Legal ethicist Neil Watt has a rather depressing article at Richard Ackland’s “Justinian” about the glacial pace of progress towards nationally consistent solicitors’ rules aimed at achieving uniform ethical standards for Australian lawyers:

I expected everyone around that table to be committed to the best of ethical standards free of self-interest. I expected members of an ethics committee to understand the importance of principle and to ensure the rules we wrote were based on the best of these. I expected us all to reach for something better than mere minimum standards. I expected us to ensure any interstate agreement didn’t become an exercise in ethical compromise – a mad dash to mediocrity.

I discovered, after three years of battles over principle, that my idealism was misplaced. …

Mostly we had battles over what the law would allow rather than what was the right thing to do. And there’s the difference between ethics and law. Law states what we must do, while ethics is about what we ought to do.

A committee charged with providing ethical leadership to the solicitors of Australia shouldn’t be focussed on what we can get away with, but what is in the best interests of the profession and the people we serve.

To do that effectively we have to divorce ourselves from self-interest, and there lies the rub. …

Perhaps imagining that it is even possible for an entire industry/profession (or even its leadership) to divorce itself from self-interest is the problem here.

Neil Watt advances sophisticated versions of the familiar legal profession justifications for the supposed necessity of self-regulation:

I’ve always believed lawyers should set their own standards, for a couple of reasons.

As officers of the court lawyers must be independent of government. Also, professional standards can never be adequately imposed solely by rules. Ethics will only take hold when the profession itself takes responsibility for the behaviour of its members and places expectations on them to act ethically.

The first argument is easily dealt with.  Judges, administrative tribunal members, ombudsmen and other such officials are appointed by governments, but few argue that they are not fearlessly independent. Westminster-derived systems like ours are adept at creating terms of appointment and regulatory structures which ensure independent, impartial judgment. Clearly any legal profession regulator will require representation from the profession so it is adequately informed about what lawyers actually do, why they do it and what they see as workable professional conduct rules. But that does not mean the regulator should be bound by the profession’s own view of itself (or that representatives of the profession should form a majority of the regulator’s board, which is essentially the same thing).

Similarly with Watt’s second argument (standards can’t be adequately imposed solely by rules).  Our legal system is accustomed to dealing with rules which involve significant elements of subjective evaluation and discretion, both on the part of those required to obey them and those adjudging whether they have been breached.  Tests of “reasonableness” are the most ubiquitous example.  It is not beyond the wit of legal professional disciplinary bodies to flesh out the bones of “black letter” ethical standards by these familiar means.

Watt’s third argument is rather more interesting.  Like Watt, Immanuel Kant saw morality (a close cousin to ethics) as not truly being constituted unless individuals performed good deeds through an internalised sense of duty. Watt doesn’t quite go that far,apparently he sees it as both feasible and sufficient for the profession’s leaders to have internalised an adequate sense of duty (though he concedes at the end of the article that his own experiences rather suggest they haven’t).

Kant’s British contemporary Adam Smith had a rather more pragmatic (and arguably realistic) view.  Notions of “sympathy” certainly gave rise to an internalised morality he called the “Impartial Spectator”, but its force decreased as levels of acquaintance moved beyond family, friends and one’s immediate neighbours.  Hence Smith in his later foundational economic work posited markets and competition, together with regulation where necessary, as a surer basis for socially desirable activity.  Smith’s famous statement in The Wealth of Nations encapsulates this concept:

“It is not from the benevolence of the butcher the brewer, or the baker that we expect our dinner, but from their regard to their own interest. We address ourselves, not to their humanity, but to their self-love, and never talk to them of our own necessities, but of their advantages.”

In a contemporary, mobile, multicultural, post-industrial society like ours, the restraining ties of sympathy and the Impartial Spectator are fairly weak, among lawyers no less than other social groups. In my view it is somewhat naive to imagine that lawyers, either individually or as a group/profession can by whatever means (presumably including law school education) be rendered less prone to self-interest than any other group in society.

That is not to say we should use any less than our best endeavours as members of the profession to inculcate and enforce a strong sense of ethics, but we also should not imagine that those efforts can ever be enough in the absence of credible and independent (of the profession) regulatory oversight. The role of lawyers in the justice system is a crucially important one. For justice to be meaningfully delivered we must be able to ensure that the overwhelming majority of lawyers will always act ethically.  As far as I can tell most actually do, but I’m sure we can do a lot better, and I’m equally sure that higher ethical standards won’t be achieved without a significant element of external regulatory oversight.

Ultimately one can argue that it doesn’t matter whether lawyers exhibit ethical behaviour because they have internalised the relevant underlying moral values or because they fear punishment.  On the other hand I have some sympathy (in a different sense from Adam Smith) for the views of contemporary moral philosopher Emrys Westacott in an article titled Does Surveillance Make Us Morally Better?:

The upshot of these reflections is that the relation between surveillance and moral edification is complicated. In some contexts, surveillance helps keep us on track and thereby reinforces good habits that become second nature. In other contexts, it can hinder moral development by steering us away from or obscuring the saintly ideal of genuinely disinterested action. And that ideal is worth keeping alive.

Some will object that the saintly ideal is utopian. And it is. But utopian ideals are valuable. It’s true that they do not help us deal with specific, concrete, short-term problems, such as how to keep drunk drivers off the road, or how to ensure that people pay their taxes. Rather, like a distant star, they provide a fixed point that we can use to navigate by. Ideals help us to take stock every so often of where we are, of where we’re going, and of whether we really want to head further in that direction. …

One of the goals of moral education is to cultivate a conscience – the little voice inside telling us that we should do what is right because it is right. As surveillance becomes increasingly ubiquitous, however, the chances are reduced that conscience will ever be anything more than the little voice inside telling us that someone, somewhere, may be watching.

Federal Court Chief Justice Pat Keane

[Actually first published 21 October but post-dated in order to manipulate front page placement sequence in WordPress]

The audience at last night’s Austin Asche Oration witnessed an address by Federal Court Chief Justice Pat Keane which some might label as courageous in a Sir Humphrey Appleby sense. Without ever mentioning Bromberg J’s recent decision in Eatock v Bolt, Keane CJ cut to the heart of the central issue of controversy in current public debate.  That is, whether and how the law might appropriately balance the competing public interest imperatives involved in protecting freedom of political communication while simultaneously restraining socially destructive hate speech.

Eatock v Bolt involved a series of newspaper articles by Murdoch journalist Andrew Bolt which attacked nine prominent Aboriginal activists, effectively labelling them as “white Aborigines” who illegitimately capitalised on their Aboriginality to further personal ambitions and obtain career and other preferment. Bolt’s factual assertions were seriously erroneous in numerous respects, and his articles were quite viciously worded. The nine activists lodged complaints against Bolt and News Ltd under s 18C of the Racial Discrimination Act (Cth) and subsequently took enforcement action in the Federal Court.  Because of the way the High Court conceptualises the constitutional requirement for separation of judicial from political power at federal level, only a Chapter III court can make binding and authoritative orders in such matters.  The Australian Human Rights Commission cannot do so.

Three weeks ago in the Federal Court (of which Keane CJ is the principal judicial officer), Bromberg J handed down his decision, holding that Bolt and News Ltd had been guilty of offensive behaviour because of race, colour or national or ethnic origin within the meaning of s 18C of the RDA.  On Wednesday Bromberg J made final orders awarding costs to the nine complainants, requiring News Ltd to publish prominent corrective notices, and restraining them from republishing the offending articles or any substantial parts thereof.

In the meantime Bromberg J’s decision has been the subject of vituperative and frequently ill-informed commentary both in the mainstream and alternative media.  In those circumstances it is hardly surprising that Keane CJ took the opportunity of last night’s Oration to defend the integrity, independence and impartiality of his Court , a role that Chief Justices are increasingly forced to perform nowadays, given that Attorneys-General apparently no longer see it as their role to defend the courts from unfair and extreme criticism.

Common law or constitutional rights protection best?

A.V. Dicey

His Honour began his Oration by citing with approval some remarks by the Honourable Austin Asche after whom the annual oration is named.  Asche CJ (as he then was) had opined in 1989 that the common law and statute were more satisfactory and finer-grained ways of responding to and protecting claims for human rights than high-flown, abstract constitutionalised declarations.  This is a familiar trope of opponents of constitutionalised charters of rights, extending back at least to A.V. Dicey who enshrined it in his seminal rule of law formulation:

[T]he rule of law and the rights it protects are the products of the traditions and customs of the ordinary law, not a written constitutional document. The English Constitution bears ‘the fruit of contests carried on in the courts on behalf of the rights of individuals’. The Constitution was ‘judge-grown’, in the rich soil of countless years of English common law, reflecting an English ‘legal spirit’.

Despite the long provenance of such sentiments, Australia is now the only western democracy which does not have some form of rights charter, constitutional or otherwise.  Others have concluded not unreasonably that Dicey’s paean to the common law is radically incomplete, ignoring what JS Mill referred to as the “tyranny of the majority” and the inevitable associated tendency of politicians (and therefore judges who must interpret and apply statute law) to pander to the passions of that majority, however much minorities despised by the majority may be oppressed.

Too much free speech?

Nevertheless, and leaving aside those arguments, Keane CJ pointed to a number of US Supreme Court decisions which, he argued, evidenced an undesirable tendency in US jurisprudence for courts to give primacy to freedom of speech over equally important rights and values including privacy, reputation, basic civility and human dignity.  Snyder v Phelps (March 2011) is an example:

The Supreme Court ruled … that members of a fundamentalist church have a free-speech right to hold anti-gay protests at military funerals to promote their view that God hates America for tolerating homosexuality.

In a case pitting free-speech versus privacy rights, the nation’s highest court held that the picketing at a private funeral and even hurtful protest messages were protected by the U.S. Constitution’s First Amendment.

The decision by an 8-1 vote was the latest in a long line of Supreme Court rulings that free-speech rights protected even outrageous or offensive conduct, including the burning of the American flag.

The ruling was a defeat for Albert Snyder, the father of a Marine killed in Iraq in 2006. He sued after the family’s funeral service at a Roman Catholic Church in Westminster, Maryland, drew unwanted protests by members of the Westboro Baptist Church in Topeka, Kansas.

The protesters carried signs that stated, “God Hates You,” “You Are Going To Hell,” and “Thank God for Dead Soldiers.”

Another was the 1989 Florida Star decision:

The Supreme Court … overturned a $100,000 damage award that a rape victim won against a small Florida newspaper that published her name in violation of a state law.

The 6-to-3 decision was based on the First Amendment’s guarantee of freedom of the press. But the decision, written by Justice Thurgood Marshall, was narrowly confined to the facts of the Florida case. It stopped short of deciding the broader constitutional question of whether a newspaper can ever be subjected to criminal or civil liability for publishing a report that, while accurate, invades someone’s privacy.

In overturning the damage award that the victim of the 1983 rape and robbery had won in her civil lawsuit against The Florida Star, a small Jacksonville weekly, the Court did not declare the state law unconstitutional. Florida, Georgia and South Carolina are the only states that have laws making it a crime to publish the name of a rape victim.

Rather, Justice Marshall said, the law was unconstitutionally applied in this case, in which the newspaper had lawfully obtained the victim’s name and details of the crime from publicly available police records.

Keane CJ contrasted these decisions with others in South Africa and some European nations, which have rights charters enshrining both free speech and other rights like privacy, reputation and personal dignity.

Jeremy Waldron and human dignity

Jeremy Waldron

Perhaps most interestingly, Keane CJ based his argument on the 2009 Oliver Wendell Holmes Lectures delivered by American jurisprudential scholar Jeremy Waldron.  Waldron advocates human dignity as a suitable constitutional touchstone for courts to employ in reconciling and prioritising competing rights.

Ronald Dworkin also deployed this essentially Kantian concept of human dignity (and equality) in deriving “universal” human rights in his seminal work Taking Rights Seriously.  However, and somewhat unconvincingly you may think, Dworkin argued that human dignity and equality could only ever be justifications for free speech not for the primacy of other rights and values at least in some circumstances (article by Guy Carmi not available free online):

Dworkin, for example, argues that restricting people’s speech, or limiting people’s access to others’ speech, out of contempt for their way of life or their view of good violates their right to autonomy or “moral independence. Such restrictions unacceptably fail to treat these people with equal respect and concern.

Waldron employs the notion of human dignity as an underlying value in a much more “European” way than Dworkin, as this extensive extract demonstrates:

[G]roup defamation laws do not concern themselves with particularized individual reputation. They look instead to the basics of social standing and to the association that is made — in the hate speech, in the libel, in the defamatory pamphlet or poster — between the denigration of that basic standing and some characteristic associated more or less ascriptively with the group or class. I do not mean that group membership is in and of itself a liability. But group defamation sets out to make it a liability by denigrating group-defining characteristics or associating them with bigoted factual claims that are fundamentally defamatory. A prohibition on group defamation, then, is a way of blocking that enterprise. …

[T]hese reputational attacks amount to assaults upon the dignity of the persons affected — dignity, in the sense of these persons’ basic social standing, of the basis of their recognition as social equals, and of their status as bearers of human rights and constitutional entitlements. The moral imperative of respect for human dignity is increasingly understood as a crucial foundation of basic rights and equality. The Universal Declaration of Human Rights begins its preamble with the strong assertion that “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,” and the International Covenant on Civil and Political Rights follows up on that by stating that the rights it protects “derive from the inherent dignity of the human person.” Legal and political theorists are finding that dignity provides a useful and compelling perspective on the foundations of constitutional rights, and also on the foundations of ideals such as democracy and the rule of law. As well as these broad ideals, dignity is also increasingly appealed to on particular issues in legal controversy — on the death penalty (where its use is well known), on antidiscrimination law, on issues relating to abortion,  and — as we shall see — in scholarly controversies on this matter of hate speech.

Dignity is a complex idea, with philosophical as well as political and legal resonances. In the sense I am using the term, dignity is not just a Kantian philosophical conception of the immeasurable worth of humans considered as moral agents. It is a matter of status — one’s status as a member of society in good standing. It validates the legal position of the ordinary individual both as an equal and (paradoxically) as the possessor of a very high-ranking status. And it generates demands for recognition and treatment that accord with that status. Philosophically we may say that dignity is inherent in the human person — and so it is. No law or social practice can take it away. But as a social and legal status, dignity has to be nourished and maintained by society and the law, and this … is a costly and difficult business and something in which we are all required to play a part. At the very least, we are required in our public dealings not to act in a way that undermines one another’s dignity in this sociolegal sense — and that is the obligation that is being enforced when we enact and administer laws against group libel.

“Offence” and loss of human dignity are different

Keane CJ based his argument, in favour of of a Diceyan/legislative and case law-based approach to rights, squarely on Waldron’s arguments.  However, His Honour failed to mention that Waldron expresses significant reservations about a “taking offence” basis for mediating competing claims to to free speech and hate speech.  However, “offence” rather than undermining human dignity, is precisely the basis for s 18C of the RDA and its State-based equivalents. As Waldron argues:

This brings me to an important distinction. There is a big difference between protecting individual dignity from defamation (based on some denigration of group characteristics) and protecting people from offense, even when the offense goes to the heart of what they regard as the identity of their group. The argument I want to make is not concerned with offense. It is concerned with what happens to the standing of persons and groups in society, not with any element of their distress unconnected with that.

This distinction is particularly important for understanding laws prohibiting hate speech against religious minorities. Consider, for example, worries about expressions of Islamophobia. The group of all Muslims in society, the group of all followers of Islam, is a group of people committed to the one God, to his Prophet, Mohammed, and to the holy writings of the Koran. On the account that I am developing, individual Muslims are entitled to protection against defamation, including group defamation as Muslims. A published allegation, for example, that all Muslims are terrorists or are properly suspected of involvement with terrorism would rightly fall foul of well-drafted hate speech legislation. But that does not mean that the law should aim to protect the founders of the religion, or the reputation of God as Muslims understand Him, or the creedal beliefs of the group. … The civic dignity of the members of a group stands separately from the status of their beliefs, however offensive an attack upon the Prophe or even upon the Koran may seem. The specific concern about group libel does not encompass these things.

In general, a dignitarian rationale for laws against group defamation differs from an approach based on the offense that may be taken by the members of a group against some criticism or attack. I do not deny that the distinction is a delicate one. …

And I do not mean to convey indifference to the subjective or felt aspect of assaults on dignity. Civic dignity is not just decoration; it is sustained and upheld for a purpose. It is an important part of my argument … that the social upholding of individual dignity furnishes the basis of a general assurance of decent treatment and respect as people live their lives and go about their business in public. And an assault on individual dignity is bound to be experienced as wounding and distressing; unless we understand that distress we do not understand what is wrong with group defamation and why it is appropriate to prohibit it by law.

Not only that, but in anyone’s reaction to any particular incident of hate speech, there are going to be a whole lot of factors all mixed up. The phenomenology of this sort of assault is complex and tangled. It is not easy to differentiate the offense from the insult, or the immediate wounding of an epithet from the perception of a threat, or the outrage from the humiliation, or the anger from the shame of having to explain to one’s children what is going on. The reactions are all mixed up, and it will often seem that the law, in responding to one set of phenomena, is also responding to others. I think this is likely to be true of hate speech also. When a racial group is hatefully denigrated, there will be fear, hurt, vehement disapproval to the point of outrage, humiliation, shame, anger, offense, and so on. And it will be hard to disentangle; often there will be no point in doing so. But it is important in this context to try. …

So what about group defamation? Prosecutions for seditious libel began to seem inappropriate when we realized that the government had become so powerful that it did not need the support of the law against the puny denunciations of the citizenry. Does that apply to vulnerable minorities? Is their status as equal citizens in the society now so well assured that they have no need of the law’s protection against the vicious slurs of racist denunciation? Prosecutions for blasphemous libel began to seem inappropriate when religion came to be regarded as a private matter. Is that true of the status of embattled minorities? Is their position in society — the respect they receive from fellow citizens — a matter of purely private belief, with which the law should have no concern? The state and its officials may be strong enough, thick-skinned enough, well enough armed, or sufficiently insinuated already into every aspect of public life to be able to shrug off public denunciations. But the position of minority groups as equal members of a multiracial, multiethnic, or religiously pluralistic society is not something that anyone can take for granted. It is a recent and fragile achievement in the United States and the idea that law can be indifferent to published assaults upon this principle seems to me a quite unwarranted extrapolation from what we have found ourselves able to tolerate in the way of political and religious dissent.

Reconciling the RDA and Waldron’s human dignity approach

Nevertheless, this apparent discrepancy between Keane CJ’s argument and Waldron’s hypothesis may not be as fundamental as it first appears.   S 18C relevantly reads:

(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.

Case law on s 18C has held that it is only infringed if the act is reasonably likely to “offend” etc.  a reasonable member of the vilified minority rather than one who is thin-skinned and easily offended.  It is in essence an “oppressed minority member on the Clapham omnibus” test.  In itself that does not bring us to Waldron’s position. However, if Australian courts adopt (as I would argue they should) a test whereby an act should not be held to breach s 18C unless on the facts a reasonable person would regard it as undermining the human dignity of the oppressed group (whether that group is founded on racial, religious or gender identity), then I think we are approaching an intellectually and legally sustainable distinction which preserves both values of democratic free speech and civil society.

The problem with the notion of “human dignity” and its infringement is that it is potentially just as indeterminate as other available concepts.  In one sense it is a classic example of what Julius Stone called a “category of illusory reference”. A judge who disagrees subjectively with a particular exercise of free speech rights may have no more difficulty in labelling it a breach of “human dignity” than labelling it an act which “is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people”.  However, as  Gummow and Crennan JJ argued in Thomas v Mowbray (in the context of anti-terrorism control orders):

From consideration of the legislation on a case by case basis it may be expected that guiding principles will emerge, a commonly encountered phenomenon in judicial decision-making.

If we examine the fairly scant jurisprudence on s 18C,  we find that it is already consistent with an approach based on significant infringement of human dignity as the requisite test:

Hagan v Trustees of the Toowoomba Sports Ground Trust [2000] FCA 1615 (10 November 2000) involved a claim that the naming of a rural Queensland sports grandstand as the “Nigger Brown Stand” breached s 18C.  It was named after a local identity whose nickname this was.  One might reasonably regard the claim as somewhat frivolous and politically correct, and indeed local Indigenous people gave evidence that they were not offended.  However, and leaving aside “offence” (whether subjectively or objectively determined) , one might persuasively argue that this is a situation which is unlikely to result in substantive undermining of human dignity, unless evidence establishes a pattern of racially-based denigration (which may well be the case but needs to be established on the evidence).

Toben v Jones [2003] FCAFC 137 (27 June 2003), Jones v Scully [2002] FCA 1080 (2 September 2002)   and  Jeremy Jones, and on behalf of the Executive Council of Australian Jewry v The Bible Believers Church [2007] FCA 55 (2 February 2007) are all cases where virulent anti-Semitic abuse would clearly breach just about any test for breach of  s 18C.

Eatock v Bolt is a more difficult and equivocal case.  Bolt’s claims were seriously factually inaccurate and worded in a manner that many would find extreme, hurtful and unacceptable.   However, as Dworkin argues:

Dworkin believes that the government cannot discriminate among citizens by permitting some views and denying other views. Such conduct is discriminatory not only to the speaker but also to the society as a whole (or potential individual listeners).’ The paternalism applied by government when censoring certain opinions prevents the citizenry from exercising autonomy and choosing from all available views, including those that the government dislikes or finds distasteful or dangerous. As Dworkin puts it, ” [w]e retain our dignity, as individuals, only by insisting that no one-no official and no majority has the right to withhold opinion from us on the ground that we are not fit to hear and consider it.”

Whether you personally disagree or not, Bolt’s articles raise cogent political issues about the legitimate bases for government-sponsored affirmative action initiatives to redress past discrimination, the extent to which “race” is a genetic or social construct, and whether and to what extent “multi-culturalism” is a viable concept and how the law should deal with it.  Almost any version of constitutionally-protected free political communication would regard such topics as inherently legitimate subjects of  public discussion.  However, when does the tone or content of such speech put it beyond the legal pale?  I would argue that there is no self-evidently correct answer, and that we should mostly err on the side of permitting obnoxious examples of free speech on such topics, for exactly the reason enunciated in the title to Keane CJ’s address: “Sticks and Stones May Break My Bones but Names Will Never Hurt Me”.

One might observe that this is a convenient rationalisation for articulate bullies confident they can goad their intellectual inferiors into physical retaliation. Nevertheless, maintenance of free speech in a democratic polity may well militate in favour of privileging even hurtful “smart-arse” speech over an excessive readiness to accept the probability of physical violence as a rational response.  Coleman v Power is an example of a decision where at least three Justices accepted the probability of a violent response as a constitutionally acceptable reason for restricting free speech on political questions.  However, just because politically active Indigenous academics, like well trained police officers, may reasonably be regarded as unlikely to respond violently to the written  provocations of an intellectual thug like Andrew Bolt, might not in itself be seen as a sufficient legal reason for eschewing statutory restrictions of such speech in the public interest. Arguably the tendency of the speech in question to undermine human dignity would provide a more durable and intellectually sustainable test.

Did Bolt undermine human dignity in Waldron’s sense?

Finally, do Bolt’s words reasonably raise the question of undermining the “human dignity” of the nine complainants on the bases Waldron argues?  I suggest not. These are not words which attack the “equal members[hip] of a multiracial, multiethnic, or religiously pluralistic society”, as Waldron puts it.  Instead, at least arguably, they are words which single out the complainants as individuals.  Bolt argues that they are individuals who have unfairly parlayed their racial credentials for personal advantage.  His words do not reflect adversely on Aboriginal people generally or on any generally-described subset thereof. They defame/offend only the named individuals.  They should have sued in defamation, and should not be permitted to utilise the (non-criminal) “criminal defamation” provisions of the RDA to hold an obnoxious opponent in terrorem.

Mark Bahnsich makes a contrary argument:

Marcia Langton, in a piece that repays reading, rightly assimilates Bolt’s views to a discourse which has long had its vile grip on Australian culture. The implicit demand in this discourse – that Indigenous people should pass as white – is all of a piece with a desire that Indigenous culture disappear. It’s surely no coincidence that it’s articulated just at a time when that desire is more prominent than for many years. Consider, for instance, the push against the use of Indigenous languages in schools, purportedly for reasons of facilitating economic opportunity, when actually all the evidence shows that such an approach is actually intrinsic to learning outcomes.

Andrew Bolt’s claim that his ambition is for a united society is in my view a pure expression of a monocultural wish, and that needs to be understood as fact.

Bahnisch makes a cogent point, but in my view it should not be regarded as trumping the more general proposition that the issues Bolt (at least ostensibly) addresses are legitimate ones which should not be suppressed in any democratic society. We should err on the side of permitting their public expression unless there is an at least equally powerful democratic reason to the contrary.  I would argue that this is not the case where other legal remedies (in this case defamation where actual provable damage to reputation is a requirement) are readily available.

Would the High Court uphold sections 18C and 18D on constitutional grounds?

Bolt deservedly lost as a result of his reckless disregard for factual accuracy. He would probably have lost in defamation proceedings as well, and for similar reasons.  However, had he got his facts closer to correct, engaged in some rudimentary fact-checking beyond a quick Google search, and given his targets an opportunity to respond before publication, he would have had a good defence to defamation proceedings on the so-called Lange extended defence of qualified privilege.  And yet, at least on Bromberg J’s reasoning, which held that Bolt’s nasty and aggressive tone was also an element in denying his words exemption under s 18D,  Bolt may well still have been held in breach of s 18C in those circumstances.  That strikes me as both constitutionally and democratically problematic.  As the High Court’s unanimous judgment in Lange v ABC explained:

In Theophanous, the Court held that, once the publisher proved it was unaware of the falsity of the material, had not acted recklessly, and had acted reasonably, malice could not defeat the constitutional defence. But once the concept of actuating malice is understood in its application to government and political communications, in the sense indicated, we see no reason why a publisher who has used the occasion to give vent to its ill will or other improper motive should escape liability for the publication of false and defamatory statements. As we have explained, the existence of ill will or other improper motive will not itself defeat the privilege. The plaintiff must prove that the publication of the defamatory matter was actuated by that ill will or other improper motive. Furthermore, having regard to the subject matter of government and politics, the motive of causing political damage to the plaintiff or his or her party cannot be regarded as improper. Nor can the vigour of an attack or the pungency of a defamatory statement, without more, discharge the plaintiff’s onus of proof of this issue.

The constitutionality of sections 18C and 18D have only been considered in a couple of decisions, namely Jones v Scully and Toben v Jones.  Neither decision contains any real analysis of the question.  The High Court has not ruled on it.

Bromberg J appears to have set a higher bar for a defendant in RDA proceedings than that which the High Court regarded as constitutionally appropriate for defamation proceedings in Lange. Given that both are civil causes of action and both constrain political communication, this seems a somewhat peculiar result  In that sense at least it’s a pity that News Ltd has decided not to appeal in Eatock v Bolt.  Would the High Court regard ss 18C and 18D as reasonably “appropriate and adapted” to a purpose within Commonwealth power (the validity test the Court sets for laws which incidentally burden constitutionally-protected speech)? On the one hand the provisions render a successful defence more difficult than in defamation, at least when the communication is not for a “genuine academic, artistic or scientific purpose”.  On the other hand the available remedies (retraction or apology, injunction etc) are more restrained and restorative in nature than the punitive damages-based approach of the common law. Certainly Waldron regards Australia’s regime as appropriate and adapted:

The most generous such provision I have seen is in the Australian Racial Discrimination Act, which says that its basic ban on actions that insult, humiliate, or intimidate a group of people done because of their race, color, or national or ethnic origin “does not render unlawful anything said or done reasonably and in good faith: . . . in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest.” The purpose of these qualifications is precisely to limit the application of the restriction to the bottom end [of the spectrum of hate speech].

I’m not at all sure that can still be said in light of Bromberg J’s reasoning. Despite the High Court’s warning in Lange that “the vigour of an attack or the pungency of a defamatory statement, without more” is not enough for a plaintiff to succeed, Bromberg J appears to have take just such an approach in finding a breach of the RDA:

The tone and gratuitous nature of both the specific and general comments made contributed to the disrespectful manner in which the people in the ‘trend’ were dealt with and contributed to the intimidatory effect of the articles.

The extent of mockery and inflammatory language utilised by Mr Bolt to disparage many of the individuals which the Newspaper Articles deal with, far exceeded that which was necessary to make Mr Bolt’s point.

PS Katy Barnett’s excellent and extensive analysis of broader issues surrounding Eatock v Bolt at Skepticlawyer also repays careful reading. Also see Russell Blackford’s excellent post

However there’s been much less discussion about whether the Commonwealth even has the constitutional power to legislate for gay marriage. There are doubts about this depending upon one’s favoured approach to constitutional interpretation.  In the United States “originalism” is the most widely favoured approach to interpreting the Constitution. although there are more versions of originalism than most people have had hot dinners.

The Commonwealth has constitutional power to make laws with respect to “marriage”.  See Constitution s 51(xxi).  But what is a “marriage”?  Does it include a same-sex union?  A polygamous union?  A de facto relationship, heterosexual or otherwise?  A union between whomever that isn’t for life? It is now clear that “marriage” does not include a de facto relationship.  See Russell v Russell (1976) 134 CLR 495.  However it does include a union legally terminable after 12 months separation and “irretrievable” breakdown (the latter essentially established by the former).

There’s no doubt what the vast majority of the “Founders” understood when they used the expression.  They meant a union for life between a man and a woman.  They didn’t mean a union between two blokes or two women.  They would have agreed emphatically with Paul Keating’s trenchant observation that “two jokers and a cocker spaniel don’t make a family”.  But does that necessarily circumscribe what “marriage” should mean today for constitutional purposes?

In Australia theories of constitutional interpretation tend to generate rather less heat than the US, possibly in part because we don’t have a Bill of Rights where differing interpretative approaches may yield radically differing outcomes on subjects involving deep ideological disagreements.

Interpreting the Constitution

Until 1988, the High Court’s “textualist” approach held that, while some limited historical materials extrinsic to the text (e.g. Quick & Garran; the common law in 1900) could be examined to ascertain the constitutional intent, it was not permissible to look at what the Founding Fathers themselves actually said during the Convention Debates where the Constitution itself was drafted. It was a quest for the “objective” intention. This was similar to the approach taken to ordinary statutory interpretation where, until the 1980s, it was regarded as impermissible to have regard to Hansard even for the purpose of resolving ambiguity. Thus, the prevailing approach was to ascertain intention while wearing a blindfold, rather like the three wise monkeys.

However, despite its self-denying edict, the High Court nevertheless managed to take into account changes in the meaning of words over time in at least some situations.This is because, as McHugh J put it in Re Wakim; Ex parte McNally (1999) 198 CLR 511, most constitutional provisions are expressed at a high level of abstract generality:

“Indeed, many words and phrases of the Constitution are expressed at such a level of generality that the most sensible conclusion to be drawn from their use in a Constitution is that the makers of the Constitution intended that they should apply to whatever facts and circumstances succeeding generations thought they covered.”

To achieve some stability and predictability in constitutional interpretation, the High Court has developed a fairly sophisticated doctrine involving distinguishing between the “connotation” of words (their “original” or “essential” meaning, which is “fixed”) and their “denotation” (the contemporary meaning of the word) . The High Court adopts an “ambulatory” approach, considering both the original and contemporary meaning of Constitutional terms. This has allowed the High Court to some extent to shape the operation of the Constitution to fit modern conditions e.g. the Commonwealth’s “posts and telegraphs” power in Constitution s 51(v) has been interpreted as including a power to regulate radio and television, even though they did not exist at the time of Federation. See R v Brislan; Ex parte Williams (1935) 54 CLR 262. Similarly, the High Court has more recently held that Commonwealth legislation regulating patents over genetically modified crops is supported by s 51 (xviii)(copyrights, patents of inventions and designs, and trade marks) although no-one had any idea in 1900 that genetic modification might be possible. See The Grain Pool of WA v Commonwealth (2000) 202 CLR 479.

“Originalism”/”Intentionalism”

In a fairly rare unanimous joint judgment in Cole v Whitfield (1988) 165 CLR 360 the Court departed from this somewhat bizarre approach. However, it approved recourse to the Convention Debates (and indeed history in general) only in a particular way (see CLR 385):

“Reference to … history … may be made, not for the purpose of substituting for the meaning of the words used the scope and effect — if such could be established — which the founding fathers subjectively intended the section to have, but for the purpose of identifying the contemporary meaning of language used, the subject to which that language was directed and the nature and objectives of the movement towards Federation from which the compact of the Constitution finally emerged.”

US jurisprudential scholar Ronald Dworkin puts it slightly differently but to similar effect in Freedom’s Law ((1996) at 10):

“[C]onstitutional interpretation must begin in what the framers said, and, just as our judgment about what friends and strangers say relies on specific information about them and the context in which they speak, so does our understanding of what the framers said. History is therefore plainly relevant. But only in a particular way. We turn to history to answer the question of what they intended to say, not the different question of what other intentions they had. We have no need to decide what they expected to happen, or hoped would happen, in consequence of their having said what they did, for example; their purpose, in that sense, is not part of our study. That is a crucial distinction”.

The distinction has sometimes been explained by saying that what we are looking for is the Founders’ “enactment” intentions not their “application” intentions. Another way to put it is that we are looking for the meaning the Founders ascribed to the words, but not their hopes and expectations as to what they might achieve. For example, it is clear from reading the Convention Debates that many of the delegates had hopes and expectations that section 51 (xxvi) would achieve the removal from Australia of the Chinese and Kanakas, but this could not be viewed as the meaning of the section (although at least two of the Justices in Kartinyeri v Commonwealth (1998) 195 CLR 337 used those historical facts in concluding that the section authorised legislation which discriminated against aborigines).

An obvious problem with this approach of “semantic originalism” is that it may frequently be effectively impossible to separate the meaning which the Founders believed the words to have from their hopes and expectations of what they would achieve. Although the distinction may sometimes be a useful one, it is in some respects a classic example of what the late Julius Stone referred to as “categories of illusory reference”.

Originalism and the marriage power

The potential problems become immediately evident as soon as one attempts to apply the principles from Cole v Whitfield quoted above to the marriage power in Constitution s 51(xxi). For a start, there simply wasn’t any meaningful discussion of the intended meaning and scope of the marriage power during the Conventions of the 1890s.  However in a more general sense, if our task is “identifying the contemporary (i.e. 1890s) meaning of language used”, then one would be hard-pressed to argue persuasively that “marriage” includes gay marriage.

But what about if our task is the second part of the Court’s formulation: “the subject to which that language was directed and the nature and objectives of the movement towards Federation from which the compact of the Constitution finally emerged”?  Originalist legal scholar Jeffrey Goldsworthy makes a plausible case in favour of the constitutionality of a gay marriage law:

The purpose of granting power to the Commonwealth Parliament to legislate with respect to marriage was to make possible uniform national regulation of a vitally important legal relationship that underpins family life, child rearing, and therefore social welfare throughout the nation. If current trends towards the recognition of same-sex marriages prove irresistible, confining ‘marriage’ to heterosexual marriage would result in a new legal relationship of a very similar kind having to be governed by disparate State laws rather than uniform national laws. Logically, the meaning of ‘divorce’ in s 51 would be governed by that of ‘marriage’, so that the dissolution of same-sex marriages would also have to be governed by State rather than Commonwealth law. And because it would be possible for same-sex couples to have children, by adoption or artificial fertilisation, their interests would also have to be governed by State rather than Commonwealth law. Family law would be even more fragmented than it is now.

The founders did not anticipate the possibility of same-sex marriage. In that respect, the example raises questions similar to those posed by the invention of air forces long after the creation of the US Constitution. In both cases, the important question is surely not whether the unanticipated phenomenon comes within the precise literal meaning of the word chosen by the founders to give effect to their purpose in allocating legislative power to the national legislature. It is whether the phenomenon comes within that purpose, and is so closely related to the word’s original meaning that it can be included by a simple and obvious expansion of that meaning consistent with contemporary conceptions. In both cases, there is a powerful argument that it does.

On the other hand, Geoffrey Lindell argues that the analogy with whether the air force is encompassed by the defence power (or gene patents by the copyrights etc power) is a dubious one.  Lindell is fairly pessimistic about the prospects of the High Court holding in the near future that the marriage power permits regulation of same-sex unions:

What is different about the changes that may have occurred in relation to same-sex marriages is that those changes relate to cultural and social values in contrast to changes which involved scientific developments and inventions. It has been said that the power of the Commonwealth Parliament to legislate with respect to marriage ‘is predicated upon the existence of marriage as a recognizable (although not immutable) institution’. At the time of federation the meaning of the term ‘marriage’ most commonly acknowledged was that contained in the cases which refused to recognise foreign polygamous marriage because such unions did not satisfy the traditional meaning of marriage now explicitly embodied in the Marriage Act 1961 (Cth). Not surprisingly this will make it difficult for the Court to accept that same-sex marriages now come within the meaning of the term ‘marriage’ in s 51(xxi) of the Commonwealth Constitution — a view that has already attracted some judicial support.

Although difficult and probably unlikely at the moment, despite the progressive nature of the principles of constitutional interpretation mentioned above, it is however by no means impossible, given the inherent flexibility of the relevant principles of constitutional interpretation.

Can the Commonwealth regulate gay “marriage”?

Your guess is as good as mine, Goldsworthy’s or Lindell’s.  However I’m certainly not as pessimistic as Lindell.  There is clearly a respectable path of constitutional reasoning that would allow the High Court to take a broader view of the marriage power if it so chose.  Moreover such an approach would be consistent with the Court’s long-term tendency to interpret Commonwealth legislative powers broadly.  The legislative fragmentation to which Goldsworthy points (given that the States can and have legislated to allow same-sex couples access to adoption and IVF) is also a potentially persuasive factor from the viewpoint of a constitutional pragmatist.  I can’t see any current Justice other than Heydon J (and perhaps Crennan J) who would be extremely unlikely to favour a liberal interpretation of the marriage power. With a fairly strong majority of Australians favouring gay marriage (although it’s a tad weaker among religious people) and one of our two major parties adopting it as formal policy, one can plausibly argue that the constitutional “denotation” of “marriage” has decisively evolved to encompass same-sex unions.

If you read only publications like Crikey or the Fairfax press, you might well be convinced that the Gillard government’s Indigenous affairs policies are just cynical, racist paternalism.  A typical example is a piece in today’s Crikey newsletter by Dr Hilary Tyler and Paddy Gibson.  It deals with some of the research underpinning the Commonwealth’s recently released 400-page evaluation of the NTER, in particular the Community Safety and Wellbeing Research Study.

The reasons why opponents of current policies might wish to discredit this research are apparent from a brief perusal of the executive summary:

Survey responses showed consistent agreement that the key positive changes perceived to have taken place over the last three years are in schools (83.3%), Centrelink (80.6%), clinics (78.3%), police (76.3%) and stores (76.2%). Services that have contributed to an improvement in safety at the community level are Night Patrols (74.8%) and more activities for young people (65.4%). In addition to the survey responses, the participative voting process identified that the most highly regarded change over the last three years was the increase in police presence. In addition, the Basics Card, improved housing and the school nutrition programs were voted into the list of the top five changes across the sample. (These issues were not covered by the survey tool). Improvement in opportunities for employment and training were also identified as a significant positive change. These data provide strong evidence that survey participants identify improvements to service delivery as being the most important changes that have taken place over the last three years. A very strong finding was that some of the positive changes, particularly those around community functioning and safety, were much less marked in larger communities.

The majority of survey respondents (58.7%) reported that their own lives were on the ‘way up’. The most common reasons cited were getting a job, living in improved housing, and having more money. Fewer people thought that their community was on the ‘way up’ (47.4%); however more people judged ‘way up’ than ‘no change’ (42.1%) or ‘way down’ (7.6%). The most common reasons for citing ‘no change’ or ‘way down’ were that people are still living in overcrowded housing, find it hard to get a job, there is still a lot of family fighting and unhappiness about both the Intervention and the loss of Community Councils through the change to governance through the Shires.

Strong negative changes that have taken place over the last three years are perceived to be the loss of control at the community level and resulting disempowerment of local leaders, and the increase in marijuana use.

Our anonymous Alice Springs informant reflects on Gibson and Tyler’s critique of the Community Safety and Wellbeing Research Study:

Paddy Gibson & Hilary Tyler spend the first part of their article disparaging the accuracy, credibility and objectivity of the Community Safety & Wellbeing Research Study (CSWRS), but then proceed to use its findings as seriously credible evidence for  attacks on some aspects of Macklin’s policies etc. So do they think it’s credible or not?

The great majority of these pilot interviews were carried out by Aboriginal speakers fluent in local languages who had been trained professionally in research techniques in a stridently anti-Intervention organisation. These researchers were definitely not pro-Intervention, but they understood and honoured the duty of researchers to do their work in a scrupulously unbiased and non-directive manner.

The reason the ‘17-page survey form used in communities does not once refer to “the intervention” or the “Northern Territory Emergency Response”’ is that hardly any of the randomly-chosen interviewees in remote communities knew what the terms “the intervention” or “Northern Territory Emergency Response” meant.

Therefore the survey form was modified, and interviewees were asked to compare their lives to the period before three years ago, before the intervention, but also using concrete illustrations such as ‘before the introduction of Income Management’, the arrival of GBMs, the arrival of extra police, and the changes to CDEP and alcohol regulations, to ensure they understood what was being asked.

Also: most NTER programs were introduced into most communities in the period Oct. 2007 to May 2008. The intervention was not “in full swing” in late 2007 – many communities did not yet have Income Management, or changes to shops, CDEP, police and other things in late 2007.

Another quirk: they are billed as being “NT indigenous workers”.  Neither is Indigenous, and Paddy lives in Sydney, working at UTS’s Jumbunna House & I think also enrolled for  PhD on the NTER at Sydney U. He is a leading light in the Sydney Stop the Intervention Collective (STIC) and also I think still in the Working Group on Aboriginal Rights (WGAR) and the campaign to stop Income Management being implemented in Bankstown. Dr Hilary Tyler works at Alice Springs Hospital, has worked in Emergency there for the last few years. She is heavily involved in the Intervention Rollback Action Group (IRAG), and may now be on the Public Health Association Australia (PHAA) executive.

Keddies are soon to appear before the NSW Administrative Decisions Tribunal in disciplinary proceedings brought by the Legal Services Commissioner under the Legal Profession Act. But their activities also came to notice only a week or two ago in the District Court matter of Liu v Keddies.  The judgment itself makes salutary reading but here’s Ackland’s summary:

A glimpse at the dimension of Keddies’ overcharging emerged last week in a civil action against the one-time partners brought by a former client, Eileen Liu. Ms Liu had also withdrawn her disciplinary complaint after coming to an ”agreement” to accept $15,000 from Keddies.

Still, she pressed on with a breach-of-contract action, claiming that she was billed for work that was not performed or not done at the agreed rate. Hers was a relatively small case that was settled for $140,000, from which the client received less than $50,000.

Judge Jim Curtis thoughtfully spelled out more than a dozen instances of overcharging. The fee ledger comprised 383 items of ”attendance” or work, and this was for a motor vehicle accident case in which liability had been admitted and the insurance company was wanting to settle.

For instance, three-line letters that would take a few seconds to read were billed for 12 minutes of time at a senior litigation lawyer rate of $435 an hour (a charge of $87).

Another five-line letter was billed at $184 for ”perusal” – that is a time charge of 24 minutes.

There was a charge of 18 minutes at the rate of $460 an hour for sending a four-sentence email to the Motor Accident Authority.

Back came the reply from the case manager at the authority. It simply said ”Rcvd”. A Keddies solicitor entered a charge in the ledger of $130.50 for reading the abbreviation ”Rcvd”.

Secretaries in the firm were being billed out at partners’ rates of $460 an hour charging for ”perusing and considering” two-line letters.

Recently retired NSW Supreme Court Chief Justice James Spigelman has regularly been critical of the whole notion of time-based billing, as has the Australian Law Reform Commission.  Spigelman quotes another judicial luminary in former High Court Chief Justice Murray Gleeson as observing that it is “difficult to justify a system in which inefficiency is rewarded with higher remuneration”.

However, none of that has ever perturbed state law societies.  When Spigleman first raised these concerns in 2004, the Law Institute of Victoria dismissed them out of hand:

Mr Dale said the current system was necessary to accurately measure the cost of cases that did not reach court.

He said it was his experience that lawyers did not take longer to do the necessary work for the sake of higher fees.

“Time costing is not the be all and end all, it’s not the final arbiter.

“Solicitors all over Melbourne might say that a case took a little bit longer to settle, but the final billing decision might be measured against the backdrop of what is appropriate in the case.

“There won’t be this religious adherence to the meter.”

More recently, when Spigelman CJ again raised his concerns on the verge of his retirement earlier this year, the New South Wales Law Society expressed similar sentiments (again reported by Ackland):

But many of his public pleas have been studiously ignored. Almost yearly he warns that lawyers are killing the golden goose by failing to control costs. He has also spoken out against time-based billing. On the last occasion he issued this warning the president of the Law Society stood up and made a strong pitch for the status quo. Criticism of time-based billing is often ”unpersuasive”, Stuart Westgarth told the same gathering at which Spigelman repeated his concern that legal costs were too high. Further, Westgarth added that under the new national scheme of professional regulation the balance may be tipped too far in favour of consumers and ”make it unreasonably difficult for lawyers”.

Australia’s mega-firms apparently advocate an even more extreme laissez-faire position on fees:

THE nation’s nine biggest law firms have accused the federal government of being prejudiced against lawyers as it moves to increase protection for clients.

The firms want to be exempt from tough rules protecting consumers, saying they should not be tainted by the sins of smaller players and that their clients are sophisticated enough to look after themselves.

In a letter to the secretary of the federal Attorney-General’s Department, Roger Wilkins, the firms complain that the regulation taskforce he heads has ”an unduly negative attitude towards lawyers, their business practices and their motivations”.

They argue its proposals reveal a string of prejudices, including that all lawyers are engaged in a lucrative industry and that this justifies complex regulation; that time charging is inherently unethical and exploitative; that lawyers need to be forced to charge their clients fairly, and that lawyers have an unfair bargaining position with their clients.

The proposals include requiring lawyers to charge proportionate, fair and reasonable costs, to ban them from charging for administrative tasks, and to require all bills to be signed.

The firms and the law societies say terms such as ”fair” and ”reasonable” are too subjective and that no other profession is subjected to such conditions. But if the changes are adopted, the firms say they should be exempt because their clients are savvier and do not need extra protection.

The views are contained in a letter obtained under freedom-of-information rules and written in December by Mallesons Stephen Jaques’s managing partner, Robert Milliner, on behalf of Allens Arthur Robinson, Blake Dawson, Corrs Chambers Westgarth, Freehills, Minter Ellison, DLA Phillips Fox, Clayton Utz and Deacons, now called Norton Rose.

Maybe the mega-firms have a point; their clients are typically major corporates well able to look after themselves and ensure they get value for money.  But time-costing has for years been the normal method of legal costing in most small and medium-sized law firms as well. Their clients are private individuals and small businesses who will usually have no reliable way of assessing whether they are being overcharged.

That might be OK too if Keddies was just an isolated and atypical example of a rogue firm.  They probably are at the extreme end of the spectrum, but my own experiences and observations over 20 years in private practice before entering academia were that some degree of abuse of time-costing is very widespread indeed.

It is said to be common in the interstate trucking industry for proprietors to set their employed and sub-contracted drivers impossible deadlines and low freight rates, giving them no practical choice but to engage in surreptitious overloading practices and amphetamine-fuelled flouting of rest stop rules.  But of course the proprietors would never condone such behaviour! Heaven forbid.

Many law firm partners engage in analogous practices. They set billings targets for their young practitioners which are almost impossible to achieve without “creative” completion of time summaries. Low level examples include treating a toilet break or trip to the coffee urn as a 6 minute billable unit on the file the solicitor is currently working on.  What’s a couple of extra units here and there, you might ask?  The answer: somewhere between $23 and $46 for every 6 minutes depending on which court scale applies.

Then there’s the practice of charging for “perusal” of incoming correspondence (see the Keddies examples quoted above).  Court costs scales have started to crack down on that particular rort. For example, the NT Supreme Court costs scale forbids a separate charge for perusing incoming correspondence. However that’s relatively easily subverted by training secretaries always to copy incoming letters to the client under cover of an automatically generated “circular” letter for which you can charge $12 (essentially for 60 seconds work by a secretary).

Why do the state law societies so staunchly defend the institution of time-based billing when there are viable and inherently fairer alternatives (see the last few paragraphs of this story)?  Not only is predatory time-costing a key reason for the profession’s dubious public reputation, it is also clearly implicated in the decisions of too many young lawyers (usually the keenest and most idealistic) to quit the profession after only a few years in practice, not to mention the high incidence of depression and even suicide.

It’s difficult not to conclude that the real reasons have much to do with the role of the law societies as both gamekeeper and poacher i.e.both regulator and combined lawyers’ trade union and employers’ association.  In other words, the law societies’ role involves an irredeemable three-way conflict of interest.  Unfortunately the profession, with ill-advised support from some judges, successfully resisted federal government moves to impose independent regulation as part of the National Legal Profession reforms.  Instead the profession will retain the numbers on the national regulator, and much day-to-day regulation will remain delegated to the law societies themselves.

The legal profession’s claim that independent regulatory oversight represents some fundamental threat to the citizen’s right to fearlessly independent legal representation is no more convincing than the current self-serving claims of the Murdoch and Fairfax empires that any effective checks and balances against print media abuses are somehow a threat to free speech.

It’s a fair point, but equally education, training and ultimately real jobs are the keys to relieving the drastic disadvantage and squalor that characterise nearly all remote Aboriginal communities.  It is incumbent on those who reject “tough love” measures with coercive elements to propose something else that may work.  We are currently dealing with two entire generations of Aboriginal Territorians who are functionally illiterate and innumerate and who mostly cannot even converse in English in any more than the most basic way.

On the other hand, persuading parents in remote communities that there’s any point in making their kids go to school when there is little or no genuine prospect of a real job at the end of it, and when the prevailing culture places little value on education or employment, is a tall order.  Moreover, as even middle class urban parents can discover, forcing a sullen, recalcitrant, unwilling teenager to attend and stay at school is next to impossible.  Should benefits be withdrawn in such situations?  How does a bureaucrat distinguish between irresponsible parents and defeated ones?  Even if that distinction can reliably be made, will there be arrangements to ensure that children from families whose welfare payments have been stopped are still fed, clothed and housed adequately?

On a wider level, Nicholson and others like long-time Intervention opponent Jon Altman have been calling for roll-back of NTER measures generally.  Altman claims that recent figures show the Intervention has simply failed.  But is Altman correct or is he just “cherry-picking” statistics that fit his long-held convictions?  A detailed independent evaluation of the NTER released this week tends to suggest the latter explanation.

The report was prepared under federal government auspices but researched and written by the Australian Institute of Criminology, the Australian Institute of Health and Welfare, the Australian Institute of Family Studies, the Australian Council for Educational Research, Allen Consulting Group, Colmar Brunton Social Research, and KPMG.

The report concludes, albeit with heavy qualifications, that the NTER/Intervention has been a worthwhile exercise and that recent and ongoing reforms to it are mostly on the right track.  I reproduce some key extracts below.

However I should first explain my own perspective and personal biases (we all have them).  I worked closely with Indigenous communities, organisations and individual leaders over almost 20 years as a lawyer in the Northern Territory before “retiring” to academia.  During that time I saw the situation in many if not most communities go backwards.  I don’t have any magical policy prescriptions, but I know from experience that previous ones simply haven’t worked.

The “self-determination” approach to Aboriginal affairs, which prevailed unchallenged from around 1970 until the last decade or so, was based largely on an ethical conviction of the justice and necessity not only of self-determining autonomy for Indigenous people but also on  achievement of symbolic goals like treaties, apologies and recognition of customary law.  However, at least in terms of practical outcomes it was arguably no more successful than earlier assimilationist polices.  The plight of Aboriginal people actually became progressively worse on many measures.  Of course, some supporters of that approach continue to argue that self-determination was only ever tried in a half-hearted, piecemeal, stop-start fashion.  There is probably some truth in those assertions in that ATSIC never had control of a wide range of service areas vital to Aboriginal health and well-being.  Nevertheless, one cannot argue convincingly that self-determination policies were a raging success.

Similarly, the Howard Intervention and its re-badging by the current ALP government as “Closing the Gap” has also enjoyed underwhelming success to date despite multi-billion dollar spending.

Part of the problem is the “top-down”, prescriptive, paternalistic nature of recent and current Federal programs.  Successive Productivity Commission  reports have found that the programs which work successfully in Aboriginal communities are those based on consultation, partnership, mutual respect and communities “taking ownership” of initiatives.  That must not obviate accountability or efficiency, but the two are not incompatible.

The Evaluation Report extracted below makes this and many other important points.  It is well worth reading in its entirety by anyone who aspires to a genuinely informed view of Indigenous policy:

Outcomes

Fourteen Remote Aboriginal and Family Community Workers (RAFCWs) were based in 13 priority communities under the NTER. These workers are providing services to the 13 priority communities and outreach services to an additional 20 communities as part of the priority community service model. Safe houses are also proving to be valuable community assets.

One hundred and ninety-two additional teaching positions have been funded. Additional professional development opportunities for teachers have been provided to improve the quality of teaching, and more housing has been constructed to encourage teachers to stay for longer. Overcrowding in schools has been reduced through the construction of new classrooms. The School Nutrition Program (SNP) has not increased attendance, but may have improved student behaviour and parental engagement with the school. Additional early childhood programs have had moderate take-up and reasonable support from parents.

Income management was supported by many people in the communities who believed that it was bringing about positive outcomes, especially for children although there are still problems in finding out the balance on a BasicsCard. Community stores now stock a wider range of healthy foods. …

Outcomes for health, education, employment, housing and safety showed some improvement but were still well below those for non-Indigenous people. …

In a survey of over 1,300 NTER community members, most people (58.7%) reported that they felt that their lives were better than they had been three years ago. A majority of people surveyed (72.6%) also said that their community was safer now than it had been three years ago.

As a result of the NTER, 18 communities gained a resident police presence for the first time. Other communities received more policing resources. Communities that did not have night patrols got them, and alcohol restrictions were more consistently enforced.

Some 10,605 children had at least one health check. A health condition or risk factor was identified for 97 per cent of children checked. Ninety-nine per cent of those children received some form of management during the check. Seventy per cent received at least one referral for follow-up treatment.

Of the children who had multiple checks, all those with trachoma and ringworm, 93 per cent of those suffering from scabies, 91 per cent of those with skin sores and 74 per cent of those suffering from anaemia had recovered by the time of the later check.

The percentage of Year 3 students in NTER schools who were at or above the national minimum standard in reading increased from 18 per cent in 2008 to 41 per cent in 2010.

Since the start of the NTER, 2,241 properly paid jobs have been created and 2,233 positions have been filled. From July 2007 to December 2010, 4,100 job placements were brokered.

According to the Community Safety and Wellbeing Research Study (CSWRS), most NTER residents surveyed said that it was easier to get help from the clinic, Centrelink and the police than it had been three years before. Respondents also reported that schools were better, and that youth schemes provided valuable activities for young people.

The number of simultaneous activities (many unrelated to the NTER), the long lag time between actions and outcomes, and the short duration of the NTER mean it is rarely possible to attribute outcomes to individual measures.

Acknowledging shortcomings

Educational attainment remains a key challenge. Average school attendance rates were low and have not improved since the start of the NTER. There has been some improvement in National Assessment Program—Literacy and Numeracy (NAPLAN) results for Year 3 reading in NTER schools since 2008, but most children in NTER schools do not meet national minimum standards for reading, writing and numeracy.

Problems with the implementation of the NTER relate primarily to poor consultation and the blanket imposition of a small number of initiatives. The initial rollout was marked by a sense of crisis that favoured short-term approaches with little consultation. This delivered much needed additional government services, such as police, teachers, night patrols and classrooms. Communities generally welcomed these additional government services despite short consultation periods.

However, for initiatives specific to the NTER communities—such as income management and signage outside communities referring to the alcohol and pornography bans—the abrupt, imposition broke trust and made some people feel that they had been unfairly labelled. Many people valued the measures, but the manner in which they were implemented caused problems. … [An earlier FaHCSIA report claimed strong majority community support for income management (around 2/3 support), but another report prepared by a body called Equality Rights Alliance reached an almost opposite conclusion]

Income management

But certain community specific measures were resented at first. One of the most controversial aspects of the NTER was the introduction of compulsory income management. Income management was initially imposed according to place of residence, and only communities on Aboriginal-owned areas within the Northern Territory were selected.

The income management measure is now seen as beneficial by many people, especially women. However, the initial selection of only Indigenous communities caused ‘widespread disillusionment, resentment and anger in a significant segment of the Indigenous community’.

Even in its original form, income management generated a mixed reaction. In a 2008 survey in six NTER communities commissioned by the Central Land Council, local residents were almost evenly divided between those in favour (51%) and those opposed (46%) to income management.

Significant changes to income management were introduced in 2010. Under the changes, a new scheme of income management was commenced across the Northern Territory—in urban, regional and remote areas—as a first step in a future rollout of income management to disadvantaged regions. The Racial Discrimination Act (RDA) applied in relation to the new scheme from its implementation in July 2010.

The future

Looking forward, new measures to improve enrolment and attendance at school and the extent and sustainability of the economic base are needed if the NTER is to fulfil its objectives. Education and jobs are critical to the wellbeing of communities. Housing also remains an issue of prime importance to communities.

Workforce shortfalls, especially shortfalls of suitably skilled Indigenous people, are evident in health, education, policing and governance. Yet there is low employment and low school attendance. There is potential for more Indigenous people to pursue careers that would assist their communities, particularly if they succeed in school.

Longevity of both programs and personnel has been demonstrated to work better than rapid change. Long-term commitment and evolution in accordance with community strengths and on timeframes agreed with communities have the greatest chance of bringing about sustained improvement.

The capacity of communities to build on government services will be essential to sustained improvement. Dodson and Smith have identified Indigenous governance as the key factor for the sustainable development of Indigenous communities: ‘Without improved governance capacity, there is unlikely to be sustained development, and valuable opportunities will be squandered.’

My conclusion?

In my humble opinion, there were two fundamental problems with the NTER as it was initially conceived and implemented.

The first was the excessively coercive, “top down”, confrontational approach that was adopted.  No doubt it reflected the military background of Minister Mal Brough.  His sincerity is undoubted, and he was equally undoubtedly right that drastic action was needed.  Moreover, maybe it needed someone like Brough to shock people out of entrenched postures and acknowledge that the Indigenous Policy Emperor really did have no clothes.  However the way Brough went about the task was the antithesis of the approach of consultation, partnership and mutual respect which both research and experience have shown is what actually works.

Brough’s second mistake was to label the situation and the government response to it as an “emergency”.  That created expectations of a “quick fix” which could never be realised.  It is more accurate to view the situation in remote Aboriginal communities as one of long-term, endemic chaos and dysfunction on just about every level.  Solutions will correspondingly be difficult, multi-dimensional, expensive and take a very long time to realise decisively positive results.  Anyone who claims to have all or even most of the answers is either naive, dishonest or both.

Australian legislation currently guarantees women the right to receive remuneration equal to that which men receive when women undertake roles which although different, are nonetheless of equal or comparable value to that of men’s roles.

However practical access to these rights remain limited primarily because of the difficulties posed by the requirement that a judgement be made about a woman’s worth versus a man’s.

THE EMPLOYMENT LAWS – the Australian Experience

The ‘Gender Pay Gap’ is the disparity between women’s earnings and men’s earning, which traditionally evidences that women are paid less for their participation in the workforce than men. It is this gap which has been the focus of much of the discourse in an Australian employment context in recent decades, and the problem which recent legislative changes has sought to alleviate.

The Gender Pay Gap can be explained in part by the different wages that men and women receive when undertaking employment which although not necessarily the same or even similar in role, is nonetheless the same, or similar in terms of its value, or worth.

In recognising and attempting to alleviate this persistent Gender Pay Gap Australia can be seen as relatively proactive in recent decades in terms of the legal underpinnings of such inequity.

Internationally, Australia ratified several Conventions, including the ILO Equal Remuneration Convention 1951 and the Convention On The Elimination Of All Forms Of Discrimination Against Women 1967 both of which expressly state the principle that men and women should be paid equal wages when the jobs they undertake are of ‘equal value’.

Before the Arbitration and Conciliation Commission in 1972, in what became known as the Equal Pay Case,[i] it was expressly accepted that where women are employed in a role of comparable value or worth to a role undertaken by men – although not necessarily the same or even similar in role – women should receive the same remuneration as men.

The legislature, in 1993, included a provision within the then Industrial Relations Act (Cth) accepting the position advanced by the Equal Pay Case.

Although since amended, this provision is now contained in the new Fair Work Act (Cth), and allows for orders to be made to ensure all workers receive equal pay when undertaking employment of equal or comparable value.

Whilst it is true to say that when women undertake the same employment as men they are paid the same, when it comes to women being paid the same as men when undertaking different roles, but nevertheless roles of equal or comparable value, the legal instruments which recognise and indeed promise equality for women, have largely failed to deliver.

Primarily this is because to ‘deliver’ requires employment, which may be quite different in terms of the roles, to be compared to one another, and one role declared to be of equal worth to another – for example, by comparing Nursing to Engineering both roles could be said to be of equal worth, and thus Nurses and Engineers should be paid the same. The difficulty is that there is, and always has been, a traditional reluctance to accept that females are comparable in worth to males, and therefore that female dominated employment is comparable in worth to male dominated employment.

ACCESS TO THE EMPLOYMENT LAWS – The Problem with Determining Worth

Evidencing the lack of practical access to their rights to equal wages for equally valued work are statistics which indicate the Gender Pay Gap in Australia is still considerable at around 17%.[ii]

Real practical access to rights to equal pay for jobs of equal worth is largely illusionary because of the hurdle women face in arguing that a female dominated job such as nursing is worth as much as a male dominated job, such as engineering. This hurdle exists by virtue of the fact that society has traditionally thought of men as far more worthy, and of far greater value than women, therefore employment which men are traditionally employed within are roles which naturally will be considered to be more worthy than those which women are the traditionally employed within.

Whilst persistently low female earnings generally, in comparison to male earnings can be explained in a variety of ways, the pay gap between particular male dominated and particular female dominated professions can be explained simply by the refusal of society to attribute equal worth to a job that women do, because women themselves are considered less worthy.

As a result of this considerable hurdle facing women in their claim for equal pay, many female dominated professions, seemingly ‘comparable’ in many respects to particular male dominated professions are not paid as such. For example, despite both being University degree educated, female dominated Nursing is paid around half that of male dominated Engineering.

Despite both being trade trained, female dominated hairdressers[iii] are paid less than male dominated mechanics[iv].

Despite both being University degree educated, female dominated teaching[v] is paid less than male dominated accounting[vi], in fact teaching is actually paid less than trade trained male dominated[vii] construction.[viii]

Despite both requiring short periods of training, female dominated enrolled nursing is paid less than male dominated policing.[ix]

Why are the theoretical rights women have to equal pay when undertaking equal worth roles not converting into practical access?

THE LIMITATION V THE EXPECTATION: The Law as Declarer, Not Enforcer

The difficulty with turning theoretical rights on the one hand into practical access to those rights on the other is that the law of itself doesn’t force compliance with the rules, rather its role, particularly in relation to non-criminal laws, is largely only declaratory.

The perception that the law, once declared, is the fixer of all ills is a common misconception, and one which women have arguably fallen victim to. Women appear to have assumed that the existence of various laws recognising their rights somehow meant they were now seen, and will now be treated, as being of equal worth as men. The law recognised it, therefore it must be so.

But that is not what the law achieves, the laws role is largely to declare, it is generally quite unable to enforce large scale compliance.

Even for the slightly more coercive criminal laws, the theoretical recognition of a woman’s right not to be assaulted by her husband for example, have not stopped husbands assaulting their wives. Husbands ask themselves ‘why should I stop assaulting my wife?’, if the answer is ‘because a law exists saying I shouldn’t’, far less compliance will occur than if the answer was ‘because my wife is worthy of fair treatment’.

All that is needed to stop the husband assaulting his wife, and for that matter to stop women being poorly treated in all aspects of their lives is just a change in attitude, which thereby brings about voluntary compliance.

That is not to say the role of the law stops at the mere declaration of the rights. Although the law of itself doesn’t enforce compliance, and therefore does little in terms of providing access to rights, it does have the ability to encourage large scale voluntary compliance by establishing social norms which recognise the worth of women.

LAWS ROLE IN SETTING SOCIAL NORMS – the Insistent Voice

It is an important, and significant, function of the law and also the courts to set social norms. In a practical sense, they do this by virtue of the authoritative voice with which they speak, or to quote Antony Duff: because the laws voice is an insistent one. [x]

Whilst the setting of norms can be of tremendous use to a society in terms of outlining acceptable forms of behaviour, norms can also create myths and misconceptions, and perpetuate a particular groups inequitable treatment, as has been the tradition in terms of women.

The ‘voice’ of the law and the courts has been very ‘insistent’ when it comes to issues of women’s rights and protections, or more correctly, very insistent that women have no rights, are not worthy of protection and therefore are of little worth.

For example, in criminal law context, the ‘marital rape immunity’ existed in Australia up until the 1980’s and provided immunity from prosecution to husbands who raped their wives, premised upon the idea that women had given up their right to say no to sex upon marriage. Furthermore, even when the rape laws did allow prosecution, unrealistic requirements establishing lack of consent, such as external signs of injury and corroborating witnesses, along with the victims prior sexual history being admissible evidence, meant the rape laws cast women as inherently unreliable witnesses and resulted in successful prosecutions being few and far between.

Quite apart from the laws of the time, the judiciary in the criminal context also went about setting social norms about women’s worth. In the 1840’s the Australian judiciary was of the opinion that ‘a husband has a legal right to beat his wife as long as it was not in a cruel or violent way’, and even by the 1990’s the infamous Supreme Court Judge, Justice Bolan seemingly advocated the same when he said that a husband, faced with his wife’s refusal to engage in sex, could attempt to persuade her with a measure of ‘rougher than usual handling’.

Property laws, appearing equally as sex biased, existed in Australia up until 1883 to preclude women from acquiring, holding or disposing of property. Until 1892 a woman was unable to claim maintenance from her husband unless he had deserted her, meaning those a woman fleeing violence was not entitled. Until very recently the superannuation a man accumulated over his married life, whilst his wife had reduced or nonexistent earning capacity by virtue of her child raising responsibilities, was not deemed to be part of the marriage property pool that could be distributed upon separation.

In terms of employment laws, up until 1969 the argument that women deserved an award wage equal to that of men when they undertook the identical role as men, was scoffed at by the courts, leaving women’s award wages at around 54% of the male award, later rising to 75%. Even by 1980, ANSETT Airlines were refusing to employ female pilots, simply on the basis that they were female.

Although Australia ratified two important International Conventions (mentioned earlier) recognising women’s rights to equality in the workforce, Australia’s ratification of those conventions came 23 years (and 16 years respectively) after the creation of the Conventions, indicating Australia’s persistent reluctance to recognise women’s rights to equal treatment.

The result of the foregoing examples is that the laws in pronouncing, for example, that women could not hold property, not only meant that legally women could not hold property, but it created a social norm that women were clearly less worthy, less able to be trusted and less intelligent, because what other reason would there be for refusing them the ability to hold property?; or for refusing their right to protection from violence?; or for refusing their right to equal payment for services?

Is it any wonder, after generations of the ‘insistent voice’ of the law educating us about the lack of a woman’s worth, that today, despite having laws prohibiting the assault of one’s wife; or laws insisting women are paid equally, women are still assaulted by their husbands and still paid less?

Hence Australia’s ongoing struggle to turn theoretical rights into practical access to those rights continues.

The solution, in part, rests with recognising that with the laws ability to set negative social norms about women and their worth, comes also the ability to set positive social norms.

If the current laws, the criminal laws, the tort laws, the property laws, the employment laws all declare protection and rights for women, a positive social norm about women’s worth will be created just as surely as the comments of the likes of Justice Bolan created the negative norms.

In this way, society will start to believe that women are worthy, and therefore be able to measure, without sex-bias, the worth of a Nurse against that of an Engineer.

DUPLICITY– The Insistent Voice Duplicated

Changing social norms does not happen overnight, and the process of doing so is made considerably more difficult if there are not feminist organisations, social justice groups, workplace unions and a multi-faceted approach by the legislature.

This is not a process which is complete in Australia, evidenced by the ever persistent gender pay gap which still means women in Australia earn less than men, but the process can be said to be well underway.

Referring again to the criminal law context, Australia has progressed from the misogynist ‘marital rape immunity’ laws to:

Recognition of the seriousness of husband-on-wife abuse which is now prosecuted through generic assault and rape provisions within legislation in every state and territory.

There have been amendments made to rape evidence laws removing the requirement for external signs of injury and corroboration in proving lack of consent.

Furthermore, sentencing provisions now categorise rape in the special category of a ‘serious violent offence’, meaning the offender is likely to serve a greater portion of their sentence before being granted parole.

Australia has gone from sex-bias criminal laws which allowed assault within marriage, to 98% of Australian’s recognising that violence against women is a crime. Major advertising campaigns encouraging Australian’s to ‘say no to violence against women’ illustrate wide spread and increasingly deep-seated societal support for such recognition. For example, the recent ‘I Swear’ series of advertisements, featuring well known Australian men swearing an oath – and encouraging others to swear an oath – against such violence, has been well received and acts as a powerful advocate in favour of the argument that women are worthy of fair treatment. This type of widespread media coverage, in conjunction with initiatives such as the Government’s National Plan to Reduce Violence against Women 2010‐2022, promoting zero tolerance to such offences, also indicates a clear re-evaluation of women’s worth.

In terms of the judiciary, we have gone from ill-informed white male judges to a judiciary which increases its female presence each year, and a High Court bench which since the inception of the first female judge in 1987, now has three female High Court judges (out of a bench of seven) sitting together.

In terms of property laws, Australia has progressed from the court refusing spousal support where the wife left as a result of violence, to:

Spousal maintenance being provided for within the Family Law Act (Cth), as well as provisions allowing for the husbands superannuation to form part of the marital property pool.

Property is divided, upon marriage break down, by need rather than by who ‘earned it’, and takes account of the non-financial contributions of the wife, such as homemaking and child rearing.

In fact, we have gone from property laws precluding women from acquiring, holding or disposing of property to a female, Ms Gina Reinhart, topping the ‘Richest Australian’ list in 2011 for the first time.

In terms of the employment laws which left women paid less than men when doing the same employment, Australia has progressed to:

A gender pay gap, which although still higher than some, is half that of Korea and Japan and still sits below the OECD[xi] average.

The Australian government offers paid maternity leave and means tested child care subsidies to allow mothers to participate meaningfully in the workforce, and participate in the workforce they do. Women now represent 50% of high school and university graduates and 45% of the workforce.

Their workforce participation has increased to the point where, during 2010, three of the eight states/territories were governed by a female premier, and also in 2010 Australia welcomed its first female, Ms Julia Gillard, to the ‘top job’, of Prime Minister.

CONCLUSION

In recognising that Australia’s employment laws promise the right for women to be paid the same as men when employed in roles of similar worth, there must also be recognition of the lack of practical access to those rights by virtue of the difficulty in attributing ‘worth’ to women, particularly when they are being compared to men. This is not a problem unique to Australia, it is shared worldwide, and thus lack of access to rights for women is unsurprising when we consider the social norms, set by the laws over many generations, which have acted to severely undermine women’s worth.

Where ever a law seeks to re-instate women’s worth, or provide equality, as employment laws necessarily must, it will face historic hurdles, requiring consideration of both the existing position of women in society and the limitations of the laws to achieve compliance.

Such employment laws require therefore, a duplicitous approach, whereby all laws work in support of each other. Only then will employment laws, such as those discussed herein, result in practical access to the rights promised, and thus acceptance that Nurses are worth as much as Engineers.

I was reminded of this only a few minutes ago when my increasingly desultory exam marking endeavours were interrupted by an almighty thump outside in the corridor.  It turned out that my colleague Shaune Williams was in the process of liberating a bar fridge from the office of another colleague unwise enough to depart for six months in Germany undertaking PhD research.  Shaune claims unconvincingly that our absent colleague consented, at least impliedly, to the post-departure removal.

However fridge antics have a much longer history than this.  My former Labor parliamentary colleague and Aussie Rules legend the late Maurice Rioli was a pioneer, as ABC politics guru Antony Green recounts:

He was succeeded by Maurice Rioli, a local legend after playing 118 games for VFL club Richmond, winning the Norm Smith Medal for best on ground in the 1982 Grand Final. Rioli was also the Brownlow Medal runner-up in 1983. However, Rioli’s nine years in politics from 1982 until 2001 were less impressive. Early on it was revealed he had pawned the parliament supplied fridge, television and microwave from his office. After initially claiming this was to fund a trip to the AFL grand final to present the Norm Smith Medal, he later admitted it was done to fund a gambling habit. The CLP never missed an opportunity to remind Darwin voters of the incident and Riloi retired at the 2001 election.

Rioli never faced charges. I can only assume that either his gambling addiction or sporting hero prowess were regarded as sufficient mitigating circumstances. More recently a Darwin Lord Mayor and former CLP politician in Peter Adamson wasn’t quite so fortunate.  He did a stretch in Berrimah Prison after liberating and pawning a fridge and a number of other items including a Darth Vader mask from Darwin City Council.  Apparently the case raised a number of fascinating criminal law issues.  It certainly generated a scholarly journal  article by then colleague Andrew Hemming (before he decamped to USQ).

The humble fridge has now achieved such legendary status in Darwin that an entire arts festival is devoted to celebrating its manifold virtues.  Personally I can’t get excited about fridges.  Their contents, however, are another matter entirely.  I must sign off now and go and liberate a glass of shiraz from the Head of School’s fridge. Cheers!

PS I should note that Antony Green’s article contains an uncharacteristic error. Maurice Rioli’s parliamentary career commenced in 1992 not 1982.

Mr Polyukhovich leave an Adelaide court, March 1992 (University of Melbourne archives)

Katy Barnett’s recent post on the seemingly increasing tendency of Australian parliaments to enact retrospective criminal laws provoked my interest. Arguably a Bill concerning “people smugglers” currently before Federal Parliament is the most troubling of these instances. As Barnett explains:

An Indonesian man, Jeky Payara, was charged with aggravated people smuggling pursuant to s 233C of the Migration Act 1958 (Cth) after he was accused of carrying 49 asylum seekers to Christmas Island in September 2010. In August this year, Payara sought to challenge the law on the basis that be argued was he was legally entitled to assist genuine refugees to reach Australia. He pleaded not guilty, and has not yet been convicted of any offence. The matter was referred to the Victorian Court of Appeal.

However, on 1 November 2011, the Federal Government hastily passed the Deterring People Smuggling Bill 2011 through the House of Representatives, with the support of the Federal Opposition (bipartisan support is a rare sight in these days). As with the previous Act, this Bill is intended to operate retrospectively (the new s 228B is to operate from 16 December 1999). Consequently the Age reports that Victorian Legal Aid, who was acting for Mr Payara, were forced to adjourn the proceedings before the Victorian Court of Appeal to await to see whether the legislation will successfully pass the Senate. With bipartisan support in the House of Representatives, it is difficult to see any obstacles to the legislation passing through the Senate.

I wouldn’t necessarily object at least on moral grounds if this was just closing a loophole allowing people smuggling “kingpins” to continue trading on human desperation and putting lives at serious risk.

However the “people smugglers” who come before Australian courts are not the kingpins but rather the “mules” who crew the boats.  They are generally poor, uneducated fishermen who are almost as desperate and lacking in viable choices as their asylum seeker cargoes. Do we really think irregular migration is such a serious problem that it’s desirable to demonise these people and flout a fundamental principle against retrospective criminal laws? The problem of retrospectively criminalising conduct that was not (or at least may not have been) a crime when committed is compounded by the fact that even minor involvement as a first offender in people smuggling now carries mandatory imprisonment for a three year term. It is a draconian combination for anyone concerned by basic human rights issues.

Some of the defendants are Indonesian children, and far more worthy of sympathy than the spoiled brat Australian teenager currently facing gunja charges in Bali whose family is about to profit to the tune of several hundred thousand dollars from selling his story.

I pointed out on Twitter that the High Court upheld retrospective war crimes legislation in Polyukhovich v Commonwealth (1991) 172 CLR 501. But that isn’t really an accurate account of Polyukhovich. Three Justices (Mason CJ, Dawson and McHugh JJ) held that Commonwealth legislative power extended to enacting retrospective criminal laws even though that concept might offend basic rule of law principles.  Another three Justices (Deane, Toohey and Gaudron JJ) held that a retrospective criminal law would offend the fundamental nature of judicial power and therefore could not be vested in a court exercising power under Chapter III of the Australian Constitution.  The seventh Justice, Brennan J, did not need to decide the retrospectivity point in that he held in dissent that the war crimes legislation could not be supported by any head of Commonwealth law-making power in any event (neither the defence nor external affairs power).

The war crimes legislation survived challenge because Toohey and Gaudron JJ held that it was not retrospective in the relevant constitutional sense.  Murder (which was effectively what Polyukhovich was accused of) was a crime in both Australia and Latvia, Lithuania or Estonia at all material times.  Moreover, the cold-blooded murder of unarmed civilians in war situations breached international law as well.  Therefore, according to Toohey and Gaudron JJ, it didn’t offend notions of judicial power to close a loophole (the fact that a murder committed in Europe was not until then a crime in Australia) and give Australian courts the power to adjudicate such an offence.

I suppose in one sense that’s a reasonable pragmatic solution to a thorny moral dilemma.  Do we really want to let World War II mass murderers escape justice for their crimes against humanity?  But the reasoning of Toohey and Gaudron JJ was not without its problems, as other Justices pointed out at the time.  For much of World War II, including the period when Polyukhovich committed his alleged offences, it was a defence in international law (and conceivably under the domestic law of Latvia, Lithuania or Estonia as well) if a person who committed what would otherwise be a war crime was acting under general orders of a superior officer. “I vas only doing vat I vas told” was a defence given short shrift during the post-war Nuremberg trials in relation to many associated with the Holocaust death camps, but not without formal legal weight at least for part of World War II.  The Australian war crimes legislation expressly excludes the “following orders” defence, and therefore in that sense goes further than the law did in World War II and does criminalise behaviour that would not have been criminal at the time it was committed. See War Crimes Act 1945 (Cth) especially s16.

There’s also a more general problem with the reasoning of Toohey and Gaudron JJ.  It potentially robs a prohibition on retrospective or “ex post facto” laws of any real force.  It would almost always be possible for governments to argue that conduct of the general sort in question (whatever it might be) is already criminal and that they are merely closing an unintended loophole.  For example, one could mount such an argument in relation both to the current people smuggling amendment and the social security amendment discussed in Katy Barnett’s post.

In fact there are powerful reasons for drawing a constitutional implication prohibiting retrospective criminal laws, whether grounded in the nature of Chapter III judicial power, the rule of law or a combination of the two. As Deane J argued (after discussing Bills of Attainder and Blackstone’s observations that retrospective criminal laws breached fundamental rule of law principles but were nevertheless within the legislative power of the UK Parliament):

Nonetheless, their Lordships’ comments – like those of Blackstone – are directly relevant to the determination of what lies beyond the limits of the legislative function under a constitution which, like ours, entrenches the doctrine [of separation of powers] and subjects legislative power to it. In that regard, it is important to note that their Lordships identified the central vice of a Bill of Attainder not as lying in its specific naming of an individual but as lying in its ex post facto operation as a legislative decree that an act which was not criminal when done was “voided and punished” as a crime. …

The position is less obvious where such a statutory provision does not nominate a particular person or group of persons but identifies the persons whom it makes punishable for past “crime” by reference only to their having committed some past act which was not criminal when done. In such a case, there will be a need for a trial to determine whether a particular accused falls within the class of those whose past conduct is retroactively made criminal. Nonetheless, such a statutory provision declaring past conduct to have been a criminal offence constitutes a usurpation of judicial power in that, once it is established that the accused has committed the past act, the question whether that act constituted a criminal contravention of the law is made simply irrelevant. To that extent, curial determination of criminal guilt is ousted by legislative decree. The point can be illustrated by dividing the legislation in such a case into its essential components. One component of such legislation is the requirement that there be a “trial” in the courts, in which judicial process must be observed, to determine whether it is established beyond reasonable doubt that a particular person knowingly engaged in the designated conduct. The second component is the enactment that, if it be established that the particular person did in fact engage in that past conduct which was not criminal when done, he is guilty of a punishable crime. That second component of the legislation invades the heart of the exclusively judicial function of determining criminal guilt, that is to say, of determining whether past conduct constituted a criminal contravention of the law. It pre-empts and negates what would otherwise be an inevitable judicial determination that, since the act of the particular person did not constitute a criminal contravention of any Commonwealth law which was applicable at the time when it was done, that person committed no crime under our law. In the place of that inevitable judicial determination, it imposes a legislative enactment of past guilt which it requires the courts, in violation of the basic tenet of our criminal jurisprudence and the doctrine of separation of judicial from legislative and executive powers, to apply and enforce. It is simply not to the point that the first component of the legislation camouflages the usurpation of judicial power involved in the second by requiring a display of the full panoply of judicial process for the purpose of determining whether it is established beyond reasonable doubt that the accused person knowingly did a specified act which was not criminal when done.

Brennan J may well have reached a similar conclusion had his reasoning path required him to decide the retrospectivity point in Polyukhovich. Towards the end of his judgment he said:

The means which the Act adopts to secure future adherence to the laws and customs of war not only trample upon a principle which is of the highest importance in a free society, namely, that criminal laws should not operate retrospectively, but also select a specific group of persons from a time long past out of all those who have committed, or are suspected of having committed, war crimes in other armed conflicts. Respect for the laws and customs of war cannot be secured by a law having such an oppressive and discriminatory operation.

Accordingly, as far as I can see there is scope for a High Court challenge to the Deterring People Smuggling Act 2011 once enacted.  We may well see such a challenge in the near future, and it may well lead to a further implied constitutional restriction on Commonwealth law-making power (and possibly State power as well if the Kable doctrine is invoked). Not before time as far as I’m concerned.

Postscript -  Mr Polyukhovich was eventually tried and acquitted of the war crimes with which he was charged.  This story provides some of the human dimension:

Mr Polyukhovich, 77, and his family have refused to speak to reporters but the family agreed late yesterday to answer questions from the Herald put through his lawyers.

They said the personal cost to the family had been enormous. The strain and emotional upheaval had destroyed his health.

Court proceedings, both at committal stages and during his trial, had been interrupted as Mr Polyukhovich suffered two suspected heart arrests, gastroenteritis and high blood pressure.

At one stage, a doctor was required in court to monitor his blood pressure. In 1990, Mr Polyukhovich was hospitalised for three months. The defence has continued to deny prosecution allegations that the injury was part of a suicide attempt while Mr Polyukhovich was suffering from dementia and depression.

Throughout, he had remained largely impassive but was concerned when his wife, Maria, became distressed.

His family said he now wished to just live quietly tending his vegetable and flower gardens and looking after his bees in his north-western Adelaide home.