By Andrew S. Kulikovsky
This paper was presented as part of a meeting of the Western Australian Jurist. The paper can be downloaded here, and the PowerPoint presentation can be downloaded here.
The other topic covered by this author, “Christianity and Human Rights” will appear in the 2017 edition of the Western Australian Jurist.
Introduction
Being based on the English legal system and English common law, Australia’s legal system is among the best in the world. With well-trained legal practitioners and an independent judiciary applying the common law and the statute law as enacted by the duly elected Parliaments of the nation, prosecutors, defendants, plaintiffs and respondents can be confident that they will receive a fair and professionally run trial, and a just result in most cases. Nevertheless, it is not a perfect system, and manifestly unjust outcomes will occur from time to time.
More concerning, however, is that the inherent strengths of our legal system have started to be weakened by Governments and some courts. This paper will examine some of these trends an offer some suggestions on how they be halted and/or reversed.
Statutory Interpretation
Statutes are written laws. As with all written texts, statutes must be read and interpreted according to normal and common linguistic conventions. A statute employs normal human language and is subject to the same grammar and semantics of ordinary language usage, as well as being subject to the same ambiguities. Unlike spoken language, where tone of voice and body language aid in the interpretation process, interpreters must rely on the text itself. Statutory interpretation is not always easy, particularly if the statute was enacted many years ago, and the meanings of key words have changed over time. It may contain gaps and ambiguities, but the contextual information provided by the historical, political and cultural circumstances of when the statute was enacted may assist in the process of interpretation. Nevertheless, the courts must do their best to apply the law in a way that best reflects the legislators’ intent to the given circumstances.
According to the principle of the ‘separation of powers,’ the parliament makes laws, the courts interpret and apply them, and the executive enforce them. To some extent, the courts do ‘make’ law when developing the common law, but this is normally limited to applying common law principles to new and novel situations and scenarios. In any case, the courts’ power to interpret statutes is not a licence to rewrite them! As Peter Benson put it, the primary purpose of statutory interpretation is “to give effect to the intention of the [law-maker] as that intention is to be gathered from the language employed having regard to the context in connection with which it is employed.”[1] Likewise, former Chief Justice Murray Gleeson said: “Judicial exposition of the meaning of a statutory text is legitimate so long as it is an exercise…in discovering the will of Parliament: it is illegitimate when it is an exercise in imposing the will of the judge.”[2] Therefore, Parliament must have legislative supremacy and serve to restrain the courts from diverting from the Parliament’s communicated intent.
There is, however, some evidence that this fundamental principle of interpretation is being eroded. The 2011 case of Lacey v A-G of Queensland concerned an appeal by the Attorney-General against an “inadequate” sentence for manslaughter. Section 669A (1) of the Queensland Criminal Code provided that the Court of Appeal “may in its unfettered discretion vary the sentence and impose such sentence as to the Court seems proper.” The case ended up in the High Court, and the Court was asked to decide whether “unfettered discretion” really meant what it said.[3] The majority of the Court (6-1) held that it did not.
The majority argued that the appellant would need to show clear judicial error in order to have the sentence increased, otherwise it would be contrary to “deep-rooted notions of fairness and decency” and “infringe upon fundamental common-law principles, rights and freedoms.” Common law principles of interpretation would prevent an increased sentence “unless clear language required it.”[4]
In dissent, Heydon J considered that the statute’s words “unfettered discretion” to be clear language. Heydon J showed that up until 1973, the Court had held that there was indeed an unfettered discretion, but from 1973 onwards, the Court began to interpret the provision as the majority had done—requiring that judicial error be shown. Therefore, the Queensland Parliament explicitly added the word “unfettered” to the provision in the code in 1975. As the Minister for Justice explained in Parliament at the time, the insertion of “unfettered” was to communicate that Parliament intended to explicitly overrule the Court of Appeal’s interpretation.[5]
However, the majority of the High Court dismissed the Minister’s statements in Parliament as irrelevant, suggesting that the very idea of legislative intention and legislative purpose were fictions.[6] Legislative intentions and purposes are constructed by the Courts using interpretive principles including common-law principles. Moreover, the common law imputes to the law makers an intention not to overrule common law principles and freedoms.
The majority’s justification for this approach is bizarre and leads to absurdity. Firstly, as Heydon J pointed out, it would mean that the Parliament’s 1975 amendment achieved nothing and the 1973 Court ruling was unaffected. Secondly, as Goldsworthy has pointed out, there is a “crucial difference between principles of statutory interpretation, and ordinary common law rules and principles governing the law of property, contracts, torts and so on.”[7] While Courts have clear authority to continue to develop common law principles regarding the latter, they do not have the authority to change the principles of statutory interpretation because they would then become law makers themselves and thus violate the separation of powers.
Thirdly, to assert that legislative intention does not actually exist is the most bizarre point of all. This would mean Parliaments enact raw texts containing words and sentences that have no defined objective meaning until the Court gives it one—and even then, a future Court may change it! If this is the case, why have a Parliament at all?
In addition, as Goldsworthy points out, if legislative intentions do not actually exist, it makes no sense to argue, as the majority did, that the common law imputes to law makers an intention not to overrule common law principles and freedoms, because the Parliament has no actual intention!
How can anyone follow and obey a law that is unclear and may only become clear after a court has interpreted it? Even worse, how can anyone follow and obey a manifestly clear and unambiguous law, only to be found in breach of that law because a court has reinterpreted it to mean something quite different?
Definition of “community standards”
Judges often refer to “community standards” or “community values” in order to justify their decisions when applying the law in particular cases. This raises the question of what these community standards actually are and how they may be determined at any particular point in time since they undoubtedly change over time. Indeed, it is unlikely that the community has uniform views on many issues. Some people demand retribution, while others plead for empathy and understanding.
Gauging community standards was once the task of the jury, but in non-jury trials it now falls to the judge. The problem is that there is a tendency for judges to substitute their own personal values for those of the community. Gleeson CJ pointed out this problem in Neindorf v Junkovic:
It is a matter upon which different views are legitimately open. When courts refer to ‘community values,’ they may create an impression that such values are reasonably clear, and readily discernible. Sometimes a judge might be attributing his or her personal values to the community with little empirical justification for a belief that those values are widely shared.[8]
However, Lord Bingham appears to speak for many modern judges: “[Judges] know from experience…that the cases they have to decide involve points which are not the subject of previous decisions, or… conflicting decisions or raise questions of statutory interpretation…They know, and the higher the Court the more right they are, that decisions involve issues of policy.”[9] Again, it is not role of the Courts to set public policy. That is the duty of the elected representatives in Parliament. Politicians are, by definition, the people’s representatives. Being closer to the people who elected them, they are best placed to gauge community standards. Indeed, it is difficult to imagine how a 60+ year old homosexual High Court judge from Sydney could possibly know the community standards and values of Adelaide’s northern suburbs or the regional towns of northern Queensland.
In any case, it is up to the Parliaments of Australia, as our elected representatives, to set and regulate community standards. The Courts’ responsibility is to uphold those standards, not to accommodate or redefine them according to their own moral standards and beliefs.
Failure to Investigate/Prosecute
Criminal offences are prosecuted by the state—usually with the assistance of the victim. If the victim chooses not to report a crime, or not to press charges, then there is often little the state can do if no other evidence exists, or if no witnesses willing to testify can be found.
However, there are many instances where offences are committed in plain sight, but are not prosecuted. The Human Rights Commission, for example, have gone out of their way to solicit complaints under s.18C of the Racial Discrimination Act 1975 (Cth) for offensive speech against Aborigines, yet showed no interest in offensive speech against politician Senator David Leyonhjelm after a journalist called him an “angry white male.”[10] Indeed, the Act is never used against Aborigines who openly offend, insult, humiliate or intimidate other Aborigines. Aboriginal lawyer Larissa Behrendt, for example, tweeted: “I watched a show where a guy had sex with a horse and I’m sure it was less offensive than [Aboriginal leader] Bess Price.”[11]
Royal Commissions often make recommendations of laying criminal charges against certain individuals or organisations. However, many of these recommendations are not acted on by prosecuting authorities, or are later dropped—sometimes for lack of evidence but often due to resourcing issues. For example, the Royal Commission into Trade Union Governance and Corruption referred more than 40 people and organisations to various prosecuting authorities but many have still not been charged, including disgraced union boss Bruce Wilson, who perpetrated a major fraud with a “slush fund” that Julia Gillard had set up for him while working at law firm Slater & Gordon. Evidence exists that Wilson admitted his crimes to Bernard Murphy, now a Federal Court judge, in a tense meeting at Slater & Gordon in August 1995. Yet, under oath at the Royal Commission in 2014, Wilson denied any criminal wrongdoing, and has avoided prosecution despite the Commission recommending he be charged over the matter.[12]
Police appear reluctant, or simply refuse to prosecute clear offences of common assault and aggravated assault committed by protesters right under their noses.[13] Even for serious offences, such as murder or manslaughter, police have often failed to properly investigate and/or lay charges. For example, the family of a murdered Aboriginal woman, Andrea Pickett, sued the West Australian Government and the state’s police service because the police failed to act on multiple breaches of violence restraining orders by her husband—who subsequently murdered her.[14]
Minors who commit criminal offences often escape serious penalties. In all Australian jurisdictions the statutory minimum age of criminal responsibility is 10 years. In addition, there is a rebuttable presumption that children aged 10 to 14 years are incapable of committing a criminal act i.e. the prosecution must show that the accused child was able at the relevant time to distinguish between right and wrong. Children aged 14 to 18 years may be held fully responsible for their criminal acts but the penalties are different to, and less harsh, than those for adults committing the same offences.
This situation needs a rethink. Children aged 10-14 are school-aged and surely know the difference between right and wrong. They are assumed to be capable of making decisions in regard to sex and gender identity, so why are they assumed to be too young to accept responsibility for criminal acts—including sexual assault? True, most criminal acts committed by minors are property offences, but there is some evidence that they are deliberately recruited by professional thieves precisely because they are below the age of criminal responsibility.[15] In such cases, making them fully responsible for criminal activities would act as a deterrent.
What about abortions? Terminating an unborn baby is legal in all Australian jurisdictions, and the mother and medical practitioners involved are all protected. But these protections do not apply in the case of a failed abortion. To sustain a murder or manslaughter charge, the victim must be a human being. Is an unborn baby a human being? Not according to settled common law. However, if the baby is fully extruded from its mother, it is then deemed to have its own independent existence and is thus a living human being. In R v Hutty, Barry J stated:
A baby is fully and completely born when it is completely delivered from the body of its mother and it has a separate and independent existence in the sense that it does not derive its power of living from its mother. It is not material that the child may still be attached to its mother by the umbilical cord; that does not prevent it from having a separate existence. But it is required, before the child can be the victim of murder or manslaughter or of infanticide, that the child should have an existence separate from and independent of its mother, and that occurs when the child is fully extruded from the mother’s body and is living by virtue of the functioning of its own organs.[16]
It should be clear then that killing a living baby after a failed abortion, either by explicit action or by neglect, satisfies all the elements of a murder charge. Furthermore, fatal injuries inflicted prior to, or during the course of birth that result in the death of the baby after birth, can also amount to the killing of another human being and found a charge of murder or manslaughter. Indeed, such circumstances are not uncommon.[17] There have been many failed abortions where the baby has actually been born alive, and thus is a living human being. In these case, no attempt was made to save the baby’s life.[18] Yet those involved in the failed procedure, including doctors, nurses and the mother, are never prosecuted. Why not? Is it not the state’s responsibility to seek justice for those who have no voice?
Lawfare
The law is increasingly being used as a weapon by some parties. The use of injunctions, administrative appeals, and over-regulation has led to ‘lawfare.’ The Construction, Forestry, Mining, and Energy Union (CFMEU) sought and won an injunction to prevent federal police from examining computer files obtained in a raid for which they had a valid warrant.[19]
Environmental lobbyists have used provisions in the Environmental Protection and Biodiversity Conservation Act 1999 (Cth)—specifically s.487—in order to stop or delay development. This provision extends legal standing to any person or organisation that has been “engaged in a series of activities in Australia or an external Territory for protection or conservation of, or research into, the environment,” and was used by the Mackay Conservation Group to initiate legal action against the Federal Government’s approval of the Adani coal mine. Even without the legal action, it took six years to navigate the regulatory system and gain the approvals needed for the Adani Carmichael project.
Rejected asylum seekers, with the help of their advocates, have used vexatious appeals to delay deportation in the hope that they may outlast the Government and have their claims accepted under a new regime. Apart from the enormous cost this is imposing on the Australian taxpayer, such appeals clog up the courts and deny timely justice for many other Australian citizens and corporate entities.
Human rights law and s.18C of the Racial Discrimination Act 1975 (Cth) have been used to silence people from pointing out inconvenient truths and controversial topics. Journalist Andrew Bolt was sued for questioning why certain light skinned Aborigines had chosen to identify as Aborigines when they also had European heritage.[20] Cartoonist the late Bill Leak was under investigation by the Australian Human Rights Commission for drawing a cartoon that pointed to dysfunctional Aboriginal fathers,[21] the Islamic Council of Victoria used the Racial and Religious Tolerance Act 2001 (Vic) to sue two Christian pastors for explaining the teachings of Islam (even though not all Muslims adhere to those teachings).[22] Julian Porteous, Catholic Archbishop of Hobart, also faced an anti-discrimination complaint for distributing a booklet supporting traditional marriage in line with the Church’s teaching on the subject.[23]
‘The Process is the Punishment’
A significant factor in the success of ‘lawfare’ is the onerous and time-consuming procedural processes imposed on the defendant. The process of defending oneself is usually more of a punishment than the actual consequences of the unlawful act! Not only are there significant direct costs (lawyers’ and court fees) but many other indirect costs (wasted time, lost wages from time off work, stress and anxiety). In addition, a defendant will likely suffer reputational damage even if acquitted, which can affect their employment or career prospects, and their general standing in the community.
Andrew Bolt and his employer were sued under s.18C of the Racial Discrimination Act 1975 (Cth) by a group of light-skinned Aborigines. The case took two years to come to trial, and after he was found guilty, Bolt confessed how stressful and exasperating the whole process had been—and he was supported by his employer’s deep pockets.
This was not the case for the Queensland University of Technology students who were sued by Cindy Prior, an Aboriginal administration staffer (with the assistance and support of the Australian Human Rights Commission) for posting what she considered to be offensive comments on Facebook. Three of the seven students chose to pay Ms Prior $5000 to be released from her $250,000 claim.[24]
Despite being cleared by the Court, one of the students, Alex Wood, was left with a $41,336 legal bill to pay for the solicitors and a senior barrister for Ms Moriarty, the solicitor for Ms Prior, after Mr Wood’s lawyers attempted to force Ms Moriarty to be personally liable for costs. In fact, Mr Wood’s costs for defending his comment and responding to an appeal application were in excess of $100,000.[25] How can an undergraduate student (or any average person) possibly afford this?
Apart from the huge financial burden, the students suffered from stress and anxiety, reputational damage, smears in the mainstream and social media, and even smears from politicians.[26]
The Australian Human Rights Commission also used s.18C to persecute cartoonist Bill Leak for depicting dysfunctional Aboriginal families, including absent fathers. Human Rights Commissioner Tim Soutphommasane used a Facebook invitation to solicit complaints about the cartoon. In his submission to the Parliamentary Joint Committee on Human Rights into Freedom of Speech in Australia, Leak wrote:
That organisation, the AHRC…proceeded to put in train a process, the intention of which was not only to punish me for having made an entirely valid contribution to an extremely important public debate, but to serve as a warning to anyone else still naïve enough to believe they lived in a free society in which they have the same right to express their opinions as anyone else. While less murderous than the tactics deployed by Islamist terrorists, the actions taken by the AHRC were no less authoritarian and they sprang from the same impulse: to use whatever means they have at their disposal to silence those with whom they disagree. Section 18C of the Racial Discrimination Act was just the ticket. It provided them with the blunt and brutal weapon they were looking for.[27]
The case was eventually dropped but took a heavy toll on Leak. James Allan revealed that Leak had told him on several occasions how stressful he had found the whole saga.[28] Likewise, Roger Franklin observed how tired and weary Leak had become.[29] Shortly after the case was withdrawn, Leak died of a massive heart attack.
Reversal of the Burden of Proof
The ‘presumption of innocence’ is a cornerstone of our legal system. As Viscount Sankey stated in Woolmington v DPP: “No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of common law of England and no attempt to whittle it down can be entertained.”[30] However, there is increasing pressure on Parliaments to enact legislation that reverses the burden of proof to make it easier for prosecutors to obtain a conviction for matters deemed to have important public policy implications. But public policy goals should not trump the presumption of innocence and the rule of law, which are also important—indeed, fundamental—public policy matters!
Note that we are referring to the legal burden of proof, which refers to the burden of proving the existence of a matter, as opposed to the evidential burden, which refers to the mere burden of presenting or pointing to evidence that suggests a reasonable possibility that a matter exists or does not exist.
Lord Bingham applied a ‘proportionality test’ when assessing reversals of the burden of proof:
[T]he substance and effect of any presumption adverse to a defendant must be examined, and must be reasonable. Relevant to any judgment on reasonableness or proportionality will be the opportunity given to the defendant to rebut the presumption, maintenance of the rights of the defence, flexibility in application of the presumption, retention by the court of a power to assess the evidence, the importance of what is at stake and the difficulty which a prosecutor may face in the absence of a presumption.[31]
Indeed, Isaacs J contended that the burden of proof should be relaxed when the subject matter of the allegations lies within the unique knowledge of the defendant.[32] For example, it is not unreasonable for s.361 of the Fair Work Act 2009 (Cth) to place the burden of on the employer to prove that an adverse action against an employee was taken for a lawful reason, because the employer should be able to demonstrate the reason for the adverse action, by reference to performance reviews, productivity, attendance, workmanship etc.
However, the proportionality and unique knowledge tests is often not applied. Under s.18 of the Racial Discrimination Act 1975 (Cth) a complainant need only show one of the reasons for an act was unlawful “whether or not it is the dominant reason or a substantial reason.” The burden lies on the defendant to prove otherwise. But how can a defendant possibly prove this? Such a standard is unattainable.
S.8Y of the Taxation Administration Act 1953 (Cth) presumes that all company directors/managers are liable for a taxation offence unless they prove otherwise. While it may be fair and reasonable to presume guilt for the finance director and other executives involved in the financial management of company, many directors sit on boards for a range of reasons other than financial management, including marketing and business development, engineering and product development. They have little or no exposure to the financial management of the company, yet it is tall order for them to prove that they had no knowledge of tax violations since discussions of such nefarious activities are unlikely to appear in minutes of board meetings!
In New South Wales, s.193C of the Crimes Act 1900 (NSW) states that If police reasonably suspect that a person’s property is the proceeds of crime, then the person must prove that the property was in fact lawfully obtained. However, this might be difficult, for example, if the person has not kept any records, or if the person who gave them the property is no longer around.
Limits of Statutory Defences
With the exception of insanity, if an accused person wishes to rely on a defence such as accident, mistake of fact, intoxication, extraordinary emergency etc., the legal onus of negating the defence beyond reasonable doubt lies with the prosecution.
However, many statutory defences are not established prima facie but must be argued and established by the defendant/respondent. For example, the defences in s.18D of the Racial Discrimination Act 1975 (Cth) must be established by the respondent. That is, the evidentiary and the legal burden of proof lies with the respondent. This was the case with journalist Andrew Bolt.[33] Bolt relied on s.18D(c)(ii), publishing “a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment.” But the Court ruled that Bolt failed to establish this defence.[34] The Court noted that the ‘fair comment’ defence only applies to comments, not statements of fact.[35] According to Bromberg J:
The facts in question have not been proven to be true. To the contrary, in relation to most of the individuals concerned, the facts asserted in the Newspaper Articles that the people dealt with chose to identify as Aboriginal have been substantially proven to be untrue. Nine of the eighteen individuals named in the Newspaper Articles gave evidence. Each of them had been raised to identify as Aboriginal and had identified as such since childhood. None of them made a conscious or deliberate choice to identify as Aboriginal.[36]
However, the Court came to this conclusion by primarily relying on the testimony of applicants. This is a dubious basis for the establishment of fact. Bolt claimed the applicants had ‘chosen’ to identify as Aborigines when they could have chosen a different identity in light of their mixed racial heritage. Therefore, the applicants’ actions and history are surely determinative?
That many people who identify as an Aborigine have made a conscious choice to do so, is indicated by the 2016, which found an 18% increase in those identifying as Aboriginal compared to 2011—way above the normal growth rate.[37]
Similarly, in the Catch the Fire Ministries case, the respondent bears the burden of establishing any defences.[38] Moreover, truth was not a defence available to the respondents under s.11 of the Racial and Racial and Religious Tolerance Act 2001 (Vic). In that case, VCAT noted: “Legislation of this nature may be described as attempts to prevent discrimination. There are authorities which support the view that such legislation should be given a beneficial construction and that any defences or exemptions should be construed narrowly… as in all cases it must be the legislation as interpreted which will determine the scope of the exemptions.” [39]
Indeed, VCAT construed the defences in s.11 very narrowly and very subjectively:
Pastor Scot, throughout the seminar, made fun of Muslim beliefs and a conduct. It was done, not in the context of a serious discussion of Muslims’ religious beliefs; it was presented in a way which is essentially hostile, demeaning and derogatory of all Muslim people, their god, Allah, the prophet Mohammed and in general Muslim religious beliefs and practices… the presentation of an unbalanced seminar, albeit purporting to express the views of a particular individual, when viewed subjectively leads me to the conclusion that it was not an exercise of good faith.[40]
The Victorian Supreme Court of Appeal ultimately overturned all of VCAT’s reasoning regarding s.11,[41] but once again, the defence are not prima facie established and the process of establishing them is a punishment in itself.
Suggestions
In regard to statutory interpretation, it will be extremely difficult to stem the tendency for judges to reinterpret legislation in accordance with ‘common law principles,’ or in substituting their own values for what they claim are “community values,” given that the problem extends all the way to the High Court. The High Court is, of course, highly influential and sets precedents for all lower courts. At the very least, Coalition governments need to ensure that they only appoint conservative black letter law judges to the High Court, Federal Court and state Supreme Courts. However, this is a long-term project and the pool of conservative judges to choose from is small.
Education is a key factor. Many of the faculty of law schools across the country endorse the same views, and tend to produce graduates with similar views. Young lawyers and law students should be guided and mentored by conservative lawyers, academics and judges and encouraged to enter into academia. Conservatives need to start their own ‘march through the institutions.’
Failing to investigate and/or prosecute is mainly a resourcing problem. State and Commonwealth DPPs are often overworked and under-resourced.[42] Police are frustrated that their efforts to procure evidence and witness statements are not rewarded due to poorly prepared briefs or charges—and entire cases in some instances—being dropped. Better resourcing is required from both State and Commonwealth governments.
Given that many areas of the public service have become highly politicised, there is some concern that prosecuting authorities may be reluctant to prosecute offenders who have a similar ideological outlook or believe their activities are in some way justified. Again, it is the duty of governments to remove such ideologues from the public service. Indeed, new governments should be given more latitude to completely clear out all senior bureaucrats appointed by the previous government.
Police may be reluctant to intervene because they fear that they themselves may be the subject of an investigation, disciplinary action, or even criminal charges. Governments, police ministers and senior police must support and back their police officers all the way, not undermine them. The benefit of any doubt should always be given to police unless there is clear evidence of wrongdoing.
Preventing ‘lawfare’ requires a few different responses. Part of the problem is judges’ willingness to entertain vexatious complaints and grant injunctions. Again, this is not easy to fix and requires a cultural change among judicial officers.
Following an adverse Federal Court decision, the Abbott government in August 2015 announced plans to repeal s.487 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) in order to prevent most environmental organisations from challenging developments unless they could show they were “directly affected.”[43] This is a good initiative but was opposed by Labor and the Greens, and the Bill has since lapsed.
In relation to asylum seeker appeals, it is not possible to prevent or limit such appeals without violating the rule of law. However, there is no reason why Australian taxpayers should fund these appeals and the lawyers who represent them. Taxpayers should only be required to fund appeals to the Administrative Appeals Tribunal (Migration and Refugee Division). Any further appeals to the Federal Court and High Court should be at the applicant’s cost, and if their appeal is denied they should be liable for the Government’s costs as well.
In regard to discrimination law, again, both Federal and Victorian Coalition Governments had plans to amend or repeal the contentious parts the Racial Discrimination Act 1975 (Cth) and Racial and Religious Toleration Act 2001 (Vic) respectively, but their efforts were thwarted by stubborn and hostile oppositions. It is imperative these Governments (and other State Governments with similar legislation) continue to strive for legislative change.
In addition, the Federal Government must abolish the Australian Human Rights Commission. It serves no useful purpose, and is in fact an oppressive organisation that uses the force of law to silence people, preventing debate and honest discussion. Moreover, it has been used by complainants to extort funds from respondents in order to avoid long, stressful, and reputation-damaging proceedings.
It should also be noted that guaranteeing freedom of speech would also go a long way to addressing some of these issues. Forrester et al.[44] have argued that s.18C of the Racial Discrimination Act violates the implied freedom of political communication established in Australian Capital Television v Commonwealth,[45] but this is yet to be tested in court.
Regarding statutory defences, legislation should be amended to explicitly state that the respondent/defendant claiming the defence only bears the evidential burden of proof, whereas the complainant/prosecution bears the legal burden of proof in negating the defence. Sharing the burden of proof in this way is a fairer and more reasonable approach.
Reform is never easy, and our current divisive political climate makes it near impossible. Nevertheless, Governments with a conservative bent must push for reforms like those suggested above. If they do not, our legal system—and justice as a result—will continue to decline and one of Australia’s greatest cultural institutions will become unrecognisable.
[1] Sir Peter Benson, On the Interpretation of Statutes (repr., 1991) 1.
[2] Hon Murray Gleeson, “The Meaning of Legislation: Context, purpose and respect for fundamental rights” (2009) 20 Public Law Review 26, 27.
[3] Lacey v A-G of Queensland [2011] HCA 10, [2].
[4] Ibid. [20].
[5] The Minister for Justice stated as much in Parliament: “For approximately 30 years, until a court decision in 1973, the Court of Criminal Appeal acted on the principle that the court had an unfettered discretion and was not bound to inquire whether the trial judge was manifestly wrong in his sentence. The Court simply had to determine what was the proper sentence in the circumstances. The effect of the decision in 1973 was that the Court of Criminal Appeal does not have an unfettered discretion and the Attorney‑General now has to prove that the sentence was manifestly inadequate. It is proposed to make it clear that the Court of Criminal Appeal does have an unfettered discretion and has therefore to determine what was the proper sentence in the circumstances.” Ibid. [92].
[6] Ibid. [43].
[7] Jeffery Goldsworthy, “Is Legislative Supremacy Threatened?” (Nov 2016) Quadrant.
[8] Neindorf v Junkovic (2005) 80 Australian Law Journal and Reports 341, 345.
[9] Hon Keith Mason, “The Judge as Juror” in The Business of Judging: Selected Essays and Speeches (2000), 28.
[10] Headley Thomas, “‘Angry white male’ not abusive, says Human Rights Commission” The Weekend Australian, 13 November 2016. <http://www.theaustralian.com.au/business/legal-affairs/angry-white-male-not-abusive-says-human-rights-commission/news-story/b09adccda183f1a7c2ee0c2df6e28e02> accessed 7 October 2017.
[11] Patricia Karvelas, “More offensive than ‘sex with a horse’: Larissa Behrendt’s Twitter slur against Bess Price” The Australian, 14 April 2011.
[12] Hedley Thomas, “Gillard lover Bruce Wilson told lawyer of fraud” The Weekend Australian, 7 October 2017. <http://www.theaustralian.com.au/national-affairs/gillard-lover-bruce-wilson-told-lawyer-of-fraud/news-story/770d42ccafbcf83f7ee5f1ccc7f45ed0> accessed 7 October 2017.
[13] “Anti-racism protesters clash with Q Society” Sky News, 10 February 2017. <http://www.skynews.com.au/news/national/vic/2017/02/10/anti-racism-protestors-clash-with-q-society.html> accessed 4 September 2017.
[14] Caitlyn Gribbin and Dale Owens, “Murder Victim Andrea Pickett’s family sue WA Government and police for failing to protect her from violent husband” ABC News, 3 July 2014. <http://www.abc.net.au/news/2014-07-02/murder-victim-andrea-picketts-family-sues-wa/5566736> accessed 4 September 2017.
[15] D. Bell and B. Heathcote, “Gangs and kinship: Gang organisation amongst contemporary Indigenous culture in Western Australia”, paper presented at the Children and Crime: Victims and Offenders conference convened by the Australian Institute of Criminology, Brisbane, 17–18 June 1999.
[16] R v Hutty [1953] VLR 338. The common law position is applicable in Victoria and South Australia, but is replicated in statutes in other Australian jurisdictions.
[17] See for example Josh Bavas, “Rise in Queensland babies surviving late-term abortions, figures show” ABC News, 16 June 2016, <http://www.abc.net.au/news/2016-06-15/babies-of-late-terminations-left-to-die-without-care/7512618> accessed 4 September 2017. In addition, The Consultative Council on Obstetric and Paediatric Mortality and Morbidity (Victoria) has noted: “Fifty-two of the 84 neonatal deaths attributed to congenital abnormalities were as a result of terminations of pregnancy.” (Annual Report 2007).
[18] See Andrew Bolt, “What the media ignores: 200 children aborted alive in just one state” Andrew Bolt Blog, 17 June 2016. <http://www.heraldsun.com.au/blogs/andrew-bolt/what-the-media-ignores-200-children-aborted-alive-in-just-one-state/news-story/b1b1cd57e24880d60ec2a8998d1b69e6> accessed 8 September 2017.
[19] Elizabeth Colman, “CFMEU wins injunction against Canberra raid” The Australian, 2 December 2015.
[20] Eatock v Bolt [2011] FCA 1103.
[21] “Bill Leak ‘singled out’ for racial discrimination investigation after cartoon prompts complaints” ABC News, 20 October 2016. <http://www.abc.net.au/news/2016-10-20/bill-leak-singled-out-for-racial-discrimination-investigation/7952590> accessed 5 September 2017.
[22] Islamic Council of Victoria v Catch the Fire Ministries Inc [2005] VCAT 1159 (22 June 2005).
[23] “Anti-discrimination complaint ‘an attempt to silence’ the Church over same-sex marriage, Hobart Archbishop says” ABC News, 28 September 2015. <http://www.abc.net.au/news/2015-09-28/anti-discrimination-complaint-an-attempt-to-silence-the-church/6810276> accessed 5 September 2017.
[24] Micheal McKenna, “Prior admits defeat in 18C uni battle’ The Australian, 18 March 2017.
[25] Hedley Thomas, “Alex Wood, one of the ‘18C Three’, hit with $41,000 legal bill” The Australian, 4 February 2017.
[26] Hedley Thomas, “Judge dismisses case against QUT students over 18C” The Australian, 5 November 2016; Hedley Thomas, “QUT student sues MP Terri Butler over ‘racist smear’” The Australian, 24 November 2016.
[27] Bill Leak, “Bill Leak’s Full Submission to 18C Parliamentary Enquiry” The Australian, 13 March 2017.
[28] James Allan, “If Only Turnbull Had Bill Leak’s Spine” Quadrant Online, 10 March 2017. <https://quadrant.org.au/opinion/qed/2017/03/turnbull-bills-principles-spine/> accessed 7 September 2017.
[29] Roger Franklin, “Bill Leak and His Persecutors” Quadrant Online, 10 March 2017. <https://quadrant.org.au/opinion/qed/2017/03/bill-leak-persecutors/> accessed 7 September 2017.
[30] Woolmington v DPP [1935] AC 462, 481-482.
[31] Sheldrake v DPP; Attorney General’s Reference No 4 of 2002 [2005] 1 AC 264, [21].
[32] Williamson v Ah On (1926) 39 CLR 95, 113.
[33] Eatock v Bolt [2011] FCA 1103, [336]-[339].
[34] Ibid. [8].
[35] Ibid. [373]-[375].
[36] Ibid. [378].
[37] “2071.0 – Census of Population and Housing: Reflecting Australia – Stories from the Census 2016” Australian Bureau of Statistics, 28 June 2017. <http://www.abs.gov.au/ausstats/abs@.nsf/mf/2071.0> accessed 11 September 2017.
[38] Islamic Council of Victoria v Catch the Fire Ministries Inc [2004] VCAT 2510, [388].
[39] Ibid. [7]-[8].
[40] Ibid. [388]-[389].
[41] Catch the Fire Ministries Inc. v Islamic Council of Victoria [2006] VSCA 284, [89]-[98].
[42] See for example “Victims affected by SA DPP’s heavy workload, rights commissioner says” ABC News, 29 June 2016. <http://www.abc.net.au/news/2016-06-29/sa-victims-affected-by-dpp-heavy-workloads/7552468> accessed 12 September 2017.
[43] Environment Protection and Biodiversity Conservation Amendment (Standing) Bill 2015.
[44] Joshua Forrester, Lorraine Finlay, and Augusto Zimmermann, No Offence Intended: Why 18C is Wrong (Connor Court, 2016).
[45] Australian Capital Television v Commonwealth [1992] HCA 1, [16].