) s 9(2)(p). Editorial,‘Race-based Law Reform Ideas Are Fraught with Hazards’, The West Australian (Perth, 8 February 2006) 16, quoted in LRCWA (n 124) 8. Joe Ludwig, Shadow Attorney-General (NT), ‘Customary Law’ (Press Release, 2 November 2007), expressing qualified support for the Northern Territory Intervention (see 4.51ff).

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These arguments against the consideration of culture, custom and tradition at sentencing are premised on a narrow notion of formal equality,‘yet an emphasis on formal equality can in practice serve to create or perpetuate inequality before the law’.140 Formal equality ignores the differences between individual cases. Like cases are treated alike, but so are unlike cases. The equality that is sought by the rule of law is substantive equality, which takes account of individual differences. Like cases are treated alike, and allowances are made in unlike cases.141 As Bell  J observed in Maloney v The Queen (‘Maloney’),142 ‘ “formal equality” is insufficient to eliminate all forms of racial discrimination’. For the criminal justice system to provide First Nations people with substantive equality, it is necessary to take into account the reasons for their ‘entrenched disadvantage … [including] historical factors such as dispossession and exclusion from traditional lands, the impact of past government policies of assimilation and child removal, and the breakdown of cultural authority and traditional law’.143 Provisions like s 16AA(1) of the Crimes Act 1914 (Cth), which prevent these factors from being considered, deny First Nations people substantive equality. The Commonwealth Parliament passed the Racial Discrimination Act 1975 (Cth) (‘RDA’) to comply with Australia’s obligations under the International Convention on the Elimination of All Forms of Racial Discrimination:144 see 3.37–3.39. Section 10 of the RDA seeks to guarantee equality under the law. It renders ineffective any law by which persons of a particular race, colour or national or ethnic origin do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin, or enjoy a right to a more limited extent than persons of another race, colour or national or ethnic origin.

Section 8 follows the Convention in creating an exception for ‘special measures’, defined as special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms …145 Copyright © 2020. LexisNexis Butterworths. All rights reserved.

The ALRC’s Pathways to Justice report endorsed provisions that allow for First Nations background to be considered in sentencing: Sentencing legislation should provide that, when sentencing Aboriginal and Torres Strait Islander offenders, courts take into account unique systemic and background factors affecting Aboriginal and Torres Strait Islander peoples.146

It expressed the view that this would not contravene s 10 of the RDA because sentencing courts already have the obligation to consider all relevant matters, including those f lowing from an offender’s ethnicity.147 Such provisions merely seek to ensure 140 141

142 143 144

145 146 147

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LRCWA (n 124) 8 (emphasis in original). See, eg, Robert Walker, ‘Treating Like Cases Alike and Unlike Cases Differently: Some Problems in AntiDiscrimination Law’ (2010) 16 Canterbury Law Review 201. (2013) 252 CLR 168, 247 [212]. LRCWA (n 124) 9; see also Maxwell (n 130) 106. International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature on 21 December 1965 (entered into force on 2 January 1969). Ibid art 1(4). ALRC Pathways to Justice (n 84) 14, Recommendation 6–1. Ibid 211 [6.101].

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that First Nations offenders enjoy the benefit of this approach. However, if there were any doubt about this, they could be viewed as special measures under s 8. Instead it is ss  16A(2A) and 16AA(1) of the Crimes Act 1914 (Cth) that appear inconsistent with the RDA’s right to equality before the law. In limiting sentencing courts’ ability to consider a First Nations offender’s culture and traditions, these provisions deny such offenders the benefit of a consideration that is available to offenders generally.148 These provisions cannot be justified as a special measure under s 8 of the RDA. Despite the occasional ill-informed suggestion to the contrary, there is no proper evidence that customary law increases the level of violence in First Nations communities.149 On the contrary, violence in First Nations communities is associated with the breakdown of traditional culture, including customary law.150 Despite their discriminatory effect, ss  16A(2A) and 16AA(1) remain in force. It is clear that s 10 of the RDA would render ineffective discriminatory state and territory laws, because Commonwealth laws override state151 and territory legislation to the extent of any inconsistency.152 But the Crimes Act 1914 (Cth) provisions were introduced by later Commonwealth legislation. Even though RDA s  10 is expressed to extend to Commonwealth laws, the rights in RDA are not entrenched, and may be overridden by subsequent Commonwealth legislation.153 It seems that the discriminatory provisions of the Crimes Act 1914 (Cth) are valid despite the RDA.154

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EXERCISE 4: SENTENCING OF FIRST NATIONS OFFENDERS

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The sentencing of First Nations offenders often involves the need to balance the principle of equality before the law with a consideration of the particular circumstances of disadvantage in many First Nations communities. How well do you think these competing considerations are balanced by the principles enunciated in Fernando and Bugmy? Can Indigenous sentencing courts and the recognition of First Nations customary law, as favoured by Southwood J in Wunungmurra, be reconciled with the notion that the same law applies to all?

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Northern Territory Intervention In 2007 the Federal Government under John Howard conducted a broad Northern Territory Intervention in response to concerns about high levels of crime in First Nations communities.155 The Northern Territory National Emergency Response Act 2007 (Cth)

148 149 150 151 152

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155

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Maxwell (n 130) 106. See LRCWA (n 124) 13; Maxwell (n 130) 105. See LRCWA (n 124) 22; Maxwell (n 130) 106. Australian Constitution s 109 (see 3.20). Australian Capital Territory (Self-Government) Act 1988 (Cth) s 28(1); Attorney-General (NT) v Hand (1989) 25 FCR 345, 366–7. George Williams and Daniel Reynolds, ‘The Racial Discrimination Act and Inconsistency under the Australian Constitution’ (2015) 36 Adelaide Law Review 249–52. Dennis Pearce, Statutory Interpretation in Australia (LexisNexis Butterworths, 9th ed, 2019) 284; cf Maxwell (n 130) 107. One trigger was the Little Children are Sacred’: Report of the Northern Territory Board of Inquiry into the Protection of Aboriginal Children from Sexual Abuse (Report, 30 April 2007). However, this report was misrepresented

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(‘NTNERA’) and related Commonwealth Acts, in addition to the discriminatory sentencing provisions (see 4.44ff), imposed a variety of restrictions and controls on a number of First Nations communities in the Northern Territory. Property rights were suspended to enable the government to step in and improve the standard of housing and infrastructure. Welfare payments were quarantined with value transferred to a store card that could be spent only on basic necessities. Restrictions were imposed on the availability of alcohol and pornography on the basis that their use was linked with violence against women and children.‘Indigenous violence or child abuse’ was defined as a ‘federally relevant crime’ with the result that First Nations people (‘on par with outlawed motorcycle gangs, international crime syndicates and terrorists’156) were made susceptible to the Australian Crime Commission’s strong investigative powers. In line with its ‘emergency response’ label, NTNERA included a sunset provision under which many of the Act’s provisions would cease to have effect after five years.157 In 2012, the NTNERA was repealed by the Gillard Government; however, many of its policies and provisions were embodied in the Stronger Futures in the Northern Territory Act 2012 (Cth) (‘SFNTA’) and related legislation. These provisions raise the question, considered above in connection with sentencing laws, whether these discriminatory measures are consistent with the RDA. In his annual report in 2007, the Aboriginal and Torres Strait Islander Social Justice Commissioner,Tom Calma, raised a number of ‘significant human rights concerns’ with the Intervention.158 He noted that ‘[t]he NT intervention seeks to address a breakdown in law and order in Aboriginal communities. And yet it potentially involves introducing measures that undermine the rule of law’.159 As originally passed, s 132(1) of the NTNERA provided that the Act and acts done under it ‘are, for the purposes of the Racial Discrimination Act 1975, special measures’. However, at the same time s 132(2) provided that the Act and acts done under it ‘are excluded from the operation of … the Racial Discrimination Act 1975’. This suggests that the Howard Government was not entirely confident that the discriminatory provisions of the Intervention could be justified as special measures and chose not to leave this question for the courts to determine. Following a complaint by affected First Nations people in early 2009, the United Nations Committee on the Elimination of Racial Discrimination questioned whether Australia was complying with its obligations under the Convention.160 In November 2009 the Rudd Government acknowledged that [the Northern Territory Emergency Response] will not achieve robust long-term outcomes if it continues to rely on the suspension of the Racial Discrimination Act. The reinstatement of the RDA — coupled with effective partnership arrangements with communities —

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and the measures adopted by the Federal Government went far beyond its recommendations: Maxwell (n 130) 105–6. Peter Billings, ‘Mind the Gap: Public Power, Accountability and the Northern Territory Emergency Response’ (2010) 17 Australian Journal of Administrative Law 132, 140. NTNERA (n 131) s 6. Aboriginal and Torres Strait Islander Social Justice Commissioner, 2007 Social Justice Report (Report, Human Rights and Equal Opportunity Commission, 11 February 2008) 197. Ibid 248. Letter from Fatimata-Binta Victoire Bah, Chairperson of the Committee for the Elimination of Racial Discrimination, to the Australian Representative to the United Nations in Geneva (13 March 2009).

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CHAPTER 4 FIRST NATIONS AUSTRALIANS AND THE AUSTRALIAN LEGAL SYSTEM

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will serve to restore dignity to communities and give them the backing and incentive to become involved in driving long-term solutions.161

In 2010, s  132 of the NTNERA was repealed. The Act currently governing the Intervention, the SFNTA, provides in s 4A that ‘[t]his Act does not affect the operation of the Racial Discrimination Act 1975’. Can the provisions targeting First Nations people be upheld on the basis that they constitute ‘special measures’ under s 8 of the RDA?162 In 2010, UN Special Rapporteur James Anaya noted that ‘[o]rdinarily, special measures are accomplished through preferential treatment of disadvantaged groups … and not by the impairment of the enjoyment of their human rights’.163 Similarly, Aboriginal and Torres Strait Islander Social Justice Commissioner Mick Gooda suggested that ‘a measure that seeks to provide a benefit to a racial group or members of it, but operates by limiting certain rights of some or all of that group, is unlikely to be a special measure if the consent of the group has not been obtained’.164 As a matter of general principle, such restrictions would appear justifiable only in narrow circumstances — where they are a proportionate means of furthering the equal enjoyment of human rights.165 The question of whether these kinds of provisions can constitute a special measure was considered by the High Court in Maloney.166 The case concerned alcohol restrictions in Queensland, similar to those in the Northern Territory Intervention. Palm Island, a predominantly First Nations community, had been designated a restricted area under the Liquor Act 1992 (Qld). The possession of liquor, other than light or mid-strength beer, was prohibited. The appellant, Joan Maloney, a First Nations resident of Palm Island, had been found by police to be in possession of two bottles of spirits; she was convicted under s 168B of the Act and fined $150. In the High Court Ms Maloney argued that the legislation was inconsistent with s 10 of the RDA and invalid. In response, the Queensland Government primarily relied on the argument that restricting the possession of alcohol was a special measure permitted by s 8 of the RDA. A majority held that the Liquor Act 1992 (Qld) operated to deny the equal enjoyment of rights on the basis of race, in contravention of s  10 of the RDA.167 Although the restriction operated by reference to a geographical area and made no specific reference to First Nations people, its effect was that the First Nations community on Palm Island

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Australian Government, Policy Statement: Landmark Reform to the Welfare System, Reinstatement of the Racial Discrimination Act, and Strengthening of the Northern Territory Emergency Response (2009) 2. If the Intervention measures were found to be inconsistent with RDA s 10 and not warranted as special measures, it is difficult to determine what the result would be. In view of SFNTA s 4A, the position would be less straightforward than with regard to Crimes Act 1914 (Cth) ss 16A(2A) and 16AA(1): see 4.44ff. James Anaya, Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People, Addendum: Situation of Indigenous Peoples in Australia (15th sess, UN Doc A/HRC/15/37/ Add.4, 2010) Appendix B [21]. Mick Gooda, Aboriginal and Torres Strait Islander Social Justice Commissioner, 2010 Native Title Report (Australian Human Rights Commission, 2011) 70, citing Australian Human Rights Commission, Draft Guidelines for Ensuring Income Management Measures Are Compliant with the Racial Discrimination Act (11 November 2009) [84]. Peter Billings and Anthony Cassimatis, ‘Re-designing the Northern Territory Emergency Response: Social Welfare Reform and Non-Discrimination’ (2009) 27 Law in Context 58, 77; see also Walker (n 141) 210. Maloney (n 142). Ibid.

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could not enjoy the right to possess and consume alcohol to the extent enjoyed by other (predominantly non-Indigenous) Queensland adults.168 The Court unanimously held, however, that the restriction on the possession of alcohol qualified as a special measure under s  8, and so was not inconsistent with the RDA. The evidence before the court demonstrated ‘the existence of violence and public disorder in certain communities caused by the misuse of alcohol’.169 How to respond to this problem is ‘at least in some respects, a political question’.170 As Crennan J noted, there are ‘democratic mechanisms by which representative governments resolve contested policy’.171 There are differences between judgments as to how deferential the Court, in assessing proportionality, should be to Parliament’s choices. Bell J held that it was sufficient that the legislative restriction has ‘as its sole purpose the adequate advancement of a racial group or individuals who are in need of protection in order to attain equality in the enjoyment of rights’.172 Taking a stricter approach, Hayne J held that if ‘the same result could be achieved in a way that is less restrictive of the rights and freedoms of the group or individuals in question’ the restrictions should not be upheld.173 The Court rejected the proposition, advanced by the appellant, that for a restriction to constitute a special measure under s 8 there had to be consultation with the affected community prior to the introduction of the restriction.174 But, while not a strict requirement, the fact of consultation was considered relevant to whether the restriction was a special measure.175 In this case the Queensland Government had conducted some consultations with the Palm Island community, but the community was divided as to what alcohol restrictions, if any, should be adopted.176 The appellant questioned whether the consultations were sufficient.177 However, overall the court upheld the alcohol restrictions as proportionate special measures. The types of measures adopted on Palm Island and in the Northern Territory Intervention continue to be controversial. In 2011 the Australian Government sought to strengthen the protection of human rights by introducing the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth): see 3.60. Under this Act, the Parliamentary Joint Committee on Human Rights is empowered to scrutinise Bills for their compatibility with human rights.The Committee reported on the SFNTA in 2013,178 highlighting areas of concern and recommending a continuing close evaluation. Following a further inquiry, the Committee reported again in March 2016179 and raised concerns about whether some of 168

169 170 171 172 173 174 175 176 177 178

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See, eg, ibid 191 [39] (French CJ). Interestingly, Kiefel J dissented on this initial point, holding that ‘the relevant freedom [to possess and consume alcohol] cannot be said to evoke some value common to all societies and therefore to qualify as a human right’: ibid [157]. Ibid 223 [139] (Crennan J). Ibid 209 [95] (Hayne J), quoting Gerhardy v Brown (1985) 159 CLR 70, 138 (Brennan J). Maloney (n 142) 222 [135]. Ibid 259 [246]. Ibid 211 [102]. See, eg, ibid 208 [91] (Hayne J), 222 [135] (Crennan J). See, eg, ibid 186 [25] (French CJ). Ibid. See, eg, ibid 254 [231] (Bell J). Commonwealth Parliamentary Joint Committee on Human Rights, Stronger Futures in the Northern Territory Act 2012 and Related Legislation (Report, 27 June 2013). Commonwealth Parliamentary Joint Committee on Human Rights, 2016 Review of Stronger Futures Measures (Report, 16 March 2016).

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the more stringent measures of the Intervention were justifiable. While considering that the provisions regarding customary law were likely to be compatible with the right to a fair trial and the right to equal treatment, the Committee recommended a review to confirm this.180 The Committee questioned whether the alcohol restrictions and income management scheme were ‘effective, and genuinely tailored to the needs and wishes of the local community’.181 As at 18 June 2020, the Federal Government had not responded to the report.182 In February 2020, the Castan Centre for Human Rights Law at Monash University, led by Dr Stephen Gray, published an evaluation of the Northern Territory Intervention.183 The Intervention was awarded an overall score of 4 out of 10, with the note that the Intervention measures ‘have been highly criticised [for infringing various human rights] including the right to freedom from racial discrimination, the right to self-determination, the right to be consulted, the right to social security, the rights of children, and freedom from genocide’.184 In 2017, Greens Senator Rachel Siewert suggested ‘the heavy-handed, punitive, top-down approach of the Intervention was always doomed to fail’.185 She was particularly critical of its paternalism:

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It was yet another example of bureaucrats and politicians in Canberra assuming that they knew what was best … [The Government] must … enable Aboriginal and Torres Strait Islander peoples … to lead the way in addressing social injustice and disadvantage. [They] already have many of the answers. Governments just need to listen.186

The need for Australian governments to listen to First Nations communities in order to find practical effective solutions is emerging as a key theme in First Nations law reform. There are signs that, in this respect, government policy is changing. In his Closing the Gap Statement to Parliament in February 2020, Prime Minister Scott Morrison identified the underlying problem with past programs as being ‘the belief that we knew better than our Indigenous peoples’.187 He said there must be a greater willingness to ‘push decisions down to the people who are closest to them. Where the problems are, and where the consequences of decisions are experienced.’188 The Prime Minister acknowledged calls for a First Nations voice to government to be given constitutional status. The evolving position of First Nations Australians in the Australian Constitution is discussed in the next section.189

180 181 182 183

184 185 186 187

188 189

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Ibid [2.25]–[2.26]. Ibid [3.56], [4.104]–[4.105]; see also Recommendations 1–5. Commonwealth, Parliamentary Debates, House of Representatives, 18 June 2020, 4896. Stephen Gray, The Northern Territory Intervention: An Evaluation (Castan Centre for Human Rights Law, Monash University, February 2020). Ibid 5. Rachel Siewert, ‘Ten Years of Intervention’ (2017) 148 (June) Arena Magazine 5, 5. Ibid. Commonwealth, Parliamentary Debates, House of Representatives, 12 February 2020, 21 (Scott Morrison, Prime Minister). Ibid. Ibid 24–25.

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LAYING DOWN THE LAW

This poster, produced by the Australian Council of Salaried and Professional Associations, an affiliate of the National Council for the Advancement of Aborigines and Torres Strait Islanders, recommended voting ‘yes’ in the 1967 referendum, to remove discrimination from the Australian Constitution: MS 7992, Christophers Papers. Reproduced by kind permission of the National Library of Australia.

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First Nations Australians and the Australian Constitution THE RACE POWER AND THE 1967 REFERENDUM The NTA and the Intervention legislation are pieces of Commonwealth legislation that specifically target First Nations Australians. The Commonwealth’s power to pass such legislation is found in the ‘race power’ in s 51(xxvi) of the Australian Constitution. This provision gives the Commonwealth Parliament power to legislate with respect to ‘the people of any race for whom it is deemed necessary to make special laws’. The NTA clearly falls within this head of legislative power. As six members of the High Court recognised in Western Australia v Commonwealth:190

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The Act … secures the Aboriginal people and Torres Strait Islanders in the enjoyment of their native title subject to the prescribed exceptions … The Act confers its protection upon native title holders who, ex hypothesi, are members of a particular race. As ‘(t)he relationship between the Aboriginal people and the lands which they occupy lies at the heart of traditional Aboriginal culture and traditional Aboriginal life’, the significance of security in the enjoyment of native title by the Aboriginal people of Western Australia who hold native title is undoubted.191

The race power as it initially appeared in the Constitution would not have allowed the NTA to be passed. Section 51(xxvi) originally gave the Commonwealth power to legislate with respect to ‘the people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws’ (emphasis added). The italicised words were removed by the Constitutional Alteration (Aboriginals) Act 1967 (Cth). The original provision left ‘regulation [of the First Nations peoples] to the States. It may have had the effect of protecting them from any risk of the misuse of the race power by the new Federal Parliament’.192 But of course it left them at the risk of mistreatment by state law without the possibility of Commonwealth intervention. A second change brought by the 1967 constitutional referendum was to delete s 127 of the Constitution, which was concerned with the Federal Government’s running of the national census.The section provided: ‘In reckoning the numbers of the people of the Commonwealth, or of a State or other part of the Commonwealth, aboriginal natives shall not be counted.’ Initially this provision may simply have reflected the practical difficulty of counting people living in remote First Nations communities;193 however, the provision was also a further ‘symbolic exclusion of Indigenous people from “membership of the Federal community” ’.194 Indeed, the exclusion was not merely symbolic. Section  127 weakened the voting power of First Nations Australians. Many had been disenfranchised in the Northern Territory, Queensland, Western Australia and the Commonwealth right

190 191

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(1995) 183 CLR 373. Ibid 459 [93] (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ), quoting Commonwealth v Tasmania (1983) 158 CLR 1, 274–5 (Deane J). Kartinyeri v Commonwealth (1998) 195 CLR 337, 403 [136] (Kirby J) (‘Kartinyeri’). Dylan Lino, ‘Indigenous Recognition’ in Rosalind Dixon (ed), Australian Constitutional Values (Hart, 2018) 243, 247. Ibid 245, quoting from J Quick and R Garran, The Annotated Constitution of the Australian Commonwealth (1901) 957.

4.60 race power: the Commonwealth’s power to legislate with respect to the people of a particular race, provided by s 51(xxvi) of the Constitution

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disenfranchise: to deny representation or a voice; in the political context, to deny the right to vote

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up until the early 1960s195 — First Nations Australians covered by protection regimes ‘had no part to play in the constitutionally prescribed system of government’.196 By the mid-1960s First Nations Australians had the right to vote in all elections in Australia, but s 127 reduced the power of their vote. This was because electoral districts for the Commonwealth House of Representatives are created by reference to the population as revealed in the census. Until First Nations Australians were properly counted, the votes of people in electorates with large Aboriginal or Torres Strait Islander populations were effectively given less weight. Section  127’s exclusion of First Nations Australians was increasingly recognised as discriminatory.197 The 1967 constitutional amendment removed this element of discrimination. It is very difficult to bring about change in the Constitution (see 3.2), but the 1967 amendments were passed by a record majority of 90% of Australian voters. It is ironic that an element of racial discrimination in the Constitution was removed by an amendment that, in part, extended Parliament’s power to pass laws that discriminate on the basis of race. The NTA, of course, is a clear case of positive discrimination. The question arises as to whether the race power also allows for legislation that discriminates in an adverse way. This question was considered by some members of the High Court in Kartinyeri v Commonwealth.198 This case arose out of the long-running political and legal dispute about the development of Hindmarsh Island, an area of special significance to the local First Nations community. The case specifically concerned the constitutional validity of the Hindmarsh Island Bridge Act 1997 (Cth) which removed the Island from the protection of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth). The First Nations plaintiffs claimed that this discriminated against them in an adverse fashion, and was therefore not authorised by the race power. There were four judgments in the case, each following a different line of reasoning. Only Kirby J decided the case by reference to the race power. In interpreting s 51(xxvi) he had regard to the historical importance of the 1967 constitutional amendment to this section.

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The stated purpose here was to remove two provisions in the Constitution which … discriminated against Australian Aboriginals. … To construe the resulting power in par  (xxvi) as authorising the making of laws detrimental to, and discriminatory against, people on the ground of race, and specifically Aboriginal race, would be a complete denial of the clear and unanimous object of the Parliament in proposing the amendment to par (xxvi). It would amount to a refusal to acknowledge the unprecedented support for the change, evident in the vote of the electors of Australia.199

Kirby J, dissenting, held the Act invalid. The other five Justices decided against the plaintiffs on other grounds. While not necessary to their decision, Gummow and Hayne JJ rejected Kirby J’s view that the 1967 amendment introduced this limitation on the race power.200 Gaudron J also rejected the notion that the race power is 195

196 197 198 199 200

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Welfare Ordinance 1953 (NT); Election Acts Amendment Act 1965 (Qld); Electoral Act Amendment Act 1962 (WA); Commonwealth Electoral Act 1962 (Cth). Kruger v Commonwealth (1997) 190 CLR 1, 142–3 (McHugh J). Kartinyeri (n 192) 405 [139] (Kirby J); Lino (n 193) 245. Kartinyeri (n 192). Ibid 413 [157]. Ibid 382 [91].

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CHAPTER 4 FIRST NATIONS AUSTRALIANS AND THE AUSTRALIAN LEGAL SYSTEM

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strictly limited to the making of ‘beneficial laws’. However, she suggested that, given the material disadvantage suffered by First Nations communities and the threats to their culture, ‘prima facie, at least, only laws directed to remedying [First Nations] disadvantage’ would be likely to be within power.201 CONSTITUTIONAL RECOGNITION OF FIRST NATIONS AUSTRALIANS The 1967 amendment removed aspects of the Constitution that discriminated against First Nations Australians. For decades there have been demands that the Constitution be changed further, to give First Nations Australians positive recognition.202 In 1999 a constitutional referendum proposed adding a preamble to the Constitution, ‘honouring Aborigines and Torres Strait Islanders, the nation’s first people, for their deep kinship with their lands and for their ancient and continuing cultures which enrich the life of our country’.203 However, the significance of this acknowledgment was weakened by other references to ‘Australians from many ancestries; … the sacrifices of all who defended our country and our liberty in time of war; … [and] the nation-building contribution of generations of immigrants’ among many other things. It was also to be accompanied by a new s 125A providing that the preamble would have ‘no legal force’. The proposed amendment was not passed at referendum. In fact, it did not pass in a single state, and received less than 40% of the overall vote. This may have been, in part, because the preamble question was accompanied by a second proposed constitutional amendment, to adopt a particular model of republicanism. The republic amendment also failed to pass, but the preamble received even less support. Perhaps the ‘honouring’ of First Nations Australians in the proposed preamble was rejected as empty, heavily qualified symbolism.204 Political support for constitutional recognition has grown in recent years. The Australian Government broke its 2010 pledge to hold a referendum on a suitable amendment no later than the 2013 federal election.205 However, the issue remains high on the political agenda, having recently been the subject of consideration by an Expert Panel206 and a Referendum Council,207 both government-sponsored, and two Parliamentary Joint Select Committees.208 A crucial recent development is the Uluru Statement from the Heart (‘Uluru Statement’),209 which reflects a consensus among First Nations communities as to what constitutional recognition should include. 201 202 203 204

205

206

207 208

209

4.63

4.64

Ibid 367 [44]. Murray Gleeson, Recognition in Keeping with the Constitution (Uphold and Recognise, 2019) 5. Constitution Alteration (Preamble) Bill 1999 (Cth). However, these kinds of changes were made to some state constitutions: Constitution Act 1902 (NSW) s 2; Constitution of Queensland 2001 preamble (c) and (e), s 3A; Constitution Act 1975 (Vic) s 1A. Anne Twomey, ‘Constitutional Recognition of Indigenous Australians in a Preamble’ (Report No 2, Constitutional Reform Unit, Sydney Law School, September 2010) 5. Expert Panel on Constitutional Recognition of Indigenous Australians, Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution (Report, Department of Prime Minister and Cabinet, 2012). Referendum Council, Parliament of Australia, Final Report of the Referendum Council (2017). Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples, Parliament of Australia, Final Report (2015); Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples, Parliament of Australia, Final Report (2018). Uluru Statement from the Heart (2017 National Constitutional Convention) .

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4.65

The Uluru Statement was agreed upon at a national convention held at Uluru in May 2017 following a series of dialogues around the country.210 While just one page long, it contains considerable wisdom and power.The Uluru Statement begins with the recognition of First Nations sovereignty, which ‘has never been ceded or extinguished’, acknowledges that First Nations sovereignty ‘co-exists with the sovereignty of the Crown’ and calls for ‘a  Makarrata Commission to supervise a process of agreement-making between governments and First Nations’.211 This suggestion appears appropriate given the High Court’s recognition that Australia was not terra nullius at the time of settlement: see 4.4. Furthermore, as Gordon J recently noted in Love v Commonwealth;Thoms v Commonwealth (‘Love and Thoms’): ‘It was the dispossession of Aboriginal Australians, starting in 1788 and expanding “parcel by parcel”, that underwrote the development of this nation.’212 The Uluru Statement proposes that the historical injustice be acknowledged so as to provide a basis for a ‘fair and truthful relationship with the people of Australia’.213 Looking ahead to a ‘better future for our children based on justice and self-determination’ the Uluru Statement calls for a ‘First Nations Voice enshrined in the Constitution’.214 The Uluru Statement has received broad support,215 including from the two most recent former High Court Chief Justices216 and from the Law Council of Australia,217 the peak body for the Australian legal profession. The Referendum Council ‘made a single proposal for constitutional change, based upon [the Uluru] Statement’.218 It recommended that ‘a referendum be held to provide in the Australian Constitution for a representative body that gives Aboriginal and Torres Strait Islander First Nations a Voice to the Commonwealth Parliament’.219 However, the Uluru Statement did not receive the support of then Prime Minister, Malcolm Turnbull, who objected that this new body ‘would inevitably become seen as a third chamber of Parliament’, and one which, with its narrow constituency, is less representative than the existing chambers.220 It has been pointed out that this objection misunderstands the proposal. Former Chief Justice Murray Gleeson noted that it is a ‘voice to Parliament, not a voice in Parliament [and could] be achieved without legal derogation from parliamentary supremacy’.221 Further, the 210 211 212 213 214 215 216

217 218 219 220

221

114

See Lino (n 193) 252. Uluru Statement (n 209). Love and Thoms (n 1) [337] (Gordon J), quoting from Mabo [No 2] (n 4) 69. Uluru Statement (n 209). Ibid. Referendum Council (n 207) [3.6]. Gleeson (n 202); Robert French, ‘Voice of Reason Not Beyond Us’, The Australian (Sydney, 31 July 2019); Gabrielle Appleby, ‘ “A Worthwhile Project”: Why Two Chief Justices Support the Voice to Parliament, and Why That Matters’, The Conversation (online 1 August 2019) . Law Council of Australia, ‘Uluru Statement Should Be Respected’ (Media Release, 1 November 2019). Gleeson (n 202) 5. Referendum Council (n 207) 2. Dan Conifer et al, ‘Indigenous Advisory Body Rejected by PM in “Kick in the Guts” for Advocates’, ABC News (online, 26 October 2017) . Gleeson (n 202) 12; see also Arthur Moses, ‘The Case for Adopting the Uluru Statement on its Second Anniversary’ (2019) 93 Australian Law Journal 339, 342; Anne Twomey, ‘Putting Words to the Tune of Indigenous Constitutional Recognition’, The Conversation (online, 20 May 20 2015) .

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CHAPTER 4 FIRST NATIONS AUSTRALIANS AND THE AUSTRALIAN LEGAL SYSTEM

Council recommended that the new body’s remit be limited to monitoring and advising the Parliament on its use of the race and territories powers, respectively ss 51(xxvi) and 122 of the Australian Constitution.222 Gleeson noted that this reform

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has the merit that it is substantive, and not merely ornamental. … It would give Indigenous people a constitutionally entrenched, but legislatively controlled, capacity to have an input about the making of laws about Indigenous people or Indigenous affairs.223

As noted at 4.59, the current government has recently expressed recognition that paternalism in First Nations affairs has not worked. In his Closing the Gap Statement to Parliament in February 2020, Prime Minister Scott Morrison observed that ‘when Indigenous people have a say in the design of programs, policies and services, the outcomes are better — and lives are changed’.224 He indicated that the government had adopted the Joint Select Committee’s recommendation that ‘a process of co-design between Aboriginal and Torres Strait Islander peoples and government be initiated in communities across Australia to design a voice that can help deliver practical outcomes for that community’.225 However, the Prime Minister also indicated that the government was not committing, at this point, to entrenching a requirement for the advisory body in the Constitution.226 The Joint Select Committee recommended that ‘following a process of co-design, the Australian Government consider, in a deliberate and timely manner, legislative, executive and constitutional options’.227 As Gleeson observed, ‘there is nothing inherently impossible about providing in the Constitution for an institution before its form is determined’.228 He noted this occurred with the High Court of Australia. While provision was made for the new court in the Constitution in 1901, there were two years of argument before the details of its structure and operation were laid down by Parliament in the Judiciary Act 1903 (Cth). So too with the new advisory body: ‘What would appear in the Constitution would be the minimum requirements necessary to guarantee its continued existence and its essential characteristics.’229 Its ‘structure, composition and functions … would be determined, and susceptible to change, by legislation of the Federal Parliament’.230 There would be many finer details that could be left to legislation. There would be many ‘complexities [in] designing a body that fairly represents Aboriginal Torres Strait Islander people’.231 But, as Arthur Moses, President of the Law Council of Australia, emphasised, the basic requirement for the body must be ‘constitutionally enshrined [otherwise] it could be abolished at any time if the government does not like what it was saying’.232

222 223 224 225

226 227 228 229 230 231 232

4.66

4.67

Referendum Council (n 207) 2. Gleeson (n 202) 14. Commonwealth, Parliamentary Debates (n 187) 23 (Scott Morrison, Prime Minister). Ibid 24; see also Joint Select Committee (2018) (n 208) 77–8; see also Ken Wyatt, Minister for Indigenous Australians, ‘A Voice for Indigenous Australians’ (Media Release, 30 October 2019). Commonwealth, Parliamentary Debates (n 187) 25 (Scott Morrison, Prime Minister). Ibid 119. Ibid 13. Ibid 12. Ibid. Gleeson (n 202) 13. Moses (n 221).

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4.68

4.69

FIRST NATIONS AUSTRALIANS, ALIENS AND THE CONSTITUTION While politicians, experts, and First Nations leaders were considering constitutional change to better recognise First Nations Australians, the High Court was presented with ‘two special cases’ regarding their position under the Constitution in its current form.233 In Love and Thoms, the two plaintiffs, citizens of Papua New Guinea and New Zealand respectively, had had their visas cancelled following their conviction of criminal offences and were facing deportation under migration and citizenship legislation. This legislation had been made under the Commonwealth Parliament’s power to legislate with respect to ‘aliens’.234 The men argued that, in application to them, the legislation was not supported by the aliens power in the Constitution because they are First Nations Australians. While they had not been born in Australia and held foreign citizenship, Mr Love and Mr Thoms claimed to be members of the Kamilaroi people and Gunggari people respectively. By a majority of 4:3235 the High Court accepted the men’s claim that First Nations Australians could not be considered ‘aliens’ under the Constitution. The central meaning of ‘alienage’ is ‘lack of relationship with a country’.236 However, First Nations Australians have a connection with land and waters that is unique … It is a connection which existed and persisted before and beyond settlement, before and beyond the assertion of sovereignty and before and beyond Federation. It is older and deeper than the Constitution.237

The connection to country recognised by the majority is broader than native title, which in many cases has been extinguished.238 Indigeneity of a person is to be determined by the tripartite test from Mabo [No 2], which involves First Nations descent, self-identification, and acceptance by their First Nations community.239 A majority held that Mr Thoms, a native title holder, is Aboriginal and could not be deported, but there was insufficient evidence to assess Mr Love’s position. His case was referred to the Federal Court for determination. EXERCISE 5: FIRST NATIONS AUSTRALIANS AND THE LAW Copyright © 2020. LexisNexis Butterworths. All rights reserved.

4.70

‘The disadvantage suffered by First Nations Australians is recognised as one of the Australia’s most serious and enduring social problems. Unfortunately, over the years, legal responses have been as much a part of the problem as a solution.’ Do you agree? Explain your views by reference to specific legal reforms. What do you think is required for the law to make a more positive contribution?

233 234 235 236

237 238 239

116

Love and Thoms (n 1) 204 [1]. Australian Constitution s 51(xix). Love and Thoms (n 1) (Bell, Nettle, Gordon and Edelman JJ; Kiefel CJ, Gageler and Keane JJ). Ibid 259 [302] (Gordon J), quoting Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178, 183 (emphasis added by Gordon J). Ibid 269 [363] (Gordon J). Ibid 216 [71] (Bell J), 255 [277] (Nettle J), 268–9 [362]–[365] (Gordon J). Ibid 218 [81] (Bell J), 270 [368]–[371] (Gordon J); cf 291 [462] (Edelman J). This tripartite test of Indigeneity was supported in previous High Court decisions: see ibid 253 [271] (Nettle J), 290 [458] (Edelman J).

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CHAPTER 4 FIRST NATIONS AUSTRALIANS AND THE AUSTRALIAN LEGAL SYSTEM

Further reading • Thalia Anthony, Indigenous People, Crime and Punishment (Routledge, 2013). • Toni Bauman and Lydia Glick (eds), The Limits of Change: Mabo and Native • • • • • • •

Title 20 years on (AIATSIS Research Publications, 2012). Larissa Behrendt, Chris Cunneen, Terri Libesman and Nicole Watson, Aboriginal and Torres Strait Islander Legal Relations (Oxford University Press, 2019). Peter Billings (ed), Indigenous Australians and the Commonwealth Intervention (Federation Press, 2011). Sean Brennan et al (eds), Native Title from Mabo to Akiba: A Vehicle for Change and Empowerment? (Federation Press, 2015). Megan Davis and Marcia Langton, It’s Our Country: Indigenous Arguments for Meaningful Constitutional Recognition and Reform (Melbourne University Publishing, 2016). Michael Mansell, Treaty and Statehood: Aboriginal Self-determination (Federation Press, 2016). Bruce Pascoe, Dark Emu: Aboriginal Australia and the Birth of Agriculture (Magabala Books, 2018). David Ritter, Contesting Native Title: From Controversy to Consensus in the Struggle Over Indigenous Land Rights (Allen and Unwin, 2009).

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To enhance your learning experience, use the student resources available on Lexis® Learning See the Visual Preface at the front of this book on how to register.

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5

The Legal Profession and Professional Legal Practice and Ethics There can be no final truth in ethics any more than in physics, until the last man has had his experience and said his say.1 William James, ‘The Moral Philosopher and the Moral Life’, The Will to Believe (1896).

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1

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120

Introduction

5.1

Legal profession

5.3

− Criminal law practitioners

5.8

− Reform of the legal profession

5.11

Understanding and practising law

5.12

− Entry to the legal profession

5.15

− Generic professional conduct requirements

5.17

•

Good fame and character

5.17

•

Level of knowledge, training and skill

5.21

•

Professional conduct rules

5.24

− Dual source of professional duties

5.27

Professional conduct

5.28

− Duty to client

5.29

− Obligations when acting for government

5.31

•

Model litigant rules

5.31

•

Duty to assist

5.34

•

‘Genuine’ steps

5.35

− Duty to court

5.38

− Duty to fellow practitioners and third parties

5.39

− Duty to community

5.41

Ethics

5.42

− Legal ethics

5.43

− Ethical decisions

5.44

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− Sources of ethical conflict

5.47

•

Duty to court versus duty to client

5.47

•

Commercial imperatives versus duty to profession

5.48

•

Duty to community versus personal interests

5.49 5.50

− Ethics of criminal defence

5.53

Conclusion

5.58

EXERCISE 6: Legal professional practice and ethical duties

5.59

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− Ethics of criminal prosecution

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Introduction 5.1

5.2

Chapter 2 discussed the evolution of constitutional law, the court system and the common law, which together form the foundation of the Australian legal system; Chapter  3 provided details of the key institutions and their powers in the Australian legal system. This chapter focuses on another key legal institution, the legal profession. The chapter explores the historical development of the two main branches of the legal profession — barristers and solicitors; the current structure in Australia of those practising law; and proposed reforms to the profession to create a national, rather than a Commonwealth, state and territory legal market. Being a member of a profession such as the legal profession entails certain ethical and legal duties. Law students need to appreciate the tenets of the legal profession early in their careers to avoid disappointment when seeking admission as a barrister or solicitor due to any indiscretion in the past which might bar entry.What will be required for admission involves an understanding of key principles; the mastery of skills such as advocacy, legal writing and research; an awareness of ethical duties inherent in professional practice; and an appreciation of the particular duties that a legal professional owes to their client, the court, their fellow professionals and the community.

Legal profession

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5.3

attorney: lawyer or other representative from the French word à tourner: to stand in one’s turn, or one’s place

5.4 122

Alongside the development of the legal system (Chapter  2) there evolved exponents of that system who could advise on the function of the system, and help negotiate on a person’s behalf before the courts. With the creation of the common law courts in England — the King’s Bench, which travelled with the monarch, and the Common Pleas and Exchequer, which remained at Westminster — came the creation of a corps of professional judges: see 2.10. But litigants — people wanting to make use of the courts’ services — still had to suffer some inconvenience if they were to have justice: they either had to follow the King’s Bench or go to Westminster in London. This led to the growth of another group of people who were allowed to represent litigants and who, like the judges, made their living through the workings of the courts. These people were called attorneys, from the French à tourner: to stand in one’s turn, or one’s place. We see this term reflected in our modern Attorney-General: someone who stands in the Queen’s place for the purposes of conducting the legal business of the government. In the Common Pleas, there developed an even more specialised class of representatives. They were called servientis ad legem (‘servants at law’), which over time became corrupted to ‘serjeants at law’. The serjeants-at-law were the highest-ranking members of the legal profession, and in the social hierarchy came just below knights. Membership in the Order of Serjeants was conferred by the king. In part, the serjeants’ prestige was a result of the fact that they had a monopoly of appearance before the Common Pleas — the place where most litigation took place. So, a de facto division of the legal profession into serjeants-at-law and attorneys had taken place by 1400. The last serjeants were appointed in 1868, and the final member of the Order of Serjeants, Lord Lindley, who went on to become a prominent judge, died in 1921. At the same time, a new class of lawyer — called barristers — was developing. The attorneys were ‘jacks of all trades’ but, because of an increase in litigation, more lawyers

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CHAPTER 5 THE LEGAL PROFESSION AND PROFESSIONAL LEGAL PRACTICE AND ETHICS

who specialised in oral pleading were needed. Although they did not have the royally conferred status of a serjeant, these new specialised oral advocates were permitted to approach the bar of the court, hence the name ‘barrister’. For the sake of professional convenience (and probably also out of a desire for comradeship), the barristers began to take out commercial lodgings in the same area of the West End of London, near the Hall of Westminster. Over time, the practising Bar came to be quartered in four ‘Inns of Court’, as they are known: the Inner and Middle Temples (so called because these inns are located on the site of what was the London home of the Order of Knights Templar), Gray’s Inn and Lincoln’s Inn. Today these four inns remain the organisational basis for the English Bar. All barristers must belong to one of the Inns of Court, and disciplinary proceedings against barristers are conducted by the Inns. In Australia, the English tradition is ref lected in the tendency of barristers to gather together in so-called ‘professional chambers’ in the metropolitan areas. By the 15th century, yet another type of lawyer had evolved. This was someone who today we might think of as a clerk. He (they were always male) helped other lawyers generally, and provided basic advice to people in legal difficulty. In fact, this new branch of the profession was often a stepping stone for young men who wanted to become attorneys, barristers or serjeants. This new type of legal professional was said to help clients by soliciting information on their behalf, and so became known as a ‘solicitor’. For various reasons, however, the work of the attorneys and solicitors became more and more alike and, eventually, all those lawyers whose work was outside the courts became referred to as solicitors.The fact that in America lawyers are still generally called attorneys is an anthropological signpost: it tells us that in the mid-18th century, the time when the Americans broke away from the English legal profession, the description ‘attorney’ was still more common in England than ‘solicitor’. In Australia, Canada and New Zealand, the early lawyers were also often called attorneys, but, because they stayed within the British fold longer, the legal profession in these countries followed the English change in nomenclature. By the late 19th century in England there were two types of lawyers: barristers, who had an exclusive right of audience before the higher courts, and solicitors. In recent years, there have been moves to limit the divide between the two branches so as to open up competition and reduce costs, but this rough division continues to form the basis of the legal profession. In Australia, all jurisdictions have, at least in theory, fused the profession to some degree, enabling a legal practitioner to do the work of both a solicitor and a barrister. Queensland was the last jurisdiction to provide for fusion in its Legal Profession Act 2004. However, in most jurisdictions, legal practitioners generally continue to operate as either a solicitor or a barrister, and all jurisdictions possess a Bar of specialised advocates. A person with tertiary legal qualifications may still elect to become a barrister or solicitor only, or to enrol in both arms of the profession. Within the class of barrister, there is a senior grade of counsel, traditionally called Queen’s Counsel (QC) or King’s Counsel (KC) during the reign of a female or male monarch, respectively. As a mark of their higher status, QCs wore a silk gown in court, rather than a cotton one, thus the expression ‘taking silk’. Beginning in New South Wales  in 1993, all Australian jurisdictions except the Australian Capital Territory, and New Zealand replaced the rank of QC with Senior Counsel (SC); the Commonwealth was the last to make the change in 2010. In recent years, however, jurisdictions such

5.5

5.6

5.7

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as Queensland, Victoria, South Australia and the Commonwealth have reinstated the title of QC. The main argument for returning to the traditional title appears to be the internationalisation of legal practice. Some hold that the title of QC has wider recognition and, perhaps, greater status than SC, particularly in Asian jurisdictions, although others reject this view. The rejection of the second justification may ref lect the fact that some former British colonies in Asia, such as Singapore and Hong Kong, have also adopted the SC description given that the Queen is no longer their head of state.Where reversion has occurred, those who have an SC may retain the title, and in some states and territories, successful applicants may choose which initials they wish to use. In Australia, QCs are appointed by a warrant from the Governor-General or the relevant state Governor, while SCs are appointed by the state or territory bar association or supreme court.

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5.8

summary charge: a charge relating to a summary or minor criminal offence, usually tried before a magistrate, for which the penalty is a short sentence or fine (in contrast to a more serious ‘indictable’ offence, often heard before a judge and jury, and involving heavier penalties)

5.9

CRIMINAL LAW PRACTITIONERS In understanding the evolution of the legal profession, it is necessary to draw a distinction between civil and criminal practice. Through the 16th and 17th centuries, civil procedure was ‘lawyer-suffused’ whereas criminal procedure was ‘lawyer-free’,2 the criminal trial being a ‘relatively unstructured “altercation” between accusers and accused’.3 The role of the public prosecutor had not yet developed and, while defendants may have obtained legal advice, defence counsel was prohibited from playing a significant part in the trial. The active engagement of defence counsel in the trial was limited in the belief that this would benefit the court’s straightforward pursuit of the truth. However, several treason trials of the late 17th century, ending in the execution of innocent persons, revealed that the truth is not always so readily accessible.4 Reforms were introduced to allow treason defendants to be more fully represented by counsel. These reforms gained further momentum with the shift in the 18th century from private to public prosecutions. Since lawyers were increasingly employed on the side of the prosecution, it was recognised that, as a matter of fairness, lawyers should also be allowed on the defence side.5 Criminal defendants were also the beneficiaries of evidentiary safeguards that developed during the 18th century — for example, excluding involuntary confessions, and requiring that the evidence of certain prosecution witnesses be corroborated.The increasingly technical nature of these principles reinforced the need for the parties and the court to have the benefit of expert legal counsel.6 By the beginning of the 19th century, the criminal trial resembled the adversarial civil trial. The development of the modern police force in the 19th century confirmed the need for the rights of suspects and defendants to be safeguarded with the assistance of their lawyers at trial and pre-trial. The legal profession has still not established a strong presence at the lowest tier of the criminal court hierarchy.7 In Australia, the magistrates that hear summary charges in Local and Magistrates Courts are now legal professionals. However, many defendants appearing on summary charges are unable to afford legal representation. In Dietrich

2 3 4 5 6 7

124

John H Langbein, The Origins of Adversary Criminal Trial (Oxford University Press, 2003) 7. Ibid 2. Ibid ch 2. Ibid ch 3. Ibid ch 4. Doreen McBarnet, Conviction (Palgrave Macmillan, 1981) 140.

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CHAPTER 5 THE LEGAL PROFESSION AND PROFESSIONAL LEGAL PRACTICE AND ETHICS

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v The Queen8 the High Court held that, for a trial to be fair, the indigent criminal defendant must be provided with legal representation. However, in practice this proposition has been limited to serious offences. Governments provide funds for defendants unable to afford their own legal representation through Legal Aid bodies, but resource constraints mean that defendants are generally only eligible if they are at risk of receiving a prison sentence, which excludes many summary offences. Legal Aid does provide duty lawyers at the courts, but this scheme offers limited opportunities for advice, preparation and representation. Further, while prosecutions in the higher courts are brought by qualified lawyers working under the auspices of a Director of Public Prosecutions, in many summary prosecutions the Crown is represented by police prosecutors who generally lack legal qualifications. This is problematic in that, as well as lacking legal expertise, police prosecutors may be embroiled, directly or indirectly, in the investigation and have a stake in securing a conviction. At the same time, since they do not have to be legal practitioners, police prosecutors are not bound by the ethical and behavioural duties and responsibilities discussed in this chapter. A number of Royal Commissions and Commissions of Inquiry and other bodies have recommended that prosecutions should no longer be conducted by police.9 In the common law world, Australia, with the exception of the Australian Capital Territory, is one of the few countries still allowing this to occur.10 REFORM OF THE LEGAL PROFESSION In April 2009 the Council of Australian Governments (COAG) initiated the Legal Profession Uniform Law Reform project to create and regulate a national legal profession. In particular, the aim was to achieve uniform laws regulating matters such as admission to the profession and the management of legal practices. The resulting Legal Profession Uniform Law has, however, been adopted only in the Australian Capital Territory, New  South Wales, Queensland, Victoria and Western Australia giving members of the profession in those jurisdictions the benefit of more variety of practice and increased opportunities for work. The remaining jurisdictions have been less enthusiastic, leaving the goal of uniform rules as yet unrealised.

5.10

5.11

Understanding and practising law In addition to legal reasoning skills and knowledge of the law, lawyers must possess professional judgement and an understanding of their professional responsibilities, as requirements for entering professional practice. This side of legal practice is the subject of detailed study in courses which prepare law graduates to join the profession. An introduction to this aspect of the practice of law is provided in this chapter. Any understanding of legal skills and responsibilities must take into account technological development. Technology is having a profound impact on the operation of those in the profession. Lawyers routinely use a variety of online research tools such 8 9

10

5.12

5.13

(1992) 177 CLR 292. Chris Corns, ‘Police Summary Prosecutions in Australia and New Zealand: Some Comparisons’ (2000) 19 University of Tasmania Law Review 280, 295. Ibid 280.

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discovery: an important element of an action brought before a court: discovery of facts comprises answers on oath to questions by one party of another which may be used in evidence; discovery of documents requires one party to file an affidavit of all the documents relevant to the action which are or have been in the party’s possession

as AustLII, Lexis.com and Westlaw: see Chapters 17–19. Access to courts and tribunals, including lodgment of documents, is increasingly through dedicated electronic portals, email and other forms of electronic communication, rather than in-person hearings. The onset of the COVID-19 pandemic in 2020 has led to hearings in most cases being conducted using interactive platforms, video-conferences or other forms of telecommunications, a trend likely to continue. Within law firms, voluminous material is stored in, and can more easily be accessed and manipulated by, lawyers using in-house databases. Much of the drudgery of newly qualified practitioners undertaking discovery — that is, the pre-civil trial listing of all documents relating to an action which are or have been in a party’s possession or control — has been eliminated. While many of these developments have enhanced the efficiency of legal practice, technology has also thrown up many new legal issues for society in general.The increasing range of activities which are carried out online, and potentially recorded and stored, has undermined personal privacy. Consequently, the supra-national operation of some technology platforms often inhibits national legal actions to protect privacy rights of individuals, and has led to calls for removal of entries identifying individuals. Use of drones and surveillance devices may also result in loss of privacy. Automated processes, while a boon for parking enforcement, can be a nightmare for individuals who cannot manage the technology or who face a malfunctioning system. The rapid adoption of automated decision-making can also raise a host of rights’ infringement issues.11 Such systems may displace the exercise of discretion to take account of individual circumstances and block the opportunity for people to complain or explain why the facts in their case did not warrant the legal outcome. Meanwhile, the opacity of decisions based on proprietary algorithms or ‘black box’ machine learning, and inadequate database construction, present further obstacles. The Federal Government’s ‘robodebt’ system illustrates the problem. The Department of Human Services used an automated system to compare social service recipients’ claims of their working hours with tax office information about their employment, and automatically raise a debt notice when it found a discrepancy. However, the system relied on an automated formula to calculate the debt, and put the onus on recipients to prove the debt was incorrect. The government has conceded that the debts had been obtained by an unlawful process. Refunds have commenced to some thousands of those who had been required to repay monies to the Commonwealth.12 A Federal Court class action is scheduled in 2020 to assess whether the Government’s actions were unlawful for all those listed in the class and whether compensation is due to them.13

11

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See, eg, Australian Law Reform Commission, Human Rights and Technology (Discussion Paper, 2019); Administrative Review Council, Automated Assistance in Administrative Decision Making (Report No  46, 2004); Justice Melissa Perry, ‘iDecide: the Legal Implications of Automated Decision-Making’ (Speech, Cambridge Public Law Conference, University of Cambridge, September 2014) . Paul Karp, ‘Robodebt: the Federal Court Ruling and What It Means for Targeted Welfare Recipients’, The Guardian (online, 28  November 2010) . For an exploration of the issues, see Terry Carney, ‘Robo-debt: Challenges and Opportunities for Administration and Accountability’ (2019) 5(1) Social Security Rights Review . Katherine Prygodicz v Commonwealth of Australia (Federal Court of Australia, Murphy J, VID1252/2019) .

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CHAPTER 5 THE LEGAL PROFESSION AND PROFESSIONAL LEGAL PRACTICE AND ETHICS

These and a host of other mechanical or legal issues raise new challenges for those entering the legal profession. Despite the novelty of the technologically-enhanced landscape, the traditional obligations on members of the profession outlined below continue to apply to guide appropriate conduct by lawyers. ENTRY TO THE LEGAL PROFESSION The successful completion of a law degree, or a diploma of law offered by a legal profession admissions authority, opens the door for entry into the legal profession. Those who practise law do so as members of a profession. Traditionally the learned professions were the three vocational occupations of law, medicine and theology. Today, the term ‘profession’ is not so restricted, but what the above professions do have in common is that their practitioners have an obligation to serve the public.That is one of several features that distinguish a profession from other occupations. Individuals are said to become members of a profession as a matter of vocation or calling, and that calling is to serve others. As professionals, lawyers have responsibilities and duties to the courts, to their clients, to the legal profession and to the public. Membership of the legal profession indicates to the community that the person has legal knowledge and skill, but also professional judgement and a grasp of legal ethical rules, including what is regarded by the profession as responsible professional conduct. Former Chief Justice Sir Owen Dixon once shared in a lecture the following insights into professionalism:

5.15

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It is the essence of a profession that its members master and practise an art. The art must depend on a special branch of organised knowledge and be indispensable to the progress or maintenance of society, and the skill and knowledge of the profession must be available to the service of the State or the community. Experience has shown in every age that a profession cannot proceed without high professional standards. Special knowledge is always suspected by those who do not share it. Unless high standards of conduct are maintained by those who pursue a profession requiring great skill begotten of special knowledge, the trust and confidence of the very community that is to be served is lost and thus the function itself of the profession is frustrated.14

GENERIC PROFESSIONAL CONDUCT REQUIREMENTS Good fame and character In order to practise law an applicant must be able to declare, and provide referees prepared to declare, that the applicant for admission is of good fame and character. Students intending to enter practice should be aware of these requirements from the beginning of their law studies and govern their conduct accordingly throughout their studies. On graduation and prior to admission, universities or law admission authorities may be asked to provide any records of a student that reveal wrongdoing during their studies. A person who has been disciplined, for example, for plagiarism or cheating in an examination, or who has been excluded from a course on serious behavioural grounds, may be refused admission. Before admission, an intending lawyer must declare any occasion on which they have been dealt with by a court for a criminal offence. Even minor offences (apart from 14

5.17

5.18

Sir Owen Dixon, ‘The Profession of Accountancy’ in Jesting Pilate (Lawbook, 1965) 192.

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5.20

ombudsman: someone appointed to hear complaints, against both government and private sector bodies which provide services such as denial of government benefits, allowances finance, electricity or water

infringements that have not involved court proceedings, such as parking tickets) must be disclosed. It is wise for students to be circumspect in their behaviour during their legal training so they can confidently swear, and have others confirm, that they meet the prerequisites for entry into the profession. Certifying authorities do not look kindly on later discovery of a misrepresentation of pre-admission behaviour by an existing member of the profession, and failure to disclose leaves the person open to future disciplinary proceedings. The disgraced former barrister at the centre of the ‘Lawyer  X’ scandal conceded that, had she disclosed that she had been implicated, when a student, in a drug bust at her shared f lat, she may not have been admitted as a lawyer.15 A key attribute of the professions is that they are autonomous or self-regulating. That means that it is legal admission authorities, law societies (for solicitors) and bar associations (for barristers) that variously certify a person’s suitability for entry to the profession and issue practising certificates.These bodies, composed of respected members of the profession, are also responsible for the maintenance of professional standards. As part of that role they exercise disciplinary sanctions against existing members of the profession. These professional bodies generally take their responsibilities seriously. However, there have been some controversial cases, such as the Wendy Bacon litigation. In the late 1970s Ms Bacon, a political activist and journalist, had applied to join the New South Wales Bar. Some years prior to her application she provided bail for an accused she was helping to defend. She told the court hearing her admissions appeal that she borrowed the sum from a friend and had not provided it herself. The court found the sum had come from a different source and Ms Bacon’s deceit was fatal to her application to join the Bar, although the vote was apparently a close one.16 Reynolds JA raised the ‘question of whether a person who aspires to serve the law can be said to be fit to do so when it is demonstrated that in the zealous pursuit of political goals she will break the law if she regards it as impeding the success of her cause’.17 There has been criticism of the fact that the profession regulates itself. As a result the regulatory and disciplinary functions of the professional bodies have been supplemented in some jurisdictions by independent ‘watchdogs’ such as the Commissioner for Uniform Legal Services Regulation in New South Wales,18 a kind of ombudsman. The role includes receipt of complaints against the legal profession. Similar bodies have been established in other Australian jurisdictions.19 Lay membership of professional bodies has been included in the disciplinary bodies in some jurisdictions,20 while in others the disciplinary function is now performed by the relevant civil and administrative tribunal.21 15

16 17 18 19

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Australian Associated Press, ‘Nicola Gobbo Grilled Under Oath About How She Became Lawyer  X’, The  Guardian (online, 4  February 2020) . Re B [1981] 2 NSWLR 372. Ibid at 402. Legal Profession Uniform Law (NSW) (NSW) pts 3.6, 8.3, sch 2. Legal Profession Act 2007 (Qld) pt 7; Legal Profession Uniform Law Application Act 2014 (Vic) pt 3 divs 2–4, sch 1. Legal Profession Act 2006 (NT) ch 4; Legal Practitioners Act 1981 (SA) pt 6 div 2; Legal Profession Act 2007 (Tas) ch 4; Legal Profession Uniform Law Application Act 2014 (Vic) pt 3 div 2; Legal Profession Act 2008 (WA) pt 16 div 2. Legal Profession Act 2006 (ACT) ch 4 pt 4.7; Legal Profession Uniform Law (NSW) (NSW) s 101, pts 5.4, 5.6; Legal Profession Act 2007 (Qld) pt 7; Legal Profession Uniform Law Application Act 2014 (Vic) pt 2, s 10; Legal Profession Act 2008 (WA) pt 13 div 10.

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CHAPTER 5 THE LEGAL PROFESSION AND PROFESSIONAL LEGAL PRACTICE AND ETHICS

Level of knowledge, training and skill Certification that a person has met the knowledge standard is the responsibility of tertiary legal education institutions, and legal admission or studies boards. In 1992 the Law Admissions Consultative Committee decided that 11 areas of academic study — administrative law, civil procedure, company law, contracts, criminal law and procedure, equity (including trusts), ethics and professional responsibility, evidence, federal and state constitutional law, property, and torts — are the foundational subjects for admission to the profession in Australia. These are the so-called ‘Priestley 11’ law subjects, named after the then chair of Committee, Justice LJ (‘Bill’) Priestley. Successful completion of the ‘Priestley 11’ is regarded as necessary to ensure that the practitioner has the minimum level of competence to provide the service expected of a member of the legal profession. In addition to these academic qualifications, the aspiring lawyer also needs a certificate, or other qualification, in practical legal training. Historically, that training required the completion of articles — that is, supervised practice in a law firm over a number of years — as the only means of satisfying the requirement. In most states and territories this avenue, as the exclusive route to obtaining a practising certificate, has been abandoned. Today, for the most part, students enrol in courses offered by training authorities, law societies or tertiary institutions, which have substituted for the former articles. The courses comprise a mix of practical legal training and complementary lectures; on successful completion, the student receives a certificate or graduate diploma in practical legal training. Those wishing to be admitted to the Bar must pass a Bar examination and then enter into a pupillage arrangement which involves ‘reading’ with a senior barrister or ‘pupil master’, coupled with a period when the would-be barrister’s legal advices or court representation work is supervised by their pupil master.

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Professional conduct rules Knowledge, skill and training, however, are not all that is required for admission to the profession. Personal behaviour and attributes are also taken into account. These are evident in the national conduct rules which have been developed by each arm of the legal profession, namely solicitors and barristers. The Law Council of Australia, the peak body for the Australian legal profession, developed the Australian Solicitors’ Conduct Rules 2011 (‘Solicitors Rules’), updated in 2015 and reviewed in 2018.22 The Solicitors Rules have been adopted as the Legal Profession Uniform Law in New South Wales, and Victoria,23 and is before the Western Australian Parliament.24They provide a single, uniform set of professional conduct rules that govern solicitors’ professional dealings with all those to whom they owe professional duties. The rules list the factors to be taken into account in deciding whether someone is a fit and proper person to practise law, including whether a person has: • complied with the solicitor’s paramount duty to the court and the administration of justice; 22

23 24

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Law Council of Australia, Review of the Australian Solicitors’ Conduct Rules (Discussion Paper, 1 February 2018) 5. Legal Profession Uniform Law (NSW) (NSW); Legal Profession Uniform Law Application Act 2014 (Vic). Legal Profession Uniform Law Application Bill 2020 (WA).

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• • •

5.26

acted in the best interests of their clients; been honest and courteous in all dealings in the course of legal practice; delivered legal services competently, diligently and as promptly as reasonably possible; • avoided any compromise to their integrity and professional independence; and • complied with the rules and the law.25 Barristers also have conduct rules, the Australian Bar Association’s model Barristers’ Conduct Rules,26 currently enacted only in New South Wales (‘Barristers Rules’).27 The objects of these rules are to ensure that barristers: (a) act in accordance with the general principles of professional conduct, (b) act independently, (c) recognise and discharge their obligations in relation to the administration of justice, and (d) provide services of the highest standard unaffected by personal interest.28

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5.27

DUAL SOURCE OF PROFESSIONAL DUTIES The barristers and solicitors’ conduct rules illustrate that professional conduct is a product of knowledge of the law and an understanding of ethics. Some of these requirements — such as compliance with duties in relation to the administration of justice, including not being fraudulent, dishonest or deceitful — are imposed under the common law or by statute, including specific legislation regulating the profession.29 But moral or ethical requirements such as acting with integrity, independence, impartiality, and being personally blameless are requirements of a higher order. The professional rules contain both legal and ethical standards, but these are treated separately here for ease of understanding. Maintenance of these standards is necessary to ensure that actions by legal practitioners maintain public confidence in the legal profession and the justice system, and do not bring the profession into disrepute. A rationale for these professional standards is illustrated in this classic comment by Griffith CJ in Melbourne Steamship Co Ltd v Moorehead30 when he lamented the taking of a technical pleading point by the Crown: I am sometimes inclined to think that in some parts — not all — of the Commonwealth, the old-fashioned, traditional, and almost instinctive, standard of fair play to be observed 25 26

27 28 29

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Law Council of Australia, Australian Solicitors’ Conduct Rules (August 2015) (‘Solicitors Rules’) cll 3, 4. Australian Bar Association, ‘About Us’(Web Page) (which, under Resources, lists the ‘Legal Profession Uniform Conduct (Barristers) Rules’, which links to the NSW legislation). Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW) (‘Barristers Rules’). Ibid r 3. These objects are expanded in a set of Principles at r 4. Australian Capital Territory: Legal Profession Act 2006 (ACT); New South Wales: Legal Profession Uniform Law (NSW) (NSW) and Professional Standards Act  1994 (NSW); Northern Territory: Legal Profession Act  2006 (NT) and Professional Standards Act  2004 (NT); Queensland: Legal Profession Act  2007 (Qld) and Professional Standards Act 2004 (Qld); South Australia: Legal Practitioners Act 1981 (SA) and Professional Standards Act 2004 (SA); Tasmania: Legal Profession Act 2007 (Tas) and Professional Standards Act 2005 (Tas); Victoria: Legal Profession Uniform Law Application Act 2014 (Vic) and Professional Standards Act 2003 (Vic); Western Australia: Legal Profession Act 2008 (WA) and Professional Standards Act 1997 (WA). (1912) 15 CLR 333 (‘Moorehead’).

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CHAPTER 5 THE LEGAL PROFESSION AND PROFESSIONAL LEGAL PRACTICE AND ETHICS

by the Crown in dealing with subjects, which I learned a very long time ago to regard as elementary, is either not known or thought out of date. I should be glad to think that I am mistaken.31

Professional conduct A lawyer has duties to multiple bodies and people, including their clients, the courts, fellow practitioners, and those with whom the person has a professional relationship.32 Underpinning these duties is the notion inherent in professional practice of service to the public: see Dixon CJ at 5.16. The legal profession should not be regarded solely as a business but as a service. Street CJ explained the distinction:

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A trade or business is an occupation or calling in which the primary object is the pursuit of pecuniary gain. Honesty and honourable dealing are, of course, expected from every man, whether he be engaged in professional practice or in any other gainful occupation. But in a profession, pecuniary success is not the only goal. Service is the ideal, and the earning of remuneration must always be subservient to the main purpose.33

DUTY TO CLIENT A lawyer’s duty to a client is based on a legal obligation to provide legal services, including advice, in all aspects of a matter covered by a retainer. For example, services in relation to a client who is a minor is to represent the child and in doing so act in the child’s best interests. Achievement of that goal in practice requires the lawyer to meet with the child to gain the child’s trust, and, if feasible, to elicit the child’s views of its best interests. The lawyer is then able to present those interests to the court or other body. The duties are imposed because of the ‘client’s position of dependence, lawyers’ special training and experience, and the high degree of trust clients are entitled to place in lawyers’.34 The example illustrates another aspect of legal practice, namely, that in meeting the obligation to a client, conflicts may arise. Thus the ‘best interests’ requirement may bring the child’s lawyer into conflict with the ideas, practices and values of the parents or professionals dealing with the child. Handling that conflict may call on the personal judgement and integrity elements of the lawyer’s role. Specific duties to all clients are the duty to be competent and to perform services within a reasonable time. Competence refers to the lawyer’s technical legal knowledge in the fields of practice in dispute. For example, when a lawyer is representing the best interests of their client, the lawyer is required to have an understanding of the nature of the ‘best interests’ test at law and the limits on the application of the principle.These have been established in the areas of family law, guardianship and enduring powers of attorney. A lawyer who is engaged by a client is expected to be able to advise on all aspects of the matter. If unable to fulfil this requirement, the lawyer should obtain advice from another

31 32

33 34

5.29 retainer: contains the terms of engagement of a legal practitioner to undertake legal proceedings or provide legal advice

5.30

Ibid 342. Solicitors Rules (n  25) and Commentary to the Solicitors’ Conduct Rules (August 2013) 3. Re Foster (1950) 50 SR (NSW) 149, 151. Gino E Dal Pont, Lawyers’ Professional Responsibility (Lawbook, 6th ed, 2016) 107–8.

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appropriate specialist. Failure to do so could result in the practitioner being liable to the client for negligence or breach of contract.35 OBLIGATIONS WHEN ACTING FOR GOVERNMENT Model litigant rules 5.31

A practitioner’s professional and ethical duties are especially high when that client is the government. The public expects government representatives to act fairly and as a moral exemplar. McHugh J said of this duty: [T]he relationship between the modern state and its citizens is so different in kind from that which exists between private citizens that rules worked out to govern the contractual, property, commercial and private confidences of citizens are not fully applicable where the plaintiff is a government or one of its agencies. Private citizens are entitled to protect or further their own interests, no matter how selfish they are in doing so … But governments act, or at all events are constitutionally required to act, in the public interest.36

5.32

These obligations on lawyers acting for government arise when handling civil, including administrative, claims and when conducting litigation. They are a product of the greater resources available to government, the public’s trust that the government and its legal representatives exercise their powers honestly and fairly, the absence of government’s private interests in the outcome, and the need for public confidence in government officials. The expectations are superimposed on the existing high standards of behaviour and ethical duties of the legal profession in general. These heightened obligations are spelled out in the Commonwealth’s Model Litigant Rules found in the Legal Services Directions 2017 (Cth) (‘Directions’)37 that apply to lawyers or law firms acting for government.38 Being a ‘model litigant’ requires that the lawyers acting on behalf of the Commonwealth and its agencies act with complete propriety, fairly and in accordance with the highest professional standards. The extent of the obligations is exemplified by a note to the Directions which states:

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The obligation to act as a model litigant may require more than merely acting honestly and in accordance with the law and court rules. It also goes beyond the requirement for lawyers to act in accordance with their ethical obligations.39

Compliance requires, for example, what is described as ‘fair play’40 in the conduct of litigation. This includes not taking technical procedural points unnecessarily; minimising cost and delay (for example, by preferring alternative dispute techniques over litigation to resolve disputes); not requiring the other party to prove a matter 35 36

37

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Snowkowski v Jones (Legal Practice) [2008] VCAT 1943. A-G (UK) v Heinemann Publishers Australia Pty Ltd (1987) 10 NSWLR 86, 191 (‘Spycatcher Case’).The case concerned an attempt by the British Government to prevent the publication of a book on the British Secret Service by one of its former officers, Mr Peter Wright. Legal Services Directions 2017 (Cth) (‘Directions’). The Model Litigant Rules are authorised by the Judiciary Act  1903 (Cth) pt  VIIIC. See  also the Guidance Notes and Guidelines issued by the Office of Legal Coordination, Attorney-General’s Department (Cth), Legal Services Directions and Guidance Notes (Web Page) . Judiciary Act 1903 (Cth) s 55ZF. Directions (n 37) app B cl 2 n 3. Moorehead (n 30) 342 (Griffiths CJ).

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CHAPTER 5 THE LEGAL PROFESSION AND PROFESSIONAL LEGAL PRACTICE AND ETHICS

that the Commonwealth knows to be true; offering assistance to self-represented opponents; and not taking advantage of the greater knowledge and expertise of government lawyers or legal representatives when dealing with a newcomer to legal proceedings.41 These injunctions do not prevent government lawyers from taking all legitimate steps and using litigation firmly and properly to achieve lawful outcomes and to protect public revenue. That is, the Model Litigant Rules do not prevent the Commonwealth and its agencies from acting ‘fully and firmly’ to defend claims in order to protect the Commonwealth’s interests.42 Similar obligations are found in model litigant guidelines that apply to lawyers doing government work in most states and the two mainland territories.43 A controversial example of compliance with these standards occurred in the Voyager litigation. The HMAS Voyager, a destroyer, collided with the HMAS Melbourne, an aircraft carrier, during an exercise at sea which resulted in the loss of 82 lives. There had been two royal commissions into the disaster, with the result that the period for bringing legal actions had expired. In the course of the litigation by those injured and relatives of those who had died, the Commonwealth initially announced it would waive its right to invoke the statute of limitations and would not argue that the plaintiffs’ actions were out of time. Subsequently the Commonwealth chose to strictly enforce those limitations. The change of approach was challenged in the High Court, which decided, by majority, that the Commonwealth was not free to renege on its promise not to rely on the statute of limitations, and that rights — here, the right to litigate — could arise from assurances made by the government in the early stages of litigation.44

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Duty to assist A specific example of the additional obligations on lawyers acting for government is the statutory duty on those appearing before the Administrative Appeal Tribunal to ‘use [their] … best endeavours to assist the Tribunal to make its decision in relation to the proceeding’.45 Examples of ‘best endeavours’ include making relevant information promptly available to the Tribunal even when not raised by the other party; not concealing new, relevant material even if it disadvantages the case of the government agency; and providing the necessary evidence, for example, for decisions based on specialist scientific information such as an application for a patent.46

41

42 43

44 45

46

5.33

statute of limitations: provides for time limits for commencement of legal proceedings which, if not complied with, are barred

5.34

Kenny v South Australia (1987) 46 SASR 268, 273 (King CJ); Yong Jun Qin v Minister for Immigration and Ethnic Affairs (1997) 75 FCR 155, 166; DPP (Cth) v Saxon (1992) 28 NSWLR 263, 268 (Kirby P). Directions (n 37) sch 1 cl 4.3 n 1. Attorney-General (ACT) Law Officer Model Litigant) Guidelines 2010 (No 1) (NI2010-88, 24  February 2010); Department of Premier and Cabinet (NSW) Model Litigant Policy for Civil Litigation (M2016-03, 2016); Department of Attorney-General and Justice (NT) Revised Model Litigant Policy (19 September 2017): Department of Justice and Attorney-General (Qld) Model Litigant Principles (4 October 2010); Department of Justice and Community Safety (Vic) Model Litigant Guidelines (2011). Commonwealth v Verwayen (1990) 170 CLR 394. Administrative Appeals Tribunal Act 1975 (Cth) (‘AAT Act’) s 33(1AA). See also Re General Merchandise and Apparel Group P/L and CEO of Customs and Australian Weaving (Party joined) [2009] AATA 988, (2009) 114 ALD 289; Re Whitlock and Comcare [2019] AATA 1911. The duty is imposed not only on government lawyers but on all parties: AAT Act s 33(1AB). Directions (n 37) app B cl 4.The applicant is also under an equivalent obligation: AAT Act (n 45) s 33(1AB).

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‘Genuine’ steps 5.35

5.36

5.37

The obligation to minimise the cost of civil litigation under model litigant rules has motivated consistent moves in recent years to settle matters prior to a hearing. Accordingly, some jurisdictions have introduced a requirement in civil litigation that the parties, including their legal representatives, take ‘genuine’47 steps to settle matters without commencing litigation. What steps are ‘genuine’ involves the party’s sincerity, taking into account ‘the person’s circumstances and the nature and circumstances of the dispute’.48 Examples of ‘genuine’ steps for the purposes of litigation in the Federal Court and the Federal Circuit Court include identifying the issues and offering to discuss them in order to reach a negotiated outcome; disclosing documents held by government to assist the process; and, where possible, facilitating alternative dispute resolution. This is in line with the increasing emphasis on the resolution of disputes by methods other than litigation: see 6.49ff. Failure to take such steps may result in a reprimand by the courts or a possible costs order against the offending party, and breaches may be noted in the annual report of the relevant justice department.49 The reprimand sanction is illustrated by LVR (WA) Pty Ltd v Administrative Appeals Tribunal50 in which adverse comments were made by the Full Court of the Federal Court against the legal representatives for the Commonwealth agency, the Australian Taxation Office.The legal practitioners had failed to disclose to the judge at first instance pertinent facts concerning the initial decision by the Administrative Appeal Tribunal.The judgment of the Full Court noted that government must be a model litigant at all times — before, during and after litigation — citing the Directions. That means government should act with complete propriety, fairly and in accordance with the highest professional standards. … In our opinion, counsel representing the executive government must pay scrupulous attention to what the discharge of that obligation requires, especially where legal representatives who are independent of the agency are not involved in the litigation.51

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5.38

DUTY TO COURT Admission to practice by a particular court results in the practitioner becoming an officer of that court. As a consequence the lawyer’s duty to the court is an overriding one and trumps any duty to the client or others to whom they have professional obligations. Mason CJ said of this obligation on barristers: The performance by counsel of his paramount duty to the court will require him to act in a variety of ways to the possible disadvantage of his client. Counsel must not mislead

47

48 49

50 51

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See, eg, Civil Dispute Resolution Act 2011 (Cth) ss 3, 4(1A). A similar obligation applies in New South Wales  (Legal Profession Uniform Law (NSW) s  34) but has been tried and abandoned in Victoria. The ‘reasonable steps’ obligation in Victoria applies to principals of law firms, their practices and to other bodies such as partnerships offering legal services : Legal Profession Uniform Law Application Act 2014 (Vic) Sch 1 cll 34, 35, 174, 470. Civil Dispute Resolution Act 2011 Act (Cth) s 4(1A). Directions (n 37) sch 1 cl 14. See, eg, Superior IP International v Ahearn Fox Patent and Trade Mark Attorneys [2012] FCA 282; Superior IP International v  Ahearn Fox Patent and Trade Mark Attorneys (No  2) [2012] FCA 977; Seaman v Silvia (No 2) [2018] FCA 363; Federal Deputy Commissioner of Taxation v Clear Blue Developments Pty Ltd (No 2) (2010) 190 FCR 11; Dunkerley v Comcare [2020] FCAFC 8. [2012] FCAFC 90 (‘LVR (WA)’). Ibid [42].

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CHAPTER 5 THE LEGAL PROFESSION AND PROFESSIONAL LEGAL PRACTICE AND ETHICS

the court, cast unjustifiable aspersions on any party or witness or withhold documents and authorities which detract from his client’s case. And, if he notes an irregularity in the conduct of a criminal trial, he must take the point so that it can be remedied, instead of keeping the point up his sleeve and using it as a ground for appeal. It is not that a barrister’s duty to the court creates such a conflict with his duty to his client that the dividing line between the two is unclear.The duty to the court is paramount and must be performed, even if the client gives instructions to the contrary. Rather it is that a barrister’s duty to the court epitomizes the fact that the course of litigation depends on the exercise by counsel of an independent discretion or judgement in the conduct and management of a case in which he has an eye, not only to his client’s success, but also to the speedy and efficient administration of justice. 52

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Where it appears this duty may have been breached, the court will refer the practitioner to the appropriate disciplinary body and a costs order can also be made against the practitioner if there is found to be a breach.53 DUTY TO FELLOW PRACTITIONERS AND THIRD PARTIES Dealings with other practitioners should be honest, fair and courteous. It is this obligation that lies behind the customary reference to practitioners acting for the opposing party as ‘my friend’ or, even more fulsomely, ‘my learned friend’. This form of address epitomises the degree of civility expected towards fellow practitioners, an objective not always achieved in the heat of a hard-fought matter. Nonetheless, courts and tribunals are entitled to insist on a reasonable level of politeness and practitioners can face disciplinary sanctions for persistent breach. There is also a degree of self-interest in observing this tenet of behaviour, since a lawyer will frequently need the cooperation of fellow practitioners in other, later, matters and discourtesy or an absence of fair dealing can jeopardise that goodwill. A significant facet of the duty to be honest and fair is not to mislead a fellow practitioner, and to be honest and accurate in written exchanges of information and representations, including in negotiations. These duties represent the public interest in furthering the administration of justice.A lawyer can be tempted not to reveal information or not to do so fully, in the desire to assist the client. A lawyer will often represent the interest of their client when dealing with third parties, for example, principals negotiating contracts or agency agreements, or sale or lease of property. The lawyer must be careful to act according to instructions, and must ensure that the third party is aware that they are acting in the matter as an agent and not as a principal. The practitioner, through experience, may recognise the sense, fairness or wisdom of the negotiated outcome or of an offer, but must comply with the client’s wishes if that person refuses the outcome or offer. The practitioner should also be conscious of the need to avoid conf licts of interest in those circumstances. For example, the practitioner may have a personal or commercial relationship with the third party. If so, the practitioner should at the least declare that interest before agreeing to act for the client, or else decline the role. The practitioner should also eschew other than

52 53

5.39

5.40 principal: a person who uses another (an ‘agent’) to represent them or take action on their behalf in a legal transaction

agent: see ‘principal’

Giannarelli v Wraith (1988) 165 CLR 543, 556. LVR (WA) (n 50).

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professional contact with friends in the profession during litigation in which both are on opposing sides.

5.41

DUTY TO COMMUNITY The reputation of a member of the profession depends on their estimation in the community and this should be fostered assiduously by diligence, competence, and guarded jealously from being tainted by any activities which may lead to disrepute. Practitioners must not advertise their services in a manner that would bring the profession into disrepute. They should be careful to avoid behaviour in social situations which falls below social norms. They should be circumspect in their choice of social contacts and non-professional activities including support for or involvement with community associations.

Ethics 5.42

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5.43

5.44

The term ‘ethics’ is based on the Greek word ethikos meaning ‘moral character’, itself derived from ethos meaning ‘custom’. Ethics was the subject of some of the principal writings of the famous Greek philosophers such as Plato and Aristotle. The essence of the notion is captured in Aristotle’s Nichomachean Ethics which discusses the qualities that single out a virtuous character — a person who acts only on high moral principles and will, accordingly, enjoy the greatest happiness. In Aristotle’s view, achievement of ethical behaviour is the ambition to which humans should aspire. LEGAL ETHICS Legal ethics are the principles and values reflected in the conduct rules developed for the legal profession — the Solicitors Rules and Barristers Rules discussed at 5.24–5.26) — which regulate a lawyer’s behaviour, alongside common law and regulatory duties, and the individual’s personal sense of ethics and of honour. For example, the Solicitors Rules list duties such as to be ‘honest and courteous in all dealings’ and to avoid ‘compromise to their integrity and professional independence’.54 The possession of these personal attributes is exemplified by the requirement that a lawyer is a ‘fit and proper person’ or ‘of good fame and character’ and desirably that they have developed a strong moral compass. ETHICAL DECISIONS Ethical issues like those discussed above do not lend themselves to easy solutions. It is not realistic to expect lawyers immediately to know how to resolve all ethical issues that arise. Seeking advice from more experienced practitioners is a wise step. An ethical and professional lawyer is one who is aware of the competing duties and responsibilities, and makes a genuine attempt to comply with them. This requires individual engagement and judgement, and, in some situations, self-sacrifice. The lawyer’s deliberations should exclude considerations of self-interest. An ethical decision may consume time and other resources, alienate clients, harm relations with one’s colleagues, and be bad for one’s 54

136

Solicitors Rules (n 25).

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career.55 However, these consequences should be ignored. They are irrelevant to the ethical demands of the situation. These principles are designed to foster confidence in members of the public that those certified to practise can be trusted to provide legal services in a competent, professional and ethical manner. This is illustrated by the following example. If a lawyer who is not a tax specialist is offered a matter that has tax implications, the ethical duty of diligence and competence imposes an obligation on the lawyer to inform the client of the need to obtain the services of someone who can provide that aspect of the advice or service, even if this risks losing the client and jeopardising the lawyer’s fee. Legal ethical conduct by legal practitioners is required within the same relationships as are covered by the professional conduct rules, namely, the court, the client, other legal practitioners, and the wider community.There is a potential ethical (and legal) dimension in each of these relationships. A frequently encountered ethical element arises when the lawyer is faced with a choice between competing duties to different parties. For example, in the course of their work, members of the profession commonly acquire information about events and people’s practices and activities. That information is confidential. It has usually been shared by the client on the basis that their legal representative, as a member of the profession, can be trusted; that confidential information divulged for the purpose of furthering the client’s cause will be respected; that the lawyer will avoid any conflict of interest based on that knowledge which could disadvantage their client; and that the information will be used only to further the interests of the client. The expected level of trust means the practitioner should decline to act in a later matter for another party which involves breaching those expectations. Equally, a lawyer should not use such information in another matter for the same client without consent. The possibility of breach of these and similar ethical principles regularly confronts lawyers. Rules developed by bar associations and law societies assist in handling such conflicts but can never substitute for good professional judgement and the practice of sound ethical principles.

5.45

5.46

SOURCES OF ETHICAL CONFLICT Duty to court versus duty to client The key obligation of a lawyer to the court is that legal professionals must not knowingly make misleading statements to the court on any matter. This obligation may be at odds with furthering a client’s interests: see  5.29. For example, a common ethical issue is whether a legal representative should actively dissuade a client from disclosing information that might indicate wrongful conduct on the client’s part. If that knowledge means that the legal representative must discontinue their representation of the client, the legal representative may not only be letting the client down but may also cause the person to incur further costs. In these circumstances there is an incentive to avoid obtaining that information in order to retain the work and provide the assistance of which the lawyer is capable — clearly raising an ethical dilemma for the lawyer.

55

5.47

Robert Rubinson, ‘Attorney Fact-Finding, Ethical Decision-Making and the Methodology of Law’ (2001) 45 St Louis University Law Journal 1185, 1220–2.

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Commercial imperatives versus duty to profession 5.48

Today, contrary to its professional objectives, law has become a business, a development decried by Street CJ: see 5.28. The commercial imperatives of meeting financial targets and furthering the business interests of a firm or individual at the expense of those of their competitors are often pressing. These commercial imperatives encourage members of the profession to focus on financial enrichment at the expense of disinterested legal advice. Where that focus means that lawyers are reluctant to take on unprofitable work or provide legal services pro bono, this reflects poorly on the profession. Pressure by law firms on their staff to maximise profits is ever present and may create an ethical dilemma for legal practitioners. In particular, financial incentives may lead to the practitioner taking a more adversarial approach than is warranted in order to win a matter, contrary to the ethical principle of courtesy and fair dealing with other members of the profession. As the discussion of professional conduct at 5.39–5.40 indicates, to so act is no longer to be faithful to the principle underpinning the law as an honourable profession. Duty to community versus personal interests

5.49

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5.50

The ethical imperatives on lawyers require that they exhibit a high level of integrity in their general dealings in the community. Behaviour falling below that expected can damage the reputation of the profession as a whole. They should not use their position as lawyers to gain an advantage. For example, a lawyer should not trade on their professional position to obtain membership of an organisation, or to add lustre to a public presentation on matters outside the law, or to dissuade someone from making a justifiable claim against them for fear of being faced with superior legal knowledge and contacts. Those in senior positions in the profession should not overstep the limits of collegial interaction in their relationships with junior colleagues, or, as in the Lawyer X situation, have duties to report to both sides. ETHICS OF CRIMINAL PROSECUTION Prosecutions in criminal matters are undertaken by police or government prosecutors. As the earlier discussion at 5.31ff indicates, special rules apply where the government is a litigant. While most litigants in a dispute may act in self-interest, the government should primarily operate in the public interest, and should not benefit unduly from its resource advantage over most opponents. In some circumstances, the government’s higher duty may hamper its efforts to win disputes. This kind of reasoning ‘applies a fortiori … in criminal proceedings’.56 In addition to the fact that the prosecutor represents the government and generally has greater resources than defendants, regard must be had to the asymmetry in what parties have at stake. The defendant, if convicted, is likely to suffer damage to reputation, relationships and career prospects, and may be incarcerated.As Kirby J observed in Mallard v The Queen (‘Mallard’),57 ‘special requirements … descend upon a prosecutor, who represents not an ordinary party but the organised community committed to the fair trial of criminal accusations and the

56 57

138

Moorehead (n 30) 342 (Griffiths CJ). (2005) 224 CLR 125 (‘Mallard’).

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CHAPTER 5 THE LEGAL PROFESSION AND PROFESSIONAL LEGAL PRACTICE AND ETHICS

avoidance of miscarriages of justice’.58 The New South Wales Prosecution Guidelines, for example,59 emphasise that ‘[a] prosecutor is not entitled to act as if representing private interests in litigation’.60 ‘A prosecutor is a “minister of justice”. The prosecutor’s principal role is to assist the court to arrive at the truth and to do justice between the community and the accused according to law and the dictates of fairness’.61 One aspect of the prosecution’s higher ethical responsibility concerns disclosure of evidence.The Barristers Rules provide that ‘[a] prosecutor must disclose to the opponent as soon as practicable all material … available to the prosecutor or of which the prosecutor becomes aware which could constitute evidence relevant to the guilt or innocence of the accused’.62 This rule was breached in various respects by the prosecutor in Mallard. Perhaps the gravest breach was in relation to the murder weapon. The prosecution case was that the defendant had killed the victim with a wrench. However, the police had conducted experiments which led a forensic expert to conclude that the murder weapon could not have been a wrench.63 Kirby J concluded that ‘the many instances of prosecution nondisclosure and of the suppression of material evidence results in a conclusion that the appellant’s trial cannot enjoy public confidence’.64 The conviction was quashed. A related principle governing the prosecution relates to the calling of witnesses. Under the Barristers Rules, ‘[a] prosecutor must call as part of the prosecution’s case all witnesses … whose testimony is admissible and necessary for the presentation of all of the relevant circumstances’.65 This includes witnesses whose evidence undermines the prosecution case. In Gilham v The Queen66 the Court of Criminal Appeal of New South Wales held that the prosecutor had breached this obligation. According to the prosecution the defendant had murdered his parents and his brother by stabbing. The defendant had previously admitted to the murder of his brother, but argued that it was his brother who had stabbed his parents, and it was his discovery of this that had provoked him to stab his brother. All victims had suffered multiple stab wounds to the upper torso. Part of the prosecution case was that ‘the degree of similarity’ between the fatal attacks was ‘extraordinary’ and ‘remarkable’; it was ‘inconceivable that a coincidence like that could happen’.67 In other words, the three attacks must have been carried out by the same individual, namely the defendant. However, during the investigation and in earlier proceedings, a forensic pathologist, Professor Cordner, had rejected this theory, suggesting that there was nothing particularly unusual or distinctive in the three sets of stab wounds. The prosecution was aware of Cordner’s view and yet did not call him as a witness. The Court described it as a ‘fundamental defect’ that the decision not to call Cordner was ‘expressly based on the fact that he held a different opinion from that advanced by the 58 59

60 61 62 63 64 65 66 67

5.51

5.52

Ibid 156. In 1990, a uniform prosecution policy was adopted by the Directors of Public Prosecutions of all states and the Commonwealth of Australia. These can be found on websites for the Offices of the Directors of Public Prosecutions in all jurisdictions. Prosecution Guidelines of the Office of the Director of Public Prosecutions for New South Wales (2007) Guideline 2. Ibid. Barristers Rules (n 27) r 87. Mallard (n 57) 146. Ibid 157. Barristers Rules (n 27) r 89. [2012] NSWCCA 131. Ibid [319]–[324].

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witnesses the Crown intended to call’.68 The Court concluded that ‘[t]he failure to call Professor Cordner to give evidence that in his opinion that analysis lacks a legitimate scientific foundation constitutes a miscarriage of justice’.69

5.53

5.54

ETHICS OF CRIMINAL DEFENCE The previous section discussed the overriding duty that prosecutors owe to the pursuit of truth and justice. On occasion, this duty may require them to disclose or present evidence that damages the prosecution case. However, where defence barristers are concerned, some take the view that they owe a higher obligation to their clients relative to their duties to the court, to their opponent, and to the pursuit of truth and justice.70 The argument supporting this view is essentially the converse of that differentiating the prosecution’s duties. Criminal defendants typically have few resources — financial, social and educational — relative to the police and prosecution, and yet their liberty and reputation may be at risk. ‘Only through zealous advocacy can [defendants be provided] meaningful access to justice.’71 Admittedly, it is not only criminal defendants who pursue high-stakes litigation against opponents with far greater resources.72 The same is true of workers who have contracted mesothelioma from asbestos exposure in the work place; farmers fighting against the exploitation of coal-seam gas on their properties; and asylum seekers threatened with deportation. All would place considerable reliance on their barristers’ duty to ‘promote and protect fearlessly and by all proper and lawful means the client’s best interests to the best of the barrister’s skill and diligence, and do so without regard to his or her own interest or to any consequences to the barrister or to any other person’.73 However, the criminal defence lawyer is recognised as the ‘archetype of the advocate in the adversary system’.74 As these discussions illustrate, defence counsel may face difficulties squaring the principle of full and fearless representation with their duties to the court and their opponents, and potentially with their own views on what is right. In his defence of Queen Caroline in 1820, Lord Brougham famously declared that

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an advocate, by the sacred duty of his connexion with his client, knows, in the discharge of that office, but one person in the world — that client and none other.To save that client by all expedient means, to protect that client at all hazards and costs to all others, and among others to himself, is the highest and most unquestioned of his duties; and he must not regard

68 69 70 71

72 73 74

140

Ibid [404]. Ibid [412]. See also Pell v The Queen [2020] HCA 12. United States v Wade 388 US 218, 256 (1967). Abbe Smith, ‘The Difference in Criminal Defense and the Difference it Makes’ (2003) 11 Washington University Journal of Law and Policy 83, 136; see also Monroe Freedman and Abbe Smith, Understanding Lawyer’s Ethics (LexisNexis, 4th ed, 2010). For the contrary view see, eg, William H Simon, ‘The Ethics of Criminal Defense’ (1993) 91 Michigan Law Review 1703; Fred  C Zacharias, ‘The Civil-Criminal Distinction in Professional Responsibility’ (1996) 7 Contemporary Legal Issues 165. See Smith (n 71) 136. This version comes from Uniform Barristers’ Rules r 35. Murray L Schwartz, ‘The Zeal of the Civil Advocate’ [1983] American Bar Foundation Research Journal 543, 548–50; Smith (n 71) 138.

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the alarm, the suffering, the torment, the destruction which he may bring upon any others; … he must go on reckless of the consequences …75

For modern defence counsel, the position is not so simple. Genuine ethical dilemmas do arise. Consider, for example, the question that is commonly asked of criminal defence barristers: how can you try to get an acquittal for a defendant whom you know to be guilty? The question has particular force where the crime is violent and the defendant, if acquitted, appears likely to reoffend, or the defendant is a paedophile working in a primary school. Part of the answer is that all defendants are entitled to legal representation, no matter how unsavoury or dangerous they are.This is the rationale behind the cab rank principle, which appears in the Barristers Rules.76 Further, it will be very rare for the barrister to know that the defendant is guilty. This is not knowledge that the barrister would necessarily seek out. Indeed, many would deliberately avoid acquiring such knowledge,77 a strategy raising its own ethical quandaries: see 5.47.78 No doubt incriminating evidence exists, otherwise the prosecution would not have been brought, but it is for the prosecution to persuade the jury beyond reasonable doubt of the defendant’s guilt. It is not the defence barrister’s place to pre-empt this assessment. However, the ethical difficulties in representing guilty defendants cannot be sidestepped altogether.What if the defendant has made a believable confession to the defence barrister but still intends to plead not guilty? Can the barrister continue to  act for the defendant? The Barristers Rules specifically address this scenario: subject to certain restrictions, the barrister should continue to represent the defendant.79 The prosecution can be put to proof of its case. However, the barrister should not suggest that someone else committed the crime or otherwise advance an affirmative defence. If the defendant insists on making a false declaration of innocence, committing perjury, the barrister may cease to act for the client. This solution is a specific instance of a broader distinction that is drawn in ethical rules. As noted at 5.53, with the exception of prosecutors, barristers do not have a positive duty to disclose facts or evidence to the court and other parties. However, barristers do have a duty not to knowingly mislead the court or the opponent.80 While this distinction between commission and omission is firmly established in barristers’ ethics as well as other areas of law, some commentators question whether it is principled.81 Is there a genuine difference between knowingly advancing a false version of events and remaining silent while knowing the court is proceeding on the basis of a false version of events? As well as questioning the philosophical validity of the distinction, practical issues can also arise in its application. In the situation where a defendant has confessed guilt to their barrister and the barrister is testing the strength of the prosecution case, to what 75 76 77

78 79 80 81

5.55

cab rank rule: requires a barrister to accept a brief within their capacity, skill and experience, subject to certain exceptions

5.56

5.57

Henry Brougham, Opinions of Lord Brougham (Baudry’s European Library, 1841) 107. Barristers Rules (n 27) r 17. Ben Clarke, ‘An Ethics Survey of Australian Criminal Law Practitioners’ (2003) 27 Criminal Law Journal 142, 148. Rubinson (n 55) 1203–5. Barristers Rules (n 27) r 79. Uniform Barristers’ Rules rr 26, 49; R v Bourchas (2002) 133 A Crim R 413, 437. For example, D Pannick, Advocates (Oxford University Press, 1992) 35. [check page]

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extent can the defence counsel challenge the credibility of prosecution witnesses? Would it be legitimate to question the eyesight of an elderly eyewitness?82 What about challenging a witness’s honesty on the basis of their prior conviction for fraud? These  questions highlight the difficult boundary issues that arise for a criminal barrister. These strategies may be considered to cross the line into the territory of an affirmative defence.

Conclusion 5.58

The rules governing the professional conduct of would-be legal practitioners should guide their behaviour from the commencement of their law studies. The instilling of principles of good conduct, the ideal of service to others, and the acquisition of skills and understanding of the subtleties of the law will better enable law students to meet their various duties and manage the ethical issues which inevitably arise in practice. EXERCISE 6: LEGAL PROFESSIONAL PRACTICE AND ETHICAL DUTIES

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5.59

The questions following include scenarios that involve issues which commonly arise in practice. Be prepared to provide a solution and defend that solution in class or tutorial discussion. 1. In the course of a trial your client produces a document to you which damages their credit and the substantive case. The document is one which would have been disclosed in discovery, but was not then in existence. What should a practitioner do in this situation? To whom are duties owed? Which of those duties takes precedence and why? 2. A judge wishes to protect the confidentiality of a document. At the same time the judge is anxious to hear argument about it. The judge proposes to make it available to counsel on the basis that counsel does not disclose the contents to anyone, including their client. What should counsel say to the judge when the proposal is put? To whom is their primary obligation in this situation? 3. A solicitor has acted on several occasions for a particular client. The client asks the solicitor to prepare a lease of premises. The solicitor becomes aware that the premises are to be used for prostitution, which is unlawful in the jurisdiction in which the solicitor practises. To whom does the solicitor owe a primary obligation? What should the solicitor advise the client about the request for the preparation of a lease? 4. A practitioner is appearing in a one-day matter before the Supreme Court. On the evening prior to the first day of the hearing, the solicitor is provided an advance copy of a decision to be published in two days’ time. The decision overturns previous authorities on the matter and undermines the solicitor’s case. Advise the solicitor as to the appropriate conduct in court.

82

142

Andrew Ashworth and Meredith Blake, ‘Some Ethical Issues in Prosecuting and Defending Criminal Cases’ [1998] Criminal Law Review 16, 20.

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CHAPTER 5 THE LEGAL PROFESSION AND PROFESSIONAL LEGAL PRACTICE AND ETHICS

5. A practitioner has appeared for a client in a recent hearing. Before the judgment is handed down, the client informs the practitioner that the client committed perjury at the hearing. What should the practitioner do in these circumstances? 6. Is there any harm in a practitioner appearing in court for someone whom they know is appearing under a false name? Explain the nature of the harm, if any. Advise the practitioner about the professionally appropriate conduct in these circumstances. 7. You are representing a client charged with a robbery.Your client admits to you that they committed an earlier unrelated murder for which another defendant has been convicted and is serving time in prison. What should you do? 8. Your client has been convicted for shoplifting and you are appearing at the sentencing hearing. The prosecution tells the court that the defendant has no prior convictions.You know that this is incorrect: your client actually has three prior convictions for similar offences but in a different state. What should you do? 9. What are the justifications, if any for the continuing division in practice between barristers and solicitors? 10. How is a profession defined and what are its distinctive features? 11. Should the regulation of the legal profession take account of the public interest? If so, how would this best be achieved? 12. Was the legal professionalism of the past merely an illusion? Is the law moving in the direction of a business? Is the idealism and selflessness of professionalism finally dying out?

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Further reading • Gabrielle Appleby, ‘The Government as Litigant’ (2014) 37 University of • • • • • •

New South Wales Law Journal 94. Andrew Ashworth and Meredith Blake, ‘Some Ethical Issues in Prosecuting and Defending Criminal Cases’ [1998] Criminal Law Review 16. Thomas Frederick Bathurst, ‘The Role of Courts in the Changing Dispute Resolution Landscape’ (2012) 35 University of New South Wales Law Journal 870. Gino E Dal Pont, Lawyers’ Professional Responsibility (Lawbook, 6th ed, 2016). Monroe Freedman and Abbe Smith, Understanding Lawyer’s Ethics (LexisNexis, 4th ed, 2010). Harry Orr Hobbs ‘The Dispute Resolution Act 2011 (Cth) and the Meaning of “Genuine Steps”: Formalising the Common Law Requirement of “Good Faith” ’ (2012) 23 Australasian Dispute Resolution Journal 249 John H Langbein, The Origins of Adversary Criminal Trial (Oxford University Press, 2003).

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• Law Council of Australia, Australian Solicitors’ Conduct Rules (at June 2015) . • Law Council of Australia, Australian Solicitors’ Conduct Rules (August 2015) and Commentary to the Australian Solicitors’ Conduct Rules (July 2013) . • Law Society of New South Wales, Representation Principles for Children’s Lawyers (3rd ed, 2007). • Tania Sourdin, ‘Civil Dispute Resolution Obligations:What is Reasonable?’ (2012) 35 University of New South Wales Law Journal 889.

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To enhance your learning experience, use the student resources available on Lexis® Learning See the Visual Preface at the front of this book on how to register.

144

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CHAPTER

6

Going to Law: Legal Dispute Resolution Processes

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The legal system performs a critical role in the promotion of social order by the administration of the law in a manner which answers the fundamental requirements of justice, namely, fair outcomes arrived at by fair procedures. The fairness of the procedures is as essential as the correctness or fairness of the outcomes.1 1

James Jacob Spigelman, ‘Judicial appointments and judicial independence’ (2008) 17 Journal of Judicial Administration 139, 139.

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146

Introduction

6.1

Overview of legal process

6.4

− Who can seek justice?

6.8

− Procedure

6.11

− Alternatives to courts

6.14

The adversarial trial

6.16

− Accusatorial criminal trial

6.18

− Judge and jury

6.21

− Goals of the adversarial trial

6.25

•

Accuracy and individual autonomy

6.25

•

Peaceful and efficient dispute resolution

6.27

Finality and appeals

6.29

− Wrongful convictions

6.32

Costs, delays and access to justice

6.37

− Case management, settlement and guilty pleas

6.40

− Tribunals

6.43

− Inquisitorial and informal processes

6.48

− Alternative dispute resolution

6.49

Distinction between matters of fact and matters of law

6.54

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CHAPTER 6 GOING TO LAW: LEGAL DISPUTE RESOLUTION PROCESSES

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Introduction As a society, we mostly rely on ‘voluntary’ compliance with laws, but there will always be breaches and disputes. Accompanying the laws, made by the various branches of government to regulate behaviour, are legal institutions set up to encourage, enable and enforce compliance, and to resolve disputes. The most well-known institutions for resolving disputes are courts of law. Courts decide claims, usually by adversarial hearings that involve elaborate rules of procedure and result in enforceable judgments. There are, however, other dispute-resolution institutions, such as tribunals, and alternative dispute resolution mechanisms such as conciliation, mediation and arbitration. There is also a raft of institutions that operate in various areas of regulation, not in response to legal disputes, but to prevent them from arising. Mostly situated in the executive branch of government, these regulatory agencies engage with persons involved in specific industries and activities, to encourage and enable their compliance. Regulators’ efforts are often backed up by the power to prosecute a matter to a court or tribunal as a last resort. The focus in law schools and law texts is often on dispute resolution by courts and tribunals, but students should keep in mind alternative methods of dispute resolution, and wider regulatory frameworks designed to enable compliance without litigation. This chapter introduces students to the procedures and mechanisms by which legal compliance is encouraged and enforced, and legal disputes are resolved. The legal system, in pursuing compliance and enforcement, may intervene in different ways and to differing degrees. Much of the chapter focuses on the most formal and interventionist mechanism: civil and criminal litigation in the courts. We begin, in the next section, by outlining the range of procedural laws that govern court litigation, ranging from who has standing through to which party pays litigation costs. Following that, we take a closer look at the adversarial trial. The distinctive features which make the trial ‘adversarial’ are identified. We also consider the more ‘accusatorial’ criminal trial where criminal defendants have the benefit of the presumption of innocence and other safeguards.We consider the division of responsibility between the judge as the tribunal of law, and the jury as the tribunal of fact, a division which retains some relevance in non-jury trials before a judge alone. After that we take a more critical perspective by considering the goals of litigation and how well the adversarial trial serves them. A primary goal is factual accuracy, however, the overarching goal is the peaceful and efficient resolution of disputes. We consider opportunities for disappointed litigants to appeal, and the occurrence of wrongful convictions. Costs and delays raise perennial concerns, and we examine less formal tribunals, and alternative dispute resolution. The final section of this chapter focuses on the conceptual distinction between fact and law, which can be determinative of how legal dispute-resolution methods operate.

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Overview of legal process The law establishes substantive rules for behaviour in many different areas of human activity. As human societies have become increasingly complex, so too have the laws regulating the expanding range of human interactions and behaviours. Whenever you buy a good or pay for a service, the transaction operates against a backdrop of contract law. In most cases the seller or service provider will also be governed by one or more regulatory frameworks.

6.4

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6.6

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If you buy a car, the manufacturer, distributor and retailer should all have complied with work health and safety laws in respect of their workers, and safety standards and consumer protection laws relating to the goods and services they provide.At the time of your purchase, you most likely will also have had related transactions regarding vehicle registration and insurance. When you drive your new car on the road you will also need a driving licence, and you should comply with roadworthy requirements and the rules of the road. If there is a motor vehicle accident causing property damage or personal injury, compensation issues may arise under the common law of negligence and related legislation. If it appears that poor driving was the cause, there may also be a criminal investigation and charges. Legal rules, unlike the laws of physics, are not necessarily complied with. For this reason, substantive rules prescribing behaviour are accompanied by further rules specifying the consequences of breaches of substantive duties and obligations. For example, negligence law sets standards of behaviour, and a method for calculating compensation for harm resulting from the breach of those standards.The criminal law defines a range of criminal offences, from speeding through to murder, and also specifies the penalties that may be imposed on offenders. In addition to outlining rules of behaviour and the consequences of breach, our laws have developed rules and institutions for enforcement. A central institution is the judiciary — the court system — which has constitutional responsibility for interpreting the law as it applies to individual cases. In relation to the courts, a large body of procedural law has been developed, with rules about when a court can be called on to resolve a dispute; who can seek its intervention; how the process is commenced; how the parties may gather evidence, including from each other; and how the court conducts itself in resolving the dispute. There are also other dispute-resolution institutions and mechanisms, governed by different procedures, such as tribunals and alternative dispute resolution (ADR), which includes mediation, conciliation and arbitration. Further, in designing legislative responses to identified social problems, Parliament commonly now also establishes regulatory agencies with responsibility for identifying and prosecuting possible breaches of the rules, as well as promoting compliance to avoid the need for litigation. The most formal method of dispute resolution is court adjudication. For a legal dispute to be resolved by a court, someone must initiate a legal action, effectively asking a court or tribunal to help. Courts do not maintain surveillance over society, intervening and punishing when someone commits a crime, and awarding compensation where someone’s breach causes harm to another. It is up to an interested party to originate the legal process. For civil matters, an enforceable finding of breach and liability by the courts will only occur if legal action is initiated and pressed by the person who has suffered harm.2 For criminal matters, the legal process is initiated and maintained by the state, traditionally a police officer or a public prosecutor.3 WHO CAN SEEK JUSTICE? It is worth pausing and considering in a little more detail who has the power to commence court proceedings by alleging a breach of the law. Who does the law recognise as a legitimate party entitled to seek justice? This is sometimes referred to 2 3

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See, eg, Uniform Civil Procedure Rules 2005 (NSW) (‘UCPR’) pt 6. See, eg, Criminal Procedure Act 1986 (NSW) (‘Criminal PA’) ss 48, 173.

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CHAPTER 6 GOING TO LAW: LEGAL DISPUTE RESOLUTION PROCESSES

as standing before a court. In criminal matters, a victim of crime (sometimes known as the ‘complainant’) might be the one to report the offence to the police, but they are not the party responsible for bringing the matter to the court to seek punishment of the perpetrator. Rather, the state has primary responsibility for laying criminal charges and engaging the court in a process of determining whether a crime has been committed and an appropriate punishment. While private prosecutions occurred historically,4 and are still possible today, they are very rare in the modern state. Where they are brought, the state prosecutor has the power to take them over.5 Compliance with the criminal law is seen as a matter of public interest, not left to individual actions by victims. State and federal public prosecutors, within the executive arm of government, are appointed to work with police to prosecute those accused of a crime through the courts. Offences in particular fields of activity may be enforced by specialist federal or state regulators. For example, work health and safety laws in New South Wales are enforced by SafeWork NSW.6 For civil matters (that is, disputes between individuals) the question of liability and remedy can generally only be pursued by the person harmed by the breach. Civil disputes are not generally viewed as a matter of public concern. The doctrine of privity of contract, for example, provides that the only people allowed to ask the court to determine whether there has been a breach of the contract are the parties to that contract.7 Similarly, in negligence law, it is the injured party who can ask the court to determine whether the defendant breached their duty and how much compensation may be payable. It can be argued that, in some areas, rules of standing should be expanded so that people may bring actions in the public interest, for example against those who harm the environment.8 Many laws of a regulatory nature may allow for both private and public enforcement. Individual victims may bring a legal action seeking an individual remedy, but the law also empowers an executive agency to monitor and enforce the laws.This reflects recognition of both the private and public interest in compliance.Workplace laws, for example, prescribe conditions for workers such as pay rates, hours of work and workplace protections. An individual worker can pursue their employer for failing to pay the prescribed rate of pay, for example. The Fair Work Act 2009 (Cth), however, also establishes a government agency, the Fair Work Ombudsman, which can prosecute such breaches on behalf of the individual victim or victims and, in some cases, ask the court to impose penalties to deter further breaches by that employer and others. Some laws also authorise third parties or advocacy organisations, such as unions, to initiate proceedings to further enable enforcement.

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standing: for a party to be recognised by the court as sufficiently connected to a harm to be able to commence a legal action relating to the harm

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John Langbein, The Origins of the Adversary Criminal Trial (Oxford University Press, 2003) 11–12. See, eg, Director of Public Prosecutions Act 1983 (Cth) s 9(5); Public Prosecutions Act 1994 (Vic) s 22(1)(b)(ii). See, eg, Work Health and Safety Act 2011 (NSW) s 152. The doctrine of privity of contract was relaxed slightly in Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107. In that case a producer took out an insurance policy for the benefit of subcontractors. It was held that the subcontractor, although not a party to the contract, could enforce the indemnity against the insurance company. See, eg, Elizabeth C Fisher and Jeremy Kirk, ‘Still Standing: An Argument for Open Standing in Australia and England’ (1997) 71 Australian Law Journal 370.

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6.12 pleadings: court documents that must be submitted by parties engaged in a dispute, outlining competing claims and often narrowing the scope of the dispute

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costs: the expenses that a party incurs in connection with litigation; eg court fees, lawyer fees, and payment of expert witnesses

6.14

PROCEDURE Beyond the question of who can initiate legal action, there are rules governing other aspects of the process. The law can prescribe how the process is to be initiated, including the specific forms to be used and submitted to the agency or court; the steps that must be taken to ‘serve’ the documents on the other party so they know they are the subject of legal action; the fees that need to be paid to the court or agency to start the process; and time limits for commencing proceedings. Once proceedings are commenced, a number of steps are taken before the case reaches court. The parties will exchange pleadings outlining their opposing claims. This may have the effect of narrowing the issues. The parties might agree on some matters relating to the dispute (for example, that there was a contract), joining issue on other points (such as whether there was a breach, or the extent of the harm suffered).The court may also give the parties the opportunity to gather evidence from each other through the inspection and copying of documents (‘discovery’) and the asking of questions (‘interrogatories’). Many of the legal rules that are referred to as civil and criminal procedure relate more specifically to the hearing process in that they address specific questions such as how witnesses can be called and examined, the types of evidence that are not admissible at trial, and how factual uncertainty is resolved. Further procedural rules govern limited rights to appeals. These are explored at 6.29ff as aspects of the adversarial trial. There are also many rules about how the costs of litigation are to be born. Costs may include the court fees, lawyer fees and litigation expenses such as the fee for transcription of the hearing, and paying experts to provide evidence.The general rule in civil litigation is ‘loser pays’; however, the court, in making orders regarding costs, has a discretion to consider many factors, although not the impecuniosity of the losing party.9 In criminal matters a successful defendant may obtain costs,10 and, more rarely, in a narrow range of circumstances, costs may be awarded against an unsuccessful defendant.11 As discussed at 6.37ff, litigation can be very expensive for parties, raising concern about access to justice, and giving rise to reforms to introduce cheaper dispute-resolution mechanisms. ALTERNATIVES TO COURTS Before we examine the trial process, it is worth remembering that courts are used only as the last resort for resolving disputes. Even where litigation is commenced, parties generally seek to resolve their dispute through negotiation, with or without external assistance, and often reach a settlement agreement before trial. Growing concerns about costs, delays and access to justice in courts have encouraged exploration of alternative, less adversarial methods of dispute resolution. A great deal of litigation is now heard, less formally and more cheaply, by tribunals. Courts and tribunals encourage, and in some cases order, parties to engage in negotiations and ADR.The operations of tribunals and some of these ADR methods are discussed later in this chapter: see 6.43ff and 6.49ff, respectively. 9 10

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Northern Territory v Sangare (2019) 265 CLR 164. Latoudis v Casey (1990) 170 CLR 534; see, eg, Criminal PA (n 3) ss 212–214. Costs orders are not awarded in indictable matters (Wang v Farkas (2014) 85 NSWLR 390 [18]), but a successful defendant may recover costs from the state through another mechanism: see, eg, Costs in Criminal Cases Act 1967 (NSW). See, eg, Criminal PA (n 3) s 215.

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CHAPTER 6 GOING TO LAW: LEGAL DISPUTE RESOLUTION PROCESSES

Further, many regulatory agencies have been established, not only to investigate and litigate legal disputes, but to use a range of regulatory tools to prevent them and encourage compliance. Agencies such as the Fair Work Ombudsman and the Australian Competition and Consumer Commission, for example, are empowered primarily to enable, encourage and monitor compliance; enforcement through court prosecution is rarely needed. The regulatory tools granted to such agencies can include powers to set standards; provide guidance; undertake inspections; conduct audits and investigations of organisations, industries or specific complaints; issue compliance notices; monitor disclosures; and engage with regulated actors to improve compliance with the law. Used responsively and strategically, such tools can be more efficient and effective than the power to prosecute a handful of individual cases through expensive court processes.

6.15

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The adversarial trial Perhaps the best-known mechanism for resolving disputes, familiar from numerous courtroom dramas on the stage and screen, is the adversarial trial. But despite its familiarity and archetypal status, the adversarial trial is, in some respects, an unnatural and problematic solution to the problem of legal conflict. Concerns with the adversarial trial have given rise to efforts to divert disputes away from the courts, and to an increasing array of ADR processes: see 6.49–6.53. The trial is described as adversarial because, rather than conducting an investigation into disputed events, the court adjudicates a contest between the opposing litigants as adversaries. The parties put to one side the matters that are undisputed and agreed upon, and focus on the matters that are genuinely in dispute. Each party gathers and presents evidence in an effort to persuade the court to accept their version of events with respect to those issues. Most commonly, the parties are contesting the facts and how the law applies to those facts; however, purely legal issues also may arise. The court has ultimate authority over the dispute, but it seeks to remain above the fray. The court should generally not call or examine witnesses.12 The court’s primary role  is to ensure that the contestants play by the rules, and even then, the court may require prompting by one party before it considers enforcing a rule against another,13 thus the familiar trope of counsel interrupting opposing counsel’s examination of a witness with the declaration: ‘Objection, your Honour!’ ACCUSATORIAL CRIMINAL TRIAL The criminal trial is the mechanism for resolving disputes about the guilt of a defendant (‘the accused’) or group of defendants (‘the co-accused’ or ‘co-defendants’). Following an investigation by police, the defendant is charged and, if the defendant does not admit guilt and plead guilty, the matter will be brought to trial by a state prosecutor.The criminal trial court will decide whether to convict or acquit the defendant. In some respects the criminal trial is less adversarial than the civil trial. It is sometimes described, instead, as ‘accusatorial’.14 This reflects structural asymmetries in criminal 12 13 14

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See, eg, R v Esposito (1998) 45 NSWLR 442. See, eg, Papakosmas v The Queen (1999) 196 CLR 297 [72] (McHugh J). See, eg, Lee v NSW Crime Commission (2003) 251 CLR 196 [1] (French CJ), [176]–[178] (Kiefel J).

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6.20

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6.21

litigation that are not present in the civil trial. Most civil disputes are about which party should bear the expense of a particular loss or harm. The loss at the start of the trial is borne by the plaintiff, who seeks to shift it to the defendant; thus both have an equal stake in the dispute. Criminal litigation lacks this symmetry. The criminal trial addresses the question of whether the defendant should be labelled and punished as a criminal.The criminal defendant has a great deal to lose. If convicted, the defendant will be censured, may be fined or imprisoned, and may suffer significant reputational damage with social and other collateral consequences. And while the defendant has so much at stake, the prosecution, a state-funded repeat player with access to the investigative capacities of the police, has far greater resources than the typical criminal defendant. Because the defendant has more at stake and fewer resources, the prosecution carries higher and greater procedural and ethical obligations: see 5.50–5.52.The prosecution’s goal should be to achieve justice, not to secure conviction. For example, the prosecutor must call all available material witnesses, not just those who can be expected to incriminate the defendant. Many other safeguards operate for the benefit of the defendant in the criminal trial, such as their right to silence, the presumption of innocence and the requirement that the prosecution prove guilt beyond reasonable doubt.15 These principles serve the rule of law and the constitutional guarantee of a fair trial, which, as Deane J said in Dietrich v The Queen (‘Dietrich’), ‘provides the ultimate rationale and touchstone of the rules and practices which the common law requires to be observed in the administration of the substantive criminal law’.16 In the same case, Mason CJ and McHugh J said: ‘The right of an accused to receive a fair trial according to law is a fundamental element of our criminal justice system.’17 Deane J further said: ‘The fundamental prescript of the criminal law of this country is that no person shall be convicted of a crime except after a fair trial according to law.’18 JUDGE AND JURY Nowadays, most civil and criminal trials are heard by a judge alone. Juries are mainly reserved for the trial of more serious criminal charges,19 and for these matters the jury is strongly entrenched. Section  80 of the Australian Constitution guarantees that a trial on indictment will be by jury. Strictly speaking, this only applies to federal offences, but the High Court regularly refers to the jury’s constitutional status in non-federal cases.20

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See, eg, R v Dookheea (2017) 262 CLR 402 (‘Dookheea’). Dietrich v The Queen (1992) 177 CLR 192, 326 (Deane J) (‘Dietrich’). Ibid 299 (citations omitted). Ibid 326. Though note further observations by Deane J: ‘[T]he practical content of the requirement that a criminal trial be fair may vary with changing social standards and circumstances’: at 328; ‘regard must be had “to the interests of the Crown acting on behalf of the community as well as to the interests of the accused” : at 335, quoting from R v Barton (1980) 147 CLR 75, 101 (Gibbs ACJ and Mason J). Further, justice is a practical exercise. It does not demand ‘the fairest of all possible trials’. Justice requires only ‘as fair a trial as practicable in the circumstances’: Dietrich (n 16) 324. In New South Wales, juries are reserved for charges which are heard on indictment, as opposed to summary offences. Summary offences are punishable by a maximum of two years imprisonment. There is also a category of offences which may proceed either way. If tried summarily the two-year maximum will apply. See Criminal PA (n 3) chs 3–5. See, eg, R v Baden-Clay (2016) 258 CLR 308, 329.

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CHAPTER 6 GOING TO LAW: LEGAL DISPUTE RESOLUTION PROCESSES

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The jury is a ‘little parliament’21 which gives representatives of the community direct involvement in the justice system. It is also thought that 12 randomly chosen members of the public will, in combination, have a greater wealth of life experience to draw upon than a single trial judge.22

In a jury trial, the jury plays a narrowly defined role. The trial judge is the tribunal of law while the jury is the tribunal of fact (see further discussion on this distinction at 6.54ff). The trial judge will seek to ensure that the parties comply with the requirements of procedural law. An important aspect of this is for the trial judge to rule  on the admissibility of evidence. Some evidence may be excluded because there are concerns that it may prejudice the jury against the defendant; for example, evidence revealing that the defendant, facing charges for a physical assault on a child, has prior convictions for child sexual assault.23 Other evidence may be subject to exclusion because, although highly relevant, it has been illegally obtained; for example, a confession obtained by threats of violence.24 It is also the trial judge’s job to ensure that the jury, in carrying out its task, properly applies both the substantive law and procedural law. The trial judge will instruct the jury as to the legal definitions of any criminal offences and defences that are in issue; for example, that it is sufficient for a murder conviction that the defendant, while he may not have intended the victim’s death, intended to cause the victim grievous bodily harm.25 The trial judge will direct the jury as to the proof requirements — the prosecution must 21

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Patrick Devlin, Trial by Jury (Methuen, 1966) 164; Sally Lloyd-Bostock and Cheryl Thomas, ‘Decline of the “Little Parliament”: Juries and Jury Reform in England and Wales’ (1999) 62 Law & Contemporary Problems 7. See, eg, Hawi v The Queen [2014] NSWCCA 83 [480]; Pell v The Queen (2020) 94 ALJR 394 [37]–[38]. See, eg, Evidence Act 1995 (NSW) ss 97, 98, 101, 135, 137. See, eg, ibid ss 84, 138, 139. See, eg, Crimes Act 1900 (NSW) s 18(1)(a); Criminal Code Act 1899 (Qld) s 302(1)(a).

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6.24 standard of proof: the degree to which a party must prove their case at trial in order to succeed: in criminal cases the prosecution must prove the defendant’s ‘guilt beyond reasonable doubt’; in civil cases the plaintiff must prove the defendant’s liability on ‘the balance of probabilities’

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6.25

prove its case to the criminal standard of proof, ‘beyond reasonable doubt’, while the defence may, in some cases, be required to prove defences on the ‘balance of probabilities’, the  lower standard that also applies in civil trials.26 The trial judge will also provide guidance on any evidentiary complications or dangers, such as the potential unreliability of the evidence of a police informant.27 It will then be up to the jury to determine whether, taking account of the trial judge’s instructions and guidance, the evidence they have seen and heard warrants the defendant’s conviction. In non-jury trials, including most civil trials, the judge operates as both tribunal of fact and tribunal of law. However, the notional separation remains. The judge should properly give directions on the law to him- or herself while carrying out the fact-finding function. Theoretically, there is even scope for the trial judge, acting as tribunal of law, to exclude evidence on the ground that it may prejudice him- or herself as the trial judge, acting as tribunal of fact. The fact–law distinction can be a difficult one, but it is important for a number of purposes. As well as determining whether an issue is one for the judge or the jury, it can also inf luence the breadth of rights of appeal: see 6.30, 6.54–6.58. GOALS OF THE ADVERSARIAL TRIAL Accuracy and individual autonomy On one view, the adversarial system is designed to advance the goal of accurate dispute resolution. Factual accuracy has been described as a ‘fundamental’28 and ‘paramount’29 goal of the trial. Giving the parties control over the proceedings is said to serve this goal, since the parties know the dispute and ‘each side [will] strive as hard as it can in a keenly partisan spirit, to bring to the court’s attention the evidence favourable to that side’.30 On another view, however, the adversarialist spirit of proceedings has the potential to disrupt the court’s pursuit of factual accuracy.31 A lawyer will not ‘concede the existence of facts if they are inimical to his client and he thinks they cannot be proved by his adversary’.32 The evidence that is placed before the court is likely to be the ‘partisan and coerced residue … culled by the parties with a view not so much to establishing the whole truth as to winning the case’.33 Indeed, critics have suggested that the common law system’s attraction to adversarialism prioritises values other than factual accuracy. Giving the parties a high level of control over the proceedings reflects the importance in the common law world of 26 27 28

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See, eg, Crimes Act 1900 (NSW) s 419. See, eg, Evidence Act 1995 (NSW) s 165(1)(e). Vern R Walker, ‘Preponderance, Probability and Warranted Factfinding’ (1996) 62 Brooklyn Law Review 1075, 1081. Marvin Frankel, ‘The Search for Truth: An Umpireal View’ (1975) 123 University of Pennsylvania Law Review 1031, 1055. Jerome Frank, Courts on Trial: Myth and Reality in American Justice (Princeton University Press, 1949) 80. See also Jones v National Coal Board [1957] 2 QB 55, 63. See, generally, David Hamer and Gary Edmond, ‘Forensic Science Evidence, Wrongful Convictions and Adversarial Process’ (2019) 38 University of Queensland Law Journal 185. Frank (n 30) 84; see also Frankel (n 29) 1038. HM Hart Jr and J McNaughten, ‘Evidence and Inference in the Law’, in D Lerner (ed), Evidence and Inference (Free Press, 1959) 53.

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CHAPTER 6 GOING TO LAW: LEGAL DISPUTE RESOLUTION PROCESSES

individual autonomy34 and a mistrust of bureaucracy and government.35 The epigraph to this chapter is a quote from an extrajudicial article on judicial independence by a former Chief Justice of New South Wales, James Spigelman. In that article he suggests that ‘[t]he fairness of the procedures is as essential as the correctness or fairness of the outcomes’, adding that ‘[w]hen people talk about having their “day in court” this is a matter that is of significance to their sense of freedom and of personal autonomy’.36 The values of individualism and autonomy, together with a mistrust of government, are also reflected in the longstanding but slightly paradoxical attachment, in much of the common law world, to the jury. As mentioned at 6.22, quite a few rules of evidence exclude relevant evidence because of the perceived risk that a jury might misuse it. These considerations lead some critics to reject the proposition that the adversarial trial pursues truth. Instead the trial is viewed as a game of skill or a battle of strength, which is inherently inconsistent with the pursuit of truth and justice. In most games each contestant is given a fair opportunity of victory, but ‘[j]ustice, … by definition, belongs to one side or another a priori’.37 This image of the trial as a game or battle extends to the accusatorial criminal trial. Procedural rules are introduced that favour the defendant in recognition that ‘the adversaries wage their contest upon a tilted playing field’.38 The procedural interventions aim to achieve ‘equality of arms’,39 ‘the existence of contestants who are more or less evenly matched’.40 These rules may hamper factual accuracy by ‘handicapping’41 the prosecution so as to give the defendant a ‘fair chance of escape’.42

6.26

Peaceful and efficient dispute resolution

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From a broader perspective, having regard to the role played by the law in the operation of society, it can plausibly be argued that the goals of factual accuracy and respecting individual autonomy are secondary to the overarching ‘paramount’ goal: ‘to resolve the dispute.’43 Trials have been described as the ‘last line of defence in the indispensable effort to secure peaceful settlement of social conflicts’.44 If the trial was not accepted as a fair way to resolve disputes,45 the law would fail in its ‘critical role in the promotion of social

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36 37 38

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44 45

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PD Connolly, ‘The Adversarial System: Is It Any Longer Appropriate?’ (1975) 49 Australian Law Journal 439, 441; John Thibaut and Laurens Walker, ‘A Theory of Procedure’ (1978) 66 California Law Review 541. Michael Asimow, ‘Popular Culture and the Adversary System’ (2007) 46 Loyola of Los Angeles Law Review 653, 658; also Frank (n 30) 92. Spigelman (n 1) 139. Anatol Rapoport, Fights, Games and Debates (Ann Arbor, MI, University of Michigan Press, 1960) 263. Daniel Givelber, ‘Meaningless Acquittals, Meaningful Convictions’ (1997) 49 Rutgers Law Review 1317, 1360. See, eg, R v Horncastle [2010] 2 AC 373 [26]. See, eg, Dietrich (n 16) 354. Jenny McEwan, ‘Ritual, Fairness and Truth:The Adversarial and Inquisitorial Models of Criminal Trial’, in Antony Duff et al (eds), The Trial on Trial:Volume 1 — Truth and Due Process (Hart Publishing, 2004) 51, 68. HLA Hart, ‘The Demystification of the Law’, in Essays on Bentham: Studies in Jurisprudence and Political Theory (Oxford University Press, 1982) 21, 37, discussing Works of Jeremy Bentham (Bowring ed, 1838–43) vol 7, 454. Charles Nesson, ‘Reasonable Doubt and Permissive Inferences: The Value of Complexity’ (1979) 92 Harvard Law Review 1187, 1194 (‘Reasonable Doubt’). Hart and McNaughten (n 33) 52. Charles Nesson, ‘The Evidence or the Event? On Judicial Proof and the Acceptability of Verdicts’ (1985) 98 Harvard Law Review 1357.

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6.28

order’,46 to quote again from Spigelman.This draws on the view that there would be a risk of the parties to a dispute taking matters into their own hands, threatening civil peace;47 law ‘is civilisation’s substitute for vengeance’.48 On this view, while the accuracy of a verdict may contribute to its acceptability,49 it is not the only consideration.This is why, Spigelman argues, it is important to give the parties their ‘day in court’. Other commentators agree that respecting parties’ ‘sense of freedom and of personal autonomy’50 is the best way to ensure that the parties ‘believe that justice has been done regardless of the verdict’.51 Efficiency is another key consideration in the effectiveness of the trial as a disputeresolution mechanism. ‘[L]itigation is a practical enterprise that must seek finality within reasonable time, money, and other resource constraints’.52 Achieving absolute certainty about past events is not possible and is not required,53 not even by the criminal standard of proof. An endeavour to arrive at the indisputably true facts could be never-ending in time and cost, and ‘[t]he law would fail to protect the community’.54 The common law legal system avoids this risk by giving the parties control over the dispute and establishing the trial as a means of making a definitive choice between the parties’ competing claims. The court’s oversight role includes ensuring the trial occurs on schedule, and that the process has a definite endpoint. Burdens and standards of proof — requiring the prosecution to prove guilt ‘beyond reasonable doubt’, and the plaintiff to prove liability ‘on the balance of probabilities’ — enable the court to make a clear decision notwithstanding any lingering uncertainty.

Finality and appeals

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6.29 appeal: the opportunity for an unsuccessful litigant to seek to have an unfavourable decision overturned by a higher court

It is important to the goal of dispute resolution that courts provide finality within reasonable time.This has been recognised both in criminal and civil litigation.55 The party that is unsuccessful at trial may be able to appeal, but only within certain restrictions.The details of these restrictions vary between jurisdictions and can be found in the relevant legislation applicable to that jurisdiction.56 (In this context, the term ‘jurisdiction’ refers not only to the law within a particular geographical region, but also to the distinction between criminal and civil litigation, and the levels of the lower and appeal courts.) These restrictions reflect ‘the overarching societal interest in the finality of litigation [and the]

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Spigelman (n 1) 139. C Chamberlayne,‘The Modern Law of Evidence and its Purpose’ (1908) 42 American Law Review 757, 765. Eduardo J Couture ‘The Nature of Judicial Process’ (1950) 25 Tulane Law Review 1, 7. Nesson, ‘Reasonable Doubt’ (n 43) 1194. Spigelman (n 1) 139. Thibaut and Walker (n 34), 551. Dale Nance, ‘The Best Evidence Principle’ (1988) 73 Iowa Law Review 227, 233. ‘[A]bsolute mathematical or metaphysical certainty is not essential, and in the course of judicial investigations would be usually unattainable.’: Briginshaw v Briginshaw (1938) 60 CLR 336, 360 (Dixon J), quoting Thomas Starkie, A Practical Treatise of the Law of Evidence (V & R Stevens and GS Norton, 4th ed, 1853) 817. Miller v Minister of Pensions [1947] 2 All ER 372, 373 (Denning LJ). Crampton v The Queen (2000) 206 CLR 161 [14], [19] (‘Crampton’); Preston Banking Co v William Allsup & Sons [1895] 1 Ch 141, 144 (Lindley LJ); Smith v New South Wales Bar Association (1992) 176 CLR 256, 265 (Brennan, Dawson, Toohey and Gaudron JJ). Harrison v Schipp (2002) 54 NSWLR 612 [55]; Fleming v The Queen (1998) 197 CLR 250 [12].

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CHAPTER 6 GOING TO LAW: LEGAL DISPUTE RESOLUTION PROCESSES

danger that trial … will come to be regarded as a preliminary skirmish in a battle destined to reach finality before a group of appellate judges’.57 Despite the jurisdictional variations, it is possible to make some broad observations about the restrictions on appeals. First, an appeal must be commenced within a limited period — ordinarily a matter of weeks.58 Second, it may be easier to persuade an appeal court that the lower court has made an error on a point of law than a point of fact.59 Appeal courts generally do not rehear evidence — at most they will review the trial transcript, and in some circumstances, appeal courts will only intervene where legal error has been demonstrated. With regard to facts, appeal courts acknowledge that the trial court carries the advantage in having seen and heard witnesses.60 Further, where there is an appeal from a jury trial, the appeal court, made up of professional judges, may be reluctant to privilege their view of the facts over that of the community’s representatives. Finally, disappointed litigants generally only have one right of appeal. Once the appeal court has decided the appeal, that decision is final.61 This is subject to the qualification that the unsuccessful party on the appeal may have the opportunity to appeal to a higher appeal court — ultimately the High Court of Australia. However, the High Court will only hear appeals where it gives ‘special leave’,62 and leave is rarely granted.63 In Crampton v The Queen, Gleeson CJ indicated that ‘a second appeal is intended to be reserved for special cases. It is not there for the purpose of giving any sufficiently determined and resourceful litigant a third chance of success.’64 Just as much criminal procedure operates asymmetrically in order to provide the criminal defendant with special protections (see 6.20), the same asymmetry operates on appeals. The criminal defendant enjoys the benefit of the ancient principle of double jeopardy: a defendant should not be put in jeopardy of criminal punishment in respect of the same facts more than once. This means that, generally, once the trial is over, the defendant is immune from further action by the prosecution. The double jeopardy principle reflects a variety of concerns: ‘the imbalance of power between prosecution and accused, seriousness for an accused of conviction, prosecution as an instrument of tyranny and the importance of finality’.65 Nevertheless, scope for prosecution appeals has increased in recent years. These reforms may reflect a broader political shift in priorities, away from safeguarding

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Crampton (n 55) [14], [19]. See, eg, UCPR (n 2) r 50.3; Criminal Appeal Act 1912 (NSW) s 10(1)(a). See, eg, Criminal Appeal Act 1912 (NSW) ss 5, 6. Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550, 561 [54]; Pell v The Queen (2020) 94 ALJR 394 [37]–[38]. See, eg, Gamser v Nominal Defendant (1977) 136 CLR 145, 154 (Aickin J); Folbigg v The Queen [2007] NSWCCA 128. Special leave is granted only where a question of law is raised that is of public importance, or involves a conflict between courts, or ‘is in the interests of the administration of justice’: Judiciary Act 1903 (Cth) s 35A. Pam Stewart and Anita Stuhmcke, ‘Litigants and Legal Representatives: A Study of Special Leave Applications in the High Court of Australia’ (2019) 41 Sydney Law Review 33, 43. Crampton (n 55) [20], although in this case special leave was granted, the appeal allowed, and an acquittal ordered. R v Carroll (2002) 213 CLR 635 [23].

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acquittal: found to be not guilty of a charge

6.32

the criminal defendant in favour of law enforcement and the protection of society.66 For instance, the prosecution can appeal against a sentence that it views as too lenient.67 And, in respect of the most serious offences, in limited situations, the prosecution can even seek to overturn a jury acquittal on the basis there is ‘fresh and compelling evidence’ that demonstrates the jury made a factual error. For example, the acquitted defendant may have later made a plausible confession, or developments in DNA-profiling technology may clearly identify the defendant as the perpetrator. All Australian states have introduced this exception to double jeopardy68 but it has so far been virtually unused.69 This is a little surprising given that the strength of the presumption of innocence and the demanding requirement of proof beyond reasonable doubt imply that a significant proportion of acquitted defendants may in fact be guilty. It may be that, despite having the power to correct mistaken acquittals, the criminal justice authorities have a strong traditional attachment to the defendant’s protection against double jeopardy.70 WRONGFUL CONVICTIONS As discussed at 6.25–6.26, factual accuracy is often identified as a key goal of adversarial litigation. However, the overarching goal of resolving disputes in a way that is acceptable to the parties and society more broadly, which prioritises efficiency and party autonomy, raises the question as to the accuracy of adversarial litigation. This question is particularly pertinent to the criminal trial. A high premium is placed on the factual accuracy of convictions. The law expresses acute awareness of the ‘searing injustice and consequential social injury ... when the law turns upon itself and convicts an innocent person’.71 A major reason for the asymmetric operation of much criminal procedure, in the defendant’s favour, is to minimise the risk of harmful wrongful convictions.To obtain a conviction the prosecution must overcome the presumption of innocence with proof beyond reasonable

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Double jeopardy exceptions allowing appeals against jury acquittals were first introduced in the United Kingdom in response to the injustice of the acquittals of Stephen Lawrence’s killers: Paul Roberts,‘Double Jeopardy Law Reform: A Criminal Justice Commentary’ (2002) 65 The Modern Law Review 393. See also Criminal Justice Act 2003 (UK) pt 10; Criminal Procedure and Investigations Act 1996 (UK) ss 54–57. See, eg, Criminal Appeal Act 1912 (NSW) s 5D. In addition, the prosecution can appeal against a trial judge’s interlocutory determination to exclude incriminating evidence: s  5F. And the prosecution can appeal against acquittals by a judge sitting without a jury, and jury acquittals at the direction of a judge, where the trial judge made a mistake of law: see, eg, Crimes (Appeal and Review) Act 2001 (NSW) s 107; discussed in R v JS (2007) 175 A Crim R 108; R v PL (2009) 199 A Crim R 199; R v PL [2012] NSWCCA 31. Remarkably, the defendant PL had directed acquittals on murder and manslaughter charges overturned on appeal twice. See, eg, Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2006 (NSW), amending and renaming Crimes (Appeal and Review) Act 2001 (NSW). An unsuccessful application to set aside murder acquittals in connection with the Bowraville case was made in A-G (NSW) v XX (2018) 274 A Crim R 30.The NSW Government did not support consequent proposals to broaden the ‘fresh and compelling evidence’ exception, incorporated in the private member’s Crimes (Appeal and Review) Amendment (Double Jeopardy) Bill 2019, despite the recommendations of the Standing Committee on Law and Justice: Legislative Council Standing Committee on Law and Justice, Parliament of New South Wales, Crimes (Appeal and Review) Amendment (Double Jeopardy) Bill 2019 (Report 71, August 2019). Notably, the NSW Director of Public Prosecutions did not support the broadening of the ‘fresh and compelling evidence’ exception to double jeopardy in the 2019 inquiry: (n 69); see also Office of the Director of Public Prosecutions (NSW), Submission No 2 to Legislative Council Standing Committee on Law and Justice, Crimes (Appeal and Review) Amendment (Double Jeopardy) Bill 2019 (28 June 2019) 7. Van der Meer v The Queen (1988) 82 ALR 10, 31 (Deane J).

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CHAPTER 6 GOING TO LAW: LEGAL DISPUTE RESOLUTION PROCESSES

doubt. The criminal standard of proof ‘requires a much higher state of satisfaction than proof on the balance of probabilities’,72 the standard for civil trials. Further, it is far easier for a defendant to appeal against a conviction than it is for the prosecution to appeal against an acquittal.The asymmetries increase the risk of mistaken acquittals, but these are viewed as less harmful than wrongful convictions. Nevertheless, it is clear that wrongful convictions occur, and the errors are not always corrected on appeal. Quite regularly, convictions upheld on appeal are later revealed to be erroneous. In the United States the Registry of Exonerations records hundreds of convicted defendants exonerated through DNA testing and hundreds more non-DNA exonerations.73 Comparable data has not yet been systematically gathered in Australia; however, here too there is a steady f low of exonerations. In 2014, the Full Court of the South Australian Supreme Court overturned Henry Keogh’s 1995 conviction for the murder of his fiancée.74 A retrial was ordered, but the prosecution decided not to pursue it. Also in 2014, the Full Court of the Supreme Court of the Australian Capital Territory overturned the 1995 conviction of David Eastman for the murder of Assistant Commissioner of the Federal Police, Colin Winchester.75 Eastman was acquitted on retrial in 2018. Both of these appeals were exceptional subsequent appeals. Keogh was granted leave to bring his subsequent appeal before the South Australian Full Court under a recent criminal justice reform,76 on the basis of ‘fresh and compelling evidence’ of his innocence. (This exceptional subsequent defence appeal was modelled on the prosecution’s exceptional appeal against acquittals under recent double jeopardy reforms.) The fresh and compelling evidence in R v Keogh [No 2]77 revealed the unreliability and bias of the prosecution’s forensic pathologist, Dr Colin Manock, which had ‘materially misled the prosecution, the defence, the trial judge and the jury’.78 In Eastman’s case, too, fresh evidence had come to light regarding the unreliability and bias of evidence provided by the prosecution’s expert witness, police forensic scientist Robert Barnes. This had been revealed in a court-ordered judicial inquiry (‘Eastman Inquiry’), which had ‘a devastating impact upon the reliability and the veracity of the trial evidence given by Mr Barnes’.79 Flawed and biased forensic evidence features prominently in Australian wrongful convictions.80 Exonerations like these highlight the dangers with the adversarial system. The prosecution’s overriding ethical duty is to assist the court in achieving a just result: see 5.50 and 6.20. However, sometimes it appears prosecutors are more interested in winning

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exoneration: where a convicted defendant is later proven to be innocent, and is officially recognised as such

expert witness: a special kind of witness who, because of their specialist knowledge, may be called at trial to give evidence of their opinions about certain aspects of a case

6.34

Dookheea (n 15) [39]. The National Registry of Exonerations (Website) . R v Keogh [No 2] (2014) 121 SASR 307 (‘Keogh [No 2]’). Eastman v DPP (ACT) [No 2] [2014] ACTSCFC 2. Now see Criminal Procedure Act 1921 (SA) s 159. Keogh [No 2] (n 74). Ibid [345]. Board of Inquiry, Supreme Court of the Australian Capital Territory, Inquiry into the Conviction of David Harold Eastman for the Murder of Colin Stanley Winchester (Final Report, May 2014) [1103] (‘Eastman Inquiry’). See, eg, Royal Commission of Inquiry into the Chamberlain Convictions (Final Report, 1987); see, generally, Hamer and Edmond (n 31).

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Copyright © 2020. LexisNexis Butterworths. All rights reserved.

6.35

a conviction. Expert witnesses owe a duty to the court similar to that of prosecutors: ‘An expert witness is not an advocate for a party and has a paramount duty, overriding any duty to the party … to assist the court impartially on matters relevant to the area of expertise of the witness.’81 And yet they too may get caught up in the contest, losing sight of their duty. In the Eastman Inquiry, the inquiry’s commissioner commented that Barnes ‘behaved in a manner totally inconsistent with the independence of a forensic expert. He identified himself with the prosecution and plainly demonstrated his bias in favour of the prosecution.’82 Similar comments about a prosecution expert witness were made in a recent appeal in the New South Wales Court of Criminal Appeal, Wood v The Queen: ‘Rather than remaining impartial and offering his independent expertise to the Court’, ‘A/Prof Cross [the prosecution’s expert witness] took upon himself the role of investigator and became an active participant in attempting to prove that the applicant had committed murder’.83 Unreliable and biased expert evidence has also been identified as major factor in the cases on the National Registry of Exonerations in the United States; other leading causes are witnesses making false accusations, official misconduct, mistaken identification and false confessions.84 It is difficult to determine how often wrongful convictions occur. The number that are recognised and corrected is extremely small relative to the total number of convictions.85 However, it is likely that many more wrongful convictions remain undiscovered. Having failed at first appeal, it is difficult for a defendant to gain the opportunity of obtaining a further appeal. Traditionally, this option was not open at all. A wrongfully convicted defendant’s only option was to persuade the Attorney-General and government to exercise the prerogative of mercy and grant a pardon. Nowadays there are avenues for obtaining a further appeal, but they are narrow. As mentioned at 6.33, Keogh was able to bring a further appeal to the South Australian Full Court, but to do so, he first had to persuade the Court that ‘there is fresh and compelling evidence that should, in the interests of justice, be considered on an appeal’.86 The New South Wales Supreme Court has said, in respect of the provisions operating there, that it ‘is not intended to provide a convicted person with yet another avenue of appeal after the usual avenues have been

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UCPR (n 2) sch 7 ‘Expert witness code of conduct’, r 2 ‘General duties to the Court’. This code has application to criminal cases: Supreme Court Rules 1970 (NSW) r 75.3J. At common law, see National Justice Compania Naviera SA v Prudential Assurance Co Ltd (‘The Ikarian Reefer Case’) [1993] 2 Lloyd’s Rep 68, 81–2. Eastman Inquiry (n 79) [1114]. Wood v The Queen (2012) 84 NSWLR 581; [2012] NSWCCA 21 [758] (the full decision is not extracted in the NSWLR). Although Gordon Wood managed to get his conviction overturned on his first appeal, the criminal process had dragged on over many years. Gordon Wood’s girlfriend, Caroline Byrne, died in 1995. Originally the police thought it was suicide, but by the end of the 1990s it was being investigated as a possible murder, with Wood the prime suspect.Wood was eventually convicted in 2008 but his successful appeal took place several years later. By that time he had spent a couple of decades under investigation and more than three years in prison. National Registry of Exonerations (n 73). In the 12 months to June 2019, 15,481 defendants were convicted in Australian higher courts, and 526,716 in the magistrates’ courts: Australian Bureau of Statistics, Criminal Courts, Australia, 2018–19 (Catalogue No 4513.0, 27 February 2020). Only a handful of convictions upheld on first appeal are later identified as wrongful. Criminal Procedure Act 1921 (SA) s 159(1).

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CHAPTER 6 GOING TO LAW: LEGAL DISPUTE RESOLUTION PROCESSES

exhausted’.87 It is only through a combination of good fortune, the work of criminal justice activists,88 and great personal fortitude that wrongfully convicted defendants like Eastman and Keogh eventually manage to achieve justice. It can be imagined that many wrongfully convicted defendants, having been convicted at trial and failed on appeal, and perhaps still serving time in prison, would lack the resources and the resilience to persevere and succeed. Many commentators believe Australia needs a criminal cases review commission (CCRC) along the lines of those in the United Kingdom.89 This body would have the powers and resources to consider applications from defendants who claim to have been wrongfully convicted, to investigate their cases and, where it appears miscarriages of justice may have occurred, to refer the case back to the criminal appeal court for fresh consideration. Arguably, a CCRC is a crucial piece of criminal justice infrastructure. New Zealand has recently established a CCRC, and Canada may follow.90

6.36

Costs, delays and access to justice 6.37

A major goal for litigation is to provide an efficient way of resolving disputes that gains general acceptance among the community. To a large extent this goal is achieved in Australia, where parties who are unable to resolve disputes themselves generally accept litigation as the means of bringing resolution. It is uncommon for parties to choose instead to take matters into their own hands. For the most part, Australia enjoys the rule of law. And by giving parties control over disputes, the government limits its own costs. However, litigation is an inherently complex operation. Achieving and maintaining efficiency is a constant challenge.The justice system raises perennial and growing concerns over delays, costs and access to justice.91 While the adversarial system saves the government money, the expenses of investigation, gathering evidence, and presenting evidence and arguments at trial are not avoided altogether. The adversarial system allocates these expenses to the parties — and these expenses may be considerable. N =

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R v Milat (2005) 157 A Crim R 565, 574 [26] (Barr J); Application of Holland [2008] NSWSC 251 [9] (Johnson J). See, eg, Colleen Egan, Murderer No More: Andrew Mallard and The Epic Fight to Prove His Innocence (Allen & Unwin, 2010) and the work of Robert Moles and Bibi Sangha on Networked Knowledge (Website) . See, eg, David Hamer,‘Wrongful Convictions,Appeals, and the Finality Principle:The Need for a Criminal Cases Review Commission’ (2014) 37 University of New South Wales Law Journal 270; Lynne Weathered, ‘The Criminal Cases Review Commission: Considerations for Australia’ (2012) 58 Criminal Law Quarterly 245; Robert Moles,‘Institutional Reform in the Context of Criminal Appeal in South Australia’ (2015) 17 Flinders Law Journal 331; Michael Kirby, ‘A New Right of Appeal as a Response to Wrongful Convictions: Is it Enough?’ (2019) 43 Criminal Law Journal 299, 305. Kirby (n 89) 305. See, eg, Lord Woolf, Access to Justice (Final Report, 1996); Law Reform Commission of Western Australia, Review of the Criminal and Civil Justice System in Western Australia (Final Report, September 1999); Australian Law Reform Commission, Managing Justice: Review of the Federal Civil Justice System (originally entitled, Review of the Adversarial System of Litigation) (Report No  89, January 2000); Criminal Law Review Division, New South Wales Attorney-General’s Department, Report of the Trial Efficiency Working Group (March 2009); Anthony Edwards, ‘The Other Leveson Report — the Review of Efficiency in Criminal Proceedings’ [2015] Criminal Law Review 399; Law Council of Australia, The Justice Project (Final Report, 2018).

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In many cases, a party’s expenses will include the cost of engaging legal advice. Adversarial litigation adds numerous technical rules of procedure and evidence to the already complex substantive rules of the common law and legislation. As discussed above, many steps are taken before trial. In civil litigation parties must draft and file pleadings, such as the plaintiff ’s statement of claim and the defendant’s defence: see 6.12. In addition, the parties will take steps to obtain information from the opposing party, seeking court orders for discovery and interrogatories. In most cases, the parties will not have the necessary knowledge or skills to engage in the adversarial contest themselves: ‘a trial is a battle and the lawyer the client’s champion’.92 Some lawyers may see an advantage in using certain technical rules in game-playing strategies that create delays and additional costs.93 Clearly, not everyone engaged in a legal dispute will be able to afford a lawyer: ‘You can’t pay $500 per hour when you earn $500 per week.’94 You have to be very wealthy — or in some cases have your insurance company exercise the right of subrogation and take over the litigation on your behalf — to contemplate going to trial, which could easily cost $100,000 in legal fees.95 Even if you win (which cannot be guaranteed) and the losing party is ordered to pay your costs,96 you may still end up out of pocket. In Dietrich97 the High Court held that a criminal defendant without legal representation could not be guaranteed a fair trial. The Court held that if a defendant facing serious criminal charges cannot afford legal representation, and it is not provided by the state, the trial judge should stay proceedings. In civil cases, too, self-represented litigants raise concerns. Not knowing the complexities of the law or procedure, they require the court’s assistance and tend to slow down proceedings.98 More fundamentally, there is the risk of a ‘justice deficit’.99 ‘If obtaining justice calls for legal expertise, then those who cannot afford to pay for it are in effect denied access to justice.’100 Governments fund the legal costs of some litigants through legal aid schemes. However, there are many other drains on the public purse and the legal aid budget does not stretch very far. Following Dietrich, the state must provide counsel for criminal defendants facing serious charges, but most defendants in less serious criminal matters and most parties in non-criminal matters are ineligible.101

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EG Thornburg, ‘Metaphors Matter: How Images of Battle, Sports and Sex Shape the Adversary System’ (1995) 10 Wisconsin Women’s Law Journal 225, 225. Robert A Kagan, ‘Adversarial Legalism: Tamed or Still Wild?’ (1999) 2 Legislation and Public Policy 217. An unrepresented litigant quoted by Stephen Kós, ‘Civil justice: Haves, Have-nots and What To Do about Them’ (2016) 5 Journal of Civil Litigation and Practice 178, 180. Tania Sourdin and Naomi Burstyner, ‘Cost and Time Hurdles in Civil Litigation: Exploring the Impact of Pre-action Requirements’ (2013) 2 Journal of Civil Litigation and Practice 66, 73. See above n 10 and accompanying text. Dietrich (n 16). Productivity Commission, Access to Justice Arrangements (Inquiry Report No 72, 5 September 2014) vol 1, 498–500; Kós (n 94) 181. Adrian Zuckerman, ‘No Justice Without Lawyers: The Myth of an Inquisitorial Solution’ (2014) 33 Civil Justice Quarterly 355, 356. Ibid 355–6, quoted in Kós (n 94) 181. In New South Wales, for example, the applicant faces several hurdles. First, legal aid is only available for certain types of matters: NSW Legal Aid, Legal Aid Policy (Website) [6.2.1]. And then the applicant must satisfy a means test and a merit test: [6.2]. That is, they must have very limited income and assets, and reasonable prospects of success in the litigation. Even then, there is a final hurdle. NSW Legal Aid must have ‘available funds’: [6.2]. 5 PB 6 PB 0 LL ,

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CASE MANAGEMENT, SETTLEMENT AND GUILTY PLEAS Unsurprisingly, in view of the costs issue, most civil disputes do not go to court. Even where litigation is commenced, the vast majority of disputes settle prior to trial. Traditionally, settlement occurs ‘on the courthouse steps’ immediately prior to trial.102 While late settlement saves some costs of the hearing, it is very disruptive. Considerable time and effort will already have been spent by the parties in ensuring readiness for trial and the court will have scheduled time for trial; late settlement wastes the court’s resources and delays other cases. For this reason, in a departure from the pure adversarial model, legislation gives courts increasing case-management powers and responsibilities. The aim is to achieve ‘just, quick and cheap resolution of the real issues in the proceedings’,103 and the parties are given a ‘duty to assist the court to further’ this goal.104 If a party breaches this duty, this may be reflected in the orders that the court makes with regard to costs.105 A party’s lawyers can also be made liable to pay costs,106 for example, for ‘raising untenable defences for the purpose of delay’.107 To try to facilitate early settlement, the parties may be required to engage in ADR: see 6.49ff.108 Ironically, concerns have been raised that case management requirements, in demanding that more legal work take place at an earlier stage, may actually increase costs.109 However, it seems that these concerns are not borne out.110 Similar concerns about costs and delays apply to criminal matters. The New South Wales Government, for example, recently noted that ‘73 per cent of serious criminal cases end with the defendant pleading guilty, yet 23 per cent of guilty pleas are not entered until the day of trial’.111 It introduced reforms to encourage early guilty pleas, promising that this would reduce expenditure on ‘police, courts and lawyers on both sides’, as well as reducing stress for victims of crime.112 Under the scheme, which commenced on 30 April 2018, criminal defendants charged with indictable offences will receive a reduction in their sentence for pleading guilty, with the size of the discount (up to 25%) depending on the earliness of the guilty plea.113 As with civil procedure reforms, the scheme requires greater case management by courts, earlier exchange of information by the parties, and mandatory case conferencing. Clearly guilty pleas save everyone a great deal of time and expense. If defendants stopped pleading guilty, the number of jury trials might increase nearly fourfold. The system would not be able to cope without a massive increase in resources. Nevertheless, it appears potentially problematic that defendants are being convicted and punished in such

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Julie Macfarlane, The New Lawyer (UBC Press, 2nd ed, 2017) 24. See, eg, Civil Procedure Act 2005 (NSW) (‘Civil PA’) s 56(1). Ibid s 56(3). Ibid s 56(5). Ibid s 99. Judicial Commission of NSW, Civil Trials Bench Book (May 2020) [8-0110], citing Deputy Commissioner of Taxation v Levick (1999) 168 ALR 383; Helljay Investments Pty Ltd v Deputy Commissioner of Taxation (1999) 166 ALR 302. See, eg, Civil PA (n 103) s 26. Sourdin and Burstyner (n 95) 66. Ibid. NSW Department of Communities and Justice, ‘Encouraging Earlier Guilty Pleas’ (Factsheet) . Ibid. Crimes (Sentencing Procedure) Act 1999 (NSW) s 25D.

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great numbers without any genuine judicial assessment of the prosecution case. It might be assumed that a guilty plea provides a very strong indication of guilt. However, the United States National Registry of Exonerations, in a 2015 report, noted that 15% of known exonerees had pleaded guilty.114 Defendants who are led to believe that the prosecution has strong evidence against them, have little faith in the court’s ability to recognise their innocence, and are offered a considerable sentencing discount, may be tempted to plead guilty notwithstanding their innocence.

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TRIBUNALS In addition to its court system, Australia has other official bodies with the job of adjudication, that is, making decisions to resolve legal disputes. These bodies are known collectively as tribunals, but may also be termed boards, committees, commissions, agencies, councils or authorities. Tribunals are sometimes said to perform a ‘quasi-judicial’ function, reflecting the view that courts are the only bodies which carry out ‘judicial’ functions. However, while federal tribunals are not permitted under the Constitution to exercise judicial powers,115 this is not true of state tribunals. The NSW Civil and Administrative Tribunal (‘NCAT’), for example, does exercise judicial power.116 Many decisions of tribunals appear in law reports and on databases like AustLII in much the same way as court decisions: see 18.29–18.30. There are now so many administrative tribunals that their importance in settling disputes approaches, and in some cases exceeds, that of courts.The Fair Work Commission, for example, is empowered to make a broad range of decisions that affect the working conditions of large segments of the Australian community. Similarly, there are numerous Commonwealth, state and territory administrative tribunals that adjudicate complaints against government and in some cases, private sector bodies: see 3.32 and 3.50ff. Tribunals are established by legislation and their authority is defined by their constituting Act. Initially, tribunals dealt with specific areas, such as town planning, medical negligence or guardianship. However, since the late 1960s, tribunals with government-wide jurisdiction have also been created. These have different divisions that deal with specialty areas, such as disputes about human rights, anti-discrimination or housing. These multi-purpose tribunals are now found in all Australian jurisdictions.117 Many tribunal members have legal qualifications, but many members instead (or as well) have qualifications appropriate for the specific matters which the tribunal decides.118 For example, the Mental Health Review Tribunal of New South Wales generally sits as a

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‘Innocents Who Plead Guilty’ (24 November 2015), National Registry of Exonerations (n 73). R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254 (‘Boilermakers Case’). Johnson v Dibbin [2018] NSWCATAP 45 [3]; Kirk v Industrial Relations Commission of NSW (2010) 239 CLR 531 [69]. State tribunals may exercise administrative powers in relation to federal matters but not judicial powers: Gaynor v A-G (NSW) [2020] NSWCA 48 [41]–[57] (Bell P), [86], [88]–[101] (Basten JA), [124]–[140] (Leeming JA). Administrative Appeals Tribunal Act 1975 (Cth) (‘AAT Act’); ACT Civil and Administrative Tribunal Act 2009 (ACT); Civil and Administrative Tribunal Act 2013 (NSW) (‘NCAT Act’); Northern Territory Civil and Administrative Tribunal Act 2014 (NT); Queensland Civil and Administrative Tribunal Act 2009 (Qld); South Australian Civil and Administrative Tribunal Act 2013 (SA); Tasmanian Civil and Administrative Tribunal Act 2020 (Tas); Victorian Civil and Administrative Tribunal Act 1998 (Vic); State Administrative Tribunal Act 2004 (WA). See, eg, NCAT Act (n 117) s 13. 5 PB 6 PB 0 LL ,

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three-member panel comprising a lawyer, a psychiatrist and ‘another suitably qualified’ person.119 Tribunals make a range of different types of decisions. Much of their work is resolving civil disputes, in much the same way as courts decide matters at first instance. For example, the Consumer and Commercial Division of NCAT can consider claims lodged by home owners, traders and insurers about residential building work up to the value of $500,000.120 Tribunals also make decisions which may be unrelated to disputes; for example, the Guardianship Division of NCAT has the power to decide whether to appoint someone as a guardian for a person with a decision-making disability.121 Tribunals and like bodies may be given powers of investigation under legislation; for example, the President of the NSW Anti-discrimination Board has the power to investigate alleged breaches of the Anti-Discrimination Act 1977 (NSW).122 One of the most important and distinctive functions of tribunals is the review of government decisions, conducted at the instigation of persons dissatisfied with decisions made by officials of government departments or agencies. In NCAT, this function is carried out by the Administrative and Equal Opportunity Division.123 Federally, this function is carried out by the Administrative Appeals Tribunal (AAT), which is the prototype of many Australian tribunals. The AAT was established in 1976 to review administrative matters over which federal legislation gives it power. Over 450 pieces of legislation now grant the AAT its wide-ranging jurisdiction. For example, the AAT may be asked to review Centrelink’s denial of a social security payment, or the level at which Centrelink decided it should be paid.124 The AAT may sit anywhere in Australia and its members include both lawyers and non-lawyers. In 2015, the AAT took over the functions of the specialist immigration and refugee, and income and child support tribunals, leading to a massive increase in its caseload. Prior to the establishment of the AAT with its government review powers, persons dissatisfied with government decisions could bring a complaint to a court. However, judicial review by a court operates far more narrowly than AAT review. Courts only have jurisdiction to review government decisions on legal grounds; for example, ‘that procedures that were required by law to be observed in connection with the making of the decision were not observed [or] that the person who purported to make the decision did not have jurisdiction to make the decision’.125 The big advantage of administrative review by tribunals like the AAT, from the applicant’s point of view, is that they generally conduct a merits review. That is, the applicant does not have to demonstrate error and the tribunal will consider the matter afresh, and ‘exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision’.126 Merits review also usually involves consideration of all relevant matters as at the date of the tribunal decision, which means parties do not need to restart the process if their

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merits review: a right to appeal on all the merits of a decision including issues of law, fact and policy

Mental Health Review Tribunal (NSW), ‘The Tribunal’ (Web Page, 9 April 2020) . Home Building Act 1989 (NSW) s 48K. Guardianship Act 1987 (NSW) s 14. Anti-Discrimination Act 1977 (NSW) s 90. See NCAT Act (n 117) s 30; Administrative Decisions Review Act 1997 (NSW). Social Security (Administration) Act 1999 (Cth) pt 4A. Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5(1)(b), (c). AAT Act (n 117) s 43(1).

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circumstances have changed, for example, their financial position has worsened since the original decision.

6.48

INQUISITORIAL AND INFORMAL PROCESSES Another major advantage of tribunals over courts — and this is not limited to their administrative review function — is that they generally operate with less formality than courts, and so are cheaper and quicker. The stated objective of the Administrative Appeals Tribunal Act 1975 (Cth), for example, is to ‘provid[e] a mechanism of review that [among other things] … is accessible; and … is fair, just, economical, informal and quick’.127 Fees for tribunal matters are generally less than for courts. A key difference in this respect is that tribunals are generally far less adversarial than courts. Instead they are said to operate inquisitorially. As discussed at 6.16, adversarial processes place the onus of gathering and presenting evidence on the parties, leaving it to the impartial judge or jury to evaluate the evidence and reach a conclusion. Tribunals, however, often play a more active investigative role. The High Court said of the Refugee Review Tribunal in Minister for Immigration and Citizenship v SZIAI:128 In the exercise of its review function, the Tribunal may obtain such information as it considers relevant. In this sense it has an inquisitorial function. That does not, however, impose upon it a general duty to undertake its own inquiries in addition to information provided to it by the applicant and otherwise under the Act …129 It has been said in this Court on more than one occasion that proceedings before the Tribunal are ‘inquisitorial’, rather than adversarial in their general character. There is no joinder of issues as understood between parties to adversarial litigation. The word ‘inquisitorial’ has been used to indicate that the Tribunal, which can exercise all the powers and discretions of the primary decision-maker, is not itself a contradictor to the cause of the applicant for review. Nor does the primary decision-maker appear before the Tribunal as a contradictor. The relevant ordinary meaning of ‘inquisitorial’ is ‘having or exercising the function of an inquisitor’, that is to say ‘one whose official duty it is to inquire, examine or investigate’. As applied to the Tribunal ‘inquisitorial’ does not carry that full ordinary meaning. It merely delimits the nature of the Tribunal’s functions.130

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The inquisitorial nature of tribunal work is significant in several related respects. There is less of an onus on the applicant to conduct their own investigation. Also, the technical rules of evidence law that operate in the adversarial trial do not apply to tribunals.131 Both considerations may make it cheaper and quicker for a party to bring a matter to a tribunal as compared with a court. Further, because the procedures are less technical and the tribunal carries more of the workload, the applicant may be able to manage the dispute without legal representation, bringing a further reduction in costs. Indeed, in some tribunals legal representation is prohibited or limited.132 A

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further feature is that, in some tribunals, parties generally bear their own costs.133 While this means that a successful applicant’s costs will not be covered by another party, it also means that an unsuccessful applicant does not face the prospect of bearing the additional costs of another party. ALTERNATIVE DISPUTE RESOLUTION Litigation, whether in a court or a tribunal, can be expensive and time-consuming. Further, the winner-takes-all, zero-sum-game approach can be counterproductive where the parties are involved in ongoing business, work, neighbourhood or familial relationships. In these respects ADR carries certain advantages. It is generally less formal, quicker and cheaper. It can also be more consensual, bringing a result that may satisfy all parties, thus preserving important relationships between them. A further feature that may be desirable to parties in some circumstances is that, unlike most court and tribunal hearings, the outcome may be kept confidential and cannot be used as any kind of precedent. ADR may occur in conjunction with litigation in courts or tribunals, or it may occur outside the formal adjudicative system. Many different kinds of procedures are covered by the term ADR. Methods employed by the AAT134 include the following: • Conferencing — the parties confer with an officer of the AAT to identify the issues, discuss the future conduct of the matter, and to explore whether an agreed outcome is possible. • Mediation — a mediator assists the parties in defining the issues, suggests options and helps the parties reach an agreement. The mediator has no role in deciding or directing the parties to reach a particular outcome. • Conciliation — similar to mediation but the conciliator takes a more active role in assisting the parties to reach agreement. • Neutral evaluation — a subject-matter expert provides a non-binding opinion on the dispute and the various options available. • Case appraisal — similar to a neutral evaluation but focused on the facts rather than possible legal outcomes. ADR also includes relatively formal arbitration. This involves use of an independent and impartial expert to make a decision following an adversarial process. This differs from other kinds of ADR in that an outcome is imposed on the parties, as in a court or tribunal; the outcome is not consensual. Nonetheless, because arbitration resolves disputes outside the public court or tribunal system, it may bring some of the advantages of other forms of ADR, such as speed, lower cost and confidentiality of outcomes. While the term ‘alternative dispute resolution’ quickly gained acceptance, such procedures often operate in aid of more formal processes.135 ADR may obviate, shorten or assist any subsequent litigation. For that reason the ‘A’ in ‘ADR’ is sometimes taken as 133 134

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See, eg, ibid s 60. See, eg, Administrative Appeals Tribunal, General Practice Direction (2019); Alternative Dispute Resolution Guidelines (2006). Laurence Street, ‘The Court System and Alternative Dispute Resolution Procedures’ (1990) Alternative Dispute Resolution Journal 5, 9.

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standing for ‘additional’, ‘assisted’, or ‘appropriate’ dispute resolution.136 ADR can assist parties in reaching settlement without litigation or before the hearing, reducing the costs for parties and the court or tribunal. Or, if it does not bring a total resolution to the dispute, ADR may at least narrow the issues, resulting in a shorter, cheaper hearing. Accordingly, whether ‘alternative’, ‘additional’, ‘assisted’, or ‘appropriate’, the various processes offer methods whereby disputes can be resolved more quickly, less expensively and generally with greater satisfaction of the parties.This latter advantage may be particularly enjoyed in those ADR processes where the outcome is agreed rather than externally imposed. As noted at 6.40, courts increasingly engage in case management in an effort to reduce the time and expense of litigation. As part of their case-management powers, many courts and tribunals have the power to refer the parties to a dispute to ADR during the course of litigation.137 It should be noted that where this occurs, the ADR processes are separate from the litigation. Those negotiations remain confidential, and should the ADR fail and the parties return to the court or tribunal, evidence cannot be adduced of any offers or other communications made during the ADR.138 If the ADR is successful, and agreement is reached, the court or tribunal may, without a full hearing, make orders reflecting the terms of the agreement.139 Alternatively, the parties may formalise their agreement separately from the court, through completion of a deed.140 In either case, in the event that one of the parties is later unhappy with the agreed settlement, it will not be subject to the usual appeal processes. ADR should not be viewed merely as an adjunct to court processes. Some disputes will go to ADR without litigation. Indeed, in large commercial ventures such as construction projects, it is common for contracts to include dispute-resolution clauses141 that ‘provide opportunities to the parties to reach an early amicable settlement through negotiation, mediation or expert determination’.142 Some clauses go to some lengths in an effort to ensure that parties will not rush to court. It is clear that an agreement by the parties to exclude or ouster the courts’ jurisdiction will be invalid as being contrary to public policy.143 However, an agreement may validly require the parties to attempt ADR as a condition precedent for the commencement of litigation.144 Such clauses reflect the commercial benefits of ADR, which include not only the conservation of the parties’ resources, but also the maintenance of a positive working relationship between the parties. Good will may be damaged in adversarial litigation, which can be problematic where parties have ongoing business.

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See, eg, Katrina Markwick, ‘Appropriate Dispute Resolution in Cases of Family Violence and the Collaborative Practice Model’ (2015) 5 Family Law Review 4; Thomas Denehy and Paula Gerber ,‘What Constitutes World’s Best Practice for Dispute Avoidance in Standard Form Contracts?’ (2012) 28 Building and Construction Law Journal 266, 268. See, eg, Civil PA (n 103) pt 4; AAT Act (n 117) pt IV div 3. See, eg, Civil PA (n 103) ss 30–31; AAT Act (n 117) s 34E. See, eg, Civil PA (n 103) s 29; AAT Act (n 117) s 34D. See, eg, Civil PA (n 103) s 29(3). Michael Pryles,‘Dispute Resolution Clauses in Contracts’ (1990) 1 Australasian Dispute Resolution Journal 116. Ahsan Ashraf, ‘Uncertainty in Dispute Resolution Clauses: Is there a Way to Escape the Commercial Bargain?’ (2018) 29 Australasian Dispute Resolution Journal 107, 108. See, eg, South Australian Railways Commissioner v Egan (1973) 130 CLR 506. So-called Scott v Avery clauses, from Scott v Avery (1856) 10 ER 1121. See Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337, 378; Ashraf (n 142) 109. 5 PB 6 PB 0 LL ,

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Distinction between matters of fact and matters of law 6.54

An important conceptual distinction emerging from the preceding sections is that between fact and law.145 In a jury trial, this distinction draws the boundary between the responsibilities of the judge, the tribunal of law, and those of the jury, the tribunal of fact. Legislation governing appeals generally provides greater scope for intervention by the appellate court on legal issues than on factual findings. Judicial review of administrative decisions is generally confined to errors of law; one of the features of administrative tribunals is that they provide merits review, including any factual matters. In some situations, the distinction between fact and law is easily seen. Consider, for example, the issue of identity in a murder trial.As a matter of law, for the accused to be guilty of murder, generally it must have been the accused rather than someone else who performed the act that caused the death of the victim. Determining who performed the fatal act — for example, whether to believe the prosecution’s eyewitness evidence — is clearly a question of fact for the jury.There are cases, however, where the issue of identity presents greater legal complexity. For example, the prosecution may allege that the murder was part of a joint criminal enterprise for which the defendant should be held responsible even though he did not pull the trigger.The scope of the joint criminal enterprise doctrine is quite controversial, having reached the High Court on several occasions.146 The legal requirements for joint criminal enterprise will be determined by the trial judge on the basis of legal materials.The trial judge will then instruct the jury as to the legal requirements regarding identity and joint criminal enterprise. Whether these requirements are satisfied will then be a question of fact for the jury, determined based on their consideration of the evidence. While the fact–law distinction is readily discernible in many issues (such as identity), many others involve concepts that are more difficult to pin down. In Collector of Customs v Agfa-Gevaert Ltd147 (‘Agfa-Gevaert’) a joint judgment of five Justices of the High Court of Australia noted: N = /DD B AL

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The distinction between questions of fact and questions of law is a vital distinction in many fields of law. Notwithstanding attempts by many distinguished judges and jurists to formulate tests for finding the line between the two questions, no satisfactory test of universal application has yet been formulated.148

As the High Court observed in Ruddock v Taylor,149 there are many cases … in which a distinction between mistake of law and mistake of fact could not readily be drawn, if drawn at all … Errors about the conclusion cannot safely be divided between errors of law and errors of fact. Often, perhaps much more often than not, the error will be one of mixed law and fact.150

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The fact-law issue arises in many contexts, perhaps most frequently where words in a legislative provision require interpretation. The High Court in Ag fa-Gevaert 145

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William Twining and David Miers, How to Do Things with Rules (Cambridge University Press, 5th ed, 2010) 126. McAuliffe v The Queen (1995) 183 CLR 108; Miller v The Queen (2016) 259 CLR 380; IL v The Queen (2017) 262 CLR 268; cf R v Jogee [2017] AC 387. (1996) 186 CLR 389 (‘Agfa-Gevaert’). Ibid 394. (2005) 222 CLR 612. Ibid 627.

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considered the following propositions, laid down by the Full Court of the Federal Court in Collector of Customs v Pozzolanic (‘Pozzolanic’):151 1. The question whether a word or phrase in a statute is to be given its ordinary meaning or some technical or other meaning is a question of law. 2. The ordinary meaning of a word or its non-legal technical meaning is a question of fact. 3. The meaning of a technical legal term is a question of law. 4. The effect or construction of a term whose meaning or interpretation is established is a question of law. 5. The question whether facts fully found fall within the provision of a statutory enactment properly construed is generally a question of law.152

While the High Court in Ag fa-Gevaert was not required to express a final view, it offered support for the first three propositions. As the High Court noted, the Federal Court itself had qualified the fifth proposition in Pozzolanic to the extent that it was inconsistent with the second proposition: The [Federal] Court said that, when a statute uses words according to their ordinary meaning and it is reasonably open to hold that the facts of the case fall within those words, the question as to whether they do or do not is one of fact.153

And it appeared to the High Court that the fourth proposition too was at odds with the second proposition and, for that reason, also in need of qualification: If notions of meaning and construction are interdependent, as we think they are, then it is difficult to see how meaning is a question of fact while construction is a question of law without insisting on some qualification concerning construction that is currently absent from the law.154

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An illustration of the application of these principles is provided by Director General Department of Land and Water Conservation v Bailey.155 The defendant was acquitted by the Land and Environment Court of New South Wales on charges of clearing native vegetation without a permit under the Native Vegetation Conservation Act 1997 (NSW). The case concerned the defendant’s construction of a reservoir on a rural property. It was clear that the defendant had cleared vegetation in the construction of the reservoir and that he had not obtained a permit for this, but the trial judge considered that the clearing fell within a statutory defence or exemption; it was clearing ‘for the purpose of a rural structure’.156 At the same time, the trial judge held that another statutory exemption did not apply. The construction of the reservoir was not a ‘designated development’.157 While the trial judge acquitted the defendant, he stated a question of law for the Court of Appeal under s 5BA of the Criminal Appeal Act 1912 (NSW) as to the operation and application of these exemptions. Under proposition 1 from Pozzolanic it is a question of law whether a term has a technical or legal meaning, or an ordinary meaning. And then, under propositions 2 and 3, this categorisation determines whether the term’s meaning is a question of fact or a question of law. The Court of Appeal applied these propositions:

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(1993) 43 FCR 280 (‘Pozzolanic’). Ibid 289. Agfa-Gevaert (n 147) 395. Ibid 397. (2003) 136 LGERA 242 (‘Bailey’). Schedule 3 cl(e) of State Environmental Planning Policy No  46 — Protection and Management of Native Vegetation (NSW). Native Vegetation Conservation Act 1997 (NSW) s 12(f). 5 PB 6 PB 0 LL ,

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On the two stated questions the Court is asked to construe the terms ‘rural structures’ and/or ‘designated development’. Clearly, the latter term is a technical or legal term, and the construction of that term would accordingly be a question of law. In my opinion, the former compound expression does not carry any technical or legal meaning …158

In line with Agfa-Gevaert and Pozzolanic, the Court had little scope to intervene with regard to the ordinary meaning of ‘rural structures’, as this was a question of fact. The Court could only override the trial judge’s findings if these ‘were not findings reasonably open for his Honour to make’.159 The Court held that the trial judge’s finding that the reservoir was a rural structure was reasonably open.160 However, the Court had greater scope for intervention with regard to the second exemption, relating to a ‘designated development’, as this was the interpretation of a technical or legal term and therefore a question of law. The Court held that the trial judge had made a mistake in the construction of this technical or legal term and provided its own construction, setting a precedent for future cases.161

Further reading

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• Hilary Astor and Christine Chinkin, Dispute Resolution in Australia (LexisNexis, 2nd ed, 2002). • Laurence Boulle and Nadja Alexander, Mediation: Skills and Techniques (Lexis Nexis Butterworths, 3rd ed, 2019). • Jerome Frank, Courts on Trial: Myth and Reality in American Justice (Princeton University Press, 1949). • Roderick Howie, Paul Sattler and Marissa Hood, Hayes & Eburn Criminal Law and Procedure in New South Wales (LexisNexis Butterworths, 6th ed, 2019). • Michael Legg, ‘The Future of Dispute Resolution: Online ADR and Online Courts (2016) 27(4) Australasian Dispute Resolution Journal 207. • Julie Macfarlane, The New Lawyer (UBC Press, 2nd ed, 2017). • Tania Sourdin, Alternative Dispute Resolution (6th ed, Thompson Reuters, 2020). • Adrian Zuckerman et al, Zuckerman on Australian Civil Procedure (Lexis Nexis Butterworths, 2017).

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To enhance your learning experience, use the student resources available on Lexis® Learning See the Visual Preface at the front of this book on how to register.

158 159 160 161

Bailey (n 155) [23]. Ibid [34]. Ibid [37]. Ibid [42].

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2 Sources of Law: Case Law 175

8 Precedent in Australian Courts

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Case Law and Precedent Let us consider the reason of the case. For nothing is law that is not reason.1 Sir John Powell in Coggs v Barnard (1703) 2 Ld Raym 909, 912; 92 ER 107, 109.

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Introduction

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− Development of case law

7.3

Reading and analysing a case

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− Undertaking an analysis

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EXERCISE 7: Analysing a case

7.12

− Doctrine of precedent or stare decisis

7.13

− Rationale of the doctrine of precedent

7.17

− Hierarchy of courts

7.19

− Identifying the ratio decidendi

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Rules in contention

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Level of generality and distinguishing

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Finding a ratio among diverging majority judgments

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Equally divided courts

7.36

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Dissenting judgments

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Ratio decidendi and obiter dicta

7.45

EXERCISE 8: Identifying ratio and obiter Authoritative obiter dicta

7.51

Judicial law-making

7.53

− Filling gaps in the law

7.54

− Developing the law

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Law reporting

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− Authorised and unauthorised report series

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− Cases on the internet

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CHAPTER 7

CASE LAW AND PRECEDENT

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This chapter introduces students to case law — the output of courts and tribunals. A case is a judicial decision resolving an individual dispute; however, as we will see, judicial decisions are often modelled on the way in which similar cases were decided in the past, and they may also provide a model or a precedent for how future cases will be decided. Case law, or common law, is one of the major sources of law, the other being legislation which is the focus of later chapters. Common law is the law developed by judges, usually those in superior courts and tribunals. Historically, case law was the major source of legal rules but, due to increasing government regulation of activity during the 20th and early 21st centuries, legislation in its various forms has replaced cases as the main source of Australian law. Nevertheless, the study of cases remains extremely valuable for law students; understanding case law remains an essential skill for lawyers. Even in areas governed by legislation, it is necessary to understand how that legislation has been interpreted by the courts and to be able to anticipate how courts may apply it in new disputes. The first part of this chapter examines the structure of a case and how to break it down into its parts for the purpose of analysis. The judicial resolution of many a dispute turns upon the facts of the dispute. Parties typically present conflicting versions of what happened. However, our focus in this chapter is on the law that applies to the facts. From this perspective, a particular focus in analysing a case is the identification of the legal principle applied in the case. We will consider how courts derive legal principles from past cases, and the factors that influence whether a case may be taken as an authoritative source of law in future cases. The remainder of the chapter begins our study of the doctrine of precedent, outlining its basic structure and the forces impacting upon it. This doctrine determines the weight that should be given to the legal principles applied in past cases, or precedents. The key factors are: • the position in the court hierarchy of the court or tribunal that decided the precedent relative to the present court or tribunal; • whether the statement of principle made by the earlier court or tribunal was necessary to the resolution of the case (a ‘ratio’) or whether it was merely a passing comment (‘obiter’); • in a full court, the number of judges that have given support to the statement of principle.

7.1

7.2

doctrine of precedent: the set of principles that determines whether the law expounded in a case should be followed in later, similar cases

In this chapter we consider the advantages of courts following precedents, namely predictability, efficiency and equality. However, we also consider the forces operating against a strict doctrine of precedent. Greater flexibility gives courts and tribunals the ability to seek justice in the individual case, and to respond to changes in society and community values. As we’ll see, these competing forces set up an ongoing tension between judicial conservatism and judicial activism. The operation of the doctrine in the Australian court hierarchy is examined in Chapter 8. Before turning to our discussion of the mechanics of reading and analysing a case, first we look at what a case is and how case law has developed.

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DEVELOPMENT OF CASE LAW Each case represents the solution to a particular dispute between the parties about which the trial judge, or bench of appeal court judges, has made a decision. Broadly speaking, judges make decisions in order to resolve disputes. Declaring the law in order to head off future disputes is a secondary consideration. For example, if a building is damaged by blasting for a road, a court will decide who, if anyone, is to blame and what compensation the owner should be paid; the court is less concerned with making rules that will help prevent future damage to buildings although, indirectly, case law may have that effect. By contrast, it is the legislature’s job to regulate blasting operations, either in statutes or, more likely, through delegated legislation, balancing the need for efficient road construction against the interests of affected property owners. Cases might be thought of as individual building blocks, unlike legislation which has greater scope to provide a more complete framework of rules to govern a given area. When judges make decisions they are concerned primarily with the individual cases before them. But together, a series of decisions dealing with the same general topic has the effect of creating a firm legal framework. Within that framework created by various individual judicial decisions, each case represents a brick in the wall. Consider, for example, the House of Lords decision in Donoghue v Stevenson2 in 1932. Ms Donoghue claimed that she found the decomposed remains of a snail in a bottle of ginger beer she was drinking, and from which she suffered shock and severe gastroenteritis. The bottle had been bought by her friend so Ms Donoghue had no contract with the seller and could not sue for a breach of contract. Instead she brought an action against the manufacturer who had supplied the ginger beer.The drink was in bottles which were opaque, thus preventing anyone seeing the contents before consumption. Lord Atkin said that the only way in which the action could succeed was if Ms Donoghue could show that

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[t]he manufacturer of an article of drink sold by him to a distributor, in circumstances which prevent the distributor or the ultimate … consumer from discovering by inspection any defect, is under [a] legal duty to the ultimate … consumer to take reasonable care that the article is free from defect likely to cause injury to health.3

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Study of several previous cases or ‘building blocks’, decided over a lengthy period, led Lord Atkin to identify the ‘neighbour principle’ as the key to determining whether a duty was owed.

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[A]cts or omissions which any moral code would censure cannot in a practical world be treated so as to give a right to every person injured by them to demand relief. In this way rules of law arise which limit the range of complainants and the extent of their remedy. The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be — persons who are so closely and directly affected by my act that

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[1932] AC 562. Ibid 578. 3 N I4 N I .

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I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.4

Donoghue v Stevenson’s neighbour principle is seen with hindsight as having been a most important building block — a keystone. But much construction work has taken place since. The implications of the neighbour principle have been worked out through subsequent cases as courts have sought to construct a coherent principled body of negligence law. As will be discussed later in this chapter, the High Court carried out quite a bit of work in this area in the latter part of the 20th century. This kind of systematic development of legal principles by the courts was not possible until decisions started being recorded, making them available to subsequent courts. The early English Yearbooks were described in 1.25. Those were followed by the Nominate Reports and finally, in the 1860s, by the official reports put out by The Incorporated Council of Law Reporting.5 This body was established to publish case reports after they had been checked by the judges who made the decisions. (For more detail on law reporting, see 7.66ff and 21.14ff.) At that stage the basic principle of the doctrine of precedent became settled. While an essential element of the common law system, the doctrine of precedent is not the only factor that influences a court in reaching a decision. As will become apparent, the context in which the decision is made and the attitudes of the judicial decision-maker can also exert influence. Clearly the common law was created by courts and it continues to develop over time. Absolute judicial conservatism is not possible. Donoghue v Stevenson was a major development in negligence law. The relative influence on judicial decision-making of the objective historical case-law record as against an individual judge’s subjectivity and creativity is a matter of perennial debate.

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Reading and analysing a case Cases are known by the names of the people, or parties, who are in dispute. The parties might include companies or representatives of the state as well as ordinary individuals. Those involved in the initial hearing of a civil case are generally called the plaintiff and the defendant. In the title of a civil case the plaintiff ’s name appears first. On appeal, the name of the person bringing the appeal, the appellant, appears first in the case name. The other party in the appeal, whose name appears second, is known as the respondent. The party bringing criminal charges to trial is known the prosecution; depending upon the jurisdiction, this party may also be known as the Crown, the State or the People. The party against whom charges are brought is known as the defendant or the accused (either term is acceptable). Traditionally, in Australia, the prosecution in criminal proceedings has been considered to be acting on behalf of the Crown. The case name includes ‘The Queen’ or ‘The King’, often signified by the abbreviation R for Regina or Rex, depending on whether the monarch reigning at the time of the case is female or male respectively. However, in certain jurisdictions, charges are now brought in the name of the relevant state, for example, ‘The State of Western Australia’. In some cases, particularly those involving children or, more 4 5

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7.6 plaintiff: the party to a case who brings the action: see 21.18 defendant: the party to a case against whom the action is brought: see 21.18

Ibid 580. The full title now is The Incorporated Council of Law Reporting for England and Wales.

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recently, refugee cases, the court may conceal a person’s identity using a pseudonym, initials, random letters or numbers. For a more extensive discussion of the naming of parties and cases, see Chapter 21. Case law is a major source of law. Even in areas governed by legislation, an understanding of the cases interpreting that legislation is crucial. Many cases, even those studied at the beginning of a law course, can be long and complicated.They may contain convoluted facts, complex law, and two or more judgments in which judges have used the same or different reasoning to come to the same or different conclusions. It is advisable, therefore, for students to learn, at an early point in their studies, how to read and analyse a case. The object of the exercise should always be borne in mind when reading and analysing a case. Commonly, lawyers and law students will be seeking to identify the principle or principles for which the case is authority, and the significance of these principles in the context of other rules of law. On other occasions, however, the reader may be seeking to understand the key facts, the historical context in which the case arose, or the arguments made by each party. Shortcuts can be taken in reading cases which are reported. Some lawyers and students simply read the ‘headnote’ found at the beginning of the report. The headnote is a summary of the facts of the case and the decision reached by the court. An example appears below at the beginning of the report of Hart v Rankin6 at 7.12. While this may provide a helpful introduction to the case, headnotes can be unreliable unless they have been approved, prior to publication, by the judge or tribunal member who heard the case. If not approved, the headnotes may be neither comprehensive nor accurate as they are written by independent law reporters: see 7.66. Much research today relies on online sources which will often not contain a headnote, making it imperative for readers to be able to identify the key issues and principles for themselves. When reading long cases, it is helpful to note, for later use, page or paragraph references to particular points of interest. In cases where there are several judgments, the name of the judge (or judges, if more than one joined, or agreed with, a judgment) should also be noted. If a case does not appear particularly important to the reader it may be sufficient to note only the following information: (a) citation; (b) court, including whether single judge, Full Court or Court of Appeal; (c) brief statement of material facts; (d) ground(s) of appeal and/or issue(s) to be decided; (e) reason(s) for decision, including principle(s) of law; and (f) decision.

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Where there are multiple grounds of appeal and/or issues to be decided, steps (d)–(f) will need to be repeated for each ground or issue. If a detailed analysis is required, it may be necessary to note a wider range of matters, including some or all of the following: (a) citation; (b) court, including whether single judge, Full Court or Court of Appeal; 6

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brief statement of material facts; procedural history; grounds for appeal and/or issues to be decided; summary of court’s analysis of law; principle of law to be applied; description of how law was applied to the facts; decision; orders made by the court; and any features of the case suggesting that it should be viewed in its social or cultural context.

Steps (f)–(i) will need to be repeated for each issue that the court discusses. And where the decision includes more than one judgment, these steps may need to be repeated for those issues on which there is a divergence of opinion. Matters (e), (g), (h) and (i) correspond with the steps in the IRAC methodology (discussed further in Chapters 16 and 22). UNDERTAKING AN ANALYSIS Here we provide an example of a case analysis in accordance with the more detailed method. The decision is extracted below in a slightly edited form, with marginal labels identifying the parts of the decision corresponding with the various points of analysis. This is followed by a brief discussion of each step.

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IRAC: an acronym for the case analysis method Issue; Rule; Application; Conclusion

7.10

Warringah Properties Pty Ltd v Babij [2006] NSWSC 702 Supreme Court of New South Wales Malpass AsJ

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Claim for restoration of dividing fence — destroyed by deliberate act — distinction between fence and retaining wall — fence may have other functions — legislative changes — intention of the legislature — indemnity costs and leave. JUDGMENT

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[1] The Plaintiff and the Defendants are respectively the owners of adjoining properties. It now seems to be common ground that what has been described as a sandstone structure (the ‘structure’) stood (at least in a rough sense) upon the common boundary between the two properties. The dispute that has ensued between the parties came into being when the Plaintiff demolished the structure on or about 10 May 2005. The active participant on the part of the Plaintiff was the late Mr Humphreys (a director and licensed builder). [2] The Court has been told that the Plaintiff acquired its property in or about 2003. It has also been told that the property was acquired for the purposes of redevelopment. The Defendants have lived in their property for many years. [3] The Court has before it photographs of the common boundary area prior to demolition. It also has a photograph of that area subsequent to demolition. I shall briefly

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endeavour to describe in a general sense the boundary area. A rocky outcrop stood on the Plaintiff’s property adjacent to the common boundary. The height of the outcrop is variable. The common boundary is about 14.5 metres in length. The structure extended along the whole length of the common boundary. Looking from the property of the Defendants, at least in part the structure had a height of about 2 metres. Looking from the rocky outcrop on the Plaintiff’s property, at least in part the sandstone structure was about waist high. There was also some wire mesh with stakes on the top of the structure. The Plaintiff has contended that there was fill on its property between the  rocky outcrop and the structure and that it was about 1  metre high (this was a matter in issue between the parties). The height of the fill was lower than the height of the structure and was not observable from the property of the Defendants. [4] The Plaintiff obtained development approval. Without notice to the Defendants, it proceeded to effect demolition of the sandstone structure and says that it also removed the fill. It is said that it was necessary to demolish the structure and remove the fill to enable the construction of a driveway on the Plaintiff’s property (the driveway being part of the redevelopment). At that time (and for a period thereafter) it was contended by the Plaintiff that the structure was on its property. The late Mr Humphreys gave evidence to that effect. [5] Subsequent to the demolition, also without consultation with the Defendants, the Plaintiff erected a paling fence on the common boundary. This replacement fence was not accepted as a satisfactory replacement by the Defendants. During pre-litigation correspondence, the Plaintiff came to take the stance that the sandstone structure was a retaining wall and not a dividing fence (it was then being contended that it retained the fill). [6] The Defendants brought proceedings in the Local Court seeking relief pursuant to s 8 of the Dividing Fences Act 1991 (the ‘Act’). It provides a remedy for restoration costs where a dividing fence has been damaged or destroyed by a negligent or deliberate act.

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[7] A contested hearing took place between the parties (it lasted about 2 days). The principal issue was whether or not the structure was a retaining wall or a dividing fence. The Defendants were successful in the proceedings and the Plaintiff was ordered to pay the sum of $26,000.00. It was also ordered to pay costs on an indemnity basis. [8] The Plaintiff has brought an appeal to this Court against both orders. It alleges that there has been error in point of law. It requires a grant of leave to challenge the costs order. [9] The hearing of these proceedings took place on 10 July 2006. Again, the principal issue between the parties was whether or not the structure was a retaining wall or a dividing fence. [10] The Act affords the relief that was sought by the Defendants in relation to the restoration of a dividing fence. Section 3 of the Act contains definitions of ‘dividing fence’ and ‘fence’. The definition of ‘fence’ excludes inter alia a ‘retaining wall’. Section 3 does not define a ‘retaining wall’. Some assistance as to the meaning to be given to those words may be found in what was said in and what was referred to in Kontikis & Anor v Schreiner & Ors (1989) 16 NSWLR 706. [11] The Act introduced other provisions which were different to those previously found in its predecessor (the Dividing Fences Act 1951 (the ‘1951 Act’)). Sections 7 and

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13 thereof (which required contribution in equal proportions) have been replaced by different provisions (see inter alia ss 7 and 14(c)). Liability to contribute in equal proportions is only applicable where the standard of the dividing fence is not greater than the standard for a sufficient dividing fence. The Act now allows the making of orders determining the manner in which contributions for fencing work are to be apportioned or re-apportioned. These changes would appear to have been motivated by observations made in Kontikis.

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[12] Kontikis was decided whilst the 1951 Act was still in force. What was decided therein has been seen to be of relevance to the definition of ‘fence’ that was introduced into the Act. It would seem that a ‘retaining wall’ was expressly excluded so that the definition would accord with the position at common law (the exclusion of a retaining wall did not appear in the 1951 Act). In that case the Court gave consideration to a brick wall and held it was retaining wall and not a dividing fence within the meaning of the 1951 Act. [13] The definitions of ‘dividing fence’ and ‘fence’ are as follows: ‘ “dividing fence” means a fence separating the land of adjoining owners, whether on the common boundary of adjoining lands or on a line other than the common boundary. “fence” means a structure, ditch or embankment, or a hedge or similar vegetative barrier, enclosing or bounding land, whether or not continuous or extending along the whole of the boundary separating the land of adjoining owners, and includes: (a) any gate, cattlegrid or apparatus necessary for the operation of the fence, and (b) any natural or artificial watercourse which separates the land of adjoining owners, and (c) any foundation or support necessary for the support and maintenance of the fence,

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but does not include a retaining wall or a wall which is part of a house, garage or other building.’

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[14] The definition of ‘fence’ can be seen to be one of great width. Save for the exclusions, it would appear to be contemplated to pick up inter alia any structure that has the characteristics of enclosing or bounding land. A ‘fence’ satisfies the statutory requirements of a ‘dividing fence’ if it separates the land of adjoining owners. The concept of separation has been said to have a functional connotation. [15] There has been attack on the expression of reasoning process by the Magistrate (Mr George LCM). In my view, in this case, it is unnecessary to embark on an analysis of his expression of reasoning process. I consider that any demonstrated error would not assist the Plaintiff. [16] There is little historical evidence pertaining to the structure (it had been in existence for a very long time). As a consequence, there is a lack of express evidence as to the purpose of its construction. However, what evidence there is compellingly demonstrates that it meets the statutory requirements of both a ‘fence’ and of a ‘dividing fence’. The structure was at least roughly situated on the common boundary. It extended along the whole boundary. Further, it can be observed that it was a structure that was higher than the fill. It had the characteristics of enclosing or bounding land. It also separated the two properties and performed the function of a dividing fence.

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[17] In the previous paragraph I have mentioned certain of the material that the Magistrate had before him. The mention was not intended to be exhaustive. I consider that not only was the result reached by him reasonably open on the material, it was the correct result.

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[18] It was correct to reach the result that the structure was a ‘fence’ within the meaning of the Act and not a ‘retaining wall’. It was also correct to reach the result that the structure was a ‘dividing fence’ within the meaning of the Act. [19] The Plaintiff’s case is dependent on evidence that there was fill behind the structure on the Plaintiff’s property and that it was performing some retaining function in relation to that fill. In my view, even assuming that to be the case, it does not seem to me to be determinative in the circumstances of this case. [20] The question of what is a ‘retaining wall’ has been little argued. No definition was presented by counsel. There are dictionary meanings. They are to the effect of it being a wall built to hold back or support material (including earth and water).

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[21] There may be overlapping of purposes. Apart from being erected to perform the purpose of a separating structure, a ‘fence’ may also serve other functions (such as a function to provide support). In the determination of the question of whether a particular structure is a ‘fence’ it can be expected that each case will turn on its own circumstances (with regard being had inter alia to matters of physical characteristics and function). Even if a fence has a support function, the Court is not precluded from finding that it was a ‘fence’ (see  Kontikis pp  711–712). I do not consider that it was intended by the legislature that a structure necessarily fell outside the Act merely because it provided some support or other function.

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[22] Questions concerning onus (relating to the burden to prove that the structure either was or was not a retaining wall) were agitated during the hearing. The questions were not fully argued. They do not have to be decided in this case and are better left for another day.

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[23] In addition to what has already been said, I am not satisfied that there was any error in the awarding of costs on an indemnity basis. It seems to me that the Magistrate was entitled to form strong views as to the conduct of the Plaintiff and to take that conduct into account when dealing with the questions of costs. The Plaintiff had deliberately acted without notice to demolish the structure so that it would not impede its redevelopment. Thereafter it obstructed the restoration of an appropriate dividing fence on the specious bases that the structure had been a retaining wall on its own property. It needlessly put the Defendants to the not inconsiderable expense of propounding defended proceedings to obtain the relief that they were entitled to under the Act. Apart from the absence of manifest error, there is a lack of any other features which would attract the granting of leave. [24] In conclusion, it can be said that the Plaintiff had the onus in this appeal to demonstrate error in point of law and that such error justified the disturbing of the decisions made by the Magistrate. In my view, the Plaintiff failed dismally to discharge that onus.

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[25] The Summons is dismissed. Save for the costs of a Notice of Motion the Plaintiff is to pay the costs of the proceedings. The costs of that Notice of Motion which was brought to obtain an order for security for costs are presently reserved and can be dealt with by Registrar Howe in due course.

The following provides guidance as to how one might undertake an analysis in accordance with the more detailed paradigm given in 7.9. a Citation, including name of case: This is fairly straightforward. It is the citation for the case, found at the start of the case report in this example: Warringah Properties Pty Ltd v Babij [2006] NSWSC 702 Like many cases today, while not reported in an official law report series this case is available online. The type of citation used is referred to as a ‘medium neutral citation’ (MNC). The citation starts with the names of the parties in italics; 2006 is the year of judgment; NSWSC abbreviates the court name (New  South  Wales Supreme Court) and 702 is the case number (it was the 702nd case decided in 2006 by the New South Wales Supreme Court).The number at the start of each paragraph in the judgment is a paragraph number. When a case is cited by its MNC, paragraph numbers in square brackets — for example, [23] — are used as pinpoint references to identify precisely where information can be found, rather than using page numbers as for a law report. See further in Chapter 21 on citing law reports in general. b Court, including single judge, Full Court or Court of Appeal: The court in which the case is heard is also usually straightforward. The information is found at the start of the published decision. This is a decision of Associate Justice Malpass — which may be written Malpass  AsJ — of the Supreme Court of New South Wales. Among other things, Associate Justices hear applications that arise before trials, conduct certain civil trials and hear appeals from the Local Court, as in this case. c Brief statement of material facts: Case reports may contain many facts, not all of which are material. Generally speaking, facts are ‘material’ when they are crucial to the decision made by the court; that is, they are the facts upon which the decision is based. Which facts are material is often apparent from the relevant legislation. In other cases, this may only become apparent once the judgment has been read and the principles of law identified. In some cases, whether facts are material may remain a little unclear. In the above extract, not all the facts are material. For example, it is not relevant to the outcome that the defendant had lived on the property ‘for many years’: at [2]. An initial statement of material facts follows. The plaintiff and defendant were owners of adjoining properties separated by a structure along the shared boundary of the properties. Due to the different elevations of the properties the structure was about two metres high from the

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7.11 registrar: an official who maintains records, in this instance for a court

pinpoint reference: a reference to a specific page, paragraph, footnote or other section of a source

Creyke, Robin, et al. Laying down the Law, LexisNexis Butterworths, 2020. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/monash/detail.action?docID=6413182. Created from monash on 2021-02-06 11:29:57.

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defendant’s perspective and waist high from the plaintiff ’s. The plaintiff claims there was fill on its side of the structure. Without notice to the defendant, the plaintiff had demolished the structure and subsequently erected, also without notice, a paling fence. Actually, the presence of fill turned out to be immaterial in this case: see at [19], [21] and the discussion below at (f), (g) and (h). It should be noted that in many cases, particularly at  first instance, the law is relatively clear-cut and it is the material facts that are in dispute. If a reader’s interest in a decision is its factual reasoning rather than its legal reasoning, a different (nonlegal) form of analysis will be called for. Further, in some cases, it may be principles of procedural or evidence law that are in dispute as they have a crucial bearing on the court’s fact-finding. In such cases, with a little modification, the present form of analysis may be applied. Procedural history: The procedural history records the steps taken in the proceeding prior to the hearing. This should include a review of the earlier decisions, if any, by the trial court and lower appeal court. If the case is being heard for the first time — that is, ‘at first instance’ — there will be only one entry. For cases that are on appeal, as here, there could be several earlier decisions.This material can usually be found in the headnote. The procedural history in this example would be: This is a case on appeal to the Supreme Court of New  South  Wales from a decision of the Local Court of New South Wales in which the defendant (in the appeal) (Babij) was awarded $26,000 in restoration costs under s 8 of the Dividing Fences Act 1991 (NSW): at [6]–[7]. Students may be puzzled as to why Malpass  AsJ observes that ‘[t]he Defendants brought proceedings in the Local Court’ (emphasis added): at  [6]. Ordinarily the party commencing proceedings is the plaintiff. However, the term ‘defendant’ here refers to the parties’ position in the appeal. Malpass AsJ notes that ‘[t]he Plaintiff has brought an appeal to this Court’: at [8]. It is more common for the parties in an appeal to be termed appellant and respondent but appeals from the Local Court to the Supreme Court are commenced by summons, and the party commencing proceedings is termed the plaintiff. Grounds for appeal and/or issues to be decided: The issue to be decided is the question or questions on which the court must rule. The issue may be one of law or of fact, or whether a particular rule or principle applies to the facts. For example, who, if anyone, was negligent? What is the meaning of a statutory provision? On appeal, the court must determine whether the grounds of appeal are made out. In first-instance judgments, as mentioned above, the issue is often purely factual. On appeal the questions may be ones of law only, with the appellant arguing that the trial court misstated the law. More commonly,7 appeal courts are presented with issues combining law and fact, the appellant arguing that

Ruddock v Taylor (2005) 222 CLR 612, 627.

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f

g

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the trial judge misinterpreted and misapplied the law. For further discussion of the fact/law distinction, see 6.54ff. In Warringah Properties Pty Ltd v Babij there were two grounds of appeal, both a mixture of fact and law. The first was that the primary judge had erred in law in determining that the structure was a ‘dividing fence’ rather than a ‘retaining wall’. The second was that the primary judge erred in awarding costs on an ‘indemnity basis’, ruling that the plaintiff should pay not only party/party costs as is usually the case, but also solicitor/client costs: at  [8]. The awarding of indemnity costs generally reflects the court’s disapproval of the way the losing party has conducted its case. Summary of court’s analysis of law: Law students and lawyers tend to be most interested in appeal decisions where difficult issues of law have been resolved. In such cases, courts consider primary sources of law (legislation and past cases), possibly some secondary commentaries, and the parties’ competing submissions in order to arrive at the correct principle(s) of law to be applied in the instant case. In order to understand the court’s reasoning, it is helpful for students and lawyers to summarise the court’s discussion of legal authorities, whether case law or statute, and whether these were followed, disapproved or distinguished. In this particular case, the legal questions that were analysed were ones of statutory interpretation; ‘what was the meaning of “retaining wall”?’: at  [9]. Malpass  AsJ considered the legislative definitions of ‘fence’ and ‘dividing fence’ in s  3 of the Dividing Fences Act 1991 (NSW) (as it then was).The Court stated that the definition of ‘fence’ was ‘of great width’ and would ‘pick up inter alia any structure that has the characteristics of enclosing or bounding land’ and that a fence would be a dividing fence if it functionally ‘separates the land of adjoining owners’: at [13]. The Court then turned to the question of what constitutes a ‘retaining wall’, noting that there was no definition in the Act: at [10]. Dictionary meanings defined retaining wall as a structure ‘built to hold back or support material’: at [20]. The Court applied Kontikis v Schreiner8 decided under the former Dividing Fences Act 1951, concluding that even if a fence has an additional support function, that did not preclude it from being a fence: at [21]. Principle of law to be applied: The principle of law to be applied is arrived at by the legal analysis summarised above in (f). If the law is in dispute, the analysis can run into the statement of principle. How the principle applies to the facts is discussed in (h). Under s 8 of the Dividing Fences Act 1991, a party is entitled to restoration costs where a ‘dividing fence’ has been damaged or destroyed by a negligent or deliberate act: at [6]. Whether a structure is a fence or ‘retaining wall’ is to be determined on a case-by-case basis through the application of s 3 of the Act. Thus, a fence would include any structure that has the characteristics of ‘enclosing or bounding land’ and a fence would be a dividing fence if it functionally ‘separates the land of adjoining owners’: at  [13],  [21]. The fact that a fence may also provide support does not

party/party costs: the costs of conducting the litigation, including court fees and the solicitor’s costs; the courts have devised a scale of fees of what is fair and reasonable, which are paid generally by the unsuccessful party to the successful party to the litigation as part of the settlement of the case

solicitor/client costs: the professional fees of a solicitor for their services; these are usually more generous than party/ party costs and include fees for work done and expenses such as barristers’ fees, search fees, fees for reports and photocopying

(1989) 16 NSWLR 706.

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h

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indemnity costs: all costs incurred provided they are reasonable

i

j

k

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preclude it from being a fence: at [21]. Note that the effect of s 8 was not analysed by the Court, but merely stated, whereas the definitions of ‘dividing fence’ and ‘retaining wall’ were subject to some discussion. The Court did not analyse the law as to the awarding of costs but stated that the conduct of the parties was to be taken into account in determining an award: at [23]. Description of how law applied to the facts: Having identified the material facts and the applicable legal principles, it becomes possible to resolve the dispute by applying the law to the facts.This step may be fairly mechanical, or it may require judgement and discretion, depending on the law’s level of abstraction. (Consider for example, judgments of whether conduct is ‘reasonable’ or ‘offensive’.) It is this application that produces the decision, given in (i) below. In the first ground of appeal here, the Court concluded that the structure was a ‘dividing fence’ within s 3 as it ran along the whole common boundary and was higher than the fill. It therefore bounded the land, separating the two properties, and was not erected only as a retaining wall to contain the fill: at [16]. As to the second ground of appeal, that of costs on an indemnity basis, the Court concluded there had been no error by the lower court as the plaintiff had deliberately destroyed the fence, obstructed the restoration of an appropriate fence on a ‘specious’ basis, and ‘needlessly’ put the defendants through the costs of embarking on the present litigation: at [23]. The lower court’s disapproval was reflected in the grant of indemnity costs. Decision: In this step, the outcome of the application of the facts to the law is recorded. For example, was the plaintiff negligent and, if so, what damages should be awarded? The decision will often be briefer than the application of the law or analysis of the law at (i) and (g). If the case is an appeal, then the decision will be to dismiss or uphold the appeal, with various consequent orders. In this case, the Court determined that the plaintiff had failed to demonstrate an error of law and dismissed the summons, thus upholding the original decision of the Local Court: at [24]. Order made by the court: The orders made by the court can usually be found at the very end of the judgment. They record the legal consequences ordered by the court following its decision. In this case they can be described as follows: Summons dismissed with the plaintiff to pay costs. Social or cultural context: Not all judgments will contain material worthy of note in this step. Other cases, however, will convey statements or attitudes reflective of the social or cultural context in which the judgment was given. For example, cases may reflect views on, among other things, gender roles, race, the environment or societal values in existence at the time the judgment was delivered. This case does not contain any notable features in this regard. As a point of interest, the legislation that was discussed in this case was subsequently amended in 2008 so that s 3 now reads:

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“fence” means a structure, ditch or embankment, or a hedge or similar vegetative barrier, enclosing or bounding land, whether or not continuous or extending along the whole of the boundary separating the land of adjoining owners, and includes: (a) any gate, cattlegrid or apparatus necessary for the operation of the fence, and (b) any natural or artificial watercourse which separates the land of adjoining owners, and (c) any foundation or support necessary for the support and maintenance of the fence, but does not include a retaining wall (except as provided by paragraph (c)) or a wall which is part of a house, garage or other building.

In line with Warringah Properties Pty Ltd v  Babij this definition envisages that a ‘retaining wall’ may be subsumed in the statutory notion of ‘fence’. While the legislative language of course differs from that in the judgment, this may be taken as an endorsement of that decision. It appears the case would be decided the same way under today’s law. EXERCISE 7: ANALYSING A CASE Analyse the case which follows in accordance with the less detailed of the two methods provided in 7.9 above.

7.12

Hart v Rankin [1979] WAR 144 Supreme Court of Western Australia Burt CJ

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15, 30 September 1977 Criminal law and procedure — Driving offence — Motor vehicle — Driver — Whether person in charge of motor car under tow driving a motor vehicle — Road Traffic Act 1974–1978 ss 49(1), 5(1). Transport — Motor vehicle — Driver — Whether person in charge of motor car under tow driving motor vehicle — Road Traffic Act 1974–1978 ss 49(1), 5(1). Criminal law and procedure — Sentence — Sentences imposed for three offences occurring over comparatively short period of time — Whether sentences should be cumulative — Question of degree — Whether total period of imprisonment excessive. The appellant was charged upon each of three complaints that he had driven a motor vehicle on a road whilst not being the holder of a driver’s licence contrary to the provisions of s  49(1)(a) of the Road Traffic Act  1974–1978. He was convicted of each charge upon his plea of guilty. He had made three journeys in his car between 4.30 in the afternoon and 6.30 the following morning. On the last occasion he sat in the driver’s seat of his car and steered it while under tow. He appealed against his conviction in respect of the last offence contending that his car was not a motor vehicle within the meaning of the Act and that he was not driving it. The justices had

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sentenced him to 12 months’ imprisonment in respect of each charge and ordered that the sentences be served cumulatively and fixed a minimum term of six months. The appellant appealed against the sentences imposed by the justices on the ground, inter alia, that the sentences should not have been made cumulative. Held: (1) Upon the proper construction of s 49(1) of the Road Traffic Act 1974–1978 the appellant drove a motor vehicle at the material time, because:— (a) the car was a motor vehicle as defined by s 5(1) and remained a motor vehicle notwithstanding that at the material time it was under tow and was unable to propel itself as it was designed to do; (b) while the verb ‘to drive’ was not defined by the Road Traffic Act, the appellant was the driver of the motor vehicle as defined by s 5(1) of the Act since he was in fact in control of the motor vehicle although it was under tow. R v MacDonagh [1974] 2 WLR 529 at 531; [1974] 2 All ER 257 at 259, applied. Wallace v  Major [1946] 2 All  ER 87; Caughey v  Spacek [1968] VR 600 and McGrath v Cooper [1976] VR 535, distinguished. (2) The sentences imposed by the justices in respect of each offence should have been made concurrent because the offences occurred over three fairly short journeys over a comparatively short period of time and in addition the total period of imprisonment of three years was excessive. JG Picton-Warlow, for the appellant. GF Scott, for the respondent. Cur adv vult Other cases cited: R v Roberts [1965] 1 QB 85; Murphy, Davidson & Ward v Watson [1975] WAR 23; R v Shaw [1975] RTR 161; Alberts v Pethick (Appeal No 19 of 1976).

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Burt CJ. … The appellant who is a person of Aboriginal descent within the meaning of the Aboriginal Affairs Planning Authority Act  1972, was charged upon each of three complaints that he had driven a motor vehicle on a road whilst not being the holder of a driver’s licence. Each charge was laid under s 49(1)(a) of the Road Traffic Act. He pleaded guilty to each charge and in each case he was convicted on his plea. Upon it appearing that he was at all times a person who was disqualified from holding a licence (s 49(2) of the Road Traffic Act) the sentence as noted on the record of court proceedings was in each case: ‘Imp. in first instance: Twelve months’ imprisonment. Accumulative Minimum six months before being eligible for parole.’ The appellant complains that the sentence passed upon each conviction was excessive in the circumstances and he appeals against his conviction on one of the three complaints — Complaint No 55 of 1977. Appeal against conviction: Upon the appellant pleading guilty upon his conviction the prosecuting sergeant stated the facts to the presiding justices. From what was said it appears that at about 4.30 on the afternoon of 5 May 1977 the appellant drove his car from the Williams Native Reserve along the Williams-Narrogin Road to the Williams Hotel. He did that again at about 9.45 on the evening of that day. It seems that his car then ran out of petrol or broke down and reading between the lines it was left at the hotel overnight. At about 6.30 on the following morning the appellant had his car towed back to the reserve. The appellant was then sitting in the driver’s seat and

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steering it. That was the act of ‘driving’ which was relied upon for the purposes of the third charge. The appellant by his order to review challenges his conviction upon that charge for three reasons. He says in the first place that the justices ought not to have accepted his plea of guilty because they ‘did not satisfy themselves that he [the appellant] was capable of understanding the nature of the charge’, the proposition being that by reason of s 49 of the Aboriginal Affairs Planning Authority Act the justices could not accept a plea of guilty until they had so satisfied themselves. This ground was not pressed. Section 49 of the Act requires that a plea of guilty entered by a person of Aboriginal descent be not admitted ‘where the court is satisfied upon examination of the accused person that he is a person of Aboriginal descent who from want of comprehension of the nature of the circumstances alleged, or of the proceedings, is or was not capable of understanding that plea of guilty …’ It is not suggested that it did so appear to the court nor is it suggested that an ‘examination’ of the appellant would have led to its so appearing. That ground, in my opinion, is without substance. The next ground taken is that from the statement of facts as given by the prosecuting sergeant it appears that what the appellant was driving, if he was driving, at the material time was not a ‘motor vehicle’. A ‘motor vehicle’ is defined by the Road Traffic Act to mean, ‘a self-propelled vehicle that is not operated on rail; and the expression includes a trailer, semitrailer or caravan while attached to the motor vehicle’. At the material time the vehicle was not ‘self-propelled’. It was being towed. Therefore, the appellant contends, it was not at  the material time a ‘motor vehicle’. One answer to that might be to say that while it was being towed it was a ‘trailer’ and hence within the definition of ‘motor vehicle’. The answer, however, which I would give would be to say that the definition is describing and defining a thing in terms of its functional design and not with reference to the way it is performing at any particular time. A conventional motor car is, I think, a ‘motor vehicle’ as defined and it remains a motor vehicle notwithstanding the fact, if it be the fact, that it has run out of petrol, or has a flat battery, or for some other such reason is unable at the time to propel itself as it was designed to do. Then and finally it is said that the appellant did not at the material time ‘drive’ the motor vehicle. The verb ‘to drive’ is not defined by the Act but the noun ‘driver’ is. That word is defined to mean, ‘Any person driving, or in control of, a vehicle or animal’. From that it is, I think, reasonable to say that to be in control of the vehicle is to drive it. I was referred to the decision of the Divisional Court in Wallace v Major [1946] 2 All ER 87, as an authority which it is said denies that conclusion. That was a case arising under and decided upon the construction of the Road Traffic (Driving Offences) Act 1936 (UK) and upon the regulations made under that Act. As such it cannot be an authority which controls the answer to the present question which in the terms of the local legislation is, as it seems to me, a simple question of fact, the question being whether a person steering and, so far as he can, by the application of brakes controlling the speed of a vehicle which is being towed by another, can be said to be in control of the towed vehicle. I think, although the question I know has been otherwise answered although upon different legislation — see  Caughey v  Spacek [1968] VR 600, and McGrath v  Cooper [1976] VR 535 — that robust common sense, which seems commonly to be resorted to in this area of the law, would require one to answer the question in the affirmative. I would, with respect, accept as being applicable to the local statute

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the remarks appearing in the reasons of the Court of Appeal in R v MacDonagh [1974] 2 WLR 529 at 531; [1974] 2 All ER 257 at 259: ‘There are an infinite number of ways in which a person may control the movement of the motor vehicle, apart from the orthodox one of sitting in the driving seat and using the engine for propulsion. He may be coasting down a hill with the gears in neutral and the engine switched off; he may be steering a vehicle which is being towed by another. As has already been pointed out, he may be sitting in the driving seat while others push, or half sitting in the driving seat but keeping one foot on the road in order to induce the car to move’. To say that a person in the position of the appellant in this case was not in control of his vehicle would seem to me to be saying that if he were not there his vehicle would nevertheless obediently follow the tow with proper tension on the tow rope. I would deny that as a question of fact. To achieve that result requires that the towed vehicle be steered and its speed controlled and the person who is doing those things, I think, is in control of that vehicle. It is, as I have said, a question of fact: see Tyler v Whatmore [1976] RTR 83. In the instant case the appellant pleaded guilty and, in my opinion, and in the terms of s 197(1)(a) of the Justices Act, ‘in the circumstances of the case there are (no) reasons which are sufficient to show that the decision of the justices in convicting the person … should be reviewed’. … The appellant also appeals from the sentence passed upon him in each case. The threshold question here is to find out what the sentence was. It has on all sides been assumed that the total sentence with respect to the three convictions was imprisonment for three years — one year in each case cumulative — with a minimum of 18  months to be served before being eligible for parole — six months in each case cumulative. I do not think that this is so. By s  37(3) of the Offenders Probation and Parole Act: ‘Where a person is before a Court to be sentenced upon convictions of two or more offences that Court, notwithstanding that it sentences the person to be imprisoned in respect of all or any of those offences for which he is convicted and has then to be sentenced, shall not fix a minimum term in respect of each of the offences for which he is sentenced to be imprisoned but if the Court is of the opinion that a minimum term should be fixed in respect of those offences, it shall fix a minimum term in respect of the aggregate period of imprisonment the person shall be liable to serve under all the sentences then imposed’. To read the sentences as noted so as to extract from them three minimum terms each of six months made cumulative one upon the other requires that the word ‘accumulative’ as there appearing should apply both to the finite and the minimum term. That is not what the notation says and to read it in that way assumes that the justices were unaware of the provisions of s 37(3) of the Act. For these reasons it would seem to me to be more reasonable to say that the effect of the three sentences was that the appellant was sentenced to imprisonment for three years with a minimum of six months to be served before being eligible for parole. The appellant says that the period of 12  months’ imprisonment was in each case excessive in the circumstances. It was the maximum sentence which could be imposed upon him, but bearing in mind that the appellant had been convicted on nine previous occasions of driving a motor car without a licence I do not think that he can complain about that. Whether it was right to make each the second and third sentence cumulative upon the first is, however, another matter. The convictions show the offences occurred in the course of three fairly short journeys and over a comparatively short period of time. It is not a situation to which it is easy to apply established notions. If a man drives his car for, say, one mile and then stops, gets

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out and buys a packet of cigarettes and then re-enters his car and drives on, has he committed two offences or one offence, and if two, then should the punishments imposed for each be made cumulative? It is, of course a matter of degree but I think that if it can in broad terms be said that the appellant was using his car on a particular day including, on the facts of this case, his driving on the following morning, then the proper punishment should not be made to depend on the number of stops and starts. So judged this case could be said to be near the borderline, but when one considers the total period of imprisonment ordered — three years — then that, in my opinion, confirms the view that each period of imprisonment ought to have been made concurrent. In my opinion: — (1) The appeal against conviction on charge No 55 of 1977 should be dismissed. (2) The period of imprisonment imposed in each case should not be reduced but each should be served concurrently with the other. (3) The period to be served before being eligible for parole being a period fixed in respect of the time to be served under all the sentences should be six months. To this extent the appeals are allowed and there will be orders accordingly. Solicitors for the appellant: Aboriginal Legal Service. Solicitor for the respondent: State Crown Solicitor. RODNEY GREAVES

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Doctrine of precedent or stare decisis This chapter is concerned with finding statements of law in past cases. Past cases provide precedents which may be binding in some subsequent cases. As will be seen, extracting a principle of law from a precedent is often not straightforward. One issue is that, in judicial decisions, statements of law are not provided according to a single fixed set of words. This is a significant difference between judicial decisions and legislation. Sometimes the principles of law that have been applied in a case are not explicitly stated in the decision at all; those principles are merely implicit in the judgments. In other cases, although the judge may quite specifically state the rule being applied, this might be done more than once — each time in a different form of words. The difficulty is compounded where an appeal court’s decision flows from several different judgments, each containing one or more statements of the rule.When interpreting a case, therefore, it is often possible to state the rule for which it is authority in different ways.This is one reason why case law rules are more flexible than statutory provisions, but frequently less certain. Although the meaning of legislation is sometimes unclear, at least the rule is expressed in a single form of words. Other issues also arise in applying the doctrine of precedent. The effect of the doctrine is that, when deciding cases, courts have regard to past decisions in which the law and the facts are similar. The relative weight or authority of a case, however, may vary and this too is determined by the doctrine of precedent. Nearly all legal systems (including civil law systems) rely on the authority of precedent, although with differing

7.13

7.14

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stare decisis: the doctrine of binding precedent

7.15 ratio decidendi: the reason for a decision in a case; the judge’s decision on the material facts

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7.16

degrees of formality and strictness. Countries that derive their legal systems from the English common law are said to employ the principle of stare decisis, which literally translates as ‘to stand on what has been decided’.This is quite a strict approach to precedent. According to Cross and Harris, the orthodox interpretation of stare decisis is to ‘keep to the rationes decidendi of past cases’.9 ‘Rationes decidendi’ is the plural of ratio decidendi which means the reason for the decision. A later court may, in some situations, be strictly bound by the rationes of past cases. There is ongoing debate about the extent to which, in any given situation, the doctrine of precedent allows a court discretion as to the principle to be applied in the present case. The doctrine of precedent itself draws a distinction between precedents that are strictly ‘binding’ and those which are merely ‘persuasive’. Where a precedent is strictly binding, the present court must apply it, even if it views the principles laid down as wrong, unwise or harmful. Where a precedent is persuasive, the present court may be able to avoid applying those principles. However, the fact that the present court simply disagrees with those principles may not provide sufficient reason to depart from the precedent. There is flexibility in the doctrine of precedent, and often courts can avoid following precedents they disagree with. Nevertheless, it is not uncommon to find judges expressing their ‘judicial regrets’ about the law they are compelled to apply.10 The general rules of the doctrine of precedent in common law systems can be summarised as follows: • each court is bound by decisions of courts higher in its hierarchy; • a decision of a court in a different hierarchy or lower in the same hierarchy may be persuasive but is not binding; • a court is not bound by its own past decisions but will depart from them with reluctance; • only the ratio decidendi of a case is binding; • obiter dicta (‘remarks in passing’, see 7.45ff below) are not considered binding but may be persuasive; and • precedents do not lose their force by lapse of time. Further, it is axiomatic that only propositions of law will be viewed as rationes decidendi. Conclusions of fact by a superior tribunal or court in the judicial hierarchy do not bind an inferior tribunal or court, especially in different proceedings.11

9 10 11

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Rupert Cross and JW Harris, Precedent in English Law (Oxford University Press, 4th ed, 1991) 100. Ibid 36. Contrast s 25B of the Dust Diseases Tribunal Act 1989 (NSW) which may be viewed as extending the doctrine of precedent to certain findings of fact. Section 25B(1) provides ‘(1) Issues of a general nature determined in proceedings before the Tribunal (including proceedings on an appeal from the Tribunal) may not be relitigated or reargued in other proceedings before the Tribunal without the leave of the Tribunal, whether or not the proceedings are between the same parties.’ This extension may be viewed as being based on three considerations. First, very similar issues arise in many of the cases before the Tribunal, eg whether exposure to a particular level of asbestos dust causes mesothelioma. Second, the consideration of these issues turns on expensive and time-consuming expert evidence.Third, given the aggressively fatal nature of dust diseases once they take hold, it can be a race against time for the Tribunal to decide before the sufferer of the disease succumbs: see, eg, (Re Mowbray) Brambles Holdings Ltd v British American Tobacco Australia Services Ltd (No 6) [2006] NSWDDT 7.

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These rules and the concepts on which they are based are discussed in the remainder of this chapter. They are revisited in Chapter 8, which is takes a closer look at how they operate in the context of Australia’s federal system of interrelated court hierarchies. RATIONALE OF THE DOCTRINE OF PRECEDENT Branson and Finkelstein  JJ explained the doctrine of stare decisis in Telstra Corporation v Treloar:

7.17

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The doctrine of stare decisis takes its name from the Latin phrase ‘stare decisis et non quieta movere’ which translates as ‘stand by the thing decided and do not disturb the calm’. It is a doctrine based on policy.The rationale for the doctrine can be grouped into four categories: certainty, equality, efficiency and the appearance of justice. Stare decisis promotes certainty because the law is then able to furnish a clear guide for the conduct of individuals. Citizens are able to arrange their affairs with confidence knowing that the law that will be applied to them in future will be the same as is currently applied. The doctrine achieves equality by treating like cases alike. Stare decisis promotes efficiency. Once a court has determined an issue, subsequent courts need not expend the time and resources to reconsider it. Finally, stare decisis promotes the appearance of justice by creating impartial rules of law not dependent upon the personal views or biases of a particular judge. It achieves this result by impersonal and reasoned judgments.12

Further, as Kirby  P explained in X  v Almalgamated Television Services Pty Ltd [No  2], ‘[t]he binding authority of precedent is related to political organisations of a country’s courts and to the power of a court to reverse the decision of another lower in the judicial hierarchy’.13 Decisions of a higher court are binding on lower courts in the same hierarchy because, on appeal, the higher court would have the power to overrule decisions of the lower courts. Also, the judges in the higher courts have greater seniority and are presumably more learned. It is only the ratio from a previous case higher in the same court hierarchy that is binding. The explanation for the ratio, but not obiter dicta (singular: obiter dictum), being binding is that a court takes greater care in stating a rule that forms a reason for its decision than it does in making a passing remark. In addition, judges may be reluctant to make definitive pronouncements on the hypothetical situations discussed in obiter. At the same time, it is recognised that it is not always easy to distinguish between the ratio and an obiter dictum: see 7.45ff. Precedents are used in many areas other than the legal system. In deciding an issue, decision-making bodies of all kinds will consider previous decisions in relation to similar issues and will be aware they are setting an example for the future.The doctrine as applied in the common law system is a refined and formalised example of normal decisionmaking. HIERARCHY OF COURTS Since the common law doctrine of precedent is premised on the hierarchical structure of the court system, the different elements of the hierarchy, and how they relate to one 12

13

obiter dicta: a legal principle expounded by a judge which is not necessary for the judge’s decision in the case

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7.19

(2000) 102 FCR 595, 602. See also Dyson Heydon,‘How Far Can Trial Courts and Intermediate Appellate Courts Develop the Law?’ (2009) 9 Oxford University Commonwealth Law Journal 1, 9–13 (‘How Far?’). (1987) 9 NSWLR 575, 584.

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jurisdiction: has dual meanings: (a) the territory over which legal power extends: eg Queensland, the Commonwealth, or Australia; (b) the function and the extent of the authority of a court or tribunal in relation to the matter before it

7.21

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7.22

another, must be considered. The same basic court hierarchy is found in all common law jurisdictions (in the territorial sense); however, differences of detail exist. A description of the main features of the Australian and several other common law court hierarchies is given in Essential Legal Toolkit A at the end of the book. To take New South Wales as an example, there are essentially five levels in the hierarchy. At the bottom level is the Local Court presided over by magistrates. Next is the District Court, which is presided over by District Court judges. Then the Supreme Court, which is presided over by Supreme Court Justices. Above that are the Court of Appeal and the Court of Criminal Appeal, which are usually made up of benches of senior Justices, including the Chief Justice, President of the Court of Appeal, and Justices of Appeal. And finally, above all is the High Court of Australia. These are the courts with general jurisdiction (in the sense of a court’s functions and authority).There are, in addition, specialist courts such as the Drug Court and the Industrial Court, and a range of tribunals. It should also be noted that the High  Court is actually a federal court that plays an important role in the interpretation, application and development of New South Wales law. Most courts above the lowest level have both original and appellate jurisdiction (in the second sense). To say that a court is exercising its original jurisdiction means that it is hearing a case at first instance. There may have been pre-trial hearings dealing with case management issues (see Chapter 6); however, this is the first time matters of substance have been considered. Conversely, appellate jurisdiction, as the name suggests, is where a court is hearing an appeal against a decision of a court (or tribunal) lower in the hierarchy. For example, in New South Wales, while the District Courts and the Supreme Court have some appellate jurisdiction, the term ‘intermediate appeal court’ ordinarily refers to the Court of Appeal and Court of Criminal Appeal. These intermediate appeal courts specialise in civil and criminal law respectively. All the other general courts have both civil and criminal jurisdiction. Some of the complexities relating to the doctrine of precedent that are raised by tribunals and the interrelation of state and federal court hierarchies are discussed in the next chapter.The important thing to note for present purposes is that the court hierarchy plays two important interrelated functions. First, it establishes avenues of appeal, and, second, it determines which precedents are strictly binding. Because appellate courts have the power to reverse the decisions of lower courts, lower courts should follow the law as stated by the appellate courts. Where a lower court fails to follow the precedent of an appellate court, the lower court is liable to be reprimanded and pulled sharply back into line. Reich v Client Server Professionals of Australia Pty Ltd (‘Reich’)14 provides an illustration. Reich concerned litigation being conducted in the Industrial Relations Commission of New South Wales in Court Session, a specialist court.The Full Bench was considering an appeal from a first-instance decision in which Maidment J avoided following a previous decision of the Full Bench. Maidment J had considered the Full Bench precedent but treated it dismissively, favouring an earlier line of authority. In Reich the Full Bench said of Maidment J: His Honour was, of course, not sitting as a member of an appeal bench but as a trial judge and, as such, bound by decisions of Full Benches of this Court and of its predecessors. The 14

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(2000) 49 NSWLR 551 (‘Reich’).

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policy reasons for that situation are so obvious one hesitates to state them. However, they are helpfully set out, both in terms of principle and of policy, in a decision of the former Industrial Commission in Court Session in Re Hospital Employees Pharmacists (State) Award [1979] AR (NSW) 348 at 350–351 where the Full Bench … said: ‘It was the duty of the chairman to follow a decision of the Commission which was directly in point. The scheme of the Act provides for the Commission to exercise a supervisory appellate jurisdiction concerning decisions of the conciliation committees. A failure at committee level to follow decisions of the Commission is conducive to the bringing of appeals and the inevitable delay in finalizing industrial claims which an appeal causes. The present case provides an example. The principle involved is aptly stated by Stephen J in Viro v The Queen (1978) 141 CLR 88 at 129 in these terms: “The first duty of a court is to administer justice according to law. However in the case of an inferior court operating within a system where the doctrine of precedent applies, the existence of authority binding upon it determines for it what it must understand to be the law. It must accept the law to be as the precedent authority has declared it to be, whatever may be its own inclinations in the matter. The sanction implicit in the doctrine of precedent is simple and effective; if an inferior court fails to observe the doctrine the superior court will correct its decision on appeal. Thus the existence of an appeal is inherent in and essential to the doctrine.” Apart from such consideration, any failure at committee level to follow decisions of the Commission can only impair the consistency and uniformity in decisions of the various tribunals constituted by the Act which has always been seen as desirable. The decision of Dey J was not only binding on the committee but, in our view, was also correct.’15

Lower courts can be in a particularly difficult position where a binding precedent makes no sense to them. In 1995 in Pfennig v The Queen (‘Pfennig’)16 the High Court established an admissibility test for evidence of a criminal defendant’s other misconduct (also known as similar fact, propensity or tendency evidence) which trial courts and intermediate appeal courts had a great deal of trouble making sense of. On its face, the test was virtually impossible to satisfy.17 Legislatures intervened ‘to lower the threshold for admissibility of similar fact evidence by abolishing … the … Pfennig test’.18 In time, only Queensland was left struggling with the common Pfennig test. In R v O’Keefe (‘O’Keefe’)19 the Queensland Court of Appeal developed a workaround which came to be adopted by Queensland criminal courts. In a criminal case before the District Court of Queensland, the trial judge followed O’Keefe, admitting evidence of the defendant’s other alleged victims, leading to his conviction on a series of sexual 15 16 17 18

19

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Ibid [53]. (1995) 182 CLR 461. R v W [1998] 2 Qd R 531, 537, 533–4; R v Vinh Le [2000] NSWCCA 49 [116]. Velkoski v The Queen (‘Velkoski’) 45 VR 680 [58]. The legislative responses were Crimes Act 1958 (Vic) s 398A (introduced 1997); Evidence Act 1906 (WA) s 31A (inserted 2004); and Evidence Act 1929 (SA) s 34S (inserted 2011). Apart from Queensland, the other jurisdictions adopted the Uniform Evidence Law (‘UEL’), ss 97, 98 and 101 of which have been held to depart from Pfennig: R v Ellis (2003) 58 NSWLR 700. The UEL legislation is: Evidence Act 1995 (Cth); Evidence Act 2011 (ACT); Evidence Act 1995 (NSW); Evidence (National Uniform Legislation) Act 2011 (NT); Evidence Act 2001 (Tas); Evidence Act 2008 (Vic). The UEL test, itself, has been described as ‘exceedingly complex and extraordinarily difficult to apply’: Velkoski [33]. [2000] 1 Qd R 564 (‘O’Keefe’).

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assaults. This approach and the convictions were upheld by the Queensland Court of Appeal.20 However, the defendant then appealed to the High Court which, in Phillips v The Queen (‘Phillips’),21 in a unanimous judgment held: The trial judge from time to time referred to Pfennig v The Queen. But he did not apply the tests stated in that case. Rather he followed the agreement of counsel and applied the tests advanced in R v O’Keefe.The Queensland Court of Appeal in R v O’Keefe said that the tests it stated were the ‘only sensible resolution’ of passages in Pfennig v The Queen which were not as ‘workable’ as the views expressed by minority judges, revealed ‘fundamental difficulty’ and ‘artificiality’, were ‘rather perplexing’, had led to ‘the expression and application of different tests’ in state courts and had a ‘dubious pedigree’. It must be said at once that it is for this court alone to determine whether one of its previous decisions is to be departed from or overruled. Of course, in criminal cases it is often necessary for trial judges and Courts of Criminal Appeal to elaborate upon rulings of this court; to gather together rules expressed in several cases; to apply rules to different facts and sometimes to reconsider rules affected by later legislation. Within spaces left by the binding determinations of this court, trial judges and intermediate courts retain their proper functions. However, these do not extend to varying, qualifying or ignoring a rule established by a decision of this court. Such a rule is binding on all courts and judges in the Australian judicature. … The tests advanced in O’Keefe are expressed differently. Because they are expressed differently it cannot be assumed that in every case they would operate identically to the tests expressed in Pfennig. Indeed, much that is said in the reasons in O’Keefe might be read as suggesting that the tests propounded there were intended to have a different operation from those stated in Pfennig. These are reasons enough to conclude that the O’Keefe tests should not be adopted or applied. Intermediate and trial courts must continue to apply Pfennig.22

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These observations prompted one commentator to suggest that the High Court was treating its decisions ‘like sacred texts’, an approach which ‘would threaten to ossify the common law, rather than allowing its development’.23 The next time the issue reached the High  Court, it was noted that Phillips had become ‘one of the most criticised decisions of the High Court of all time’.24

7.24

IDENTIFYING THE RATIO DECIDENDI Courts are bound by the precedents of courts higher in the court hierarchy. However, only the ratio decidendi in a case (the legal reason for the decision) — that is, the pronouncement of legal principle necessary for the judge’s decision on the established facts of the case — is binding. Arriving at a statement of the ratio is not always straightforward. A number of difficulties may arise, for example: • It may be difficult to determine whether the principle of law was in contention in the earlier case, a requirement for the principle to form a ratio in the strict legal sense.

20 21 22 23 24

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R v PS [2004] QCA 347. (2006) 225 CLR 303 (‘Phillips’). Ibid [59]–[60], [64] (citations omitted). Jeremy Gans, ‘Similar Facts after Phillips’ (2006) 30 Criminal Law Journal 224, 237. Stubley v Western Australia [2010] HCATrans 269 (20 October 2010).

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It may be possible to state a ratio at  a higher or lower level of generality, broadening its operation or distinguishing it, respectively. There may be no majority in favour of a particular ratio. It may be difficult to distinguish the ratio from the obiter dicta.

There may be overlap between these issues and the list is not exhaustive. Each of these problems will be considered in turn.

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Rules in contention The expression ratio decidendi can be translated as ‘reason for deciding’. Rationes are most commonly distinguished from obiter dicta, passing remarks which are not necessary to the resolution of the case and which are not binding on lower courts: see  7.19ff. But not every statement of law leading to the decision will constitute a ratio. The legal principle must have been in contention. In many cases, particularly at first instance, the law will not be in issue. The parties may disagree only about the facts. As McHugh J said in the High Court:

7.25

This Court has no business in determining issues upon which the parties agree … If a point is not in dispute in a case, the decision lays down no legal rule concerning that issue. … The case can have no wider ratio decidendi than what was in issue in the case. Its precedent effect is limited to the issues.25

A non-contentious rule that the court adopts and applies will not be viewed as a ratio. To constitute a ratio there must be a ‘ “ruling on a point of law” rather than a “statement of a rule of law” ’.26 The rationale for this is that if the issue was in 25 26

Coleman v Power (2004) 220 CLR 1, 44–5; see also Bell Lawyers Pty Ltd v Pentelow (2019) 372 ALR 555 [28]. Cross and Harris (n 9), quoting from Neil MacCormick, ‘Why Cases Have Rationes and What These Are’ in L Goldstein (ed), Precedent in Law (Clarendon Press, 1987) 179.

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7.26

contention the parties will have presented competing arguments and the court will have been required to make a  ruling. The court will have given the matter its full consideration with the benefit of the argument of counsel. In Miliangos v George Frank (Textiles) Ltd,27 Lord Simon noted that ‘a judgment in undefended proceedings or a decision on an uncontested issue tends to have less authority than one given after argument on both sides’.28 Taylor v Rudaks29 illustrates this point.The trial judge, Mansfield J, reached a view on the meaning of s 588M of the Corporations Act 2001 (Cth). He then added: In reaching that conclusion, I have not overlooked the observation [supporting a different interpretation] of Hill J in Commonwealth Bank of Australia v Paola [2005] FCA 855 at [25], upon which senior counsel for the trustee relied. … [T]hat view was not expressed after the benefit of argument on the matter. It does not form part of the ratio decidendi of the decision. It is not a view which his Honour reached after the opportunity of considering the decisions to which I have referred or the analysis of the precise wording of s 588M. I accordingly do not think that the decision obliges me to reach a conclusion different from that I have reached; nor that I should do so.30

Heydon J made a similar point in Tabet v Gett: The consciousness of parties and their legal representatives that the outcome of a debate about the correctness of contested propositions of law is decisively important to the interests of those parties often greatly assists the sharpness and quality of that debate. … [T]he efficacy of a debate does not depend only on whether the participants in the debate have that consciousness. The efficacy of its resolution depends on the court sharing that consciousness and being assisted by that consciousness.31

Level of generality and distinguishing

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7.27

Courts are tasked with deciding the case before them.As such, courts may make statements of principle at a very low level of generality: ‘given these facts, this result follows’. Such statements are of limited usefulness for subsequent cases. Statements at a higher level of generality can encompass a wider range of factual circumstances. In Donoghue v  Stevenson, the House of Lords held that the manufacturer of an opaque bottle of ginger beer could be liable to the consumer if, before the bottle was sealed, the ginger beer was contaminated by the remains of a snail and the consumer became ill as a result of drinking it. A rule stated in terms of these concrete facts would not be particularly useful. Decomposed snails in ginger ale bottles are rare events. Such a specific rule would not be binding, for example, where a snail was in a can of Coca-Cola. It is unclear, however, why the rule should not apply. Arguably, as a matter of principle, the rule should apply, at the least, to all food and drink which is packaged or manufactured in such a way as to prevent inspection prior to consumption. It should extend, for example, to a cockroach in a Mars bar. But why limit it to food and drink? Why not extend

27 28 29 30 31

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[1976] AC 443. Ibid 478; quoted with approval in CSR Ltd v Eddy (2005) 226 CLR 1 [14]. (2007) 245 ALR 91. Ibid 101–2. (2010) 240 CLR 537, 574.

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manufacturer’s liability to all situations where the end-user is injured as the foreseeable result of a hidden defect? Actually, as noted above at 7.4, Lord Atkin expressed the principle at a much higher level of generality. His ‘neighbour principle’ provided a basis for negligence law generally. ‘You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour’, where ‘neighbour’ is defined to include ‘persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question’.32 Care must be taken in drawing a general principle from an individual decision. Many cases, to a greater or lesser degree, ‘turn on their own facts’. In Nagle v Rottnest Island Authority33 the plaintiff was injured by concealed rocks while diving into waters off Rottnest Island.The High Court held the public authority liable for failing to warn of the dangers of concealed rocks for those diving. Subsequently, in Vairy v Wyong Shire Council, Gleeson CJ and Kirby J observed:

7.28

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The proper use of precedent is to identify the legal principles to apply to facts as found. Decided cases may give guidance in identifying the issues to be resolved, and the correct legal approach to the resolution of those issues. But a conclusion that reasonableness required a warning sign of a certain kind in one place is not authority for a conclusion about the need for a similar warning sign in another place. The decision of this Court in Nagle v Rottnest Island Authority is not authority for the proposition that the coastline of Australia should be ringed with signs warning of the danger of invisible rocks. That was a decision about the legal principles relevant to the existence of a duty of care. The majority also held that the primary judge had been correct to find a breach of duty. That was a conclusion of fact, turning upon the circumstances of the particular case. The decision in Nagle did not establish that reasonableness requires a warning sign in all places where there are submerged rocks, any more than the decision in Romeo v Conservation Commission (NT) established that reasonableness never requires a warning sign at the top of a cliff.34

A judge may hold that the facts of an earlier case, providing a potential precedent, are materially different from the present facts and that, accordingly, the principle applied in that case is not applicable to the present case. Construing a precedent relatively narrowly, so that it does not have application to the present case — or ‘distinguishing’ the precedent — can be a useful technique. It provides a court a means of avoiding unwelcome precedents, potentially developing the law in a useful way. At the extreme, the authority of an unpopular precedent may be confined to those very rare cases with identical facts. ‘In this way the tooth of time will eat away an ancient precedent, and gradually deprive it of all authority and validity.’35 The technique of distinguishing precedents can be illustrated in Thornton v Shoe Lane Parking Ltd (‘Thornton’).36 The English Court of Appeal had to decide whether the plaintiff was bound by a clause excluding liability, which appeared on a ticket automatically issued

32 33 34 35

36

7.29

Ibid 580. (1993) 223 CLR 486. (2005) 223 CLR 422, 422 [3]. John W Salmond, ‘The Theory of Judicial Precedents’ (1900) 16 Law Quarterly Review 376, 383, quoted in PGA v The Queen (2012) 245 CLR 355 [24] (‘PGA’). [1971] 2 QB 163.

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as the plaintiff drove into the defendant’s car park. It was argued that the case was the latest in a line of cases in which the customer received the ticket from a human operator. In these earlier cases the issue of the ticket was regarded as an offer by the company. By taking the ticket without objection the customer was deemed to have accepted the offer, thus forming a contract and becoming bound by the conditions printed on the ticket. In Thornton, however, the Court distinguished those earlier cases on their facts: None of those cases has any application to a ticket which is issued by an automatic machine. The customer pays his money and gets a ticket. He cannot refuse it. He cannot get his money back. He may protest to the machine, even swear at it. But it will remain unmoved.37 [T]he really distinguishing feature of this case is the fact that the ticket on which reliance is placed was issued out of an automatic machine … [I]n all the previous so-called ‘ticket cases’ the ticket has been proffered by a human hand, and there has always been at least the notional opportunity for the customer to say — if he did not like the conditions — ‘I do not like your conditions: I will not have this ticket’. But in the case of a ticket which is proffered by an automatic machine there is something quite irrevocable about the process.38

7.30

This technique may even be open where the precedent contains a statement of principle that, on its face, covers the present case. There may be some flexibility because it is not expected that judges will ‘state a rule with the completeness of a statutory draftsman’.39 Attorney-General (NSW) v  Mundey (‘Mundey’)40 provides an example. Immediately following the conviction of two of his fellow unionists for criminal damage in connection with an anti-apartheid protest, Mr  Mundey, in response to questions from a journalist, criticised the decision and described the judge as ‘racist’. The Attorney-General argued that this constituted a contempt on the basis that it was calculated, or tended, to obstruct the administration of justice, namely a possible appeal or retrial. The Attorney-General relied on a statement by the Full Court of the Supreme Court in an earlier case, Ex parte Attorney-General; Re Truth & Sportsman Ltd:

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It seems obvious to this Court that any statements or comment dealing with the case and propounding views as to its proper determination are calculated to obstruct, or to tend to obstruct, the administration of justice and to make the task of the court entertaining the appeal both difficult and embarrassing.41

Hope JA, the single judge of the Supreme Court hearing the contempt proceedings in Mundey, suggested: With respect to the members of the court, it seems to me that this statement is too wide. It appears to have been based on statements appearing in the judgments of Humphreys and Oliver JJ in R v Davies; Ex parte Delbert-Evans but a later court of five judges, presided over by Lord Parker CJ, has held that these statements were too wide or should be read down: R v Duffy; Ex parte Nash.42

37 38 39 40 41 42

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Ibid 169 (Lord Denning MR). Ibid 174 (Willmer J). Heydon (n 12) 19. [1972] 2 NSWLR 887 (‘Mundey’). Ex parte Attorney-General; Re Truth & Sportsman Ltd [1961] SR (NSW) 484, 496, cited in Mundey (n 40) 901. Mundey (n 40) 901–2. The internal references are R v Davies [1945] 1 KB 435, 444, 445 and R v Duffy [1960] 2 QB 188.

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Consideration of R v Duffy and other authorities led Hope JA to prefer a narrower test, requiring an ‘intention’ or a ‘real risk’43 that the course of justice would be interfered with. In the present case, Hope JA noted that Mr Mundey made the statements spontaneously in answer to questions by a journalist, and that the broadcasting of the statements was done by a media outlet without any connection to Mr Mundey.44 It should be noted that the broader statement of law in Ex parte Attorney-General; Re Truth & Sportsman Ltd was made in a judgment of a higher court in the same court hierarchy. Hope  JA was, therefore, very careful in his treatment of it. He distinguished the facts of that case. The statements under consideration in that case were part of a deliberate campaign by a newspaper to vilify a criminal defendant and to provoke public condemnation of the ‘totally inadequate’ sentence he had received following conviction. Hope JA indicated, having regard to those facts, that the statement of the Full Court was broader than it needed to be, and was, therefore, obiter dicta.45 However, if the statement of the Full Court was binding, Hope JA indicated that the present defendant’s conduct would constitute only a ‘technical contempt’ and would warrant no penalty.46 Trial judges who seek to distinguish and avoid higher court precedent should have in mind how the higher court will look at their decision on appeal. In Reich, the Industrial Relations Commission decision discussed above at 7.22, Maidment J at trial considered Full Bench authority

7.31

7.32

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in the light of that which Lord Halsbury said in Quinn v Leathem (‘Quinn’): ‘… every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found;’ and: ‘… a case is only authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to flow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all.’47

However, on appeal the Full Bench indicated that the reliance on Quinn was inappropriate, and Maidment  J had failed to distinguish the earlier Full Bench authority on sound grounds. The Full Bench quoted from a classic jurisprudential work by a respected judge of the United States, Benjamin Cardozo. I am not to mar the symmetry of the legal structure by the introduction of inconsistencies and irrelevancies and artificial exceptions unless for some sufficient reason, which will commonly be some consideration of history or custom or policy or justice. Lacking such a reason, I must be logical, just as I must be impartial, and upon like grounds. It will not do to decide the same question one way between one set of litigants and the opposite way between another. ‘If a group of cases involves the same point, the parties expect the same decision. It would be a gross injustice to decide alternate cases on opposite principles. If a case was 43 44 45 46 47

Mundey (n 40) 903–4. Ibid 904. Ibid. Ibid. Reich (n 14) [35] quoting Quinn v Leathem [1901] AC 459, 506 (‘Quinn’).

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decided against me yesterday when I was defendant, I shall look for the same judgment today if I am plaintiff. To decide differently would raise a feeling of resentment and wrong in my breast; it would be an infringement, material and moral, of my rights’. Everyone feels the force of this sentiment when two cases are the same. Adherence to precedent must then be the rule rather than the exception if litigants are to have faith in the even-handed administration of justice in the courts.48

The Full Bench added: The approach of Cardozo J not only illustrates the limitations upon the approach in Quinn v  Leathem but also serves to emphasise the important policy considerations involved in following precedent, particularly in precedent being followed by single judges sitting at trial or first instance, considerations which go to the very legitimacy of the legal system itself. The need to maintain consistency in the law, even when a Full Bench or Full Court is considering or reconsidering earlier decisions has been stated many times.49

Finding a ratio among diverging majority judgments 7.33

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7.34

Cases at  appellate level are often decided by a panel of judges, usually three at  the intermediate level, such as the New South Wales Court of Appeal or the Full Court of the Federal Court. When such a court is reconsidering one of its own decisions, five judges may be empanelled: see 8.22. In the High Court, there are usually five or seven judges sitting. Often a court will deliver a single unanimous judgment, or there may be a single majority judgment.50 However, it is not uncommon, in appellate decisions, for a number of different judgments to be delivered. As a ratio decidendi is a proposition with which a majority of the court has agreed, it may be necessary to determine, by a head count, what the majority thought were the relevant principles of law applicable to the case. Even when each judge comes to the same conclusion it may be the result of different reasoning or the application of different legal principles. In these circumstances it may be difficult to discern one or more rationes which gained majority support. A court bound by such a decision may conclude that all that is binding is a narrow proposition constructed from the material facts of the earlier case, together with the court’s conclusion. The High Court was presented with this situation in Jones v Bartlett (‘Jones’).51 The plaintiff had been injured visiting his parents, who leased their home from the defendant landlord. In Jones, Gummow and Hayne  JJ, considering the earlier case of Northern Sandblasting Pty Ltd v Harris (‘Northern Sandblasting’),52 stated that Northern Sandblasting is authority for the rejection in Australia of the rule in Cavalier v Pope [which recognised landlord’s immunity], and … the existence of some duty [by the landlord] to the plaintiff [entrant] … There was disagreement in Northern Sandblasting as to the nature and extent of that duty in the circumstances of the case. The four members of the court (Brennan  CJ, Toohey, Gaudron and McHugh  JJ) comprising the majority in favour of the order dismissing the appeal were divided as to 48

49 50

51 52

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B N Cardozo, The Nature of the Judicial Process (Yale University Press, 1921) 32–4, quoting from W G Miller, The Data of Jurisprudence (W Green & Sons, 1903), 335. Reich (n 14) [55]. A single majority judgment may be co-authored by the majority judges, or written by a single judge with other majority judges very briefly expressing their agreement. (2000) 205 CLR 166 (‘Jones’). (1997) 188 CLR 313 (‘Northern Sandblasting’).

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the ground upon which that order should be made. Toohey J and McHugh J relied upon breach of a non-delegable duty of care, but the other members of the majority and those justices who would have allowed the appeal rejected the submission that such a duty had arisen. Brennan CJ and Gaudron J both relied upon breach of a duty of care which involved the need for a pre-letting inspection, but they did not express the point in the same terms. Toohey J said that there were ‘real difficulties’ in the way of a case based upon a failure to inspect. McHugh J did not deal with this point. The justices in the minority, Dawson J, Gummow J and Kirby J, were of a view contrary to that of Brennan CJ and Gaudron J. Northern Sandblasting thus is an example of a decision of an ultimate appellate court in which there is no majority in favour of either of the two grounds for decision. Further, as regards the non-delegable duty ground, all members of the court dealt with it and a majority was against it; of those judges who dealt with the other ground for decision, a majority of them was against it. The authority of a decision reached in this way for later cases in trial courts and intermediate courts of appeal is a matter of debate. … One view is that, in such an instance, there is no discernible ratio decidendi, so that the later court is free to decide the legal issues for itself and to adopt any reasoning which appears to it to be correct so long as that reasoning supports ‘the actual decision’ in the earlier case. … [I]n Dickenson’s Arcade Pty Ltd v  Tasmania, Barwick  CJ said that, if there was ‘no reason for decision common to the majority of the Justices’, a decision of this Court was ‘authority only in relation to the statutory and factual situation it resolved and in relation to a case which has, if not precisely, at least substantially and indistinguishably the same statutory and factual situation’. Thus, the Chief Justice would have rejected as an adequate foundation a ground accepted only by a majority within the majority supporting the order made by the Court. … It is unnecessary to resolve these problems in this Court in the present case. This is so for two reasons. First, this Court is not necessarily bound by its previous decisions; a difference between the reasons of the justices constituting the majority in an earlier decision may justify departure from that decision. If there be difficulty in detecting and isolating the propositions of law which provided the grounds for a decision, this Court should not strain to construct a precedent from which it may then be asked to depart. Secondly, there is force in the statement that ‘from the realistic point of view, we are not sure of the ratio of a decision until we can discover its reception and its treatment by subsequent cases’. The present litigation illustrates the point.53

In Re Tyler; Ex parte Foley,54 the Full Bench of the High Court had to consider the authority of two of its own previous decisions — Re Tracey; Ex parte Ryan (‘Re Tracey’)55 and Re  Nolan; Ex parte Young (‘Re  Nolan’)56 — in which there had been differing reasoning of the majority justices. McHugh J said of these decisions:

7.35

The divergent reasoning of the majority judges in Re  Tracey and Re  Nolan means that neither of those cases has a ratio decidendi. But that does not mean that the doctrine of stare decisis has no relevance or that the decisions in those cases have no authority as precedents. Because it is impossible to extract a ratio decidendi from either of the two cases, each decision is authority only for what it decided. … 53 54 55 56

Jones (n 51) 223–5 [200]–[207] (citations omitted). (1994) 181 CLR 18 (‘Tyler’). (1989) 166 CLR 518. (1991) 172 CLR 460.

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[T]he true rule is that a court, bound by a previous decision whose ratio decidendi is not discernible, is bound to apply that decision when the circumstances of the instant case ‘are not reasonably distinguishable from those which gave rise to the decision’.57

Equally divided courts 7.36

7.37

Equally divided courts present difficulties for the doctrine of precedent similar to those of divergent majority judgments, discussed in the previous section. When judges disagree, the decision of the majority prevails. Normally, the possibility of a court being equally divided is avoided by ensuring that an odd number of judges sits on each case. Sometimes, however, an equally divided court cannot be avoided, as, for example, when one of the judges dies during the hearing.When this happens, two questions arise.The first, more immediate issue concerns the outcome of the case.The second question concerns the authority of such a decision. The first issue, identifying the decision of the court, is resolved by provisions in the relevant statutes. For example, s 23(2) of the Judiciary Act 1903 (Cth) deals with the possibility of an equally divided Full Bench of the High Court: [W]hen the Justices sitting as a Full Court are divided in opinion as to the decision to be given on any question, the question shall be decided according to the decision of the majority, if there is a majority but if the Court is equally divided in opinion — (a) in the case where a decision of a Justice of the High Court (whether acting as a Justice of the High Court or in some other capacity), a decision of the Supreme Court of a State or Territory or a Judge of such a Court, a decision of the Federal Court of Australia or a Judge of that Court or a decision of the Family Court of Australia or a Judge of that Court is called in question by appeal or otherwise, the decision appealed from shall be affirmed; and (b) in any other case, the opinion of the Chief Justice, or if he is absent the opinion of the Senior Justice present, shall prevail.

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Corresponding principles apply where the Full Court of either the Federal Court or the Family Court is equally divided.58 The rules that resolve equal divisions in Full Courts of state and territory Supreme Courts are quite diverse. • If the New South Wales Court of Appeal is equally divided, the decision is in accordance with the opinion of the Chief Justice or other Judge of Appeal presiding.59 • In Queensland the decision of the Court of Appeal is in accordance with the opinion of the most senior judge.60 • In Tasmania, in the case of an appeal from a judge who is not sitting as a member of the Full Court which hears the appeal, the decision appealed from is affirmed, unless the judge whose decision is appealed from indicates a wish that the appeal be determined without reference to the decision, in which event the opinion of the Chief Justice or senior judge present shall prevail. In any other case, the 57 58 59 60

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Tyler (n 54) 37. Federal Court of Australia Act 1976 (Cth) s 16; Family Law Act 1975 (Cth) s 30. Supreme Court Act 1970 (NSW) s 45. Supreme Court of Queensland Act 1991 (Qld) s 42.

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opinion of the Chief Justice or senior judge present shall prevail.61 In Tasmanian criminal appeals, if the Court of Criminal Appeal is divided, the decision is in accordance with the decision of the Chief Justice or senior judge.62 • In Victoria the decision is in accordance with the opinion of the senior judge of appeal then present unless the appeal is heard by a Full Court constituted by two judges, in which event it must be reheard by a Court of Appeal of more than two judges.63 • In Western Australia, the solution adopted is the same as that in Victoria, except that if an appeal is heard by a Full Court constituted by two judges the decision appealed from stands, unless the appeal is directed to be reheard by a Full Court of no fewer than three judges.64 • In South Australia there is no statutory provision dealing with the possibility of an equally divided Full Court of the Supreme Court. • In the Australian Capital Territory, in the case of an equally divided court, the appeal is to be reheard.65 • In the Northern Territory, the decision is in accordance with that of the senior judge.66 Statutory provisions such as these do not always provide a satisfactory identification of the decision that should be reached where the court cannot agree. An interesting illustration is provided by Skulander v  Willoughby City Council.67 The appellant pedestrian was injured when she collided with an object protruding from a wall; she sued the council in negligence. The trial judge held that the council owed no duty and found for the defendant. On appeal the New South Wales Court of Appeal held that the council owed a duty, but the Court then split three ways. Mason P held that the council had not breached its duty. Beazley JA held that the council had been negligent but damages should be reduced by 20% due to the plaintiff ’s contributory negligence. Basten JA also held that the council had been negligent but that damages should be reduced by 50% due to the plaintiff ’s contributory negligence. In a passage agreed to by the other members, Mason  P considered a number of possibilities as to how their disagreement could be resolved. If the Court is ‘equally divided’ in the terms of s 45(2) of the Supreme Court Act 1970 (NSW), then the presiding judge’s decision should prevail. Mason P noted that this ‘would lead to the exquisite but troubling outcome that my dissenting opinion [that the defendant was not in breach] revives and swells into the judgment of the Court’.68 Mason P expressed ‘doubts as to whether a court whose members each propose discrepant orders is necessarily “equally divided” ’69 and went on to consider other options. 61 62 63 64 65 66 67 68 69

7.39

Supreme Court Civil Procedure Act 1932 (Tas) s 15(9). Criminal Code Act 1924 (Tas) sch, s 400(2). Supreme Court Act 1986 (Vic) s 12. Supreme Court Act 1935 (WA) s 62. Supreme Court Act 1933 (ACT) s 37L(3). Supreme Court Act 1979 (NT) s 23. (2007) 73 NSWLR 44 (‘Skulander’). Ibid 47 [51] (Mason P). Ibid 47 [53].

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7.40

The option of allowing the judgment below to stand would also have the disadvantage of resolving the matter effectively in favour of the dissenting appeal judgment. Moreover, it ‘would affirm a judgment in the court below that rests upon reasoning disfavoured by each member of this Court’.70 A further option was to apply the convention noted by McHugh JA in O’Brien v Tanning Research Laboratories Inc,71 namely that the junior judge (in this case Basten  JA) should withdraw their proposed orders, and join with those proposed by the senior judge.72 But Basten JA had not indicated his willingness to withdraw and, again, this would have the effect of endorsing the dissenting judgment of Mason P. Mason P then considered the approach developed by his predecessor, Kirby P, over a number of cases. In CES v Super Clinics (Australia) Pty Ltd Kirby P suggested: In earlier times, differences of this kind were resolved by the principle of seniority of judicial appointment. In these more enlightened times, a more rational principle has been adopted by this Court. It seeks to express (and in its orders to reflect) the majority consensus of reasoning.73

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7.41

Mason P said that he ‘remain[ed] to be convinced that deference to seniority is a badge of “unenlightened” times or that a rule of last resort whereby the junior judge defers to the senior has necessarily reached its use-by date’.74 However, he still thought it most appropriate to seek ‘what Kirby P described as “the majority consensus of reasoning” and “the highest common denominator of rational agreement” ’.75 He expressed a little discomfort that this required him to ‘assume factual propositions that I positively deny’,76 namely that the defendant was in breach. Nevertheless, he proceeded on that basis and ultimately joined with Basten JA to favour liability with a 50% reduction in damages for the plaintiff ’s contributory negligence. Another tricky issue regarding determining the decision of an equally divided court arose in the recent High Court appeal, Perara-Cathcart v The Queen (‘Perara-Cathcart’).77 The defendant was convicted by a jury of rape and threaten to kill. He appealed to the South Australian Supreme Court on the basis that the trial judge had not properly directed the jury on the use of evidence of other discreditable conduct of the defendant. The Full Court considered the appeal; a majority of 2:1 held that there had been a misdirection. This then raised a further question for the majority under s  353 of the Criminal Law Consolidation Act  1929 (SA) (‘CLC Act’),78 whether the appeal should nevertheless be dismissed under ‘the proviso’.This provides that ‘the Full Court may, notwithstanding that it is of the opinion that the point raised in an appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred’.79 On this question, two judges each went a different way. The appeal 70 71 72 73 74 75

76 77 78 79

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Ibid 48–9 [58]. (1988) 14 NSWLR 601, 641. Skulander (n 67) 49 [59]. (1995) 38 NSWLR 47, 79 (‘CES v Super Clinics’). Skulander (n 67) 51 [74]. Ibid quoting from, respectively, CES v  Super Clinics (n  73) 79 and Woolworths Ltd v  Kelly (1991) 22 NSWLR 189, 200. Skulander (n 67) 51 [74]. (2017) 260 CLR 595 (‘Perara-Cathcart’). The provision has since been moved, without significant change, to Criminal Procedure Act 1921 (SA) s 158. Then Criminal Law Consolidation Act 1929 (SA) s 353(1), now Criminal Procedure Act 1921 (SA) s 158(2).

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was then dismissed since two of the three judges had found against the defendant: one judge found there had been no error at trial, and one judge found that, while there had been an error, the proviso applied and the appeal should be dismissed nevertheless. The defendant then appealed to the High  Court, arguing that the appeal to the South Australian Full Court should have been upheld because a majority had not found that the proviso applied; that is, a majority had not held that despite the error, there had been no substantial miscarriage of justice.This required the High Court to consider s 349 of the CLC Act, which provides: ‘The determination of any question before the Full Court under this Act shall be according to the opinion of the majority of the members of the Court hearing the case.’80 A majority of the High Court upheld the defendant’s argument on this point.81 Section 349 should have been applied to the two questions in turn: first, whether there had been a misdirection; and second, whether, notwithstanding the misdirection, there was no substantial miscarriage of justice. Since a majority had not resolved the second question in the prosecution’s favour, the proviso should not have been applied.The majority rejected the proposition that ‘ “any question” [in s 349] before the Full Court is, always and only, the single question whether the appeal should or should not be allowed’.82 Gageler J dissented, holding that ‘the “question” to which s 349 of the CLC Act refers … is the question as to what order the Full Court should make.The “determination of any question before the Full Court” occurs through the making of an order by the Full Court’.83 A majority of two judges of the Full Court agreed that the appeal should be dismissed, therefore the appeal should be dismissed. It does not matter that their reasoning in arriving at this conclusion differed. While a majority of the High  Court upheld the defendant’s argument as to the interpretation of s 349 of the CLC Act, a differently constituted majority also held that there had been no misdirection. On this basis the defendant’s appeal was dismissed. This leaves the second question raised by equally divided courts. What authority do the decisions carry as precedents? As Gageler  J noted in Perara-Cathcart, there are significant differences between the two questions. One is addressed by a rule, the other by a principle.

7.42

The decision-making rule applied to produce the order of a multi-member court in a case in which there is disagreement between its members is different in timing, concept and purpose from the principle applied in an attempt to extract a ratio decidendi from the reasons for decision of the members of that court in that case.The decision-making rule is applied at the time of decision. The rule is directed to ensuring an outcome in the case. When triggered by disagreement, the rule applies to produce a result. The principle is applied subsequently and in retrospect. The principle is directed to the ideal of ensuring that cases are decided consistently through time. The principle cannot be expected always to achieve that ideal. Every case must have an outcome, but not every case need have a ratio decidendi.84

This question of the authority of a decision of an equally divided court arose in Re Wakim; Ex parte McNally (‘Wakim’).85 In this case the High Court considered a challenge 80 81 82 83 84 85

Now Criminal Procedure Act 1921 (SA) s 152. Perara-Cathcart (n 77) [38] (Kiefel, Bell and Keane JJ); see also [129] (Nettle J). Ibid [40]. Ibid [83]; see also [144] (Gordon J). Ibid [75]. (1999) 198 CLR 511 (‘Wakim’).

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to the validity of cross-vesting legislation. That legislation, enacted in 1987, enables matters which would previously have been within the sole jurisdiction of the courts of the Commonwealth, or of one of the states or territories, to be dealt with in the courts of any Australian jurisdiction. A previous challenge, in Gould v Brown,86 had been unsuccessful but the High Court had been equally divided. In Wakim, Gummow and Hayne JJ said: Stating the question as whether the Court should reconsider or reopen Gould v  Brown obscures important considerations. The order that was made in Gould v Brown was made pursuant to s 23(2)(a) of the Judiciary Act. It was made in circumstances where the Court was, as s 23(2)(a) says, ‘equally divided in opinion’. That is, there was no opinion on the issues raised that was an opinion commanding the assent of a majority of the Court. It follows that, although the decision in Gould v  Brown disposed finally of the appeal and bound other courts in Australia to arrive at  a like result on the issues it dealt with, it established no principle or precedent having authority in this Court. There is, then, no question in the present matters of the Court reopening or reconsidering one of its earlier decisions. It is unnecessary to examine the circumstances in which the Court will do that. It was submitted that the Court should adopt a different rule from the rule stated by Dixon  J in Tasmania v  Victoria87 and subsequently applied on several occasions (that a decision of a full court of this Court in which opinions are equally divided creates no precedent binding this Court). But any different rule must grapple with the difficulty of identifying what principle is established by a decision of an equally divided Court. In general, this Court considers itself bound by its earlier decisions. (The exceptions to, or qualifications on, that general rule are of no immediate relevance.) But what is binding is not the order that is made disposing of the particular proceeding. The Court is bound by the principles of law that are established by its decisions. The expedient prescribed by s 23 of the Judiciary Act enables a decision to be given in the particular case but the application of that provision does not give to the opinion of those members of the Court who favoured that disposition of the matter any special status.88

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The position of lower courts faced with an evenly split High  Court precedent may be more difficult. The High  Court, as in Wakim, can consider afresh the issue left uncertain by its previous decision. However, lower courts are more constrained by High Court authority. In Langley v Langley, Mahoney J, considering a decision of an equally divided High Court, indicated that this Court should, even if there be no ratio decidendi to be extracted from the decision, seek to ensure that its decision is consistent with the views or the approach adopted by members of that Court, as far as that is possible, having regard to the differences in view which may have been expressed by them.89

Dissenting judgments 7.44

While on the topic of multiple inconsistent judgments in appellate decisions, something should briefly be said about dissenting judgments. Obviously, a dissenting judgment cannot be strictly binding. However, it may still be persuasive. It may influence courts which are not bound by the majority judgment, including the dissenting judge’s own 86 87 88 89

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(1998) 193 CLR 346. (1935) 52 CLR 157. Wakim (n 85) 570–1. [1974] 1 NSWLR 46, 54.

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court on a later occasion. Consider, for example, Evatt  J’s dissent in the High  Court decision of Chester v Council of the Municipality of Waverley90 in an early ‘nervous shock’ case. Having searched for her lost child for several hours, Mrs Chester saw his body dragged out of a flooded trench. She saw local lifesavers attempt resuscitation unsuccessfully. She sued the local council, which had dug the trench and failed to provide adequate steps to safeguard it, for her consequent psychiatric injury. The majority did not recognise this ‘hitherto unknown cause of action’.91 Evatt J dissented in a judgment celebrated for its ‘strong, empathic and persuasive language’,92 a ‘great Australian dissent’ because of ‘the immediate impact it had on statute law and its eventual but forceful significance for the modern common law of both Australia and England’.93 Interestingly, courts have different practices with regard to dissents and separate concurring judgments. It is a strong tradition of the Privy Council, and the Criminal Division of the Court of Appeal of England and Wales, to issue a single judgment.94 Other courts at times appear to have sought to maximise the rate at which they deliver composite judgments.95 With a single judgment it is obviously easier for lower courts, and the lawyers who practise in them, to know what the law is,96 furthering the goals of efficiency and certainty: see Chapter 6. However, some suggest that preventing or discouraging dissenting (or separate concurring) judgments infringes judicial independence and integrity.97

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Ratio decidendi and obiter dicta A judge will often find it necessary or convenient to consider how an issue which is not in direct contention may be decided. The judge may, for example, suggest a resolution of a hypothetical dispute based upon a version of events differing in some respect from the facts of the case. Such statements may illustrate or clarify the principle which is actually applied in the case (the ratio). But since these statements do not concern the actual facts of the case, they are not strictly necessary, and so will not be a source of rationes. These incidental or passing remarks regarding legal principle are called obiter dicta (singular: obiter dictum). Obiter dicta of eminent judges in superior courts are often very persuasive for judges deciding later cases but, according to the traditional understanding of the doctrine of precedent, they are not strictly binding. In Tabet v Gett,98 Heydon J highlighted the dangers with courts indulging in obiter musings. He suggested that the awareness of both judge and counsel that a particular legal 90 91 92

93 94

95 96

97

98

7.45

7.46

(1939) 62 CLR 1. Ibid 11 (Rich J). Barbara McDonald, ‘Justice Evatt and the Lost Child in Chester v Waverley Corporation (1939)’ in Andrew Lynch (ed), Great Australian Dissents (Cambridge University Press, 2016) 58, 59. Ibid 60. Cross and Harris (n 9) 94; Roderick Munday, ‘ “All for One and One for All”: The Rise to Prominence of the Composite Judgment within the Civil Division of the Court of Appeal’ (2002) 61 Cambridge Law Journal 321, 340. See, eg, Munday (n 94). Sir Anthony Mason, ‘Reflections on the High Court: Its Judges and Judgments’ (2013) 37 Australian Bar Review 102, 110. J D Heydon ‘Threats to Judicial Independence: The Enemy Within’ (2013) 129 Law Quarterly Review 205; responses include Mason (n 96). See also Stephen Gageler, ‘Why Write Judgments?’ (2014) 36 Sydney Law Review 189; Gabrielle Appleby and Heather Roberts, ‘He Who Would Not Be Muzzled: Justice Heydon’s Last Dissent in Monis v The Queen (2013)’ in Lynch (ed) (n 92) 335. Tabet v Gett (n 31).

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question is crucial to the outcome of the case helps sharpen the quality of the argument, and its absence may reduce the quality of the debate. He explained his concerns with obiter in these terms: The only significance of an answer would lie in what future courts would make of it. They are likely to treat it not as a decision, but only as a dictum; not as the resolution of a controversy, but only as advice; not as an event, but only as a piece of news. The consciousness … that the outcome of a debate about the correctness of contested propositions of law is decisively important to the interests of those parties often greatly assists the sharpness and quality of that debate. … Here a stage has been reached in a journey along the path to decision which has caused that consciousness to cease to exist because an issue has ceased to be decisively important. No assistance can be gained from a consciousness that has ceased to exist. In this field, for me, at least, to embark on difficult and doubtful inquiries in an attempt to answer the question without the assistance to be gained from that consciousness is a potentially very dangerous course. This is a case in which, since it is not necessary to do so, it is desirable not to.99

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Statements made by judges are often clearly identifiable as obiter dicta. The statement may be preceded by words signalling their obiter status, such as ‘although a consideration of this question is not necessary for the decision in this case’. On other occasions, distinguishing between ratio and obiter requires close consideration of the actual facts and matters in dispute. In Eslea Holdings Ltd v Butts Samuels JA, with whom Kirby P agreed, said of a recent decision of the High Court of Australia: It seems to me that since their Honours found that the necessary evidentiary footing was absent … the statement concerning the nature of an estoppel by convention is not an alternative basis for the court’s conclusion but an obiter dictum. Nonetheless, it appears in a reserved joint judgment of the High Court, to which I am bound to pay the very greatest respect and attention.100

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Sometimes regard must be had to the precise line of reasoning taken by the court. A  court may have a choice as to the ground on which it decides the case. For example, a plaintiff who has been injured by a product bought from the defendant manufacturer may claim compensation on the alternative grounds of breach of contract and negligence. The court may find for the plaintiff in contract, and then comment in passing that it would also have upheld the negligence claim. Statements of law on contract may then be rationes while those on negligence would be only obiter dicta. Had the court chosen to decide on the basis of negligence rather than contract, the reverse would be the case. In some cases a court may pursue two or more different routes to a conclusion without indicating which is the true basis for the decision. In such a case each basis for the decision should be considered to provide a separate ratio.101 If one of the grounds is more carefully reasoned than the others, this may provide a reason to consider that ground to provide the true ratio, while the others are merely obiter; however, caution should be exercised in making this determination.102

99 100 101 102

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Ibid [97]–[98] (Heydon J). (1986) 6 NSWLR 175, 186. McBride v Monzie Pty Ltd (2007) 164 FCR 559, 562 [6]. Brunner v Greenslade [1971] Ch 993, 1002–3.

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In Re Lower and Comcare,103 Forgie DP, in the Administrative Appeals Tribunal, was required to determine whether certain observations in an earlier decision of Tamberlin J in the Federal Court were ratio and binding, or obiter and not binding. The applicant argued that they were obiter dicta on the basis that the observations were preceded by the words ‘in my view’. Forgie DP rejected this argument: Certainly, I understand that his Honour adopted the expression ‘in my view’ in [19] but it seems to me that his doing so is not indicative of its being obiter dicta rather than part of the ratio decidendi of the case. Apart from [19], Tamberlin J used a similar form of words on no fewer than five other occasions in the course of his judgment ([12], [18], [20] and [34]) and the expression ‘in my opinion’ on one ([18]). In [18], he uses both expressions in concluding what is clearly part of the ratio decidendi of the case … The use of expressions such as ‘in my view’ in his judgment reflects his Honour’s style just as my adopting the expression ‘it seems to me’ earlier in this paragraph reflects mine. Both are used in presenting concluded views.104

Obiter dicta are increasingly common in dismissed criminal appeals. The appeal court will often find that (a) the trial judge may well have made the mistake claimed by the defendant; but (b) this made no difference to the verdict — even had the mistake not been made the jury would have convicted the defendant. To decide on ground (b) is to apply ‘the proviso’ (see  7.41): ‘the Full Court may, notwithstanding that it is of the opinion that the point raised in an appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred’.105 In the High Court decision CTM v The Queen, Kirby J, the lone dissentient, warned of having recourse to the proviso in such cases:

7.48

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An appellant has no special interest, as such, in resolving contested questions of criminal law, such as were at issue in this appeal. If it is thought that an appellant may succeed in substance but will generally fail on the ‘proviso’ an important practical incentive for the bringing of criminal appeals is diminished, if not lost entirely. Yet, when legally justified, the prosecution of such appeals is essential to the proper administration of criminal justice in Australia.106

Not every statement of a rule of law by a judge is necessarily ratio or obiter. Frequently during the course of a judgment, a judge will restate and discuss propositions of law from previous cases. Such recitations may provide a useful foundation for the judge’s reasoning but they will be neither ratio nor obiter unless they receive the endorsement of the judge.

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EXERCISE 8: IDENTIFYING RATIO AND OBITER Analyse the judgment of McCardie  J in Cohen v  Sellar,107 set out below, giving the following information: 1. Citation. 103 104 105 106 107

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(2003) 74 ALD 547. Ibid 552 [15]. See, eg, Criminal Procedure Act 1921 (SA) s 158(2); see also s 6(1) of the Criminal Appeal Act 1912 (NSW). (2008) 236 CLR 440, 479 [131]. [1926] 1 KB 536. For a recent Australian decision with similar facts, see Papathanasopoulos v Vacopoulos [2007] NSWSC 502.

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2. Brief statement of the material facts. 3. Procedural history, distinguishing the two actions and explaining why this decision concerned the defendant’s claim for a remedy. 4. The issues to be decided. 5. The passages in the judgment which could be argued to be: a) rationes decidendi; or b) obiter dicta. Cohen v Sellar [1926] 1 KB 536 High Court, King’s Bench Division McCardie J at 546–9:

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The plaintiff, Miss Cissie Cohen, aged 24, had been engaged in business, and was a young woman of obvious ability. The defendant, Nathan Sellar, aged 27, occupied a clerical post at a moderate weekly salary. Each belonged to the Jewish faith. In August 1923, they agreed to marry, and in December 1923, the defendant handed to the plaintiff a single-stone diamond ring worth £30. No express condition accompanied the delivery of the ring. It was, however, admittedly given and received as an engagement ring in contemplation of marriage. Unhappy differences soon arose between the two. Each had a quick temper, and quarrels were frequent. So acute became the state of affairs that in June 1924, the parties went before a Jewish tribunal in order to secure, if possible, an adjustment of the strife, but no reconciliation was achieved. Matters reached a climax in December, 1924. The mutual asperities were then most pronounced, and the two did not meet after that date. The plaintiff asserted that in that month the defendant refused to marry her. The defendant, on the contrary, asserted that it was the plaintiff herself who, with emphatic words, broke off the engagement. Apart from damages the substantial question for the jury was which of the two had refused to marry. The jury found that it was the defendant and not the plaintiff who had refused to carry out the promise. They awarded the plaintiff £34 10s as special damages in respect of certain items claimed by her, and £40 as general damages for the loss of the marriage. Few will doubt that the act of the defendant in ending the engagement saved both parties from an unhappy married life. There was no suggestion of any breach of morality between the two. The defence contained no plea of legal justification for breaking off the engagement. In the course of the trial the question arose which of the two litigants was entitled to the engagement ring. An action had been brought in the County Court by the defendant to recover back the engagement ring from the plaintiff. The County Court judge adjourned the hearing to await the decision of the High  Court action. The County Court action was removed to the High Court and was made a counterclaim in the proceedings before the jury and myself. … The questions for my decision emerge from a breach of promise action tried before me with a common jury. I am indebted to each of the counsel for their learned and able arguments. A few facts can be stated. [His Lordship stated the

214

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facts set out above and continued.] Both counsel requested that I should, after the jury had given their verdict on the other questions in the case, determine the points of law with respect to the ring. Hence their arguments on a later day before me. … I now turn to the two recent cases which bear on betrothal gifts. In neither of them was any reference made to Young v Burrell Cary’s Causes in Ch 77; 21 Eng Rep 29, or Oldenburgh’s Case Freeman’s KB 213; 2 Mod 140, or Lockyer v Simpson Mosely 298. First I take Jacobs v  Davis [1917] 2 KB 532. The headnote is as follows: ‘When an engagement ring is given by a man to a woman, there is an implied condition that the ring shall be returned if the engagement is broken off.’ This broad statement seems to favour [counsel for the defendant’s] argument before me. But the headnote must of course be read with the actual judgment of Shearman J. He was dealing with a case where the lady broke off the engagement, and the man thereupon sued for the return of the engagement ring. In the course of his decision Shearman  J said [1917] 2 KB 533: ‘Though the origin of the engagement ring has been forgotten, it still retains its character of a pledge or something to bind the bargain or contract to marry, and it is given on the understanding that a party who breaks the contract must return it. Whether the ring is a pledge or a conditional gift, the result is the same. The engagement ring given by the plaintiff to the defendant was given upon the implied condition that it should be returned if the defendant (ie, the lady) ‘broke off the engagement’. She did break the contract, and therefore must return the ring.’ It seems reasonably clear that Shearman J impliedly held that if the plaintiff himself had broken off the promise he could not get back the ring. This too, I infer, would have been the opinion of Bray J: see the words of his decision with respect to wedding gifts in Jeffreys v Lack 153 LT Newspaper 139. Such are the decisions. The principles involved are illustrated by the arguments in the already cited case of Lockyer v  Simpson Mosely 298. It was conceded by the Attorney-General in that case that if the lady had refused to marry the man she must return the gifts delivered to her in contemplation of marriage. This I hold to be the correct legal view. If a woman who has received a ring refuses to fulfil the conditions of the gift she must return it. So, on the other hand, I think that if the man has, without a recognized legal justification, refused to carry out his promise of marriage, he cannot demand the return of the engagement ring. It matters not in law that the repudiation of the promise may turn out to the ultimate advantage of both parties. A  judge must apply the existing law as to the limits of justification for breach. The conclusions I have stated are I think borne out by the general body of opinion. The apparent dictum to the contrary in Oldenburgh’s Case Freeman’s KB 213; 2 Mod 140, cannot be relied on at the present day. By the slow growth of decisions the promise of marriage is today fixed with many of the legal characteristics of a commercial bargain. It is governed largely by the principles of law applicable to ordinary contracts. The conditions which attach to a gift made in contemplation of marriage must be viewed in relation to the incidents which flow from the engagement itself. It is therefore appropriate to quote the words of Lord Sumner in Bank Line v Capel [1919] AC 435 at 452, where, speaking of a commercial adventure, he said: ‘Reliance cannot be placed on a self-induced frustration’. The like rule will, I think, apply to a matrimonial adventure also. So too Lord Finlay LC said in New Zealand Shipping Co v Société des Ateliers et Chantiers de France [1919] AC 1 at 6:

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‘It is a principle of law that no one can in such a case take advantage of the existence of a state of things which he himself produced’: see also Mackay v Dick (1881) 6 App Cas 251 at 264. A like result to that I have already stated will follow if an engagement ring be regarded as a pledge or deposit for the fulfilment of a contract. A person who wrongly refuses to carry out a bargain will lose his deposit: see Ex parte Barrell (1875) LR 10 Ch 512 and Howe v Smith (1884) 27 Ch D 89. I have thought it best to deal with the matter somewhat fully, as it was so adequately argued before me. I may therefore venture to add a few words on other aspects of the matter which may arise and which were referred to by counsel. If the engagement to marry be dissolved by mutual consent, then in the absence of agreement to the contrary, the engagement ring and like gifts must, I think, be returned by each party to the other. This seems clear on principle. If the marriage does not take place either through the death of, or through a disability recognized by law on the part of, the person giving the ring or other conditional gift, then I take the view that in such case the condition is to be implied that the gift shall be returned. For although, as I have said, such a gift cannot be dissociated from the engagement to marry, yet I think that in the circumstances of betrothal gifts there should be no application of the operation of such decisions as Krell v Henry [1903] 2 KB 740 and Chandler v Webster [1904] 1 KB 493. If the marriage actually takes place then the engagement ring or like gift will, in the absence of express agreement to the contrary, become, I infer, the absolute property of the recipient, and that property will not, I presume, be divested by subsequent divorce. The judgment I have given does not, of course, touch gifts which, as in Lockyer v Simpson Mosely 298, are absolute and free from condition. It touches conditional gifts only. I must add just a word on another point. The jury, after giving their verdict, expressed a view that the plaintiff, Miss Cohen, should return the ring to the defendant. But the matter was not left to them for decision and their view was only a suggestion. They were not cognizant of the points involved in the dispute as to the ring. In any event it would have been right that the plaintiff should keep possession of the ring so that she might be able to take it in execution for the damages and costs awarded in her favour against the defendant. For the reasons given there must be judgment for the plaintiff with costs on claim and counterclaim.

Authoritative obiter dicta 7.51

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Obiter dicta are judicial statements of law that are not strictly necessary for the present decision. The legal principle being propounded is not properly raised by the issues in the case. As noted in the previous section, judges at times are hesitant make obiter statements on the basis that the principles being addressed are too hypothetical and will not have received full argument. Nevertheless, judges often do make obiter observations. And sometimes superior courts go to considerable lengths to expound important legal principles even though they are only provoked by, rather than directly

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relevant to, the proved facts of the case before them. Two classic cases in which this has occurred are Central London Property Trust Ltd v High Trees House Ltd108 and Hedley Byrne & Co Ltd v Heller & Partners Ltd (‘Hedley Byrne’).109 In the former, in the King’s Bench Division of the English High  Court, Denning  J expounded the doctrine of equitable or promissory estoppel even though the actual decision in the case did not involve an application of the doctrine. His judgment was nevertheless followed widely and proved extremely influential in the evolution of the doctrine of equitable estoppel. The issue in Hedley Byrne was liability for negligent misstatement. The plaintiff had obtained information from the defendant bank about the creditworthiness of a third party, a customer of the bank, with whom the plaintiff was considering doing business. The defendant negligently and incorrectly provided a favourable report, and consequently the plaintiff performed work for the third party for which the latter was unable to pay. The decision of the House of Lords was that the defendant was not liable for the plaintiff ’s loss because it had disclaimed responsibility for inaccuracy. That was the decision in the case. Fifty pages of the House of Lords’ reasoning, however, discuss what the result would have been had there been no disclaimer. Although obiter, this analysis by the Law Lords constituted a major development in the law governing negligent misstatement and recovery for pure economic loss. In Nowicka v Superannuation Complaints Tribunal110 Sundberg J quoted two pertinent observations:

7.52

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A mere passing remark or a statement or assumption on a matter that has not been argued is one thing, a considered judgment on a point fully argued is another, especially where, had the facts been otherwise, it would have formed part of the ratio. Such judicial dicta, standing in authority somewhere between a ratio decidendi and an obiter dictum, seem to me to have a weight nearer to the former than the latter.111 It is a truism upon which there is no need to enlarge that dicta are of various degrees of persuasiveness. At one end of the scale we have the considered opinion of all members of the House of Lords who sat to hear a case. At the other end of the scale we have broad observations made on the spur of the moment such as the remark which prompted Lord Abinger to say ‘It was not only an obiter dictum, but a wide divaricating dictum.’ Dicta of the highest degree of persuasiveness may often, for all practical purposes, be indistinguishable from pronouncements which must be treated as ratio decidendi.112

In the Australian context, Justice Heydon, while warning of the risks of judges introducing obiter into their judgments, nevertheless indicated extrajudicially that ‘lower courts ought to respect the decision rather than disloyally engaging in an overruthless characterisation of what is said as dicta’.113 In Farah Constructions Pty Ltd v SayDee Pty Ltd (‘Farah Constructions’),114 the High  Court expressed the view that, as the highest court in the Australian judicial hierarchy, its dicta — especially dicta subscribed 108 109 110 111 112 113 114

[1947] KB 130. [1964] AC 465. [2008] FCA 939 [21]. Brunner v Greenslade (n 102) 1002–1003 (Megarry J). Cross and Harris (n 9) 77. Heydon, ‘How Far?’ (n 12) 39. (2007) 230 CLR 89 (‘Farah Constructions’).

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to by a majority of Justices — should be accorded great respect. In its unanimous judgment, the Court was extremely critical of the New South Wales Court of Appeal for departing from ‘long-established authority and seriously considered dicta of a majority of this Court’,115 and stated: The result of the statements by the Court of Appeal … has been confusion among trial judges of a type likely to continue unless now corrected. … [A]  trial judge of the Supreme Court of New South Wales now ‘faces the difficult situation of obiter dicta in the High Court some 30 years ago conflicting with recent dicta in the Court of Appeal, which have met with substantial criticism’. The confusion is not likely to be limited to New South Wales judges.116

As with the High  Court’s similarly critical remarks in Phillips, discussed above at 7.23, the ‘haughty’117 attitude expressed by the High Court is open to question. Keith Mason, who was President of the New  South  Wales Court of Appeal in Farah Constructions, described the High  Court decision as a ‘profound shift in the rules of judicial engagement’.118 He suggested that the decision has been viewed as an ‘assertion of a High  Court monopoly in the essential developmental aspect of the common law’ which will ‘have the effect of shutting off much of the oxygen of fresh ideas that would otherwise compete for acceptance in the free market of Australian jurisprudence’.119 The High Court’s attitude in Farah Constructions appears inconsistent with its earlier suggestion that, given the restrictions imposed on High Court appeals, intermediate appeal courts serve as ‘courts of last resort for all practical purposes’.120

Judicial law-making

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7.53

As discussed in Chapters 2 and 3, law-making is not a core part of the judicial function. That is the legislature’s job. The judiciary’s function is to interpret and apply existing law to resolve the disputes that come before it.Where an issue is addressed unambiguously by legislation, the court has no choice but to apply the legislation. If there is any ambiguity in the legislation, the court should consider, and in many cases apply, the interpretation adopted in previous cases.Where the issue is free of legislation, the court should consider, and in many cases follow, relevant precedents.

115 116

117 118 119

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Ibid 150–1 [134]. Ibid [151]; the internal citation is Kalls Enterprises Pty Ltd (In liq) v Baloglow (2006) 58 ACSR 63, 78 [47] (Hamilton J), quoted in Darkinjung Pty Ltd v Darkinjung Local Aboriginal Land Council [2006] NSWSC 1217 [30] (Barrett J). Keith Mason, ‘President Mason’s Farewell Speech’ (2008) 82 Australian Law Journal 768, 769. Ibid. Ibid. See also Keith Mason, ‘The Distinctiveness and Independence of Intermediate Courts of Appeal’ (2012) 86 Australian Law Journal 308. Nguyen v Nguyen (1990) 169 CLR 245, 268 (Dawson, Toohey and McHugh JJ) (‘Nguyen’).

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FILLING GAPS IN THE LAW Where there is no Australian precedent, a trial judge may obtain assistance from authorities from foreign jurisdictions. The question of what a trial judge should do when faced with no pertinent Australian authority, only conflicting foreign decisions, was considered by Heydon JA in the New South Wales Court of Appeal in Union Shipping New Zealand Ltd v Morgan.121 On appeal, the defendant argued that the trial judge was wrong to have followed MacKinnon v The Iberia Shipping Co Ltd122 — a decision of the Court of Session,

121 122

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(2002) 54 NSWLR 690 (‘Union Shipping’). 1955 SC 20.

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Scotland’s Supreme Civil Court — in view of conflicting authorities of the United States Supreme Court and academic criticism. Heydon JA said: The criticisms were misplaced. In view of the quality of the court which decided MacKinnon’s case, the absence of contrary authority in the British Commonwealth, the fact that the United States cases are based on a process of statutory construction and a ‘proper law of the tort’ theory which was not part of the intra-Australian conflict of laws, the general acceptance of MacKinnon’s case, though subject to criticism, as stating the law, and his own position as a primary judge, the primary judge did not err … In fact his behaviour was entirely correct and legitimate: it was a model of what a primary judge should have done in the circumstances.123

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7.55

Judges are occasionally presented with novel issues that are free of legislation and authority. Despite all the shelves of case law and legislation in law libraries and legal databases, new issues may be thrown up by developments in society, economics, technology and medicine. Law, with its inherently conservative approach, can struggle to keep up. In Mount Isa Mines Ltd v Pusey, Windeyer J referred to ‘[l]aw, marching with medicine but in the rear and limping a little’.124 Consider, for example, Cattanach v  Melchior (‘Cattanach’).125 In Cattanach the first defendant, Dr Cattanach, had performed a sterilisation procedure on the first plaintiff, Ms Melchior, at Redland Hospital, the second defendant. He carried out the operation competently but was negligent in failing to warn her that further steps might be necessary to avoid pregnancy. As a result, she became pregnant and had a healthy baby boy. Ms Melchior and her husband brought an action against the defendants, arguing that the failure to warn was negligent and claiming compensation for their consequent losses. This ‘wrongful birth’ action was novel; it would have been inconceivable at  an earlier stage in the development of medical science. At trial and in the Queensland Court of Appeal the plaintiffs were successful. She obtained damages for pain and suffering, and costs associated with the pregnancy and birth. Her husband obtained damages for loss of consortium, and both plaintiffs obtained damages for the cost of raising the child to the age of 18. The defendants appealed to the High Court in connection with the final head of damages, but the Court dismissed the appeal by a majority of 4:3.126 A number of legislatures responded to the recognition of the wrongful birth action in Cattanach by passing legislation blocking it.127 A few years later the High Court faced a closely related type of claim in Harriton v Stephens (‘Harriton’).128 The difference was that this was an action for ‘wrongful life’ rather than wrongful birth. The medical negligence action was brought by the child who had been born severely disabled, rather than by the parents. The High  Court rejected the claim by a majority of 6:1. The action proceeded on the basis that, had the plaintiff ’s mother received proper treatment and advice, she would have had an

123

124 125 126 127

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Union Shipping (n 121) 701 [14], 734 [115] (Heydon JA, Hodgson JA agreeing at [120], Santow JA agreeing at [121]). (1970) 125 CLR 383, 395. (2003) 215 CLR 1 (‘Cattanach’). McHugh, Gummow, Kirby and Callinan JJ; Gleeson CJ, Hayne and Heydon JJ dissenting. Civil Liability Act 2002 (NSW) ss 70, 71; Civil Liability Act 2003 (Qld) ss 49A(2), 49B(2); Civil Liability Act 1936 (SA) s 67. (2006) 226 CLR 52 (‘Harriton’); and Waller v James (2006) 226 CLR 136, decided at the same time.

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abortion. In assessing compensation, the Court would have to draw a comparison not between a life with disabilities and a life without disabilities, but between a life with disabilities and no life at  all. According to the majority, this comparison ‘cannot be made’;129 it is ‘impossible’.130 New issues may also be thrown up by new legislation. Of course, the judge has to apply the legislation, but it may be ambiguous or leave the judge with wide discretion.As Justice Heydon has pointed out extrajudicially,131 the ever-growing body of legislation continues to present trial courts with cases of first impression. A contributing factor is that ‘modern statutes are long, complex, not always well-drafted, frequently amended, and sometimes repealed and re-enacted in a slightly different form’; novel legal issues may also arise ‘where legislation is piecemeal in the sense that it does not cover the field and there is a need for the general law to be synthesised with it’.132 The principles governing statutory interpretation are discussed in Chapters 10–15. If there is a gap in the law, the judge must fill the gap.This is as true of magistrates as it is of Justices of the High Court. The essence of the judicial role is that a decision must be made. The judge ‘must respond to the parties’ arguments … cannot walk away … cannot postpone indefinitely … cannot say it is too hard’.133 It follows that ‘there is never an absence of law’.134 As former Justice Michael Kirby commented extrajudicially, ‘[i]f there is no apparent law on the subject the judge is duty-bound to create it’.135 For many years, the judicial law-making role was not acknowledged. Jurists subscribed to what was called the ‘declaratory theory of law’. Under that theory judges did not make law, even if the issue before them had never been dealt with before. Rather, by looking at existing common law and statute law principles, they were said to have extracted a rule that was held always to have existed, but which had remained unused, waiting to be declared at the appropriate moment. By the end of the 18th century, legal philosophers such as Jeremy Bentham and John Austin had exposed that theory as a fiction, and had asserted that, in some cases, judges did make law when making their decisions. As legal theorist Julius Stone pointed out:

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How could the law of a small community, based on agriculture and cottage industry, of the 16th and 17th centuries have developed the enormous complex of rules which could regulate a great commercial and industrial empire if the judges had only been drawing on pre-existing sources?136

Lord Reid provided a sardonic account of the declaratory theory:

129 130 131 132 133

134 135 136

Harriton (n 128) 105 (Hayne J). Ibid 126 (Crennan J). Heydon, ‘How Far?’ (n 12). Ibid 18. Michael Kirby, ‘Judicial Activism? A Riposte to the Counter-Reformation’ (2005) 11 Otago Law Review 1, 14 (‘A Riposte’). Ibid. Ibid. Lyndel Prott,‘Stone and Legal Reasoning’ (1986) 10 Bulletin of the Australian Society of Legal Philosophers 144.

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Those with a taste for fairytales seem to have thought that in some Aladdin’s cave there is hidden the Common Law in all its splendour and that on a judge’s appointment there descends on him knowledge of the magic words Open Sesame.137

Now it seems that most, if not all, judges and legal commentators reject the fairytale and accept that judges do make law.

7.58

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7.59

DEVELOPING THE LAW Even where there is no gap in the law, judges still have the power, in some cases, to change the law. A court may be allowed to reject an established principle of common law. Clearly, judges should respect the supremacy of Parliament; they cannot ignore legislation no matter how dimly they view it: see, for example, 4.45. However, legislation often leaves room for interpretation. Despite the doctrine of precedent, a court may be able to depart from an established interpretation of legislation. (The doctrine of precedent applies, potentially with some slight variation, to decisions involving statutory interpretation, as discussed at 8.7ff.) The doctrine of precedent is inherently conservative. Judges resolving disputes today should apply the principles that were applied to similar disputes in the past. This serves the goals of predictability, equality and efficiency. However, as discussed in this chapter and the next, the doctrine is not wholly rigid. If a superior court in the same hierarchy has previously made a clear decision on identical facts, the lower court will be required to follow that decision and apply the law as there stated with the same result. But in other situations, precedents may be only persuasive and otherwise binding precedents may be distinguishable or open to interpretation. Judges may be tempted to depart from precedent for a variety of reasons. A judge may consider the principle to be erroneous as a matter of principle, or contrary to a clear policy goal. Alternatively, the judge may consider that, while the established principle generally operates well, the present case has special features that the principle fails to account for. In these situations, the judge may feel some pressure to depart from precedent and develop the law. It should be noted that precedents do not lose their authority merely through the passage of time. Indeed, the contrary is often true: ‘a precedent gains in authority with age’.138 Though, as John Salmond noted in an article published in 1900, in a passage quoted by the High Court, this statement … must be read subject to an important qualification. Up to a certain point a human being grows in strength as he grows in age; but this is true only within narrow limits. So with the authority of judicial decisions. A moderate lapse of time will give added vigour to a precedent, but after a still longer time the opposite effect may be produced, not indeed directly, but indirectly through the accidental conflict of the ancient and perhaps partially forgotten principle with later decisions. Without having been expressly overruled or intentionally departed from, it may become in course of time no longer really consistent with the course of judicial decision. In this way the tooth of time will eat away an ancient precedent, and gradually deprive it of all authority and validity. The law becomes animated

137

138

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James Reid, ‘The Judge as Law Maker’ (1972) 12 Journal of the Society of Public Teachers of Law (New Series) 22. Salmond (n 35) 383, cited in PGA (n 35) [24].

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by a different spirit and assumes a different course, and the older decisions become obsolete and inoperative.139

Nevertheless, some precedents retain their legal authority despite being out of step with modern societal values. To a greater or lesser extent, this will present the court with a ‘judicial dilemma’.140 To comply with the existing rule opens the court to criticism that it is out of step with community values or social developments, while to change the law invites the charge that the court is undermining certainty and breaching the separation of powers by ‘usurping the role of the legislature’.141 Given the way the doctrine of precedent operates, judges higher in the court hierarchy will have greater scope to depart from precedents than lower courts.‘The ultimate function of developing the law must lie for the most part in the hands of an ultimate appellate court’.142 And, as Phillips and Farah Constructions illustrate, the High Court has guarded its privileged position jealously (notwithstanding that, on another occasion, it suggested that intermediate appellate courts are serve as ‘courts of last resort for all practical purposes’).143 Lower courts, particularly trial courts, are more likely to feel constrained by what appear to be inappropriate precedents. A number of the common law reforms made by the High Court in the 1980s and 1990s included the overruling of tort law authorities that were viewed as out of step with the broader principles of negligence law as outlined in Donoghue v Stevenson and its progeny. Ad hoc torts and immunities were abolished, and the reach of negligence law was extended. In Australian Safeway Stores v Zaluzna,144 the body of principle governing occupiers’ liability, which previously had an uncertain relationship with negligence law, was unambiguously subsumed by it. In Burnie Port Authority v General Jones Pty Ltd,145 the High Court abolished the rule in Rylands v Fletcher,146 a strict liability tort for the escape of dangerous substances from the defendant’s property.The Court held that such circumstances should be dealt with by the principles of negligence law. In the decision in Northern Territory v Mengel (‘Mengel’),147 the High  Court unanimously overruled Beaudesert Shire Council v  Smith (‘Beaudesert’).148 Beaudesert had held that a person should be entitled to compensation if they have suffered harm as the inevitable consequence of the unlawful, intentional and positive acts of another, even if that harm was neither intended nor foreseeable.The High Court in Mengel considered the Beaudesert rule to be inconsistent with the broader principles of modern tort law, which confine liability to injuries that are intentional or negligent. In Northern Sandblasting149 the High Court disapproved the immunity of landlords from liability arising from defects in rented premises, ruling that landlords should be held liable for injuries flowing from their negligence.

139 140 141 142 143 144 145 146 147 148 149

7.60

7.61

Salmond (n 35) 383, cited in PGA (n 35) [24]. Michael McHugh, ‘The Judicial Method’ (1999) 73 Australian Law Journal 37, 42. Ibid. Heydon, ‘How Far?’ (n 12) 44. Nguyen (n 120) 268. (1987) 162 CLR 479. (1994) 179 CLR 520. (1868) LR 3 HL 330. (1995) 185 CLR 307. (1966) 120 CLR 145. See discussion at 7.34 and n 52.

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Judicial negligence law reform continued into this century. In Brodie v  Singleton Shire Council,150 by a majority of 4:3 the High  Court overturned the immunity of highway authorities from liability for injuries arising from nonfeasance in their care and management of highways. In so doing it overruled the High Court’s earlier decisions, Buckle v Bayswater Road Board151 and Gorringe v Transport Commission (Tas).152 The majority held it was necessary to abolish the immunity and deal with the liability of highway authorities under the general law of negligence, in order to ‘[place] the common law of Australia on a principled basis’.153 Gleeson CJ, dissenting, acknowledged the many criticisms that had been made of the immunity. He added, however, that ‘[t]he question for decision is what is the appropriate judicial response to such criticisms’.154 In his view, the change was too great in its implications for the judiciary to make: it should be left to Parliament. If the rule is to be changed, the change should be made by those who have the capacity to modify it in a manner appropriate to the circumstances calling for change, who may be in a position to investigate and fully understand the consequences of change, and who are politically accountable for those consequences.155

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7.62

In Imbree v McNeilly156 the High Court overturned its earlier decision, Cook v Cook,157 which had established a different standard of care for learner drivers; the change was necessary ‘to maintain a better connection with more fundamental doctrines and principles’.158 Cattanach, the wrongful birth case discussed at  7.55, while involving a new principle rather than a change to existing principle, can be viewed as part of this pattern. The majority considered that liability flowed from the general principles of negligence law.159 ‘Duty, breach and damage are all conceded’.160 The majority were not prepared to recognise, as an exception to general principle, an immunity against wrongful birth liability.161 Harriton, in which the wrongful life action was not recognised, is distinguishable from the point of view of principle — it was difficult to conceptualise existence and life as compensable damage.162 The extent to which it is legitimate for the High Court to change the law has been a hotly contested issue on which a range of views have been expressed.Towards the liberal end of the spectrum, Justice McHugh has acknowledged that the common law must develop in response to societal values:

150 151 152 153 154 155

156 157 158 159 160 161 162

224

(2001) 206 CLR 512 (‘Brodie’). (1936) 57 CLR 259. (1950) 80 CLR 357. Brodie (n 150) 542. Ibid 529. Ibid 536. Note that legislatures promptly reintroduced a ‘[s]pecial non-feasance protection for roads authorities’: see, eg, Civil Liability Act 2002 (NSW) s 45. See also Leichhardt Municipal Council v Montgomery (2007) 230 CLR 22, 30 [11] (Gleeson CJ). (2008) 236 CLR 510 (‘Imbree’). (1986) 162 CLR 376. Imbree (n 156) 526 [45] (Gummow, Hayne and Kiefel JJ). Cattanach (n 125) 27, 28 (Gummow and McHugh JJ), 68 (Kirby J), 106 (Callinan J). Ibid 32 (McHugh and Gummow JJ). See, eg, ibid 29 (McHugh and Gummow JJ), 106 (Callinan J). See discussion at 7.55 and nn 129–138.

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When legal rules and principles are no longer efficient or do not meet social needs, they must be reviewed and sometimes revised or extended. The law is a social instrument — a means, not an end. It changes as society changes.163

Similarly, Gummow J has endorsed Lord Radcliffe’s view that ‘the common law is a body of law which develops in process of time in response to the developments of the society in which it rules’.164 And Justice Kirby has referred to ‘the great tradition of the common law — adapting and updating the law for a time of rapid social change’.165 Towards the conservative end of the spectrum, Chief Justice Gleeson has stated: ‘The expertise which the members of the court are required to bring to bear on that function is their expertise as lawyers … The quality which sustains judicial legitimacy is not bravery, or creativity, but fidelity’.166 Justice Hayne expressed a similarly modest view of the judicial role, describing ‘judicial reticence … as a fundamental informing principle for every judge at  every level in the judicial system’.167 Justice Callinan has also been critical of the view that a court should ‘look to and adopt its own view of contemporary community perceptions and values’.168 More stridently, Justice Heydon equated ‘judicial activism’ with the ‘death of the rule of law’, castigating its ‘illegitimate’ use of judicial power to further ‘some political moral or social programme’.169 A particularly controversial example of law-making by the High Court is provided by Mabo v Queensland [No 2] (‘Mabo [No 2]’),170 in which the High Court rejected the application of the terra nullius principle to Australia, and upheld native title, dramatically overturning established doctrine (see 4.3ff). Brennan J said:

7.63

Whatever the justification advanced in earlier days for refusing to recognise the rights and interests in land of the indigenous inhabitants of settled colonies, an unjust and discriminatory doctrine of that kind can no longer be accepted. The expectations of the international community accord in this respect with the contemporary values of the Australian people.171

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Similarly, Deane and Gaudron JJ, in their joint judgment, said: If this were any ordinary case, the Court would not be justified in reopening the validity of fundamental propositions which have been endorsed by long-established authority and which have been accepted as a basis of the real property law of the country for more than one hundred and fifty years … Far from being ordinary, however, the circumstances of the present case make it unique … [T]he two propositions in question provided the legal basis for the dispossession of the Aboriginal people of most of their traditional lands.172

163 164

165 166 167

168 169

170 171 172

McHugh (n 140) 42. Wik Peoples v Queensland (1996) 187 CLR 1, 179 (Gummow J), quoting from Lister v Romford Ice and Cold Storage Co Ltd [1957] AC 555, 591–2 (Lord Radcliffe). Kirby, ‘A Riposte’ (n 133) 10. Murray Gleeson, ‘Judicial Legitimacy’ (2000) 20 Australian Bar Review 4, 11. Kenneth Hayne, ‘Letting Justice Be Done Without the Heavens Falling’ (2001) 27 Monash University Law Review 12, 15. Ian Callinan, ‘An Over-Mighty Court?’ (1994) 4 Proceedings of The Samuel Griffith Society 81, 96. Dyson Heydon, ‘Judicial Activism and the Death of the Rule of Law’ (2003) 23 Australian Bar Review 110, 113 (‘Judicial Activism’). (1992) 175 CLR 1 (‘Mabo [No 2]’). Ibid 42 (Brennan J). Ibid 109 (Deane and Gaudron JJ).

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Dissenting, Dawson J said: The policy which lay behind the legal regime was determined politically and, however insensitive the politics may now seem to have been, a change in view does not of itself mean a change in the law. It requires the implementation of a new policy to do that and that is a matter for government rather than the courts.173

Some commentators took a similar view. Historian Geoffrey Blainey said that the majority judgment … denied the legitimacy of this country. … The High  Court has become too powerful. It seems to have the ambition to become a sort of supreme legislature, a third Parliament, and that runs counter to the path Australian democracy has taken over the years.174

In delivering his judgment in Mabo v Queensland [No 2] Brennan J acknowledged the constraints on judicial law-making: [T]his Court is not free to adopt rules that accord with contemporary notions of justice and human rights if their adoption would fracture the skeleton of principle which gives the body of our law its shape and internal consistency.175

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7.64

He considered that the principles the majority advanced, discussed in 4.4, while departing from established precedent, were consistent with the essential structure of Australian property law. Competing pressures, for and against High Court law-making, were prominent in a pair of criminal appeals dealing with similar issues, one decided in 1991 and the other in 2012. In the earlier case, R v L,176 the defendant had been charged with the rape of his wife. There was common law authority going back more than 250 years that marriage carried with it the wife’s irrevocable consent to sexual intercourse with her husband.177 This provided a defence for a husband charged with the rape of his wife. But, by the 1990s, social conditions and values had changed and the principle was no longer acceptable to the vast majority of the Australian population. That being the case, the High Court considered itself ‘justified in refusing to accept a notion that is so out of keeping with the view currently taken by society of the relationship between the parties to a marriage’.178 The majority expressed doubts as to whether marital immunity was ever part of common law,179 but if it was, the High Court unanimously held it should be abolished. The High  Court was presented with a more difficult sequel to R  v  L in PGA v The Queen (‘PGA’).180 In 2010 in South Australia the defendant was charged with the rape of his wife in 1963, several decades before the High Court’s common law rejection of the immunity in R v L in 1991 and South Australia’s legislative narrowing and abolition of the immunity in 1976  and  1992.181 In separate dissenting judgments, Heydon  J and 173 174

175 176 177 178 179 180 181

226

Ibid 145. Richard Evans,‘The Blainey View: Geoffrey Blainey Ponders Mabo, the High Court and Democracy’ (1995) 69 Law Institute Journal 203, quoted in Kathy Laster, Law as Culture (Federation Press, 2nd ed, 2001) 132. Mabo [No 2] (n 170) 29. (1991) 174 CLR 379 (‘R v L’). Matthew Hale, Historia Placitorum Coronae (History of the Pleas of the Crown) (Sollom Emlyn, 1736) vol 1, 629. R v L (n 176) 390. Ibid 388–90. PGA (n 35). Criminal Law Consolidation Act Amendment Act 1976 (SA) s 12 inserted new sub-ss (3) and (5) to s 73 of the principal Act. The Criminal Law Consolidation (Rape) Amendment Act 1992 (SA) replaced the existing s 73(5).

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CHAPTER 7

CASE LAW AND PRECEDENT

Bell J held that marital immunity was part of the common law in 1963, and expressed concern about its retrospective abolition half a century later in 2012. Judicial change of the law is always retrospective (in that the judicial decision is always after the events under consideration); however, retrospectivity raises particular concerns where criminal liability is concerned.182 And in this case the concerns were further heightened by the many years that had passed between the conduct and the judicial change of law.183 A majority of the High Court, however, indicated that marital immunity was not part of the common law in 1963, nor even in 1935 when South Australia’s Criminal Law Consolidation Act was passed.184 The majority expressly held that it was not extending criminal liability retrospectively.185 The majority’s judgment in PGA is difficult and controversial. Kos Lesses suggests that the majority ‘expressly denied the role of social change in Australia as a legitimate method of legal reasoning’.186 Lesses applauds the majority for still managing to arrive at a decision which recognises marital rape as a crime:

7.65

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There may have been a time and place when such treatment was considered acceptable and hence the possibility of a positive public policy for the marital immunity. But that time had well and truly passed in Australia as at 1963. The decision of the majority in PGA v The Queen is a praiseworthy declaration to this effect.187

However, other commentators are critical of the majority’s approach and consider that the dissenting judgments, in acknowledging that the defence was in existence in 1963, are more accurate. For example, Jill Hunter suggests that the majority judgment ‘effectively masks social and legal reality’;188 Wendy Larcombe and Mary Heath concur, indicating that in 1963 ‘the legal treatment of rape in marriage across Australia, as in other common law jurisdictions, proceeded on the basis that the marital immunity was part of the law’.189 It was not until the ‘sustained feminist activism’ of the 1970s that attitudes changed, bringing about statutory reforms.190 Larcombe and Heath agree with Heydon J’s assessment that the majority’s conclusion rests on a belief ‘that history can be rewritten in complete defiance of all contemporary evidence’.191 ‘The decision … fails to acknowledge the lived experiences of wives and husbands and their relationship to the law as it was understood in 1963.’192 Ngaire Naffine and Joshua Neoh suggest that the majority ‘absolved the common law from responsibility’193 and that the majority

182 183 184 185 186

187 188

189

190 191 192 193

PGA (n 35) 402–15 (Heydon J), 444–5 (Bell J). Ibid 402 (Heydon J), 423 (Bell J). Ibid 384 (French CJ, Gummow, Hayne, Crennan and Kiefel JJ). Ibid 369. Kos Lesses, ‘PGA v The Queen: The Role of Repetition, Reputation and Fiction in the Common Law’ (2014) 37 Melbourne University Law Review 786, 832, citing PGA (n 35) 384. Lesses (n 186) 833. Jill Hunter,‘Rape Law, Past Wrongs and Legal Fictions:Telling Law’s Story with Integrity’, in Paul Roberts, Simon N M Young, and David Dixon (eds), The Integrity of Criminal Process (Bloomsbury, 2016) 327, 347. Wendy Larcombe and Mary Heath, ‘Developing the Common Law and Rewriting the History of Rape in Marriage in Australia: PGA v The Queen’ (2012) 34 Sydney Law Review 785, 803. Ibid 803. Ibid 803, quoting PGA (n 35) 414 (Heydon J). Larcombe and Heath (n 189) 788. Ngaire Naffine and Joshua Neoh, ‘Fictions and myths in PGA v The Queen’ (2013) 38 Australian Journal of Legal Philosophy 32, 51.

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decision constituted ‘a failure to recognise the fact of wife rape and the role of law in giving it full licence’.194 An acknowledgment of the legal and social reality of marital immunity in 1963 would not necessarily preclude a prosecution 50 years later. Hunter highlights a possible solution, albeit one requiring some judicial courage, as she draws a comparison with war crimes: Rape might … be viewed as a crime that is a ‘moral transgression [justifying] … the public interest in seeing the transgressors called to account [and outweighing] … the need of society to protect an individual from prosecution on the basis that a law did not exist at the time of the conduct’.195

Law reporting 7.66

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7.67

The development of the doctrine of precedent required a comprehensive system of law reports in which authoritative decisions may be found by the judges and lawyers involved in later cases: see 7.5. Since the 1860s in England and Wales, and progressively in Australian jurisdictions, judgments given in the more important cases have been systematically published in series of law reports. Generally, only the more important cases decided by superior courts get reported. These constitute only a small proportion of the cases decided in the judicial system each year; they are those which raise significant points of law and are thought to be valuable as precedents. (Virtually all decisions of apex courts like the High Court of Australia and the United Kingdom Supreme Court get reported, often in several different sets of law reports.) The editor of each series of law reports is responsible for deciding which cases should be reported. Headnotes are generally drafted by a reporter, usually a barrister, solicitor or academic lawyer, employed by the publisher of the law report series. Each set of law reports has its own abbreviation series reference — for example, the Commonwealth Law Reports series is abbreviated to CLR. A reported case is referred to (or ‘cited’) by giving the case name (usually the names of the parties), the year in which the decision was made or reported (each law report will use a system of dates), the volume number (if there is one), the abbreviated series reference, and the page at which the report begins. A guide to the most important Australian law report series, together with those of a few foreign jurisdictions, appears in Essential Legal Toolkit C at the end of this book. The rules for the citation of cases are explained in Chapter 21 at 21.14ff. A list of abbreviations of commonly used reports appears in Essential Legal Toolkit B at the end of the book. For a fuller list, see LexisNexis Concise Australian Legal Dictionary and the Australian Guide to Legal Citation in Further reading below. In the past, law reporting played a crucial role in making past decisions available for use in subsequent disputes. Now, however, many unreported decisions are readily also available over the internet. For guidelines on the citation of unreported decisions, see 21.27 and Essential Legal Toolkit D. See Chapter 18 for a discussion of case law databases. 194 195

228

Ibid. Hunter (n 188) 333, quoting from the war crimes case Polyukhovich v The Commonwealth (1991) 172 CLR 501, 689 (Toohey J).

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CHAPTER 7

CASE LAW AND PRECEDENT

AUTHORISED AND UNAUTHORISED REPORT SERIES From the beginning of the 16th century until the middle of the 19th, law reports in England were produced by private reporters under their own names. For that reason, they are called the Nominate Reports and are of variable quality depending on the skills of the individual reporter. They were not checked by the courts from which the cases came. Most of these series, some of which were short-lived, are reproduced in the English Reports: see also 1.26. In England in 1865, the body now known as The Incorporated Council of Law Reporting for England and Wales was set up to begin systematic reporting of all cases decided by the superior courts: see 7.5. These reports are seen by the courts which decided them before being published and are regarded, therefore, as authorised. They include the Law Reports, which are made up of a number of distinct series such as the decisions of the Queen’s Bench Division (QB) and the Appeal Cases (AC). Law reporting in the Australian colonies followed a similar pattern to that of England. Before the mid-1860s law reporting was haphazard. During the 1860s, however, Councils of Law Reporting were set up in the colonies and the systematic production of authorised report series began. Each jurisdiction has at least one authorised series; for example, the Commonwealth Law Reports (CLR) contains decisions of the High Court of Australia and previously also of the Privy Council. In both England and Australia, unauthorised series, which are not produced by Councils of Law Reporting, have continued to be published alongside the authorised reports.These may be specialist reports, such as Australian Criminal Reports (A Crim R), or general reports for a jurisdiction, such as the State Reports of Western Australia (SR(WA)). Where a decision appears in both authorised and unauthorised reports, the court will generally require the authorised citation to be provided.196 The advantage of unauthorised reports was that, since they are not checked by the court, they can be published more quickly.This advantage has diminished, given the wide and prompt availability of decisions published by the relevant court over the internet: see 7.71. However, the unauthorised report has the possible advantage of including a headnote and the navigability of headers and footers. CASES ON THE INTERNET Access to court decisions has been transformed by their increasing availability on the internet. Most law report series are now available on commercial legal platforms such as Lexis Advance or Westlaw AU, and virtually all appeal court decisions are available soon after they are handed down on sites such as AustLII and the court websites: see Chapter 18. Moreover, decisions downloaded from the internet have the benefit of being fully text-searchable. The unreported versions generally do not have headnotes and are not authorised (see 7.68), but they are extremely valuable to legal researchers and may be cited in court. Furthermore, the proliferation of case law databases in other jurisdictions has meant that international precedents are increasingly also used in argument.

196

7.68

7.69

7.70

7.71

See, eg, Supreme Court of Victoria, Practice Note 9 of 2011 — Citation and Provision of Copy Judgments to the Court and Opposing Counsel, 7 November 2011.

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7.72

These developments may not be an unqualified boon. Dyson Heydon, a former Justice of the High Court, has complained extrajudicially that the ease of access to such a wealth of decisions constitutes a ‘challenge to [judicial] probity’.197 ‘The duty of a judge’, Heydon suggests, ‘is to decide the case’, and entailed in this is ‘a duty to say no more than what is necessary’.198 However, aided by the internet, ‘many modern judges’199 go far beyond that: Often no cases are followed, though all are referred to … They do not limit themselves to reported cases, but use computers to obtain access to unreported ones. They use huge footnotes  … The citations often in fact do not demonstrate judicial erudition, being associate-generated, or worse, computer-generated. But however they are generated, they seem more designed to highlight supposed judicial learning than to advance the reasoning in any particular direction relevant to the issues between the parties.200

Further reading • James Crawford and Brian Opeskin, Australian Courts of Law (Oxford • • •

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• • • • •

197 198 199 200

230

University Press, 4th ed, 2004). Rupert Cross and JW Harris, Precedent in English Law (Oxford University Press, 4th ed, reprint, 2004). Robert French, ‘Judicial Activism: The Boundaries of the Judicial Role’ (2010) 10 Judicial Review 1. Matthew Harding and Ian Malkin, ‘The High Court of Australia’s Obiter Dicta and Decision-Making in Lower Courts’ (2012) 34 Sydney Law Review 239. Dyson Heydon, ‘How Far Can Trial Courts and Intermediate Appellate Courts Develop the Law?’ (2009) 9 Oxford University Commonwealth Law Journal 1. Dyson Heydon ‘Threats to Judicial Independence: The Enemy Within’ (2013) 129 Law Quarterly Review 205. Michael Kirby, ‘Judicial Activism: Power Without Responsibility? No, Appropriate Activism Conforming to Duty’ (2006) 30 Melbourne University Law Review 576. Alastair MacAdam and John Pyke, Judicial Reasoning and the Doctrine of Precedent in Australia (LexisNexis Butterworths, 1998). Anthony Mason, ‘Legislative and Judicial Law-Making: Can We Locate an Identifiable Boundary?’ (2003) 24 Adelaide Law Review 16.

Heydon, ‘Judicial Activism’ (n 169) 118. Ibid 121. Ibid 118. Ibid 118–19.

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CHAPTER 7

CASE LAW AND PRECEDENT

• Anthony Mason, ‘Reflections on the High  Court: Its Judges and Judgments’ (2013) 37 Australian Bar Review 102. • Michael McHugh, ‘The Judicial Method’ (1999) 73 Australian Law Journal 37. • William Twining and David Miers, How to Do Things with Rules (Cambridge University Press, 5th ed, 2010).

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To enhance your learning experience, use the student resources available on Lexis® Learning See the Visual Preface at the front of this book on how to register.

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231

CHAPTER

8

Precedent in Australian Courts Precedent plays an important part in eliminating inconsistency, thereby promoting justice and rationality. Likewise, precedent enhances continuity and predictability which are also essential qualities in an acceptable system of law. In order that the citizen may order his affairs and make decisions, the courts must apply uniformly rules and principles that are ascertainable in advance.1 Sir Anthony Mason, ‘The Use and Abuse of Precedent’ (1988) 4 Australian Bar Review 93.

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1

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Introduction

8.1

The High Court of Australia

8.2

− When will the High Court overrule itself?

8.3

− Statutory interpretation

8.7

− Constitutional cases

8.10

Other Australian courts

8.17

− The appellate hierarchy

8.18

− Conflicting precedents

8.24

− Statutory interpretation

8.27

− Discretionary principles

8.29

Court hierarchies in the federal system

8.31

− Cross-vesting between the hierarchies

8.32

− Australian common law

8.35

− State and territory law; national scheme legislation

8.36

− Precedent across different Australian appeal hierarchies

8.39

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− Precedent across different court hierarchies regarding non-uniform legislation − ‘Plainly wrong’ and per incuriam precedents, and judicial comity

8.51

Overview of the doctrine of precedent in Australian courts

8.60

Issues on the margins of the doctrine of precedent

8.61

− Inferior courts

8.62

− Administrative and other tribunals

8.64

− Decisions from other common law jurisdictions

8.72

•

Privy Council

8.76

•

House of Lords

8.82

EXERCISE 9: Precedent in Australian courts

234

8.46

8.90

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CHAPTER 8 PRECEDENT IN AUSTRALIAN COURTS

Introduction The general concepts and principles of the doctrine of precedent or stare decisis were discussed in Chapter 7. Some of the details of the application of the doctrine are left to individual courts to determine as a matter of court practice. Within Australia’s federal court structure, complex issues can arise. This chapter examines the doctrine as it applies in the various Australian courts. In particular the chapter discusses: • the special factors considered by the High Court in determining whether it will overrule itself, and how these vary depending on whether the case concerns common law, legislation or the Australian Constitution; • • • •

• • •

8.1

the circumstances in which other courts in the Australian federal, state and territory hierarchies will overrule themselves; whether and in what circumstances a court in a hierarchy is bound by a decision of another court in the same hierarchy; the precedential value of decisions by courts in another court hierarchy; the precedential value of decisions in another Australian court hierarchy regarding the common law of Australia, Commonwealth legislation or national scheme legislation; the meaning of expressions commonly used in the practice of precedent such as ‘plainly wrong’ and ‘judicial comity’; the practice of precedent in tribunals; and the precedential value of decisions from other common law jurisdictions with particular attention to decisions of the House of Lords and the Privy Council.

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The High Court of Australia As the ultimate appeal court in Australia on matters both of state and of federal law, the High Court is a special case, and is considered separately here. A discussion of the general principles concerning the other courts follow. The position has long been that the Full Court of the High Court is not strictly bound by its own previous decisions. Earlier in its history, the High Court took a more conservative approach. However, this changed when appeals to the Privy Council were abolished. In 1977 Aickin J said: ‘The fact that error can no longer be corrected elsewhere must change our approach to the overruling of our own decisions, at  least to some extent’.2 Given the position of the High Court as the apex court, it is not strictly bound by any precedents. This is not to say that the High Court ignores precedents. This would squander the advantages of following precedent — namely, ‘certainty, equality, efficiency and the appearance of justice’.3 Aickin J did not totally reject the need for conservatism, noting that for the High Court to overrule its previous decision is ‘a serious step, not lightly to be undertaken’.4

2 3 4

8.2

Queensland v The Commonwealth (‘Second Territory Senators Case’) (1977) 139 CLR 585, 630. Telstra Corporation v Treloar (2000) 102 FCR 595, 602 (‘Treloar’). Second Territory Senators Case (n 2) 630.

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The High Court has to be persuaded to depart from its own past decisions. Indeed, it may take some persuasion for the Court to even allow full argument about whether it should overrule one of its own precedents.5 The factors the High Court considers are discussed in the sections following. These vary a little according to the nature of the case. Special considerations may also apply where the case concerns the interpretation of a statute or the Constitution.

8.3

WHEN WILL THE HIGH COURT OVERRULE ITSELF? One of the leading cases is John v Federal Commissioner of Taxation (‘John’).6 The majority observed: There is no doubt that this Court has power to review and depart from its previous decisions. However, such a course is not lightly undertaken. … [I]n Commonwealth v Hospital Contribution Fund, Gibbs  CJ, with whom Stephen  J and Aickin  J agreed, specified four matters which in that case justified departure from earlier decisions. The first was that the earlier decisions did not rest upon a principle carefully worked out in a significant succession of cases. The second was a difference between the reasons of the justices constituting the majority in one of the earlier decisions.The third was that the earlier decisions had achieved no useful result but on the contrary had led to considerable inconvenience. The fourth was that the earlier decisions had not been independently acted on in a manner which militated against reconsideration …7

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8.4

These considerations are often referred to by the High  Court when it is invited to overrule its own precedents. In Esso Australia Resources Ltd v  Federal Commissioner of Taxation (‘Esso Australia Resources Ltd’)8 the Court, by a majority of 4:2, reconsidered the scope of legal professional privilege at common law as laid down in Grant v Downs.9 The effect of this privilege is that lawyer–client communications are confidential: the client may resist making the material available to the other party or the court during litigation. Grant v Downs had supported the ‘sole purpose’ test, according to which, for the privilege to be available, the communication must have been created for the sole purpose of obtaining legal advice. In Esso Australia Resources Ltd the High Court considered whether a ‘dominant purpose’ test should be applied instead. In their joint judgment Gleeson CJ, Gaudron and Gummow JJ, referring to John, noted that the reasoning of Stephen, Mason and Murphy JJ in Grant v Downs had been accepted as law in Australia for more than 20 years.10 However, they also observed: The sole purpose test enunciated by Stephen, Mason and Murphy JJ did not rest upon a principle that had been worked out in a succession of cases. On the contrary, it overturned what was, until then, accepted principle. … The reasons given in the joint judgment for rejecting the pre-existing test do not, as a matter of logic or of policy, require a preference for the sole purpose test over the dominant purpose test, and nowhere do those reasons address 5 6 7

8 9 10

236

Evda Nominees Pty Ltd v Victoria (1984) 154 CLR 311, 316. (1989) 166 CLR 417 (‘John’). Ibid 438–9, citing Commonwealth v  Hospital Contribution Fund (1982) 150 CLR 49 (other citations omitted). (1999) 201 CLR 49 (‘Esso Australia Resources Ltd’). (1976) 135 CLR 674. Esso Australia Resources Ltd (n 8) 71–2 (Gleeson CJ, Gaudron and Gummow JJ).

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CHAPTER 8 PRECEDENT IN AUSTRALIAN COURTS

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a possible choice between those two tests. The House of Lords in England, and the Court of Appeal in New Zealand, with the benefit of the reasoning in Grant v Downs available to them, subsequently preferred the dominant purpose test, and the law in Australia is now out of line with other common law jurisdictions. The Parliaments of the Commonwealth and New South Wales have adopted the dominant purpose test for their Evidence Acts. All those circumstances, in combination, lead to the conclusion that this Court should now reconsider the matter.11

Another illustration is Brodie v Singleton Shire Council,12 in which the High Court, by a majority of 4:3, overturned the immunity of highway authorities from liability for injuries arising from nonfeasance in their care and management of highways: see 7.61. In so doing it overruled the High  Court’s earlier decisions Buckle v  Bayswater Road Board13 and Gorringe v  Transport Commission (Tas).14 Referring to John, the majority questioned whether the immunity had been carefully worked out in a significant succession of cases,15 and noted differences in the reasoning of the majority in Gorringe.16 The decisive consideration, however, was that the immunity did not work effectively. It led to results that were ‘dictated by the caprices of unprincipled exceptions and qualifications’.17 The majority held it was necessary to abolish the immunity and deal with the liability of highway authorities under the general law of negligence, in order to ‘[place] the common law of Australia on a principled basis’.18 In Imbree v  McNeilly (‘Imbree’)19 the High  Court reconsidered its earlier decision in Cook v  Cook,20 which held that the standard of care owed by a learner driver to an instructor was lower than that of other drivers. In Imbree, Gummow, Hayne and Kiefel  JJ (Gleeson  CJ and Crennan  J agreeing) relied on the four criteria in John to overrule Cook v Cook and added a fifth consideration: whether the change ‘is necessary to maintain a better connection with more fundamental doctrines and principles’.21 Under Imbree, learner drivers would be held to the ordinary objective standard of reasonable care, the same standard as owed by other drivers. Kirby  J, agreeing with the majority, noted that the compulsory third-party motor vehicle insurance weakens the principle of ‘individual culpability’22 which provided the foundation for the more subjective standard of care of Cook v Cook. More pragmatically, Kirby J also noted that these schemes make the imposition of a higher objective standard on learner drivers workable. Without compulsory insurance, ‘it is extremely unlikely … that the courts would impose on them liability … sounding in millions of dollars. Such a course would be unrealistic and futile, characteristics the courts usually endeavour to avoid’.23

11 12 13 14 15 16 17 18 19 20 21 22 23

8.5

8.6

Ibid. (2001) 206 CLR 512 (‘Brodie’). (1936) 57 CLR 259. (1950) 80 CLR 357. Brodie (n 12) 562. Ibid 562–3. Ibid 544. Ibid 542. (2008) 236 CLR 510 (‘Imbree’). (1986) 162 CLR 376 (‘Cook v Cook’). Imbree (n 19) 533 [72] (Gummow, Hayne and Kiefel JJ). See also 7.61. Ibid 544 [112]. Ibid 543 [111].

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8.7

STATUTORY INTERPRETATION In John the High Court was invited to overrule Curran v Federal Commissioner of Taxation (‘Curran’),24 a case which involved the application of s 51(1) of the Income Tax Assessment Act 1936 (Cth). The first two of the four considerations from Commonwealth v Hospital Contribution Fund (see 8.3) supported this step. The majority in John noted that Curran ‘does not stand in a line of cases giving rise to recognized principle’25 and also that ‘there was a difference in the reasoning of Barwick CJ and Menzies J on the one hand, and Gibbs J on the other’.26 The majority considered the third consideration did not play a part in John but that the fourth consideration provided ‘powerful reasons for following Curran in the present case’.27 Schemes based on Curran had been widely relied on by taxpayers to reduce income tax. The majority in John noted that ‘there are special considerations applicable to the doctrine of stare decisis in cases of statutory construction’,28 stating: The fundamental responsibility of a court when it interprets a statute is to give effect to the legislative intention as it is expressed in the statute. If an appellate court, particularly an ultimate appellate court, is convinced that a previous interpretation is plainly erroneous then it cannot allow previous error to stand in the way of declaring the true intent of the statute … It is no part of a court’s function to perpetuate error and to insist on an interpretation which, it is convinced, does not give effect to the legislative intention.29

8.8

The majority added that ‘[t]he same considerations, in our view, apply with equal force if the issue is identified as one of the application of a statutory provision, rather than one of statutory construction in the strict sense’.30 The Court concluded that Curran should be overruled, ‘notwithstanding that the appellant taxpayer … relied upon its authority as the basis for ordering their affairs’.31 In McNamara v  Consumer, Trader and Tenancy Tribunal32 the High  Court had to consider whether to follow or depart from its reasoning in Wynyard Investments Pty Ltd v  Commissioner for Railways (NSW) (‘Wynyard Investments’).33 Should the current respondent enjoy Crown immunity like the respondent in the earlier case had? The majority (McHugh, Gummow and Heydon JJ; Gleeson CJ and Hayne J agreeing) held:

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It should be noted that what was at stake in John … was the application of s 51, the same section of the Income Tax Assessment Act 1936 (Cth), to facts ‘relevantly indistinguishable’ from those of Curran … The relationship between this case and Wynyard Investments is not of that character.What was said in John respecting the criteria for the overruling of previous decisions is not immediately applicable. However, that does not mean that the court is now at liberty to ignore the reasoning of the majority in Wynyard Investments and, as Gibbs J once put it [in Queensland v Commonwealth

24 25 26 27 28 29 30 31 32 33

238

(1974) 131 CLR 409. John (n 6) 439. Ibid. Ibid. Ibid. Ibid 439–40, quoting from Babaniaris v Lutony Fashions Pty Ltd (1987) 163 CLR 1, 13 (‘Babaniaris’). John (n 6) 440. Ibid. (2005) 221 CLR 646 (‘McNamara’). (1955) 93 CLR 376.

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CHAPTER 8 PRECEDENT IN AUSTRALIAN COURTS

(‘Second Territory Senators Case’)34], ‘to arrive at [its] own judgment as though the pages of the law reports were blank’. Nevertheless, it remains the fundamental (and constitutional) responsibility of the court not to allow the perpetuation of previous error in statutory construction.35

Ultimately, the majority did not follow the reasoning in Wynyard Investments. Callinan J dissented, largely on the basis that Wynyard Investments had stood for 50 years and assumptions about Crown immunity under 80 other pieces of New South Wales legislation could be upset were Wynyard Investments now departed from.36 As observed at  a number of points in this text, legislation has proliferated over the last century to the point that few legal issues remain untouched. Justice Kirby has observed extra-judicially that such coverage reduces the importance of precedent in judicial reasoning:

8.9

The new emphasis by the High Court of Australia upon the importance of purpose and context in ascertaining legislative meaning means that the construction of a particular word or phrase, used in a new context, will need to be reconsidered when presented in a later case. It follows that the law of precedent, as it applies to legislative texts, is bound to have less significance than in the statement of the broad principles of the common law. Thus, the growth of the amount and importance of legislation and subordinate legislation as sources of law results in a correlative reduction in the significance of the doctrine of precedent for the ascertainment of the law. In giving meaning to a legislative text the necessary starting point, in every case, is the text itself — not what judges may have said on other texts or on the principles of the common law that preceded the adoption of the text.37

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CONSTITUTIONAL CASES The Australian Constitution originated as a piece of Imperial legislation. However, as the foundational document for the nation it is a very special piece of legislation. In New South Wales v Commonwealth (‘Work Choices Case’) Callinan J observed:

8.10

Judges of this Court have repeatedly stated that constitutional doctrine stands on a different basis to other holdings, so far as the requirements of the law of precedent are concerned. In part, this is because the Constitution is itself the source of legal authority and thus is placed apart.38

The High Court has acknowledged that, in relation to overruling its own decisions, ‘considerations are present in constitutional cases, where Parliament is not in a position to change the law, which do not arise in other cases’.39 ‘The approach to reconsideration of constitutional cases must take into account that the only other way in which the effect of a particular interpretation of the Constitution can be altered, if at  all, is by

34 35 36 37

38 39

8.11

Second Territory Senators Case (n 2). McNamara (n 32) 661 [41]–[42], quoting from Gibbs CJ in Second Territory Senators Case (n 2) 599. McNamara (n 32) 677 [94] (Callinan J). Michael Kirby, ‘Precedent Law, Practice and Trends in Australia’ (2007) 28 Australian Bar Review 243 (citations omitted). (2006) 229 CLR 1, 311 [756] (‘Work Choices Case’). Perpetual Executors and Trustees Association of Australia Ltd v Federal Commissioner of Taxation (1949) 77 CLR 493, 496.

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constitutional amendment pursuant to s 128 of the Constitution.’40 However, different views have been taken as to the implications of this consideration. In Re Wakim; Ex parte McNally (‘Wakim’),41 McHugh J said: the judiciary has no power to amend or modernise the Constitution to give effect to what the judges think is in the public interest. The function of the judiciary, including the function of this Court, is to give effect to the intention of the makers of the Constitution as evinced by the terms in which they expressed that intention. That necessarily means that decisions, taken almost a century ago by people long dead, bind the people of Australia today even in cases where most people agree that those decisions are out of touch with the present needs of Australian society.42

By contrast Kirby J said in Re Governor, Goulburn Correctional Centre; Ex parte Eastman: Each generation of Australians reads the Constitution in the light of the meaning of its words and the requirements of its structure as understood from time to time. This is inherent in the giving of meaning to a constitution as an instrument of government. It is why a search for the subjective intentions of the framers may not fetter the present and the future to the distant past.43

8.12

To a degree, the distinction between the positions of McHugh J and Kirby J is that between ‘originalist’ and ‘living tree’ approaches to constitutional interpretation.44 The originalist position may be more difficult to sustain. In the Work Choices Case, Callinan J referred to the ‘recognition (affirmed by history) that different generations read the Constitution in different ways according to the perceptions of different times observations’.45 ‘If the Constitution requires a result in a relevant contested matter, no rule of practice of the Court can impede that outcome.’46 In Alqudsi v The Queen French CJ indicated that it is not always necessary to make a finding that a prior decision was ‘erroneous’ in order to justify overruling it. … The taxonomy of ‘correctness’ and ‘error’ is not always required to justify an overruling. An overruling may reflect an evolved understanding of the Constitution. Overarching all these considerations is a conservative cautionary principle against overruling earlier decisions without very good cause.47

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In discussing the practice of the High  Court in overruling its past constitutional decisions, Sir Leslie Zines noted in 2008: While many judges have had much to say on the subject, no generally agreed principles, approach or even factors for consideration have emerged. Whether judges are otherwise seen as conservative, liberal or radical, the general impression is that they do not allow past cases to stand in the way of what they consider to be the correct or desirable decision. That is not, of course, to deny that, generally speaking, counsel argue and judges decide in 40 41 42 43 44

45 46

47

240

Alqudsi v The Queen (2016) 258 CLR 203 [66] (French CJ) (‘Alqudsi’). (1999) 198 CLR 511 (‘Wakim’). Ibid 549. (1999) 200 CLR 322, 355, citing Victoria v The Commonwealth (1971) 122 CLR 353, 396 (Windeyer J). See, eg, Michael Kirby, ‘Constitutional Interpretation and Original Intent: A Form of Ancestor Worship?’ (2000) 24 Melbourne University Law Review  1; J  D  Heydon, ‘Theories of Constitutional Interpretation: A Taxonomy’ [2007] (Winter) NSW Bar News 12. Work Choices Case (n 38) 311 [756] (Callinan J). Permanent Trustee Australia Ltd v  Commissioner of State Revenue (Vic) (2004) 220 CLR 388, 452 [179] (Kirby J), quoted in Work Choices Case (n 38) 311 [756] (Callinan J). Alqudsi (n 40) [67].

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CHAPTER 8 PRECEDENT IN AUSTRALIAN COURTS

accordance with existing principles and doctrine without referring to the fact that they are doing so. When, however, a constitutional case or principle is challenged there seems to be no agreed framework or theory, even of a general kind, for determining when it is unacceptable to ignore or overrule a precedent.48

The potential force of the principle of stare decisis in constitutional cases is illustrated by the High  Court’s consideration of whether the territories may be represented by senators. In Western Australia v  Commonwealth49 the High  Court, by a majority of 4:3 (McTiernan, Mason, Jacobs and Murphy  JJ; Barwick  CJ, Gibbs and Stephen  JJ dissenting) held that the legislation providing for representation of the Australian Capital Territory and the Northern Territory in the Senate was constitutionally valid. Shortly afterwards, when McTiernan  J had retired and been replaced by Aickin  J, a further comprehensive challenge to the territories’ representation legislation was made in the Second Territory Senators Case.50 Once again, this time by a majority of 5:2 (Gibbs, Stephen, Mason, Jacobs and Murphy JJ; Barwick CJ and Aickin J dissenting), the validity of the legislation was upheld. Mason, Jacobs and Murphy JJ, in separate judgments, adhered to the conclusion which they had reached in the earlier case. Gibbs and Stephen JJ in separate judgments maintained their view from the earlier case and considered the legislation invalid, but upheld it as a matter of stare decisis. Barwick CJ and Aickin J separately considered the earlier case wrong and would have overruled it. A reason for refusing to overrule Western Australia v Commonwealth was that it had been acted on, and senators for the territories had been elected under the territories’ representation legislation. Gibbs J commented:

8.13

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To reverse the decision now would be to defeat the expectations of the people of the Territories that they would be represented, as many of them believed that they ought to be represented, by senators entitled to vote.51

In Wurridjal v  Commonwealth (‘Wurridjal’),52 the High  Court was asked to reconsider one of its earlier decisions, Teori Tau v Commonwealth (‘Teori Tau’),53 in which it had unanimously held that s  51(xxxi) of the Constitution, which requires that the Commonwealth acquire property only on just terms, did not govern the operation of s 122 of the Constitution, which allows the Commonwealth to make laws with respect to the Australian territories. French CJ indicated that a ‘cautionary principle’ should be followed in overruling past decisions:

8.14

It is apparent from the authorities the question whether the Court will overrule one of its earlier decisions is not to be answered by the application of a well defined rule. Nor is it simply to be answered by the application of such visceral criteria as ‘manifestly’ or ‘clearly’ wrong. Rather it requires an evaluation of factors which may weigh for and against overruling. That evaluation will be informed by a strongly conservative cautionary principle, adopted in the interests of continuity and consistency in the law, that such a course should not be lightly taken.54 48 49 50 51 52 53 54

Leslie Zines, The High Court and the Constitution (Federation Press, 5th ed, 2008) xv. (1975) 134 CLR 201. Second Territory Senators Case (n 2). Ibid 600 (Gibbs J). (2009) 237 CLR 309 (‘Wurridjal’). (1969) 119 CLR 564. Wurridjal (n 52) 352 [70] (French CJ).

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In developing this principle, French CJ considered the four factors identified in John: see  8.3. He also had reference to a similar list advanced by Aickin  J in the Second Territory Senators Case: 1. Whether the error of the prior decision had been made manifest by later cases which had not directly overruled it. 2. Whether the prior decision went with a ‘definite stream of authority’ and did not ‘conflict with well established principle’. 3. Whether the prior decision could be confined as an authority to the precise question which it decided or whether its consequences would extend beyond that question. 4. Whether the prior decision was isolated as receiving no support from other decisions and forming no part of a stream of authority. 5. Whether the prior decision concerned a fundamental provision of the Constitution, or involved a question of such ‘vital constitutional importance’ that its consequences were likely to be far reaching although not immediately foreseeable in detail.55

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8.15

A majority in Wurridjal held that Teori Tau should be overruled.56 French CJ joined the majority despite the ‘cautionary principle’. He indicated it was at odds with other High Court authority and in isolation from prior and subsequent jurisprudence. The proposition for which Teori Tau was authority had not entered the mainstream of constitutional jurisprudence, nor was there any evidence that the case had been acted upon in a way that militated against its reconsideration. Finally, French  CJ noted the potential absurdities and inconveniences that could result from the decision.57 Gummow and Hayne JJ (Kirby J concurring) observed: ‘To preserve the authority of Teori Tau would be to maintain what was an error in basic constitutional principle and to preserve what subsequent events have rendered an anomaly. It should be overruled.’58 In Shaw v  Minister for Immigration and Multicultural Affairs (‘Shaw’)59 there was broad agreement that the principle of stare decisis had force in constitutional cases, but disagreement as to its implications. In that case, the High Court was faced with inconsistent High Court precedents. Shaw, the applicant, was appealing against the Commonwealth’s efforts to deport him as an alien. He argued that, as a British subject arriving in Australia in 1974, he was not an alien, and therefore the Commonwealth’s actions were not within the constitutional ‘aliens power’.60 He relied on Re Patterson; Ex parte Taylor (‘Patterson’)61 in which the High Court had overturned the Commonwealth’s order to deport a British subject who had arrived in 1966. In Shaw the Minister argued that the approach in the earlier case of Nolan v  Minister for Immigration and Ethnic Affairs (‘Nolan’)62 should be followed in preference to that of Patterson. In Nolan the High Court suggested that persons who had been neither born in Australia nor naturalised were aliens if they arrived in Australia after the commencement of the Australian Citizenship Act  1948 (Cth) on

55 56

57 58 59 60 61 62

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Ibid [148] citing Second Territory Senators Case (n 2) 630. French CJ, Gummow, Hayne and Kirby JJ — Heydon, Crennan and Kiefel JJ found it unnecessary to consider the issue. Wurridjal (n 52) 358–9 [84]–[85]. Ibid 388 [189] (Gummow and Hayne JJ). (2003) 218 CLR 28 (‘Shaw’). Australian Constitution s 51(xix). (2001) 207 CLR 391. (1988) 165 CLR 178.

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26 January 1949. The Court accordingly upheld the deportation of a British subject who had arrived in 1967. In Shaw the majority (Gleeson CJ, Gummow and Hayne JJ; Heydon J agreeing) considered that while Patterson was more recent than Nolan, Patterson’s authority was weakened by the lack of any ‘single strand of reasoning in the majority judgments’:63 Any consideration of the significance to be attached to Patterson must involve the determination whether Patterson was effective to take the first step of overruling the earlier decision in Nolan … In our view, the court should be taken as having departed from a previous decision, particularly one involving the interpretation of the Constitution, only where that which purportedly has been overthrown has been replaced by some fresh doctrine, the elements of which may readily be discerned by the other courts in the Australian hierarchy. On that approach … the decision in Patterson plainly fails to pass muster.64

The dissentients accorded Patterson greater precedential value.65 Ha v New South Wales (‘Ha’)66 illustrates the sometimes far-reaching consequences of the High Court departing from the principle of stare decisis in a constitutional case. In Ha a majority of the High Court overruled Philip Morris Ltd v Commissioner of Business Franchises67 and held that a state-imposed tax on tobacco was an excise in contravention of s 90 of the Constitution. Only the Commonwealth can impose this kind of tax. The decision had direct implications for very lucrative state taxes on alcohol and possibly other areas as well, as noted in Blackshield & Williams Australian Constitutional Law and Theory:

8.16

The immediate result [of Ha] for the States was catastrophic. Not only was the collection of franchise fees brought to an end, but billions of dollars in franchise revenue that had been collected unlawfully was liable to be repaid. The loss in State revenue was estimated to be around $5 billion a year.68

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In the event, the catastrophe was, in large part, averted by the Commonwealth intervening with an ‘urgent rescue package’.69 Essentially, the Commonwealth imposed taxes corresponding to the disallowed state taxes, and passed on the proceeds to the states. In time, this arrangement was folded into the new Commonwealth goods and services tax (GST), the proceeds of which also passed to the states.

63 64 65 66 67 68

69

Shaw (n 59) 44 [35]. Ibid 44 [36]. Ibid 47–8 (McHugh J), 55–6 (Kirby J), 81–2 (Callinan J). (1997) 189 CLR 465. (1989) 167 CLR 399. George Williams, Sean Brennan and Andrew Lynch, Blackshield & Williams Australian Constitutional Law and Theory (Federation Press, 6th ed, 2014) 1049–50. Ibid.

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243

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LAYING DOWN THE LAW

Other Australian courts 8.17

8.18

244

As discussed in Chapter  7, the doctrine of precedent is closely related to the court hierarchy.The existence of nine interrelated court hierarchies — one federal, six state and two territory — within Australia’s federal system gives rise to a number of complexities. These are discussed below at 8.31ff. We begin by discussing the issues that arise within a single court hierarchy. THE APPELLATE HIERARCHY It is because an appeal court has the power to overturn decisions of the lower court that the lower court should apply the principles laid down by the appeal court. In order to determine whether the present court is bound by a previous decision, it must be asked whether the earlier court has appellate jurisdiction over the present court. This

Creyke, Robin, et al. Laying down the Law, LexisNexis Butterworths, 2020. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/monash/detail.action?docID=6413182. Created from monash on 2021-02-06 11:29:57.

requires knowledge of the hierarchical relationship between the earlier and later courts. For example, New South Wales has its hierarchy of courts, running from the Local Court up to the Court of Appeal and the Court of Criminal Appeal; South  Australia has its own corresponding hierarchy running from the Magistrates Court up to the Full Court of the Supreme Court; and the other jurisdictions have similar court hierarchies. A fairly detailed discussion of court hierarchies is provided in Essential Legal Toolkit A. The hierarchical relationship between courts is not always as straightforward as it may appear, and it may be necessary to consult relevant legislation. For example, it is clear that the rationes of appeal decisions of the High Court are binding on all other courts.70 However, a decision of a single justice of the High Court is not binding because a single justice of the High Court does not have appellate jurisdiction.71 Similarly, the District Court of New South Wales in its civil jurisdiction is not strictly bound by decisions of single judges of the Supreme Court because there is no avenue of appeal from the former to the latter.72 This leaves the question whether courts should be bound by their own prior decisions. The appellate hierarchy rationale of the doctrine of precedent suggests that the answer is no. However, it is not uniformly accepted that courts are free to depart from their own decisions.73 A more conservative approach would be to prioritise certainty and predictability in the law, and to leave any changes in the law to courts higher in the hierarchy — if any, and if they have this power — or to the legislature. At times, courts have adopted such conservatism. However, the current trend favours greater flexibility. The High Court in Nguyen v Nguyen (‘Nguyen’)74 was considering an appeal from the Full Court of the Supreme Court of Queensland which had followed a precedent, its own earlier decision, despite being ‘unanimously of the view that [it] was wrongly decided … following what was said to be the prevailing practice in Queensland whereby the Full Court regards itself as bound by its own previous decisions’.75 The High Court suggested that whether an intermediate appellate court is free to depart from its own previous decisions ‘must be a matter of practice for the court to determine for itself ’.76 However, the High Court made some fairly strong statements about the approach courts should take.77 The High Court discouraged courts from being too conservative, particularly the intermediate appeal courts. Since special leave is required to appeal to the High Court, the intermediate appeal courts serve as ‘courts of last resort for all practical purposes’.78

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The same respect may be due to decisions on special leave applications for which the High Court has provided substantive reasons, although this has not been definitively established: Palmer v Parbery (in his capacity as liquidator of Queensland Nickel Pty Ltd (in liq)) (2016) 153 ALD 475. AZAFX v Federal Circuit Court of Australia (2016) 244 FCR 401 [55]–[56]; Judiciary Act 1903 (Cth) ss 16, 20, 21. Keramaniakis v Wagstaff [2005] NSWDC 14 [58]. Eg, prior to 1966 the House of Lords considered itself bound strictly by its own precedents: London Tramways Co v London County Council [1898] AC 375.The change was brought about by the House of Lords, Practice Statement (Judicial Precedent) [1966] 1 WLR 1234. (1990) 169 CLR 245 (‘Nguyen’). Ibid 268. Ibid. Ibid (Dawson, Toohey and McHugh JJ, Brennan J and Deane J agreeing in separate judgments). Ibid 269.

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previous decisions. In cases where an appeal is not available or is not taken to [the High] Court, rigid adherence to precedent is likely on occasion to perpetuate error without, as experience has shown, significantly increasing the corresponding advantage of certainty.79

At the same time, the High Court discouraged courts from being too liberal in their treatment of precedents. Where a court of appeal holds itself free to depart from an earlier decision it should do so cautiously and only when compelled to the conclusion that the earlier decision is wrong. The occasions upon which the departure from previous authority is warranted are infrequent and exceptional and pose no real threat to the doctrine of precedent and the predictability of the law.80

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This now appears to be the prevailing approach across Australian intermediate appellate courts. In Transurban City Link Ltd v Allan,81 the Full Federal Court, referring to Nguyen, indicated it had the power to depart from its own authorities, but added that ‘[i]t would be wrong to do this merely because the matter was one on which minds might differ’.82 Having regard to ‘the principled, consistent and predictable development of the law’83 courts will tend to follow their own precedents unless they are viewed as ‘clearly or plainly wrong’.84 In the course of its reasons in Nguyen, the High Court pointed to the practice in the Victorian Court of Appeal of convening a bench of five judges to review a decision of three judges.85 A panel (full bench) of five judges is usually convened when the issue is not only important but is also the subject of conflicting Full Court decisions.86 Other state appellate courts follow this practice,87 as does the Federal Court.88 In R v Morrison,89 the Queensland Court of Appeal sat as a bench of five judges to consider whether it should depart from its previous approach regarding the standard of proof to be applied by a court to factual issues at  the sentencing stage following a criminal conviction. Citing Nguyen, Fitzgerald  P indicated that ‘[t]he court is free to overrule … the earlier decisions of the Court of Criminal Appeal if to do otherwise would perpetuate error’.90 A majority of 3:2 held that the ‘the ordinary criminal standard, namely, beyond reasonable doubt’91 should be applied. This overruled the court’s earlier approach — which applied a weaker standard to certain matters on sentencing — and brought the state into line with the sentencing practice of other states. 79

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Ibid 269–70. Ibid 268. (1999) 95 FCR 553 (‘Transurban’). Ibid 560. Department of Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469, 475. Ibid. Nguyen (n 74) 269. See, eg, Australian Steel Company (Operations) Pty Ltd v  Lewis (2000) 109 FCR 33, where conflicting Full Court decisions existed which affected the day-to-day operation of the bankruptcy law. Clutha Developments Pty Ltd v Barry (1989) 18 NSWLR 86; Harrison v Melhem (2008) 72 NSWLR 380; R v Ellis (2003) 58 NSWLR 700; Calder v Boyne Smelters Ltd [1991] 1 Qd R 325; Re Pooraka Holdings Pty Ltd (1989) 52 SASR 1; Gardenal-Williams v The Queen [1989] Tas R 62; Pitcher v H B Brady & Co Ltd [2005] WASCA 159. Australian Steel Company (Operations) Pty Ltd v Lewis (2000) 109 FCR 33. [1999] 1 Qd R 397. Ibid 399. Ibid (Fitzgerald P). 5 PB 6 PB 0 LL ,

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Whether the doctrine of precedent as applied to full courts or courts of appeal differs when five judges are convened, as Weinberg  JA has observed, ‘has not … been finally determined’.92 However,Weinberg JA also said that ‘[i]t has generally been assumed that a court of five has greater freedom to depart from earlier appellate decisions than a court of three’.93 In R v BDX94 Vincent and Weinberg JJA suggested, that if there was a difference in approach, it was ‘marginal’,95 while Nettle and Redlich JJA did not ‘necessarily agree’96 with that assessment, and Ashley JA said that ‘there should be a different and lesser level of inhibition against departing from an earlier decision’ when a full bench of five judges was convened.97 The apparent purpose of the larger bench is to bring deeper consideration where a court is considering difficult matters of principle involving conflicting authorities or the possibility of departing from previous principle. If there is agreement between all five judges that there is wisdom in developing the law in a particular direction, this may give them greater confidence that the move is correct, notwithstanding the benefits of stare decisis. However, if the court is split 3:2 regarding the development, this may give the majority pause for thought.

CONFLICTING PRECEDENTS Occasionally courts are presented with conflicting precedents. Some conflicts will be easy 8.24 to resolve. For example, it may be that the earlier precedent has been clearly overruled by the later precedent from a court at the same or a higher level. Or it may appear that the earlier precedent should be followed because the later precedent was from a lower court which erroneously failed to follow the earlier precedent from a higher court. Where the conflicting precedents are not binding because, for example, they are from courts at the same level as the present court, then the present court arguably ‘has the option of choosing which of the conflicting judgments [it] prefers’.98 However, more difficult situations may arise. In WorkCover Corporation v Jakas, Lander J, with whom Duggan J agreed, observed:

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Sometimes inferior courts are confronted with a decision of a superior court (the first court of appeal) and a later decision of a second court of appeal that is superior to the first court of appeal in the hierarchical system. If the decision of the second court of appeal overrules the earlier decision of the first court of appeal then the inferior court must follow the second court of appeal decision and it can do so without waiting upon any further decision of the first court of appeal. In some other cases a consideration of the decision of the second court of appeal will show that the decision of the first court of appeal has been overruled without express mention being made. However, an inferior court or tribunal should be very cautious before deciding that a decision of a court of appeal has been overruled by a second court of appeal where the second court of appeal decision depends upon the construction of legislation materially different from the legislation the subject of decision of the first court of appeal … If there is any doubt then the matter must be left to one or other of the courts of appeal.99 92 93 94 95 96 97 98 99

R v Roussety (2008) 24 VR 253 [75]. Ibid. (2009) 24 VR 288. Ibid [152] (Vincent and Weinberg JJA). Ibid [202] (Nettle and Redlich JJA). Ibid [210] (Ashley JA). NAAT v Minister for Immigration, Multicultural and Indigenous Affairs (2002) 170 FLR 477, 484. (2003) 86 SASR 20, 30–2.

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In Einfeld v  HIH Casualty and General Insurance Ltd (‘Einfeld’)100 Rolfe  J of the New  South  Wales Supreme Court was considering a dispute under the Insurance Contracts Act 1984 (Cth). He was faced with the New South Wales Court of Appeal’s decision in FAI General Insurance Company Limited v  Perry (‘Perry’),101 ‘which is indistinguishable on the facts’,102 together with the High  Court’s decision in Antico v  Heath Fielding Australia Pty Limited (‘Antico’),103 which disapproved the reasoning in Perry, preferring instead an earlier decision of the Court of Appeal, East End Real Estate Pty Limited v CE Heath Casualty & General Insurance Limited.104 Complicating matters, in a subsequent decision, Greentree v  FAI General Insurance Co Limited (‘Greentree’),105 the Court of Appeal indicated that while some of the reasoning in Perry had been overruled in Antico, the decision had not been.106 However, other intermediate appeal courts in FAI General Insurance Company Ltd v Australian Hospital Care Pty Ltd (‘Australian Hospital Care’)107 and HIH Casualty and General Insurance Australia Limited v Dellavedova (‘Dellavedova’)108 declined to follow Perry. Rolfe  J acknowledged that ‘judges at  first instance [are] not free to draw subtle distinctions in decisions of, or assume that certain matters had been overlooked by, the Court of Appeal, or otherwise seek to distinguish its decisions on narrow grounds or fine points’.109 However, having given the matter very close consideration, he took the view that the Court of Appeal’s suggestion in Greentree that Antico had not overruled Perry was obiter. He concluded: ‘I consider that my duty is to conclude that Perry has been overruled and to follow the decisions in Dellovedova and Australian Hospital Care.’110 Another situation where a trial court may avoid following a decision of an appeal court in the same hierarchy was discussed by Campbell J, also of the New South Wales Supreme Court, in Mid-City Skin Cancer and Laser Centre Pty Ltd v Zahedi-Anarak.111 While acknowledging ‘the obligation of a judge of first instance loyally to follow decisions of any court which is above the first instance judge in the appellate hierarchy, even if the judge of first instance thinks that decision is wrong’,112 Campbell J declined to follow a decision of the Court of Appeal in Moorgate Tobacco Co Ltd v Philip Morris Ltd.113 His reasoning was as follows:

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(1999) 152 FLR 211 (‘Einfeld’). (1993) 30 NSWLR 89. Einfeld (n 100) 217 [22]. (1997) 188 CLR 652, 666, 668–9. (1991) 25 NSWLR 400. (1998) 44 NSWLR 706. Ibid 721. (1999) 153 FLR 448. (1999) 10 ANZ Insurance Cases ¶61-431. Einfeld (n 100) 218 [24]. Ibid 226 [45]. (2006) 67 NSWLR 569 (‘Mid-City Skin Cancer’). Ibid 629 (Campbell J). (1982) 64 FLR 387. 5 PB 6 PB 0 LL ,

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two grounds relied on by the Court of Appeal are not binding on judges below the Court of Appeal in the appellate hierarchy. 114

Campbell J acknowledged that when the High  Court affirms a decision from an inferior court on different grounds, the Court may simply have found another reason to do so rather than disagreeing with the lower court’s reasons: Even so, the fact that the High  Court has chosen a different route to the solution of the case leaves the reasons of the court below in a kind of limbo, where they have been considered by the High Court (as must necessarily happen in the course of the judges of the High Court reading the judgment of the court below, even if the reasons for judgment of the court below are not themselves explicitly considered in the reasons for judgment delivered by members of the High  Court), and not adopted. Even if the reasons of the court below have been left in that kind of limbo, rather than positively disapproved by the High Court, one can still say that the decision of the court below has been affirmed, but not its judgment.115

Approving this analysis in Wardle v Agricultural and Rural Finance Pty Ltd, the Court of Appeal observed that ‘[i]t is the reasons of the High Court, not the reasons of the judges in the NSW Full Court, which are the binding precedent’.116 STATUTORY INTERPRETATION In Telstra Corporation Ltd v Treloar117 (‘Treloar’) a majority of the Full Court of the Federal 8.27 Court suggested that intermediate appellate courts should exercise greater caution in overturning their own precedents on points of statutory interpretation.

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[S]tatutory language is often ambiguous. Courts can struggle to determine the legislative intent. It is often impossible to discover any legislative intent. In many instances the generality of the statutory language is deliberate and allows the courts to develop a body of law to fill the gaps. This may lead to disagreement among judges about what the statute means. It would be sound policy that once that intent has been discerned by an appellate court then that should be the end of the matter. The view which we prefer is that unless an error in construction is patent, or has produced unintended and perhaps irrational consequences not foreseen by the court that created the precedent, the first decision should stand. In other areas of the law a precedent may be reconsidered if its underlying reasoning is outdated or is inconsistent with other legal developments. Perhaps, with some modification, in some instances these factors could also be applied to cases concerned with the construction of statutes. Accordingly, we venture to suggest it would be on a rare occasion that an intermediate appellate court … will allow an issue concerning the construction of a statute, past and closed and especially a repealed statute, to be thrown open, producing as it clearly will, uncertainty, disruption to the conduct of affairs, a sense of grievance in those who may consequently receive treatment less favourable than that received by others under the same statute and additional cost and expense.118

114 115 116 117 118

Mid-City Skin Cancer (n 111) 616. Ibid 630. [2012] NSWCA 107 [209]. Treloar (n 3). Ibid [27]–[28].

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The majority held that ‘it is arguable’ that the earlier decision misinterpreted the statute, and ‘in the absence of authority’ they ‘may well have’ adopted a different interpretation.119 However, the majority also held: Where the competing views have been exposed and analysed in such a case, and a particular construction is reached and, as in this case, is confirmed by a later decision, there will rarely be occasion to inquire into the matter again. In this case, no clear or patent error has been demonstrated. The decisions were not per incuriam. It has not been demonstrated that the construction preferred by the earlier courts has produced unintended consequences such as to throw real doubt on the decision. No court in another jurisdiction has arrived at an opposite result on similar legislation.To the extent that it is suggested that the construction preferred by the earlier courts does not reflect the intention of the legislature, it may be noted that Parliament could have, but has not, moved to amend the legislation. In other words, no basis has been demonstrated for the reconsideration of the earlier decisions.120

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As Gyles J noted, dissenting, this approach is inconsistent with the position taken by the High Court,121 which applies the doctrine of precedent less strictly where legislation is concerned. Given the importance of implementing Parliament’s purpose in passing legislation, the High Court has indicated precedent carries less weight: see 8.9. Notwithstanding the view expressed in Treloar, a majority of the Full Court of the Federal Court in Sok v Minister for Immigration and Multicultural and Indigenous Affairs122 (‘Sok’) overturned its previous interpretation of the term ‘domestic violence’ in reg 1.23(2) (b) of the Migration Regulations 1994 (Cth).The appellant had applied for a special visa on the grounds that he had suffered domestic violence at the hands of his wife.The issue was whether this term required (actual or threatened) physical violence, or whether the term also encompassed psychological and emotional harm. The Full Court had previously adopted the narrower interpretation in obiter dicta in Cakmak v Minister for Immigration and Multicultural and Indigenous Affairs123 (‘Cakmak’). In Sok the majority acknowledged that it should only depart from Cakmak if ‘ “compelled to the conclusion that the earlier decision is wrong”, “convinced that that is wrong”, and only after exercising “great care” and if persuaded that the earlier decision was “clearly erroneous” ’.124 The majority in Sok held that Cakmak was clearly wrong and adopted the broader interpretation of domestic violence. Hely J, dissenting, held:

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I am not satisfied that the meaning which the Full Court ascribed to ‘violence’ in the relevant regulation is so clearly wrong that I should not follow it. The language of the regulation is ambiguous, and whilst the construction advanced by the Full Court is not the only available construction, it is at least an available construction which derives some support from some indicators in the Regulations. In these circumstances the controversy as to the denotation of the term ‘violence’ should be regarded as settled by the decision in Cakmak.125 119

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Ibid [29]. Ibid. Ibid [34]. (2005) 144 FCR 170 (‘Sok’). (2003) 135 FCR 183. Sok (n  122) 177 [29] (Branson and Marshall  JJ), quoting from NATB v  Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 506, 519 [61], with internal quotes from Nguyen (n 74) 269; Chamberlain v The Queen (1983) 72 FLR 1, 8–9; and Transurban (n 81) 560. Sok (n 122) 193 [88] (Hely J). 5 PB 6 PB 0 LL ,

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DISCRETIONARY PRINCIPLES It has been suggested that the doctrine of precedent may apply more weakly to the 8.29 Family Court. On this view, because of the nature of its decisions, Family Court decisions are more discretionary than those of other courts. For example, in making a parenting order as to which parent a child should live with, s 60CA of the Family Law Act 1975 (Cth) provides that ‘a court must regard the best interests of the child as the paramount consideration’. Clearly, this assessment will depend on the weighing up of many factors that may vary widely between different cases. In Moore v Moore Carmody J suggested: There is a risk of serious injustice in preferring precedent to principle in family law cases … Judges must not be prevented from doing justice because of too strict an adherence to precedent or a legislative ‘straight jacket’ which leaves them with no fairer alternative. Principles have a ‘dimension of weight’. They may operate in one theatre but not in another albeit strikingly similar one. Their ‘weight’ or significance is variable depending upon the prevailing circumstances or the overriding influence of a higher principle or practice. This allows judges, subject to the doctrine of precedent and stare decisis (to the limited extent they apply) the ‘discretionary space’ to give ‘practical expression to the words and purpose of the legislation after taking account of relevant policy considerations … making necessary value judgments’.126

However, properly understood, not to follow a precedent on the basis that it involves a different set of facts is simply to distinguish the precedent: see 7.27ff. This does not require any diminution in the force of the doctrine of precedent. It may be, however, that the Family Court distinguishes precedents more often than other courts. There is authority that the doctrine of precedent applies to the Full Court of the Family Court in the same way it applies to other intermediate appeal courts. In Marriage of Maisey Evatt CJ and Marshall SJ held:

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As a general rule, a considered decision of an intermediate appellate court will be followed, unless there is a cogent reason not to do so. It has been held that the Full Court of the Family Court of Australia should regard itself as bound to follow its own decisions, unless such decisions can be shown to be clearly wrong, or in conflict with a binding authority of a superior court.There are good reasons for such a rule. It provides for certainty and stability in the law, though not at the price of blinkered obedience to demonstrated error. … There is at least some opportunity for decisions of the Full Court to be reviewed and, where necessary, corrected.Therefore it is only in limited circumstances that this court will entertain submissions to the effect that it should overrule one of its own decisions.127

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Court hierarchies in the federal system As stated at 8.18, the logic behind the doctrine of precedent is that a lower court should 8.31 apply the principles previously laid down by an appeal court because the appeal court has the power to overturn the lower court’s decisions. However, applying this logic can be difficult because the court hierarchies of Australia’s federal system have complex interrelations. Australia has nine different court hierarchies. The federal hierarchy 126 127

[2008] FamCA 32 [69]–[70]. (1980) 6 Fam LR 180, 183.

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is comprised of courts dealing mainly with matters arising under Commonwealth legislation.128 And each of the six states and two territories has its own court hierarchy, dealing with matters arising under each state or territory’s jurisdiction. To a large extent, the distribution of judicial jurisdiction within the federal system corresponds with the distribution of legislative power discussed at 3.17ff.

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CROSS-VESTING BETWEEN THE HIERARCHIES There is considerable potential for particular activities to raise issues under the law of more than one jurisdiction. Geographically, federal jurisdiction overlaps with that of the states and territories, and many activities cross state and territory borders. It was recognised as convenient, for the rational and efficient allocation of judicial business, for the courts of various Australian jurisdictions to be able to transfer cases between them. This was the rationale of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) and complementary legislation in each of the states and territories. This legislation provided that most matters which would previously have been within the sole jurisdiction of the federal courts, or of the courts of one of the states or territories, could be dealt with in the courts of any Australian jurisdiction. In 1999, however, in Re Wakim; Ex parte McNally (‘Wakim’),129 the High Court held that parts of the scheme were unconstitutional. The Court recognised that federal jurisdiction could still be conferred on state courts; indeed, s  77(iii) of the Constitution makes express provision for this. And the states were free to cross-vest jurisdiction between their own courts. However, the conferral of state jurisdiction on the federal courts under the cross-vesting arrangements was not permitted by the Constitution. Federal courts only possess a narrow authority to resolve those non-federal matters that form an inseparable part of or are sufficiently related to the federal dispute.130 These are known as the ‘accrued’ or ‘associated’ jurisdictions.131 Wakim had the effect of invalidating many decisions of the federal courts, made over more than a decade, and undermined the development of cooperative federalism in the important areas of corporations law and administrative law (among others). The decision in Wakim required several responses. Legislation was passed to retrospectively validate the earlier decisions it made unlawful. Federal jurisdiction has been conferred on state courts by Commonwealth legislation in various areas, including federal industrial relations, trade practices, bankruptcy, admiralty, family law and administrative law. With respect to corporations law, the states referred legislative power to the Commonwealth so that the national scheme could be maintained under its authority. The Jurisdiction of Courts Legislation Amendment Act 2000 (Cth) was passed to ensure that the Federal Court of Australia could continue to fulfil its role as the primary forum for review of the actions and decisions of Commonwealth officers and authorities. The effect of Wakim is that cross-vesting cannot operate as freely as was previously thought; however, these legislative efforts and the findings in Wakim appear to have been successful in averting the worst inconveniences of the decision. 129 130

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Australian Constitution s 77(iii); Judiciary Act 1903 (Cth) ss 17, 39, 39A, 39B. Wakim (n 41). Fencott v  Muller (1983) 152 CLR 570; Wakim (n  41) [71] (McHugh  J), [136], [145] (Gummow and Hayne JJ). See, eg, Robin Creyke, John McMillan, Mark Smyth and Matthew Groves, Control of Government Action: Text, Cases and Commentary (LexisNexis Butterworths, 5th ed, 2018) [2.2.16]–[2.2.23]. 5 PB 6 PB 0 LL ,

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8.34

Notwithstanding Wakim, the current arrangements mean that courts from different court hierarchies may all be applying the same Commonwealth law. The impact this has on the doctrine of precedent is considered below. An example is provided by Einfeld, in which Rolfe J of the New South Wales Supreme Court heard a dispute concerning the Insurance Contracts Act 1984 (Cth) and considered precedents from the High Court, the New South Wales Court of Appeal and other intermediate appeal courts: see 8.25.

AUSTRALIAN COMMON LAW Despite there being nine major judicial hierarchies within the federation, Australia has 8.35 only one common law: see 3.5. In Lipohar v The Queen (‘Lipohar’) Gleeson CJ said: This Court is placed by s 73 of the Constitution at the apex of a judicial hierarchy to give decisions upon the common law which are binding on all courts, federal, State and territorial. Different intermediate appellate courts within that hierarchy may give inconsistent rulings upon questions of common law. This disagreement will indicate that not all of these courts will have correctly applied or declared the common law. But it does not follow that there are as many bodies of common law as there are intermediate courts of appeal.The situation which arises is not materially different to that which arises where trial judges in different courts or within the same court reach different conclusions on the same point of law. The ultimate foundation of precedent which binds any court to statements of principle is, as Barwick CJ put it, ‘that a court or tribunal higher in the hierarchy of the same juristic system, and thus able to reverse the lower court’s judgment, has laid down that principle as part of the relevant law’. Until the High  Court rules on the matter, the  doctrines of precedent which bind the respective courts at various levels below it in the hierarchy will provide a rule for decision. But that does not dictate the conclusion that until there is a decision of the High Court the common law of Australia does not exist, any more than before 1873 it would have been true to say that there was not one English common law on a point because the Court of King’s Bench had differed from the Court of Common Pleas.132

STATE AND TERRITORY LAW; NATIONAL SCHEME LEGISLATION The type of law which may vary between the jurisdictions is state and territory 8.36 legislation. Consider, for example, criminal law, which is largely a matter of state and territory legislative responsibility. While the criminal law has its origins in the common law, each jurisdiction has extensive bodies of legislation that modify and extend this area of common law. Nevertheless, as in many areas of law, the various jurisdictions are not entirely divergent. In criminal law there are broad areas of overlap. As far as traditional common law offences are concerned, Australian criminal jurisdictions can be divided ‘roughly into thirds’: ‘common law jurisdictions’ (New South Wales, South Australia,Victoria); those with ‘traditional codes’ (Queensland, Tasmania and Western Australia), and those with ‘recently enacted codes’ (the

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The implication of Lipohar is that courts from different court hierarchies are all applying the same Australian common law. The impact this has on the doctrine of precedent is considered below: see 8.46ff.

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(1999) 200 CLR 485, 505–6; see also Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89, 151–2 [135] (‘Farah Constructions’).

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Commonwealth and the territories).133 Even in the common law jurisdictions, legislation impacts on the traditional common law offences in some respects, though not to the extent of the traditional code jurisdictions. In addition to variations on the traditional common law offences, each jurisdiction has numerous Acts which incidentally create new statutory offences. For example, the Companion Animals Act 1998 (NSW) is primarily concerned with setting up a pet registration scheme; however, it contains additional provisions, like s 14 which prohibits dogs in certain public places such as food preparation areas. The person responsible for breaching this provision may face a penalty of 10 penalty units, or 100 penalty units in the case of a ‘dangerous, menacing or restricted dog’. The corresponding Victorian Act, the Domestic Animals Act 1994 (Vic), does not have a comparable offence. Large parts of the criminal law, then, are the product of the distinctive criminal legislation of particular jurisdictions. The only precedents directly on point, for example, regarding the offence of bringing a menacing dog to a public place in New South Wales, would be past decisions of the courts of that jurisdiction, including, of course, any appeals that had reached the High  Court. In other parts of the criminal law, the law of one jurisdiction may be similar or identical to that of another jurisdiction. There is a great deal of overlap between common law offences in the common law jurisdictions; between the offence definitions in the traditional code states (which all trace their origin to the Griffith Code of the late 19th century);134 and between the criminal law principles in the Commonwealth and the territories (which are all closely based on the Model Criminal Code developed in the 1990s by a multijurisdictional committee).135 There are many areas of law where the different Australian jurisdictions have sought to bring their legislation into line, such as the Australian Consumer Law, the Uniform Defamation Laws and the Uniform Evidence Law (‘UEL’). In some cases, the aim for uniformity is not fully achieved. For example, the UEL has not been uniformly adopted throughout Australia — South  Australia, Western Australia and Queensland have each retained their own idiosyncratic mixes of statute and common law.136 Further, there is some variation between the legislation of the UEL jurisdictions.137 Even where the statutory provisions of different jurisdictions are identical, it is arguable that the situation is not like that of the common law or Commonwealth law, in that the law of the different jurisdiction comes from different sources. In Einfeld, Rolfe J of the New South Wales Supreme Court was considering the operation of the Insurance Contracts Act  1984 (Cth), and had regard to precedents of other jurisdictions that were interpreting the very same Act: see 8.25. Contrast this with the recent cases of

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Jeremy Gans, Modern Criminal Law of Australia (Cambridge University Press, 2nd ed, 2016) 8. See, eg, Thomas Crofts and Stella Tarrant, ‘Criminal Law Pedagogy and the Australian State Codes’ in Kris Gledhill and Ben Livings (eds), The Teaching of Criminal Law: The Pedagogical Imperatives (Routledge, 2017) 99. See, eg, Miriam Gani, ‘Codifying the Criminal Law: Implications for Interpretation’, in Suzanne Corcoran and Stephen Bottomley (eds), Interpreting Statutes (Federation Press, 2005) 197. Andrew Hemming, ‘Adoption of the Uniform Evidence Legislation: So Far and No Further?’ in Andrew Roberts and Jeremy Gans, Critical Perspectives on the Uniform Evidence Law (Federation Press, 2017) 34. Stephen Odgers, Uniform Evidence Law (Thomson Reuters, 15th  ed, 2020) [EA.Intro.210] ‘Differences between the Acts’. 5 PB 6 PB 0 LL ,

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PRECEDENT ACROSS DIFFERENT AUSTRALIAN APPEAL HIERARCHIES According to the ordinary operation of the doctrine of precedent, whether a precedent is 8.39 strictly binding is determined by reference to the appeal hierarchy. Unless the precedent comes from a court that has the power, on appeal, to overturn the decision of the present court, the precedent will not be strictly binding. Difficulties are raised, however, within Australia’s federal system. Commonwealth law and Australian common law present the situation of courts from different hierarchies applying the same law. Uniform legislation may require courts of different hierarchies to apply laws that, while from different sources, are expressed in identical language. Importantly, however, there are rare situations where a precedent that appears to be 8.40 from another court hierarchy is strictly binding. This is because, although the hierarchies are ordinarily separate, there is a line of appeal from the present court to the court that decided the earlier case. Some Commonwealth legislation, including intellectual property legislation like the Copyright Act 1968 (Cth),143 provides for appeals from state

138 139 140

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Dupas v The Queen (‘Dupas’)138 in the Victorian Court of Appeal and R v XY (‘XY’)139 the New South Wales Court of Criminal Appeal. The former was concerned with the interpretation of s 137 of the Evidence Act 2008 (Vic) while the latter was concerned with the interpretation of s  137 of the Evidence Act  1995 (NSW). Both courts were sitting with a bench of five judges to deal with the divergence that had developed between the interpretations in the two jurisdictions, but both maintained their different positions. Arguably, this divergence matters less since the two Acts are from different jurisdictions. However, the provisions were both part of the UEL and were in identical terms.140 Further, the schism ultimately led to an appeal to the High Court in IMM v The Queen,141 in which a majority of the High Court favoured the New South Wales interpretation.142 This supports the view that divergence in the treatment of national scheme laws is no different from divergence in the treatment of Commonwealth legislation and common law, at least where the national scheme laws are identical across jurisdictions. The sections following explore further how the doctrine of precedent deals with situations where an Australian court is faced with precedents from other Australian court hierarchies which either deal with the same law — common law or Commonwealth legislation — or different legislation in identical or similar terms.

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(2012) 40 VR 182 (‘Dupas’). (2013) 84 NSWLR 363 (‘XY’). The New South Wales Law Reform Commission (NSWLRC), the Victorian Law Reform Commission (VLRC) and the Australian Law Reform Commission (ALRC) engaged in a tripartite review culminating in a joint report in 2005: Uniform Evidence Law (ALRC Report No 102, NSWLRC Report No 112, VLRC Final Report, December 2005). (2016) 257 CLR 300. Ibid [50]–[52]. Unfortunately, the High  Court was split 4:3, and the joint majority judgment is itself difficult to interpret: see, eg, Andrew Roberts, ‘Probative Value, Reliability and Rationality’ in Roberts and Gans (eds) (n 136) 63; Gary Edmond, ‘Icarus and the Evidence Act: Section 137, Probative Value and Taking Forensic Science Evidence “at its Highest” ’ (2017) 41 Melbourne University Law Review 106; David Hamer, ‘The Unstable Province of Jury Fact-Finding: Evidence Exclusion, Probative Value and Judicial Restraint after IMM v the Queen’, (2017) 41 Melbourne University Law Review 689. See, eg, Copyright Act 1968 (Cth) ss 131A, 131B.

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and territory trial courts to the Full Court of the Federal Court. In Dutton v O’Shane,144 James J of the New South Wales Supreme Court considered himself ‘bound’145 to apply a ruling of the Full Court in interpreting the Extradition Act 1988 (Cth). At that time, appeals from decisions of single judges lay only to the Full Court of the Federal Court. Even where a precedent is not strictly binding, in the interests of equality, efficiency and certainty in the law, it will still be seriously considered by later courts. This is true within court hierarchies, where the earlier and later court are at the same level of the hierarchy, or there is otherwise no line of appeal from the later court to the earlier court. It has been suggested that this is still more important where different court hierarchies are applying the same or identical law because there is greater risk of divergence. The New South Wales Court of Appeal has observed: Where … one State appellate court declines to follow a decision of another appellate court in Australia the consequence is, or may be, that there is an immediate inconsistency between the respective States or Territories and, of course, trial courts will be bound by the decision of the appellate court in their State or Territory. For this reason even greater caution should be exercised in deciding not to follow the existing authority of another State or Territory.146

8.42

If divergences in interpretation emerged, ‘[t]he public would be entitled to ask why the same words of a statute have different meanings in different States or Territories’.147 The High Court has emphasised the importance of consistency between jurisdictions on several occasions. In Farah Constructions Pty Ltd v Say-Dee Pty Ltd (‘Farah Constructions’) the High Court stated: Intermediate appellate courts and trial judges in Australia should not depart from decisions in intermediate appellate courts in another jurisdiction on the interpretation of Commonwealth legislation or uniform national legislation unless they are convinced that the interpretation is plainly wrong. Since there is a common law of Australia rather than of each Australian jurisdiction, the same principle applies in relation to non-statutory law.148

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In CAL No 14 Pty Ltd v Motor Accidents Insurance Board (‘CAL No 14’),149 the High Court was very critical of the Full Court of the Tasmanian Supreme Court for casually departing from a precedent of the New South Wales Court of Appeal on a point of common law. At issue was the extent to which a proprietor of premises licensed to sell alcohol owes a duty of care to customers. In this case a customer had been killed in a motorcycle accident on his way home from the bar. The New South Wales Court of Appeal in Cole v South Tweed Heads Rugby League Football Club Ltd150 had concluded that the proprietor owed a duty of care only in ‘exceptional’ circumstances. The Tasmanian Full Court in Scott v  CAL No  14 Pty Ltd151 held that a broader duty exists. In the High Court, Gummow, Heydon and Crennan JJ noted:

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[2002] NSWSC 1086. Ibid [106]. Fernando v Commissioner of Police (1995) 36 NSWLR 567, 589–90 (Clarke JA), quoted in Tillman v A-G (NSW) (2007) 70 NSWLR 448 [107] (Giles and Ipp JJA) (emphasis added by present authors) (‘Tillman’). Tillman (n 146) [110] (Giles and Ipp JJA). Farah Constructions (n 132) 151 [135]. (2009) 239 CLR 390 (‘CAL No 14’). (2002) 55 NSWLR 113; upheld on appeal in the High Court, though without reference to the current issue: Cole v South Tweed Heads Rugby League Football Club Ltd (2004) 217 CLR 469. (2009) 17 Tas R 331. 5 PB 6 PB 0 LL ,

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Unless the Full Court majority had concluded, giving reasons, either that the present case was exceptional, or that the New  South  Wales Court of Appeal was plainly wrong, it was its duty to follow the New South Wales Court of Appeal. The Full Court majority did not conclude that the present case was exceptional or that the New  South  Wales Court of Appeal was plainly wrong. Hence it did not carry out its duty to follow the New South Wales Court of Appeal. If these appeals had not been brought, there would have been an undesirable disconformity between the view of the New South Wales Court of Appeal as to the common law of Australia and the view of the Tasmanian Full Court majority. At best the Full Court decision would have generated confusion. At worst it would have encouraged the commencement of baseless and ultimately doomed litigation, to the detriment both of the unsuccessful plaintiffs and of the wrongly vexed defendants.152

8.43

CAL No 14 concerned divergence at the intermediate appellate level. As noted in Farah Constructions, similar considerations apply where a trial judge in one jurisdiction has regard to an appellate decision from another jurisdiction. Indeed, having regard to their relative positions in the hierarchy, the precedent in such a situation should be given greater respect. In Australian Securities Commission v Marlborough Gold Mines Ltd (‘Marlborough Gold Mines’),153 an earlier case concerning uniform national legislation, the High Court said: It is somewhat surprising that the Full Court of the Supreme Court of Western Australia, and more particularly that Mr  Commissioner Ng, declined to follow what was said by the Full Court of the Federal Court. … [U]niformity of decision in the interpretation of uniform national legislation … is a sufficiently important consideration to require that an intermediate appellate court — and all the more so a single judge — should not depart from an interpretation placed on such legislation by another Australian intermediate appellate court unless convinced that that interpretation is plainly wrong.154

In R v Abbrederis,155 in a case concerning the possession of imported prohibited drugs under s  233B of the Customs Act  1901 (Cth),156 Street  CJ of the New  South  Wales Supreme Court said of a precedent of the Full Court of the Supreme Court of Victoria:

Similar considerations will again apply where a trial judge in one jurisdiction has regard to the precedent of another trial judge in another jurisdiction. In Hamilton Island Enterprises Pty Ltd v Commissioner of Taxation, Rogers J commented:

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In my view it is of cardinal importance in the proper administration of justice that single judges of State Supreme Courts exercising federal jurisdiction should strive for uniformity

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It is of significance to recognize that the decision was reached by the ultimate State appellate court and unless and until such time as this decision is departed from by the Full Court of Victoria or the High Court, it will bind absolutely all single judges and inferior courts in Victoria … [W]here a Commonwealth statute has been construed by the ultimate appellate court within any State or