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C RU
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THE UNIVERSITY OF ADELAIDE
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Sydney Law School
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The University of North Carolina at Chapel Hill
United States of America
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Adelaide Law School
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Sydney Law School
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Adelaide Law School
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Volume 37 Issue 2 2016
The Adelaide Law Review is a refereed journal that is published twice a year by the
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(2016) 37 Adelaide Law Review
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TABLE OF CONTENTS
ARTICLES
Dale StephensNaval Power in the Indian Ocean: Rising Tension,
Maritime Governance and the Role of Law 307
R P Boast QCLand, Custom, and Ideology 1870–1940:
The New Zealand Case in a Global Context
325
John Gava
Losing Our Birthright: Singh v Commonwealth369
Dan Hunter and Suzannah Wood
The Laws of Design in the Age of Mechanical
Reproduction
403
Joe McIntyre
In Defence of Judicial Dissent
431
Anne Richardson Oakes and Haydn Davies
Justice Must be Seen to be Done:
A Contextual Reappraisal
461
Nola M Ries Legal Education and the Ageing Population:
Briony Johnston Building Student Knowledge and Skills Through
and Shaun McCarthyExperiential Learning In Collaboration With
Community Organisations
495
REVIEW ESSAY
Peter D Burdon
Foucault and the Politics of Rights523
BOOK REVIEWS
The Hon Michael Kirby AC CMG
John Jefferson Bray — A Vigilant Life537
The Hon John Doyle The Role of the Solicitor-General: Negotiating
AC QC
Law, Politics and the Public Interest547
CASE NOTES
Jordan Wei Peng Teng and Rebecca
Mahony
Zaburoni v The Queen (2016) 256 CLR 482
Natalie WilliamsBartlett v Australia & New Zealand Banking
Group Ltd [2016] NSWCA 30 (7 March 2016)
553
571
Dale Stephens*
NAVAL POWER IN THE INDIAN OCEAN:
RISING TENSION, MARITIME GOVERNANCE
AND THE ROLE OF LAW
A bstract
Maritime areas of the world are fast becoming sites of growing tension and
potential confrontation by rising global powers. While the world is well
aware of the issues surrounding claims in the South China Sea, another
site of rising tension is the Indian Ocean Region (IOR), especially in the
context of India and China. Such tensions may be addressed and amelior­
ated through the agency of law. While dispute resolution mechanisms
such as that found in the United Nation Convention on the Law of the
Sea may provide a possible means of avoiding potential conflict, the
force of law is possibly better applied through its more diffuse, but no
less powerful, normative effect. That is, the capacity of law to provide
boundaries of engagement and to shape vocabularies and frameworks of
resolution within the political realm, offer much more hope of success
than the rather blunt application of formal processes of adjudication. This
article will canvass the manner in which law may have that harmonizing
effect within the IOR at a time where actions and reactions hold the real
potential for overreaction by any side.
I I ntroduction
T
he Indian Ocean will likely be the focus of increasing tension and decisive
policy/legal interplay over the next few decades. The emergence of significant maritime powers and potential competitors such as India and China,
the importance of the Indian Ocean for Sea Lines of Communication between the
Middle East, Africa and Asia and the strategic interests of the United States ensure
that the region will attract key geo-political attention. Add to this the challenges of
piracy and other acts of maritime lawlessness already evident in the region and the
growing resource and strategic interests of Indian Rim powers such as Australia,
*
Professor, The University of Adelaide Law School, Director Adelaide Research Unit
on Military Law and Ethics (RUMLAE); the author would like to thank Ms Sarah
Grant for her research assistance. Any errors are solely those of the author.
308
STEPHENS — NAVAL POWER IN THE INDIAN OCEAN
South Africa and France,1 and it is inexorable that critical focus will be directed to
the Indian Ocean in the 21st century.2
Whether this region will witness a harmonised evolution of cooperation or will be
the site of fiercely contested legal and policy discord is uncertain. However, it will be
argued in this article that the indicators are actually quite positive that inter­national
law will have a constructive role to play in defusing tension and promoting greater
­cooperation and security for all. This is based on an assessment regarding the structural
capacities for resolving disputes resident in the 1982 United Nation Convention on
the Law of the Sea (‘LOSC’),3 but possibly not in the manner anticipated. It will be
argued that it will not be the dispute resolution mechanisms contained within the
LOSC that will achieve this positive outcome. Rather it will be the normative effect
of the Convention itself that will prompt the merging of political goals and legal
positions. The Convention framework has the ability to promote a broader justificatory discourse that will deliver the optimistic results predicated. Such a normative
influence is more durable and has greater chance of success than the legally insular
assertion of the role of dispute resolution mechanisms of the LOSC. This is not
to say that the dispute resolution mechanisms are not significant, but rather their
effect is relevant more to shaping international discourse, and setting up channels of
potential accommodation, than in resolving issues at play through direct adjudication
mechanisms.
II T he S trategic I nterplay
of the
I ndian O cean
In his relatively recent assessment of the geo-political factors in the Indian Ocean
Region (IOR), Richard Kaplan presents a highly dynamic account of the powers
and vulnerabilities at play.4 According to Kaplan, China recognises its comparative
strategic and military disadvantage in the IOR, and seeks broader maritime security
cooperation for the development of the touted ‘maritime silk road’ for commercial
1
2
3
4
‘France has traditionally held a high degree of influence in the western Indian Ocean
region and uses its cultural ties, external territories and military power to maintain
its regional presence’: Bruno de Paiva, France: National Involvement in the Indian
Ocean Region (5 December 2011) Future Directions International <http://www.
futuredirections.org.au/publication/france-national-involvement-in-the-­i ndianocean-region/#sthash.09baRvpD.dpuf>; see also, Bruno de Paiva, ‘France: National
Involvement in the Indian Ocean Region’ (Strategic Analysis Paper, Future Directions
International, 5 December 2011).
See eg, Jason J Blazevic, ‘Defensive Realism in the Indian Ocean: Oil, Sea Lanes
and the Security Dilemma’ (2009) 5(3) China Security 59; Lee Cordner, ‘Rethinking
Maritime Security in the Indian Ocean Region’ (2010) 6 Journal of the Indian Ocean
Region 67.
Opened for signature 10 December 1982, 1833 UNTS 397 (entered into force 16
November 1994).
Robert D Kaplan, China’s Unfolding Indian Ocean Strategy — Analysis (11 February
2014) Center for a New American Security Online <https://www.cnas.org/press/
in-the-news/chinas-unfolding-indian-ocean-strategy-analysis>.
(2016) 37 Adelaide Law Review309
and security objectives, while at the same time seeking increased port basing rights.
The US prioritises navigational freedom in the IOR for commercial goals, security
stability in the region and access to the Strait of Hormuz. In contrast, India is wary
of both China’s and the US’ actions, and is seeking greater engagement with IOR
littorals in order to bolster its geographic advantage.
The greater Indian Ocean ‘encompasses the entire arc of Islam’.5 Two bays dominate
it: the Arabian Sea in the west and Bay of Bengal in the east.6 The Indian Ocean
accounts for half the world’s seaborne container traffic, and 70 per cent of the total
traffic of the world’s petroleum.7 The Indian Ocean is characterised by a number
of strategic chokepoints, namely Bab el Mandeb and the Straits of Hormuz and
Malacca.8 Both India and China are asserting their growing maritime strength in
the Indian Ocean and both view the world’s third largest body of water as a strategic
priority. China is building maritime facilities in Pakistan, a fuelling station in
Sri Lanka and a container facility in Bangladesh.9 Added to this is the establishment
of its first overseas military support base in Djibouti.10 Recent statements by a senior
Chinese state official that ‘[w]e can no longer accept the Indian Ocean as an ocean
only of the Indians’,11 contributed to the growing unease felt by India in the face of
the rapidly increasing Chinese military activity.
Indian commentators have spoken out on this unease. In relation to the sending of
a Chinese Shang Class Nuclear submarine to the Indian Ocean in December 2013,
former Indian Vice Admiral Anup Singh noted that ‘sending a strategic platform into
waters that are already stressed is not a healthy sign, and works counter to all effort
at confidence-building between China and India’.12 Moreover, in relation to Chinese
PLA (Navy) manoeuvres off Christmas Island in February 2014, Vice Admiral Singh
observes ‘[i]f the idea was to provoke Indian Ocean powers, the Chinese may have
scored a short-term goal, but actually lost score in the game of trust-building for the
long term’.13 Moreover, Chinese maritime activity in submarine visits to Colombo
and participation by a Chinese submarine in an anti-piracy mission in the Gulf
of Aden, has prompted the observation that ‘[s]ubmarines have no role to play in
5
6
7
8
9
10
11
12
13
Robert D Kaplan, ‘Center Stage for the Twenty-first Century’ (2009) 88(2) Foreign
Affairs 16, 19.
Ibid 17.
Ibid 19.
Ibid 20.
Ibid 22.
Shannon Tiezzi, ‘China has “Reached Consensus” with Djibouti on Military Base’,
The Diplomat (online), 23 January 2016 <http://thediplomat.com/2016/01/china-hasreached-consensus-with-djibouti-on-military-base/>.
Zhao Nanqi former director of the General Logistics Department PLA quoted in
Kaplan, China’s Unfolding Indian Ocean Strategy, above n 4, 22.
Vice Admiral Anup Singh, ‘India’s Maritime Security Perspective’ (RUMLAE
Research Paper No 16–13, The University of Adelaide, 12 January 2016) 5.
Ibid 4–5.
310
STEPHENS — NAVAL POWER IN THE INDIAN OCEAN
anti-piracy tasks and the real purpose of sending such a platform is not lost on any
one’.14 Indeed, Indian reactions to such activity have involved the steady increase in
military commitment to its own bases in the Andaman and Nicobar Islands located
in the north Indian Ocean. Recent reports indicate that India has deployed two of its
most advanced patrol/anti-submarine warfare aircraft to these islands.15 Moreover,
there have also been reports of increased Japanese and Indian cooperation on these
islands as a means of countering Chinese expansion in the Indian Ocean.16
Realist tropes of International Relations (IR) theory accept that international law
can have a place in advancing state interests, at least where doing so is convenient or
coincides with military or economic power goals.17 In this regard, both the US and
China would likely use the law to advance ideas of navigational freedom while India
would promote concepts of coastal state security. Generally speaking, for the US and
India, that has been their practice over the last decade or so. The US and its Freedom
of Navigation program18 is an active player in championing rights of navigational
freedom resident within the LOSC or customary international law in the IOR (and
elsewhere across the globe), whereas India has for some time asserted state security
rights in areas such as its Exclusive Economic Zone (EEZ).19
The question of coastal state rights and correlative navigational freedoms has been a
live issue from the beginning of the negotiation of the LOSC. Issues relating to, inter
alia, special security issues/zones, prior notification and/or permission for passage
through territorial seas, marine scientific research and excessive claims have been
14
15
16
17
18
19
Ibid 5.
Franz-Stefan Gady, ‘Indian Ocean: India Deploys New Sub-Killer Planes to
Counter Chinese Subs’, The Diplomat (online), 19 January 2016 <http://thediplomat.
com/2016/01/indian-ocean-india-deploys-new-sub-killer-planes-to-counter-chinesesubs/>.
Ankit Panda, ‘India Opens Door to Japanese Assistance in Andaman and Nicobar
Islands’, The Diplomat (online), 12 March 2016 <http://thediplomat.com/2016/03/
india-opens-door-to-japanese-assistance-in-andaman-and-nicobar-islands/>:
‘China’s increasingly assertive behavior in the East and South China Seas and its
simultaneous pursuit of civilian port infrastructure along the Indian Ocean littoral
has in part driven New Delhi and Tokyo closer together’.
Jack Goldsmith and Eric Posner, The Limits Of International Law (Oxford University
Press, 2005) 12.
See generally, Richard J Grunawalt, ‘Freedom of Navigation in the Post-Cold War Era’
in Donald R Rothwell and Sam Bateman (eds), Navigational Rights And Freedoms
And The New Law Of The Sea (Martinus Nijhoff, 2000) 15.
India stated:
The Government of the Republic of India understands that the provisions of the
Convention do not authorize other states to carry out in the exclusive economic zone and
on the continental shelf military exercises or maneuvers, in particular those involving
the use of weapons or explosives without the consent of the coastal State.
LOSC: India: Depository Notification by India Upon Ratification, UN Doc CN
199.1995.Treaties-5 (1995).
(2016) 37 Adelaide Law Review311
the subject of ongoing debate since the LOSC entered into force in 1994, in the IOR
and more generally across the globe.20
Australia, for example, does not recognise the existence of the obligation to provide
prior notification or to seek prior permission before undertaking innocent passage
by warships within foreign territorial seas, a fortiori in the 200 nautical mile EEZ
zone. In the 2005 Royal Australian Navy Doctrine Publication The Navy Contribution to Australian Maritime Operations, it is stated bluntly that ‘Australia’s position
is that prior notification or permission is not required for transit of the territorial sea
in accordance with the regime of innocent passage’.21 Such a position accords with
international practice, but nonetheless raises the potential for friction with states who
seek to assert such a right. During the LOSC negotiations some states did advance
the view that warships required prior permission to undertake innocent passage.
Indeed, others also pressed that warships intending to exercise rights of innocent
passage within foreign territorial seas should be required to provide prior notification of such an exercise. Significantly, neither position was reflected within the
terms of the LOSC.22 The silence in the Convention on these points is interpreted by
most that these requirements are not necessary but has not stopped some states from
continuing to press their views on this issue.
Similarly, it is evident that in the realm of Maritime Scientific Research (MSR)
within a foreign state EEZ there is a growing divergence of opinion between China
and the US (especially) as to what constitutes MSR (thus requiring permission of
the coastal state under the terms of art 246(2) of the LOSC). In a series of recent
articles by American Professor Raul (Pete) Pedrozo23 and Deputy Director Zhang
Haiwen24 of the Chinese Institute for Marine Affairs, the authors exchange sharp
views on the rights and obligations owed between the coastal states and transiting
maritime forces within a foreign EEZ. The issue of MSR is specifically canvassed
where Professor Pedrozo makes a distinction between such research, which he
acknowledges is within coastal state EEZ jurisdiction, and ‘military surveys’ which
are not.25 Deputy Director Zhang provides a critical riposte taking issue with many
of Professor Pedrozo’s points. She contends, inter alia, that marine scientific research
20
21
22
23
24
25
See generally Dale Stephens, ‘The Legal Efficacy of Freedom of Navigation
Assertions’ (2006) 80 International Law Studies Series 235.
Royal Australian Navy, The Navy Contribution to Australian Maritime Operations
(Commonwealth of Australia, 2005).
See Rob McLaughlin, United Nations Naval Peace Operations in The Territorial Sea
(Martinus Nijhoff 2009) 100–2 for an outline of the resolution of this issue.
Raul (Pete) Pedrozo, ‘Preserving Navigational Rights and Freedoms: The Right to
Conduct Military Activities in China’s Exclusive Economic Zone’ (2010) 9 Chinese
Journal of International Law 9; Raul (Pete) Pedrozo, ‘Responding to Ms Zhang’s
Talking Points on the EEZ’ (2011) 10 Chinese Journal of International Law, 207.
Haiwen Zhang, ‘Is it Safeguarding the Freedom of Navigation or Maritime Hegemony
of the United States? — Comments on Raul (Pete) Pedrozo’s Article on Military
Activities in the EEZ’ (2010) 9 Chinese Journal of International Law 31.
Pedrozo, ‘Navigational Rights’, above n 23, 20–3.
312
STEPHENS — NAVAL POWER IN THE INDIAN OCEAN
is not defined in the Convention and the jurisdictional reach by the coastal state
is significantly broader than what Professor Pedrozo contemplates. Moreover, she
asserts that freedom of navigation has a narrow scope under the LOSC and does
not encompass ‘unconditional’ and ‘absolute’ freedom to conduct military activities
within a foreign EEZ.26
Professor Pedrozo draws a distinction between ‘marine scientific research’ and
‘military surveys’ in relation to the requirement to obtain permission from the coastal
state27. Relying upon standard canons of construction he invokes the expressio unius
rule28 to differentiate between ‘research’ and ‘survey’ activities and argues that survey
activity is prohibited in territorial waters and international straits/archi­pelagic sea
lanes,29 but not within the EEZ. Accordingly, he asserts that only research activity
is caught in the prohibition regarding the EEZ, thus implicitly allowing survey
activity. His point of differentiation between MSR and military survey turns not on
the function of the collection of information, but the use to which the information is
to be directed, noting ‘the primary difference between MSR and military marine data
collection … is how the data is used once it is collected’.30 For him, data collected
for military purposes during a military survey is not normally released to the public
or the scientific community, rather its use is restricted to military purposes, which
includes the capacity for safe surface and submerged passage.31
In response, Deputy Director Zhang disagrees with this classification and notes that
‘[t]he key point is that the Convention neither explicitly prescribes what activities
fall into marine scientific research, nor expressly states that military activities should
not be categorised as marine scientific research’.32 She argues that the distinction
between MSR and military surveys advanced by Professor Pedrozo is illusory. Hence,
for her it is the function of the collection that is caught by the prohibition, noting that
‘there is almost no difference between the scientific instruments and equipments
[sic] on board these [naval] vessels and those on board common marine scientific
research vessels’,33 and accordingly, it is impossible to draw a sharp distinction
between marine scientific research and marine data collection that occurs through a
military survey.34 There is a hint in Deputy Director Zhang’s response that a broad
definition of MSR is necessary to ensure that proper environmental stewardship can
be maintained by the coastal state.35 Additionally, there is also the unmistakable
26
27
28
29
30
31
32
33
34
35
Zhang, above n 24, 32.
Pedrozo, ‘Navigational Rights’ above n 23, 21.
Expressio Unius Est Exclusio Alterius (‘the express mention of one thing excludes all
others’).
Pedrozo, ‘Navigational Rights’ above n 23, 11–2.
Ibid 22.
Ibid.
Zhang, above n 24, 35.
Ibid 38.
Ibid 42.
Ibid 38
(2016) 37 Adelaide Law Review313
flavour of security concerns with the act of collection and the potential military use
such information may be put.36
These competing objectives of navigational freedom versus coastal state rights have
played out in the IOR on the question of the lawfulness of foreign military exercises
in the EEZ of littoral states. India, in essence, maintains that foreign naval exercises
or activities involving the firing of weapons within its EEZ are prohibited because,
inter alia, art 88 of the LOSC reserves the ‘High Seas’ of which the EEZ overlay for
‘peaceful purposes’.37 The counter to this argument is that the preceding article in the
LOSC that relates to the ‘High Seas’, namely art 87, expressly preserves ‘freedom of
navigation’ rights in the high seas/EEZ and hence permits the exercise of such rights
even by foreign warships subject only to the ‘due regard’ obligations owed to the
coastal state in respect of their economic rights within the EEZ.
In sum, India asserts that the LOSC framework creates a general legal condition for
the EEZ that prohibits military activity of a nature that is not peaceful. The term
‘peaceful’ is then construed to not include general naval exercises or activities that
do not pay sufficient regard to coastal state security interests.38 In contrast, the US
position39 (and other like-minded states, including Australia)40 is that in this context,
the LOSC changes nothing in relation to the waters that are now enclosed by the
EEZ, and that while threats or use of force are prohibited (in accordance with art 2(4)
of the Charter of the United Nations), normal freedom of navigational rights that
involve naval activities, including exercises, remain unimpeded.
The views of US and India on this issue are not easily reconcilable. However, the law
and its associated processes may yet prove useful in resolving this clash of views.
36
37
38
39
Ibid 44–5.
Jing Geng, ‘The Legality of Foreign Military Activities in the Exclusive Economic
Zone Under UNCLOS’ (2012) 28(74) Merkourios: Utrecht Journal of International
and European Law 22, 27.
Natalie Klein, Maritime Security and the Law of the Sea (Oxford University Press,
2011) 49–51.
The Commander’s Handbook on the Law of Naval Operations (US Department of
Navy, NSWP 1-14M, 2007) [1.6.2]:
40
In the EEZ all nations enjoy the right to exercise the traditional high seas freedoms of
navigation and overflight, of the laying of submarine cables and pipelines, and of all
other traditional high seas uses by ships and aircraft that are not resource related’, and
paragraph 2.6.3 ‘All ships and aircraft, including warships and military aircraft, enjoy
complete freedom of movement and operation on and over the high seas. For warships,
this includes task force maneuvering, flight operations, military exercises, surveillance,
intelligence gathering activities, and ordnance testing and firing. All nations also enjoy
the right to lay submarine cables and pipelines on the bed of the high seas as well as on
the continental shelf beyond the territorial sea.
Phillip Coorey, ‘Australia backs US in Latest South China Sea Stoush’, Australian
Financial Review Weekend (online), 31 January 2016 <https://web.archive.org/web/
20160611204931/http://www.afr.com/news/politics/australia-backs-us-in-latestsouth-china-sea-stoush-20160130-gmhuug>.
314
STEPHENS — NAVAL POWER IN THE INDIAN OCEAN
One of the heralded features of the LOSC is its compulsory dispute settlement architecture. Hence, parties to the LOSC are directed towards numerous dispute resolution
avenues to resolve disputes before they might escalate to military force. Such avenues
involve litigation before the International Court of Justice (ICJ) or the International
Tribunal for the Law of the Sea, arbitration before a General or Special Arbitral
Tribunal,41 or ultimately conciliation and negotiation processes.42
Notwithstanding this series of choices that are available under the banner of
compulsory dispute resolution processes, there is a major treaty exception that allows
‘military activities’ to be excluded from ‘compulsory’ jurisdiction processes under
art 298(1)(b) of the LOSC. China and India have both made declarations invoking
the art 298 waiver or reserving the right to invoke the jurisdictional waiver.43 Given
this waiver opportunity, coupled with the fact that the US is not a party to the LOSC,
it is highly unlikely that this dispute or any dispute involving military activity could
be resolved through the compulsory dispute resolution mechanisms. This then opens
the door to the alternative route through which the law might guide resolution of this
dispute, which is the subject of the rest of the article.
III T he E fficacy
of
I nternational L aw
Despite that fact that issues pertaining to military activities are able to be exempted
from the dispute resolution machinery, it is contended that the law does still provide a
useful framework for resolving contentious security issues within the IOR. It can act
to shape the vocabulary of debate, and provide a structure of bounded argument that
can influence a level of convergence in positions held that may produce negotiated
outcomes or understandings that are potentially reconcilable. In this way, the law may
have an impact on disputes even where mechanisms for the adjudicated resolution
of those disputes are specifically excluded. This section examines how law would
assist in the resolution of the dispute over military activities in the EEZ, before the
subsequent sections turn to examine the broader relevance of law in resolving this
dispute outside of a traditional adjudicative enforcement paradigm.
Ironically, one of the enduring features of modern international legal process generally
is its practicality and deference to state consent.44 While not necessarily reflective of
a realist IR set of preferences, it still does allow great latitude for states to advance
their interests. In respect of the issue of military activities in the EEZ identified
above, international law takes a practical view of state actions. Hence, when seeking
41
42
43
44
LOSC art 287.
Ibid art 284.
Declarations of parties upon signature and/or ratification and accession of the LOSC
can be found here: United Nations, Declarations and Statements (29 October 2013)
United Nations Oceans and Law of the Sea <http://www.un.org/depts/los/convention_
agreements/convention_declarations.htm#China%20Upon%20ratification>.
Ian Brownlie, Principles of International Law (6th ed, Oxford University Press 1995)
4: ‘the general consent of states creates general rules of application’.
(2016) 37 Adelaide Law Review315
to reconcile Indian and US perspectives on the EEZ issue under the LOSC, weight
is placed on the actual actions of states. Article 31(3)(b) of the Vienna Convention
on the Law of Treaties (‘VCLT ’)45 provides that ‘subsequent state practice in the
application of the Treaty’ can assist in constructing meaning of otherwise ambiguous
terms of a Treaty text. To this end, assertions of security rights in the EEZ across the
globe may be surveyed and reviewed to ascertain whether there is a general practice
consistent with the Indian position.
While not devoid of some relevant state practice,46 it is likely that the Indian position
would not represent sufficient ‘subsequent state practice’ by other states who are
party to the LOSC to inform the meaning of art 88. Given the vast preponderance
of contrary state practice, the recognition of the lawfulness of US Navy manoeuvres
in the Nicaraguan EEZ by the ICJ47 and ample textual qualifications resident in the
LOSC regarding express naval navigational rights even within foreign territorial
seas,48 it is manifestly clear that this line of reasoning regarding a broad application
of ‘peaceful purposes’ is unsustainable. It is evident that naval transits and exercises
do occur within the EEZ regions of all countries in the world.49
However, the US is not a party to the LOSC so a review of customary international
law (CIL) might be undertaken to determine whether there is a parallel security right
in the EEZ of the kind advanced by India. If there is sufficient state practice by those
states who are not party to the LOSC and also an associated conviction that this was
a lawful entitlement (opinio juris) then (subject to the issue of persistent objection,
addressed below) states such as the US would be bound to observe such rights.50
As with the survey undertaken under art 31 of the VCLT, it is again unlikely that
there is sufficient general state practice and expression of opinio juris to ground a
conclusion that there exists a special security status in the EEZ under CIL.
This does not, however, mean that such an assertion is devoid of legal meaning.
Given the pragmatic nature of international law, it is still open for a country that
asserts a right under customary international law to assume the status of ‘persistent
objector’ to the emergence of an obligation and thus not be bound by the subsequent
crystallisation of that obligation. The requirements for persistent objector status are
45
46
47
48
49
50
Opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January
1980).
Geng, above n 37, 27–29.
Military and Paramilitary Activities (Nicaragua v US) (Judgment) [1986] ICJ Rep 14,
118.
LOSC arts 19(a)–(c), 19(e)–(f), 20, 30.
See eg US Maritime Claims Reference Manual, which details US instances of
activities undertaken in the EEZ in those countries asserting special security status in
the EEZ: Maratime Claims Reference Manual (May 2014) US Navy Judge Advocate
Genera’s Corps <http://www.jag.navy.mil/organization/code_10_mcrm.htm>.
Statute of the International Court of Justice art 38(1)(b).
316
STEPHENS — NAVAL POWER IN THE INDIAN OCEAN
very exacting. They include opposition to the emerging rule, stated at the outset and
expressed in a consistent manner.51 It is arguable whether that might be established
here. Assessment of US actions in foreign EEZs would need to be undertaken to
arrive at a determination. It would, however, be relevant only to the US (and any other
non-party states to the LOSC who might be able to demonstrate persistent objector
status, however unlikely that may be), and only if there were otherwise sufficient
practice and opinio juris to found a customary rule limiting military activities in
foreign states’ EEZs.
International law does, therefore, through the relevance of subsequent practice to
treaty interpretation, and through customary international law, have pragmatic means
of arriving at a solution to the interpretive dispute over military activities in the EEZ,
which is based on the actual practice of states themselves. In this regard, it allows for
a mechanism of ascertaining treaty meaning and/or parallel customary international
law rights and obligations. In this instance, it appears likely that the view of the
US regarding navigational rights has particular force, but without an opportunity to
obtain any kind of judicial or quasi-judicial determination, there remains the nagging
reality of ambiguity to such claims and the ever-present potential for escalating
tension. However, this does not mean that international law has no constructive role
to play in ameliorating potential disputes. As will be argued in the next section, international law’s greatest traction comes not from a ‘formalist’ viewpoint, for there are
many potential dead ends as revealed above, but from its capacity to provide a viable
vocabulary and sense of boundary to facilitate convergence in how arguments within
international diplomacy can be advanced, defended or assimilated.
IV J ustificatory D iscourse
and
I nternational L aw
In the broader context of national security interests, it is self-evident that the
relation­ship between law and policy is complex. This is a result of the irreducible
indeterminacy of the law, but also a reflection of the perceived mutual exclusivity of
both the moral-legal universe52 and the animus of power as conceived in ‘national
interest’ political formulations.53 The parallel nature of these perceived universes
invariably generates regular moments of collective existential crisis as to the very
discipline of international law54 and inevitable normative self-reflection in the context
of power politics. Despite these theoretical chasms, it is still abundantly clear that
51
52
53
54
Fisheries Case (United Kingdom v Norway)(Judgment) [1951] ICJ Rep 116.
Observations made in relation to work of George Kennan and Hans J Morgenthau by
M McDougal, ‘Law and Power’ (1952) 46(1) American Journal of International Law
89, 102.
Judith Shklar, Legalism, Law, Morals and Political Trials (Harvard University Press,
1964) 124.
Hilary Charlesworth, ‘Saddam Hussein: My Part In His Downfall’ (2005) 23(1)
Wisconsin International Law Journal 127, 130.
(2016) 37 Adelaide Law Review317
law, politics and policy have many points of mutual engagement and are frequently
intermixed in a symbiotic relationship.55
The broad institutional interrelationship between law and policy was a key focus
of the international legal process movement that was particularly prominent in the
US in 1960s and ’70s, of which Chayes, Ehrlich and Lowenfeld56 were among the
leading proponents. This tradition paid particular attention to the role that law and
lawyers played in international society57 and provided insightful observations of the
reality of the interdependence between law and policy. The seminal account of the
1962 Cuban missile crisis by Chayes58 provides a particularly illuminating exposé of
this relationship.
As may be recalled, the Cuban missile crisis concerned US actions to restrict the
importation of nuclear-armed missiles and other armaments by the USSR to Cuba.
Regarding the positioning of such missiles as a threat to US national security, the
Kennedy administration responded by not attacking Cuba or the Soviet Union, but
by imposing a maritime ‘defensive quarantine’ around Cuba, not under the aegis of
art 51 of the UN Charter as an exercised strategic right of national self defence, but
as an action collectively authorised by the Organization of American States (OAS)
under the The Inter-American Treaty of Reciprocal Assistance (‘Rio Treaty’)59 as a
highly conditioned and calibrated reactive measure.
Chayes served as a legal advisor to the State Department during the crisis and through
the experience summarised the ways law affected the actions, noting that it was,
‘[f]irst, as a constraint on action; second, as a basis of justification or legitimation for
action; and third, as providing organizational structures, procedures and forums.’60
Discussions concerning the imposition of a blockade were canvased in that instance,
though were acknowledged to be tantamount to an act of aggression under the law
in the absence of an actual armed conflict (which was to be avoided). Hence law
was deployed to restrain the boldest action, and instead, a limited quarantine was
conceived as a viable legal device and subsequently imposed. Such a quarantine
was carefully worded and represented a novel, but measured and justified, response
that registered US resolve without crossing a significant legal or political line of
escalation. Here, it was also seen as imperative to obtain regional consensus for this
55
56
57
58
59
60
Martii Koskenniemi, ‘The Place of Law in Collective Security’ (1996) 17 Michigan
Journal of International Law 455, 473.
Abram Chayes, Thomas Ehrlich and Andreas Lowenfeld, International Legal Process
(Harvard, 1969).
Mary Ellen O’Connell, ‘New International Legal Process’ in Steven R Ratner and
Anne-Marie Slaughter (eds), New International Legal Process in The Methods Of
International Law (Princeton, 2004) 82.
Abram Chayes, The Cuban Missile Crisis, International Crises And The Role Of Law
(Oxford University Press, 1974).
Opened for signature 2 September 1947, 21 UNTS 77 (entered into force 3 December
1948).
Chayes, above n 58, 7.
318
STEPHENS — NAVAL POWER IN THE INDIAN OCEAN
action through the multi-lateral forum of the Organization of American States where
processes of deliberation and genuine consent underpinned a collective political and
legal outcome. These actions spoke of both legal and political creativity. While legal
discourse had a role, its influence was indirect. Its significance lay in its symbiotic
relationship with broader imperatives of statecraft. Indeed, as Chayes notes:
The meetings of the Executive Committee were not dominated by debates on fine
points of law. Nor would one have wished that they should be. The factual record
is irrefutable, however, that the men responsible for decision did not ignore legal
considerations. On the contrary, they made a considerable effort to integrate legal
factors into their deliberations.61
It is evident on this account that law infiltrated decision-making throughout the
crisis, but not with a dispositive character. Rather, it acted both as a justificatory and
constraining narrative that shaped the decision-making process. Chayes observes that
international law is diffuse and ‘at best legal reasoning and analysis will impact on
alternatives in terms of more or less, not yes and no’.62 Moreover, Chayes highlights
the political role legal justification took in decision-making noting:
The requirement of justification suffuses the basic process of choice. There is a
continuous feedback between the knowledge that the government will be called
upon to justify its action and the kind of action that can be chosen. The linkage
tends to induce a tolerable congruence between the actual corporate decision-­
process, with its interplay of personal, bureaucratic, and political factors and the
idealized picture of rational choice on the basis of objectively coherent criteria.
We may grant considerable latitude for evasion and manipulation. But to ignore
the requirement of justification too long or to violate its canons too egregiously
creates, in a democracy, what we have come to call a ‘credibility gap’.63
The perspective established by Chayes finds more contemporary resonance in the
views of Koskenniemi who served as a legal advisor to the Finnish Mission of
the United Nations at the time of the 1990 Iraqi invasion of Kuwait, when Finland held
a seat at the Security Council. The account of law’s normative role by K
­ oskenniemi
bears a strikingly similar resemblance to that advanced by Chayes.
The actions of the Security Council were taken in the full awareness that a new,
extraordinary assertion of collective power was being initiated. Koskenniemi notes
that legal issues concerning ‘aggression, sanctions, blockade and non-recognition’64
were raised and debated intensely with an earnestness that recognised the inter­
dependence between law and high politics. There was a felt need by the members
of the Security Council, when making decisions concerning maritime blockades and
interdictions and numerous other authorisations, to ensure a consistent narrative, one
61
62
63
64
Ibid 100.
Ibid 102.
Ibid 103.
Koskenniemi, above n 55, 475.
(2016) 37 Adelaide Law Review319
bounded by a self-reinforcing structure of objective justification.65 This was done not
as a ‘façade’, to deliver political outcomes under the semblance of ‘law’, but rather in
the full knowledge of the inter-relationship between law and power. Such a relationship is not dependent on any narrow, formalist notion of law’s place, but rather one
where law is allied with political capacity.
In both instances, law serves a justificatory role in decision-making, it sets political
boundaries and applies normative content to arguments. Koskenniemi observes:
Law’s contribution to security is not in the substantive responses it gives, but
in the process of justification that it imports into institutional policy and in its
assumption of responsibility for the policies chosen. Entering the legal culture
compels a move away from one’s idiosyncratic interests and preferences by
insisting on their justification in terms of the historical practices and proclaimed
standards of the community.66
In both the Koskenniemi and Chayes accounts of law within the international security
sphere, there is interplay with politics, where law’s voice is sometimes marginalised
but is also made central to the progress of resolution of policy conflict. It is clear from
both accounts, however, that legal articulation is based upon a desire for achieving a
requisite congruence between preferred policy outcome and a style of reasoning that
acknowledges a shared sense of responsibility.67
Despite its decentralised nature, the process of international law largely occurs
through the deployment and acceptance of modes of legal argumentation as illustrated above. Certain types of argument and styles of reasoning are acceptable while
others are consciously or tacitly ‘out of bounds’. Oscar Schachter famously referred
to ‘an invisible college’68 of international lawyers who are able to differentiate
between good and bad legal arguments. Such a professional community comprising
scholars, practitioners and government officials strive for a requisite level of objective
judgment when making an assessment of the veracity of any particular claim. The
goal of this process is to attain a general consensus of the efficacy of tendered legal
positions, while avoiding and differentiating the inevitable relativism that supports
many national positions. The process is inevitably diffuse, however the number of
legal arguments that can be advanced are not unlimited. The particular justificatory
discourse that underpins this process ensures that states feel constrained in the ambit
of their arguments and are careful not to be too self-serving.
This has played out in the first decade of the 21st century where arguments relating
to the War on Terror, the application (or not) of the Geneva Conventions of 1949 to
­Afghanistan and definitions of torture were all animated by different conceptions of
65
66
67
68
Ibid 473–478.
Ibid 478.
Ibid 480.
Oscar Schachter, ‘The Invisible College of International Lawyers’ (1977) 72 Northwestern University Law Review 217.
320
STEPHENS — NAVAL POWER IN THE INDIAN OCEAN
the policy-legal interplay. David Kennedy observes that the practice of inter­national
law is a variegated process of input and reaction from relevant constituencies.
Persuasion often has greater traction than arguments made under assertions of formal
validity. Kennedy asserts ‘[i]nternational law has become the metric for debating the
legitimacy of military action … law now shapes the politics of war’, and further:
In the court of world public opinion, the laws in force are not necessarily the rules
that are valid, in some technical sense, but the rules that are persuasive to relevant
political constituencies. Whether a norm is or is not legal is a function not of its
origin or pedigree, but of its effects. Law has an effect — is law — when it persuades
an audience with political clout that something someone else did, or plans to do, is
or is not legitimate … the fact that the modern law in war is expressed in the keys
of both validity and persuasion makes the professional use of its vocabulary both
by humanitarian and military professionals a complex challenge.69
Kennedy notes that ‘international law only rarely offers a definitive judgment on who
is right’.70 From this perspective, while parties sometimes litigate matters before
international courts and tribunals and deploy the full range formal legal methods of
interpretive construction and remedy, international law more meaningfully plays out
to a wider audience through channels and capillaries of power and through various
mediums, including that of a perceived legitimacy. Accordingly Kennedy asserts that
understanding restraint in the context of statecraft requires greater attention to the
work of sociologists or political scientists ‘about what functioned as a restraint or a
reason [which becomes] more important than the ruminations of jurists in determining what international law was or was not’.71
While it is certainly open for a state to assert unilateral positions informed by realist
commitments, it will likely suffer reputational loss and experience institutional
marginalisation as a result. Perhaps more powerful states are able to bear this loss.
But perhaps they are not. It is evident that the LOSC has had a normative effect
in streamlining governance issues. Thus matters such as the breadth of the territorial sea,72 the designation of archipelagic sea-lanes and the broad acceptance of the
unconditional right of innocent passage all represent moments of broad consensus
between parties and non-parties to the Convention. Hence, the law provides both a
central touchstone of reference but also encourages impetus for a convergence of
thinking, or at least conditioned and bounded justification for positions reached. This
phenomenon offers a guardedly optimistic view for how differences may be finessed
in the IOR to achieve practical outcomes that align with broader national goals.
69
70
71
72
David Kennedy, Of War and Law (Princeton University Press, 2006) 96–7.
David Kennedy, Dark Sides of Virtue (Princeton University Press, 2004) 273.
David Kennedy, ‘Lawfare and Warfare’ in James Crawford and Martti Koskenniemi
(eds), The Cambridge Companion To International Law (Cambridge University Press
2012) 71, 167.
Peter Dutton, ‘Viribus Mari Victoria? Power and Law in the South China Sea’ (Paper
presented at Managing Tensions in the South China Sea conference, Center for
Strategic and International Studies, 5–6 June 2013).
(2016) 37 Adelaide Law Review321
V C hina
and the
P hilippines L itigation
There has recently developed a growing interest in analysing this very capacity of
international law to decisively shape international behaviour. Theories relating to
sociological accounts of acculturation,73 to theories of legitimacy ‘compliance pull’,74
quantitative ‘tipping points’,75 international and domestic audience interplay,76 and
sheer rationalist decision-making processes77 collectively seek to provide a level of
explanation. All of these approaches share a common view that international law can
generate iterative processes of commitment that produce high levels of unmistakable
convergence.
To return to the IOR, these accounts allow for a level of confidence that potentially
disparate policy and geo-strategic views may be harmonised and coalesce around a
common set of legal boundaries and vocabulary that can shape positive engagement.
The recent approach by China to the dispute it has with the Philippines in the
South China Sea over the Scarborough Shoal provides a useful case study for this
phenomenon, and allows for a sense of guarded optimism as to the capacity of law to
facilitate constructive outcomes.
Scarborough Shoal lies approximately 118 nautical miles from the Philippines and
is claimed by The Philippines in what it declares to be the West Philippine Sea. It is
also claimed by China as Huangyan Island. Numerous standoffs78 and escalatory
incidents have occurred between China and the Philippines regarding fishing and
occupation rights of Scarborough Shoal over the past few years. Both the Philippines
and China are parties to the LOSC.
In 2013 the Philippines initiated legal action under art 287 of the LOSC before
the Permanent Court of Arbitration (PCA) under art VII of the Convention. China
explicitly rejected the jurisdiction of the PCA to rule on issues, relying heavily on the
security and military exceptions under art 298.
Despite refusing to participate in the proceedings, the Chinese public statements
in relation to this litigation have been revealing. As is well known, China has
73
74
75
76
77
78
See Ryan Goodman and Derek Jinks, ‘Toward an Institutional Theory of Sovereignty’
(2003) 55 Stanford Law Review 1749.
Thomas Franck, The Power Of Legitimacy Among Nations (Oxford University Press,
1990).
Martha Finnemore and Kathryn Sikkink, ‘International Norm Dynamics and Political
Change’ (1998) 52(4) International Organization 895.
Harold Koh, ‘Transnational Legal Process’ (1996) 75 Nebraska Law Review 181.
Andrew Guzman, How International Law Works (Oxford University Press, 2008).
Renato Cruz De Castro, ‘China’s Realpolitik Approach in the South China Sea
Dispute: The Scarborough Shoal Standoff’ (Paper presented at the Managing Tensions
in the South China Sea conference, Center for Strategic and International Studies,
5–6 June 2013).
322
STEPHENS — NAVAL POWER IN THE INDIAN OCEAN
maintained assertions of sovereignty over all the islands in the South China Sea. This
is largely predicated on two grounds — the so-called ‘9 Dash’ line that encompasses
the maritime area and the ‘historic waters’ claim.79 Neither of these propositions has
received much contemporary legal support,80 and yet they have generally been at the
centre of Chinese public assertions.
Notwithstanding this perspective, it is significant that a Chinese Government
public position paper81 on the merits of the Philippines’ claims have been based
upon very orthodox grounds of international legal reasoning. Hence, China asserts
sovereignty over the territory in dispute based upon traditional concepts of acquisition of territory/sovereignty and the assertion of their status as islands under the
LOSC. China asserts sovereignty based upon rights of discovery and administration as well as continuous occupation of the territory.82 The Chinese position paper
thus employs a line of reasoning that comports fully to the established practices of
international legal reasoning without any broader assertion of political entitlements.
It barely mentions the concepts of the ‘9-dash’ line and ‘historic waters’ and squarely
addresses the central legal issues in a highly conventional manner.
Irrespective of the actual merits of the response, the adoption of this particular
strategy says much about the political-legal choices made. China has elected to
adopt a formalist approach to its arguments that readily finds acceptance within the
‘invisible college’. More broadly, its identifiable taxonomy of reasoned legal argument
presents a striking departure from the more traditional assertions of self-serving
political right that have previously dominated Chinese assertions to the territory and
land formations in the South China Sea. It may simply be a temporary tactical choice
to adopt a formalist appropriation of the law to serve particular ends. Alternatively,
it may represent an emerging recognition that higher Chinese strategic objectives are
best served through a more authentic embrace of this type of discourse. It may also
be a signal of an awakening consciousness of an emerging maritime power that much
can be gained through investment in a stable law based system. A system where the
collective judgement83 of other relevant actors in this field as to legal rights asserted,
derided and proselyted cannot be easily dismissed and where standing and reputation
carry much ‘soft power’ capacity. To this end, the traction of international law in
advancing (and sometimes blunting) national interests is clear and it offers a useful
79
80
81
81
82
83
Peter Dutton, ‘Through A Chinese Lens’ (2010) 136 United States Naval Institute
Proceedings 16.
Ibid.
Ministry of Foreign Affairs of the People’s Republic of China, Position Paper on
the Matter of Jurisdiction in the South China Sea Arbitration Initiated by the
Republic of the Philippines (7 December 2014) <http://www.fmprc.gov.cn/mfa_eng/
zxxx_662805/t1217147.shtml>.
Ibid [4], [20].
Ibid.
Ian Johnstone, ‘Security Council Deliberations: The Power of a Better Argument’
(2003) 14(3) European Journal of International Law 437, 440.
(2016) 37 Adelaide Law Review323
function, especially given its practical and deferential approach to state consent, in
shaping and providing boundaries to arguments seeking to achieve key national and
multi-lateral outcomes. This ability of international law to impact on outcomes, even
in the absence of a formal adjudicative dispute settlement that is accepted by the
parties, is significant — and equally transferrable to the IOR (and elsewhere).
These factors will likely shape the actions and reactions of China and India within
the IOR. China will invariably invoke legal arguments underpinning freedom of
navigation rights under the LOSC. At the same time, India will marshal its arguments
concerning security interests and coastal state rights. Paradoxically, Chinese interpretations of MSR and coastal state security jurisdiction that are advanced in the
Pacific may well be invoked by India against Chinese maritime activity within the
IOR. Simultaneously, China may well side with US views regarding interpretations
of the LOSC that promote the right of military activity and freedom of navigation.
The irony will not be lost on anyone, even if initially deflected. Legal language and
statecraft will need to be reconciled, but there will be an inexorable pull towards
legitimacy, as Thomas Franck might have predicated, to convince others, ‘invisible’
colleges and visible state actors alike, of the merits of respective positions. It seems
likely that such engagement will produce an accommodation, deftly encouraged and
promoted by invested epistemic communities, seeking the realisation of ‘rule of law’
ideals and concepts, but premised firmly upon a bounded rationality and political
reality. It is in this process of inexorable convergence where the normative power of
the law will be effectively realised.
VI C onclusion
The third United Nations Conference on the Law of the Sea (‘UNCLOS III’)84
debates that led to the drafting of the LOSC were conducted under a consensus negotiation process. This ensured that the LOSC was in many respects a ‘package deal’.
Moreover, in reinforcing this ‘package deal’, the LOSC did not permit the making of
general reservations.85 This further added to both ambiguity and compromise evident
in the language used.86 Such indeterminacy is nothing new within inter­national law
and does not mean that constructive engagement is not possible. As has been noted
by some academics:
the indeterminacy of the rule can give enough flexibility to the parties to strike a
balance between their sovereign interests and thus to move away from the debate
84
85
86
UNCLOS III debates extended from 1973 to 1982.
LOSC art 309.
See George K Walker and John E Noyes, ‘Words, Words, Words: Definitions for the
1982 Law of the Sea Convention’ (2002) 32 California Western International Law
Journal, 343; George K Walker and John E Noyes, ‘Definitions of the 1982 Law of the
Sea Convention — Part II’ (2003) 33 California Western International Law Journal
191.
324
STEPHENS — NAVAL POWER IN THE INDIAN OCEAN
on legality/illegality of one’s actions and claims and focus on confidence- and
relationship-building measures instead.87
Hence, indeterminacy invariably animates a number of interpretive techniques
that are deployed in advancing ‘more’ or ‘less’ persuasive arguments in support of
national claims.
Such flexibility bolsters the capacity for the LOSC to play a key role in shaping
debate and harmonising national positions in the IOR, even in respect of areas such
as military activities in the EEZ where no adjudicative settlement is likely. As argued
in this article, it is clearly evident that international law has a normative effect on
the behaviour of states. So accepted is this proposition that there have arisen various
accounts vying to provide a level of explanation for this phenomena. Numerous
channels of convergence have been identified that relate, variously, to socio­
logical phenomena, rationalist national power calculations, measures of perceived
legitimacy as well as fusions of high politics and law in a self-aware expression of
informed statecraft. These channels have tremendous capacity to propel consensus.
It is notable that in the context of the Scarborough Shoal dispute, China has adopted a
very orthodox public legal position in support of its claims. Such an election reveals
a conscious policy choice by Chinese officials to depart from more self-­serving
themes of justification. Such a position was likely influenced by law’s socialising
effect as discussed in this article. To that end, in the IOR the importance of the
LOSC may lie not in its formal provisions regarding potential dispute resolution,
but its capacity to encourage a convergence of thinking and to provide a professional boundary of possible justification for positions advanced and defended. For
most seasoned commentators, the surest solution for navigating potential strife in
the maritime realm lay not with over-reliance on the dispute resolution mechanisms
of the LOSC, but rather for ‘continued international dialogue as the primary means
to resolve [issues]’88 and for creativity in ‘developing useful modalities to better
establish the balance of rights’89 between maritime nations. Continuing dialogue
and accounts of public justification of positions reached through these means necessarily allow for potential agreement, or at least accommodation of position. Such
dialogue within a familiar vocabulary of an agreed sense of meaning offers much.
Within the military space, dialogue on processes that avoid miscommunication and
lessen the chance of forceful response can only be a positive step.
87
88
89
Matthias Vanhullebusch and Wei Shen, ‘China’s Air Defence Identification Zone:
Building Security Through Lawfare’ (2016) 16(1) China Review 121, 139.
George Galdorisi and Alan Kaufman, ‘Military Activities in the Exclusive Economic
Zone: Preventing Uncertainty and Defusing Conflict’ (2001) 32 California Western
International Law Journal 253, 256.
Ibid.
R P Boast QC *
LAND, CUSTOM, AND IDEOLOGY 1870–1940:
THE NEW ZEALAND CASE IN A GLOBAL CONTEXT
A bstract
This article explores the ways in which ideologies relating to property
and tenures changed in the later 19th and early 20th centuries. In the later
19th century utilitarian and classical liberal ideologies favouring individualist and anti-corporate policies began to lose ground to new approaches
favouring collectivism and cultural relativism. This trend manifested
itself in a variety of ways and in a number of different disciplines, but
the most important shift occurred with the rise of relativist anthropology associated in particular with Franz Boas. The changing climate of
opinion had significant effects in countries as diverse as the United States,
Mexico, and New Zealand. The article takes a comparativist approach and
examines developments in a number of countries, while paying particular
attention to the New Zealand case. New Zealand was a country which had
already developed a complex body of statutory law relating to indigenous
tenures by 1900. It is argued that although the impacts of the new trends
in anthropology and other disciplines were mixed in New Zealand, they
were nevertheless significant and are shown most clearly in the legislation relating to Māori land development enacted in 1929 and associated
in particular with Sir Ᾱpirana Ngata. Various policy developments in
New Zealand in the 1930s, however, meant that Ngata’s vision for Māori
landowners was only partially fulfilled. More generally the article is
written from the perspective that it is important for developments in New
Zealand to be understood in their international and intellectual contexts.
*
Barrister, Professor, Victoria University of Wellington, NZ; Visiting Fellow, Faculty
of the Professions, University of Adelaide, 2014. Research for this article is based on
a grant from the Marsden fund administered by the Royal Society of New Zealand.
This article represents work in progress: clearly much more work remains to be done
to document the trends identified here more closely and to examine their links with
developments in countries like New Zealand. An earlier version of this article was
presented at a symposium on Indigenous legal issues on 10 November 2014 hosted by
the School of Law of the University of Adelaide. I would like to thank the Faculty of
Law at the University of Adelaide in 2014 for hosting me, providing the resources for
our highly successful symposium, and for giving me the opportunity to help with the
teaching of the LLB Legal History course at Adelaide. Particular thanks are due to
David Brown, Matthew Stubbs and Wilf Prest. My thanks also to the staff of the State
Library of South Australia, where some of the research for this article was carried out.
I would like to thank also Dr Erika Pani of the Colegio de México, Mexico City, for her
assistance in pointing to some new research being produced in Mexico. I would also
like to thank the anonymous reviewer of this article for some very helpful comments.
Māori terms are explained in the text, but a basic glossary is set out in the Appendix.
326
BOAST — LAND, CUSTOM, AND IDEOLOGY
I I ntroduction
I
n the 19th century new approaches to land and tenure swept the globe. Intellectually this trend was founded on a complex ideological heritage that reached full
fruition in Europe in the late 18th and 19th centuries. Policies based on individualisation, freedom of contract, and the abolition of corporatist and ecclesiastical
landholding were implemented everywhere — with very mixed effects. But this intellectual framework always had its competitors and its opponents. As the 19th century
wore on, new approaches, as well as re-energised old approaches, increasingly gained
ground. By the later 19th century anti-corporatist and individualist approaches to
land and tenure were in full retreat before the onslaught of developments in anthropology, economics, and history. Of particular importance, as will be explored below,
were trends in the new discipline of anthropology, especially with the work of Franz
Boas in the United States, Boas being steeped in the intellectual traditions in his native
Germany. The newly-emerging collectivism was not, however, confined to academia,
but came to have significant impacts in the fields of policy and law, as had been the case
with the classical liberalism of earlier decades. The links between the new thinking and
law and policy can be seen in countries as diverse as Ireland, Scotland, Mexico, New
Zealand, and the United States. These transformations are the subject of this article.
It is necessary to begin, however, with the earlier liberal vision and its effects.
II T enurial R evolution
as an
I nternational P henomenon
In 1873 two legal processes took place on opposite sides of the Pacific Ocean. The first
occurred in the Soltepec (or Sultepec) region of central Mexico. Nieves Salvador, who
lived in the village of San Simón Sosocoltepec, part of the municipio of Amatepec,
made a land title application to the district administrator of Soltepec in which his
village lay. Nieves declared that he had been born and brought up in his village and
that he possessed a portion of land which had belonged to his ancestors since time
immemorial. He stated also that he had the necessary documents to prove his title.
The land in issue was a small plot split into two sections, one of which produced half
a fanega of maize every year, and the other which was a small market garden. He
stated that he wished to obtain legal title to this property under the provisions of the
Ley Lerdo, a reforming statute of the Mexican parliament enacted on 25 June 1856.
The district administrator forwarded the application on to the town council (ayuntamiento) of Amatepec so that an inquiry could be made into the application and a
price determined. The mayor of Amatepec and the town secretary visited Nieves,
inspected his land, and filed a report describing the boundaries and made an estimate
that the land was worth 60 pesos. The details were sent to the district officials, and the
administrator ordered that a title should be issued and allocated to Nieves Salvador
as owner. The brief title document, just a single page, gave some brief details about
Nieves as grantee, and the location, value and agricultural potential of the parcel.1
1
See Frank Schenk, ‘La Desamortización de los Tierras Comunales en el Estado de
México (1856–1911): El Caso de Distrito de Sultepec’ (1995) 45 Historia Mexicana 3,
3–5.
(2016) 37 Adelaide Law Review327
Also in 1873, half a world away from Mexico, the Native Land Court of New Zealand,
sitting at the small country town of Foxton located on the west coast of the North
Island to the north of Wellington, gave judgment relating to a block of land named
Kukutauaki. The Court derived its powers from the Native Lands Act 1865 (NZ).2
The judgment is dated 4 March 1873 and is written out in longhand by the clerk of
the court in the relevant minute book volume of the Native Land Court. The Court,
comprised of two European judges and a Māori assessor named Hemi Tautari, ruled
that Kukutauaki belonged principally to the Ngāti Raukawa tribe. A translation of the
judgment was read out in the Māori language to those present in Court. The decision
was controversial, and generated much discussion in the courtroom.3 In accordance
with the 1865 Act the block was vested in ten individuals as representative owners,
who were now able to complete the tenurial transformation of the block by obtaining
a Crown Grant. The relevant title documents can still be found in the records of the
Native Land Court, and the evidence given in the case and the Court’s decision are
recorded in the Otaki Minute Books of the Native Land Court of New Zealand.4
Nieves Salvador, who was Nahua and whose first language was Nahuatl, and the
Māori-speaking members of the Ngāti Raukawa, Muaupoko and Rangitane tribes
assembled in the courtroom in Foxton had no awareness of one another. Māori land
tenure is quite unlike Mesoamerican tenures. But they nevertheless had something in
common, apart, that is, from the fact that they were all believing Christians (Catholic
in the case of Soltepec, and Anglican in the case of Ngāti Raukawa). They were
engaged in legal processes which were designed to radically change their land­
holdings. The Ley Lerdo 1856 and the Native Lands Act 1865 (NZ) were different
in many ways, but they reflected a common vision. At its heart was the view that
customary tenures belonged to an earlier and archaic world and needed to be swept
away in order to encourage prosperity and progress. This vision was, in short, an
ideology — an ideology manufactured originally in Europe, and which by 1873 was
affecting the lives of people on opposite sides of the Pacific Ocean.
2
3
4
Native Lands Act 1865, 29 Vict 71.
Kukutauaki (1873) 1 Otaki MB 176, 176–8. The originals of the Court’s judgments
are recorded in the minute books of the Court, of which there are several thousand
volumes, and which are arranged by Court district and region.
On the effects of tenurial change on the Māori people: see Richard Boast, Buying the
Land, Selling the Land: Governments and Māori Land in the North Island, 1865–1921
(Victoria University Press, 2008). On the history of Māori land and of the Native/
Māori Land Court: see Richard Boast, The Native Land Court: A Historical Study,
Cases and Commentary, 1862–1887 (Thomson Reuters, 2013); Richard Boast, The
Native Land Court: Vol 2, 1887–1909: A Historical Study, Cases and Commentary
(Thomson Reuters, 2015); R P Boast, ‘The Lost Jurisprudence of the Native Land
Court: The Liberal Era 1891–1912’ (2014) 12 New Zealand Journal of Public
and International Law 81. For a survey of New Zealand developments relating to
indigenous land tenures written for a wider non-New Zealand readership: see Richard
Boast, ‘Individualization — An Idea Whose Time Came, and Went: The New Zealand
Experience’ in Lee Godden and Maureen Tehan (eds), Comparative Perspectives on
Communal Lands and Individual Ownership: Sustainable Futures (Routledge, 2010)
145, 145–66.
328
BOAST — LAND, CUSTOM, AND IDEOLOGY
As this example shows, New Zealand’s tenurial revolution as exemplified by the
Native Lands Acts of 18625 and 18656 and the establishment of the Native Land
Court was not an isolated phenomenon. Strikingly similar policies can be found
all around the Pacific rim at more or less the same time. The Native Lands Acts
were driven by a particular ideology, one that arose from that array of ideas, ideals
and rhetoric which, for convenience, we call ‘liberalism’. One important ingredient
of the complex liberal brew was a belief in the social and economic benefits of
individual ownership of land. The law relating to land tenure in many countries in the
19th century strongly encouraged individual tenures and discouraged, penalised, or
even abolished collective tenures. The newly independent Latin American republics
are one example. The same is true of important changes that took place in the
Kingdom of Hawai‘i. Another example is allotment (individualisation) of reservation lands in the United States under the Dawes Act of 1886.7 And New Zealand’s
tenurial revolution of the 1860s is certainly yet another example of this worldwide
trend.
The ideological foundations for these policies emerged in Europe in the late
eighteenth and early nineteenth centuries. In Britain freehold tenures had long
been equated with liberty and progress, and customary tenures with despotism and
poverty. As J G A Pocock puts it, ‘it was the mark of a true “oriental despotism” that
the subject possessed no free tenure, no property in his goods, and no law to protect
either’.8 The English-speaking world’s version of Renaissance civic humanism, as
it is put in a classic study of the Federalist era in the United States, came to rest on
two main foundations, the right of citizens to bear arms and ‘freehold property as
the fundamental safeguard and guarantee of the citizen’s independence of judgment,
action, and choice’.9 There was a continental version of the same ideas, an important
component of liberal theory and practice in France, Italy, Spain and Spanish America.
Common to both the British and continental variants both is the view that a free and
enlightened society was one which respected and encouraged private property.
Remodelling land tenure became a core component of the liberal vision in the independent Latin American republics. As elsewhere in Latin America, Mexican history
in the 19th century was dominated by a long struggle between Conservatives and
Liberals. Immediately after Mexican independence ‘a debate emerged for the first
time concerning the best method for putting into place liberal policies for the disentailment of lay properties in the particular social and cultural context of rural
5
6
7
8
9
Native Lands Act 1862 (NZ).
The current statute relating to Māori land is Te Ture Whenua Māori Land Act 1993
[Māori Land Act 1993] (NZ). The Native Land Court, first provided for in the Native
Lands Act 1862 (NZ), is still in existence as the Māori Land Court (Te Kooti Whenua
Māori).
25 USC 14(v) § 461.
J G A Pocock, Barbarism and Religion, Volume Two: Narratives of Civil Government
(Cambridge University Press, 1999) 239.
Stanley Elkins and Eric McKitrick, The Age of Federalism: The Early American
Republic, 1788–1800 (Oxford University Press, 1993) 9.
(2016) 37 Adelaide Law Review329
Mexico’.10 The main Mexican statute was the Ley Lerdo or Ley de ­Desamortización11
of 25 June 1856, based in turn on earlier laws in the Mexican states of Michoacán,
Zacatecas and Guanajuato. This law was enacted by the liberal and anticlerical
government dominated by Benito Juárez, and was not able to be given full effect
due to the prevailing political chaos in mid-century Mexico. The Ley Lerdo was
supplemented by a number of statutes which reflected the views of a group of highly
placed technocrats within the Díaz regime after 1876, the so-called C
­ ientificos,
strong believers in economic liberalism. The statutes shared a common vision with
the Constitución Política de los Estados Unidos Mexicanos [Political Constitution
of the United Mexican States] (‘Mexican Constitution of 1857’), a liberal and anti-­
clerical statement which employed a sophisticated discourse of individual rights,
political equality, freedom of the press and the sovereignty of the people which in
turn drew its inspiration from the French Revolutions of 1789 and 1830, the French
Code Civil [Civil Code] of 1804, the Constitución Política de la Monarquía Española
promulgada en Cádiz a 19 de marzo de 1812 [Political Constitution of the Spanish
Monarchy promulgated in Cádiz on 19 March 1812], and the Constitution française
de 1848 [French Constitution of 1848].
Church lands and communal Indian lands were seen as relics of the Spanish colonial
empire and as obstacles to modernisation, and the period of the liberal reforms
associated with the governments of Benito Juárez and Porfirio Díaz saw significant losses of Indian communal lands to private ownership during a period of rapid
economic expansion. The process was, however, both complex and incomplete.
10
11
Aurora Gómez Galvarriato and Emilio Kouri, ‘La Reforma Económica: Finanza
Públicas, Mercados y Tierras’, in Erika Pani (ed), Nación, Constitución y Reforma,
1821–1908 (Fondo de Cultura Económica, 2010) 101 (R P Boast trans).
Named after the Mexican Liberal politician Miguel Lerdo de Tejada. The principal
target of the Ley Lerdo was the vast endowed lands held by the Church in Mexico.
The great historian of Mexican liberalism is Jesús Reyes Heroles. See, eg, Jesús Reyes
Heroles, El Liberalismo Mexicano: Los Orígenes (Fondo de Cultura Económica, 2nd
ed 1974). On the period of ‘the Reform’ (la Reforma) see eg, Jan Bazant, Alienation
of Church Wealth in Mexico: Social and Economic Aspects of the Liberal Revolution
1856–1875 (Cambridge University Press, 1971); Richard N Sinkin, The Mexican
Reform, 1855–1876: A Study in Liberal Nation-Building (University of Texas Press,
1979); François-Xavier Guerra, Le Mexique: De l’Ancien Régime à la Révolution
(L’Harmattan, 1985); Jennie Purnell, ‘With all due Respect: Popular Resistance to
the Privatization of Communal Lands in Nineteenth-Century Michoacán’ (1999)
34 Latin American Research Review 85; Emilio H Kourí, ‘Interpreting the Expropriation of Indian Pueblo Lands in Porfirian Mexico: The Unexamined Legacies of
Andrés Molina Enríquez’ (2002) 82 Hispanic American Historical Review 69. The
effects of the liberal Reforma on indigenous communities are now being studied by
means of case studies: See, eg, J Édgar Mendoza García, Municipios, cofradías y
tierras communales: Los pueblos chocholtecos de Oaxaca en el siglo XIX (Universidad Autónoma Metropolitana, 2011) (Chochotelco people, Oaxaca); Gabriel Fajardo
Peña, ‘La privatización de la tierra y problemas agrarios en la Huasteca potosina,
1870–1920’ in Antonio Escobar Ohmstede and Ana María Gutiérrez Rivas (eds),
Entretejiendo el mundo rural en el ‘oriente’ de San Luis Potosí, Siglos XIX y XX
(Centro de Investigaciones y Estudios Superiores en Antropología Social, 2009).
330
BOAST — LAND, CUSTOM, AND IDEOLOGY
Recent Mexican scholarship is now cautious about overstating the effects of the
Reforma on the corporate lands of the Church and the Indian pueblos. Historians
have emphasised the need for further research, the obstacles that the liberals faced in
putting their plans into effect and the limitations of liberal theory itself, which tended
to regard property rights as sacred. Also important are the distinctions between the
various categories of communal lands, as not all types of communal properties were
affected in the same way by the reforming statutes.12 Liberalism left the properties
of the existing landed elite untouched, contributing to the problem of unequal land
distribution, a problem which was one of the causes of the great Mexican revolution
which broke out in 1910.13 A further difficulty was the weakness and constant
indebted­ness of the Mexican state: enacting statutes is one thing, putting them
into effect is quite another. Mexico, moreover, is a vast and complex country, and
the effects of the Reforma on the indigenous towns varied considerably, as is now
becoming increasingly clear as the result of a proliferation of new regional and local
studies of 19th century Mexico.14 Notwithstanding all these caveats, however, it is
certain that an important, if regionally varied, transformation took place in Mexico.
Similarly complex, but nevertheless very real transformations occurred in the United
States, the Spanish American republics, Hawai‘i, New Zealand, Taiwan,15 and many
other countries.
In Central America, for example, where there was also a long Liberal-Conservative
struggle, there was similarly a decline in ecclesiastical and indigenous land-holdings
in the 19th century. The process had significant effects in Guatemala, where landholdings by the indigenous towns were still significant at the time of independence.16
Rufino Barrios (president of Guatemala 1873–85) was one of a sequence of key
Central American liberal presidents who were responsible for legislative changes
that led to greatly expanded liberal programs to support the coffee industry and to
otherwise implement a program of capitalist economic expansion. His counterparts
were Rafael Zaldívar (1876–83) in El Salvador, Braulio Carrillo (1838–42) and
12
13
14
15
16
The classifications are too complex to be explored here. See generally Schenk, above
n 1.
See generally Galvarriato and Kouri, above n 10.
See, eg, Garcίa, above n 11.
Land tenure in Taiwan under Qing and Japanese colonial administration is being
investigated by Riuping Ye as a part of the Marsden research grant administered
by the Royal Society of New Zealand. See Ruiping Ye, ‘User Rights or Ownership:
The Nature of Land Rights in Imperial China — Using Taiwan During the Qing
Period as a Case Study (2014) 20 New Zealand Association of Comparative Law Year
Yearbook 169.
On developments in Guatemala: see R M Carmack, Rebels of Highland Guatemala:
The Quiché-Mayas of Momostenango (University of Oklahoma Press, 1995); Lowell
Gudmundson and Héctor Lindo-Fuentes, Central America, 1821–1871: Liberalism
before Liberal Reform (University of Alabama Press, 1994); W George Lovell,
Conquest and Survival in Colonial Guatemala: A Historical Geography of the
Cuchumatán Highlands, 1500–1821 (McGill-Queen’s University Press, 1992); Ralph
Lee Woodward Jr, Rafael Carrera and the Emergence of the Republic of Guatemala,
1821–1871 (University of Georgia Press, 1993).
(2016) 37 Adelaide Law Review331
Tomás Guardia Gutiérrez (1870–82) in Costa Rica, Marco Aurelio Soto (1876–83)
in Honduras, and José Santos Zelaya (1893–1909) in Nicaragua. As in Mexico,
tenurial ‘reforms’ in Central America were only one component of wide-ranging liberal economic policies, which included also the encouragement of foreign
investment, labour controls, and the granting of concessions to create an infrastructure of railways and ports, designed particularly in the Central American case to
encourage the growth of an export-based coffee industry.17
The Liberal revolutionaries dispossessed traditional Indian communities, dis­
established Church control over property, raffled off public lands, encouraged
European immigration and foreign investment, developed ports and railroads,
and forcibly recruited a largely unwilling rural population to work on their coffee
estates.18
III C ounter -T endencies
There were, however, tensions and opposing currents within this liberal mind-set and
in opposition to it. In England the ideal of the independent yeoman freeholder was an
ancient one, an ideal which was linked to the classical republicanism that emerged in
English political discourse in the 17th century and remained important in the 18th and
19th centuries. Freeholds and clear titles were not by themselves enough, as it was no
less important to ensure that land did not fall into the hands of a rural ruling oligarchy.
Enclosure posed the risk of land monopoly. As the wise legislators of the Roman
Republic had done, it was argued, the state should take action to prevent undue land
aggregation. Opponents of parliamentary enclosure in the 18th century, including
Stephen Addington and Richard Price, drew on this complex rhetorical tradition to
fortify their anxieties about declining rural population and a loss of yeoman independence.19 There was a tension between an emergent liberalism emphasising property
17
18
19
See Jeremy Adelman, ‘Spanish-American Leviathan? State Formation in Nineteenth-Century Spanish America: A Review Article’ (1998) 40 Comparative Studies in
Society and History 391; Patricia Alvarenga Venturolo, ‘La Expansión Cafetalera en El
Salvador: Un Analysis de la Bibliografia Existente’ (1994) 30 Revista de Historia 255;
Yolanda Baires Martinez, ‘El Café y las Transacciones Inmobiliarias en Costa Rica
(1800–1850): Un Balance’ (1986) 12–13 Revista de Historia 151; Dario A Euraque,
Reinterpreting the Banana Republic: Region and State in Honduras (University of
North Carolina Press, 1996), Lowell Gudmundson, Costa Rica Before Coffee: Society
and Economy on the Eve of the Export Boom (Louisiana State University Press,
1986); Aldo A Laura-Santiago, An Agrarian Republic: Commerical Agriculture and
the Politics of Peasant Communities in El Salvador (University of Pittsburgh Press,
1999); David J McCreery, ‘Coffee and Class: the Structure of Develop­ment in Liberal
Guatemala’ (1976) 56 Hispanic American Historical Review 438; David McCreery,
Rural Guatemala 1760–1940 (Stanford University Press, 1994).
Jeffery M Paige, Coffee and Power: Revolution and the Rise of Democracy in Central
America (Harvard University Press, 1997) 14.
See S J Thompson, ‘Parliamentary Enclosure, Property, Population, and the Decline
of Classical Republicanism in Eighteenth-Century Britain’ (2008) 51 Historical
Journal 621.
332
BOAST — LAND, CUSTOM, AND IDEOLOGY
rights and liberal political economy with a pervasive distrust of large estates, the
distrust typically combined with an idealisation of the independent yeoman. This
tension was reflected in British colonies such as New Zealand, where many of the
land policies of the Liberal government after 1891 were strongly influenced by an
earlier yeoman ideal: an ideal which coincided with the Liberal government’s claims
to represent ‘the people’ and its pursuit of ‘close settlement’ (the latter term implying
hostility to large estates). The intensity of debate in New Zealand over such pivotal
issues over the restoration of Crown pre-emptive purchasing of Māori land in 1894
or whether land purchased from Māori by the state should be Crown-granted in
freehold or leasehold needs to be understood against a longer and complex process
of debate about land, wealth and national well-being which reaches far back into the
history of the British Isles, and indeed into the classical world.
A particular context for the debate was the enclosure of the commons in the British
Isles. The principal objective of enclosure was to convert common lands and the
stripbased open fields of the old manorial system into compact surveyed holdings
‘enclosed’ by hedgerows, and is generally seen by economic historians as a fundamental component of England’s ‘agricultural revolution’.20 The process began in
the 16th century and gained rapid momentum from 1790–1820. There was a long
literary tradition reflecting on agricultural improvement, exemplified by Walter
Blith’s (1605–54) The English Improver, a work that depicts the new enclosed
landscape as more beautiful and picturesque than the great open arable fields of
the old manorial system, an aesthetic judgment which not all contemporaries would
have accepted.21 As Ian Waites has shown, the older landscape can be seen in the
paintings of famous artists such as Stubbs, Gainsborough and Constable, as well in
the works of lesser-­known landscape painters such as Paul Sandby, John Varley and
William Turner of Oxford.22 Enclosure and its effects reverberated through English
literature in the 19th century, most of all in the poetry of John Clare (1793–1864) who
saw its effects as little less than catastrophic.23 Whether enclosure was beneficial,
and, if so, to whom, is the subject of one of the most prolonged debates in English
histori­ography.24 It was controversial at the time, and was widely resented by those
sectors of English and Scottish rural society that had most to lose from it. These
controversies were familiar to the Victorian settlers of New Zealand and other British
20
21
22
23
24
Leading texts are J D Chambers and G E Mingay, The Agricultural Revolution
1750–1880 (Batsford, 1969); Mark Overton, Agricultural Revolution in England:
The Transformation of the Agrarian Economy 1500–1850, (Cambridge University
Press, 1996). For a different emphasis: see J M Neeson, Commoners: Common Right,
Enclosure and Social Change in England, 1700–1820 (Cambridge University Press,
1993).
Anne Janowitz, ‘Land’ in Iain McCalman (ed), An Oxford Companion to the Romantic
Age: British Culture 1776–1832 (Oxford University Press, 1999) 152.
See Ian Waites, Common Land in English Painting, 1700–1850 (Boydell Press, 2012).
On Clare: see Jonathan Bate, John Clare: A Biography (Farrar, Straus and Giroux,
2003); John Goodridge, John Clare and Community (Cambridge University Press
2013).
See generally Neeson, above n 20.
(2016) 37 Adelaide Law Review333
colonies.25 On the whole New Zealanders saw enclosure as having made most people
in England and Scotland landless, the very antithesis of the kind of society migrants
wanted to create in the Antipodes.26 This did not, however, make them enthusiasts for
a recreation of manorial tenures in New Zealand. The desired goal was freeholds, or
secure leaseholds, but available to all rather than to a few.
In the later 19th century a new mood began to take hold all around the world regarding
the relationship between the state and private property rights. The causes of this
new way of thinking about land and tenures are uncertain, possibly arising from
the failure of enclosure to generate rural prosperity, or perhaps as an idealisation of
rural life as a contrast to the squalor of industrial cities. It now became an article of
faith amongst British agrarian historians, as Joan Thirsk has explained, that small
holdings were preferable to large estates.27 There was a shift in direction away from
private property and clear titles, and a growing emphasis on the ‘social function’
of property.28 This concept is associated with the French jurist Leon Duguit, who
argued that the state’s primary purpose was to provide for social needs, and that the
state’s protection of private property rights was conditional on property performing
its ‘social function’. In the early 20th century this concept was incorporated into a
number of important constitutional documents, including art 153 of Die Verfassung
25
26
27
28
On the links between rural dissent in England and migration to New Zealand see
especially Rollo Arnold, The Farthest Promised Land: English Villagers, New
Zealand Immigrants of the 1870s (Victoria University Press, 1981).
There were many articles in New Zealand newspapers referring to the injustices caused
in England by enclosure in particular instances: see, eg, ‘Landlordism is Doomed’, Bay
of Plenty Times (Tauranga), 28 October 1889 (referring to the Holmesfield Enclosure
Act 1820 (NZ)). Acts of protest against enclosure were still continuing in Britain in
the 1880s and 1890s, and these protests were reported in detail in the colonial press:
see, eg, ‘Asserting Common Rights’, Timaru Herald (Timaru), 5 December 1894, 4
(referring to protests in Flintshire). On other occasions newspapers commented on
the risks of landlessness and land monopolisation that enclosure had aggravated:
see eg, ‘Land Nationalization’, Colonist (Nelson), 18 October 1882, 4; ‘Warning
to the Colonies’, Timaru Herald (Timaru), 21 June 1907, 2 (reporting views of the
English Land Nationalisation Society). Newspapers in New Zealand were generally
supportive of Lloyd George’s budget in 1910 and dismissive of attacks on it by the
House of Lords, sometimes pointing out that some of the leading opponents of the
new land tax had unjustly profited from enclosure in England: see ‘Our Ruined Peers’,
Auckland Star (Auckland), 29 January 1910, 13 (referring to the Duke of Portland).
Radical newspapers such as the Māoriland Worker naturally strongly disapproved
of parliamentary enclosure in England, thus reflecting longstanding English radical
tradition: see, eg, ‘Landlordry in the 16th Century’, Māoriland Worker (Wellington),
15 November 1922, 15. There is scope for further research on attitudes to enclosure in
New Zealand and her sister colonies of Victoria and South Australia.
See Joan Thirsk, ‘The Content and Sources of English Agrarian History after 1500’
(1955) 3 Agricultural History Review 66, 67.
See generally Thomas A Ankersen and Thomas Ruppert, ‘Tierra y Libertad: The
Social Function Doctrine and Land Reform in Latin America’ (2006) 19 Tulane
Environ­mental Law Journal 69.
334
BOAST — LAND, CUSTOM, AND IDEOLOGY
des Deutschen Reichs [Constitution of the German Reich] (‘Weimar Constitution’)
and art 27 of the Mexican Constitution of 1917.29
IV T he N ew A nthropology
Changing approaches to indigenous land tenures lie deep in Western intellectual
history. New Zealand’s Native Lands Acts of the 1860s reflected a deep faith in the
benefits of individual property ownership, reflecting in turn assumptions deriving
from the European Enlightenment regarding free tenures, the stages of human
history, and universal reason. But not all European thought ran in these kinds of
currents, and especially not in Germany.30 The crucial link between the German
critique of the Enlightenment and modern anthropology is Franz Boas (1858–1942)
who became professor of anthropology at Columbia University in 1899. Boas is
widely regarded as the founder of American academic anthropology. He is the link
between his own students (who include Ruth Benedict, Margaret Meade, Edward
Sapir, Alfred Kroeber, Melville Herskovits, and Manuel Gamio) and those German
intellectuals who over several decades constructed the intellectual tradition in which
Boas was educated, notably Wilhem and Alexander von Humboldt, J G Herder, Karl
Ritter, Theodore Waitz, and Adolf Bastian.31
German social thought was richly diverse, but it was in general highly relati­vistic,
emphasising the complexity and variety of humanity and the individuality of
cultures. Cultures were enclosed above all by languages; learning new languages
meant an individual could ‘acquire numerous Weltanschauungen by virtue of the
different psychological structures inherent in various languages’.32 German scholars
such as Waitz and Bastian and the ‘anthropogeographer’ Friedrich Ratzel (1844–
1904) shared ‘a historicist viewpoint that was embedded in Counter-Enlightenment
assumptions’, and insisted ‘on viewing the plurality of cultural phenomena as the
29
30
31
32
Cited in ibid 100–101. Ankersen and Ruppert observe that ‘[a]lthough the 1917
Mexican Constitution did not use the phrase “social function” the concept is clearly
implicit’: at 101.
See Julia Liss, ‘German Culture and German Science in the Bildung of Franz Boas’, in
G W Stocking (ed), Volksgeist as Method and Ethic: Essays on Boasian ­Ethnography
and the German Anthropological Tradition (University of Wisconsin Press, 1996)
155, 155–84.
On Boas: see Matti Bunzl, ‘Franz Boas and the Humboldtian Tradition: From
Volksgeist and Nationalcharakter to an Anthropological Concept of Culture’, in
G W Stocking (ed), Volksgeist as Method and Ethic: Essays on Boasian Ethno­graphy
and the German Anthropological Tradition (University of Wisconsin Press, 1996)
17, 17–78. One historian of anthropology who has the deepest reservations about
the Boasian tradition (and especially about its legacy) is Derek Freeman: see Derek
Freeman, Margaret Mead and Samoa: The Making and Unmaking of an Anthropological Myth (Australian National University Press, 1983).
Bunzl, above n 31, 34.
(2016) 37 Adelaide Law Review335
products of complex historical processes rather than eternal natural laws’.33 The
essence of this tradition was the need to study cultures and languages holistically.
Boas, who was Bastian’s pupil, was steeped in these intellectual tendencies, and
following a period of intensive fieldwork in the Arctic he took these ideas with him
to the United States.
When Boas took up residence in New York, American anthropology was still
positioned within the evolutionist tradition originating in Britain. Anthropological
evolutionism — not the same thing as Darwinism, or ‘social Darwinism’ — is most
closely associated with Edward Burnett Tylor, whose orientation was on the whole
positivist and utilitarian.34 Another evolutionist was Henry James Sumner Maine,
a brilliant Cambridge-trained classicist who was admitted to the bar in 1850, served
as a legal official in India, and who published his Ancient Law in 1861, a classic of
legal history which famously focused on the (supposedly) universal historical transitions from ‘status to contract’.35 In the United States the most prominent evolutionists
were Lewis Henry Morgan, John Wesley Powell, and Daniel Garrison Brinton.
Morgan was a successful lawyer and businessman who subsequently devoted himself
to ethnographic scholarship, producing his famous book Ancient Society in 1877.36
Evolutionist anthropology sees cultures as progressing through developmental
stages. Not all societies, however, moved from one stage to the next. It was pivotal to
cultural evolutionism that societies around the world did not evolve at the same rate,
and that some remained entrapped in an arrested state of development, especially
where they remained in isolation and cut off from ideas diffusing from elsewhere.
There would be, according to the theory, isolated groups who had remained in a state
of ‘animism’, who were therefore said to be interesting because they practised the
original or most primitive form of religion from which most societies had progressed.
To take another example, the rules relating to the degrees of relationship within which
one can marry were believed to have evolved ‘primitive promiscuity’, a no-holdsbarred (literally) state of affairs which evolved by a series of defined steps into the
complex rules of modern Western countries. The latter, according to this standpoint,
had travelled furthest from the original state of ‘primitive promiscuity’ while other
societies remained supposedly comparatively close to it in a state of arrested develop­
ment.37 Boas, however, rejected evolutionist anthropology in favour of a vision of
universally complex and equally interesting cultures existing side by side. Australian
33
34
35
36
37
Ibid 52.
See George W Stocking Jr, After Tylor: British Social Anthropology 1881–1951
(University of Wisconsin Press, 1995) 79.
Henry Sumner Maine, Ancient Law: Its Connection with the Early History of Society
and its Relation to Modern Ideas (John Murray, 1861). On Maine: see especially
R C J Cocks, Sir Henry Maine (Cambridge University Press 1988).
Lewis Henry Morgan, Ancient Society (Henry Holt & Co, 1877). On Morgan: see
John M Conley and William M O’Barr, ‘Legal Anthropology Comes Home: A Brief
History of the Ethnographic Study of Law’ (1993) 27 Loyola of Los Angeles Law
Review 41, 42–4.
Stocking, British Social Anthropology, above n 34, 17–34.
336
BOAST — LAND, CUSTOM, AND IDEOLOGY
Aboriginals were no less modern than Belgians or Argentinians, merely different.
According to G W Stocking, Boas was largely responsible for creating the modern
anthropological term ‘culture’ (as we would speak of ‘Māori culture’ or ‘Polynesian
cultures’), a usage that did not exist in 1900, when the term ‘culture’ still carried the
sense only of refinement, education, and manners (a ‘cultured’ person).38 Through
his own prestige and through his own distinguished students, Boasian thought came
to dominate anthropology in the United States, and, indirectly, in other countries as
well. Anthropology became perceived as the study of cultures, preferably based on
intensive fieldwork.
Meanwhile British social anthropology, following a similar trajectory, moved from
evolutionism to ‘functionalism’. The movement in the United States and in Britain,
according to Stocking, was distinct but generally similar:
While the history of ethnographic method, like that of anthropological theory,
was to follow a somewhat similar course under Boas in the United States than it
did after Tylor in Great Britain, it was in the longer run a convergent evolution,
marked by many similar phases.39
According to Stocking, by the later 19th century a number of people engaged in
studying indigenous groups in British colonies were already beginning to deviate
somewhat from the evolutionist path.
Stocking gives particular emphasis to the emergence of ethnographic fieldwork as the
principal characteristic of modern British anthropology. Much of this fieldwork was
carried out in the southwestern Pacific, by R H Codrington in Melanesia, Baldwin
Spencer and Frank Gillen in central Australia, Alfred Haddon and W H R Rivers
in the Torres Strait region, and Bronisław Malinowski in the Trobriand Islands.40
At first fieldworkers operated within the evolutionary paradigm, but as time went on
and as the published results of fieldwork began to accumulate, Tylorian evolutionism
came to be seen as increasingly tired and outmoded. The final step in the British
development was the emergence of ‘functionalism’, associated with Bronisław
Malinowksi and his students — many of them, as it happens, from Australia and New
Zealand. A cultural anthropology bridge linked Australasian universities, especially
the University of Sydney, with the school of anthropology at the London School
of Economics where Malinowski held court.41 Functionalism allowed indigenous
societies to be seen synchronically and valuable in themselves, in much the way
as did Boasian cultural relativism. Legal policies designed to facilitate groups to
move from lower to higher stages on the evolutionist scale, the Native Lands Acts
and Dawes Act of 1886 being clear examples, no longer seemed to make any sense.
By 1950 the emphasis on culture and environment, backed at an international level
38
39
40
41
See George W Stocking, ‘Franz Boas and the Culture Concept in Historical Perspective’ (1966) 68 American Anthropologist 867.
Stocking, British Social Anthropology, above n 34, 86.
Ibid 87–115, 233–297.
Ibid 407–8.
(2016) 37 Adelaide Law Review337
by UNESCO, had become entrenched virtually everywhere and reigned unchallenged until the complex controversies over sociobiology that began around 1975.42
V I reland
and
S cotland
The perceived importance of Ireland as a precedent, cautionary tale, and anti-model
is impossible to exaggerate. Irish issues were pivotal in British politics after the Acts
of Union 1800.43 Irish dramas and disasters were a staple of the British press, and of
the presses in the colonies as well. The tribulations of Ireland were a central drama in
the English-speaking world, and a ready-made frame of reference in practically any
side of any policy debate. Critics of the confiscation of Māori land in New Zealand
pointed to Irish history as a dreadful warning of the folly of such a course, while
opponents of the Māori King movement liked to describe it as a ‘Land League’,
an unfriendly term usually reserved Irish rural combinations, redolent of burned
haystacks and maimed cattle. Moreover, many migrants to New Zealand, unsurprisingly, were Irish, from both sides of the sectarian divide.44 A number of New Zealand
politicians were Irish, including two prime ministers (Ballance and Massey, both of
them Ulster Protestants) and others, such as Sir George Grey, knew the country only
too well.
In the decades immediately before the Famine, Ireland had presented a singular
example of a rural society where the formal legal boundaries of estates, tenancies
and sub tenancies bore little relationship to the customary geography of villages,
hamlets, and townlands (baila).45 Customary and legal geographies failed absolutely
to connect. Following the catastrophe of the Famine of 1847–8, the ‘Great Hunger’
(an Gorta Mór), the issue of Irish tenures was the subject of endless commissions,
42
43
44
45
On which, see, eg, Ullica Segerstråle, Defenders of the Truth: The Sociobiology
Debate (Oxford University Press, 2000).
Union with Ireland Act 1800, 39 & 40 Geo 3, c 67; Act of Union (Ireland) 1800,
40 Geo 3, c 38.
On the Irish in Australia and New Zealand: see Patrick O’Farrell, ‘The Irish in Australia
and New Zealand’ in W E Vaughan (ed), Ireland Under the Union 1801–1970 (Oxford
University Press, 1989) 661, 661–81; Patrick O’Farrell, The Irish in Australia (New
South Wales University Press, 1986); Patrick O’Farrell, Vanished Kingdoms: Irish
in Australia and New Zealand: A Personal Excursion (New South Wales University
Press, 1990).
See generally L M Cullen, ‘Economic Development’ in T W Moody and W E Vaughan
(eds), A New History of Ireland: Eighteenth-Century Ireland 1691–1800 (Clarendon
Press, 1986) vol 4, 159; J H Andrews, ‘Land and People, c 1870’ in T W Moody and
W E Vaughan (eds), A New History of Ireland: Eighteenth-Century Ireland 1691–1800
(Clarendon Press, 1986) vol 4, 236; T W Freeman, ‘Land and People, c. 1841’ in
W E Vaughan (ed), Ireland under the Union 1801–70 (Clarendon Press, 1989) 242;
James S Donnelly Jr ‘Landlords and Tenants’ in W E Vaughan (ed), Ireland under
the Union 1801–70 (Clarendon Press, 1989) 332; J C Brady, ‘Legal Developments,
1801–79’ in W E Vaughan (ed), Ireland under the Union 1801–70 (Clarendon Press,
1989) 451.
338
BOAST — LAND, CUSTOM, AND IDEOLOGY
investigations, and inquiries. One important focus of the debate on Irish tenures was
the ‘Ulster custom’, a custom which had two main components. Tenants in Ulster
were, firstly, reasonably free from eviction provided they paid their agreed rents,
and, secondly, had a right of ‘free sale’: they could sell their occupational right to a
new tenant provided the latter was acceptable to the landlord. Outgoing occupiers
could do this — this being the key point — even when they did not have a formal
lease. The ‘custom’ also benefited incoming tenants, who acquired a secure right
without the risk of harassment or violent retribution, all too common in the case
of those who took up occupational rights following evictions in the rest of Ireland.
In fact, the Devon Commission of 1843 believed that tenant-right was mostly ‘a mere
life insurance or purchase of immunity from outrage’.46 This is at best a partial
view. Other theories are that Irish tenants believed that mere occupation of the soil,
whether held by a formal lessee or not, created a property right which landlords
were prepared to respect, at least in Ulster. Alternatively it has been argued that the
custom of tenant right was actually useful to landlords because arrears of rent could
be deducted from the money paid to the outgoing occupier by the purchaser.47 The
custom was encapsulated in the so-called ‘three F’s’: fair rent, fixity of tenure, and
free sale. It had no formal legal foundations, either statutory or in the Common Law
(if anything, the ‘custom’ ran contrary to ordinary tenancy law: leasehold contracts
made no provision for any of the ‘three F’s’). In effect tenants had a customary
property right in their leaseholds which they could sell for valuable consideration.
Most importantly, the ‘Ulster custom’ provided a mechanism for compensation for
improvements, either at the expense of the incoming tenant or the landlord. As a
result of the Ulster custom, so it was thought, tenants in Ulster were better off than
those in the other three provinces of Ireland, and for this reason Ulster was somewhat
more prosperous and stable than the rest of the country. Whether this was actually
the cause of Ulster’s (in fact highly relative) stability and prosperity is less important
than the fact that it was widely believed.48
Myth or reality, it was hoped by law reformers that one solution to Irish tenurial
complexities might be to extend the Ulster custom by statute to the rest of the country,
notwithstanding the origins of the custom in historical factors peculiar to Ulster.
A first step was to give legal effect to the custom in Ulster itself. Irish issues were a
major preoccupation of Gladstone’s Liberal government which took office in 1868.
Having first dealt with the vexed question of the disestablishment of the (Anglican)
46
47
48
Devon Commission, Digest of Evidence Taken Before Her Majesty’s Commissioners
of Inquiry into the State of the Law and Practice in Respect to the Occupation of Land
in Ireland (1847) vol 1, 2 quoted in Timothy W Guinnane and Ronald I Miller, ‘Bonds
without Bondsmen: Tenant-Right in Nineteenth Century Ireland’ (1996) 56 Journal of
Economic History 113, 113.
Ibid.
Some historians argue that what really mattered in Ulster was not the Ulster custom
but rather the opportunities that textile manufacturing provided for people to make
at least some money by weaving and spinning at home: see Kerby Miller, Emigrants
and Exiles: Ireland and the Irish Exodus to North America (Oxford University Press,
1985) 40.
(2016) 37 Adelaide Law Review339
Church of Ireland, Gladstone decided it was time to deal with Irish land matters.
He invested enormous effort in an Irish Land Bill, finally enacted in 1870 after
extended debate in both the House of Commons and the House of Lords. The legislation, enacted as the Landlord and Tenant (Ireland) Act 1870,49 gave statutory force
to the Ulster custom, and also provided for limited rights of purchase by tenants: the
right of purchase was given effect to by the famous ‘Bright clauses’, named after
the Liberal politician John Bright.50 Section 1 of the Act provided:
The usages prevalent in the province of Ulster, which are known as, and in this
Act intended to be included under, the denomination of the Ulster tenant-right
custom, are hereby declared to be legal, and shall, in the case of any holding
in the province of Ulster proved to be subject thereto, be enforced in manner
provided by this Act.51
As has been shown in an important article by Clive Dewey, an important context for
Gladstone’s 1870 statute was the development of historical jurisprudence in England,
Scotland and Ireland in the 1860s.52 In particular, Gladstone appears to have been
strongly influenced by a historical study of Irish tenures by George Campbell
published in 1869.53 Dewey is very illuminating on the debate within the Liberal
Party generated by Gladstone’s proposed Bill. Gladstone came to believe that freedom
of contract no longer had any practical meaning in Ireland, given rural population
pressure and Irish underdevelopment. The proposed Bill unsurprisingly generated
a ‘hail of laissez faire criticism’,54 both within Liberal ranks and from Disraeli’s
Tories, but Gladstone persisted and the legislation was successfully enacted.
The 1870 Act was not very successful and did not generate much gratitude amongst
Irish voters, and for the other three provinces of Ireland was irrelevant. Yet giving
legislative force to a tenurial custom which breached sanctity of contract was a
remarkable step, and a departure from the political economy of earlier decades that
had emphasised property rights and the sanctity and freedom of contracts. The Ulster
custom had stood quite outside the ordinary framework of landlord and tenant law.
49
50
51
52
53
54
Landlord and Tenant (Ireland) Act 1870, 33 & 34 Vict, c 46.
On the political context: see Richard Shannon, Gladstone: Heroic Minister 1865–1898
(Allen Lane, 1999) 77–85.
Landlord and Tenant (Ireland) Act 1870, 33 & 34 Vict, c 46, s 1.
Clive Dewey, ‘Celtic Agrarian Legislation and the Celtic Revival: Historicist Implications of Gladstone’s Irish and Scottish Land Acts 1870–1886’ (1974) 64 Past &
Present 30.
George Campbell, The Irish Land (Trübner and Co, 1869). According to Dewey this
book was published at a pivotal moment ‘just after the revival of agrarian agitation
had destroyed the free-trade consensus, and just before the Liberal Party acquired
a new settled policy’: Dewey, above n 52, 56. Campbell had earlier worked as a
settlement officer in the Punjab, where he had developed an interest in the impacts
of free trade ideologies on Indian customary tenures (at 56–7). India was a pivotal
context for debate on land, law, and tenure at this time.
Dewey, above n 52, 60.
340
BOAST — LAND, CUSTOM, AND IDEOLOGY
Now it had been legalised, at least in Ulster. Gladstone’s legislation was a ‘relegation
of political economy to outer space’; twenty years earlier such a proposal ‘would have
encountered polite incredulity’.55 A later Liberal Irish land Bill in 1881 extended the
Ulster custom to the whole of Ireland.
There were some parallel developments in Scotland. In 1883 Gladstone’s Liberal
Government, largely in response to crofter protest in Skye and other areas, set up the
Napier Commission (Royal Commission on the Crofters and Cottars of Scotland)
(‘Crofters Commission’) to review the circumstances of the impoverished Scottish
crofters. The protests arose from ‘the attempts by highland landlords to exploit the
absolute property rights conferred on them by land laws originally devised to regulate
the lowland agrarian system’.56 The protests became so widespread and on such a
scale that the government became seriously concerned that Irish-style rural activism
was now spreading to the Scottish highlands and islands. To deal with the situation
Gladstone appointed a Royal Commission to inquire into the crofters’ grievances.
The royal commission was chaired by Lord Napier, formerly of the Indian Administrative Service; other members included Professor Donald MacKinnon of Edinburgh
University and Alexander Mackinnon, who were both influential in the field of Celtic
studies and two large landholders, Cameron of Lochiel and Sir Kenneth Mackenzie,
‘[a]greement between the two factions was impossible’.57 An influential role in the
reviews and debates about the plight of the crofters was played by the Highland
Land Law Reform Association. The result was the Crofters’ Holdings (Scotland)
Act 1886,58 which protected crofters by granting security of tenure, provided for
rights of compensation in the event of removal, recognised the distinctive nature of
Gaelic customary tenures, and provided for arbitration by a Crofters Commission.59
The legislation was modelled on the Land Law (Ireland) Act of 188160 which had
extended the Ulster custom to the whole of Ireland. The 1886 Crofters’ Act only went
some way to redressing the grievances of the crofters and Scottish historians have
debated its effectiveness and objectives. But the legislation does show that laissez-­
faire and mid-century political economy were now no longer in vogue in quite the
same way as before.
Colonial newspaper readers were well aware of these developments on the Celtic
fringes. The political agitation in the Scottish Highlands, the grievances of the
55
56
57
58
59
60
Ibid 63.
Ibid.
Ibid 64.
Crofters’ Holdings (Scotland) Act 1886, 49 & 50 Vict, c 29 (‘Crofters’ Act’).
The Commission was replaced by the Scottish Land Court, established originally by
the Small Landholders (Scotland) Act 1911, 1 & 2 Geo 5, c 49 and which applied to
all of Scotland. The Court is still in operation under the Scottish Land Court Act 1993
(UK) c 45, the Crofters (Scotland) Act 1993 (UK) c 44, and related legislation. The
Scottish government has been operating a comprehensive land reform program since
2007. As well as the crofts, in the strict sense, there are also nearly 500 000 hectares
of crofters’ common grazing areas still extant in the Scottish Isles and Highlands.
Land Law (Ireland) Act 1881, 44 & 45 Vict, c 49.
(2016) 37 Adelaide Law Review341
crofters, the Crofters Commission, the legislation of 1886 and, more generally, the
bitter memories of the Highland clearances were well-traversed subjects in New
Zealand and were the subject of a great deal of newspaper comment. Given the
amount of Scottish settlement in the country this is hardly surprising. John McKenzie,
Liberal Minister of Lands, himself from Ross and Cromarty, one of the seven crofter
counties, was intensely aware of the dramatic events in Scotland.61 The newspapers
also reported plans to assist the crofters to migrate to Canada and to New Zealand.62
VI C ustomary L aw
and
C ollectivism
Systematic study of customary law emerged in Germany within the context of a
much-studied conflict between ‘Romanists’ and ‘Germanists’ as to whether Roman
or German local custom was the true national law of the German people. The high
priest of the Romanist school was Friedrich Carl von Savigny (1779–1861), who
believed that German national legal tradition was embodied in the teachers of
Roman law in German universities (that is, in himself and his Romanist scholarly
colleagues). Savigny’s stance had a certain logic deriving from the constitutionalist
traditions of the old Holy Roman Empire ‘of the German Nation’. As a recent study
has argued, the Roman law of Germany emanated from a ‘Rome of many ages’,
a ‘Rome that extended over millennia and included popes and modern emperors
as well as the ancients’.63 Savigny contended also that the proper spokesmen and
representatives of this great body of law, what might be called German-Roman law
perhaps, were not judges or practitioners but the teachers of law in the universities:
‘The continued dominance of Roman law followed, in turn, from the postulate that
scholars were the representatives of the nation’.64 Or, as Laurens Winkel puts it,
‘Savigny and the Historical School regarded the jurist as the sole interpreter of the
Volksgeist.’65 Roman law was ‘truly a Weltrecht, a law of world civilization, and had
61
62
63
64
65
See Tom Brooking, Lands for the People? The Highland Clearances and the Colonisation of New Zealand: A Biography of John McKenzie (Otago University Press, 1996)
271–2. On Scottish migration to New Zealand: see Brad Patterson, Tom Brooking
and Jim McAloon, Unpacking the Kists: The Scots in New Zealand (McGill-Queen’s
University Press and Otago University Press, 2013).
See, eg, ‘The Hebrides Crofters: Landlords Refuse to Give Way’, Marlborough
Express (Blenheim), 14 January 1888, 2; ‘Crofter Immigration’, Ashburton Guardian
(Ashburton), 28 August 1888, 2 (reporting that ‘Dr McDonald, hon. treasurer of the
Crofters Aid Society, is organising a deputation of crofters to visit Australia and New
Zealand for the purpose of raising funds for immigration purposes’); ‘Settlement
of Crofter’, Nelson Evening Mail (Nelson), 15 August 1891, 2 (‘England will settle
6000 crofters, all Naval Reserve Men, at Vancouver, as the nucleus of a force in the
Pacific’).
James Q Whitman, The Legacy of Roman Law in the German Romantic Era:
Historical Vision and Legal Change (Princeton University Press, 2014) 15.
Ibid 124. The classic article on Savigny in English is: Hermann Kantorowicz, ‘Savigny
and the Historical School of Law’ (1937) 53 Law Quarterly Review 326.
Laurens Winkel, ‘Roman Law and its Intellectual Context’ in David Johnston (ed),
The Cambridge Companion to Roman Law (Cambridge University Press, 2015) 9, 14.
342
BOAST — LAND, CUSTOM, AND IDEOLOGY
firmly established itself in Germany’.66 It was a great and civilised construction,
dependent on scholarship to explain and develop it.
The complexities of the great debate about Roman law in Germany, so important in
the history of the development of the German Civil Code,67 cannot be followed here.
What is of more significance to the argument of this chapter is the emergence of the
‘Germanist’ counter-trend to professorial Romanism. Prominent legal Germanists
included Jakob Grimm (1785–1863), A L Reyscher (1802–80),68 Georg Beseler
(1809–88),69 and Otto Friedrich von Gierke (1841–1921). The Germanists became
interested in legal history, and especially in the history of medieval Germany:
steeped in ‘a kind of mystical scholarly medievalism typical of the romantic era’
they were ‘pioneers in the study of medieval legal systems’.70 Jakob Grimm, famous
as a linguist and, together with his brother Wilhelm, as a collector and publisher
of fairy stories, came in fact from a legal background: his father was a lawyer and
Jakob graduated in law from the University of Marburg. That Grimm both wrote
legal history and collected folk tales is instructive. As Patrick Wormald has pointed
out, Grimm’s interest in ancient Germanic law came from a belief that law, like myth,
arose from the spirit (geist) of a particular people. The connection between such
notions and European Romanticism are ‘obvious enough’.71 But the connections with
philology and linguistics are, in Wormald’s view, no less important.72 The Germanist
legal historians, to quote Wormald again, ‘concocted a system of Germanic law, by
boiling up evidential ingredients from allotments as diverse as Tacitean Rome and
Snorre Sturlasson’s Iceland’.73 But they also explored contemporary Germany in a
scholarly search for authentic German custom. In 1839 the Germanist scholars set
up their own journal, probably the first anywhere devoted to the study of customary
law, the Zeitschrift für Deutsches Recht und Deutsche Rechtswissenschaft, and soon
after started organising congresses of Germanist legal scholars, ‘the great focuses
of opposition to Roman law — focuses also of ferment leading to the Revolution
of 1848’.74 While in Spain and in Latin America liberals were republicans and
legislators in the French-Jacobin tradition, in Germany they tended to be romantic
nationalists interested in customary law. The Civil Code, as finally promulgated in
66
67
68
69
70
71
72
73
74
Ibid.
Bürgerliches Gesetzbuch (‘BGB’), which came into force on 1 January 1900.
Law professor, member of the Frankfurt parliament, author of a three-volume study of
Württemberg private law (1837–42).
Beseler was a Prussian jurist and liberal, member of the Frankfurt parliament,
who championed a ‘people’s law’ as opposed to the ‘jurists’ law’ of the Roman law
professors.
Whitman, above n 63, 123.
Patrick Wormald, The Making of English Law: King Alfred to the Twelfth Century:
Volume I: Legislation and its Limits (Blackwell, 1999) 11.
Ibid.
Ibid 11–12 (emphasis altered).
Whitman, above n 63, 207.
(2016) 37 Adelaide Law Review343
1900, was in fact largely based on Roman-law concepts as distilled and analysed by
a later generation of Romanist scholars, but the scientific study of customary law
pioneered by nationalist liberals of 1848 continued to be important
One of the most influential of the ‘Germanist’ legal historians was Otto von Gierke,
best known for his work on the legal history of associations (Genossen or ‘fellowships’). Von Gierke was from the Prussian city of Stettin (now Szczecin) and studied
law in Berlin, where he was taught by Georg Beseler, one of the leading ‘Germanists’
of the generation of 1848. Von Gierke is a key figure, enormously influential in his
time, and who continues to attract widespread interest.75 In 1887 he succeeded to
Beseler’s chair, and it was to Beseler that he dedicated his scholarly tour de force,
Das deutsche Genossenschaftsrecht, published in four volumes from 1868–1913.76
Von Gierke was a critic of the German Civil Code (BGB) of 1900, finding it much too
Roman and insufficiently German for his liking; what he most detested about it was
its liberal individualism and antipathy towards collectives. His famous book is a legal
history of collectives from the Middle Ages to the present, including guilds and craft
guilds, city leagues (including the Hanseatic League), rural communes, representative estates, rural fellowships, joint-stock companies, and producers’ co-operatives.
(He had a rich historical field to work with: indeed, few polities in world history can
have been so intricately corporatist as the Holy Roman Empire.) For von Gierke
(as Antony Black puts it), guilds ‘were important partly as a Germanic substratum in a
rapidly Romanising society, but also because they along with other groups embodied
the fundamental human value of Genossenschaft (fellowship-­comradeship as well as
just association)’.77 Von Gierke believed that the development of Roman law, which
tended to see associations as having no legal existence without the express permission
of the state, had had undesirable consequences for the free development of associations in Germany. He did not believe that such bodies were legal fictions (essentially
the German-Romanist position), but rather that they were actually existing juristic
entities, different from individuals on the one hand or from the state on the other,
and that they derived the existence and corporate status from the agreement of their
75
76
77
In English the principal historian of Gierkian communalism and fellowship is Antony
Black: see Antony Black, State, Community and Human Desire; A Group-Centred
Account of Political Values (Wheatsheaf, 1988); Antony Black, ‘The Individual and
Society’ in J H Burns (ed), The Cambridge History of Medieval Political Thought
c 350–c 1450 (Cambridge University Press, 1988) 588, 588–606; Antony Black, Guild
and State: European Political Thought from the Twelfth Century to the Present (Transaction Publishers, revised ed, 2003). In the German-speaking world the key modern
historian in the communalist tradition is Peter Blickle, who has sought to re-interpret
the Reformation in Germany in communalist terms: see Peter Blickle, Communal
Reformation: The Quest for Salvation in Sixteenth-Century Germany (Humanities
Press, 1992); Peter Blickle (ed), Resistance, Representation and Community (Oxford
University Press, 1997).
For an English translation: see Antony Black (ed), Community in Historical Perspective (Cambridge University Press, 1990).
Black, Guild and State, above n 75, xxiv.
344
BOAST — LAND, CUSTOM, AND IDEOLOGY
members rather from authorisation by the sovereign.78 He saw such institutions as
an essential bulwark between the individual and the state, and he thought that these
‘associations’ and ‘fellowships’ constituted a specifically German contribution to
the history of liberty. Von Gierke was an important contributor to the collectivist
zeitgeist of the first half of the 20th century. His influence on the English-speaking
world was significant, partly because of a connection with the English legal historian
F W Maitland (1850–1906), who was fluent in German and who translated some
of Von Gierke’s works into English. Von Gierke’s legal historical work was also
of great interest to the so-called ‘guild socialists’ in Britain, who included in their
ranks (with varying degrees of commitment) Arthur Penty, J A Hobson, R H Tawney,
L T Hobhouse and G D H Cole. Guild socialism attracted widespread interest in
Australia and New Zealand as well.
Another component in this rather eclectic array of ideas, books and policies were
some new tendencies in British economic and social history, associated particularly
with and John and Barbara Hammond (née Bradbury) (1872–1949 and 1873–1961)
and R H Tawney (1880–1962). Their work was associated with a broader trend
which, as Stefan Collini puts it, ‘understood economic rationality as the operation
of systematic selfishness’.79 Other contributors to this particular discourse included
Arnold Toynbee, J A Hobson, and Sidney and Beatrice Webb, who together pro­
pounded a vision of the Industrial Revolution ‘not just as a catastrophe for certain
classes, but also … as establishing a quite new form of civilisation, one driven by the
narrow and unchecked pursuit of profit’.80 Such writers rejected 19th century political
economy as exemplified by Bentham and Ricardo. Instead they idealised English
rural society in the centuries before the industrial and agricultural revolutions and
saw both as destructive of a relatively stable and prosperous peasant agrarian culture
founded on custom and usage.
VII D evelopments
in L atin A merica and the
in the E arly 20 th C entury
U nited S tates
The new mood was also important in Latin America and the United States. It was
especially important in Mexico, where the spectacular artistic and cultural legacy of
the great pre-Columbian civilisations had always been a powerful presence. Mexican
liberals had ‘dismissed the Aztecs as mere barbarians and viewed contemporary
78
79
80
Ibid 18–19. Black argues that Roman law as developed by the Medieval jurists was
not quite as hostile to guilds and associations as von Gierke believes: ‘Despite what
Gierke says, they … went some way towards accommodating Germanic tradition’.
Stefan Collini, ‘The Literary Critic and the Village Labourer: ‘Culture’ in Twentieth-­
Century Britain’ (2004) 14 Transactions of the Royal Historical Society 93, 97. On
Tawney: see Lawrence Goldman, The Life of R H Tawney: Socialism and History
(Bloomsbury, 2013).
Collini, above n 79, 98. This group probably in turn derives much of its inspiration
from Ruskin, William Morris and Matthew Arnold, reaching back in turn into English
Romanticism.
(2016) 37 Adelaide Law Review345
Indians as a hindrance to their country’s modernisation’.81 But by the early decades
of the 20th century the mood had shifted towards a strong identification with the
pre-Columbian past as the foundation of Mexican identity; this cultural reversal
could also involve a defence of communal land ownership.82 The Mexican revolution
of 1910–20 had an enormous impact on the development of indigenismo not only in
Mexico but in Latin America as a whole. In the Mexico of President Lázaro Cárdenas,
president from 1934–40, and as exemplified by such cultural icons such Manuel
Gamio, Diego Rivera, and Frida Kahlo, this renewed interest in indigenous collectivism produced a cultural climate which was very receptive to r­ e-establishment of
collective tenures in the form of the government’s ejido program.
In the United States the key figure is John Collier, who can be said to be the most
important single figure in the history of federal Indian law in the United States.
He exemplified a new era in federal Indian policy and was the chief architect of
the Indian Reorganisation Act 1934 (‘IRA’).83 Collier had earlier led an attack
on the allotment system originally introduced into the reservations by the Dawes
Act of 1887.84 He founded the American Indian Defence Organization in 1923 and
always opposed assimilation. In 1933 President Franklin D Roosevelt took the step of
appointing Collier to the position of Commissioner of Indian Affairs, placing federal
Indian administration under the control of one of its most prominent critics. Collier
and his officials, including legal scholar Felix Cohen, immediately began work on
the legislation enacted as the IRA the following year. The IRA was a milestone in
American legal history and many of today’s Indian governments were established
under it, although it must also be conceded that the legislation has attracted some
recent criticism.85 Wilcomb E Washburn, however, has written that ‘Collier’s work
81
82
83
84
85
David Brading, ‘Manuel Gamio and Official Indigenismo in Mexico’ (1988) 7 Bulletin
of Latin American Research 75, 75.
Ibid 76–7.
On Collier: see Lawrence C Kelly, The Assault on Assimilation: John Collier and the
Origins of Indian Policy Reform (University of New Mexico Press, 1983); Kenneth R
Philp, John Collier’s Crusade for Indian Reform, 1920–1954 (University of Arizona
Press, 1977); E A Schwartz, ‘Red Atlantis Revisited: Community and Culture
in the Writings of John Collier’ (1994) 18 American Indian Quarterly 507. For an
attempt to assess developments in the United States in the Collier-Cohen years from
an Antipodean standpoint: see R P Boast, ‘Felix Cohen and the Spanish Moment in
Federal Indian Law: A Study in Law, Politics and Historiography’ (2008) 39 Victoria
University of Wellington Law Review 419.
Dawes Act of 1887, 25 USC 9 § 331–354 (‘General Allotment Act of 1887’).
Critical interpretations include: Russel Lawrence Barsh and James Youngblood
Henderson, The Road: Indian Tribes and Political Liberty (University of California
Press, 1980); Lawrence C Kelly, ‘The Indian Reorganization Act: The Dream and the
Reality’ (1975) 44 The Pacific Historical Review 291. For vigorous defences see Clayton
Koppes, ‘From New Deal to Termination: Liberalism and Indian Policy, 1933–1953’
(1977) 46 The Pacific Historical Review, 543; Elmer R Rusco, ‘John Collier: Architect
of Sovereignty or Assimilation?’ (1991) 15 American Indian Quarterly 49; Wilcomb
E Washburn, ‘A Fifty-Year Perspective on the Indian Reorgani­zation Act’ (1984) 86
American Anthropologist 279.
346
BOAST — LAND, CUSTOM, AND IDEOLOGY
as commissioner of Indian affairs is probably the most impressive achievement in
the field of applied anthropology that the discipline of anthropology can claim’.86
Collier was well aware of the new mood of indigenismo, land reform, and socialism
emanating from Mexico, and was an open admirer of Cárdenas and his policies,
including building up the labour unions, agrarian reform, and nationalisation of the
petroleum industry. (American business leaders and conservatives were notably less
enthused about any of these policies, needless to say, nor were they fond of the IRA.)
Collier was also personally friendly with Manuel Gamio, a former pupil of Franz
Boas and a prominent archaeologist and anthropologist in Mexico and a leader of
Mexican indigenismo.87 Gamio and Collier were both ‘indigenists’ in the sense that
they were personally committed to community life and to the values and ethics of
indigenous peoples as a counterweight to what they perceived as the selfish individualism of the modern world. Indians had the right to their own forms of cultural
expression, but it was more than that: those cultures embodied ethical ideas which
were valuable in their own right. They were something that modernity could learn
from.
Thus, in the 1930s both Mexico and the United States pursued a similar antiassimilationist path in indigenous policy. This was a significant policy reversal for both
countries, driven in both countries by progressive ‘indigenist’ officials: Gamio in
Mexico and Collier and Felix Cohen in the United States. Policies in both countries
shared a rejection of earlier liberal models of individualising tenures and favoured a
return to collectivist communal tenures. The connection between trends in cultural
anthropology and practical impacts in law and policy, at least in the case of these
countries, seems clear. The New Zealand case is more complex.
VIII T he N ew Z ealand C ase : A nthropology
and
L egal S tudies
Obviously New Zealand was an isolated country at some remove from intellectual
developments in Germany and the United States. It was, on the other hand, closely
linked to Britain, beyond doubt a leading metropolitan culture, where new trends in
anthropology, historiography, and policy were not only received but which was also
where to a significant extent they had originated. New Zealand, moreover, had a
substantial indigenous population and a long tradition of lawmaking in the fields of
indigenous tenures. Issues of law, custom, and tenure were a matter of great practical
importance in New Zealand. It is likely that any revalorisation of indigenous cultures
and tenures internationally must have had repercussions of some kind in New
Zealand.
To fully trace the connections between the trends discussed in the first part of this
article with New Zealand’s own intellectual culture and legal and policy developments in the area of Māori land law is something which, it must be admitted, requires
86
87
Washburn, above n 85, 287.
Gamio is listed, along with Felix Cohen, Nathan Margold, Harold Ickes and others, in
the acknowledgments to: John Collier, Indians of the Americas (Mentor Books, 1947).
(2016) 37 Adelaide Law Review347
much more research and thought. The history of New Zealand’s intellectual culture
is not well developed generally, which does not help matters. Nevertheless, some
connections certainly do suggest themselves. The most obvious parallels lie in the
area of Māori land development after 1929, where the pivotal role was played by
the Māori politician Sir Āpirana Ngata, who had degrees from Canterbury University
College in law and political science, was connected to a number of leading anthropologists and was a scholar and author in his own right. If anyone in New Zealand
is a counterpart to John Collier or Manuel Gamio, that person is Ngata. It is argued
below that the real point of convergence between the renewed collectivism of the
20th century and trends and developments in New Zealand lies in Ngata’s ideas,
policies and programs in the early 1930s.
There was no immediate shift of New Zealand Māori land law in the direction of
a greater receptivity towards indigenous custom around the turn of the century: in
some respects the situation was quite the reverse. Section 33 of the Native Land
Act Laws Amendment Act 1895 (NZ) deprived ohāki (Māori customary death-bed
declarations as to inheritance and other matters) of any legal effect. Section 84 of
the Native Land Act 1909 (NZ) provided that Māori customary title could not prevail
against the Crown. Section 133 of the same statute provided that Māori wills had
to be executed in the same manner as wills by Europeans, and s 161 stipulated that
adoption of children by Māori custom was without ‘any force or effect’.88 In the
same vein, marriages according to Māori customary law were abolished by s 190 of
the 1909 Act: ‘Every marriage between a Native and a European shall be celebrated
in the same manner, and its validity shall be determined by the same law, as if each of
the parties was a European’.89 Moreover, although Māori iwi and hapū were clearly
collectivities, and might have been perceived by von Gierke and his followers as
such, Māori descent groups had no legal personality in New Zealand law and could
not bring proceedings in their own right (for example in trespass).90 Nonetheless, the
new collectivist and relativist mood was not without its impacts on New Zealand law.
While the 1909 Act was in some respects hostile to custom, it did on the other hand
make provision for new forms of Māori collectivities. Section 317 greatly expanded
the provisions allowing the Native Land Court to incorporate owners, an important
recognition that the robust individualism of the earlier statutes in some respects had
had its day. Collectivities were acceptable to the legislature, even if Māori customary
law was not.
While Māori studies is a thriving academic field today, it was not always so. For
many years examinations for degrees for the University of New Zealand were set
and marked in England, which had stifling effects on curricular development in the
University’s four constituent colleges. As Oliver Sutherland puts it:
With curricula determined and examinations set and marked in Britain, the
university had no place for the sort of ethnological studies of [Elsdon] Best and
88
89
90
Native Land Act 1909 (NZ) s 161(1).
Ibid s 190.
Nicholson v Kohai (1909) 28 NZLR 552 (Chapman J).
348
BOAST — LAND, CUSTOM, AND IDEOLOGY
the others and, intellectuals all, they were left to work in the museums, libraries
and government departments, outside the academic mainstream.91
On the other hand, it must be recognised that in the early decades of the 20th century
anthropology, especially cultural anthropology, was a new discipline everywhere and
had to struggle for academic recognition even in Britain, Germany, and the United
States.92
The absence of courses in Māori and Polynesian languages, archaeology and anthropology at the University of New Zealand did not mean that these subjects attracted
no interest in New Zealand; it only meant that these fields were largely — but not
entirely — pursued outside the university. Elite colonial families such as the Beethams
of Brancepeth station in the Wairarapa or the Meinertzhagens of Waimarama simply
transplanted upper-class English intellectual life to a New Zealand context: this
could include the pursuit of interests not only in botany, ornithology and archaeology, but also the study of the Māori language.93 This amateur-scholarly tradition
was continued into the 20th century by such scholars as Elsdon Best and Edward
Tregear and through the Polynesian Society. The Society’s journal, The Journal of the
Polynesian Society, published material on linguistics, Polynesian origins, mythology
and material culture but also to some extent on cultural anthropology and sociology.94
Academics interested in Māori issues, such as John Macmillan Brown (1845–1935)
and Ivan Sutherland (1897–1952), had to teach in other fields — practically everything
in Macmillan Brown’s case and psychology in Sutherland’s. New Zealand anthropologists like Sir Peter Buck (Te Rangi Hīroa), Felix Keesing and Raymond Firth had to
pursue their careers overseas. No chair of anthropology in New Zealand was established until 1949, Auckland University College being the first to take this step. This
was well behind Australia, where the first chair in anthropology in that country was
established at the University of Sydney in 1926. The Sydney position was taken by
A R Radcliffe-Brown, high priest of functionalism, who had studied under Haddon
and Rivers at Cambridge, and then had taught at Cape Town before moving on to
Australia.95 The Australian Ralph Piddington, first professor of anthropology at
Auckland, had in turn studied under Radcliffe-Brown at Sydney and Malinowski at
the London School of Economics. Piddington played an instrumental role in securing
91
92
93
94
95
Oliver Sutherland, Paikea: The Life of I L G Sutherland (Canterbury University Press,
2013) 147.
As Stocking points out, even by Malinowski’s time anthropology was a ‘still
marginally institutionalized discipline’ even in Britain: Stocking, above n 34, 291.
On the intellectual culture of Brancepeth station in the Wairarapa and the Beetham
family: see Lydia Wevers, Reading on the Farm: Victorian Fiction and the Colonial
World (Victoria University Press, 2010). The family owned books in the Māori
language and were on close terms with the Māori aristocracy of the neighbouring
district: at 51–7.
On the Polynesian society: see M P K Sorrenson, Manifest Duty: The Polynesian
Society over 100 Years (Polynesian Society, 1992).
On Radcliffe-Brown at Sydney see Stocking, above n 34, 340–52.
(2016) 37 Adelaide Law Review349
the appointment of Bruce Biggs to teach Māori at university level in 1951. Amongst
those who studied anthropology at the postgraduate level at Auckland in the 1950s
and 1960s are Joan Metge, Anne Salmond, Hirini Moko Mead and Hugh Kawharu,
all of whom played an important role in the modern Māori renaissance. In this way
one can construct an intellectual genealogy connecting some of New Zealand’s most
important anthropologists and ethnohistorians of recent times to Haddon and Rivers
via Piddington, Radcliffe-Brown and Malinowski.
The history of legal education in New Zealand is another subject that needs to be
more thoroughly researched, most particularly in terms of the content of what was
actually taught. Since for a number of decades law examinations, like those of
all other university subjects, were set and marked in London, the close affiliation
between British and New Zealand legal education can be assumed. By around 1900,
trends in British legal education had become highly positivist and analytical, based
on a decontextualised study of cases and statutes; the wider historical vistas provided
by the works of Sir Henry Maine had been abandoned and were seen mainly as a
curiosity and he had few real disciples.96
The only law book of more than local importance published by a New Zealand
lawyer in the first half of the 20th century was John Salmond’s Jurisprudence, first
published in 1902 while he was a professor at the University of Adelaide.97 The book
was widely praised in its day, and Maitland, no less, regarded it as ‘liberal and liberating’.98 The book is characterised by a fixation on technical classifications (supreme
and subordinate legislation; declaratory and original precedents; authoritative and
persuasive precedents; wrongs, duties and rights; elements of legal rights; proprietary and personal rights; legal and equitable ownership; possession in law and in
fact; corporations aggregate and corporations sole; and so forth). Salmond writes of
the logical structure of the Common Law, or more exactly imposes a logical structure
upon it. Even at the time not everyone found this satisfactory. In a letter to Oliver
Wendell Holmes, Harold Laski remarked that ‘[i]f you look at Salmond or Holland
whose names are repeated in rebuttal in a tone of reverent ecstasy, you read a dull
body of formal definitions so made as to evade all the essential problems involved’
and Holmes essentially agreed.99
96
97
98
99
See R C J Cocks, Sir Henry Maine: A Study in Victorian Jurisprudence (Cambridge
University Press, 1988) 183–95.
John William Salmond, Jurisprudence: Or The Theory of the Law (Stevens and
Haynes, 1902). See Alex Frame, Salmond: Southern Jurist (Victoria University Press,
1995) 54–71.
H A L Fisher, Collected Papers of Frederic William Maitland (Cambridge University
Press, 1911) vol 3, 429, cited in Frame, above n 97, 71.
Letter from Harold Laski to Oliver Wendell Holmes, 22 December 1924 in Mark de
Wolfe Howe (ed), Holmes-Laski Letters: The Correspondence of Mr. Justice Holmes
and Harold J. Laski 1916–1935 (Oxford University Press, 1955) vol 1, 691, cited in
Frame, above n 97, 70.
350
BOAST — LAND, CUSTOM, AND IDEOLOGY
Salmond believed that ‘it is in and through the state alone that law exists’100 and his
discussion of custom as a source of law is mainly focused on the restrictive rules
of the courts of common law as to when a custom may be given effect to. Although
entitled Jurisprudence, the book is not a work of legal philosophy and is almost
wholly focused on English law, with some scattered references to Roman law and
German and French legal writing. It is essentially an analytical distillation of the main
distinctions of English law: indeed, it can basically be seen as an attempt to create
a theory of English law.101 Moreover Salmond wrote Jurisprudence as an English
lawyer, not as an Antipodean one, and one searches it in vain for any discussion of
New Zealand’s own legal and historical circumstances. Indeed, the book is not a
historical treatment in any sense.
In his biography of Salmond, Southern Jurist, Alex Frame has examined Salmond’s
treatment of corporations as a key to Salmond’s juristic thinking.102 Salmond opts
for the Pandectist and Roman understanding of corporations as legal fictions. Clearly
he is aware of von Gierke and his ideas about corporations and collectives, but he is
unenthusiastic:
The doctrine that corporations are personae fictae, though generally received, has
not passed unchallenged. Attempts have been made in recent years, especially by
German jurists, to establish in place of it a new theory which regards corporate
personality as a reality, and not a fictitious construction of the law. 103
‘Savigny and Windscheid’, writes Salmond, ‘are representative adherents of the older
doctrine’, and it is certainly this ‘older doctrine’ that Salmond prefers.104 A corporation, he writes, is ‘a very real thing, but it is only a fictitious person.’105 Every
corporation ‘involves in the first place some real person or persons whose interests
are fictitiously attributed to it, and in the second place some real person whose acts
are fictitiously imputed to it.’106
The purpose of this discussion is not to criticise Salmond’s understanding of corporations but to underscore the point that Salmond was in no sense an enthusiast
for collectivism or for customary law. He cannot be written off as an Austinian
positivist — Salmond does not particularly emphasise that laws are commands from
100
101
102
103
104
105
106
Salmond, above n 97, 184.
See A W B Simpson, ‘The Salmond Lecture’ (2008) 38 Victoria University of
Wellington Law Review 669.
See Frame, above n 97, 68–71; John H Farrar, ‘Salmond and Corporate Theory’ (2008)
38 Victoria University of Wellington Law Review 925.
Salmond, above n 97, 350.
Ibid 351.
Ibid (emphasis in original).
Ibid.
(2016) 37 Adelaide Law Review351
the sovereign — but his approach is certainly formalist and analytical.107 In no sense,
then, was Salmond a conduit of the new collectivist ideas gathering force in the early
decades of the 20th century. He was, rather, a supporter of the enlightened state and
a product of the ‘new liberalism’ of the late 19th century. Anthropology, moreover,
was clearly a subject of no interest to Salmond; and it can be assumed that he did
not think that anthropology had anything to contribute to the understanding of law,
certainly a question on which reasonable people can differ. His stance towards Māori
issues is something of a piece with this stance. He believed that the enlightened state
had responsibilities towards Māori, but this was to be achieved within a framework
of well-designed legislation, rather than by means of the common law or a revitalised
collectivism.108
However, Salmond should not necessarily be seen as merely a reflection of the views
of all New Zealand lawyers. Practitioners and judges working in the Māori sphere
had other approaches. It is very striking that it was Land Court judges such as Frank
Acheson and Norman Smith who studied Māori customary law and wrote books
and articles about it, not legal academics.109 Judge Acheson, certainly, was well-­
informed about contemporary thinking in the fields of anthropology and the study
of customary law, and even applied this scholarship in some of his judgments. This
judicial interest arose, of course, from their daily engagement with Māori customary
law in the Native Land Court, which was undoubtedly a Court that saw itself as
professionally engaged with the field. Despite New Zealand possessing, with the
Native Land and Appellate Courts, specialist tribunals that applied — in a way —
Māori customary law, and despite New Zealand exporting similar institutions to the
Cook Islands and Niue, Māori customary law and the jurisprudence of the Native
Land Court seems to have attracted little interest in the law schools. That was
partly because the Court’s jurisprudence was invisible; another reason was probably
because the Native Land Court was not a prestigious body. Judgments of the Native
Land Court were not even reported in the New Zealand Law Reports. The impact
of new books such as Llewellyn and Hoebel’s The Cheyenne Way on law teaching
appears to have been slight.110 On the whole the teaching of law in New Zealand
was highly conservative, and firmly oriented towards British models until the 1950s
when the presence of such distinguished professors as James Williams and Robert
107
108
109
110
On the relationship between Salmond and Austin see P G McHugh, ‘Sir John Salmond
and the Moral Agency of the State’ (2008) 38 Victoria University of Wellington Law
Review 743.
On Salmond and legal issues relating to Māori: see Frame, above n 97, 108–32;
R P Boast, ‘Sir John Salmond and Māori Land Tenure’ (2008) 38 Victoria University
of Wellington Law Review 831; Mark Hickford, ‘John Salmond and Native Title in
New Zealand: Developing a Crown Theory on the Treaty of Waitangi, 1910–1920’
(2008) 38 Victoria University of Wellington Law Review 853.
Norman Smith, Native Custom and Law Affecting Native Land (Māori Purposes Fund
Board, 1942). See also Grant Young, ‘Judge Norman Smith: A Tale of Four “Take”’
(2004) 21 New Zealand Universities Law Review 309.
Karl N Llewellyn and E Adamson Hoebel, The Cheyenne Way: Conflict and Case
Law in Primitive Jurisprudence (University of Oklahoma Press, 1941).
352
BOAST — LAND, CUSTOM, AND IDEOLOGY
McGechan at Victoria and Julius Stone and Geoffrey Davis at Auckland began to
lift New Zealand legal education out of the doldrums. Nevertheless, it was not until
the 1980s that courses on Māori land law and Māori customary law finally emerged
in the country’s law faculties, 20 years after courses on federal Indian law began to
make an appearance in the law schools of the United States.
In short, then, the new anthropology was not without effect in New Zealand, but its
impact was blunted as the institutional framework was so limited, with no university
anthropology or Māori studies anywhere in the country and with a tertiary system
stiflingly yoked to the United Kingdom. There was scholarship, of a sort, written on
Māori land and custom by the judges of the Māori Land Court, however, and there
is no reason to denigrate it, or assume that the judges were unread in anthropology.
In the legal academy, such as it was, the development of new fields of inquiry in
legal studies in the United States appears to have little impact until after the Second
World War.
IX T he A ge
of
S ir Ā pirana T urupa N gata
In New Zealand the period from 1910–53 was dominated by the compelling figure
of Sir Āpirana Turupa Ngata of Ngāti Porou,111 beyond any doubt Māoridom’s most
important leader of modern times. It is not possible to do justice to Ngata’s long and
complex career in this article, and there are in any case a number of studies available,
most of which, however, are limited in the sense that they portray him as a Māori,
rather than as a national, politician.112 Ngata’s ideas were strongly influenced by the
ideological currents of the day in the fields of anthropology and economics.
Ngata was an intellectual, a lawyer, a Liberal (in the sense of belonging to the Liberal
party), and a moderniser. He was conservative in some ways (especially in the fields
of culture and the arts) and radical in others (economic development, notably). Born
in 1874, Ngata was from Ngāti Porou, an iwi that had managed to retain much of
their tribal estates and who were determined to develop and administer their own
lands. His father, Paratene Ngata, was an important Ngāti Porou leader and Native
Land Court Assessor. Ngata went to Te Aute College, the prominent Anglican Māori
boys’ college, when he was nine. He received an excellent education there at the time
of the headmastership of John Thornton, formerly a CMS missionary in India, who
believed strongly that Māori boys should have the opportunity to attend university
and enter the professions. The school, writes Sorrenson, had a ‘powerful and enduring
influence’ on Ngata, as well as his lifelong friend and colleague, Sir Peter Buck
111
112
Ngāti Porou are an important Māori iwi (tribe), of the North Island East Coast region
north of Gisborne.
See Ranginui Walker, He Tipua: The Life and Times of Āpirana Ngata (Viking,
2001). See also M P K Sorrenson (ed), Na To Hoa Aroha: From Your Dear Friend:
The Correspondence between Sir Apirana Ngata and Sir Peter Buck 1925–1950
(Auckland University Press, 1986–88) vol 1, 9–40.
(2016) 37 Adelaide Law Review353
(Te Rangi Hīroa).113 Ngata went on to Canterbury University College in Christchurch
where he became the first Māori to gain a degree at a New Zealand university (a BA
in political science in 1893); he afterwards went on to obtain an LLB. Canterbury
University College at this time was dominated by the imposing presence of John
Macmillan Brown, whose range of interests and enthusiasms included Polynesian
ethnography.114 After graduation Ngata practised law for some years. He appeared in
a number of cases in Gisborne, a storm centre of complexity and drama over Māori
land matters that had few equals in the country, and indeed appeared on occasion for
his own iwi (tribe), Ngāti Porou, in the Validation Court.115 He became a member
of Parliament in 1905 in the last years of the Liberal government. He played an
important role in the construction of the Native Land Act 1909 (NZ).
The Liberal Party lost power in 1912 and Ngata was in opposition for many years. He
played a prominent role in the Māori war effort in the First World War, an issue on
which Māori opinion was much divided. After the war Ngata played an important role
as counsel representing the owners in the vast and complex Urewera116 consolidation
scheme in the early 1920s, and did his best to protect the interests of the owners
in this whole calamitous affair.117 Thanks to his friendship with the like-minded
Reform politician Gordon Coates, who replaced Herries as Native Minister in 1921,
Ngata’s influence began to grow significantly. In 1929, following the general election
of 1928 and the startling United (that is, Liberal) Party victory, Ngata became Native
Minister. In 1929 Ngata prepared new legislation providing government funding
for Māori land development, probably the most important policy initiative relating to
Māori land in modern times.118
Ngata was essentially a Victorian, a believer in hard work, effort, thrift and living
a healthful, moral and Christian life. More particularly he had many attitudes in
common with the Liberal party leaders of the 1890s, especially their beliefs that cities
were corrupting and that the best place to live was in the countryside, working in the
fresh air, contributing to New Zealand’s export industries and at a safe distance from
taverns, racecourses, billiards parlours and dancehalls. Ngata knew an enormous
amount about New Zealand’s primary industries and about the social and economic
113
114
115
116
117
118
Sorrenson, above n 112, 13. Under Thornton, Te Aute ‘was developed as the seminary
of a Māori elite’.
On Macmillan Brown: see Cherry Hankin, ‘Brown, John Macmillan 1845–1935,
University professor and Administrator’ in Claudia Orange (ed), Dictionary of New
Zealand Biography (Bridget Williams Books, 1990–2000) vol 2, 57, 57–9. Hankin
describes him as ‘perhaps the outstanding university teacher in New Zealand before
1900’: at 58.
Walker, above n 112, 79. According to Sorrenson, Ngata was articled to the Auckland-­
based firm of Devore and Cooper: Sorrenson, above n 112, 18.
Te Urewera is a large inland region lying between the Bay of Plenty and the North
Island East Coast; the principal iwi based there is the Tuhoe, but there are a number of
other groups located there.
On Ngata’s role in the Urewera consolidation: see Walker, above n 112, 196–8.
Native Land Amendment and Native Land Claims Adjustment Act 1929 (NZ) s 23.
354
BOAST — LAND, CUSTOM, AND IDEOLOGY
circumstances of the Māori people. He must have been very persuasive, given that
he managed to sell his great land development project both to his political colleagues
and to a wary Māori public.
In an important article, Graham Butterworth has argued that Ngata had five main
policies that he pursued between 1921 and 1934.119 These were: first, settling
outstanding historic Māori land issues (examples being the Waikato and Taranaki
confiscations, Crown purchases of Ngai Tahu lands in the South Island in the 19th
century, and long-standing legal claims to the beds of navigable lakes); secondly, a
cultural program of reviving and preserving Māori poetry, art and music;120 thirdly,
advancing the work of the Anglican Church; fourthly, educational programs of a
number of kinds; and fifthly, the promotion of Māori land settlement. These policies
interlinked and formed part of a single program. Ngata believed that Māori could
have things both ways: it was possible for Māori to modernise economically but
to continue to be themselves culturally. Ngata disliked Māori political or religious
separatism, and had little time for community religious leaders such as Rua Kenana
Hepitipa (1868–1937) of Tuhoe121 or W T Ratana (1873–1939) of Ngāti Apa. Nonetheless Māori should stay in their tribal homelands and work their own lands. Staying
at home was the key to the twin goals of modernisation and cultural autonomy. This
was not only a Māori vision. Rural utopianism was a hallmark of New Zealand
Liberalism generally. Liberals thought the countryside was good for everybody;
Ngata agreed and thought that it was especially good for Māori. To Liberal beliefs
that cities were morally corrupting and unhealthy, and that a progressive society
should be built around rural close settlement was added Ngata’s assumption that
only in the countryside could Māori retain their cultural autonomy, or their ‘individuality’ as he often put it. To move away from home would put Māoritanga (Māori
cultural values, ‘Māori-ness’) at risk. (As things have turned out, Ngata’s fears were
misplaced.122) As G V Butterworth has put it, ‘land development for Ngata — like
the Ratana Church and the Kingitanga for their supporters — had overtones of a
doctrine of faith rather than a wholly rational policy’.123
Ngata was an intellectual who valued research in the fields of contemporary sociology
and cultural anthropology. He was a close friend and lifelong correspondent of Sir
Peter Buck (Te Rangi Hīroa), New Zealand’s most famous anthropologist — himself
Māori — who spent much of his career in the United States. He was also close
119
120
121
122
123
G V Butterworth, ‘A Rural Māori Renaissance? Māori Society and Politics 1920 to
1951’ (1972) 81 Journal of the Polynesian Society 160.
On Ngata and Māori music: see Mervyn McLean, Māori Music (Auckland University
Press, 1996) 337–41. On Ngata and Māori art: see Roger Neich, Painted Histories:
Early Māori Figurative Painting (Auckland University Press, 1993) 117–19;
Rangihiroa Panoho, Māori Art: History, Architecture, Landscape and Theory
(Bateman, 2015) 138–72.
Principal Māori iwi of the Urewera region.
See Richard Hill, Māori and the State: Crown-Māori Relations in New Zealand/
Aotearoa, 1950–2000 (Victoria University Press, 2009) 2.
Butterworth, above n 119, 171.
(2016) 37 Adelaide Law Review355
to Ivan Sutherland, who taught at Canterbury University College. A literature on
contemporary Māori society first began to emerge in the 1920s, partly as a component
of Ngata’s program of Māori cultural and economic revitalisation. It took a Māori
politician to initiate support for research on contemporary Māori social anthro­
pology — as opposed to the somewhat the backward-looking literature on traditional
lore, fishing methods, ancient legends, mythology, migrations and so on characteristic of the earlier era of S P Smith, Tregear, and Elsdon Best. The obvious reason for
the persistence of this older style of scholarship was that it was generally assumed
that Māori people were going to merge into the general population and Māori culture
would vanish: ‘Poorly known aspects of Māori culture were to be salvaged before
they had been replaced by European civilisation’.124 But Ngata was looking to the
future, not the past, and knew it was important to gain an informed understanding of contemporary Māori society. It can sometimes be forgotten that he was an
intellectual in politics with a serious commitment to supporting contemporary social
research.125 He played a pivotal role in establishing the Māori Ethnological Research
Board in 1923, the Māori Purposes Fund Board in 1924, and the Māori Arts and
Crafts Council in 1931. The Māori Ethnological Research Board was established
to support research on Māori society and culture, but this now included contemporary Māori and Pacific sociology and ethnography written by people with academic
training. The Board helped with the publication costs of monographs and scholarly
conferences.
Ngata was a scholar and an academic in his own right. His personal scholarly interests
lay mostly in the field of Māori literature, and he collected and edited numerous Māori
waiata (poems, songs, compositions) from all over the country, later published as
supplements to the Journal of the Polynesian Society from 1958–1990 under the title
of Nga Moteatea [The Songs]. Nga Moteatea, recently republished in five massive
volumes by Auckland University Press, is essentially a work of literary appreciation,
a testament to Ngata’s feeling for the richness of Māori literature and the beauties
and subtleties of the Māori language. However Ngata also made himself familiar
with modern social research on Māori, supported and encouraged it, and at times
made use of it in his own work, as for instance in his utilisation of Raymond Firth’s
work in his (Ngata’s) report to parliament on Māori land development in 1931.126
Ngata was also an author in the field of social anthropology, and published an article
on anthropology and the government of ‘Native races’ in the Pacific in the Australasian Journal of Psychology and Philosophy in 1928.127 Interestingly, Ngata took the
opportunity to express a few reservations about aspects of contemporary scientific
anthropology:
124
125
126
127
Toon van Meijl, ‘Historicising Māoritanga: Colonial Ethnography and the Reification
of Māori Traditions’ (1996) 105 Journal of the Polynesian Society 311, 322.
For example, there is no discussion of this aspect of Ngata’s work in Atholl Anderson,
Judith Binney, and Aroha Harris, Tangata Whenua: A History (Bridget Williams
Books, 2014).
Sutherland, above n 91, 152.
Apirana Ngata, ‘Anthropology and the Government of Native Races in the Pacific’
(1928) 6 Australasian Journal of Psychology and Philosophy 1.
356
BOAST — LAND, CUSTOM, AND IDEOLOGY
There is a tendency perhaps in modern science to magnify the importance of
terminology; a tendency in ethnographers to work on skeleton charts, such as are
outlined in ‘Notes and Queries in Anthropology’ and to measure the quality of
their work by the detailed filling of those charts. Much superficial work has been
done under this guise. The temptation to make the material observed conform
to the principles connoted by the terminology of the charts could not always be
resisted. Races under observation are thus often credited with mental and other
qualities they never possessed; or more is read into their sociology than the facts
warrant.128
Ngata therefore certainly knew of the new cultural anthropology, supported it, made
use of it and indeed contributed to it.
X C ollectivism
and
I ndividualism
in
N ew Z ealand
By 1909 the problems posed by crowded Māori land titles were beginning to be
understood, and the minds of many were exercised by the issue of what to do about
it. There were two main options on offer by this time, incorporation and consolidation. The two are quite dissimilar. Consolidation simply means swapping undivided
land interests around in order to ‘consolidate’ individual or family blocks. It is not
a solution which challenges individualisation as such. Ngata saw consolidation as
useful, provided it generated family farms. ‘Consolidation’, wrote Ngata in 1931, ‘is
the most comprehensive method of approximating the goal of individual or, at least,
compact family ownership.’129 Consolidation was not a goal in itself, but a means
to an end, and the end, for Ngata, was always that of encouraging Māori to become
farmers. Land development grew out of consolidation and was always linked to it,
as the desired end of a consolidation scheme was typically the creation of a number
of ‘improved’ farming units, preferably dairy farms if soil, climate and topography
allowed. Consolidations merely offered an interim solution: a generation or two later,
the exercise would have to be repeated.
Incorporation, however, was a more interesting and innovative kind of solution to
the crowded title problem. Incorporations are collectivist. They give legal form to a
community of owners. As idealised by Ngata, incorporations worked by turning land
blocks into a kind of community project: the community worked the land under
the eye of a salaried manager, drew salaries, remained at home, and earned profits
128
129
Ibid 2. Notes and Queries on Anthropology was a manual of anthropological practice
and questionnaire first issued by the British Association for the Advancement of
Science in 1874, later taken over by the Royal Anthropological Institute and regularly
updated.
Apirana T Ngata, “Native Land Development” [1931] AJHR G10 at ii, quoted in
T J Hearn, ‘Land Titles, Land Development, and Returned Soldier Settlement’
in Te Rohe Pōtae (Report Wai 898 #A69, Crown Forestry Rental Trust, December
2009) 23 [1.5] (emphasis added).
(2016) 37 Adelaide Law Review357
according to the value of their shareholdings. They were a much more modern and
contemporary kind of solution, consolidations being more conservative.
By 1900 or thereabouts, as seen, individualisation had become discredited all over
the world, or at least new ideas about land and tenures were in the ascendant. That
this was having an impact in New Zealand can be seen from a close examination
of the reports prepared by Sir Robert Stout and the young Āpirana Ngata during
their joint commission of inquiry into Māori lands and land tenure from 1907–08.
In December 1907 the commissioners were on Ngata’s home terrain in the Waiapu
region, where they attended various meetings and discussions at Ngata’s home
Waiomatatini. Following the meetings, in January 1908 Stout and Ngata crafted at
Rotorua a remarkable report which illustrates perfectly the themes of this article.130
It is hard to know whether it was Ngata or Stout who was the principal author, and
in a sense it does not really matter: Ngata and Stout, one Māori, the other Pākehā
(non-Māori New Zealander), thought along similar lines.
The context of the discussion was Māori incorporations. They were, wrote Stout
and Ngata, very suitable organisations for Māori, ‘a communal people’.131 The
report, however, suggests that Māori land incorporations could be a useful model
for Europeans and could indeed offer possibilities for more cohesive and culturally
richer rural settlement. Instead of Māori being urged to adopt European individualism, Pākehā were being invited by Stout and Ngata to think seriously about Māori
collectivism. Also noticeable is a sense that New Zealand might be blazing a trail
for other countries to follow in an era of ‘social experiments’, even to the extent
of harmonising the interests of ‘capital’ and ‘labour’ (wishful thinking, no doubt).
There could be no clearer illustration of the collectivist impulses analysed above:
This system of incorporation is new to our Dominion, and has not, so far as we
know, been adopted in any part of the world dealing with farming pursuits. It is
a union of capital and labour, for the labour on the incorporated blocks is almost
wholly supplied by the landowners or their relatives. In these days, when so many
social experiments are being tried, this system merits consideration and careful
watching.132
There was no reason why the benefits of this new kind of rural social organisation —
so it was perceived — should be confined to Māori:
There is nothing we know of that could hinder it being adopted by Europeans.
If ten, twenty, or thirty families of colonists were to obtain a block of land either
130
131
132
Robert Stout and A T Ngata, “Native Lands and Native-Land Tenure: Interim Reports
of Native Land Commission on Native Lands in the Waiapu County” [1908] AJHR
G-00i.
Ibid 3.
Ibid.
358
BOAST — LAND, CUSTOM, AND IDEOLOGY
by purchase or on perpetual lease,133 and to manage it as the Māoris manage
these incorporated blocks, perhaps a higher village life might be led and true
altruistic communities formed. For under this system labour is paid at the current
rates, and the holder of what may be called the ‘stock’ or ‘capital’ gets the profits;
but, as the holders of the ‘stock’ are also the workers, they reap not only the
reward, but the profit of their labour. Further, the settlers would not live apart
on separate farms, but their houses would be close to each other, and thus there
would be a better social life than in many country districts.134
Living in the country had its drawbacks. It could be culturally sterile and rather
boring:
The drawback to country life is often the want of a village or town life, the
absence of social intercourse, and the lack of art, music, and literature that are
common to most towns. How is country life to be made more popular?135
Something like the Māori incorporation could help perhaps, and prove more durable
than other kinds of rural Utopian experiments that had been tried and failed in the
United States and other countries, the commissioners thought. It is impossible to
imagine a high Victorian liberal like Francis Dart Fenton, the first Chief Judge of the
Native Land Court and author of the Native Lands Act 1865 (NZ), writing something
like this.
Ngata disliked doles and social welfare benefits, and believed them to be bad
for Māori people. The state should certainly assist, but in Ngata’s view it should
assist Māori collectively, not individually. There was always something of the kibbutz
and the commune about Ngata’s program. John Collier and Felix Cohen in the United
States, Manuel Gamio in Mexico, and Sir Āpirana Ngata in New Zealand were all
intellectuals in government who idealised the collectivist values of indigenous
peoples and who also worked hard to alleviate their economic plight in their respective
countries. (Ngata, however, was the only one who was indigenous himself.) It was
an integral part of Ngata’s vision that the schemes had to be community initiatives
utilising the traditional leadership. The state should advance loan monies, provide
technical and financial advice and help with training, but at the end of the day the
schemes were meant to be Māori initiatives. The development schemes were not
only, or merely, an economic policy. As G V Butterworth has put it:
Ngata’s schemes had never been intended to be cold bloodedly economic. Rather
he had sought to make Māori farming the economic basis of a renewed Māori
133
134
135
According to Professor Hamer, Stout ‘opposed the sale of land by the state’ and was
‘a strong advocate of state leasing, and frequently advocated taxing the unearned
increment’: David Hamer, ‘Stout, Robert 1844–1930, Lawyer, Politician, Premier,
Chief Justice, University Chancellor’ in Claudia Orange (ed), Dictionary of New
Zealand Biography (Bridget Williams Books, 1990–2000) vol 2, 484, 485.
Robert Stout and A T Ngata, above n 130, 3–4 (emphasis added).
Ibid 4.
(2016) 37 Adelaide Law Review359
tribal life which was to include those manners and customs (modified where
necessary) that fostered Māoritanga. The development of tribal lands would
enable the retention of a political, social and economic life centred on the carved
meeting house and marae.136
The schemes were one component of an ambitious program of social, economic, and
cultural renewal. Ngata hoped that his land development project would make Māori
people more virtuous: it might improve levels of domestic hygiene and perhaps, it
was hopefully imagined, even reduce alcohol consumption. Such initiatives, wrote
Ngata in 1931, ‘would fail to produce enduring results unless they centered round
and assisted in an industrial development based principally on the cultivation of
land’.137 There could be no more revealing expression of Ngata’s deepest convictions,
drawn from his own life and cultural background, but also from the rural Arcadianism which was such a fundamental part of Liberal party ideology and which itself
had a long genealogy in both New Zealand itself and in Britain. There was no room
in Ngata’s vision for the likes of one Matene Mita, whose letters I discovered buried
in one of the Native Land Purchase files, who wanted to sell his land interests to the
Crown so he could move to Rotorua and open a billiards saloon.138
Ngata could not have set up the schemes without the support and backing of the United
(Liberal) government of which he was a member. It is hard to find, on such literature
as exists, any explanation as to why Ngata’s cabinet colleagues were prepared to
fund the schemes and to continue to do so as the country slid into depression. Why
did they? It was not a policy likely to win support from Pākehā voters. Admittedly
the four Māori seats were not unimportant in a finely-balanced parliament. But there
must have been other reasons. No doubt a principal reason for Cabinet support is
that the schemes, as noted above, represented a further state-controlled stage of the
grasslands revolution, which meant more butter, cheese and frozen lamb for export
to Britain. But there were, to revert to the main theme of this article, wider trends
at work. Ngata’s legislation was just one part of a wider package of land development legislation enacted in 1929. Legislation was simultaneously enacted aimed at
facilitating land settlement and development by Māori and Pākehā. This ambitious
combined program can be interpreted as the United government’s continued
commitment to the ancient dream of close rural settlement as a cure for all social
and economic ills. Many of the provisions of s 23 of the Native Land Amendment
and Native Land Claims Adjustment Act 1929 (NZ) parallel those of the Land Laws
Amendment Act 1929 (NZ) enacted at the same time. The first, Ngata’s legislation,
was aimed at Māori, and the second at Pākehā. The Land Laws Amendment Act,
which implemented the non-Māori program, set up a Land Development Board,
136
137
138
Butterworth, above n 119, 175.
Apirana T Ngata, “Native Land Development: Statement by the Hon. Sir Apirana
T Ngata, Native Minister” [1931] AJHR G-10 at vii, quoted in Ashley Gould, Māori
Land Development Schemes: Generic Overview (Report, Wai 1200 #A67, Crown
Forestry Rental Trust, 2004) 41 (emphasis added).
Boast, Buying the Land, Selling the Land, above n 4, 10, 415.
360
BOAST — LAND, CUSTOM, AND IDEOLOGY
chaired by the Minister of the Lands, assisted by advisory committees.139 The legislation was aimed at developing unoccupied Crown lands for settlement, conferring
wide powers on the Minister of Lands to achieve this goal, just as Ngata’s legislation
conferred equally sweeping powers on himself. The legislation was thus aimed at
supporting and funding both Māori and Pākehā rural communities. The success, or
lack of it, of the non-Māori component of the project remains unstudied, but it does
not seem to have resulted in anything of enduring significance.
Ngata’s 1929 legislation was subsequently incorporated into the Native Lands Act
1933 (NZ), an update and revision of the Native Lands Act 1909 (NZ). The 1933
Act is thus a near-contemporary of the Indian Reorganisation Act of 1934 in the
United States. The New Zealand legislation, unlike the American, did not provide a
mechanism by which indigenous descent groups as such could become incorporated
bodies. On the other hand, New Zealand law had long allowed individual owners
of particular blocks to incorporate, and the 1929/1933 legislation provided for an
elaborate system of state-assisted Māori land development founded on Ngata’s vision
of rural-based cooperative effort.
Yet there were deep inconsistencies in Ngata’s project, which perhaps go to the very
heart of the limitations of the newly-fashionable collectivism emerging in the early
decades of the 20th century. It was all very well for John Collier and others like him
to idealise the collectivism and communalism of the Pueblo peoples of New Mexico
and Arizona. Those very peoples somehow had to make a living within the aggressively modernising and capitalistic society of the United States. In the case of the
development schemes in New Zealand, Ngata explicitly sought to involve Māori in
New Zealand’s dairy industry, a highly capitalised form of business activity based
on the production and industrial production of perishable products and their bulk
export across the world to the United Kingdom.140 Ngata did not seek to challenge
New Zealand’s grasslands revolution or its export-based dependency economy,
and sought only to ensure that Māori participated in it and shared in its economic
benefits. Whether they could simultaneously do that and also remain a virtuous and
culturally self-sufficient rural people remained to be seen. Dairy farming, with its
remorseless routines, pressing timetables, high start-up costs and close integration
with exporters, vets and other rural specialists is a challenging form of economic
139
140
Land Laws Amendment Act 1929 (NZ) s 6.
Given the long-standing and continuing importance of dairying to the New Zealand’s
economy, the lack of a developed historiography on the economic, social, political,
and environmental consequences of this vast industry (or on its ability to influence
policymakers and law-makers) is very striking and very surprising. No comprehensive history of the industry exists, and the industry seems completely uninterested
in commissioning academic histories of itself. This is marked contrast to the highly
developed literature on (for example) the coffee industry in Central America. In Costa
Rica, for example, the coffee industry plays a somewhat similar structural role to the
dairy industry in New Zealand, being based largely on producer cooperatives and for
export, and which has had social, political, and environmental consequences in Costa
Rica no less significant than dairying in New Zealand. See generally Paige, above
n 18.
(2016) 37 Adelaide Law Review361
activity for a ‘communal people’. New Zealand’s dairy farms tended to be family
farms, wives and children supplying unpaid labour to keep the farm going and build
up capital.141 For Māori to become dairy farmers a veritable social revolution was
needed as well as an economic one. Another problem was that the burgeoning Māori
population combined with the diminished Māori land base meant that there simply
was not enough land for the whole Māori people to become farmers, any more than
this was a realistic option for the rest of the population of the country. In the long run
the project could never have been realised. Before this became apparent, however,
Ngata’s great vision ran aground on the rocks of a much more specific crisis: departmental maladministration.
XI T he 1934 C ommission
In 1934 Ngata’s administration of the Native Department was minutely inquired
into by a Commission chaired by David Smith, a Supreme Court judge. The
other members were John Alexander, a lawyer, D G Johnston, an accountant, and
L W Nelson, ‘of Whangarei, Farmer’.142 In assessing the 1934 Commission and its
report it is important to bear in mind that Smith was a well-informed person with a
reputation as a humane and thoughtful judge. Before his admission to the bench in
1928 he had acquired much experience in working for Māori. Smith had represented
the Māori claimants before the Sim Commission on confiscated lands in 1927, where
he had successfully pressed the case that the Waikato and Taranaki confiscations
were wholly unjustified. On that occasion Smith had rested part of his argument on
the Treaty of Waitangi and argued that the confiscations were contrary to the ‘honour
of the Crown’.143 By no means, then, was Smith without experience of the Māori
world nor could he be said to be unsympathetic towards Māori aspirations.
The terms of reference for the 1934 Commission were to inquire into ‘the admini­
stration of the Departments of Government concerned with the administration of
Native Affairs’, ‘the schemes now in operation’ and ‘the funds which are available
to the Māori people, the purposes for which they may be applied or should be
applicable, and whether they might be used more effectively’.144 The report, at
141
142
143
144
No one who has ever had the experience of milking a herd of cows, as this author has
(once — and once was enough) would ever romanticise dairy farming. For a graphic
picture of the working lives of women and children on New Zealand’s dairy farms:
see Claire Toynbee, Her Work and His: Family, Kin and Community in New Zealand
1900–1930 (Victoria University Press, 1995) 42–61.
Royal Commission of Inquiry into Native Affairs, Parliament of New Zealand,
“Report of the Commission on Native Affairs” [1934] AJHR G-11 at 1.
See Mark Hickford, ‘Strands from the Afterlife of Confiscation: Property Rights,
Constitutional Histories and the Political Incorporation of Māori, 1920s’ in R P Boast
and R S Hill (eds), Raupatu: The Confiscation of Māori Land (Victoria University
Press, 2009) 169, 169–204.
Royal Commission of Inquiry into Native Affairs, Parliament of New Zealand, above
n 142 at 1.
362
BOAST — LAND, CUSTOM, AND IDEOLOGY
194 closely-printed pages, whatever else may be said of it, is a major document and
is a mine of information on the development schemes and their funding, and of the
functions of the Māori Land Boards, the Native Trustee, and the Native Department.
The commissioners met first in Wellington in March 1934 and held meetings in
Auckland, Whangarei, Rotorua, and Gisborne; they also visited many of the schemes
to inspect their operation and inquire into their financial management. There were
147 witnesses leading to a typescript of evidence 2 167 pages long. There were a
significant number of Māori complaints to the Commission, especially about the
operations of the Native Trustee — complaints which the Commission on the whole
supported strongly.
Ngata gave evidence to the Commission at Wellington on 3 July 1934, and also handed
in a prepared statement covering a number of matters before the inquiry. Ngata was
questioned closely, as he must have been expecting. One key issue explored was the
lack of planning for the project. Judge Smith observed to him that:
it would seem to me that you felt here was a chance, long awaited for, to develop
Native land: you went at it with tremendous energy and enthusiasm and it may be
that explains to some extent the lack of apparent planning for development from
the land settlement point of view. 145
Ngata’s response was ‘quite probable’.146 Ngata was questioned at length about
the lack of reporting on the progress of the schemes, and various problems with
particular schemes. Professor Ivan Sutherland of Canterbury University College, the
closest thing New Zealand had at the time to a full-time university-based anthropologist, also gave evidence to the Commission. Sutherland, who ‘was deeply upset
at Ngata’s predicament’147 gave evidence because he wanted to. He was strongly
supportive of Ngata, who he knew well, and of the schemes. There was an interesting exchange between Sutherland and Smith as to whether it was possible for Māori
to simultaneously become effective participants in the modern economy while at
the same time retaining their traditional culture, which was really the fundamental
issue at stake. In doing so Smith relied on a somewhat selective quotation from
Raymond Firth’s Economics of the New Zealand Māori to suggest that the former
Māori communal system could not now be revived, while noting that Ngata himself
and Felix Keesing (author of The Changing Māori, published in 1928)148 were of a
different view. Sutherland said that he thought it was certainly possible for Māori to
participate in the development project and at the same time retain their traditional
culture (this combined aspiration, of course, was integral to the whole development
scheme project as Ngata conceived it).
145
146
147
148
Evidence to Royal Commission of Inquiry into Native Affairs, Parliament of New
Zealand, Wellington, 3 June 1934, 1993 (Smith J), quoted in Gould, above n 137, 152.
Ibid.
Sutherland, above n 91, 238. Sutherland gives an excellent and fair-minded account of
Ivan Sutherland’s presentation to the Smith Commission: at 238–247.
Felix M Keesing, The Changing Māori (Board of Māori Ethnological Research,
1928).
(2016) 37 Adelaide Law Review363
The report found that the Native Department was more or less in a state of admini­
strative and financial chaos as it struggled to deal with the pressures caused by
the development scheme program. There was no suggestion, however, that the
schemes were misconceived as such, or that the program should be closed down.
The commissioners were critical not only of Ngata but also of senior depart­mental
officials, the Māori Land Boards, and especially of the Native Trustee. But the core
problem was Ngata’s interference in departmental administration and financial
management, which the Commission found was in breach of basic principles of
public ­administration:
The foregoing system of departmental control and check makes no provision for
the intrusion of the Minister in charge of a Department into the administration
of that Department. This is so because a Minister of the Crown is expected to
be concerned with departmental policy and not with departmental administration … It will be seen at a later stage of our Report that the Native Minister did
interfere in the administration of the Native Department in important branches of
its activity, and that he did so with unfortunate results.149
Probably the key paragraph in the report was this one:
Allowance may be made for the Native Minister’s impatience of ‘red tape’ in the
Native Department when it was carrying on a farming activity. Allowance may
also be made for the fact that the Under-Secretary [Jones] and the Chief Clerk
[Shepherd] were not sufficiently experienced administrators for the new work
and were too compliant. But their compliance suited the Minister’s methods — it
was, no doubt, difficult for them to resist him — and the situation was briefly
this: that the Minister substantially interfered in a system which was not designed
to receive him and there was a paramount influence retarding the usual checks
applied by the Public Service Commissioner and Treasury with the aid of Audit;
that he increased the field work beyond all reasonable limits, having regard to the
staff which he provided or permitted for the clerical work necessarily created by
such field work; and that, when he knew the accounting system was not functioning as it should, he failed to take any reasonable steps and even resisted the steps
taken and the helpful suggestions made by others.150
The report, released on 29 October 1934, was shattering, personally and politically,
and Ngata immediately resigned. The release of the report, Ngata’s resignation, and
Forbes’ acceptance was a political sensation. This becomes apparent from newspaper
coverage, which tended to emphasise the reliability and attention to detail of the
report.151 Ngata’s resignation letter, addressed to Forbes, was widely published in
the media. It read as follows:
149
150
151
Royal Commission of Inquiry into Native Affairs, Parliament of New Zealand, above
n 142 at 48.
Ibid 56 [304].
‘Conduct of Department: Severe Criticism of Minister: Report by Royal Commission’,
Auckland Star (Auckland), 1 November 1934, 9.
364
BOAST — LAND, CUSTOM, AND IDEOLOGY
Dear Sir, — I hereby tender my resignation as Native Minister and Minister of
Cook Islands and as a member of the Executive Council representing the Native
race. In doing so I desire to thank you and my colleagues in the Ministry for
the consideration and courtesy that have always been extended to myself and
especially for the good will manifested towards the Māori people. I shall be glad
to render all the assistance I can, as one of the Māori members, to the Government
and the country to prevent any misunderstandings arising and to make smooth
the administration of Native Affairs. — Yours sincerely,
A T Ngata.152
Ngata was never to regain political office.
How should the Commission and Ngata’s resignation be understood? One interpretation is to see the Commission as an exercise in fanatical nit-picking motivated by
an ulterior design to sabotage Ngata’s efforts. This is more or less Ranginui Walker’s
analysis in his 2001 biography of Ngata. He describes the Commission as a ‘witch
hunt against Ngata’ and indeed as ‘the last hurrah of colonialism’.153 Ashley Gould,
who has read all of the evidence given at the inquiry, more cautiously remarks
that the report ‘failed to reflect the subtle Māori perspective given in evidence’.154
Certainly much of the report does seem to be nit-picking, especially in its minute
investigation of ministerial expenditure on toll calls and hiring cars. On the other
hand, the Commission was set up by the government of which Ngata was himself
a prominent member, and there seems to be no evidence that Ngata’s ministerial
colleagues were out to destroy him politically. It is hard to see why they should want
to, or how such a strategy could prove politically advantageous to the embattled
government. A personal crusade by Smith also seems hard to credit, although there
is evidence that Smith and Ngata had somewhat different philosophical approaches
towards Māori autonomy and economic management. Prominent and well-informed
people such as Sir Peter Buck, Professor Ivan Sutherland, and the Waikato Māori
leader Te Puea Herangi thought that Ngata had been treated very unfairly, and that he
should be reinstated as Native Minister.
Much more research needs to be done on this episode, including a thorough analysis
not only of the report itself, but also of the thousands of pages of evidence and documentation and on the whole political context of the inquiry. If a guess at the true
position may be hazarded, it is that the report was excessively rigorous in what in
what it demanded of Ngata and his staff, but that on the other hand it is probably the
case that Ngata did cut corners, interfered too much in departmental administration
and failed to devote proper attention to ensuring that an adequate administrative
infrastructure was in place to support the schemes. Ngata was attempting to pull off
an amazingly ambitious program to rescue Māori from rural poverty, but he made the
152
153
154
‘Native Minister: Sir A.T. Ngata Resigns: Mr. Forbes’s statement: Welfare of Māoris’,
Evening Post (Wellington), 1 November 1934, 14.
Walker, above n 112, 295, 300.
Gould, above n 137, 150.
(2016) 37 Adelaide Law Review365
mistake of rushing ahead too far and too fast. Moreover, the general economic and
political situation must always be remembered. The schemes were launched during
the great depression of the early 1930s, which the government reacted to by cost-­
cutting and retrenchment of the public sector. Ngata had the misfortune to launch
his scheme of connecting Māori to New Zealand capitalist agri-business with a great
crisis of international capitalism. Ngata’s departmental under-secretary was Chief
Judge Shepherd, who, in another cost-cutting measure, had been made simultaneously departmental head, Native Trustee and Chief Judge of the Native Land Court.
The strain on him, as on Ngata himself, must have been appalling. The schemes
ended up as a very large affair run by too few overworked people. In these circumstances it is not surprising that the project got out of control.
A more important issue, however, is that of the long-term consequences of the 1934
Commission and Ngata’s resignation. These were significant. For one thing, there
was to be no further Minister of Māori Affairs until Matiu Rata obtained the position
in the 1972–75 Labour Government. Although both the National and Labour
governments persisted with the development schemes after 1934 they became essentially a bureaucratic exercise run by government officials. Ngata’s holistic vision
of a prosperous rural people making a living in the countryside by participating in
New Zealand’s grassland economy while at the same time reviving their communal
culture and its artistic and cultural traditions was abandoned. After the Second World
War, the national policy settings were re-set to encourage Māori to move from the
countryside to the cities and to new industrial towns such as Kawerau and Tokoroa.
Arguably the impetus of the new collectivism in New Zealand, exemplified to some
extent in Ngata’s program, received a check in 1934 before it had an opportunity to
become entrenched, but whether Ngata’s long-term vision was actually achievable
has to be seriously doubted. This is another way of emphasising that the program
was ideological as much as it was economic, and that sooner or later it would have
foundered in any case. The post-war programs of encouraging Māori to move to the
cities was in fact more realistic, and notwithstanding its social and cultural costs,
arguably a more reliable way to improve Māori economic well-being.
XII C onclusions
The Jacobin legacy of the French revolution, with its deification of the enlightened state comprised of free (male) citizens governed rationally by a centralised
republic coexisted with another, equally French, cultural legacy: that of Rousseau, of
European romanticism and the romantic cult of the bon sauvage. If the former, and
its English Lockean and Benthamite equivalents, were the dominant trends in the
19th century, the counter-tendency was still there, lurking beneath the liberal culture
of individualism, rationalism and republican virtue. Romanticism and relativism
were especially influential in Germany. Towards the end of the 19th century, born in
part from the failures of the liberal dream, the counter-trend started to increasingly
make its presence felt.
In the late 19th and early 20th century this led in some countries to a tendency to idealise
the mores and values of indigenous cultures and even towards a re-assessment of
366
BOAST — LAND, CUSTOM, AND IDEOLOGY
traditional varieties of tenure. In Britain there was also a growing belief in the virtues
of peasant proprietorship and a critique of parliamentary enclosure, evidenced by
the influential historical studies of English rural history by R H Tawney and the
Hammonds, who have in turn influenced Marxist historians of the post-war era such
as Christopher Hill and E P Thompson. British policy-making was affected as well
(as in Ireland and Scotland). It is certainly the case that ideas of the social value of
land and a belief in the moral and social values of the family farm (as opposed to
the great estate) had an impact in New Zealand. Although academic anthropology
was slow to become established in New Zealand, this did not mean that Boasian and
functionalist anthropology was without effect in that country.
No exact equivalent of the Indian Reorganisation Act was ever enacted in New
Zealand. However collectivist approaches to land management do underpin the
provisions of Ngata’s 1929 legislation, which were duly incorporated into the Native
Lands Act 1933 (NZ). Policy developments in the Māori land sphere were influenced
to a significant extent by the new collectivist mood rapidly gaining ground all around
the world in the first half of the century. As in Mexico and the United States, collectivist thought had significant effects on policy and law. Just as with New Zealand’s
original Native Lands Acts, which reflected the political economy of their day, new
policies in the first half of the 20th century were no less linked to the cultural and
intellectual zeitgeist. More generally, the evolution of the law relating to Māori and
Māori land in New Zealand derives not only from trends and developments peculiar
to New Zealand, but also from broader cultural and intellectual trends. It is with
Ngata and his programs that the new mood is seen most clearly.
This article has concentrated on the late 19th and early 20th centuries. The collectivist
mood remained important in New Zealand, as indeed it did elsewhere. Ngata’s land
development program was continued and expanded by the Labour Government which
ruled New Zealand from 1935–1949. Following the Second World War, however,
there was — as in the United States155 — something of a return to individualism
and assimilation, seen for example in the Māori Affairs Amendment Act 1967 (NZ),
which made a number of highly unpopular changes to the statutory Māori land tenure
system. Since then, collectivism has returned. As a result of Māori politicisation and
protest in the 1970s and 1980s the current statute relating to Māori land (Te Ture
Whenua Māori Act 1993 (NZ)) is strongly protectionist, aimed at preserving the
remaining corpus of Māori land in Māori ownership. The remaining corpus of Māori
freehold land is treated by the legislation in some ways as a possession of the entire
155
Felix Cohen’s personal reaction to shifts in federal Indian policy in the 1950s emerges
very clearly from his own writings. See Felix S Cohen, ‘The Erosion of Indian Rights,
1950–1953: A Case Study in Bureaucracy’ (1953) 62 Yale Law Journal 348. Cohen
fought a number of battles with Dillon Myer, formerly responsible for the relocation
of Japanese-Americans during the war, who became head of the Bureau of Indian
Affairs in May 1950. Under Myer’s leadership the Bureau embarked on a contro­
versial policy of termination of tribal status and the Indian New Deal era came to an
end. On Cohen and Myer: see Dalia Tsuk Mitchell, Architect of Justice: Felix S Cohen
and the Founding of American Legal Pluralism (Cornell University Press, 2007)
249–70.
(2016) 37 Adelaide Law Review367
Māori people, and alienating such land or changing its status to general title is made
deliberately difficult. The Waitangi Tribunal, established by statute in 1975 to inquire
into Māori claims against the Crown, has evolved into a powerful and influential
body which has had significant impacts on policy and (as it is essentially an inquiry
into history) also on historiography and the nation’s self-understanding.156 Although
claims to the Waitangi Tribunal are lodged by individuals, in effect claims are collectivist, brought by iwi and hapū, with the Crown cast in the role of a defendant in what
are essentially civil proceedings before a standing commission of inquiry. The state
has negotiated and settled numerous Māori historic grievances over the last 20 years,
returning land and paying cash to new forms of Māori collectivities (‘post-­settlement
government entities’). Collectivism seems now to reign supreme. However, in what
seems to be a return to earlier styles and ideas, a new Māori Land Bill (Te Ture
Whenua Māori Bill) is before Parliament, which provides for very different policy
settings from the existing 1993 Act and which is underpinned by rhetoric of owner
empowerment and freedom of choice. Whether the new Bill will be enacted in its
present form remains to be seen. The oscillation of policy appears to be continuing.
156
The historiographical debate in New Zealand has now become very wide-ranging,
perhaps especially because J G A Pocock has been a contributor to it. See J G A Pocock,
‘Tangata Whenua and Enlightenment Anthropology’ (1992) 26 New Zealand Journal
of History 28; J G A Pocock, ‘Law, Sovereignty, and History in a Divided Culture:
the Case of New Zealand and the Treaty of Waitangi’ in J G A Pocock, The Discovery
of Islands: Essays in British History (Cambridge University Press, 2005) 226–55;
J G A Pocock, ‘The Historian as Political Actor in Polity, Society, and Academy’
in J G A Pocock, Political Thought and History: Essays on Theory and Method
(Cambridge University Press, 2009) 217, 217–38. Some other contributions to a
proliferating literature are P G McHugh, ‘Tales of Constitutional Origin and Crown
Sovereignty in New Zealand’ (2002) 52 The University of Toronto Law Journal 69;
Giselle Byrnes, The Waitangi Tribunal and New Zealand History (Oxford University
Press, 2004); Michael Belgrave, ‘The Tribunal and the Past: Taking a Roundabout
Path to a New History’ in Michael Belgrave, Mereta Kawaru, and David Williams
(eds), Waitangi Revisited: Historical Perspectives on the Treaty of Waitangi (Oxford
University Press, 2005) 35, 35–55; Michael Belgrave, Historical Frictions: Māori
Claims and Reinvented Histories (Auckland University Press, 2005); R P Boast,
‘Recognising Multi-Textualism: Rethinking New Zealand’s Legal History’ (2006)
37 Victoria University of Wellington Law Review 547; Jim McAloon, ‘By Which
Standards? History and the Waitangi Tribunal’ (2006) 40 New Zealand Journal
of History 194; Giselle Byrnes, ‘By Which Standards? History and the Waitangi
Tribunal: A Reply’ (2006) 40 New Zealand Journal of History 214; David V Williams,
A Simple Nullity? The Wi Parata Case in New Zealand Law and History (Auckland
University Press, 2011); Mark Hickford, ‘Looking Back in Anxiety: Reflecting on
Colonial New Zealand’s Historical-Political Constitution and Laws’ Histories in the
Mid-Nineteenth Century’ (2014) 48 New Zealand Journal of History 1.
368
BOAST — LAND, CUSTOM, AND IDEOLOGY
A ppendix
Māori terms are explained in the text, but a basic glossary is set out here:
hapū — small to medium-sized descent group, sub-tribe, section of tribe, clan. The
same word also means ‘pregnant’.
iwi — large descent group, sometimes translated as ‘tribe’, some of which can been
very large (over 100 000 people). The same word also means ‘bones’.
Māoritanga — Māori culture, lifeways, worldviews (literally ‘Māori-ness, state of
being Māori).
Ngāti — tribal prefix conveying the idea of a plurality given before the name of an
iwi or hapū (as in Ngāti Toa, Ngāti Raukawa etc).
Pākehā — non-Māori New Zealander. The word is widely used by non-Māori New
Zealanders to describe themselves.
take — (the final ‘e’ is pronounced) — root of title, cause of action (especially in the
Native/Māori Land Court), has idea of root, stump, base, foundation.
Ture — law, statute.
Whenua — land, also means ‘afterbirth’.
John Gava*
LOSING OUR BIRTHRIGHT:
SINGH v COMMONWEALTH
A bstract
In this article I argue that in Singh v Commonwealth (‘Singh’) the
High Court, without good reason, removed the accepted notion that
birth in Australia takes a person outside the legislative power granted
to the Commonwealth in the aliens and immigration powers. In the
article I examine in detail the judgments in Singh, especially the claim
made in the majority judgments that there were no relevant authorities
concerning children of aliens born in Australia. I then examine all the
major cases dealing with the aliens power decided before Singh and show
that, contrary to the majority’s claim, there was a longstanding series of
authori­ties that directly and indirectly held that a person born in Australia
could not be an alien. I conclude by showing that the High Court has
consistently said that previous decisions should only be overturned after
serious consideration and for good reasons. This fidelity to authority has
been forcefully defended by many High Court judges, including several
who decided Singh. It was not, however, given effect to in Singh and this
led to a signifi­cant change in one of our most important human rights —
the right to call somewhere home.
I I ntroduction
I
n this article I argue that in Singh v Commonwealth1 the High Court of Australia,
without good reason, removed the accepted notion that birth in Australia takes a
person outside the scope of the Commonwealth’s power to legislate for aliens and
immigration.2
*
1
2
Adjunct Associate-Professor, Adelaide Law School, University of Adelaide. The
author wishes to thank the editors of the Adelaide Law Review, Dr Matthew Stubbs
and Dr Adam Webster for helpful comments.
(2004) 222 CLR 322 (‘Singh’).
Section 51 of the Constitution provides that:
The [Commonwealth] Parliament shall, subject to this Constitution, have power to make
laws for the peace, order, and good government of the Commonwealth with respect
to: …
(xix) naturalization and aliens; …
(xxvii) immigration and emigration …
370
GAVA — LOSING OUR BIRTHRIGHT: SINGH v COMMONWEALTH
This article is arranged as follows. First, I note the practice of the High Court in
dealing with precedent in constitutional law. I then examine in detail the judgments
in Singh, especially the claim made in the majority judgments that there were no
relevant authorities concerning children of aliens born in Australia. Next, I analyse
all the major cases dealing with the aliens power decided before Singh and show
that, contrary to the majority’s claim and in line with the two dissenting judges,
there was a longstanding series of authorities that directly and indirectly held that
a person born in Australia could not be an alien. At the very least these authorities
demanded a considered response rather than the almost flippant assertion made by
the majority judges that there were no authorities relevant to the issue before the
judges. I conclude by showing that the High Court has consistently said that previous
decisions should only be overturned after serious consideration and for good reasons.
This fidelity to authority has been forcefully defended by many High Court judges,
including several who decided Singh. It was not, however, given effect to in Singh.
This article is not concerned with the literature surrounding the constitutional sig­
nificance of citizenship3 nor with the lamentable practice of deporting to their ‘home’
countries people convicted of criminal offences who arrived here as children.4 My
concern, rather, is with the legal reasoning adopted by the majority judges in Singh
and, in particular, their claim that the decisions in this area of law did not provide an
answer to the legal question before the Court. This issue has not been the focus of the
literature looking specifically at that case.5
Contrary to the views of the majority judges in Singh, the case law provided a clear
answer to the question whether a child born in Australia to parents who were aliens
was an alien for the purposes of the aliens power. Suggestions that the issue had not
come before the High Court and was thus an open question fundamentally misread the
decisions in this area and display a misunderstanding of the way in which precedent
has been applied and understood in the High Court.
3
4
5
See, eg, Genevieve Ebbeck, ‘A Constitutional Concept of Australian Citizenship’
(2004) 25 Adelaide Law Review 137; Sydney Tilmouth, ‘Citizenship as a Constitutional Concept: Singh v Commonwealth of Australia and Rasul v Bush, President of
the United States’ (2005) 26 Australian Bar Review 193; Helen Irving, ‘Still Call
Australia Home: The Constitution and the Citizen’s Right of Abode’ (2008) 30
Sydney Law Review 131; Christopher Tran, ‘New Perspectives on Australian Constitutional Citizenship and Constitutional Identity’ (2012) 33 Adelaide Law Review 199;
Sangeetha Pillai, ‘Non-Immigrants, Non-Aliens and People of the Commonwealth:
Australian Constitutional Citizenship Revisited’ (2013) 39 Monash University Law
Review 568.
See, eg, Michelle Foster, ‘Membership in the Australian Community: Singh v The
Commonwealth and Its Consequences for Australian Citizenship Law’ (2006) 34
Federal Law Review 161; Michelle Foster, ‘“An ‘Alien’ by the Barest of Threads” —
The Legality of the Deportation of Long-Term Residents from Australia’ (2009) 33
Melbourne University Law Review 483.
See, eg, Tilmouth, above n 3; Foster, ‘Membership in the Australian Community’,
above n 4.
(2016) 37 Adelaide Law Review371
The majority judges in this case have overturned our understanding of one of the
most important rights of Australians, one that was recognised in the very early years
of federation, in order to reconfigure the judicial interpretation of the aliens and
immigration powers contrary to nearly a century of accepted understanding of what
those powers meant.
II P recedent
and the
H igh C ourt
The overwhelming majority of judges from the earliest days of the High Court have
shown deference to the notion of stare decisis. Of course, all judges have acknowledged that, ultimately, the Constitution will trump judicial pronouncements and that
the Court is free to overrule previous decisions.6 But with very few exceptions,7 High
Court judges have consistently stated that this power to overrule operates within a
system of precedent.8 A consistent theme amongst these statements is that a case will
only be overruled for good reasons, where important constitutional issues are at stake,
and that overruling is not something that is to be done lightly. In Cole v Whitfield 9 the
Court (seven justices sitting) made it clear that in ‘the interests of certainty, even in
matters of constitutional interpretation, the Court does not readily discard or depart
from settled principle.’10 In Lange v Australian Broadcasting Corporation,11 another
judgment of all seven justices, the following observation was made:
This Court is not bound by its previous decisions. Nor has it laid down any
particular rule or rules or set of factors for re-opening the correctness of its
decisions. Nevertheless, the Court should reconsider a previous decision only
with great caution and for strong reasons.12
6
7
8
9
10
11
12
See, eg, R v Commonwealth Court of Conciliation and Arbitration; Ex parte Brisbane
Tramways Company (1914) 18 CLR 54 (‘Tramways Case’).
While there may be others the only examples that I could find were Isaacs J in the
Tramways Case (1914) 18 CLR 54, 70 and Murphy J in Queensland v Commonwealth
(1977) 139 CLR 585, 610 (‘Second Territorial Senators Case’).
For some prominent examples throughout the High Court’s history, see Tramways
Case (1914) 18 CLR 54; James v Commonwealth (1935) 52 CLR 570; Queensland v
Commonwealth (1977) 139 CLR 585; Uebergang v Australian Wheat Board (1980)
145 CLR 266; Evda Nominees Pty Ltd v Victoria (1984) 154 CLR 311; Cole v Whitfield
(1988) 165 CLR 360; John v Federal Commissioner of Taxation (1989) 166 CLR 417
(not a constitutional decision but one which was relied on in subsequent constitutional
decisions); Street v Queensland Bar Association (1989) 168 CLR 461; Ha v New South
Wales (1997) 189 CLR 465; Lange v Australian Broadcasting Corporation (1997) 189
CLR 520.
(1988) 165 CLR 360.
Ibid 400 (Mason CJ, Wilson, Brennan, Deane, Dawson, Toohey and Gaudron JJ)
(emphasis added).
(1997) 189 CLR 520.
Ibid 554 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ)
(emphasis added) (citations omitted).
372
GAVA — LOSING OUR BIRTHRIGHT: SINGH v COMMONWEALTH
In several cases individual judges and the Court as a whole have indicated that so
strong is the pull of precedent that preferred interpretations of the Constitution can
be overridden by established precedent.13 There are, of course, contrasting views
on what constitutes precedent and how a relevant precedent is to be identified.
Sir Owen Dixon’s practice and belief in these areas provide an example that would
be persuasive to many in the legal profession.14
Dixon clearly saw the judicial role as bounded and believed that the rules and
principles of the law acted as a restraint on judges and limited their capacity to
decide cases other than on what might be called legal grounds. He was not, however,
a ‘dreamer’, to use Hart’s term.15 He did not see judging as a form of divination
with judges merely declaring an already existing law. Neither did he believe in
any form of mechanical jurisprudence with a judge’s role being equivalent to an
umpire who merely applies rules and does not create them.16 Dixon accepted that
there was a creative aspect to strict legalism but that it was a bounded creativity
far removed from the actions of political actors. This creative role was driven by
the ultimate impossibility of mastering the untidy, sometimes incoherent and often
contradictory mass of cases and principles that made up the common law. Dixon also
recognised the limited capacity of any one individual to master this unruly mass of
cases and principles and of being able to identify the ensuing legal consequences of
any particular ruling. Dixon preferred to rely on the arguments of counsel raised in
the context of concrete disputes and avoided the temptation of deciding that which
had not been the subject of argument or was not necessary for the resolution of the
dispute before the court.17
13
14
15
16
17
See, eg, James v Commonwealth (1935) 52 CLR 570, 593 (Dixon J), 603 (Evatt and
McTiernan JJ); Queensland v Commonwealth (1977) 139 CLR 585, 597–601 (Gibbs J),
603 (Stephen J); Re Tyler; Ex parte Foley (1994) 181 CLR 18, 38–9 (McHugh J).
For the Court, see Cole v Whitfield (1988) 165 CLR 360, 400 (Mason CJ, Wilson,
Brennan, Deane, Dawson, Toohey and Gaudron JJ).
But not for Justice Kirby who has argued for a more freewheeling approach to precedent
and legal reasoning in general: see, eg, Justice Michael Kirby, Judicial Activism:
Authority, Principle and Policy in the Judicial Method (Sweet and Maxwell, 2004)
<http://socialsciences.exeter.ac.uk/media/universityofexeter/schoolofhumanitiesand
socialsciences/law/pdfs/Judicial_Activism.pdf>.
H L A Hart, ‘American Jurisprudence through English Eyes: The Nightmare and the
Noble Dream’ (1977) 11 Georgia Law Review 969.
This was the analogy made by the soon to be Chief Justice of the United States Supreme
Court, John Roberts, in his confirmation hearing before the United States Senate in
2005: Charles Babington and Jo Becker, ‘“Judges Are Not Politicians,” Roberts Says’,
The Washington Post (online), 13 September 2005 <http://www.­washingtonpost.com/
wp-dyn/content/article/2005/09/12/AR2005091200642.html>.
See, eg, McDonald v Dennys Lascelles Ltd (1933) 48 CLR 457, 480–1 (Dixon J);
Southern Cross Assurance Co Ltd v Australian Provincial Assurance Association Ltd
(1935) 53 CLR 618, 637 (Rich, Dixon, Evatt and McTiernan JJ); Ballas v Theophilos
[No 2] (1957) 98 CLR 193, 195 (Dixon CJ), cf 207, 209 (Williams J); Cooper v Ungar
(1958) 100 CLR 510, 516 (Dixon CJ, McTiernan, Williams, Fullagar and Taylor JJ);
International Harvester Co of Australia Pty Ltd v Carrigan’s Hazeldene Pastoral Co
(2016) 37 Adelaide Law Review373
Dixon accepted that the answers to legal problems before the courts were not as certain
as mathematical proofs. The common law method of interpreting and applying cases
and the principles to be derived from them helped judges to find and develop the law,
but this method and these principles could not always provide clear answers. The
common law method was not an exact science and this meant that not every judge
would or could come to the same answer. This in turn also meant that the answers
given by any one judge could and should be analysed to see if they did comport best
with the existing materials.18
Once common law legal reasoning is understood in this fashion it becomes apparent
that it is inevitably provisional. There can be no absolutely right answer to contested
legal issues because reasonable practitioners of that method can and do vary in
applying their understanding of a vast and unruly body of legal rules and principles
to an essentially infinite set of fact situations. Indeed, given the immensity of the legal
materials it is unrealistic to expect judges to have a mastery of the law. There are just
too many rules and doctrines with too many competing lines of authority (as well as
inconsistencies) for the law to be reduced to the equivalent of an algorithm.19 Because
of this, common law judging is best seen as a craft tradition rather than a rigorous
intellectual discipline along the lines of, say, philosophy or mathematics. The sheer
mass of unruly precedents and the relentless need to decide cases expeditiously mean
that judges do not have the time and freedom accorded to university academics to try
to solve problems perfectly, irrespective of the time and effort needed.
Nevertheless, Dixon believed that despite these inescapable hurdles the judges were
expected, as far as is humanly possible, to be faithful to the common law tradition,
and their reasoning and decision-making should not be understood as giving licence
to freewheeling choice and innovation.20
In other words, by anchoring a judge’s reasoning to that of his or her predecessors
one avoids the law becoming the personal plaything of individual judges. Reasoning
from these authorities is central and can be contrasted to an opportunistic use of the
authorities to support positions chosen on other grounds. This reasoning should not,
of course, take the form of pettifogging or Jesuitical casuistry but should acknowledge the spirit and not just the letter of the law contained in previous decisions.
It should not take the transparently cynical form attested to in the following anecdote,
proffered by Chief Judge Cuthbert Pound of the New York Court of Appeals:
18
19
20
(1958) 100 CLR 644, 653 (Dixon CJ, McTiernan, Williams, Fullagar and Taylor JJ);
Hall v Busst (1960) 104 CLR 206, 215–17 (Dixon CJ), cf 220–3 (Fullagar J), 231–5
(Menzies J); South Australia v Commonwealth (1962) 108 CLR 130, 146–7 (Dixon CJ),
cf 148–9 (McTiernan J).
Sir Owen Dixon, ‘Concerning Judicial Method’ in Judge Woinarski (ed), Jesting
Pilate: And Other Papers and Addresses (Lawbook, 1965) 152, 157–8.
As Brian Tamanaha has shown, judges have accepted this and have been open about it
for a very long time: see Brian Z Tamanaha, ‘The Realism of Judges Past and Present’
(2009) 57 Cleveland State Law Review 77.
Dixon, above n 18, 158.
374
GAVA — LOSING OUR BIRTHRIGHT: SINGH v COMMONWEALTH
No two cases are exactly alike. A young attorney found two opinions in the New
York Reports where the facts seemed identical although the law was in conflict,
but an older and more experienced attorney pointed out to him that the names of
the parties were different.21
It is the argument of this article that the claim by the majority judges that no earlier
decisions of the High Court determined the particular question before the Court in
Singh is far removed from Dixon’s understanding of precedent and sails perilously
close to that parodied by Chief Judge Pound.
III S ingh — T he F acts
and
D ecision
The plaintiff, Tania Singh, was born in Mildura, Victoria on 5 February 1998. Her
parents, Indian citizens born in India, were neither Australian citizens nor permanent
residents of Australia. They had come to Australia on a Business (Short Stay) visa
(subclass 456) in April 1997 and when that visa expired in July 1997 the p­ laintiff’s
father had lodged an application for a protection visa claiming refugee status for
himself and his family. The family had not departed from Australia since their arrival.
The application for a protection visa was denied and proceedings challenging that
decision had not been determined by the hearing of the plaintiff’s case. That case was
argued on the basis that Tania Singh had Indian citizenship through descent from her
parents although Kirby J questioned whether this was true.22
Section 10(2) of the Australian Citizenship Act 1948 (Cth) (‘Australian Citizenship
Act’) provided that a person born in Australia after 20 August 1986 should be an
Australian citizen by virtue of that birth only if a parent of the person was, at the
time of that birth, an Australian citizen or permanent resident, or if the person had
been ordinarily resident in Australia for 10 years commencing on the date of birth.
By operation of this section the plaintiff was not an Australian citizen. The plaintiff
commenced proceedings for a declaration that s 10(2) was beyond power to the extent
that it required 10 years’ residence from birth in Australia before citizenship would
be recognised, a declaration that she was an Australian citizen by virtue of birth in
Australia and an order restraining the relevant Minister from removing or causing to
remove the plaintiff from Australia.
The Court by a majority of 5:2 (Gleeson CJ; Gummow, Hayne and Heydon JJ in a
joint judgment; and Kirby J; McHugh and Callinan JJ dissenting) refused the claim
for the declarations and an order restraining the Minister from removing the plaintiff
from Australia. The majority decided in the following ways.
21
22
Chief Judge Cuthbert W Pound, ‘American Law Institute Speech of Judge Pound’
(1933) 5 New York State Bar Association Bulletin 265, 267, quoted in Robert A Leflar
(ed), Appellate Judicial Opinions (West Publishing, 1974) 140–1.
Singh (2004) 222 CLR 322, 401.
(2016) 37 Adelaide Law Review375
Chief Justice Gleeson took it as axiomatic that a court, and especially the High
Court, did not operate in a vacuum and was affected by the past.23 But he added that
‘[c]hanging times, and new problems, may require the Court to explore the potential
inherent in the meaning of the words, applying established techniques of legal interpretation.’24 According to Gleeson CJ historical context was an inevitable, indeed,
often necessary aid for the Court’s task of finding the meaning of words in the Constitution.25 For Gleeson CJ the meaning of ‘aliens’ in the Constitution as informed by
the context surrounding the formation of that Constitution did not exclude from its
meaning someone born in Australia in Tania Singh’s position.26
Chief Justice Gleeson’s judgment is noteworthy for the fact that it did not deal in
any substantive manner with the existing authorities on s 51(xix) of the Constitution.
It appears that he assumed that previous decisions of the Court did not either govern
the present litigation or that he found no useful legal reasoning there to guide him
in his decision. It is clear that his interest was not in the authorities dealing with the
meaning of ‘aliens’ but, rather, with a historical argument about what he thought the
word meant in 1900, irrespective of what the High Court had decided about this since
that date.
According to Gummow, Hayne and Heydon JJ ‘aliens’ did not have at the time of
federation a fixed legal meaning ascertainable by reference to the common law but
had a meaning that reflected changes in legal thought in Europe and England.27
These changes meant that a ‘central characteristic of the status of “alien” is, and
always has been, owing obligations to a sovereign power other than the sovereign
power in question.’28 For Tania Singh this had the effect of rendering her an alien
for the purposes of the Constitution with the result that the legislation in question
was within power. Of the effect of previous decisions of the Court these judges
said:
The previous decisions of the Court do not require the conclusion that those born
within Australia who, having foreign nationality by descent, owe obligations to
a sovereign power other than Australia are beyond the reach of the naturalisation
and aliens power.29
23
24
25
26
27
28
29
Ibid 331.
Ibid 335.
Ibid 338.
Ibid 341. Section 51(xix) of the Constitution provides that: ‘The [Commonwealth]
Parliament shall, subject to this Constitution, have power to make laws for the peace,
order, and good government of the Commonwealth with respect to … naturalization
and aliens’.
Singh (2004) 222 CLR 322, 384.
Ibid 383.
Ibid 399.
376
GAVA — LOSING OUR BIRTHRIGHT: SINGH v COMMONWEALTH
Such a perfunctory ‘examination’ of the authorities makes it clear that for these
judges as well, the historical argument about what they thought the word meant in
1900 loomed far larger in their minds than what the High Court had decided about
the meaning of ‘alien’ more than 100 years since federation.
The remaining majority justice, Kirby J, took a different approach to the other
majority judges, but came to the same conclusion that Tania Singh was an alien for
the purposes of the Constitution and, therefore, the legislation in question was within
the Commonwealth’s legislative power under s 51(xix).30 For Kirby J the meaning of
‘alien’, ‘like every other word in the Constitution, is not frozen in whatever meaning
it may have had in 1901.’31 While regard might be had to the framers’ intentions,
theirs was not and should not be the final word on the meaning of the Constitution.32
Since Kirby J understood the legal position in 1900 as divided between those who
favoured nationality by birth and that by descent, he believed it unwise to forever
limit the federal Parliament to one of these understandings. This meant, in practice,
that he favoured an interpretation that would allow the Commonwealth Parliament
the greatest leeway possible in dealing with aliens.33
Justice Kirby, too, did not think that previous cases on the aliens power constrained
him:
In proof of the deeply entrenched notion of a ‘birthright’, deriving from birth on
Australian soil, the plaintiff pointed to numerous judicial observations about the
constitutional idea of alienage in terms excluding persons born in Australia. …
It was conceded that these references were not essential to the decisions then in
question. In none of the cases was the person concerned born in Australia. The
problem now presenting was therefore not specifically addressed.34
Justice McHugh, in dissent, stated that the Constitution was framed within a legal
context that meant that a person born in Australia (with three exceptions not relevant
30
31
32
33
34
Ibid 419.
Ibid 412.
Ibid 412–13.
Ibid 414–15.
Ibid 408 (citations omitted). Needless to say, any such concession by Singh’s counsel
could not, when the very questions before the Court were whether or not she was an
alien and whether the aliens power supported the legislation pursuant to which she
was to be deported, mean that the judges could ignore previous cases which, as this
article will show, should have led to the finding that Singh was not an alien and that
the Act in question, insofar as it treated her as if she were, could not be valid. After
all, as the High Court has made clear in its discussion of precedent (see above n 6
and accompanying text), its ultimate allegiance is to the Constitution, and not to the
concessions made by counsel about the meaning of a constitutional provision.
(2016) 37 Adelaide Law Review377
to Tania Singh)35 could not be an alien for the purposes of the Constitution.36 His
analysis of the case law, going back to Potter v Minahan37 in 1908 to the then present,
showed that the authorities made it clear that someone born in Australia (with the
same three exceptions mentioned above) could not be an alien for the purposes of
the Constitution.38
Justice Callinan agreed that Tania Singh was not an alien for the purposes of the
Constitution:
The conclusion that I have reached accords with the view that prevailed at the
Federal Convention in 1898. It gives rise to a clear and certain rule. That rule
has existed for hundreds of years. … It is not inconsistent with any majority
holdings of this Court. It falls squarely within the language of Gibbs CJ in Pochi
v Macphee, and McHugh J in Re Patterson; Ex parte Taylor.39
Thus, for Callinan J both the context in 1900 and High Court authority affirmed that
Tania Singh, a person born in Australia of non-Australian parents, was not an alien.
To sum up, the majority judges in Singh simply asserted that there were no binding
authorities on the general question of whether a person born in Australia could be an
alien, in contrast to the dissenting judges who discussed and followed the authorities
on that very point. Were the majority correct in their understanding of the authorities dealing with the aliens power?
IV T he A liens P ower
before
P ochi
v
M acphee 40
In Robtelmes v Brenan41 the High Court upheld the Commonwealth’s right to expel
the appellant, a Kanaka brought to Australia, but did not define the term ‘alien’
as it was apparent that since the appellant was born outside Australia and had not
been naturalised, he was an alien.42 So, from early on it was clear that someone
35
36
37
38
39
40
41
42
The three exceptions are as follows: (1) any person whose father was an enemy alien
and who was born within a part of the British dominions that at the time of the person’s
birth was in hostile occupation; (2) any person born within British dominions whose
father was an alien and, at the time of the person’s birth, was an ambassador or other
diplomatic agent accredited to the Crown by the sovereign of a foreign state; and
(3) a child of a foreign sovereign born within British dominions: ibid 365–6.
Ibid 350–66.
(1908) 7 CLR 277 (‘Potter’).
Singh (2004) 222 CLR 322, 368–75 (McHugh J).
Ibid 437 (citations omitted). Pochi v Macphee was decided in 1982 and Re Patterson;
Ex parte Taylor was decided in 2001.
(1982) 151 CLR 101 (‘Pochi’).
(1906) 4 CLR 395.
Ibid 405 (Griffith CJ), 415 (Barton J), 418, 421–2 (O’Connor J).
378
GAVA — LOSING OUR BIRTHRIGHT: SINGH v COMMONWEALTH
born outside of Australia and not of Australian parentage was an alien. But what of
someone born in Australia?
In Potter43 the defendant Minahan was charged with being an immigrant who had
failed a dictation test within one year of his arrival in Australia. Minahan was born
in Australia in 1876 of an Australian mother and a Chinese father. He was taken by
his father to China aged five but returned to Australia after federation. He did not
speak any English.
Potter was a case involving, directly, the immigration power (s 51(xxvii)) but the
analysis in the case so relies on birth in Australia and its consequences that to say
that the case has no bearing on the aliens power (s 51(xix)) is misconceived and
unpersuasive.44 It is important to note the relationship between the immigration and
aliens powers. It might seem redundant to have two powers that seem to overlap but
an appreciation of the consequences of being a part of the British Empire helps to
explain why this choice was made. Both powers were included in the Constitution
because the founders wanted to give the Commonwealth Parliament the power to
restrict entry into Australia of the many millions of non-European peoples who could
not be classed as aliens because they were subjects of the British Crown. The immigration power was included in the Constitution because a power over aliens would
not have allowed the Commonwealth Parliament to pass laws that were aimed, for
clearly racist reasons, at excluding British subjects who were non-Europeans from
entering or remaining in Australia. The interrelationship of the aliens and immigration powers means that to understand either, both have to be examined. Similarly,
the decline of the Imperial nature of British subjecthood and the concomitant rise of
Australian nationality had an effect on both powers with the result that the immigration power has now declined in importance and the aliens power is now used in a way
that would have been possible if Australia had become a fully independent nation in
1901 and had not been part of the British Empire. In other words, the aliens power
now operates in a way that it would have operated at the time of Potter, if at that time
Australia had not been part of the British Empire.45 Thus, the reasoning in Potter is
as applicable to explain the aliens power as it is to the immigration power.
For Griffith CJ birth, not domicile or nationality, was central to the resolution of
the case:
every person becomes at birth a member of the community into which he is
born, and is entitled to remain in it until excluded by some competent authority.
It follows also that every human being (unless outlawed) is a member of some
community, and is entitled to regard the part of the earth occupied by that
43
44
45
(1908) 7 CLR 277.
This is the position of the majority in Singh, who stated that there were no binding
precedents on the matter of birth in Australia and the status of alienage. See also
Tilmouth, above n 3, 203, who argues that ‘Singh is also perhaps difficult to reconcile
with the earlier case of Potter v Minahan’. See also Irving, above n 3, 139.
For a more detailed discussion about this point, see Pillai, above n 3, 581–3.
(2016) 37 Adelaide Law Review379
community as a place to which he may resort when he thinks fit. … At birth he
is, in general, entitled to remain in the place where he is born. … If his parents
are then domiciled in some other place, he perhaps acquires a right to go to and
remain in that place. But, until the right to remain in or return to his place of birth
is lost, it must continue, and he is entitled to regard himself as a member of the
community which occupies that place. These principles are self-evident, and do
not need the support of authority.46
The reasoning here is straightforward. Minahan was an Australian and therefore not
an alien, which meant his return to Australia was not an act of migration, which in
turn meant that the immigration power could not apply to him. Understood in this
fashion Minahan’s birth in Australia and the legal consequences attaching to that
birth are central to Griffith CJ’s reasoning and cannot be classified as obiter dicta.
His decision depends on his analysis of the effect of Minahan’s birth in Australia.
It is difficult, or more accurately impossible, to see a person who is a member of the
Australian community as an alien and Griffith CJ’s reasoning reflects this very view.
For Barton J the immigration power clearly allowed the Commonwealth Parliament
to prohibit the entry into Australia of an immigrant. However, this did not extend to
Australian-born subjects of the King:
I very much doubt whether there is any right to impose [restrictions on entry
and egress] on those who may be termed in one sense its own nationals, who at
birth were part of its self-governing community, and whose liberty in the regard
mentioned is a birthright.47
Thus, for Barton J, too, the fact of birth in Australia meant that Minahan was not
within the immigration power because he was a member of the Australian community
(and hence, as explained above, not an alien). As with Griffith CJ the effect of birth
in Australia was central to Barton J’s reasoning and decision.
Similar sentiments were expressed by O’Connor J:
A person born in Australia, and by reason of that fact a British subject owing
allegiance to the Empire, becomes by reason of the same fact a member of the
Australian community under obligation to obey its laws, and correlatively entitled
to all the rights and benefits which membership of the community involves …48
As with Griffith CJ and Barton J birth was central to O’Connor J’s understanding of
immigration. Minahan did not come within the operation of the Immigration Restriction Act 1901 (Cth) because as a native-born Australian he was not immigrating to
Australia when he returned after a sojourn overseas. After all, if Australians were
not immigrating to Australia when they returned to the country, immigration must
46
47
48
Potter (1908) 7 CLR 277, 289.
Ibid 294 (Barton J).
Ibid 305.
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GAVA — LOSING OUR BIRTHRIGHT: SINGH v COMMONWEALTH
have been an action of non-Australians, which in 1908 meant aliens and non-alien,
non-Australian British subjects. By the 1980s the definition of non-Australians
had been simplified to mean just aliens because the previously existing distinction
between aliens and non-Australian British subjects had disappeared and all non-­
Australians were aliens for constitutional purposes.
Neither of the dissenting judges, Isaacs J nor Higgins J, was prepared to accept that
birth in Australia by itself had the effect of removing Minahan from the operation of
the Act. In other words, the mere fact of birth in Australia did not mean that Minahan
could not be an immigrant.49
Potter is a 3:2 decision that decisively determines that birth in Australia removed
Minahan from the operation of the immigration power in the Constitution. Given
that the immigration power was introduced into the Constitution to remedy the fact
that the aliens power would not, then, allow the Commonwealth to deny entry to
millions of people not born in Australia, it is easy to see that the immigration power
was wider in reach than the aliens power — at that time. If birth in Australia took a
person outside of the immigration power it would similarly take him or her outside
the aliens power.50
It should be noted that the significance of birth for the majority judges, at least,51 in
Potter occurred in a legal climate where there were competing views surrounding
birth and descent as determinants of alienage in the common law and civil law traditions.52 The emphatic nature of the discussion in the majority judgments surrounding
birth in Potter makes it clear that for those majority judges, they accepted that birth,
not descent, was the test for alienage in the Constitution. For the majority judges
in Potter the descent of Minahan was not important. That renders irrelevant any
suggestion that a significant point of difference between Potter and Singh is that
Minahan had at least one parent who was a British subject, which was not the case
for Singh. The reliance on the common law test of birth rather than descent makes
that difference immaterial. It would only be relevant if Potter were held to have been
decided wrongly and it is the argument of this article that it was not and that it was
an authority that the majority in Singh misread and failed to treat seriously.
In R v Macfarlane; Ex parte O’Flanagan53 the plaintiffs, O’Flanagan and O’Kelly,
defended a deportation order made after their arrest for seditious activity. Both
were British subjects born in Ireland who had arrived in Australia in March 1923
49
50
51
52
53
Ibid 308 (Isaacs J), 320–1 (Higgins J).
Sangeentha Pillai does not think that birth was central to the decision in Potter but, in
the face of such explicit comments that it is by the three majority judges, it is difficult
to agree with her conclusion: see Pillai, above n 3, 582.
Justice McHugh in Singh stated that birth was central to all five judges’ reasoning in
Potter: Singh (2004) 222 CLR 322, 342.
Ibid 340–1 (Gleeson CJ), 350–1 (McHugh J), 391 (Gummow, Hayne and Heydon JJ),
413–14 (Kirby J), 437 (Callinan J).
(1923) 32 CLR 518.
(2016) 37 Adelaide Law Review381
and were arrested within a month. Both argued that s 8A of the Immigration Act
1920 (Cth) was beyond power. A majority of the High Court (Knox CJ, Isaacs, Rich
and Starke JJ, Higgins J doubtful) found the section within power. All the majority
judges, except Starke J, accepted that birth in Australia took a person outside the
immigration power.54 Justice Isaacs noted that the immigration power had to have
an extensive reach given the ‘huge gap’ left by the aliens power, which did not cover
British subjects from outside Britain.55 As suggested above, until the growth in the
notion of Australian citizenship and the recognition of British subjects as aliens later
in the 20th century, it made no sense to read the immigration and aliens powers apart.
To understand who was an alien reference had to be made to decisions of the High
Court in both the immigration and aliens powers. Justice Starke differed from the
majority and explicitly endorsed Isaacs J’s view in Potter that birth was not deter­
minative of alien status for the purposes of the Constitution.56 However, Starke J did
not acknowledge that Isaacs J was in clear dissent in Potter.
In Donohoe v Wong Sau57 the defendant was born in Australia of a naturalised,
Chinese-born father and a Chinese mother. She went to China at age six and remained
there until shortly after her marriage to a Chinese resident in Australia and returned
to Australia in 1924. After her arrival in Australia she failed a dictation test and was
convicted and imprisoned for six months. Her conviction was quashed on appeal
and the informant, Donohoe, appealed to the High Court. In deciding whether Wong
Sau was an immigrant for the purposes of the Immigration Act 1920 (Cth), the Court
held that she was58 but then also raised questions about the effect of Potter. Without
mentioning Potter Knox CJ stated that the ‘mere fact’ of being born in Australia did
not prevent a person being an immigrant if after an absence she wishes to return
here.59 This is hardly convincing legal reasoning as Potter stood for the opposite
principle. Justice Isaacs repeated his formulations in Potter, stating that ‘some
doubt has been suggested as to the meaning of that case’.60 What those doubts were
and why this meant that Potter was not to be treated as binding authority was not
explained. Justice Higgins agreed with Knox CJ and Isaacs J but tried to distinguish
Potter on the grounds that Minahan’s father had taken the child’s birth certificate to
China with the child and Minahan’s mother was European.61 The salience of these
points was not explained. Justice Rich stated that Wong Sau was not a member of the
Australian community when she returned to Australia62 but he did not explain why
and neither did he discuss Potter. Finally, Starke J agreed that the appeal should be
54
55
56
57
58
59
60
61
62
Ibid 531 (Knox CJ), 555 (Isaacs J), 575 (Higgins J), 578 (Rich J).
Ibid 556.
Ibid 580.
(1925) 36 CLR 404 (‘Donohoe’).
Ibid 407 (Knox CJ), 407–8 (Isaacs J), 409 (Higgins J), 409 (Rich J), 409 (Starke J).
Ibid 407.
Ibid 407–8.
Ibid 409.
Ibid.
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GAVA — LOSING OUR BIRTHRIGHT: SINGH v COMMONWEALTH
allowed but did not give reasons.63 Donohoe rests very uneasily with Potter and in
the absence of any clear and convincing reasons provides an unsatisfactory challenge
to the authority of the earlier case.
In Ex parte Walsh; Re Yates64 the High Court had to consider a deportation order
made against two unionists who had been born outside of Australia — Walsh had
been born in Ireland but had come to Victoria before federation while Johnson came
to live in Australia in 1910. Both had made their homes in Australia. The Court held
for varying reasons that the two could not be deported from Australia. Since neither
was born in Australia the case is not directly relevant to the problem raised in Singh
but the judgment of Higgins J is noteworthy. He described the effect of Potter as
follows:
All the five members of the Bench agreed on the major premiss — that persons
who are already members of the Australian community are not subject to immigration laws. The only difference was that the majority thought that Minahan
was necessarily a member of the Australian community by reason of birth in
Australia; whereas the minority thought that he had ceased to be a member [by
moving to China to live].65
This recognition of the basis of the decision and of the authoritative status of Potter
by one of the judges in the minority in that very case should not be ignored.
The state of the authorities on the eve of World War II was that in Potter there was a
clear, if narrow, majority for the proposition that someone born in Australia did not
come within the reach of the immigration power. As I have explained above, because
of Australia’s position in the British Empire, the immigration power had to do the
heavy lifting as reliance on the aliens power would not have allowed the Commonwealth government to implement and carry out immigration policies designed to
keep out non-European British subjects. So if, as in Potter, the person in question
was outside the immigration power because of his or her birth in Australia, he or she
would also have been outside the aliens power. Subsequent cases had, in the main,
supported this decision and those few that had not were poorly reasoned.
The first major case involving the aliens power after World War II was O’Keefe v
Calwell66 in 1949. O’Keefe was born in the then Dutch East Indies and was a Dutch
national. She was evacuated to Australia after the Japanese invasion and married an
Australian citizen and became a British subject. The government wished to deport
her as a prohibited immigrant pursuant to s 4 of the Immigration Act 1940 (Cth)
and O’Keefe sought an injunction against the responsible Minister. The High Court
(Rich, McTiernan, Williams and Webb JJ; Latham CJ and Dixon J dissenting) found
that O’Keefe did not come within the terms of the Act. On the constitutional issue of
63
64
65
66
Ibid.
(1925) 37 CLR 36 (‘Ex parte Walsh’).
Ibid 111 (Higgins J).
(1949) 77 CLR 261.
(2016) 37 Adelaide Law Review383
whether the Commonwealth could have validly passed the law all the judges except
Rich and Webb JJ (who did not consider the issue) accepted that the Commonwealth
had power to deport persons who had immigrated and not become members of the
Australian community.67 On the latter point Latham CJ observed that ‘[a] person who
is a member of the Australian community cannot be a prohibited immigrant because
he, when returning to Australia, is not an immigrant: see Potter v Minahan … and
Ex parte Walsh and Johnson; In re Yates …’68
In Ex parte Walsh the applicants were not born in Australia but were considered to
have been absorbed in Australia. But in Potter Minahan was born in Australia and the
majority decided that this made him Australian and outside the scope of the immigration power (and, for the reasons explained above, the aliens power).
Koon Wing Lau v Calwell69 involved habeas corpus writs by five persons who were
being held before deportation. The plaintiffs were Chinese persons who had come to
Australia as wartime refugees and now wanted to remain in Australia. Several had
left Australia and returned before the deportation orders were made. On a claim that
the legislation authorising the deportation was invalid the Court (Latham CJ, Rich,
Dixon, McTiernan, Williams and Webb JJ) found against the plaintiffs and in favour
of validity. Three of these judges, Rich, Dixon and Williams JJ, decided the actions
by relying on the undoubted power of the Commonwealth to legislate for immigrants
who had not become absorbed into the Australian community70 — thus not raising
the issue raised by Singh.
The other three judges ranged more widely and considered the aliens power as well.
On Potter Latham CJ (with whom McTiernan and Webb JJ concurred)71 had the
following to say:
It is argued that Potter v Minahan decided that any person who established a
permanent home in Australia could never thereafter lawfully be treated as an
immigrant into Australia. But in fact the decision in Potter v Minahan related only
to a person born in Australia who was returning to his home in Australia. He did
not enter Australia originally as an immigrant — he was born here. Such a person
upon birth becomes a member of the community and, if he has not abandoned
such membership, and after a temporary absence comes back to the community
to which he already belongs, he is not an immigrant into that community.72
What is important to note here is that the three judges who felt it necessary to consider
Potter made it quite clear that birth in Australia removed a person from the reach of
67
68
69
70
71
72
Ibid 277 (Latham CJ), 287–8 (Dixon J), 290 (McTiernan J), 294 (Williams J).
Ibid 280 (citations omitted). See also Dixon J’s observation to the same effect: at 287.
(1949) 80 CLR 533.
Ibid 569–70 (Rich J), 577 (Dixon J), 587–8 (Williams J).
Ibid 583 (McTiernan J), 593 (Webb J).
Ibid 563 (emphasis in original) (citations omitted).
384
GAVA — LOSING OUR BIRTHRIGHT: SINGH v COMMONWEALTH
the immigration and aliens powers unless that person had abandoned membership
of the Australian community — the reference to being a member of the Australian
community is difficult to understand unless it means that someone born in Australia
is not an alien. It cannot be said that Tania Singh had done anything to abandon the
Australian community before her case came to the High Court.
Wong Man On v Commonwealth73 involved a claim by the plaintiff that, as a person
born in New Guinea in 1916, which was then German territory occupied by British
forces, he was a British subject and not an alien subject to deportation. Justice
Fullagar, before whom the action was heard, held that a person born of alien parents
in enemy territory conquered and occupied during the course of war was not a British
subject and therefore an alien.74 What is significant about this decision is Fullagar J’s
detailed analysis of the difference between annexation or cession or subjugation on
the one hand and military conquest and occupation on the other hand for the purposes
of determining if a person born on the land was an alien. This discussion is important
because it is based on the assumption that place of birth rather than the allegiance
of the parents, all other things being equal, was what determined alienage. This, of
course, is entirely consistent with the majority judgments in Potter.
To sum up, of cases after World War II before Pochi, where the aliens power was at
issue or where it formed part of the reasoning of the judges, almost all the judges
accepted that birth in Australia meant that a person was outside the legislative power
of the Commonwealth to deal with aliens. No case challenged Potter on this issue.
This was to continue until Singh.
V P ochi
and the
A liens P ower
before
S ingh
Pochi was the first of a series of cases that examined the scope of the aliens power
in the context of the growth of the notion of Australian citizenship and the reduced
significance of the status of British subject to Australian citizens. This changing
relation­ship was to cause the High Court some difficulties as it tried to craft a suitable
date to mark when British subjects were no longer automatically considered part of
the Australian community. In Pochi the plaintiff, Luigi Pochi, had been born in Italy
in 1939, had come to Australia in 1959, married here and had become absorbed
into the Australian community. In September 1974 he had applied for a grant of
Australian citizenship, which was approved by the relevant authorities. However, he
was not notified of this and, as a consequence, had not taken an oath or affirmation as
required by the Australian Citizenship Act and had not been granted a certificate of
citizenship. In 1977 Pochi was convicted of supplying Indian hemp contrary to New
South Wales law and in 1978 the Minister for Immigration ordered his deportation.
The plaintiff’s ‘highly technical argument’75 was that the Australian Citizenship Act
had the effect that at the time of the deportation order some persons who were in fact
73
74
75
(1952) 86 CLR 125.
Ibid 130–1.
Pochi (1982) 151 CLR 101, 107 (Gibbs CJ).
(2016) 37 Adelaide Law Review385
British subjects did not have this status under that Act and were therefore aliens for
the purposes of the Migration Act 1958 (Cth) (‘Migration Act’). Pochi did not come
within the range of persons so affected but the Migration Act extended to persons
who were and because, according to the plaintiff, the relevant provisions could not
be severed it was argued that they were invalid because such British subjects could
not be aliens. This would have made the deportation order invalid.
As Gibbs CJ acknowledged, an answer to this argument required an understanding
of the status of a British subject in Australian law and the scope of the aliens power
at a time when the relationship between British subjects and the constitutional notion
of aliens was being reconfigured. Of the former Gibbs CJ said:
At the time of federation, the status of British subjects was governed mainly by
the common law, which applied in both England and the Australian colonies …
The rule of the common law was stated by Blackstone … as follows: ‘Natural-­born
subjects are such as are born within the dominions of the crown of England …’76
As seen above, the majority in Singh neither agreed with this analysis nor saw it as
expressing binding authority. On the scope of the aliens power and how this affected
the plaintiff’s argument Gibbs CJ had the following to say:
This argument proceeds on the assumption that any person who is a British
subject under the law of the United Kingdom cannot be an alien within s 51(xix).
That assumption is incorrect. … If English law governed the question who are
aliens within s 51(xix), almost all Australian citizens, born in Australia, would
in future be aliens within that provision. The absurdity of such a result would
be manifest. The meaning of ‘aliens’ in the Constitution cannot depend on the
law of England. It must depend on the law of Australia. It is true that s 51(xix)
presents some difficulties. Clearly the Parliament cannot, simply by giving its
own definition of ‘alien’, expand the power under s 51(xix) to include persons
who could not possibly answer the description of ‘aliens’ in the ordinary understanding of the word. This question was not fully explored in the present case,
and it is unnecessary to deal with it. However, the Parliament can in my opinion
treat as an alien any person who was born outside Australia, whose parents were
not Australians, and who has been naturalized as an Australian. The plaintiff’s
argument is based on a false assumption and must fail.77
As Gibbs CJ makes clear in this extract and in the rest of his judgment, the definition
of ‘alien’ was central to his analysis of the plaintiff’s submission. It is a definition
that is entirely consistent with the majority’s understanding in Potter of the effect of
birth in Australia on a person’s membership of the Australian community.
As noted above, the majority judges in Singh understood Pochi as only deciding that
a person born outside of Australia, except for some exceptions not relevant to the
76
77
Ibid 107–8.
Ibid 109–10 (emphasis added).
386
GAVA — LOSING OUR BIRTHRIGHT: SINGH v COMMONWEALTH
plaintiff Pochi, was an alien and that because the status of a person born in Australia
did not arise in that case, Pochi’s ratio decidendi did not include the proposition that
birth in Australia removed a person from the reach of the aliens power.78 However,
this view is a misreading of Pochi. As Gibbs CJ made clear, Pochi’s argument did
not deal directly with whether or not he was an alien although Gibbs CJ seemingly
accepted that Pochi was an alien.79 Rather, Pochi’s argument was that the Migration
Act in its general provisions treated as aliens British subjects who were not and could
not be aliens under the Constitution and that because these provisions could not be
severed the Act was invalid — having the effect that it would not then apply to Pochi.
In other words, the attack on the Act was not directly relevant to Pochi and it was the
indirect effect of the decision (and the judges’ reasoning to come to that decision)
that affected Pochi. Pochi was not a decision on whether or not Pochi was an alien;
rather, it dealt with the fundamental issue of whether or not British subjects could be
aliens for the purposes of s 51(xix) and the answer to that question involved a general
discussion about what constituted an alien in the Constitution. That discussion had
to be general because the position of British subjects in Australia went to the very
heart of what it meant to be Australian, politically, socially and, most crucially,
constitutionally. Chief Justice Gibbs’ definition of what constituted an alien was not
aimed at deciding whether or not Pochi was an alien but, instead, had the purpose of
describing what constituted alienage in order to answer the precise question about
the validity of the Migration Act before the Court.
At the same time, while his definition was general, it could not be comprehensive.
Chief Justice Gibbs recognised that one aspect of his definition was incomplete —
what was the position of overseas-born British subjects in Australia and, in particular,
if they could be aliens at what date did this occur? It is clear that Gibbs CJ would not
be willing to accept the reach of the aliens power as merely reflecting the definition
given in Commonwealth legislation. In Pochi the legislation in question dealt with
the very question that he did not want to answer, ie, when did British-born subjects
become aliens under the Constitution? His definition of what constituted an alien
was limited to this extent but was otherwise general and comprehensive. Both his
reference to the common law position on descent and his lack of discussion of Potter
and subsequent cases indicates that he was happy with the then accepted notion that
birth in Australia took one outside the aliens power. Because of this his judgment was
not as narrowly defined as suggested by the majority judges in Singh. Therefore, a
claim that Gibbs CJ’s judgment was obiter dictum insofar as it dealt with a person
born in Australia seriously misreads the legal issue in Pochi and the precise legal
question that the judges had to decide in that case.
Justices Mason and Wilson agreed with Gibbs CJ’s judgment.80 Justice Murphy’s
judgment took a different tack with his attempt, quixotic at the time, to read an
78
79
80
Singh (2004) 222 CLR 322, 400 (Gummow, Hayne and Heydon JJ), 408 (Kirby J).
Chief Justice Gleeson did not discuss this aspect of Pochi in his judgment.
Pochi (1982) 151 CLR 101, 109–10.
Ibid 112 (Mason J), 116 (Wilson J). Justice Aickin died before judgment was delivered
in this case.
(2016) 37 Adelaide Law Review387
American-style Bill of Rights into the Constitution. He was willing to accept that
Pochi, who ‘was born in Italy, of Italian parents and has not been naturalized in
Australia’, was an alien.81 It should be noted that this reflects, in obverse, Gibbs CJ’s
definition of what constitutes an alien. In addition, Murphy J made it quite clear that
children born in Australia of alien parents would be Australian citizens.82
In sum, Pochi did nothing to challenge the then prevailing view that birth in Australia
took one outside the aliens power.83
While Kioa v West84 did not directly deal with the reach of the aliens power, it did lead
to legislative changes to the Migration Act, which in turn has led to some confusion
about the scope of the aliens power. In Kioa two Tongan citizens, Mr and Mrs Kioa,
sought judicial review of deportation orders against them. They had overstayed their
student visa. Review was denied in the Federal Court and in the Full Court of the
Federal Court and the two applicants appealed to the High Court. During this period
their child, Elvina, was born. Through the operation of s 10 of the Migration Act it
was accepted that Elvina was an Australian citizen.
The High Court (Gibbs CJ, Mason, Wilson, Brennan and Deane JJ) held that no administrative law remedies were available to Mr and Mrs Kioa. All the judges noted that
no deportation order could be made against Elvina, although as a practical matter all
accepted that she would accompany her parents back to Tonga if they were deported.85
Kioa is a case that deals with administrative law but the judges clearly accepted
that Elvina was an Australian-born citizen. More importantly, perhaps, so did the
Commonwealth, which did not seek to question her status as an Australian-born
citizen even though it was clearly unhappy with that aspect of the decision. As Kim
Rubenstein has explained, Kioa was the catalyst for a change to the Migration Act so
that children in Elvina Kioa’s and Tania Singh’s situation would have to have been
ordinarily resident in Australia for 10 years before they became Australian citizens if
they were born after 20 August 1986.86 Previously, birth in Australia was sufficient
for them to become Australian citizens.
It is trite law that the change in the Migration Act motivated by Kioa would not of
itself be of any constitutional significance and it is the argument of this article that
both before and after Kioa the case law on the aliens power made it clear that birth
in Australia, with minor and irrelevant exceptions that did not affect Tania Singh,
81
82
83
84
85
86
Ibid 112 (Murphy J).
Ibid 115.
This view about birth and alienage was supported by the leading text on citizenship law in Australia at the time: see Michael Pryles, Australian Citizenship Law
(Lawbook, 1981) 10.
(1985) 159 CLR 550 (‘Kioa’).
Ibid 570 (Gibbs CJ), 574, 588 (Mason J), 604 (Wilson J), 626, 629–30 (Brennan J),
634 (Deane J).
Kim Rubenstein, Australian Citizenship Law in Context (Lawbook, 2002) 91–3.
388
GAVA — LOSING OUR BIRTHRIGHT: SINGH v COMMONWEALTH
took one outside the aliens power. But Kioa also seems to have been seen by some
as indicating why the majority judges in Singh were able to claim that previous cases
did not deal specifically with the issue raised in that case, ie, whether a child born
in Australia of non-Australian parents was an alien. Given that before 1986 such
children would have been considered Australian citizens, it could be argued that it
took until 2004 before the precise question raised by Tania Singh came before the
High Court because it was only after 1986 that it became a practical problem.
Such an argument simply misreads the decisions of the Court both before and after
Kioa and it is the argument of this article that the High Court, both explicitly and
implicitly, had made it clear that a person born in Australia in Tania Singh’s position
was not within the scope of the aliens power. Indeed, far from raising a novel legal
issue, Singh dealt with a question of law that had been settled for many years by the
High Court.
The next significant discussion of the aliens power arose in Nolan v Minister for
Immigration and Ethnic Affairs.87 Nolan was a citizen of the United Kingdom
and a subject of the Queen born in the United Kingdom, who came to Australia
in 1967 and had lived here continuously since then but had not been naturalised.
On 22 September 1985 the Minister made an order for his deportation under s 12 of
the Migration Act. By this time Nolan had lived in Australia for over 18 years, nine
of which he had spent in prison. Nolan challenged the validity of the deportation
order on the ground that in its application to him s 12 was beyond the legislative
power of the Commonwealth.
The High Court (Mason CJ, Wilson, Brennan, Deane, Dawson and Toohey JJ;
Gaudron J dissenting) held that Nolan came within the Act and that even though he
was a British subject this did not prevent him being an alien for the purposes of the
Migration Act.88 Both the plaintiff and the defendants relied on their understanding
of the scope of the aliens power to make their arguments and the majority relied
on their understanding of the aliens power to come to their decision. The majority
reasoned as follows, beginning first with a definition of ‘alien’:
[Alien] means, as a matter of ordinary language, ‘nothing more than a citizen or
subject of a foreign state’: Milne v Huber [(1843) 17 Fed Cas 403, 406]. Thus, an
‘alien’ has been said to be, for the purposes of United States law, ‘one born out
of the United States, who has not since been naturalized under the constitution
and laws’ [Milne v Huber, (1843) 17 Fed Cas 403, 406]. That definition should be
expanded to include a person who has ceased to be a citizen by an act or process
of denaturalization and restricted to exclude a person who, while born abroad, is
a citizen by reason of parentage. Otherwise, it constitutes an acceptable general
definition of the word ‘alien’ when that word is used with respect to an independent country with its own distinct citizenship.89
87
88
89
(1988) 165 CLR 178 (‘Nolan’).
Ibid 184 (Mason CJ, Wilson, Brennan, Deane, Dawson and Toohey JJ).
Ibid 183 (emphasis added).
(2016) 37 Adelaide Law Review389
It should be noted that this comprehensive definition is given in a joint judgment by
six out of seven judges and that, as we shall see, the remaining judge, Gaudron J, did
not disagree with it except for the matter of timing for British subjects. By directly
alluding to the United States Supreme Court’s definition of what constitutes an alien
in their discussion of Gibbs CJ’s definition of ‘alien’ in Pochi it is clear that the
judges were endorsing a definition based on birth. By directly alluding to ‘an independent country with its own distinct citizenship’ the judges were making it clear that
the definition applied to contemporary Australia.
On this understanding of the aliens power Tania Singh could not be an alien.
The majority judges added that this definition would not have applied in 1900:
The word [‘alien’] could not, however, properly have been used in 1900 to
identify the status of a British subject vis-à-vis one of the Australian or other
colonies of the British Empire for the reason that those colonies were not, at that
time, independent nations with a distinct citizenship of their own. At that time, no
subject of the British Crown was an alien within any part of the British Empire.90
As explained above, it was for this reason that a separate immigration power was
included in s 51 of the Constitution — to enable regulation of movement into and
out of Australia of all persons and not just the then narrower range of persons who
were then aliens. But, of course, time has not stood still and since 1900 the Empire
has been transformed into the Commonwealth and the emergence of independent
nations within the Commonwealth rendered obsolete notions of an indivisible Crown.
In Australia a separate Australian citizenship was established by the Nationality and
Citizenship Act 1948 (Cth).91
The majority judges emphasised that this understanding of the aliens power and the
reasoning underpinning it had been recognised in Pochi. According to the majority,
the ‘leading judgment’ was that of Gibbs CJ, with whom two of the other three judges
concurred, and in doing so reproduced that part of Gibbs CJ’s judgment that said that
the aliens power, s 51(xix), gave the federal Parliament the power to ‘treat as an alien
any person who was born outside Australia, whose parents were not Australians,
and who has not been naturalized as an Australian’.92 For the majority Pochi defined
the reach of the aliens power and they rejected the plaintiff’s attempt to reopen that
decision, indicating instead their total agreement with the decision and the reasoning
of the majority in that case.93
So, for the majority judges, the discussion in Pochi was central to a definition of the
aliens power, which was in turn central to the determination of the dispute before
the Court. In other words, the endorsement of Pochi and the definition of ‘alien’
90
91
92
93
Ibid.
Ibid 183–4.
Ibid 185 (emphasis in original) (citations omitted).
Ibid 186.
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GAVA — LOSING OUR BIRTHRIGHT: SINGH v COMMONWEALTH
given by Gibbs CJ in that case lie at the heart of the reasoning and decision of the
majority judges. What of the dissenting justice, Gaudron J?
Put simply, Gaudron J’s difference with the majority was not about Gibbs CJ’s
definition of an alien in Pochi, or at least not with its general application. Rather,
Gaudron J’s point of departure was that the Pochi definition could be read to include
persons who before 1973 were not aliens because they were British subjects. The
year of 1973 was isolated by Gaudron J because in that year the Oath of Allegiance
changed from general allegiance to the Crown to allegiance to the Crown in right of
Australia.94 As we have seen, for the majority this change took place in 1948.95
It is important to highlight the nature of the dispute before the Court, the decisions
handed down and the precise difference between the majority judges and Gaudron J
on the scope of the aliens power. First, the dispute was a dispute about the reach of
the aliens power and whether the plaintiff came within that power. Secondly, the
majority judges made it clear that their decision was one that was based on their
understanding of the reach of the aliens power. In doing so, they endorsed in strong
terms the decision in Pochi and, in particular, the reasoning of Gibbs CJ in that case,
reasoning that had been adopted by the majority in that case. Thirdly, Gaudron J did
not question the correctness of Pochi but rather its application to British subjects who
came to Australia before 1973. The narrowest interpretation of Nolan is that it is a
decision of six judges directly applying, endorsing and explaining Pochi. The widest
interpretation is that all seven judges endorsed Pochi but that six judges believed
that birth outside Australia did not make a British subject an alien for constitutional
purposes if that person arrived in Australia before 1948 but did if the person arrived
after that year, whereas for Gaudron J British subjects not born in Australia could not
be treated as aliens if they came to Australia before 1973.
On any understanding of Nolan the decision cannot support the notion that Tania
Singh was an alien under s 51(xix). The decision is a direct endorsement and explanation of Gibbs CJ’s definition of ‘alien’ in Pochi as meaning that, with some irrelevant
exceptions, birth in Australia would take a person outside the aliens power.
In Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic
Affairs96 the High Court (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron
and McHugh JJ) heard a claim that certain sections of the Migration Act were invalid
as contravening ch III of the Constitution. In a joint judgment Brennan, Deane and
Dawson JJ quoted at length from the judgment of the majority in Nolan where aliens
were described as those not born in Australia or not born of Australian parents.97
Neither Pochi nor birth in Australia was mentioned by Mason CJ, Toohey and
94
95
96
97
Ibid 191.
See above n 91 and accompanying text. As we shall see, the exact date at which these
British-born subjects were to be treated as aliens was to be a continuing source of
controversy.
(1992) 176 CLR 1.
Ibid 25.
(2016) 37 Adelaide Law Review391
McHugh JJ. Justice Gaudron, however, stated that the children (born in Australia)
of aliens entering Australia illegally can be treated as aliens. Her Honour gave no
authorities to support this contention and failed to consider the long line of authority
supportive of the majority judgments in Potter, Pochi and Nolan or, indeed, her own
judgment in Nolan. Instead she referred to s 10(2) of the Australian Citizenship Act,
which provided that a child born in Australia was a citizen only if one of the parents
was Australian or the child had been ordinarily resident in Australia for 10 years from
the time of birth. Although Gaudron J did not explain this reasoning as accepting the
notion that the Commonwealth could by legislation widen or narrow the reach of the
aliens power, it is difficult to see that her reasoning is doing anything else.
Re Patterson; Ex parte Taylor98 raised once again the troublesome question of when
British subjects became aliens under the aliens power. Taylor was born in England in
1960 and came to Australia in 1966 aged six. He did not become an Australian citizen
but was put on the electoral rolls for federal and state elections after he turned 18.
He held a transitional (permanent) visa. He was arrested and was sentenced to a
minimum of three and a half years’ imprisonment for sexual offences. Patterson,
the Parliamentary Secretary to the Minister for Immigration, purported to cancel
Taylor’s visa pursuant to the Migration Act. Taylor commenced proceedings for writs
of prohibition and certiorari in the High Court. The High Court (Gaudron, McHugh,
Kirby and Callinan JJ; Gleeson CJ, Gummow and Hayne JJ dissenting) held that
Taylor was not an alien and that the legislation giving the Minister (or designate in
this case) power to cancel the visa did not apply to him.99
For Gaudron J the central issue concerning the aliens power revolved around when
British subjects born outside Australia became aliens under the aliens power. Her
Honour repeated her concerns, raised in Nolan, that careful attention was needed to
accurately define when British subjects became aliens under the Constitution. It was
that aspect of Nolan that she still found unacceptable. Of Pochi she said this:
What was said in Pochi was that ‘the Parliament can … treat as an alien any
person who was born outside Australia, whose parents were not Australians,
and who has not been naturalised as an Australian’. However, that case was not
concerned to analyse the position of persons who entered this country as British
subjects at a time when they fell outside the definition of ‘alien’ in the Citizenship Act. Nor was it concerned with the question whether, if they were not aliens,
Parliament could legislate to make them so for the purpose of s 51(xix) of the
Constitution.100
In Nolan Gaudron J had indicated that British subjects who had come to Australia
before 1973 were not aliens because up to that date, at least, ‘the criterion for
admission to membership of the community constituting the body politic of
98
99
100
(2001) 207 CLR 391 (‘Patterson’).
Taylor also challenged the validity of the cancellation of the visa on administrative
law grounds and on constitutional arguments about who could cancel such a visa,
grounds that will not be considered in this article.
Patterson (2001) 207 CLR 391, 409 (Gaudron J) (citations omitted).
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GAVA — LOSING OUR BIRTHRIGHT: SINGH v COMMONWEALTH
Australia changed from allegiance to the Crown to citizenship involving allegiance
to the Crown in right of Australia’.101 In Patterson she identified 1987 as the date
at which this had changed.102 This meant that a person such as Taylor who had
arrived in Australia before that date could not be an alien under the aliens power.103
Her Honour’s analysis of the aliens power and Pochi and Nolan show that she was
not disputing the central thrust of Gibbs CJ’s definition of ‘alien’ in Pochi and the
centrality of birth in Australia for that definition. Instead, Gaudron J’s concern was to
show that the constitutional link between Australia and the English Crown, as it had
been transformed in the 20th century, had to be carefully analysed and that British
subjects only became aliens under the Constitution relatively late in that century.
Nothing in her judgment challenges Pochi’s and Nolan’s base assumption about the
relevance of birth in Australia for determining whether a person was an alien or not.
For McHugh J, as for Gaudron J, the central issue in this case was when British
subjects not born in Australia could be considered aliens. Alienage, according to his
Honour, was to be determined by allegiance to the Crown and the ‘core concept of
allegiance was based on jus soli — birth within the territory of the realm’.104 Justice
McHugh accepted that the evolving nature of the relationship between Australia and
the United Kingdom in the 20th century and the development of Australian independence had an effect on the definition of ‘alien’ in the Constitution. But he rejected
Nolan and held that it should be overruled because the judges in the majority had
misunderstood the changes in the relationship between Australia and the United
Kingdom caused by the developing Australian independence.105 As with Gaudron J’s
judgment, it is clear that what McHugh J was concerned with was the way in which
Nolan had included as aliens British subjects resident in Australia who had arrived
here before a certain date: 1973 for McHugh J and 1987 for Gaudron J. Neither
judge showed any dissatisfaction with the general proposition enunciated in Pochi
and confirmed in Nolan that a person born in Australia (subject to narrow exceptions
not relevant to Tania Singh) could not be an alien under the Constitution.
The same concern with the position of British subjects resident in Australia animated
Kirby J’s reasoning and decision:
Had the word ‘alien’ possessed in 1900 the meaning asserted for it in these
proceedings by the respondent there would, logically, have been no need for
a power over ‘immigration’. The aliens power, as applicable to every non-­
Australian subject or citizen, native born or naturalised, would have sufficed
to sustain all conceivable laws on migration or migrants. Migrants, not born in
Australia, unless naturalised, would forever be ‘aliens’ and subject to federal
regulation, including expulsion, on that ground alone.106
101
102
103
104
105
106
Nolan (1988) 165 CLR 178, 191–2.
Patterson (2001) 207 CLR 391, 410 (Gaudron J).
Ibid 410–12.
Ibid 429 (McHugh J).
Ibid 421.
Ibid 483–4 (emphasis added) (citations omitted).
(2016) 37 Adelaide Law Review393
For Kirby J the problem posed by Pochi and Nolan was that they were both over­
inclusive because they added British subjects born in the United Kingdom to an
otherwise appropriate test. Such subjects were, according to Kirby J, ‘treated
by Australian law as members of a special class of Australians’ whose status by
1987 might have been even considered ‘anomalous’.107 But as Kirby J was willing
to acknowledge, the constitutional relationship between Australia and the United
Kingdom had changed and this meant that Kirby J accepted that ‘citizens of the
United Kingdom, coming to Australia after May 1987, might be regarded as “aliens”
for constitutional purposes’.108 Justice Kirby chose May 1987 as the appropriate
cut-off point because, to him, the coming into effect of the changes to the Australian
Citizenship Act 1973 (Cth), which deleted all references to the status of British
subject, was the culmination of legislative changes that gave effect to the changing
constitutional relationship between Australia and the United Kingdom.109 Nothing
in Kirby J’s judgment shows any dissatisfaction with Gibbs CJ’s definition of the
constitutional term ‘alien’ other than that it could not include British-born subjects
of the Crown who had come to live in Australia before May 1987. This, of course, is
not relevant for determining whether Tania Singh was an alien.
Justice Callinan agreed, in general terms, with the reasoning of McHugh and
Kirby JJ110 and made it clear that he supported Gibbs CJ’s definition of what constituted an alien in Pochi, noting that when Pochi was decided the Migration Act
contained a definition that excluded a British subject from its operation.111
Patterson considered serious issues surrounding who were and who were not aliens
under the Constitution. But these issues did not surround the base assumption dating
back to Potter and reaffirmed in Pochi and Nolan that birth in Australia meant that
you could not be an alien.
Re Minister for Immigration and Multicultural Affairs; Ex parte Te112 involved
claims by persons born in Cambodia and Vietnam who had arrived in Australia from
their countries of birth aged 16 and 13 respectively. Both were granted permanent
resident status but neither took up Australian citizenship. Both were subsequently
imprisoned for lengthy periods and both were subject to deportation from Australia
pursuant to decisions made by the Minister. Both claimed that because they had
become absorbed into the Australian community neither was an immigrant nor an
alien for which laws could be passed justifying their deportation from Australia.
In essence both relied on Patterson as having overruled Nolan with the effect that
alien status was to be defined by allegiance, which was evidenced by the granting
of permanent protection visas and their consequent absorption into the Australian
107
108
109
110
111
112
Ibid 488.
Ibid 495.
Ibid 485–7.
Ibid 518–19.
Ibid 516.
(2002) 212 CLR 162 (‘Te’).
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GAVA — LOSING OUR BIRTHRIGHT: SINGH v COMMONWEALTH
community. The High Court disagreed, holding that the impugned laws were valid in
their application to the applicants because they were supported by the aliens power.
On the reach of that power and the effect of Patterson the judges made it clear that
that case was concerned with the special position of British-born subjects of the
Crown and had not altered the definition of ‘alien’ given by Gibbs CJ in Pochi.
Chief Justice Gleeson acknowledged that it ‘was the historical relationship between
Australia and the British Empire, and the status of British subjects, which gave rise
to the issue in Patterson’.113 Once understood in this fashion the effect of that case
on Pochi and Nolan was confined to a special and diminishing class of persons.
The Chief Justice was clear as to the effect of these two cases:
In Pochi, Gibbs CJ said that, for the purposes of s 51(xix), Parliament can treat
as an alien ‘any person who was born outside Australia, whose parents were not
Australians, and who has not been naturalised as an Australian’. … In Nolan,
six Justices of this Court approved that statement, and treated as an acceptable
definition of the term ‘alien’, as adapted to Australia, a statement by a United
States court that … an alien is ‘one born out of the United States, who has not
since been naturalised under the constitution and laws’.114
Patterson, according to Gaudron J, was a case that dealt specifically with the special
position of British subjects from the United Kingdom and, in particular, when they
could be regarded as aliens.115 For Gaudron J ‘the notion of “alien” is and always
has been linked with a person’s place of birth.’116 Further, according to her Honour
an alien-born person cannot ‘acquire the status and entitlements that attach to a
person who acquires membership of the Australian body politic by birth except in
accordance with statute’.117 The applicants here were born out of Australia and were
therefore aliens.118
According to McHugh J an alien was a person ‘born out of Australia of parents
who were not Australian citizens and who has not been naturalised under Australian
law’.119 He described the effect of Patterson as limited: ‘The majority Justices in
Re Patterson overruled Nolan to the extent that it purported to state an exclusive test
of alienage. It overruled that case to the extent that its general proposition applied to
certain non-citizen British subjects’.120
113
114
115
116
117
118
119
120
Ibid 172.
Ibid 169 (citations omitted).
Ibid 178.
Ibid 179.
Ibid 180 (emphasis added).
Ibid 179.
Ibid 185.
Ibid 188 (emphasis added).
(2016) 37 Adelaide Law Review395
Justice Gummow defined an ‘alien’ as ‘a person born outside Australia, whose parents
were not Australians, and who has not been naturalised as an Australian. This was
decided in Nolan v Minister for Immigration and Ethnic Affairs.’121 He also noted
that Patterson was of doubtful authority and was happy to apply Pochi and Nolan.122
Justice Kirby’s judgment contains a careful examination of the High Court’s treatment
of the aliens power. He reproduced Gibbs CJ’s definition of ‘alien’ in Pochi and then
explained that given Pochi’s birth in Italy it was not necessary in Pochi to consider
in depth the position of British subjects.123 Justice Kirby’s analysis of Nolan and
Patterson led him to the following result:
The principle established by [Patterson] does not avail either of the present
applicants. Neither was a ‘natural born subject’ of the Crown. Still less was
either within the category of persons admitted to Australia as migrants who were
British subjects (or citizens of the United Kingdom) before 1 May 1987. …
However, the important question presented by the present proceedings is whether,
one clear exception having been established to the dichotomy … favoured by
this Court’s earlier reasoning in Pochi (as well as the majority in Nolan and
the minority on this point in [Patterson]) a further category of exception to the
‘aliens’ power exists in respect of other non-citizens, which is broad enough to
encompass the applicants.124
The answer to this question was no. The ‘special association with the Australian
body politic’ to which the applicant in Patterson could appeal to was a result of
fundamental aspects of ‘Australia’s history, constitutional arrangements and earlier
legislation.’125
For Hayne J the alien status of the applicants was clear. In responding to one
applicant in language that applied to the other he said: ‘The prosecutor was born
outside Australia to parents neither of whom was then an Australian. He has never
been naturalised as an Australian. He is, therefore, an “alien” as that expression is to
be understood in s 51(xix) of the Constitution.’126
The authority provided to support this definition is Nolan, where the joint judgment
cites, quotes and explains the definition given by Gibbs CJ in Pochi.127
121
122
123
124
125
126
127
Ibid 194 (citations omitted).
Ibid 200.
Ibid 206 (Kirby J).
Ibid 212.
Ibid 216.
Ibid 219 (Hayne J) (citations omitted).
Nolan (1988) 165 CLR 178, 185 (Mason CJ, Wilson, Brennan, Deane, Dawson and
Toohey JJ).
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GAVA — LOSING OUR BIRTHRIGHT: SINGH v COMMONWEALTH
Justice Callinan noted that the applicants were not British non-citizens who had
entered Australia before 1987 and reaffirmed Blackstone’s description of the natural
allegiance due because of birth in the King’s dominions.128
Te involved an attempt to extend the reasoning in Patterson to the plight of two people
who, unfortunately for them, were not British-born subjects of the Crown living
in Australia. The judges all agreed that this could not be done. All the discussion
in Te revolved around what amounted to the exception to the general definition of
‘alien’ given by Gibbs CJ in Pochi. None of the judges in Te challenged Gibbs CJ’s
definition of what constituted an alien and all supported it — as long as the special
position of British-born subjects of the Crown living in Australia was recognised.
What this special position was, of course, was in dispute. But what is clear is that Te
only confirms the longstanding High Court acceptance of birth in Australia taking a
person outside the range of the aliens power.
The last major case concerning the aliens power before Singh was Shaw v Minister
for Immigration and Multicultural Affairs.129 Shaw was born in the United Kingdom
in 1972 and came to Australia with his parents in 1974 aged 18 months. His parents
were citizens of the United Kingdom and British subjects who entered Australia on a
permanent visa. Shaw did not apply for and did not obtain Australian citizenship or
a passport. He was not eligible to vote and had not left Australia since arriving as an
infant. In 1998 he was convicted of several offences and sentenced to seven and a half
years’ imprisonment. In 2001 the Minister purported to cancel Shaw’s visa pursuant
to s 501(2) of the Migration Act. In the High Court Shaw questioned whether that
section was within the legislative powers of the Commonwealth to the extent that it
authorised the Minister’s cancellation of Shaw’s visa. The High Court (Gleeson CJ,
Gummow and Hayne JJ in a joint judgment, Heydon J agreeing; McHugh, Kirby and
Callinan JJ dissenting) held that Shaw had entered Australia as an alien and remained
an alien when the Minister cancelled his visa and, therefore, s 501(2) could validly
apply to him.
For Gleeson CJ, Gummow and Hayne JJ the starting point of their analysis was as
follows:
In Cunliffe … Toohey J, referring to Nolan … said that:
an alien can generally be defined as a person born out of Australia of
parents who were not Australian citizens and who has not been naturalised
under Australian law or a person who has ceased to be a citizen by an act or
process of denaturalisation.130
Shaw’s argument was that this test could not apply straightforwardly to him as
he was a British subject. The judges explained that once it was accepted that the
128
129
130
Te (2002) 212 CLR 162, 226–7.
(2003) 218 CLR 28 (‘Shaw’).
Ibid 36 (citations omitted).
(2016) 37 Adelaide Law Review397
Constitution contemplated changes in the constitutional relationship between the
United Kingdom and Australia it became ‘impossible to read the legislative power
with respect to “aliens” as subject to some implicit restriction protective from its
reach those who are not Australian citizens but who entered Australia’ as British
subjects or citizens.131 They held that the present case
should be taken as determining that the aliens power has reached all those persons
who entered this country after the commencement of the [Australian Citizenship
Act] on 26 January 1949 and who were born out of Australia by parents who were
not Australian citizens and who had not been naturalised.132
It is clear that the judgment relies on Pochi and Nolan for a general definition of what
constitutes an alien and then proceeds to deal with the vexed question of how British-­
born subjects resident in Australia come (or do not come) within that definition.
This vexed issue was also at the heart of McHugh J’s judgment. After an analysis of the
cases dealing with the evolution of the constitutional relationship between Australia
and the United Kingdom, McHugh J explained that his best reading of that evolution
was that it was not until March 1986 with the coming into force of the Australia
Acts133 that the evolutionary process by which the term ‘subject of the Queen’ in
s 117 of the Constitution changed to ‘subject of the Queen of Australia’. This meant
that ‘[u]ntil that date, therefore, Australians, born or naturalised, and British citizens
permanently residing in Australia owed their allegiance to the “Crown of the United
Kingdom of Great Britain and Ireland”’ with the consequence that those people were
not aliens under the Constitution.134 This meant, of course, that Shaw was not an
alien and that the law could not apply to him.
Nothing in this argument suggests any change from his views in Patterson and Te,
which had emphasised the centrality of birth in defining who was an alien and had
supported the Pochi definition given by Gibbs CJ.
The same concern with the vexed question of British-born subjects of the Crown
was at the heart of Kirby J’s judgment. He was at pains to show that an over-­general
application of Gibbs CJ’s definition of ‘alien’ in Pochi had led to a too simple
dichotomy between birth in and outside of Australia as the test for alienage. It was
too simple because this included those British-born subjects of the Crown resident in
Australia who, until the evolutionary process had changed the nature of the constitutional relationship between Australia and the United Kingdom, were not aliens
under the Constitution. It was the timing of this change that had caused angst in
Nolan, Patterson and, indirectly, Te and which was now before the Court again.135
131
132
133
134
135
Ibid 42.
Ibid 43.
Australia Act 1986 (Cth) and Australia Act 1986 (UK).
Shaw (2003) 218 CLR 28, 48 (McHugh J) (emphasis added).
Ibid 53–7 (Kirby J).
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For Kirby J the applicable date was March 1986.136 On the general question of
what defined an alien he was happy to paraphrase Gibbs CJ’s test in Pochi with its
reference to birth in Australia or birth outside of Australia to Australian parents or by
naturalisation. For Kirby J an alien
refers to someone who is outside the Australian community and its funda­mental
loyalties, that is, outside Australian nationality. Applied today and for future
application, I would accept that such community and such loyalties are marked
off by citizenship of birth and descent, and citizenship by naturalisation. Indeed,
so much is accepted by all members of the Court.137
The British-born subject problem was the issue for Callinan J as well. What needed
determination was when such subjects who had not obtained formal Australian
citizen­ship were to be regarded as aliens.138 His analysis led him to the same result
as McHugh and Kirby JJ: March 1986 with the coming into force of the Australia
Acts.139 Justice Callinan’s criticism of the majority judgment in Nolan did not
concern the general definition of what was an alien given by the majority but, rather,
its over- inclusiveness, which resulted in defining British-born subjects as auto­
matically aliens.140 There is nothing in his judgment that shows him resiling from his
support in Patterson of Gibbs CJ’s definition in Pochi.
For Heydon J the course of argument in Shaw ‘postulated the axiomatic correctness
of the proposition that in 1901 British subjects were not aliens, and concentrated on
the question of when and how the change occurred.’141 He was not happy with this
assumption:
It is not in fact self-evident that from 1 January 1901 all British subjects were not
aliens, and inquiry into a subsequent date on which, or process by which, they
became aliens tends to proceed on a false footing so far as it excludes the possibility that on 1 January 1901 some of them were aliens.142
While not of direct relevance in determining whether Tania Singh was an alien, this
statement does show that Heydon J was willing, maybe even eager, to go back to
square one and see what the term ‘alien’ meant in 1901.
Shaw represented no challenge to the prevailing orthodoxy that, apart from the
special position of certain British-born subjects, birth in Australia took a person
outside the aliens power.
136
137
138
139
140
141
142
Ibid 61–7.
Ibid 61.
Ibid 80 (Callinan J).
Ibid 80–5.
Ibid 80–1.
Ibid 87.
Ibid.
(2016) 37 Adelaide Law Review399
VI C onclusion
As shown above, it is clear that since its early days the High Court has consistently
and clearly stated that birth in Australia would take a person outside of the operation
of the aliens power, with exceptions that were not relevant in Singh. In 1908 Potter
established that birth in Australia made one a member of the Australian community
and, thus, outside the aliens power, and this was confirmed in subsequent cases.
In 1982 the High Court confirmed in Pochi the views of the majority in Potter that
birth in Australia rendered a person a member of the Australian community. It is true
that Potter involved the immigration power but, as was explained above, given the
position of Australia within the British Empire, laws to control entry into Australia
would not cover a large percentage of the world’s population because so much of
this population was within the Empire and these people were not aliens under the
common law. Reliance on the aliens power would not have supported laws intended
to control entry into Australia of all persons outside the Australian community.
But as has also been made clear above, the decision in Potter only makes sense if the
decision was based on the notion that Minahan was not an alien but, rather, a member
of the Australian community.
The position when Pochi was decided was clear. Birth in Australia took a person
outside the aliens power. Pochi was decided at a time when the Empire no longer
existed and Australia’s control of entry into Australia was no longer confined by
understandings of alienage derived from and affected by notions of empire. The
majority decision in Pochi simply affirmed, directly, what Potter had held and
subsequent cases had decided indirectly — that a person born in Australia was a
member of the Australian community and therefore not an alien. The Court in Nolan
clearly and emphatically explained that birth, with exceptions not relevant for Tania
Singh, removed a person from the scope of the aliens power.
However, if, contrary to the analysis of Potter made in this article, the meaning of
‘alien’ in the Constitution was not settled by the time Pochi was heard, the decision
in Pochi and the cases that followed that accepted its reasoning did establish a strong
line of precedent that should have bound the Court in Singh. The majority in Pochi
was made up of distinguished judges and the reasoning concerning who was an alien
was necessary and central to the decision. Pochi is a clear authority for the proposition that a person born in Australia cannot be an alien. After Pochi the High Court
affirmed several times that Gibbs CJ’s definition of what constituted an alien for
the purposes of the Constitution was correct. Nolan made it quite clear that birth
in Australia took one outside the aliens power and in doing so reaffirmed the High
Court’s appropriation of the United States Supreme Court doctrine that birth in the
United States meant that one could not be an alien in that country. What disputes did
take place over the meaning of the aliens power after Pochi concerned the position of
British-born subjects of the Crown living in Australia and identification of the date
when this status ceased to take those persons outside the range of people who were
aliens in Australia. Pochi and the cases that supported the definition of ‘alien’ given
there in turn supported what the High Court had been saying since 1908 about birth
and alienage in Australia.
400
GAVA — LOSING OUR BIRTHRIGHT: SINGH v COMMONWEALTH
The legal issue before the judges in Singh was therefore a familiar one. From the
first days of federation the High Court was faced with a choice between two legal
positions, and this dichotomy was one that was common to all major legal systems.
Was birth or descent to be the test for membership in the Australian community?
These were, indeed, dichotomous choices and to choose one meant, in practice and
probably logic as well, to deny the other. As judges made clear over the 20th century,
the choice consistently made by the High Court was in favour of birth. This was a
rejection of descent of lineage. It was not one choice made from a range of possibili­
ties. If it had been then the argument that the legal issue before the Court in Singh
was a novel question would have more purchase. But when the choice is between two
well-known legal propositions and the Court has consistently chosen one over the
other it is difficult to see how such a choice involves a question that is novel.
To argue, as did the majority judges, that the previous cases did not deal with the
precise issue raised in Singh was not an exercise in analysing and applying precedent.
It was, instead, an unfortunately cynical manipulation of the facts and issues raised in
that case to make it appear that the issue had not been considered in the High Court.
The majority judges seemed determined to correct what they saw as a century of legal
error and were not prepared to allow a century of precedent to stand in their way.
As I have argued above, it is manifest that the issue had been dealt with at length
over nearly a century of High Court decisions. It must not be forgotten that two of the
judges who decided Singh, McHugh and Callinan JJ, were of this belief. Common
courtesy, if nothing else, demanded of the majority judges serious analysis of the line
of authority relied on by their fellow judges.
Given the legal skills and knowledge of the majority judges we must accept that in
Singh the majority judges did not care about the authorities dealing with the constitutional meaning of ‘alien’ in Australia. It is difficult to understand their perfunctory
‘analysis’ of the earlier cases in any other light.
Rather, the majority judges seemed determined to decide the constitutional question
before them as if they were the first judges to consider the matter. The majority
judgments are based on the idea that the role of the High Court is to determine the
meaning of the Constitution without any input from earlier judges. In other words,
this was the reasoning of legalist activist judges who placed their views above that
of judges before them. The majority judges do not, of course, say this but the fig leaf
presented by claiming that there were no authorities on the question before them
shows that this is what they were doing. It should go without saying that the majority
judges were not unaware of the centrality of precedent and authority in Australian
law. Indeed, several of them had made a point previously in extrajudicial writing
about the importance of precedent and its role in legal reasoning and development.143
143
See Chief Justice Murray Gleeson, ‘Judicial Legitimacy’ (2000) 20 Australian Bar
Review 4; Justice Kenneth Hayne, ‘Letting Justice Be Done Without the Heavens
Falling’ (2001) 27 Monash University Law Review 12; Justice Dyson Heydon, ‘Judicial
Activism and the Death of the Rule of Law’ (2004) 10 Otago Law Review 493.
(2016) 37 Adelaide Law Review401
It might be argued that the majority’s decision could be defended by remembering
that the High Court is not bound by its own decisions and that it was proper in Singh
to look again at what ‘alien’ meant in Australian law. If we apply the standards that
have governed the High Court since its creation and which have been elaborated
above we can see that the High Court has consistently said that a previous case will
only be overruled with good reason, where important constitutional issues are at
stake, that overruling is not something that is to be done lightly and that the Court
would be likely to do so when there was confusion and contradiction in the authorities in the area in question.144
It is difficult to see what would be an important reason, constitutional or otherwise,
that would have justified overturning nearly a century of precedent.145 No evidence
was provided that Australia was being swamped by aliens giving birth here, as
so-called ‘anchor babies’ — the available evidence was to the contrary, as shown by
Kirby J.146 As a purely historical exercise it might have been worthwhile showing
that common perceptions about the understanding of who was an alien in 1900
were wrong. But could this historical reassessment be of constitutional importance
or necessary? Surely not, as the Constitution will work (and has worked) perfectly
well with the then prevailing assumption about birth determining alienage. Was there
confusion and contradiction in the authorities on the aliens power? No. As shown
by my analysis of the cases involving the aliens power, it is clear that there was
no confusion or contradiction in the authorities other than on the limited question
of when British-born subjects of the Crown became aliens for the purposes of the
Constitution. On the central question of who was an alien, Potter, Pochi and Nolan
stood unchallenged until Singh. So, even if the judges had thought that the issue
of who constituted an alien might be revisited, it is clear that the High Court’s own
practice dealing with overruling would not have sanctioned overruling Potter, Pochi
and Nolan.
Does all this matter? Well, it matters for Tania Singh, a young girl whose right to live
in Australia was taken away because of the desire of the majority judges in Singh to
rewrite our understanding of the aliens and immigration powers. It also matters when
governments start advocating the stripping of citizenship from some Australians.
One hundred years of accepted law that birth in Australia made one an Australian is
too important a right to be set aside so cavalierly. Singh was incorrectly decided and
something should be done about that.
144
145
146
See above nn 6–21 and accompanying text.
Jeffrey Goldsworthy’s recent discussion of the appropriateness of covert judicial law
has some salience to my analysis of the reasoning of the majority judges in this case.
Even on his analysis, however, which permits such subterfuge in ‘extreme’ cases, the
reasoning and decision of the majority judges in Singh would not pass his standard
as the facts do not raise an ‘extreme’ case: see Jeffrey Goldsworthy, ‘The Limits of
Judicial Fidelity to Law: The Coxford Lecture’ (2011) 24 Canadian Journal of Law
and Jurisprudence 305, 321.
Singh (2004) 222 CLR 322, 410 n 392.
Dan Hunter and Suzannah Wood*
THE LAWS OF DESIGN IN THE AGE OF
MECHANICAL REPRODUCTION
A bstract
This article provides a cultural and historical account of how various
laws that relate to design developed, from the 17th through 20th centuries,
through a study of their interactions with the furniture design industry.
The article examines the complex development of intellectual property
laws that apply to furniture design, and demonstrates how the furniture
design craft (and later, industry) relied on different facets of the intellectual property system at different stages in its development. It demonstrates
how the industry shifted intellectual property regimes as a response to
the absence of protection within design rights for the modernist furniture
style of the 20th century. From these studies, the article demonstrates how
the design industry’s claim for increased protection flows from the idea
that there is a protectable ‘aura of authenticity’ around iconic designs — a
claim that is largely indefensible and provides little basis for expanded
legal protection.
I I ntroduction
T
he intellectual property laws relating to design are recondite and confusing in
a multiplicity of ways.
Although there is a specific regime that is called ‘design rights’, every intellectual property regime can be, and has been, applied to various aspects of design.
Many designed objects are covered by laws relating to copyright, trade mark, and
patent, leading to a wide variety of different types and periods of protection. In a
range of countries, objects as diverse as table lamps1 and the jewellery designs of
*
1
Professor Dan Hunter is a Professor of Law and the Foundation Dean of Swinburne
Law School. Suzannah Wood is a lawyer at Studio Legal, Melbourne. Funding for this
research was provided in part by a Queensland-Smithsonian Research Fellowship,
awarded to Hunter. Thanks go to the librarians at the National Museum for American
History (Washington, DC) and the Cooper-Hewitt Design Museum (New York,
NY) for their excellent research assistance. Thanks also to Lionel Bently, Kathy
Bowrey, Claudy Op den Kamp, Megan Richardson, Amanda Scardamaglia, Stina
­Teilmann-Lock, and the anonymous journal reviewers for their thoughtful comments
on earlier drafts.
Mazer v Stein, 347 US 201, 460 (1954).
404
HUNTER AND WOOD — THE LAWS OF DESIGN
Gucci, Cartier, and David Yurman have been held to be protected by copyright,2 as
has the Imperial Stormtrooper helmet.3 The Lego mini-figure is covered by trade
mark registrations in Europe;4 just like the woven leather pattern of Bottega Veneta
handbags,5 and the dripping wax seal on Maker’s Mark bourbon in the US.6 Even
the patent system is implicated: the design of Croc shoes7 and some elements of the
iPhone interface are currently protected by US patents (to name but two).8
Aside from copyright, patent and trade mark laws, there is a specific intellectual
property regime that is variously called (depending on the jurisdiction) ‘design rights’,
‘registered design’, or ‘design law’.9 This regime typically seeks to protect the design
of three-dimensional forms, or the application of ornamentation applied to these
objects. Notwithstanding the Hague Agreement Concerning the Inter­national Registration of Industrial Designs,10 which sought in part to harmonise design protection,
the law’s application is remarkably idiosyncratic and many countries use very different
approaches to the protection of design.11 In Australia, the registered design rights
2
3
4
5
6
7
8
9
10
11
Yurman Studio Inc v Castaneda, 591 F Supp 2d 471 (SD NY 2008).
In the US, at least, although not in the UK: Lucasfilm Ltd v Ainsworth [2012] 1 AC 208
(noting a 2006 decision in the District Court, Central District of California, finding
for Lucasfilm against Ainsworth, but finding this judgment unenforceable in the UK,
and holding that the helmet is not a sculpture for the purposes of c 48, s 4(2) of the
Copyright, Designs and Patents Act 1988 (UK)).
Best-Lock (Europe) Ltd v Office for Harmonisation in the Internal Market (Trade
Marks and Designs) (Court of Justice of the European Union, T-395/14, 16 June 2015).
Re Bottega Veneta International Sarl (Trademark Trial and Appeal Board, Case
No 77219184, 30 September 2013).
Maker’s Mark Distillery Inc v Diageo North America Inc, 679 F 3d 410 (6th Cir 2012).
US Patent No 6,993,858 (issued 23 May 2003); US Design Patent No D517,789 (issued
23 June 2003). See generally Crocs Inc v International Trade Commission, 598 F 3d
1294 (Fed Cir, 2010) (interpreting claim construction standards for design patents).
Apple Inc v Samsung Electronics Co, 678 F 3d 1314 (Fed Cir, 2012).
A definitional note: in this article we will talk about the multiple forms of intellectual property that may apply to design as the ‘design laws’ or the ‘laws of design’.
When we use the terms ‘design law’ or the ‘law of design’ (with a single ‘s’) we
refer to the single intellectual property regime called, depending on the jurisdiction,
a ‘design right’, ‘design patent’, ‘registered design’, and so on. Design laws encompass
the design right/registered designs, as well as copyright, patent, trade mark, unfair
competition, and other intellectual property laws. We will make it clear when we
are only referring to the narrow design law. Also, for the sake of simplicity, we will
use the Anglo-Australian form of ‘trade mark’, rather than the North American form
‘trademark’, even when referring to US marks.
Opened for signature 6 November 1925, 74 LNTS 328 (entered into force 1 June 1928)
(‘Hague Agreement’); The Geneva Act (1999) of the Hague Agreement Concerning
the International Registration of Industrial Designs, opened for signature 6 November
1925, 74 LNTS 328 (entered into force 1 June 1928).
Indeed it is even more complicated than this. Various other international agreements
provide protection for aspects of ‘applied arts’ and industrial designs, further
complicating a maze of overlapping protections. See, eg, Berne Convention for the
(2016) 37 Adelaide Law Review405
system protects the visual appearance of a manufactured object, and the rights granted
are only for five years, with a possible renewal for an additional five years.12 These
rights are granted only over new and distinctive designs, a much stricter requirement
for protection than that of copyright law, whose threshold for protection — original
authorship — is notoriously easy to reach.13 In the US, designs are part of patent law,
and these rights are granted over novel ornamental features, industrially applied.14
Within Europe, the Designs Directive requires sui generis protection by member
states for a much larger range of design aspects, notably ‘the appearance of the whole
or a part of a product resulting from the features of, in particular, the lines, contours,
colours, shape, texture and/or materials of the product’.15 However, in keeping with
the approach taken in Australia, multiple forms of protection are also available
within Europe. In England and Denmark, for example, protection of the copyright
work underlying the design is also available.16 Finally, numerous jurisdictions allow
for ‘cumulative’ protection for design, which means that protection of a given design
by, say, copyright, does not preclude protection by a registered design, as well as a
patent, trade marks, unfair competition laws, and so forth.
There is, then, no bright-line legal conception of what encompasses design laws or
designs law.17 Yet, despite this — or perhaps because of it — design represents a
significant front in the war over intellectual property protection.18 Design law has
been the basis of huge and controversial damages wins in recent times,19 and calls
12
13
14
15
16
17
18
19
Protection of Literary and Artistic Works, opened for signature July 1967, 828 UNTS
222 (entered into force 29 January 1970), arts 2(7), 7(4); Paris Convention for the
Protection of Industrial Property, opened for signature 20 March 1883, 828 UNTS
306 (entered into force 26 April 1970), art 5 quinquies; Marrakesh Agreement Establishing the World Trade Organisation, opened for signature 15 April 1994, 1867
UNTS 154 (entered into force 1 January 1995), annex 1C, arts 25, 26 (‘Agreement on
Trade-Related Aspects of Intellectual Property Rights’).
Designs Act 2003 (Cth) s 5. For a fuller discussion of the Australian registered design
rights system, see section II below.
Ibid s 15.
See generally Dan Hunter, The Oxford Introductions to US Law: Intellectual Property
(Oxford University Press, 2012) ch 3.
Directive 98/71/EC of the European Parliament and of the Council of 13 October
1998 on the Legal Protection of Designs [1998] OJ L 289, art 1(a).
Enterprise and Regulatory Reform Act 2013 (UK) c 24, s 74 (repealing Copyright,
Designs and Patents Act 1988 (UK) c 48, s 52); Dan-Form ApS v Fritz Hansen A/S
U 2001.1715 2H.
For a discussion of the different meanings of ‘designs law’ and ‘design laws’, see
above n 9.
For a discussion of the battles over intellectual property protection see generally Dan
Hunter, ‘Culture War’ (2005) 83 Texas Law Review 1105.
See, eg, Apple Inc v Samsung Electronics Co, 678 F 3d 1314 (Fed Cir, 2012); Apple Inc
v Samsung Electronics Co, 735 F 3d 1352 (Fed Cir, 2013).
406
HUNTER AND WOOD — THE LAWS OF DESIGN
for stronger protection for design and designers are common.20 In Britain, the design
lobby has recently managed the passage of legislation that protects designed objects
as copyright works for the life of the author plus 70 years, rather than the shorter
period of 25 years as obtained under the older design system.21 In the US, the Council
of Fashion Designers of America has sought the introduction of sui generis fashion
design protection for years, and continues to do so.22 At the international level, the
Intellectual Property Chapter of the recently concluded Trans-Pacific Partnership
Agreement bolsters design rights, and requires signatory states — including the US,
Australia, Singapore, and others — to ‘ensure adequate and effective protection
of industrial designs’ and to give consideration to signing and ratifying the Hague
Agreement.23 Closer to home, the Australian Authentic Design Alliance is seeking
support for its petition to demand that
[t]he Commonwealth parliament amends Australia’s intellectual property laws,
so as to give fairer treatment to authentic, quality, original design, give designers
the same copyright protection for their creative output as given to architects and
ensure that original designers are not pushed out of the market by legal, but
­unauthorised, cheaper replicas.24
In the face of this complexity, what are we to make of these claims? Is there any
principled way of concluding if we should expand or reduce protection? Further,
is there any meaningful way that we can understand how we came to create such a
complicated mess of laws relating to design, so that we might make some thoughtful
progress towards reform? These questions take on additional significance when one
20
21
22
23
24
See, eg, Anne Theodore Briggs, ‘Hung Out to Dry: Clothing Design Protection
Pitfalls in United States Law’ (2001–02) 24 Hastings Communications & Entertainment Law Journal 169.
Enterprise and Regulatory Reform Act 2013 (UK) c 24, s 74 (repealing Copyright,
Designs and Patents Act 1988 (UK) c 48, s 52). For regulatory impact, see UK Intellectual Property Office, ‘Copyright Protection for Designs’ (Impact Assessment,
Department for Business, Innovation and Skills, 15 May 2012) <https://www.
gov.uk/government/uploads/system/uploads/attachment_data/file/31970/12-866-­
copyright-protection-designs-impact-assessment.pdf>. For commentary see, eg,
Dan Hunter, ‘New UK Copyright Law Will Do Nothing to Help Young Designers’,
The Conversation (online), 1 October 2014 <https://theconversation.com/new-uk-­
copyright-law-will-do-nothing-to-help-young-designers-32193>.
See, eg, Innovative Designs Protection Act, S Res 3523, 112th Congress (2011–12);
Innovative Design Protection and Piracy Prevention Act, HR Res 2511, 112th Congress
(2011–12); Innovative Design Protection and Piracy Prevention Act, S Res 3728, 111th
Congress (2009–10); Design Piracy Prohibition Act, HR Res 2033, 110th Congress
(2007–08); Design Piracy Prohibition Act, S Res 1957, 110th Congress (2007–08);
To amend title 17, United States Code, to provide protection for fashion design, HR
Res 5055, 109th Congress (2005–06).
Trans-Pacific Partnership Agreement, opened for signature 5 October 2015, [2016]
ATNIF 2 (not yet in force), ch 18 s G arts 18.55, 18.56.
Authentic Design Alliance, Support Authentic Design, Change.org <https://www.
change.org/p/support-authentic-design>.
(2016) 37 Adelaide Law Review407
considers that, despite numerous reviews of the Australian design system, we still
appear to be no closer to a consensus on how it should be reformed.25
We seek to answer these questions through a cultural history of furniture design and
its interaction with the intellectual property system. Legal histories explain the foundations of legal principles, and can make evident the path dependencies of the law.
And there are some very fine histories of the development of design law in a number
of jurisdictions. These histories typically focus on one country and demonstrate, for
example, that cast iron stove patterns were fundamental for the development of the
US design patent system, or that the linen and calico printing industry drove the early
English design law, while silk printing was foundational to the French system.26
This article takes a different approach, focusing instead on one design practice and
industry: furniture design. By examining how the intellectual property system has
been used over time by furniture designers, we trace the interaction between the
craft, industry, practice, firms, and the law over 400 years. We show, for example,
how the furniture design craft in the 17th and 18th centuries had no need for intellectual property protection, but by the 19th century the furniture industry came to
rely on various intellectual property regimes, and how this changed dramatically in
the 20th century. We use this cultural history of one industry for three interrelated
aims: (1) to explain the development of intellectual property laws that relate to this
industry; (2) to demonstrate in general how intellectual property laws develop in
relation to trade interests; and (3) to develop an understanding of the basis of calls
for increased protection for designs.
We begin in the first section by explaining the basics of Australian design rights,
and briefly note the historical development of Australian design law. This section
provides a short introduction to the doctrine and foundation of Australian design law,
for those unfamiliar with it.
Then, in the second section we turn to a historical account of the development of
furniture design as a practice, and how furniture-makers dealt with issues of copying
and authenticity during its earliest stage of growth. We show that the furniture
25
26
Law Reform Commission, Designs, Report No 74 (1995); Australian Government,
Advisory Council on Intellectual Property, ‘Review of the Designs System’ (Final Report,
March 2015) <https://www.ipaustralia.gov.au/sites/g/files/net856/f/acip_designs_final_
report.pdf>: Australian Government, Productivity Commission, ‘Intellectual Property
Arrangements’ (Draft Report, April 2016) 293–324 <http://www.pc.gov.au/inquiries/
current/intellectual-property/draft/intellectual-­property-draft.pdf>.
See, eg, Kathy Bowrey, ‘Art, Craft, Good Taste and Manufacturing: The Develop­
ment of Intellectual Property Laws’ (1997) 15(1) Law in Context 78, 86; Jason J
Du Mont and Mark D Janis, ‘The Origins of American Design Patent Protection’
(2013) 88 Indiana Law Journal 837; Brad Sherman and Lionel Bently, The Making
of Modern Intellectual Property Law: The British Experience (Cambridge University
Press, 1999); David Goldenberg, ‘The Long and Winding Road: A History of the
Fight Over Industrial Design Protection in the United States’ (1997–98) 45 Journal of
the Copyright Society of the USA 21.
408
HUNTER AND WOOD — THE LAWS OF DESIGN
craft had no need for intellectual property protection during its artisanal-workshop
period in the 17th through 19th centuries, even though intellectual property laws
were developing rapidly as important mechanisms of commercial control. Instead,
during this period an individual craftsman’s reputation provided sufficient levels of
protection, and as a result we see no calls at this time for the expansion of the intellectual property laws to cover furniture design. It was only as the furniture-making
craft moved to an industrial model in the mid to late 19th century that intellectual
property laws became significant for furniture-makers.
In the third section, we trace how this occurred. We show how various types of
intellectual property grew in importance to furniture design, as the craft changed
during the industrial era. We show how the new furniture design and manufacture
industry deployed numerous aspects of intellectual property, including design rights,
copyright, and patent law, to great success. Based on this evolution, one might
have imagined that intellectual property would become ever more important to the
furniture industry during the 20th century. Instead, the opposite is true. The rise of
modernism and the machine aesthetic in the early 20th century meant that the industry
was less able to rely on the intellectual property system than it had in the 19th century.
We show how modernist styles and practices created tensions between furniture
design and the disparate regimes of the intellectual property systems — tensions that
resonate to this day.
In the final section, we return to the Australian law and examine the modern day
relationship between furniture design and the intellectual property system. With the
consolidation of modernism as the dominant aesthetic and the emergence of celebrity
designers in the middle part of the century, the industry fixed upon a conception of
authenticity that it has used as the basis for its intellectual property claims. These claims
have become particularly loud as replica furniture designs have flooded the market.
We examine those claims in the fourth section, and find them largely without any basis.
Based on the work of Walter Benjamin, we demonstrate the lack of any protectable
concept of authenticity that might ground the luxury furniture manu­facturers’ pleas for
special consideration. We conclude by suggesting that attempts to reform the law on
the basis of authenticity will therefore lead to incoherent legal principles.
II T he D evelopment
of
A ustralian D esign L aw
In Australia, design registrations provide limited monopoly rights over the visual
aspects of products that dwell in the grey zone between the artistic and the functional.
Bottles, furniture, dresses, boats, bags, cutlery — objects that are ‘designed’ for some
purpose, but whose visual characteristics might be an important selling point — are
the targets of the design regime.27
27
J C Lahore, ‘Art and Function in the Law of Copyright and Designs’ (1971) 4(1)
Adelaide Law Review 182, 182. Though Lahore points out that designs protection
under the legislation can extend to ‘the small invention or functional article which
makes no claim to any aesthetic consideration, and where appearance may seem quite
secondary to function’.
(2016) 37 Adelaide Law Review409
Under current legislation,28 a ‘design’ is the overall appearance of a product, resulting
from the ‘visual features’ that include the shape, configuration, pattern and ornamentation of the product.29 Functionality of a product does not of itself preclude
registration,30 but it is the appearance — not the function — that is protected from
unauthorised copying. Designs are registered in one or more classes, and a certified
design confers, among other rights, the exclusive right to make a product that
embodies an identical or substantially similar design in relation to that class or those
classes.31 As noted above, the period of protection is relatively short in comparison
to other intellectual property regimes: five years, with a possible five-year renewal.32
Unlike most other areas of intellectual property, there is no clear principle that
explains the need for the Australian design system, and the historical record helps
little in this regard. The first Australian law was the Designs Act 1906 (Cth), which
was introduced for purely pragmatic, trade-related reasons: if the Commonwealth
of Australia introduced design legislation, it would obtain reciprocal intellectual
property protection in the UK and other members of the Commonwealth.33
The Australian law was, unsurprisingly, almost identical to the English law of the
time,34 and the Bill for what would become the 1906 Act was described by the
Senator introducing it as a simple ‘machinery measure’.35 The Act was not accompanied by an explanatory memorandum, and though Hansard reveals some discussion
on the finer points of the Bill before it was passed, there was no robust debate on
the underlying necessity for this type of protection for designs. There was some
debate about whether the Commonwealth should merely follow English law,36 but
in the end Parliament eschewed such high-level, principled discussion in favour of
28
29
30
31
32
33
Designs Act 2003 (Cth).
Ibid s 7.
Ibid s 7(2).
Ibid s 10.
Ibid s 5.
Commonwealth, Parliamentary Debates, Senate, 20 June 1906, 394 (John Keating):
34
35
36
We have passed legislation relating to patents and trade marks, and it is open to us, on
fulfilling certain conditions, to obtain in the United Kingdom and in other countries
with which the United Kingdom is in convention, reciprocal advantages in respect to
our patents and trade marks, by according to the people of the United Kingdom and
the other countries referred to corresponding advantages and benefits in the Commonwealth. Before we can secure these, however, it is essential that the legislation we have
passed on this subject shall be perfected by our providing adequate laws to cover the
protection not only of patents and trade marks, but also of designs.
Patents, Designs and Trade Marks Act 1883, 46 & 47 Vict, c 57.
Commonwealth, Parliamentary Debates, Senate, 20 June 1906, 394 (John Keating).
Commonwealth, Parliamentary Debates, Senate, 20 June 1906, 421: Senator Givens
is quoted as saying ‘I do not want to have English law continually “chucked” at me’, to
which Senator Keating replied, ‘Whether Senator Givens likes it or not, a law is none
the worse for being the law of England’.
410
HUNTER AND WOOD — THE LAWS OF DESIGN
simple pragmatism, following the then-dominant approach of adopting English law
unless there were strong reasons not to do so.37
Design law in Australia therefore does not owe its existence to a clearly defined set
of principles, nor does it come about in response to a problem in the law in Australia
at the time of its introduction. Instead, Australian design law was simply imported
from the mother country as a trade mechanism, in order to gain stronger international
protection for Australians whose work might be exported to Britain.
But with this said, one can make some claims in favour of the design law. For
example, if the Designs Act 2003 (Cth) were repealed tomorrow, three-­dimensional
objects that are not ‘sculptures’ or ‘works of artistic craftsmanship’ would fall
outside the definition of ‘artistic work’ under the Copyright Act 1968 (Cth), and so
would not attract copyright.38 These objects would probably not be registrable as
trade marks — although there is scope for registration of shapes as marks39 — the
shape must be used to distinguish the goods or services of one particular trader
from another.40 And patent protection would be unavailable for all but functionally
37
Commonwealth, Parliamentary Debates, Senate, 20 June 1906, 406 (Sir Josiah
Symon):
38
39
40
if there is some very good reason for [departure from the English law], let it be done. But
unless that is so it is very unwise in a Bill of this description to depart from the English
Act; because we want to have the benefit of the authorities and decisions in England on
similar legislation, and also the benefit of any arrangements made internationally with
regard to equivalent systems of copyright.
However, drawings or plans on which they were based, if any, would have attracted
copyright, only to have (most likely) lost it again under the ‘industrial application’ provisions in the Copyright Act 1968 (Cth) ss 74–7A. The complexities of the
copyright-­designs overlap are of perennial interest to intellectual property scholars,
and are the subject of many worthy articles. It is not central to the thesis and history
presented here.
Trade Marks Act 1995 (Cth) s 6. For a discussion of the registration of shape marks in
the Australian system see Julia Baird, ‘The Registrability of Functional Shape Marks’
(2002) 13 Australian Intellectual Property Journal 218; Jani McCutcheon, ‘Mono­
polised Product Shapes and Factual Distinctiveness under s 41(6) of the Trade Marks
Act 1995 (Cth)’ (2004) 15 Australian Intellectual Property Journal 18; Mark Davison,
‘Shape Trade Marks: The Role and Relevance of Functionality and Aesthetics in
Determining their Registrability’ (2004) 15 Australian Intellectual Property Journal
106; Patricia Loughlan, ‘The Concept of Sign in Australian Trade Mark Law’ (2005)
16 Australian Intellectual Property Journal 95, 97; Amanda Scardamaglia and
Mitchell Adams, ‘Registering Non-Traditional Signs as Trade Marks in Australia:
A Retrospective’ (2016) 26 Australian Intellectual Property Journal 149.
Trade Marks Act 1995 (Cth) s 17. For a discussion of the overlap between the design
and trade mark systems in Australia, see Megan Richardson, ‘Australian Intellectual Property Law: The Form/Function Dilemma: A Case Study at the Boundaries of
Trade Mark and Design Law’ (2000) 7 European Intellectual Property Review 314;
Amanda Scardamaglia, ‘Protecting Product Shapes and Features: Beyond Design and
Trade Marks Australia’ (2012) 7 Journal of Intellectual Property Law and Practice
159.
(2016) 37 Adelaide Law Review411
innovative products.41 Whether one views this as an important or unimportant gap
in intellectual property protection depends in large part on whether one makes their
living from these kinds of objects.
We return to examine the moral, legal and political claims of precisely these people
in the last section; but in order to understand the wider context of design we turn now
to a broader cultural history of furniture design, and its interaction with the intellectual property system.
III F rom A telier
to
F actory
Furniture has been produced for as long as humans have congregated together, but
what we think of as furniture design can be traced back to the master craftsmen who
emerged in the 17th century. The maîtres ébénistes of the 17th and 18th centuries
emerged by providing royalty and the nobility with individualised pieces that only
these classes could afford.42 During this period there was no connection between
the furniture that the upper classes could afford and the types of chairs, tables, and
dressers that lower classes adopted.43
The separation between different social strata was self-evident and rigidly enforced,
and this division was found in the actual furniture designs deemed suitable for each
class. During this period the work that came from the ateliers of master craftsmen
emphasised decorative features such as the general line of the object, the form of
turned legs, or the technique of carving the ornamental features in the wood.44 These
ornamentations marked the furniture as belonging to the upper class, and these
luxury features affirmed and reinforced the social status of the owner.
Although copying did not occur across the classes it did occur at the highest levels
of the atelier, in the form of pattern books that circulated between regions and
countries.45 The master craftsmen adopted certain styles and localised them, and
part of becoming a furniture craftsman, during what is called the ‘decorative era’,
involved learning to copy accurately. Thus, from the earliest period of furniture
design, the culture of reproduction and copying formed a significant part of the
process of becoming a furniture-maker.
41
42
43
Patents Act 1990 (Cth) s 18.
Charles Gandy and Susan Zimmermann-Stidham, Contemporary Classics: Furniture
of the Masters (McGraw-Hill Companies, 1981) 1.
Jean Baudrillard, The System of Objects (James Benedict trans, Verso, 1996) 137
[trans of: Le Système des objets (first published 1968)]:
44
45
In the 18th century there was simply no relationship between a ‘Louis XV’ table and a
peasant’s table: there was an unbridgeable gulf between the two classes of object, just
as there was between the two corresponding social classes. No single cultural system
embraced them both.
Gandy and Zimmermann-Stidham, above n 42, 2.
Ibid.
412
HUNTER AND WOOD — THE LAWS OF DESIGN
During the 150 years from the 1700s, industrialisation gradually crept into the
workshops and transformed furniture design in two connected ways. Firstly, manufacture moved slowly from the individual atelier of the master craftsman, to industrial
production in a factory-like workshop; and secondly, the cheaper, manufactured
furniture became available to the middle classes. By the end of the 17th century, the
great ébéniste of Louis XIV’s France, André Charle Boulle (1642–1732), had seen
and understood the idea of division of labour, and had applied it in his atelier.46
By 1808, the prominent Austrian master of Biedermeier-style furniture, Josef
Dannhauser, employed as many as 350 furniture-makers doing specialist jobs on
the workshop floor, and his factory had begun to offer its furniture for sale on the
premises and in salesrooms nearby.47 The increased output of industrialisation led to
the ability to offer crafted furniture to classes other than royalty and nobility, and the
middle class started to aspire to the furniture of their betters.
The artisanal workshops of the master craftsman of this early decorative period were,
thus, poised on the brink of industrialisation. The start of the industrial age and the
development of steam power in the 19th century quickly led to large-scale factory
production of furniture. Industrialisation also drove mimicry and, as in areas like
clothing and fashion, the middle class sought to emulate the fashions of its social
superiors.48 The period from 1850–1920 was an age of democratisation in furniture
design, because these new factories could produce more and better furniture for
all classes. It is not surprising that, with the increased output, the ‘design’ of the
furniture became an important aspect of its marketing. A notable feature of this era
was the emergence of heavy, machine-produced wooden furniture that mimicked the
handmade furniture forms of the gentry and nobility. This furniture adopted the style
of bespoke furniture that was fashionable in the upper class a few years previously,
together with a range of marketable ‘innovations’, such as mechanical workings or
veneers.49
As in the ateliers of the maîtres ébénistes, copying was part of the culture of these
new furniture factories. The nature of the copying differed from that of the earlier
period, and reproduction of designs did not involve copying designs from other, more
stylish, regions. Instead, copying was focused on recreating the forms of upper-class,
bespoke furniture for a broader, middle-class audience.
46
47
48
49
Karl Mang, History of Modern Furniture (John William Gabriel trans, Harry N
Abrams, 1979) 7 [trans of: Geschichte des modernen Möbels (first published 1978)].
Ibid; The Biedermeier Style (8 January 2016) Rupert Cavendish <http://www.rupertcavendish.co.uk/blog/the-biedermeier-style>.
See generally Philip Mansel, Dressed to Rule: Royal and Court Costume from
Louis XIV to Elizabeth II (Yale University Press, 2008).
‘The furniture industries of England and continental Europe dabbled in every
major traditional style: Empire, Biedermeier, Louis XV, Gothic, and Oriental all
cascaded onto the consumer market. Americans followed, with an added emphasis on
mechanical gadgetry’: Gandy and Zimmermann-Stidham, above n 42, 2.
(2016) 37 Adelaide Law Review413
Industrialisation changed the artisan’s relationship to the design of the object, and
this period in the late 19th century witnessed the first obvious proprietary claims in
features of the design of furniture. Until the industrial era, the identity of the artisan
was sufficient to attest to the quality of the object produced, and when a nobleman
commissioned a great artisan to build them furniture there was no question where
the piece came from. The great Thomas Chippendale may not have built every part of
the bed that he delivered to William, Fifth Earl of Dumfries, in 1754, and he certainly
did not seek intellectual property protection for it. But the piece was definitively a
­Chippendale and valued accordingly. Dumfries paid over £90 for the bed, a figure
that would have easily built a home for one of his estate workers. The aura of the
great artisan was the thing that mattered to sell the work, and it lives in the object
still: the bed was offered for auction in 2007 with a reserve of £4 million.50
But industrialisation meant commercial scale production in a factory, and this severed
the bond between the artisan and the object. For all areas of what we think of these
days as ‘design’, intellectual property took over from artisanal imprimatur, creating a
new formal, legal system of signification and control.51 Each country that had a strong
design-based industry began creating intellectual property systems that reflected the
trade interests and commercial realities of the dominant design industries. So, in
many countries, copyright and patent were pressed into service to protect the trade
interests of designers. For example, from the mid-19th century, patent law was signifi­
cant for certain aspects of furniture design, particularly when dealing with processes
for industrial furniture production. For example, in 1841 Michael Thonet secured a
patent in Austria for the method for bending wooden saplings to mass-produce the
iconic Viennese café chairs, which sell to this day.52
During this period (and even a little before it) various sui generis designs systems
emerged in a range of countries, typically as a result of lobbying by particular
industries, aggrieved at the perceived limitations of existing intellectual property
systems. The 1711 Ordinance of the Consul of Lyons is usually said to have been the
first intellectual property protection for any object of ‘design’.53 This law protected
designs for the silk industry in Lyons, which was an important and vulnerable
industry within France. The UK followed suit a little later, granting its first legislative
50
51
52
53
Deyan Sudjic, The Language of Things: Understanding the World of Desirable
Objects (W W Norton, 2008) 90.
A tiny number of significant furniture-makers retained the atelier model, for example
George Nakashima. For further discussion, see section III below.
Sam Burchell, A History of Modern Furniture: Celebrating Baker Furniture 100 Years
of Fine Reproductions (Harry N Abrams, 1991) 103; John Dunnigan, ‘Michael
Thonet: One Hundred and Fifty Years of Bentwood Furniture’ in Fine Woodworking
(eds), Fine Woodworking on Bending Wood (Taunton Press, 1985) 55.
Frank D Prager, ‘History of Intellectual Property: From 1545 to 1787’ (1944) 26
Journal of the Trademark and Patent Office Society 711.
414
HUNTER AND WOOD — THE LAWS OF DESIGN
designs protection in 1787 for its commercially significant linen industry.54 English
copyright law existing at the time protected engravers and writers,55 but not textile
pattern-makers, who, angered by sales of copycat cloths,56 lobbied Parliament for
protection.57 In what is usually seen as the first British design Act, the resulting
Calico Printers’ Act 1787 conferred an automatic two-month period of monopoly
protection on persons ‘who shall invent, design, and print … any new and original
pattern … for printing linens, cottons, calicos, or muslins’.58
As the industrial age began, a range of European countries created or changed their
intellectual property laws in response to newly-emerging trade interests in their
design industries. Generally, this involved various extensions of domestic copyright
laws. It is revealing to note that countries like Denmark and Sweden, places which
we associate with modern design, did not have particularly strong design industries
during this time. As a result their copyright laws were usually restricted to pure art —
as opposed to applied art, which better fits the interests of designers of objects. It was
not until a pan-European push in the early 20th century to allow copyright protection
for applied arts59 that Denmark amended its copyright protection to design objects.60
A similar trade-driven legal evolution occurred in the US during the 19th century.
Copyright and patent law were present at the founding of the new republic, but various
new pressures emerged as the industrial era progressed, driving the introduction of new
design-related laws. In the US, pressures from cast-iron stove manufacturers in the
early 19th century led to the first formal mechanism for granting intellectual property
54
55
56
57
58
59
60
An Act for the Encouragement of the Arts of Designing and Printing Linens, Cottons,
Callicoes, and Muslins, by Vesting the Properties Thereof in the Designers, Printers
and Proprietors, for a Limited Time 1787, 27 Geo 3, c 38 (‘Calico Printers’ Act’).
The law was an extension of copyright, and so does not resemble what we would call
design rights these days. The first recognisable ‘design law’ statute in the UK was
probably the Copyright of Designs Act 1839, 2 Vict, c 13 and Designs Registrations
Act 1839, 2 & 3 Vict c 17 that featured novelty requirements and a formal registration
process.
Engravers’ Act 1735, 8 Geo 2, c 13. The protection lasted for 14 years from the date of
the print.
Bowrey, above n 26, 86.
Ibid, quoting United Kingdom, Petition of 16 March 1787, Journal of the House of
Commons (1787).
Brad Sherman and Lionel Bently, The Making of Modern Intellectual Property Law:
The British Experience (Cambridge University Press, 1999) 63.
See generally Stina Teilman-Lock, ‘The Fashion Designer as Author: The Case of the
Danish T-Shirt’ (2012) 28(4) Design Issues 29, 30.
The first Danish law seeking to extend protection to design was the Act on Authorial
and Artistic Rights of 1902, but in 1907 the Supreme Court struck down its application
to a coffee pot design. It was not until 1908 that the law was amended to encompass
applied arts: see Stina Teilman-Lock, ‘What’s Worth Copying is Worth Protecting:
Applied Art and the Evolution of Danish Copyright Law’ in Kjetil Fallan (ed),
­Scandinavian Design: Alternative Histories (Berg, 2012) 35, 37–38. See generally
Uma Suthersanen, Design Law in Europe (Sweet & Maxwell, 2000).
(2016) 37 Adelaide Law Review415
rights to designers in 1842.61 As cast-iron manufacturers developed techniques to
make their goods more intricate and refined — and thus more saleable — they grew
more interested in preventing others from copying their designs. But the existing law
of the time offered little in the way of protection. Manufacturers hoping to ward off
would-be copiers could not rely on trade mark law, which lacked a formal federal
regime at the time, and they could not reliably use common law unfair competition
principles.62 Utility patents protected only articles embodying ‘novel’ and ‘non-­
obvious’ features63 and these were thresholds that precluded most works of applied
art or design from obtaining protection. This resulted in some awkward manoeuvres
to fit these newly designed cast-iron stoves into the utility patent box. Meanwhile,
copying was rampant because it was so easy to buy a competitor’s stove, disassemble
it and use it as a matrix from which to make moulds for producing nearly identical
products.64 By 1842 stove designers had convinced Congress to enact a design patent
statute,65 thereby creating the dichotomy between utility and design patents that
remains to this day; utility patents protect useful inventions, design patents protect
ornamental features.
During the latter part of the 19th century both types of patents were utilised by US
furniture designers. Design patents were, obviously, of value to ornamental features;
but in the late 19th century, utility patents were pressed into service because mechanisation became extremely popular. During the second half of this period, the emphasis
in chair design changed from a style that featured elaborate figuration on a static
object, to a style that stressed articulated systems with springs, levers, rockers, and
movement.66 Mechanical aspects of the chairs could, of course, be the basis of a
utility patent, and chair designs were the subject of numerous patent applications
and grants. For example, Theodore J Palmer was granted a US patent in 1870 for an
oscillating chair design where the chair arms were made of springs so that
[w]hen the chair is moved forwards or backwards … a tension is produced in the
spring arms, which tends to replace the back, and seat to the former position, thus
facilitating the easy rocking of the chair.67
Numerous variations on this type of spring-loaded system were patented, most notably
by the prolific US chair inventor Franklin Chichester, who acquired patents for chairs
61
62
63
64
65
66
67
Du Mont and Janis, above n 26, 849–52; Carma Gorman, ‘Law as a Lens for Understanding Design’ (2014) 6(3) Design and Culture 269, 278.
Du Mont and Janis, above n 26, 849–52.
Gorman, above n 61, 277–8.
Ibid 278.
Du Mont and Janis, above n 26, 849–52.
Jenny Pynt and Joy Higgs, A History of Seating 3000BC to 2000AD: Function Versus
Aesthetics (Cambria Press, 2010) 164. See generally Sigfried Giedion, Mechanization
Takes Command: A Contribution to Anonymous History (Oxford University Press,
2nd ed, 1955).
US Patent No 102,701 (issued 3 May 1870); Pynt and Higgs, above n 66, 164.
416
HUNTER AND WOOD — THE LAWS OF DESIGN
that rotated in any direction by means of springs under the seat,68 and a series of
spring- and lever-based chairs for the users of the newly invented ‘type-writer’ that
were intended to reduce back pain, allow for easy raising of the seat height, reduce
cost of production, and so on.69 Various other patents were granted around this time
for specialised chair designs for seamstresses,70 barbers,71 and dentists.72 There were
even patented designs for adjustable school desks.73
By the end of the 19th century, then, intellectual property laws were central to the
industrial furniture design system. The furniture industry of each country grew
clever at exploiting various elements of regimes like patent, copyright, and registered
designs, depending on the particular way that the law of that country had developed.
One would have expected, at the turn of the century, that the industry would continue
in similar vein. What no-one could have foretold was the way that a dominant design
style would affect the entire industry’s use of the intellectual property system.
IV T he M achine A esthetic
The early 20th century witnessed the birth of what we now call ‘mid-century modern’
design, but which at the time was often called the ‘machine aesthetic’. This style
complicated the reception of intellectual property into the furniture design system,
rendering previous regimes unavailable to the manufacturers. As a result, the
emergence of mid-century modern design practices spurred relentless intellectual
property regime-shifting on the part of the furniture design industry, as we will see
in the section that follows.
The pared-down forms of the machine aesthetic were visible in the Shaker style
of the late 18th century, and Thonet’s bentwood chairs of the mid-19th century.74
However modernist furniture, especially steel modernist furniture, came to be popularised in the early part of the 20th century by three connected design movements,
the Wiener Werkstätte in Austria, De Stijl in the Netherlands, and the Bauhaus in
Germany. Members of these new modernist movements not only used machines
in the production of their work, but used the machine as the aesthetic that directed
68
69
70
71
72
73
74
US Patent No 333,393 (issued 29 December 1885); Pynt and Higgs, above n 66, 166.
US Patent No 574,602 (issued 5 January 1897); US Patent No 659,811 (issued
16 October 1900); US Patent No 647,178 (issued 10 April 1900); US Patent No 712,495
(issued 4 November 1902).
US Patent No 114,532 (issued 9 May 1871); US Patent No 200,508 (issued 19 February
1878).
US Patent No 83,644 (issued 3 November 1868); US Patent No 598,877 (issued
8 February 1898).
Ibid.
US Patent No 556,565 (issued 17 March 1896); US Patent No 483,265 (issued
27 September 1892).
Gandy and Zimmermann-Stidham, above n 42, 8.
(2016) 37 Adelaide Law Review417
the form of their work.75 The Wiener Werkstätte was particularly notable for its use
of abstract geometrical forms, while De Stijl and the Bauhaus were known for the
rigor of their style, an aesthetic that reduced ornamentation to a minimum and took
its cue from the machines used to manufacture the work.76
Emerging from the factory, we should not be surprised that the modernist furniture
movement relied on the protections of the intellectual property system. Modernism
was deeply connected with the changes in the means of furniture production, and
the iconic designers of this time — Le Corbusier, Marcel Breuer, Ludwig Mies van
der Rohe, Gerrit Rietveld, and others — were reliant on factories for the commercial
fabrication of their designs. Modernist furniture was made in a factory, was inspired
in its style by the factory, and was made to look like it was made in a factory.
The commercial reality of factory production meant that there was a formal and
substantive commercial separation between the furniture designer and the manufacturer — the manufacturer and designer were sometimes different corporate
entities, and in any event a ‘Breuer chair’ or a ‘Le Corbusier chaise longue’ was no
longer produced in a workshop that was controlled by the designer. Unlike earlier
ateliers, the commercial realities of fabrication meant that manufacturers had to
find a legal means of enforcing exclusivity over commercially significant designs
in order to recoup the costs of tooling and manufacture. In this they were utterly
different from the great craftsmen of earlier periods, such as Thomas Chippendale,
George H
­ epplewhite, and Thomas Sheraton, the ‘big three’ of the 18th century. These
craftsmen certainly controlled large workshops and commanded numerous artisans,
but they operated without the need for intellectual property because their furniture
could only come from their workshop.
This was not true with modernist furniture design in the time of the Bauhaus, de Stijl
or the Werkstätte; or at least it wasn’t true in quite the same way. As we discuss below,
in time we would see the emergence of the celebrity designer and the iconic design,
a development that creates a similar aura around modernist furniture design as is
found in the furniture of artisans of earlier eras. But during the early development
of modernism, designers were not celebrities and the industry was confronted with
two intellectual property conundrums. First, manufacturers had to develop a way of
using intellectual property to limit the dissemination of the designs, in order to pay
for the costs of tooling and to generate profit. Second, modernism’s stripped-back
machine aesthetic removed many of the ornamental features and unusual mechanical
features that previously had been the subject of the designer’s craft, and which were
more readily the subject of legal protection. Ornamentation applied to a surface will
often be protected by copyright, and mechanical innovations will often satisfy the
requirements of patent law. However furniture designed according to the famous
75
76
Ibid 6–7.
For a useful discussion of the movement from individualised craft to machine
technology in the Bauhaus, see T’ai Smith, ‘Anonymous Textiles, Patented Domains:
The Invention (and Death) of an Author’ (2008) 67(2) Art Journal 54, 65; Gandy and
Zimmermann-Stidham, above n 42, 7.
418
HUNTER AND WOOD — THE LAWS OF DESIGN
diktat of the Bauhaus — ‘form follows function’77 — will likely possess neither
copyright ornamentation nor patentable ‘innovations’.78 How were designers of this
period to handle the competing pressures of commercial control with their desire for
an uncompromising aesthetic?
What emerged was an extremely complicated dynamic, one that can be seen within
design laws to this day. An instructive set of cases, unearthed and examined by
Otakar Máčel, demonstrates the complexity of the use of intellectual property to
control and protect early modernist design.79 The cases involve the design of the
cantilever chair, and they implicated — as litigants or witnesses — some of the most
recognisable names in modernist furniture design: Mart Stam, Mies van der Rohe,
Walter Gropius, and Breuer.80 The issue was ultimately who held various intellectual
property rights over the form of the chair, and thus which of a number of competing
European licensees held the right to reproduce various models of the chair. In two
disputes that ran at almost the same time in Germany, courts were asked to consider
whether the cantilever chair could be protected by patent, and whether copyright
subsisted in it. Strangely, the actions involved different parties, and the two intellectual property regimes were considered entirely separately from each other. One court
held that the first creator of the chair was Stam and the artistic form of cantilever
chairs was something that was protected by copyright.81 Another court held that
Mies van der Rohe held a valid patent over the technical features of cantilever chairs
77
78
79
80
81
Walter Gropius, the founding head of the Bauhaus, is often credited with the aphorism
‘form follows function’, using it as a statement about minimalist design. This phrase
was however used earlier in a slightly different sense by the 19th century American
architect, Louis Sullivan: see Graeme B Dinwoodie, ‘Federalized Functionalism: The
Future of Design Protection in the European Union’ (1996) 24 American Intellectual
Property Law Association Quarterly Journal 611, 627 n 39.
However, it may be that the mismatch between modernism and design patents in
the US led to certain features of modernist design. Gorman suggests that modernist
theorists like Edgar J Kaufmann Jr emphasised technological novelty because utility
patents could protect this: see Gorman, above n 61, 282.
Otakar Máčel, ‘Avantgarde Design and the Law: Litigation Over the Cantilever
Chair’ (1990) 3(2–3) Journal of Design History 125, 130–43. See also Otakar Máčel,
‘From Mass Production to Design Classic: Mies van der Rohe’s Metal Furniture’ in
Alexander von Vegesack and Matthias Kries (eds), Mies van der Rohe: Architecture
and Design in Stuttgart, Barcelona, Brno (Skira, 1998) 18, 18–64; Carl Magnusson,
‘Mies’s design in production at Knoll’ in Alexander von Vegesack and Matthias Kries
(eds), Mies van der Rohe: Architecture and Design in Stuttgart, Barcelona, Brno
(Skira, 1998) 68, 68–73.
Smith notes also that some of the Bauhaus designers took out patents on some of their
designs — Gropius patented his Theaterbau design in 1929, Breuer patented 12 chairs
designs between 1928–37 (one of which was the subject of the dispute mentioned in
the text), and Mies van der Rohe patented eight chair and furniture designs during
or shortly after his tenure at the Bauhaus (one of which was in dispute here): Smith,
above n 76, 56 n 6.
Máčel, above n 79, 125–37.
(2016) 37 Adelaide Law Review419
that could spring back and forth, since the earliest versions of the chair were not
sprung.82
Odd though it is, the split control of patent and copyright interests is not the strangest
aspect of the cantilever chair case. The licensee of Stam’s copyright interests,
emboldened by the win in Germany, went on to file cases all over Europe seeking
to gain monopolistic control over the form of the cantilever chair. The licensee was
successful in the Netherlands, Switzerland, and Czechoslovakia on the same basis as
his win in the German courts;83 but he lost in both Sweden and Denmark on the basis
that chairs of this sort were merely technical innovations and not worthy of copyright
protection.84
The cantilever chair cases show the multiple overlapping rights, inconsistent jurisdictional approaches, and the out-and-out strangeness that bedevil design law to this
day. It is remarkable that, within Germany alone, two different intellectual property
regimes could award ownership rights over the same object to different people, and
it is equally surprising that one regime — copyright —could come to such different
conclusions about protection and control in countries as closely linked by legal
tradition as those of Northern Europe. Perhaps most unusual of all is the observation
that because of the outcome of these cases and the length of copyright protection, in
Germany no-one may legally make or import a variant of the cantilever chair without
the permission of Stam’s licensee until 2056, seventy years after Stam’s death.85
In time, a number of European countries with significant trade interests in furniture
design came to resemble the German approach. For example, the rise of the Scandinavian modern furniture movement in the second half of the 20th century led to greater
acceptance of the artistic merits of furniture design in Danish courts.86 Although
Scandinavian courts were often suspicious of protecting designs during the early
part of the 20th century, by 1960, ‘The Chair’, Hans Wegner’s iconic design, was a
significant enough artistic work for the High Court of Eastern Denmark to hold it
covered by copyright protection.87 And, after a change in the Danish Copyright Act,88
82
83
84
85
86
87
88
Ibid 137–40.
Ibid 135–7.
‘[T]he Danish Supreme Court did not consider the chairs to be “original artistic works
destined to be prototypes for industrial art” according to the definition of design as
objects of artistic copyright according to Danish copyright law.’: Máčel, above n 79,
135; Teilmann-Lock, ‘What’s Worth Copying is Worth Protecting’, above n 60, 6.
Cf Máčel, above n 79, 125, who suggests that the prohibition will lapse in 2036,
50 years after Stam’s death (Stam died 21 February 1986).
This was also coupled with the rise of a pan-European desire to protect applied arts:
see Stina Teilmann-Lock, ‘The PH Lamp: An Intellectual Property Biography of a
Danish Design Icon’ (unpublished, copy on file with author) 5.
Snedkermester Johannes Hansen v Firmaet I Thorballs Eftf ved Viggo Johansen
U 1960.483 Ø; Teilmann-Lock, ‘The Fashion Designer as Author’, above n 59, 35;
Teilmann-­Lock, ‘What’s Worth Copying is Worth Protecting’, above n 60, 43–5.
Lov nr 158 af 31.5.1961 om ophavsretten til litterære og kunstneriske værker.
420
HUNTER AND WOOD — THE LAWS OF DESIGN
later courts found copyright in various furniture designs, such as Arne Jacobsen’s
well-known ‘Ant Chair’ and the series of modular high chairs for children produced
by Stokke.89
This kind of regime-shifting — abandoning design rights for some other more
hospitable intellectual property regime — is characteristic of the strategies of
furniture manufacturers in the latter part of the 20th century. It has been particularly notable in the US because the design patent system is, as one commentator
suggested, ‘singularly ill-equipped to deal with functionalist modern design’.90 In the
US a design patent may be obtained for a new, original and non-obvious ornamental
design for an article of manufacture, and protection lasts for fourteen years. These
requirements — especially the novelty and ornamentation stipulations — are a poor
fit with modernist furniture design. Copyright may apply to any design, but its availability is significantly restricted by the ‘separability test’, which says that the design
elements of a useful article are protected by copyright ‘only if, and only to the extent
that, such design incorporates pictorial, graphic or sculptural features that can be
identified separately from, and are capable of existing independently of, the utilitarian aspects of the article’.91 Few styles of furniture designs qualify, and even those
that do are likely to be overturned if challenged.
This has led to a strange regime shift in the approach of high-end furniture manufacturers, away from both design law and copyright law, and into trade mark and
trade dress. Knoll provides a good example of this strategy. The company licenced
the design of the Butterfly chair from its Argentinian designers, Antonio Bonet, Juan
Kurchan, and Jorge Ferrari-Hardoy in the late 1940s. But the company abandoned
production of the chair in 1950 after other manufacturers produced cheaper knock-off
versions. Knoll had paid for the license to manufacture the chair, but because it was
a ‘useful article’ it could not be copyrighted in the US.92 The chair also did not
have any ornamental features that could have been protected by a design patent, and
was too similar to an earlier chair style to be eligible for a utility patent. Knoll was
forced to use what was at the time a bizarre strategy: it argued that the chair was a
shape mark and the knock-offs were causing ‘source confusion’ among customers.93
Knoll was ultimately successful in this claim, but the terms of the judgment did not
provide the hoped-for level of protection. The judge ordered that competitors promi­
nently label that their products did come from Knoll — thus to avoid consumer
confusion — but did not preclude them from selling their competing versions.94
In time this sort of strategy has led to a surge in shape registrations within the US
system. Cassina has, for example, registered as trade marks on the US Principal
89
90
91
92
93
94
Teilmann-Lock, ‘What’s Worth Copying is Worth Protecting’, above n 60, 10.
Gorman, above n 61, 281–2.
Copyright Act, 17 USC §101 (definition of ‘pictorial, graphic and sculptural work’)
(1947).
Gorman, above n 61, 282.
Knoll Associates v Burtman Ornamental Iron Works, 10 FRD 627 (D Mass, 1950).
Gorman, above n 61, 282.
(2016) 37 Adelaide Law Review421
Register the outline of the ‘Fauteuil Grand Confort’ (commonly known as the ‘LC2’)
and the ‘Chaise Longue à Reglage Continu’ (the ‘LC4’) by Le Corbusier, Jeanneret,
and Perriand.95 The American manufacturer Herman Miller has registrations for
Charles and Ray Eames’ recliner and the Noguchi coffee table, amongst others, and
Knoll has shape registrations for all of Mies van der Rohe’s ‘Barcelona’ collection.96
These types of registrations are useful in a number of ways. They may be the basis for
a customs seizure under some circumstances, and of course lawyers for the high-end
furniture manufacturers can cite the registrations in a cease and desist letter to replica
manufacturers.97 This may scare off some retailers, but it is not clear how effective
these registrations will be if the mark owners take the matter further and bring an
infringement suit against replica furniture retailers. Some have argued that these
shapes are so well known and have been unenforced for so long that they have fallen
into the public domain,98 and, as we explore in the next section, the high-end manufacturers’ claims of ownership are built on shaky foundations.
Nonetheless, the luxury manufacturers have had some successes with this strategy.
In 2006, in Herman Miller Inc v A Studio srl99 the authorised manufacturer of the
Eames recliner had registered a mark for the shape of the chair and its accompanying
ottoman. It sued A Studio, the Italian maker of unauthorised versions of the chair,
alleging trade mark infringement of the shape. The Italian company sought to have
the matter dismissed on the basis that producing chairs that happened to have the
same silhouette as the registered mark was descriptive fair use.100 This is a standard
defence in US law,101 reserved for situations where a plaintiff has a registration for
a weak mark which has acquired distinctiveness sufficient to register, but which the
defendant must use in order to describe its own products. For example a trade mark
of pine tree shape of a car air freshener was held not to have been infringed by a
competitor who released a pine scented air freshener that also was in the shape of
95
96
97
98
US Trade Mark No 4,266,765 (registered January 1 2013): ‘a mark consisting “of a
three-dimensional configuration of a chair” in respect of arm chairs, bar stools, bean
bag chairs, ottomans, rocking chairs and high chairs, inter alia’.
See Ernest Beck, ‘Knocking Off the Knockoffs’, New York Times (New York),
28 October 2004, 8.
And of course, unlike every other type of intellectual property protection, trade mark
protection is renewable to the end of time, as long as the mark continues to be used
and the modest renewal fee is paid; so these benefits can continue indefinitely.
Beck, above n 96, 8:
99
100
101
To win a judgment, Knoll’s lawyers would have to convince a jury that there is a
‘likelihood of confusion’ in the mind of the consumer … And to the undiscerning eye,
often the cheap reproductions are quite similar to the originals … David Harrison,
a trademark lawyer at Roden & Livingston … argues that after 75 years the design of
the Barcelona chair is in the public domain. Knoll can do little more than ‘make a lot
of noise’.
79 USPQ 2d 1905 (WD Mich 2006) (‘Studio’).
Ibid.
15 USC § 1115(b)(4) (2006).
422
HUNTER AND WOOD — THE LAWS OF DESIGN
a tree. This use was descriptive of the smell of the freshener. In the Studio case, the
defendant was held to be unable to rely on this defence because the mark did not
describe the defendant’s product, it was the defendant’s product. The court could not
make the descriptive fair use requirements fit the situation of reproduction of furniture
design, and so refused the defendant’s motion for summary judgment. However, this
and other similar replica cases have generally not proceeded successfully at trial for
the manufacturers, and shape trade marks in the US have not profoundly changed the
landscape of furniture design protection.
This type of regime shift into trade mark is not a complete panacea for high-end
manufacturers. In general, furniture shapes have not been strongly protected by either
the trade mark or design regimes — an observation borne out by the proliferation of
replica retailers who have entered the Australian marketplace over the last 10 years.102
High-end manufacturers have been understandably unhappy with this development,
and have sought to make life as difficult as possible for the replica sellers. Herman
Miller sued reproduction retailer Matt Blatt over the same Eames recliner as was in
issue in the Studio case. However, in the absence of patent or trade mark protection,
Herman Miller was forced to use passing off and consumer protection laws to seek
to regulate the defendant’s use.103 Since these laws require evidence of consumer
confusion for the plaintiff to prevail, Herman Miller was unsuccessful against Matt
Blatt, as the latter’s product was clearly designated as a replica product.104 As a result
102
103
104
Shapes are protectable under the Australian trade mark system, since the Trade Marks
Act 1995 (Cth) amended the definition of a trade mark in s 6 to include a range of
‘non-traditional’ signs, such as shapes, sounds, colours and scents. Since the Trade
Marks Act 1995 (Cth) came into effect in 1996, there have been 975 registrations
for shape marks, mostly for bottles of alcohol or perfume, and confectionery: see
­Scardamaglia and Adams, above n 39, 157.
Australian Design Review, Real vs Replica: Herman Miller Reaches Settlement with
Matt Blatt (3 November 2011) <http://www.australiandesignreview.com/news/12808real-vs-replica-herman-miller-reaches-settlement-with-matt-blatt>.
This outcome is consistent with the decision 30 years ago in Parkdale Custom Built
Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191. In that case, the High Court
concluded that a consumer would not confuse Parkdale’s cheap replica chairs with
Puxu’s expensive ‘Contour’ line of chairs, because of the difference in cost and
quality, and the care that consumers would take with this kind of purchase. As a result,
it has been commonly accepted that a commercial rival could copy someone else’s
product with impunity, unless the product was protected by a registered design, and
as long as the replica product was clearly marked with the rival’s brand. The outcome
of these cases are, however, highly fact dependent and it is hard to create bright-line
rules about when something will infringe the common law ‘passing off’ action, or its
statutory counterpart. Thus, in Peter Bodum A/S v DKSH Australia Pty Ltd (2011) 280
ALR 639, the Full Federal Court concluded that a replica producer of coffee plungers
that resembled the well-known Bodum Chambord cafetière had infringed ss 52 and 53
of the Trade Practices Act (1974) (Cth) (now ss 18 and 29 of the Australian Consumer
Law, contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth))
because of the possibility of consumer confusion as to source. See generally Peter
Knight, ‘“Secondary Signification” in Product Design Gets a New Lease on Life in
Australia’ (2012) 104 Trademark Reporter 1014.
(2016) 37 Adelaide Law Review423
of this and similar setbacks, the manufacturers and retailers of luxury products have
formed a trade group, the Authentic Design Alliance, seeking stronger protection of
the designs and the destruction of the replica trade in Australia.105 In this, they are
copying their English counterparts who successfully lobbied for an expansion of the
copyright law to include mass-produced artistic works, which can include furniture
designs for objects like chairs, lamps and sofas.106 This kind of regime-shifting is,
of course, the gold standard for industries and a preferable solution to dealing with
incremental expansion via case law. But of course this solution is only available where
the industry lobby is powerful, well-funded, well-organised and able to convince
legislators of the merits of their position.
V T he L aw of F urniture D esign in the A ge
of M echanical R eproduction
As we saw in the previous section, the rise of modernist design practices gave rise
to certain sorts of strategic behaviours on the part of the luxury furniture industry.
It shifted its intellectual property strategy towards the use of trade mark and trade
dress, and it grew increasingly restive at a perceived lack of protection from knockoffs. This latter concern has become extremely significant within the industry during
the latter part of the 20th century, with the emergence of replica furniture manu­
facturers — mostly based in China — who produce similar but cheap versions of
expensive furniture designs created initially by name-brand designers like Mies van
der Rohe, the Eames, or Le Corbusier. Luxury manufacturers seek to stop replica
manufacturers and retailers, claiming these downmarket versions of the iconic
designs are unlicensed versions, and because they are inferior. And almost constantly,
the luxury manufacturers call for increased protection to shut down these replica
designs.
This history of furniture design goes some way to explaining why luxury manu­
facturers chafe against what they perceive as an unfair level of protection. Their
resort to constant regime-shifting and lobbying is not just naked self-interest, it
reflects a mismatch in how the artisans see their work and what the law protects.
Design law generally protects original ornamental features of the design, but as we
saw above, none of these aspects are ones that reflect the design and manufacture
processes of modernist furniture. And most other intellectual property laws do not
protect furniture design particularly strongly. So high quality manufacturers understandably, if unjustifiably, feel short-changed.
There is a theoretical concern at the heart of luxury manufacturers’ claims for stronger
protection. They seek protection for their mere connection to the celebrity designers
of the modernist era, and in doing so they seek to imbue their products with an aura
105
106
Authentic Design Alliance, ‘ADA Press Release’ (Press Release, ADA 01, 28 May
2016) 1 <https://indd.adobe.com/view/publications/f477f23a-c664-45c4-ab0c-f9d100
4853c8/1/publication-web-resources/pdf/ADA_PRESS_RELEASE.pdf>.
Enterprise and Regulatory Reform Act 2013 (UK) c 24, s 74.
424
HUNTER AND WOOD — THE LAWS OF DESIGN
of authenticity that is lacking in replica designs. But modern luxury furniture manufacturers suffer from the ‘aura’ problem that was first diagnosed by Walter Benjamin
in ‘The Work of Art in the Age of Mechanical Reproduction’.107 Published in 1936,
Benjamin was responding to the time when artistic practice, like design practice,
was moving into the machine age. Although a small number of artistic forms like
bronze sculpture or engravings had long been based around reproducibility, the
speed of creation and increasing significance of photography and cinematography
during the early part of the 20th century challenged the concept of an artistic work as
a single, unique object hewn from the artist’s hand.108 Benjamin noted that the first
casualty in this new artistic practice was the ‘aura’ of the artistic object; that is, the
unique, authentic expression. He suggested that ‘[t]he presence of the original is the
pre­requisite to the concept of authenticity’109 and since there was no ‘original’ in
cinema or photography, the artistic aura of authenticity was destroyed.110 Benjamin’s
objective was to connect art and politics, especially as a way to critique fascism and
bolster communist practice,111 and although these concerns have largely withered,
his lasting legacy has been to demonstrate how new technologies of reproduction
destroyed the artist’s dependence on aura and ritual.112
Although modernist furniture manufacturers came of age within the era of mech­
anical production and reproduction, they still cling to the idea of authenticity and
originality that Benjamin demolished 80 years ago. Lobbying efforts and marketing
by luxury manufacturers use terms like ‘authentic’, and ‘original’ to describe their
products, along with other terms like ‘real’ or ‘genuine’ — in contrast to words
107
108
109
110
111
112
Walter Benjamin, ‘The Work of Art in the Age of Mechanical Reproduction’ in
Hannah Arendt (ed), Illuminations (Harry Zohn trans, Schocken, 1969) 217, 217–51
[trans of: Illuminationen (first published 1955)].
It is revealing that during the early commercial phase of its development in the 19th
century, lithography was considered vulgar because of its ability to mass-produce the
image. John Ruskin, writing in 1898, said that he would not let lithographic works
into his house because they were cheap and crudely drawn, and degraded the quality
of artistic expression: see John Ruskin, Elements of Drawing (George Allen, 6th ed,
1898) 347.
Ibid.
Cf Stina Teilman-Lock, The Object of Copyright: A Conceptual History of Originals
and Copies in Art, Literature and Design (London: Routledge, 2015), who reads
Benjamin’s concept of aura differently. For Teilman-Lock, the concept of authenticity
and mechanical reproduction exist in a dialectic relation. She argues that the work
of art gains an aura in the middle of the 19th century precisely because mechanical
reproductions begin to circulate, and prior to the era of reproduction the concept of an
aura could not have existed.
Richard Kazis, ‘Benjamin’s Age of Mechanical Reproduction’ (1977) 15 Jump Cut 23.
Benjamin, above n 107, 224: ‘For the first time in world history, mechanical reproduction emancipates the work of art from its parasitical dependence on ritual.’
(2016) 37 Adelaide Law Review425
like ‘fake’, ‘replica’ or ‘knock-off’ which they reserve for the lower quality manu­
facturers.113 Gorman notes:
Retailers such as Design Within Reach tout the ‘authenticity’ of these licensed
designs [ie the mid-century modernist designs from Europe] in their advertisements, as if suggesting that designs that are still under copyright are superior to
furnishings from the same era that are in the public domain.114
In championing a distinction between ‘real’ versus ‘replica’, or ‘authentic’ versus
‘knockoff’, the high-end manufacturers suggest that their licensed designs have an
aura of authenticity that differs from the makers of unlicensed versions.115 In doing
so they are harking back to the grand, decorative age of furniture production, the age
of the ateliers and ébénistes of the period before the industrial era. They liken the
celebrity designer to the great artisans of that time, and claim an ineffable aura of
quality and authenticity by virtue of this association.
This claim does not withstand scrutiny, for a range of reasons. First, as we have seen
above, the industrial production of modernist furniture does not resemble artisanal
furniture production, even for iconic designs and designers. Celebrity designers
almost never oversaw production, and these days the majority of them are dead
anyway. Further, high-end furniture manufacturers cannot claim an aura of authenticity from the quality of their production, since the materials and the production
techniques used by luxury furniture manufacturers are no more ‘real’ or ‘authentic’
than those used by the makers of unlicensed versions, even if the quality of their steel
or wood or leather might well be higher than their lower-rent competitors.
Where, then, might this aura of authenticity come from? The only remaining basis is
in the luxury furniture manufacturers’ connection with the iconic designers who first
conceived of the product. This could come directly via a licence from the designer
(or his/her estate) or from some claimed connection with the ‘original’ design. But for
113
114
115
Authentic Design Alliance, ‘ADA Press Release’ (Press Release, ADA 01, 28 May
2016) 1 <https://indd.adobe.com/view/publications/f477f23a-c664-45c4-ab0c-f9d
1004853c8/1/publication-web-resources/pdf/ADA_PRESS_RELEASE.pdf>. These
terms are also common in the typical discourse about ‘replica’ furniture: see Rebecca
Smithers, ‘Buy Your Design Classic Now — It’s About To Rocket In Price’, The
Guardian (online), 29 July 2016 <https://www.theguardian.com/money/2016/jul/29/
buy-design-classic-now-about-to-rocket-in-price-copyright-law>.
Gorman, above n 61, 283. The emphasis on copyright here comes from Gorman’s
focus on the European scene.
It is worth noting in passing that the concept of ‘licence’ here is a largely empty rubric.
It is only necessary to license a design if that design is protected by some intellectual
property right. It is not generally necessary to license a furniture design to produce it;
but it is in the interest of luxury manufacturers like Knoll or Herman Miller, as well
as the estates of the celebrity designers, to enter into ‘licensing agreements’ in order
to say, truthfully, that their product is for instance a ‘genuine, licensed Eames’, or
‘Le Corbu’.
426
HUNTER AND WOOD — THE LAWS OF DESIGN
a number of reasons it is hard to reconcile these claims of an aura of authenticity with
the actual practice of modernist design.
First, every single important icon of furniture design went through multiple iterations
to get to the point where it became the stable form that we recognise today. Take,
for example, the Barcelona chair, designed by Mies van der Rohe in 1929 for the
German Pavilion at the International Exhibition in Barcelona. It has changed form
quite dramatically in the period since its initial design:
The face of the original cushions consisted of one rectangular piece of pigskin
which was buttoned and tufted … The stuffing, originally specified to be traditional cotton, horsehair, and burlap, was later changed to more durable foam
rubber. Initially, chrome-plated flat-bar steel was used, although in the United
States production, it has been replaced with more durable stainless steel.116
In 1977, Knoll reintroduced a version that was quilted in nine rows and rested on
leather or rubber straps. The matching ottoman has had a similarly storied set of
changes, changing its form and structure and its constituent parts during its history
of manufacture.117 The same can be said of a range of other similarly iconic chairs,
such as the LC4 chaise longue designed by Perriand, Le Corbusier, and Jeanneret118
or the ‘S shaped’ plastic chair designed by Verner Panton.119
116
117
Gandy and Zimmermann-Stidham, above n 42, 56.
Ibid 56:
118
Ibid 73–5:
119
Like most pieces of furniture with a more than fifty-year history, the Barcelona Ottoman
has undergone several changes and adaptations since its debut in 1929. The first change
occurred in 1930, when the Ottoman was once again used by Mies in the Tugendhat
residence in Brno. Photographs of the living room of the house show a more defined
upholstery due to the introduction of welting. Subsequent versions retained this feature.
As on most steel furniture from this period, chrome plating replaced the original nickel
plating. Today, the frames of the US models of the ottoman and the chair are made of
polished stainless steel.
Many variations were attempted on the design, materials, and finishes of the original
version of the chaise longue. In the early 1930s, both Thonet (the first manufacturer
of Le Corbusier’s furniture) and Charlotte Perriand substituted laminated wood, solid
wood, or bamboo for the original metal. Changes in the general proportions and structure
of the chaise longue resulted from these modifications. Today’s chaise longue, reintroduced in 1965 by the Milanese manufacturer Cassina, is available with the original
chrome or lacquer finish on the tubular steel lounge. However, a black enameled iron
base has replaced the original two-toned base of blue-gray stretchers and dark gray legs.
The licensed version of the chair has been produced using five different plastics since
1963, cold-moulded, fibre-glass reinforced polyester resin, painted polyurethane rigid
foam, coloured thermoplastic polystyrene, painted polyurethane rigid foam, and
coloured polypropylene: see Verner Panton Furniture, Panton Chair <http://www.
verner-panton.com/furniture/archive/7/>.
(2016) 37 Adelaide Law Review427
There is, therefore, no stable, original design from which the luxury manufacturers
can trace their lineage of ‘authenticity’. Further, many of these changes were not
created by the iconic designers, but by engineers, steelworkers, lowly draftspeople,
and even salespeople in the factories where these designs evolved. No manufacturer
can draw a clear, unimpeded lineage back to, say, the Eames or Mies van der Rohe or
Breuer, to found their claims to authenticity.
There is a second reason to be wary of the claimed aura of authenticity in furniture
design. The aura dissolves when one considers the licensing history of these designs.
There is almost no iconic design that has been continuously produced for the life of
the design. A surprising number of designs that we think of as ‘classics’ were dropped
by their manufacturer-licensees during the 1960s, ’70s and ’80s, until mid-century
modernist furniture came back into style in the mid-1990s. Thus, most designs have
been out of production for long periods, even if they have only been in the control
of one licensee. Indeed, most designs do not have this latter kind of licence stability,
and most have been licensed by various manufacturers at various times. Of those
manufacturers, few ever had any connection to the designer from where an aura of
authenticity might emanate.
Consider the world’s most famous furniture designs as examples. All of the Eames’
designs have been out of production for long periods. Herman Miller let many of
their modernist designs lapse in the ’50s, and only brought back the Eames’ designs
in 1994.120 Mies van der Rohe’s iconic Barcelona chair has been manufactured by
at least three different licensees since 1929: Bamberg Metallwerkstätten in Berlin,
later Gebrüder Thonet in Vienna, and then by the US firm Knoll.121 The LC4 chaise
longue by Le Corbusier, Perriand and Jeanneret was designed in 1928 and is currently
being made under licence by Cassina SpA — but the Italian company only licensed
the design in 1965.122 Recently, the Danish furniture manufacturer Howe reintroduced Arne Jacobsen’s ‘Mosquito’ and ‘Tongue’ chairs, originally designed for the
Munkegaard School in the mid-1950s. Except for a brief period in the 1990s, the
designs had been out of production since the 1960s.123 The list goes on. The majority
of manufacturers’ claims that their design is ‘authentic’ cannot, therefore, be based
on historical stability of licensing of the design, or of uninterrupted manufacture of
the design.
As it happens, there exists a very small number of modernist furniture manufacturers
who can claim a form of authenticity aura in their work; but these manufacturers
resemble the 18th century artisans like Hepplewhite and Chippendale, whose control
over the exclusivity of their designs came from their control over an atelier, not from
intellectual property laws. The best example is George Nakashima who, as late as the
mid-20th century, owned and operated a small workshop in New Hope, Pennsylvania, where he produced small batch work for wealthy clients. He rarely worked with
120
121
122
123
John R Berry, Herman Miller: The Purpose of Design (Rizzoli, 2009) 233.
Gandy and Zimmermann-Stidham, above n 42, 52.
Fiona Baker and Keith Baker, Modern Furniture Classics (Carlton Books, 2000) 89.
HOWE, The Story <http://munkegaardchair.com/story>.
428
HUNTER AND WOOD — THE LAWS OF DESIGN
the kinds of industrial furniture-makers who nowadays claim ‘authenticity’ in their
products; and when he did so the collaborations were largely unsuccessful, shortlived, or conflicted.124 Instead he oversaw a small coterie of skilled artisans who
produced his design within his workshop. Like Chippendale some 200 years before
him, Nakashima commanded premium prices for his designs because he controlled
the output from his workshop. Unlike most modernist furniture manufacturers,
Nakashima’s work can claim a unique aura of authenticity and originality.
Unfortunately, this aura has a downside. Nakashima’s work was valuable as a consequence of his imprimatur on each piece, and when he died the workshop came close
to dying also. His daughter Mira worked with her father and eventually took over the
atelier on his death. She noted:
the strong personality that Dad had projected, the Nakashima that the world knew
and revered, and the myth he had fostered of the studio as a one-man operation —
all of which had been assets while he was alive — were now a liability that nearly
brought an end to the business. I began to have some inkling of this even at my
father’s funeral service, when, during the eulogy, the priest stated that since my
father’s hands were now still, ‘There will be no more of his furniture made.’
I wanted to shout from the choir loft, ‘Yes there will!’125
Mira Nakashima continues to produce designs in the style and in the workshop of
her father. The Nakashima workshop is one of few that can claim the kind of aura
of authenticity that is at the core of the modern luxury design claims for greater
protection. All of the others making claims for authenticity have no historical, legal,
or practical basis.
124
125
For example, some time around 1946, Nakashima made a commercial arrangement with Knoll. Nakashima was to design a series of pieces to be mass-produced
and marketed by Knoll, retaining the right to hand-make the same designs in the
New Hope workshop. The conflict in the market between industrial and handmade
furniture of the same design eventually did for the collaboration, and the relationship
ended eight years later. See Mira Nakashima, Nature Form & Spirit: The Life and
Legacy of George Nakashima (Harry N Abrams, 2003) 76–7. Other relationships with
industrial manufacturers were even less successful. In 1957, Nakashima created a
series of designs for Widdicomb-Mueller, a furniture manufacturer in Grand Rapids,
Michigan. The result was only on sale from 1958–61: at 162. The one successful
collaboration was with a craft workshop in Japan called Sakura Seisakusho to
produce Nakshima designs in Japan. This was a small-scale venture, which followed
the master craftsman model much more closely, and seemed to have been a positive
experience for both sides: at 190–7.
Ibid 244.
(2016) 37 Adelaide Law Review429
VI C onclusion
The Australian design system does not seem to be working.
The most up-to-date statistics provided by IP Australia, the government body respons­
ible for handling, examining and certifying design applications, shows that although
2015 saw the highest number of applications on record, the total was only 7 024,
compared to 73 188 trade mark applications and 28 605 patent applications. More
strikingly still, only 1 229 certifications were issued, meaning that slightly more than
a thousand enforceable design rights were created in 2015.126
It is not clear if this is a bad thing or a good thing. For all the calls for expanded
protection by the design industry, their claims are very poorly grounded: as we
have seen above, they rely on a conception of authenticity that is impossible for the
design industry to sustain. And calls for more principled reform — whether these
are from the Australian Law Reform Commission, the Australian Council on Intellectual Property, or the Productivity Commission — are almost always ignored by
Parliament.
The cultural history we present provides some guidance as to why design is such a
vexed area of law. Tracing the history of the furniture design industry and the laws of
design shows how closely the law and industry are connected, and demonstrates how
thin are the normative principles underlying design law. No wonder then that reform
in this area is almost impossible — there is too little principle and too much politics
to have a clear roadmap about how to progress.
This article has also shown that one particular style — mid-century modernism —
can have a remarkably profound effect on the intellectual property system and on the
industry that is reliant on it. The aesthetic choice of minimalism has structured, to a
huge degree, widespread unhappiness within the industry about the perceived limits
of intellectual property protection. Finally, our history provides an explanation of
why the design industry seeks stronger protection, and a theoretical account of why
these desires should be resisted.
Intellectual property is a complex system, one that has developed in response to
normative principles, the needs of our society, commercial interests, aesthetics, and
historical accident. Design industries have driven the development of the laws of
design, and the history of the laws is a complex dance between commercial interests,
public policy, style, fashion, and legal principle.
The future development of these laws will, no doubt, be equally intriguing.
126
IP Australia, ‘Australian Intellectual Property Report 2016’ (Report, IP Australia,
2016) <https://www.ipaustralia.gov.au/ip-report-2016>.
Joe McIntyre*
IN DEFENCE OF JUDICIAL DISSENT
A bstract
Recently, the issue of the ‘inefficient’ practice of judicial dissent has
become a matter of some controversy in Australia. Responding to this
controversy, this article defends the role of dissent by developing a
conceptual foundation to identify and understand the vital role it plays —
through various mechanisms — in promoting the excellent performance
of the judicial function. It then turns to an illustration of judicial excellence
in dissent by reference to a paragon opinion which demonstrates that
dissent is not a mere anachronism, but a vital tool in enhancing judicial
performance.
I I ntroduction
V
iews of the dissenting judge vary greatly: the judge as noble juridical warrior,
bravely resisting the misguided and dangerous mistakes of his or her peers; as
curmudgeonly recalcitrant, ignoring the inevitable march of progress in law
and society; as activist ideologue, abandoning the methods and constraints of office
to promote a personal agenda; or as mere self-indulgent attention seeker. A strong
and often emotive response of one form or another appears a common response to
judicial dissent.
However, while individual dissents often attract attention, the institution of the
dissenting judicial opinion is usually taken for granted as a feature of the common
law judiciary.1 Arguably, the ‘priesthood’ image of judging2 continues to exert such
force that much of juridical theory and practice remains under analysed.3
*
1
2
3
Senior Lecturer in Law at the University of South Australia, School of Law. This
paper has evolved from the Great Australian Dissent Workshop, held at the Gilbert
& Tobin Centre of Public Law of the University of New South Wales in June 2015.
Collected papers from that workshop are available in Andrew Lynch (ed), Great
Australian Dissents (Cambridge University Press, 2016). I would like to thank all of
the participants of that workshop for the many invigorating debates that have shaped
and informed this article.
John Alder, ‘Dissents in Courts of Last Resort: Tragic Choices?’ (2000) 20 Oxford
Journal of Legal Studies 221.
David Pannick, Judges (Oxford University Press, 1987) 14.
See generally Joe McIntyre, The Nature and Implications of the Judicial Function
(PhD Thesis, University of Cambridge, 2013) 2.
432
McINTYRE — IN DEFENCE OF JUDICIAL DISSENT
The judicial dissent is, though, something of an outlier — a mere opinion — lacking
direct binding force or normative consequences. In a world of escalating emphasis on
economic efficiency, where there is increasing pressure on judges to deliver ‘justice’
more quickly and with fewer resources,4 a practice that does not directly resolve
disputes nor articulate the law may appear superfluous and unnecessarily disruptive.
A dissentient necessarily holds themselves apart from their peers, a rebuke to their
judgement and reasoning. A dissent appears to undermine judicial collegiality, to
corrode legal certainty and, perhaps most damningly, to lengthen the pages of already
voluminous law reports.
Recently that relationship between dissent and judicial collegiality, collaboration and
collective decision-making, has become a matter of some controversy in Australia
following a spate of intellectual confrontations between leading judges over the
matter. As his Honour approached retirement from the High Court of Australia,
Justice Heydon, while in the United Kingdom, delivered an ‘extra­ordinary’5 speech
on the threat to judicial independence posed by the internal pressure in courts to
conform and collaborate in single judgments. When published on the eve of his
Honour’s retirement, in the Law Quarterly Review under the provocative title ‘Threats
to Judicial Independence: The Enemy Within’,6 the speech sparked a series of hostile
articles by leading judges in Australia in response.
At its heart, the controversy reflects different conceptions of how judges should
undertake their role and about the precise objectives judges should pursue. The
issues of dissent and collective decision-making become a window into a deeper
conflict about the nature, form and limits of the judicial role. These issues are too
rarely the subject of direct consideration. Heydon’s defence of the individualist judge
challenges us to think about what ends dissent serves. In turn this demands that we
reflect upon the underlying issues of judicial theory, as it is only by placing dissent
in the broader framework of function, method, impartiality (independence) and
accountability that it can properly be understood. Taken together, these ideas help us
to understand the roles of dissent.
Of course, the separate dissent is essentially a creature of the common law, and the
common law has long had a distrust of abstract theory. The common law method, with
its emphasis on analogy, prefers pragmatism to principle, and tends to be dominated
by parable and image rather than dry analysis. That predilection drives the method­
ology of this article. After a short theoretical analysis of the role of dissent, this
article explores that role by examining a single dissenting opinion: the judgment of
4
5
6
Douglas Drummond, ‘Towards a More Compliant Judiciary? — Part II’ (2001) 75
Australian Law Journal 356, 357. Cf J J Spigelman, ‘Judicial Accountability and
Performance Indicators’ (2002) 21 Civil Justice Quarterly 18, 20.
Andrew Lynch, ‘Collective Decision-Making: The Current Australian Debate’ (2015)
21 European Journal of Current Legal Issues.
J D Heydon, ‘Threats to Judicial Independence: The Enemy Within’ (2013) 129 Law
Quarterly Review 205.
(2016) 37 Adelaide Law Review433
Bray CJ7 of the South Australian Supreme Court in the case of R v Brown (‘Brown’).8
The case concerned an allegation that Brown had, under duress, aided Morley in his
killing of a woman by coughing aloud to disguise Morley’s approach to the victim.9
While a majority of the Court held that duress could never be a defence to a charge
of murder, Bray CJ rejected the ‘simple proposition that no type of duress can ever
afford a defence to any type of complicity in murder’.10
It is important to pause at this point to explicitly explain why this dissent has been
used to illustrate the role of dissent. While undoubtedly an example of good judgecraft, of the striving for a principled resolution in a field bereft of clear authority,
it is unlikely to come to mind when one thinks of memorable or famous dissents.
There is often an expectation that discussion of dissent should focus on the ‘great’
dissent, with greatness evidenced by the subsequent adoption of the substantive
rule.11 Readers will no doubt differ as to their nominee for mantle of best, greatest
or most important dissent, perhaps favouring those soaring judgments of fiery and
righteous rhetoric that ‘appeal to the brooding spirit of the law, to the intelligence
of a future day, when a later decision may possibly correct the error into which the
dissenting judge believes the court to have been betrayed’.12 Justice Harlan’s dissent
in Plessy v Ferguson,13 resisting the ‘separate but equal’14 doctrine, stands foremost
among such dissents in common law judicial history.15 Such judgments perform a
key social and political role,16 and take on the mantle of greatness over time as the
political values they embody come to dominate.17 While the dissent in Brown has
7
8
9
10
11
12
13
14
15
16
17
See generally John Emerson, John Jefferson Bray: A Vigilant Life (Monash University
Publishing, 2015).
[1968] SASR 467.
Ibid 480.
Ibid 499.
Alan Barth, Prophets with Honor: Great Dissents and Great Dissenters in the
Supreme Court (Knopf, 1974): considers the ‘prophet’ view of dissent; Thomas Healy,
The Great Dissent: How Oliver Wendell Holmes Changed His Mind — and Changed
the History of Free Speech in America (Picador, 2014); See, eg, A R Blackshield (ed),
The Judgments of Justice Lionel Murphy (Primavera Press, 1986): alternatively, there
may be a focus on the great dissenter.
Charles Evans Hughes, The Supreme Court of the United States; Its Foundation,
Methods, and Achievements: An Interpretation (Columbia University Press, 1928) 66.
163 US 537, 552–64 (1896).
Ibid 552.
See Mathew P Bergman, ‘Dissent in the Judicial Process: Discord in Service of
Harmony’ (1991) 68 Denver University Law Review 79, 82; See also Lochner v New
York, 198 US 45, 74–6 (Holmes J) (1905); Olmstead v United States 277 US 438,
471–85 (Brandeis J) (1928); Liversidge v Anderson [1942] AC 206, 244 (Lord Atkin).
See also Granatino v Radmacher (formerly Granatino) [2011] 1 AC 534, 575–595:
consider Baroness Hale’s dissent for a more recent example.
See Bergman, above n 15, 82–5.
Ibid 85: as Bergman notes, however, this process of adoption is, ultimately, a purely
contingent process.
434
McINTYRE — IN DEFENCE OF JUDICIAL DISSENT
been influential in informing subsequent debate,18 its use as an illustrative device is
not justified by that reception.
Rather, the dissent in Brown has been chosen for its juridical quality, as opposed
to its political or legal-normative impact, and is used here to illustrate the technical
value of dissent above and beyond mere subsequent adoption. It is used as a concrete
device to explore the general principle of why dissenting — as opposed to a particular
dissent — matters. It is, arguably, the relative anonymity of the case that makes it an
effective device in exploring the value of dissent. This case is not a cause célèbre. As a
result, it allows the reader to approach the analysis without preconceived opinions,
and to focus on the case in all its particularity. Indeed, it is precisely because I am —
and hopefully the reader is — largely ambivalent to the substantive content that this
device is effective. In a tradition that largely decries theory, this dissent is used as a
concrete illustrative device to explore in some detail the various roles performed by
dissent. In that sense, it is not a simple example of a famous dissent, but a means to
explore the benefits of dissenting. Chief Justice Bray’s dissent provides a concise and
vivid illustration of not only how an excellent dissent can be delivered, but why such
dissents are important.
This article outlines a conceptual framework for understanding the critical institutional roles of dissent and utilises Bray CJ’s dissent to concretely illustrate the
different aspects of that framework.
As resourcing for the justice system comes under pressure, arguments against
dissent — including efficiency, collegiality and simplicity — mount, as often from
the bench as from beyond. If, in light of such criticisms, the published judicial
dissent is to be something other than an institutional artefact, and if it is to remain a
vital practice, then it is necessary to outline positively the worth of the dissent to the
performance of the judicial function. This article aims to explain and illustrate both.
II A n ‘E nemy W ithin ’ — D issent
on
D issent
in
A ustralia
By the time that Justice Heydon first delivered the ‘Enemy Within’ speech to the
Cambridge Law Faculty in January 2012,19 his Honour’s eyes were already shifting to
the legacy he would leave upon retirement the following year. It seemed clear that this
legacy would not involve the reinvigorated traditional formalism which, for a time,
seemed likely with his appointment. That appointment had been preceded months
18
19
See DPP (Northern Ireland) v Lynch [1975] AC 653: in particular, the use of Brown in
this case, discussed below.
Heydon, ‘Enemy Within’, above n 6. The lecture was delivered on 23 January 2012 at
the Cambridge Law Faculty and later that evening at the Inner Temple, on 24 January
2012 at the Oxford Law Faculty, and on 26 January 2012 at Herbert Smith & Co.
(2016) 37 Adelaide Law Review435
earlier by an ‘(in)famous’20 speech delivered by Justice Heydon entitled ‘Judicial
Activism and the Death of the Rule of Law’.21 Decried as effectively a ‘job application’,22 the speech harshly criticised the activist ‘hero judge’ who undermined the rule
of law by relying on ‘individual judicial whim’23 rather than strict legal reasoning.
In an approach attractive to the conservative Howard Government, Justice Heydon
advocated a return to legalism, lambasting the approach of the Mason and Brennan
High Courts.24
For a time, it appeared that the vision for the Court of Justice Heydon would hold
sway, with his appointment heralding ‘a change in the Court’s jurisprudential and
methodological trajectory back to the traditional formalism that he so revered.’25
Justice Heydon sat at the ‘centre’26 of the High Court, forming a powerful block of
like-minded Justices. In the first three years following his Honour’s appointment,
Heydon J dissented, on average, in less than eight per cent of cases.27
However, this apparent consensus of approach was not enduring. With changes to
the composition of the Court, Justice Heydon increasingly found his role as central
collaborator a receding memory. The turning point was arguably the decision in Roach
v Electoral Commissioner,28 where the majority adopted an expansive interpretation
to the implied freedom of political communication. To Heydon J’s consternation his
20
21
22
23
24
25
26
27
28
Gabrielle Appleby and Heather Roberts, ‘He Who Would Not Be Muzzled:
Justice Heydon’s Last Dissent in Monis v The Queen (2013)’ in Andrew Lynch (ed),
Great Australian Dissents (Cambridge University Press, 2016) 335, 342.
J D Heydon ‘Judicial Activism and the Death of the Rule of Law’ (2003) 23 Australian
Bar Review 110; (2003) 47 Quadrant 9; (2003) 14 Australian Intellectual Property
Journal 78; (2003) 10 Otago Law Review 493.
Benjamin Haslem, ‘Gaudron Vacancy Activates Lobbying’, The Australian (Sydney),
4 December 2002, 5; Appleby and Roberts, above n 20, 342–3: discusses the conservative political context of the speech.
Heydon, ‘Judicial Activism’, above n 21, 119. Heydon borrows the term ‘hero judge’
from John Gava, ‘The Rise of the Hero Judge’ (2001) 24 University of New South
Wales Law Journal 747.
See generally Heydon, ‘Judicial Activism’, above n 21, 116.
Appleby and Roberts, above n 20, 343.
Andrew Lynch and George Williams, ‘The High Court on Constitutional Law: The
2004 Statistics’ (2005) 28 University of New South Wales Law Journal 14, 28.
Andrew Lynch and George Williams, ‘The High Court on Constitutional Law: The
2003 Statistics’ (2004) 27 University of New South Wales Law Journal 88, 93: specific­
ally, he dissented in 7 per cent of cases in 2003; Andrew Lynch and George Williams,
‘The High Court on Constitutional Law: The 2004 Statistics’ (2005) 28 University
of New South Wales Law Journal 14, 19: 8 per cent of cases in 2004; Andrew Lynch
and George Williams, ‘The High Court on Constitutional Law: The 2005 Statistics’
(2006) 29 University of New South Wales Law Journal 182, 190: 8 per cent of cases
again in 2005.
(2007) 233 CLR 162.
436
McINTYRE — IN DEFENCE OF JUDICIAL DISSENT
Honour found himself dissenting from what he saw as a radical approach to constitutional interpretation.29
By 2009, following the retirement of Justice Kirby, Justice Heydon found himself as
the most frequent dissenter on the Court.30 In the following three years his Honour’s
rate of dissent skyrocketed; 15 per cent in 2010,31 45 per cent in 2011,32 and
44 per cent in 2012.33 During this period, his anger at the interpretative techniques
of his colleagues became palpable.34 Notably, and in a ‘striking’35 example of individualism, Justice Heydon did not join with any other judge in 2012, evidencing
‘a complete lack of co-authorship … never observed before’36 in the modern judicial
statistics. Perhaps the starkest illustration of Heydon J’s isolation is seen in a series of
cases where his Honour commenced his judgment with the ‘pugnacious and irrefut­
ably terse statement’37: ‘I dissent.’38 In each of these cases, Heydon J was the lone
voice in dissent, and criticised not only the substantive conclusion, but the process of
legal reasoning deployed by the majority. By the time of his Honour’s final judgment,
Justice Heydon had ‘established a reputation for being a lone and curmudgeonly
dissenting voice on the High Court.’39
It was against this backdrop of increasing isolation that Justice Heydon delivered
his ‘Enemy Within’ speech. In what was widely seen as a parting shot across the
bows of his Honour’s contemporaries,40 Justice Heydon argued that the increasing
pressure within courts to produce single majority judgments was becoming a ‘most
29
30
31
32
33
34
35
36
37
38
39
40
Ibid 224–5 [181] (Heydon J).
Andrew Lynch and George Williams, ‘The High Court on Constitutional Law: The
2009 Statistics’ (2010) 33 University of New South Wales Law Journal 267, 276, 278.
Andrew Lynch and George Williams, ‘The High Court on Constitutional Law: The
2010 Statistics’ (2011) 34 University of New South Wales Law Journal 1030, 1039.
Andrew Lynch and George Williams, ‘The High Court on Constitutional Law: The
2011 Statistics’ (2012) 35 University of New South Wales Law Journal 846, 855.
Andrew Lynch and George Williams, ‘The High Court on Constitutional Law: The
2012 Statistics’ (2013) 36 University of New South Wales Law Journal 514, 522.
James Allan, ‘The Three Rs of Recent Australian Judicial Activism: Roach, Rowe
and (No)’riginalism’ (2012) 36 Melbourne University Law Review 744, 776, citing
Rowe v Electoral Commissioner (2010) 243 CLR 1, 97–9 [292]–[302] (Heydon J).
Ibid 526.
Ibid.
Appleby and Roberts, above n 20, 346.
Pape v Federal Commissioner of Taxation (2009) 238 CLR 1, 134 [396]; South
Australia v Totani (2010) 242 CLR 1, 93 [238]; Williams v Commonwealth (2012)
248 CLR 156, 282 [291].
Appleby and Roberts, above n 20, 335.
Heydon, ‘Enemy Within’, above n 6: Heydon’s caveat, set out at the start of his article,
that he ‘must not be taken to be speaking about the actual behaviour of any particular
court of which the author has been a member’; Lynch, above n 5, 4: described this
generously as ‘faintly incredible’.
(2016) 37 Adelaide Law Review437
insidious’ threat to judicial independence.41 In a ‘sustained reflection’42 on the
internal dynamics of appellate courts, Justice Heydon ranged beyond the issue of
dissent to explore issues of concurrent judgments and the discipline of judgment
writing, examining issues of independence, transparency and judicial quality.
The ‘Enemy Within’, unsurprisingly perhaps, provoked a string of responses
including from sitting and former High Court Justices.43 Sir Anthony Mason, for
example, challenged the magnitude of the threat posed by either dominating judges
or ‘herd-like’ complicit judges,44 though he accepted that the preference for joint
judgments waxes and wanes with the personalities of judges on the bench.45 Heery
sought to downplay the benefits Heydon attributed to writing judgments and denied
the empirical sustainability of Heydon’s position.46 Justice Kiefel responded by
extolling the virtues of joint judgments, principally in terms of efficiency of court
time and gains for legal certainty.47 Justice Gageler took the article as an opportunity
to address the deeper issue of why a judge should write judgments. Justice Gageler
highlighted the benefits, in terms of quality of decision-making, of allowing each
judge to go through the rigours of writing.48
Each of the articles picked up and responded to a different aspect of Heydon’s article.
There are differences of emphasis and of purpose, and conversations sliding past
each other. This is unsurprising. Discussing dissent, concurrence or joint judgment
unavoidably involves some engagement with questions of why any judgment should
be written, or published, which feeds into questions of what a judgment is trying to
achieve and how. Beneath this lay largely unarticulated foundational ideas of the
nature of the judicial function, and how it can be performed, promoted and protected.
And away lurking in the corner, in the dark shadows of terms like ‘certainty’ and
‘predictability’, are half-glimpsed and under-examined conceptions of law. This
heady mix is beguiling and contested, and it is little wonder that it is a struggle to pin
down the ‘core’ role of dissent.
Nevertheless, the broader, collective debate has undoubtedly created a renewed focus
in Australia on judicial decision writing in general, and on the judicial dissent in
41
42
43
44
45
46
47
48
Heydon, ‘Enemy Within’, above n 6, 222.
Lynch, above n 5, 4.
See Sir Anthony Mason, ‘Reflections on the High Court: Its Judges and Judgments’
(2013) 37 Australian Bar Review 102; Peter Heerey, ‘The Judicial Herd: Seduced by
Suave Glittering Phrases?’ (2013) 87 Australian Law Journal 460; Justice Stephen
Gageler, ‘Why Write Judgments?’ (2014) 36 Sydney Law Review 189; Justice Susan
Kiefel, ‘The Individual Judge’ (2014) 88 Australian Law Journal 554.
Mason, above n 43, 108–9.
Ibid 103–8.
Heerey, above n 43, 463.
Kiefel, above n 43, 556.
Gageler, above n 43, 201–3: in doing so Justice Gageler evoked the seminal article of
Sir Frank Kitto, ‘Why Write Judgments?’ (1992) 66 Australian Law Journal 787.
438
McINTYRE — IN DEFENCE OF JUDICIAL DISSENT
particular. The underlying concerns are not, however, confined in any way to Australia.
Courts are under increasing pressure, with tightening budgetary demands and calls
for ‘efficiency’, in order to produce ‘more’ resolutions with fewer resources.49 All the
while, litigation rates are falling while costs spiral. In such a context, dissent looks
like a structural inefficiency, an anachronism from another era. Dissent appears to
import redundancy into an overstrained system. Is it not better, surely, that judges
produce a single concurrent judgment — fewer hours to prepare, fewer pages to
read? Should not multiple judges, carefully crafting a single judgment, stand a better
chance of approaching the ‘ideal’ judicial resolution of the dispute? Even posing
such questions immediately challenges us to consider what ‘efficiency’ might mean
in a judicial context, whether ‘ideal’ is a meaningful standard, and precisely what it is
we are asking judges to achieve through the published judicial judgment. Underlying
the ‘Enemy Within’ debates is a profound disagreement as to the scope of the judicial
rule. The issue of judicial dissent, then, becomes a window through which to view
these issues of function, role and method.
III A pproaches
to
U nderstanding D issent
The movement of Justice Heydon from the centre of the Court to the isolated
periphery no doubt represented a (current) rejection of his Honour’s conception of
judicial decision-making methodology. The debate as to whether there is, or should
be, any pressure on judges to concur in a single judgment exposes, however, deeper
debates as to why we have written judgments at all, and why independence and
impartiality matter (and what form they take).
In his article, Heydon champions a view of dissent that enables judges to perform
their role without the pressure of having to ‘submit themselves to a process designed
to produce an artificial unanimity.’50 This echoes a similar contempt for unanimity
expressed by Thomas Jefferson of the Marshall Court’s practice of ‘unanimous
holdings as: “An opinion … huddled up in a conclave, perhaps by a majority of one,
delivered as if unanimous, and with the silent acquiescence of lax or timid associates,
by a crafty chief judge, who sophisticates the law to his own mind, by the turn of his
own reasoning.”’51
49
50
51
Productivity Commission, ‘Report on Government Services 2016’ (Report, 2016)
7.34–7.48 <http://www.pc.gov.au/research/ongoing/report-on-government-services/
2016/justice/courts/rogs-2016-volumec-chapter7.pdf>: includes a report on the
‘efficiency’ of Australian courts in terms of ‘clearance rates’, judges per 100 finalisations and cost per finalisation.
Andrew Lynch, ‘Dissent: The Rewards and Risks of Judicial Disagreement in the
High Court of Australia’ (2003) 27 Melbourne University Law Review 724, 738;
Heydon, ‘Enemy Within’, above n 6, 216–17.
Bergman, above n 15, 81 quoting Letter from Thomas Jefferson to Thomas Ritchie
(December 25, 1820).
(2016) 37 Adelaide Law Review439
This image speaks to a form of judicial practice intuitively and intensively repulsive.
The practice of dissent becomes instantly attractive in juxtaposition. Reflecting upon
this image grants us some insight into why dissents matter, and indeed what makes
a good dissent. While it is likely, as Sir Anthony Mason observes,52 that Heydon
overplays the prevalence of ‘herd-like’ tendencies in the modern Australian judiciary,
the image presented by Jefferson and echoed by Heydon alludes to the values of
discipline, intellectual honesty, integrity and courage we wish our judges to aspire
to. It seems clear that where the pursuit of such ideals demands a judge dissent, it is
proper that they do so, even — and especially — in the face of pressure to conform.
If dissent exists only as a symbolic embodiment of such values of judicial excellence,
as a signifier of integrity,53 it would serve an important institutional role.
There are, of course, many other roles ascribed to judicial dissent: dissent as prophecy
for the law;54 as embodying a democratic ideal;55 as an institutional form of civil
disobedience;56 as safety mechanism against majority error;57 as a spur within the
court to greater quality in decision-making;58 as clarifier of law59 and as a lever by
which to undermine decisions.60 In each case, however, the true value of dissent is in
its relationship to often unspoken underlying values. Dissent takes on an instru­mental
role in the pursuit of legal clarity and certainty, juridical accuracy and quality, and
perhaps, democratic ideals. As was evident in the ‘Enemy Within’ debates, failure
to properly examine these underlying issues often sees the authors talking past one
another in a way that clouds the disagreements over the proper role and scope of
dissent.
Unfortunately, the understanding of dissent is hampered by the fact that the dissenting
opinion is usually taken for granted as a feature of the common law judiciary.61
Discussions of judicial practices such as dissent and intra-court dynamics fall uneasily
52
53
54
55
56
57
58
59
60
61
Mason, above n 43, 108–9.
Justice Michael Kirby, ‘Judicial Dissent: Common Law and Civil Law Traditions’
(2007) 123 Law Quarterly Review 379, 381; Lynch, above n 50, 725.
Barth, above n 11; Benjamin Cardozo, Law and Literature and Other Essays and
Addresses (Harcourt, Brace & Co, 1931) 36; See also J Louis Campbell, ‘The Spirit of
Dissent’ (1983) 66 Judicature 305, 311.
William O Douglas, ‘The Dissent: A Safeguard on Democracy’ (1948) 32 Journal of
the American Judicature Society 104, 105; Alder, above n 1, 222.
Campbell, above n 54, 306.
Kirby, ‘Judicial Dissent’, above n 53, 397.
William J Brennan Jr, ‘In Defence of Dissents’ (1986) 37 Hastings Law Journal 427,
430; Lynch, above n 50, 740.
Bergman, above n 15, 85: a dissent ‘spotlights the reasoning utilised by the court
by articulating the logically opposite legal principle’ in a way that can clarify and
strengthens the majority decision. See also Roscoe Pound, ‘Cacoethes Dissentiendi:
The Heated Judicial Dissent’ (1953) 39 American Bar Association Journal 794, 795.
Brennan, above n 58, 430.
Alder, above n 1, 221.
440
McINTYRE — IN DEFENCE OF JUDICIAL DISSENT
within broader paradigms of jurisprudence, constitutional or administrative law, and
do not tend to attract sustained academic analysis. It is perhaps unsurprising then,
that there has been ‘little discussion’62 and ‘limited effort’63 to systematically reflect
upon and delimit the role of dissent in judicial decision-making. There have been
notable exceptions, including contributions by Bergman,64 Lynch,65 Justice Kirby66
and Alder,67 each of whom attempt, in various ways, to set out and explore the various
roles performed by judicial dissents.
Alder, for example, identifies two broad kinds of argument in favour of dissents: one
related to the substance of a dissent ‘as a way of identifying and protecting incommensurable values’ and the second concerning ‘the practice of dissent as a quality
control and safety valve.’68 From these arguments he derives five key functions
performed by judicial dissent, namely:
1 to help ensure that all members of the panel are treated equally, with no point of
view suppressed;69
2 to strengthen public confidence in the judiciary by sharpening the reasoning
of the majority, ensuring that decisions are fully considered and that individual
decision makers are accountable;70
3 to embody the traditional values of freedom of expression and conscience as of
intrinsic value;71
4 to expose weaknesses in the legal proposition of the majority;72 and
5 to focus and clarify our understanding of the issues.73
62
63
64
65
66
67
68
69
70
71
72
73
Ibid.
Lynch, above n 50, 724.
Bergman, above n 15.
Lynch, above n 50. See also Andrew Lynch, ‘Is Judicial Dissent Constitutionally
Protected?’ (2004) 14 Macquarie Law Journal 81.
Kirby, ‘Judicial Dissent’, above n 53. See also Justice Michael Kirby, ‘Appellate
Courts and Dissent: Diversity in the Protection of Freedom’ (2004) 16 Judicial
Officers Bulletin 25; Justice Michael Kirby, ‘Judicial Dissent’ (2005) 12 James Cook
University Law Journal 4.
Alder, above n 1.
Ibid 240.
Ibid.
Ibid.
Ibid.
Ibid 241.
Ibid.
(2016) 37 Adelaide Law Review441
Similarly, Lynch sees judicial dissent as serving three crucial functions: first, ensuring
the judiciary ‘enjoys certain key capabilities associated with a society governed in
accordance with democratic principles and values’; secondly, enhancing the process
of adjudication by stimulating clearer judgment writing, clarifying the majority
views ‘by throwing them into sharper relief’ in a way that ‘speaks to the integrity’ of
the process, and the independence of the judiciary; and thirdly, helping, over time, to
develop and advance the law.74
This listing of functions of dissent by Alder, Lynch and others does help us to
understand what a dissent can do. However, without explaining the relationships
between these roles, or the hierarchies and potential for conflict between them, such
listing of roles leaves substantial space through which the practice of dissent can be
challenged by those unimpressed with these functions.
For example, it has been suggested that there ‘remains a bias in the legal community
against dissent’,75 based upon a perception that dissent undermines legal certainty76
and diminish the authority of the court.77 Dissents are seen as potentially undermining judicial independence78 and collegiality,79 and have been criticised as being
nothing more than an act of judicial ‘self-indulgence’80 and ‘self-publicity’ at public
expense.81
There remains genuine disagreement, not only as to the precise benefits offered by
the dissent, but also as to the costs inherent in them. Are the institutional benefits
of openness and accountability gained through dissent outweighed by the loss of
collegiality, additional resources and potential reduction of legal certainty? Is the
judgment of the court, as a whole, weakened or strengthened by the presence of
a dissent? It is not possible to answer effectively these questions by collating the
different roles performed by dissent, or the potential costs imposed by them. Rather,
to understand why dissent matters, it is necessary to place the various roles performed
by dissent into a broader framework, thereby providing a structured foundation for
the analysis of dissent.
74
75
76
77
78
79
80
81
Lynch, above n 50, 725–6, 737.
Campbell, above n 54, 305.
Alder, above n 1, 242; Kirby, ‘Judicial Dissent’, above n 53, 381; Robert Post, ‘The
Supreme Court Opinion as Institutional Practice: Dissent, Legal Scholarship, and
Decision making in the Taft Court’ (2001) 85 Minnesota Law Review 1267, 1311.
Alder, above n 1, 235. See, eg, Brennan, above n 58, 429 quoting Learned Hand, The
Bill of Rights (Harvard University Press, 1958) 72: Learned Hand complained that a
dissenting opinion ‘cancels the impact of monolithic solidarity on which the authority
of a bench of judges so largely depends’.
Alder, above n 1, 243.
Brennan, above n 58, 429.
Kirby, ‘Judicial Dissent’, above n 53, 381.
Alder, above n 1, 243.
442
McINTYRE — IN DEFENCE OF JUDICIAL DISSENT
IV T owards a T heory of D issent : D issent
N ature of the J udicial F unction
and the
That foundation can be provided by developing a clear articulation of the nature of
the judicial function. That articulation of function guides not only the understanding of the role of dissent, but provides some measure by which to judge the quality
of a dissent: a good dissent must further the excellent performance of the judicial
function.
Too often the reason that debates over whether a given dissent is detrimental, distracting, useful or, indeed, great, flounder is that there is little agreement as to the criteria
by which a dissent, or indeed a judgment generally, may be judged. This foundational task of articulating what makes any effective judgment often founders itself on
­unarticulated conceptions of the judicial function. By explicitly articulating what a
judge is, or ought to be, striving for in delivering a judgment — that is, understanding the nature of the judicial function — it becomes possible to understand more
coherently the role of dissent in that process.
Unfortunately, while there is a strong intuitive understanding of the judicial function,
there is no canonically accepted statement of it. Moreover, it is beyond the scope
of this article to provide an extensive examination of the nature of the judicial
function.82 It suffices, for present purposes, to note that the judicial function has two
core, inter-related aspects; first, dispute-resolution and secondly, social (normative)
governance. The resolution of disputes is clearly at the heart of the judicial function.
As Shapiro notes, everyone ‘seems to agree that conflict resolution is a basic task
of courts.’83 Judicial decisions are a particular type of institutionalised third-party,
merit-based resolution, conforming to a particular method and process.84 However,
courts are not ‘simply a publicly funded dispute-resolution centre’,85 but core institutions of governance. Judicial decisions not only resolve disputes, but constitute
acts of normative governance; each judicial decision impacts the legal norms it
applies. This second role of courts as ‘instruments of social regulation’86 flows from
82
83
84
85
86
See generally McIntyre, above n 3: for an extensive discussion of this topic, and its
impact upon issues of judicial theory and practice.
Martin Shapiro, Courts: A Comparative and Political Analysis (University of Chicago
Press, 1981) 17.
Louis L Jaffe, English and American Judges as Lawmakers (Clarendon Press, 1969)
12: this method is deeply familiar. As Jaffe observes, it involves the ‘unqualified application of the known law to facts fairly found’. Cf Sir Anthony Mason, ‘The Role of
the Judge at the Turn of the Century’ in Geoffrey Lindell (ed), The Mason Papers
(Federation Press, 2007) 46, 51: Mason argues that the judicial function simply
requires the judge ‘to resolve cases by applying the law to the facts as found’; R v
Deputy Industrial Injuries Commissioner; ex parte Moore [1965] 1 QB 456, 488: thus
the judge who spins a coin or consults an astrologer meaningfully ceases to be a judge.
Spigelman, above n 4, 26.
Sir Francis Gerald Brennan, ‘Judging the Judges’ (1979) 53 Australian Law Journal
767, 768.
(2016) 37 Adelaide Law Review443
the rational, reasoned and public resolution of disputes. The effect of each decision
radiates beyond the particular dispute to vitalise, clarify and develop the law,
balancing interests of responsive flexibility and justice with concerns for certainty
and predictability.
The judicial function places the judge in an unavoidable place of tension; dispute-­
resolution demands finality and a focus upon the individual litigants, whereas
governance demands the pursuit of responsive correctness, focusing on broader
social interests and the generalised maintenance of legal norms. Moreover, different
judges will legitimately differ not only as to the proper governance objectives to be
pursued through decisions, but also as to the best means of achieving those ends.
As these genuine tensions are inherent in the role, it is unavoidable that there will be
disagreement over the balancing of incommensurable values making it ‘impossible
that bodies of men should always be brought to think alike’.87 The fact of dissension
is an unavoidable aspect of the judicial role.
However, the publication of a dissenting judgment must be justified. Dissent must
either directly further the attainment of these two aspects of the judicial function, or
indirectly promote and encourage such attainment. In the latter aspect, the dissent
should be understood as a mechanism of judicial accountability.
Broadly understood, judicial accountability is a limited, functional or instru­
mental concept88 that operates to promote the excellent performance of the judicial
function.89 It is concerned with promoting the judicial function by maintaining both
the actuality of, and reputation for, integrity. These ‘internal’ and ‘external’ elements
of accountability respond to different aspects of that concept.90 The internal,
‘subjective’ or ‘personal’, aspect of judicial accountability is directed towards the
individual judge, developing a personal and professional imperative to actually ‘do
the right thing’. It depends upon the personal integrity of the judge to actually adhere
to judicial method and pursue excellence. In contrast, the external, ‘objective’ or
87
88
89
Grindley v Barker (1798) 1 Bos & P 229, 238; 126 ER 875, 880 (Eyre CJ).
Charles Gardner Geyh, ‘Rescuing Judicial Accountability from the Realm of Political
Rhetoric’ (2006) 56 Case Western Reserve Law Review 911, 916; Susan Bandes,
‘Judging, Politics, and Accountability: A Reply to Charles Geyh’ (2006) 56 Case
Western Reserve Law Review 947.
Joe McIntyre, ‘Evaluating Judicial Performance Evaluation: A Conceptual Analysis’
(2014) 4 Oñati Socio-legal Series 898, 905–8: the
90
mechanisms of judicial accountability [can be understood as] operat[ing] to promote
the optimal performance of the judicial function, motivating the judge to adhere to the
judicial decision-making method, maintain impartiality, avoid the abuse of office, and
strive for excellence.
See also Elizabeth Handsley, ‘Issues Paper on Judicial Accountability’ (2001) 10
Journal of Judicial Administration 180, 218.
McIntyre, above n 3, 141–4. See also David Pimentel, ‘Reframing the Independence
v Accountability Debate: Defining Judicial Structure in Light of Judge’s Courage and
Integrity’ (2009) 57 Cleveland State Law Review 1, 16–17.
444
McINTYRE — IN DEFENCE OF JUDICIAL DISSENT
‘structural’, aspect of judicial accountability is directed to the creation and maintenance of an institutional reputation for integrity. This complements the actual
integrity of personal accountability, ensuring that judges both act with integrity and
appear to do so.91 The institutional reputation for integrity, quality and impartiality
is critical to found the social legitimacy upon which both the dispute-resolution and
social governance aspects of the judicial function depend.92 Mechanisms of judicial
accountability may promote the excellent performance of the judicial function by
furthering either or both of the internal and external aspects of accountability.
A The Roles of the Published Dissent
The publication of dissents contributes both directly and indirectly to the excellent
performance of the judicial function. Firstly, dissent, like all judicial reason-­giving,
can have a profound direct impact upon the proper performance of the judicial
function.93 By persuading the parties that their positions have been considered,
reasons promote finality in resolution.94 A dissent reassures the losing party that
their view has been heard;95 that at least one judge agreed with them. This not only
aids the losing party in assessing whether to appeal, but it helps them come to terms
with the decision, be comforted by the fact that their position was considered, and
contributes to the overall judicial resolution of the underlying dispute.
Secondly, all reasons have a role in providing effective normative guidance.96
Dissents do not have the immediate stare decisis status of the majority decision,
but nevertheless have profound and direct normative impact. In shining a spotlight
on the reasoning of the majority,97 the dissent provides a tighter triangulation of the
current state of the law. Moreover, as law is a system in motion, dissents can assist
in predicting where the law may go. This is particularly so where there is disagreement of incommensurable values, for which there is ‘no reason to assume that a
majority is more likely to be right than a minority in relation to a value judgment’.98
91
92
93
94
95
96
97
98
R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256, 259: this need for institutional legitimacy reflect that oft cited aphorism that ‘justice should not only be done,
but should manifestly and undoubtedly be seen to be done’.
Nihal Jayawickrama, ‘Combating Judicial Corruption’ (2002) 28 Commonwealth
Law Bulletin 561, 563: both aspects of the foundational judicial function demand an
institutional reputation for judicial integrity; David C Brody, ‘The Use of Judicial
Performance Evaluation to Enhance Judicial Accountability’ (2008) 86 Denver
University Law Review 115, 125.
Murray Gleeson, ‘Judicial Accountability’ (1995) 2 The Judicial Review 117, 122.
Chaim Perelman, Justice, Law and Argument: Essays on Moral and Legal Reasoning
(Reidel Publishing, 1980) 143.
Campbell, above n 54, 308; Alder, above n 1, 242; Kirby, ‘Judicial Dissent’, above
n 53, 393.
Gleeson, above n 93, 122; Handsley, above n 89, 191: the obligation to give reasons
can promote the general acceptability of judicial decisions.
Bergman, above n 15, 85.
Alder, above n 1, 222.
(2016) 37 Adelaide Law Review445
A dissent may ‘weaken’ the majority position, but may also strengthen the law by
enriching the legal ‘marketplace of ideas’,99 keeping ‘alive choices for the future’100
and acting as a ‘beacon’ for future developments.101 To deny this normative role in
the name of ‘legal certainty’ is to adopt a jaundiced and anachronistic conception of
law. The publication of a dissent can directly contribute to the excellent performance
of the judicial function by helping to resolve more fully and finally the underlying
dispute, and to provide more effective normative governance.
Thirdly, published dissents like the obligation to provide reasons more generally,
can operate as a powerful mechanism of judicial accountability, giving substance to
the principle of open justice and enhancing both the internal and external aspects of
judicial accountability.102 A dissent not only exposes the reasoning of the dissentient
to scrutiny and criticism ‘by litigants, colleagues, the media and scholars’,103 but
also intensifies such scrutiny in respect of the decision of the majority. This scrutiny
and potential for critique not only acts as a powerful incentive to avoid ‘judicial
autocracy’ and ‘the arbitrary exercise of judicial power’,104 but as an effective
stimulant in the avoidance of error and the attainment of judicial excellence and
integrity.105 The often anguished self-reflection and self-examination central to good
decision-making are amplified by the requirement to publish reasons.106 This takes
on greater intensity for the dissentient, who is necessarily vulnerable and exposed in
a way the majority is not. Dissents become a spur for quality decision-making for all
judges involved ‘forcing the prevailing side to deal with the hardest questions urged
by the losing side.’107 By encouraging reflection and care by both the majority and
minority, dissents promote judicial integrity and diligence, they are thus a powerful
tool of internal accountability. Dissents promote public confidence in such integrity
and diligence, operating as a powerful tool of external accountability. While a dissent
may air ‘the court’s dirty laundry before the public’108 the reputation for integrity is
far more important than any reputation for infallibility.109 As Bergman notes, while
dissenting opinions ‘may destroy illusions of judicial inviolability, they provide
99
100
101
102
103
104
105
106
107
108
109
Brennan, above n 58, 433.
Alder, above n 1, 224.
Kirby ‘Judicial Dissent’, above n 53, 393.
Justice Michael Kirby, ‘Judicial Accountability in Australia’ (2003) 6 Legal Ethics
41, 46: in addition to these direct accountability consequences, reasons can facilitate
review of the decision on appeal; Andrew Le Sueur, ‘Developing Mechanisms for
Judicial Accountability in the UK’ (2004) 24 Legal Studies 73, 90: reasons also make
‘transparent the different views held by members of the court’.
Kirby, ‘Judicial Accountability’, above n 102, 46. See also Kitto, above n 48, 382.
Kirby, ‘Judicial Accountability’, above n 102, 46.
Kitto, above n 48, 790.
Ibid 791–2.
Brennan, above n 58, 430; See also Lynch, above n 50, 740.
Bergman, above n 15, 87.
Kirby, ‘Judicial Dissent’, above n 53, 394: Justice Kirby rightly notes that today ‘infallibility is denied to any human institution’.
446
McINTYRE — IN DEFENCE OF JUDICIAL DISSENT
assurance to the public that judicial decisions are not perfunctory.’110 Moreover,
dissents force the individual judge into the public sphere, allowing personal scrutiny
of the quality of their work and the integrity of their conduct. It is for these reasons
that Justice Kirby J describes the dissent as ‘the most precious indication of the
integrity, transparency and accountability of the work of the judicial branch of
government’.111 The dissent remains, at least in the common law world, one of the
most powerful mechanisms of internal and external accountability.
Dissent, then, becomes an effective means of furthering both dispute-resolution and
normative governance aspects of the judicial function. This instrumental conception
of dissent not only guides the reconciliation of the various roles performed by dissent,
but allows an assessment of the quality of a dissent. The excellent dissent is one
that demonstrates judicial integrity and quality judge-craft in a manner that furthers
the performance of the dispute-resolution and normative governance aspects of the
judicial function, both directly and indirectly. Such a dissent must be conscious of the
limitations that minority status brings, and of the institutional costs of the dissent, for
like all accountability mechanisms, dissents are limited by their functional nature.
Nevertheless, within those boundaries an excellent dissent must be bold, persuasive
and fearless. Such a dissent will enhance both the law and the reputation of the court
for it having been given.
The focus on what might constitute an excellent dissent is useful in understanding dissent more generally, providing a concrete and clear examination of the role
of dissent not achievable by mere theoretical articulation. This is particularly so in
the broader common law context. The common law method is of stories told and
explored, not of abstract thought and cold theory. In such a context, the exposition
of a paragon of excellence in dissent can help to illustrate, in a particularly vivid and
accessible manner, why dissent matters.
V A P aragon
of
D issent : F orm , S ubstance
and
S tyle
The decision in Brown — in both its form and substance — provides just such a
paragon. The appellants were convicted over the murder of one Elise Leggett, in
whose house Brown and his wife lived as lodgers.112 Morley had attempted to
smother Mrs Leggett with a pillow as she slept, before repeatedly stabbing her with a
knife. Brown was allegedly a party to an arrangement to kill Mrs Leggett, and aided
Morley in that enterprise. Morley raised a defence of insanity, while Brown claimed
that he acted under duress, compelled by the threats of Morley.
The appeals were heard jointly. Because of a quirk in the Criminal Law Consolidation Act 1935 (SA) as it stood at the time (though subsequently amended), this joinder
provides a unique insight into the judicial appreciation of the limits and role of the
110
111
112
Bergman, above n 15, 88.
Kirby, ‘Judicial Dissent’, above n 53, 381.
Brown [1968] SASR 467, 468.
(2016) 37 Adelaide Law Review447
dissenting judgment. Section 349(2) of that Act required that the decision in criminal
appeals shall be delivered in single, joint judgment of the Court, unless the Court held
it to be appropriate to provide separate judgments.113 The effect of the provision was
to demand judicial reflection upon both the need and cost of dissenting, ensuring that
any dissent emerged only by deliberate election and presumably after some internal
advocacy. Such a presumption against dissenting opinions required something more
than mere disagreement; it demanded some particular intensity in the divergence of
views so as to justify the pronouncement of separate judgments. By its form, this
case illustrates this distinction, with a very different approach being taken for the
two appeals.
A The Facts of Brown
The relationship between Brown and Morley was nasty, brutish and short. They met
on the Saturday, and spend most of the day together. On the Sunday morning Morley
came to Brown’s house. In the early afternoon, Morley suggested ‘“knocking off ”
Mrs Leggett’.114 When Brown refused, Morley threatened to harm Brown’s wife
before drawing a carving knife, placing it against Brown’s throat and ordering him to
do as he said or suffer the same fate.115 The men began playing cards, with Morley
decreeing that the loser had to kill Mrs Leggett.116 Brown lost. Morley instructed
him to put ‘Ratsac’ in Mrs Leggett’s coffee.117 Brown complied, though put in only
a quarter of a teaspoon which was, and which he knew to be, harmless. Mrs Leggett
drank the coffee with no ill effects. Eventually, Morley left and Brown went to bed.118
However, an hour later Morley returned, woke Brown, and told him he was going to
‘knock off’ Mrs Leggett. When Brown protested, Morley threatened him, telling
him that if he did not join in he would kill Brown’s wife and parents. After half an
hour of argument and threats, Morley, who had previously spoken of suffocating
Mrs Leggett, picked up a pillow and ordered Brown to cough to cover the sound of
Morley’s movements. Brown began coughing and Morley left.119 Gurgling noises
113
114
115
116
117
118
119
That section was incorporated into South Australian law in the Criminal Appeal Act
1924 (SA) s 4(2), which largely mirrored a similar provision in the original Criminal
Appeal Act 1907 (UK) 7 Edw VII, c 23, ss 1(4)–(5). Senior Courts Act 1981 (UK)
s 59: the general prohibition on separate judgments continues to apply to the UK
Court of Appeal Criminal division. R v Howe [1987] AC 417, 438 (‘Howe’); Peters v
The Queen (1997) 192 CLR 493, 556; Alder, above n 1, 242; Kirby, ‘Judicial Dissent’,
above n 53, 392: it has been suggested that single, joint judgments are desirable in
all criminal appeal matters and this approach was justified by the particular need
for certainty in criminal law cases and on the basis of not wanting to disappoint an
accused who found that at least one judge supported him.
Brown [1968] SASR 467, 480.
Ibid.
Ibid.
Ibid.
Ibid.
Ibid.
448
McINTYRE — IN DEFENCE OF JUDICIAL DISSENT
were heard before Morley returned, covered in blood, having attempted to suffocate,
then proceeded to stab Mrs Leggett to death.
On Brown’s evidence, he believed that, at all times following the initial threat,
Morley was armed, willing and able to attack both Brown and his wife. While the
majority were sceptical of the ‘inherent weaknesses’120 of this version of events,
they nevertheless recognised the right of the jury to be instructed as to its legal
effects.121 The controversy was the nature of those legal effects, and the adequacy of
the directions given of them. Brown was clearly aware that Morley intended to kill,
and that Morley wished to co-opt him into the enterprise. In coughing to disguise the
noise Morley might make, Brown lent some, albeit very minor, assistance to Morley
in that murderous enterprise. If Brown could not rely on a valid defence, these facts
would be sufficient to see him convicted for murder as, in the language of the time,
a ‘principal in the second degree’.122 Brown argued that the threats of Morley were
of sufficient intensity and immediacy as to place him in genuine fear for his life if he
did not comply, directly raising the issues of whether duress was, or could ever be,
a defence to murder.123
B The Joint Judgment in Morley’s Appeal
The Court, comprised of Bray CJ, Bright and Mitchell JJ, delivered a single judgment
dismissing Morley’s appeal concerning the adequacy of the insanity directions and the
alternative verdict of manslaughter. However, while it appears there was consensus
on the insanity appeal points, it is clear that the Court was divided on both whether
the judge should have expressly informed the jury about the possibility of returning
a verdict of manslaughter, and on the consequences of the failure to give such a
direction. While the Court unanimously held (‘we all think …’) that no properly
instructed jury could have returned a verdict of manslaughter,124 there was disagreement over whether the trial judge ought nonetheless to have highlighted the jury’s
power to return a verdict of manslaughter (‘a majority of us think …’).125 A majority
of the Court thought that even if there was an error, it was an appropriate case to apply
the proviso.126 One judge, however, thought that the proviso can ‘never be applied
to a direction which denies the power of the jury to return the … merciful verdict of
manslaughter’.127 It is not possible, however, to say which judge took this minority
view, nor indeed whether there were differently composed majorities for different
120
121
122
123
124
125
126
127
Ibid 481.
Ibid.
Ibid 468.
Ibid.
Ibid 471.
Ibid.
Ibid; Criminal Law Consolidation Act 1935 (SA) s 353(1): under the proviso a court
hearing a criminal appeal may dismiss the appeal if it accepts that, although there has
been some error in the trial, there was no ‘substantial miscarriage of justice’.
Brown [1968] SASR 467, 473.
(2016) 37 Adelaide Law Review449
issues. The judgment remains, in consequence of s 349(2), a single joint judgment.
The fact of disagreement is revealed only by the use of language of ‘majority’ in
contrast to the more inclusive ‘we all think’, ‘we agree’ or ‘in our opinion’,128 and by
the phrase ‘[o]ne member of the Court thinks.’129 The composition of the majority in
Morley’s appeal remains undisclosed, and while there was disagreement it clearly did
not take on sufficient intensity to justify a separate dissent.
C The Emergent Dissent in Brown’s Appeal
This approach stands in stark contrast to the judgment in relation to the appeal by
Brown, where it is revealed gradually that there is a split in the Court of sufficient
intensity as to justify a separate dissent. The collective Court begins the discussion
of Brown’s appeal with little indication of internal disagreement. In setting out the
grounds of appeal, summarising the facts and describing the directions given,130
the impression is given of a united Court. It is not until judgment is passed on the
adequacy of the trial judge’s directions, some six pages into the decision, that it
becomes apparent that the initial appearance of unanimity is misplaced. The language
suddenly shifts to the majoritarian language seen in Morley’s appeal (‘[t]he view
above expressed commands the support of the majority of us’),131 with the possibility of duress ever being a defence to murder subject to profound disagreement
in the Court. However, in contrast to the position in Morley’s appeal, that disagreement is drawn into the open and made explicit, with the identity of the disputants
revealed. In disclosing that they are, ‘with regret, not in accord with the learned
Chief Justice’,132 Bright and Mitchell JJ become active personal participants in the
judicial discourse, adopting a mantle of personal responsibility otherwise absent
in the anonymity of Morley’s appeal. When, six pages later, Bray CJ delivers his
Honour’s separate judgment on the issue of duress, it is as the Chief Justice as an
individual judge. From the muddle of single, majority judgment, a separate dissent
emerges. As a result, the dissent of Bray CJ in Brown is striking for the way it illustrates — by its very form — the value of dissent in enhancing the quality of judicial
decision-making, and as more simply than a vanguard of legal change.
1 The Decision of the Majority
The majority were unequivocal: duress could never ‘excuse a person who performs an
act which he intends to be in furtherance of a proposed murder.’133 In contrast to the
implied disagreement in Morley’s appeal, the majority were at pains to justify their
adoption of a different approach to the Chief Justice.134 In reaching their conclusion,
128
129
130
131
132
133
134
Ibid 471, 476.
Ibid 473.
Ibid 479–85.
Ibid 485 (Bright and Mitchell JJ).
Ibid.
Ibid.
Ibid.
450
McINTYRE — IN DEFENCE OF JUDICIAL DISSENT
Bright and Mitchell JJ relied upon two Privy Council cases: Sephakela v The Queen
(‘Sephakela’)135 and Rossides v The Queen (‘Rossides’).136 As reports of both cases
were not readily available the judgments were set out in full in the majority judgment
of Brown.137 Sephakela involved a case of ritual killing in Lesotho. As there was
no evidence of compulsion, the Privy Council found it unnecessary to express an
opinion on the potential availability of duress as a defence to murder.138 In Rossides,
the accused was convicted of murder for shooting the deceased under threat of his
own death if he did not. The issue of duress was raised in argument, but in dismissing
the appeal the Privy Council gave no reasons at all.
Drawing on these cases, Bright and Mitchell JJ observed that it ‘had never been
expressly decided that duress can excuse murder’ but that ‘there are many cases in
which a view has been expressed that it cannot, or probably cannot.’139 The majority
felt that it was against the public interest to allow the defence on the basis of difficulties of identifying the sufficiently immediate and grave threats, and the proximity
of the act to the killing.140 These considerations — briefly expressed, and neither
explored nor justified — led the majority to hold that duress could nerver, as a matter
of law, excuse Brown. On that basis the appeal was dismissed.
2 The Dissent of Bray CJ
The decision of the majority, with its uncritical citation of two obscure, marginally
relevant decisions and little further analysis, stands in stark contrast to the principled
labour of Bray CJ. The dissent begins with an explicit recognition of the restriction of
s 349(2), and the need, in light of the ‘misfortune’ of disagreeing on the legal effect
of duress, for a separate judgment.141 In addressing that issue, Bray CJ not only
recognises that the ‘subject of duress has been discussed by the text writers for three
centuries’,142 but briefly and thoughtfully outlines that history. While Hale143 and
Stephen144 effectively denied that duress could ever be a defence to any criminal act,
135
136
137
138
139
140
141
142
143
144
[1954] Criminal Law Review 723.
[1957] Criminal Law Review 813.
Brown [1968] SASR 467, 485–7, 487–90 (Bright and Mitchell JJ).
Ibid; Glanville Williams, Criminal Law: The General Part (Stevens & Sons, 2nd ed,
1961) 753: the majority were dismissive of Williams’ statement that the Privy Council
had ‘assumed that duress was a defence’.
Brown [1968] SASR 467, 489 (Bright and Mitchell JJ).
Ibid 489–90.
Ibid 491 (Bray CJ).
Ibid 492.
Sir Matthew Hale, Historia Placitorum Coronæ: The History of the Pleas of the
Crown (T Payne, 1800) vol 1, 49–52.
Sir James Fitzgerald Stephen, History of the Criminal Law (Macmillan, 1883) vol 2,
107.
(2016) 37 Adelaide Law Review451
and East145 and Blackstone146 would have excluded the defence in cases of murder,
more recent authors regarded the matter ‘as very much at large’.147 In light of this
uncertainty, Bray CJ sought to develop a principled position by deconstructing the
cases and relying on ‘general reasoning’.148 His Honour began with the cases on
treason (‘the most serious of crimes’) to illustrate clearly that ‘some types of duress
may be a defence to some kinds of treason’,149 even if it is excluded in other cases.
His Honour then drew an analogy with murder, concluding that ‘authorities which
say … that duress is not a defence to murder generally do not necessarily prove that it
is not a defence to any conceivable type of complicity in murder, however minor.’150
In doing so, Bray CJ challenged the ‘extreme absolutist views’ of Hale and Stephen
as not representing the law,151 arguing that any blanket denial of duress would ‘prove
too much’ and could not ‘now be supported’.152 Instead, by drawing upon treason
cases, Bray CJ sought to unpack the theoretical foundations of the defence of duress,
and explore the rationale for its restriction in murder cases.
Chief Justice Bray was prepared to accept the general proposition that, in the words
of Blackstone, the accused ‘ought rather to die himself, than escape by the murder of
an innocent’.153 However, his Honour countered by observing that the force of that
proposition is ‘obviously considerably less where the act of the threatened man is
not the direct act of killing but only the rendering of some minor form of assistance,
particularly when it is by no means certain that if he refuses the death of the victim
will be averted’.154
In critiquing Blackstone, Bray CJ implicitly recognised that the offence of murder
has developed in the last 300 years to incorporate extended forms of liability for
‘secondary parties’ and that the traditional blanket prohibition may be inappropriate
to these legal constructs.155 His Honour illustrated this issue with well-developed
examples: the passer-by seized in the street by a gang of murderous thieves, compelled
at gunpoint to make misleading comments to the public or the innocent driver
compelled to convey a murderer to the victim.156 In doing so, Bray CJ undermined
the absolutism of Blackstone’s rationale, as such a blanket exclusion of any duress
145
146
147
148
149
150
151
152
153
154
155
156
Sir Edward Hyde East, A Treatise on the Pleas of the Crown (J Butterworth, 1803)
vol 1, 225.
William Blackstone, Commentary on the Law of England (19th ed) vol 4, 30.
Brown [1968] SASR 467, 492 (Bray CJ).
Ibid.
Ibid 493.
Ibid.
Ibid 492.
Ibid 494.
Blackstone, above n 146.
Brown [1968] SASR 467, 494 (Bray CJ).
See also R v Jogee [2016] 2 WLR 681: submissions to the Supreme Court cited Brown
in this context.
Brown [1968] SASR 467, 494 (Bray CJ).
452
McINTYRE — IN DEFENCE OF JUDICIAL DISSENT
defence would seem to sever that fundamental connection between legal liability and
moral wrongdoing.
Chief Justice Bray went on to explore whether the authorities would compel the
adoption of such an approach. A Quebecois case where a prisoner, at gunpoint,
handed over a razor to the killer was distinguished on the basis that the relevant Code
specifically excluded duress for murder.157 In contrast to the majority, Bray CJ held
that Sephakela supported the availability of the defence, as concerns over insufficiency of evidence implied that evidence could support that defence.158 Rossides was
distinguished as involving an accused as principal participant.159 The construction
by Bray CJ of both these cases is preferable to that of the majority, not only because
the exposition and analysis is more complete, but because it more easily coheres
with the reasoning of the Privy Council.
This construction of the authorities did not compel a denial of duress for secondary
participation, and Bray CJ argued that there were ‘good reasons on general grounds’
for rejecting such a denial. Alluding to his Honour’s prior examples, Bray CJ argued
that there may be ‘easily conceivable’ circumstances where a grave and imminent
threat was directed to compelling an act only remotely connected to the death of
the victim, such ‘that the interests of justice were better served by allowing the
defence’.160 It followed that the defence of duress may be available in some instances
of secondary (minor) participation in murder, and as such the directions of the trial
judge were erroneous.
However, and recognising the inherent limitations of a dissenting judgment, Bray CJ
took a very restrained approach to outlining the scope of such a defence. Rather
than fruitlessly attempt to set out a comprehensive test for this form of duress, his
Honour restricted himself, identifying five issues that would inform the development
of such a test including: first, the requisite scope of the threat; secondly, the requisite
nature of the threat, in terms of gravity and immediacy; thirdly, the limits necessitated by the threat; fourthly, restrictions upon the availability for those who place
themselves in a position to be threatened; and fifthly, the need for some proportionality.161 Chief Justice Bray articulated the issue of concern, and suggested such issues
could be addressed by drawing analogies from self-defence and provocation.162
His Honour did not, however, attempt to develop a detailed and comprehensive
157
158
159
160
161
162
Ibid 495, citing R v Farduto (1912) 10 DLR 669.
Brown [1968] SASR 467, 496 (Bray CJ).
Ibid 497.
Ibid.
Ibid 498–9; Howe [1987] AC 417, 442 (Lord Griffiths). See generally The Law
Commission, Criminal Law: Report on Defences of General Application, Law Com
No 83 (1977): it is worth noting that when the UK Law Commission proposed legislative reform to the defence of duress in 1977, the restrictions on the defence addressed
each of the concerns expressly identified by Bray CJ, thereby upholding the inherent
logic of the dissent.
Brown [1968] SASR 467, 498 (Bray CJ).
(2016) 37 Adelaide Law Review453
test for when the defence would be available, stating that such speculation should
not ‘be carried further in a dissenting judgment’.163 In dissent, it was sufficient to
recognise that neither cases nor general reasoning ‘prevent the acceptance of the
simple propo­sition that no type of duress can ever afford a defence to any type of
complicity in murder.’164 This limited claim becomes, however, compelling in light
of Bray CJ’s analysis and reasoning. In dissent, Bray CJ lays a firm foundation upon
which a future court might recognise such a defence.
The quality of that foundation is only confirmed by the dissent’s subsequent reception,
which illustrates the role of dissent in normative development.
D The Reception of the Dissent
The reception of the dissent in the UK, particularly in the case of DPP (Northern
Ireland) v Lynch (‘Lynch’),165 illustrates the way in which a lone dissent may guide
and inform subsequent debate. In Lynch, the House of Lords heard an appeal arising
from ‘The Troubles’ in Northern Ireland, involving the murder of a police officer
by an IRA gunman. Like Brown, the case involved a claim of duress as a defence
to murder for a principal in the second degree. Indeed, the facts of the case closely
mirror Bray CJ’s illustrative hypothetical of the driver compelled to convey a
murderer to the victim.
The appellant, Lynch, who was not a member of the IRA, received a messenger who
informed him that Meehan — a ‘well-known and ruthless gunman’166 — demanded
his immediate presence. Lynch knew that ‘what Meehan asked to be done had to
be done’,167 so out of mortal fear,168 he complied with the summons. Meehan told
Lynch to go with his associate Mailey and seize a car. Mailey held up a car and had
Lynch drive it back to Meehan. Lynch then drove Meehan and his heavily armed
associates to a particular address.169 When he asked what was going on he was told
‘Bates knows a policeman’.170 Following directions, Lynch stopped the car in front
of a garage. The others ran across the road, a number of shots were fired, the men ran
back to the car, and Lynch drove them back to their starting point.171
Lynch argued that he was acting under duress,172 in the genuine and reasonable
belief that he would be shot if he did not comply. However, the trial judge held that
163
164
165
166
167
168
169
170
171
172
Ibid 499.
Ibid.
[1975] AC 653.
Ibid 678.
Ibid 655.
Ibid 674.
Ibid 655.
Ibid 656.
Ibid.
Ibid 668.
454
McINTYRE — IN DEFENCE OF JUDICIAL DISSENT
duress was not available to any charge of murder, and did not allow the issue to
be put to the jury.173 The Court of Criminal Appeal upheld unanimously the trial
judge’s decision.174 The Court of Criminal Appeal’s decision was itself appealed to
the House of Lords.
Confronted with a lack of authority and a ‘jurisprudential muddle of a most unfortunate kind,’175 all five Lords referred to the judgment of Bray CJ, with the majority
quoting from him extensively. Lord Morris described Bray CJ’s dissent as a ‘closely
reasoned judgment the persuasive power of which appeals to me’,176 and adopted the
view that duress ‘can be open as a possible defence.’177 Similarly, Lord ­Wilberforce
turned to the ‘important authority’ of Brown and the ‘impressive judgment of
Bray CJ in dissent’178 from which his Lordship quoted extensively. Building on this
analysis, his Lordship also held that the defence is available ‘in a case of aiding and
abetting murder’.179 Lord Edmund-Davies observed that the issue had never been the
subject of even obiter dicta in the House of Lords, allowing the Court ‘to make an
unfettered decision … in accordance with basic common law principles.’180 In such a
context Brown was of particular significance, and not only did Lord Edmund-Davies
compliment Bray CJ’s ‘illuminating review of the relevant material’,181 and quote
extensively from the dissent, but expressly adopted his Honour’s conclusions.182
Even the Lords in the minority felt compelled to respond to Bray CJ’s dissent.
Lord Simon adopted a hard line that the law had never recognised such a defence,
and that authority and ‘closely cognate juridical concepts’183 suggest it should not
be available. After exploring the issues of underlying policy, his Lordship turned
to discussion of authority. With contempt dripping from his pen, his Lordship
stated that:
Fortunately, I am absolved from reviewing them in detail, since that has been done
by my noble and learned friends. My only misgiving is that such an impressive
muster should be sent packing so ignominiously. Poor Hale, poor Blackstone;
wretched Russell and Kenny; poor, poor Lord Denman. But at least they are in
good company. There are all those famous jurists, headed by Stephen … are like
the denizens of the first circle of Hell, who, for all their wisdom and virtue, lived
in such benighted times as to have forfeited salvation … For, in truth, their voices
173
174
175
176
177
178
179
180
181
182
183
Ibid 678.
Ibid.
Ibid 704 (Lord Edmund-Davies).
Ibid 677 (Lord Morris).
Ibid.
Ibid 682 (Lord Wilberforce).
Ibid 685.
Ibid 713 (Lord Edmund-Davies).
Ibid 714.
Ibid 715.
Ibid 685 (Lord Simon).
(2016) 37 Adelaide Law Review455
were unanimous that duress is no defence to murder. What is to be set against
them? A dissenting judgment of Bray CJ …184
Even in his Lordship’s disdain, Lord Simon illustrates the significance of Bray CJ’s
judgment, minimising it with mockery rather than engaging with the substantive
arguments. Lord Kilbandon relies upon Bray CJ’s conclusion that duress does not
constitute a defence to one who actually kills the victim,185 though rejects the distinction ‘between the defence open to a principal in the first degree and those open to a
principle in the second degree’.186
Effectively, the majority in Lynch adopted Bray CJ’s position that duress should be
available as a defence to a charge of murder in the second degree. Moreover, all
judges felt compelled to engage with Bray CJ, even when rejecting his Honour’s
conclusions. The quality of his Honour’s reasoning, sharpened by its dissentient
nature, set the framework and conceptual foundations for the debate.
In the subsequent case of Abbott v The Queen,187 the Privy Council refused to extend
the defence to a principal participant who took part in the actual killing,188 though
the dissenting opinion argued that there was ‘no acceptable basis of distinction’
between a principal in the first and in the second degree.189 Both opinions again
quoted from the ‘illuminating judgment’190 of Bray CJ.191 In Howe,192 the House of
Lords was faced with a claim for duress by an accused involved in the actual killings.
The House of Lords accepted that the distinction between the ‘actual killer’ and the
‘aider and abettor’ was ‘illogical’.193 Rather than extend the defence, their Lordships
overturned Lynch and denied the defence to all charges of murder.194
This difficulty in drawing the line between the actual killer and the aider and abettor
has troubled Australian courts. In R v McCafferty195 Glass J explicitly adopted
the conclusions of Bray CJ196 in order to find that duress is a complete defence to
minor participation in murder, and went further to allow it as a qualified defence
184
185
186
187
188
189
190
191
192
193
194
195
196
Ibid 695 (emphasis added).
Ibid 701 (Lord Kilbandon).
Ibid 702: expressly agreeing with the majority in Brown [1968] SASR 467.
[1977] AC 755.
Ibid 763, 764, 767.
Ibid 770 (Lord Wilberforce and Lord Edmund-Davies).
Ibid 773.
Ibid 763, 764.
Howe [1987] AC 417.
Ibid 442 (Lord Griffiths).
Howe [1987] AC 417, 436 (Lord Hailsham), 437–8 (Lord Bridge), 438 (Lord Brandon),
445 (Lord Griffiths), 453, 456 (Lord Mackay).
[1974] 1 NSWLR 89.
Ibid 91 (Glass J).
456
McINTYRE — IN DEFENCE OF JUDICIAL DISSENT
for major participation.197 This latter point was subsequently overruled in R v
McConnell198 where the Court again referenced Bray CJ.199 In R v Harding,200 the
Victorian Supreme Court held that the defence was inapplicable in all murder cases,
but felt compelled201 to spend three pages of reasoning exploring in depth the dissent
of Bray CJ.202 As in Howe, the Court refused to find a distinction between minor and
major participation in murder.203
Courts have continued to struggle with the difficult issue of whether duress should
ever be a defence to murder. It does appear that judges who excluded the defence
did not feel its denial would work any injustice on the given case. In both Brown
and Lynch, there appears to have been a real suspicion as to the bona fides of the
accused’s stories.204 In Howe, Lord Griffiths even went so far as to observe:
I am not troubled by some of the extreme examples … such as a woman motorist
being hijacked and forced to act as a getaway driver, or a pedestrian being forced
to give misleading information to the police to protect robbery and murder in
a shop. The short practical answer is that it is inconceivable that such persons
would be prosecuted …205
The denial of the defence in such circumstances leaves the ‘innocent’ accused deeply
vulnerable to prosecutorial discretion. Moreover, on the available evidence in Lynch,
it was a situation directly analogous to the hijacked woman, and Bray CJ analysed
properly the law on the basis that Brown’s version of events was accepted. It was
precisely the potential for a strict approach to work profound injustice that led Bray CJ
to his Honour’s nuanced analysis. While different opinions as to the potential for
injustice may have led courts to adopt different approaches to the defence, it remains
clear that Bray CJ’s dissent has had a powerful normative impact.206 The power and
persuasion of that dissent has dictated the terms of the discourse and influenced
profoundly the development of the law, even where its conclusions have not been
adopted.
197
198
199
200
201
202
203
204
205
206
Ibid.
[1977] 1 NSWLR 714.
Ibid 717, 718 (Street CJ), 723 (Taylor CJ at CL).
[1976] VR 129.
Ibid 151: this compulsion was explicitly recognised as a result of the strong reliance of
counsel on Bray CJ’s dissent in Brown [1968] SASR 467.
Ibid 151–3.
Ibid 154.
Brown [1968] SASR 467, 481. See generally Abbott v The Queen [1976] AC 755, 763;
Howe [1987] AC 417, 429: indeed, on re-trial the jury rejected Lynch’s defence of
duress.
Howe [1987] AC 417, 445 (Lord Griffiths).
See generally Goddard v Osborne (1978) 18 SASR 481, 491; R v Gotts [1992] 2 AC
412, 429, 436; R v Lorenz (1998) 146 FLR 369, 377: it should be noted that the dissent
has also been cited with approval in cases of duress in these other authorities.
(2016) 37 Adelaide Law Review457
However, importance of the dissent is not confined to the role of normative develop­
ment, and Bray CJ’s dissent illustrates — through its evident discipline, integrity and
restraint — how a dissent can enhance the performance of the judicial function in
all its facets.
VI D efending D issent
There is a relatively long history of identifying potential threats to judicial independence emanating from within the judiciary itself — what Shetreet refers to as
concerns of ‘internal independence’207 — with pressure from other judges improperly
distorting substantive decision-making.208 Heydon reveals what is effectively a new
form of this old threat of internal institutional pressure to join ‘the herd’ in delivering
concurrent and joint judgments in the interests of efficiency.209
The judicial dissent is on its face redundant: it appears to constitute an anachronistic
institutional inefficiency that neither aids the resolution of the instant dispute, nor
provides direct normative governance for future conduct. Even judges themselves
frequently bemoan the futility of a dissent — often as they go on to deliver such a
dissent — though rarely with the candour of Holmes J:
I am unable to agree with the judgment of the majority of the court, and although
I think it useless and undesirable, as a rule, to express dissent, I feel bound to do
so in this case and to give my reasons for it.210
The question must be posed: why persist with an apparently redundant practice? The
simple answer is that the judicial dissent is a highly effective means of promoting
the high quality performance of the judicial function. It not only performs a vital
ancillary governance role it providing an alternative narrative of the law that can
enrich and aid the future development of the law, but it provides a spur to better
decision-­making for all judges in the case, can aid the more complete resolution of
the underlying dispute, broadly conceived, and helps hold judges, both dissentients
and those in the majority, to account.
Perhaps more than any other judicial practice, the dissent invites personal critique
of the individual judge. A dissentient may be demonised as a ‘judicial activist’ who
selfishly undermines legal certainty, or lauded as a visionary reformer who brings
207
208
209
210
Shimon Shetreet, ‘Judicial Independence: New Conceptual Dimensions and
Contemporary Challenges’ in Shimon Shetreet and Jules Deschenes (eds), Judicial
Independence: The Contemporary Debate (Martinus Nijhoff, 1985) 590, 598–9, 642.
Shabtai Rosenne, The Law and Practice of the International Court, 1920-1996
(Martinus Nijhoff, 2006) vol 3, 1567–70; McIntyre, above n 3, 131–2: provides a
general overview of the concerns of internal independence as a potential source of
improper influence on judicial decision-making.
Heydon, ‘Enemy Within’, above n 6, 217.
Northern Securities Co v United States 193 US 197, 400 (1903).
458
McINTYRE — IN DEFENCE OF JUDICIAL DISSENT
responsive justice to the law. Where that line is drawn may largely depend upon
whether one agrees with conclusions reached,211 which, in turn, depends upon
political and social values that may vary significantly over time. However, the very
fact of such arguments over the merit or otherwise of the dissentient’s position not
only hold a spotlight to judicial conduct, in both particular and general instances,
but invites broader reflection on the merit of the substantive position. Given the
discursive nature of law, the intense debates often provoked by a strong dissent
themselves contribute the development of the law.
The judicial dissent directly promotes both the dispute resolution and normative
governance objectives of the judicial function, while indirectly, as a tool of judicial
accountability, promotes the excellent performance of that function generally.
These ideas are explored through the concrete illustration of Bray CJ’s dissent in
Brown, a case chosen for its juridical rather than political quality. Though literally
a matter of life and death for the accused, it was not a subject to inspire marches in
the streets. This dissent has largely faded from memory in Australia.212 However, the
dissent is a particularly excellent device for demonstrating, by both its form as well
as its substance, not only how a dissent should be delivered, but why. With particular
efficiency and clarity, Bray CJ’s dissent demonstrates how a dissent can both directly
and indirectly further the excellent performance of the dispute-­
resolution and
normative governance aspects of the judicial function. While Bray CJ’s dissenting
support for a re-trial may appear scant comfort for Brown, such support would have
real significance in any application for clemency. This was, after all, a man sentenced
to death for acting, in fear of his life, on an order to ‘cough’ at a designated time.
Even in dissent, the guidance of Bray CJ’s decision provided a pathway for more
just resolution of the underlying dispute. The normative consequences of the dissent
are more pronounced, with Bray CJ’s principled analysis of the issues shaping and
directing the conversation on the defence of duress in murder for a generation.
By contributing to the ‘marketplace of competing ideas’213 and infusing ‘different
ideas and methods of analysis’214 of the issue of duress, Bray CJ influenced — by
the persuasive appeal of his Honour’s ideas rather than the judicial authority of the
judgment — judges in Australia and abroad. That normative contribution extends
beyond extant statements of law, and lies like a rake resting in the grass, ready to
rear up when the next judicial foot treads these uneasy grounds. By bringing great
discipline and integrity to his Honour’s considered search for underlying principles —
in the face of sweeping judgments of legal giants, competing policy concerns and an
211
212
213
214
Justice Michael Kirby, ‘Judicial Activism: Power without Responsibility? No, Appropriate Activism Conforming to Duty’ (2006) 30 Melbourne University Law Review
576, 578, 591. See also Justice Michael Kirby, Judicial Activism: Authority, Principle
and Policy in the Judicial Method (Sweet & Maxwell, 2004).
This faded recollection is no doubt partly due to the rarity of cases in which the issue
is raised, and partly due to the fact that, in an age where legal research occurs in front
of a computer, the case is not available online.
Brennan, above n 58, 435. See also Kirby, ‘Judicial Dissent’, above n 53, 393–4.
Brennan, above n 58, 436.
(2016) 37 Adelaide Law Review459
unsympathetic defendant — Bray CJ delivered a compelling and concise judgment
that nevertheless evidenced a deeply reflective awareness of the limitations and institutional costs of a dissent. The publication of this restrained dissent can only have
enhanced Bray CJ’s reputation as a judge of quality and integrity.
Further, the joinder of the two appeals in Brown in the context of s 349(2) of the
Criminal Law Consolidation Act 1935 (SA) (as amended), provides rare and direct
illustration of how a published dissent can enhance the performance of the judicial
function. The publication of this dissent had a demonstrable effect as a mechanism
of internal accountability, spurring on the majority to more deeply engage with the
issues and more fully explain their own reasoning in response to Bray CJ’s dissent.
Morley’s appeal saw opaque reference to divergences in the Court by phrases such as
‘a majority of us’. Conversely, the dissent in Brown’s appeal saw a clear identification of the individual judges and the position they took. Justices Bright and Mitchell
became actors in the discourse, and with the strength of their position challenged by
Bray CJ, they were personally called upon to justify their approach. In challenging
them to engage in better quality decision-making, the published dissent more effectively held them to (external) account.
This enhanced internal and external accountability, of both the majority and the
dissentient, and the greater quality of the normative statements all round, provides a
graphic illustration of the benefits of the published dissent in furthering the excellent
performance of the judicial function. Such a dissent leaves the law richer, and the
court stronger, for its having been given.
Of course, not every dissent enhances judicial performance, just as not every joint
judgment denotes ‘herd’ behaviour. Nevertheless, the institutional value of a practice
such as dissent must be assessed by reference to what it is capable of achieving.
Illustrations such as Brown highlight just how effective and efficient a high quality
dissent can be in promoting the objectives of the judicial function. Understood
in the broader way, criticisms of dissent that focus on its apparent inefficiency or
redundancy become unconvincing. In drawing attention to an apparent trend for
undue pressure to be placed on judges to join single judgments in the interest of
efficiency215 and ‘legal certainty’,216 Heydon has succeeded in initiating a debate
on judicial practices often taken for granted. Dissent remains a supremely effective
institutional practice, and while there is some merit in the argument that dissent
should be used sparingly,217 it should remain a vital tool in maintaining the health
and vitality of a judicial institution — and indeed the law itself — far into the future.
215
216
217
Heydon, ‘Enemy Within’, above n 6, 220–1.
Ibid 213.
Bergman, above n 15, 89. See also Lord Neuberger, ‘No Judgment — No Justice’
(Speech delivered at First Annual BAILII Lecture, London, 20 November 2012) [28]
<http://www.bailii.org/bailii/lecture/01.html>.
Anne Richardson Oakes* and Haydn Davies**
JUSTICE MUST BE SEEN TO BE DONE:
A CONTEXTUAL REAPPRAISAL
A bstract
This article locates Lord Hewart CJ’s well-known dictum ‘justice must
be seen to be done’ in the context of early 20th century concerns with the
composition of the League of Nations’ Permanent Court of International
Justice. These concerns related to perceptions of judicial independence
but his remarks now sustain an impartiality analysis criticised both for its
amorphous nature and for its failure to address the relational dimensions
of public confidence and legitimacy. In the 21st century, the composition
of the judicial bench is once again an issue of concern but the imperatives are those of democracy and accountability. From this perspective,
the appearance of justice is best served by judges who are reflective of
the community they are appointed to serve. The ‘fair reflection principle’
of judicial international standards brings renewed attention to the issue of
the composition of the judicial bench, giving contemporary substance to
Lord Hewart’s remarks and illustrating further the dynamic connection
between evolving national and international norms.
I ntroduction
‘J
ustice should not only be done, but should manifestly and undoubtedly be seen
to be done.’1 Lord Chief Justice Hewart’s remarks, uttered nearly 100 years ago,
are now heard throughout the common law world and beyond. They sustain
an ethical requirement that judges and decision-makers more widely cannot hear
a case if, from the perspective of a reasonable and informed observer, their impartiality might reasonably appear to be compromised (an appearance standard). As
commentators have observed, Lord Hewart was not a good judge and certainly not
one remembered for his impartiality; in the words of one particularly forthright
commentator, he was ‘the perpetual advocate’.2 He offered no authority for his
remarks and his 1924 R v Sussex Justices3 judgment from which the dictum derives
is remarkable for its brevity and paucity of cited authority; he supports his assertion
*
** 1
2
3
Director of Center for American Legal Studies, Birmingham City University,
Birmingham, UK.
Director of Research, Birmingham City University, Birmingham, UK.
R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256, 259 (‘R v Sussex Justices’).
C P Harvey, The Advocate’s Devil (Stevens and Sons, 1958) 32.
[1924] 1 KB 256.
462
OAKES AND DAVIES — JUSTICE MUST BE SEEN TO BE DONE
simply by reference to a generic ‘long line of [unspecified] cases’.4 More specific­
ally, we can note that a requirement of judicial disqualification on the grounds of
bias as opposed to pecuniary interest was not part of English common law at least
at the time of B
­ lackstone.5 By the 19th century, the position was still the same. In
6
R v Rand Blackburn J held that while any pecuniary interest, however small, in the
subject matter disqualifies a justice from acting in a judicial inquiry, the mere possibility of bias in favour of one of the parties does not of itself do the same; in order
to have that effect the bias must be shown at least to be real. Nevertheless, today the
dictum supports a requirement of judicial recusal for appearance of bias that extends
beyond the common law world at both national and international level.7 How did we
4
5
6
7
Ibid 258.
William Blackstone, Commentaries on the Laws of England (Oxford, 1768) vol 2, 361.
Cf, however, the position in Roman law: see Harrington Putnam, ‘Recusation’ (1923)
9 Cornell Law Quarterly 1, 3 n 10.
(1866) LR 1 QB 230.
See generally Grant Hammond, Judicial Recusal: Principles, Process and Problems
(Hart Publishing, 2009); Raymond J McKoski, ‘Giving up Appearances: Judicial
Disqualification and the Apprehension of Bias’ (2015) 4 British Journal of American
Legal Studies 35, 38–9 (citing 28 USC § 455(a); American Bar Association (ABA),
Model Code of Judicial Conduct (at 12 February 2007) r 2.11(A); Porter v Magill
(2002) 2 AC 357, 494 [103]; Wewaykum Indian Band v Canada (2003) 2 SCR 259,
288–9 [60]; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 344 [6], 346
[11]; Muir v Commissioner of Inland Review [2007] 3 NZLR 495, 508–9 [62]). On US
ABA Model Code requirements, see Raymond J McKoski, ‘Judicial Discipline and
the Appearance of Impropriety: What the Public Sees is What the Judge Gets’ (2010)
94 Minnesota Law Review 1914. See also Cyrus Das, ‘Recusal of Judges: A Commonwealth Survey of the Applicable Tests’ in Shimon Shetreet and Christopher Forsyth
(eds), The Culture of Independence: Rule of Law and World Peace (Brill Nijhoff,
2011) 281 (confirming a common law convergence); R Matthew Pearson, ‘Duck Duck
Recuse? Foreign Common Law Guidance & Improving Recusal of Supreme Court
Justices’ (2005) 62 Washington and Lee Law Review 1799, 1814. On the so-called
‘soft law’, see Bangalore Principles of Judicial Conduct. The Bangalore Draft Code
of Judicial Conduct 2001 was adopted by the Judicial Group on Strengthening
Judicial Integrity, as revised at the Round Table Meeting of Chief Justices held at
the Peace Palace, The Hague, 25–26 November 2002. See most recently the Inter­
national Project of Judicial Independence of the International Association of Judicial
Independence and World Peace, Mount Scopus International Standards of Judicial
Independence (19 March 2008, consolidated and revised 2015) arts 7.8, 8.2 (‘Mount
Scopus Standards’). The Mount Scopus Standards differentiate between national and
international judges, the disqualification requirement applying as it stands only to the
former. In relation to the rapidly expanding international judiciary, although there
is no directly equivalent disqualification requirement, the Mount Scopus Standards
follow the earlier Burgh House Principles (2004) and at several places require judges
to take account of matters that are likely to affect or may reasonably appear to affect
their independence or impartiality; see International Law Association Study Group
on the Practice and Procedure of International Courts and Tribunals, in Association
with the Project on International Courts and Tribunals, The Burgh House Principles
on the Independence of the International Judiciary (2005).
(2016) 37 Adelaide Law Review463
get here and why? More importantly, can the answers to these questions help us with
the central concern of this paper, namely what exactly is or should be the place of
appearances in recusal jurisprudence?
It is not the intention of this paper to rehearse the case law or the so-called soft law of
ethical guidelines and codes of judicial conduct, which are not in themselves binding
but taken together represent a consensus that appearances matter in determining the
propriety of judicial behaviour. Others have capably done this already. Our purpose
is rather to refresh and reappraise. On the assumption that Lord Hewart’s remarks
must have come from somewhere, this paper looks to the context in which they were
uttered in search of the values they sought to promote. These, we posit, were those
of legitimacy; but the mischief to be addressed related to perceptions of national
bias on the part of the emerging international judiciary and the solution was a matter
of the composition of the bench. Today, legitimacy concerns continue to underpin
contemporary appearance jurisprudence but, we argue, the objective observer
test as currently applied is not best suited to the ends it claims to promote. In the
21st century, the appearance of justice is better promoted by judges who are reflective
of the community they are appointed to serve.
To that end, this paper now proceeds as follows. In Part I, we contextualise Lord
Hewart’s remarks by reference to what was at the time an issue of contemporary
concern: the independence and impartiality of national judges appointed to the
Permanent Court of International Justice (PCIJ).8 We surmise that while Lord Hewart’s
might have been the first articulation of an appearance standard at national level,
the contextual concern was what was happening at international level and specific­
ally the way in which the conflicting imperatives of judicial independence and state
sovereignty were to be resolved. One obvious answer lay in the composition of the
Court. In the context of sensitivity to the possible effect of national backgrounds and
political influence upon judicial impartiality, a concern with the connection between
perceptions of fairness and the legitimacy of international judicial process makes
very specific sense. From this perspective, we have a meaningful context for Lord
Hewart’s remarks but their enduring legacy we might term a contemporary category
error; in current recusal jurisprudence, concerns with perceptions generated by the
composition of the bench, and primarily about the relationship between national
loyalties and judicial independence have morphed into a generalised ‘appearance
standard’ now often described as ‘objective’ because it relies upon the perceptions of
the informed and fair-minded observer by which to form judgments concerning the
neutrality or otherwise of the judicial mind.
In Parts II and III we consider the limitations of the ‘objective’ test by reference to its
asserted purpose, namely the promotion of public confidence in the impartiality of
the judiciary and thus the maintenance of its institutional legitimacy. We consider the
informed and fair-minded observer standard of current jurisprudence. We review
the suggestion that ‘anthropomorphic justice’ is an unremarkable component of
8
For an account see Manley O Hudson, The Permanent Court of International Justice
1920–1942 (Macmillan, 1943) 149.
464
OAKES AND DAVIES — JUSTICE MUST BE SEEN TO BE DONE
so-called public repute discourse by which judges justify their decisions to a legal
community, but argue that legitimacy has a dialogic component they cannot or
should not ignore. If the courts are serious about the need to inspire actual public
confidence, then justification that is directed simply towards ‘authenticity’ or ‘legality’
by itself will not be sufficient; they must pay attention to the relational nature of
their connection with the public from whom their power ultimately derives and to
whom claims of legitimacy must ultimately be addressed. From this point of view,
the fair-minded observer as judicial replicant is of limited value as a mechanism for
dealing with, as Professor Rackley puts it, the perception by members of the public
that the persons entrusted with dispensing justice are predominately ‘other’ in terms
of gender, class, age, ethnicity, religion and sexual orientation.9 One of the ways
in which they can do this is by paying attention to the issue of composition; as we
suggest in Part I, this is an issue in respect of which appearances do matter.
In conclusion we return to the issue of composition by reference to the principle of
‘fair reflection’ that now appears in the Mount Scopus Standards.10 We suggest that
here we find a sensitivity to the connection between the appearance of the bench and
perceptions of fairness, which might be compared to the sensitivities of the movers of
the PCIJ, but in contemporary concerns the context has changed. Today, as Professor
Shetreet has explained, the underlying imperative is the democratic understanding
that justice must be delivered in the name of the people.11 A judiciary composed
of persons whose background is too narrow by comparison with the rest of society,
whether in terms of gender, ethnicity, social ideological or geographical origin, will
not generate the appearance of impartiality upon which public confidence and thus
its legitimacy depend.12 Instead, what is required is a visible connection between the
makeup of the judiciary and the community that it serves.
I T he P ermanent C ourt of I nternational J ustice
I ssue of N ational J udges
and the
The PCIJ, popularly known as the World Court, and set up by the League of Nations
in 1921, was not the first attempt to find a mechanism for the peaceful resolution of
international disputes. Its predecessor was the Permanent Court of Arbitration (PCA)
established under the 1899 Convention for the Pacific Settlement of International
Disputes.13 This reflected the enthusiasm for international arbitration generated
9
10
11
12
13
See Erika Rackley, Women, Judging and the Judiciary: From Difference to Diversity
(Routledge, 2013).
Mount Scopus Standards arts 2.15, 2.17.
Shimon Shetreet, ‘The Normative Cycle of Shaping Judicial Independence in
Domestic and International Law: The Mutual Impact of National and International
Jurisprudence and Contemporary Practical and Conceptual Challenges’ (2009) 10
Chicago Journal of International Law 275, 310–11.
Ibid.
Opened for signature 29 July 1899, [1901] ATS 130 (entered into force 4 September
1900) (‘1899 Convention’).
(2016) 37 Adelaide Law Review465
by the earlier successes of the 1794 Jay Treaty14 and the 1871 Alabama Claims
­Arbitrations15 but the record was ‘replete with failures’ and the driver was ‘not
dispute resolution but … the avoidance of war’.16 The 1899 Convention responded
to a growing momentum for a permanent court to be available at all times but the
body that it created reflected the arbitral character and procedure of earlier arbitrations.17 Thus art 23 of the 1899 Convention required each Signatory Power to select
a maximum of four persons ‘of known competency in questions of inter­national
law’, to be appointed to a list from which arbitrators could be appointed in individual
cases.18 The number of arbitrators would be determined by the parties but the default
position would be two each with a neutral umpire to be selected by agreement
between the parties or by a third party.19 As Chester Brown has noted, there was no
express requirement in the Convention that arbitrators act with ­‘independence’ and
‘impartiality’.20
The PCA failed to live up to expectations. As John Bassett Moore, the first American
judge to serve on the PCIJ, later remarked, it came to be widely regarded as a failure
primarily for two reasons: resort to its services was not obligatory and the Court was
not a trial court.21 As early as the Second Peace Conference of 1907, the US delegation,
with ‘enthusiastic support’22 from other states, was advocating the creation of an
international court, with authority comparable to that of the US Supreme Court
because it would be staffed by judges who were not only full-time but also truly independent and impartial. US Secretary of State, Elihu Root, instructed US delegates
in these terms:
14
15
16
17
18
19
20
21
22
Treaty of Amity, Commerce, & Navigation, between His Britannic Majesty, and the
United States of America, signed 19 November 1794, TS No 105 (entered into force
28 October 1795).
These took place under the Treaty of Washington, Great Britain–United States, signed
8 May 1871, TS No 133 (entered into force 17 June 1871).
David D Caron, ‘War and International Adjudication: Reflections on the 1899 Peace
Conference’ (2000) 94 American Journal of International Law 4, 5, 10.
Specifically the Alabama Arbitrations: see Chester Brown, ‘The Evolution and Application of Rules Concerning Independence of the “International Judiciary”’ (2003) 2
Law and Practice of International Courts and Tribunals 63, 68.
1899 Convention art 23.
Ibid art 32.
Brown, above n 17, 68.
John Bassett Moore, ‘The Organization of the Permanent Court of International
Justice’ (1922) 22 Columbia Law Review 497, 499.
Alexander P Fachiri, The Permanent Court of International Justice: Its Constitution,
Procedure and Work (Oxford University Press, 2nd ed, 1932) 3 (discussed in Brown,
above n 17, 73); see also James Brown Scott, ‘Report to the Conference from the First
Commission Recommending the Creation of a Court of Arbitral Justice’ in James
Brown Scott (ed), Reports to the Hague Conferences of 1899 and 1907 (Clarendon
Press, 1917) 232.
466
OAKES AND DAVIES — JUSTICE MUST BE SEEN TO BE DONE
There can be no doubt that the principal objection to arbitration rests not upon
the unwillingness of nations to submit their controversies to impartial arbitration,
but upon an apprehension that the arbitrators to which they submit may not be
impartial. It has been a very general practice for arbitrators to act, not as judges
deciding questions of fact and law upon the record before them under a sense of
judicial responsibility, but as negotiators effecting settlements of the questions
brought before them in accordance with the traditions and usages and subject
to all the considerations and influences which affect diplomatic agents. The two
methods are radically different, proceed upon different standards of honourable
obligation, and frequently lead to widely differing results. It very frequently
happens that a nation which would be very willing to subject its differences to
an impartial judicial determination is unwilling to subject them to this kind of
diplomatic process.23
Their task then should be to bring about
a permanent tribunal composed of judges who are judicial officers and nothing
else, who are paid adequate salaries, who have no other occupation, and will
devote their entire time to the trial and decision of international causes by judicial
methods and under a sense of judicial responsibility.24
In this respect, the issues of selection of suitable candidates and composition of the
bench assumed a particular importance. The quality of judges and the issue of fair
representation of national systems were specific concerns:
[The] judges should be so selected from the different countries that the different
systems of law and procedure and the principal languages shall be fairly represented. The court should be made of such dignity, consideration, and rank that the
best and ablest jurists will accept appointment to it and that the whole world will
have absolute confidence in its judgments.25
In the event, although the 1907 Convention for the Pacific Settlement of International
Disputes took some steps towards securing the independence of PCA tribunals —
for example, by reducing the number of state appointed nationals on a bench of five
from two to one,26 and clarifying that members of the PCIJ should not act as agents,
counsel or advocates except on behalf of the Signatory Power which appointed them
23
24
25
26
Elihu Root, ‘Instructions to the American Delegates to the Hague Conference of
1907’ in James Brown Scott (ed), Instructions to the American Delegates to the
Hague Peace Conferences and their Official Reports (Oxford University Press, 1916)
69, 79, quoted in Brown, above n 17, 69 (emphasis added) (to which this section is
much indebted).
Root, above n 23, 79–80, quoted in Brown, above n 17, 70.
Ibid.
Convention for the Pacific Settlement of International Disputes, opened for signature
18 October 1907, TS No 536 (entered into force 26 January 1910) art 45 (‘1907
Convention’).
(2016) 37 Adelaide Law Review467
to the Court27 — the definitive move from arbitration to adjudication did not come
until after the First World War. Article 14 of the Covenant of the League of Nations,
which formed part of the Peace Treaties, required the League’s Council ‘to formulate
and submit to the members of the League for adoption, plans for the establishment
of a Permanent Court of International Justice.’28 Unlike its predecessor, this Court
was to be firmly adjudicative in character.29 A memorandum to the Secretariat to the
League of Nations explained the difference:
arbitration is distinguished from judicial procedure in the strict sense of the word
by three features: the nomination of the arbitrators by the parties concerned, the
selection by these parties of the principles on which the tribunal should base its
findings, and finally its character of voluntary jurisdiction.30
While the issue of compulsory jurisdiction continued to be elusive,31 as drafted by
an Advisory Committee of Jurists, the Statute of the PCIJ provided for a Court with
jurisdiction to determine legal disputes concerning: (a) the interpretation of a treaty;
(b) any question of international law; (c) the existence of any fact which, if established, would constitute a breach of an international obligation; and (d) the nature or
extent of the reparation to be made for the breach of an international obligation.32
The Court was to be
27
28
29
Ibid art 62.
Treaty of Peace between the Allied and Associated Powers and Germany, signed
28 June 1919, [1920] ATS 1 (entered into force 10 January 1920) pt 1, art 14 (‘Covenant
of the League of Nations’).
James Brown Scott, The Project of a Permanent Court of International Justice and
Resolutions of the Advisory Committee of Jurists: Report and Commentary (Carnegie
Endowment for International Peace, 1920) 7, quoting Léon Bourgeois:
30
31
32
The Court of Justice must be a true permanent court. It is not simply a question of arbitrators chosen on a particular occasion, in the case of conflict, by the interested parties;
it is a small number of judges sitting constantly and receiving a mandate, the duration of
which will, enable the establishment of a real jurisprudence on which public law may be
built up.
Advisory Committee of Jurists, Documents Presented to the Committee Relating to
Existing Plans for the Establishment of a Permanent Court of International Justice
(The Hague, 1920) 113.
Jurisdiction was largely optional. Article 36, para 2 was introduced into the Statute of
the Permanent Court of International Justice (‘PCIJ Statute’) at the first Assembly of
the League of Nations in 1920. According to Lloyd,‘[i]t was the result of a disagreement between the great powers (Britain, France, Italy and Japan), which refused to
accept an international court possessing compulsory jurisdiction, and nearly all the
small powers, which demanded compulsory jurisdiction’: Lorna Lloyd, ‘“A Springboard for the Future”: A Historical Examination of Britain’s Role in Shaping the
Optional Clause of the Permanent Court of International Justice’ (1985) 79 American
Journal of International Law 28, 29. See also Ole Spiermann, International Legal
Argument in the Permanent Court of International Justice: The Rise of the Inter­
national Judiciary (Cambridge University Press, 2005) 8–10.
PCIJ Statute art 36.
468
OAKES AND DAVIES — JUSTICE MUST BE SEEN TO BE DONE
composed of a body of independent judges, elected regardless of their nationality
from amongst persons of high moral character, who possess the qualifications
required in their respective countries for appointment to the highest judicial
offices, or are jurisconsults of recognised competence in international law.33
Meeting for the first time at the Hague on 30 January 1922, the new Court consisted
of 15 ‘members’, comprising 11 judges called ‘ordinary judges’, normally sitting
en banc (with nine as a quorum), and four deputy judges34 all chosen by vote of the
Council and Assembly of the League of Nations, from a list of candidates nominated
by the various national groups of members of the PCA.35
It is clear that from the outset the judicial values of independence and impartiality as keys to the prestige of the Court were high on the agenda. Article 20 of the
Statute required every member of the Court before taking office, to make a solemn
declaration in open court that they would exercise their powers impartially and
conscienti­ously.36 Contemporary writings on the part of members of the Court
and commentators reveal that, in this respect, importance was indeed attached to
appearance. Writing, just after his election, to Professor Manley O Hudson,37 Judge
Max Huber expressed satisfaction concerning the composition of the Court and his
hopes for its future reputation: ‘The Court is, I think, rather well composed, but,
I fear, that it is too numerous. Very much will depend on its first decisions. I hope
and I trust that they will be absolutely impartial. This is important above all.’38
To Judge Moore, he wrote:
I was always of [the] opinion that public opinion, including the lawyers, have
a tendency to overrate the importance and effectiveness of an international
judiciary for international peace, but it is nevertheless very gratifying that this
opinion exists and it is our duty to give credit to it and to deepen and strengthen
the esteem in which international arbitration is held in the world. The moral
responsibility of the Court in deciding the first cases and in giving their argumentation is immense. The world is disgusted with politics of interest and influence
and longs for an institution of real impartiality. We must not only be impartial but
even try to avoid the appearance of partiality.39
33
34
35
36
37
38
39
Ibid art 2.
Ibid art 3. Elected judges served for a term of nine years but were eligible for re-­
election: ibid art 13. See Hudson, above n 8.
Moore, above n 21, 501. The issue of judicial selection which had frustrated the
earlier attempts of the 1907 Conference was resolved by the Advisory Committee:
see Spiermann, above n 31, 7.
PCIJ Statute art 20.
Professor Hudson became a member of the PCA in 1933, and a judge at the PCIJ in
1936. He held that position until the dissolution of that Court in 1946.
Letter from Max Huber to Manley O Hudson, 10 November 1921 in Spiermann,
above n 31, 147.
Letter from Max Huber to John Bassett Moore, 21 October 1921 in Spiermann, above
n 31, 147 (emphasis added).
(2016) 37 Adelaide Law Review469
The issue of national judges and, specifically, whether a judge should be disqualified
raised particular problems. As Judge Moore, the first American judge to serve on the
PCIJ, explained:
This question was very fully considered in the formulation of the Statute, with
the result that the conclusion was reached that, in order to assure the full and
equal representation of national points of view, if there should be a national of
one of the parties sitting as a judge, the other party should be permitted to choose
a judge of its own nationality. In the special chambers for labor and transit cases,
consisting of only five judges, the judge so chosen is to take the place of one of
the other judges, in order that the number may not be increased … but, in the
case of the full Court, the judges chosen on account of their nationality are added,
so that the full Court may in such case sit with a number of judges exceeding
eleven.40
It was clear that national judges were not to be regarded as representatives; the US
was not a member of the League of Nations and Judge Moore explained his election
to the Court as follows:
The explanation is found in the fact that the judges are not elected and that they
do not sit as citizens or representatives of any particular country. As far as human
nature will permit, they are expected to decide impartially between all countries,
without favor or antipathy to any. To this end the statute provides that the Court
‘shall be composed of a body of independent judges, elected regardless of their
nationality.’41
Moreover, as the Advisory Committee recognised, the facility to permit parties to a
dispute to choose a judge of their nationality is a characteristic of arbitral as opposed
to adjudicative procedure. The issue was how to reconcile the potentially conflicting
imperatives of equality between states, and specifically ensuring fair representation
of different legal systems and jurisprudence, with the need to counter perceptions of
national bias. As the Procès-Verbaux explain, actual bias was not in issue:
As [the judges] have given a solemn undertaking to administer justice imparti­
ally and conscientiously, there is no danger that they will fail in their duty by
showing any partiality towards the State whose subjects they are. Chosen as they
are from amongst men of the highest moral character, one may rest assured that
their scruples in the administration of justice will be increased in the event of
their having before them as a party the State whose subjects they are. Justice,
however, must not only be just, but appear so. A judge must not only be impartial,
but there must be no possibility of suspecting his impartiality.42
40
41
42
Moore, above n 21, 504, citing PCIJ Statute arts 26, 27, 31; Permanent Court of International Justice, Rules of Court (adopted 24 March 1922) arts 4, 15 (‘PCIJ Rules’).
Moore, above n 21, 504, citing PCIJ Statute art 31, PCIJ Rules art 4.
Permanent Court of International Justice, Advisory Committee of Jurists, Procès-­
Verbaux of the Proceedings of the Committee, June 16–July 24, 1920, with Annexes
(The Hague, 1920) 720–1 (emphasis added).
470
OAKES AND DAVIES — JUSTICE MUST BE SEEN TO BE DONE
As the Procès-Verbaux go on to record, three situations were specifically envisaged.
In the first, both parties have a national judge upon the bench. Here there should
be no question of abstention for four reasons: (1) the number of judges might be
‘too much diminished, especially if several States had a joint interest in the same
proceedings’; (2) ‘the various forms of civilisation and the principal legal systems
of the world, which [give the] Court its character as a World Court,’ might not be
sufficiently represented; (3) judges should be able ‘to put forward and explain their
State’s interest “up to the last minute”’; and (4) the opposing views would in effect
‘counter-balance one another’.43
In the second situation, only one of the parties has a national judge on the bench.
Here a deputy judge or special appointment of the nationality of the other party
should also sit to ‘re-establish equality’.44 Although the ‘high moral character’ of the
judges would ensure there could be ‘no occasion to fear any lapse from impartiality,
public opinion in the State without a judge on the Bench might consider that this
inequality would affect it adversely, not as a State, but in its position as a contesting
party.’45
In the final situation, neither party has a national on the bench. Here each party should
be entitled to a deputy judge of its nationality or a special appointment preferably
selected from those persons who have been nominated by the national groups of the
Court of Arbitration.46
In all cases, the Court in this respect would more nearly resemble a Court of Arbitration than a national Court of Justice, but this was a pragmatic necessity: ‘Though
our Court is a true Court, we must not forget that it is a Court between States. For the
reasons already given, States attach much importance to having one of their subjects
on the Bench when they appear before a Court of Justice.’47
These concerns were picked up by commentators. Thus Alexander Fachiri, an
English barrister whose book The Permanent Court of International Justice was first
published in 1925, explained:
The principles applicable to national tribunals do not extend integrally to an international court — some modifications are involved by the differences inherent in
the nature of their respective functions. The parties before the international Court
are sovereign States; in order that its decisions should be effective they must be
not only just in themselves but acceptable to the public conscience and opinion of
the countries concerned; it is not sufficient that justice should be done, it must also
appear to have been done. For this purpose, the presence of judges belonging to
43
44
45
46
47
Ibid 721.
Ibid 722.
Ibid 721–2 (emphasis added).
Ibid 722.
Ibid (emphasis added).
(2016) 37 Adelaide Law Review471
the nationality of the parties may well be desirable. Their presence will not only
inspire confidence in the peoples of the litigating states, it will enable the point of
view of those States to be fully presented and understood.48
There are two points to make at this stage. The first is that the reason for considering
the above discussions at length has been to establish context and intellectual climate,
at least in legal/judicial circles. Lord Hewart’s personal and official papers were
stolen after his death and have not survived.49 This means that we have no ‘smoking
gun’ and cannot claim that Lord Hewart’s remarks were directly influenced by the
events and commentary that we have described. It is, however, not unreasonable to
suppose that as a former Attorney-General, member of the Cabinet and Lord Chief
Justice as from March 1922 he would have had his finger on the pulse of the concerns
and agendas of the day at both national and international levels.
Moreover, there are some specific connections that we can make. We referred earlier
in this paper to disagreement concerning the nature of the PCIJ’s jurisdiction to
which the optional protocol was the eventual compromise solution.50 The Committee
of Jurists set up by the League of Nations to draft the PCIJ Statute originally recommended that its jurisdiction be compulsory. This proposal had been opposed by
Britain, and in July 1920 the draft Statute was referred for examination to a Cabinet
committee chaired by the Lord Chancellor, Lord Birkenhead. Senior civil servants
were hostile to acceptance of compulsory jurisdiction, not least because they antici­
pated that the judges of a Permanent Court would inevitably divide on national
lines. Sir Gordon Hewart at this time was Attorney-General, a post that he held from
10 January 1919 to 6 March 1922. Professor Lloyd’s study of contemporary Cabinet
papers reveals that the opinion of the law officers was indeed sought.51 She refers to
Lord Birkenhead noting ‘[t]he Attorney-General, Sir Gordon Hewart, had already
advised that Britain should “absolutely refuse” to consent to compulsory jurisdiction
and, at the request of the Admiralty, this was explicitly stated’.52 From this, we can
be confident that Hewart, as a law officer, was familiar with and directly involved
in the discussions concerning the potential problems of accepting the jurisdiction of
an international legal body.53
48
49
50
51
52
53
Fachiri, above n 22, 56 (emphasis added). See also Spiermann, above n 31, 295.
Cameron Hazlehurst, Sally Whitehead and Christine Woodland, A Guide to the
Papers of British Cabinet Ministers 1900–1964 (Cambridge University Press, 1996)
185.
Britain did not sign the Optional Protocol until the second Labour Government took
office in 1929.
Lloyd, above n 31, 46.
Ibid (citations omitted).
Lloyd states that the law officers objected on three grounds: that judges would divide
on national lines, that belligerent maritime rights would be cut down in scope, and
that, in the absence from the Court of judges from the US, there would be a ‘pre­
dominance of continental judges [which] would lead to the growth of differing codes
of international law on different sides of the Atlantic’: ibid 46–8.
472
OAKES AND DAVIES — JUSTICE MUST BE SEEN TO BE DONE
Lloyd goes on to review the years 1922–24. She states:
The political manoeuverings that accompanied the election of the judges to the
Court at the second Assembly in September 1921 confirmed Britain’s belief that
it had been wise in preventing the granting of compulsory jurisdiction to the
Court. Hurst [Foreign Office Legal Adviser] reported that the result was ‘as good
as could be expected,’ given ‘the poor list of candidates,’ but Crowe [Permanent
Secretary at the Foreign Office] took a dim view of the prospects for the functioning of the Court. Just as the election of the judges had ‘proceeded on purely
political grounds,’ so it was to be expected that ‘their eventual judgements will
always be the result of political considerations, and not of the impartial application of judicial principles.’54
In September 1921 Hewart was still Attorney-General but was not a member of
Lloyd-George’s cabinet. However, Lord Birkenhead, LC, was. It is highly likely
that he would have discussed the operationalisation of the PCIJ with his fellow law
officers, the Attorney-General and Solicitor-General, and so Hewart may well have
learned of (if he had not already thought of them for himself) the Foreign Office
mandarins’ concerns about partiality. The judgment in R v Sussex Justices55 was
given in early November 1923 (but not reported in Kings Bench Reports until 1924)
only a couple of years after the first appointments to the PCIJ had been made.
We also know that as Attorney-General, Hewart was involved with the prosecution
of Turkish war criminals and that he was in Paris on 13 November 1920 attending a
conference about the prosecution of Turkish war criminals under the Treaty of Sèvres
following the conclusion of that Treaty in August of that year.56 It is at the very
least highly plausible that Lord Hewart was in touch, if not rubbing shoulders with,
officials, jurists and politicians familiar with, discussing and using the phraseology
of the commentariat of the day and that the dictum ‘justice must be seen, or appear
to be done’ was part of that phraseology.
The second point is that what is at issue here is very specific, namely the composition of the Court, and the way in which the competing imperatives of judicial
independence and state interests (‘national susceptibilities’) were to be balanced.
The provision for additional national judges was a compromise, a concession to state
sovereignty. The Procès-Verbaux, which represent the only documentary evidence
54
55
56
Ibid 49 (citations omitted).
[1924] 1 KB 256.
UK Parliamentary Archives, ‘From Gordon Hewart, Inner Temple EC’ (Bonar Law
Papers Ref BL/104/1/13, 13 November 1920) <http://discovery.nationalarchives.gov.
uk/browse/r/e97c2fe0-df09-4333-a23f-19d9b9994c8c>. For an account of Sir Gordon
Hewart’s involvement in the prosecution of Turkish war criminals see Gary Jonathan
Bass, Stay the Hand of Vengeance: The Politics of War Crimes Tribunals (Princeton
University Press, 2000) 138. See also Vahakn N Dadrian, ‘Genocide as a Problem of
National and International Law: The World War I Armenian Case and its Contemporary Legal Ramifications’ (1989) 14 Yale Journal of International Law 221, 283–4.
(2016) 37 Adelaide Law Review473
that we have of the drafters’ train of thought, make this very clear. In the later words
of PCIJ Judge Manley Hudson, ‘the deputy-judges would serve the practical purpose
of filling vacancies, and the political purpose of satisfying States which had no
nationals among the judges’.57 In this context, appearances mattered but the mischief
to be addressed was suspicion of national bias and the solution was a compromise.
In this respect the facility for the appointment of ad hoc judges of the same nationality as the litigant states represented an important structure for guaranteeing the
independence of the Court. In modern parlance we can say that this is an unusual
but contextually specific and desirable aspect of independence analysis. What seems
to have happened with Lord Hewart’s overbroad remark is that the dictum has transcended this context and, in accordance with a trajectory that can accompany the
common law method, has taken on a life of its own to become the overriding criterion
for impartiality analysis.
In their 1927 report to the PCIJ, Judges Loder, Moore and Anzilotti warned that ‘of
all the influences to which men are subject, none is more powerful, more pervasive,
or more subtle’ than that of national bias.58 The fate of the PCIJ mirrored that of
the League of Nations; both were dissolved in April 1946 to be superseded by the
United Nations and the International Court of Justice (ICJ), its principal judicial
organ and ‘le doppelgänger ou le reflet de miroir’ of the PCIJ.59 The emergence
and ‘enormous expansion’ of an international judiciary that followed has been
termed ‘the single most important development of the post-Cold War age’60 but the
provisions for litigating parties to appoint one of their nationals to the bench to ‘even
up’ the balance with the other side61 were repeated in the ICJ statute and continue
57
58
59
60
61
Hudson, above n 8, 149; PCIJ Statute art 3.
Permanent Court of International Justice, ‘Fourth Annual Report of the Permanent
Court of International Justice’ (Annual Report, PCIJ Series E No 4, 2 September
1927) 75, quoted in Gleider I Hernàndez, ‘Impartiality and Bias at the International
Court of Justice’ (2012) 1(3) Cambridge Journal of International and Comparative
Law 183, 190.
Philip C Jessup, A Modern Law of Nations: An Introduction (Hamden, 1947) 147.
Cesare P R Romano, ‘The Proliferation of International Judicial Bodies: The Pieces
of the Puzzle’ (1999) 31 New York University Journal of International Law and
Politics 709, 709. For a further account of the growth and diversity of international
courts and tribunals, see Ruth Mackenzie and Philippe Sands, ‘International Courts
and Tribunals and the Independence of the International Judge’ (2003) 44 Harvard
International Law Journal 271.
Statute of the International Court of Justice art 31. See Eric A Posner and Miguel F P
de Figueiredo, ‘Is the International Court of Justice Biased?’ (2005) 34 Journal of
Legal Studies 599. Their analysis of the voting patterns of ICJ judges suggests ‘[t]here
is substantial evidence that party judges vote in favor of their home state. However,
the votes of party judges may cancel each other out, and it is possible that the nonparty
judges are unbiased, and that therefore the ICJ as a whole renders unbiased decisions’:
at 615. Overall their conclusions suggest that ‘[j]udges vote in favor of their own
countries, and in favor of countries that match the economic, political, and (somewhat
more weakly) cultural attributes of their own’: at 624.
474
OAKES AND DAVIES — JUSTICE MUST BE SEEN TO BE DONE
to generate debate concerning the potential for national and political loyalties to
compromise the independence of international courts and tribunals.62
Commenting on the extensive literature and with specific reference to the ICJ,
Dr Gleider I Hernàndez has remarked that
the most controversial and damaging accusation levelled against judges of the
Court is that they are guilty of partiality, or of national or political bias; and
numerous academic studies have been devoted to either proving or disproving
this very point.63
His point is to challenge the assumption that nationality and geography inevitably
constrain judicial decision-making at international level, an assumption which, he
argues, places too much emphasis on ‘subjective factors’ to the neglect of contextual
influences which are ‘objectively discernible’ — notably professional training and
experience which promote common understandings of the nature of the judicial role
and of ‘fidelity to the rules of international law’.64 Controversially, Professors Posner
and Woo have argued that tribunal independence in international dispute resolution
is overrated. Independent tribunals, they suggest,
pose a danger to international cooperation because they can render decisions
that conflict with the interests of state parties. Indeed, states will be reluctant to
use international tribunals unless they have control over the judges. On our view,
independence prevents international tribunals from being effective.65
This is a minority view; in Dr Hernàndez’s more mainstream formulation, judicial
independence and impartiality at whatever level always go together and the former is
a guarantor of the latter. As the Commentary on the Bangalore Principles of Judicial
Conduct explains:
62
63
64
65
See Hernàndez, above n 58, 200 n 84. Professor Lauterpacht described the impartiality of the international judge as ‘the Cape Horn of international judicial settlement’
and ‘undoubtedly one of the most urgent problems of the political organization of
the international community’: Sir Hersch Lauterpacht, The Function of International
Law in the International Community (Oxford University Press, first published 1933,
2011 ed) 211.
Hernàndez, above n 58, 200. But cf Erik Voeten’s findings in relation to the judges of
the European Court of Human Rights when ruling in cases where their own country
is a party: Erik Voeten, ‘The Politics of International Judicial Appointments’ (2009) 9
Chicago Journal of International Law 387.
Hernàndez, above n 58, 185–6, 207.
Eric A Posner and John C Woo, ‘Judicial Independence in International Tribunals’
(2005) 93 California Law Review 1, 7 (emphasis altered). See also Frédéric Mégret,
‘What is “International Impartiality”?’ in Vesselin Popovski (ed), International Rule
of Law and Professional Ethics (Ashgate Publishing, 2014) 101.
(2016) 37 Adelaide Law Review475
Independence is the necessary precondition to impartiality and is a prerequisite
for attaining impartiality. A judge could be independent but not impartial (on
a specific case by case basis); but a judge who is not independent cannot, by
definition, be impartial (on an institutional basis).66
Speaking at a seminar held in Birmingham UK, former Australian High Court justice
Michael Kirby, Rapporteur to the Judicial Integrity Group of the United Nations Office
on Drugs and Crime which produced the Bangalore Principles, noted that although
international human rights regimes now routinely require both judicial independence
and impartiality, there has been a tendency, particularly at national level (he referred
specifically to Australia and the UK) to conflate the two into an overarching judicial
requirement of freedom from bias.67 This he considered regrettable because the
qualities of independence and impartiality, as the Bangalore Commentary notes, are
two different things.68 Impartiality is a state of mind, to be determined by reference
to considerations of bias; independence is a state of being determined by reference to
objective considerations that include not only institutional connections but also
connections with the parties.69 ‘Applying an impartiality analysis alone’, he argued,
‘lose[s] an element essential to the attainment of the necessary standards.’70 It also,
we suggest, has the effect of importing into impartiality analysis what we might
term something of a category error, namely appearance concerns which originated
with independence analysis, and are more readily understandable and therefore more
easily applicable in that specific context. In other words, and in the context of the
composition of the judiciary of an international court, they reflect the presumption
that underpins all conflict of interest principles, namely that if forced to choose
between loyalty to self and duty to others, it is reasonable to assume that people will
choose the former, and in the context of an international judiciary, judges will prefer
their loyalties to their own country to the duties of impartiality required by their
judicial office. Exported from that context into impartiality analysis and assumptions concerning a judge’s state of mind, the concern is that an appearance standard
becomes an indeterminate standard with potentially dangerous implications for the
relationship between judicial independence and public opinion. Whatever its origins,
however, as argued above, there is no doubt that an impartiality analysis incorporating an appearance standard now prevails at both national and international levels.
The next part of this paper considers why this might be so.
66
67
68
69
70
Judicial Integrity Group, United Nations Office of Drugs and Crime, Commentary
on the Bangalore Principles of Judicial Conduct (2007) 57 [51] (citations omitted)
(‘Bangalore Commentary’).
Michael Kirby, ‘Judicial Recusal: Differentiating Judicial Impartiality and Judicial
Independence?’ (Paper presented at Modern Law Review Seminar, Birmingham City
University, 29 September 2014).
Ibid.
Ibid.
Ibid 29–30.
476
OAKES AND DAVIES — JUSTICE MUST BE SEEN TO BE DONE
II A nthropomorphic J ustice and the
R easonable /F air -M inded O bserver
The widespread adoption of an ‘appearance-based standard’ in impartiality juris­
prudence may, as we have suggested, represent a category error but it is now generally
justified by reference to considerations of institutional legitimacy that require a
judiciary that can inspire public confidence. In the formulations of the European
Court of Human Rights (ECtHR) ‘[w]hat is at stake is the confidence which the courts
in a democratic society must inspire in the public’.71 This is not normally regarded
as an empirical question; when the ECtHR asserts a need to connect with matters of
public confidence, it invokes a tradition of liberal discourse in which the boundaries,
limits and values of judicial procedure are conceptualised in terms of legitimacy but
this is a matter of the formal authority of the Court rather than an attempt to connect
with public attitudes and behaviour.72 Within this paradigm, what is required is the
proper separation of the judicial function from the other functions of government and
observance of ‘due process’, which sees justice as the consistent application of rules
by means of adjudicative procedures reflecting principles of neutrality and participation.73 In this context, the perspective of the fair-minded/reasonable and informed
observer is an idealised construct of the kind that courts are comfortable dealing with
when they dispense what Lord Hoffmann has termed ‘anthropomorphic justice’,
ie justice whose de facto spokesperson is the court itself.74 The effect may be to
‘lend a humanising and homely touch to the law’,75 but the exercise is essentially an
aspect of what has been termed ‘public repute discourse’, the purpose of which is
justificatory rather than evidential;76 as Professor Olowofoyeku has explained, courts
routinely create fictional characters ‘in situations wherein they wish to retain a wide
71
72
73
74
75
76
Hauschildt v Denmark (1989) 154 Eur Court HR (ser A) 16 [48]. See also Pullar v
United Kingdom [1996] III Eur Court HR 391, [38]; Martinie v France [2006] VI Eur
Court HR 87, 115–16 [52]; Peter Kempees (ed), A Systematic Guide to the Case-Law
of the European Court of Human Rights: 1997–1998 (Kluwer Law International,
2000) vol 4; Haydn Davies and Anne Richardson Oakes, ‘Problems of Perception
in the European Court of Human Rights: A Matter of Evidence?’ (2013) 3 St John’s
Journal of International and Comparative Law 120.
See Peter Laslett (ed), Locke: Two Treatises of Government (Cambridge University
Press, 1988); John Gray (ed), John Stuart Mill On Liberty and Other Essays (Oxford
University Press, 2008). For an account of the historical dimension see Shimon
Shetreet, ‘Judicial Independence: New Conceptual Dimensions and Contemporary
Challenges’ in S Shetreet and J Deschênes (eds), Judicial Independence: The Contemporary Debate (Martinus Nijhoff Publishers, 1985) 590.
The so-called rules of natural justice: nemo judex in causa sua (no-one can be judged
in their own cause) and audi alteram partem (hear both sides). See generally Patrick
Devlin, The Judge (Oxford University Press, 1979).
Lord Hoffmann, ‘Anthropomorphic Justice: The Reasonable Man and His Friends’
(1995) 29 Law Teacher 127.
R (Purcell) [2008] NICA 11 (12 February 2008) [26] (Girvan LJ).
Fredrick Schumann, ‘“The Appearance of Justice”: Public Justification in the Legal
Relation’ (2008) 66 University of Toronto Faculty of Law Review 189.
(2016) 37 Adelaide Law Review477
measure of discretion in reaching the “right” decision in individual cases’.77 This,
he claims, ‘is a straightforward description of what judges do on a day-to-day basis.
The task is, in essence, a normal judicial function’.78
The consequence, however, is the unsatisfactory nature of the construct; the courts
are led incrementally in the direction of attaching ‘increasingly unrealistic and
unachievable attributes to the unfortunate lay person to whom they have endeavoured, for all the noblest reasons, to hive off the task.’79 Professor McKoski’s point
is that an objective standard requires objective criteria — in the sense that there can
be general agreement concerning the definition of who the fair-minded observer
might be and what he or she can be presumed to know.80 This, he argues, is not the
case. The imaginary reasonable man of recusal discourse has morphed into a judicial
replicant in such a way as to negate what was initially the purpose of the exercise —
namely to connect with Lord Greer’s ‘man in the Clapham omnibus … who takes the
magazines at home, and in the evening pushes the lawn mower in his shirt sleeves’.81
Speaking extra-judicially, Lord Rodger has made much the same point:82
Should we welcome this newcomer [the fair-minded and informed observer] to
our legal village? Not particularly warmly, perhaps. The whole point of inventing
this fictional character is that he or she does not share the viewpoint of a judge.
Yet, in the end, it is a judge or judges who decide what the observer would
think about any given situation. Moreover, the informed observer is supposed
to know quite a lot about judges — about their training, about their professional experience, about their social interaction with other members of the legal
profession, about the judicial oath and its significance for them, etc. Endowing
the informed observer with these pieces of knowledge is designed to ensure that
any supposed appearance of bias is assessed on the basis of a proper appreciation of how judges and tribunals actually operate. The risk is that, if this process
is taken too far, … the judge will be holding up a mirror to himself. To put the
matter another way, the same process will tend to distance the notional observer
from the ordinary man in the street who does not know these things. And yet the
77
78
79
80
81
82
Abimbola A Olowofoyeku, ‘Bias and the Informed Observer: A Call for a Return to
Gough’ (2009) 68 Cambridge Law Journal 388, 389.
Ibid 407. Olowofoyeku describes the fair-minded observer as more like the Archangel
Michael than the person in the street: at 395.
Ibid 395.
McKoski, ‘Giving up Appearances’, above n 7, 53–9.
Hall v Brooklands Auto Racing Club [1933] 1 KB 205, 224.
Lord Rodger was responding to Lord Hope’s designation of the fair-minded and
informed observer as ‘a relative newcomer among the select group of personalities
who inhabit our legal village and are available to be called upon when a problem
arises that needs to be solved objectively’: Helow v Secretary of State for the Home
Department [2008] UKHL 62 (22 October 2008) [1] (Lord Hope).
478
OAKES AND DAVIES — JUSTICE MUST BE SEEN TO BE DONE
whole point of the exercise is to ensure that judges do not sit if to do so would risk
bringing the legal system into disrepute with ordinary members of the public.83
Professor Olowofoyeku’s suggestion is that ‘the construct’ (ie the informed and fairminded lay observer) ‘either be thought through in order to provide a realistic basis
for decision-making on the issue of apparent bias’ (ie be treated as an empirical
issue by, for example, entrusting the matter to a lay jury to reach a decision as one
of fact)84 or ‘be killed off and buried’ to be replaced by a court with the confidence
not to shelter behind a fiction.85 Professor McKoski’s preference is for the latter;
replacing the hypothetical lay observer with the hypothetical reasonable judge would
have, he suggests, a number of advantages.86 First, ‘judges know how the average
judge thinks’.87 Second, the problem of how much information to attribute to the
observer is solved: ‘The average judge possesses and understands every relevant
fact, legal authority, ethical standard, and professional norm’. Finally, the recusal test
remains ‘objective’:
The judge assessing the facts does not subjectively determine if she can be fair.
Instead, the judge determines whether the circumstances present a serious risk
of partiality on the part of the average judge. While the average judge may be a
hypothetical being, as a construct she is much worldlier than the hypothetical lay
observer.88
Most fundamentally, for this paper, Professor McKoski’s main target is the inherent
vagueness of the appearance standard itself. ‘Appearance-based disqualification’,
he argued, ‘has not brought uniformity, consistency, or predictability to recusal
decisions’.89 Recusal decisions should be based on facts instead of appearances:
83
84
85
Lord Rodger, ‘Bias and Conflicts of Interests — Challenges for Today’s Decision-­
Makers’ (Speech delivered at the Sultan Azlan Shah Law Lectures, University of Malaya,
2010) <http://www.sultanazlanshah.com/pdf/2011%20Book/SAS_Lecture_24.pdf>
(emphasis in original).
‘[S]o that the courts can secure the actual views of the ordinary members of the
public’: Olowofoyeku, above n 77, 407.
Ibid. We are indebted to an anonymous reviewer of this paper for the comment that
(emphasis in original):
86
87
88
89
the test makes most sense when judges are considering whether to recuse themselves.
In those circumstances, there is a clear reason for judges to use a hypothetical character
who judges appearances, rather than simply ruling ‘I am biased’ or ‘I am not biased’.
This helps account for the way the test took hold.
From a practical point of view, the same reviewer observed that claims of bias (actual
or apprehended) raise a ‘delicate interpersonal dynamic’, ie these claims are difficult
for counsel to make and for judges to rule on. The ‘anthropomorphic test’ is helpful
here because it depersonalises the situation.
McKoski, ‘Giving Up Appearances’, above n 7, 65.
Ibid.
Ibid 65–6.
Ibid 60.
(2016) 37 Adelaide Law Review479
‘However worded, the [recusal] test must be fact-based and assess the probability,
possibility, or likelihood of actual bias. Appearances, perception, and impressions
[must] play no role’.90
The assumption that assessments of probable, possible or likelihood of actual bias
do not involve appearances is contestable. In the absence of the ability to see inside
a judge’s mind, cases where there is clear evidence of actual bias will necessarily be
rare. When resort is had to the so-called ‘objective’ standard — ie the perception of an
onlooker — the exercise is necessarily one of perception, or appearance, and this is so
whether the onlooker be the fictitious reasonable person of common law discourse or
the reasonable judge whom ‘appearance’ critics might prefer. Leaving aside, however,
the inadequacies of the observer construct as a mechanism for arriving at conclusions of fact, presumed, possible, likely or otherwise, as Professor McKoski himself
recognised, there is another role for the lay observer: ‘The whole idea of employing the
reasonable person standard in judicial ethics is to “bring the public into the room”’.91
Michael Kirby went further: ‘the informed and fair-minded observer is a construct —
we recognise that — but it is a vehicle for expressing respect of the opinion of the
people whom we serve’.92 Of course, neither was suggesting that, even in a society
governed by respect for democratic principles, matters concerning the application of
the law should be decided by direct reference to the opinion of the people. On the other
hand, as Professor McKoski put it: ‘The major selling point for the appearance of bias
test is that it “will be capable of engender­ing the necessary public confidence in the
integrity of the judicial system”’.93 In the words of the ECtHR noted earlier, ‘[w]hat is
at stake is the confidence which the courts in a democratic society must inspire in the
public’.94 In the next section, we consider further why it is that courts do and should
care about how their actions appear to the public.
III D emocratic L egitimacy and the L imits
P ublic R epute D iscourse
of
Introducing his concept of ‘public repute discourse’, Canadian scholar Fredrick
Schumann asks two questions: (i) ‘[w]hy do courts care about how their actions
appear to the public, rather than how their actions really are?’; and (ii) ‘[w]ho is the
right-minded and well-informed person whose reaction courts consider when they
discuss public appearance?’95 His answers might provoke some initial surprise:
90
91
92
93
94
95
Ibid 68.
Ibid 53.
Kirby, above n 67.
McKoski, ‘Giving Up Appearances’, above n 7, 62, quoting Saxmere Co Ltd v Wool
Board Disestablishment Co Ltd [2010] 1 NZLR 35, 70 [99] (Tipping J).
Hauschildt v Denmark (1989) 154 Eur Court HR (ser A) 16 [48]. As Lord Denning
explained in the English case of Metropolitan Properties Co (FCG) Ltd v Lannon
[1969] 1 QB 577, 599: ‘Justice must be rooted in confidence: and confidence is
destroyed when right-minded people go away thinking: “The judge was biased”’.
Schumann, above n 76, 191.
480
OAKES AND DAVIES — JUSTICE MUST BE SEEN TO BE DONE
My answer to the first question is that courts care about the public appearance of
their actions because abstract truth is not the criterion of legitimacy for legal obligations; legal obligations must be justified as authentic. My answer to the second
question is that all legitimate obligations must be publicly justified, and that the
right-minded and well-informed person about whom courts habitually speak is
the persona to whom they must address a public legal justification. Furthermore,
courts’ concern about public appearance, while obviously not about the abstract
correctness of their decisions, is equally not aimed at securing the support of the
actual public. It is ultimately about the legitimacy of the legal obligations they
expound.96
His concern is to refute the tendency he detects in judicial discourse to treat these
matters instrumentally as ‘aimed at securing actual confidence in courts and actual
obedience to their judgments’97 and indeed, as Professor Hinsch points out, empirical
and normative conceptions of legitimacy are often confused; legitimacy is a term
much used, but infrequently defined.98 Political commentators, suggests Hinsch,
‘are prone to vacillate between them’ because the empirical conceptions of the
social sciences and the normative conceptions of political theory share a common
normative vocabulary and a focus on the legitimacy of rules and decisions as an
aspect of coercive state power.99 The difference is that for social scientists typically
influenced by Max Weber, legitimacy is a matter of empirically verifiable social
inquiry, ie legitimacy is a function of what people believe,100 while political theorists
are concerned with the norms that can underpin and justify political institutions and
arrangements and this is a matter of rational argument. Thus, whereas for a social
scientist a statement that an institutional arrangement is legitimate, in the empirical
sense, does not imply approval of its moral worth, for the political theorist legitimacy
is not a matter of subjective belief, but has a substantive component that requires:
(a) justification by reference to criteria to be negotiated via conceptions of justice and
rationality; and (b) an element of approval or commitment to the moral value of the
particular formulation in negotiation.101
Schumann’s analysis and terminology draw heavily on the contractualist arguments
of John Rawls, which seek to determine issues of justice by reference to a process of
public justification. In a ‘well-ordered society’, ie a society with a fair system
of social and political cooperation and ‘effectively regulated by a public conception of
justice’, public justification becomes the reflexive process by which citizens mutually
negotiate their own considered convictions in order that they can cooperate with each
96
97
98
99
100
101
Ibid (emphasis altered).
Ibid.
Wilfried Hinsch, ‘Justice, Legitimacy, and Constitutional Rights’ (2010) 13 Critical
Review of International Social and Political Philosophy 39, 40.
Ibid.
See David Beetham, The Legitimation of Power (Palgrave Macmillan, 1991) 8, citing
Max Weber, Wirtschaft und Gesellschaft (JCB Mohr, 1956) 23, 157; Max Weber,
Gesammelte Politische Schriften (JCB Mohr, 1958).
See Hinsch, above n 98.
(2016) 37 Adelaide Law Review481
other ‘on terms all can endorse as just’.102 Schumann’s account of ‘public repute
discourse’ imports this process into what he terms ‘the legal relation’, ie where the
court’s role is to consider ‘actual performances solely in respect of their legality’,103
to conclude that all legitimate obligations must be publicly justified and that the
‘reasonable person’ of judicial discourse is the person to whom this justification
is addressed.104 What he does not do, however, is consider how, if at all, we might
bridge the gap between abstraction and flesh and blood. Indeed, he recognises both:
(a) that the construction is a self-reflexive process in the sense that the characteristics
of the reasonable and informed observer will match those of the ideal judge; and
(b) the internally directed nature of the enterprise which he describes as a search
for ‘authenticity’, and not for abstract truth. In other words, what is at stake is a
solution which is justifiable to insiders — ie justifiable in lawyers’ terms — but as
he notes, the result is paradoxical; on the one hand, the justificatory ideology ‘holds
out the idea that the courts are accountable in some way to the public. On the other
hand, it renders the true public irrelevant through the use of the fictional reasonable
person’.105
As a legitimising tool, techniques of self-justification by means of close reference
to and exegesis of rules and careful application of the procedural norms of due
process are characteristic of what sociologists Nonet and Selznick have termed the
autonomous law model of legality106 but, as later socio-legal scholars have suggested,
claims of legitimacy generate a dynamic with the audience to whom the claims are
addressed.107 Important here, suggest Bottoms and Tankebe, is the requirement
of recognition; ‘discussions of legitimacy’ they argue, ‘must embrace both those
who exercise … power and those who are expected to obey’.108 In other words, in
order for claims of legitimacy to give rise to obligations that the audience to whom
they are addressed recognise as normative in character, as opposed to requiring
factual/pragmatic/strategic obedience only, they must be ‘dialogic and relational in
character’:
102
103
104
105
106
107
108
John Rawls, Justice as Fairness: A Restatement (Erin Kelly ed, Harvard University
Press, 2001) 15.
Schumann, above n 76, 215–16, citing Michael Oakeshott, ‘The Rule of Law’ in
Michael Oakeshott, On History and Other Essays (Basil Blackwell, 1983) 44.
Ibid 217–18.
Ibid 224.
Philippe Nonet and Philip Selznick, Law & Society in Transition: Toward Responsive
Law (Transaction Publishers, 2009).
Anthony Bottoms and Justice Tankebe, ‘Beyond Procedural Justice: A Dialogic
Approach to Legitimacy in Criminal Justice’ (2012) 102 Journal of Criminal Law &
Criminology 119, 120. Ibid 125, quoting Jean-Marc Coicaud, Legitimacy and Politics: A Contribution to
the Study of Political Right and Political Responsibility (David Ames Curtis trans,
Cambridge University Press, 2002) 10 [trans of: Légitimité et politique. Contribution
á l’étude du droit et de la responsabilité politiques (first published 1997)].
482
OAKES AND DAVIES — JUSTICE MUST BE SEEN TO BE DONE
those in power (or seeking power) in a given context make a claim to be the
legitimate ruler(s); then members of the audience respond to this claim; the
power-holder might adjust the nature of the claim in light of the audience’s
response; and this process repeats itself. It follows that legitimacy should not be
viewed as a single transaction; it is more like a perpetual discussion, in which
the content of power-holders’ later claims will be affected by the nature of the
audience response.109
This, we think, is the point that Michael Kirby was making and Professor McKoski
and fellow panel members were assenting to, and this is the problem with Schumann’s
assertion that ‘courts’ concern about public appearance, while obviously not about
the abstract correctness of their decisions, is equally not aimed at securing the support
of the actual public’.110 If the courts are serious about the need to inspire actual
public confidence then justification that is directed simply towards ‘authenticity’ or
‘legality’ by itself will not be sufficient; they must pay attention to the relational
nature of their connection with the public from whom their power ultimately derives
and to whom claims of legitimacy must ultimately be addressed.
Expressed in these terms, the issue becomes not so much legitimacy but its close
relative, accountability, which may indeed be a ‘complex and chameleon-like term’111
which ‘now crops up everywhere performing all manner of analytical and rhetorical
tasks and carrying most of the major burdens of democratic “governance”’,112 but
has undoubtedly achieved prominence in constitutional theory in recent times.113
At its most basic, the concept is justificatory, which means that it implies an audience
and begs a question: to whom must account be rendered or, put another way, to whom
is the justificatory discourse addressed? In democracies committed to the rule of
law, judges are primarily regarded as accountable to ‘the law’. They discharge their
obligations when they observe the norms of the discursive community of ‘the legal’
as recognised by the professionals, scholars and commentators who between them
define its parameters. This generally means that not only must their decisions be
‘authentic’ — ie rationalised in terms that this community recognises to be ‘legal’;
in doing so they must conduct themselves in such a way as to conform to the profession’s behavioural norms. When the courts seek answers to judicial recusal problems
by reference to the standpoint of the fair-minded or right thinking and informed
observer, they discharge their liability to this community but what can we say of their
responsibilities to: (a) the individual members of the public who come before them
for adjudication; and (b) the wider public community to whom, because they wield
power on their behalf, some measure of accountability is due?
109
110
111
112
113
Bottoms and Tankebe, above n 107, 129.
Schumann, above n 76, 190.
Richard Mulgan, ‘“Accountability”: An Ever-Expanding Concept?’ (2000) 78 Public
Administration 555, 555.
Ibid.
See Nicholas Bamforth and Peter Leyland (eds), Accountability in the Contemporary
Constitution (Oxford University Press, 2013) 1–24.
(2016) 37 Adelaide Law Review483
Their immediate focus must of course be the specific member of the public before
them; but this person requires, and as a matter of due process is entitled to, a judge
who is in point of fact neutral or impartial. It is difficult to see how appearances can
have a role to play. A judge who only seems to be impartial when in fact she is not
cannot satisfy the requirements of due process. From this point of view, Professor
McKoski’s conclusion that it is actual impartiality rather than its appearance which
represents ‘the most important value in judicial ethics’114 is surely incontrovertible.
Generally, however, submissions of actual bias are rarely made, not only because
advocates are reluctant to make them but also because of the obvious difficulty of
seeing what is inside the judge’s mind.115
It has been suggested that Lord Hewart’s famous remark was misheard and that what
he actually said was that justice must seem to be done.116 Of course this is not how
he was reported but the requirement that justice requires a relationship with public
perception can have some meaning in response to the second question, ie that of
judicial responsibilities to the wider public community, when we consider the issue
of public assumptions concerning the attitudinal beliefs and values of the kinds of
people who are appointed to the ranks of the judiciary.
Professor McKoski has suggested that the public
overwhelmingly believes that judges are out of touch with the thinking of the
average person. Approximately 80% of the persons responding to the British
Crime Survey expressed the opinion that judges were out of touch and 75% of
respondents in a Scottish survey ‘thought judges were out of touch with what
ordinary people think.’ In a 2009 survey, 58% of Australians disagreed with the
statement ‘judges are in touch with what ordinary people think’.117
The main reason for this, explains Professor Rackley, is to do with the composition
of the judicial bench and specifically the perception by members of the public that
the persons entrusted with dispensing justice are predominately ‘other’ in terms of
gender, class, age, ethnicity, religion and sexual orientation.118 Absence of diversity at
114
115
116
117
118
Raymond J McKoski, ‘Reestablishing Actual Impartiality as the Fundamental Value
of Judicial Ethics: Lessons from “Big Judge Davis”’ (2010) 99 Kentucky Law Journal
259, 262.
See Holly Stout, Bias (30 May 2011) Constitutional and Administrative Law Bar
Association <http://www.adminlaw.co.uk/library/publications.php>.
R v Essex Justices; Ex parte Perkins [1927] 2 KB 475, 488 (Avory J): ‘I think that in
that sentence the words “be seen” must be a misprint for the word “seem”’.
McKoski, ‘Giving Up Appearances’, above n 7, 65, citing Kate Warner et al, ‘Are
Judges out of Touch?’ (2014) 25 Current Issues in Criminal Justice 729, 729–30
(citations omitted); Jack Doyle, ‘Out-of-Touch Judges to be Given Lessons in Popular
Culture (After One Asked Who Are the Beatles?)’ Daily Mail (online), 16 June 2012
<http://www.dailymail.co.uk/news/article-2160110/Out-touch-judges-given-­lessonspopular-culture-asked-Beatles.html>.
Rackley, above n 9.
484
OAKES AND DAVIES — JUSTICE MUST BE SEEN TO BE DONE
this level points up the appearance of difference and fuels the suspicion that so-called
‘unconscious’ or ‘subconscious’ bias will perpetuate negative identity stereotypes
and cultural values with the potential to alienate important sections of society:
Research suggests that confidence in the judiciary (and the legal system more
generally) is undermined when people do not — or only rarely — see themselves
represented on the Bench. It feeds a sense that judges are ‘not like us’, that they
are ‘out of touch’ and don’t know ‘what is going on in the world’.119
Touching on these issues, Lord Neuberger, President of the UK Supreme Court, in an
important public lecture, recently reminded members of the judiciary and the legal
profession of the need to respond to the expectations of a society that is ‘changing
very quickly in terms of perceptions, social mix, cultural values and communications’.120 Referencing indirectly to the work of Professor Tom Tyler,121 who has
led much of the research into the role of values in promoting positive responses to
judicial process and inspiring actual public confidence,122 Lord Neuberger acknowledged that if the courts are to command public respect they must be responsive to
the public’s expectations of fairness which do not necessarily correspond to those of
the legal community but this will require an understanding of different cultural and
social habits:
It is necessary to have some understanding as to how people from different
cultural, social, religious or other backgrounds think and behave and how they
expect others to behave. Well known examples include how some religions
consider it inappropriate to take the oath, how some people consider it rude to
look other people in the eye, how some women find it inappropriate to appear in
public with their face uncovered, and how some people deem it inappropriate to
confront others or to be confronted — for instance with an outright denial.123
119
120
121
122
123
Ibid 25 (citations omitted).
Lord Neuberger, ‘Fairness in the Courts: The Best We Can Do’ (Speech delivered at
the Criminal Justice Alliance, London, 10 April 2015) <http://criminaljusticealliance.
org/wp-content/uploads/2015/04/The-Best-We-Can-Do-Lord-Neuberger-at-theCJA-100415.pdf>.
Lord Neuberger’s specific reference was to Emily Gold LaGratta and Phil Bowen, ‘To
Be Fair: Procedural Fairness in Courts’ (Policy Briefing, Criminal Justice Alliance,
2014) 4 (identifying the values of participation, neutrality, respect, and trust as drivers
of public confidence in judicial process).
Tom R Tyler, ‘What Do They Expect? New Findings Confirm the Precepts of
Procedural Fairness’ [2006] (1) California Courts Review 22. See also Tom R Tyler
and Gregory Mitchell, ‘Legitimacy and the Empowerment of Discretionary Legal
Authority: The United States Supreme Court and Abortion Rights’ (1994) 43 Duke
Law Journal 703, 752; Tom R Tyler, ‘Psychological Perspectives on Legitimacy and
Legitimation’ (2006) 57 Annual Review of Psychology 375.
Neuberger, above n 120, [22].
(2016) 37 Adelaide Law Review485
Misreported as suggesting that Muslim women should be allowed to be veiled in
court,124 what Lord Neuberger was actually concerned with was the issue of sub­
conscious or implicit bias and specifically the danger that because judges generally
‘come from a more privileged sector of society, in both economic and educational
terms, compared with the many of the parties, witnesses, jurors in court’, to the
public their neutrality may appear to be compromised:
It would be absurd to suggest that judges should be poorly educated or should
pretend to be not what they are, but they should be sensitive about this aspect.
And that is also true when it comes to gender and ethnic differences. Thus, a
white male … [privately educated] judge presiding in a trial of an unemployed
traveller from Eastern Europe accused of assaulting or robbing a white female …
[privately educated] woman will, I hope, always be unbiased. However, he should
always think to himself what his subconscious may be thinking or how it may be
causing him to act; and he should always remember how things may look to the
defendant, and indeed to the jury and to the public generally.125
It is certainly the case that the work of social psychologists into ‘implicit bias’,
accelerated in recent years by the development of the Implicit Association Test,126
appears to confirm the potential for cognitive heuristics, or short cuts, to perpetuate
negative stereotypes and affect judicial judgment.127 Professor Linda Hamilton
Krieger’s seminal paper on employment discrimination litigation in the United States
concluded that the decision-making process is not, as is often assumed in much of
the case law, a ‘moment-in-time’ phenomenon but is mediated by much longer term
influences; stereotypes, person prototypes and other implicit knowledge structures
bias decision-­making long before the ‘moment of decision’, so that racism is far
more likely to exert its effects through unconscious channels than through conscious
ones.128 Although the primary focus of this work has been discrimination by reference
to race, Professors Greenwald and Krieger explain that ‘attitudinal dissociations’,
ie discrepancies between implicit and explicit attitudes, are to be observed in relation
to all stigmatised groups characterised by race, age, ethnicity, disability and sexual
orientation.129
124
125
126
127
128
129
See Conor James McKinney, Lord Neuberger Unveiled? (18 April 2015) Full Fact
<https://fullfact.org/factcheck/law/lord-neuberger-unveiled-42830>.
Neuberger, above n 120, [21].
See Anthony G Greenwald and Linda Hamilton Krieger, ‘Implicit Bias: Scientific
Foundations’ (2006) 94 California Law Review 945, 955.
See generally Kristin A Lane, Jerry Kang and Mahzarin R Banaji, ‘Implicit Social
Cognition and Law’ (2007) 3 Annual Review of Law and Social Science 427. The
term was first used and defined by Anthony Greenwald and Mahzarin Banaji: see
Anthony G Greenwald and Mahzarin R Banaji, ‘Implicit Social Cognition: Attitudes,
Self-­Esteem, and Stereotypes’ (1995) 102 Psychology Review 4.
Linda Hamilton Krieger, ‘The Content of Our Categories: A Cognitive Bias Approach
to Discrimination and Equal Employment Opportunity’ (1995) 47 Stanford Law
Review 1161, 1209, 1212.
Greenwald and Krieger, above n 126, 949.
486
OAKES AND DAVIES — JUSTICE MUST BE SEEN TO BE DONE
As Lord Neuberger observed, the problem with unconscious bias is that ‘[i]t is almost
by definition an unknown unknown, and therefore extraordinarily difficult to get rid
of, or even to allow for’.130 An appropriate response will certainly involve judicial
training in what he called judgecraft, ie ‘educating judges and would-be judges not so
much about substantive law or procedural law, but about the multifarious techniques
which help make someone a good judge, and appear to be a good judge’.131 As to
what that might involve, he reverted back to the four qualities of procedural justice
that researchers consider hold the key to inspiring public confidence, and top of the
list he placed perceived neutrality and respect. The two, he suggested, work together
because ‘[j]udges have to show, and have to be seen to show, respect to everybody’.132
‘[W]e lawyers’, he observed,
whether in practice or judges, should never forget that we are performing a public
service, and a unique public service at that, because without lawyers, judges and
courts, there is no access to justice and therefore no rule of law, and without the
rule of law, society collapses. The public service aspect is fundamental: if we are
a public service, we must, self-evidently, serve the public, above all those who
use our services and our courts.133
Arguing in favour of greater diversity amongst the higher ranks of the judiciary,
particularly in gender and ethnic minority terms, Lady Hale, Deputy President of the
UK Supreme Court and a former academic whose career path has not been typical of
that of her judicial brethren, has explained how the ‘underlying values of a democratic
society: a democracy which values each person equally even if the majority do not’,
require a judiciary composed of people who look like the community they serve.134
The concern is not just about enhancing adjudication via a range of life experiences
and perspectives, important though these considerations are; it is primarily that of
democratic legitimacy:
In a democracy governed by the people and not by an absolute monarch or even
an aristocratic ruling class, the judiciary should reflect the whole community, not
just a small section of it. The public should be able to feel that the courts are their
courts; that their cases are being decided and the law is being made by people like
them, and not by some alien beings from another planet. In the modern world,
where social deference has largely disappeared, this should enhance rather than
undermine the public’s confidence in the law and the legal system.135
130
131
132
133
134
135
Neuberger, above n 120, [18].
Ibid.
Ibid.
Ibid.
Lady Hale, ‘Women in the Judiciary’ (Paper presented at the Fiona Woolf Lecture for
the Women Lawyers’ Division of the Law Society, London, 27 June 2014) 5 <https://
www.supremecourt.uk/docs/speech-140627.pdf>.
Ibid 4.
(2016) 37 Adelaide Law Review487
This then is a perspective from which appearances do matter, yet as Lady Hale
pointed out, in terms of gender diversity the UK judiciary, particularly at the higher
levels, is out of step with the rest of the world and this is a matter of concern to the
mainstream press.136 In the UK Supreme Court, Lady Hale is as yet the sole woman.
Figures taken from the judiciary website137 show that as at April 2016, while the
percentage of female judges in courts overall increased from 25 per cent in 2015 to
28 per cent in 2016,138 of the 39 judges in the Court of Appeal, only eight are women,
a figure which remains stable from the previous year. 22 out of 106 High Court
Judges (21 per cent) are women. In April 2015, the number was 21 (20 per cent). The
number of female Circuit Judges increased from 146 in April 2015 to 160 in April
2016 (from 23 per cent to 26 per cent).
In terms of ethnicity, the percentage identifying as ‘Black’, ‘Asian’ and ‘Minority
Ethnic’ is six per cent in courts (stable since 2015), and in tribunals 10 per cent
(up from nine per cent in 2015).139 This is higher for court judges under 40 —
nine per cent (six per cent last year) — and 16 per cent for tribunal judges (15 per
cent last year). For those under 50, figures for courts and tribunals have stayed
stable at 12 per cent between 2015 and 2016, with nine per cent of court judges and
16 per cent of tribunal judges aged under 50 this year, figures Lord Thomas LCJ
found dis­appointing and an area of concern where more needs to be done.140
In terms of professional background, another important indication of social diversity,
the 2016 figures were similarly disappointing. A third (34 per cent, compared with
36 per cent in 2015) of court judges and two-thirds (65 per cent, compared with
67 per cent in 2015) of tribunal judges are from non-barrister backgrounds. This
varies by jurisdiction for both courts and tribunals, with judges in lower courts more
likely to come from a non-barrister background.141
The Lord Chief Justice has claimed that there has been a steady improvement in the
diversity of the judiciary taken as a whole.142 However, as yet no data is collected
on disability, sexual orientation, religion or belief or socioeconomic background.143
As the Equality and Human Rights Commission (EHRC), which reports on the
UK’s implementation of obligations under the International Covenant for Civil and
136
137
138
139
140
141
142
143
Ibid.
Courts and Tribunals Judiciary, Judicial Diversity Statistics 2016 (28 July 2016)
<https://www.judiciary.gov.uk/about-the-judiciary/who-are-the-judiciary/diversity/
judicial-diversity-statistics-2016/>.
The figure for tribunals is higher, remaining stable at 45 per cent.
Figures reflecting those who declared their ethnicity.
Courts and Tribunals Judiciary, Judicial Diversity Statistics 2016, above n 137.
Ibid.
Courts and Tribunals Judiciary, Judicial Statistics 2015 (30 July 2015) <https://www.
judiciary.gov.uk/publications/judicial-statistics-2015/>.
In June 2014, the Judicial Appointments Commission published for the first time
statistics on sexual orientation and religious belief and will continue to do so in future
official publications.
488
OAKES AND DAVIES — JUSTICE MUST BE SEEN TO BE DONE
Political Rights,144 pointed out, at least in terms of gender balance, the UK is still out
of step with the rest of the world; in 2010, on average, women represented 48 per cent
of the judiciary across the countries of the Council of Europe.145 England and Wales
sits fourth from the bottom, only above Azerbaijan, Scotland and Armenia.146
In terms of representation at the highest level, as Lady Hale pointed out, of the
34 countries in the OECD the UK at eight per cent was ‘at rock bottom, albeit closely
followed by Turkey’:
Even the other common law countries are currently much better than us: three out
of the nine in the Supreme Court of the United States; three out of the nine in the
Supreme Court of Canada; three out of the seven in the High Court of Australia;
two out of five in the Supreme Court of New Zealand. Of course, not too much
can be made of this when the numbers are so small but against this picture one
out of twelve does not look good. It looks even worse when you realise that there
have been thirteen appointments since I was appointed ten and a half years ago,
and all of them are men.147
The UK government has instigated a number of initiatives aimed at tackling the
lack of judicial diversity. The Judicial Appointments Commission (JAC) was set
up in 2006 to recommend candidates for judicial appointments independently of
the executive. It has statutory responsibilities to select candidates on merit and
encourage diversity in the range of candidates available for judicial selection. An
Advisory Panel on Judicial Diversity, announced by the Lord Chancellor in April
2009 and chaired by Baroness Neuberger, made 53 recommendations including the
setting up of a Judicial Diversity Task Force,148 but as the EHRC reported, by 2013
only 18 of the 53 recommendations had been fully implemented.149
144
145
146
147
148
149
GA Res 2200A (XXI), UN GAOR, 21st sess, 1469th plen meeting, UN Doc A/
RES/2200(XXI)[C] (16 December 1966) (‘ICCPR’).
European Commission for the Efficiency of Justice, ‘European Judicial System —
Edition 2012’ (Final Report, European Commission for the Efficiency of Justice,
2012) 277, figure 11.30 <http://www.coe.int/t/dghl/cooperation/cepej/evaluation/2012/
Rapport_en.pdf>.
Ibid.
Hale, above n 134, 7 (referring to the work of Professor Alan Paterson at Strathclyde
University). See also Equality and Human Rights Commission, Submission to United
Nations Human Rights Committee Pre-Sessional Working Group on the United
Kingdom’s Implementation of the International Covenant on Civil and Political
Rights, July 2014, 2.
Advisory Panel on Judicial Diversity, ‘The Report of the Advisory Panel on Judicial
Diversity 2010’ (Report, 2010) <https://www.ucl.ac.uk/laws/judicial-institute/files/
Report_of_the_Advisory_Panel_on_Judicial_Diversity.pdf>.
Judicial Diversity Taskforce, ‘Improving Judicial Diversity: Progress Towards
Delivery of the “Report of the Advisory Panel on Judicial Diversity 2010”’ (Annual
Report, Judicial Taskforce, September 2013) <https://www.gov.uk/government/
uploads/system/uploads/attachment_data/file/244013/judicial-diversity-­t askforceannual-report-2013.pdf>.
(2016) 37 Adelaide Law Review489
From July 2014, the JAC has implemented an equal merit provision policy, which
allows the selection of a candidate from under-represented groups in a tie-break
situation.150 This has been supplemented by a judicial mentoring scheme led by Lady
Justice Hallett targeting specifically women, black, Asian and minority ethnic lawyers
and those from low socioeconomic backgrounds.151 However, the EHRC notes that
progress remains slow, continues to be out of step with progress across the globe and
now recommends that ‘[i]f there is no significant increase in the numbers of women
and ethnic minorities in judicial appointments by 2017, the UK Government should
consider the introduction of non-mandatory targets’.152 This suggestion, possibly
unsurprisingly, has prompted negative responses in high-level judicial circles.153
C onclusion : C losing the N ormative C ircle — T he M ount
S copus S tandards and the F air R eflection P rinciple
Opening its 2015 report on the UK’s implementation of its obligations under the
ICCPR with regard to judicial diversity, the EHRC referenced ICCPR arts 2, 3, 25
and 26 and asserted: ‘The EHRC believes there is a strong case for judicial diversity,
based on equality of opportunity and the need for the judiciary to reflect the public
it serves’.154 The UK’s recent experiments with judicial diversity began life with
s 64 of the Constitutional Reform Act 2005 (UK) which required the JAC established by the Act to ‘have regard to the need to encourage diversity in the range
150
151
152
153
154
Judicial Appointments Commission, ‘Equal Merit Provision: JAC Policy’ (Policy,
Judicial Appointments Commission, July 2014) <https://jac.judiciary.gov.uk/sites/
default/files/sync/basic_page/emp_policy_0.pdf>.
Defined as ‘[l]awyers who attended a (non fee paying) state school or were the first
generation in their family to attend university’: Courts and Tribunals Judiciary,
Judicial Mentoring Scheme <https://www.judiciary.gov.uk/about-the-judiciary/­
judges-career-paths/judicial-mentoring-scheme/>. See also now the first progress
report of the Judicial Diversity Committee of the Judges’ Council established by
Thomas LCJ and chaired by Hallett LJ: Judicial Diversity Committee of the Judges’
Council, ‘Report on Progress: 2013–2016’ (Report, 2016) <https://www.judiciary.gov.
uk/wp-content/uploads/2016/07/judicial-diversity-committee-progress-report-13-16.
pdf>.
Equality and Human Rights Commission, Submission to the United Nations Human
Rights Committee on the United Kingdom’s Implementation of the International
Covenant on Civil and Political Rights, Civil and Political Rights in the UK, May
2015, 11.
See, eg, Martin Bentham, ‘Rush for Gender Equality for Top Judges “Could Have
Appalling Consequences for Justice”’, Evening Standard (online), 21 September 2015
<http://www.standard.co.uk/news/uk/rush-for-gender-equality-with-top-judgescould-have-appalling-consequences-for-justice-a2952331.html>.
Equality and Human Rights Commission, above n 152, 8.
490
OAKES AND DAVIES — JUSTICE MUST BE SEEN TO BE DONE
of persons available for selection for appointments’.155 For Professor Shetreet,156
these provisions of the UK Parliament promote the principles of fair reflection
and democratic accountability now enshrined in the Mount Scopus Standards,157
but this is not entirely accurate. As the EHRC noted above,158 the drivers for the
UK’s current concerns are primarily the UK’s international human rights commitments, found both in the ICCPR and the ECHR and directed towards the elimination
of discrimination and barriers to participation in public life.159 The driver for the
imperative that the judiciary reflect the public it serves is more likely the so-called
‘fair reflection’ principle, first articulated in the 1983 Montréal Declaration, and
now set out in art 2.15 of the Mount Scopus Standards: ‘The process and standards
of judicial selection shall give due consideration to the principle of fair reflection
by the judiciary of the society in all its aspects’.160 As Lady Hale argued above,
155
156
157
The provision is subject to s 63 of the Constitutional Reform Act 2005 (UK) which
clarifies that selection must be solely on merit and that the JAC must satisfy itself that
persons selected are of good character: Constitutional Reform Act 2005 (UK) ss 63–4.
See also Equality Act 2010 (UK) s 159(2), which allows preference to be given to a
member of an under-represented group when there are two or more candidates of
equal merit.
Shetreet, ‘The Normative Cycle of Shaping Judicial Independence’, above n 11, 311.
Article 4.2(a) states:
158
159
160
Equality and Human Rights Commission, above n 152. The UK government has
not yet ratified the Optional Protocol on ICCPR and there is no right of individual
complaint before the EHRC. Nevertheless, the scope of the ICCPR is similar to that
of the European Convention on Human Rights (ECHR), the provisions of which are
directly enforceable in UK Courts via the Human Rights Act 1998 (UK).
See Panel on Fair Access to the Professions, ‘Unleashing Aspiration: The Final Report
of the Panel on Fair Access to the Professions’ (Final Report, July 2009) <http://
webarchive.nationalarchives.gov.uk/+/http:/www.cabinetoffice.gov.uk/media/227102/
fair-access.pdf>. The Panel on Fair Access to the Professions and the Panel on Judicial
Diversity were welcomed by the United Nations Committee on Economic, Social and
Cultural Rights, as ‘institutions to address equality issues’: Committee on Economic,
Social and Cultural Rights, Consideration of Reports Submitted by States Parties
Under Articles 16 and 17 of the Covenant: Concluding Observations of the Committee
on Economic, Social and Cultural Rights — United Kingdom of Great Britain and
Northern Island, the Crown Dependencies and the Overseas Dependent Territories,
42nd sess, UN Doc E/C.12/GBR/CO/5 (12 June 2009) 2 [6].
Article 2.15 only applies to the national judiciary and is modified by the non-­
discrimination and equality of access provisions of art 2.15.1 (citations omitted):
The principle of democratic accountability should be respected and therefore it is
legitimate for the Executive and the Legislature to play a role in judicial appointments
provided that due consideration is given to the principle of Judicial Independence.
Taking into consideration the principle of fair reflection by the judiciary of the society in
all its aspects, in the selection of judges, there shall be no discrimination on the grounds
of race, colour, gender, language, religion, national or social origin, property, birth or
status, subject however to citizenship requirements.
Article 2.15 is also modified by art 2.16 (citations omitted): ‘Candidates for judicial
office shall be individuals of integrity and ability, well-trained in the law. They shall
have equality of access to judicial office’.
(2016) 37 Adelaide Law Review491
a judiciary composed of people to whom the community they serve can relate is
an important aspect of the principle of democratic accountability which appears in
art 2.14 of the Mount Scopus Standards161 but as Professor Shetreet also observes,
a reflective judiciary is itself an important mechanism of countering perceptions of
bias and thereby bolstering public confidence:
The principle of fair reflection of society is an imperative factor for maintaining
the important value of public confidence in the courts. Although the over-­emphasis
on personal judicial biases pays insufficient credit to the balancing effect of
social controls, system factors and institutional traditions, it cannot be denied
that all judges view the world to some degree through their own individually-­
tinted glasses. Thus a reflective judiciary is required. The process and standards
of judicial reflection must ensure fair reflection of social classes, ethnic and
religious groups, ideological inclinations and, where appropriate, geography.162
Both drivers, however, illustrate the process of cross-fertilisation or pollination
between national law and international law that Professor Shetreet has identified in
terms of a normative cycle or dynamic; standards that have been successfully implemented in a domestic context are crystallised by way of international standards and
are then transplanted back into member state systems.163 In relation to the values of
judicial independence, he has argued that the UK is a particularly good illustration:
In the cycle’s first phase, which began in 1701 with England’s enactment of the
Act of Settlement, judicial independence was conceived domestically. In the
second phase, which began shortly thereafter, this domestic development crossed
national boundaries and impacted the thinking of scholars and political leaders
in the international community. It brought about the formulation of established
principles of judicial independence on the transnational levels, both regional and
global. In the third phase, in which we find ourselves today, the international
law of judicial independence begins to impact the domestic laws of nations with
significant and even dramatic results.164
In this paper, which began with a search for context to Lord Hewart’s much-quoted
but not so readily interpreted remarks concerning the role of appearances in the
delivery of justice, we have sought to identify something similar but the starting
161
162
163
164
‘The principle of democratic accountability should be respected and therefore it
is legitimate for the legislature to play a role in judicial appointments and central
admini­stration of justice provided that due consideration is given to the principle of
judicial independence’.
Shimon Shetreet, ‘The Mt Scopus International Standards of Judicial Independence:
The Innovative Concepts and the Formulation of a Consensus in a Legal Culture of
Diversity’ in Shimon Shetreet and Christopher Forsyth (eds), The Culture of Judicial
Independence: Conceptual Foundations and Practical Challenges (Martinus Nijhoff,
2012) 475, 480.
Shetreet, ‘The Normative Cycle of Shaping Judicial Independence’, above n 11, 310.
Ibid 275 (citations omitted).
492
OAKES AND DAVIES — JUSTICE MUST BE SEEN TO BE DONE
point has been reversed; concerns with appearance which may well have started at
international level, have infected national jurisprudence via Lord Hewart’s (almost
certainly) throw away remark, taken on a life of their own via the common law
method and now find their expression in international requirements of fair reflection
and democratic accountability. The consequence we have termed a category error;
concerns that originated at international level and aimed essentially at independence
have crystallised at domestic level where they have been conflated with issues of
‘impartiality’ and subsumed into a single requirement of freedom from apparent
bias. This is unfortunate because, as Michael Kirby pointed out in the passage cited
earlier, the concepts of ‘independence’ and ‘impartiality’, though related, are yet
conceptually distinct.
Where then does this leave the fair-minded and informed observer of impartiality analysis? We finish this essay with two prompts for further reflection. The first
relates to the indeterminacy objection and is optimistic. It is to be expected that as
cross-fertilisation persists, the requirements of independence and impartiality that
now routinely appear in international human rights instruments will become more
obviously determinate with a corresponding impact upon the contours of recusal
jurisprudence at national level as they do so.165 We can also expect codes of judicial
practice and indeed legislatures to become ever more specific concerning declarations
of interests (including potentially a requirement for a register of judges’ pecuniary
interests)166 and the boundaries of acceptable conduct. As this happens, the role of
the ‘fair-minded and informed observer’ is likely to become more of a backstop than
a primary tool for determining whether or not a judge should sit. The jurisprudence
of the ECtHR, which is now one of the most heavily cited constitutional courts,167 is
already extensive and the Court now publishes summaries of its case law in the form
165
166
167
See Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3rd
sess, 183rd plen mtg, UN Doc A/810 (10 December 1984) art 10; Convention for
the Protection of Human Rights and Fundamental Freedoms, opened for signature
4 November 1950, 213 UNTS 221 (entered into force 3 September 1953), as amended
by Protocol No 16 to the Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 2 October 2013, CETS No 214 art 14.1;
International Covenant on Civil and Political Rights, GA Res 2200A (XXI), UN
GAOR, 21st sess, 1469th plen meeting, UN Doc A/RES/2200(XXI)[C] (16 December
1966) art 14.1; American Convention on Human Rights, opened for signature
21 November 1969, 1144 UNTS 123 (entered into force 18 July 1978) art 8; cf African
Charter on Human and Peoples’ Rights, opened for signature 27 June 1981, 1520
UNTS 217 (entered into force 21 October 1986) art 7(d) which guarantees only an
impartial court or tribunal. See generally Kirby, above n 67, 11–14.
See Sir Grant Hammond, ‘Judicial Recusal: The Legislature Strikes Back?’ (2015) 4
British Journal of American Legal Studies 19, 26–9 (explaining the background to the
introduction of the Register of Pecuniary Interests of Judges Bill 2010 (NZ) into the
New Zealand Parliament).
Ran Hirschl, Comparative Matters: The Renaissance of Comparative Constitutional
Law (Oxford University Press, 2014) 27.
(2016) 37 Adelaide Law Review493
of Guides to Article 6: ‘Right to a Fair Trial’ (Civil and Criminal Limbs).168 Both
Guides continue to distinguish between so-called subjective and objective tests of
independence and impartiality. In relation to the so-called ‘objective’ test, the Guides
ask whether the tribunal itself and among other aspects, its composition, offered
sufficient guarantees to exclude any legitimate doubt in respect of its impartiality.169
This focuses on ‘ascertainable facts’ including ‘hierarchical or other links between
the judge and other actors in the proceedings’,170 matters of internal organisation
(ie the procedures put in place by legislatures to ensure independence and impartiality)171 and functional issues such as the exercise of different functions within the
judicial process by the same person.172 This is helpful because it encourages reflection
on the structural underpinnings of independence and impartiality, as opposed to
speculation concerning the state of the judicial mind as likely to be perceived by the
fictitious observer. Unfortunately, the Court continues to preserve its ‘doctrine of
appearances’, which it claims is necessary to instil public confidence in the judicial
process in a democratic society:
In this respect even appearances may be of a certain importance or, in other
words, ‘justice must not only be done, it must also be seen to be done.’ What is at
stake is the confidence which the courts in a democratic society must inspire in
the public. Thus, any judge in respect of whom there is a legitimate reason to fear
a lack of impartiality must withdraw …173
Our second thought is this. A paradigm or disciplinary matrix rests upon common
understandings of the theoretical assumptions upon which shared perceptions of what
constitutes or ought to constitute reality can emerge. We have considered the view
that the value of anthropomorphic justice to which the fair-minded and informed
observer properly belongs rests on assumptions of legitimacy of judicial process in
which accountability is conceptualised in terms of authority and rendered in the form
of reasoning directed to the discursive norms of a legal community. In the context of
judicial process in 21st century democracies, it is customary to counterpose considerations of judicial accountability with those of judicial independence and impartiality.
Too much of the former, it is claimed, undermines the latter yet as the editors of a
168
169
170
171
172
173
European Court of Human Rights, ‘Right to a Fair Trial (Civil Limb)’ (Guide on
Article 6 of the European Convention on Human Rights, Council of Europe, 2013)
27–33 [126]–[167] <www.echr.coe.int/Documents/Guide_Art_6_ENG.pdf> (‘Civil
Guide’); European Court of Human Rights, ‘Right to a Fair Trial (Criminal Limb)’
(Guide on Article 6 of the European Convention on Human Rights, Council of Europe,
2014) 16–20 [54]–[90] <www.echr.coe.int/Documents/Guide_Art_6_criminal_
ENG.pdf> (‘Criminal Guide’).
Civil Guide, above n 168, 29 [144]; Criminal Guide, above n 168, 17 [66].
Civil Guide, above n 168, 30 [149]–[150] (emphasis added). See also Criminal Guide,
above n 168, 18 [71], [73].
Civil Guide, above n 168, 30 [153]; Criminal Guide, above n 168, 18 [75].
Civil Guide, above n 168, 31 [156]; Criminal Guide, above n 168, 18–19 [77].
Civil Guide, above n 168, 30 [152] (emphasis added) (citations omitted). See also
Criminal Guide, above n 168, 18 [74].
494
OAKES AND DAVIES — JUSTICE MUST BE SEEN TO BE DONE
recent important collection of essays on this topic put it ‘the declining power of
social deference, the expanding reach of populist accountability mechanisms, and
the increasing willingness of citizens to find mechanisms for challenging official
decision-making’ now constitute important parameters of constitutional debate
which the judiciary cannot ignore.174
As access to justice is conceptualised in terms of human rights, with the state as the
service provider, the demands of popular accountability acquire ever-greater force.175
From the perspective outlined in this paper, the current emphasis on judicial diversity
is, we suggest, reflective of a Kuhnian paradigm shift in the underlying values of
recusal jurisprudence from those of authority (conceptualised in terms of legitimacy)
to those of human rights (conceptualised in terms of accountability). From this point
of view it is indeed possible to see in the amorphous jurisprudence of the fictitious
informed and reasonable observer standard the shifting tectonics of a paradigm in
crisis. In Kuhnian analysis, as Linda Krieger has explained,
the breakdown of a theoretical paradigm often follows the proliferation of ad
hoc adjustments designed to explain, within the existing theoretical structure,
phenomena for which the paradigm could not otherwise account. As this disintegration progresses … the paradigm becomes so increasingly complex, so
incapable of consistent application, that it eventually loses its utility as a guiding
framework.176
It is at this point that normative re-evaluation and the search for viable alternatives
become not only legitimate but required. For the ‘fair-minded and informed observer’
of contemporary recusal jurisprudence, that point we suggest may now have come.
174
175
176
Bamforth and Leyland, above n 113.
‘As justice becomes conceived less as an act of state authority and more as a public
service, so the demands for accountability for the system grow’: John Bell, ‘Sweden’s
Contribution to Governance of the Judiciary’ in Mads Andenas and Duncan Fairgrieve
(eds), Tom Bingham and the Transformation of the Law: A Liber Amicorum (Oxford
University Press, 2009) 84, 86.
Krieger, above n 128, 1218 (citations omitted).
Nola M Ries,* Briony Johnston** and Shaun McCarthy***
LEGAL EDUCATION AND THE AGEING POPULATION:
BUILDING STUDENT KNOWLEDGE AND
SKILLS THROUGH EXPERIENTIAL LEARNING
IN COLLABORATION WITH COMMUNITY
ORGANISATIONS
A bstract
The Australian population is ageing and dementia is now the leading
cause of disability in persons over the age of 65 years. Lawyers must
be prepared to meet the legal needs of older clients, including helping
them plan in advance for health, financial and property matters. Lawyers
must be able to recognise when cognitive impairment may limit a client’s
decision-­
making capacity and take appropriate steps to handle such
situations. Legal regulatory bodies in Australia report an increasing
incidence of complaints against legal practitioners, including junior
lawyers, for failures to identify and manage capacity issues.
This article discusses an experiential learning pilot project designed to
build students’ knowledge and skills to better meet their professional
responsibilities when providing assistance to older clients. The University
of Newcastle Law School in New South Wales, Australia, collaborated
with local community organisations to deliver: (1) a legal education
initiative that included law students in the delivery of legal information
seminars for older adults and people with chronic health conditions; and
(2) a training module to educate students about client capacity issues.
The article describes the process of embedding research into this
project to evaluate students’ experiences and to investigate the impact
of community legal education on attendees’ knowledge and behaviour.
Our results demonstrate the value of experiential learning for students
and indicate that legal education can enhance attendees’ readiness to plan
ahead for future periods of incapacity.
*
**
***
Associate Professor and Deputy Head (Research), University of Newcastle Law
School.
Sessional Academic and Research Assistant with the University of Newcastle Law
School.
Director, University of Newcastle Legal Centre and Convenor of the Professional
Practice Program.
RIES, JOHNSTON AND McCARTHY —
LEGAL EDUCATION AND THE AGEING POPULATION
496
This article includes practical lessons learned from the design, implementation and evaluation of this pilot project.
I I ntroduction
A
ustralia has an ageing population and many people are living longer with
chronic illnesses.1 Half of all Australians over the age of 65 report having
a disability,2 with dementia-related conditions now the leading cause of
disability among this age group.3 The legal profession must be prepared to meet the
needs of older adults in two ways: first, by reducing the barriers that make it difficult
for older adults to know and act on their legal rights;4 and second, by ensuring that
legal practitioners identify and respond appropriately when a client displays signs
of cognitive impairment and reduced decision-making capacity. Worryingly, people
who are ‘decisional dependent’ — that is, willing to give another person control over
their personal affairs — reportedly have lower levels of knowledge about their legal
rights.5 The Legal Australia-Wide Survey notes the importance of legal education
initiatives tailored to meet the needs of different age groups and the typical legal
problems they encounter.6 Older adults are identified as an important group to reach
with legal education programs and assistance. This is especially true in relation to
advance personal planning through, for example, writing an advance care plan and a
will and appointing trusted individuals to make financial and healthcare decisions in
the event of future periods of incapacity.7
1
2
3
4
5
6
7
Around 3.4 million Australians are aged 65 and older, a three-fold increase in 50 years,
and nearly 460 000 are aged 85 and over, a nine-fold increase: see Australian Institute
of Health and Welfare, Ageing (2016) <http://aihw.gov.au/ageing/>.
Ibid.
Alzheimer’s Australia reports that there are 1700 new cases of dementia diagnosed
each week in Australia: Alzheimer’s Australia, Key Facts and Statistics — Vic
<https://vic.fightdementia.org.au/vic/about-us/media/key-facts-and-statistics>.
Susan Edwards and Antonia Fontana, ‘Legal Information Needs of Older People’
(Report, Law and Justice Foundation of New South Wales, 2004) iv.
Cheryl Tilse et al, ‘Legal Practitioners and Older Clients: Challenges and Opportunities for Effective Practice’ (2002) 1 Elder Law Review 34.
Christine Coumarelos et al, ‘Legal Australia-Wide Survey: Legal Need in Australia’
(Report, Law and Justice Foundation of New South Wales, August 2012) xxii.
Ibid 173, citing Christine Coumarelos, Zhigang Wei and Albert Z Zhou, ‘Justice
Made to Measure: NSW Legal Needs Survey in Disadvantaged Areas’ (Report, Law
and Justice Foundation of New South Wales, March 2006):
Although most types of legal problems are less prevalent among older people [including
legal problems related to criminal activity, rental housing, credit and debt, child and
family disputes], some types of legal problems are relatively common in this age group.
In particular, past research has found that wills, estates and power of attorney issues are
common in the older age groups …
(2016) 37 Adelaide Law Review497
A variety of barriers prevent older adults from obtaining legal help, including the
costs of legal services and a perception that lawyers are not interested in older
clients.8 Sage-Jacobson explains that ‘[o]lder people do suffer a distinct disadvantage
in access to justice. … [T]he evidence does show that older people face particularly strong barriers to gaining legal assistance and achieving satisfactory resolution
compared to other Australians.’9 Those who do not access the necessary legal help to
engage in advance personal planning are at risk of becoming the subjects of decisions
that do not accord with their values, wishes and preferences. As a result, they are
more likely to experience loss of control, unwanted medical interventions and poorer
quality of life as they deal with deteriorating health and reduced independence, and
be vulnerable to financial exploitation.
Law schools have an important role in ensuring that students, as future legal practitioners, gain relevant knowledge, skills and experience during their studies that
will help them provide effective legal services to older clients and meet their ethical
responsibilities in situations where a client’s decision-making capacity may be an
issue.10 Law schools can also engage in outreach activities to educate community
members about their legal rights. Students can be involved in the delivery of such
programs, thus supporting their practical skill development and fostering their
commitment to pro bono contributions.
This article discusses the use of experiential learning in law schools to build students’
knowledge and skills so that they are better equipped to meet their professional responsibilities when providing assistance to older clients and people with conditions that
may impair their capacity. We adopt the following definition of experi­ential learning:
learning in which the learner is directly in touch with the realities being studied.
It is contrasted with learning in which the learner only reads about, hears about,
and talks or writes about these realities; experiential learning typically involves
not merely observing the phenomenon being studied, but also doing something
with it: testing the dynamics of that reality to learn more about it, or applying the
thing learned to achieve some desired result.11
8
9
10
11
Edwards and Fontana, above n 4, 11.
Susannah Sage-Jacobson, ‘Access to Justice for Older People in Australia’ (2015)
33(2) Law in Context 142, 159.
Nina A Kohn and Edward D Spurgeon, ‘A Call to Action on Elder Law Education:
An Assessment and Recommendations Based on a National Survey’ (2013) 21 Elder
Law Journal 345.
‘A Boom in Experiential Learning’ in Morris T Keeton and Pamela J Tate (eds),
Learning by Experience — What, Why, How (Jossey-Bass, San Francisco, 1978)
1, 2, quoted in Barbara Anderson, Dave Boud and Gail Macleod, ‘Experience-Based
Learning: How? Why?’ (Paper presented at Australian Consortium on Experiential
Education, Sydney, May 1980) preface. Best practice guidelines for clinical legal
education in Australia identify the terminological issues with descriptors such as
‘clinical legal education’, ‘experiential education’, ‘service learning’ and so on. The
guidelines use ‘experiential learning’ as an umbrella term that encompasses: clinical
programs where students interview and advise real clients; simulations where students
498
RIES, JOHNSTON AND McCARTHY —
LEGAL EDUCATION AND THE AGEING POPULATION
This article presents a pilot project with two components undertaken in 2015 at the
University of Newcastle Law School (NLS) in New South Wales, Australia. The first
component was a legal education initiative that involved law students in the delivery
of legal information in community settings to older adults and persons with chronic
medical conditions, as well as some family members and carers. The second component
was a client capacity training module for law students that included practical skill
development and an interactive workshop with persons living with dementia and
their carers. The article also describes the process of embedding research into this
pilot project to inform the development of methods: first, to understand the impacts
of experiential learning for law students; and second, to investigate the impact of
community legal education on attendees’ knowledge and behaviour. In particular,
we sought to trial a research method to determine whether or not attending a legal
information seminar enhanced attendees’ readiness to plan ahead for the possibility
of future periods of incapacity.
NLS conducts a Practice Program that integrates clinical training and practical
experience with the academic study of law. Students complete intensive placements
at the University of Newcastle Legal Centre (UNLC) as well as with external firms
and agencies. NLS places a strong emphasis on clinical legal education, consistent
with the following description:
Clinical Legal Education may be defined as the teaching of law and legal practice,
procedures and skills through experiential learning. Experiential learning
involves the interaction between law faculty staff, students and actual clients in
real legal matters. A live client clinic is generally operated by a law faculty, and
is effectively the undertaking of a legal practice by law faculty staff with the
assistance of law students who are involved in the conduct of the legal practice.
This teaching method relies significantly on a clinical model, and in particular,
the supervised involvement of students in the conduct of a legal practice.12
Experiential learning is a vital component in developing the core competencies
needed in the practice of law.13 For law students who intend to become practising
lawyers, the benefits of experiential learning and the live client experience are
12
13
deal with hypothetical clients; external clinical placements; and other lawyerly
activities, such as researching and writing law reform submissions and preparing
clinical legal education materials. See Adrian Evans et al, ‘Best Practices: Australian
Clinical Legal Education’ (Report, Australian Government Office for Learning and
Teaching, September 2012) 4 <http://www.cald.asn.au/assets/lists/Resources/Best_
Practices_Australian_Clinical_Legal_Education_Sept_2012.pdf>. Throughout this
article, we use the broad term ‘experiential learning’. As our Law School operates an
in-house clinic, we typically reserve the term ‘clinical learning/education’ for experiences where students interact one-to-one with a real client.
John Boersig, James Marshall and Georgia Seaton, ‘Teaching Law and Legal Practice
in a Live Client Clinic’ (2002) 6(2) Newcastle Law Review 51, 52.
Allan Chay and Frances Gibson, ‘Clinical Legal Education and Practical Legal
Training’ in Sally Kift et al (eds), Excellence and Innovation in Legal Education
(LexisNexis Butterworths, 2011) 497, 502.
(2016) 37 Adelaide Law Review499
manifold. Our pilot project exposed students to client groups with whom they would
not normally interact, including people living with diagnoses of degenerative and
terminal illnesses. According to the current literature, ‘[i]t is increasingly understood
that law schools do have an important role in ensuring that law graduates are equipped
with a broader range of attributes than pure legal knowledge.’14
Aware that community members have unmet legal needs and may face barriers in
accessing traditional legal assistance offices, the UNLC operates ‘pop-up’ clinics
and community legal information sessions. For example, the Law on the Beach
legal advice clinics operate during summer at a local surf lifesaving club and aim to
provide legal outreach and advice to young people in the community. Law students
are also involved in delivering legal information sessions to international students
who have newly arrived in Australia. In 2015, expanding on NLS’s dual commitments
to experi­ential learning and community outreach, we designed, implemented and
evaluated the pilot initiative with its two components of community legal education
and client capacity training.
This project was developed as a pilot study with the aim of gaining experience and
collecting data to inform future course development and community engagement,
especially in relation to the legal needs of older adults. This may include the potential
introduction of a clinical course that would integrate the experiences trialled in the
pilot. Consistent with the purposes of pilot studies,15 we wanted to assess the feasibility and resource implications of these new experiential learning initiatives, as well
as test a survey-based research method. We sought to gauge both the level of student
engagement and the interest of community organisations in collaborating with NLS.
The surveys were piloted with a smaller number of participants to obtain information about the acceptability of the surveys, their ease of completion and response
rate. We also sought to collect preliminary data about the impacts of participation
in these initiatives for law students and community members and to gain feedback
from attendees on the content of the seminars. Further, we had to consider resource
implications (eg, to liaise with community organisations and coordinate seminars;
supervision of students) and potential logistical issues (eg, availability of audio-­
visual equipment in community settings) that could arise. This information and our
14
15
Margaret Castles and Anne Hewitt, ‘Can a Law School Help Develop Skilled Legal
Professionals? Situational Learning to the Rescue!’ (2011) 36 Alternative Law Journal
90, 90.
Edwin R van Teijlingen and Vanora Hundley, ‘Pilot Study’ in Michael S LewisBeck, Alan E Bryman and Tim Futing Liao (eds), The SAGE Encyclopaedia of Social
Science Research Methods (SAGE Publications, 2004) vol 1, 781, 824–5:
Pilot study refers to
1. feasibility or small-scale versions of studies conducted in preparation for the
main study and 2. the pretesting of a particular research instrument.
Good pilot studies increase the likelihood of success in the main study. Pilot studies
should warn of possible project failures, deviations from protocols, or problems with
proposed methods or instruments and, it is hoped, uncover local politics or problems
that may affect the research …
500
RIES, JOHNSTON AND McCARTHY —
LEGAL EDUCATION AND THE AGEING POPULATION
experiences of the pilot delivery are also relevant in seeking external financial support
for larger scale programs, as it demonstrates the feasibility to potential funders.
Part II of the article discusses the development of the ‘Planning Ahead’ community
legal education initiative, its evaluation model and practical considerations in
providing both effective legal training for students and beneficial community legal
outreach for older adults. Part III discusses the Client Capacity Training Module.
Part IV summarises lessons learned and makes recommendations to inform experiential learning initiatives at other law schools.
II ‘P lanning A head ’ C ommunity L egal E ducation
A Context and Rationale
Many people, especially older adults, express an interest in planning ahead for
their healthcare and other life choices. However, only a minority actually do so.
In Australia, a mere 14% of the population have an advance healthcare directive, 30%
have appointed someone to manage their finances and 59% have created a will.16
In a report on the legal needs of older adults, the New South Wales Law and Justice
Foundation identified that many older people lack knowledge of the legal aspects of
advance planning.17 Indeed, there are various barriers to advance planning, including
little awareness of or confusion about the legal instruments available to plan ahead,
uncertainty about where to get help and the costs involved (eg, ‘do I have to go and pay
a solicitor to do all this with me or can I just see my GP?’)18 and reluctance to think
about future illness and dying.19 Many individuals, including those with diagnoses
that involve cognitive decline, either do not realise the importance of planning ahead
or they avoid the process until it is too late and they have lost capacity to express their
wishes in an informed manner.
16
17
18
19
Ben White et al, ‘Prevalence and Predictors of Advance Directives in Australia’ (2014)
44(10) Internal Medicine Journal 975. See also Cheryl Tilse et al, ‘Will-Making
Prevalence and Patterns in Australia: Keeping it in the Family’ (2015) 50 Australian
Journal of Social Issues 319.
Sarah Ellison et al, ‘The Legal Needs of Older People in NSW’ (Report, Law and
Justice Foundation of New South Wales, 2004) 309.
Jennifer Boddy et al, ‘It’s Just Too Hard! Australian Health Care Practitioner Perspectives on Barriers to Advance Care Planning’ (2012) 19 Australian Journal of Primary
Health 38, 40. A participant in a health practitioner focus group reported that a patient
asked her this question.
Ibid 42, 44. See also Allison Lovell and Patsy Yates, ‘Advance Care Planning in
Palliative Care: A Systematic Literature Review of the Contextual Factors Influencing
its Uptake 2008–2012’ (2014) 28 Palliative Medicine 1026, 1030; Sara M Moorman
and Megumi Inoue, ‘Predicting a Partner’s End-of-Life Preferences, or Substituting
One’s Own?’ (2013) 75 Journal of Marriage and Family 734.
(2016) 37 Adelaide Law Review501
Planning ahead — and exercising the legal rights and executing the legal instruments available to do so — has important benefits. People who say they have their
affairs in order report less anxiety about facing the end of life, and planning ahead
is cited as a factor in experiencing a ‘good death’.20 Having a written healthcare
directive ‘positively impacts the quality of end-of-life care’21 and enables substitute
decision-makers and healthcare providers to comply with the person’s values, wishes
and preferences when they no longer have the capacity to express their own choices.
In turn, this reduces family stress and conflicts.22
In a recent Australia-wide survey, White et al found that people who had a written
healthcare directive were also likely to have a will and a financial power of attorney.23
The challenge is to promote more people to become ‘planners’ in this regard.
Behaviour change theory shows that people transition through stages of knowledge
acquisition, contemplation, the development of a sense of self-efficacy and, finally,
readiness to act.24
We posit that the provision of legal information in community settings can play an
important role in facilitating behaviour change by raising awareness of the legal
tools available to plan ahead. Participants in our community legal education (CLE)
seminar were provided with legally accurate resources and encouraged to make and
update advance planning documents with professional legal help and in consultation
with significant others, such as family members and healthcare providers. This can
help normalise advance preparation and reduce the barriers associated with a lack of
knowledge about planning for one’s future. In this pilot project, we sought to trial a
research strategy to test this hypothesis.
There is nascent literature on the impacts of providing CLE. CLE is defined as ‘the
provision of information and education to members of the community on an individual
or group basis, concerning the law and legal processes and the place of these in the
structure of society.’25 CLE aims to bring about ‘changes in p­ articipants’ awareness,
20
21
22
23
24
25
Katharine Abba et al, ‘Interventions to Encourage Discussion of End-of-Life Preferences between Members of the General Population and the People Closest to
Them — A Systematic Literature Review’ (2013) 12(40) BMC Palliative Care 1.
Arianne Brinkman-Stoppelenburg, Judith A C Rietjens and Agnes van der Heide,
‘The Effects of Advance Care Planning on End-of-Life Care: A Systematic Review’
(2014) 28 Palliative Medicine 1000, 1021.
Carmen H M Houben et al, ‘Efficacy of Advance Care Planning: A Systematic Review
and Meta-Analysis’ (2014) 15 Journal of the American Medical Directors Association
477.
White et al, above n 16, 978.
Rebecca L Sudore et al, ‘Development and Validation of a Questionnaire to Detect
Behavior Change in Multiple Advance Care Planning Behaviors’ (2013) 8(9) PLoS
One <http://journals.plos.org/plosone/article?id=10.1371/journal.pone.0072465>.
Ania Wilczynski, Maria Karras and Suzie Forell, ‘The Outcomes of Community
Legal Education: A Systematic Review’ (Justice Issues Paper No 18, Law and Justice
Foundation of New South Wales, December 2014) 2 <http://www.lawfoundation.
502
RIES, JOHNSTON AND McCARTHY —
LEGAL EDUCATION AND THE AGEING POPULATION
knowledge, understanding of legal rights and legal issues, skills and confidence, and
to increase their understanding of how and when they need legal support.’26 CLE
is said to be effective if it ‘causes a change in participants’ knowledge, skills and
motivation to act, and/or ideally, it causes a change in their actual behaviour.’27
The Law and Justice Foundation of New South Wales recently conducted a systematic
review on studies investigating the effectiveness of face-to-face CLE. Only two North
American studies satisfied the review’s inclusion criteria, and the Foundation underscored the need for more research to evaluate the impacts of CLE: ‘it is important
to note that a lack of definitive evidence demonstrating that CLE is effective does
not necessarily mean that CLE is not effective, but rather that the quality of research
studies have not allowed for a conclusion at this time.’28 The Foundation noted the
need to develop appropriate outcome measures in evaluating the impacts of CLE, and
the importance of publishing results that include a clear description of the educational
intervention, the research methods and results.29 To ensure that our pilot project can
contribute to the advancement of such research, we have included relevant details in
this article.
B Design and Delivery
The Planning Ahead project involves the delivery of face-to-face CLE seminars
targeted at older adults and persons living with chronic illnesses. The seminars
are delivered in settings that are familiar to and easily accessible for community
members, including places where people regularly go to access health services and
supports. Law students participate in the presentation of the seminar, with supervision and assistance by NLS clinical and academic staff members. While we had
some minor trepidation about how older seminar participants would receive young
law students, we believed the value of the interaction for both students and attendees
would overcome any perceived lack of credibility associated with youth. In particular,
we thought the participation of young law students would help dispel perceptions
that lawyers are uninterested in older adult clients, and the students would gain
beneficial insights into the needs of older adults and people living with chronic
health conditions. As Berenson argues, ‘elder law’ clinics and related experiential
opportunities can be an important site for dialogic encounters between younger and
older members of a community.30
26
27
28
29
30
net.au/ljf/site/articleIDs/18C587ECBD959D50CA257A91001F76F0/$file/JI18_
Outcomes_of_CLE_FINAL_web.pdf>, quoting Combined Community Legal
Centres Group, Your Guide to Community Legal Education (CCLGG NSW, 2nd ed,
2004) 9.
Wilczynski, Karras and Forell, above n 25.
Ibid 3.
Ibid.
Ibid.
Steven Keith Berenson, ‘Can We Talk? Impediments to Intergenerational Communication and Practice in Law School Elder Law Clinics’ (1998) 6 Elder Law Journal
185.
(2016) 37 Adelaide Law Review503
The CLE seminar is designed for delivery in a one-hour session, consisting of a
45-minute lecture-style presentation followed by 15 minutes for question and
answers and informal discussion. The lecture was designed with a clearly structured
format,31 covering three main legal topics: making a will; appointing a financial
decision-maker; and health care decision-making, including the appointment of a
decision-maker for health and lifestyle matters and writing an advance care directive.
The presentation also emphasised the importance of periodically reviewing and
updating legal instruments to reflect any changes in personal circumstances, communicating one’s wishes with key people (eg, appointed decision-makers and healthcare
providers) and storing documents in a place where they can be easily retrieved when
needed. Participants were also informed of e-health records and the option to register
for a personally controlled e-health record. Such records ensure key medical details,
including information about a care directive, are available in a central repository.32
Attendees interested in personalised assistance following the seminar were advised
of a free drop-in advice clinic at the UNLC, particularly if they wanted to discuss
personal matters regarding a legal document and its ramifications, or if they sought a
referral to a local solicitor if they had the ability to pay for legal assistance. Participants also received an information package to take home. The pack contained a copy
of the presentation slides with links to relevant websites, brochures on appointing a
power of attorney or enduring guardian, and sample forms for such appointments
and advance care directives.
The Planning Ahead seminars were promoted through electronic and hard copy
mail outs to health organisations, including local branches and support groups for
organisations such as Alzheimer’s Australia, the Motor Neurone Disease Association of NSW, the Cancer Council and the Stroke Recovery Association NSW.
Fortuitously, when we started promoting the Planning Ahead seminars, an alliance
of the major health service providers in the region33 was set to launch a campaign to
encourage advance healthcare planning. This alliance distributed information about
our seminars to over 40 local health organisations. Staff members of these organisations then decided if they wanted to host a Planning Ahead seminar and promoted it
to their clients.
In promoting new CLE seminars in the community, we were aware of the need to
maintain NLS’s relationships with the local legal community who provide professional placements for our law students. We wanted to avoid a misperception that we
were taking work away from local lawyers. In fact, raising community awareness
31
32
33
Structured teaching is much more effective than unstructured, ad hoc teaching. See,
eg, Audrey Jusko Friedman et al, ‘Effective Teaching Strategies and Methods of
Delivery for Patient Education: A Systematic Review and Practice Guideline Recommendations’ (2011) 26 Journal of Cancer Education 12, 17.
See, eg, Australian Digital Health Agency, Managing your My Health Record
(27 May 2016) <https://myhealthrecord.gov.au/internet/mhr/publishing.nsf/Content/­
managing-your-my-health-record>.
Our Alliance — Hunter New England, Home (2016) <http://ouralliance.­
healthpathways.org.au/Home.aspx>.
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LEGAL EDUCATION AND THE AGEING POPULATION
about the important role legal advice plays in making or updating advance planning
documents could increase referrals to local practitioners.34 Moreover, the UNLC is
only able to provide legal services to people with limited financial means.35
Participation in the Planning Ahead seminars was open to senior law students
completing their professional placement hours at the UNLC. We delivered five
seminars in various settings to reach different client groups, including a community
health clinic, a residential aged care facility, support groups for persons with progressive illnesses and a community centre. With the exception of one seminar scheduled
for 6 pm, all seminars were run during business hours.
Students who volunteered to participate in the seminars reviewed resources and
helped prepare the presentation materials. This ensured they had a strong understanding of the legal rules and statutory requirements relevant to the topics covered.
They also practised delivering the seminar to a group of peers. Unexpectedly, the first
group of presenting students had the opportunity to do a practice run for two staff
members at a community health clinic as the 12 clinic patients who had registered
to attend the seminar failed to show up.36 However, this provided a useful learning
opportunity as two clinic staff members, including a nurse practitioner with a special
interest in advance care planning, were interested to hear the presentation. After
the seminar they gave valuable feedback regarding the content and organisation
of information and we adjusted the presentation in response to their suggestions.
We recommend doing a practice run of a new CLE seminar for a small community
audience to obtain this type of frank feedback.
It is reported that older adults are more comfortable interacting with ‘lawyers
who demonstrate friendliness, warmth, ability to communicate and a respectful
attitude.’37 Students were encouraged to be respectful but not overly formal or rigid.
The question and answer session after the presentation provided a rich opportunity
for discussion among the attendees, the presenting students and supervising staff
members. This question and answer period gave students valuable experience in
34
35
36
37
Interestingly, one participating organisation said they preferred having a CLE seminar
from a ‘neutral’ entity like a law school, rather than a lawyer from a firm who may be
perceived as trying to drum up work.
Eligibility is based on the person having a current Health Care Card issued by the
Commonwealth Department of Human Services: Department of Human Services,
Eligibility for a Health Care Card (27 June 2016) <https://www.humanservices.gov.
au/customer/enablers/eligibility-health-care-card>.
Based on this experience, we recommend offering the CLE seminar at a session people
already attend, such as a support group meeting for people with health conditions.
This ensures a good turnout and is likely to already be held at a time that best fits
client schedules. If the seminar is scheduled at another time, we recommend asking
the organisation to register participants and give a reminder by email or phone a day
in advance. This ensures the best use of resources and will help avoid the disappointment of travelling to a community organisation only to have no or few attendees.
Edwards and Fontana, above n 4, 14.
(2016) 37 Adelaide Law Review505
thinking on their feet and helped them gain insights into the types of practical issues
faced by clients (eg, ‘I made Power of Attorney documents when I lived interstate
and I’ve now moved to New South Wales. Do I have to do them again?’).
C Evaluation
To minimise the burden on participants, we developed short surveys that were
designed to collect the most pertinent information. We obtained ethics approval to
survey both law students and seminar attendees.38 When surveying students, we
wanted to find out what they gained from this experiential learning opportunity.
Surveys for attendees focused on their legal needs and the impact of attending a CLE
seminar. We informed the community organisations of the research component of the
seminar in advance to elicit whether they had any concerns about the distribution of
surveys. All were agreeable and one organisation, which typically deals with survey
requests from health researchers, commented that participating in a study on legal
issues was novel and they wanted to support it.
1 Feedback from Students
Seven of the 12 students involved in delivering the Planning Ahead seminars
responded to the voluntary, anonymous online survey (58% response rate). The
results are summarised in Table 1.
Table 1: What did law students gain through participation in an experiential
learning initiative?39
Question
Responses
Very much
Somewhat
Has this experience increased your knowledge of the law
relevant to planning ahead for one’s future?
71.4%
28.6%
Did you gain experience explaining legal information to
a new type of client group?
83.3%
16.7%
Did you value the opportunity to provide legal education
in a community setting?
100%
–
Would you recommend this experience to another
student?
100%
–
Students were also invited to provide additional feedback. While all survey respondents stated that their legal knowledge increased, they also commented on how the
experience enhanced their practical communication and problem-solving skills:
38
39
University of Newcastle Human Research Ethics Committee Approval H-2015-0085.
Only two out of the four options have been included because no students selected the
other options.
506
RIES, JOHNSTON AND McCARTHY —
LEGAL EDUCATION AND THE AGEING POPULATION
The entire process of the presentation, from preparation to delivery, feedback and
reflection, helped to reinforce my legal knowledge and assisted me in developing
skills to communicate that knowledge to various groups. The fact that the
audience may have been unfamiliar or only slightly aware of the content being
discussed helped me to consider different communication techniques in order to
convey the information in a clear and straightforward manner.
Very informative, and excellent experience in communication with the community
on their legal issues.
The students also valued the opportunity to go into their local community to provide
legal education:
This is something I would jump on again if given the opportunity. I would like to
talk on many more legal areas that would practically benefit the community, but
are often overlooked.
By going out into the community, we are able to interact with clients with whom
we would not ordinarily be able to interact and connect with the community on
a deeper level. I think this kind of community outreach is incredibly valuable!
The exposure to ‘real life’ settings and issues also enhanced the students’ learning:
It helps to ground your studies with reality.
It was good to see, and converse with real people who are affected by the law.
Sometimes it’s easier to look at legal problems like just another problem question
and it is easy to forget that there are actually people who are affected by what
we do. I really enjoyed the face-to-face contact with people from the community,
getting to hear their stories and knowing the legal advice being given was going
to an actual person and it was not another assessment item.
2 Feedback from Seminar Attendees
Seminar attendees were invited to complete three short surveys: one at the start of
the seminar recording basic demographic information and their current knowledge
of advance planning instruments, one at the end of the seminar ascertaining their
reactions to the information presented, and a follow-up survey approximately one
month after the seminar to ask if they had taken steps to engage in advance personal
planning. Both surveys distributed at the seminar were completed in hard copy.
Attendees provided written consent if they were willing to complete the follow-up
survey, which was distributed in accordance with their preferred means of communication: email, regular mail or telephone. Participants who chose the telephone
option were contacted by a research assistant who read the survey questions and
recorded participants’ answers in writing on a paper copy of the survey. This method
of communication yielded the most responses, followed by email contact. We chose
to distribute the final survey within four to five weeks of the seminar due to research
showing that the motivation to act on information learned in community education
(2016) 37 Adelaide Law Review507
programs tends to diminish relatively quickly.40 Thus if the Planning Ahead seminar
were to have any influence on behaviour, it would likely do so within a short time
following the event.
3 Demographic Details
The age of attendees ranged from 20 to 88, with the average age calculated as
60 years. While the seminars were targeted at older adults and persons with chronic
illnesses, family members, carers and community organisation staff members also
attended and completed the surveys, accounting for the younger ages listed on some
responses. The majority of respondents (70%) were female. Most of the participants
(81%) stated that their highest level of education was tertiary (apprenticeship/TAFE/
university), while 19% indicated high school for the same question. A majority of
participants (65%) cited their relationship status as married or living as married, 12%
stated they were widowed, 9% were single, 9% were divorced and 5% reported they
were separated. A majority of participants (70%) described their current health as
good or very good, 11% reported it as poor or very poor with the remainder (19%)
stating their health was neither good nor poor. As the surveys were anonymous, we
were unable to determine if self-perceived health status was associated with a greater
propensity to engage in advance planning behaviours following the CLE attendance.
However, previous studies suggest that people living with a serious illness are more
likely to engage in advance planning and be interested in doing so.41
4 Pre-Seminar Survey
The survey distributed at the start of the CLE event asked participants about their
current level of legal knowledge. We considered asking if the attendees had already
prepared advance planning documents but to respect participants’ privacy, we
ultimately decided to ask questions only about knowledge. We were concerned that
some people might be reluctant to disclose if they have completed specific legal
documents, particularly if they attended the seminar with a family member or carer
who might then question them about their legal affairs. For example, they may be
asked who the beneficiaries are in their will.
The results of the pre-seminar survey, which was completed by almost 70% of partici­
pants, are summarised in Table 2. All respondents said they knew what a will is.
Knowledge of the Enduring Guardian and Advance Care Directive was lower, which
is consistent with a 2004 report on the legal information needs of older adults.42
The persistent lack of knowledge surrounding these important healthcare planning
tools suggests a need for further community outreach and education.
40
41
42
Wilczynski, Karras and Forell, above n 25, 8–9, citing Denise Kendrick et al, ‘Home
Safety Education and Provision of Safety Equipment for Injury Prevention’ (2012) 9
Cochrane Database of Systematic Reviews 1, 17.
Lovell and Yates, above n 19.
Edwards and Fontana, above n 4.
RIES, JOHNSTON AND McCARTHY —
LEGAL EDUCATION AND THE AGEING POPULATION
508
Table 2: Attendees’ legal knowledge before the CLE seminar
QUESTION
Yes
No
Not sure
I know what a Will is.
43/43 = 100%
I know what an Advance Healthcare
Directive is.
22/42 = 52%
12/42 = 29%
8/42 = 19%
I know what an Enduring Guardian is.
28/43 = 65%
4/43 = 9%
11/43 = 26%
I know what a Power of Attorney is.
36/43 = 84%
1/43 = 2%
6/43 = 14%
To plan for my future, I would like to
make or update one or more of these
types of documents.
30/43 = 70%
9/43 = 21%
4/43 = 9%
N = 43 (69% response rate) (note one person did not complete Q2, so N = 42)
5 Post-Seminar Survey
This survey was distributed to attendees at the conclusion of the CLE seminar and
focused on two key areas: attendees’ reactions to the information presented and their
ability to access legal services. The results are summarised in Table 3. Slightly fewer
attendees completed this survey (approximately 60%) and not all questions were
answered. Of those who completed the survey, 90% said their knowledge of the law
increased. A majority of participants indicated an interest in making or updating
the types of legal documents discussed in the seminar, with many also stating they
would like help from a lawyer to do so. Just over half of those who identified barriers
to accessing legal help cited cost as an obstacle. In regard to other barriers, one
respondent noted their own indecisiveness as a barrier (ie, not yet ready to make
these decisions) and another cited difficulty in getting appropriate family members
together with their solicitor to discuss matters. Some respondents noted that they
already had a solicitor from whom they could seek assistance and only 10% cited
lack of access to a lawyer as an impediment to seeking assistance.
In their written comments, some respondents noted they had not been aware
of e-health records — indeed, public awareness of e-health records is very low
across Australia43 — and some stated they intended to look up more information
about having an e-health record. The comments also revealed that participants
did not react negatively to the involvement of young law students in the presentation of seminars. Several attendees recommended that students be reminded of
the importance of speaking slowly and clearly, being mindful that some participants
may have hearing impairments. As one person wrote: ‘Young people speak a bit too
43
E C Lehnbom, J E Brien and A J McLachlan, ‘Knowledge and Attitudes Regarding
the Personally Controlled Electronic Health Record: An Australian National Survey’
(2014) 44 Internal Medicine Journal 406, 407. Only 5% of members of the public
who responded to this survey were aware they could have a personally controlled
electronic health record.
(2016) 37 Adelaide Law Review509
fast for old ears but generally very well done and well prepared.’ Another wrote:
‘Very well-­organised — very pleasant speakers — made to feel welcome — don’t
feel stupid or needy.’ Respondents noted that they valued the time for discussion
and a question and answer session. They also suggested the inclusion of additional
handouts summarising important information and a glossary of key words and terms
used in the ­presentation.
Table 3: Attendees’ feedback on the CLE seminar and access to justice issues
I think the content of the seminar was …
Very useful
Somewhat useful
Not useful
No opinion
34/39 = 87%
5/39 = 13%
–
–
I think the presentation of the seminar was …
Very good
Good
Not good
No opinion
29/37 = 78%
8/37 = 22%
–
–
My knowledge about the law has…
Increased
Stayed the same
Decreased
No opinion
35/39 = 90%
4/39 = 10%
–
–
I would like to make or update one or more of the types of documents discussed in
the seminar?
Yes
Maybe
No
No opinion
22/36 = 61%
7/36 = 19.5%
7/36 = 19.5%
–
I would like a lawyer to help me write documents to plan for my future?
Yes
Maybe
No
No opinion
16/36 = 44%
8/36 = 22%
11/36 = 31%
1/36 = 3%
What might stop me from getting help from a lawyer?
Cost of lawyer
Lack of access to
lawyer
I don’t think I need a Other (please
lawyer
explain in the
comment box):
11/20 = 55%
2/20 = 10%
4/20 = 20%
3/20 = 15%
6 Follow-Up Survey
While the CLE seminars were clearly effective in increasing attendees’ legal
knowledge, a change in knowledge does not necessarily result in changed
behaviour. Thus the follow-up survey was designed to find out what steps, if any,
people had taken to act on the information they had learned. Approximately 37%
of the seminar attendees consented to be contacted to do the follow-up survey
and, consistent with our expectation that some people would drop out of participating, just over a third of those who were then contacted completed the survey.
510
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LEGAL EDUCATION AND THE AGEING POPULATION
As a result, we caution that our results provide preliminary data on the impact of
the CLE seminar and, as urged by the Law and Justice Foundation, more research
is needed to assess the effectiveness of legal education in promoting behaviour
change in target populations. However, running the pilot enabled us to find out
useful information about administering the surveys and the response rates that
might be expected in implementing and evaluating the CLE initiative on a wider
scale. To preserve respondents’ anonymity, we did not link the follow-up responses
with demographic data and we are unable to indicate personal characteristics that
may influence completion of a follow-up survey. This would be useful information
to collect, especially in considering different options for administering the survey
to boost the response rate.
In regard to our findings, it is reasonable to believe that people who attend a
CLE seminar on planning ahead are likely already to be thinking about their legal
needs and are primed to take some action. Our results support this view, as one
quarter of respondents reported they made or updated legal documents in the
month following the seminar and others had met with or made an appointment to
see a solicitor.
Making a legal document or seeing a lawyer were not the only outcomes of interest.
In accordance with the behaviour change theory discussed earlier, the follow-up
survey asked about a range of actions, including looking up resources mentioned
in the seminar and talking about values and wishes with family, friends and carers.
These can all be positive steps that can help a person feel ready to seek legal
assistance and instruct a lawyer. Just over 60% of the follow-up survey respondents said that they had talked to their family or friends about their wishes for
the future. Gaining the confidence to initiate such conversations can be a crucial
first step for older adults and persons with chronic conditions in articulating their
values, wishes and preferences to key people in their lives. Interestingly, none
of the survey respondents said they had discussed their wishes with their doctor.
It may be that people did not have a medical appointment in the period between
the seminar and the follow-up survey. However, other research underscores the
need for better communication with healthcare providers to ensure they know of
enduring guardian appointments and the patient’s wishes for future care, especially
if an advance directive has been written.44
44
See, eg, Daren K Heyland et al, ‘Failure to Engage Hospitalized Elderly Patients
and Their Families in Advance Care Planning’ (2013) 173 JAMA Internal Medicine
778; Theresa A Allison and Rebecca L Sudore, ‘Disregard of Patients’ Preferences
is a Medical Error: Comment on “Failure to Engage Hospitalized Elderly Patients
and Their Families in Advance Care Planning”’ (2013) 173 JAMA Internal Medicine
787.
(2016) 37 Adelaide Law Review511
Table 4: What did attendees do after the CLE seminar?
Since the seminar, have you:
Yes
No
Made or updated the legal documents discussed at the seminar?
25%
75%
Met with a lawyer to help you make or update legal documents to
plan for your future?
37%
63%
Made an appointment to see a lawyer to get this help?
29%
71%
Looked up other resources that can help you plan for the future
(such as websites mentioned at the seminar or brochures you got at
the seminar)?
25%
75%
Talked to your family or friends about your wishes for your future?
63%
37%
–
100%
Talked to your doctor or other healthcare provider about your
wishes for your future?
III T he C lient C apacity T raining M odule
A Context and Rationale
The law assumes an adult has decision-making capacity, including the capacity to
enter into a contract — such as a retainer for legal services — and to instruct a
lawyer.45 This presumption of legal capacity or competency is the foundation of the
solicitor-client relationship.46 Thus it is essential to the ethical practice of law that
lawyers are able to identify and properly deal with issues of client capacity. Statistics
on the prevalence of health conditions of persons living in the community involving
cognitive impairment suggest many lawyers will encounter clients whose capacity
may be in doubt. These conditions include dementia, intellectual disability, acquired
brain injury (ABI) and mental illness. An ageing population drives an increase in
dementia related conditions — over 240 000 Australians are currently living with
dementia. Younger onset dementia also occurs, with nearly 25 000 Australians
receiving a diagnosis before the age of 65.47 More than half a million Australians have
an intellectual disability48 and nearly 440 000 Australians have an ABI, caused by
45
46
47
48
See Re MB (An Adult: Medical Treatment) [1997] 2 FCR 541, 553 (Dame ButlerSloss LJ).
Law Society of New South Wales, ‘When a Client’s Mental Capacity is in Doubt:
A Practical Guide for Solicitors’ (Guidelines, Law Society of New South Wales, 2016).
Alzheimer’s Australia, What is Younger Onset Dementia? <https://www.fight
dementia.­org.au/national/about-dementia/what-is-younger-onset-dementia>.
Intellectual disabilities are usually present from birth, or develop during childhood.
They may be caused by factors such as in utero exposure to alcohol or drugs, genetic
conditions like Down syndrome, or infections that affect the brain, such as meningitis
or measles: Australian Institute of Health and Welfare, ‘Disability in Australia:
Intellectual Disability’ (2008) 67 Bulletin <http://www.aihw.gov.au/WorkArea/
DownloadAsset.aspx?id=6442452891>.
512
RIES, JOHNSTON AND McCARTHY —
LEGAL EDUCATION AND THE AGEING POPULATION
events such as strokes or head trauma, and over 30% of people with ABI experience
impaired cognition.49
The ability to identify and deal with capacity issues is part of the responsible practice
of law; yet legal regulatory authorities are reporting an increase in complaints
against lawyers in this area.50 The 2014–15 Annual Report of the Office of the Legal
Services Commissioner in New South Wales drew particular attention to the issue of
lawyers’ responsibilities in regard to client capacity, especially when working with
older clients:
No one can doubt the sometimes profound impact that disputes can have on the
elderly, in terms of their personal circumstances, housing, medical treatment and
estates. With our aging population, we have seen a gradual increase in complaints
about lawyers taking instructions from clients who lack the capacity to give them.
Those complaints often include allegations that lawyers have ignored many of
the ‘red flags’ identified in the Law Society’s comprehensive Client Capacity
Guidelines: Civil and Family Law, including ignoring existing medical evidence
of incapacity, not taking instructions in private, not testing the client for comprehension of proposed instructions, and acting on unsupported assertions about
mismanagement of money and property, amongst other things.
While few of these complaints have risen to the level required to discipline a
legal practitioner, we have written to an increasing number of (sometimes very
junior) lawyers reminding them of the need for great care and consideration in
dealing with older clients. Our position is supported by the accumulation of cases
in other jurisdictions (especially Queensland) in which lawyers have been disciplined for acting recklessly in such situations. This is a vital and difficult area of
law that we will continue to examine very closely in coming years.51
49
50
51
Australian Institute of Health and Welfare, ‘Disability in Australia: Acquired Brain
Injury’ (2007) 55 Bulletin <http://www.aihw.gov.au/WorkArea/DownloadAsset.
aspx?id=6442453666>. See also Australian Institute of Health and Welfare, ‘Stroke
and its Management in Australia: An Update’ (Cardiovascular Disease Series No 37,
Australian Institute of Health and Welfare, 2013) 10–11 <http://www.aihw.gov.au/
WorkArea/DownloadAsset.aspx?id=60129543611>.
The Office of the Legal Services Commissioner, Annual Report 2012–13, 30 <http://
www.olsc.nsw.gov.au/Documents/annual%20report%202012_2013%20accessible.
pdf>; The Office of the Legal Services Commissioner, Annual Report 2013–14, 18
<http://www.olsc.nsw.gov.au/Documents/2013_2014%20annual%20report%20
accessible.pdf>. The Commissioner is currently undertaking work to determine if
professional standards need to be strengthened in this area.
The Office of the Legal Services Commissioner, Annual Report 2014–15, 10 <http://
www.olsc.nsw.gov.au/Documents/Annual%20Report%202014%202015.pdf>.
(2016) 37 Adelaide Law Review513
Some complaints against lawyers have resulted in disciplinary action for failures
to properly assess a client’s mental capacity prior to executing a legal document52
and, in some cases, courts have found those documents to be invalid on the basis of
the client’s incapacity.53 For example, in Legal Profession Complaints Committee v
Wells,54 the practitioner was found guilty of unprofessional conduct where he had
taken instructions and executed documents for a client whose lack of capacity was
deemed ‘obvious’ on the evidence presented. In their reasoning, the Committee stated
‘[m]aking suitable inquiries that a person has the capacity to execute a valid will or
EPA [enduring power of attorney] is an essential part of a lawyer’s duty once there
is a question as to that person’s capacity.’55 Further, the Committee outlined a list of
five obligations a solicitor must discharge when taking instructions and executing
a valid will: determine whether the testator has capacity; if capacity is in doubt,
ask non-leading questions designed to probe that capacity properly; if capacity is
in doubt, seek medical advice; be alert to possible conflicts of interest where the
person instigating the will is a beneficiary, or associated with a beneficiary; and take
proper notes.56 Such criteria were clearly not complied with in Dellios v Dellios57
and Fradgley v Pocklington,58 where contested wills were held invalid as they were
prepared when clients lacked capacity. The judgments criticised solicitors for not
adequately probing client capacity, failing to be alert for signs of fluctuating capacity,
and meeting with a client in the presence of family members. Lawyers must do their
best ‘to distinguish mere platitudes from responses based on [clients’] true understanding.’59
Despite the importance of capacity in the solicitor-client relationship, there is little
empirical data on lawyers’ practices in assessing client capacity. Further, there are
no national standards for legal capacity assessment.60 A 2004 study of 302 solicitors
reported wide variation in practices:
52
53
54
55
56
57
58
59
60
Legal Services Commissioner v O’Donnell [2015] NSWCATOD 17 (20 March 2015);
Legal Profession Complaints Committee v Wells [2014] WASAT 112 (16 December
2014); Legal Services Commissioner v Ford (2008) QLPT 12 (22 August 2008).
R v Kerin (2013) 116 SASR 316; Dellios v Dellios [2012] NSWSC 868 (20 July 2012);
A v N [2012] NSWSC 354 (13 April 2012); Fradgley v Pocklington [2011] QSC 227
(10 August 2011); Szozda v Szozda [2010] NSWSC 804 (23 July 2010); Nicholson v
Knaggs [2009] VSC 64 (27 February 2009).
[2014] WASAT 112 (16 December 2014).
Ibid [124].
Ibid [10]. See also [17], where virtually identical obligations are listed with regard to
preparing an Enduring Power of Attorney.
[2012] NSWSC 868 (20 July 2012).
[2011] QSC 227 (10 August 2011).
Szozda v Szozda (2010) NSWSC 804 (23 July 2010) [117] (Barrett J). See also
[33]–[35] regarding the appropriate tests for assessing client capacity.
For discussion, see Kelly Purser, Eilis S Magner and Jeanne Madison, ‘A Therapeutic
Approach to Assessing Legal Capacity in Australia’ (2015) 38 International Journal
of Law and Psychiatry 18.
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There was a very wide range of practices in determining capacity with no
consensus. The most frequent form of questions older clients were asked related
to personal and family history. Less than one-quarter asked for the rationale of
the decision: the most appropriate form of question in the literature. The results
suggest a need for further training of solicitors in the assessment of the capacity
of older clients to make legal decisions.61
A survey of Australian solicitors revealed a range of means for assessing capacity and
some deficiencies in their approaches, such as failing to sufficiently probe clients’
decision-making process by asking about the reasoning for their choices.62 Almost
50% of solicitors expressed interest in further capacity assessment training.
Moreover, it is important for lawyers to be aware of, and acknowledge, shifting
social paradigms in approaches to capacity and disability. They need to recognise
and avoid paternalistic practices that accentuate deficits rather than abilities, and that
undermine respect for a client’s autonomy and dignity. In a recent landmark report on
the equal rights of persons with disabilities, the Australian Law Reform Commission
advocated four national principles: (1) the equal rights of all adults to make decisions
about their lives and to have their decisions respected; (2) access to appropriate
supports to enable decision-making; (3) the wills and preferences of a person who
may require support should direct decision-making; and (4) legal frameworks must
provide safeguards for people who may require supports, such as to prevent coercion
and abuse.63 Lawyers should be able to apply these principles when assisting clients
who may be experiencing reduced capacity.64 For example, practitioners should
provide appropriate supports to maximise the person’s decision-making ability and
not prematurely turn to a substitute decision-maker.
All of these factors demonstrate the importance of incorporating capacity training
into the legal curriculum. Ideally, such training should include not only doctrinal
principles that may be covered in subjects such as contracts, criminal law, and wills
and estates, but also experiential learning. This would help students to develop
practical skills and hear directly from people who have lived experience with capacity-­
affecting conditions. To meet the attributes expected of an entry-level lawyer, they
must be able to identify ethical issues and comply with the requirements of the
law and good practice in discharging their professional duties.65 Simply lecturing
61
62
63
64
65
E Helmes, V E Lewis and A Allan, ‘Australian Lawyers’ Views on Competency
Issues in Older Adults’ (2004) 22 Behavioural Sciences and the Law 823, 823.
Ibid 827.
Australian Law Reform Commission, ‘Equality, Capacity and Disability in Commonwealth Laws’ (ALRC Report No 124, 2014).
Mary Helen McNeal, ‘Slow Lawyering: Representing Seniors in Light of Cognitive
Changes Accompanying Aging’ (2013) 117 Pennsylvania State Law Review 1081.
See, eg, Law Admissions Consultative Committee, Practical Legal Training:
Competency Standards for Entry-Level Lawyers (at 1 January 2015) Law
Admissions Consultative Committee <http://www.lawcouncil.asn.au/LACC/images/
Competency_Standards_for_Entry-Level_Lawyers_-_1_July_2015.pdf>.
(2016) 37 Adelaide Law Review515
students and instructing them to avoid a paternalistic approach has significantly less
impact than students hearing a person with a cognitive disability explain how they
feel demeaned, or supported, in their interactions with lawyers and other professionals. These conversations help students to be more conscious of their clients and
avoid making assumptions that lawyers have superior judgment about what is in the
best interests of older individuals or clients with disabilities. Students may also gain
confidence when talking to clients about factors that might affect their capacity, and
the types of supports the client prefers. This improved understanding and increased
confidence can help minimise paternalistic attitudes and behaviours, as well as the
‘instances in which lawyers refuse to act out of fear that the client lacks capacity.’66
B Design and Delivery
We developed the following learning outcomes and designed the Training Module to
ensure that, on successful completion, students would be able to:
• explain the concept of capacity and different legal tests for capacity;
• understand the duties of legal practitioners in relation to client capacity;
• identify ‘warning bells’ or ‘red flags’ that may indicate client capacity is an issue;
• identify and apply strategies to maximise client capacity;
• explain the process for obtaining a medical professional assessment of capacity;
and
• explain the role of substitute decision-makers.
The learning activities consisted of three sequential components: (1) acquiring
core knowledge about the law of capacity and lawyers’ professional duties;
(2) apply­ing knowledge and practising skills in a simulated client interview; and
(3) a ‘live client’ experience involving interactive discussion with community
members who have lived experience of cognitive impairment, or caring for a person
with reduced capacity.
For the first component, we adopted a blended or ‘flipped’ learning approach,
combining online and in-person learning activities.67 As a pedagogical tool, this
approach has two general advantages. First, the basic legal rules and principles can
66
67
Queensland Law Society, Queensland Handbook for Practitioners on Legal
Capacity (at 1 July 2014) 6 <https://www.qls.com.au/files/4422042a-7f34-404f-8df5a49d00e5f89a/Queensland_Handbook_for _Practitioners_on_Legal_Capacity.pdf>.
For a discussion of ‘flipped’ learning, see Peter Sankoff, ‘Taking the Instruction of
Law Outside the Lecture Hall: How the Flipped Classroom Can Make Learning
More Productive and Enjoyable (For Professors and Students)’ (2014) 51 Alberta
Law Review 891. See also the resources available at LegalED, Flipping a Law School
Course (2014) <http://legaledweb.com/flipping-a-law-school-course/>.
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LEGAL EDUCATION AND THE AGEING POPULATION
be taught in a recorded lecture format that is available to students to watch and
re-visit at their own pace. Second, face-to-face time can be used for active learning in
which students apply the law to problem scenarios, participate in group discussion,
engage in simulations (eg, client interviews, mediation) and hone thinking, reasoning
and communication skills. This mode of delivery enables a deeper level of skill
acquisition, and is an approach with which NLS students are familiar, as it has been
incorporated in an increasing number of our courses.
We promoted the Training Module by email to fourth and fifth year LLB students and
second year Juris Doctor students completing placement hours at the UNLC, as well
as students enrolled in a Health Law elective subject. Priority was given to students
who had already been involved in delivering the Planning Ahead seminars.
1 Online Learning Materials
We created an online site for the Training Module using our university’s virtual
learning platform. We prepared a short, audio-recorded PowerPoint presentation that
covered the following topics:
• what is meant by ‘capacity’, the legal presumption of capacity and the need
to determine capacity on a case by case basis, depending on the nature of the
decision to be made;
• conditions that can affect capacity, with links to resources for more information
on each category of condition (eg, dementia, intellectual disability, ABI, mental
illness);
• the basics of capacity assessment;
• signs that a client may have impaired capacity;
• interview techniques to assess a client’s capacity; and
• strategies to maximise a client’s capacity.
The online site also included links to capacity resources developed by several
legal professional bodies.68 We wanted to ensure students are aware of sources of
guidance they can access when or if they enter practice. We drew students’ attention
to a flowchart in the Queensland Handbook for Practitioners on Legal Capacity
that provides a useful step-by-step decision-making aid for a lawyer faced with a
possible capacity concern.69 The online learning materials were developed with
68
69
See Law Society of New South Wales, above n 46; Queensland Law Society, above
n 66; Law Institute Victoria, LIV Capacity Guidelines and Toolkit: Taking Instructions
when a Client’s Capacity is in Doubt (at September 2015) <http://www.liv.asn.au/
PDF/For-Lawyers/Submissions-and-LIV-Projects/2054_LPP_­CapacityGuidelines_
FINAL_WEB>.
Queensland Law Society, above n 66, 9.
(2016) 37 Adelaide Law Review517
the ­expectation that students could work through the resources within 30 minutes.
The key messages from the online material were reinforced during the introduction
to the in-person session.
2 In-Person Session
We designed the face-to-face component of the Training Module to be delivered over
two and half hours, divided between a simulated client interview and an interactive
session with guests from Alzheimer’s Australia. The guests included a person living
with a diagnosis of dementia, two people with experience caring for people with
dementia, and a staff member with expertise in community education and support.
In simulations, students are required to perform a lawyering activity using a mock
scenario that matches a real-life situation.70 Simulated activities in a safe learning
environment have several educational benefits. They require active learning and
foster the development of problem-solving skills.71 They enable students to practise
situations they may face as practitioners and experience legal problems through
the lens of a lawyer and client.72 The opportunity to interact with simulated clients
also helps students to integrate the theory learned in the classroom with realistic
problems.73
A fact scenario for the simulated interview involved a hypothetical older adult client
seeking legal help. The client wanted to change a will to make her daughter the
sole beneficiary and appoint that same daughter as a financial power of attorney and
enduring guardian for healthcare decisions. The scenario also included ‘secret facts’
that students needed to uncover during the interview, including that the client had
recently received a dementia diagnosis. Two law students with strong experience
in client interviewing were selected to role-play the client and were provided with
the factual scenario and secret facts in advance. They were also briefed on ways in
which they could demonstrate subtle indications of cognitive impairment during the
interview, based on the warning signs covered in the online lecture. Students were
divided into two groups to conduct the interviews. The two NLS Faculty members
who developed the Training Module each observed an interview. Following the
simulation, students reconvened as a full group for a debriefing.
70
71
72
73
Paul S Ferber, ‘Adult Learning Theory and Simulations — Designing Simulations to
Educate Lawyers’ (2002) 9 Clinical Law Review 417, 418.
Shaun McCarthy, ‘The Rise and Rise of Tribunals — Engaging Law Students in
Tribunal Advocacy’ (2014) 21(1) International Journal of Clinical Legal Education
42, 48.
Richard Grimes, ‘Faking it and Making it? Using Simulation with Problem-Based
Learning’ in Caroline Strevens, Richard Grimes and Edward Phillips (eds), Legal
Education: Simulation in Theory and Practice (Ashgate Publishing, 2014) 171.
Nicola Ross, Ann Apps and Sher Campbell, ‘Shaping the Future Lawyer: Connecting
Students with Clients in First-Year Law’ in Caroline Strevens, Richard Grimes and
Edward Phillips (eds), Legal Education: Simulation in Theory and Practice (Ashgate
Publishing, 2014) 67.
518
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LEGAL EDUCATION AND THE AGEING POPULATION
Students then participated in an interactive session focused on professional communication skills. Guests from Alzheimer’s Australia were asked to speak briefly about
their experiences dealing with lawyers and other professionals and to recommend
communication strategies that help maximise the capacity of a person living with
dementia, demonstrate respect and help build an effective professional-client relation­
ship. Students then had the opportunity to ask questions and engage in an informal
discussion with the guests. They also received a copy of the Alzheimer’s Australia
Dementia Language Guidelines that explain the ‘use of appropriate, inclusive and
non-stigmatising language when talking about dementia and people with dementia.’74
Following these activities, students shared and reflected on their experiences over an
informal tea. As this was a pilot delivery of the Module, students did not complete
assessment tasks or receive any credit towards their studies, however, they received
a Certificate of Attendance in recognition of their participation. We hope that
fostering a commitment to Continuing Professional Development in law school will
help students to recognise future gaps in their knowledge and skills as lawyers, and
engage in lifelong professional learning.
C Evaluation
Following the workshop, students were invited to complete an anonymous, online
survey and 60% of them responded (12 out of 20). A vast majority of the students
reported that participation in the training supported their professional development
by: increasing knowledge of relevant law (58% agreed and 25% strongly agreed);
increasing confidence in their ability to meet professional responsibilities in identifying and handling a client capacity issue (33.3% agreed and 66.7% strongly agreed);
and increasing understanding of practical strategies to deal with client capacity
issues (50% agreed and 50% strongly agreed).
We also sought feedback on the specific learning activities included in the Training
Module. All respondents rated the overall quality of the Training Module as either
good (33.3%) or very good (66.7%).75 Over 90% of respondents rated the session
with guests from Alzheimer’s Australia as good or very good. Some students
suggested conducting the simulated interviews with only two or three students per
client, or even on a one-to-one basis. In future offerings of the Training Module, we
plan to adopt this suggestion and perhaps increase the number of simulated ‘clients’
by involving drama students. Admittedly, the group interview format we used is
less realistic than a one-to-one simulated interview. However, it allowed students
to work together and think on their feet to devise questions based on information
elucidated by a peer. They also experimented with different questioning techniques
74
75
The Guidelines are available for download from the Alzheimer’s Australia website:
Alzheimer’s Australia, Dementia Language Guidelines <https://fightdementia.org.
au/files/NATIONAL/documents/language-guidelines-full.pdf>.
The Likert rating scale offered the following choices: poor, fair, no opinion, good,
very good.
(2016) 37 Adelaide Law Review519
after observing how a peer’s particular style worked, or did not work, in drawing out
information from the client.
IV C onclusions
We hope the lessons learned from the design, implementation and evaluation of
this pilot project can inform experiential learning initiatives elsewhere. This pilot
provides a model for collaboration with community organisations to provide
experiential opportunities for law students to enhance their knowledge, skills and
readiness to meet the legal needs of older adults and persons with chronic conditions,
especially those who may have reduced decision-making capacity. The project also
establishes the feasibility of embedding research into these collaborations to investi­
gate the impact of the activities, both for students and community members. As
Sage-Jacobson recently argued, further empirical research is crucial to improving
our understanding of the legal disadvantages faced by older persons and identifying evidence-based strategies to address unmet needs.76 Our evaluation provides
pre­liminary evidence for the effectiveness of the Planning Ahead seminars. They
increased attendees’ knowledge of the law and motivated some participants to take
action by discussing their intentions with those close to them and formalising their
wishes in legal instruments.
From the law students’ perspective, presenting the Planning Ahead seminars and
completing the Client Capacity Training Module increased their knowledge and
confidence. Further, they were able to practise professional skills in ‘real world’
settings. Castles and Hewitt observe that:
It is tempting to assume that law students will emerge from their law degree as
fully formed legal professionals, like butterflies from a chrysalis. … Between
an incoming student caterpillar and the fully-realised legal butterfly lies an
important period of professional learning.77
We designed the pilot using several learning modalities and experiential techniques.
The simulated interview provided a ‘safe environment’ for students,78 while situational interactions with community members in real-life settings enhanced students’
education as legal professionals.79 Both the structured activities and opportunities
76
77
78
79
Sage-Jacobson, above n 9, 159.
Castles and Hewitt, above n 14, 90.
Jeff Giddings and Michael McNamara, ‘Preparing Future Generations of Lawyers for
Legal Practice: What’s Supervision Got to Do with It?’ (2014) 37 University of New
South Wales Law Journal 1226, 1234.
Castles and Hewitt, above n 14, 95. The authors assert:
Situational learning offers students a unique learning experience of immersion in a
challenging and dynamic world that can both enhance their academic potential and
performance and go a considerable way to creating a newly-emerged butterfly ready to
encounter the challenges of further legal learning in a practical setting.
520
RIES, JOHNSTON AND McCARTHY —
LEGAL EDUCATION AND THE AGEING POPULATION
for informal interactions supported student learning and reflection. For example, at a
residential aged care facility, a palliative care clinical nurse consultant gave students
a tour of the facility and explained how they strive to create welcoming, home-like
spaces for residents. She also spoke with students about staff concerns that family
members may unduly influence older relatives’ decisions, and the apparent readiness
of some older people to acquiesce to the wishes of others and avoid familial conflict.
The students then witnessed this behaviour first-hand when a few seminar attendees
declined to complete the surveys, as they said they did not feel comfortable filling
in documents without a family member checking them. Students could see how a
similar situation might arise if they were advising an older client on legal documents.
Students were confronted with the challenge of balancing respect for clients’ wishes
with the need to be on guard for third parties who may try to take advantage of a
client’s dependence or impaired capacity. It has been observed that developing ‘law
and older people as an area of study or practice attracts the objection that “elder law”
perpetuates the myth that older people are particularly frail or vulnerable.’80 During
the Training Module, students discussed this issue with guests from ­Alzheimer’s
Australia and gained insights from people with experience as primary carers for
family members with dementia.
The experiences and outcomes from the pilot project provide a solid foundation
for expanding the initiative. Ideally, this would take the form of an elective course
for senior law students, integrating academic content with experiential activities,
including client capacity training and the delivery of CLE seminars. Assessment
items would need to be carefully designed to ensure they capture the distinctive
elements of experiential learning,81 including opportunities for students to reflect
on how what they have learned and experienced has supported their development as
legal professionals.
The 2015 pilot project provided a unique opportunity for students who volunteered to participate. We would encourage other law schools that are interested in
developing similar community-based collaborations to consider a pilot as a valuable
first step. Once relationships have been established with community organisations,
80
81
Joe Duffy, Subhajit Basu and Katherine C Pearson, ‘Older People and Legal Advice —
The Need for Joined Up and Creative Approaches’ (2012) 34 Journal of Social Welfare
and Family Law 31, 33.
For literature on the assessment of experiential learning, see Thomas Yates, Jay
Wilson and Kendra Purton, ‘Surveying Assessment in Experiential Learning:
A Single Campus Study’ (2015) 6(3) Canadian Journal for the Scholarship of
Teaching and Learning 1; Liz Curran and Tony Foley, ‘Integrating Two Measures
of Quality Practice into Clinical and Practical Legal Education Assessment: Good
Client Interviewing and Effective Community Legal Education’ (2014) 21(1) International Journal of Clinical Legal Education 69; Michael David Clements and Bonnie
Amelia Cord, ‘Assessment Guiding Learning: Developing Graduate Qualities in an
Experiential Learning Programme’ (2013) 38 Assessment & Evaluation in Higher
Education 114; Donna M Qualters, ‘Bringing the Outside in: Assessing Experiential
Education’ (2010) 124 New Directions for Teaching and Learning 55.
(2016) 37 Adelaide Law Review521
formalisation of the activities into a course would allow increased student participation. Further, it would provide the opportunity for longer-term research and evaluation
of the impacts of such experiential learning for law students. Collaborations with
organisations serving older adults and people with chronic health conditions can
also support research into their legal needs. This, in turn, would foster partnerships
between law schools, community organisations, lawyers and health practitioners
to help meet the intersecting legal and medical issues of these client groups. In
particular, ‘bundling’ CLE seminars with a follow-up appointment with a lawyer
would strengthen the effectiveness of the program.82
Resourcing is always an issue for innovative learning activities that occur outside the
law school, and programs involving community organisations can be time-­consuming
to organise and deliver. We planned and implemented the Planning Ahead seminars
with a small internal grant ($4000) to hire a law student as a casual research assistant
to help with contacting community organisations, coordinating the CLE seminars,
and conducting research activities, including literature reviews and administering the
follow-up surveys. An initial investment of time is needed to establish relationships
with community organisations. Once in place, these connections are a foundation for
ongoing collaborations.
In our experience, community organisations welcomed the invitation to host a CLE
seminar as a mutually beneficial opportunity for their clients and our law students.
Indeed, the interest in hosting CLEs exceeded the capacity of our pilot project. We
had requests to deliver the seminar in communities outside our metropolitan area.
While we were unable to include rural and regional outreach in our pilot, expanding
a student-delivered CLE program to such communities in future would help meet
this demand. Students studying in the medical and health science disciplines at the
University of Newcastle engage in rural placements, and have established relationships with healthcare facilities in those communities. With additional resourcing, a
travelling student legal clinic, a technology-enabled clinic,83 or an inter-professional
clinic involving students from the health disciplines could be organised, with CLE
82
83
See, eg, Suzie Forell and Hugh M McDonald, ‘Beyond Great Expectations: Modest,
Meaningful and Measurable Community Legal Education and Information’ (Justice
Issues Paper No 21, Law and Justice Foundation of New South Wales, December
2015) 2 <http://www.lawfoundation.net.au/ljf/site/articleIDs/D1D67F87F681ECBA
CA257F0F0021C08A/$file/JI_21_Beyond_great_expectations.pdf> who point out
‘that there are limits on what unbundled forms of legal assistance such as CLEI
[community legal education and information] are likely to achieve.’
See, eg, Jeff Giddings and Barbara Hook, ‘The Tyranny of Distance: Clinical Legal
Education in the Bush’ (2002) 2 International Journal of Clinical Legal Education
64; James E Cabral et al, ‘Using Technology to Enhance Access to Justice’ (2012) 26
Harvard Journal of Law & Technology 241; Nola M Ries, Briony Johnston and Shaun
McCarthy, ‘Technology-Enabled Legal Service Delivery for Older Adults: What Can
Law Learn from TeleHealth? Findings from an International Review of Literature’
(2016) 10 Elder Law Review <https://www.westernsydney.edu.au/__data/assets/
pdf_file/0017/1161521/Technology-Enabled_Legal_Service_Delivery_for_Older_
Adults_-_Nola_M_Ries,_Briony_Johnston_and_Shaun_McCarthy.pdf>.
522
RIES, JOHNSTON AND McCARTHY —
LEGAL EDUCATION AND THE AGEING POPULATION
included as part of the students’ activities. Collaboration with local legal practitioners
in these communities would be essential for providing both student supervision and
referral pathways for clients.
Additionally, there is scope to run legal education seminars for healthcare providers.
In response to our promotion of the Planning Ahead seminars, we received interest
from health organisations seeking to provide educational events for staff to enhance
their knowledge of the law and increase their confidence when discussing topics like
advance care planning with clients. Indeed, recent studies show significant gaps in
the legal knowledge of Australian health practitioners in this particular area.84
Collaboration between law schools and community organisations can have multiple
benefits and involving law students in the kinds of experiential initiatives discussed
here helps them develop the professional and ethical attributes necessary to meet the
often complex needs of older clients and those living with conditions that can impair
decision-making capacity. Embedding research into such initiatives can contribute
new findings to advance the evidence-based design and delivery of legal education
both in law schools and through community outreach.
84
Ben White et al, ‘Doctors’ Knowledge of the Law on Withholding and Withdrawing
Life-Sustaining Medical Treatment’ (2015) 201 Medical Journal of Australia 229;
C Cartwright et al, ‘Medical Practitioners’ Knowledge and Self-Reported Practices
of Substitute Decision Making and Implementation of Advance Care Plans’ (2014) 44
Internal Medicine Journal 234; William Silvester et al, ‘Quality of Advance Care
Planning Policy and Practice in Residential Aged Care Facilities in Australia’ (2013) 3
BMJ Supportive & Palliative Care 349; Colleen Maria Cartwright et al, ‘Palliative
Care and Other Physicians’ Knowledge, Attitudes and Practice Relating to the Law
on Withholding/Withdrawing Life-Sustaining Treatment: Survey Results’ (2016) 30
Palliative Medicine 171.
Peter D Burdon*
FOUCAULT AND THE POLITICS OF RIGHTS
BY BEN GOLDER
STANFORD UNIVERSITY PRESS, 2015
XII + 264 PP
ISBN 978 0 804 79649 1
I ntroduction
I
n the last 50 years, human rights have become the international moral currency
and ‘umbrella’ under which all kinds of justice claims are made. This includes
not only foundational rights articulated in the Universal Declaration of Human
Rights but, more recently, rights for a clean environment and rights for nature itself.1
Such is the dominance of rights talk that they are sometimes billed as the only game
in town2 or the ‘last utopia’3 for social and political struggle. Against this trend (what
Louis Henkin terms ‘The Age of Rights’4) there is a growing critical literature that
problematises the theoretical consistency and long-term efficacy of human rights.5
Further, scholars have examined whether human rights might perpetuate harm6 and
crowd out more radical political projects that address the root of a particular political
problem.7 It is from within this growing critical literature that I situate Ben Golder’s
recent book, Foucault and the Politics of Rights.
Golder is one of the most original and innovative legal theorists working in Australia.
His books and numerous essays demonstrate a consistent commitment to scholarly
rigour and reflection on contemporary political problems. His work encapsulates
*
1
2
3
4
5
6
7
Associate Professor, Adelaide Law School. Please send correspondence to peter.d.
[email protected].
Christopher D Stone, Should Trees Have Standing? Law, Morality, and the Environment (Oxford University Press, 3rd ed, 2010).
Kerri Woods, Human Rights and Environmental Sustainability (Edward Elgar, 2010) 8.
Samuel Moyn, The Last Utopia: Human Rights in History (Belknap Press, 2012);
Samuel Moyn, Human Rights and the Uses of History (Verso, 2014).
Louis Henkin, The Age of Rights (Columbia University Press, 1990).
Costas Douzinas, The End of Human Rights (Hart Publishing, 2000).
Pheng Cheah, Inhuman Conditions: On Cosmopolitanism and Human Rights (Harvard
University Press, 2007).
Wendy Brown, ‘“The Most We Can Hope For”: Human Rights and the Politics of
Fatalism’ (2004) 103(2) South Atlantic Quarterly 451, 461.
524
BURDON — FOUCAULT AND THE POLITICS OF RIGHTS
Edward Said’s idea of the intellectual as someone who accepts the responsibility to
raise difficult questions, to confront orthodoxy and dogma (rather than to reproduce
them) and who is prepared to challenge conventional wisdom.8
His recent book achieves two purposes. The first is intellectual and explores Foucault’s
late appeal to rights in his philosophical writings and interviews. Driving this inquiry
is an apparent inconsistency — why did Foucault, who is renowned for his critique
of humanism and rejection of human nature, turn to the langue of rights in the last
eight years of his life? Did Foucault accede to the power of liberal rights or did his
investigations of subjectivity constitute a continuation of his earlier positions on the
subject?9 The second purpose is political and is demonstrated in the way Golder
reads Foucault alongside (and against) important figures in contemporary philosophy
and politics, such as Wendy Brown, Judith Butler, Samuel Moyn and others working
within the Marxist tradition and critical theory. The latter investigation gives Golder
a way to consider the role of rights in contemporary politics.
This review essay proceeds in three parts. In Part I, I elaborate on the problem
that lies at the heart of Golder’s book. In doing so, I also describe the basis for
Foucault’s critique of humanism and introduce examples of those who interpret
Foucault’s adoption of rights talk as a capitulation to liberalism. In Part II, I argue
that Foucault’s appeal to rights might be read as an example of ‘late style’. Drawing
on Theodor Adorno and Edward Said, I describe late style as a moment when a
writer, who is fully in command of their medium, abandons communication with
their readership and rejects synthesis or resolution with previous works. Finally, in
Part III I describe Golder’s argument that Foucault’s adoption of rights is an example
of creative and critical appropriation. As part of this discussion I highlight Golder’s
critical engagement with Foucault and note the risks associated with articulating an
increasing number of justice claims using the language of rights. As Golder notes,
there are times when it is strategically useful to avoid rights talk and to distance
ourselves from the regulatory regime that is the object of contestation.
I A nti -H umanism
at the
E nd
of
H istory
I try to consider human rights in their historical reality while not admitting that
there is a human nature — Michel Foucault10
8
9
10
Edward W Said, Representations of the Intellectual: The 1993 Reith Lectures (Vintage
Books, 1996) 12.
Ben Golder, Foucault and the Politics of Rights (Stanford University Press, 2015) 6.
Quoted in ibid 1. See also Michel Foucault, Wrong-Doing, Truth Telling: The Function
of Avowal in Justice (University of Chicago Press, 2014) 265. For an important
statement on Foucault’s perspective on human nature, see Noam Chomsky, The
Chomsky-Foucault Debate on Human Nature (New Press, 2006).
(2016) 37 Adelaide Law Review525
Human rights typically rely on claims about the nature of human beings as articulated
by philosophers working out of the natural law tradition11 or expressed in documents
such as the American Declaration of Independence or the French Declaration of the
Rights of Man and the Citizen.12 These statements purport to enshrine what is fundamental to human flourishing and it is assumed that this account is relatively fixed and
stable across culture, geography and time.
Foucault, by contrast, spent a good portion of his career destabilising the notion of
an ahistorical subject that serves as a foundation for human rights. Put otherwise,
Foucault resists the metaphysical closure of the human imported by liberal
humanism. For example, Foucault concludes his 1966 book The Order of Things
with the declaration: ‘Man is an invention of recent date. And one perhaps nearing its
end’.13 Reflecting on the crumbling of classical thought at the end of the 18th century,
he argues that ‘one can certainly wager that man would be erased, like a face drawn
in sand at the edge of the sea’.14 Just as Nietzsche proclaimed the death of God,15
Foucault’s anti-humanism announced the death of man. Indeed, Nietzsche himself
insisted that belief in humanity was itself just a hangover from a belief in God and,
once God was eradicated, that belief in human beings would follow the same way.
Foucault’s problem with humanism is neatly captured in a faculty seminar he gave at
the University of Vermont in the fall of 1982:
What I am afraid of about humanism is that it presents a certain form of our
ethics as a universal model for any kind of freedom. I think that there are more
secrets, more possible freedoms, and more inventions in our future than we
can imagine in humanism as it is dogmatically represented on every side of the
political rainbow: the Left, the Center, the Right.16
11
12
13
14
15
16
Samuel Moyn, Christian Human Rights (University of Pennsylvania Press, 2015).
Henkin, The Age of Rights, above n 4, 1. See also Louis Henkin, The Rights of Man
Today (Westview Press, 1978) 1–30.
Michel Foucault, The Order of Things: An Archaeology of the Human Sciences
(Vintage Books, 1994) 387.
Ibid.
Friedrich Nietzsche, Thus Spoke Zarathustra: A Book for Everyone and No One
(R J Hollingdale trans, Penguin Classics, 1961) 114 [trans of: Also Sprach Zara­thustra:
Ein Buch fur Alle und Keinen (first published 1883–85)]; Friedrich Nietzsche, The
Gay Science: With a Prelude in Rhymes and an Appendix in Songs (Walter Kaufmann
trans, Vintage Books, 1974) 181 [trans of: Die fröliche Wissenschaft (first published
1882)].
Michel Foucault, quoted in Ben Golder and Peter Fitzpatrick, Foucault’s Law
(Routledge, 2009) 124. See also Luther H Martin, Huck Gutman and Patrick H
Hutton (eds), Technologies of the Self: A Seminar with Michel Foucault (University of
­Massachusetts Press, 1988) 15.
526
BURDON — FOUCAULT AND THE POLITICS OF RIGHTS
Here one might pause and reflect on the kind of humanism that Foucault is responding
to and whether or not his critique ultimately eviscerates the humanist project.17 I will
return to this point in Part III but for now it is clear that Foucault sees humanism
as presenting a fundamentally diminished conception of the human.18 Rather than
accepting a fixed or stable account, Foucault proposes a thoroughly contingent subject
that is open and vulnerable to reinscription: ‘men have never ceased to construct
themselves … to continually displace their subjectivity, to constitute themselves in
an infinite, multiple series of different subjectivities that will never have an end and
never bring us in the presence of something that would be “man”’.19
Yet, as Golder notes, Foucault’s late period invokes the language of rights and assigns
them a ‘central and constituent role’ in discussions of ethical self-formation.20 For
example, in ‘The Social Triumph of the Sexual Will’, Foucault proposes a ‘new
relational right’,21 which is ‘the right to gain recognition in an institutional sense for
the relations of one individual to another individual’.22 In a lecture given in 1976 about
the rights of prison inmates, Foucault argued that the ‘internal rules’ of the prison ‘are
always absolutely contrary to the fundamental laws that in the rest of society guarantee
the rights of man’.23 In 1981, Foucault delivered the statement ‘Confronting Governments: Human Rights’ at the United Nations in Geneva. Addressing ‘all members of
the community of the governed’,24 he argued that the ‘suffering of men’, too often
ignored by governments, grounds a new right to intervene.25 And, finally, in ‘Sex,
Power and the Politics of Identity’, Foucault argues that ‘[h]uman rights regarding
sexuality are important’26 and that ‘we have — and can have — a right to be free’.27
17
18
19
20
21
22
23
24
25
26
27
See, eg, Edward Said, Humanism and Democratic Criticism (Columbia University
Press, 2004).
James Bernauer, ‘Michel Foucault’s Philosophy of Religion: An Introduction to the
Non-Fascist Life’ in James Bernauer and Jeremy Carrette (eds), Michel Foucault and
Theology: The Politics of Religious Experience (Ashgate, 2004) 77, 88.
Michel Foucault, ‘Interview with Michel Foucault’ in Paul Rabinow (ed), Essential
Works of Foucault 1954–1984: Power (New Press, 2000) vol 3, 239, 276.
Golder and Fitzpatrick, above n 16, 123. For a summary, see Golder, Foucault and the
Politics of Rights, above n 9, 13–20.
Michel Foucault, ‘The Social Triumph of the Sexual Will’ in Paul Rabinow (ed),
Essential Works of Foucault 1954–1984: Ethics (New Press, 1998) vol 1, 160, 160.
Ibid 162.
Quoted in Golder, Foucault and the Politics of Rights, above n 9, 15.
Michel Foucault, ‘Confronting Governments: Human Rights’ in Paul Rabinow (ed),
Essential Works of Foucault 1954–1984: Power (New Press, 2000) vol 3, 474, 474.
Ibid 475. See also Jessica Whyte, ‘Human Rights: Confronting Governments? Michel
Foucault and the Right to Intervene’ in Matthew Stone, Illan rua Wall and Costas
Douzinas (eds), New Critical Legal Thinking: Law and the Political (Routledge,
2012) 11, 11.
Michel Foucault, ‘Sex, Power and the Politics of Identity’ in Paul Rabinow (ed),
Essential Works of Foucault 1954–1984: Ethics (New Press, 1998) vol 1, 160, 164.
Ibid 166.
(2016) 37 Adelaide Law Review527
In response to Foucault’s curious adoption of rights talk, Golder posits a generative
question:
What may account for this puzzling shift from an iconoclastic anti-humanism
and imperviousness to rights talk to a seemingly liberal defense of the classical
Enlightenment tradition (of the rights of prison inmates, sexual minorities,
asylum seekers, and more besides) — and this in such a staggering short period
of time?28
There is no shortage of explanations or attempts to make Foucault’s turn to rights
consistent with his previous genealogical and archaeological projects. For some, this
involves a radical reconstruction of Foucault as someone who ‘emerged phoenix-like
from the embers of Foucault’s exhausted genealogical project’29 and became a
mature thinker who embraced liberal humanism. Eric Paras, for example, argues
that Foucault broke with his previous structuralist positions and upgraded to
‘Foucault 2.0: Beyond Power and Knowledge’.30 Like the new iPhone, Foucault 2.0
comes with new features, including a dramatic embrace of ‘the ideas that he had
laboured to undermine: liberty, individualism, “human rights” and even the thinking
subject’.31 In agreement, Richard Wolin argued:
Considerable evidence suggests that, later in life, Foucault himself became
frustrated with the antihumanist credo. He underwent what one might describe
as a learning process. He came to realize that much of what French structuralism had during the 1960s rejected as humanist pap retained considerable ethical
and political value. That re-evaluation of humanism redounds to his credit as a
thinker.32
In a separate piece, Wolin suggested that Foucault was ‘pivotal’ in influencing the
French intelligentsia (and their followers) into accepting political liberalism.33 This
revisionist depiction of Foucault resonates with a broader political shift toward
28
29
30
31
32
33
Golder, Foucault and the Politics of Rights, above n 9, 1–2.
Ben Golder, ‘Foucault, Anti-Humanism and Human Rights’ (Paper presented at the
Centre for Post-Colonial and Globalisation Studies Conference: Foucault, 25 Years
on, Adelaide, 25 June 2009) <www.unisa.edu.au/Documents/EASS/HRI/foucault-­
conference/golder.pdf>.
Eric Paras, Foucault 2.0: Beyond Power and Knowledge (Other Press, 2006).
Ibid 4. See also Francois Dosse, History of Structuralism: The Rising Sign 1945–1966
(University of Minnesota Press, 1997) vol 1, 336.
Richard Wolin, ‘Foucault the Neohumanist?’, The Chronicle Review (online),
1 September 2006 <http://chronicle.com/article/Foucault-the-Neohumanist-/23118>.
Richard Wolin, ‘From the “Death of Man” to Human Rights: The Paradigm of Change
in French Intellectual Life, 1968–1986’ in The Frankfurt School Revisited: And Other
Essays on Politics and Society (Routledge, 2006) 171, 180. Here Wolin argues: ‘At
the time of Foucault’s death in 1984, prominent observers noted the irony that the
ex-structuralist and “death-of-man” prophet had played a pivotal role in facilitating
French acceptance of political liberalism.’
528
BURDON — FOUCAULT AND THE POLITICS OF RIGHTS
human rights that occurred during the 1970s. According to Samuel Moyn,34 it was
not until 1977 that an arbitrary confluence of factors created an environment in
which human rights emerged as the dominant political idiom.35 Prior to the 1970s,
human rights were eclipsed by far more dominant social movements and by radical
politics exemplified in anticolonial struggle and revolutionary communism.36 It was
only after the ‘demise of revolutionary privilege’37 that human rights emerged as a
plausible ideological alternative.38 In fact, it was precisely because human rights
were represented as ideologically and politically neutral — accommodating both
communism and capitalism on the one hand, and nationalism and individualism on
the other — that human rights then emerged as the safest bet for the ideologically
disenchanted.39 Human rights did not require a commitment to political and social
upheaval and they found success as a ‘last utopia’40 in the political juncture that right
wing Hegelian Francis Fukuyama termed ‘the end of history’.41
Golder is attentive to Wolin’s reading of Foucault and he retrieves to great effect
several quotes in which Foucault expresses his own disenchantment with radical
politics. For example, Foucault remarked in an interview from 1983: ‘You know,
I belong to a generation of people who witnessed the collapse, one after another, of
most of the utopias that had been constructed in the nineteenth and the beginning
of the twentieth century’.42 Foucault also affirmed the courage that it takes to ‘begin
34
35
36
37
38
39
40
41
42
Golder, Foucault and the Politics of Rights, above n 9, 4–5, 150–3, 156.
Moyn, The Last Utopia, above n 3, 4. Moyn highlights the events of 1977 as being
pivotal — in this year, Amnesty International won the Nobel Peace Prize and
US President Carter stated in his inauguration speech ‘[o]ur commitment to human
rights must be absolute’: at 155.
Ibid 45–7, 195–203. For a mapping of the links between the early human rights
movement and anti-communism, see also Jessica Whyte, ‘Intervene, I Said’ (2012)
207 Overland <http://overland.org.au/previous-issues/issue-207/feature-­jessicawhyte/>. These links include Amnesty International’s focus on religious and political
dissidence in the Soviet Bloc and the work of Médecins Sans Frontières and Helsinki
Watch (later to be renamed Human Rights Watch) with the neoconservative movement
and the US State Department respectively.
Robert Horvath, ‘The Solzhenitsyn Effect: East European Dissidents and the Demise
of the Revolutionary Privilege’ (2007) 29 Human Rights Quarterly 879.
Moyn, The Last Utopia, above n 3, 2.
Ibid 4.
Ibid 1–5.
Francis Fukuyama, The End of History and the Last Man (Free Press, 2006) xi. What
Fukuyama meant by this was that with the defeat of fascism and the collapse of the
Soviet Union, the 20th century exhausted any alternatives to Western liberalism.
Quoted in Golder, Foucault and the Politics of Rights, above n 9, 149. See also Michel
Foucault, ‘What is Called Punishing?’ in Essential Works of Foucault 1954–1984:
Power (New Press, 2000) vol 3, 382, 384.
(2016) 37 Adelaide Law Review529
anew’, ‘to abandon every dogmatic principle’ and ‘to construct another political
thought’ so that we might ‘teach anew the vision of a future’.43
While suggestive, Golder does not accept that Foucault’s political disappointments
influenced his turn to rights discourse: ‘the reading to which I am most opposed is that
of Foucault as a belated convert to a liberal philosophy of the subject and of sovereignty’.44 However, rather than dismissing Wolin completely, Golder uses Wolin’s
misreading as an opportunity to outline Golder’s own explanation of Foucault’s use
of rights and to explore the importance of reading Foucault today. I will describe this
explanation in Part III, following an alternative reading that highlights the contra­
diction that frequently accompanies the late work of creative people.
II F oucault ’ s L ate S tyle
In the history of art late works are the catastrophes — Theodor W Adorno45
Another explanation for Foucault’s turn to rights, which is not explored by Golder,46
is that it represents an example of late style in which the writer (or artist) acquires
a new idiom towards the end of their career. From this perspective, the last or late
period of life, with the decay of the body and the onset of ill health, produces not
harmony and resolution but intransigence and contradiction.47 An example can be
noted in the late works of Henrik Ibsen, whose final plays, such as When We Dead
Awaken, burst open his career and reopened questions thought resolved.48 Far from
reconciliation, Ibsen’s late works suggest a restless artist who deploys drama as a
means to provoke anxiety and leave his audience more perplexed and unsettled than
43
44
45
46
47
48
Golder, Foucault and the Politics of Rights, above n 9, 150–1. See also Michel Foucault,
‘Dialogue between Michel Foucault and Baqir Parham’ in Janet Afary and Kevin
Anderson (eds), Foucault and the Iranian Revolution: Gender and the Seductions of
Islamism (University of Chicago Press, 2005) 183, 185.
Golder, Foucault and the Politics of Rights, above n 9, 20.
Theodor W Adorno, ‘Late Style in Beethoven’ in Richard Leppert (ed), Essays on
Music (Susan H Gillespie trans, University of California Press, 2002) 564, 567.
Golder does comment on the ‘normative incoherence’ of Foucault’s advocacy for
rights: Golder, Foucault and the Politics of Rights, above n 9, 17. See also Nancy
Fraser, Unruly Practices: Power, Discourse and Gender in Contemporary Social
Theory (University of Minnesota Press, 1989) 31.
James Miller, The Passion of Michel Foucault (Anchor, 1994) 13–36.
Henrik Ibsen, When We Dead Awaken (Robert Brustein trans, Ivan R Dee, 1992)
[trans of: Når vi døde vågner (first published 1899)].
530
BURDON — FOUCAULT AND THE POLITICS OF RIGHTS
when they arrived.49 This is why, as Kretschmar says in Thomas Mann’s Doctor
Faustus, late works frequently give the impression of being unfinished.50
Theodor Adorno first used the phrase ‘late style’ to describe Beethoven’s last
works.51 While sometimes dismissed as the work of a deaf and increasingly isolated
composer, Adorno describes these final compositions as a mechanism through which
Beethoven achieved exile from his milieu. After noting that the mature work of
significant artists does not ‘resemble the kind one finds in fruit’, Adorno describes
late style as ‘furrowed, even ravaged’ and as ‘devoid of sweetness, bitter and spiny’.52
Late style defies consistency and lacks the harmony that the celebrated writer or
artist is in the habit of demanding from their medium (and which their audience
expect). While some final works attain a sense of holiness and resolution,53 late style
is characterised more by history than growth.54 A life’s work may be torn apart and,
to quote Foucault, ‘we are, so to speak, at point zero’.55
For Adorno, late style is what happens when creativity does not abdicate its direction
in favour of reality.56 Inconsistencies are not the result of indifference and cannot
be explained with reference to personality alone. Rather, late style emerges from a
‘formal law’ that is ‘revealed precisely in the thought of death’.57 He argues further:
If in the face of death’s reality, art’s rights lose their force, then the former will
certainly not be able to be absorbed directly into the work in the guise of its
‘subject’. Death is imposed only on created beings, not on works of art, and thus it
has appeared in art only in a refracted mode, as allegory … The power of subjectivity in the late works of art is the irascible gesture with which it takes leave of
the works themselves. It breaks their bonds, not in order to express itself, but in
order, expressionless, to cast off the appearance of art. Of the works themselves
49
50
51
52
53
54
55
56
57
Foucault’s turn to rights certainly had that impact on his readers. Philip Furbank
likens Foucault to ‘Lilburne or Benjamin Franklin’: P N Furbank, ‘Unhappy Man’
(1993) 15(14) London Review of Books 11.
Edward Said, On Late Style: Music and Literature against the Grain (Vintage Books,
2007) 10. See also Thomas Mann, Doctor Faustus: The Life of the German Composer
Adrian Leverkuhn as Told by a Friend (Vintage Books, 1999) 57–60.
Theodor W Adorno, ‘Spätstil Beethovens’ in Moments Musicaux (Suhrkamp Verlag,
1964) 13; republished in Theodor W Adorno and Rolf Tiedemann (eds), Beethoven:
The Philosophy of Music (Edmund Jephcott trans, Wiley, 2002) 123, 123–61.
Adorno, ‘Late Style in Beethoven’, above n 45, 564. Adorno writes, ‘in the last five
piano sonatas, one finds formulas and phrases of convention scattered about. The
works are full of decorative trill sequences, cadences, and fiorituras’: at 565.
See, eg, Sophocles’ last Theban Play, ‘Oedipus at Colonus’: Sophocles, The Three
Theban Plays: Antigone; Oedipus the King; Oedipus at Colonus (Robert Fangles
trans, Penguin Classics, 2000).
Adorno, ‘Late Style in Beethoven’, above n 45, 564.
Quoted in Golder, Foucault and the Politics of Rights, above n 9, 150.
Adorno, ‘Late Style in Beethoven’, above n 45, 564.
Ibid 566.
(2016) 37 Adelaide Law Review531
it leaves only fragments behind, and communicates itself, like a cipher, only
through the blank spaces from which it has disengaged itself. Touched by death,
the hand of the master sets free the masses of material that he used to form; its
tears and fissures, witnesses to the finite powerlessness of the I confronted with
the Being, are its final work.58
It is the episodic character of Beethoven’s late works, its apparent carelessness about
its own continuity, that Adorno finds so gripping. Its power is its negativity — a
work unco-opted by a higher synthesis. The late works are about ‘lost totality’, and
it is in this sense that they are catastrophic.59 Might something similar be at play for
Foucault? To paraphrase Said, might Foucault’s late turn to rights represent a moment,
not of capitulation to liberalism, but when the writer who ‘is fully in command of his
medium nevertheless abandons communication’60 and achieves a contradictory and
alienated relationship to his audience?
This interpretation has several features to recommend it (not least of which is that
one is saved from the laborious task of making Foucault consistent with himself).
Foucault’s final period had the politics and the ethics associated with late style —
a devotion to the truth of unreconciled relations. Moreover, as James Miller has
noted, Foucault thought of death as the ‘lyrical core’ of his life and his last works were
consciously informed by his own mortality and his constant drive towards ‘limit-­
experiences’.61 After all, Foucault did seek to confront the void that lies beyond
language and political concepts. Commenting on the work of Maurice Blanchot, he
noted that in the void that lies beyond language what one finds ‘is not a positivity that
contradicts it, but the void that will obliterate it’.62 This void is, to use Miller’s words,
‘the occluded, Dionysian dimension of being human’63 and to win access to it is the
ultimate object of all that Foucault writes.
Against this interpretation, one might note that Foucault’s understanding of the
dissolving self did not lead him to inhabit his last works as a ‘lamenting person­
ality’.64 Foucault wanted to continue with the self’s making and if we divide his work
into early (aesthetics), middle (power) and late periods (ethics), he still had other
creative possibilities open to him when he died at the age of 57. While older than
Beethoven, we might consider this too early for real lateness today. Moreover, while
Golder is attentive to the disrupting consequences that followed from Foucault’s turn
to rights, he would argue that his late work is not catastrophic but consistent with
58
59
60
61
62
63
64
Ibid.
Ibid.
Said, On Late Style: Music and Literature against the Grain, above n 50, 8.
Miller, above n 47, 29–30.
Ibid 83.
Ibid 69.
Adorno, ‘Late Style in Beethoven’, above n 45, 564. For insight into Foucault’s
approach to the self, see Foucault, ‘Interview with Michel Foucault’, above n 19,
236–53.
532
BURDON — FOUCAULT AND THE POLITICS OF RIGHTS
his earlier writing. In making this argument, Golder argues that Foucault approaches
rights in a spirit of creative and critical appropriation. I turn now to consider that
argument.
III C reative
and
C ritical A ppropriation
This is humanism after the death of Man: what Foucault calls ‘le travail de soi
sur soi,’ the continuous constituent project to create and re-create ourselves and
our world — Michael Hardt and Antonio Negri65
For Golder, Foucault’s turn to rights is not an example of capitulation to liberalism
or late style. Rather, he argues that Foucault’s early writings on liberalism, sovereignty and humanism are not only consistent with, but also inform, his approach to
rights — an approach that operates independently from the idea of a naturalised and
fixed human subject. The shorthand Golder adopts to describe Foucault’s approach is
‘critical counter-conduct’.66
The term ‘critical’ connotes two points. First, Golder reads Foucault as maintaining
a clear distance from liberalism even as he ‘draws tactically’ from its ‘resources,
practices and institutions’.67 Foucault’s engagement with liberalism is not acceptance
nor mere opposition. Rather, it is an intervention or ‘contrary inhabiting’ that
undermines and destabilises liberalism by working within and against it.68 Second,
the term ‘critical’ assumes particular attributes that reflect Foucault’s understanding
of critique.69 This is a complex area that consumes the bulk of Golder’s attention in
chapter one. For now, at the risk of being maddeningly brief, I will highlight one
example drawn from Foucault’s writing on resistance to forms of government. In an
essay called ‘What is Critique?’ Foucault describes critique as ‘the art of not being
governed so much’.70 While vague and fuzzy, this starting point provides Foucault
with ‘several precise anchoring points’ for what he calls ‘the critical attitude’.71
Golder summarises the essential point:
65
66
67
68
69
70
71
Michael Hardt and Antonio Negri, Empire (Harvard University Press, 2001) 92.
Golder, Foucault and the Politics of Rights, above n 9, 20.
Ibid.
Ibid.
Ibid 31–60. See also Talal Asad et al, Is Critique Secular? Blasphemy, Injury, and
Free Speech (Fordham University Press, 2013).
Golder, Foucault and the Politics of Rights, above n 9, 22. See also Michel Foucault,
‘What Is Critique?’ in James Schmidt (ed), What is Enlightenment? Eighteenth-­
Century Answers and Twentieth-Century Questions (University of California Press,
1996) 382, 384.
Foucault, ‘What is Critique?’, above n 70, 384.
(2016) 37 Adelaide Law Review533
to be critical in this … more specific sense, is to pose questions of the government
of conduct (‘or [its] principles, … objectives … [and] methods’) using the
available political resources and repertoire furnished by government itself, a kind
of refractory turning of government against itself from within the discursive and
political field of possibilities opened up by government.72
The critic, in this particular example, is someone who seeks to resist or destabilise
government from an immanent vantage point and thus seeks to open govern­mental
arrangement to new creative possibilities.73 In a similar way, Foucault’s late
engagement with human rights should be seen as a critical engagement within and
against his subject with the view to opening new possibilities, secrets and inter­
ventions not previously encountered in human experience.74 This is human rights
in the name of an unfinished humanity and a critical ontology that affirms the ‘need
to produce something that doesn’t exist yet, without being able to know what it
will be’.75
Golder’s reading of Foucault is nuanced and convincing. In the spirit of continuing his
intervention, I was left with questions regarding Foucault’s description of humanism
and liberalism. For example, might humanism be understood outside of the totalising
and essentialising trends that Foucault identifies? If, as Said suggests, ‘attacking the
abuses of something is not the same thing as dismissing or entirely destroying that
thing’, might Foucault’s critique of humanism discredit some branches of humanism,
without discrediting humanism itself?76 Moreover, I wondered about the relationship between Foucault’s late turn to rights and his description of liberalism as a
political technology or form of governmentality.77 In Foucault’s 1978–79 lecture at
the Collège de France, he described liberalism as follows:
Liberalism, as I understand it, the liberalism we can describe as the art of
government formed in the eighteenth century, entails at its heart a productive/
destructive relationship [with] freedom … Liberalism must produce freedom, but
this very act entails the establishment of limitations, controls, forms of coercion,
and obligations relying on threats, etcetera.78
72
73
74
75
76
77
78
Golder, Foucault and the Politics of Rights, above n 9, 22. See further 31–59.
Ibid.
Foucault, ‘Interview with Michel Foucault’, above n 19, 124.
Foucault, ‘The Social Triumph of the Sexual Will’, above n 21, 275.
Edward Said, Humanism and Democratic Criticism (Columbia University Press,
2003) 13. For a broader perspective on Said’s engagement with Foucault, see Edward
Said, Beginnings: Intention and Method (Columbia University Press, 1985) 279–321.
Andrew Barry, Thomas Osborne and Nikolas Rose (eds), Foucault and Political
Reason: Liberalism, Neo-Liberalism, and Rationalities of Government (University of
Chicago Press, 1996).
Michel Foucault, The Birth of Biopolitics: Lectures at the Collège de France,
1978–1979 (Picador, 2010) 64.
534
BURDON — FOUCAULT AND THE POLITICS OF RIGHTS
In this passage, Foucault suggests that the freedom that is at stake in liberalism is
not natural, but rather something that is produced by governments. The liberalism
that is articulated in this passage (and throughout the lecture series) is not underpinned by humanism, sovereignty or natural rights. It is something other and it was
on this basis that Daniel Zamora argues: ‘Foucault was highly attracted to economic
liberalism … [h]e especially saw in neoliberalism a “much less bureaucratic” and
“much less disciplinarian” form of politics than that offered by the postwar welfare
state’.79 I suspect that Golder would disagree with Zamora but it should also be noted
that Foucault’s account does not exhaust liberalism. This is particularly true after the
1970s when a brand of liberalism emerged that was openly hostile to sovereignty.80
Golder is conscious of the limits of Foucault’s analysis. In fact, one of the most
intellectual satisfying aspects of his book is the fact that he has no interest ‘in saving
Foucault from himself’.81 Golder is keenly aware of Foucault’s susceptibility to
feminist and postcolonial critiques82 and at the end of chapter three directly interrogates Foucault of analysis of the human:
in the spirit of Foucault’s questioning of the human, we need to begin to
question this very questioning itself … It is clear that a critical interrogation
of the ground of rights seeks to open them to certain future political possibilities, reinscription, and rearticulations. But it is equally clear that the exposure
of contingency, however important and necessary, cannot be the resting point of
a critical engagement with rights. Whereas it is true that the contingency of the
human betokens the radical openness and futural possibilities of human rights,
it is equally true that not all futures and not all possibilities manage to install
themselves with equal force within the juridical institutions of human rights.83
Passages like this deserve a standing ovation. Golder goes on to suggest, drawing
on Susan Marks,84 that the ‘horizons for human history’ are not ‘boundless but very
much bounded’.85 While Foucault is attuned to the many aspects of progressive
thought, he omits serious discussion of the material dynamics that prevent ‘certain
figures of humanity, being, relation, and community from signifying within the texts
of human rights’.86 In response, Marxists like David Harvey have claimed that the
79
80
81
82
83
84
85
86
Daniel Zamora, ‘Can We Criticize Foucault?’, Jacobin (online), 12 October 2014
<https://www.jacobinmag.com/2014/12/foucault-interview/>. See also Daniel
Zamora and Michael C Behrent, Foucault and Neoliberalism (Polity, 2016).
Hardt and Negri, above n 65, 67–182.
Golder, Foucault and the Politics of Rights, above n 9, 61.
See, eg, Caroline Ramazanoglu, Up Against Foucault: Explorations of some Tensions
between Foucault and Feminism (Routledge, 1993).
Golder, Foucault and the Politics of Rights, above n 9, 86.
Ibid. See Susan Marks, ‘False Contingency’ (2009) 62 Current Legal Problems 1.
Golder, Foucault and the Politics of Rights, above n 9, 86.
Ibid 88. On the term ‘signifying’, see Michel Foucault, Archaeology of Knowledge
and the Discourse on Language (Vintage Books, 2010) 89, 109, 111.
(2016) 37 Adelaide Law Review535
term ‘right’ is itself indeterminate and that its operative dynamics depend on who
gets to fill the right with meaning.87 According to this analysis, we actively need to
confront the question whose rights are being identified while recognising, as Marx
suggested, ‘between equal rights, force decides’.88
Struggle is important, but as Golder notes, rights are a ‘particular modality’ and not
entirely devoid of content. The form of rights and the dynamics involved in claiming
them might indeed ‘foreclose the futural and performative possibilities’ of the
human.89 Moreover, while it might be strategically useful to articulate certain justice
claims using the language of rights, in other instances rights talk will enmesh us
deeper in the regulatory regime that we seek to contest. For this reason, there will be
circumstances where it is tactical to avoid rights talk altogether. Golder provides an
instructive example with respect to Foucault’s opposition to the death penalty90 and
his analysis is even more urgent today as an increasing number of egalitarian projects
seek to gain political traction by collapsing themselves into the idiom of rights.
C onclusion
Golder’s book is a major intervention in Foucauldian studies and research into
the legalphilosophical dimensions of rights. It deserves to be read and to be taken
seriously by legal scholars, including those unfamiliar with Foucault. While his
subject has historical dimensions, it is also a book for today and responds thoughtfully to the possibilities and limits of rights discourse. My hope is that Golder’s book,
which is part of a growing critical literature on rights, can play a role in breaking
open political possibilities and help us envision other, and perhaps more productive,
possibilities for social and environmental justice. This includes larger projects for
equality, self-governance and the collectivisation of power. Legal rights are no
substitute for these projects and as Golder notes, limiting our political horizons to
rights might reinscribe dominant conceptions of power and value.
87
88
89
90
David Harvey, Rebel Cities: From the Right to the City to the Urban Revolution
(Verso, 2013) xv. For an alternative Marxist perspective, see Evgenii Bronislavovichy
Pashukanis, Selected Writings on Marxism and Law (Academic Press, 1980); Daniel
McLoughlin, ‘Post-Marxism and the Politics of Human Rights: Lefort, Badiou,
Agamben, Rancière’ (2016) 27 Law and Critique 303.
Karl Marx, Capital: Volume One (Ben Fowkes trans, Penguin, 1992) 344.
Golder, Foucault and the Politics of Rights, above n 9, 88. See, eg, 103–13.
Ibid 138–46. Golder notes at 144
that Foucault hesitated to openly engage a ‘right to life’ approach to the death penalty
suggests that when it came to the death penalty, the terrain of contemporary biopolitics
was not susceptible of critical rights-based subversion from within and in fact presented
the significant danger of strengthening the apparatus of (capital and other) punishment.
The Hon Michael Kirby AC CMG*
JOHN JEFFERSON BRAY — A VIGILANT LIFE
BY JOHN EMERSON
MONASH UNIVERSITY PUBLISHING, 2015
I–XVI + 271 PP
ISBN 978 1 92223 561 9
I ntroduction
Mortals are aware of present things.
The gods, full and sole possessors
of all Knowledge, are aware of things to come.
… The secret sound
of approaching events reaches them.
And they pay it reverent attention. While out in the street
the people hear nothing at all — C P Cavafy1
A
merit of John Emerson’s excellent and insightful biography of John Jefferson
Bray, Chief Justice of South Australia 1967–78, is that Emerson has opened
each chapter with an apt quotation from one of Bray’s published poems.
Bray was an accomplished poet and, as Emerson demonstrates, this was not the only
unusual feature of the man. Although Bray had a distinguished lineage and rose to the
highest public offices in South Australia (Supreme Court Chief Justice, University
Chancellor, Deputy to the Lieutenant-Governor), he remained his own man. He did
so despite the dangers. He did not join the Adelaide Club. He disdained official cars
and walked to work. He had a close circle of artistic friends. He wore shorts in public
and he frequented noisy pubs. He went swimming at public beaches. And he declined
to wear a hat.
I think that Bray would have approved of my conceit in reversing the tables and illustrating this review with poems of C P Cavafy, an Alexandrian Greek who hardly ever
revealed details about his sexual life but wrote frankly about homoeroticism in his
*
1
Justice of the High Court of Australia (1996–2009); Member of the Global LGBT
Forum, Berlin (2015–present). Patron of the Pinnacle Foundation (2012–present) and
of the Kaleidoscope Foundation (2013–present).
C P Cavafy, ‘Wise Men’ in C P Cavafy, The Collected Poems: With Parallel Greek
Text (Evangelos Sachperoglou trans, Oxford World’s Classics, 2008) 31.
538
KIRBY — JOHN JEFFERSON BRAY — A VIGILANT LIFE
poetry.2 Anything might turn up in poetry. It might be true or it might be imagination.
But in the courts of law, the truth should prevail.
J ohn B ray ’ s L ife
I
Bray’s forebears included English settlers in the American colonies. Specifically,
a ‘soldier of fortune’ in the Virginia colony, Captain John Smith. According to
legend, Smith’s life was saved by the 12 year old daughter of an Indian chief who
was about to kill him. That daughter was Pocahontas, a princess who was taken to
England and who later married John Rolfe. She left a son whose progeny included
the Jeffersons, who provided Thomas, the third President of the United States of
America, and the Brays of South Australia. Bray’s branch of the family came to
Adelaide in 1837 on board the Hartley, in the form of Thomas Quinton Stow. Proud
of his links to the Native American princess, Bray sometimes joked that he was ‘John
Jefferson Pocahontas’. Although he lacked an acknowledged royal status, in terms of
the South Australian community, he came close. Stow’s eldest son became in 1865
one of South Australia’s first three Queen’s Counsel. In 1875 Stow was elevated to
judge of the colonial Supreme Court.
Another of Bray’s forebears was John Cox Bray, born in Adelaide in 1842. He
entered the Colonial Parliament in 1871 and rose to be Premier of South Australia.
He attended the Federation Conventions in Sydney in 1883 and 1891. The family
became wealthy from land purchases and legal practice. They intermarried with
other famous families of the colony, the Downers and the Bonythons.
A grandson of the former Premier, John Jefferson Bray was born on 16 September
1912. Emerson’s research shows that on that day, the Governor-General of Australia
(Lord Denman) and the Prime Minister (Andrew Fisher) were in Adelaide to celebrate
the commencement of the building of the continental railway line from Port Augusta
to Kalgoorlie. Bray’s family boasted mansions and servants. His home life followed
a punctual and disciplined pattern, with public rectitude and plain English food.
The young J J Bray was enrolled at St Peter’s College in Adelaide. He was confirmed
into the Anglican Church. At school, he was shy and introverted. However, when he
was withdrawn from the boarding school to become a day student, things improved.
He would have finished as dux of the school but for a weakness in Latin. Emerson
suggests that his failure in Latin was because he was concentrating on the erotica of
2
Evangelos Sachperoglou, ‘Introduction’ in C P Cavafy, The Collected Poems:
With Parallel Greek Text (Evangelos Sachperoglou trans, Oxford World’s Classics,
2008) xi.
(2016) 37 Adelaide Law Review539
Catullus, which was, unsurprisingly, not part of the curriculum.3 In a speech on his
return to St Peter’s College in 1978, he complained:
The pressures to conformity were great. I resisted them as silently and unobtrusively as I could and the lessons I learnt in so doing have enabled me to resist
them with much less trouble ever since. I hasten to add that I am not recommending nonconformity for its own sake. If you can conform happily no doubt you
would be foolish not to do so. Some people can’t.4
The gift of a motorbike from his ever hopeful father was disdained and never used.
He also never learned to drive a motor vehicle.
Bray began the study of law at the University of Adelaide in 1929, still only 16 years
of age. He was admitted to practice in 1933. He immediately decided to work towards
a Doctorate of Laws. His thesis, as finally approved, was on ‘Bankruptcy and the
winding up of companies in private international law’.5 He later admitted ruefully
that he had never once been able to put his thesis, for which he was awarded the rare
LLD degree, to practical use.
From the point of view of daily practice, more relevant were Bray’s observations
of leading members of the Adelaide Bar, as they presented their arguments and
contested their cases. Typically, when he won a prize for the thesis, he diverted the
money involved to a student who was in financial hardship. The Great Depression
of the 1930s was a difficult time for many throughout the State. Whilst at the
University, Bray cheered things up by becoming a close friend of Max Harris, writer
and iconoclast. Unsuccessfully, he sought academic appointments in Adelaide,
Melbourne, Sydney and Wellington, New Zealand. His application for appointment
to the Sydney chair of jurisprudence and international law was not successful. The
post went to Julius Stone, who was to prove highly influential, if often controversial.
Bray, like Stone later, took up the presentation of comments on public affairs on
radio.
II
By 1945, Bray’s life had settled into a stable routine. Professional work in his
legal office. Part-time activities as a law lecturer (jurisprudence and Roman law)
and broadcasting. Weekly engagements with a small circle of close friends. They
encouraged him in his literary writings: plays and poems often inspired by stories,
safely divorced from contemporary controversy and anchored in the classics of
ancient Rome and Greece. By the middle of the 20th century, one of the controversies
in the legal profession of South Australia concerned the qualifications of solicitors
3
4
5
John Emerson, John Jefferson Bray — A Vigilant Life (Monash University Publishing,
2015) 21–2.
Ibid 23.
Ibid 34.
540
KIRBY — JOHN JEFFERSON BRAY — A VIGILANT LIFE
and barristers and the possible establishment of a separate Bar (an idea that Bray did
not favour).6
From research amongst court records, Emerson identifies the cases Bray argued,
chiefly before the State Supreme Court and the High Court of Australia. Some of the
cases clearly demanded legal ingenuity (such as overcoming the bias of testa­mentary
law against bequests to ‘illegitimate’ children).7 Bray’s growing engagements as
counsel were recognised by his appointment to silk in March 1957. He won an
important success in the High Court in 1958 in a capital case that drew the distinction between justifiable homicide and excusable homicide: R v Howe.8 Not for the
first or last time, his old adversary was Roderic Chamberlain (known as Joe), by then
the State Crown Solicitor. Bray’s junior in Howe’s case was Len King, later to be his
successor as Chief Justice of South Australia.
Bray, a voracious reader, joined the Libraries Board where he was to serve until
1987 (a remarkable 43 years). In 1960 he was elected Chair of the Adelaide Writers’
Festival Committee. This engagement with the world he loved most had occasionally
to take second place to important appearances as a barrister. His cases included a
number of briefs in a saga described by Emerson as ‘Watershed 1959’. Litigation
arose out of the conviction of an Australian Aboriginal, Rupert Max Stuart, for the
murder of a nine year old girl. Objections were raised to the conduct of the trial
by the Crown Solicitor, Chamberlain. At News Limited, then substantially based in
Adelaide, a young Rupert Murdoch stepped up coverage of the case, critical of the
conviction. After the State appeal court and the High Court declined to intervene,
Murdoch called for a Royal Commission. The government eventually established
one. However, it appointed Chief Justice Mellis Napier and Justice Geoffrey Reed to
conduct the inquiry. Reed had been the trial judge in the Stuart case and Napier had
presided in Stuart’s unsuccessful appeal. Such poor judgment in naming the investigators added to media suspicion and attacks.
Bray unsuccessfully sought leave on several occasions to appear in the inquiry as
Mr Stuart’s lawyer. Following certain conduct of the Commission, Murdoch’s counsel,
the Sydney silk Jack Shand QC, walked out of the inquiry declaring that it would not
give Stuart a ‘fair go’.9 There was by then great urgency in the matter because the
accused was scheduled to be hanged very soon. Murdoch and his newspaper were
accused of attempting to discredit the members of the Supreme Court, sitting as
the Royal Commission. The enterprise descended into farce when Rupert Murdoch
and the editor-in-chief of The News, Rohan Rivett, were challenged by police
who arrived at their offices, without notice, and demanded interviews. Rivett was
eventually charged, along with News Limited, upon nine counts of criminal libel.
In these criminal proceedings, Murdoch declined to answer questions.
6
7
8
9
Ibid 75.
Ibid 81.
(1958) 100 CLR 448 (‘Howe’).
Emerson, above n 3, 123.
(2016) 37 Adelaide Law Review541
Bray, who had sat through the Royal Commission and witnessed the events that led to
the media attacks, picked up Shand’s brief for the media interests. Emerson carefully
takes the reader through the jury trial and the skilful address by Bray in defence.
On all but one count, the jury entered verdicts of not guilty. The remaining count,
on which the jury could not agree, was withdrawn by the Crown 10 weeks later.
Murdoch moved to Sydney to run and grow his media empire. John Bray had won
not only a significant case, but great public esteem for his skilful castigation of both
the government and the ‘prosecut[orial] … immoderation’.10
III
Beware of grandeurs, oh my soul,
and if you cannot overcome your own
ambitions, pursue them, at least, with hesitancy
and circumspection. The more you advance,
the more questioning, more careful you must be — C P Cavafy11
The immediately following chapters in this biography examine, successively, Bray’s
life and loves as a poet and his important cases. The latter included his appearance
in a trial for damages in the High Court: McHale v Watson.12 The claim was founded
on the fact that the plaintiff and defendant were permanent residents of different
states of the Commonwealth.13 The claim in negligence and trespass was based on an
alleged failure of parental supervision of a child. This claim was rejected at trial by
Windeyer J and by a majority on appeal to the Full High Court, sitting in Adelaide.
The argument is reproduced by Emerson to demonstrate the ingenuity of Bray’s
analogical reasoning. The problem of being such a senior and talented advocate was
that Bray was picking up all the hard or impossible cases. Emerson also outlines
Bray’s arguments in the case of Glen Valance,14 based on the alleged mental illness of
the prisoner. The argument failed before the High Court and Valance, the last person
to be hanged in South Australia, went to the gallows on 24 November 1964. Capital
crimes added a special burden for counsel, especially one as sensitive Bray.
In 1965, the Australian Labor Party (ALP) won office in the South Australian State
election under Premier Frank Walsh following decades of Coalition government.
The new government took the initiative of appointing Australia’s first female Supreme
Court judge, Roma Mitchell. Sir Herbert Mayo, one of the two last judges who had
opted for life appointment instead of retiring at 70 with a judicial pension, then
retired. The only ‘lifer’ to remain in office was Sir Mellis Napier, the Chief Justice.
10
11
12
13
14
Ibid 144.
C P Cavafy, ‘The Ides of March’ in C P Cavafy, The Collected Poems: With Parallel
Greek Text (Evangelos Sachperoglou trans, Oxford World’s Classics, 2008) 33.
(1964) 111 CLR 384.
Australian Constitution s 75(iv).
Valance v The Queen (1961) 108 CLR 56.
542
KIRBY — JOHN JEFFERSON BRAY — A VIGILANT LIFE
The State Attorney-General, Donald Dunstan, discovered that Sir Mellis ‘could not
afford to retire’ because of family obligations.15 Dunstan thus began working on the
venerable judge, who had turned 83 in 1965, to remove the impediment. As Emerson
explains, a deal was struck with the government, involving lengthy paid leave after
retirement; the purchase of the retiree’s law library; and the incumbent’s retention
of the office of Lieutenant Governor. Dunstan’s proposal to appoint Bray as Chief
Justice divided the Walsh Cabinet. As he was to tell Bray in a conversation in the
street (chosen for fear of covert interception if carried out in official chambers) the
police commissioner McKinna had given Cabinet an adverse briefing on Bray’s
character. This alleged that Bray had been ‘openly in a homosexual relationship in
1960s Adelaide, when homosexual activity was still illegal’.16
Emerson is careful about the detail of the steps that then followed. Reproduced in
the document, in response to the ‘inanity and … banality of McKinna’s report’,17 is
the full handwritten text of a memorandum in which Bray takes apart the founda­
tions of the allegations against him.18 He admits to hotel drinking with friends
and acquaintances and occasional interaction with lesbians and homosexuals,
including ‘transvestites’.19 But he denied any wrongdoing. And he was critical of the
‘lamentable episode’ that showed ‘either the police keep a dossier on everyone, or
everyone of any degree of prominence, or else that I have been singled out for special
attention’.20 Bray was especially critical of the fact that the allegations ‘seem to
centre around a period during which I was professionally engaged in litigation which
was likely to be displeasing to the government of the day’.21 This was a singularly
shabby episode in the history of South Australia. If only for Emerson’s analysis of it,
this biography is to be welcomed and should be read.
The outcome of the event was that Dunstan persisted with Bray’s appointment. Napier
arranged a court welcome. He sought to have Bray elected to the Adelaide Club.
Bray must have allowed his name to be advanced for that purpose. However, the
nomination to the Club was ‘blackballed’.22 When Napier persisted, Bray eventually
explained his conclusion that ‘the Chief Justice ought not to be a suppliant’.23
Emerson records the bitterness at Bray’s appointment on the part of C
­ hamberlain, who
described Bray as ‘that bachelor’ and his friends as ‘types’.24 Allegedly, ­Chamberlain
had been promised the central seat by the Playford Government before it lost office
in South Australia. When Bray arrived at the special sitting and announced his
15
16
17
18
19
20
21
22
23
24
Emerson, above n 3, 187.
Ibid 190.
Ibid 191.
Ibid 192–6.
Ibid 194.
Ibid 195.
Ibid.
Ibid 198.
Ibid 199.
Ibid.
(2016) 37 Adelaide Law Review543
commission, the words of welcome fell to be given by the most senior puisne judge,
Chamberlain. They were economical in the extreme.25
Bray took the occasion to take aim at his critics:
Necessary restrictions surround [the judicial] office. Not all things which are
permitted to other men are permitted to him. But I believe that the provisions
of the self-denying ordinance which judges in the past have so conscientiously
imposed upon themselves, can reasonably be submitted to review in the light
of the changing nature of the age in which we live, and of the way of life of a
democratic and egalitarian community.26
IV
Emerson then proceeds to portray the 11 years of the brave Chief Justiceship of Bray.
He places it firmly in the ‘Dramatic Dunstan Decade’.27 He is precise and critical
in his description of an unexpected occurrence when Dunstan was joined by Bray
and some friends at an Easter weekend away at Robe. This was imprudent because
the approach of a State election in 1968 afforded special reasons for maintaining
a distance between the executive government and the judiciary. One suspects that
Bray, and possibly also Dunstan, were presented with an arrangement made in their
absence by others who were insensitive to the appearances.
Emerson then provides a selective analysis of some of the 600 judicial opinions that
Bray authored in the 11 years he served as Chief Justice of South Australia. Some
of them took Bray back to a recurring theme that appeared both in his judicial and
extrajudicial writings.28 Especially a dislike of excessive censorship.29 In a number
of cases, and on a wide range of legal topics, Bray’s opinions were approved and cited
by the High Court of Australia.30 Unusually, his dissenting reasoning was picked up,
cited and applied in a restatement of the law by the House of Lords.31
25
26
27
28
29
30
31
[1967] SASR vii. Memorandum of a special sitting of the Full Court held on Friday
10 March 1967 on the occasion of the presentation of Dr J J Bray QC’s commission as
the Honourable Chief Justice of the Supreme Court of South Australia.
Ibid viii.
Emerson, above n 3, 205.
See, eg, J J Bray, ‘The Juristic Basis of the Law Relating to Offences against Public
Morality and Decency: Being the Third Wilfred Fullagar Memorial Lecture’ (1972)
46 Australian Law Journal 100; J J Bray, ‘Censorship’ (1964) 13 Australian Library
Journal 60, 60–70. See also Emerson, above n 3, 215–16.
Simmons v Samuels [1971] 1 SASR 397, 399–400; Romeyko v Samuels [1971] 2 SASR
529, 530.
See M D Kirby, ‘Bray’s Impact on Australia’s Jurisprudence’ in Wilfred Prest (ed),
Portrait of John Bray (Wakefield Press, 1997) 96–7, 100.
Director of Public Prosecutions for Northern Ireland v Lynch [1975] AC 653, 682–3,
695, 724.
544
KIRBY — JOHN JEFFERSON BRAY — A VIGILANT LIFE
Still, for such an experienced, thoughtful, principled and influential Australian judge,
the treatment of his judicial decisions in little more than 20 pages is disappointing.
It is difficult, in a general biography, to make judicial writing sing with the melodies
that attract non-lawyers. Getting excited about the nuances of criminal and civil law
is not the stuff of what the public sees as an interesting life. It would have been
tedious for Emerson, or anyone else, to comb through the 600 judicial opinions in
order to identify recurring themes. However, I am left by this section of the book
with a feeling that more, even much more, needed to be written about Bray the judge.
On his methodology; recurring values; digressions; on his leadership technique;
dissents; and overall legacy. The subtitle of this biography, A Vigilant Life, indicates,
perhaps, why Emerson has not embarked upon that project. It might need a different
author with a different range of interests. Or the same author with more time. I am
sure that there is much more to be told of Bray the judge and Chief Justice than
appears in the few pages of the book.
The closing phase of Bray’s service as Chief Justice coincided with large scale anti­
Vietnam War demonstrations in Adelaide; increased anxiety about individual police
misconduct; and the discovery of a huge number of Special Branch files kept by
police on many citizens, including the Chief Justice.
In the end, following earlier investigations, Acting Justice Michael White of the
Supreme Court of South Australia opened an investigation into the police files in
November 1977. He delivered his report six weeks later. He found over 40 000
indexed cards referencing and cross-referencing about 28 500 individuals who were
fully identified and 11 500 who were referred to with just a first name or description.32 Whilst Acting Justice White found that some records reflected ‘genuine
security value’, many others were ‘scandalously inaccurate’33 and concentrated on
trade unionists, Australian Council of Trade Unions personalities, all ALP candidates
and elected members, with no corresponding files about Liberal Party or Country
Party personalities.34 The focus on members of the Council for Civil Liberties, homo­
sexuals, anti-apartheid demonstrators, women’s libertarian movement members,
divorce law reformers and about half the judges of the Supreme Court suggested an
inappropriate and unacceptable political bias in a Crown agency obliged constitutionally to be politically neutral.
Dunstan was outraged at being misled by the police. For his part, the new police
commissioner, Harold Salisbury, an Englishman, was ‘furious at what he viewed as
political interference in security matters’.35 Salisbury was dismissed from office.
A further Royal Commission under Justice Mitchell was announced in February
1978. Private litigation was commenced on all sides. Rumours were rife. Tension
was high.
32
33
34
35
Emerson, above n 3, 234, citing South Australia, Royal Commission into the Special
Branch Security Records, Interim Report (1977) 7.
Emerson, above n 3, 234.
South Australia, above n 32, 10.
Emerson, above n 3, 237.
(2016) 37 Adelaide Law Review545
It was in these circumstances that Bray received a precautionary medical report
about his vascular and respiratory condition. He gave notice of early retirement and
left office as Chief Justice on 27 October 1978.
V
He … took off his golden garments,
and threw away his royal-purple shoes.
He quickly dressed
in simple garb and fled;
emulating an actor who,
when the performance comes to an end,
changes costume and departs — C P Cavafy36
Emerson endeavours to pull the threads of the life of this unusual man and judge
together in the concluding 15 pages of his biography. He suggests that Justice Roma
Mitchell accepted appointment as the Salisbury Royal Commissioner, in terms of a
letter she later wrote to Bray, because she hoped ‘I could avoid any adverse publicity
for you which would have been monstrously unfair’.37
The biographers of Justice Mitchell declare that ‘[t]here is … a great silence at the
heart of these events, a silence that changing times can now render voluble.’38 As
Margary and Round point out, ‘Roma Mitchell could only have been grieved at
the damage done to such giants of those times by the longstanding prohibition on
homosexual relations’.39 Bray appears to have left office searching for the solitude
and freedom from tension that was his lifelong predilection. Dunstan, who was no
stranger to controversy and strong emotions, also resigned by reason of his ill health
a year following the Salisbury Royal Commission report. He was aged 52 and partly
unfulfilled given the large talents that he had already demonstrated as a reformer.
The last chapter of Emerson’s book explores some aspects of the personal life of
Bray, which I feel sure some friends and admirers of Bray might have preferred had
been left unsaid. One curious point unearthed by Emerson was a letter Bray received
in 1967 from Professor Enid Campbell (1932–2010), the noted legal academic.
She was 20 years younger than Bray. She wrote a delicate note to him that effectively
proposed a personal relationship whilst apologising for any shock that her approach
might cause. She stated that she had a ‘hankering to know you better … you have
made an impact on me and in so doing have breached defences which I had imagined
36
37
38
39
C P Cavafy, ‘King Dimitrios’ in George Savidis (ed), Collected Poems (Edmund
Keeley and Philip Sherrard trans, Chatto and Windus, 1990) 18.
Emerson, above n 3, 244.
Susan Magary and Kerrie Round, Roma the First: A Biography of Dame Roma
Mitchell (Wakefield Press, 2007) 219.
Ibid.
546
KIRBY — JOHN JEFFERSON BRAY — A VIGILANT LIFE
to be impregnable’.40 According to Emerson, the correspondents exchanged letters
for years. However, Bray’s defences to marriage were never to be overcome.
There were other private letters that have turned up which Emerson reveals. In one of
them, the writer and political commentator Christopher Pearson, who later claimed
to have been Bray’s lover,41 wrote frankly about a relationship between Bray and a
male ‘Scottish admirer’.42 That letter ends recording the declaration by Bray that
‘romantic sexual attachments are no part of my plan of life’,43 whilst acknowledging
enjoyment of the company ‘in and out of bed’.44
Bray objected to being classified as a ‘gay’ poet when an invitation to that rank
was offered to him. Emerson draws a distinction between occasional participation in
homosexual activity and identification as ‘homosexual’ or ‘gay’. Bray’s life and times
would have left him with a disinclination to adopt a label for himself. The discovery
that, both before and after he was Chief Justice, he was the subject of intensive police
surveillance in relation to his friends, as well as his private and possibly sexual life,
troubled him deeply. The production in the book of Bray’s handwritten response to
the police surveillance files showed to him by Dunstan in February 1967 clearly
demonstrates the extreme distaste and horror he felt for the invasions of his privacy
and personal dignity by the police.
C onclusion
Emerson’s book portrays Australian society, and Adelaide’s in particular, at a time
of serious oppression and harassment of sexual minorities. The indignities have not
yet been eliminated; but things have greatly improved. This book is an antidote to
the assertions of those who abhor the ‘gay agenda’ and who yearn for the ‘good old
days’. In Australia, those days were not so good for Aboriginals, people of colour,
women, people with disabilities and gays. Emerson’s biography of John Bray demonstrates powerfully that the old days were not so good for a brilliant, influential and
gifted lawyer cum poet who served as Chief Justice of South Australia in a time of
much change and challenge.
40
41
42
43
44
Emerson, above n 3, 248.
Jane Cadzow, ‘The Wayward Ways of Christopher Pearson’, Good Weekend (Victoria),
30 March 1996, 27–31.
Emerson, above n 3, 246.
Ibid 247.
Ibid, quoting letter to ‘Ian M’.
The Hon John Doyle AC QC
THE ROLE OF THE SOLICITOR-GENERAL
NEGOTIATING LAW, POLITICS AND THE
PUBLIC INTEREST
BY GABRIELLE APPLEBY
HART PUBLISHING, 2016
XXVIII + 335 PP
ISBN 978 1 84946 712 4
A
ssociate Professor Appleby writes:
ittle is known of the workings of the office of the Solicitor-General and the
L
views of officeholders concerning the role. Many of those who have taken up
the office have admitted to knowing little to nothing about it.1
The footnote to this passage identifies the ingenuous culprits.2 I am one of them.
If this excellent book had been available at the time I was appointed, a number of
things that only gradually became clear to me would have been clear from the outset.
When I was appointed Solicitor-General in 1986 there was not much material
available about the office of the Solicitor-General. As Appleby notes, such material
as there was, provided ‘a generally uncritical description of the office … rather than
offering any robust analysis of it’.3 The role of the Solicitor-General in Australia had
gone ‘largely unstudied’.4
In this book Appleby remedies that situation. In part, she follows what might be
called the traditional method. She covers the statute law, relevant case law, legal texts
(such as they are), journals, speeches and other papers. In this respect the book is
amply footnoted, and impressively thorough. There seems to be nothing relevant and
useful that has been omitted.
But there is much more to this book than this. It is not just a thorough collection
of material from traditional legal resources. Appleby interviewed some 45 people,
1
2
3
4
Gabrielle Appleby, The Role of the Solicitor-General Negotiating Law, Politics and
the Public Interest (Hart Publishing, 2016) 148.
Ibid 148 n 6.
Ibid 8.
Ibid 7–8.
548
DOYLE — THE ROLE OF THE SOLICITOR-GENERAL
NEGOTIATING LAW, POLITICS AND THE PUBLIC INTEREST
most of whom were Attorneys-General and Solicitors-General, present and past, as
well as some judges and Crown Solicitors. The interviewees were drawn from all
Australian jurisdictions. The list of those interviewed in Appendix B shows that they
cover a wide range of experience and background.5 Based on my experience as the
Solicitor-General for South Australia from 1986–95, it is apparent that Appleby has
obtained the opinion and experience of ‘key players’.6
The interviews, and the use made of them by Appleby, enrich and enliven the text,
and stimulate the reader’s interest. Not surprisingly, the book does not contain a
transcript of the interviews. The material drawn from the interviews is found in the
text and in the footnotes. Again, based on my own experience, I can vouch for the
thoroughness of this aspect of her work. The material drawn from the interviews
brings to life her analysis of the role and work of Solicitors-General.
Appleby has set out to do more than provide a real-life description of the work of
Solicitors-General. She has also provided a history of the development of the office
of the Solicitor-General in Australia.7 But the significant additional feature is that, as
she says: ‘The study of the Solicitor-General undertaken in this book is underpinned
by a broad objective: to seek a better understanding of the “working”, or “complete”,
form of constitutional systems’.8
As she points out, there is a tendency in the study of constitutional law to focus
almost exclusively on the constitutional text, if there is one, or upon the workings of
and relationship between the legislature, executive and judiciary.9 She begins with
what at first sight seems a bold proposition: ‘The central character of this book is one
of the major actors in the contemporary Australian constitutional order: the Solicitor-­
General.’10
This proposition rests on the concept of the Solicitor-General as one of the
‘government lawyers’ whose advice ‘assists in keeping governments within the law,
and also facilitates the adaptation of legal frameworks in a climate of evolving social
needs and political ideas.’11
She adds: ‘Government lawyers are key components in achieving constitutionalism.’12 And: ‘It is the rule of law and the striving for constitutionalism that serves
5
6
7
8
9
10
11
12
Ibid 313.
For a list of those interviewed: ibid.
Ibid ch 3.
Ibid 3.
Ibid.
Ibid 6.
Ibid.
Ibid.
(2016) 37 Adelaide Law Review549
to explain and provide the rationale for the constitutional role of government legal
officers, including in Australia the primary legal officer, the Solicitor-General’.13
She argues then that the Solicitor-General is in a special position:
While the function of day-to-day legal adviser to the government is filled by a
vast number of legal professionals both within and outside government, at the
apex of these sits the Solicitor-General. Subject only to a future contrary judicial
ruling, the office provides the final word on significant legal questions within the
Executive.14
In her concluding remarks Appleby says:
What this book has demonstrated is that the non-political grounding of ­Australia’s
Solicitors-General has in many respects removed the office from the immediate
tensions between the public interest, the law and politics that face a Solicitor-­
General holding a ministerial post. However, the office’s continuing relationship
with democratic government means that these tensions, appropriately, remain
and must be negotiated by individual officeholders.15
That is a brief outline of her thesis: the Solicitor-General is at the apex of the lawyers
who provide, to the executive government, legal advice that supports constitutionalism and the rule of law.16 Thus, there is a constitutional and political aspect to the
office, although it is an office independent of the executive government.
Appleby considers and analyses the role of the Solicitor-General as principal advocate
for and principal adviser to the executive government.17 It is in this aspect that the
value of her research shines through. She has collected a valuable contemporary
account of the work and perceptions of Solicitors-General and others. She relates this
material to the role of the Solicitor-General in contemporary times.
So what stands out for me is the combination of historical record, legal details and
the experience and perceptions of Solicitors-General, coupled with a careful con­
sideration of the material drawn from the interviews.
The task that Appleby has undertaken is an ambitious one. It is not easy to integrate
all of this material. But she has done so. She begins with a historical and comparative
study of the office, examining in particular the role of the English law officers,18 and
13
14
15
16
17
18
Ibid 7.
Ibid.
Ibid 294.
Ibid 7.
Ibid 98–100, 106–11, 147–211, 212–54.
Ibid 18–43.
DOYLE — THE ROLE OF THE SOLICITOR-GENERAL
NEGOTIATING LAW, POLITICS AND THE PUBLIC INTEREST
550
in less detail those of the US19 and New Zealand.20 This is followed by a history of
the evolution of the Australian Solicitor-General.21 She analyses both the technical
details of the office, as well as the development of the Solicitor-General as a ‘constitutional specialist’.22 She examines the nuts and bolts of the office — appointment,
tenure, remuneration and removal.23 She studies the role of the Solicitor-General both
as advocate in court for the executive government24 and as its principal adviser.25
Her analysis is based firmly on her opening proposition — the role of the Solicitor-­
General is at the apex of the ranks of government legal advisers.26
In relation to the Solicitor-General as adviser,27 she identifies three perspectives for
analysis:
First, some participants believed the function existed to ‘check’ government
from over-extending its powers … Secondly, the function existed to assist the
democratically elected government achieve its policy agenda with certainty and
security. Thirdly, it facilitated the smooth operation of the separation of powers
in times of conflict between institutions …28
She identifies four assumptions necessary for the advisory function of the office of
the Solicitor-General to be able to advance the rule of law.29 First, that the Solicitor-­
General operates as an adviser to the executive; the executive being the client of
the officeholder.30 The second assumption is that the Solicitor-General’s advice is
respected as the final word on a legal issue by government, and the government will
follow the advice given.31 The third assumption is that the government will seek
the advice of the Solicitor-General when appropriate,32 and the fourth is that the
Solicitor-­General provides independent advice, not the advice that is wanted.33
These perspectives and assumptions are carefully analysed in the material drawn
from the interviews.
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
Ibid 48–51.
Ibid 51–3.
Ibid 57–92.
Ibid 7.
Ibid 92–5.
Ibid 212–54.
Ibid 147–212.
Ibid 7.
Ibid ch 5.
Ibid 151.
Ibid 164.
Ibid.
Ibid 171.
Ibid 177.
Ibid 192.
(2016) 37 Adelaide Law Review551
In chapter 6, Appleby analyses the role of the Solicitor-General as an advocate.34
This part of the book is also enriched and enlivened by the interviews that Appleby
conducted. As she notes, ‘subtle distinctions’ appeared in the views of the persons
she interviewed,35 demonstrating that the ‘true picture’ of the Solicitor-General’s
function as advocate (if there is such a thing) is more complex than it might appear.36
I make this qualification because it may be that there are differences of practice from
one jurisdiction to another. This is an interesting and intriguing chapter of the book,37
as one reflects on the differences of approach that emerge.
In chapter 7, she analyses the vital concept of independence, a concept that is central
to all of her reasoning.38 She says that ‘[i]t is independence that makes all legal advisers
relevant; but in the context of the Solicitor-General, as the “final” legal adviser to
government, the office’s independence is a dimension of added i­mportance.’39
This concept also is examined in detail drawing on the interviews. Earlier, I referred
to the value of the historical material found in this book. This material will provide
a point of reference in the future for later analyses of the work of the Solicitor-­
General and reflections on the functions of that office. But, as I have already said,
what struck me most forcefully was the value of her analysis of the application of
the principles that she identifies, in the context of contemporary issues and events
involving Solicitors-­General. She explores a number of issues that can only be
understood against the background of the principles and practices that she presents.
So, for example, she explores the practical application of the concept of the Solicitor-­
General as the provider to the executive government of the ‘final word’ on legal
issues.40 She studies the assumptions that underline this role; that is, the assumption
that the executive government will seek advice from the Solicitor-General when
appropriate,41 will not seek advice elsewhere, and will act on that advice.42
Reflecting on my time as Solicitor-General and my experience, this is a book of
outstanding utility and quality. Appleby has combined research and analysis in a
practical, illuminating and interesting manner. Her integration of the history and
experience of the office of the Solicitor-General into the constitutional setting is
illuminating, and gives rise to numerous practical and theoretical issues, with which
she grapples. There is plenty of material to stimulate discussion about the office and
functions of the Solicitor-General.
34
35
36
37
38
39
40
41
42
Ibid ch 6.
Ibid 251.
Ibid.
Ibid ch 6.
Ibid ch 7.
Ibid 254.
Ibid 7.
Ibid 177.
Ibid 171.
Jordan Wei Peng Teng* and Rebecca Mahony**
ZABURONI v THE QUEEN
(2016) 256 CLR 482
I I ntroduction
I
n Zaburoni v The Queen,1 the High Court decided what it means to ‘intend’ to
transmit a serious infectious disease to another person under s 317(b) of the
Criminal Code Act 1899 (Qld) (‘the Code’). Godfrey Zaburoni was convicted in
the District Court of Queensland of intentionally transmitting the human immuno­
deficiency virus (‘HIV’) to his former partner.
This case note analyses the High Court’s approach in determining and interpreting the meaning of intent under the common law. Specifically, it will examine the
distinction between intention and purpose, motive or desire, and the significance of
the concept of knowledge of a virtually certain consequence under the criminal law.
This case note will also explore the tendency of the triers of fact to conflate intention
with foresight of a risk of harm, and briefly examine the broader context of the
treatment of HIV positive people under Australian law.
II B ackground
Every Australian state and territory criminalises the transmission of HIV in some
circumstances,2 and some jurisdictions also criminalise reckless HIV exposure.3
Until it was abolished in 2015, Australia’s most controversial transmission law was
s 19A of the Crimes Act 1958 (Vic), which created the offence of intentionally trans­
mitting a ‘serious bodily disease’, carrying a maximum sentence of life imprison­ment.
‘Serious bodily disease’ was defined exclusively to mean HIV, making s 19A the
last HIV-specific transmission offence still operating in Australia. Such offences are
heavily criticised on the grounds that they unnecessarily single out and stigmatise
HIV-positive people for engaging in conduct that should fall under the remit of more
*
** 1
2
3
Student Editor, Adelaide Law Review, University of Adelaide.
Student Editor, Adelaide Law Review, University of Adelaide.
(2016) 256 CLR 482 (‘Zaburoni’).
Crimes Act 1900 (ACT) ss 19, 20, 25; Crimes Act 1900 (NSW) ss 33, 35, 54; Criminal
Code Act (NT) ss 174E, 177, 181, 186; Criminal Code 1899 (Qld) ss 320, 317(b), 328,
329; Criminal Law Consolidation Act 1935 (SA) s 23; Criminal Code Act 1924 (Tas)
ss 170, 172; Crimes Act 1958 (Vic) s 16; Criminal Code 1913 (WA) ss 297, 320.
Criminal Law Consolidation Act 1935 (SA) ss 29(1)–(2); Crimes Act 1958 (Vic) ss 22,
23; Criminal Code 1913 (WA) s 294(8).
554
TENG AND MAHONY — ZABURONI v THE QUEEN
general criminal offences such as causing grievous bodily harm.4 Section 19A was
abolished in Victoria in 2015.
Today, the criminalisation of the transmission of HIV is done so by general offences
that criminalise the reckless or intentional transmission of disease or causing harm
offences, depending on the jurisdiction. The scope, penalties and defences attached
to the law vary according to jurisdiction. Most jurisdictions also have public health
legislation that requires HIV-positive people to practise safe sex or disclose their
HIV status.5
Both the intentional and reckless transmission of HIV are criminalised under the
Code. At trial the appellant was convicted under s 317 — ‘[a]cts intended to cause
grievous bodily harm and other malicious acts’. Subsection (b) creates the offence
of transmitting a serious disease ‘with intent’, and HIV falls within the definition
of ‘serious disease’.6 Section 317(b) carries a maximum sentence of life imprison­
ment. The appellant was also charged in the alternative with, and pleaded guilty
to, unlawfully causing grievous bodily harm to the complainant under s 320, for
which recklessness is a sufficient fault element. Because in pleading guilty to the
s 320 offence the appellant made admissions of his guilt of that offence, the sole
issue at trial was whether the appellant had actually intended to transmit HIV to
the complainant.
III F acts
The appellant was diagnosed with HIV in 1998 while touring Australia as an acrobat.
At the time, doctors in Adelaide and Perth explained his condition to him and that
he needed to use condoms during intercourse to avoid transmitting the disease.
The appellant never began antiretroviral therapy, nor did he monitor his condition.
He met the complainant on 31 of December 2006. When asked, he told her that he
had tested negative for HIV. After an initial period of protected sex, the couple began
to have unprotected sex two to three times per week. The appellant had told the
complainant that sex was more pleasurable for him without condoms.
During the couple’s relationship the complainant fell ill with what was diagnosed
as glandular fever, and asked the appellant again if he had HIV. He again denied
it. The complainant continued to suffer bouts of illness throughout their relationship, and the relationship ended in September 2008. In August 2009 the complainant
4
5
6
See, eg, ‘International Guidelines on HIV/AIDS and Human Rights’ (Guidelines,
UNAIDS and the Office of the United Nations Commissioner for Human Rights,
2006) Guideline 4.
Public Health Regulation 2000 (ACT) reg 21; Public Health Act 2010 (NSW) s 79;
Public Health Act 2005 (Qld) s 143; Public and Environmental Health Act 1987 (SA)
s 37; Public Health Act 1997 (Tas) s 51; Public Health and Wellbeing Act 2008 (Vic)
s 111; Health Act 1911 (WA) s 264.
Criminal Code Act 1899 (Qld) s 1.
(2016) 37 Adelaide Law Review555
received a tentative HIV diagnosis. The appellant again denied having HIV, before
later admitting that he was HIV-positive. He claimed, however, to have only known of
his diagnosis for six months and believed he had been infected only two years earlier.
He said he had not told her of his diagnosis because he had not wanted to make her
unhappy, and he ‘didn’t want to ruin her life’.7 The complainant’s diagnosis was
confirmed on 2 September 2009.
In May 2010 the appellant was questioned and lied to police, stating that he and the
complainant had had unprotected sex on possibly two occasions, and that he had
been diagnosed in 1998 but had not been told that he must inform his sexual partners
of his HIV status. He also claimed that he had tested negative for HIV in April of
2005 in a Department of Immigration test, but later admitted that he had submitted
a friend’s blood sample.
The appellant was convicted under s 317(b) in the District Court of Queensland
and sentenced to nine and a half years’ imprisonment. His appeal was dismissed
by the Supreme Court of Queensland (Court of Appeal), where Gotterson and
Morrison JJA found it was open to the jury to be satisfied beyond reasonable doubt
that the appellant intended to transmit HIV to the complainant. Justice Applegarth
dissented, inferring from the evidence only that the appellant had been reckless.
IV D ecision
The High Court had to decide whether it could be inferred from the evidence admitted
at trial that the appellant had intended to transmit HIV to the complainant beyond
reasonable doubt. The appellant argued that the trial judge and jury, and Gotterson
and Morrison JJA at the Court of Appeal, had conflated recklessness with intent.8
The appellant further argued that the conclusion of the majority of the Court of
Appeal that it was open to the jury at trial to make that finding was unreasonable and
contrary to the evidence.9
The High Court considered two main issues: the meaning of ‘intent’ under s 317(b)
(and thus whether the Court of Appeal had conflated the meanings of ‘intention’
and ‘recklessness’), and the inferences open to be drawn from the facts of the case
regarding the appellant’s intent. All three judgments (Kiefel, Bell and Keane JJ;
Gageler J; Nettle J) agreed that it could not be inferred that the appellant intended to
transmit HIV to the complainant and concluded that the appeal should be allowed,
but differed in their reasoning as to the meaning of intent. The Court quashed the
appellant’s conviction, and downgraded it to a conviction under s 320 for recklessly
7
8
9
Zaburoni (2016) 256 CLR 482, 493 [28].
Ibid 496 [39].
Ibid 487 [4].
556
TENG AND MAHONY — ZABURONI v THE QUEEN
causing grievous bodily harm. The matter was then remitted to the District Court for
sentencing.10
A The Meaning of ‘Intent’
The majority, Kiefel, Bell and Keane JJ, provided the most detailed analysis. Their
Honours distinguished the standard of intent where ‘proof of the intention to produce
a particular result is made an element of liability for an offence under the Code’ from
the standard of intent forming the mental element of common law murder.11 This
was the reasoning applied in R v Crabbe,12 on which McPherson JA had relied on
his Honour’s judgment in R v Reid,13 another s 317(b) HIV transmission case. Their
Honours confirmed Keane JA’s statement in that case that ‘common law concepts of
foreseeability, likelihood and probability’ are irrelevant to proof of intention under
s 317(b),14 stating that ‘foresight of risk of harm is distinct in law from the intention
to produce that harm’.15
Instead, their Honours approved of Connolly J’s explanation of ‘intent’ in R v Willmot
(No 2),16 where ‘the directing of the mind, having a purpose or design’ was held to
be key.17 Their Honours’ crucial statement was that ‘proof of the s 317(b) offence
required the prosecution to establish beyond reasonable doubt that … he had as a
purpose the transmission of HIV to her’.18 Importantly, ‘knowledge or foresight
of result, whether possible, probable or certain, is not a substitute in law for proof
of a specific intent under the Code’.19 Even if an outcome were ‘virtually certain’,
it must still be shown that the accused meant to produce that result.20 The High
Court clarified that foresight of a virtually certain consequence is of mere ‘evidential
significance’21 — a defendant’s awareness of a virtually certain consequence of their
action is compelling evidence from which intention to bring that result about can be
inferred, but it is not itself the test for intention.
10
11
12
13
14
15
16
17
18
19
20
21
Mr Zaburoni was eventually given a five-year suspended sentence: Andrew Kos,
‘Godfrey Zaburoni, who Infected Partner with HIV, Walks Free from Jail’, Australian
Broadcasting Corporation (online), 3 June 2016 <http://www.abc.net.au/news/201606-03/godfrey-zaburoni-suspended-sentence-gbh/7474160>.
Zaburoni (2016) 256 CLR 482, 490 [14].
(1985) 156 CLR 464.
[2007] 1 Qd R 64, 72 [13] (‘Reid’).
Ibid 83 [67].
Zaburoni (2016) 256 CLR 482, 488–9 [10].
[1985] 2 Qd R 413.
Ibid 418.
Zaburoni (2016) 256 CLR 482, 491 [19].
Ibid 490 [14].
Ibid 490 [15].
Ibid.
(2016) 37 Adelaide Law Review557
Justice Gageler similarly stated that ‘the intention to be proved was an actual
subjective intention to achieve that result as distinct from awareness of the probable
consequence of his actions.’22
However, Nettle J differed from the plurality on the issue of virtual certainty: ‘where
it is proved that an accused foresaw that his or her actions would have an inevitable or
certain consequence, it logically follows that the accused intended to bring about that
consequence.’23 According to this analysis, had the appellant known that by having
unprotected intercourse with the complainant over the 21-month period of their
relation­ship she was certain to contract HIV, it could be inferred from his actions that
he intended to transmit HIV to her. It appears that his Honour impliedly adopted the
English concept of oblique intention.24 This is further discussed below.
B Inferences Drawn from the Evidence
Each judgment considered when an inference could be drawn from the evidence of
the appellant’s conduct admitted at trial that he had intended to transmit HIV to the
complainant beyond reasonable doubt. The Court was unanimous in finding that it
could not, but the judgments differed in their reasoning.
At the Court of Appeal, Gotterson and Morrison JJA found that a jury could
infer from the frequency of unprotected intercourse over a protracted period that
the appellant had the requisite intent — Gotterson JA commented that ‘such acts
repeated frequently with the same partner over many months, defied description as
mere recklessness as to the risk of transmission’.25 The inference was supported by
the lies he told the complainant and police.
The High Court construed the facts differently. The judgments of Kiefel, Bell and
Keane JJ and Gageler J both found the crux of the case to be in the inference to be
drawn from the frequency and protracted period of the appellant’s conduct, with his
lies being a secondary issue.
22
23
24
25
Ibid 501 [55].
Ibid 504 [66]. The Criminal Code 1995 (Cth) s 5.2(3) adopts a similar definition of
intent: ‘A person has intention with respect to a result if he or she means to bring it
about or is aware that it will occur in the ordinary course of events.’
See generally, Nicola Lacey, ‘Clear Concept of Intention: Elusive or Illusory?’
(1993) 56 Modern Law Review 621; Glanville Williams, ‘Oblique Intention’ (1987)
46 Cambridge Law Journal 417; Jeremy Horder, ‘Intention in the Criminal Law —
A Rejoinder’ (1995) 58 Modern Law Review 678; Simon Bronitt and Bernadette
McSherry, Principles of Criminal Law (Lawbook, 2nd ed, 2005) 175–6; Itzhak Kugler,
Direct and Oblique Intention in the Criminal Law: An Inquiry into Degrees of BlameWorthiness (Ashgate, 2002); Sir Anthony Mason, ‘Intention in the Law of Murder’
in Ngaire Naffine, Rosemary Owens and John Williams (eds), Intention in Law and
Philosophy (Ashgate, 2001) 107; Alan Norrie, ‘Oblique Intention and Legal Politics’
[1989] Criminal Law Review 793.
R v Zaburoni (2014) 239 A Crim R 505, 514–15 [43].
558
TENG AND MAHONY — ZABURONI v THE QUEEN
The majority took particular issue with Gotterson JA’s ‘mere recklessness’ comment,
reiterating that awareness of a risk ‘does not, without more, support the inference that
the person intended to produce that harm’.26 Their Honours then found that another
rational inference could be found on this evidence: the appellant’s actions ‘enhanced
his sexual pleasure’,27 and he was merely reckless to that risk of HIV transmission.28
Critically, the existence of that competing inference was held to ‘lessen the force of
reasoning’ behind the conclusion that the appellant had intended to transmit HIV,
so his intention could not be inferred beyond reasonable doubt.29
On the appellant’s lies, their Honours found the rational inference was that rather
than constituting evidence of the appellant’s consciousness of guilt, they were told
merely to ‘procure and maintain the complainant’s consent to unprotected sexual
intercourse’,30 and did not in themselves found further inference that he intended to
transmit HIV.
Justice Gageler’s reasoning was very similar. His Honour also found that the appellant’s lies did not in themselves indicate the requisite intention. They ‘demonstrated
consciousness of wrongdoing, but not necessarily consciousness of guilt of a crime of
specific intent’.31 On the issue of the frequency and protracted period of unprotected
intercourse, his Honour agreed with Applegarth JA in the Court of Appeal decision,
who stated that the evidence ‘supported an inference of intent’,32 but also left open
the inference that the appellant was merely acting ‘selfishly for his own gratification, being reckless as to whether or not the complainant might become infected’.33
Because that second hypothesis could not be excluded beyond reasonable doubt, the
appellant could not be found to have intended to transmit HIV to the complainant.
Finally, following his Honour’s differing conception of intent, Nettle J stated that the
evidence did not give rise to competing inferences, but to one inference which could
be found to establish intent if the appellant foresaw the ‘inevitability or certainty’
that he would transmit HIV to the appellant.34 However, his Honour decided that the
inference, ‘even taken at its highest, was insufficient to establish intent’35 because
the appellant neither foresaw such certainty, nor was the likelihood actually certain.36
26
27
28
29
30
31
32
33
34
35
36
Zaburoni (2016) 256 CLR 482, 497 [42].
Ibid 497–8 [43].
Ibid.
Ibid 498 [44].
Ibid 499 [47].
Ibid 502 [58].
R v Zaburoni (2014) 329 A Crim R 505, 515 [46].
Zaburoni (2016) 256 CLR 482, 503 [63].
Ibid 504 [67].
Ibid 505 [72].
Ibid 504 [68]–[69].
(2016) 37 Adelaide Law Review559
Instead, all that could be inferred from the appellant’s conduct was his recklessness
in transmitting HIV.37
Evidently from the appeal proceedings, even though the parties had agreed that the
prosecution was required to provide proof of actual intent,38 there were doubts as
to what the precise meaning of intention is under the common law, or whether the
virtual certainty of a consequence could itself demonstrate the intent of the accused.
V C omment
The common law has long grappled with the definition of intention in the criminal
law, because usually the analysis of whether intention exists will be intuitively obvious
and ‘[t]he general legal opinion is that “intention” cannot be satisfactorily defined
and does not need a definition, since everybody knows what it means.’39 However, in
a case where it is difficult to surmise whether there was intention, further explanation
is necessary.
Queensland’s criminal law has been codified, but the concept of specific intention
is left to the common law.40 Under the common law, the meaning of intention is
somewhat elusive, as a result of its meaning being left to the juries and triers of fact
to decide,41 and judges are to avoid elaborating or paraphrasing what intent means
to the jury.42 This has resulted in decisions conflating intention with recklessness.43
To explain simply, recklessness is a state of mind of an accused who is aware of a
risk that a particular consequence is a likely result of his or her conduct.44 Therefore,
awareness of a risk of harm is the essence of recklessness.
In Zaburoni, the Court expanded upon the meaning of intention in the negative,
clarifying what intention is not, rather than expanding on what it is.45
Further complicating this issue, the High Court’s analysis of intent directly contradicts legislated definitions of the word, such as under the Criminal Code Act 1995
(Cth), which includes the foresight of a risk of harm in its definition. Section 5.2(3)
37
38
39
40
41
42
43
44
45
Ibid 504–5 [69].
Ibid 488 [7].
Glanville Llewelyn Williams, Textbook of Criminal Law (Stevens, 1st ed, 1978) 74.
See also, Thalia Anthony et al, Waller & Williams Criminal Law (LexisNexis, 12th ed,
2013).
Zaburoni (2016) 256 CLR 482, 488 [7]–[12].
R v Moloney [1985] AC 905, 926 (Lord Bridge).
Ibid.
La Fontaine v The Queen (1976) 126 CLR 62; R v Crabbe (1985) 156 CLR 464;
Buoghey v The Queen (1986) 161 CLR 10; R v Demirian [1989] VR 97.
Bronitt and McSherry, above n 24, 179.
(2016) 256 CLR 482, 499–503.
560
TENG AND MAHONY — ZABURONI v THE QUEEN
provides that ‘[a] person has intention with respect to a result if he or she means
to bring it about or is aware that it will occur in the ordinary course of events’.46
This definition effectively equates recklessness with intention; clearly then the
common law meaning of intention is narrower than the Commonwealth Code’s
meaning of intention, and this difference suggests that the common law may be at
odds with legislative policy.
This raises an inconsistency between the Commonwealth Code, and the states and
territories that have retained their common law criminal jurisdictions. An act that is
obviously reckless, such as Mr Zaburoni’s in this case, potentially resulting in greater
culpability in one jurisdiction compared to another, is worrying because it is contrary
to the principle of fair labelling.47
Nevertheless, the decision does provide a guideline in determining what intention
means. It can now be safely stated that intention is not to be equated with foresight
of a risk of harm under the common law concept of specific intention. However,
in further analysing this judgment it is appropriate to first consider their Honours’
observation on the distinction between intention and purpose, desire and motive.
A Intention, Purpose, Motive and Desire
As Lord Hailsham explained, it is intention ‘which converts an actus reus into a
criminal act’.48 In the majority’s reasoning, it is implied that purpose and object are
the closest synonyms to intention. For instance, their Honours reference Brennan J’s
statement in He Kaw Teh v The Queen that intention ‘connotes a decision to bring
about a situation so far as it is possible to do so — bring about an act of a particular
kind or a particular result’.49 Purpose, therefore, appears to be synonymous with
intention. Motive, however, describes the reason for the formation of an accused’s
intention.50 Intention is not synonymous with motive, but motive might be relevant in
attributing intention to an accused, for example as circumstantial evidence.51 Motive
is of course relevant in the sentencing of an offender if malice exists.52
46
47
48
49
50
51
52
Criminal Code Act 1995 (Cth) s 5.2(3).
See, eg, Andrew Ashworth, ‘The Elasticity of Mens Rea’ in C F H Tapper (ed), Crime
Proof and Punishment: Essays in Memory of Sir Rupert Cross (Butterworths, 1981)
45, 53–6; James Chalmers and Fiona Leverick, ‘Fair Labelling in Criminal Law’
(2008) 71 Modern Law Review 217; Barry Mitchell, ‘Multiple Wrongdoing and
Offence Structure: A Plea for Consistency and Fair Labelling’ (2001) 64 Modern Law
Review 395, 398–400; Glanville Williams, ‘Convictions and Fair Labelling’ (1983) 42
Cambridge Law Journal 85.
Hyam v DPP [1975] AC 55, 73.
He Kaw Teh v The Queen (1985) 157 CLR 523, 569.
See, eg, Bronitt and McSherry, above n 24, 175; M N Howard, Peter Crane and Daniel
A Hochberg, Phipson on Evidence (Sweet & Maxwell, 14th ed, 1990) 356–7 [16]–[19];
De Gruchy v The Queen (2002) 211 CLR 85.
Bronitt and McSherry, above n 24, 175.
Ibid.
(2016) 37 Adelaide Law Review561
Additionally, the majority correctly notes that desire is not involved in the proof of
intention.53 A person may ‘intend a particular result without desiring that result’.54
As a matter of language, desire and intent are not equivalents. A person may desire
an outcome, without intending to bring it about.55 Similarly, a person may intend an
outcome that he or she does not desire.56 Furthermore, the Courts in R v Crabbe57 and
Moloney v DPP58 held that intention is ‘distinct from desire’.59 Intention is meant as
a ‘decision to bring about the commission of the offence … no matter whether the
accused desired that consequence of his act or not’.60
However, Brennan J in He Kaw Teh v The Queen supported the view that intention
should be defined in terms of desire.61 Professor Glanville Williams also advocates the
approach that intention and desire be equated.62 Simster et al share a similar approach:
The key ingredient of any account of intention is … that the defendant acts
because of her desire or belief. Without it, there cannot be intention. If [the
accused] foresees an outcome, and indeed welcomes it, but that outcome nonetheless plays no part in her decision to act, then she does not intend it.63
However, it is the opinion of the authors of this case note that intention is distinct from
desire, as explained by their Honours: ‘Illustrations of the distinction between desire
and intention commonly raise a false issue’.64 Moreover, their Honours referred to
Professor Gillies’ example in explaining intention:
the criminal law does not connote desire by the example of the accused who
sets fire to his enemy’s house so as to spite the enemy even though he regrets
the destruction of the house because it is a masterpiece of period architecture.
Accepting the accused’s refined sense of regret, it hardly seems apt to say that in
setting fire to the house he did not desire to destroy it. A direction that a person
may do something, fully intending to do it although the person does not desire to
do it, may often be confusing.65
53
54
55
56
57
58
59
60
61
62
63
64
65
Zaburoni (2016) 256 CLR 482, 491 [18].
Ibid, citing A P Simester and G R Sullivan, Simester and Sullivan’s Criminal Law:
Theory and Doctrine (Hart Publishing, 3rd ed, 2007) 123.
Ibid.
Ibid.
(1985) 156 CLR 464, 467–70.
[1985] AC 905, 929.
Ibid.
R v Mohan [1976] QB 1, 11; see also Hyam v DPP [1975] AC 55, 74.
He Kaw Teh v The Queen (1985) 157 CLR 523, 569.
Williams, ‘Oblique Intention’, above n 24, 423.
Simester and Sullivan, above n 54, 123.
Zaburoni (2016) 256 CLR 482, 491 [18].
Ibid (citations omitted).
562
TENG AND MAHONY — ZABURONI v THE QUEEN
In a criminal case, the onus is placed on the prosecution to prove that the accused’s
purpose was to bring about the result or consequences of the conduct.66 If the
accused has this purpose, he or she acts intentionally even where, to that person’s
knowledge, the chance of him or her causing the result are small.67 If an accused
does not have this purpose, he or she does not act intentionally, even though to his
or her knowledge the chances of causing the result are high. However, recklessness
may still be made out.
Returning to the case at hand, the majority explained that the offence requires that
the offender engage in unprotected sexual intercourse with the purpose or object
of transmitting HIV to the complainant.68 The fact that the accused may have had
multiple purposes or objects in engaging in unprotected sexual intercourse, most
relevantly that he preferred it as it gave him sexual pleasure, is not inconsistent
with proof that he had the requisite intention of transmitting HIV.69 Instead, it is the
absence of this latter intention that precluded a conviction under s 317(b).
B Inferring Intention: The Evidential Significance of Virtual Certainty
In the past there has been some uncertainty as to whether the foresight of virtual
certainty is a test for intent at law, or whether it is only evidence from which an
inference of intent could be drawn. Justice Windeyer’s dissent in Parker v The
Queen,70 and Kirby and McHugh JJ’s dissent in Cutter v The Queen,71 appear to
adopt the latter view that the virtual certainty of a consequence is of mere evidential
significance. Some other cases appear to have agreed with this proposition.72 Lord
Bridge in R v Moloney was ‘firmly of opinion that foresight of consequences, as an
element … [of] any other crime of specific intent, belongs, not to the substantive
law, but to the law of evidence’,73 but this statement was strictly obiter. Further, in
R v Nedrick,74 R v Matthews & Alleyne75 and R v Wollin76 it was held that ‘foresight
66
67
68
69
70
71
72
73
74
75
76
La Fontaine v The Queen (1976) 126 CLR 62; R v Crabbe (1985) 156 CLR 464;
Buoghey v The Queen (1986) 161 CLR 10; R v Demirian [1989] VR 97.
Leonard v Morris (1975) 10 SASR 528, 531–2.
Zaburoni (2016) 256 CLR 482, 491 [19].
Ibid.
(1963) 111 CLR 610, 649.
(1997) 71 ALJR 638, 642, 648.
See, eg, R v Hughes (1994) 76 A Crim R 177, 182 (Davies JA), 185 (Cullinane JA),
citing R v Willmot (No 2) [1985] 2 Qd R 413; He Kaw Teh v The Queen (1985) 157
CLR 523, 570 (Brennan J); R v Reid [2007] 1 Qd R 64, 82–3 (Keane JA), 97 [111]
(Chestennan JA); R v Moloney [1985] AC 905; R v Matthews & Alleyne [2003] 2 Cr
App R 30.
R v Moloney [1985] AC 905, 917.
[1986] 1 WLR 1025.
[2003] 2 Cr App R 30.
(1998) 4 All Er 103, 107–8.
(2016) 37 Adelaide Law Review563
does not necessarily imply the existence of intention’.77 However, it was unclear
whether foresight of a virtually certain consequence is relevant only in evidence law
or criminal law, at least until Zaburoni.
The majority clarified that foresight of a virtually certain consequence is of ‘evidential
significance’.78 The awareness that the consequence of the conduct of the accused
is virtually certain to come about can be evidence from which intention could be
inferred. However, evidence of the virtual certainty of a consequence is not the proof
of a specific intent itself;79 at least this is the position in Australian criminal law.
The issue that arises in most cases is that, absent any admission of actual intent to
commit a crime, intention must usually be inferred from other evidence. Accordingly, it is apt to consider Kirby J’s remarks in Peters v The Queen:
Absent a comprehensive and reliable confession, it is usually impossible for the
prosecution actually to get into the mind of the accused and to demonstrate exactly
what it finds was there at the time of the criminal act. Necessarily, therefore,
intention must ordinarily be inferred from all of the evidence admitted at the
trail … But the search is not for an intention which the law objectively imputes
to the accused. It is a search, by the process of inference from the evidence, to
discover the intention which, subjectively, the accused actually had.80
Foresight of consequence cannot be a substitute for intent, as it would be an objective
measure of a subjective question. The fault element determines the severity of the
sanction in an offence, and it is crucial that punishment of such acts be proportionate
to the offender’s subjective state of mind. A punishment for an intent-crime decided
and charged upon the foresight of a virtually certain consequence could therefore be
disproportionate to the state of mind of the accused if the accused did not subjectively actually intend a particular result. Therefore, whether an accused has a specific
intent must be considered carefully.
However, the evidence from which intent may be inferred from is compelling if
the offender possessed knowledge of certainty, near certainty or virtual certainty
regarding a particular consequence.81 The distinction between evidence from which
intention can be inferred, and evidence of intent itself, is negligible in such cases.
For example, Professor Williams’ famous scenario is illuminating:
suppose that a villain of the deepest dye blows up an aircraft in flight with a
time-bomb, merely for the purpose of collecting on insurance. It is not his aim to
77
78
79
80
81
R v Hancock [1986] 1 All ER 641, 647.
Zaburoni (2016) 256 CLR 482, 490 [15].
R v Willmot (No 2) [1985] 2 Qd R 413, 418–19; See also, R v Reid [2007] 1 Qd R 64,
97 [111]–[114].
(1998) 192 CLR 493, 551.
Zaburoni (2016) 256 CLR 482, 490 [15].
564
TENG AND MAHONY — ZABURONI v THE QUEEN
cause the people on board to perish, but he knows that success in his scheme will
inevitably involve their deaths as a side-effect.’82
Lord Hailsham was of the opinion that the virtual certainty of the passengers’ deaths
will prove that the villain had intended it.83 However, strictly speaking, if one were
to take the common law concept of intention in this case, whether an inference of
intention should be drawn depends upon the evidence accepted by the jury, and
whether the cumulative effect of these evidences satisfies them of the defendant’s
subjective intent beyond reasonable doubt.84 The virtual certainty of the deaths of
those passengers itself would not and does not demonstrate specific intent of the
accused. As a result of this negligible distinction, intention and recklessness are often
conflated.
C Conflation between Intention and Recklessness
Justice Nettle appears to adopt the concept of oblique intention. Before entering into
the discussion of Nettle J’s decision, it is appropriate to consider what oblique intention
is. Oblique intention is an English invention, generally defined as: ‘a result foreseen
as virtually certain is an intended result’.85 This concept of intention developed as a
result of the fault element for murder in England, which is limited to an intention to
kill or cause grievous bodily harm and does not include a separate category of recklessness.86 The English concept of oblique intention has overlapped with the concept
of recklessness in Australia. Some Australian courts have impliedly adopted the
concept of oblique intention,87 but there has not been any express mention of oblique
intention in courts’ judgments. One reason why courts have avoided employing the
phrase ‘oblique intention’ may be because it has never formed part of the criminal
law of Australia.
In Zaburoni, Nettle J did not explicitly refer to oblique intention, but in effect his
Honour’s reasoning suggests that the concept was employed ‘where it is proved
that an accused foresaw that his or her actions would have an inevitable or certain
consequence, it logically follows that the accused intended to bring about that consequence.’88
82
83
84
85
86
87
88
Williams, ‘Oblique Intention’, above n 24, 423.
Hyam v DPP [1975] AC 55, 77.
Peters v The Queen (1998) 192 CLR 493, 551.
R v Woollin [1999] AC 82, 90.
Bronitt and McSherry, above n 24; see also J C Smith, Smith and Hogan Criminal
Law (LexisNexis Butterworths, 10th ed, 2002) 359–61.
See eg, Bronitt and McSherry, above n 24, 175–6, 470–2; R v Crabbe (1985) 156
CLR 464, 469; Vallance v The Queen (1961) 108 CLR 56: the minority took a broad
approach to the term ‘intentional’ under s 13 of the Criminal Code 1924 (Tas).
R v Crabbe (1985) 156 CLR 464, 503 [66] (emphasis added). The Criminal Code
1995 (Cth) s 5.2(3) adopts a similar definition of intent: ‘A person has intention with
respect to a result if he or she means to bring it about or is aware that it will occur in
the ordinary course of events.’
(2016) 37 Adelaide Law Review565
In this case, the evidence fell short of proving that the appellant knew that by having
regular unprotected sex with the complainant it was virtually certain (in consideration of the evidence as a whole) that he would transmit HIV to her. In fact, at trial
there was evidence that there was only a 14 per cent chance of the complainant being
infected,89 so it cannot be said that he had knowledge that the consequence of his
action was virtually certain, or intended to transmit the disease using this characteri­
sation of ‘intent’.
There is clear tension between Nettle J’s reasoning and the majority’s judgment.
Glanville Williams illuminates the conceptual difficulty here: ‘almost always a
person who foresees an illegal consequence as the virtually inevitable result of his
act will desire it’.90 However, it must not be forgotten that the trier of fact must be
satisfied beyond reasonable doubt that the requisite intent could be inferred from the
evidence in its cumulative effect.91 In Zaburoni, at most, it can only be shown that
he was reckless.
The conflation between recklessness, which appears to be synonymous with oblique
intention, and intention is a result of the conceptual distinction between criminal law
and evidence law. In certain situations where an accused knew that it was virtually
certain that his or her actions would bring about a particular result, he or she could be
deemed to have had intended the result. For example, where a person shoots another
in the head at point blank it seems absurd that that knowledge — that the other
will without a doubt die — is not itself the test for whether that person intended to
kill, but is instead only evidence from which an intention to kill can be drawn. For
example, in Williams’ above plane-bomb scenario, the virtually certain consequence
that the passengers on that plane would die is evidence of the offender’s intention to
kill those passengers, but as a matter of strict law, the offender’s knowledge of that
inevitable result cannot itself prove his or her intent to kill them.
One reason why judges might extend the meaning of intention to include knowledge
of a virtually certain consequence is policy. As Sir Anthony Mason explained:
there has been the tendency of judges to extend the legal concept of intention
to include the lesser mental state of foresight of consequences. This is done to
ensure that offences defined by reference to intention comprehend facts and
incidents which lead the public to expect a conviction and to be outraged if an
acquittal occurred simply because intention did not comprehend foresight of a
high degree of probability. In this respect, judges have given effect to their sense
of community moral responsibility and what is necessary for state control and
security, without discerning the requirements of subjectivity and mens rea which
form part of liberal legacy.92
89
90
91
92
Zaburoni (2016) 256 CLR 482, 494 [31], 502–3 [61].
Williams, ‘Oblique Intention’, above n 24, 422.
Peters v The Queen (1998) 192 CLR 493, 551.
Mason, above n 24, 107.
566
TENG AND MAHONY — ZABURONI v THE QUEEN
However, Lord Bridge noted that the decision on the meaning of intention is best
left to the jury.93 This creates a larger issue in the criminal law because as it was
held in Doney v The Queen, the ‘drawing of inference extends beyond circumstantial
evidence because the purpose and the genius of the jury system is that it allows for
the ordinary experiences of ordinary people to be brought to bear in the determination of factual matters.’94 Jurors often resort to a consideration of what a reasonable
person might have intended, known or believed in the circumstances, which is effectively an objective test determining a subjective state of mind (intent).95 Courts have
accepted this as being unavoidable.96
This is because the law in this area is based upon a deeply entrenched approach to
mental state attribution known as ‘folk psychology’,97 which ‘involves interpreting
someone as a perceive with beliefs and desires which lead him to act in the world’.98
The jury is being asked to assess a person’s guilt, intention, knowledge or recklessness, and determine whether these mental states are attributable to the accused.
Juries are comprised of cross-sections of everyday lay-citizens, and as human beings
are inherently moral and social beings.
Therefore, drawing from Knobe and Malle’s seminal study, ‘The Folk Concept of
Intentionality’, based upon empirical evidence that jurors are likely to find intent
if the consequences are of moral turpitude, moral judgments can influence findings
of intent.99 Therefore, the fault element being a purely subjective test is debatable.
To further muddy the waters, Lord Bridge in R v Moloney expounded that
[t]he golden rule should be that, when directing the jury on the mental element
necessary in a crime of specific intent, the judge should avoid any elaboration
or paraphrase of what is meant by intent, and leave it to the jury’s good sense
to decide whether the accused acted with the necessary intent, unless the judge
is convinced that, on the facts and having regard to the way that the case has
been presented to the jury in evidence and argument, some further explanation or
elabora­tion is strictly necessary to avoid misunderstanding.100
93
94
95
96
97
98
99
100
R v Moloney [1985] AC 905, 926.
(1990) 171 CLR 207, 214.
Bronitt and McSherry, above n 24, 174.
Pemble v The Queen (1971) 124 CLR 107, 120.
Paul M Churchland, Matter and Consciousness (MIT Press, 1988) 59; See also Bronitt
and McSherry, above n 24.
Peter Smith and O R Jones, The Philosophy of Mind: An Introduction (Cambridge
University Press, 1986) 172; See also, Bronitt and McSherry, above n 24, 173 [3.3].
See generally, Joshua Knobe and Arudra Burra, ‘The Folk Concepts of Intention
and Intentional Action: A Cross-Cultural Study’ (2006) 6 Journal of Cognition and
Culture 113.
R v Moloney [1985] AC 905, 926 (Lord Bridge) (emphasis added).
(2016) 37 Adelaide Law Review567
It therefore appears that the scope of giving directions on the meaning of intention
is restricted quite substantially, and on a practical level this can result in conflation
between recklessness (or oblique intention) and intention. In Mr Zaburoni’s trial,
it appears that, as a result of the jury system, the element of subjective intent may
have been assessed on an objective standard.101
Nevertheless, in the High Court, the majority and Gageler J correctly concluded that
the jury could not
exclude as a reasonable hypothesis that the appellant engaged in that sexual intercourse … not with an intention to transmit the disease … but selfishly for his own
gratification, being reckless as to whether or not the complainant might become
infected.102
The clarification of what intention is not, as provided in Zaburoni, will hopefully aid
the prevention of conflation between recklessness and intention in the future. The
High Court clarified the significance of the concept of virtual certainty so as to apply
in the law of evidence, and not as a test of intention itself. Even though the distinction between the inference of intention from evidence and evidence of intention is
subtle, it is crucial in preventing the conflation between intention and recklessness.
The fault element determines the severity of the sanction in an offence of causing
grievous bodily harm. Therefore, punishment of such acts must be proportionate to
the offender’s subjective state, actus non facit reum, nisi mens sit rea.103
VI S ocial C ontext
The social context surrounding the Zaburoni case mainly concerns the question of
what inference could be drawn from the evidence brought by the prosecution, after
the threshold for intent had been laid out in the judgments.
From the viewpoint of the Australian Federation of AIDS Organisations (AFAO),
Zaburoni was a success for two reasons. First, it ‘establishes that if an HIV-­positive
person has sex with someone without protection/condoms, it cannot be said or
inferred [without further evidence] that they intended to transmit HIV.’104 Secondly,
the High Court did not jump to the same conclusion as the District Court and Court
101
102
103
104
Bronitt and McSherry, above n 24, 174 [3.4].
Zaburoni (2016) 256 CLR 482, 503 [63].
See, E Hilton Jackson, Latin for Lawyers (Sweet & Maxwell, 3rd ed, 1960); Fowler v
Padget (1798) 101 ER 1103, 1106: an act does not make a defendant guilty without a
guilty mind.
Zaburoni v The Queen Appeal Success (6 April 2016) Australian Federation of
AIDS Organisations <https://www.afao.org.au/news/zaburoni-v-the-queen-appeal-­
success#.V08xKyN961s>. This is even more significant when considering that just
nine years ago in South Australia, the South Australian Supreme Court convicted a
man of actually ‘endangering the life’ of his sexual partners by having unprotected sex
568
TENG AND MAHONY — ZABURONI v THE QUEEN
of Appeal that, because Mr Zaburoni, as an HIV-positive man, had unprotected sex
with the complainant during their relationship and lied to her about his HIV status,
he must have intended to infect her with it. When one considers the myriad reasons
why people do not disclose their HIV status, for example the social stigma and shame
attached to the disease, the fear of being, correctly or not, ‘outed’ as gay, a drug user
or a sex worker, depression and anxiety issues following the diagnosis or, as appears
possible in this case, simply being in denial,105 this is clearly a positive development
in the law.
Of course, there are good reasons for governments to criminalise the intentional,
malicious transmission of HIV from one person to another. As a society it is necessary
to condemn such a reprehensible crime, the consequences of which will be lifelong
for its victims.106 This High Court judgment has set the threshold of intention very
high, so in future cases it should be clearer to prosecutors as to whether to prosecute
an HIV-positive person for intentionally transmitting the disease.
However, while it was clear to the High Court that Mr Zaburoni could not be said to
have intended to transmit HIV to the complainant, he still received a significant, albeit
lesser, sentence for recklessly transmitting the disease. It therefore must be pointed
out that s 320 of the Code and similar laws around Australia contradict UNAIDS’s
recommendation that ‘any application of criminal law to HIV non-exposure should
require proof, to the applicable criminal law standard, of intent to transmit HIV,’107
and the United Nations Development Program’s statement that criminalisation of
HIV transmission is only ever justified in circumstances of malicious intent.108 There
are clear reasons for these recommendations –– the AFAO contends that the prosecutions of high-profile cases such as Zaburoni undermine public health legislation by
discouraging those who engage in high-risk behaviours from being regularly tested
for HIV, so as to avoid the risk of recklessly, rather than unknowingly, passing on the
disease.109
105
106
107
108
109
with them: R v Parenzee [2006] SASC 127 (2 May 2006). This case is also infamous
because of the AIDS-denialism argument run by Mr Parenzee’s defence counsel in a
later application to appeal: R v Parenzee (2007) 101 SASR 456.
Australian Federation of AIDS Organisations, HIV/AIDS Legal Centre and National
Association of People with HIV Australia, ‘Zaburoni v The Queen’ (Joint Media
Release, 6 April 2016).
Gina Mitchell, Criminal Transmission of HIV: A Guide for Legal Practitioners in
NSW (HIV/AIDS Legal Centre Inc and DLA Phillips Fox, 1st ed, 2009) 17.
UNAIDS, ‘Ending Overly Broad Criminalization of HIV Non-Disclosure, Exposure
and Transmission: Critical Scientific, Medical and Legal Considerations’ (Guidance
Note, 2013) 26.
Global Commission on HIV and the Law, ‘Risks, Rights and Health’ (Report, United
Nations Development Program, 2012) 24.
Criminalisation (20 October 2015) Australian Federation of AIDS Organisations
<https://www.afao.org.au/what-we-do/policy-and-advocacy/advocacy-portal/
­criminalisation#.V080CiN95o4>.
(2016) 37 Adelaide Law Review569
Furthermore, as a society it seems like an almost hysterical reaction to the outbreak
of the HIV/AIDS epidemic to impose gaol sentences on people who have not acted
any differently from any other HIV-negative person, bar the fact that they have been
unfortunate enough to have been infected with a life-long, stigmatised and difficult
disease. While people in the complainant’s circumstances clearly have cause to feel
incredibly violated, apart from circumstances of clear, malicious, criminal intent ––
which did not exist in this case –– the criminal law seems like a clumsy tool in the
struggle to prevent the spread of HIV.
VII C onclusion
Zaburoni makes it clear that to intend to transmit HIV within the meaning of s 317(b)
of the Code and similar offences, a person must have the transmission of HIV in mind
as a purpose when engaging in the relevant sexual acts. Their Honours clarified that
intention is distinct from desire and motive, and purpose appears to be the closest
synonym to intention. Further, the Court also explained that the mere knowledge
of the virtual certainty of a particular result is not the test of intention itself, but of
evidential significance. Therefore, the decision is unequivocal that intention is not to
be conflated with the foresight of harm. However, a precise definition of intention
is very unlikely to be given by the High Court because, as above, ‘[t]he general
legal opinion is that “intention” cannot be satisfactorily defined and does not need a
definition, since everybody knows what it means’;110 and intention is best left to the
jury to decide.111
In this case, an inference could not be drawn from the evidence of Mr Zaburoni’s
conduct that he intended to transmit HIV beyond reasonable doubt. However,
Mr Zaburoni was still found guilty under s 320 of the Code for causing the complainant
grievous bodily harm. The criminalisation of reckless conduct such as Mr Zaburoni’s
is questionable, and not in line with international guidelines.
110
111
See Williams, Textbook of Criminal Law, above n 39, 74; Anthony et al, above n 39.
R v Moloney [1985] AC 905, 926.
Natalie Williams*
BARTLETT v AUSTRALIA & NEW ZEALAND
BANKING GROUP LTD
[2016] NSWCA 30 (7 MARCH 2016)
I I ntroduction
I
n Bartlett v Australia & New Zealand Banking Group Ltd,1 Mr Bartlett was
wrongfully dismissed by the Australia and New Zealand Banking Group Limited
(ANZ)2 for committing serious misconduct by allegedly posting confidential
internal information to a journalist.
The New South Wales Court of Appeal concluded that for ANZ to exercise its power
to summarily dismiss Mr Bartlett under the contract terms, it was insufficient just
to form the opinion that serious misconduct had occurred.3 It was also necessary
for ANZ to prove the existence of the serious misconduct.4 Because ANZ failed to
establish that Mr Bartlett had engaged in serious misconduct, the Court held that the
bank was not entitled to summarily dismiss Mr Bartlett.5 Although the Court had
ultimately resolved the primary argument through the conclusion above, it was the
Court’s discussion of Mr Bartlett’s fall back argument that occupied the majority of
the judgment, and in the process, raised several important issues. The Court held
that even if it were sufficient for ANZ to summarily dismiss Mr Bartlett based on its
opinion that he committed serious misconduct, the process of forming the opinion
had to be reasonable in the Wednesbury sense.6 ANZ’s inadequate investigative
process and lack of procedural fairness meant that it did not act reasonably when
forming its opinion.7
By implying a requirement of reasonableness into employment termination clauses
that are subject to employers’ opinions, the Court took a significant step forward in
*
1
2
3
4
5
6
7
Student Editor, Adelaide Law Review, University of Adelaide.
[2016] NSWCA 30 (7 March 2016) (‘Bartlett’). The New South Wales Court of Appeal
overturned Bartlett v Australia and New Zealand Banking Group Ltd [2014] NSWSC
1662 (24 November 2014).
Bartlett [2016] NSWCA 30 (7 March 2016) [77] (Macfarlan JA).
Ibid [30]–[34] (Macfarlan JA).
Ibid [36] (Macfarlan JA).
Ibid [75]–[77] (Macfarlan JA).
Associated Provincial Pictures Houses Ltd v Wednesbury Corporation [1948] 1 KB
223, 233–4. See ibid [49] (Macfarlan JA).
Bartlett [2016] NSWCA 30 (7 March 2016) [51]–[54] (Macfarlan JA).
572 WILLIAMS — BARTLETT v AUSTRALIA & NEW ZEALAND BANKING GROUP LTD
clarifying some uncertainty in contract law regarding the implication of such broad
terms into employment contracts.8 Justice of Appeal Simpson’s dissenting view
extended the requirement of reasonableness even further, thus raising significant
future implications. The contrast shown between Simpson JA’s broad dissenting view
and that of the majority also demonstrates the continued underlying uncertainty and
hesitancy of courts in this area of law. Practically, despite this case appearing to give
employees greater protection, alternate options of termination allow employers to
avoid the higher burden involved when terminating for serious misconduct.
II B ackground
Mr Paul Bartlett was the State Director of ANZ’s Institutional Property Group in
New South Wales.9 On 15 August 2012, he was summarily dismissed by ANZ after
an investigation by the bank concluded that Mr Bartlett had engaged in serious
misconduct.10 The alleged misconduct was the doctoring and posting of a confidential internal email to a journalist at the Australian Financial Review in Sydney.11
The investigation deduced Mr Bartlett to be the person responsible because he was
one of the 10 recipients of the original email, one of the six Sydney based recipients
of the email and the only one who knew of the journalist.12 The substance of the
conclusion was derived from a handwriting analysis between Mr Bartlett’s hand­
writing and the writing on the envelope used to post the letter.13 A one page report
by Ms Michelle Novotny, a forensic document and handwriting examiner, concluded
with high probability that Mr Bartlett was the author of the envelope.14
Following his termination, Mr Bartlett sought damages for wrongful dismissal in the
Supreme Court of Appeal.15 Justice Adamson rejected his claim, finding him liable
for the doctoring and posting of the email.16 Her Honour also held that based on the
relevant term of the contract, ANZ’s bona fide opinion that the serious misconduct
8
9
10
11
12
13
14
15
16
There is considerable debate over whether terms such as good faith or reasonableness
are principles of construction or implied terms: see, eg, J W Carter and Elisabeth
Peden, ‘Good Faith in Australian Contract Law?’ (2003) 19 Journal of Contract Law
155; Anthony Gray, ‘Good Faith in Australian Contract Law after Barker’ (2015) 43
Australian Business Law Review 358, 374–5. While the Court did not identify whether
it construed or implied the requirement of reasonableness, the author has interpreted
the decision of the Court to be an implication rather than a construction.
Bartlett [2016] NSWCA 30 (7 March 2016) [1] (Macfarlan JA).
Ibid.
Ibid.
Ibid [17] (Macfarlan JA).
Ibid [11] (Macfarlan JA).
Ibid [12] (Macfarlan JA).
Ibid [2] (Macfarlan JA).
Ibid.
(2016) 37 Adelaide Law Review573
occurred was sufficient justification to summarily dismiss Mr Bartlett.17 Her Honour
rejected Mr Bartlett’s submission that ANZ had to prove objectively the occurrence
of the serious misconduct to justify the termination.18 Mr Bartlett then appealed to
the Court of Appeal.19
III T erms
of
C ontract
and
I ssues
of
C onstruction
The relevant terms of Mr Bartlett’s contract of employment are cls 13 and 14.
Clause 13 stated that a failure to comply with the employment agreement provisions
may result in ANZ taking disciplinary action.20 This may include suspension and in
certain circumstances, termination of employment.21 Clause 14.3(a) gives ANZ the
power to terminate the employment for any reason by giving four months’ written
notice.22 Clause 14.3(b) gives ANZ the power to terminate the employment at any
time, without notice, if ANZ holds the opinion that Mr Bartlett engaged in serious
misconduct, serious neglect of duty or serious breach of the terms of the employment
agreement.23
The key issues for the Court of Appeal to determine in the interpretation of the
contract were:
1 whether ANZ needed to prove an objective existence of serious misconduct to
terminate under cl 14.3(b) or whether it was sufficient for it to hold the opinion
that serious misconduct occurred;24
2 if ANZ only needed to prove that it held the requisite opinion, whether ANZ was
required to act reasonably in forming that opinion;25
3 whether ANZ had a duty to act reasonably when exercising its power under
cl 14.3(a) to terminate for any reason on four months’ notice.26
17
18
19
20
21
22
23
24
25
26
Ibid [24]–[28] (Macfarlan JA).
Ibid.
Ibid [4] (Macfarlan JA).
Ibid [20] (Macfarlan JA).
Ibid.
Ibid.
Ibid.
Ibid [29] (Macfarlan JA).
Ibid [38] (Macfarlan JA).
Ibid [86] (Macfarlan JA). The Court also briefly considered issues relating to the
quantum of damages and evidence. However, they will not be covered in this case
note which focuses primarily on issues of construction.
574 WILLIAMS — BARTLETT v AUSTRALIA & NEW ZEALAND BANKING GROUP LTD
IV D ecision
A Correct Construction of cl 14.3(b)
In the process of answering this issue, the Court considered cl 13 of the employment
agreement — which only allows ANZ to take disciplinary action subject to an actual
breach of the employment agreement provisions, and not only on the basis of the
bank’s opinion that the breach occurred.27 Even once the breach was established
objectively, the right to dismiss was only available ‘in certain circumstances’.28
In reading the contract as a whole, the Court determined that construing cl 14.3(b)
as permitting termination on the sole basis of ANZ’s opinion conflicted with cl 13.29
To reconcile these provisions, the Court construed cl 14.3(b) to mean that ANZ’s
opinion would only apply in determining the seriousness of the misconduct and
not to its existence.30 In conformity with cl 13, termination is only available under
cl 14.3(b) in the certain circumstances where ANZ is of the opinion that these actual
breaches are serious.31 This approach corresponds with the employer’s narrow
common law right to summarily dismiss an employee and takes into consideration
the likely severe financial and reputational consequences of summary termination.32
To dismiss under cl 14.3(b), ANZ would then need to establish that Mr Bartlett
actually engaged in the misconduct that it considered serious.33 While Ms Novotny
concluded that it was highly probable that Mr Bartlett was the author of the envelope,
Mr Bartlett’s expert, Mr Dubedat, decided otherwise. Between the two contra­dictory
handwriting expert reports, the Court rejected Ms Novotny’s evidence because
she departed from generally accepted methodology and misapplied fundamental
principles of handwriting analysis.34 Because ANZ failed to prove that Mr Dubedat’s
expert report should be rejected, the Court concluded that the bank had not established on the balance of probabilities that Mr Bartlett was the author of the writing on
the envelope.35 Therefore, ANZ was not entitled to summarily dismiss Mr Bartlett’s
employment.36
B Whether ANZ Was Required to Act Reasonably
Despite resolving the primary issue, the Court went further and addressed Mr Bartlett’s
alternate argument. If ANZ had the power to summarily dismiss under cl 14.3(b) on
27
28
29
30
31
32
33
34
35
36
Ibid [30] (Macfarlan JA).
Ibid.
Ibid [31] (Macfarlan JA).
Ibid.
Ibid.
Ibid [32]–[34] (Macfarlan JA).
Ibid [36] (Macfarlan JA), [114] (Simpson JA).
Ibid [62]–[75] (Macfarlan JA).
Ibid [76] (Macfarlan JA), [114] (Simpson JA).
Ibid [77] (Macfarlan JA).
(2016) 37 Adelaide Law Review575
the sole basis of it holding an opinion that a serious misconduct occurred, they are
obliged to act reasonably, in the Wednesbury sense, in the process of forming that
opinion.37 The Court was persuaded to reach that conclusion through a review of
cases on commercial contracts that gave one party the power to make a decision that
would affect another.38
This approach is consistent with the principle in Service Station Association Ltd v
Berg Bennett & Associates Pty Ltd that where a party has an express power to significantly affect another party’s interests if satisfied that a certain state of affairs exists,
that party must reach a reasonable and honest state of satisfaction to exercise that
power.39 This reasoning also correlates with the decision in Burger King Corporation
v Hungry Jack’s Pty Ltd40 where the Court of Appeal found that terms of reasonableness and good faith were implied to govern the exercise of a general power of
termination.
C Whether ANZ Acted Reasonably
If ANZ had the power to summarily dismiss under cl 14.3(b) on the basis of its
opinion that a serious misconduct occurred, the deficiencies in the investigation
process meant that the bank did not act reasonably in the Wednesbury sense when
forming the opinion, thus invalidating the decision of termination.41 There were two
main criticisms of the investigation.42 First, ANZ’s unwarranted limitation of the
investigation to the email’s 10 recipients and one employee when the number of
people who could have been responsible for the forging were between 50 and 60.43
Secondly, Mr Bartlett was unreasonably denied access to copies of Ms Novotny’s
brief summary report and to obtain an expert report in response.44 This was contrary
37
38
39
40
41
42
43
44
Ibid [49] (Macfarlan JA). In regards to applying a Wednesbury standard of reasonableness to a contractual duty to consider a certain matter, this approach follows the
decisions of the Victorian Court of Appeal in Cromwell Property Securities Ltd v
Financial Ombudsman Service Ltd (2014) 288 FLR 374, 401 [93] (Warren CJ and
Osborn JA) and the Supreme Court of England and Wales in Braganza v BP Shipping
Ltd [2015] UKSC 17 (18 March 2015) [36] (Lady Hale and Lord Kerr) (‘Braganza’).
In Braganza, the Court held that if a power to exercise is subject to the employer’s
opinion, the employer is obliged to act reasonably in the Wednesbury sense in forming
the opinion. Under the Wednesbury standard, a decision is invalidated if the decision-­
making process was so unreasonable that no reasonable decision-maker would ever
have made it: Bartlett [2016] NSWCA 30 (7 March 2016) [46] (Macfarlan JA).
Bartlett [2016] NSWCA 30 (7 March 2016) [39]–[49] (Macfarlan JA).
(1993) 45 FCR 84, 94 (Gummow J); Bartlett [2016] NSWCA 30 (7 March 2016) [40]
(Macfarlan JA).
[2001] 69 NSWLR 558, 573 [185] (Sheller, Beazley and Stein JJA).
Bartlett [2016] NSWCA 30 (7 March 2016) [49], [51]–[54] (Macfarlan JA), [114]
(Simpson JA).
Ibid [51] (Macfarlan JA).
Ibid [52] (Macfarlan JA).
Ibid [53] (Macfarlan JA).
576 WILLIAMS — BARTLETT v AUSTRALIA & NEW ZEALAND BANKING GROUP LTD
to the bank’s own Performance Policy to provide procedural fairness to employees
faced with serious disciplinary action by giving them a reasonable opportunity to
respond to both allegations made against them and the evidence relied on.45
D Whether ANZ Was Required to Act Reasonably and in
Good Faith Under cl 14.3(a)
The Court held that although ANZ did not have the power to summarily dismiss
under cl 14.3(b), it would still have dismissed under cl 14.3(a) by giving Mr Bartlett
four months’ notice.46 The Court rejected Mr Bartlett’s contention that the bank’s
power to dismiss for any reason on four months’ notice had to be exercised reasonably
or in good faith.47 None of the relevant authorities justified implying a restriction on
the power under cl 14.3(a).48 This restriction would also be inconsistent with the
power to dismiss on notice for any reason.49 Unlike cl 14.3(b), ANZ is not required
to form an opinion before exercising the power under cl 14.3(a).50
Justice of Appeal Simpson, however, dissented with the majority’s view on this
point.51 Her Honour considered the three cases put forward by Mr Bartlett in support
of his contention.52 Her Honour proposed that if these authorities can be taken to
support the principle that a term of good faith and fair dealing is to be implied in
termination clauses in commercial contracts, then it is difficult to argue why the
same cannot be implied into employment contracts.53 However, due to the lack of
cases cited to support the implication of such terms into employment contracts, her
Honour acknowledged that this matter will remain unanswered.54
Her Honour highlighted that this approach is not inconsistent with Commonwealth
Bank of Australia v Barker.55 While the Court in Barker rejected the implication
of mutual trust and confidence obligations into employment contracts, what was
proposed in Bartlett was limited narrowly to reasonableness and good faith in
exercising the right of termination.56 Furthermore, the Court in Barker noted that
45
46
47
48
49
50
51
52
53
54
55
56
Ibid [54] (Macfarlan JA).
Ibid [83]–[85] (Macfarlan JA).
Ibid [86]–[87] (Macfarlan JA), [107] (Meagher JA).
Ibid.
Ibid.
Ibid.
Ibid [122]–[133] (Simpson JA).
GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd (2003) 128
FCR 1; Garry Rogers Motors (Aust) Pty Ltd v Subaru (Aust) Pty Ltd [1999] FCA 903
(2 July 1999); Kellogg Brown & Root Pty Ltd v Australian Aerospace Ltd [2007] VSC
200 (15 June 2007).
Bartlett [2016] NSWCA 30 (7 March 2016) [126] (Simpson JA).
Ibid [127] (Simpson JA).
(2014) 253 CLR 169 (‘Barker’)
Bartlett [2016] NSWCA 30 (7 March 2016) [131] (Simpson JA).
(2016) 37 Adelaide Law Review577
its decision does not reflect on the issue of ‘whether there was a general obligation
to act in good faith in the performance of contracts’.57 Her Honour concluded that
whether the implication of good faith into cl 14.3(a) should be seen as falling within
or outside the reasoning of Barker is a question that should not be addressed until
the Court has heard a full and considered debate.58 The foundational proposition —
that good faith should be implied into employment contracts — was not included in
Mr Bartlett’s submissions before the Court.59
However, her Honour agreed with the proposed orders because Mr Bartlett only raised
this contention in the post-hearing written submissions.60 Furthermore, although
unpersuaded that good faith should not apply, her Honour viewed the authorities
cited by Mr Bartlett to support his contention as insufficient to establish the proposition that good faith should be applied to employment contracts.61
Her Honour held that if Mr Bartlett’s above contention were accepted, it cannot be
presumed that ANZ would have nonetheless terminated Mr Bartlett’s employment62
as this is a question of fact that cannot be fully explored until the correct construction
of cl 14.3(a) is established.63 Her Honour argued that for the same reasons that the
handwriting evidence was insufficient to establish serious misconduct, it would also
be unreasonable for the Bank to rely on this evidence to dismiss under cl 14.3(a).64
V B roader I mpact
of the
D ecision
This case highlights the continuing uncertainty surrounding the implication of a
general duty of good faith in contractual performance or in the exercise of discretionary contractual rights and powers, particularly for employment contracts.65 While
some intermediate courts have recognised the implication of good faith as part of the
law of performance of commercial contracts in certain circumstances,66 the conflicting decisions and lack of consensus over key aspects of good faith have caused this
57
58
59
60
61
62
63
64
65
66
Ibid; Barker (2014) 253 CLR 169, 195–6 [42] (French CJ, Bell and Keane JJ).
Bartlett [2016] NSWCA 30 (7 March 2016) [131]–[132] (Simpson JA).
Ibid [132] (Simpson JA).
Ibid [135] (Simpson JA).
Ibid.
Ibid [134] (Simpson JA).
Ibid [133] (Simpson JA).
Ibid [134] (Simpson JA).
See, eg, Barker (2014) 253 CLR 169, 214 [107] (Kiefel J); Royal Botanic Gardens and
Domain Trust v South Sydney City Council (2002) 240 CLR 45, 63 [40] (Gleeson CJ,
Gaudron, McHugh, Gummow and Hayne JJ).
See, eg, United Group Rail Services Ltd v Rail Corporation New South Wales [2009]
74 NSWLR 618, 634 [58] where Allsop P stated that the concept of good faith was
recognised by the New South Wales Court of Appeal as ‘part of the law of performance of contracts’; Gramotnev v Queensland University of Technology [2015] QCA
578 WILLIAMS — BARTLETT v AUSTRALIA & NEW ZEALAND BANKING GROUP LTD
area of law to be in a ‘chaotic state’.67 Although High Court guidance appears to be
pressing, the High Court has continually failed to clarify this unsettled area of law
despite multiple opportunities to do so,68 forcing intermediate courts to contend with
such uncertain issues themselves.69
In relation to employment contracts specifically, despite some recognition and application of good faith in commercial contracts, intermediate courts appear less willing
to recognise it in employment contracts.70 While the High Court in Barker expressly
left open the question of ‘whether contractual powers and discretions may be limited
by good faith and rationality requirements’,71 its strong rejection of the implied
term of mutual trust and confidence may have resulted in an increased reluctance
among lower courts to imply similar broad terms in employment contracts post-­
Barker.72 This may be surprising as the vulnerability and relational aspect involved
in employment contracts may demonstrate a greater need for the implication of such
terms into employment contracts as compared to commercial contracts.73
However, the Court’s discussion on the alternate issue and conclusion to imply a term
of reasonableness into employment termination clauses subject to an employer’s
opinion demonstrates a significant step forward from the usual reluctance of courts
to imply broad terms into employment contracts. This case plays a helpful role in
answering the question left open by Barker on how reasonableness might limit
discretionary contractual powers. Furthermore, Simpson JA’s broad view in dissent
that good faith should possibly be implied into employment contracts raises significant questions that may lead the path for future courts in clarifying the role of good
faith in employment contracts.
Despite this significant step, the conflict seen between the majority’s decision to
limit the Wednesbury standard of reasonableness only to employment termination
67
68
69
70
71
72
73
127 (10 July 2015) [162] (Jackson J). For a review of the relevant authorities, see
Jeannie Paterson, Andrew Robertson and Arlen Duke, Principles of Contract Law
(Thomson Reuters, 5th ed, 2015) 341 [14.85] n 92; Gray, above n 8, 362.
Andrew Stewart et al, Creighton & Stewart’s Labour Law (Federation Press, 6th ed,
2016) 538 [17.53].
See, eg, Royal Botanic Gardens and Domain Trust v South Sydney City Council
(2002) 240 CLR 45, 63 [40], 94 [156]; Barker (2014) 253 CLR 169, 195–6 [42], 214
[107].
Gray, above n 8, 358–9.
See, eg, State of New South Wales v Shaw [2015] NSWCA 97 (17 April 2015) [3]
(Beazley P, Ward and Gleeson JJA); Swindells v Victoria [2015] VSC 19 (3 September
2015) [172] (Macaulay J); Regulski v Victoria [2015] FCA 206 (13 March 2015) [219]
(Jessup J); Gramotnev v Queensland University of Technology [2015] QCA 127
(10 July 2015) [172] (Jackson J); cf Adventure World Travel Pty Ltd v Newsom (2014)
86 NSWLR 515, 521 [26] (Meagher JA).
Barker (2014) 253 CLR 169, 195–6 [42] (French CJ, Bell and Keane JJ).
See above n 70.
See, eg, Stewart et al, above n 67, 529 [17.54].
(2016) 37 Adelaide Law Review579
clauses subject to an employer’s opinion,74 and Simpson JA’s dissenting broader
view that reasonableness should be extended to clauses where termination can be
exercised on notice,75 demonstrates the continued underlying hesitancy of courts to
imply such broad terms. If a superior court such as the New South Wales Court of
Appeal displays hesitation over such issues, it is quite possible that the uncertainty
surrounding the implication of good faith into employment contracts may continue
until a full and informed debate happens before the High Court.
Practically, this decision may be seen as securing greater protection for employees.
Employers will now need to ensure that they act reasonably and afford procedural
fairness in any process of investigation or termination for serious misconduct.
Furthermore, employers will need to be cautious when drafting contracts to ensure
consistency among the provisions. However, it may be more commercially realistic
to recognise that employers will now choose the option of terminating employees by
simply providing them four months’ notice and paying them out instead of bearing
the higher burden of objectively proving serious misconduct.
VI C onclusion
The law surrounding the implication of good faith, especially in relation to
employment contracts, is a particularly unsettled area of law due to the lack of
consistency among the decisions of the lower courts.76 The High Court’s hesitancy
to provide clarification and its recent decision to leave this question open in Barker
has only further added to the uncertainty of courts to imply broad terms of good
faith and reasonableness into employment contracts.77 However, in the midst of this
uncertainty, Bartlett stands out as a decision that takes a definite and logical step
forward to imply a term of reasonableness to constrain termination clauses subject
to an employer’s opinion. The Court of Appeal’s approach provides helpful guidance
to future courts on the role of good faith and reasonableness in termination clauses,
thus clarifying some uncertainty surrounding the implication of such broad terms in
employment contracts.
However, the contrast shown between the majority’s refusal to extend the implication of reasonableness to clauses allowing termination of employees on four months’
notice, and Simpson JA’s dissenting broad view that good faith should be possibly
implied into employment contracts, demonstrates the underlying continued uncertainty in contract law surrounding implication of broad terms of good faith or
reasonableness. Unless courts are inspired to continue stepping forward to clarify
the role of good faith, Bartlett may fall into the category of a limited exception, and
this step forward will be reduced to a small step.
74
75
76
77
Bartlett [2016] NSWCA 30 (7 March 2016) [49], [87] (Macfarlan JA), [106]–[107]
(Meagher JA).
Ibid [126], [133] (Simpson JA).
See above nn 65–7.
Gray, above n 8, 358–9.
580 WILLIAMS — BARTLETT v AUSTRALIA & NEW ZEALAND BANKING GROUP LTD
While this decision appears to afford greater protection to employees by ensuring
that employers act reasonably and with procedural fairness when investigating or
terminating for serious misconduct, it may have little effect practically. It is more
likely in commercial reality that employers may choose to avoid the heavier burden
of objectively proving serious misconduct, and instead dismiss employees by giving
them four months’ notice and paying them out, thus reducing any possible practical
significance of the case.
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