theverdict
double jeopardy
still on centre stage
bullying
the legality of war
youth justice
magistrates’ views on domestic violence
drug testing legislation
research strategies
and much more
published by
issue 2 winter
2003
issue 2 winter
2003
welcome
to a bumper issue of the verdict. This edition is packed with
articles on current law and legal issues covering a wide range of
legal areas. Best of all, using the latest internet technology, it is all
at your fingertips.
Download the verdict at your own convenience and file it. Use it in
the classroom or for research. The new state-of-the-art
Queensland Law Society website also provides you with a
convenient search facility which will help you find exactly what
you’re looking for quickly and easily.
what’s inside?
feature articles
3
spotlight on double jeopardy
6
bullying
why is it still centre stage?
by Ann Black
there are no winners
by Glenn Ferguson
In this issue our feature article, ‘Spotlight on double jeopardy –
why is it centre stage?’ puts you in the picture on the double
jeopardy debate. Using “the case that alarmed the nation” as stimulus, the article leads
you to question: why is there so much controversy over an age-old rule of law?, do we
need this rule?, what, if any, reforms are necessary?
8
domestic violence
11
youth and societ y
Having trouble with the legal terminology in some of the articles? Don’t forget that each
edition of the verdict has a legal glossary at the back to help you increase your
understanding of the law.
13
oh what a lovely war
15
we’ve won the war
18
the rules of war
22
refugees
25
an open window
27
family law
30
cyberlaw
PS. Last month I was delighted to meet many of the State’s Legal Studies, SOSE and
Business Education teachers at demonstrations of the new QLS Schools & Higher
Education Service across the state. Teachers’ reactions to the new website and service
were overwhelmingly positive.
32
stategies for successful
QLS thanks the legal educators of Queensland for their support of, and valued input into, our
Schools & Higher Education Service. Keep the requests and suggestions coming.
40
aboriginal justice & sentencing
42
major reforms mooted
Students, do you like a mental challenge? How good is your knowledge of legal trivia? Try
our crossword competition and test your legal investigation skills. Entries close 15 July.
And every entry wins a prize.
Find out how the fine art of questioning witnesses in a courtroom can double as a
rehearsal for a stand-up comic routine. Our Heard it in Court column will have you
giggling – there is a lighter side to our legal system. You won’t believe what you read!
Do you have any burning questions about the law and the legal system? the verdict now
enables you to satisfy your curiosity. Just send us your questions and in every edition we’ll
publish ‘your questions answered’ - see inside for details.
All of this and so much more… enjoy your ‘law zone’ - the verdict is your link to current law
and legal issues.
Yvette Holmes
Schools & Community Education Officer
Queensland Law Society
Teachers - use the discussion forum on the website to post requests, make suggestions or
stimulate debate over a legal issue.
Students - email us at [email protected] with your suggestions. We’ll try to fulfill your
requests and provide you with quality, up-to-date legal education materials.
the view of Queensland magistrates
by Dr Belinda Carpenter & Rachael Field
a broad overview
by Lorraine Robinson
want to join in?
by Cameron Crow ther
but did we break the law?
by Daphne McKenzie
and war crimes
by Michael Barnes
rights and responsibilities
by Anthony Cassimatis
at death’s door?
by Ian Muil
the four great myths
by Prof John Wade
and email disclaimers
by Dr Alan Davidson
legal research on the web
by Natalie Cuf fe
submissions in the gulf country
by Meg Frisby
for a ‘hands on’ parliament
by Karen Struthers
regular features
Contact us via email [email protected], telephone 3842 5816 or fax 3229 4737
theverdict
Editor Ian Muil
Graphic Designer Mark Bailey
Published by the Communications Unit of the Queensland Law Society
Executive Manager, Communications Daphne McKenzie
QLS Schools and Higher Education Service
Schools & Community Education Officer Yvette Holmes
Communications Assistant Lorraine Woodmass
35
44
46
48
50
51
52
independent study
legal histor y
celebrit y suits
crossword competition
teacher profiles
the essential links
legal glossar y
crime & society
spotlight on double jeopardy
why is it still centre stage?
by Ann Black
Dr Ann Black is a lecturer in
law at the University of
Queensland. She specialises
in criminal law, alternative
dispute resolution and
comparative law, including
Islamic law and the law and
legal systems of Asia. She is
a co-author of volumes one
and two of the 2003 editions
of ‘Legal Studies for
Queensland’.
For centuries the well established rule
of double jeopardy has been
accepted in all common law
jurisdictions.
This year it is under review.
That’s because of a number of recent
high profile cases in Australia and
Britain in which the rule has been
used to prevent conviction of persons
believed to be guilty.
There has been outrage from victims
groups. The media has taken up the
cause. Politicians too, including State
Premiers and Attorneys-General have
entered the debate sometimes using
removal of double jeopardy as a
populist plank in election campaigns.
Prime Minister John Howard, himself
a lawyer, has come out in support of
reform. Law yers and judges have
contributed to the debate with two
former Chief Justices of the High
Court of Australia, Sir Anthony
Mason and Sir Harry Gibbs, calling
for discussion on how best to reform
the double jeopardy rule.
In Australia, the case that focused
attention on double jeopardy is one
from Queensland. It is a shocking
case involving the abduction, sexual
abuse and murder of 17-month-old
baby Deidre Kennedy. It has been her
mother’s quest over 30 years to bring
to justice Raymond Carroll, the man
both she and Queensland police
believe to be the murderer.
It has been argued that the
application of the double jeopardy
rule in this case has allowed the
baby’s murderer to escape justice,
making a mockery of our criminal
justice system.
The murder took place in 1973 and
there have been a series of court
cases stemming from it. These
culminated in December 2002 in the
High Court of Australia. This may not
theverdict winter 2003
yet be the end of the matter, as
preparations are underway for a civil
trial against Carroll for wrongful death
- similar to the civil action brought
against American sporting and movie
star O J Simpson after a jury
acquitted him of murdering his wife.
‘The Australian’ newspaper believes
so strongly that a miscarriage of
justice occurred that it is funding the
civil trial. A civil trial is possible as
double jeopardy applies only to
criminal trials.
To understand the operation of
double jeopardy it is helpful to know
more about the case that has caused
so much controversy over an age-old
rule of law.
The case that alarmed the nation
In 1973, the nation was shocked and
sickened by the brutal death of 17month-old baby Deidre. She had
been taken at night from her cot,
sexually abused, strangled to death,
dressed in stolen female underwear,
then abandoned on the roof of a
toilet block.
After years of investigation Raymond
Carroll, a 17-year-old RAAF
electrician at the time of the murder,
was charged. He denied involvement
and gave evidence under oath at his
trial to that effect.
The jury returned a verdict of guilty.
On appeal the Court of Criminal
Appeal of Queensland overturned the
conviction1 because of differences in
expert opinion over whether bite
marks on the baby’s body precisely
matched those of Carroll’s teeth.
As well, the Court ruled inadmissible
the testimony of Carroll’s first wife
who said he had bitten the thighs of
his own baby daughter after locking
himself in a bedroom with her.
Although the prosecution was able
page 3
crime & society spotlight on double jeopardy
to prove the untruthfulness of
Carroll’s original alibi of being in
South Australia at the time of the
murder, the Court of Criminal Appeal
acquitted him of murder.
The police were still convinced that
Carroll was the killer. The case was
then re-opened when witnesses who
claimed Carroll had admitted his guilt
to them came forward and when
advances in forensic evidence
confirmed a strong match with the
bite marks. However, the double
jeopardy rule meant Carroll could not
be charged with her murder a second
time, despite this new compelling
evidence.
To get around the double jeopardy
rule the Crown decided to charge
Carroll with perjury. Perjury is lying
under oath – in this case when, as
the accused, he gave evidence under
oath.
The Crown’s case was that Carroll’s
evidence in his murder trial, that he
did not kill Deidre, was knowingly
untrue testimony. Carroll’s counsel
submitted that the indictment for
perjury should be stayed, meaning
stopped, from going to jury trial;
however, the trial judge ruled that
double jeopardy did not apply
because the evidence in 2002 was
different and stronger than that
presented at the first trial.2
For a second time a jury found
Carroll guilty. And for a second time,
the Queensland Court of Appeal
rejected the jury decision and entered
an acquittal instead. The appeal
judges concluded that the perjury
trial was effectively a re-trial and
therefore an abuse of process as ‘the
principle of double jeopardy’ had
been substantially breached.3
The rule has now been portrayed as
an out-of-date technicality or
‘loophole’ that enables criminals,
even murderers, to go free. But
many, particularly eminent law yers
and judges, oppose any change to
this rule.
Do we need this rule?
The rule is ancient. It goes back to
Roman times. Blackstone, a famous
English jurist, in 1769 wrote that it is a
fundamental principle of law that no
person “is to be brought into
jeopardy of his life, more than once,
for the same offence.”
If this occurs an accused is entitled
to plead that they have already been
convicted (autrefois convict) or
acquitted (autrefois acquit) of that
matter. The rule prevents multiple
prosecutions. It means that if you
have been convicted of an offence
you can not be tried or sentenced
again. And if you have been
acquitted you cannot be tried again,
even if further relevant evidence
becomes available later.
Queensland’s Criminal Code
incorporates the common law in
through sections 16, 17 and 598.
Taken together, they give effect to the
rules commonly encompassed by
the expression ‘double jeopardy’.
There are several powerful reasons
for the rule.
an accused. Because the State has
greater resources and power, it
would be oppressive if an accused
could be subjected to repeat
investigations and repeat trials. The
imbalance can also exist in areas
such as DNA evidence as an
accused normally lacks the forensic
resources and technology available to
the State.
Linked to this is the concern that if
prosecutors knew they would get a
‘second bite at the cherry’ they might
be less thorough, even sloppy, first
time. It has even been suggested it
could result in police or prosecutors
abusing their powers by withholding
evidence as ‘insurance’ in case a
second trial is needed. However, the
courts have an inherent power to
prevent an abuse of process and it is
unlikely prosecutors would take such
obvious risks.
The second reason for the rule is all
cases before courts of law are
entitled to a decision that is “final,
binding and conclusive’.5
This is the principle of res judicata,
which means ‘it is decided’. Finality
is seen as a way of preserving
confidence in the legal system. It also
ensures effective use of court time
and resources. Even where a court
outcome may be found wanting
or ‘imperfect’ finality
remains essential.
The first lies in the power imbalance
between the accused and the
prosecution. Our criminal trials are
adversarial and it is the State
which must prove the
charge against
In 2002, the case went on appeal to
the High Court of Australia which
upheld the decision of the Court of
Appeal. McHugh J said: “The longestablished policy of the law is that
an acquittal is not to be contradicted
or undermined by a subsequent
charge that raises the same ultimate
issue or issues as was or were
involved in the acquittal.”4
This has not given comfort to those,
including the baby’s mother and the
trial judge, Angelo Vasta QC, who
remain convinced that Carroll is the
baby’s killer.
theverdict winter 2003
page 4
crime & society spotlight on double jeopardy
Finality is also important to the
individuals. An accused needs to
know that the emotional and financial
drain of a criminal trial has ended, so
normal life can be resumed and
reputation preserved.
notes
1 Carroll (1985) 19 A Crim R 410
2 Carroll (2000) 115 A Crim R 164
3 R v Carroll [2001] QCA 394
4 R v Carroll [2002] HCA 55
5 R v Carroll [2002] HCA 55, 6.
6 The Ampthill Peerage [1977]
AC 547, 569
7 The Australian 10 April, 2003, 6.
8 The Courier-Mail 10 April, 2003, 4.
theverdict winter 2003
At the end of the day
The longevity of the rule and the
reasoning of Lord Wilferforce are
rejected by those seeking reform.
They argue that in serious criminal
matters, such as murder, the
interests of justice are best served by
allowing the court to get to the truth.
Allowing a retrial where compelling
new evidence can be tested in a court
of law would be a minor concession
to justice in a system already heavily
weighted in favour of the accused.
Given the momentum for reform it
seems inevitable that the principle of
double jeopardy will be changed, or
at least refined.
This view has won the day in England
where legislation has been enacted
to allow for retrials in cases such as
murder, manslaughter and gang
rape, where compelling new evidence
has come to light.
The Carroll case has resulted in a
groundswell of support for reform in
Australia. Prime Minister Howard has
said he favours changing the rule. He
has reportedly said: “Justice is not
served by demented, dogmatic
adherence to legal principles simply
because they have been around for a
long time.”7 And NSW Premier Bob
Carr has already drafted a reform bill
based on the English model.
In Queensland, after expressing initial
caution Attorney-General Rod Welford
has called for a full review of the
principle of double jeopardy. He
proposed that all Attorneys-General
in Australia, meeting as the Standing
Committee of Attorneys-General,
consider adopting a national
uniform approach to reform of this
aspect of law.8
That Committee, known as SCAG,
has now referred the matter to a
specialist committee to prepare a
report on the possible options for
reforming the double jeopardy rule.
A-G Welford has indicated that
Queensland will consider the option
of allowing a person found not guilty
of a serious crime to be later charged
with perjury if it is shown they lied at
the first trial. But he has also
stressed the importance of the
principles underpinning the double
jeopardy rules.
An indication of public feeling for
reform can be seen in a petition
circulating in Queensland demanding
that the State government change the
law on double jeopardy.
Provided there can be agreement on
what amounts to ‘compelling new
evidence’, the specific ‘serious
offences’ for which a re-trial should
be allowed, and the role of perjury at
trial, the criminal law seems destined
to change around Australia.
But any change would not be made
retrospective so the case that
brought double jeopardy into the
spotlight will not benefit from the
reforms and Raymond Carroll will
remain a free man.
It seems the only way baby Deidre’s
mother can get public
acknowledgement that he is guilty as
charged all those years ago is
through our civil courts.
So perhaps the case is not totally
closed after all.
did you know?
This was expressed by Lord
Wilberforce and cited with approval
by Chief Justice Gleeson and Justice
Hayne of the High Court:
“Any determination of disputable fact
may, the law recognises, be
imperfect: the law aims at providing
the best and safest solution
compatible with human fallibility
and having reached that solution it
closes the book. The law knows,
and we all know, that sometimes
fresh material may be found, which
perhaps might lead to a different
result, but, in the interest of peace,
certaint y and security it prevents
further inquiry. It is said that in
doing this, the law is preferring
justice to truth. That may be so:
these values cannot always
coincide. The law does its best to
reduce the gap. But there are cases
where the certaint y of justice
prevails over the possibilit y of truth
... and these are cases where the
law insists on finality.”6
Reform is in the air
More than 6,000 solicitors
practise in Queensland.
This includes 2,122
partners or sole
practitioners, and 2,626
solicitors employed in
private law firms,
corporations or
government departments
Queensland solicitors can
practise in more than 30
different areas of law
The word ‘lawyer’ is a
general term used to
describe both solicitors
and barristers
Generally it takes four
years of full-time study
plus professional and
admission requirements
(an extra six months to
two years) to become a
solicitor or a barrister
Queensland has 24
Supreme Court judges,
35 District Court judges,
and 76 magistrates
page 5
crime & society
bullying
there are no winners
by Glenn Ferguson
Glenn Ferguson is a partner
in the law firm Ferguson
Cannon O’Connor and
Deputy President of the
Queensland Law Society.
“This is a tragic case from every
perspective.”
These are words you rarely hear as an
opening remark from a prosecutor in
a murder case. The remark depicted
the sad nature of a recent case in
which a 17-year-old boy, referred to
as ‘R’, was sentenced to seven and a
half years jail for the murder of an
18-year-old boy who had subjected
R to constant bullying for six months
leading up to the tragic incident.
Unfortunately, the facts of this case
reveal a position in which an
increasing number of young people
seem to find themselves in modern
society. There is no doubt that we are
all more conscious of bullying and its
affect on young people. However,
this consciousness has not seemed
to stem the tide of bullying.
In recent times unfortunate incidents
around the world have shown that
bullying and subsequent retaliation by
those bullied often ends in tragic and
fatal outcomes. Nowhere has this
been more obvious than in the
United States of America through
such tragedies as the Columbine
high school massacre.
The trial of R was heard before Her
Honour Justice Holmes in the
Supreme Court in Brisbane on 31
March 2003.
The facts of the case, outlined by Her
Honour, were that R was a Year 11
student who was 16 at the date of
the murder. He spent a considerable
amount of time with the victim and
another boy whom he had known for
12 months prior to the murder.
The victim and the other boy were
both unemployed and older. In the six
months prior to the murder R was
regularly bullied by the victim and the
other boy. He was punched, taunted
and forced to hand over money.
theverdict winter 2003
According to the prosecutor R said
they regularly swore at him which
gave him “the shits.”
“R said they would show up at his
house without warning, always
asking for money. They would usually
want $25 which he said was the price
of a stick of marijuana… he said they
would go through his room looking
for his things.”
On the evening of 24 March 2002 R
had been home at his mother’s unit
and had drunk a substantial amount
of alcohol - nine to ten ‘shots’ of
Sambucca and a half bottle of
butterscotch schnapps.
“He appears to have been a binge
drinker. He said that he would drink
up to three times that amount and he
didn’t feel drunk.”
Later that night the victim and the
other boy visited the unit. The other
boy left leaving R and the victim
alone. The victim allegedly
punched him a number of times in
the stomach then put him in a
headlock, demanding that he give
him his Discman.
This proved to be the breaking point
for R who now decided it was the
last time he would be bullied. He
told the victim he would get the
Discman. He went upstairs to get it
but then also took two steak knives
from the kitchen and secreted them
in his pocket.
R and the victim left the house and
started to walk to a nearby football
field. At the field R took the knife
from his pocket and plunged it into
the back of the victim’s neck.
The blade traveled through the
cervical vertebrae and the vertebral
artery, which supplies blood to the
brain, into the mouth. The victim
staggered for some distance before
collapsing. There was nothing that
page 6
crime & society bullying
could be done for him and he died.
She said the victim had been
planning to move in with his friend: “It
was a very exciting time for him. He
had done some information
technology courses and he was a
popular boy with lots of friends.”
“The material also indicates that he
was a person who had some friends,
but was still very much an outsider in
the world. He was bullied by people
who saw him as vulnerable and
weak. Because he endured that with
little apparent resistance, most
people around him thought that he
didn’t mind what was done to him. In
reality he was miserable, he was
frustrated and he was very angry.
“He saw A (the victim) as his chief
tormentor and his chief response to
that was a premeditated execution. It
was both brutal and chilling and it
was remorseless.”
The prosecutor told the court that
witnesses described R as “placid,
gentle, or a sook….they seem to
think he put up with it because
he didn’t mind what was being done
to him.”
But the prosecutor also told the
court that the victim’s death “has had
dreadful consequences for his family
as one would expect. There is
heartbreak, there has been a
destructive impact on the family
because nothing can compensate for
this loss.”
theverdict winter 2003
do some research
Before he died a number of people
came to help him. One of them
phoned an ambulance. That call was
recorded and in the recording the
voice of the victim, though choking
on his own blood, was heard clearly The barrister representing R told the
repeating the name of his attacker, R. court that R’s response to the
bullying was out of character. He said
R was arrested later that night. After
R’s school’s database of students
initially denying any involvement with
with behavioural problems had no
the murder he made full admissions
record of R and “his form teacher
to the police, telling them: “It got to a
informed that R was always quiet and
point, it was either him or me.”
reserved. She had never had any
The comments of the prosecutor
behavioural problems with R.”
are interesting.
Her Honour, sentencing R,
She painted a picture of R as follows: acknowledged that murder is the
“The picture from all of the material in most serious of offences but she
this matter is one of a boy who has
“could not lose sight of the fact that
fallen between the cracks. He had a
he himself (the victim) was only 18”.
family who loved him but it appears
Her Honour went on to say: “The
he was under-parented, that he was
penalty must be a real one reflecting,
isolated from the normal social
although it cannot remedy, that
supports that most teenagers have.
impact, and also the need for
He lived alone with his mother from
deterrence of young people against
the time he was a small child. His
the use of knives in reprisal.”
mother suffers from bipolar disorder.
She, during R’s life, has had serious In considering the sentence she
episodes of illness which she’s had
considered a number of matters in
to deal with.
mitigation. They were:
• R’s youth at the time – he was 16.
• he pleaded guilty at an early stage
and had no previous convictions.
• he had not displayed any previous
disposition to violence and
witnesses described him as being
“a nice person who wouldn’t hurt
anyone,” “harmless,” “gentle,
sensitive and considerate.”
• the report of a psychiatrist which
described the crime as “an
incongruous, desperate event, out
of character and provoked by
perceived overwhelming stresses.”
The judge, sympathetic to R’s
personal circumstances, said she
also had to give weight to the
deterrence factor in sentencing for
such a serious crime.
The judge’s last words to R were: “Mr
R, if you would stand up. The
sentence I impose on you is seven
and a half years’ detention, because I
will make no order for earlier release.
You will have to spend 70% of that
time in actual custody. Do you
understand that?”
R responded: “Yes.”
Resources and web sites on bullying
There are an overwhelming number of resources and web sites on bullying. The following
list represents just a few of the sites available that will assist you with your research.
Australian resources
• Ask ERIC Education Information – comprehensive resources on bullying
http://ericir.syr.edu/cgi-bin/print.cgi/Resources/Educational_Management/
Student_Behaviour/Bullying.html
• Bully Busting www.millnthps.sa.edu.au/websites/health/bully_busting.htm
• ‘Bullying is a serious issue and it is a crime’ www.caper.com.au/law.htm
• Bullying – Everybody’s Business www.kidshelp.com.au/INFO7/contents.htm
• Bullying – Knowledge is Power www.dotu.wa.gov.au/know/bully.html
• Child and Youth health on bullying www.cyh.com/cyh/parentopics/
usr_index0.stm?topic_id=15
• Cubby House www.headroom.net.au/cubby/
framejamming_bully.html?bully_cubby.html~bully_cubby
• Curriculum Exchange: Hot Topics: Bullying www.education.qld.gov.au/tal/tips/hot_topics/
01118.htm (ask your teacher for your AccessClub EQ student password)
• Kids Help Line: Bullying information sheet www.kidshelp.com.au/info7/bully.htm
United Kingdom resources
• Lawstuff: Find out about bullying www.kidscape.org.uk
• Bullying at school at www.scre.ac.uk/bully
New Zealand resources
• The no-bully website at www.nobully.org.nz
North American resources
• ‘Where you are not alone’ www.bullying.org
• Search the US Department of Education Cross-Site Indexing Project
http://search.ed.gov/csi/eric.html
page 7
crime & society
domestic violence
a study of the view of queensland magistrates
Dr Belinda Carpenter & Rachael Field
Dr Belinda Carpenter BHMS (Hons,
First Class) PhD (Griffith) joined the
Justice Studies School of
Queensland University of
Technology from Flinders University
in 1995. Her doctorate, completed
at Griffith University in 1994,
explored the relationship between
theory, policy and legislation
dealing with prostitution. Her book,
‘Rethinking prostitution: feminism,
sex and the self’ was published in
March 2000. Current research
interests include issues of sexed
justice, particularly domestic
violence, and a continuing interest in
prostitution. She is also researching
issues related to teaching in higher
education.
Rachael Field BA LLB (Hons) (ANU),
LLM (Hons) (QUT) has been a
lecturer with QUT’s Justice Studies
School since 1998. An admitted
barrister in the ACT she previously
practised as a solicitor in a family
law practice. She has also worked in
a number of different legal contexts,
including with the Women’s Legal
Service in Brisbane, the
Ombudsman, the Information
Commissioner, the alternative
dispute resolution branch of the
Department of Justice and
Attorney-General, and the Litigation
Reform Commission. She chairs the
Faculty of Law Equity Committee
and is a member of the Women,
Children & the Law Research
Concentration. She has published
articles in the Australian Business
Law Review, the Alternative Dispute
Resolution Journal, the QUT Law
Journal, the Legal Education Review
and the Family Law Journal.
theverdict winter 2003
In May and June of 2000, Rachael
Field, Belinda Carpenter and Susan
Currie from the School of Justice
Studies, Faculty of Law, QUT
surveyed Queensland magistrates
on their views on domestic
violence, the first time such a
project has been undertaken.
Survey questions were based on a
similar study by the NSW Judicial
Commission in 1998. In total, 38 of
Queensland’s 96 magistrates
responded, a representative
response rate of 40%.
The main findings of the survey
were that:
• magistrates believe they are
adequately trained to deal with
domestic violence issues.
• magistrates are wary of too much
contact with the community,
believing this can decrease
their objectivity.
• magistrates consider their judicial
role to be crucial in their work in the
area of domestic violence.
• some magistrates see domestic
violence as a private dispute
between the parties that can be
addressed by informal dispute
resolution processes such as
counselling and mediation.
• many magistrates believe women
are using domestic violence
proceedings as a tactic in family
law matters.
• magistrates are reluctant to issue
ouster (removal) orders except in
cases of severe physical violence.
• magistrates are concerned about
the workload associated with
hearing domestic violence matters.
• magistrates have a limited
understanding of domestic violence
issues for indigenous women.
• magistrates support the
work of police in the area of
domestic violence.
Some of these issues indicate that
further research and more training of
judicial officers in the Magistrates
Courts is required to ensure that
domestic violence matters are
processed equitably.
Two particular current and
contentious issues are the belief
that women use domestic violence
proceedings as a tactic and are
reluctant to issue ouster
orders except in cases of severe
physical violence.
Women using domestic
violence proceedings as
a tactic
Nearly 75% of magistrates agreed
with the statement that “domestic
violence protection orders are often
used in Family Court proceedings
as a tactic to aid their case and
deprive their partner from contact
with the children.”
Further, references made in
responses to other questions reflect
this belief. For example: “The parties
involved in family law proceedings
manoeuvre themselves into
advantageous positions by the use of
DV legislation.”
These views of magistrates are of
significant concern, particularly
because they contradict other
research on domestic violence. For
example, Melville and Hunter’s (2001)
research has shown that in family law
cases where domestic violence is an
issue, women are often reluctant to
take out protection orders.
They conclude that “there is a lack of
empirical evidence to suggest that
women believe that allegations of
domestic violence provide an
page 8
crime & society domestic violence
advantage in family law proceedings,
or that they fabricate allegations to
gain tactical advantage.” (Melville &
Hunter, 2001:128).
it means that if a woman chooses to
raise the issue of domestic violence,
even though legislation now
acknowledges its importance, she
risks being considered by the
Court as a person who is not
prioritising the rights of her children,
and as someone who is difficult
and uncooperative.
Other studies, such as those of
Stubbs & Powell (1989), Wearing
(1992), Hume (1995) and Trimboli &
Bonney (1997) have all found that
women are often reluctant to take out
protection orders and consider such
In summary, women have been
action to be a last resort, not an issue shown to be reluctant to raise issues
of tactical advantage.
of domestic violence in Family Court
proceedings but when they do are
There is an explanation why domestic
probably doing so on the imperative
violence issues are increasingly being
of the legislation. They take the risk,
raised in Family Court cases: in 1996
however, of then being seen to
family violence was made a relevant
violate a fundamental guiding
consideration when determining the
principle of the Family Law Act.
best interest of children in contact
and residence matters.
There is little ‘tactical advantage’ in
any of this. So, if there is no benefit
So it’s not because women see
to raising domestic violence issues in
domestic violence as giving them a
Family Court proceedings why do
tactical advantage in Family Court
magistrates think women use
proceedings but because legislation
domestic violence proceedings as a
now acknowledges the need for the
tactical advantage?
Court to consider violence in
determining a child’s best interests.
First, probably because
magistrates see the issue raised
Another issue to consider is that the
more often as a result of the new
Family Court is now strongly guided
legal relevance of domestic violence
by the principle that “children have a
in Family Court proceedings.
right of contact, on a regular basis,
Law yers are more aware of the need
with both their parents.” (s60B(2) of
to inform the Court of such issues in
the Family Law Act 1975).
the best interests of the children and
This principle has the practical effect their advice to women clients is
of making it difficult for women in the thus influenced.
Family Court to assert that ongoing
Second, the men’s rights lobby
contact for their children with a violent
promotes such views about women
father would be inappropriate. In fact
and violence and attempts to trivialise
or demean women’s experiences.
Promoting this view amongst
magistrates is a tactical approach to
creating a backlash against women in
the context of family law.
The view that women use
domestic violence as a tactic in
family law matters is a myth that
must to be dispelled if justice is to
prevail for victims of violence. An
important element in achieving
this is training and gender education
for magistrates.
Magistrates reluctant to issue
ouster orders
Ouster orders, also known as ‘sole
occupancy’ or ‘exclusion’ orders,
remove a perpetrator of violence
from the family home, allowing
women and children to avoid the cost
and dislocation of escaping to
alternative accommodation.
Ouster orders hold the perpetrator
accountable for his violence and
debunk the societal assumption that
it is the woman’s responsibility to
escape domestic violence. Ouster
orders provide domestic and
environmental stability in otherwise
chaotic lives; women can access
their existing support networks and
children are able to continue their
involvement with schooling, sporting
club and community associations.
Ouster orders are controversial
because:
• they superordinate the housing,
support, social and familial needs
of victims of violence over the
proprietorial rights of perpetrators
of violence
• they raise the issue of increased
funding requirements for men’s
emergency accommodation. There
is concern this may be at the risk of
funding for victim’s services.
Queensland magistrates were asked:
“Do you feel comfortable ousting a
violent person from their home?” The
responses show that 79% of
Queensland magistrates surveyed
feel comfortable ousting a violent
person from their home and with 21%
do not feel comfortable making an
ouster order. The magistrates who
felt uncomfortable were all male.
These responses might indicate that
magistrates are happy to oust a
theverdict winter 2003
page 9
crime & society domestic violence
perpetrator of violence from his
home. Qualitative responses indicate,
however, that for magistrates to feel
‘comfortable’ issuing an ouster order
the violence must be relatively severe.
And severe violence is usually
considered to be physical violence.
But where there is severe physical
violence is precisely where an ouster
order is likely to be most
inappropriate - where a woman is
frightened for the physical safety of
herself and her children she is not
likely to want to remain in the family
home but needs the security of
refuge accommodation.
Magistrates should not rely on
circumstances being ‘bad
enough’ to issue ouster orders
because it is where the
circumstances are ‘good enough’ that
such orders should be made.
Conclusion
The study provides insight into
magistrates’ views on domestic
violence and their work in the area.
The results show that there are many
issues relating to domestic violence
and making protection orders for
victims of violence that need to be
better understood.
The study also identifies some the
key areas where further education
and training would improve justice
for women.
news update
Queensland’s Minister for Families, Judy
Spence, has announced $10.4 million
funding over the next three years for new
and enhanced domestic and family
violence counselling and court support
services in Queensland.
Ms Spence said 10 new services and 29
enhanced services would respond to the
needs of Queenslanders who can now
apply for protection orders under the
extended scope of new domestic and
family violence laws.
The laws were amended with effect from
10 March this year to provide increased
protection against domestic and family
violence to family members, older
people, people with disabilities and
people in dating relationships.
Counselling and support services help
people experiencing domestic and family
violence through the provision of
counselling, advocacy, referral and
outreach services.
Court Support services collaborate with
stakeholders like police and court staff
to respond victims of domestic and
family violence.
In 2002 more than 14,000 applications for
domestic violence protection orders
were made in Queensland and the latest
figures, for February this year, show that
1,343 applications for orders were made.
The new laws enable children under age
18 to be applicants or respondents for
protection orders if they are in a
spousal or spouse-like relationship,
theverdict winter 2003
intimate personal relationship or informal
care relationship.
The amendments extend existing
domestic violence legislation protection
to the following relationships:
• family relationship - where people are
relatives by blood, or relatives by
marriage, including step-parent,
half-sibling, or parent-in-law, or
regarded as relatives under cultural or
religious grounds.
• intimate personal relationship - where
people are or were engaged to be
married, have been ‘promised’ or
‘betrothed’ under a cultural or
religious tradition; or are or were
previously dating and their lives have
become enmeshed.
• informal care relationship - where
people are either providing or receiving
informal care as a result of an illness,
disability or impairment. An informal
care relationship is not a relationship
where money is paid for the care, or
where the care is received from an
organisation such as Bluecare or
Meals-on-Wheels.
All these relationships apply whether the
people are of the same or opposite sex.
boggo road
gaol tours
The gaol is open Mon-Fri from 9am
to 3pm. General admission is $4
for adults and $3 concession. No
booking is required.
Guided tours are available through
bookings only. All of our guided
tours are conducted by ex-prison
officers that worked at Boggo Road
Gaol during its operation. The cost
for these is $6 for adults, $4
concessions, and $3 for school
aged children. Teachers do not pay
when bringing a school group in.
We will start a tour usually from
9am to 2.30 pm. We are flexible,
and can make times outside
these. Tours go for about 1.5 hours
which also includes a question and
answer period with the tour guide.
We can also offer night tours/
weekend tours for visitors. These
must also be booked and the cost
for these is $10 for adults, $8
concession/school aged children,
and $6 per student when part of an
organised school group. School
sleepovers can also be arranged
by contacting the gaol
management.
For school groups, our website
contains info about the gaol, as
well as a worksheet that can be
downloaded from the site. The
questions on the worksheet will be
answered by the tour guide at
the gaol.
phone 3846 7423
fax 3846 7134
email [email protected]
website www.boggoroadgaol.com.au
Children under 18 cannot be the
respondent (which is the abusive person)
or the aggrieved (the person being
abused) in family relationships or informal
care relationships where the care involves
a parent or relative.
page 10
crime & society
youth and society
a broad overview
by Lorraine Robinson
Lorraine Robinson is an
Aboriginal woman,
traditionally from the
Kooma, Murrawari and
Kamilaroi people of
Cunnamulla in South West
Queensland and Gunnedah
in New South Wales. She is a
principal policy officer in the
Youth Justice &
Development Unit of the
Department of Families
Policy Directorate. She has a
postgraduate certificate in
business management and
next year starts work on a
Masters degree. She has
three children, two of whom
are school age. She has
worked in the Aboriginal
community all her life, both in
community, volunteer and
professional capacities.
The Juvenile Justice Act 1992 provides
a comprehensive code for dealing with
young people who commit an offence
while aged between 10 and 16. This
includes diversionary alternatives to
prosecution, procedures for police
dealing with young people, special
procedures for courts, a range of
sentencing options and provisions
governing the operation of youth
detention centres.
The juvenile justice system in
Queensland has, for the past decade,
attempted to change the way we deal
with the over-representation of young
Aboriginals and Torres Strait Islanders in
the criminal justice system.
Since the Royal Commission into
Aboriginal Deaths in Custody in 1991
the Department of Families has
attempted to work in partnership with
the Aboriginal and Torres Strait
Islander communities.
This article provides an overview of the
juvenile justice system and some
trends and issues associated with it.
Recent amendments to the Juvenile
Justice Act 1992, new initiatives in
juvenile justice, and strategies aimed at
reducing over-representation of young
Aboriginals and Torres Strait Islanders
are included.
During the past ten years there have
been many positive indications that the
Queensland Government has ‘matured’
in its relationship with indigenous
people. This is reflected through
Government acknowledgement that
Indigenous over-representation is a
significant problem, and Government’s
acceptance that it must actively
address the underlying causes of this
high rate of imprisonment.
The 1991 Royal Commission, the 1997
National Inquiry into the Separation of
Aboriginal & Torres Strait Islander
Children (the ‘Bringing them Home’
Report) and the 1999 Commission of
theverdict winter 2003
Inquiry into Abuse of Children in
Queensland Institutions (Forde Inquiry)
all clearly documented the extent of
past injustices and the complexity
surrounding indigenous issues.
An important strategy derived from the
Royal Commission is Queensland’s
Justice Agreement. Under a ten-year
partnership framework Justice
Agreements were signed off after full
consultation between indigenous
communities and government
agencies whose service and policy
has significant impact on
indigenous people.
The long-term aim of the agreements
is “to reduce the rate of Aboriginal and
Torres Strait Islander peoples coming
into contact with the Queensland
criminal justice system to at least the
same rate as other Queenslanders.”
Over-representation
The legacy of past injustices is shown
in the number of indigenous people in
the criminal justice system. In
Queensland indigenous young people
are over-represented across all areas of
the juvenile justice system, despite
representing only 5.2% of the
population of young people aged 10 to
16, according to the July 2002 issue of
the Department of Families’
Information Update.
There is now evidence that some of
these statistics have started declining in
the past four years. In 2000/01 the
number of cautions issued by police
was 3% lower than the previous year,
followed by a further 6% decrease in
2001/02. In the 2001-02 year the
number of finalised court appearances
decreased by 2% and finalised higher
court appearances fell 33%. As a result
of this the number of young people on
supervised orders has decreased from
2,112 at 30 June, 1998 to 1,679 at 30
June, 2002 – a reduction of 20%. The
number or young people in detention
page 11
crime & society youth and society
centres decreased from an average
daily occupancy of 139 in 1998-99 to 97
in 2001-02, a reduction of 30 %.
Figures show that of all proven
offences by indigenous young
offenders, 10% were for offences
against the person, 69% for property
offences and 21% for other offences.
“
the Queensland
Government has
‘matured’ in its
relationship with
indigenous
people
“
And the number of indigenous young
people placed on supervised youth
justice orders by the courts fell 6%
from 764 in 1999/00 to 720 in 2000/01.
This is compared to a 15% fall for nonindigenous young people according to
the Department of Families publication
Information Update.
Adding further clarity to
the issue
Legislation, policy and practice in
Queensland have been further shaped
by the various inquiries and reports into
the care, protection and administration
of juvenile justice orders to young
people who break the law.
The Forde Inquiry was established in
August 1998 to investigate and report
on abuse and neglect of children in
Queensland institutions. The inquiry
concluded that significant numbers of
children suffered serious physical,
sexual and emotional abuse in
these institutions.
Consistent with a Government election
commitment to introduce a new
‘Charter of Juvenile Justice Principles’,
the amending Act significantly expands
on existing principles by including a list
of basic rights for young people in
youth detention centres, including:
• that a child in detention is entitled to
a safe and stable living environment;
• that a child in detention should be
assisted in maintaining
relationships with the child’s family
and community;
• that a child in detention should have
theverdict winter 2003
access to health and education
programs and other
important services.
• new principle 15 in the Charter
requires that a child dealt with under
the Juvenile Justice Act 1992 should
have access to legal and other
support services, including
services concerned with advocacy
and interpretation.
Juvenile Justice Amendment
Act 2002
The Juvenile Justice Amendment Act
2002 enables the Government to deliver
its commitment to reduce overrepresentation. The Act does this by
strengthening diversionary options and
provides greater indigenous input into
juvenile justice processes.
For example, if police decide to caution
an indigenous young person they must
first consider whether a respected
indigenous person from the child’s
community is willing and available to
administer the caution. If this is the
case then the police must request that
the respected community person
administer the caution.
Similarly, if a matter concerning an
indigenous child is being dealt with in a
youth justice conference, the
conference convenor must consider
inviting a representative from the local
Community Justice Group or a
respected indigenous person from the
child’s community to the conference.
arrested and placed in custody
for non-appearance.
Accordingly, and consistent with the
established principle that child
detention is a last resort, changes to
the bail and arrest system should
help reduce the number of
indigenous children on remand in
detention centres.
For example, police officers are
required to consider applying to a court
for variation or revocation of a child’s
bail instead of immediately arresting a
child thought to be breaching bail
conditions. The exception is the
condition to attend court.
Another example is that indigenous
young people from remote
communities and sparsely populated
regional areas of Queensland, will,
under the amendments, be able to
use audio or audio-visual links for
bail applications.
An election commitment of the Beattie
Government was to create a new
sentence option called the ‘intensive
supervision order’ targeting young
offenders under 13 years of age.
Statistics show that the majority of
young people who appear in court are
aged between 15 and 16. However,
there is a small group under the age of
13 who offend and, in some cases,
offend repeatedly.
It was therefore determined that
alternative effective and intensive means
of diverting those young people from
The Act also makes it clear that
diversionary processes such as caution the criminal justice system needed to
and conferencing can be utilised even if be provided to the courts.
the child has been diverted from the
courts system. This change will help
bibliography
address and reduce the negative
• Commonwealth of Australia, 1992a,
impact caused when children brought
Aboriginal Deaths in Custody - Overview
to the courts start identifying with the
of Response by Governments to the
criminal justice system.
Royal Commission, Australian
Most children are brought to court by
attendance notices but this is to be
streamlined using ‘notices to appear’
authorised under the Police Powers &
Responsibilities Act 2000.
Realistically, for various reasons, some
children or their parents will miss their
date for appearing in court. The Act
makes clear that a Children’s Court
magistrate can delay issuing a warrant
for the arrest of a child for nonappearance. This will allow Aboriginal &
Torres Strait Islander Legal Service field
officers to locate and bring the child to
court without the child having to be
Government Printing Service, Canberra.
• Commonwealth of Australia, 1992a,
Aboriginal Deaths in Custody - Overview
of the Response by Governments to the
Royal Commission, Vol 1, Australian
Government Printing Service, Canberra
• Queensland Government, 2001b,
Queensland Aboriginal & Torres Strait
Islander Justice Agreement, July
2001:11
• Department of Families, Volume 1, July
2002, Youth Justice Information Update,
Queensland Statistics, 2000/01
• Juvenile Justice Amendment Act 2002 Charter of Juvenile Justice Principles.
page 12
rights & responsibilities
oh what a lovely war
want to join in?
by Cameron Crowther
Cameron Crowther is a
solicitor at Ebsworth &
Ebsworth Lawyers in
Brisbane. He practises in
commercial litigation,
maritime law and native title.
He is studying a Master of
Laws at the University of
Queensland where he
graduated with an LLB in
1999. His interest in
constitutional issues arises
from his role as Youth
Convenor of the Australian
Republican Movement.
The decision to send armed Australian
troops to international conflict is
essentially left to the Prime Minister and
the Cabinet. The decision is not one
which parliament or the Australian
people share.
However, the Australian Constitution is
not clearly expressed and often leaves
important matters unsaid, including on
the roles of Prime Minister and the
cabinet and any decision to send
troops to war.
Those matters are dealt with ‘by
convention’, which means that while
the law is not spelled out in writing it is
expected that custom and precedent
will be followed.
Section 68 of the Constitution states
that: “The command in chief of the
naval and military forces of the
Commonwealth is vested in the
Governor-General as the
Queen’s representative.”
Section 61 states that the GovernorGeneral exercises executive power on
behalf of the Queen.
A literal reading of the Constitution
would give the impression that the
Governor-General and the Queen are
very powerful, and very busy, people.
Yet we all know the Prime Minister is
the one who exercises real power
in Australia.
The doctrine of responsible
government, the theory behind
Australian democracy, provides that,
although as a matter of strict law
executive power vests in the Queen
absolutely, by convention power is
exercised on the Queen’s behalf by the
Prime Minister and Ministers of
the Cabinet.
In other words, although the
Constitution says the Governor-General
wields executive power, in reality
decisions are made by a government
theverdict winter 2003
which simply tells the Queen and
Governor-General what to do.
Sending troops to the Gulf
The decision to send troops to Iraq, for
example, was not a decision to
implement a new law. That would have
required parliamentary approval. It was
instead a decision to act, known as an
‘executive decision’, which the Prime
Minister can make without approval of
parliament. The Prime Minister’s closest
colleagues form the Cabinet which will
usually make the decision with the
Prime Minister who then simply tells the
Governor-General or Queen what the
decision is.
Australian troops have been sent to
Iraq twice: the Gulf War in 1991 and the
latest Iraq War. Both decisions were
taken by the Prime Minister of the day
after consulting colleagues but
without reference to parliament or the
Australian people.
In 1991 Prime Minister Bob Hawke said:
“On 4 December I informed the House
that, following a decision of Cabinet,
Australia was prepared to provide
forces to participate in operations
under United Nations Security Council
resolution 678, should that become
necessary. On 17 January, after
consulting senior Ministers, I gave
effect to that decision by authorising
our naval task force in the Gulf to
participate in such operations. I then
formally notified the Leader of the
Opposition and the Governor-General
of the Government’s action.”1
For the latest Iraq War Cabinet met and
the Prime Minister made an
announcement on 18 March 2003 that
Australia would join any military action
to disarm Iraq following a request from
US President George W Bush.
On both occasions the Opposition
respected the Prime Minister’s right to
make the decision, but demanded that
page 13
rights & responsibilities what a lovely war
parliament debate the decision after it
was taken. That process, at least gives
elected representatives the opportunity
to express their views about Australia’s
involvement in the conflict and to pass
on the views of their electors.
However, no matter how unpopular
the Prime Minister’s decision is with
parliament or the people, nothing can
be done to change the decision,
short of dismissing the Prime Minister
from office.
notes
1 House of Representatives, Hansard,
21 January 1991.
theverdict winter 2003
Conclusion
The Australian Constitution is always
the reference point for deciding what
powers a Government or government
official has. However, the Constitution
is an imperfect document: it doesn’t
always say what it means and it often
says it in difficult language.
The Australian public has expressed a
wide range of passionate views about
war. Yet, in the end, the decision to
send our troops to war was made,
quite legally, by one man alone: the
Prime Minister.
Also, in a country where we are used
to decisions being made democratically, there is a strong argument
that the power to
send troops to
war should be
as consultative
as possible and
made openly rather than
privately in a Cabinet room.
page 14
rights & responsibilities
we’ve won the war
but did we break the law?
by Daphne McKenzie
Daphne McKenzie is
Executive Manager of the
Communications Unit of the
Queensland Law Society.
The Iraq War is over. Iraqi citizens are
free from Saddam Hussein - the
merciless dictator who oppressed his
country for more than 30 years. But
does the victory justify Australia’s
participation in the war? Did we break
international law on Thursday
morning, March 20, when we invaded
Iraq as part of US President George
Bush’s Coalition of the Willing?
The debate leading up to Australia’s
involvement in the war divided the
country. Some cried ‘no war’ under
any circumstances; some said
Australia should not be involved;
others insisted Australia be involved
only if the Security Council of the
United Nations (UN) authorise an
attack; some wanted to waste no
time in bombing Iraq.
The debate also divided the legal
profession. Would war on Iraq defy
international law?
One legal expert asks if international
law “may have been dealt a blow
from which it will never recover.”
Associate Professor in the Faculty of
Law, University of Sydney and visiting
scholar at the Australian National
University, Donald Rothwell, told the
verdict it was crucial that Australia
not breach international law if it was
to take part in any war.
“That is vital for the credibility of this
country, and for the future of the
international legal and political order
established under the United Nations
Charter,” he says.
He says the Charter identifies only
two situations where military force
could be used legally. The first is in
self defence after an armed attack.
The second is authorised use of
armed force by the UN Security
Council – whose roles includes
maintaining international peace and
security and, when necessary, taking
military action against an aggressor.
theverdict winter 2003
One week before the first bomb fell
on Iraq Prime Minister John Howard
claimed existing UN Security Council
resolutions gave “ample legal
authority to use force to bring
about disarmament.”
And the British Government said the
authority to invade Iraq lay in UN
Security Council resolution 1441,
which allows UN weapons
inspectors to investigate Iraq and
requires the Iraqi Government to
co-operate.
However, some international law
experts argued that resolution 1441
did not give any country justification
to invade Iraq, and that a new UN
resolution needed to be passed to
give specific authority for war on
that country.
Professor of International Law at the
London School of Economics and
Political Science, Christopher
Greenwood QC, says he believes
authority existed in resolutions 678,
687 and 1441.
He told The Times of London it
would be “highly desirable to have a
second UN resolution” to put the
matter beyond doubt, “but if that is
not possible, I would support the
use of force without the resolution.”
Ruth Wedgwood, law professor at
Johns Hopkins University School of
Advanced International Studies in
Washington, said invasion was
justified by law, relying on the
ceasefire resolution 687, passed at
the end of the Gulf War in 1991, and
its predecessor 678, which
authorised the use of force to expel
Iraq from Kuwait.
“Those resolutions still stand,” she
told The Times. “In some ways,
resolution 1441 just muddies the
waters because it does not purport
to authorise force (it stipulates that if
breached, ‘serious consequences’
page 15
rights & responsibilities we won the war
must follow) and if there is a second
resolution, it may not authorise
force either.”
However, Assoc Prof Rothwell says
while the UN did warn Iraq of ‘serious
consequences’ if it continued to
violate its obligations, no country had
authority to use military force if Iraq
was in breach of resolution 1441.
He says the earlier resolution, 687,
required, first, that Iraq respect its
boundary with Kuwait and, second,
that Iraq disarm by destroying its
chemical and biological weapons and
not develop more nuclear weapons.
“But again, this resolution did not
authorise military force,” he says.
He says resolution 678, made on
November 29, 1990, authorised the
use of ‘all necessary means’ to
militarily enforce earlier resolutions
calling on Iraq to withdraw from
Kuwait. This allowed the US,
Australia and other countries to
militarily remove Iraq from Kuwait
in 1991.
Assoc Prof Rothwell argues,
however, that resolutions 678 and
687 “applied to a particular set of
facts which no longer existed - that
is, the Iraqi invasion of Kuwait in
August 1990 and the authorisation
of the use of all necessary means by
UN members to remove Iraq
from Kuwait.”
He says the Security Council alone
has the power to authorise military
force against delinquent States.
“This fundamental principle is one on
which post-war international relations
is based. Exceptions to that principle
may exist in the case of
overwhelming humanitarian crises,
such as in Kosovo, but none
seemed to apply in the case of Iraq
in 2003.
“Without a fresh UN Security Council
resolution clearly authorising the use
of force, military intervention in Iraq
was in violation of international law.”
However, Professor Suri Ratnapala,
Director of the Centre for the Legal &
Economic Study of Institutions at the
University of Queensland, told the
verdict he believes that under
international law the US-led war on
Iraq was justified.
He says no one disputes the fact that
theverdict winter 2003
Saddam Hussein’s government
seriously violated international law.
of force to disarm Iraq required
further Security Council authorisation.
“Iraq’s invasion of Kuwait in 1990 was
a major breach of international law.
Later it breached 13 UN Security
Council resolutions demanding the
country get rid of chemical, biological
and nuclear weapons and stop
violating the human rights of its
own people.”
“In my view, no further resolution was
needed,” he says.
Professor Ratnapala says
resolution 1441 gave Iraq “a final
opportunity to comply with its
disarmament obligations.”
“This resolution concerns regional
and international security, the need
for which was heightened by
September 11 events, and also the
systematic and brutal oppression of
innocent civilians by one of the
most inhumane dictatorships of
modern times.”
“The initial Security Council
authorisation for the use of force
against Iraq (resolution 678) required
all member countries to use all
necessary means to uphold and
implement resolution 660 and all
subsequent relevant resolutions, and
to restore international peace and
security in the area.”
He says that after the defeat and
expulsion of Iraqi forces from
Kuwait Security Council resolution
687 affirmed all 13 previous
resolutions “to achieve the goals of
this resolution, including a
formal ceasefire.”
“The ceasefire of 3 April 1991 was
conditional on Iraq complying with 13
He said all governments
previous resolutions and the
represented on the UN Security
conditions in resolution 687. On 5
Council agreed that Iraq had
April 1991 the Security Council, by
breached resolution 1441.
resolution 688, condemned the
repression of the Iraqi civilian
“Iraq let the weapons inspectors back
population in Iraq, the consequences
into their country but there was much
of which threaten international peace
willful deceit by the Iraqi regime in the
and security in the region. The
inspection process,” Professor
resolution demanded that Iraq
Ratnapala says.
immediately end this repression and
“They occasionally co-operated with
allow open dialogue.
the inspectors, but only because of
“In December 1998 the Iraqi
the threat posed by a quarter of
Government expelled the UN
million American, British and
weapons inspectors. Resolution
Australian military personnel
1441, adopted on 8 November 2002,
massed on its border. To avoid
formally identified the Iraqi breaches
conflict Iraq needed to co-operate
and repeated earlier warnings of
proactively and immediately to
serious consequences.”
comply with UN demands.”
He says authority for war was not in
Professor Ratnapala says the only
resolution 1441 but in resolution 678
question was whether the lawful use
page 16
rights & responsibilities we won the war
legal
research seminars
available
and the failure of the ceasefire
established by resolution 687
because of Iraq’s violation of its
conditions. Resolution 1441 adds
further force to the findings of Iraqi
violations of the ceasefire conditions.
The cease-fire was between
combatants, and the Security Council
set its conditions. Iraq’s violation of
its terms deprived it of the protection
of the cease-fire, allowing member
states to apply force as authorised by
resolution 678.”
Professor Ratnapala says Australia,
as a member nation of the UN, had a
duty under resolution 678 to cooperate with other member nations to
use ‘all necessary means’ to uphold
and implement resolution 660 and
subsequent resolutions.
He says Australia had a duty to
restore international peace and
security in the area and “this is, in
fact, what Australia is doing in Iraq
right now.”
Though Assoc Prof Rothwell believes
international law was broken when the
US, Britain and Australia invaded Iraq
countries do, in some situations,
choose to breach those laws without
seriously undermining international law.
“The mere fact that a major violation
of international law took place on 20
March is not in itself cause for
concern about the future of the
international legal system. These
events have occurred in the past, and
no doubt will occur again,” he says.
“There are, however, some looming
challenges for the international
system which have the potential to
seriously impact on international
legal order.”
He says the US and, to a lesser
extent, Australia, have endorsed a
theverdict winter 2003
new doctrine of pre-emption, a
variation on what international lawyers
call ‘anticipatory self-defence’.
“Under this doctrine, States (countries
who are ‘States’ of the UN) seek to
justify military intervention in the
affairs of other States who have
terrorist groups operating within their
borders,” he says.
“A liberal interpretation of this doctrine
would pose very real threats to a
fundamental principle of the UN
Charter, Article 2 (4), that States do
not use force against the territorial
integrity of other States.”
Assoc Prof Rothwell says another
major challenge for the international
system is consistency.
“The recent invasion of Iraq was
conducted mainly to get rid of Iraq’s
suspected weapons of mass
destruction. Other countries possess
these weapons and equally pose
threats to international peace and
security, especially North Korea, but
also Iran, Syria and Pakistan.”
How the international community
deals with so-called rogue States,
and whether the UN is seen as
having a legitimate role in attempting
to secure disarmament, will be the
real tests of the international system.
Once again the Supreme Court Library is
offering Legal Research Seminars to Years 11
& 12s. A 30-minute talk and demonstration is
given on how to find relevant material quickly.
We cover legislation, case law and secondary
material. Using the Supreme Court Library web
site as a legal portal, the students are shown
how to get to useful free legal sites and how to
navigate them. Our huge collection of texts and
journals makes research on virtually any legal
topic possible. We ask schools to send
students’ current essay topics in advance so
we can use relevant examples. A handout of
useful web sites is given.
After the 30-minute talk, students use our
catalogue and CD collection to work on their
topics. The library allocates several law student
library assistants to help and inspire the school
students. Photocopying is available at very low
cost. We make it our business that no student
leaves without good material for their essay
and a basic understanding of how to tackle
legal research.
After about 2 hours the students are welcome
to take a break and maybe look at our historical
collections on level 2. The visit can be combined
with a visit to a court case and an introductory
talk from a judge (morning only and subject to
availability). Keen students are welcome to
return to the library for more research time.
There is a cafeteria on ground floor for
refreshments.
Bookings can be made with
Kathy Gardiner on 07 3247 9101 or
[email protected]
4th Floor
The Law Courts
304 George Street
Brisbane
further references
• UN Security Council, go to
http://www.un.org/Docs/sc/
• Resolution 1441, go to
http://www.iaea.or.at/worldatom/Press/
Focus/IaeaIraq/iraqres.pdf; http://
www.state.gov/p/nea/rls/15016.htm
• Resolution 678, 687, 688, go to http://
www.un.org/Docs/scres/1991/
scres91.htm
Enquiries
Facsimile
Email
Web
ABN
+61 7 3247 4373
+61 7 3247 9233
[email protected]
www.courts.qld.gov.au
46 980 335 828
page 17
rights & responsibilities
the rules of war
and war crimes
by Michael Barnes
Michael Barnes BA, LLB,
LLM was, at the time of
writing this article, head of the
School of Justice Studies at
Queensland University of
Technology.
Prior to joining QUT in May
2000 he was chief officer of
the complaints section of the
Criminal Justice
Commission. He has also
worked in private practice
and with the Aboriginal Legal
Service where he was
involved in the Royal
Commission into Aboriginal
Deaths in Custody.
He is a member of
Queensland’s Biotechnology
Advisory Council and is a
mediator for claims and
dispersal of the Welfare Fund
for Queensland Aboriginal
and Torres Strait Islander
people.
See ‘News flash’ box for an
update.
theverdict winter 2003
If the aim of war is to bomb cities
and shoot people, how can there
be rules?
While it is true that many of the
central and defining activities of war
would amount to crimes if done by
individuals, the law views them
differently when committed in war
with the approval of governments.
War is seen as a political action with
political ends, undertaken by states or
nations, not individuals, for public
rather than private purposes.
International law has, for hundreds of
years, thus defined when and in what
circumstances war can be lawfully
undertaken and what acts soldiers
fighting them may lawfully take.
War crimes concern waging war
contrary to these international laws,
either in terms of its commencement
or the methods used to prosecute it.
Who makes the rules?
In ancient Greece, Aristotle
postulated that war should only be
waged for self defence, to install
better leaders, or to enslave those
who d
‘ eserved’ to be enslaved.
In effect, the rulers of that time did
what they pleased.
In Europe, in medieval times, notions
of chivalry dictated that knights
should not kill enemies who
surrendered and the doctrine of the
divine right of kings meant that a war
could be fought with the Christian
The sources of international
God’s blessing if a king or the Pope
deemed it appropriate - because they
law and rules of war
There is no international parliament to were thought to be in direct contact
with God who blessed their actions.
make laws in the way our state and
federal parliaments do in the
After the horror of World War II, a
domestic sphere. Instead,
large number of countries banded
international law is the collective
together to form the United Nations,
effect of treaties, customs,
hoping that wars could be averted by
conventions and what is referred to
granting it power to intervene in
as ‘the general principles of law’ –
disputes between states.
concepts such as the need to
The United Nations Charter and
adhere to binding agreements and
conventions, and the treaties and
to act openly and honestly
customs it recognises, are now the
whenever possible.
main sources of international law that
These rules are intended to be
regulate the conduct of war – for
binding on the individual countries
example, The Geneva Conventions,
that make up the international
The Universal Declaration of Human
community of nations but there is no Rights, The Convention on the
forum in which the rules can be
Prevention & Punishment of the
enforced so they are sometimes
Crime of Genocide and The Treaty
referred to as binding ‘among’ rather
Limiting the Use of Celestial Bodies
than ‘on’ states.
for Peaceful Purposes.
The rules of war are that portion of
Lawful commencement
international law that deals with the
inception, the conduct and the
of war?
termination of war. They seek to
The United Nations Charter is a
regulate the conduct of the parties
legally binding treaty developed in
to war and neutral third parties and
1945 and now ratified by 180
apply whether war is declared or not. countries. In Article 2 it proscribes the
page 18
rights & responsibilities the rules of war
less contentious example of Security
Council authorisation of the use of
force to prevent crimes against
humanity continuing.
Lawful conduct of war?
Law about the conduct of war
attempts to balance the seemingly
irreconcilable – the desire to
preserve rational humanity while
compelling the enemy to comply and
submit through the application of
deadly force.
This balance is sought by prohibiting
some atrocities altogether and
generally allowing only that violence
which is of military necessity.
actual and threatened use of force:
“All members shall refrain… from the
threat or use of force against the
territorial integrity or political
independence of any state or in any
other manner inconsistent with the
purposes of the United Nations.”
forum. If accepted into international
law it would significantly widen the
circumstances in which force could
be used against another country.
The other basis on which force can
lawfully be used against another
nation, Security Council authority, is
Peace is given paramount importance at the centre of the dispute
- the use of force to pursue political
concerning the lawfulness of the
ends is prohibited, even if the ends
recent invasion of Iraq.
are just. The only exceptions to this
Some supporters of the invasion
prohibition are self-defence and the
argue that Security Council
authorisation of the Security Council.
resolutions passed at the time of the
The wording of the self-defence
Gulf War in 1991 authorised the
exception causes uncertainty about
invasion force to remain. Opponents
its scope.
of that view argue that the effect of
those earlier resolutions is spent and
Article 51 of the Charter provides that
that more recent resolutions fall short
nothing “shall impair the inherent right
of authorising unilateral invasions
of individuals for collective self
without explicit UN consent.
defence if an armed attack occurs.”
The military action taken in 1998 to
If this means force can be used only
stop ‘ethnic cleansing’ in Kosovo is a
to repel an attack once it has
occurred it is narrower than the
position that prevailed before the
Charter. Previously the doctrine of
self-defence justified resort to force if
an attack was truly imminent, there
was no peaceful means of avoiding
it, and only so much force as was
reasonably necessary was used.
Wars must be conducted in
accordance with the laws and
customs of war and various
treaties and conventions, like the
Geneva Convention.
Civilians should not be targeted nor
towns and cities unnecessarily
destroyed. Prisoners should be
treated humanely, white flags
acknowledged, the Red Cross and
medical teams not attacked. Torture
and execution is prohibited. Weapons
calculated to cause unnecessary
suffering and unnecessary deaths are
forbidden. Poison, poisonous gas,
bacteriological and radiological
weapons are also prohibited.
How are these laws enforced?
The laws of war are enforced by
reprisals, judicial punishment,
reparations and the pressure of world
opinion. In theory, these remedies are
available to all combatants. In
Some international lawyers argue that
the reference to ‘the inherent right’ of
self-defence means that traditional
position is preserved by Article 51.
The doctrine of the pre-emptive use
of force to disable an enemy who
may attack in future is novel, has
recently been debated extensively at
the international level, and is untested
in any international adjudicative
theverdict winter 2003
page 19
rights & responsibilities the rules of war
practice the victors decide whose
rights are vindicated.
Traditionally, only nations were usually
held to account for breaches of the
rules of war by the requirement that
they pay reparations. However, after
WWII individuals accused of war
crimes were also tried and punished
by temporary military tribunals set up
for the purpose – the Nuremberg War
Crimes Trials dealt with German and
other A xis leaders and soldiers
accused of war crimes powers; the
International Military Tribunal for the
Far East was convened in Tokyo to
hear and determine charges brought
against Japanese war criminals.
As a result of these trials many
Japanese and German politicians and
soldiers were hanged, many more
were sentenced to terms of
imprisonment ranging up to life, and
some were acquitted.
Since the formation of the UN ad hoc
criminal tribunals have been
set up to investigate and adjudicate
war crimes allegedly committed in
Rwanda in 1995 and the former
Yugoslavia in 1993. This latter tribunal
is currently hearing charges against
the former Prime Minister of Serbia,
Slobodan Milosevic.
The unwieldy nature of these ad hoc
or temporary tribunals led to the UN
establishing a permanent court to
deal with war crimes, crimes against
humanity and genocide. The
International Criminal Court (the ICC)
was created by the 1998 Statute of
Rome. Countries that ratify this new
court by passing complementary
national legislation can participate in
the election of judges and
prosecutors and are obliged to assist
the Court investigate and prosecute
suspected war criminals. The ICC
only has jurisdiction to act if the state
in which the alleged offence occurs
is unwilling or unable to deal with it.
Australia is a signatory to the treaty
that created the ICC and in 2002
passed the International Criminal
Court Act to give effect to it. The
ICC’s powers can only be
exercised against Australian citizens
with the consent of the Australian
Attorney-General.
If the invasion of Iraq is illegal
because it offends provisions of the
United Nations Charter, or the
invasion results in war crimes against
civilians or prisoners of war,
proceedings could be initiated
against the leaders who authorised
the invasion and the soldiers who
carried out the orders.
However, as neither Iraq nor the
United Sates are signatories to the
Statute of Rome, and have not
passed ratifying legislation,
charges could not be preferred
against citizens of those countries by
ICC prosecutors.
In theory, Australian leaders and
soldiers are more vulnerable in that
regard because of our involvement in
the ICC regime. However, it is
unlikely there will be competent
complainants to initiate proceedings
and, in any event, it is unlikely the
newsflash
State coroner appointed
Michael Barnes has been
appointed Queensland’s first State
coroner.
The appointment is part of the
State Government’s intention to
overhaul Queensland’s coronial
system.
The new Coroners Act enables the
State coroner to oversee a system
with a strong emphasis on
preventing deaths and a more
sensitive and compassionate
approach to families.
“There will be a focus on
identifying emerging patterns and
all our coroners will have powers
to recommend changes to prevent
future deaths,” says State
Attorney-General Rod Welford.
“There will be improved
information and support, and a
greater sensitivity to different
cultures and beliefs. Families will
be given greater access to coronial
documents during investigations.”
Australian Attorney-General would
give the necessary approval for
charges to proceed.
Conclusion
There is a substantial body of
international law that dictates when
the use of force against another
country is lawful and what
actions can be taken by those
involved in warfare.
However as, until the creation of the
ICC, there has not been a permanent
forum in which individuals could be
accountable for breaches of these
laws and as the victors invariably
determine what action follows the
cessation of hostilities, these laws do
not have the same certainty or
enforceability as domestic laws or
laws dealing with international trade.
The UN has had limited success in
preventing war. It remains to be seen
whether the ICC will be any more
effective in dealing with those who
commit war crimes.
theverdict winter 2003
page 20
real
Law Graduate
Paul Morreau is a criminal lawyer. A QUT Law graduate. A human rights campaigner. She works
tirelessly for people she believes in. Her days are dramatic, tiring, exciting, heartbreaking, inspiring.
She is doing something that is important to her. QUT puts more degree graduates into full-time
employment than any other university in the country. For more information for your
LAW-03-113
students about a career in law or justice get on the case at www.law.qut.edu.au
CRICOS no. 00213J
Queensland University of Technology
GPO Box 2434 Brisbane QLD 4001 Website: qut.com
rights & responsibilities
refugees
by Anthony Cassimatis
Anthony Cassimatis BA, LLB
(Hons), LLM (Camb) is a
solicitor of the Supreme
Court of Queensland and
High Court of Australia. He
teaches administrative law
and international law at the
TC Beirne School of Law at
the University of
Queensland. He was
involved in the Law School’s
advocacy program, is
faculty adviser for the
School’s Jessup Moot
team. He has worked for a
leading law firm in Australia
and has had experience
working in London with one
of the United Kingdom’s
largest law firms. He is a
regular volunteer with a
community legal service. He
is enrolled at the University
of Queensland as a PhD
candidate. His research
focuses on the relationship
between the regulation of
international trade and the
protection of human rights
under international law.
The world is a violent place. The
nations that make up the international
community have developed legal rules
designed to limit violence and to
protect the victims of violence.
Refugees are protected by such rules.
International law
Before turning to Australia’s rights and
responsibilities in relation to refugees, it
is important to say something generally
about international law.
Just as we in Australia use legal rules
to regulate relations between members
of the Australian community, so the
international community, a community
of nations, has developed legal rules
regulating international relations.
on all nations. Nations must generally
consent to rules of international
law to develop.
Another important difference between
the Australian legal system and the
international legal system is that there is
not always a court to rule on whether a
nation has breached international law.
There are international courts – the
International Court of Justice, the Law
of the Sea Tribunal, World Trade
Organization dispute settlement bodies
– but all these bodies can only hear
legal disputes if the nations involved in
the dispute consent. And nations do
not always consent.
Australia, like all other nations, benefits
greatly from international law.
Originally these rules were primarily
concerned with formal relations
between nations. The rules said
little about relations between nations
and individuals. This situation began to
change in the 20th century with the
development of international rules
requiring the protection of
human rights.
Our entitlement to exploit the fish and
mineral resources of the waters
surrounding Australia are protected by
international treaty. The same treaty also
ensures that our exports can be
transported across the oceans of the
world. Other international treaties
guarantee our entitlement to sell our
products in other nations.
As relations within the international
community grow more complex, so
the rules of international law grow
in sophistication.
The welfare of all Australians depends
on these rules.
Treaties, which are agreements
between nations, have been negotiated
on topics including trade relations,
international communication, protection
of the environment, air travel, human
rights, international finance and
economic development.
International law is being used to bring
about ever-increasing integration
amongst nations, especially in Europe
through the European Union.
Globalisation depends on rules of
international law.
Australia’s ‘rights’ in relation
to refugees
International law recognises the
authority of nations to protect their
borders. Nations are entitled to decide
whether people from other nations will
be allowed to enter and on what
conditions. Generally, people from
other nations have no legal right to
enter Australia without
Australia’s consent.
Nations can, however, enter treaties
under which they assume legal
obligations to protect people. In
These developments in international law response to the immense human
have occurred even though there is no suffering during and after World War II,
global parliament to pass laws binding members of the international
community negotiated a number of
theverdict winter 2003
page 22
rights & responsibilities refugees
treaties recognising universal human
rights and protecting people such
as refugees.
There are two main treaties specifically
protecting refugees - the major treaty
dealing with refugees immediately after
World War II which was finalised in
1951, and a treaty in 1967 which
expanded the scope of the 1951 treaty.1
Australia is a party to both these
treaties and therefore bound under
international law to perform its
obligations under the treaties in good
faith. There are, however, other treaties
also relevant to the protection of
refugees. These include a treaty that
prohibits torture and other cruel,
inhumane or degrading treatment or
punishment; a treaty that, amongst
other things, prohibits arbitrary
detention; and a treaty that protects the
human rights of children.2 Australia is
also a party to these treaties and all
these treaties are therefore relevant
when considering Australia’s legal
responsibilities in relation to refugees.
There are other more general rules of
international law that may also be
relevant but at this point it is best to
focus on the treaties.
Who is a refugee?
Not every person fleeing a nation is a
refugee. The refugee treaties of 1951
and 1967 effectively define the term
‘refugee’ to include: “any person
who…owing to well-founded fear of
being persecuted for reasons of race,
religion, nationality, membership of a
particular social group or political
opinion, is outside the country of his
nationality and is unable or, owing to
such fear, is unwilling to avail himself
of the protection of that country…”
There are a number of limits to this
definition that can be immediately
noted. Because of the requirement that
a refugee be o
‘ utside’ their nation the
definition does not include internally
displaced persons. Again, the
definition also does not include
persons who leave a nation for purely
economic reasons.
The definition also focuses on certain
types of persecution - not every person
fleeing a war, for example, would be
covered by the definition.
It may take some time for authorities to
ascertain whether a person falls within
the legal definition of ‘refugee’.
theverdict winter 2003
National courts often hear legal
disputes over whether the definition of
‘refugee’, which has been incorporated
into national legislation all over the
world, has been correctly applied. See,
for example, the High Court’s decision
in Applicant A v Minister for Immigration
& Ethnic Affairs in 1997.3
entitlement to detain asylum seekers
while doing security checks, to
conduct interviews, or where
individual asylum seekers fail to
cooperate with authorities.
Detention of asylum seekers
Rights of refugees in Australia
A number of the provisions of the 1951
refugee treaty appear to recognise that
it may be permissible to detain persons
seeking protection as refugees (‘asylum
seekers’) until their claims are verified
and their circumstances formalised.6 It
is also permissible to detain people
who do not satisfy the definition of
‘refugee’ pending their deportation.
Once a person is found to have met
the definition of ‘refugee’ the 1951
refugee treaty requires giving certain
rights, such as ownership of property,
access to justice, employment and
welfare benefits.10
However, some nations, including
Australia, automatically and
indefinitely detain asylum seekers
who arrive without prior permission,
Australia’s responsibilities
thus in breach of relevant national
Non-refoulement
laws, pending determination of their
During World War 2 many refugees fled refugee status.
their nations in circumstances of
In the view of many international
extreme urgency and often entered
lawyers, such detention violates
other nations without prior approval –
international law.
they entered illegally under the laws of
Australia has a treaty obligation not to
the nations in which they sought
refuge. Once a refugee enters a nation arbitrarily detain people in Australia.7
seeking refuge, the 1951 and 1967
Obligations under human rights
treaties restrict the capacity of the
treaties are designed to protect all
nation to expel the refugee, even where people within nations that are treaty
entry to the nation was unlawful. This
parties, including non-citizens.
obligation not to expel is often referred
A complaint alleging Australia’s
to by use of the French term ‘nonviolation of the prohibition against
refoulement’. Article 33(1) of the 1951
arbitrary detention was brought against
treaty provides that: “no contracting
Australia by a Cambodian asylum
State shall expel or return (‘refouler’) a
seeker who arrived in Australia in 1989
refugee in any manner whatsoever to
and was immediately detained.
the frontiers of territories where his life
or freedom would be threatened on
The complaint was taken to an
account of his race, religion, nationality, international committee in Switzerland
membership of a particular social
which Australia agreed could hear
group or political opinion.”
such complaints. The committee is not
a court and its views are not technically
The obligation not to expel is not
binding. It is, however, made up of
absolute. A nation may be entitled to
international legal experts.
expel a refugee who has committed
serious crimes such as war crimes or
The committee’s view was that
crimes against humanity or where the
Australia was in breach of its obligation
person is a danger to the security of
not to arbitrarily detain people.8
the nation. A recent decision of the
High Court which addressed some of The Australian government rejected this
view and as the committee is not a
these exceptions was Minister for
court, and can only report Australia’s
Immigration & Multicultural
4
conduct to the General Assembly of
Affairs v Singh.
the United Nations, there was little else
When a government is deciding
the committee could do.
whether to expel a refugee on such
Australia also has specific treaty
exceptional grounds regard must also
be had to international legal obligations obligations over the detention
of children.9
under other treaties.5
There is international recognition of the
Reference
Guy S Goodwin-Gill, ‘The Refugee in
International Law’, 2nd edition,
Clarendon Press, Oxford, 1996.
page 23
rights & responsibilities refugees
Behind the headlines - the facts
According to Oxfam Community Aid
Abroad, 644 out of 1609 applications
for refugee status processed in New
Zealand, Nauru and Papua New
Guinea had been successful as at 30
June, 2002.
Oxfam says these figures contrasted
with media headlines and talk-back
radio commentary, which has
suggested that few of the Tampa
refugees have valid claims for
asylum. One headline in April 2002
stated: “Only seven on Nauru
found to be refugees,”
misrepresenting the situation.
Oxfam says delays by the United
Nations High Commission for
Refugees (UNHCR) and Australian
immigration officials in processing
Nauru-based asylum seekers
seriously disadvantaged hundreds of
Afghan applicants, because of the
change of regime in Afghanistan.
UNHCR regional director Michel
Gabaudan acknowledged this
disadvantage: “If they had been
disembarked immediately (from the
Tampa in August 2001) most of them
- and I say most because there are
some who clearly are abusers would have been recognised as
refugees because they had claims
relating to the Taliban.”
Of the Afghans transferred from
Nauru to New Zealand before the fall
of the Taliban regime, 131 out of 132
were granted refugee status. These
people were mainly families and
unaccompanied young men.
Many Afghan applicants on Nauru
were not initially rejected, as
Australian and international media
reports stated. Rather, the Afghans in
the Pacific detention camps were
given the opportunity to resubmit
information before their cases were
reviewed and finally determined. Many
were Hazaras who feared persecution
by forces other than the Taliban, and
were seeking refugee status in spite
of the regime change in Kabul.
All applications that are rejected can
undergo appeal of the initial rulings
and by July 15 last year, when
Australian immigration officers on
Nauru had started to review initial
decisions rejecting refugee status, no
results were changed in the 18
decisions reviewed.
In contrast, the appeals process by
UNHCR increased the number of
people granted refugee status. For
example, on 12 July the UN released
the first results of appeals for asylum
seekers on Nauru processed by the
UNHCR. Of 83 people initially refused
refugee status, 46 were granted
refugee status on appeal:
• of 65 Iraqis at first rejected, 34 were
accepted on appeal
• of 13 Palestinians rejected, 10 were
accepted on appeal
• of five Sri Lankans rejected, two
were accepted on appeal.
notes
1 The ‘Convention Relating to the Status of
Refugees 1951’, available at
www.austlii.edu.au/au/other/dfat/treaties/
1954/5.html and the ‘Protocol Relating to the
Status of Refugees 1967’, at
www.austlii.edu.au/au/other/dfat/treaties/
1973/37.html
2 The ‘Convention against Torture and other
Cruel, Inhuman or Degrading Treatment or
Punishment 1984’, at www.austlii.edu.au/
au/other/dfat/treaties/1989/21.html; the
‘International Covenant on Civil and Political
Rights 1966’, at www.austlii.edu.au/au/
other/dfat/treaties/1980/23.html; and the
‘Convention on the Rights of the Child
1989’, at www.austlii.edu.au/au/other/dfat/
treaties/1991/4.html.
3 (1997) 142 ALR 331, at www.austlii.edu.au/
au/cases/cth/high_ct/unrep303.html.
4 [2002] HCA 7 (7 March 2002), at
www.austlii.edu.au/au/cases/cth/high_ct/
2002/7.html.
5 See, for example, Article 3(1) of the
‘Convention against Torture and other Cruel,
Inhuman or Degrading Treatment or
Punishment’ which provides that: “no State
Party shall expel, return (‘refouler’) or
extradite a person to another State where
there are substantial grounds for believing
that he would be in danger of being
subjected to torture.”
Article 7 of the ‘International Covenant on
Civil and Political Rights’ provides, amongst
other things, that: “no-one shall be subjected
… to cruel, inhuman or degrading treatment
or punishment.”
An international human rights body in
Switzerland addressed whether the
deportation of a refugee by Australia would
breach this obligation in C v Australia (2001)
Human Rights Committee - Communication Number 900/1999, available at
www.unhchr.ch/tbs/doc.nsf/(Symbol)/
f8755fbb0a55e15ac1256c7f002f17bd.
Views of this committee are not technically
binding.
6 See the ‘Convention Relating to the Status
of Refugees’, Articles 9 and 31.
Pacific Solution refugee applications
processed in New Zealand, Nauru and Papua New Guinea up until 30 June 2002
Total number of
applications processed
by 30/6/02
Applications
for refugee
status
approved
country where
applications
processed
New Zealand
132
131
Applications for refugee
status rejected (before
appeal and review)
Percentage of
applications
approved by
30 June 2002
1
99.2 %
Papua New Guinea
336
245
91
72.9 %
Nauru
1141
268
873
23.5 %
1609
644
965
40.0 %
Total
theverdict winter 2003
7 The ‘International Covenant on Civil and
Political Rights’, provides in Article 9(1) that:
“everyone has the right to liberty and
security of person. No-one shall be
subjected to arbitrary arrest or detention. Noone shall be deprived of his liberty except on
such grounds and in accordance with such
procedure as are established by law.”
8 A v Australia (1997) Human Rights
Committee - Communication Number 560/
1993, available at www.unhchr.ch/tbs/
doc.nsf/MasterFrameView/
30c417539ddd944380256713005e80d3.
9 The ‘Convention on the Rights of the Child’
provides in Article 37(b) that: “no child shall
be deprived of his or her liberty unlawfully or
arbitrarily. The arrest, detention or
imprisonment of a child shall be in
conformity with the law and shall be used
only as a measure of last resort and for the
shortest appropriate period of time…” The
‘Convention on the Rights of the Child’ also
protects the right of children to education, as
do other treaties.
10 See the ‘Convention Relating to the Status
of Refugees 1951’, Articles 12-24.
page 24
family law
an open window
at death’s door?
by Ian Muil
Ian Muil is the editor of
‘Proctor’, the official journal of
the Queensland Law Society,
and Queensland Law
Society group editor.
On New Year’s Eve 2002, Andrew
Clark, a fit and adventurous young
man, recently engaged and soon to
be married, slipped on rocks above a
waterfall in North Queensland. He
desperately grabbed for something to
hold onto but plummeted onto the
rocks below.
When his shocked young friends got
to him it was obvious that his injuries
were fatal. By the time medical
attention was available he was
declared dead.
Three days later, Andrew Clark’s
fiancé, Simone Baker, sought the
permission of the Supreme Court of
Queensland to remove semen and
tissue from her dead fiancé’s body.
She explained to the Court (Simone
Baker v State of Queensland,
Supreme Court of Queensland, Muir
J, Unreported) that she had made
the application so that she would
have the option of later having the
child of her deceased husband-to-be
through artificial insemination.
But Justice Muir of the Supreme
Court dismissed her application for
two reasons.
First, he said that the Supreme Court
did not have the jurisdiction to make
such an order.
Second, he said that even if the
Court did have such jurisdiction,
the facts of Ms Baker’s case did
not warrant the Court exercising
its discretion.
Jurisdiction of the Supreme
Court
The first issue considered by Muir J
was whether the Supreme Court had
jurisdiction to order the removal of
tissue from the body of a
deceased person.
In looking at precedent the Court
theverdict winter 2003
considered a number of other similar
Australian cases.
Simone Baker v State of Queensland
is the fourth such case in Australia
and the third in which the applicant’s
request has been refused.
The only case in which the applicant
was successful was AB v AttorneyGeneral (Victoria).
This was followed by MAW v Western
Sydney Area Health Service in New
South Wales and then by Re Gray
in Queensland.
The Victorian Supreme Court in AB
permitted the removal of tissue, but
subject to a condition that it not be
used without further order. However,
in both MAW and Gray both judges,
after considering the issue of
jurisdiction, concluded that they
lacked the jurisdiction to make the
order sought.
In MAW, the patient was in a coma
and dying following a car accident.
The patient’s wife applied to the
Court to extract sperm from her
comatose husband who was, at the
time the application was made, given
no more than 48 hours to live.
Justice O’Keefe held that the NSW
Supreme Court did not have
jurisdiction to make the order either
under NSW’s Supreme Court Act
1970 or its parens patriae jurisdiction.
This parens patriae jurisdiction, the
judge found, “did not extend to
authorising a non-therapeutic
surgical procedure of the
kind contemplated.”
He said that the paramount
consideration was the promotion of
the health or welfare of the person
lacking capacity – in this case, the
dying man. The judge said it was not
sufficient that by exercising this
discretion others would benefit.
page 25
family law an open door
could be inferred on behalf of Simone
Baker’s dead fiancé, whether that
would have been his wishes.
Though Section 8 of the Supreme
Court of Queensland Act 1991
provides that the court has all the
jurisdiction necessary for the
administration of justice, the Court
interpreted this section narrowly.
Justice Chesterman said: “…the
section does not confer power on the
judges of the court to do whatever
accords with their own, perhaps
idiosyncratic, views of justice. The
jurisdiction is to afford justice to
litigants according to law, ie
established legal principle. The
difficulty in the present case is
identifying any principle which would
justify making the order.”
mainly because of the lack of
consent from the dead or
dying person.
In MAW it was clear that the patient
had not given consent for sperm to
be taken posthumously but Justice
O’Keefe considered whether consent
could be inferred.
He determined that there was
evidence that the patient had not
considered the issue of sperm
donation either for use during his life
or after his death so consent could
not be inferred. The same conclusion
was reached in Gray where
Chesterman J determined that the
deceased had not consented to
the procedure.
He also said that the parens patriae
jurisdiction did remedy the deficiency
in the jurisdiction issue.
He said: “There is no reason to
believe he wished his wife to be
impregnated posthumously.”
In Simone Baker the Court said the
facts were indistinguishable from
those in Gray so the conclusion on
jurisdiction must be the same.
Consent was only one factor
considered by the Courts. Other
factors considered were:
Discretion of the Supreme
Court
Once the jurisdiction issue has been
satisfied the applicant must then
persuade a Court to exercise its
discretion to make an order for the
removal of tissue.
In both MAW and Gray both
applications were rejected on
jurisdictional grounds but in both
cases the Courts also considered
whether discretion should be
exercised in the applicant’s favour.
In both cases, it was held it should
not be for a number of reasons but
theverdict winter 2003
• the best interests of the patient
• the best interests of any child born
as a result of the procedure
• that the application was brought
when the applicant was under
emotional strain and before she
had considered whether the
procedure would be in her longterm interests
• whether the procedure is in line
with community values and
standards
• that the applicant may choose not
to use the extracted tissue.
Justice Muir, in Baker, declined to
exercise his discretion, giving
consideration to whether consent
Justice Chesterman said in Gray
that if the law is not able to respond
adequately to developments in
medical technology this should be
rectified by Parliament “which can
properly access a wide range of
information and attitudes which
can impact upon the formulation of
law that should enjoy wide
community support.”
did you know?
And the decision in Gray was similar.
Justice Muir said: “Had he (Andrew
Clark) turned his mind to the question,
he would no doubt have given anxious
consideration to the best interests of
the applicant and of the child or
children to be born as a result of the
proposed procedure. He would have
seen that the existence of such a child
or children was capable of restricting
the applicant’s ability to pass beyond
grief and start life afresh. He would
have contemplated also the difficulties
which face a single working mother
and the constraints that would be
imposed on her social life and on her
ability to enter into a new relationship
or relationships.”
In 1915 Agnes McWhinney
was the first Queensland
woman admitted to the
Bar. In the same year
women were granted the
right to be admitted to
practise law in
Queensland
The first female Federal
Court judge was
appointed in 1990
Only 21 solicitors’ firms in
Queensland have more
than 10 partners
Queensland’s judges and
magistrates are
independent of the
government, which means
that the government
cannot change the
decision of a judge or
magistrate, or pressure a
judge or magistrate to
decide a matter in a
particular way
page 26
family law
family law
the four great myths
by Prof John Wade
Professor John Wade LLB
(Sydney), LLM (Hons) (British
Columbia), Dip Jur (Sydney) of
Bond University’s Law School
has worked as an Associate
Professor of Law at the
University of Sydney; the
Faculty of Law, Osgoode Hall
(Toronto); the University of
Manitoba (Winnipeg) and
University of Calgary (Alberta).
He was a consultant to the
Australian Law Reform
Commission from 1983
to1987, was acting Dean of the
Bond Law School from 1991
to 1993, is a former member of
the Family Law Council of
Australia and works as a
consultant to the Brisbane legal
firm Hopgood Ganim. He is a
visiting professor at
Pepperdine University, Los
Angeles, Vermont Law School
(2000-2001), Cardozo in New
York (2003) and SMU in Texas.
He is an editor of Australian De
Facto Relationship Reporter
and Australian Family Law and
Practice. He has authored over
90 articles and books, and
received awards for best law
teacher at Sydney University
(1989); Bond University (1990);
and in Australia (1998). He has
also recorded a CD of
Lawyering Music.
Family lawyers are often cornered in
taxis, elevators and supermarkets by
people who seek advice or who want
to express strong opinions. Their
opinions include myths and
generalisations.
In this context, a ‘myth’ is a story
which may have a grain of truth, but
which otherwise is inaccurate. Here
are four of those myths and my
responses to them.
Family Disputes ‘go
to court’
This proposition is like saying ‘sick
people have brain surgery’. A few do,
but the majority do not.
In Australia, there are about 55,000
divorces each year and, at a guess,
another 8,000 de facto couples
separate each year. About half these
people do not hire lawyers and about
one quarter fill in court forms.
However, less than 5% have a judge
make decisions about their lives.
That is, more than 95% of Australian
families who separate or divorce
either abandon any claims or they
reach an agreement.
Hollywood images of courtroom
dramas unfortunately present a false
image of the normal and less
glamorous work of negotiating within
conflicted families.
In a democracy, courts remain
important for many reasons
including to:
• provide guidelines for others
who negotiate
• protect those who are clearly
being exploited
• effect change when legislators are
slow and unmotivated
• apply the rules without bias or
motivation to be re-elected.
theverdict winter 2003
Mothers always ‘get’ the
children
This myth needs to be reworded –
‘mothers in Australia tend to be
responsible for more overnight care
of children each year than fathers do!’
This statement is correct.
However, it is not correct for the
reason that is usually implied – that
judges of the Family Court are
biased in favour of mothers when
there is a dispute over a child. For 20
years the Family Court and High
Court has stated consistently that
there is no legal presumption children
should be physically cared for by
their mothers.
However, there are many
sociological reasons in Australia why
the majority of children will continue
to spend more time with their
mothers than with their fathers.
These reasons include:
• during a marriage, children tend to
spend more time with mothers
than with fathers. These preseparation patterns tend to
continue post-separation
• women tend to have more parttime jobs than males. Accordingly,
they are more ‘available’ to care for
children who are sick or on
school holidays
• conversely, more fathers have fulltime employment than do mothers.
It is usually foolish for a father to
reduce his employment, or threaten
to do so, to ‘look after’ his
children, when the family needs
stable income.
Property is always divided
equally
This myth again is usually wrong.
Remember, less than 5% of
separating couples who formally file
page 27
family law myths
a claim for a share of property in the
Family Court actually get a judge’s
decision. That is, more than 95% give
up or settle by agreement.
Of the few couples who reach a
judge, it is rare for a judge to award
property 50/50. Where the property is
valued at less than $1 million, and
one party is caring for children, it is
common for the homemaker parent,
usually the mother, to receive
between 60% to 70% of the assets.
Case-law interpreting s79 of the
Family Law Act provides a rough set
of guidelines which helps lawyers
negotiate property settlements.
Equal division of property may
appear easy and ‘fair’ but often is not,
particularly where one spouse has
few employment skills, or is sick, or
is caring for children. That partner’s
‘human capital’ has been depleted by
marital responsibilities.
Equal division of property rarely leads
to restoration of equal earning
capacity. This economic reality has
been recognized by s75 (2) of the
Family Law Act, and by case law
interpreting that section of the Family
Law Act since 1976.
Wives end up after divorce
wealthier than men
This proposition is no doubt correct
for a minority of separating Australian
families. However, repeated studies
have shown it is not true for the
majority of Australian families. Men
tend to recover from separation
more quickly economically; more
slowly emotionally.
This is probably because more
separated husbands than their
wives have:
• existing full-time jobs
• more superannuation accumulated
• more time free from child-care
responsibilities to work in paid jobs
• a network of employment contacts
which enable them to gain salary
increases or second jobs.
Conversely, more separated wives
than their husbands have part-time
or no paid employment; have less
superannuation accumulated; have
less flexibility due to child-care
responsibilities; have lower pay
scales and fewer promotion
opportunities as females; and have
theverdict winter 2003
accumulated fewer employable skills,
job networks and confidence than
their ex-spouses.
The reality is that family separation
causes financial stress for all
members of the family unless they
are super wealthy. Two households
cannot live as cheaply as one. Two
households spend at least 30% more
than one household on items such
as rates, electricity, rent, food,
holidays, travel and insurance.
Accordingly, most separating families
must either reduce their
expenditures, or increase their net
income substantially to avoid the
pain of debt.
When changing family laws in
Australia, there has been a tendency
for the ‘squeaky wheel to get the
grease’. Both male and female lobby
groups quote horror stories to
Federal parliamentarians to induce
law reform on the basis that ‘we are
suffering economically more than
they are’.
In the last 15 years there have been
changes in Australian society which
have given more economic power to
wives in separating families. These
changes include:
• enactment and enforcement of
child support legislation that has
substantially increased child
support payments made by
fathers to mothers who are caring
for children
• slowly increasing percentages of
property paid to mothers in
negotiated property settlements
and in the few property disputes
actually litigated
• increasing number of males
retrenched from full-time
employment and unable to find
further full-time employment
• increasing number of women who
delay marriage and child bearing
until they have job skills, networks,
superannuation and employment
• existence of female role models,
anti-discrimination laws and
workplace protocols which provide
more opportunities for females to
be employed, promoted, and take
maternity leave
• On 28 December, 2002
amendments to the Superannuation
Industr y (Super vision) Act 1993 and
the Family Law (Superannuation)
Regulations 2001 came into
operation. This important
legislation enables a divorcing
couple to agree to divide
superannuation expectancies by
notifying the superannuation
trustee of the terms of their
agreement. If they cannot agree, a
Family Court or Federal
Magistrate’s Court can order the
superannuation trustee to divide
the divorcing couple’s
superannuation expectancies into
separate funds, to await collection
upon their respective retirements or
reaching age 55.
Conclusion
In Australia, as elsewhere, there are
various myths, anecdotes and gossip
about how the legal system has
affected separating families. These
myths have a grain of truth in them,
but they are mainly false.
However, they are dangerously
attractive to sensationalist
newspapers, and short-term
politicians seeking quick solutions to
complex social situations.
To every complex social question
there is a simple answer – and
it is wrong.
page 28
technology & the law
cyberlaw
and email disclaimers
by Dr Alan Davidson
Dr Alan Davidson BA
(CompSci) LLM (Research)
PhD is a solicitor and
barrister with computing
science qualifications. He has
published extensively on the
law and computers and is a
regular contributor to
‘Proctor’, the official journal
of the Queensland Law
Society. He is a senior law
lecturer with the T C Beirne
School of Law at the
University of Queensland.
You’ve all seen the legal
disclaimers that appear at the end
of emails. You might even have
read a few. But what is their legal
ef fect? Should we use them?
They’re used, of course, because
of the fear of email defamation,
unintended contract formation and
misdirected emails.
Well, the value of disclaimers is
now established in law.
The case of Hedley Byrne v Heller
[1964] AC 465 is a well-known
precedent on negligent
misstatement. However the
judgment is strictly obiter as the
defendant succeeded because of
the inclusion of a disclaimer.
Some even make a joke out of
disclaimers: the disclaimer begins
seriously but then in the third
paragraph states: ‘If you have read
this far, you must enjoy reading
the white pages’.
The problem
Email disclaimers are routinely
included by many email writers,
more so than with standard mail.
The reasons var y. The nature of
email is that we of ten tend to be
less formal and unguarded. We
reply and send without sufficient
time to reflect and the system of
checks and balances of ten in place
with standard mail is bypassed.
There are many reasons for using
an email disclaimer.
For example, in 1997 Nor wich
Union paid out £450,000 for
defamator y email sent by
an employee.
Defamation, unintended contract
formation, misdirected emails,
confidentiality, legal privilege,
infringement of copyright and other
theverdict winter 2003
wrongful acts, viruses, sexual and
racial discrimination, harassment –
these are some of the reasons for
using disclaimers.
Having said that, the value of a
disclaimer is limited and
questionable.
First, the courts will normally
attach more weight to the actual
content of the email. And there are
occasions where a ‘standard’
disclaimer is clearly inappropriate
considering the actual content of
the email.
This occurs, for example, where
the sender includes a standard allpurpose disclaimer without
addressing the reasons for its
inclusion. And there is no such
thing as a universal disclaimer for
all emails.
Second, cour ts will consider the
circumstances. This may include
such factors as prior
communication and how prior
disagreements were resolved.
Nevertheless courts do respect
disclaimers in the right
circumstances.
But most importantly, the
disclaimer may ward of f legal
action before it commences. A
person contemplating legal action
may think t wice if an appropriately
worded disclaimer is included in
the transmission and the
disclaimer may provide a useful
argument in negotiations to resolve
a dispute.
Horses for courses
The rule of thumb is: if in doubt
include a disclaimer. However, one
of the greatest problems is the
misuse of inappropriate
disclaimers. Consider the purpose
page 30
technology & the law cyberlaw
Sexual and racial discrimination
and harassment
internal emails may result in claims
of discrimination or harassment.
Employees should be informed of
the employer’s policy and expected
practice. Whether liabilit y arises
will depend on whether the of fence
was in the ordinar y course of
business or personal, and other
factors such as the level of
supervision, and the position and
authorit y of the offending
employee. A disclaimer on internal
emails might alert ever yone to the
existence of an employer’s policy
and concerns.
for which the email is sent and
which problem areas may require
protection - there is, for one, a vast
dif ference bet ween commercial
and personal emails.
Confidentiality
an express statement that a
communication is confidential may
ensure it is treated as confidential.
It could be argued that the notice
is inef fectual if it is in small print or
unlikely to be read because it
appears at the end of a message.
So attaching the disclaimer at the
start of a notice rather than
appending it may be appropriate.
Viruses
many writers include a disclaimer
that the recipient has the
responsibility for checking for
viruses. This is questionable,
but it might discourage
disgruntled recipients from
commencing a dispute.
intention behind the transmission.
It might also resolve the internal
responsibility and liabilit y bet ween
employee and employer.
Accidental contract
a disclaimer could clearly set out
the extent to which staf f are
authorised to bind the company or
employer. Any company should
have procedures to guard against
such situations but the nature of
email is that an immediate reply is
of ten possible, if not likely. So a
disclaimer should state: ‘No
employee or agent is authorised to
conclude any binding agreement
on behalf of this firm/company
without the express written
confirmation by a partner/director
of the firm/company.’
Solutions
There are a range of possibilities to
avoid liabilit y from emails.
Don’t use emails – but
that’s overkill.
Alternatively, have a system to
check employees’ and
colleagues’ emails.
Undertake an audit of email use to
determine the level and potential
level of risk.
Use disclaimers, but consider the
content of the disclaimer needed
for the individual circumstances.
Consider whether to append or
prepend the disclaimer or whether
to place a link on the email to a
more detailed site listing the
policies and intentions of the firm.
If in doubt use a disclaimer.
Defamation
employers have been held liable
for defamator y statements made in
emails by employees. A disclaimer
will probably not excuse this when
it’s done in the ordinar y course of
business. When it’s not done in the
ordinary course of business a
disclaimer is not needed but,
again, might be useful as a
negotiation tactic.
Copyright
a disclaimer would not undo a
breach of copyright but may
indicate the level of care taken and
theverdict winter 2003
page 31
independent study
strategies for successful
legal research on the web
by Natalie Cuffe
Natalie Cuffe LLB (Hons),
Grad Dip Lib and Info Stu
(Dist) is an associate lecturer
in the Faculty of Law at
Queensland University of
Technology. She previously
worked as a law librarian in
the QUT law library and
joined the Law School fulltime as an associate lecturer
in January 2002 after being
at the School as a casual
academic since 1998. Prior
to joining QUT she worked
as an associate lecturer and
law reference librarian at
Griffith University, at the
Supreme Court Library of
Queensland, and in private
practice. She is finalising her
Masters thesis titled
‘Information and information
technology use in
undergraduate legal
education’. She regularly
delivers legal research
training courses to the legal
profession and community
groups such as legal studies
students.
Law yers and law students spend a
significant amount of time
undertaking legal research to find
the law to assist their clients and for
their study towards becoming a
law yer. There is an enormous
amount of legal information
available in law libraries and
increasingly on the internet. The aim
of this article is to help you
understand the process of legal
research on the internet and the
range of legal information
available, enabling you to choose
and research an independent
study topic.
There is no single technique that is
right for finding the law in all
situations, but the following
approach is useful for
understanding legal research and
legal resources:
• identif y and analyse a topic –
identif y the problem and
the issues
• commence research of the law
relevant to the issues: the
‘subject’ approach, secondar y
sources for background reading;
the ‘legislation’ approach, primary
source for the actual law; the
‘case’ approach, primary source
for the actual law
• analyse the law and communicate
your results.
It’s important to understand that the
legal research process is not linear
but recursive. You need to evaluate
your initial search results, revise and
refine your search approach and
search terms, and locate additional
information as needed. The first
result you receive on a web search
may not be the best legal
information available.
It is also essential to appreciate that
theverdict winter 2003
whilst there are many advantages to
internet-based legal research, such
as it is fast and generally
encompasses up to date
information, not all legal information
is available on the web. For
example, many older cases are not
yet available electronically. But for
researching contemporary and
topical legal issues the internet is
an excellent resource.
But before we look at legal
research methodology – how do
you manage your research? Do
you keep a record of what you
have searched?
A good approach to managing
legal research on the internet is to
write down what site you have
searched (for example, in AustLII all
High Court cases), the key search
terms that produced the most
successful results (like defamation
and internet), the date you searched
(because information on the internet
is constantly changing) and the
most relevant results found (such
as Dow Jones v Gutnick [2002]
HCA 56).
Identifying and analysing a
topic
The legal system and society
interact in many diverse ways and
deciding on an independent study
topic on a contemporary legal issue
is challenging.
There are a number of sources that
could be useful to you in identifying
a topic.
For example, you could browse the
legal subject areas such as sports
law, women and the law, and
environmental law on WebLaw
w w w.weblaw.edu.au/weblaw/
index.html to look for ideas.
page 32
independent study successful legal research
Newspapers, such as The CourierMail w w w.couriermail.com.au,
could also provide suggestions on
legal issues the community is
currently concerned with. Daily
Earth, w w w.dailear th.com, is a
global newspaper directory that
provides access to
newspapers worldwide.
There are also a range of current
awareness services that alert
law yers to legal news stories, new
table 1
secondary source
web link
Dictionaries
help define legal words
and phrases
See the sitemap on LexScripta for a list of legal dictionaries
www.lexscripta.com/sitemap.html
Journal articles
summaries of a
particular topic
The following provide links to legal journals online:
• sitemap on LexScripta
www.lexscripta.com/sitemap.html
• FindLaw (select ‘Practical Articles’)
www.findlaw.com.au
• AustLII (select ‘Australian Legal Journals)
www.austlii.edu.au
Parliamentary publications
bills, explanatory
memorandums,
parliamentary debates
of proposed law,
parliamentary briefing
papers on topical issues
• Queensland Parliament www.parliament.qld.gov.au
• Parliament of Australia www.aph.gov.au
• See also the Parliament of Australia Parliamentary
Library that provides informative papers and links
through E-Briefs www.aph.gov.au/library/intguide/
hotissues.htm on topics such as caring for the elderly;
legal resources guides www.aph.gov.au/library/intguide/
resourceguides.htm and Current Issues Briefs
www.aph.gov.au/library/pubs/CIB/index.htm on topics
such as disarming Iraq under international law and stem
cell research.
Law reform commission reports
these commissions review
law and recommend
changes
• Australian Law Reform Commission www.alrc.gov.au
• Queensland Law Reform Commission www.qlrc.qld.gov.au
Law portal sites
these index a range of
sites on a particular area
• LexScripta- Essential Web Links for Queensland Lawyers
www.lexscripta.com
• FindLaw www.findlaw.com.au
• National Library of Australia Law Links
www.nla.gov.au/oz/law.html
• Australian Law Online www.law.gov.au is made available
by the Australian government to give access to
government legal information and services nationwide.
Links are provided to Queensland and Commonwealth
legal resources on a range of topics such as crime and
law enforcement, housing, firearms and immigration and
transport.
Search engines
search keywords to locate
relevant sites
theverdict winter 2003
General search engines search all types of sites and
legal search engines search legal sites.
Examples of legal search engines are:
• Law Runner Australia www.ilrg.com/nations/au
• Legal Engine www.legalengine.com
Examples of general search engines are:
• Google www.google.com
• Northern Light www.northernlight.com
See the sitemap on LexScripta for legal and generic search
engines www.lexscripta.com/sitemap.html
legislation and case law. These are
services that you can subscribe to
on the web and you will receive
regular emails about new legal
developments. FindLaw Australia
w w w.findlaw.com.au and Legal
Express News (and Daily Cases and
Legislation) w w w.lexislegal.com/
aus/butter wor ths/ProductInfo/
table 1
legalexpress/n.htm from LexisNexis
Butter worths are good examples of
alert services.
Once you have decided on a topic,
analyse your topic before starting
your research on the internet. Legal
information is often arranged into
broad categories or subject areas
such as torts or contract.
It is important to identif y what
broad legal subject area your
chosen topic falls into so you can
browse legal web sites effectively.
Once you have identified the area of
law, start to articulate the issue or
problem you want to address and
phrase this as a question or series
of questions.
For example, an issue in the area of
family law might be ‘should de facto
couples have the same rights as
married couples?’
The next step is to develop a list of
search terms to start your research.
You can generate appropriate
search terms by thinking of broad
and narrow words surrounding your
topic, synonyms and antonyms for
these words, and possibly noting
the related agencies and courts.
For example, in our family law topic
‘family law’ is a broad word, d
‘e
facto’ is a narrower word, ‘marriage’
is an antonym for d
‘ e facto’ and
the Family Court might be a
related court.
Ensure that when searching on the
web you are aware of the
jurisdiction that the legal
information being viewed comes
from (say, Queensland, Australia),
that it is relevant to your topic and
as current as possible.
Remember that when you are
searching the web for legal
information you need to be as
specific as possible developing
your search statements because
page 33
independent study successful legal research
Locating the law – searching
for primary sources of law
Legal research proceeds from
general information to specific
information, from the
secondary sources of law to the
primar y sources of law.
Primary sources of law are
authoritative records of law made
by law-making bodies. Legislation,
also known as acts or statutes, is
law made by parliament. Case law,
also called common law, is the
authoritative reports of the
decisions of courts found in law
reports and unreported judgments.
Some key Australian sites for cases
and legislation comprise table 2.
Communicate your results
Having located the relevant legal
information on your topic consider
how all the information fits together.
when you are searching on the web
you’re searching an enormous
amount of information very quickly.
The better constructed and more
specific your search statement the
greater likelihood of relevant
search results.
Boolean operators, such as the
words ‘and’, ‘or’ and ‘near’ are useful
in refining search statements. For
example, ‘mabo NEAR queensland’
will find these two terms roughly in
the same paragraph which should
increase the chance of the
concepts being related. AustLII has
a helpful explanation of Boolean
operators and how they can help
your searching w w w.austlii.edu.au/
austlii/help/boolean.html.
Background reading searching for secondary
sources of law on the web
Legal research generally starts with
background reading in secondary
sources of law because you want
some general information.
Secondary sources of law contain a
summary, analysis, discussion and
criticism of the primary sources of
law. There is a wide range of legal
secondary sources available on the
web (see table 1, previous page).
theverdict winter 2003
themes and perspectives emerge?
Are some arguments in the
secondary sources more
persuasive than others?
After evaluating the legal
information you have found, identif y
the line of argument you want to
adopt, analyse the law and apply it
to the issues you have identified,
present your own interpretation and
come to a conclusion. Law yers get
paid to give advice so ensure your
argument, your analysis of the law,
and conclusion logically fit together.
Finally, in communicating the
results of your research write in
plain English. Prepare several drafts
until you are happy with the final
version and that it conforms to an
appropriate legal citation style
guide for legal referencing, such as
the summary of Stuhmcke at
w w w.librar y.uq.edu.au/law/useits/
stuhmcke.html.
When read as a whole, what do the
cases and legislation say? What
primary source
web link
table 2
Legislation
Commonwealth
ScalePlus scaleplus.law.gov.au. This is the legal
information web site of the Commonwealth AttorneyGeneral’s Department containing Commonwealth
legislative data. Browse the legislation by title or do an
advanced search.
Queensland
Office of the Queensland Parliamentary Counsel
www.legislation.qld.gov.au/OQPChome.htm. To find
legislation on a topic select the Search tab, check
current reprints, current acts and current bills, then type
in your search terms. For example, type in ‘ear piercing’
to locate Queensland legislation on the topic. If you
know the name of the Act you want select the Legislation
tab and browse the alphabetical list.
Cases
Commonwealth
& states of Australia
AustLII www.austlii.edu.au – a good site
for Australian case law. Hint - use the Full Search Form
link on the homepage and select the courts and
jurisdictions you want to search. Includes High Court,
Federal Court, Family Court and Queensland Court of
Appeal and Supreme Court decisions
High Court cases
High Court of Australia www.hcourt.gov.au
Queensland cases
Queensland Courts www.courts.qld.gov.au
page 34
independent study
indigenous customary law
by Yvette Holmes
Yvette Holmes BA (Justice
Studies), Grad Dip Teaching
(Secondary) is the schools
& community education
officer at the Queensland
Law Society. Before joining
QLS she worked as a
community correctional
officer with Queensland
Corrective Services and then
a secondary school teacher
in Queensland, specialising in
legal studies. She is currently
completing a Bachelor of
Law at QUT.
a note to year 12s
Your independent research study
should show that you have
attained an in-depth, personal
understanding of an area of law.
Remember, it’s important that
before deciding on a topic for
research you should consult your
teacher. The topics in each edition
of ‘the verdict’ are suggestions
only. You will still be required to
narrow your topic down and
formulate your own hypothesis.
The preliminary research
icon suggests ideas for
further reading on the topic
for important background
understanding.
The research idea icon
suggests a specific angle
for research.
In this edition we suggest that the
recognition of indigenous
What is indigenous
customary law?
It is difficult to define indigenous
customary law in non-indigenous
terms. Hannah Rachel Bell, a cultural
philosopher, spent many years
working and writing with Mowaljarlai,
a senior traditional lawman of the
Ngarinyin people in the West
Kimberley. She outlined to ABC’ s
Radio National Mowaljarlai’s
explanation of Aboriginal law:
“…while western law is written on
paper and in documents, and that’s
real for us and it’s the words, their
law is written in the land. For
example, a rock has the blood of an
initiate or a circumcision ceremony.
And if anybody wants to see how old
the law is for their culture, they have
to see how old it is in the rock itself.
“So their symbols are in landscape
and energy patterns within the land,
and it’s all recorded there. They
receive that law from law people,
people who have been through many
years of learning and studying and
receiving the law from the land. This
is passed on, and the skills to
acquire the law are passed on, from
one generation to another.
theverdict winter 2003
customary law in Australia is a topic
which lends itself to critical evaluation.
“So the recording process is, the
authority comes from the land itself
and from the landscape, and that
goes back tens of thousands of
years, and then it is enacted and
embodied within the traditional
people, within the Ngarinyin people.
So Mowaljarlai, as he reaches certain
stages of his life, is then considered
to receive the next level of law. So it’s
a very long process of education and
training, and it is essentially a spiritual
process as well.”1
Similarly, Torres Strait Islander law,
like any culture, is complex and
sacred, and inextricably linked with
the environment: “As with mainland
Aborigines, Islanders have maintained
a distinctive belief system and
spiritual understanding of connection
to the waters, reefs and land of
island homes.”2
In an address to a forum on
indigenous customary law at
Parliament House in Canberra in 1996
the then Australian Law Reform
Commission President, Alan Rose,
offered a definition of indigenous
customary law:“…the body of rules,
values and traditions which are
accepted by the members of an
page 35
independent study indigenous customary law
Aboriginal or Torres Strait Islander
community as establishing
standards or procedures to be
upheld in that community.”3
The study of indigenous customary
law represents one dimension in the
study of indigenous life and history.
The definitions provided above
clearly highlight that any attempt to
define or carry out research on
indigenous customary law requires
that the basic elements of culture
and environmental influences
be considered.
Indigenous customary law
encompasses a broad set of rules
and unwritten legislation.
Make a list of questions to help
guide your preliminary
research into indigenous customary
law. For example:
• how did indigenous laws evolve?
• what lifestyles were supported by
customary law?
• how did customary laws differ
from community to community?
• how did customary laws
govern social relationships,
economic rights, land ownership,
wildlife conservation and
land management?
• how did indigenous people pass
on customary laws?
• what happened to traditional
customary laws?
• what are some of the problems
that arise from attempting to define
customary law?
• does Australia’s legal
system recognise indigenous
customary law?
For the first 200 years of colonial
history, the issue of customary law
did not occupy the minds of
legal theorists.
For what reasons might a
declaration of the existence of
indigenous customary law during
the first 200 years of Australian
colonial history have been
ignored, forgotten or denied?
Acknowledgment of the role of
customary law did not occur in
Australian courts until 1971. Justice
Blackburn of the Northern Territory
Supreme Court observed in the
theverdict winter 2003
landmark land- rights decision
Milirrpum v Nabalco Pty Ltd and the
Commonwealth4 that indigenous law
was, “a subtle and elaborate system
highly adapted to the country in
which people lived their lives, which
provided a stable order of society
and was remarkably free from the
vagaries of personal whim or
influence…a government of laws not
of men.”5
The claim ultimately failed because
the judge was restricted to following
the precedent that Australia at
‘settlement’ was terra nullius.
The first sign of a broader recognition
of indigenous legal systems came
from the High Court decision in
Mabo v Queensland (No2).6 The
Mabo case ultimately overturned the
decision in Milirrpum.
What important fundamental
propositions did the High Court
decision in Mabo recognise?
The ‘Recognition of Aboriginal
Customary Laws’ was delivered in
1986 by the Australian Law Reform
Commission and stands as the
most comprehensive study of
Aboriginal and Torres Strait Islander
customary laws to date. The
report acknowledged that there is no
general legal recognition given to
indigenous customary law
in Australia.
In the report, the ALRC
recommended against any
comprehensive legal recognition of
customary law throughout Australia.
The Commission recommended the
general incorporation of Aboriginal
customary law into Australia’s legal
system and that the form of
recognition given to the particular
customary law should vary with
the context.
To what extent is indigenous
customary law recognised
in Queensland?
The Legislative Standards Act 1992
(Qld) sets out a list of fundamental
legislative principles which should be
observed in drafting legislation. The
Act requires Queensland
Parliamentary counsel, who draft
legislative bills for consideration by
Parliament, (and, by consequence,
the initiating government
departments) to consider Aboriginal
tradition and Island custom when
drafting legislation.
In 1998, the Queensland
Parliamentary library published a
comprehensive research report,
‘Recognition Given to Aspects of
Indigenous Customary Law in
Queensland’.7 The report looks at
existing mechanisms in Queensland
which facilitate some recognition of
native title including consideration
given to indigenous traditions in
civil and criminal law and in
community management.
The report outlines the following
ways in which Queensland law gives
some recognition to Aboriginal and
Torres Strait Islander tradition:
• allowing the practice of certain
Aboriginal and Islander traditions
• involving indigenous people in
environmental management
• involving indigenous people in
management of their communities;
• protecting areas and objects of
special significance to Aboriginal
and Torres Strait Islander people
In the years since the report was
delivered, the Federal Government
has referred the matter of customary
law to the States and Territories to
resolve, in terms of specific legislative
issues such as sacred sites and
heritage protection, and land rights
legislation. This referral came about
as a result of the indigenous
customary title to land being
recognised at common law and in
Commonwealth and State legislation.
page 36
independent study indigenous customary law
There are many parts of statutory
and common laws that incorporate
or take into account elements of
indigenous customary law. Do
some research to find out what
Queensland legislation and case
law specifically recognises
aspects of Aboriginal and Islander
customary law.
“
customary law
relies on
relationship,
traditions, emotions
and methods of
dealing directly
with each other
“
• allowing aspects of Aboriginal
customary law to be taken into
account in Queensland criminal
law, including when sentencing
offenders and in ascertaining the
state of mind of an accused
• involving indigenous people in local
government law enforcement in
Aboriginal and Torres Strait Islander
traditions at the community level.
What are Community
Justice Groups?
Community Justice Groups were
derived from the response to the
Royal Commission into Aboriginal
Deaths in Custody in 1991.
Community Justice Groups (CJGs)
are now a State-wide program
established by Queensland’s
Department of Aboriginal & Torres
Strait Islander Policy. There are now
approximately 30 CJG’s in existence.
The guidelines for the program are
set out in the Local Justice Initiatives
Program (LJIP). The underlying
In R v Warren,10 Doyle CJ found that
principle is that the members of
the conclusion in Walker v NSW did
indigenous communities themselves
not make Aboriginal cultural law
are best placed to plan and
irrelevant to the criminal law.
implement effective strategies to
Every
jurisdiction
in
Australia
has
its
address their crime and justice
Is Aboriginal & Torres Strait
own criminal laws. Do some research issues. CJG members are generally
Islander customary law
to find out how the different
elders and respected community
recognised by Australian
jurisdictions in Australia recognise
members. An example of how a
criminal laws?
indigenous customary law.
Community Justice Program is set
Comment by Wilson T (2000) Re: The
up is the Kowanyama Community
The difficulty of reconciling
Justice Program. In Kowanyama, the
Australian criminal law and Aboriginal Recognition of Aboriginal
Customary Law at
group is made up of three men and
and Torres Strait Islander customary
law stems from the differing nature of www.law.ecel.uwa.edu.au/ab358/2000/ three women elected by the three
AB3582000/00000032.htm
major clans - Kokobera,
each system.
will
help
you
begin
your
research.
Kokomenjena, and Kunjen.12
According to Nicolson SC:8 “…the
CJGs have opportunities for
Anglo Australian system is built upon
How does Queensland’s
intervention through utilising
impartiality, authority, and rank
customary law and traditional
obedience in the face of punishment, criminal law recognise
indigenous customary law?
dispute resolution as well as
while customary law relies on
through involvement in the formal
relationship, traditions, emotions and Recognition of Aboriginal and Torres
methods of dealing directly with each Strait Islander tradition in Queensland justice system.
other. The Anglo-Australian system of criminal law is generally achieved by
(For further reading see Limerick M,
criminal law is based upon a
promoting the recognition of
‘Indigenous Community Justice
retributive model, while the
Aboriginality within the criminal law.11 Groups: the Queensland experience’
customary law focus is upon
(2002) ‘Reform, Customary Law’,
For example, Section 251(1) – (6) of
restoration, healing and prevention.”
Issue 80, p15.)
the Police Powers & Responsibilities
Under Australian criminal law, an
Act 2000 outline the requirements for
Do some further research into the
individual must take responsibility for questioning Aboriginal and Torres
operation of Community Justice
their own actions. Under Aboriginal
Strait Islander people. The police
Groups in Queensland. For more on
customary law, a person’s actions are officer must:
this see the accompanying article by
recognised as a collective
M Frisby titled ‘Sentencing
• notify a legal aid organisation
responsibility based on kinship
Submissions in the Gulf – a tripartite
• inform the person that a
obligations. In other words, a tribe
and cultural experience’ in this issue
representative of a legal aid
could be considered responsible for
of ‘the verdict’.
organisation has been notified and
the crime of one of its members.
After completing your research,
• allow the person to speak to a
9
evaluate the effectiveness of the
In Walker v NSW, Mason CJ (as he
support person and have a
Community Justice Group system
then was) stated: “English criminal
support person present.
law did not, and Australian
in Queensland.
criminal law does not,
accommodate an alternative body
of law operating alongside it.”
Consider the words of Mason CJ in
Walker. Identify any issues that might
arise in trying to reconcile Australian
criminal laws with Aboriginal
customary laws?
theverdict winter 2003
How does Aboriginal law, culture
or tradition have application with
respect to criminal liability and
defences in Queensland? Should
there be a specific customary
law defence in Queensland
criminal law?
What is the role of Community
Justice Groups in sentencing?
Section 9 (2) (o) of the Penalties and
Sentences Act 1992 (Qld) states that
when sentencing an Aboriginal or
Torres Strait Islander person: “…a
page 37
independent study indigenous customary law
court must have regard to…any
submissions made by a
representative of the community
justice group in the offender’s
community that are relevant to
sentencing the offender including:
• the offender’s relationship to the
offender’s community or
• any cultural considerations or
• any considerations relating to
programs and services
established for offenders in which
the community justice
group participates.
The input of CJGs provides an
opportunity to advise the court on
any customary-law aspects of the
offence and potential punishment.
The community’s input is particularly
important in remote communities
where magistrates hold circuit court
for only half a day every few months
and that court cannot be expected to
understand the local circumstances
and cultural background of each
community they visit.13
According to McKenzie:14 “The
provisions of the Penalties &
Sentencing Act potentially allows the
court to take into account any
traditional punishments that may
have already been carried out in the
offender’s community”.
Does the potential exist for
conflict to arise between
indigenous customary law and the
Queensland criminal law if
traditional punishments are given
consideration in sentencing?
What if traditional punishment
imposed involves violence,
such as spearing? (This conflict has
created difficulties in other
Australian jurisdictions.)
For more on this see Australian Law
Reform Commission Report No 96
(2000), ‘Sentencing: Aboriginal
Offenders’ available on-line at
www.lawlink.nsw.gov.au/lrc.nsf/
pages/r96chp3.
The following cases will assist you
with research into traditional
punishment and the sentencing of
indigenous offenders:
• Re v Wilson Jagamara Walker [1994]
NTSC 79
• R v Minor (1992) 59 A Crim R 227
• R v Miyatatawuy (1996) A Crim R 574
• R v Shannon (1991) 57 SASR
theverdict winter 2003
References
• ABC Radio National, Aboriginal Law,
‘The Law Report’, October 31, 1995
www.abc.net.au/rn/talks/8.30/lawrpt/
lstories/lr311001.htm
• ALRC, ‘Sentencing Aboriginal
Offenders’, Report No 96, 2000
www.alrc.gov.au/inquiries/title/alrc31/
• ALRC, ‘The Recognition of Aboriginal
Customary Laws’, Volume 1,
Canberra, 1986
www.alrc.gov.au/inquiries/title/alrc31/
• Bartholomew P, ‘Recognition given to
aspects of Indigenous Customary Law
in Queensland’, Queensland
Parliamentary Library, 1998
www.parliament.qld.gov.au/Parlib/
Publications_pdfs/books/
rb0898pb.pdf
• Clark G, ‘Not just payback: indigenous
customary law’ (2002), ‘Reform,
Customary Law’, Issue 80
• Frisby M, ‘Sentencing Submissions in
the Gulf – a tripartite and cultural
experience’ (2003) ‘the verdict’, issue 2,
Winter.
• Limerick M, ‘Indigenous Community
Justice Groups: the Queensland
Experience’ (2002) ‘Reform,
Customary Law’, Issue 80
• Sarre R, ‘Sentencing in Customary
Australia: An overview of the issues’,
Australian Institute of Criminology, 1998
www.aic.gov.au/publications/rpp/16/
ch2.pdf
• Wilson T, ‘Re: The Recognition of
Aboriginal Customary Law’, 2000
www.law.ecel.uwa.edu.au/ab358/2000/
AB3582000/00000032.htm
Cases
• Mabo v Queensland (No2) (1992) 175
CLR 1
• Milirrpum v Nabalco Pty Ltd and the
Commonwealth (1971) 17 FLR 141
• Munungurr v The Queen (1994) 4 NTLR
• R v Bara Bara (1992) 87 NTR 1
• R v Burton (SA Supreme Court, No 81
of 1994, Duggan J, 18 July 1994,
unreported)
• R v Rogers and Murray (1989) 44 A
Crim R 301
• R v Juli (1990) 50 A Crim R 31
• R v Warren (1996) 185 CSJS 461 (CCA)
• Re v Wilson Jagamara Walker [1994]
NTSC 79
• R v Minor (1992) 59 A Crim R 227
• R v Miyatatawuy (1996) A Crim R 574
• R v Shannon (1991) 57 SASR
• McKenzie G, ‘Selected Current Issues
in Sentencing’ (2002), Queensland Law
Society CLE seminar
• Walden v Hensler (1987) 163 CLR 561
• Nicholson J, ‘The Sentencing of
Aboriginal Offenders’, (1999) 23
‘Criminal Law Journal’, Vol 23, 85
Legislation
• Oodgeroo Unit, ‘Wayi-Erwer’ (Speak,
Teach) Queensland University of
Technology (2002), an interactive
multimedia presentation of Aboriginal
and Torres Strait Islander People
• Munungurr v The Queen (1994) 4 NTLR
• R v Bara Bara (1992) 87 NTR 1
• R v Burton (SA Supreme Court, No
81 of 1994, Duggan J, 18 July 1994,
unreported)
• R v Rogers and Murray (1989) 44 A
Crim R 301
• R v Juli (1990) 50 A Crim R 31
A summary of these cases can be
found online at
http://www.lawlink.nsw.gov.au/lrc.nsf/
pages/r96chp3.
Use the references, cases and
legislation mentioned above, in
your research.
• Walker v NSW (1994) 69 ALJR 111
• Juvenile Justice Act 1992 (Qld)
• Legislative Standard Act 1992 (Qld)
• Penalties & Sentences Act 1992 (Qld)
• Police Powers & Responsibilities Act
2000 (Qld)
Other useful research sites
and articles on indigenous
customary law
ABC News Online, ‘Fishing Conflict
in Torres Strait’, March 27, 2001
w w w.abc.net.au/am/s266488.htm
ABC News Online, ‘Traditional
Aboriginal Law Debate Reopened’,
May 3, 2002
w w w.abc.net.au/worldtoday/
s547071.htm
Australian Institute of Criminology,
‘Sentencing and Indigenous Peoples’,
Research & Public Policy Series No
page 38
independent study indigenous customary law
16, 1998: w w w.aic.gov.au/
publications/rpp/16/
notes
Chantrill P, ‘The Kowanyama Justice
Group: A Study of the Achievements
and Constrains on Local Justice
Administration in a Remote Aboriginal
Community’, Australian Institute of
Criminology, 11 September, 1997
w w w.aic.gov.au/conferences/
occasional/chantrill.html
1 ABC Radio National, ‘Aboriginal
Law’ The Law Report, October
31, 1995
www.abc.net.au/rn/talks/8.30/
lawrpt/lstories/lr311001.htm
2 Oodgeroo Unit, ‘Wayi-Erwer”
(Speak, Teach) Queensland
University of Technology (2002),
an Interactive Multimedia
Presentation of Aboriginal and
Torres Strait Islander People
McLaughlin R, ‘Some Problems and
Issues in the Recognition of
Indigenous Customary Law’ (1996),
ILB 20; 3 (82)
3 Bartholomew P, Recognition
given to Aspects of Indigenous
Customary Law in Queensland,
Queensland Parliamentary
Library, 1998, p2
www.parliament.qld.gov.au/
Parlib/Publications_pdfs/books/
rb0898pb.pdf
Northern Territory Government of
Australia, media releases: Customary
Law Review, 16 October, 2002
w w w.nt.gov.au/ocm/media_releases/
20021016_customlaw.shtml
Radio National, ‘Aborigines and the
Criminal Justice System’, The Law
Report, 25 April, 2000
w w w.abc.net.au/rn/talks/8.30/lawrpt/
stories/s121656.htm
4 (1971) 17 FLR 141
5 Ibid.
6 (1992) 175 CLR 1
7 Bartholomew P, Recognition
given to Aspects of Indigenous
And try a Google search using the
terms ‘Indigenous Customary Law’
and ‘Aboriginal Customary Law.’
Customary Law in Queensland,
Queensland Parliamentary Library,
1998
8 Nicholson J, ‘The Sentencing of
Aboriginal Offenders’, (1999) 23 Crim
Law Journal, Vol 23, 85, p87
9 (1994) 69 ALJR 111
10 (1996) 185 CSJS 461 (CCA)
11 Bartholomew P, Recognition given to
Aspects of Indigenous Customary Law
in Queensland, Queensland
Parliamentary Library, 1998, p22-23
12 Limerick M, ‘Indigenous Community
Justice Groups: the Queensland
experience’ (2002) Reform, Customary
Law, Issue 80, p15
13 Frisby M, ‘Sentencing Submissions in
the Gulf – a tripartite and cultural
experience’ (2003) the verdict, Issue 2,
Winter
14 McKenzie G, ‘Selected Current Issues
in Sentencing’ (2002), Queensland Law
Society, CLE Seminar
heard it in court
Lawyer
What device do you have
in your laboratory to test
alcohol content?
A
I have a dual column gas
chromatograph, HewlettPackard 5710A with flame
ionization detectors.
Lawyer
Did he pick the dog up
by the ears?
A
No.
Lawyer
What was he doing
with the dog’s ears?
A
Picking them up in the
air.
Judge
Where was the dog at
this time?
Can you get that on mag
wheels?
A
Only on the floor models.
Lawyer
A
Lawyer
What was the first thing
your husband said to you
when he woke up that
morning?
A
He said, “Where am I
Cathy?”
Lawyer
And why did that upset
you?
A
My name is Susan.
Lawyer 1
When he went, had you
gone and had she, if she
wanted to and were able,
for the time being
excluding all the restraints
on her not to go, gone also,
would he have brought
you, meaning you and she,
with him to the station?
Lawyer 2
Objection. That question
should be taken out and
shot.
Attached to the ears.
Lawyer
Are you married?
A
No, I’m divorced.
Lawyer
And what did your
husband do before you
divorced him?
A
A lot of things I didn’t
know about.
theverdict winter 2003
Lawyer
This myasthenia gravis,
does it affect your memory
at all?
A
Yes.
Lawyer
And in what ways does it
affect your memory?
A
I forget.
Lawyer
You forget. Can you give us
an example of something
that you’ve forgotten?
page 39
crime & society
aboriginal justice
and sentencing submissions in the gulf country
by Meg Frisby
Meg Frisby is associate to
Judge M W Forde of the
District Court. This is an
edited version an article
published in the November
issue of Proctor, the
Queensland Law Society
official journal.
Last July Judge Forde and a court party
of nine travelled on circuit to three
isolated Aboriginal communities in the
Gulf of Carpentaria – to Mornington
Island, Doomadgee and Normanton.
The Court has established a procedure
for submissions to be made and though
written submissions are required the
Court is flexible and aims to be informal
so does accept verbal submissions.
The court party consisted of Judge
Forde; Mr Peter Smid of the Townsville
Public Prosecutors office; DPP clerk Mr
Colin Morrison; Legal Aid Brisbane
defence barrister Mr Tony Moynihan;
ATSIC’s Mt Isa legal aid officer Mr Keith
Murdoch; Palm Island Community
Corrections Officer Mr Ed Naglik; Cairns
court reporter Ms Karen Wybrow; two
pilots and me.
CJG members take their roles seriously
and their contribution to the eff
ectiveness of the criminal justice system
in these remote communities cannot
be undervalued.
Prior to the circuit taking place, an
Alyawar (an Aboriginal word for manual)
was prepared for everyone, outlining
everything from local tribes, fuel stops,
maps, planned meetings with local
Community Justice Groups (CJG’s) and
other community activities.
All charges dealt with by the court were
serious violent assaults and unlawful
wounding, often involving verbal abuse
and ‘growling’ which is intimidation.
All offences were alcohol related.
Under the Penalties & Sentences Act
1992 and Juvenile Justice Act 1992
judges, when sentencing
Aboriginal or Torres Strait Islander
offenders, must consider submissions,
written or verbal, from the local CJG
which is made up of respected
members from the local community.
Under Queensland law, a judge
cannot impose Aboriginal customary
law in a sentence.
The CJG submissions include details of
the offender’s work history; family
support; whether the relationship
between offender and complainant has
been maintained; cultural
considerations; offenders past
performance of court orders and their
suitability for other orders or programs;
indications of remorse; co-operation with
the CJG; and willingness to
make restitution.
theverdict winter 2003
These groups are a permanent authority
in the community long after the judge
has left. Their presence in the courtroom
is palpable. Often a court order may
require an offender to appear regularly,
with their family, before the CJG to
discuss their behaviour. This gives the
group an opportunity to voice opinions
on the expected code of behaviour.
The level of involvement and
participation in the sentencing
process varies among the communities
according to the make-up of the group,
and how long the CJG has
been operating.
But a major problem is the same
problem courts experience with most lay
people - lack of knowledge and
understanding of the legal system and
the way it operates.
Some details of the operation of CJGs in
each of the areas in our circuit:
Mornington Island – the Lardil people
The population of Mornington Island is
1,200 of whom 55 are non-indigenous.
The island is an isolated Aboriginal
community 444km north of Mt Isa.
Transportation to the island is by air only.
A stock barge from Karumba, 13 hours
travelling time, services the island once
a week. The township of Gununa began
in 1914 when a Presbyterian mission
settlement was established on the island.
In 1978, the community reached
agreement with the State Government
for self-autonomy via the Mornington
Island Shire Council. The Council
provides the main source of employment
on the island through general labouring
and the works of the Community
page 40
crime & society aboriginal justice
“
trust is an
integral part of
Aboriginal
culture
“
Development Employment
Program (CDEP).
Housing on Mornington Island has been
described as “on par with third world
standards.” Most housing on the island
is rental which means the local Council
is unable to raise revenue through rates
as all residents rent, usually from the
Council. Revenue is instead raised via
the canteen and imposition of a weekly
levy on all households.
We met with Robyrta Felton, a tribal
elder, member of the local Junkuri Laka
(Straight Way) CJG and field officer for
West ATSIC Legal Aid. She is
responsible for liaising with the accused
and informing them when they must
appear before the court.
temporarily appointed to oversee the
programs for eight hours a week.
locals buy black-market liquor at inflated
prices – $250 for a carton of beer.
One CJG member told us many
offenders fail in their community service
because “people are shy and they won’t
approach people like that.” The
Department of Corrective Services says
they are aware of this cultural barrier and
are looking at other avenues, including
employing an elder to co-ordinate
community service.
Doomadgee is a town of despair and
run down. The police told us that towards
the end of the week the local nursing
home must be ‘locked down’ as families
harass relatives for their pensions so they
can buy liquor.
Another elder said that when offenders
try to behave themselves, they often
don’t have the support of their families
and when people want to “stay off the
grog they are pressured to go
onto it and then they get carried away.”
Another said that families buy other
family members drinks and if they “don’t
accept the drink they are discounted
from the family.” All members agreed
that suspended sentence orders are
effective as they remind offenders that
jail may be imminent.
The Mornington Island Shire Council
employs six indigenous Community
Police Officers (CPO’s) who work for the
police. Their role involves bringing
people into the station for questioning
Because of the high level of intoxication
and enforcing council by-laws. This is a
of many locals from Wednesday to
Saturday, some elders prefer to move to positive way of breaking down cultural
barriers between indigenous and nontheir outstations over this period. Some
offenders serve parts of their probation at indigenous locals and Queensland
police officers conduct blue light discos
outstations performing maintenance
for school children. The elders and
work. However, during the wet season,
police have great respect for each other.
this can make reporting almost
impossible as there are usually
Most women who are victims of family
no phones.
violence live at the women’s shelter in
Outstations are a useful diversionary
mechanism for offenders at risk of
abusing alcohol. It gives them an
opportunity to d
‘ ry out’. Some outstations
are used for offenders banished from the
community by elders.
Outstations can be small shacks,
buildings or tents in remote areas. Some
outstations are on islands accessible
only by dinghy. Most outstations are the
traditional homes of tribes and have no
electricity or modern amenities.
Visiting outstations is prohibited
without permission.
Because the community is small, it is
important for a CJG member to disclose
any relationship with the offender when
making sentencing submissions.
A problem with community service on
the island is that there is no permanent
co-ordinator to organise community
service activities which include general
maintenance work around the church,
neighbourhood centre and football field.
The Uniting Church minister has been
theverdict winter 2003
Gununa. They are taken there by the
police with their children and usually
stay there until their partners have d
‘ ried
out’ or it is safe to return.
There is no alcohol counsellor on the
island. This is a problem as alcohol
consumption is the major cause of
offences here and the elders are
campaigning for Mornington Island to be
declared a ‘dry’ area.
Doomadgee – the Ganggalida people
Doomadgee, on the Nicholson River
between Burketown and 100km east of
the Northern Territory border, has a
population of 1,200 and 60 nonindigenous people. The Christian
Brethren settled the Aboriginal mission
site in 1937. Self-administration via the
Doomadgee Aboriginal Community
Council started in 1983. Doomadgee
has one local store.
The community has been declared a
dry town where no alcohol is to be sold,
only beer but, we were told, spirits are
smuggled in. This s‘ ly-grogging’ means
In Doomadgee, Uncle Tommy O’Keefe,
an elder from the Ngooderi-Mabuntha
(Doomadgee Morning Glory) CJG met
with the judge before Court
commenced. This was an opportunity
for the judge to be informed of the severe
social problems troubling the community.
Normanton – the Gkuthaarn people
The population of Normanton is 1,328. It
is a typical country town with service
stations, hotels, a TAFE and pharmacy.
Normanton, 356km east of the Northern
Territory border, has a courthouse and
registry, in the other communities the
courtroom was part of the police station.
Laurie West, an elder from the Lamberr
Wungarch (Fighting Stick) CJG met with
the judge informally and he invited us to
the Crusader’s Cup football match. This
carnival involved children from most
communities in the Gulf area. Attending
a community function is an extremely
important part of building rapport with
the locals.
But the indigenous people here
apparently view the District Court with
scepticism mainly because of the
number of different judges who preside
over the Court. Trust is an integral part of
Aboriginal culture – trying to establish
meaningful rapport with indigenous
communities without trust is futile.
This is best exemplified in a letter we
received after circuit from Bambi Felton,
co-ordinator of Mornington Island CJG,
who wrote that the CJG were “very keen
to make our recommendations to the
courts work” and that it was important to
her CJG “that they deal with the same
judge in order to foster and build a
strong relationship.” At the opening of the
Community Justice Centres in Bamaga
and Kowanyama in April 2000, Chief
Justice Paul de Jersey stressed the
need for “courts to work with the
community to produce more productive
results” and he affirmed that “we judges
endeavour to work with you, to mould a
more just society.”
To achieve this, court processes must
be appropriate to local indigenous
groups, a specific judge should be
appointed to remote circuits, and
information must be shared.
page 41
the legal system
major reforms mooted
for a ‘hands on’ parliament
by Karen Struthers
Karen Struthers is the Labor
Party member for Algester in
the Queensland Parliament.
She chairs the Parliamentary
Legal, Constitutional and
Administrative Review
Committee and sits on a
number of other
parliamentary committees.
She holds a Bachelor of
Social Work (Honors) from
the University of Queensland
and holds a graduate
management qualification
from Griffith University’s
Graduate School of
Management. Prior to her
election to Parliament in 1998
she was assistant director of
the Queensland Council of
Social Service.
theverdict winter 2003
This article concerns a Parliamentary
committee inquiry into Aboriginal and
Torres Strait Islander peoples’
participation in Queensland’s
democratic process.
The consolidation of the Queensland
Constitution has been ongoing for
many years. Much of this work
culminated in the report of the
Queensland Constitutional Review
Commission (QCRC) which was
tabled in the Queensland Parliament
on 29 February, 2000.
The issues paper was released in
December 2002. This paper sets out
the background to the inquiry,
examines issues arising and
examines some strategies which
might enhance the participation of
indigenous people in Queensland’s
democratic processes.
The five strategies outlined in the
issues paper are:
• enhancing participation in
existing processes through, for
example, civics and voter
One of the recommendations of the
education, political party
QCRC was that, during the life of the
encouragement, mentoring and
next Parliament, the Legal,
youth parliaments.
Constitutional and Administrative
• direct input into Parliament
Review Committee (LCARC) conduct
systems whereby a representative
an inquiry into the possibility of
body, either a new body or an
special representation for Aboriginals
existing body such as the
and Torres Strait Islanders.
Aboriginal & Torres Strait Islander
Commission (ATSIC) or the
Aboriginals and Torres Strait Islanders
Aboriginal & Torres Strait Islander
are the original inhabitants of
Advisory Board (ATSIAB), could
Australia and represent more than 3%
provide direct input to Parliament
of the Queensland population, yet
which might help ensure issues
only one indigenous person has ever
relevant to indigenous people are
been elected to the Queensland
heard in Parliament. This direct
Parliament - Mr Eric Deeral.
input could take many forms
LCARC is a Parliamentary committee
including asking questions on
with a broad range of law reform
notice of ministers, reporting to
responsibilities granted under the
Parliament on the implications for
Parliament of Queensland Act 2001.
indigenous people of bills, and
addressing Parliament on bills
The Committee considers the issue
directly affecting indigenous
to be an important one and has acted
interests. Some Canadian
on the recommendation of the
provinces allow public input into
QCRC. There are strategies which
bills and question time. A joint
can help to increase the involvement
parliamentary and community
of indigenous Queenslanders in the
committee might be another
development of legislation and
mechanism to provide direct input
government policy which directly
into Parliament.
affects their rights and interests.
•
an Aboriginal & Torres Strait
The strategies examined in the
Islander Assembly this could
Committee’s issues paper are just a
operate in parallel to the Legislative
few examples of what could be
Assembly and meet and report
considered. The Committee is also
back to the Queensland
seeking other suggestions from
Parliament. Norway has a separate
members of the community.
assembly for the Sami people. In
page 42
the legal system major reforms mooted
the United States, indigenous tribes
roll or the Maori electoral roll. In
have formed the National Congress
Maine, USA, two seats are
of American Indians to form
reserved in the state
consensus-based policy to present
legislature for the main Indian
to government.
tribes. These representatives can
sponsor legislation but are not
• dedicated seats a set number of
entitled to vote.
seats could be set aside in
Parliament for indigenous
• changes to the electoral process
members. Such members could
the current electoral system in
have all the same rights and
Queensland does not necessarily
privileges as members in general
achieve representation of the broad
seats or their rights or role could
range of interests within society. In
be limited to speaking, voting and
particular there is a risk that
asking questions on matters
minority groups will be
directly relevant to indigenous
underrepresented especially if the
people. Dedicated seats are used
group is geographically spread
in New Zealand to ensure Maori
throughout the state. The electoral
representation. Maori people can
system in New Zealand, the
elect to be on the general electoral
‘mixed-member’ proportional
system, or some other system,
may provide an opportunity for a
more representative legislature. A
fundamental change to the
electoral system would raise issues
which would extend beyond the
scope of the current inquiry.
However, if the Committee
receives evidence that changes to
the electoral system would be
advantageous and appropriate it
could recommend a review of the
electoral system, either by a future
Parliamentary committee or some
other body.
The issues paper discusses
each of these strategies in more
detail, outlines advantages and
disadvantages of each and raises
issues for comment. The
Committee hopes that the issues
paper will stimulate discussion about
the issues and that people will make
submissions which generate
further options for the Committee
to consider.
Over the coming months the
Committee will undertake face-toface consultation with relevant
organisations and in communities
throughout Queensland through
public hearings, community
meetings and visits to some
regional areas.
For updates about the inquiry join
the subscriber list at
www.parliament.qld.gov.au/
Committees/LCARC/
LCARCHandsonParl.htm.
Queensland Police Museum
The Queensland Police Museum
runs a popular education program
that caters for years 5 to 12 and is
closely tied to the current
curricula. The majority of their
school aged visitors are in years
10 to 12 and are completing study
in Forensic Science, Multi-strand
Science and Legal Studies. The
lure of Forensic Science to
students is strong, hopefully not
just because of the type of
theverdict winter 2003
evidence usually associated with this
type of scientific investigation, but
because it represents an interesting
police activity and is often at the
forefront of technological advancement.
The Police Museum is open Monday
to Friday 9am - 4.00pm. Group visits
can be booked for between 30 January
and 15 December. Informative talks are
given to groups visiting on Tuesdays
and Thursdays at 10.30am, 1.00pm
and 2.30pm, and on Wednesdays at
9.00am, 10.30am, 1.00pm and
2.30pm.
Bookings are essential. Education
kits are posted, faxed or emailed to
schools after a booking has been
made. Groups are booked in for
periods of 75 minutes.
Please contact Police Museum staff
for information and bookings on
3364 4013 or fax 3236 0954.
page 43
the legal system
legal history
by Tom Sullivan
Tom Sullivan is president of
the Queensland Law Society.
This is an edited version of a
speech delivered by Queensland
Law Society President Tom Sullivan
at a Legal Studies Conference at
Bundamba State Secondary
College. The conference was
attended by over 200 students from
10 schools.
Queensland Law Society takes very
seriously its duty to promote the
rule of law and the most significant
way in which we can undertake that
duty is to ensure our students know
and understand the rule of law and
its basic relevance to our way of life
in Australia.
We are fortunate to live in a free,
democratic country. In simple terms
the rule of law provides that ordinary
citizens can live in a country where
government respects the
independence of the courts, and the
lawyers who appear in them; ensures
that its citizens are always afforded
natural justice; and ensures the
freedom of the press.
Law yers drew up Urukagina’s Code
for the King of Mesopotamia in about
2350 BC - and history records that
the Ten Commandments were
delivered much later, about 1300 BC.
The legal principles and practice that
we recognise today as fundamental
to a civilised society are not all that
new – the Egyptians around 2000 BC
had an advanced legal system with
specialised judges, testimony was
given under oath, corrupt officials
could be dismissed and punished
and damages could be awarded to
a victim.
The Babylonians developed a Code in
1700 BC which had 282 clauses
covering every aspect of their society
and while some of the penalties
might be judged today to be a bit
theverdict winter 2003
extreme, there was a comprehensive
and independent judiciary with due
and proper procedures.
Under this Code defamation was
punished by cutting out the tongue
of the guilty, a man’s lower lip was
sliced off if he kissed a married
woman, and a sliding scale of
penalties for theft decreed that one
finger be chopped off, increasing to
two hands depending on the
magnitude of the crime.
The earliest known legal decision
revealed in an Egyptian clay tablet
from about 1850 BC was a victory for
early feminist principles. Three men
were accused of murdering a temple
employee and it came to light that
the victim’s wife knew of the murder
but remained silent. She was also
accused and the prosecution asked
for the death penalty.
However the woman called witnesses
who testified that she had been
abused by her husband, was not part
of the murder plot, and was actually
worse off financially and socially as a
result of her husband’s death. She
was acquitted but the three men
were executed.
Much of our language today is
related to early legal history.
The Babylonian Code introduced the
principle of ‘an eye for an eye, a tooth
for a tooth’ while the term d
‘ raconian’,
which means very tough, stems from
the Greek lawyer Draco who, in
about 620 BC, drew up a
comprehensive legal code which
would have satisfied the most
militant law-and-order zealot.
Regrettably, his popularity was so
great that he was literally killed with
kindness. When invited to a civic
reception in his honour, Draco was
showered with the cloaks of all the
adoring guests, as this was the
page 44
the legal system legal history
customary way of showing
appreciation, but he was smothered
to death.
The word ‘justice’ comes to us from
the Byzantine Emperor Justinian who,
in 529, had all laws codified and
updated - even today much of the
base for civil law derives from
principles he enunciated some 1,950
years ago.
Basic principles are timeless.
Making laws for a well-ordered
society has occupied humankind
since the very dawn of history. Law is
a living thing that must reflect the
evolving attitudes of the community it
serves. A good law is a servant of a
society, not its master.
At the recent Commonwealth Law
Conference in Melbourne Prime
Minister John Howard, himself a
lawyer, spoke of the necessity and
significance of the rule of law. He
named the three critical elements in
preserving the rule of law:
government, the legal system, and
the media.
Citizens aware of their rights are the
best citizens because they can keep
a careful eye on what their
governments do.
Legal Studies Conference Bundamba State Secondary College
Each year students from a number of schools in the Ipswich and West Moreton area attend a Conference
organized for Year 11 students. The Conference aims to provide students with the opportunity to attend
workshops conducted by members of the legal profession on a variety of topics. The workshops focus mainly
on Criminal Law, which is the topic students study at the time of the conference.
some conference delegates (l-r)
Robyn Wheeler, Bundamba State S C
Jason Hausex, Bundamba State S C
QLS President Tom Sullivan
Katie Mahoney, Ipswich State High
Angela Oddi, Ipswich State High
Ashley McPherson, Bundamba State S C
also at the conference (l-r)
David Williams, Westside Christian College
Lenise Jacobs, Ipswich State High
Loren Watts, Westside Christian College
Rebecca Mack, Bundamba State S C
Tammy Fogarty, Bundamba State S C
QLS President Tom Sullivan
Amy-Lee Maddock, Redbank Plains State High
Bundamba State S C legal studies teacher and
conference organizer, Debbie Perrett
theverdict winter 2003
page 45
celebrity suits
chemical warney
on a sticky wicket?
by Jacqueline Rogers
Jacqueline Rogers BA LLB
is a co-ordinator in
Continuing Legal Education
at the Queensland Law
Society. Prior to that she was
a secondary school teacher
in Queensland and London,
specialising in legal studies.
She also holds a postgraduate Diploma in
Education.
Shane Warne, considered by many to be
Australian cricket’s greatest spin bowler of
all time, has been banned from playing the
game for one year following a decision by
an independent Australian Cricket Board
Tribunal for testing positive to a banned
diuretic. The decision created
considerable controversy. Warne was
going to appeal, but has decided not to.
Many criticised the penalty as too harsh,
others asked why the standard two-year
ban was not applied.
There are a number of other questions:
In which court did the drugs hearing
take place?
Warne’s case was not heard in a court, but
before an independent Australian Cricket
Board Tribunal. Sports tribunals are not
required to follow the same legal principles
as are law courts - the hearing is closed
and confidential. There is no prosecution
as such - Warne returned a positive test
and unless he has an acceptable excuse
will be penalised. Although witnesses are
called, they are not compelled by the court
to give sworn testimony.
Who were the different parties
involved in the hearing?
Warne charged with returning a positive
sample of urine for a prohibited diuretic.
Australian Cricket Board (ACB) the
governing body for cricket in
Australia, specifically the ACB’s antidoping committee.
Panel three experts who listened to the
evidence and needed to decide: (a)
whether Warne could reasonably be
excused; (b) if not, what his penalty should
be. The panel consisted of The
Honourable Justice Glen Williams of the
Supreme Court of Queensland (Appeal
division), Dr Susan White and former
cricketer Peter Taylor.
Warne’s lawyer Jeffrey Sher, a
high-profile and well respected Victorian
barrister who has also represented sprinter
Cathy Freeman. He was assisted by
junior counsel and Warne’s solicitor,
Ian McCubbin.
theverdict winter 2003
Lawyer (or counsel) assisting the panel
Elizabeth Brimer
Witnesses the Committee heard evidence
from seven witnesses: Shane Warne; his
mother Brigitte, who gave him the fluid
tablet; Dr Peter Harcourt; ACB medical
officer Dr Trevor James; Warne’s treating
physician Dr Greg Hoy; the director of the
drug testing laboratory, Dr Ray Kazlauskas;
and Australian Sports Drug Agency
education officer Mr Tim Burke.
Under what legislation was
Warne charged with taking a
prohibited substance?
The tribunal examined the case under the
anti-doping policy of the ACB. There is a
federal body that deals with drugs in sport the Australian Sports Drug Agency (ASDA).
It is a Commonwealth statutory authority
(their authority is given to them by statutory
legislation) which delivers a
comprehensive anti-doping program,
including drug testing, education, policy
advice and advocacy under the ASDA Act
1990. ASDA works with sporting bodies
such as the ACB to help implement their
anti-doping policies.
To read more on the ASDA, go to
www.asda.org.au
Who tested Warne?
ASDA collects the urine samples which
are then analysed by the Australian Sports
Drug Testing Laboratory (ASDTL). ASDA
does not make judgement on positive test
results, the levels recorded or investigate
how the substance entered an athlete’s
sample. Sporting organizations, in this
case the ACB, may examine these factors
as part of an anti-doping tribunal process.
ASDA is not involved in the tribunal or
sanctioning process, but merely reports to
the sporting body and the athlete
concerned that prohibited substances
have been detected in an athlete’s sample.
What was the charge?
Shane Keith Warne was charged with a
breach of clause 4.1(b) of the ACB antidoping policy: “A player commits a doping
page 46
celeberity suits chemical warney
offence if the player uses or takes
advantage of a prohibited method unless it
was for a therapeutic purpose or there are
exceptional circumstances.”
What is a prohibited method?
A prohibited method is the chemical or
physical manipulation of a drug sample the use or taking of substances which: (a)
alter; (b) attempt to alter; or (c) may
reasonably be expected to alter the
integrity of and validity of samples used in
doping controls.
Taking diuretics constitutes a prohibited
method because diuretics are ‘masking
agents’ - they can mask or hide the
presence of performance enhancing
drugs in an athlete’s sample. For example,
if a diuretic is present in the sample, it is
often impossible for drug testing
procedures to determine whether or not
anabolic steroids have been taken. The
sample has effectively been chemically
manipulated and cannot be considered a
valid sample.
The presence of a diuretic does not
necessarily mean Warne took an illegal
performance-enhancing substance - he
vehemently denies that he did, saying he
is such a good cricketer he doesn’t need
to, but that is irrelevant.
Diuretics alter the sample and are capable
of masking illegal substances - whether
they are actually masking something is of
no consequence. Given that diuretics
manipulate a sample you can never say
with 100% certainty that no illegal
substance was used. That’s why taking
them is prohibited.
What did Warne’s counsel argue?
One, that there was a ‘’mental element’ in
the offence. The player had to have an
intention to use a prohibited method when
taking the drug. That is, the ACB had to
prove that Warne purposely took the
diuretics with the intent of chemically
manipulating his sample.
Two, that there were e
‘ xceptional
circumstances’ in Warne’s case:
“Exceptional circumstances exist if the
player held an honest and reasonable
belief in a state of facts, which if they
existed would mean that they did not
commit a doping offence.”
The onus of proof is on the player to
establish exceptional circumstances.
Warne claims he honestly and reasonably
believed he was taking was a fluid tablet,
not a diuretic. He tried to convince the
Tribunal of this by claiming that:
• the tablet was given to him by his mother
from a sheet of tablets that clearly
theverdict winter 2003
named the drug as ‘Moduretic’. Warne
claims he could not read that because
the flaps on the tablet box were torn.
• the ACB and ASDA run sessions for
players at which the anti-doping policy is
explained. Although Warne attended
these he maintained he did not learn
from them the consequences of using
diuretics or other drugs.
• although the ACB provided Warne with
their anti-doping policy, Warne said he
never read such material.
• Warne claims he was not aware he
could call a hotline service, run by
ASDA, or phone medical officers if he
had any queries about a drug.
represent Australia in international
competition
• ban the person from competing in any
events or competitions conducted
What was the decision?
under the auspices of the ACB or any
The ACB is not required to prove that
member
Warne had the specific intent to use the
drug as a masking agent. The reason that • make the person ineligible to receive
diuretics are prohibited is that because
direct or indirect funding or assistance
they chemically alter the sample it is
from the ACB or any member
impossible to tell whether an illegal
• ban the person from holding, or
substance is being masked, let alone
continuing to hold, any position within
whether there has been a pre-meditated
the ACB or any member, including as an
intention to do so.
officer or employee
The evidence establishes that Warne took • require that the person remain on
a diuretic: although he says the flaps where
ASDA’s register of athletes for out-ofthe name of the drug was printed on were
competition testing for two years.
torn, the name was there if he chose to
Why was the penalty reduced?
look; he clearly knew it was a chemical
Clause 8.3 of the ACBs anti-doping policy
available only on prescription; he
states: “The Tribunal may vary the period of
clearly intended the chemicals in the
the sanctions imposed on the basis of any
tablet to alter his body integrity, albeit
cosmetically; he made no inquiries about report, statement or evidence provided
during the hearing by the ACB anti-doping
the content of the tablet, nor any attempt
medical adviser.” The medical adviser in
to contact the ACB medical officer or the
this case was Dr Peter Harcourt. He
Australian team doctor before taking it,
reported that Warne had no performance
despite the fact the tablet could have
advantage from the use of Moduretic and
contained any banned substance.
may have been at a disadvantage due to
Unfortunately for Warne, the panel
fluid reduction caused by diuretics.
concluded that much of his
Warne’s recovery from his shoulder injury,
evidence on lack of knowledge about the
a suspected reason for him trying to mask
anti-doping policy was not entirely
steroids in his system, was not unusually
truthful and did not accept he was
rapid but consistent with normal
unaware of the consequences of using
rehabilitation. His medical opinion was that
diuretics or other drugs.
Warne did not require anabolic
steroids to facilitate his recovery from the
He also gave “vague and unsatisfactory”
evidence about the extent of his use of the shoulder injury and there was no direct
evidence of steroid use by Warne. In any
diuretics, as did his mother.
case, spin bowling is almost exclusively a
Bearing these issues in mind, the panel
skill activity and Warne would have
concluded that Warne could not have held received no performance advantage from
an “honest and reasonable belief” that
the use of steroids.
what he took was simply a fluid tablet. He
Having regard to this evidence, the
was therefore unable to establish a
Tribunal thought the penalty should be
defence of exceptional circumstances.
varied as provided for in Clause 8.3.
What is the penalty?
When can Warne play cricket again?
Where the doping offence involves a
He will be eligible for selection for Australia
prohibited method the Anti-Doping
on10 February 2004.
Commission will:
• ban the person from selection to
page 47
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crossword competition
investigating the law
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clues on next page
don’t forget your details!
name
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Legal Studies or
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theverdict winter 2003
page 48
across
2
This famous American
president once said: "As a
peacemaker, the lawyer has
a superior opportunity of
being a good man." (First
and last name) [14]
8
To charge with an offence or
crime, to accuse [6]
9
This person is Queensland's
current Attorney General
(First and last name) [10]
11
"Swimming Upstream" is the
story of this Brisbane
Magistrates family.
(Abbreviated first name and
surname) [11]
14
These courts emerged in
Australia as a way to
incorporate the aims of the
criminal justice system and
those of the health,
community and corrective
services sectors
(Two words) [10]
18
University-based projects
which utilise student
resources to investigate
claims of wrongful conviction
and, where possible, secure
the release of innocent
people (Two words) [17]
20
For an action in ___________
to succeed the information
published must be false [10]
23
"The first thing we do, let's kill
all the lawyers"? is a quote
from the play Henry VI by
which famous playwright [11]
24
A sitting of this court was
recently held on Thursday
Island for the first time [6]
25
These people are sometimes
referred to as the
'mouthpieces of solicitors' [10]
theverdict winter 2003
down
1
This man spent 20 years in
prison for a crime he did not
commit (first & last name) [11]
3
This famous native title
decision was handed down
by the High Court of
Australia in 1992 [4]
4
The legal protagonist in the
novel 'To Kill a Mockingbird'
(First and last name) [12]
5
Anglo-Australian common
law does not recognise a
right to ________ (unlike the
United States where such a
right has been legally
recognised for may years) [7]
6
Dispute resolution process
which encourages disputing
parties to explain their side of
the dispute to the other side,
with the help of a neutral third
person [9]
7
Queensland's first emagazine for students of law
and legal studies
(Two words) [10]
10
In Australia, this power is
given to the courts led by
independent and unbiased
judges [8]
12
This Judge of Appeal in the
NSW Supreme Court was
appointed to chair a panel to
review the law of negligence.
(Official legal title and last
name) [10]
13
This king claimed that his
prerogative right was divine
and that as monarch he was
above the law [5]
15
This brilliant English Chief
Justice felt the force of his
king's fist in 1608 when he
gave King James I the
unwelcome view that "The
king is not subject to men,
but is subject to God
and the law" [4]
16
The High Court of Australia
decision which dealt with
publication on the internet,
establishing that an article is
'published' where it is
downloaded (Full case name
required) [16]
17
The study of morals and
ethics [10]
19
One of the virtues a good
legal system should
possess (Three words) [9]
21
Australia and England use
this system to argue cases
in court [11]
22
Who is the goddess of Law,
Custom and Justice? [6]
Having trouble
with some answers?
Here’s a hint
most of the answers
can be found in the first edition of
your e-magazine the verdict. The first
edition of the verdict is available from
the QLS website www.qls.com.au
in the for students and
educators section.
page 49
personal profile
teacher profile
margaret marton
Detail your education
School of the Air until age 11. We
then moved closer to a town called
Coonabarabran in northwest NSW
where I attended school until Year 12.
I then did a BA Dip Ed majoring in
geography and economics at the
University of New England in
Armidale.
Can you recall any lifechanging events?
Yes - marrying a Canadian geologist
then living in the wilds of Canada for
two years. We then returned to
Australia where I became the mother
of two wonderful children, both now
teenagers.
What is the best movie you’ve
ever seen?
Too hard to choose one. But the list
is : The Gods Must Be Crazy for the
cultures, the Bushmen and I knew
that wretched Land Rover personally;
Patch Adams; Sophie’s Choice;
biography of Sir David Attenborough;
I have fond memories of the
travelogue preceding Life of Brian;
The Mission; The Last Emperor.
The best book you’ve read?
‘When the Enemy is Tired’ by Russell
Braddon.
What modern convenience
could you not do without?
Electricity and a car. Plus, with my
bush background and the large
amount of remote camping I do with
my geologist husband, a fridge.
What historical figure would
you most like to meet?
What do you enjoy most about What changes would you most
being a teacher?
like to see?
Students.
A work experience year.
What is the most difficult, or
frustrating, aspect of being a
teacher?
What two issues do you
regard as the most critical now
confronting Australia?
Students and paperwork; marking
papers at 4am.
Make that six: environmental, the
degradation of productive land
through salt and erosion; climatic
change; information control, such as
in the Iraq War; economically, the
globalisation of information;
emotional intelligence and options for
youth; student awareness that they
can influence our world positively with
action.
What is the most memorable
moment of your teaching
career?
A student’s personal letter of thanks
10 years after teaching him. It was
the grubbiest letter you have ever
seen as it was written while he was
guarding a very dangerous post early
in the East Timor war. He wrote a
letter to his mum and a letter to me in
case he didn’t make it. He did, and
then decided he had better send it to
me. It is one of my greatest
possessions.
Can you describe a typical
teaching day?
No, because there isn’t one.
Is information technology
changing the way you teach?
Yes. It has to. And it has made me
more humble because my students
are constantly helping me.
What changes do you predict
in teaching over the next five
years?
Outcomes-based, an extra year at
school, greater integration of
subjects.
How long have you been
teaching legal studies?
Nine years.
What extra-curricular activities
do you include with your legal
studies teaching?
• mock court evenings
• Year 12 Legal Conference in Far
North Queensland during Law
Week
• Law Week display
• Bond Uni legal moot
• James Cook University legal
debate
• Far North Queensland legal essay
competition for Years 11 and 12
• legal breakfast with visiting young
lawyers
• heaps of visiting speakers.
Rasputin, Elizabeth I, Da Vinci.
theverdict winter 2003
page 50
internet sites
the essential links
Australian legal research
ABC Radio National – The Law Report
www.abc.net.au/rn/talks/8.30/lawrpt/index/TheLawReportChronoIdx.htm
Attorney General’s Department
http://152.91.15.12/www/agdHome.nsf
Aussie Legal
www.aussielegal.com.au
Australian law on the internet
www.nla.gov.lau/oz/law.html
Australian legal resources and information
www.law.usyd.edu.au/~acel/Aust.htm
Catalaw: catalogue of world wide law on the internet
www.catalaw.com/
Federal Court of Australia – research links
www.fedcourt.gov.au/
Guide to internet information sources for Australian journalists
www.uq.edu.au/jrn/ozguide/index.html
Internet legal resource guide
www.ilrg.com/nations/au/
Law for you – plain English legal information
www.law4u.com.au
Lawlink NSW: hot topics: legal research sites on the internet
www.lawlink.nsw.gov.au/lib.nsf/pages/hot_topicsindex
Legal Information Access Centre – hot topics
www.austlii.edu.au/au/other/liac/hot_topic/index.html
Legal research links
www.lawlink.nsw.gov.au/liblink/liblink.nsf/pages/legres
Web Wombat (Australian law sites)
http://www.webwombat.com.au/law/index.htm
Juvenile issues legal research
Austlii – Hot Topic 23: juvenile justice
www.austlii.edu.au/au/other/liac/hot_topic/hottopic/1999/3/
Australia: subjects: family law: children
www.austlii.edu.au/
Australian Institute of Criminology
www.aic.gov.au/
Juvenile justice
http://crime:miningco.com/
Juvenile justice information portfolio – other UN action
www.unicef-icdc.org/
Juvenile justice magazine
www.juvenilejustice.com/
Police powers and the Convention of the Rights of the Child – Meredith Wilkie
www.austlii.edu.au/au/special/alta/alta95/wilkie.html
theverdict winter 2003
page 51
glossary
glossary of terms
circuit court
futile
a state court that holds sessions at
several different places within a judicial
district for the administration of justice.
incapable of producing any result;
ineffective; useless; not successful.
globalisation
community service
unpaid work undertaken pursuant to a
court order upon conviction for an
offence in lieu of a sentence of
imprisonment.
court order
processes, practices and institutions
that serve to decrease the importance
of the nation state and of national
borders. There is much debate about
the extent to which this has either been
a benefit or a disadvantage to the world
community.
a direction or command of a court.
gratuitous care
de facto
a relationship between a man and a
woman who are living together, or who
have lived together, as husband and
wife on a bona fide domestic basis
although not married to each other.
Generally, a de facto relationship is
characterised by financial and
emotional interdependence.
care provided free of charge by private
individuals to a person who has
suffered injury from another’s
negligence, to assist that person cope
with the injuries.
impartiality
treating all sides in a dispute equally;
unprejudiced, fair. Unbiased, objective.
disclaimer
international law
a repudiation of liability, interest or
benefit.
the body of law which participating
nations recognise as binding them in
their conduct towards each other.
economic loss
injury to a person or property resulting
in immediate or subsequent detriment
to a person’s income or wealth.
empirical evidence
evidence that is based on or acts on
observation or experiment, not on
theory. Evidence derived from or
guided by experience or experiment.
exemplary damages
damages awarded in addition to
general damages, where the court
wishes to not only compensate the
victim of a tort, but to punish the
defendant.
theverdict winter 2003
kinship
blood relationship; the sharing of
characteristics or origins. At the time
of contact with Europeans, Aboriginal
societies were organised within intricate
kinship relationships based on strictly
applied laws and observances.
linear
extended in a line or relating to
measurement in one dimension only.
moratorium
a temporary prohibition or general
suspension of some type of legal
obligation.
page 52
glossary of terms
obiter dictum
ratio decidendi
retribution
Latin: a remark in passing. Something
said by a judge while giving judgement
not essential to the decision in the
case. It does not form part of the ratio
decidendi of the case therefore creates
no binding precedent, but may be cited
as persuasive authority in later cases.
Latin: the reason for deciding. The
principle or principles of law on which
the court reaches its decision. The
ratio of the case has to be deduced
from its facts, the reasons the court
gave for reaching its decision, and the
decision itself. Only the ratio of a case
is binding on inferior courts, by reason
of the doctrine of precedent.
implies that a criminal merits just
punishment because of something
done that is morally or socially evil. The
punishment should be related to the
harm done by the crime, rather than
the moral guilt of the criminal.
palpable
can be touched or felt. Readily
perceived by the senses or mind.
parens patriae
a common law doctrine by which the
Sovereign has an obligation for the
welfare of children and ‘lunatics’.
bring into agreement or harmony;
make compatible or consistent.
recursive
occurring after death.
precedent
repudiate
a judgement or decision of a court,
normally recorded in a law report, used
as an authority for reaching the same
decision in subsequent cases.
qualitative response
a response that is concerned with or
depends on quality or qualities.
disown; disavow; reject.
restitution
a remedy by which a plaintiff is
restored to an original position before
the loss or injury.
restoration
quantitative response
a response of or relating to the
describing or measuring of quantity.
theverdict winter 2003
of superior importance or rank, or
higher in rank or degree.
reconcile
the act or an instance of returning or
revisiting. In a legal research context, it
means the research process may need
to be repeated to locate additional
information as needed.
posthumously
superordinate
to bring back to former, original, or
normal condition. To put back to a
former place, or to a former position,
rank, etc.
suspended sentence order
a prison sentence that does not take
effect immediately. When a person is
sentenced to imprisonment, the court
may, in exceptional circumstances,
order the person not actually be
imprisoned unless another offence is
committed within a specified period.
Sources
A Dictionary of Law,
New Edition, Published by
Oxford University Press.
Concise Australian Legal
Dictionary 2nd Edition, Published
by Butterworths, Australia.
Complete Wordfinder, Published
by Reader’s Digest Association
Limited, London.
The Budget Macquarie Dictionary
3rd Edition, Published by The
Macquarie Library Pty Ltd.
page 53