University of Southern Queensland

Author: Sarah McKibbin (Page 1 of 2)

Thoughtfulness and new thinking about house insecurity in Australia

Photo by Scotty McDonald on Unsplash

Dr Julie Copley, University of Southern Queensland

Introduction

This blog post argues for greater thoughtfulness about the legal norms of housing when housing security initiatives are being developed by Australian governments.[1]

The contention is that use of new/old thinking about housing — and the security, peace and dignity housing ought to afford each person — would clarify disparities in terminology and understandings of the governments’ role under our Australian legal system, ensuring a sharper and shared focus on the urgent problem of housing insecurity.

Analysis and synthesis of research findings set out below is about, first, terminology and, second, what the law requires.

Budget Speech 2024: A focus on ‘more homes’

In the 2024 Budget Speech, the Federal Treasurer said:

We’re easing the cost of living — and we’re building more homes for Australians.

In the 5 years from this July, we aim to build 1.2 million of them.[2]

A budget day media release from the Federal Housing Minister stated:

The Albanese Labor Government is turbocharging the construction of new homes across the country – building more homes for home buyers, more homes for renters and more homes for Australians in every part of the country. …

The 2024-25 Budget includes $6.2 billion in new investment to build more homes more quickly, bringing the Albanese Government’s new housing initiatives to $32 billion.[3]

The explicit Budget objectives, and the terms used by the Treasurer and Minister, can be compared with language about housing insecurity and homelessness used by Australian people in a human rights context, and the Australian Bureau of Statistics’ reporting of Census data.

First, a 2014 Australian Human Rights Consultation found that a key human rights concern of Australian people is ‘access to affordable housing and homelessness’.[4]

Second, the Australian Bureau of Statistics reports that, at the time of the last Census in 2021:

122,494 people were estimated to be experiencing homelessness on Census night in 2021… 23.0% of all people experiencing homelessness were aged from 12 to 24 years…  Aboriginal and/or Torres Strait Islander people [represented] one in five (20.4%) people experiencing homelessness in Australia.[5]

Mismatch in ‘homelessness’ terminology

On the face of it, there is a mismatch in terminology.

On the one hand, the Government announces initiatives for ‘more homes’. On the other, the AHRC identified concerns in response to questions put to people about their human rights (especially ‘property rights’) and reported that people said ‘[t]he right to property provides security, and enables opportunities for economic and social development’.[6]

The ABS data, moreover, is gathered from responses to questions framed according to the ABS statistical definition of ‘homelessness’. The definition is:

when a person does not have suitable accommodation alternatives, they are considered as experiencing homelessness if their current living arrangement: is in a dwelling that is inadequate; has no tenure, or if their initial tenure is short and not extendable, or; does not allow them to have control of, and access to space for social relations.[7]

Photo by kylie De Guia on Unsplash

Empirical and legal definitions of ‘homelessness’

One reason for a mismatch is because a distinction must be drawn between definitions for empirical and legal purposes.

As Christopher Essert (University of Toronto, Faculty of Law) explains, there can be clear differences between a person’s empirical situation and their legal status. Instances of homelessness can be ‘empirically indistinguishable from instances of non-homelessness’; for example, when ‘someone sleeps outside or sleeps in a large room with lots of other people on a mat on the floor and yet does not count [themselves] as homeless’.[8]

Public sector and third sector bodies researching and developing policy rely on an empirical approach as ‘to know who ought to be targeted by such policies, we need to know who counts as homeless.’[9] For these purposes, the ABS statistical definition is adopted commonly in Australia.

However, when law is to be made — and it is important to note here that Budget appropriations are authorised by legislation (law made by parliaments) — a legal rather than an empirical definition is preferable.

Jeremy Waldron, for example, refers to a person who has ‘no place governed by a private property rule where he is allowed to be whenever he chooses, no place governed by a private property rule from which he may or may not at any time be excluded as a result of someone else’s say-so’.[10]

Samuel Tyrer suggests use of the term ‘rooflessness’, affording a wide definition extending to a situation where a person has no physical shelter nor any experience of ‘home’.[11]

Conceptual mismatch: Housing as a commodity vs a human right

A second reason for a mismatch is due to different conceptualisations of the problem and the effectiveness of solutions.

Jessie Hohmann (UTS Faculty of Law) contends Australian governments focus on housing as a commodity rather than on securing, protecting and promoting a human right to housing.[12]

The latter is, in fact, the approach adopted for the ABS statistical definition. It is ‘constructed from a conceptual framework centred around: adequacy of the dwelling; security of tenure in the dwelling, and; control of, and access to space for social relations’.

Ahead of the 2026 Census also, the statistical definition will be reviewed, as recommended by a parliamentary committee, to examine ‘the circumstances in which people living in severely crowded dwellings and boarding houses should be categorised as homeless.’[13]

Note, in this context, the incongruity of the ‘commodity’ in the 2024 Budget: ‘homes’, not houses. The incongruity arises because, as Tyrer explains, ‘the home experience’ comprises three dimensions: ‘(a) the feeling of security; (b) the expression of self-identity; and (c) relationships and family.’

Australia’s international law obligations

The likely reason for a conceptual mismatch, Hohmann argues, is a lack of awareness of what law requires. A set of requirements is stated clearly, however, in an international law obligation Australia adopted nearly half a century ago.

In 1975, the Australian Commonwealth ratified the International Covenant on Economic, Social and Cultural Rights without reservations, and the ICESCR entered into force in Australia in March 1976. Under Art 11(1) of the ICESCR:

the States Parties … recognize the right of everyone to an adequate standard of living for himself and his family, including adequate … housing …

Towards a progressive approach to housing security

So, acting consistently with the ICESCR obligation, Australian governments would not announce spending for ‘more homes’. Australian governments would work progressively to ensure all policies and legislation secure, protect and promote a person’s right to adequate housing.

Nor would the right be given a narrow interpretation: the expert oversight body for the ICESCR (the United Nations Committee on Economic, Social, and Cultural Rights) states that the right demands that each person ‘live somewhere in security, peace and dignity.’[14]


Author

Julie Copley is a Lecturer in Law in the School of Law and Justice at the University of Southern Queensland. She is based at the Ipswich campus.

Julie has significant public and private sector experience working with legislation and in legislative policy. Since 2016, she has been researching and teaching in the School of Law and Justice at UniSQ. In her research and her teaching, Julie encourages others to appreciate legislation as an authoritative source of law and the legislative process as a dignified mode of governance.


[1] Jeremy Waldron, Thoughtfulness and the Rule of Law (Harvard University Press, 2023); Julie Copley, ‘A Right to Adequate Housing: Translating “Political” Rhetoric into Legislation’ (2023) 31 Australian Property Law Journal 71.

[2] Treasury Portfolio, ‘Budget Speech 2024–25, Delivered on 14 May 2024 on the second reading of the Appropriation Bill (No. 1) 2024–25’, available at: <https://ministers.treasury.gov.au/ministers/jim-chalmers-2022/speeches/budget-speech-2024-25>

[3] Ministers for the Department of Social Services, The Hon Julie Collins MP, Minister for Housing, Minister for Homelessness, ‘Homes for Australia Plan: Delivering more homes for Australians – 14 May 2024’.

[4] Australian Human Rights Commission, Rights and Responsibilities: Consultation Report (2015) 39, available at <https://humanrights.gov.au/our-work/rights-and-freedoms/publications/rights-responsibilities-consultation-report>.

[5] Australian Bureau of Statistics, ‘Estimating Homelessness: Census Latest release (Released 22/03/2023)’, available at: < https://www.abs.gov.au/statistics/people/housing/estimating-homelessness-census/latest-release>.

[6] AHRC (n iv).

[7] Australian Bureau of Statistics, ‘4922.0 – Information Paper – A Statistical Definition of Homelessness, 2012’, available at: < https://www.abs.gov.au/AUSSTATS/abs@.nsf/mf/4922.0>.

[8] Christopher Essert, ‘Homelessness as a Legal Phenomenon’ in N Graham, M Davies and L Godden (eds), The Routledge Handbook of Property, Law and Society (Taylor & Francis, 2022) 137–139.

[9] ibid, 138.

[10] Jeremy Waldron, Liberal Rights: Collected Papers 1981–1991 (Cambridge University Press, 1993).

[11] Samuel Tyrer, ‘Home in Australia: Meaning, Values and Law?’ (2020) 43 University of New South Wales Law Journal 340, 341.

[12] Jessie Hohmann, ‘A Right to Housing for the Victorian “Charter of Human Rights and Responsibilities”?: Assessing Potential Models under the “International Covenant on Economic, Social and Cultural Rights”; the “European” Social Charter; and the “South African Constitution”’ (2022) 48 Monash University Law Review 132, 159.

[13] Australian Bureau of Statistics, ‘Estimating Homelessness: Census methodology’, available at: <https://www.abs.gov.au/methodologies/estimating-homelessness-census-methodology/2021>.

[14] Committee on Economic, Social and Cultural Rights (CESCR), General Comment No 4, 6th sess, UN Doc E/1992/23 (13 December 1991) annex III, [7].

Most states now have affirmative sexual consent laws, but not enough people know what they mean

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Jonathan Crowe, University of Southern Queensland and Gianni Ribeiro, University of Southern Queensland

Earlier this month, Queensland became the latest state to pass affirmative consent laws. This means consent is understood as ongoing communication for the purposes of rape and sexual assault offences.

Under affirmative consent, agreement to each sexual act must be actively communicated. That is, each person must say or do something to indicate consent and check the other is willing to proceed.

It’s common for victims of sexual assault to freeze or try to avoid further injury, rather than fighting back. The new laws make it clear these reactions are not consent.

But it’s not just Queensland that has such laws. Where else are they in place, and how are they working in practice?

What do Queensland’s laws do?

The new Queensland laws define consent as “free and voluntary agreement”. They clarify that a person does not consent where they do not “say or do anything to communicate consent”.

The laws also limit the mistake of fact excuse for rape and sexual assault. This excuse allows defendants to argue they honestly and reasonably — but mistakenly — believed the other person consented to sex.

The excuse has been heavily criticised for allowing defendants to rely on irrelevant factors, such as the other person’s clothing or failure to fight back, as the basis for alleged mistakes about consent.

However, the new laws say a belief in sexual consent is not reasonable unless the person took active steps to check their partner was consenting. This is consistent with an affirmative consent model.

Where else has similar laws?

Four out of the six Australian states and one of the two territories have now enacted affirmative consent laws. Tasmania was the first state to adopt an affirmative consent model in 2004.

The Queensland laws follow on the heels of recent legal changes in NSW, the ACT and Victoria. NSW and the ACT legislated affirmative consent in 2021, while Victoria did the same in 2022.

Western Australia and South Australia, meanwhile, are currently reviewing sexual consent laws and may well follow suit.

The national trend is clearly towards an affirmative consent standard. Some scholars have argued this could pave the way to aligning sexual consent laws across the nation — although significant challenges remain.

Critics of affirmative consent laws have suggested they could criminalise “spontaneous marital sex”. However, this ignores the social and legal context within which the laws operate.

There is no evidence of the laws being applied in this way.

Vital for debunking rape myths

Affirmative consent laws can only be effective and fair if people understand what they mean in practice.

However, public attitudes are not always consistent with an affirmative consent model. A NSW government study found 14% of young men “didn’t agree that you must seek consent every time you engage in sexual activity”.

Societal attitudes are clouded by persistent myths about consent and sexual violence. For example, people may think that someone who was drunk or did not fight back cannot be a victim of rape.

Rape myths are not limited to the general public. They influence judges, lawyers, police and jurors as well. Recent research has found rape myths in supreme court judgments and jurors’ perceptions of evidence in rape trials.

It is easy to assume that once affirmative consent laws are passed, they will be fully effective in the courts. However, years after affirmative consent was adopted in Tasmania, courts were still applying outdated legal principles.

Raising public awareness

For affirmative consent laws to serve their purpose, everyone — including judges, lawyers, jurors, police and the public — needs a clear understanding of what affirmative consent means.

Public awareness campaigns can help to clarify that consent is an active, ongoing process that cannot be inferred from silence or lack of resistance.

NSW’s Make No Doubt campaign was launched the week prior to its new consent laws taking effect, but a similar campaign has yet to be announced in Queensland.

The Queensland Women’s Safety and Justice Taskforce heard from victim-survivors, support services, lawyers, police and the broader community about the need for improved public education on consent.

Understanding consent in isolation is not enough. Comprehensive education on respectful relationships is vital to fostering a culture where affirmative consent becomes the norm.

The effectiveness of affirmative consent laws also depends on how they are applied by police, lawyers and judges. If police don’t give effect to the laws, then most sexual assaults will never reach prosecutors — let alone the courtroom.

Comprehensive training for these professionals is essential to ensure affirmative consent is implemented across the criminal justice system.

Since Australia’s affirmative consent laws are so new, there is limited evidence (beyond Tasmania) of exactly how they will work in practice. It will be important to build this evidence base to ensure the laws are functioning as intended.

Government action is essential

Online resources, such as Rape and Sexual Assault Research and Advocacy’s sexual consent toolkit, can help people learn about affirmative consent. However, these resources only reach a small part of the community.

To raise wider awareness of affirmative consent and to overcome persistent rape myths, large-scale efforts are needed.

Governments across Australia should invest in the success of affirmative consent laws through further public awareness campaigns, as well as training and education for criminal justice professionals and the public.

Otherwise, affirmative consent laws could turn out to be just words on paper.

Authors

Jonathan Crowe is Head of School and Dean of the School of Law and Justice at the University of Southern Queensland. 

Professor Crowe is Director of Research at Rape and Sexual Assault Research and Advocacy.

Gianni Ribeiro is a Lecturer in Criminology in the School of Law and Justice at the University of Southern Queensland. She is based at the Ipswich campus.

Dr Ribeiro receives funding from the Australian Institute of Criminology.

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Deliberation distortion: The impact of misinformation on jury decision-making

By Dr Gianni Ribeiro

Introduction

Jury deliberation is considered a cornerstone of fair trial proceedings. However, a newly published study in Frontiers in Psychology in January 2024, which I co-authored, delves into a crucial issue: the potential for jurors to misremember key evidence from the trial and introduce misinformation during deliberations.

Background

Image by OpenClipart-Vectors from Pixabay

The problem of memory distortion is well-documented in the context of eyewitness testimony, where misinformation can compromise the reliability of witness accounts (see Loftus, 2005, for a review). Discussion among eyewitnesses is a known source of memory distortion and can result in memory conformity, where each eyewitnesses’ account of the event starts to resemble other eyewitnesses’ accounts. As a result, discussion between eyewitnesses is discouraged in efforts to preserve memory integrity. However, in jury deliberations, it is assumed that discussions will enhance jurors’ memory of the key details relating to the case, leading to more accurate verdicts (Pritchard and Keenan, 1999, 2002; Hirst and Stone, 2017; Jay et al, 2019).

Before our research, only one study had explored whether misinformation introduced in jury deliberations affected juror memory and decision-making (Thorley et al, 2020). They found that the more misinformation mock jurors accepted (ie, misremembered it as evidence from the trial), the more likely they were to reach a guilty verdict.

Results

Our research builds on Thorley and colleagues’ (2020) work by also exploring the effect of pro-defence misinformation and whether judicial instructions warning jurors about misinformation may mitigate its influence in a sexual assault trial.

In our first study, we found that participants were more likely to misremember pro-prosecution misinformation as having been presented as evidence during the trial compared to pro-defence misinformation. However, misinformation did not impact ultimate decision-making in the case, which may be attributed to most participants (87.6%) leaning towards a guilty verdict prior to deliberation.

Therefore, in our second study, we used a more ambiguous case that resulted in a more even split of verdicts pre-deliberation (66.7% guilty). Here, we found that participants who received pro-defence misinformation were more likely to misattribute the misinformation as coming from the trial than participants who received pro-prosecution misinformation. Further, pro-defence misinformation led to a decrease in ratings of defendant guilt and complainant credibility, and an increase in the strength of the defendant’s case. However, the judicial instruction about misinformation exposure had no effect.

Conclusion

Together, the findings from our two studies suggest that misinformation introduced during jury deliberations may indeed distort memory of trial evidence and impact decision-making. Although there is popular support for judicial instructions as a legal safeguard, there is mixed evidence for their effectiveness and our research found that there was no effect of warning jurors about potential misinformation prior to deliberation. These findings call for a deeper exploration of strategies to maintain the integrity of juror deliberations and ensure the fairness of trial verdicts.

The article is open access, so you can read and download it for free here.


Author

Gianni Ribeiro is a Lecturer in Criminology in the School of Law and Justice at the University of Southern Queensland. She is based at the Ipswich campus.

Prior to joining the School of Law and Justice in 2023, Gianni obtained her PhD in applied cognitive and social psychology from The University of Queensland in 2020 with no corrections. She was a Postdoctoral Research Fellow in the School of Psychology at the University of Queensland working in collaboration with Queensland Police Service.

Ante-factum statutory general mandatory vaccination: A solution to legal hypocrisy in pandemics

By A/Pr Ciprian Radavoi

With the next pandemic likely not far ahead, the debate over the suitability of a broad, general vaccination mandate (‘GVM’) goes on. Proponents insist on utilitarian arguments related to the common good, while opponents rely on autonomy and individual freedom of choice.

In an article forthcoming in World Medical and Health Policy, I propose a novel argument in favour of GVM: vaccination should be mandatory because, in the fear-dominated climate of a pandemic, it becomes mandatory anyway — just not in a de jure, parliament-sanctioned form. As former Australian Prime Minister Morrison has put it, the government will make vaccination “as mandatory as you can make it”. That is, left to its own devices, executive power, from governments to the local administration and even corporations, will tend to impose on the non-vaccinated restrictions of such harshness that vaccination becomes de facto mandatory.

Public health policy is supposed to follow the so-called ‘ladder of intervention’, moving gradually from the least to the most restrictive measures in order to attain a certain objective. In pandemics, the objective is reaching herd immunity by having a high enough proportion of vaccinated. At the top of the ladder there is forcible vaccination, obviously prohibited in democratic countries. Next down the ladder are statutory mandates backed with fines, like the one imposed in Austria and a few other countries. Next down, there is a grey area where there is no official general mandate to vaccinate but, to persuade the population to do the right thing, all sort of prohibitions are imposed on the unvaccinated.

As making life difficult to the unvaccinated was at the heart of pro-vaccination policies in the COVID-19 pandemic, they were banned from pubs, churches, shops, etc. An element of reasonable choice remained for most of these: the pubgoer had the option to drink at home, the churchgoer could dispense with the priest’s service for a while and speak to the Divinity directly, the shopper could shop online or ask a friend to shop for them, and so on.

Photo by Daniel Schludi on Unsplash

But when the place you are banned from is the workplace, we are no longer talking about a real choice. ‘No jab, no job’ is not the same as ‘no jab, no pub’. Work is much more than the right to do a job and get a salary in return. As individuals we obtain an income allowing for a decent life (food, clothing, housing, medicines), but also dignity, self-esteem, and social recognition. A person who is denied the right to work is exposed to the risk of poverty, mental harm, and even suicide.

Given the fundamental importance of the right to work, and the longer effect of restrictions on this than on other rights in pandemics, “vaccination or joblessness” is not a reasonable choice the worker is presented with. Without choice, there is coercion. With coercion, there is a mandate. A de facto mandate, more precisely – one imposed by the executive (public or private) power in the absence of statutes stipulating general mandatory vaccination. And this creates three serious problems from a democracy and rule of law perspective:

  • First, banning the unvaccinated from the workplace was done in the COVID-19 pandemic — despite the fundamental importance of the right to work to the human being — without any genuine examination of the elements of balancing (necessity, proportionality) required whenever a right is limited by the authorities.
  • Second, numerous employers sacked the unvaccinated even in jurisdictions where this was not supported or required by public regulation. Corporate overreach, in the form of banning the unvaccinated from the workplace despite the lack of laws requiring this radical measure, is especially concerning given the increased concentration of unchecked power in private hands, in the contemporary globalised world.
  • And third, in a more general perspective, claiming that something mandatory is not mandatory is a case of legal hypocrisy. Legal hypocrisy obscures the harm inflicted on persons and communities, thus silencing the victims. It also erodes trust in the rule of law and in democratic institutions: how can the citizen believe in a system that publicly honours the fundamental liberal value of personal autonomy, while at the same time dismisses it in practice?

In the charged climate of a pandemic, overly zealous action by public and private executive power, including dismissal of the unvaccinated, seems inevitable, with the noxious effects enumerated above. It is better to fence this otherwise laudable zeal by simply making general vaccination de jure mandatory, with all the benefits deriving from this official status in terms of setting the proper balance between the rights and interests at stake. Intrusions into the right to work would be inevitable, but dismissal as a coercion tool would not be used. Indeed, in a parliamentary debate conducted without pressure before the next pandemic hits, dismissal for vaccination refusal would likely not pass the tests of necessity (since the pandemic is temporary, a temporary suspension would suffice) and proportionality (uncertain benefits in exchange for a very severe blow to a fundamental right).


Ciprian Radavoi is an Associate Professor in the School of Law and Justice at the University of Southern Queensland.

Ciprian is a lawyer and former diplomat, currently teaching and undertaking legal research in Australia (international law, tort law, sports law, human rights and social justice).

Research Seminar Series: 2024 Program

Photo by Chris Montgomery on Unsplash

UniSQ’s School of Law and Justice conducts an active and successful series of research seminars on a wide variety of legal topics for staff, students, and members of the legal community. 

The research seminar series is convened by Dr Sarah McKibbin. The seminars are usually held on the fourth Wednesday of every month from February to November. The seminars consist of a formal research presentation (40–45 minutes) followed by an opportunity to ask questions. The series hosts presenters from within UniSQ, from other universities in Australia, and from universities overseas.

Unless otherwise noted, seminars take place from 12.30pm to 1.30pm (Qld time). They will be presented on campus (Toowoomba and Ipswich campuses) and online (Zoom). All are welcome to attend.

Many past research seminars are recorded and available online.

For any enquiries, please contact Dr Sarah McKibbin: sarah.mckibbin@unisq.edu.au.

* This seminar is being held on a Thursday, but at the usual time of 12.30–1.30pm (AEST).

† TWB = Toowoomba campus

‡ IP = Ipswich campus

Call for Papers: Theology and Jurisprudence Symposium at UniSQ

The School of Law and Justice at the University of Southern Queensland will be hosting the Theology and Jurisprudence Symposium at the Toowoomba Campus on Friday 9 February 2024.

 
 

Theme


This annual symposium focuses on the relationship between theology and jurisprudence. Jurisprudence typically purports to provide a non-theistic account of ‘law’. However, foundational to many theories of law is some kind of theology.

Natural law, of course, is deeply influenced by its theological articulation through Thomas Aquinas and even modern ‘secular’ theories of natural law retain vestiges of this influence. The main proponents of legal positivism (such as Thomas Hobbes and John Austin) often engaged with different aspects of Christian theology.

Moreover, theological influences on legal theory are not limited to Christianity; jurisprudential viewpoints around the world have been shaped by a broad range of theological traditions. The tendency of jurisprudence to ground itself in some kind of theology is not surprising given its need for an ontological foundation for legal authority.

This symposium aims to consider jurisprudence from a variety of theological standpoints and critically examine the reliance of diverse theories of law on theological perspectives. 

Call for Papers


We invite papers that consider the prevailing theological assumptions of legal theories; unpack the different streams of jurisprudence from a theological perspective; explore how theology tends to define and undergird theories of law; or consider any other issues which engage both theology and jurisprudence.

Presenters are required to submit written papers (which can be works-in-progress) for distribution to the other symposium participants by 1 February 2024. The finalised papers may be considered for publication in a special journal issue or edited book. 

Submissions


Abstracts of 100–200 words should be submitted by email to Professor Jonathan Crowe (Jonathan.Crowe@unisq.edu.au) no later than 1 November 2023. Successful applicants will be notified by the end of November. 

Call for Papers

The Law, Religion, and Heritage Research Program Team of the University of Southern Queensland is hosting a scholarly colloquium on Religious Freedom, Sexuality and Gender Identity.

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Symbol of religious tolerance in Hamm, Germany

Recent events, including the introduction of the Human Rights Amendment Bill 2022, have placed the interaction between sexuality, gender and religious belief at the centre of public attention.

The debate surrounding this measure takes place within a broader conversation on acceptance of LGBTIQA+ communities, religious freedom, and the role of discrimination law in our society.

Date: Friday 28 October 2022

Venue: USQ Toowoomba Campus | Q Block | Q501 and Q502 (While physical attendance is warmly encouraged, a Zoom option will be available.)

Keynote Speakers: Professor Patrick Parkinson and Professor Anthony Gray

Invitation: At the colloquium, academics are invited to provide scholarly presentations that address the intersection of sexuality, gender identity, and religious belief in a legal context.

What is required to participate? Presentations should be 15-20 minutes in duration, with time for questions to follow. Presentations must be supported by a completed paper or work-in-progress suitable for distribution to other participants. The opportunity to contribute to a special issue of the Australian Journal of Law and Religion may become available after the colloquium.

Are you interested in contributing? Please register your interest in presenting at the colloquium by contacting Dr Jeremy Patrick: jeremy.patrick@unisq.edu.au

Date: Friday 28 October 2022

Venue: USQ Toowoomba Campus | Q Block | Q501 and Q502 (While physical attendance is warmly encouraged, a Zoom option will be available.)

Keynote Speakers: Professor Patrick Parkinson and Professor Anthony Gray

Invitation: At the colloquium, academics are invited to provide scholarly presentations that address the intersection of sexuality, gender identity, and religious belief in a legal context.

What is required to participate? Presentations should be 15-20 minutes in duration, with time for questions to follow. Presentations must be supported by a completed paper or work-in-progress suitable for distribution to other participants. The opportunity to contribute to a special issue of the Australian Journal of Law and Religion may become available after the colloquium.

Are you interested in contributing? Please register your interest in presenting at the colloquium by contacting Dr Jeremy Patrick: jeremy.patrick@unisq.edu.au

Please include a CV and a brief abstract of the planned paper (100–250 words).

You should submit your expressions of interest by 28 August 2022.

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The University of Southern Queensland is committed to the values of diversity, multiculturalism, and gender equity by fostering an inclusive environment that embraces difference and supports, values, and respects the unique perspectives and approaches of all individuals. Please visit https://www.unisq.edu.au/about-unisq/values-culture/diversity-inclusion for more information.

Legal Realism and Australian Constitutional Law


Legal Realism and Australian Constitutional Law

Jeremy Patrick, University of Southern Queensland

Introduction

It has become textbook wisdom that the High Court of Australia makes its decisions in an extremely technical and (for lack of a better word) ‘legalistic’ way.[1]  This is true not only in areas of law where such a method of decision-making would seem natural, such as tax, but also in areas where it may seem surprising—such as constitutional law.  A ‘strict and complete legalism’ (in Dixon CJ’s famous words)[2] means decisions should be made purely by neutral, objective application of legal principles.  Anything else—policy considerations, personal views, broader ramifications, empathy for the persons affected, and so forth—must be excluded.  Under a legalist model of judicial decision-making, judges are just like referees at a rugby match—they objectively determine whether a try has scored or not.

However, there is another theory of jurisprudence that presents a diametrically opposed explanation for how judges make decisions: legal realism.  If legalism posits that judges apply rules to reach a result, legal realism says the opposite actually takes place, as judges first reach the result they like and then rhetorically justify those results by reference to rules. For appellate courts (like the High Court), legal realism argues that there is simply a nearly inexhaustible array of different rules, conventions, precedents, distinctions, discretions, and ambiguous standards (‘reasonable’ or ‘proportionate’) that allow for almost any outcome to be plausibly justified as ‘what the law requires’. 

This is not to say that judges are cynical liars deceiving the public; judges acting in good faith with the very best of intentions will still find any of their pre-existing inclinations ‘validated’ by a review of the authorities—at least if they look hard enough.

Legal formalism or realism?

It is clear that there is a clash between irreconcilable theories of judicial decision-making. The legalistic, positivist view publicly embraced time and again by members of the High Court is that their decisions are based on rules: rules entrenched in the Constitution by the framers, rules proclaimed in statute by Parliament, and rules carefully crafted over decades by previous courts (precedent). 

The critical realist view is that the ‘rules’ (and the ‘facts’ that they’re applied to) are so inherently manipulable that nearly any result can be announced and made to look plausible.  Thus, a realist view of High Court decision-making would posit that other factors drive actual results.  These factors might involve the personal moral and political views of the judges and their background characteristics, an implicit deference to public opinion, a reluctance to disturb established institutions and the status quo, and many more. At an abstract level, no resolution between the competing theories is possible unless one is shown to be logically self-contradictory—and neither has been.

Empirical study

However, the use of empirical data can be valuable in lending credence or doubt to an abstract theory.  A recent research project conducted by the author tested the realist model of judicial decision-making by positing a particular non-rules-based factor that could drive decisions in constitutional cases. 

Hypothesis

The hypothesis tested was whether a single factor (whether or not the Commonwealth is a party) was enough, standing alone, to reliably predict the outcome of a constitutional law case in Australia. 

If the hypothesis was found to be validated, that could be an important indicator that the elaborate doctrinal structure of Australian constitutional law has little actual impact on decisions.  Instead of ‘the rule of law’, the primary tenet of constitutional law could become ‘the Commonwealth (almost) always wins’. 

On the other hand, if the hypothesis failed substantially, that could indicate that perhaps more weight should be given to the legalist view that neutral rules, objectively applied, determine outcomes.

Dataset

The research looked at all High Court cases from the years 2000 to 2020 (inclusive). Through a set of objective binary decisions, this set of cases was narrowed by excluding:

  1. Cases that did not have a constitutional element; and
  2. From what remained any cases in which the Commonwealth was not a party.

The final set of cases which involved constitutional law and which the Commonwealth was a party was then examined to decide whether the Commonwealth prevailed. 

Results

The research finding was that the Commonwealth prevailed in 79 per cent of these cases. 

If this finding is correct and validated with subsequent empirical research, the fact that the Commonwealth wins four out of every five constitutional cases requires explanation.

The results obviously are not the result of mere random chance, which could only exist if the outcome was closer to 50-50. 

Potential explanations

Nonetheless, correlation is not causation, and multiple ways to account for the observed effect exist.

Lawyer quality

One initially plausible explanation for the disparity in results is that parties litigating against the Commonwealth are simply finding themselves out-lawyered by the expert lawyers and experienced advocates in the Solicitor-General’s office. However, State governments also maintain experienced experts in constitutional law, and the High Court bar in this area is a small but select group of ‘repeat player’ barristers. 

Resources

Another explanation that might be proffered is that the Commonwealth has (quite literally) unmatchable financial resources for litigation—could it just be outlasting its adversaries? This explanation might make sense in some types of cases in other areas (such as environmental law), but constitutional law cases are generally decided on agreed statements of facts and by parties with sufficient resources to stay the course. 

The Constitution

Perhaps the Commonwealth usually wins just because that’s how the Constitution was drafted? Although there were clear defects in the drafting of the Australian Constitution, it is clear that it was intended and structured to create a federal system in which the national government had a limited set of enumerated powers—the dramatic growth of Commonwealth legislative and executive power at the expense of the states over the past century was certainly not by design. Interpreting powers broadly and limitations narrowly was not an inevitable outcome but a deliberate choice by the High Court, and it is begging the question to explain that the Commonwealth usually wins High Court cases by stating that is due to the Commonwealth having usually won High Court cases.

Legal realism

A legal realist explanation for the empirical observation that the Commonwealth wins four out of every five constitutional law cases would likely centre around the most common characteristics of the members of the High Court. There is no national merits selection test to become a High Court justice; appointment is purely at the discretion of the Commonwealth executive.

Historically, and still today, most individuals appointed to the High Court are white, from upper middle-class backgrounds, attended a prestigious (usually private) high school in a capital city, attended a Group of Eight university, and then went onto a successful career in private legal practice for a well-connected law firm.[3] Not every member of the High Court has held each of these typical characteristics, of course, but enough have that the members tend to share a general worldview and set of personal values that are inevitably reflected in the decisions they reach. 

The argument would be that High Court justices are, by virtue of their background and selection, establishmentarian institutionalists. They have found enormous personal and career success working within the establishment, believe they have reached their present position through merit, and are acculturated to a conservative institution known for its preservation of tradition and the status quo. High Court justices would probably not have been selected for the position if they were openly sceptical of the ever-expanding scope of Commonwealth legislative and executive power, repeatedly found against the Commonwealth as a lower court judge, or were perceived by the executive as a (potentially hostile) ‘outsider’ to the system—whatever their ‘merit’ as a lawyer, legal scholar, or judge. 

In essence, to become a High Court justice means having been well-liked and well-regarded within a particular system, with the unsurprising result that one usually supports that system against constitutional attack from outside. Building on the legalist analogy, if judges are mere referees, they are referees chosen solely at the discretion of a single team in the league, and we perhaps therefore should not be surprised that their on-the-field rulings tend to favour that team.

Implications

If legal realism as an explanatory theory better explains and predicts High Court decision-making in constitutional cases, this has major implications for how we teach about the constitution in law schools, how we advise clients on the likelihood of success or failure in contemplated claims, and how we theorise the importance (or lack thereof) of the elaborate doctrinal framework of constitutional law. Perhaps, if nothing else, we should learn that understanding the formal rules of the game may be of little benefit in predicting who will ultimately win it.


This post contained extracts from the full version of Jeremy’s research, which can be found on the Social Science Research Network.

Read more: Legal Realism and Australian Constitutional Law (SSRN)


[1] See, eg, George Williams et al, Blackshield and Williams Australian Constitutional Law and Theory: Commentary and Materials (Federation Press, 7th ed, 2018) 170 (describing the ‘triumph of legalism’ in High Court jurisprudence ever since the Engineers’ Case).

[2] Owen Dixon, ‘Address upon taking the oath of office in Sydney as Chief Justice of the High Court of Australia on 21st April’ (1952) 85 CLR xi.

[3] See, eg, Harry Hobbs, ‘Finding a Fair Reflection on the High Court of Australia’ (2015) 40(1) Alternative Law Journal 13.

Save the Date: Military Domestic Engagement in Asia-Pacific Webinar


The Philippine Political Science Association and International Society for Military Law and the Law of War (supported by the European Research Group on Military and Society) are hosting a Zoom webinar on Monday 8 November 2021 at 10 AM Central European Time (5 PM Taipei Time, 6 PM Tokyo Time).

This webinar will focus on legal regimes in the Asia-Pacific region that support the deployment of armed forces for domestic purposes (military call-out powers), such as natural disasters and counter-terrorist activities. Domestic deployment of the military raises a number of legal, policy and human rights issues, topics which will be discussed by experienced civil and military participants from Australia, Indonesia, Japan, Philippines, and Thailand. USQ School of Law and Justice academic, Professor Pauline Collins, is a confirmed speaker.

Further information and registration details are in the flyer below. Closer to the date of the webinar, another flyer will be available with all the confirmed speakers.

Flyer_Military_Call-out_Laws_save-the-date_EUROPE-1

The Triumph of Parliament over Absolute Monarchy

Author: Riley Wilkes (USQ JD Student)

Unsurprisingly, Australia’s array of civil and institutional rights has been inherited largely from our English legacy. The same goes for many common law jurisdictions and Western democracies around the world. As ever, the history is complex but interesting.

The 1686 case of Godden v Hales has played a pivotal role in the development of many privileges enjoyed by citizens of western democracies today. To understand the origins of the case, we must consider the power struggles between the autocratic-ruling early Stuart monarchs and their respective Parliaments. These frictions took place in the context of broader religious conflict and came to a head with a constitutional crisis.

Godden v Hales focused on the central contention of this crisis: who has supremacy between the Crown and the Parliament? Its finding in favour of the Crown and subsequent continuance of autocratic rule led to the Glorious Revolution. Through this event, the English Bill of Rights was created, from which our modern systems of government are derived.

Relevance to the Modern Period

In modern Australia, we enjoy many privileges which are taken for granted. The concepts of ‘rule of law’ and ‘separation of powers’ mean very little to the lay person but have an enormous impact on the rights of citizens. For example, parliamentary privilege enables the Australian Parliament to serve its citizens and carry out its functions unhindered by the threat of legal intervention.[1]

These principles, among others, are rooted in the English Bill of Rights 1689. This Bill was the first of its kind and a precursor to the celebrated Bill of Rights 1789 of the United States and has shaped many similar pieces of legislation around the world.[2] It is the foundation of the institutions which prevent autocratic rule in modern democracies.

Unlike most other liberal democracies, Australia does not have its own Bill of Rights, but the original English statute remains in force in Queensland through the Imperial Acts Interpretation Act 1984 (Qld) and other States through similar respective legislation.[3] These principles are widespread today, but how did they come to be? And how does Godden v Hales come into it?

Historical Context

Before we delve into the issues of the case which have asserted its place in the history of common law, let us understand the world in which it took place. In England and its peripheries, the seventeenth century was beset with instances of families, factions, monarchies and legal and religious institutions vying for power. Many of these struggles were part of — if not centred on — the tension between the Catholic and Anglican Churches with roots dating back to the Reformation under Henry VIII.[4] This religious tension often contributed to the power struggles between the Parliament and the King which plagued the reigns of the early Stuart monarchs throughout the seventeenth century. 

James I and Charles I (1603–1649)

James I and Charles I believed in the divine right of Kings and often clashed with England’s Parliament, which asserted its power in governance much more forcefully than in Scotland, where James was used to ruling. Accordingly, these monarchs seldom summoned the Parliament, except when they desperately needed it to grant funds, which were often not provided.

By this time, England was very much a Protestant kingdom and Charles’ marriage to a Catholic French princess caused controversy.[5] This, along with his autocratic use of prerogative powers to obtain finances, unsuccessful military campaigns and attempt to control religious practices throughout the Kingdoms, precipitated the English Civil War fought between Parliamentarians and Royalists.

The Wars of the Three Kingdoms, which included the English Civil War culminated in Parliamentarian victory, the trial and execution of Charles I, the overhaul of the monarchy and establishment of the Commonwealth of England. This system soon failed however and Charles II (son of Charles I) was reinstated on the throne, agreeing to work in cooperation with the new Parliament.[6]

Charles II and James II (1660-1688)

Portrait of Charles II and James II

Charles II was a more diplomatic ruler who intended to implement religious tolerance, but the new Royalist Parliament was intent on suppressing Catholics and punishing Puritans (who fought against the Royalists in the civil war and were in power during the Interregnum).[7] It passed a series of statutes aimed at suppressing Catholics and non-conformist Protestants, called the Clarendon Code.

Though Charles II attempted to eschew Parliament’s strict measures, pressure from the Parliament and conservative Anglicans was too great. The Parliament implemented the Test Acts of 1673 and 1678 which excluded Catholics and Recusants from public office, including military officers and members of Parliament.[8]

Around this time, there was increasing paranoia towards Roman Catholicism. Events of the previous century set fear into the minds of English Protestants, including the punitive anti-Protestant reign of Mary I, the St Bartholomew’s Day Massacre in France, the Spanish Armada attack, the Gunpowder Plot and the Irish Rebellion of 1641.[9] Anyone seen to have links to Catholicism was viewed with suspicion.

This somewhat overshadowed Charles II throughout his reign for several reasons: his views on religious tolerance, having a Catholic mother, and having spent 12 years in exile in Spain and France. It is even suggested that he secretly negotiated with King Louis XIV of France to receive annual payments in exchange for eventually converting to Catholicism![10] This was nothing compared to the next King however — his brother James II.

Now, one would tend to think that, having been witness to his father’s overthrow and destruction on account of his clashes with Parliament, James II might have done more to acquiesce to the Lords who reinstalled his family on the throne. This was not the case. As young heirs to great monarchies tend to do, he felt entitled to do as he pleased, learning little from the problems of his father’s reign and even exacerbating them on his own.

Charles II may have been a ‘closet Catholic’ but James II openly converted to Catholicism, disregarding the affront caused to the Church of England and largely Protestant population.[11] He was an abrasive absolutist who made no apology for the actions he took, including re-establishing the Court of Ecclesiastical Commission.[12]

In 1685, an unsuccessful attempt at usurping the throne by his Protestant nephew, the Duke of Monmouth (the illegitimate son of Charles II) saw James II assemble forces and appoint Catholic officers within his army, overriding the Test Acts in the process. The Rebellion was quickly quashed and the subsequent Bloody Assizes, overseen by Baron Jeffreys, set an example for what any prospective traitors could expect.

Despite the threat having ceased, James II declared that he would not dissolve his army and, furthermore, that he would not dismiss his Catholic officers, despite Parliament’s requests for him to do so.[13] The King deemed that he held the power to dispense with a law in individual cases and even suspend them altogether. This issue was argued in the case of Godden v Hales.

Godden v Hales (1686)

Sir Edward Hales was one of the Catholic officers who was commissioned by the King to fight the Monmouth Rebellion. His footman, Arthur Godden, brought an action against Hales in the King’s Bench on the authority of the Test Acts, motivated by the reward of £500 to informers.[14] The case took place in 1686 and was presided over by: Sir Edward Herbert, Chief Justice; Sir Francis Wythens, Justice; Sir Richard Holloway, Justice; Sir Robert Wright, Justice; Sir Robert Sawyer, Attorney General; and Sir Thomas Powis, Solicitor General.[15]  

The First Test Act stated that ‘[A]ll that do refuse to take the said oaths and sacrament in the said courts and places … shall be ipso facto adjudged incapable and disabled in law … to have … the same office or offices.’[16] Hales argued that the colonelcy was granted to him by a royal warrant ‘dispensing [him] from taking the Oaths of Allegiance and Supremacy etc. required by various Acts of Parliament’.[17] Mr Northey, the counsel for the Plaintiff, argued on the precedent of cases relating to simony and that the disability to hold offices enacted in the First Test Act could not be waived by royal dispensation.

Importantly, six of the 12 judges were dismissed by the Crown prior to the trial for not promising to support the dispensing power.[18] Unsurprisingly therefore, the judges found in favour of Hales:

[A]ll the Judges (except Street and Powell, Justices, who doubted) were of opinion, that the Kings of England were absolute Sovereigns; that the laws were the King’s laws; that the King had a power to dispense with any of the laws of Government as he saw necessity for it; that he was sole judge of that necessity; that no Act of Parliament could take away that power; that this was such a law.[19] 

Godden v Hales

Aftermath

Bill of Rights 1689

King James apparently saw this as a green light to do as he pleased, putting Catholics and dissenters in many important positions, suspending the Clarendon Code, issuing a Declaration of Indulgence (1687) which promoted religious tolerance, and manipulating the Parliament by modifying electorates.[20] The birth of a Catholic son generated fears that a Catholic dynasty would eventuate and, before long, there were signs of dissent in the Kingdom. Seven bishops (including the Archbishop of Canterbury!) who had been imprisoned for questioning the King’s prerogative powers were acquitted by a jury.[21]

Just prior to the birth of the Catholic Prince, seven noblemen invited William of Orange, the Protestant nephew and son-in-law of James, to usurp the English Crown. Heeding this threat, James attempted to renege on many of his reforms, but it was too late: William landed with an army and James fled with his family, resulting in the Glorious Revolution.[22]

The new Parliament met in 1689 and set about resolving the issues of the past century. Notably, the Toleration Act repealed many of the regulations of the Clarendon Code;[23] and the Bill of Rights (fully: An Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown) established the doctrine of the rule of law in England which continues to reverberate throughout the legal systems of common law countries around the world. It, among other things:

  • confirmed the supremacy of Parliament over the Crown;
  • prohibited the dispensing with or suspending of laws without Parliamentary approval;
  • mandated free elections and freedom of speech within Parliament;
  • declared that Parliament had to meet frequently;
  • prohibited excessive bail, excessive fines and cruel and unusual punishment.[24]

From the summary of events provided above, we can see how the 1686 case of Godden v Hales has played a substantial role in the development of many privileges enjoyed by citizens of western democracies today. The reigns of James I through to James II demonstrate the attempts at autocratic rule and flouting of the Parliament by the respective monarchs. The results were wars, power struggles and revolutions, imbedded with religious antagonism.

Godden v Hales highlights the tensions between Crown and Parliament and can be seen as a test (albeit a rigged one) in determining which would prevail. The outcome of its finding — unrestrained ruling by James II and the subsequent backlash — resulted in the Glorious Revolution and creation of the Bill of Rights, which continues to resonate into the modern period.

We, as Australians today, enjoy freedoms that were founded in that Bill, on the other side of the world and before our nation was even colonised. Despite this, there exists concern about the lack of tangible protections of our rights and a significant movement calling for the creation of a codified Australian Bill of Rights.

I would invite readers to do their own research and give their opinion on whether Australia needs to create its own human rights legislation. Here, you can view the most recent attempt at establishing such legislation —  the Bill of Rights Bill 2019, tabled by the independent federal Member for Clarke, Andrew Wilkie.[25]


[1] ‘Parliamentary Privilege’, Parliament of Australia (Infosheet, March 2020) <https://www.aph.gov.au/About_Parliament/House_of_Representatives/Powers_practice_and_procedure/00_-_Infosheets/Infosheet_5_-_Parliamentary_privilege>.

[2] ‘English Bill of Rights’, History.com (Web Page, 26 February 2020) <https://www.history.com/topics/british-history/english-bill-of-rights>.

[3] Imperial Acts Interpretation Act 1984 (Qld) sch 1.

[4] ‘Christianity in Britain’, BBC (Web Page, 27 April 2011) <https://www.bbc.co.uk/religion/religions/christianity/history/uk_1.shtml>.

[5] Carolyn A Edie, ‘Tactics and Strategies: Parliament’s Attack upon the Royal Dispensing Power 1597–1689’ (1985) 29(3) American Journal of Legal History 197, 215.

[6] Ibid 216.

[7] Ibid 216–7.

[8] Dennis Dixon, ‘Godden v Hales revisited – James II and the dispensing power’ (2006) 27(3) The Journal of Legal History 129, 136–7.

[9] Lachlan Malone, ‘Hellish Enfleshment: Embodying Anti-Catholicism in Early Modern English Culture’ (PhD Thesis, University of Southern Queensland, 2015) 7, 10, 14, 53.

[10] Edie (n 5) 220–1.

[11] Ibid 226.

[12] Ibid 233.

[13] Dixon (n 8) 151.

[14] Ibid 137.

[15] Godden v Hales (1686) 2 Show KB 475; 89 ER 1050.

[16] Test Act 1673, 25 Car 2, c 2, s 4 quoted in Dixon (n 8) 143.

[17] Calendar of State Papers Preserved in the Public Record Office, Domestic Series, James II, vol 2, Jan 1686-May 1687, London, 1964, entry 111 quoted in Dixon (n 8) 137.

[18] Dixon (n 8) 138.

[19] Godden v Hales (1686) 2 Show KB 475, 478; 89 ER 1050, 1051.

[20] Edie (n 5) 209.

[21] Ibid 228–9.

[22] Ibid 230.

[23] Ibid.

[24] ‘English Bill of Rights’ (n 2).

[25] Australian Bill of Rights Bill 2019 (Cth).

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