University of Southern Queensland

Category: Staff

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).

Whip Use in Horse Racing

Courtesy of Pixabay

At the end of last year, I was fortunate to have an article titled ‘Could existing anticruelty laws ban whip use in horse racing?’ published in the Adelaide Law Review. More recently, I was interviewed on the Adelaide Law Review podcast, where we discussed some of my article’s background and broader implications.

Adelaide Law Review podcast

The article aimed to investigate whether industry-compliant whip use in horse racing breaches existing animal cruelty laws.

This question has been of interest to me for some time and was one of the reasons I decided to do a PhD. My PhD ultimately took a different path, but I could not find a satisfactory answer to this question during my reading in animal law/animal protection scholarship. I know, for example, that if I whipped my dog Lucy (sorry, Lucy!) to make her run faster, I could (and would likely) be prosecuted by the RSPCA.

So why aren’t jockeys in a horse race prosecuted?

There are many ways to answer this question, from the philosophical (as property, animal interests are not recognised by the legal system) to the more practical.

I took the latter approach. There is, however, no reported case (that I found) involving whipping a horse during a horse race that was compliant with industry standards. Because there is no case law ruling whether industry-compliant whip use was animal cruelty, I turned to principles of statutory interpretation.

By ‘industry-compliant’ whip use, I refer to the Australian Rules of Racing and the Local Rules of Racing, which permit using so-called ‘padded whips’ within specific parameters. So, I acknowledge that if a jockey was to whip a horse in the stables, then there is a good chance that the RSPCA might prosecute — whether the RSPCA would is the subject of another article.

But, my article seeks to answer whether a jockey could be prosecuted for animal cruelty for whipping a horse in compliance with the Rules of Racing.

Using the ‘always speaking’ approach to statutory interpretation, I argue that it is theoretically possible for a court to interpret the words of qualification in the animal cruelty provisions as extending to industry-compliant whip use based on new scientific evidence that horse skin is more sensitive than previously believed.

So, why hasn’t there been a prosecution for industry-compliant whip use? As I cite in the article, recent scientific evidence debunks the myth that horses’ skin is thicker than humans. Instead, the evidence suggests that from an anatomical perspective, horses’ skin is just as sensitive, if not possibly more sensitive, than human skin.

I argue that three constitutional and contextual considerations will likely sway a court in considering whether industry-compliant whip use could constitute animal cruelty.

Consequences of interpretation

This means that courts may consider the consequences of a particular statutory interpretation before adopting a specific meaning. For example, this was done by the High Court of Australia in Project Blue Sky. The majority found that ‘[e]xpense, inconvenience and loss of investor confidence’ would flow from a particular interpretation. Based on these potential consequences, the majority decided to take an interpretation that avoided the adverse effects identified.

Presumption against retrospectivity

It is presumed that legislation won’t operate retrospectively unless there are clear words to this effect.

This is for excellent reasons — it offends people’s sense of fairness if they did something that was lawful at the time but later determined to be unlawful.

This is what I think could be at issue if a court was to interpret the words of qualification in the way I previously put forward — basically, a jockey would be whipping their horse on the widespread belief that this is legal (providing they are doing so per the rules of racing).

Generally, where there is an alternative interpretation open to the court that does not involve retrospectivity, the court will take it — especially in criminal law matters, of which the animal welfare legislation is classified.

Separation of powers

While the common law is an important and valuable source of law, deciding on the lawfulness of an activity is the proper responsibility of a democratically accountable Parliament. It would therefore breach the separation of powers in the Constitution if Courts decided questions of whether certain activities (previously thought to be lawful) should now be unlawful — especially controversial activities such as the whipping of horses for entertainment.

I believe these three considerations explain why we haven’t and are unlikely to see a prosecution for industry-compliant whip use despite the research suggesting padded whips cause horses pain, possibly significant pain.

This does not suggest that the judiciary cannot use the ‘always speaking’ approach to extend existing statutory words and phrases in legislation. But, whether industry-compliant whip use breaches animal cruelty laws, this would require a level of judicial activism that is very unlikely until more people in society change their relationship with animals. And by that time, the Parliament would have probably changed the laws.

You can read the full article here. I hope you find it interesting and thought-provoking.

Opinion: Grant worship is damaging the humanities

By Dr Jeremy Patrick, Senior Lecturer, University of Southern Queensland

In the past two decades, many Australian universities have made dramatic shifts in how they recognise research. Often, these shifts are in direct response to government incentives. There have been periods where the sheer quantity of peer-reviewed research was the goal, periods where only ‘Q1’ publications were deemed valuable, periods where ‘impact and engagement’ looked to be the next big thing, and more. Most recently, the only thing that really seems to matter is research income—grants.  Any academic discipline within a university that can’t show major grant income could be punished by mediocre (or worse) ratings in ERA rankings, leading many universities to respond by explicitly building research income into the evaluation of individual academics when it comes to matters like promotion and workload allocation for research.

It may be plausible to argue that this focus on research income is warranted for the sciences. Cutting-edge research in medicine, physics, agriculture, engineering, and related fields isn’t done well on the cheap. In a field where a single piece of laboratory equipment could cost hundreds of thousands or even millions of dollars, every dollar that comes into a university via external research income helps build capacity for future research success.

But—at least for now—universities are more than just STEM research institutes.  The humanities have been poorly served by this new worship of grant success as the be all and end all of what makes a good researcher. At my university, a former research director once remarked: ‘It’s not like anyone does research sitting in their office anymore.’ He had a science background, and I can’t comment on whether or not that’s true in STEM. But for the humanities, I can attest that many of us do perform most of our research sitting behind a desk. In law, the doctrinal methodology of synthesising case law and evaluating legal rules is still foremost in the discipline’s legal journals. A literature scholar looking at portrayals of gender in the works of EM Forster or a political scientist labouring over census data to analyse voting patterns also (probably) don’t need hundreds of thousands of dollars in grant income in order to do good work and publish in the best outlets. 

The distorting effect comes when universities adopt a ‘one size fits all’ approach and evaluate scholars in the humanities by exactly the same criteria that it evaluates scholars in the sciences. Although grants do exist in the humanities, they do so at only fraction of the number and dollar value available for the sciences. More so, many particular disciplines in the humanities have a very different approach to scholarship than the sciences: we don’t usually put fifteen names on a five-page article, track prestige by citation count, ‘partner with industry,’ or join established research teams as doctoral students. There is a fundamental difference in kind that needs to be recognised, and policies that fail to do so (for administrative simplicity or a false equality) are deeply problematic.

Grant worship has a more fundamental flaw, however.  Universities have begun to lose sight of what grants are: a means to an end. Grants are an input, not an output. The ability to wheedle money out of the ARC or some corporation is certainly a skill, but it’s not necessarily the same skillset of what we traditionally value in scholars—the ability to contribute to knowledge. In the past several years, we’ve begun to value the mere obtaining of money for research far more than the actual research itself. We’ve gotten to the point, even in the humanities, where winning a grant to write a book is celebrated (and rewarded internally) far more than the actual writing and publishing of the book. And those scholars who publish regularly without having to resort to grant money? They are, by (new) definition, simply not very good researchers—despite their output constituting the vast majority of total research output. The incentive now is to apply for grants just for the sake of getting the prestige of getting the grant, regardless of whether or not the money is actually necessary or the project is one that the academic is genuinely interested in. And, of course, for the humanities there are so few grant opportunities that all the futile time invested in making repeated applications could probably have been better spent doing actual research.

In this new world for the humanities, ‘publish or perish’ has become ‘fund-raise or perish.’ Though, to be fair, ‘perish’ probably just means being ‘punished’ by additional teaching loads instead of research time, along with a permanent relegation to the bottom ranks of the academic ladder. It still beats digging ditches, of course. But universities need to have a more realistic view of what scholars in the humanities do, and how unrealistic it is to expect more than a handful of us to win significant research income.

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.