The Verdict Issue 1 2003 - Queensland Law Society

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The Verdict Issue 1 2003 - Queensland Law Society

theverdictissue 1 autumn 2003locked away but innocentlaw students investigatetort law reformright to privacydrug courts in australialiability for obvious hazardsassault in the workplacelawyers as peacemakersand much morepublished by


issue 1 autumn 2003welcomeYou no longer need to feel that you’ve been caught in alegal time warp. The world of technology now allows us tobring current law and legal issues to your fingertips. theverdict e-magazine is designed to bring you legalcommentary from the experts - always current, easy toread, and interesting.Keep the verdict on disc, print it, file it - it’s yours as apermanent reference and research tool to help you in yourstudies of the law and the legal system.Published by the Queensland Law Society (QLS) – thestate’s peak professional body for Queensland solicitors –each edition of the verdict will be on the QLS website which offers a time-savingsearch facility to take you quickly and easily to topics of interest.This inaugural edition is jam packed with ready-to-use material. Each article willchallenge you to become more involved in the outcomes of our justice system.Our feature article, investigating innocence, will get you thinking about howtechnology is changing the machinery of our criminal justice system. LynneWeathered, Director of the Griffith University Innocence Project in Queenslandand Executive Director of the Australian Innocence Network, highlights theimportance of never becoming complacent about our criminal justice system.Using case studies she explains how diligent research and DNA technology ishelping free innocent people.Every edition of the verdict will provide useful and interesting regular features, aswell as something new.For year 12 Legal Studies students, the independent study regular feature isdesigned to assist you with the difficult task of choosing a research topic.And our celebrity suits feature will keep readers up-to-date on what happensaround the world when the famous and the law collide. In this edition we take alook at the legal escapades of Posh Spice.Other useful regular features include hyperlinks to legal websites and legalglossary.And future editions will include legally oriented competitions with great prizesto be won.Enjoy your new law zone. the verdict is your link to current law and legal issues.Yvette HolmesSchools & Community Education OfficerQueensland Law SocietyPS We value your input. Let us know what you think, give us your ideas. Call medirect on 3842 5816 or email me at schools@qls.com.auContact us via email schools@qls.com.au, telephone 3842 5816 or fax 3229 4737theverdictEditor Ian MuilGraphic Designer Mark BaileyPublished by the Communications Unit of the Queensland Law SocietyExecutive Manager, Communications Daphne McKenzieQLS Schools and Higher Education ServiceSchools & Community Education Officer Yvette HolmesCommunications Officer & SCRAM Co-ordinator Helen TaylorCommunications Assistant Lorraine Woodmasswhat’s inside?feature articles3711131517192125283135investigating innocencelaw students help the wrongly convictedby Lynne Weatheredshould there bea common law right to privacy?by Prof Sandra Bernstort reformwhere are we up to?by Glenn Fergusonour courts warnwatch where you’re going!by Ian Muildamages actionturns on the date of conceptionby Ian Muilget physicaland you can get the sackby Helen Taylora stitch in timecould have saved plentyby Ian Muil & Sheryl Jacksontime for a new regimefor fraser island?by Rob Stevensoncyberspace jurisdictionthinking outside the squareby Alan Davidson & Julie Wrathmallthe rise and rise of drug courtsin australiaby Mandy Shircoreking hitthe rule of lawby Prof James F Corkerylawyers as peacemakersthe place of mediation in the legal systemby Melinda Shirleyregular features3740424344independent studycelebrity suitsheard it in courtthe essential linkslegal glossary


crime and societyinvestigating innocenceuniversity students help the wrongly convictedby Lynne WeatheredLynne Weathered LLB(Hons)is the director of the GriffithUniversity Innocence projectin Queensland and executivedirector of the AustralianInnocence Network. Shecompleted her law degree atBond University with firstclass honours. She isadmitted as a barrister inQueensland. Prior to joiningGriffith University in January2001, she was an adjunctAssistant Professor at BondUniversity. She is currentlyundertaking a doctorate oninstitutions for the correctionof wrongful conviction in theUS, Canada, England andAustralia. She lectures oncriminal procedure andsentencing, and theprinciples of criminal law.“It was a nightmare. A long extendednightmare. It lasted 23 years. Lookingback, I don’t know how I’m still here. Iused to wake up at night, bathed insweat, stuck to my mattress, andthat’s how it carried on for 23 years.And nobody understood; only theother innocent people in prison – andthere are a number of them in prison…You never give up hope. I never gaveup hope in 23 years.” 1Patrick Nicholls, wrongly convicted, UK,incarcerated 23 years.Imagine the horror of being convictedand incarcerated for a crime of whichyou were completely innocent.This possibility is not a figment of ourimagination. It happens. In this andother countries, hundreds of innocentpeople have been convicted of crimesin which they had no part. In Australia,it’s possible some of these peoplehave even been hanged. Today,wrongful conviction continues toincarcerate innocent people.Our criminal justice system is a goodsystem, but it is not perfect. It isdesigned so that only guilty personsare convicted and incarcerated, evenat the expense of some guilty personsgoing free. What receives less attentionis the fact that it can, and sometimesdoes, convict innocent people.There are good reasons for themeasures the criminal justice systemoffers in attempting to ensure onlyguilty persons are convicted. There isalso more that can be done.This article outlines the problem ofwrongful conviction and the wayuniversity students are helping toprove the innocence of personswrongly convicted.‘Wrongful conviction’ in this article isused in its narrowest sense to refer topersons who are factually innocent –people who did not commit the crimefor which they have been convicted.The article does not deal with personswho may be considered wrongfullyconvicted because their conviction wasobtained, for example, by improperpolice conduct, where the person is stillfactually guilty of the crime for whichthey have been convicted.These individuals would fall outside themeaning of ‘wrongful conviction’ in thisarticle. They would also generally falloutside the ambit of InnocenceProjects in Australia and othercountries.Many people in Australia presume thatvery few, if any, innocent persons go toprison. Great faith resides in ourcriminal justice system. But is thisfaith justified?Australia does not have a perfectcriminal justice system: recentexamples of wrongful conviction in thiscountry highlight this.John Button in Western Australia,convicted of the manslaughter of hisgirlfriend Rosemary Anderson, spentapproximately five years incarceratedfor this crime, and almost four decadesfighting to prove his innocence. TheWA Court of Appeal finally overturnedhis conviction in early 2002. But forover 40 years, he lived as a convictedkiller. The impact of wrongful convictiondoes not end with release fromincarceration; it lives with people fortheir whole lives. 2John Button is not the only example.The Mickelberg brothers in WesternAustralia, convicted of stealing goldbars from the Perth mint, betwenthem spent 15 years in prison. Then in2002, a former police officer admittedto fabricating the evidence used toconvict them.This means the evidence was simplyconcocted in order to convict theMickelberg brothers.theverdict autumn 2003 page 3


crime and society investigating innocenceFlaws in Queensland’s criminal justicesystem were also exposed last year, inthe appeal and release of Frank Button.Button spent almost a year in prisonconvicted of a rape he did not commit.DNA testing was undertaken before histrial. Through the insistence of hisappeal lawyers additional DNA testingwas undertaken prior to appeal. Thisadditional testing uncovered the DNA ofanother person, not Frank Button.Wrongful conviction overseasThe problem of wrongful conviction isby no means limited to Australia. It isan issue that has gained attention inthe United States, Canada andEngland. In these countries,organisations and institutions for thecorrection of wrongful conviction havebeen operating for many years.In the United States, 123 innocentpeople have now been exonerated justthrough the use of DNA technology. 3Several of them were facing execution.One man in the United States, AnthonyPorter, had already been fitted for hiscoffin when journalism students atNorthwestern University in Chicago notonly uncovered proof of his innocencebut also helped to find the realperpetrator of the crime. 4It is also suggested that wrongfulconviction resulted in the execution of23 innocent people. 5 The large numberof convicted persons that DNA hasnow proven innocent has promptedthe highest courts in the United Statesto consider whether the death penaltyis constitutionally valid in that country.Australia has much in common withcountries such as Canada, Englandand the United States. For example,the criminal justice systems in thosecountries are based on adversarialsystems. All rely on police forinvestigation of crimes. All have‘beyond reasonable doubt’ as thestandard for criminal conviction. Allhave prosecutors, defence lawyersand judges playing vital roles withinthe system.This system is one in which only theguilty should be convicted. So theincidence of wrongful conviction inother countries should remind us of theflaws in our own system, and provideexamples of how we can act to preventand address wrongful conviction inthis country.“123 innocentpeople havenow beenexonerated“Causes of wrongful conviction“I studied every single detail on therapist’s face. I looked at his hairline; Ilooked for scars, for tattoos, foranything that would help me identifyhim. When and if I survived the attack, Iwas going to make sure that he wasput in prison and he was going torot…I knew this was the man. I wascompletely confident. I was sure…” 6Jennifer Thompson, rape victim whosetestimony helped wrongly convict aninnocent man. Jennifer Thompson nowcampaigns to highlight the potentialproblem of eyewitness identification.The major known causes of wrongfulconviction are: 7• faulty eyewitness identification, acause of wrongful conviction in up to80% of DNA exonerations in theUnited States. Our memories are notlike video-recordings. They are ofteninaccurate. Many people do notrealise memory is malleable;• use of informer evidence, wherebyone criminal is offered some type ofreward if they testify against theaccused. This has resulted in theperpetrator of the crime givingevidence used to convict aninnocent person;• overzealous police investigationor prosecution;• bad defence lawyering;• failure of the prosecution to discloseall relevant information to the defence;• incorrect scientific evidence - haveyou heard of the LindyChamberlain case?;• plea bargaining, where innocentpeople may confess to ensure alighter sentence than the one they willface if found guilty;• false confessions: something youmight find difficult to comprehend,but there are many innocent personswho confess to crimes they did notcommit following policeinterrogation. A recent shocking casein the United States showed that, 12years after the event, five teenageboys who all confessed and weresent to prison for the rape of afemale jogger in New York’s CentralPark, are innocent. DNA technologynot only confirmed their innocencebut matched that of the realperpetrator, whose guilty conscienceled him to confess; 8• community pressure for conviction;and• race.These causal factors are not limitedby geographical boundaries, but arelikely to occur to varying degrees indifferent jurisdictions. Perhaps themost portable of all is simplehuman fallibility.Statistics on wrongfulimprisonmentNo one knows how many innocentpersons are currently in prisons.Estimates in the United States rangebetween 0.5% to 5% of all incarceratedpersons. 9 With over 1 million Americansin prison, this amounts to thousands ofinnocent people locked up.The oft-quoted estimate in Australia isthat around 1% of innocent personsend up convicted, despite theirinnocence. 10 If this estimate is correctthere are approximately 45 innocentpersons now in prison in Queensland.Even a few is too many. That iswhy we need bodies such asInnocence Projects.Innocence ProjectsInnocence Projects are university-basedprojects which utilise studentresources to investigate claims ofwrongful conviction and, wherepossible, secure the release ofinnocent people.It may seem strange that, within thecomplex criminal justice system, it isuniversity students coming to therescue of persons who are innocentbut convicted. Yet this is exactly whatInnocence Projects around the worldare doing.The first Innocence Project wasestablished in 1992 at Cardozo LawSchool in New York through itsfounders, Barry Scheck andPeter Neufeld.So far in the US, 123 innocent peoplehave been exonerated through DNAtechnology, the majority with the helptheverdict autumn 2003 page 4


crime and society investigating innocenceof the Innocence Project. Betweenthem, these people spentapproximately 1,250 years in prison. 11Several innocent persons in Canadaowe their freedom to the work of theAssociation in Defence of the WronglyConvicted (AIDWYC), of which MrRubin ‘Hurricane’ Carter is theexecutive director. Mr Carter spent 20years imprisoned for murders of whichhe was completely innocent.Approximately ten years were spent inisolation.In England a statutory body - theCriminal Cases Review Commission -was established in January 1997 toinvestigate claims of wrongful convictionin the broader sense. 12 To date,approximately 70 people have had theirconvictions overturned as a result of theCommission’s investigations.In Australia, the first Innocence Projectswere established in 2001. 13The Griffith University InnocenceProject was established at GriffithUniversity Law School on the GoldCoast campus in August 2001 inconjunction with Nyst Lawyersof Southport.Based in Queensland, the InnocenceProject accepts applications fromaround Australia from people whoclaim to be innocent of the crimes forwhich they have been convicted andwhere appeal limitation periodshave expired.Students work under the guidance oflaw school academics and theinstruction of lawyers who work probono,which is a Latin term meaning‘for the public good’ and which means,effectively, free legal services.The students investigate claims ofwrongful conviction and try to uncoverfresh evidence of innocence. Whereevidence of innocence can beuncovered, the cases will be taken toappeal or a pardon sought.Students work long hours trawlingthrough trial transcripts and trackingdown potentially relevant information,witnesses, or other pieces of forensicevidence. Uncovering evidence ofinnocence is never quick or easy.Students have to work through all theevidence presented at trial andconsider what might be relevant inproving innocence.They sometimes also try to uncoverevidence not presented at trial as often itis this evidence that proves innocence.The Project is currently investigatingseveral cases, including the case of an83-year-old man convicted of murderover 40 years ago. He spent almost 30years in prison. His treatment includedbeing whipped with the cat-o-nine tails.His fervent hope is that ourinvestigations will uncover proof of hisinnocence before he dies. The task,however, is a difficult one. Like manyother cases, the evidence required toprove his innocence may simply notbe available.For many convicted persons, evidencethat could now be tested with DNAtechnology has often simply been lost,discarded or destroyed. This alsooccurs in approximately 70% of casesin the United States.ConclusionAustralians tend to have enormousfaith that our criminal justice system willnot imprison innocent persons. But it’sworth remembering that similar faithapplied in the United States prior toDNA technology uncovering so manywrongful convictions.As a society, it’s important we neverbecome complacent about ourcriminal justice system. Acknowledgingthat it is imperfect does not mean thesystem has failed.The voices of the truly innocent in ourprisons have, for too long, been lost inthe common catch-cry that ‘ everyonein prison says they are innocent.’That is simply wrong; not everyone inprison claims to be innocent. Amongstthose who do you can be sure to findsome who truly are innocent, butwrongly convicted.AcknowledgementThe Griffith University InnocenceProject acknowledges the sponsorshipof the Queensland Law Society GrantsCommittee which provided a grant tofund the Innocence Project for 2003.hotlinkswww.innocenceproject.org/the New York Innocence Project whichnetworks for all of the US and has a hugeamount of information on it.www.gu.edu.au/school/law/innocence/home.htmlthe Griffith University Innocence Project.notes1 Criminal Cases Review Commission,‘Open to Question’, statements by PatrickNicholls, video, viewed 2 September 2002.2 For example, see ‘Australian Story, MurderHe Wrote’, a program about the wrongfulconviction of John Button, aired for the firsttime on ABC television, 8 August 2002.3 This figure applies as at 6 January 2003.The number continues to increase at analarming rate. See Innocence Projectwebsite http://ww.innocenceproject.orgaccessed 6 January 2003.4 Lawrence C Marshall, ‘Do exonerationsprove that the system works?’ Judicature,Vol 86, No 2, 2002, 83 at 85.5 Griffin Lissa, ‘The Correction of WrongfulConvictions: A Comparative Perspective’,reprinted in conference papers, ‘WrongfulConvictions: A Call to Action,’ 19-20 April2002, 1241.6 Barry Scheck, Peter Neufeld & JimDwyer, Actual Innocence, SignetPublishers, United States, 2000 at 333,taken from her writings for the New YorkTimes.7 See generally Barry Scheck, PeterNeufeld & Jim Dwyer, ‘Actual Innocence,’Signet Publishers, United States, 2000; C.Ronald Huff, Ayre Rattner and EdwardSagarin, ‘Convicted But Innocent:Wrongful Conviction and Public Policy,’SAGE Publications, California, 1996;Innocence Project http://www.innocenceproject.org8 For comment on case see MichaelKinsley, ‘Why Innocent People Confess’,Washington Post, 13 December 2002, pA45, accessed via http://www.washingtonpost.com/wp-dyn/articles/A48117-002Dec12.html,accessed on 16 December 2002.9 For example, see estimates produced inC.Ronald Huff, Arye Rattner & EdwardSagarin, Convicted But Innocent, SagePublications, United States, 1996at 53 – 67.10 See, for example, this estimate in EvanWhitton’s book The Cartel: Lawyers andTheir Nine Magic Tricks, Herwick Pty Ltd,Australia, 1998 at 11.11 Based on statistics provided by theInnocence Projecthttp://www.innocenceproject.org12 The Criminal Cases Review Commissionannual report, 1997 – 98, at 6. TheCommission has a wider definition ofwrongful conviction. In the cases they referto their Appeal Courts the Commission isnot required to argue actual innocence.13 These projects are the Griffith UniversityInnocence Project, which has jurisdiction toassess claims from around Australia, andthe UTS Innocence Project which operatesin NSW. Both were established in 2001.Other Projects are being established inother parts of Australia.theverdict autumn 2003 page 5


REDSUIT9471/R“Freedom is something thatcan be taken for granted.Until it’s taken away.”Rubin “Hurricane” CarterThe story of Hurricane is not the only story of wrongful conviction. Like Rubin Carter, who spent 20 yearsin jail for a crime he did not commit, there are others who have had their freedom taken away unjustly.Which is why students from the Griffith University Law School Innocence Project are working withprofessional lawyers to uncover evidence that could set innocent people free. It’s a practical way to helpthe wrongly convicted and a smart way to remind students of law that the law must be justly applied. TheGriffith University Law School-developing legal skills in the pursuit of justice. Get Smarter.www.griffith.edu.au


civil wrongsshould there bea common law right to privacy?by Prof Sandra BernsProfessor Sandra Berns AB(Berkeley) LLB PhD (Tas) isProfessor of Law at GriffithUniversity and is a formerDean of the Faculty. Shejoined the Law School in1995 as Deputy Dean(Teaching and Learning).She was formerly AssociateProfessor of Law at theUniversity of Tasmania. Herresearch interests includelegal theory, citizenshipand equality issues. Beforestudying law at theUniversity of Tasmania sheworked as a secondaryschool teacher in Victoriaand Tasmania. She is theauthor of numerous legalbooks and articles. Herteaching responsibilitiesinclude ‘torts’ and‘advanced civil obligations.’In the modern world, privacy isincreasingly scarce andincreasingly important. Many of uslive in large cities, often in blocks ofunits with a shared common space,or in detached houses withsmall allotments.As adults, our private details are on filewith government agencies (like theAustralian Taxation Office) and withcommercial organisations like banks,credit reference services and creditcard providers.When we access the internet, manysites download ‘ cookies’ facilitatingtargeted internet advertising. While theCommonwealth Government is vigilantin protecting our privacy throughlegislation targeting specific abuses,many invasions of privacy are notcovered by legislation.It is often said that the common lawrecognises no right to privacy. Thismay not seem important, given thelegislation referred to above, but itis important.We often view the mass media as aform of entertainment, yet investigativereporters and photographers oftencross the line that separates reportingon an event from constructing an eventfor public consumption.A few years ago television reports onallegedly deceptive practices bybusinesses were standard fare oncurrent affairs programs. A typicalformat began with interviews withpeople claiming to have beendeceived by ‘ shonky’ practices. Afterthe interviews the fun began.A reporter, accompanied by cameraand sound crews, sought, withoutconsent, to interview the allegedperpetrator, often at their business orprivate residence. When the request foran interview was denied, the reporterand crew typically entered thepremises without permission, camerasrolling, and demanded answers tocomplaints made, often while pursuingthe fleeing ‘perpetrator’.This made exciting viewing but suchpractices raise genuine concernsabout individual privacy.Privacy and the common lawBecause Anglo-Australian commonlaw recognises no over-arching right toprivacy (unlike the United States wheresuch a right has been legallyrecognised for many years) if the‘target’ wanted redress the onlyavailable causes of action were tortsprotecting various proprietary interests.For example, if the reporter and crewforced their way into the target’s placeof business or residence, the obviousrecourse was the action for trespass toland, which provides redress for directinterference with land.Trespass to land requires proof that thedefendant entered the plaintiff’sproperty without permission, that thedefendant did not leave whenrequested to do so, and, mostimportantly, that the plaintiff was theoccupier of the premises.Occupier is a technical term for aperson legally entitled to quietenjoyment of the property, such as anowner, a lessee or one holding atenancy at will.If the plaintiff was a mere invitee orlicensee - that is, a person living orworking on the property with thepermission of the occupier but with nolegal interest in the property - theplaintiff had no cause of action.Thus if, as sometimes happened, thechosen target was not available andthe reporter sought to interview thetarget’s spouse, an action in trespasswould not be available unless thespouse’s name was on the property.theverdict autumn 2003 page 7


civil wrongs common law right to privacyWhile trespass is actionable per se(without proof of harm) it protectsproperty, not privacy.If the reporter and crew remainedoutside the plaintiff’s property usingtelephoto lenses and sensitivemicrophones, trespass would not beavailable. The interference is indirect,not direct.While the traditional remedy for indirectinterference is nuisance, the HighCourt decision in Victoria ParkRacing & Recreation Grounds Ltd vTaylor 1 said that freedom from view orinspection was not a commonlaw right.The facts were that the defendant setup an observation platformoverlooking a racecourse. Radiodescriptions of the races werebroadcast from the platform, reducingattendance at race meetings.According to Dixon J: “Not only is itlawful on the part of those occupyingpremises in the vicinity to overlook theland from any natural vantage point,but artificial erections may be madewhich destroy the privacy existingunder natural conditions.” 2 SimilarlyBernstein (Baron) v Skyviews &General Ltd 3 categorically stated therewas no law against photographing theplaintiff’s property without permission,whether from the air or neighbouringproperty. Griffiths J did, however,suggest redress might be available innuisance against ongoing aerialsurveillance. Nuisance, like trespass,protects proprietary rights, not privacy,and, like trespass, is available only toan occupier.Lawyers representing plaintiffs oftenstruggled to fit their complaints withinestablished causes of action.When photographers used a telephotolens to photograph rugby leagueplayer Andrew Ettinghausen nude in alocker room, he sued the newspaperpublishing the photograph fordefamation, a tort that protects aperson’s reputation. 4For an action in defamation to succeedthe information published must befalse, the plaintiff must be reasonablyidentifiable from the material published,and the publication must causeordinary decent people to think less ofthe plaintiff.The photograph was of poor qualitybut showed glimpses of his genitals.While it is hard to describe aphotograph as ‘false’ this was not aproblem. Counsel argued thatpublication of the photograph held himup to ridicule and contempt, thedefamatory imputation being that heconsented to being photographednude, belying his ‘boy next door’image. The argument succeeded.In reality, the problem was not that thephotograph defamed him, but that thephotographer invaded his privacy.In Kaye v Robertson, 5 an English courtexplicitly rejected privacy argumentsand stated categorically that there wasno common law right to privacy. Thefacts involved British actor GordonKaye who suffered brain damage in anaccident. Reporters and photographersinvaded his hospital room andpurported to interview him. As a merelicensee, he had noaction in trespass.His next friend sued for injuriousfalsehood, an action normally usedwhen statements denigrating thequality of a plaintiff’s merchandise aremade to a third party. While theproblem was invasion of privacy by thetabloid press, the only available remedytreated his reputation as a performer asa form of property.In Mrs R v Central IndependentTelevision plc, 6 a documentary onpolice work was filmed using hiddencameras. It showed the arrest of a manin the home of his estranged wife andtheir young child. They had recentlyseparated and he had been allowed tolive there until he foundaccommodation.The tape showed the home’s exteriorand streetscape, clearly identifying thehouse, as well as shots of bothhusband and wife inside. The wife’svoice was heard on a voice-over.She sought to prevent the broadcast.The child did not know her father hadbeen arrested and her mother fearedthat the nature of the charges wouldlead to victimisation when she beganschool. During pre-trial negotiation, thestation agreed to remove all exteriorshots and later agreed to remove theinterior shots, those of the wife and thevoice-over. It persisted with its plan tobroadcast pictures of the husband.The court held that it was entitled todo so, the broadcast being in thepublic interest.Other causes of action used toprotect privacy interests includeappropriation of personality and breachof confidence.Appropriation of personality involvesthe unauthorised use of a photographof a famous person in advertisingmaterial. It protects an individual’sproprietary rights in the commercialexploitation of their image. In Australia itis usually brought under s 52 of theTrade Practices Act 1974.Breach of confidence protects peopleagainst disclosure of confidentialinformation. While most case lawinvolves commercial information, theaction also protects confidencesbetween husband and wife andbetween other close associates. Theinformation must not be publicknowledge, it must have beenimparted in circumstances imposingan obligation of confidence, and it mustbe used or disclosed for a purposeother than that for which it wasoriginally provided. Breach ofconfidence protects property inprivate information.theverdict autumn 2003 page 8


civil wrongs common law right to privacyIs the law changing?Two major decisions in 2001, one inEngland and the other in Australia,suggest that common law protectionfor privacy, long thought out of reach,may become a reality. The Englishcase, Douglas & ors v Hello! Ltd, 7received wide media attention. WhenMichael Douglas and Catherine Zeta-Jones were married in an exclusivehotel they notified all guests and staffthat no cameras were allowed, havingsold exclusive rights to their weddingphotos to OK! magazine. The rightswere sold for $3 million. The weddingis reputed to have cost $3.5 million.After unauthorised photographs werepublished in Hello! magazine the daybefore publication of the authorisedcoverage, they sued Hello! for breachof confidence. The English court,against the background of new humanrights legislation explicitly protectingprivacy, extended the parameters ofbreach of confidence by modifying thetraditional requirement for a preexistingrelationship of confidence.Since all invited guests and hotelemployees had notice that thewedding, attended by 250 people, wasprivate and that cameras wereprohibited, that was sufficient. Theinformation could only have beenobtained by improper means.The court held that even though theyhad sold a significant part of theirprivacy to OK!, they were entitled toprotection for the remainder. While theydid not get the injunctive relief theysought, the case set a clear precedentfor the future and the court suggestedKaye v Robertson 8 would be differentlydecided today.The Australian High Court decision inABC v Lenah Game Meats Pty Ltd 9attracted less media attention thanHello! 10 but may have widerimplications for the future direction ofthe common law.The underlying cause of action wastrespass to land. A trespasser installedvideo cameras and hiddenmicrophones in the processing roomat Lenah’s processing plant, obtaininglive pictures of the methods used tostun and kill brush-tailed possums forthe overseas meat trade.The footage was sold to the ABC,which planned to broadcast it on the7.30 Report. Lenah sought injunctive“for an action indefamation tosucceed theinformationpublishedmust be false“relief to prevent the broadcast, arguingthe broadcast would do irreparableharm to its commercial interests.The High Court held there was nocause of action upon which Lenah’sclaim for injunctive relief could bebased. While it sought to argue that thefilming was an unreasonable intrusionon its seclusion and that unreasonablepublicity was being given to its privatelife, the majority held that, as acorporate person, Lenah could invokeno fundamental value of personalautonomy. It lacked the sensibilities,sense and injury that are an essentialfoundation for a right to privacy. In itscareful distinction between the rights of‘natural persons’ and ‘ corporatepersons’ the High Court followedlongstanding American precedents.The High Court foreshadowed thepossibility of a tort of privacy protectingnatural persons in its obiter remarks(the judge’s remarks in passing, notpart of the formal judgement) onVictoria Park Raceway & RecreationGrounds v Taylor. 11According to a 4-1 majority, VictoriaPark’s arguments applied only tocorporate persons. The remarksdenying the existence of a right toprivacy should be understood assimply denying that a corporate personwas entitled to a right to privacy.This decision is significant. First, itexplicitly confined the rationale ofVictoria Park to cases involvingcorporate persons, by stating privacywas not relevant to corporations sincecorporations lacked dignity andautonomy, the human characteristicsmaking privacy important. Second, itcomprehensively reviewed therelevant case law, including the recentHello! 12 decision.Following Lenah Game Meats, 13 itseems an Australian common law rightof privacy may be within reach.Questions remain, of course. While theHigh Court did not foreclose thedevelopment of an independent tortaction to protect individual privacy andprivacy, neither did it affirm it.Cases will continue to be framed intrespass and other traditional actions,not privacy as such, and it is unknownwhether the High Court will dilute therequirement that the plaintiff be anoccupier as in Khorosandjian v Bush. 14In Khorosandjian, 15 on facts involving aformer boyfriend who stalked theteenage plaintiff, the English Court ofAppeal held, in respect of persistentunwelcome telephone calls to herhome, that there was no reason whyshe should not be treated asan occupier.This case was overruled on othergrounds but it suggests some courtsare willing to allow privacy to trumpproperty. Lenah Game Meats 16 maywell be one of the most significantdecisions of the 21 st century.Stay tuned for the next instalment!notes1. Victoria Park Racing & Recreation GroundsLtd v Taylor (1937) 58 CLR 4792. Victoria Park Racing & RecreationGrounds Ltd v Taylor (1937) 58 CLR 479,509-103. Bernstein (Baron) v Skyviews & General Ltd[1977] 3 WLR 1364. Ettinghausen v Australian Consolidated PressLtd (1991) 23 NSWLR 4435. Kaye v Robertson [1991] FSR 626. Mrs R v Central Independent Television plc[1994] 3 WLR 207. Douglas and ors v Hello! Ltd [2001] 9 BHRC543, [2001] 2 All ER 2898. Kaye v Robertson [1991] FSR 629. ABC v Lenah Game Meats Pty Ltd [2001]HCA 6310. Douglas and ors v Hello! Ltd [2001] 9 BHRC543, [2001] 2 All ER 28911. Victoria Park Racing & Recreation GroundsLtd v Taylor (1937) 58 CLR 47912. Douglas and ors v Hello! Ltd [2001] 9 BHRC543, [2001] 2 All ER 28913. ABC v Lenah Game Meats Pty Ltd [2001]HCA 6314. Khorasandjian v Bush [1993] 3 All ER 66915. Khorasandjian v Bush [1993] 3 All ER 66916. ABC v Lenah Game Meats Pty Ltd [2001]HCA 63.theverdict autumn 2003 page 9


civil wrongstort reformwhere are we up to?by Glenn FergusonGlenn Ferguson is apartner in the law firmFerguson CannonO’Connor and DeputyPresident of theQueensland Law Society.When will we see an end to thetort reform debate?You would have had to be living onanother planet last year not to havebeen aware of the so-called ‘ crisis’ inthe public liability and medicalindemnity insurance markets.It all started at the end of 2001 withreports of community events beingcancelled because they could notsecure public liability insurance. Wethen saw stories of medicalpractitioners threatening not to treatpatients because their premiums hadrisen to such a level it was notfinancially viable for them to continue inthe practice of medicine.Senator Helen Coonan, the FederalMinister for Revenue and AssistantTreasurer, was given the job to developa cross-portfolio response to theissues affecting public liability, medicalindemnity and professional negligence.Senator Coonan then announced anational meeting of State and TerritoryMinisters who had responsibility for therelevant portfolios to explore solutionsto the crisis.After two meetings of the nationalministerial group, Justice Ipp, an actingJudge of Appeal in the NSW SupremeCourt was appointed to chair a panelto review the law of negligence.It consisted of three other people, onlyone of whom was a lawyer. The othertwo were a medical practitioner andthe mayor of Bathurst, which is aregional city in NSW.The first Ipp Report, as it becameknown, was released in September. Thesecond and final report was releasedat the third ministerial meeting on 2October 2002. The Ipp Reportrecommended wide-rangingamendments to the law of negligence,which has developed over hundreds ofyears of judicial consideration.All the States and Territories agreed atthe fourth ministerial meeting inNovember 2002 to implement the thrustof the reforms contained in the IppReport. The interesting point to notewas that most States and Territories hadalready introduced legislation or had iton the drawing board prior to theNovember 2002 meeting.The Queensland Governmentintroduced on 1 July 2002 the PersonalInjuries Proceedings Act 2002 (PIPA).The main points of that legislation werediscussed in the August 2002 editionof Broker (the verdict’s predecessor).The Queensland Law Society, the legalprofession’s peak professional body inQueensland, recognized the need forchange and agreed with the PIPAlegislation which retained people’srights to damages at common lawwhilst restricting costs in smaller claimsand putting into effect procedures toresolve claims at an early stage.In December 2002 the QueenslandGovernment, in accordance with itscommitment to press ahead with theIpp Reforms, put out for consultationthe draft Civil Liability Bill 2002.The Queensland Law Societyconsequently told the StateGovernment that whilst it supportedthe majority of the Ipprecommendations incorporated into theCivil Liability Bill 2002 draft it wasopposed to:• any restrictions on the limitationperiod, particularly for a child or aperson with a legal disability, to bringan action for damages arising out ofa negligent act. The recommendationin the new draft is six years.• any restrictions on a threshold forgeneral damages for pain andsuffering. The recommendation inthe draft Bill is a point scale withset figures.The Queensland Law Society believesthat the PIPA legislation, given time, willaddress the areas of concern.theverdict autumn 2003 page 11


civil wrongs tort reformThe insurance industry globally is goingthrough a consolidation process.Insurance companies are reassessingtheir business after a number ofsignificant events, such as theSeptember 11 terrorist attacks in NewYork, the down-turn in the worldeconomy, and the collapse of largepublic corporations such as Enron inthe USA and HIH in Australia.The answer is not to reform the law ofnegligence as a knee-jerk reaction butto properly consider and acknowledgethe real causes of the insurance crisis.Are judges acting like SantaClaus?One of the most misinformedcomments circulating during the tortreform debate was that judges awardpeople damages that a reasonableperson would not.The case of the drunk leaving the pubthen being hit by a car, or the mandiving into the shallow canal andinjuring himself, are often quoted. Inboth these cases the media neglectedto mention that they were decisions ofa jury and that when both cases wentto appeal, the compensationdetermined by the juries was reduced.Now a number of recent decisions ofQueensland courts clearly indicate thatthe judiciary believes people have tobe responsible for their own actions.Passenger 70% liable fordrinking and not wearing aseat beltIn a recent Court of Appeal decisionWills v Bell & Ors [2002] QCA 419 thecourt held that the owner of a car whowas a passenger in his own car whichwas being driven by an intoxicatedperson should have his damagesreduced by 70%. The court explainedthe reduction in damages as 50% forgetting into a car with a person withwhom he had been drinking heavily fora considerable period of time, and 20%for not wearing a seat belt.The trial judge in the first instance alsoordered 20% contributory negligence fornot wearing a seat belt but made nofinding of any contributory negligence forletting an intoxicated person drive the car.The evidence showed the driver wouldhave had a blood alcohol reading of atleast 0.27%, more than five times thelegal limit. The evidence also revealedthat the plaintiff had been drinking withthe driver for a long time beforeembarking on the doomed journeywith him.The Court of Appeal clearly believedthe plaintiff should be held partiallyliable even though his judgment mighthave been impaired by alcohol whenhe got in the car.The decision is interesting in that italso discusses the principle ofvoluntary assumption of risk and a jointillegal enterprise.Tripping cases a thing of thepast?In Spencer v Council of the City ofMaryborough [2002] QCA 250 theQueensland Court of Appeal by amajority held that the Council was notnegligent in failing to detect andremove a difference of 10mmbetween two concrete slabs ona footpath.Justice Holmes, with Justice McMurdowho is President of the Court ofAppeal, said that when considering therisk the Council was entitled to assumethat people using the footpath wouldtake ordinary care and that while thefootpath might have presented aforeseeable risk it was not one ofgrave proportions.Holmes J was particularly critical of thetrial judge in the first instance for notconsidering what reasonable stepscould have been taken by the Council.She said: “To say that the Councilshould have committed itself to suchclose and constant inspection of itsfootpaths to ensure any defect waseradicated before reachingdimensions of 9mm to 10mm,dictates, in my view, a use of resourceswhich is not rational to the risk posed.”Swimmer should have knownof the risk of drowningOn 29 November 2002 one of the mosteagerly awaited decisions this year washanded down by Justice Moynihan J inthe Supreme Court in Brisbane. Thereason it was such a significant casewas that the claim was for over $100million and it had to consider when aperson takes responsibility for theirown actions.The case was Enright v Coolum ResortPty Ltd & Ors [2002] QSC 394, broughtby the widow of Mr Enright who was anexecutive of Pepsi Corporation. Hewas a citizen of the United States ofAmerica attending a conference at theHyatt Resort at Coolum.Late on the day of his arrival at theresort in 1993 he decided to go for aswim at the resort’s beach atYaroomba. He was an experiencedswimmer and water sports person.But on the drive to the resort from theairport in Brisbane he was told by thedriver, a local, that the beachwas dangerous.The judge found that he arrived at theresort determined to swim. Withanother male attending the conferencehe decided to go to the beach late inthe afternoon to swim. The other maleperson was not a strong swimmer.They were dropped at the beach by aresort employee. Mr Enright made noattempt to locate the lifeguard area andcommenced swimming in the surf. Hewas caught in a rip and drowned.His wife’s legal team argued there wereno warning signs where he wasswimming. The test the court had toapply was what Mr Enright wouldsubjectively have done had he beentold what a reasonable person wouldhave done - Chesterman J in Hallmark– Mitex, an unreported case of theCourt of Appeal, 11009 of 1997.It was submitted:• there was evidence he was bydisposition conservative and not arisk taker;• there was evidence he had in thepast indicated a likely reliance onwarning signs;• he did not swim outside beach hoursor outside the unpatrolled area onLong Island beach;• his general outlook was one ofsafety consciousness;• he was a Harvard-educated lawyer.Moynihan J weighed theseconsiderations against his conclusionsabout Mr Enright’s behaviour.He found that Mr Enright haddetermined to surf notwithstanding thewarning from the driver who pickedhim up from Brisbane airport. Hemade no attempt to acquire anyrelevant information from the resort. Heentered the water without locating thebeach club or lifeguard tower. He wasexperienced in risks associated withwater-based recreational activities andthe decisions to enter and remain inthe water were his.The risk which led to his drowning waswithin his knowledge and was withinhis competence to deal with had hebeen paying proper regard to theconditions and depth of the water, hisdistance from the shore, and his stateof fatigue and fitness.theverdict autumn 2003 page 12


civil wrongsour courts warnwatch where you’re going!by Ian MuilIan Muil is the editor ofProctor, the official journalof the Queensland LawSociety, and QueenslandLaw Society group editor.Australia’s courts are changing theway they approach the liability oflocal authorities or occupiers toinjured pedestrians, judging byrecent Appeal Court decisions.Unless you can show the hazardthat caused the injury was hidden,unusual or unexpected, or that theresponsible organisation knewabout it but did nothing, the courtsare saying you must acceptresponsibility for your own safety.Courts across Australia are nowapplying a consistent approach toliability for obvious hazards. In thisnew regime of personalaccountability, the courts expectpedestrians to take someresponsibility for their own safety.Put bluntly - pedestrians should“watch where they are walking.”The new regime of personalaccountability has now also beenembraced by Parliament.The draft Civil Liability Bill 1 providesthat injured persons are presumed tobe aware of obvious risks and there isno duty to warn a person of anobvious risk. If the bill is passed, roadauthorities will not be liable forfailure to repair a road, maintain, orinspect a road.So the courts and Parliament nowclearly expect people to take someresponsibility for their own safety. Thefollowing cases demonstrate thatcourts across Australia are applying aconsistent approach to liability forobvious hazards.In three recent cases in NSW theCourt of Appeal focussed on whetherthe hazard was an unexpected orunusual danger and whether a duty ofcare was owed at all.In Roads & Traffic Authority of NSW vMcGuiness, 2 Mrs McGuiness caughther foot on a manhole cover and fell.The corner of the manhole was 13mm above the surrounding surface.The Court held that the protrudingcorner was obvious and the heightdifference did not make the footpathunsafe for a person takingordinary care.The Court said pedestrians “cangenerally protect themselves fromuneven surfaces on footpaths or otherpublic areas by keeping a lookoutand taking care for their own safety.The position will be otherwise if thesurface contains something unusualor unexpected which creates a realdanger for ordinary pedestrians.”Justice Handley said there was noevidence the Authority had beenaware of the defect, or should havebeen aware, and “even if the Authoritydid become aware of the difference inheight, it would not have been obligedto take any action.”The Court held that the duty of carethe Roads & Traffic Authority owed topedestrians was “to take reasonablecare to prevent and eliminate theexistence of dangers in the road orfootpath. The duty is not to prevent oreliminate ‘ obvious hazards’ which‘could possibly be an occasion ofharm’. The standard of care is thatwhich is reasonably required toprotect pedestrians who are takingreasonable care for their own safety.”The court acknowledged pedestrianswere “in a position of relativeadvantage because they cangenerally protect themselves fromuneven surfaces on footpaths or otherpublic areas by keeping a lookoutand taking care for their own safety.The position will be otherwise if thesurface contains something unusualor unexpected which creates a realdanger for ordinary pedestrians”.theverdict autumn 2003 page 13


civil wrongs watch where you’re going!council was entitled toassume pedestriansusing its footpaths“would take care“And in Burwood Council v Byrnes 3 theplaintiff tripped and fell on a pavedfootpath where one paver had sunkmore than the others. The Court heldthat the height difference of 20mmwas not “an unexpected or unusualdanger” to a pedestrian takingreasonable care.Then in Richmond Valley Council vStanding 4 the plaintiff tripped in a15mm gap caused by a badlycracked footpath. The judges said:“So far as there was any hazard, itwas both not only obvious butinsignificant and common. Thecondition of the pavement was typicalof innumerable kilometres ofpavements in the cities, suburbs andtowns. The imperfection was of a kindwhich users of footpaths have fromchildhood habituated themselves tolook out for and avoid.”The Court held Richmond ValleyCouncil did not have a duty toidentify the defects or remove them:“The conditions of the site were soobvious and so typical of thosecommonly encountered in daily lifethat the defendant was not under anyduty to undertake inspections toidentify them. Even if the defendanthad become aware of the particularconditions of the site, it had noduty to alter them in view oftheir obviousness.”Before 2001 it was difficult to pursuepublic authorities for personal injury onfootpaths because the authority couldinvoke what was known as the ‘highauthority immunity’ for non-feasance,which means, simply, failure to performan act required by law.But High Court decisions in Ghantousv Hawkesbury Shire Council 5 andBrodie v Singleton Shire Councilabolished that immunity, opening thedoor for claims against localauthorities for trips and falls onfootpaths. For example, after thosedecisions insurance claims receivedby the Gold Coast City Councilincreased by 43%.In Ghantous, the plaintiff tripped on anuneven footpath. The defect was aheight difference of 50mm between aconcrete footpath and the ground andthe plaintiff’s foot slipped offthe footpath.But the High Court, though effectivelyabolishing immunity through thatdecision, acknowledged that people“will be expected to exercise sufficientcare by looking where they are goingand perceiving and avoiding obvioushazards, such as uneven pavingstones, tree roots or holes.”In that case Justice Callinan held that“It is not unreasonable to expect thatpeople will see in broad daylight whatlies ahead of them in the ordinarycourse as they walk along.” And theChief Justice of the High Court,Justice Gleeson referred to the caseof Littler v Liverpool Corporation 6where it was held that “a highway isnot to be criticised by the standards ofa bowling green.”On July 19 last year the QueenslandCourt of Appeal in Percy v NoosaShire Council 7 upheld a District Courtdecision that the Council was notnegligent for failing to detect andremove a tree root the appellanttripped on. Council established it wasnot aware of the hazard and had areasonable system of regularinspection and maintenance.Then, a week later, the Appeal Courtin Spencer v Council of the City ofMaryborough 8 held that the Councilhad not breached its duty of care byfailing to detect and remove a 10mmheight difference between twoconcrete slabs in a footpath. Councilwas entitled to assume pedestriansusing its footpaths would take care,the Court found.In that case, Justice Holmes alsocriticised the trial judge for notconsidering what the reasonablesteps to be taken by the Councilmight entail: “To say that the Councilshould have committed itself to suchclose and constant inspection of itsfootpaths to ensure that any defectwas eradicated before reachingdimensions of 9-10mm, dictates, inmy view, a use of resources which isnot rational in relation to therisk posed.”And on 1 August last year the NSWCourt of Appeal handed downLombardi v Holyrod City Council &Anor 9 which involved a trip and fall ona height difference of 25mm betweentwo concrete slabs on a footpath,apparently caused by one slabsubsiding. There were no priorcomplaints about the defect. Theplaintiff, Lombardi, was unsuccessfulin the District Court and Court ofAppeal, both courts agreeing that itwas effectively up to the individual totake care.Two weeks later, the WA Court ofAppeal handed down a similardecision in Gondoline Pty Ltd vHansford. 10 The respondent hadtripped on a paver 25mm above thepath in a tourist attraction which had asystem of inspection for checking thepathway for rubbish and grassgrowing on it. The Court found infavour of the occupier because:• there was an insignificant difference inpaver levels• it was visible to the ordinary user• the user was obliged to anticipateimperfections• failure to detect and rectify theimperfection was not a breach of duty.At the same time, other casessuggest local authorities or occupiersmay not escape liability where theyare aware of a defect prior to theaccident but do not take reasonablesteps to rectify it.The words of Justice Miller inGondoline sum it all up: “This is butanother example of the generalproposition that citizens in the courseof their daily activities are required toguard against ordinary and acceptedrisks created by different levels onpathways, raised paving stones andthe like.”notes1 Civil Liability Bill 20022 (2002) NSWCA 2103 (2002) NSWCA 3434 (2002) NSWCA 3595 (2001) HCA 296 (1968) 2 All ER 343 @ 345 perCumming-Bruce J.7 (2002) QCA 2458 (2002) QCA 2509 (2002) NSWCA 25210 (2002) WASCA 214theverdict autumn 2003 page 14


civil wrongsdamages action turnson the date of conception in a ‘wrongful’ pregnancyby Ian MuilIan Muil is the editor ofProctor, the official journalof the Queensland LawSociety, and QueenslandLaw Society group editor.In Christensen v Salter (2002)QDC 082 Judge Brabazon of theQueensland District Courtconsidered the issue of alimitation period, (which is theperiod after which a civil actioncan no longer be brought),specifically, in this case, to dowith a claim which arose out of afailed sterilisation procedure.Dr David Salter, the first defendant,applied for summary judgmentagainst the plaintiff, JaneChristensen, on the basis that MrsChristensen could not take actionagainst him because of a statutorythree-year limit on such actions.But Mrs Christensen also applied toextend the three-year limitationperiod, under s31 of the Limitationof Actions Act 1974, if her claim wasfound to be out of time.Mrs Christensen’s claim against DrSalter was for damages forwrongful conception. That claimwas commenced in the DistrictCourt on 27 April 2000. Dr Salterhad performed an operation tosterilise her on 26 August 1996,attaching a small clamp, known asa ‘Filshie Clip’ to each fallopiantube using a laparoscope.The operation failed and on 19December 1997 she gave birth toa boy.She alleged that Dr Salter wasnegligent in the surgery – that theapplicator was not properlycalibrated and the clamps werethus not effectively attached.She also claimed damages formisleading or deceptive conductusing the Fair Trading Act 1989 andthe Trade Practices Act 1974 on thebasis that she was a ‘consumer’and the doctor was ‘ engaged intrade or commerce’ with her.Dr Salter’s argument was that thecause of action, the operation,arose more than three years beforeMrs Christensen lodged her claimand her claims were thus barred bys11 of the Limitation of Actions Act1974 and s82 of the Trade PracticesAct 1974 and s99 of the Fair TradingAct 1989.There was no argument over thefact that the date of conception,approximately 5 April 1997, wasmore than three years beforeproceedings were filed and JudgeBrabazon said the vital facts on thelimitation period issue were not indispute. Rather, he said, thedifficulties were about the law.Two legal issues were involved. Thefirst was when the three-year limitbegan to run against MrsChristensen. The second waswhether a different limitation periodmight apply to Mrs Christensen’seconomic claims, compared tothose for personal painand discomfort.The first issue depended on whenthe cause of action against the firstdefendant arose. Was it at themoment of conception? MrsChristensen argued that the causeof action arose only when shediscovered she was pregnant,which was within three years offiling her claim.But counsel for Dr Salter said thecause of action arose at themoment of conception whichmeant it was outside thethree-year period.Judge Brabazon said that, for thepurposes of the law, a pregnancy istheverdict autumn 2003 page 15


civil wrongs damages actiontreated as a personal injury. Hereferred to a number of authoritieswhich considered the impact of asimilar time limit in a wrongfulconception case and he thusconcluded that it was theconception that was the personalinjury as this was the unwantedcondition Mrs Christensen soughtto avoid by undergoing sterilisation:Walkin v South Manchester HealthAuthority [1995] 4 All ER 132;McFarlane v Tayside Health Board[2000] AC 59; Melchior v Cattanachand the State of Queensland [2001]QCA 246.The Judge found that establishedAustralian law went against MrsChristensen’s proposition that thelimitation period should start fromwhen she discovered she waspregnant. He found that the threeyearperiod began from conception,which was about 5 April 1997.On Mrs Christensen’s economicclaim for the cost of raising a sonto age 21 it was noted thatQueensland’s Court of Appeal hadestablished in Melchior that parentsare entitled to reasonable costs ofchild rearing when a pregnancy iscaused by the negligence ofa surgeon.The Appeal Court said that such aclaim is for pure economic losssuffered by a parent who has toraise a child and it is not not a claimfor damages for personal injury.A claim for damages for wrongfulbirth contains two elements –general damages for the mother’sdiscomfort and pain, and damagesfor economic loss unassociatedwith that physical injury.So it was submitted that theseparate economic claim was notdamages for personal injury whichwould be subject to the three-yearlimit but would instead fall withinthe six-year provision in s10 of theLimitation of Actions Act 1974.But Judge Brabazon rejected thatargument as he was satisfied therewas only one limitation period asclaims for economic losses were “inrespect of the personal injury.”He said he should apply the law asit stood and Dr Salter’s applicationshould be granted because MrsChristensen’s proceedings were outof time and liable to be dismissed.He considered Mrs Christensen’sapplication to extend the three-yearlimit under s31 of the Limitation ofActions Act but said he was notsatisfied there would be sufficientevidence for her to sustain an actionagainst Dr Salter.He said he was satisfied there weresufficient factors before him toenable him to exercise discretion torefuse to extend the limitationperiod as requested by MrsChristensen and he dismissedher application.theverdict autumn 2003 page 16


jobs & the lawget physicaland you can get the sackby Helen TaylorHelen Taylor BA is acommunications officerwith the schoolsdepartment of theQueensland Law Societyand co-ordinator of theSociety’s Schools ConflictResolution and Mediation(SCRAM) competition. Shehas been a council memberof Griffith University for 12years and is completing theBarristers’ Boardexaminations.Employees getting physical withworkmates when they foolaround at work could inviteserious consequences, includingdismissal.A friendly, or not-so-friendly,grabbing of a colleague is out ofplace and risky. It could lead to anaggressive, or otherwiseinappropriate, response resulting indismissal of one or both peopleinvolved.Two hospital workers felt the fullforce of the law when they both losttheir jobs after a workplacealtercation. The workers threwpunches at each other near a wardwhere patients could have beenadversely affected, and bothemployees were dismissed.The employer, Queensland Health,appealed against the decision ofthe Industrial RelationsCommission that the dismissal ofthe two by Queensland Health was“harsh, unjust and unreasonable”and that the two should bereinstated.On appeal by Queensland Health,Justice Williams, President of theIndustrial Court, found that thedismissal was not “harsh, unjustand unreasonable” and he upheldthe appeal by Queensland Healthto the decision of the IndustrialRelations Commission.Justice Williams’s decision wasbased on the view that any incidentinvolving an assault in theworkplace must be regardedseriously (see s226 of theWorkplace Relations Act). Inaddition, this assault breached theCode of Conduct which applied toall hospital workers. (QueenslandHealth v Gary Robinson and BrianGrimley, 1999).In another case, Harris vQueensland Nickel Pty Ltd (2001),an employee was dismissedimmediately after a fight withanother worker, despite having anunblemished employment record.However, the Queensland IndustrialRelations Commission found thatthe termination without notice was“harsh, unjust and unreasonable”and Commissioner Thompsonordered that he be reinstated andthat remuneration owing to him bepaid.The Commission was told thattowards the end of his shift MrHarris was talking on the phonewhen another employee, Mr Watts,“came up behind him,unannounced, and poked him inthe ribs with both hands.”The applicant, who had a history ofback complaints, stated in hisaffidavit of evidence: “Michael and Iare face-to-face abusing eachother, swearing profusely. I’m tellinghim don’t sneak up, poke or eventouch me. Michael then goes on torefer to the medication I take andstarts to taunt me…I’m feelingpretty angry by now, here’s Michael,my supposed mate, taunting meabout something I told him in strictconfidence. I’ve seen red andgrabbed Michael (who is stillswearing and taunting me) andshook him and told him to shutup. Michael grabbed me during thisand we stumbled. Michael had meby the shirt and he went backwardstoward the control panel. He hit thepanel and because he had hold ofme, caused me to stumble as welland land on him as he hit the panel.theverdict autumn 2003 page 17


jobs & the law get physical and get the sackany incidentinvolving an assaultin the workplacemust be regarded“seriously“During all of this Michael and Inever threw any punches. Weseparated, he abusing me, tellingme he was going to make sure thatI’m out of there. He reckoned hehad enough influence to get me thesack. He grabbed the phone and Icommenced to gather my personalstuff as it was shift change time.Michael continued to abuse andtaunt me. I kicked a chair and yelledback and proceeded to leave thebuilding as it was shift change andtime for me to go home.”Mr Harris was then told to go to theforeman’s office where he wasstood down until the next day. Thenext day he attended a meetingwith the company officials and aunion representative and he made awritten statement. The following dayhe was fired with immediate effect.Mr Watts was not fired. He wasgiven a final warning.Commissioner Thompson foundthat the punishment of Mr Harriswas not reasonable because:• Mr Watts was the provocateur• Mr Harris had an unblemishedwork record and firing him,compared with warning Mr Watts,“did not fit the crime”• a similar incident had previouslytaken place and neither employeewas fired.The Commission said that in reinstatingMr Harris it “in no way iscondoning the actions of either MrHarris or Mr Watts” andrecommended that Mr Harris bealso issued with a written finalwarning in the same terms as thewarning given to Mr Watts.“Further, the Commission makes itabundantly clear that fighting, oraltercations, particularly of aphysical nature, are not acceptablenor should be tolerated within theworkplace and the respondent(Queensland Nickel) should advisecurrent and new employees thatsuch behaviour could lead to themost serious of outcomes – loss ofemployment.”An interesting case also involving aphysical altercation which wentbefore the Industrial RelationsCommission in New South Walesinvolved a married couple who bothworked for the same employer.The man was dismissed formisconduct – he had a physicalfight with the sales manager. Butthe employer then sacked theman’s wife, saying it would havebeen “uncomfortable” for thewoman to remain in the workplace,given the unpleasant circumstancesof her husband’s dismissal.However, the NSW IndustrialRelations Commission disagreed,and ruled that the employer’sactions amounted to unfairdismissal of the woman. In thisdecision the Commission said thatdismissal of an employee becauseof the conduct of a spouse orrelative must amount to unfairdismissal.Most laws which govern theworkplace in Queensland areoverseen by the State Departmentof Industrial Relationswww.detir.qld.gov.au but some areadministered by the FederalDepartment of Employment andWorkplace Relationswww.dewrsb.gov.au.A useful brochure produced by theDepartment of Industrial Relations,‘Know your rights andresponsibilities at work – tips forentering the workforce’, is availableat www.wageline.qld.gov.au/public/pdfs/knowyourrights&resp.pdf.theverdict autumn 2003 page 18


jobs & the lawa stitch in timecould have saved plenty - $258,000 in factby Ian Muil & Sheryl JacksonIan Muil is the editor ofProctor, the official journal ofthe Queensland LawSociety, and QueenslandLaw Society group editor.Sheryl Jackson LLB(Hons), LLM is a seniorlecturer in law atQueensland University ofTechnology. She lectures incivil procedure andintellectual property law.She is a co-author of ‘TheLaw of Caveats in Australia& New Zealand’, and of‘Civil Procedure:Commentary & Materials’.She is also a member ofthe Queensland LawSociety’s Practice &Procedure Committee.Cheryl Ann Campbell sufferedinjuries falling down internal stairsat her workplace in the offices ofCSR’s Plane Creek Sugar Mill inSarina on 3 March 1997. At thetime of her accident she was 41.She was knocked unconscious inthe fall and taken by ambulance toSarina Hospital then transferred toMackay Hospital where aneurosurgeon diagnosed softtissue injury to the root of her neckand she was discharged with acervical collar and analgesics twodays later.She was re-admitted three dayslater for chronic pain anddischarged the next day. The paincontinued and she received regulartreatment and was eventuallyprescribed anti-depressants.She told the Court she hasconstant neck pain, experiencessevere headaches up to three timesa week, has pins and needles in herright hand, low back pain, and haslost some vision in her left eye.Ms Campbell sued her employer,CSR Ltd, as the first defendant, andthe occupier of the building inwhich she worked, CSR PlaneCreek Pty Ltd, as seconddefendant - Campbell v CSR Ltd[2002] QSC 266.Justice Dutney found that the riskof someone falling on the stairswas obvious even though someonenegotiating the stairs withreasonable attention was unlikely tohave a problem.The judge found that the stairscould have been made significantlysafer by the simple and inexpensivemethod of capping the toes of thetreads with a non-slip edging. Onthe balance of probabilities, hesaid, this would have prevented theinjury to the plaintiff, Ms Campbell.He found that failure to adopt anobvious and inexpensive remedialmeasure to avoid a foreseeable riskwas a breach of the common lawduty of care owed by an employerto an employee, and a breach ofthe statutory and contractual dutyto provide a safe system of work.He found that the same failure byCSR Plane Creek, the seconddefendant, was a breach of theduty owed by an occupier ofpremises to lawful entrants.But the judge then consideredwhether s253 of the WorkcoverQueensland Act 1996 wouldexclude a claim against an occupierwhere the employer was equallyliable at common law. He said thisappeared superficially to be theconclusion reached by JusticeMcPherson of Queensland’s Courtof Appeal in Karanfilov v InghamsEnterprises Pty Ltd [2001] QdR 273at p282. But, said Justice Dutney,he had considered the matter andbelieved that Justice McPhersonwas actually excluding the claimagainst the occupier on theassumption that the worker had notmet certain requirements of theWorkcover Queensland Act 1996.The requirements related to theneed to obtain a notice ofassessment from WorkCover. Hesaid there was no suggestion MsCampbell had not obtained a noticeof assessment or otherwisecomplied with the requirements ofthe Act.Dealing with the argument of thesecond defendant, CSR PlaneCreek, that negligence on the parttheverdict autumn 2003 page 19


jobs & the law a stitch in timeof Ms Campbell contributed to herinjuries Justice Dutney agreed thatinadvertence or inattention by hercontributed to the accident.He said that the same matterswhich made the danger obvious toCSR Plane Creek would have beenequally obvious to Ms Campbell soher carelessness, he found, mustbe regarded as a contributing factorfor which she must accept liability.He apportioned her responsibilityat 20%.Ms Campbell’s claim for damagesincluded a claim for gratuitous pastdomestic assistance. The damagesclaim was made only against thesecond defendant, CSR PlaneCreek, as s315 of the WorkcoverQueensland Act 1996 preventsrecovery against the first defendant,CSR. Justice Dutney concludedthat s315 did not apply to a claimagainst a third party even where theemployer was jointly liable, and heallowed an amount of damagesagainst the second defendant only.The Workcover QueenslandAmendment Act 2001 omitted s314of the Act and replaced s312, butthe amendments apply only forinjuries sustained after 1 July 2001.Justice Dutney awarded her$322,510.92 for damages, reducedby 20% for her own lack of care.The amount awarded included$40,000 for pain, suffering and lossof amenities; $157,556.70 for pasteconomic loss (basically, the timeshe was out of work at the wagerate she was earning); $64,005 forfuture economic loss; and$11,028.97 for past loss ofsuperannuation.theverdict autumn 2003 page 20


environmental lawtime for a new regimefor fraser island?by Rob StevensonRob StevensonLLB (Honors) LLM(Environmental ResourcesLaw) is a partner with WestEnd law firm NathanLawyers. He specialises inenvironmental law.Fraser Island is unique in itsindividual environmental valuesand as a complete ecosystem. ButFraser Island is sufferingsignificant damage from overuseand it is not being managedappropriately to correct that.Indeed, so far as Fraser Island goes,Australia continues to breach itsinternational duties, and, worse thanthat, we risk losing a uniqueecosystem.The key relevant internationalconvention is the ‘World HeritageConvention’, adopted by the GeneralConference of the United NationsEducational, Scientific & CulturalOrganisation in November 1972 andwhich came into force on December17, 1975.In August 1974 Australia became theseventh nation to ratify theConvention.The existence of an international legalduty arising from the Convention toprotect and preserve the cultural andnatural heritage of listed properties isundisputed. 1The requirements of the Conventionare that each State must do all in itspower to ensure effective and activemeasures are taken to achieve theConvention’s objects. There is a dutyto ensure the protection of naturalheritage.The Convention objectives are:• identification of a world heritage area• preservation of the area from harmand destructive influences• introduction of the world heritagearea to the world• conveyance of the area to futuregenerations.Queensland’s managementThe State of Queensland’s approachto environmental management ofFraser Island relies on existing formsof conservation tenure andmanagement arrangements.The Fraser Island world heritage areawas established following longrunningand acrimonious conflict overresource use. Tenure on Fraser Islandconsists of national and marine park,vacant crown land, wetland reserve,freehold, crown reserve and fishhabitat reserve.The island is managed by the State ofQueensland principally through itsNature Conservation Act 1992 (NCA)and Recreation Areas ManagementAct 1988.Management is overseen by aMinisterial Council comprising Federaland State ministers and aManagement Committee consistingof the chief executive officers ofFederal and State environmentdepartments, the QueenslandDepartment of Natural Resources, theOffice of National Tourism and themayors of the two local authoritiescovering the area.Daily management responsibility restswith the Queensland Department ofEnvironment & Heritage.The Management Committee issupported by a community advisorycommittee and a scientific advisorycommittee.The Great Sandy RegionManagement Plan was released in1994. Despite its world heritage statusthe island is managed as a nationalpark under the NCA – the rationale isthat this class of protected areaprovides one of the highest levels ofprotection available under the NCA. 2theverdict autumn 2003 page 21


environmental law a new regime for fraser islandFraser Island is also subject to thejurisdiction of two local governments.Hervey Bay City Council hasjurisdiction over the top half of theisland; Maryborough City Council hasjurisdiction over the bottom half.Hervey Bay City Council has atraditional planning scheme breakingareas up into zones. Most of the areaunder the Council’s jurisdiction iszoned for conservation purposes butthere are significant pockets of landzoned for residential development.And Maryborough City Councilrecently implemented a new planningscheme compliant with the IntegratedPlanning Act 1997. The area of theisland subject to Maryborough CityCouncil jurisdiction is covered by alocal area plan and a number ofcodes governing development in theresidential precincts on the island.It’s still too early to tell whether thisnew planning scheme will change theway in which the island is managed.Commonwealth legislationThe Environment Protection &Biodiversity Conservation Act 1999(EPBC Act) broadened the potentialfor Commonwealth involvement inworld heritage areas.Section 321 of the EPBC Act providesthat the Commonwealth use its “bestendeavors” to ensure a managementplan is prepared and implemented inco-operation with the State. There isalso provision for world heritagemanagement principles to beformulated and taken into account inpreparation of management plans. 3Australian world heritagemanagement principles emphasisethe need for adequate publicconsultation on decisions and actionsthat may significantly impact theproperty and management plan.However, the overall regime isintended to ensure that, while theCommonwealth’s responsibilities aredischarged, management is carriedout by the States.The most significant development inthe new EPBC Act is implementationof a separate Commonwealthapproval system for activities likely tohave a major impact on “matters ofnational environmental significance.” 4The effect is a requirement to obtainapproval from the Federal EnvironmentMinister for any activity likely tosignificantly impact a world heritageproperty. In reality, such activities arethus prohibited, and the prohibition isnot restricted to activities within theworld heritage area but could coveradjoining or nearby areas if the worldheritage area wouldbe affected.But the Act applies only to prospectiveactivities because if a proposal is alawful continuation of a use occurringimmediately before the Act’scommencement, and not anenlargement, expansion orintensification of that activity, it will notbe caught by the Act.Of course, if the proposed actionmight have a significant impact on theproperty, the proposal must bereferred to the Federal EnvironmentMinister for approval.Exemptions to this are limited. TheMinister must then, if necessary,arrange for the impact of the proposalto be assessed before decidingwhether to grant approval and onwhat conditions.This system has the potential tosignificantly effect the management ofFraser Island to achieve the objects ofthe Convention.For example, a conservationist wasable to take court action against theState Government under the EPBCAct last year to prevent the ongoingculling of dingoes. 5Though that action was notsuccessful in seeking the interiminjunction desired, which was to haltthe culling, the action reminded theState Government of Australia’sinternational obligations in managingthe island.Re-consider the regime?Threats to Fraser Island from loggingand mining have passed, for now. Thethreat to the island now is tourism.Department of Environmentconsultants have concluded that halfthe major sites and routes in the areashow evidence of physical impactsbeyond acceptable limits.Some scenic routes, lakes andcamping areas are being used 50%over capacity. There are concerns theisland is suffering significant damagefrom degradation to roads, lack of aproper fire management policy, poormanagement of tourism and urbancommunities, shrinking of wildernessareas, increased noise, increasednumbers and size and weight ofvehicles and their consequent impacton vegetation and fauna.A number of difficulties in themanagement of world heritage areasin Australia were identified in theHORSCERA Inquiry report completedafter the 1996 Federal election.The Committee said: “Theenthusiasm which accompaniedworld heritage nomination has not(always) been followed by anadequate commitment of resourcesto care for and present the area.” 6The primary factors preventingimplementation are historical, culturaland political, lack of adequate fundingand lack of public participation inplanning the island’s management.theverdict autumn 2003 page 22


environmental law a new regime for fraser islandA new management regime?Changes to the way we manageFraser Island are needed to dischargeour international obligations.The important elements in anylegislative system dealing with theisland are:• dedicated ‘ stand alone’ legislationwith stated objectives• the establishment of anindependent Fraser IslandManagement Authority• an appropriate zoning system• management plans which will havethe status of subordinate legislation• specific goals and performanceindicators• involvement of the local community• ability for citizens to take legal actionto remedy management breaches• guaranteed funding to ensureproper management.Dedicated legislation – though it’s animprovement on previous laws, theNCA still just imposes a departmentcontrolledregulatory regime onprotected areas. If the State is tocontinue to play a significant role inmanagement of the island then a jointState and Federal ManagementAuthority with stand-alone legislationis needed, like that covering the WetTropics World Heritage Area and theGreat Barrier Reef.Objectives – legislation should meetthe obligations of the Convention tomake it clear that decision-makingpower must be exercised consistentlywith the Convention. 7 Theparamountcy of the objectives clauseshould be stated and measuresrequired to achieve those objectivesshould be detailed.Establishment of an independentmanagement authority – whilemanagement of Fraser Island remainsin the hands of the State Governmentthere will be criticism of partisanshipin the way it is managed. Worldheritage areas with dedicatedmanagement arrangements andlegislation, such as the Great BarrierReef Marine Park, tend to havestrategic planning capacity which iscurrently lacking. An independentauthority would fix that.Management plans should have thestatus of subordinate legislation –under the provisions of the NCA,management plans have the force ofsubordinate legislation whenapproved by the Governor-in-Council. 8 However, there is nothing inthe NCA that requires themanagement plan to be approved andit has not been so the managementplan obligations are unenforceable. Toacquire this status, the plan must belaid before Parliament for 14 days,examined by the Scrutiny ofLegislation Committee, and be opento amendment. If there is no motion ofdisallowance the scrutinised plan isapproved by the Governor-in-Councilgiving it the force of law. It would be apublic instrument capable ofenforcement.Specific goals and performanceindicators – the general nature of themanagement plan is a major flaw. Theplan should detail measures toachieve specified objectives and bespecific on timing, steps to be taken,the funding and it should containperformance indicators.Involvement of local community – theapproach now is a prescriptive onewhich is contrary to the experience ofconservation planners and withmodern philosophy in effectiveconservation planning. Traditionally,public participation has involved theright to be informed through publicnotification, to be specifically notifiedand consulted, to makerepresentations, to object, or simply tocomment. 9 The effect is that“submissions are all put into a blackbox and a management plan comesout the other end.” 10 It is a moreadvanced form of dispute resolution,negotiated rulemaking, which offersthe best way of involving the skills andviews of the community.Open standing – if the public is tohave a meaningful role inmanagement of the island, then thepublic’s right, or ‘open standing’ toensure enforcement of obligationsmust be possible. Open standing isan important element ofenvironmental legislation –it’s thecrucial watchdog role. Open standinghas been a feature of Queenslandplanning laws for many years. 11These provisions have been usedsparingly and responsibly by citizens.Guaranteed funding – funding of theFraser Island world heritage area issubject to Government budgets butadequate funding should beenshrined in legislation. Practically,visitors could pay an increased levy.Other national parks?Fraser Island has unique featureswhich make the need for action urgentbut many of the issues raised are ofbroader application to other Statenational parks. In most conservationareas, tensions arise between theneed for conservation and the needfor public accessibility. Most parkscould do with more funding and morepro-active management in a moreappropriate legislative environment.Notes1 The Commonwealth v Tasmania (1983)153 CLR 1, Queensland v TheCommonwealth (1989) 167 CLR 232.2 R. Macdonald, ‘Introduction to the NatureConservation Act 1992’ in D E Fisher & MWalton (eds), ‘Environmental LawQueensland’, Law Book Company, 1996, p13, 846.3 Environment Protection & BiodiversityConservation Act 1999 (Cth) s323.4 Environment Protection & BiodiversityConservation Act 1999 (Cth), chapter 2,part 3, division 1.5 Scheiders & Anor v. State of Queensland[2001] FCA 5536 House of Representatives StandingCommittee on Environment, Recreation &the Arts, ‘Managing Australia’s worldheritage’ (AGPS, 1996), p vii.7 R Lyster, ‘The relevance of theprecautionary principle: Friends ofHinchinbrook Society Inc v Minister forEnvironment” (1997) 14 EPLJ 390 at 398.8 Nature Conservation Act 1992 (Qld),s.119(2).9 D E Fisher, ‘The nature of the environmentallegal system’ in W D Duncan (ed), ‘Planning& environment law in Queensland’ (TheFederation Press, 1993), p 96.10 Comment to the writer by Dr E K Christie,barrister.11 Local Government (Planning &Environment) Act 1990 (Qld) s.2.2.4,Integrated Planning Act 1997 (Qld).theverdict autumn 2003 page 23


a message from the Supreme Court Librarylegal research seminars availableOnce again the Supreme Court Library is offering Legal ResearchSeminars to Years 11 & 12s. A 30-minute talk and demonstration isgiven on how to find relevant material quickly. We cover legislation,case law and secondary material. Using the Supreme Court Libraryweb site as a legal portal, the students are shown how to get to usefulfree legal sites and how to navigate them. Our huge collection of textsand journals makes research on virtually any legal topic possible. Weask schools to send students’ current essay topics in advance so wecan use relevant examples. A handout of useful web sites is given.After the 30-minute talk, students use our catalogue and CD collectionto work on their topics. The library allocates several law student libraryassistants to help and inspire the school students. Photocopying isavailable at very low cost. We make it our business that no studentleaves without good material for their essay and a basic understandingof how to tackle legal research.After about 2 hours the students are welcome to take a break andmaybe look at our historical collections on level 2. The visit can becombined with a visit to a court case and an introductory talk from ajudge (morning only and subject to availability). Keen students arewelcome to return to the library for more research time.Rare Books RoomThere is a cafeteria on ground floor for refreshments.Bookings can be made with Kathy Gardiner on (07) 3247 9101 or gardinerk@sclqld.org.auHow was the constitution drafted?A short play by the Supreme Court LibraryThe play is set within the reconstruction of the Steam YachtLucinda where the constitution of Australia was substantiallydrafted in 1891 by Sir Samuel Griffith and colleagues.Supreme Court Library staff act out the parts of Sir SamuelGriffith (Premier of Queensland and later Chief Justice of HighCourt of Australia) and Andrew Thynne (Brisbane solicitor).They discuss what should be in the constitution of the newnation, how the sections should read and what powers shouldbe given to the Commonwealth. It runs for 20 minutes.The play brings to life the birth of a nation and the place ofour constitution in the democracy that is Australia.Bookings can be made with Kathy Gardiner on (07) 32479101 or gardinerk@sclqld.org.auVisits can be combined with a research seminar in theSupreme Court Library to cover students’ current legal studiesessay topics, a visit to a court room, talk with a judge and awelcome break at the court cafeteria.4 th Floor, The Law Courts, 304 George Street, Brisbane Queensland, AustraliaThe Library supports the Queensland Government’s privacy scheme forthe responsible collection and handling of personal information in thepublic sector. Please consult our website for details.Enquiries +61 7 3247 4373Facsimile +61 7 3247 9233Email librarian@sclqld.org.auWeb www.courts.qld.gov.auABN 46 980 335 828


technology & the lawcyberspace jurisdictionthinking outside the squareby Alan Davidson & Julie WrathmallAlan Davidson BA(CompSci), LLM(Research), is a solicitorand barrister withcomputing sciencequalifications. He haspublished extensively onthe law and computers andis a regular contributor toProctor, the official journal ofthe Queensland LawSociety. He is a senior lawlecturer with the T C BeirneSchool of Law at theUniversity of Queensland.Julie Wrathmall BA LLB(Honours) LLM is a solicitorwith the Queensland legalfirm Biggs & Biggs.Jurisdiction in cyberspace haschallenged the legal system.Publication on the internet iscontinuous, as long as thematerial remains online. Now aHigh Court of Australia decisionhas established just where anarticle is ‘published’ – and, to theconcern of many, it’s where thearticle is downloaded.The message is that whenpublishing online the publicationmust comply with the laws of alljurisdictions in which the materialmay be downloaded.Justice Michael Kirby of the HighCourt in the judgement in DowJones v Gutnick [2002] HCA 56handed down on 10 December2002 said “When a radically newsituation is presented to the law it issometimes necessary to thinkoutside the square… this involves areflection upon the features of theinternet that are said to require anew and distinctive legal approach.”In four separate judgments all sevenHigh Court judges dismissed theappeal of Dow Jones & Co. Inc andthe Court determined thatpublication of a defamatorystatement on the internet occurswhere it is downloaded.Dow Jones publishes the WallStreet Journal and Barronsmagazine - both cover informationon the value and price of shares.Mr Joseph Gutnick is a well knownAustralian businessman with areputation in philanthropic, sportingand religious circles.The October 2000 edition ofBarrons included an article writtenby a journalist working for DowJones titled ‘Unholy gains’ and subheaded‘When stock promoterscross paths with religious charities,investors had better be on guard’.The first page of the article includeda large photograph of Mr Gutnick.Barrons is a weekly publication witha large circulation in the US; a smallnumber come to Australia andsome are sold in Victoria. Themagazine is also online and thearticle went onto the defendant’swebsite on 29 October 2000.Barrons operates from New Jerseyin the US where the web server is. Itis a subscriber website with550,000 subscribers of which 1,700are paid by credit card fromAustralia, with several hundred inVictoria, including significantpersons from finance, business andstockbroking. Some of them wouldhave downloaded the article.The Dow Jones article alleged MrGutnick was “a tax evader who hadlaundered large amounts of money.”Mr Gutnick commencedproceedings for defamation in theSupreme Court of Victoria. A claimwas also made for aggravated andpunitive damages. The sting of thearticle was that “the plaintiff is adevious businessman who shouldbe investigated by US regulators; inany event American investorsshould beware of Gutnickpromotedshares in Americandepository receipts and his newhedge fund held by ChaseManhattan Bank…”Dow Jones applied to dismiss theproceedings for several reasons,including that the Court in Victoriadid not have jurisdiction and if it didshould not exercise its jurisdictionbecause the US was the mostappropriate forum.theverdict autumn 2003 page 25


technology & the law cyberspace jurisdictionDow Jones argued jurisdictionwould exist in Victoria only if it wereshown Victoria was a placeof publication.It was argued the place ofpublication should be the placewhere the information is uploaded.This means there would be onlyone place, rather than potentiallyhundreds. It was also argued thatdownloading the article in Victoriawas the result of independentaction for which Dow Jones shouldnot be held responsible.Mr Gutnick, the plaintiff in theSupreme Court case, argued thatdownloading was the intendedconsequence of Dow Jones invitingsubscribers to its website fromVictoria and placing the article onits server.Victorian Supreme Court judgeJustice Hedigan held that the placeof publication is the place whereand when the contents of thepublication are seen or heard andcomprehended. Accordingly, he,said, Victoria has jurisdiction.But Dow Jones argued that Victoriawas not the most appropriate orconvenient forum for the trial.Notably, Mr Gutnick complainedonly of the publication in Victoriaand gave an undertaking not tosue elsewhere.Dow Jones argued that the extentof publication was greater in the USand it would be highly inconvenientfor it to defend the matterin Victoria.Mr Gutnick countered that it wouldbe a huge inconvenience to him togo to New Jersey to litigate a tortcommitted in Victoria whichdamaged his reputation in Victoria.He said he was born in Victoria,grew up there, resides there and hisbusiness is headquartered there.Each side argued they would losethe advantage of differences in thelaw if the other jurisdictionwere preferred.Justice Hedigan said that as it hadbeen determined the article waspublished in Victoria, Victorian lawshould apply, wherever the matterwas tried and it was held Victoriawould exercise jurisdiction.He held that publication occurred atthe place of downloading. DowJones sought leave to appeal to theCourt of Appeal of Victoria butJustices Buchanan and O’Bryan ofthe Appeal Court refused leave toappeal on the basis the decision ofthe Supreme Court was “plainlycorrect.”Barrister Geoffrey Robertson QC, ofHypotheticals fame, acting for DowJones, made what the Judge calledseveral unsuccessful “boldassertions ... remarkable for itsambition”:• imposing liability wheredownloading occurred “wouldhave a serious ‘ chilling effect’ onfree speech.”• “a narrow rule was appropriate forthe age of globalization.”• “the internet offers Australians thegreatest hope of overcoming thetyranny of distance.”• the judge has “a national duty todecide that there was nojurisdiction in Australia even if Ihad a legal view to the contrary,and that it is his duty publicly todeclare that Mr Gutnick’s actionagainst Dow Jones take place inNew Jersey.”• downloading is “self-publishing.”• “the process is akin to taking abook out of a library in NewJersey and taking it home toVictoria to read.”• “Mr Robertson briefly flirted withthe proposition that cyberspacewas a defamation-free zone, butdid not develop it. Nor shall I.”The judge expressed concern thatRobertson’s arguments “attractivelypresented, as they were, becameenmeshed in the pop sciencelanguage of ‘ get’ messages, ‘pullingoff’, ‘firewalls’.” He said“trumpeting of cyber-spacemiracles” degenerated into“sloganeering” whichdecides nothing.Dow Jones appealed to the HighCourt which dismissed the appeal.High Court judge Justice Kirbyflagged the danger stating that to“tell a person uploading potentiallydefamatory material onto a website… will render that person potentiallyliable to proceedings in courts ofevery legal jurisdiction where thesubject enjoys a reputation, mayhave undesirable consequences.Depending on the publisher and theplace of its assets, it might freezepublication or censor it or try torestrict access to it in certaintheverdict autumn 2003 page 26


technology & the law cyberspace jurisdictioncountries so as to comply with themost restrictive defamation lawsthat could apply.”Single publication ruleMost US states have adopted asingle publication rule which treatsthe sale of defamatory books ornewspapers as a single publication.The time of the ‘ single publication’is fixed as the time of firstpublication. In the UK and Australiaeach publication gives rise to aseparate cause of action. Theprinciple was recently confirmed bythe English Court of Appeal inLoutchansky v Times NewspapersLtd (Nos 2-5) [2002] QB 783.But Justice Gaudron of the HighCourt described the singlepublication rule as “a legal fictionwhich deems a widelydisseminated communication... tobe a single communicationregardless of the number of peopleto whom, or the number of statesin which, it is circulated.”And Dow Jones described as‘primitive’ the Australian positionthat every publication of defamatorymaterial constitutes a new andseparate tort. Dow Jones said theapplicable law should be where theweb servers are maintained, “unlessthat place was merely adventitiousor opportunistic.”The company recognised thatpublishers would place theirservers in jurisdictions mostadvantageous to them, but arguedit did not ‘misuse’ this rule as thelocation of its servers was notdetermined by legal considerations.The High Court said ‘adventitious’and ‘opportunistic’ are words likelyto produce considerable debate.The publisher may decide theserver’s location based on costs ofoperation, benefits offered forsetting up business or security andcontinuity of service. Thepublisher may have servers in twostates or countries.And Justice Callinan of the HighCourt rejected Dow Jones’ssubmission that publication occursat one place, such as where thematter is provided, or first“the internet offersAustralians thegreatest hope ofovercoming thetyranny ofdistance“published. He said that view“cannot withstand any reasonabletest of certainty and fairness” andexpressed concern that publisherswould set up in a “defamation-freejurisdiction” or one in whichdefamation laws are tilted towardsdefendants.“Why would publishers, owingduties to their shareholders tomaximise profits, do otherwise,”he said.Justice Kirby then listed fourreasons for declining an internetspecificsingle publication rule:damage to reputation is essential;communication must take place;each time there is acommunication, the plaintiff has anew cause of action; the publisheris liable for publication in aparticular jurisdiction where that isthe intended or natural andprobable consequence of its acts.The internetJustice Kirby dealt with the legalresponse to the impact of theinternet, which he described as“essentially a decentralised, selfmaintainedtelecommunicationsnetwork” which “demands a radicalreconceptualisation of theapplicable common law.” Theinternet is “ubiquitous, borderless,global and ambient in its nature.”The internet involves “a quantumleap of technological capacity andthe ubiquitous availability ofinformation that demand(s) a rootand branch revision of some of theearlier legal rules in order to takeinto account the internet’sspecial features.”He drew an analogy between thedevelopment of such new legalrules and the law merchant (lexmercatoria) arising out of thecustom of merchants of manynations in Europe.“The rules of the common law ofEngland adapted to the lawmerchant. They did so out ofnecessity and commonsense.”ConclusionThe High Court determined that theplace where damage was inflictedwas significant and the place wherethe defamation was comprehendedand the plaintiff’s connection withthe locality were important.According to a majority of the HighCourt the “spectre which DowJones sought to conjure up” that apublisher forced to consider everyarticle it publishes on the internet“against the defamation laws ofevery country from Afghanistan toZimbabwe is seen to be unrealwhen it is recalled that in all exceptthe most unusual of cases,identifying the person about whommaterial is to be published willreadily identify the defamation lawto which that person may resort.”theverdict autumn 2003 page 27


crime and societythe rise and rise of drug courtsin australiaby Mandy ShircoreMandy Shircore BSc LLB isan associate lecturer at theCairns campus of theJames Cook UniversitySchool of Law. Shepractised as a solicitor inMelbourne and Cairns incriminal law for elevenyears before joining JamesCook University in 2002.She lectures in torts andcontract law.Over the past few years manyjurisdictions in Australia havedeveloped innovative programs todeal with the problem of illicit druguse and criminal activity.Following the lead of the UnitedStates, drug courts have emerged inAustralia as a way of incorporatingthe aims of the criminal justicesystem and those of the health,community and correctiveservices sectors.Often referred to as problem-solvingor problem-oriented courts, a drugcourt has been defined as“specifically designated to administercases referred for judiciallysupervised drug treatment withina jurisdiction.” 1Defendants deemed eligible for theprogram under relevant legislationare referred by the courts for drugtreatment and the court maintains asupervisory role over the defendantduring the course of the program.Each jurisdiction in Australia hasdeveloped its own drug court. InQueensland it is known as ‘PilotProgram Courts’.History of drug courtsA fairly new phenomenon worldwide,drug courts in their modern formbegan in Dade County Floridain 1989. 2They were the result of pressureplaced on local courts by the largenumber of drug cases and theperceived failure of previouspolicies of imposing toughersentences on offenders involved indrug-related crime.There is clearly enthusiastic supportfor the courts in the United States,where drug courts now numberbetween 400 and 700. Pilot drugcourt programs have also beenestablished in Canada, Ireland,Scotland and England.Drug courts differ from the traditionalcourts because the sentencing judgeor magistrate works with the team ofhealth workers, community andgovernment agencies to devise andmonitor an individually designedrehabilitation program.There has been a move away fromthe traditional judicial function oflimited intervention, to a moreinvolved ‘hands on’ judicialapproach. Defendants are able toparticipate more fully in the justicesystem and the aims of all partiesinvolved in the court process are toreach the common goal ofsentencing and rehabilitation throughdrug treatment.As new treatment programs have tobe developed and more agenciesbecome involved in the courtprocess, drug courts are a costlyresource-intensive program. Manystudies have concluded, however,that there have been savings to thecriminal justice system in reducingrecidivism, drug dependency andpressures on prisons and courts.Others argue that many of the studiesconducted are inconclusive and thereis a need for further rigorousevaluations of the schemes.In Australia the first State to trial aform of drug court was New SouthWales in 1998. The NSW programhas been expanded across the Stateand there has been a furtherintroduction of an early referral, presentence,scheme. Other States havesince followed with their own modelsfor a drug court or similar program.The Queensland experienceSimilar to the NSW scheme, the newQueensland drug court operates asa sentencing option, after thetheverdict autumn 2003 page 28


crime and society the rise of drug courtsdefendanthas been convicted.Established as a pilotdiversion court, it beganoperation at Beenleigh, Ipswichand Southport Magistrates Courts inJune 2000. It has recently beenextended to Cairns and Townsville.The court offers eligible defendantsthe opportunity to avoid an initialcustodial sentence and insteadundertake an intensive drugrehabilitation order.The Act establishing the pilotprogram, the Drug Rehabilitation(Court Diversion) Act 2000, statesthat the objects of the Act areto reduce:• the level of drug dependency in thecommunity,• the level of criminal activityassociated with drug dependency,• health risks to the communityassociated with drug dependency,and• pressure on resources in the courtand prison systems.These objects are to beachieved by:• identifying drug-dependentpersons suitable for intensive drugrehabilitation;• improving their ability to function aslaw-abiding citizens;• improving their employability; and• improving their health. 3To be eligible for the scheme thedefendant must be a drugdependentadult offender whosedrug dependency contributed to thecommission of the offence. Further,the offence must be one for whichthey are likely to receive a custodialsentence. There are a number of‘ disqualifying’ offences for which thedefendant would not be eligible forthe scheme. These include sexualoffences and indictable offencesa person.involvingviolence againstThe program eligibility criteria meanonly a limited number of drugdependentoffenders are able toaccess the scheme. It is aimedprimarily at defendants whose drugdependency has contributed toproperty-related offences and drugoffences. As the defendant must befacing the prospect of a jail sentence,they are also the more seriouscriminal matters.Magistrates are appointed to presideover the designated drug courts. Thisenables magistrates to develop thenecessary expertise to effectivelyoversee the program. Once themagistrate has determined that thedefendant is an eligible person andthey have, or will, plead guilty, theyare referred for assessment byCorrective Services officers.Consideration is given to theindividual needs of the defendant inconsultation with governmentagencies, community groups andhealth providers. The defendant isremanded either on bail or in custodyand a report is prepared outlining thedefendant’s suitability forrehabilitation and a proposedrehabilitation program.After consideration of the report, themagistrate can order the defendantto undertake an intensive drugrehabilitation program. The defendantmust plead guilty to the offence anda conviction must be recorded. Themagistrate must impose an ‘initial’sentence of imprisonment which isthen wholly suspended while thedefendant undertakes therehabilitation program. The defendantmust consent to the order.The order includes the rehabilitationprogram and may also require thedefendant to pay restitution,compensation, undertake up to 120hours community service work andanything else required.The requirements under therehabilitation program include reportsand visits by community serviceofficers, frequent drug testing,vocational and employment coursesand medical, psychiatric orpsychological treatment. Suchtreatment may require thedefendant to enter a residential drugtreatment facility.Although courts have always hadwide discretionary powers ofsentencing and the ability to orderthat defendants undertake drugtreatment, the degree of interactionand supervision by the presidingmagistrate sets this apart from thetraditional court model.In traditional courts once thedefendant is placed on a communityservice order (which may alsoinclude drug treatment and specificprograms), the matter is completedin court and the defendant issupervised solely by a CommunityCorrections officer.Unless the defendant breaches theorder the magistrate has nothingfurther to do with the matter. In a drugcourt, however, the magistratecontinues close supervision of eachdefendant. The magistrate canreceive advice on the defendant’sprogress from the team of health andcorrections professionals, policeprosecutors, legal aid lawyers andthe individual defendant.As the same magistrate continuesthe supervision they becomepersonally aware of a particulardefendant’s needs andcircumstances. The magistrate,during the program, can grantrewards and sanctions whichencourage compliance with theprogram. For example, as a reward adefendant may be required to attendless regularly for supervision or drugtesting or community-service workhours may be reduced or increased.The intensive drug rehabilitation ordercan be varied throughout the term ofthe order to the changingtheverdict autumn 2003 page 29


crime and society the rise of drug courtsrequirements of the defendant.Once the order is completed orterminated (through non-complianceor a request by the offender), themagistrate must determine a finalsentence, taking into account theoffender’s participation in theprogram.Depending on the success of theindividual, this could range fromimmediately releasing the offenderthrough to imposing the initial term ofimprisonment. There is no right toappeal the initial sentence, theintensive drug orders, or its terms. Thefinal sentence can be appealed in thenormal way.Harm minimisation programs forpeople charged with minor drugoffences have also been introducedin Queensland.Recent amendments to the JuvenileJustice Act 1992 and Penalties &Sentences Act 1992 allow prescribed‘ drug diversion courts’ to divert eligibleoffenders charged with minor drugoffences to drug assessment andeducation sessions. 4Under the Police Powers &Responsibilities Act 2000 policemust offer a drug diversionassessment program to peoplearrested for minor drug offences incertain circumstances. 5Where to from here?As part of the pilot program, theQueensland Drug Court is conductingan ongoing review. The report of thatreview is to be presented before theexpiration of the pilot project, nowextended to December 2003. 6The report will provide a basis forpolicy makers to determine thevalidity of the program, changesrequired and whether to expand thescheme or any similar schemes.In July 2001, one year after theQueensland project began, the ChiefMagistrate of Queensland, Ms DianneFingleton, reported that the programwas progressing well with two-thirdsof offenders placed on intensivedrug rehabilitation orders still intheir program. 7The introduction of drug courts inAustralia and elsewhere indicates a“move away from a focus onindividuals and their criminal conductto offenders problems andtheir solutions.” 8Offering a more holistic approach tosentencing, such courts offeroffenders greater opportunity toaddress the underlying causescontributing to their offendingbehaviour. This occurs with thesupport of the court, health andcorrectional professionals, policeprosecutors and defence lawyerscollaborating to reach a commongoal. This is markedly different fromthe adversarial nature of traditionalcourts where the defence oftenadvocates a lenient sentence and theprosecutor asks for a sentence thatwill reflect perceived communityexpectations of tougher sentencing.The development of principles thatinvolve problem-oriented solutions isoccurring rapidly across the criminaljustice spectrum. The expansion ofrestorative justice programs, wherebyoffenders are required to takeresponsibility for the effect of theircriminal activity, and victims areinvolved in the sentencing process, isan example of this shift.Other courts applying a moreproblem-solving approach aredeveloping across Australia.In Brisbane there has been theestablishment of a ‘Murri Court’ wherecommunity elders provide advice oncultural issues to a speciallyappointed magistrate to assistsentencing indigenous offenders.South Australia has similar courts andVictoria is also introducing a pilot‘Koori Court’. In North QueenslandAboriginal communities, criminaljustice groups comprising communityelders provide an advisory function tosentencing courts.In Western Australia a ‘Circle Court’ isbeing established in the Pilbara tohear criminal matters involvingindigenous offenders who areprepared to address the cause oftheir offending behaviour with theassistance of the court, thecommunity and family.South Australia has a court diversionprogram to deal with people withmental health problems who havebeen charged with minor offences.The magistrate adjourns the chargesfor a specified period and the offenderis placed in appropriate programsdesigned to deal with theirmental health problems, drug andalcohol dependency, andhomelessness issues.A variation on this concept wasadopted in NSW in early 2000,whereby psychiatric assessment ofoffenders is available at specifiedlocal courts - the aim is to providediversionary programs as analternative to imprisonment.Specialist courts requireconsiderable resources to administer,and policy-makers are bound to keepa close scrutiny of the costeffectiveness of the new schemes.While there has been some criticismof the reforms, many of thesechanges have been introduced aspilot programs and are subject toongoing review and evaluation.As has been noted by criminologists“these courts should not becompared to some idealistic form ofjustice, but to the real world of thecriminal courts: the plea bargainingmills, the brief plea-hearings, the highrecidivism rates of the difficultoffenders and the frustrated judgeswho feel they can do little for themost difficult cases other thanpropel them up higher in thesentencing hierarchy.” 9notes1 United States National Association of Drug CourtProfessionals, articles of association, s2, cited in A.Freiberg, ‘Australian Drug Courts’, 24 Criminal LawJournal (2000), p 213.2 T. Makkai, Drug Courts: Issues and Prospects,trends and issues in crime and criminal justice, No.95, Australian Institute of Criminology, Canberra,1998, p 2.3 Drug Rehabilitation (Court Diversion) Act 2000, s 3.4 Juvenile Justice Act 1992, s119K; Penalties &Sentences Act 1992, s19.5 Police Powers & Responsibilities Act 2000, s211.6 The expiry of the Act may be extended for afurther year, Drug Rehabilitation (Court Diversion)Act 2000, s 47(1A).7 Ms Dianne Fingleton, Chief Magistrate ofQueensland, commentary on paper presented byProfessor Arie Freiberg, Professor of Criminology,at the AIJA Magistrates’ Conference, 20-21 July,2001, Melbourne, p 4.8 A. Freiberg, ‘Problem-oriented courts: Innovativesolutions to intractable problems’, 11 Journal ofJudicial Administration (2001) p 9.9 Id at 24, considering G. Berman, and J. Feinblatt,‘Problem-solving courts: A brief primer’ (2001) 23,Law and Policy 125.theverdict autumn 2003 page 30


the legal systemking hitthe rule of lawby Prof James F CorkeryProfesser James F. Corkery,BA LLB(Hons)(Otago),DipT (NZ), is Professor of Lawat Bond University. He wasformerly the Chair of theDepartment of Law at theUniversity of Adelaide andwas Associate Dean ofBond University LawSchool from 1988-1993. Heis also Australiancorrespondent for the‘Malaysian Law News’.The term ‘king hit’ is well known insome sporting circles, especiallyrugby league and ice hockey. Today,being ‘king hit’ means to be hitheavily when you’re not expecting it.You do not often rise quickly afterbeing ‘king hit’.The origin of the term concerns‘the rule of law’.Brilliant English Chief Justice, SirEdward Coke, felt the force of hisKing’s fist in 1608 when he gave KingJames I the unwelcome view that: “Theking is not subject to men, but issubject to God and the law.”James I thought he should not besubject to man-made law. Enraged, hefelled Coke to the floor. Thus ‘king hit’.James I claimed that his prerogativeright was divine and that as monarchhe was above the law, at least abovethe law made by other mortals.The Stuart kings, building on thestrength of the mighty Tudor monarchs- Henry VII and VIII and Elizabeth I -were asserting divine right, to be abovelaws made by the parliament orthe courts.Most dictators and all tyrants do this.They will not be accountable or slowedby due process and observance ofrights. But tyranny spells the end of ourfreedom. It leads to flouting of theprocesses that ensure basic freedomsand rightsare respected.There is a story in the book ‘StartingLaw’ about the importance of the ruleof law and how it should trim arbitraryand brutal conduct.A helicopter pilot in the AustralianDefence Force was stationed near asmall town. The Australians were in anuneasy alliance with the occupyingforce from another country whichcontrolled the area. One of the localnative men entered the Australianbarracks and stole the young pilot’stracksuit. The pilot reported the loss.The local was arrested the next day.Radio to his ear, he was cheerfullyshowing off his newly-acquiredtracksuit in the main street.Early next morning, the Australian pilotswere called to parade. They wereaddressed righteously and at length byan occupying force military officer onthe subject of honesty. The handcuffedthief was marched before theassembly. Suddenly, the occupyingforce officer drew his pistol, put it tothe man’s head and executed him onthe spot.The young Australian pilot wasshattered. He could not believe hisstolen tracksuit had led to this death.There had been no trial, no forum hadconsidered the crime, punishment orthe prisoner’s rights. The punishmentwas hopelessly disproportionate to thecrime, even if the man was guilty.The pilot was horrified by the arbitrarypower taken by the officer. He resolvedthat the only force that could curbbrutal and arbitrary acts was a welldeveloped,independent and effectivelegal system. A system where there isrespect for the rule of law. So theyoung pilot studied law.What is the ‘rule of law’?The ‘rule of law’ has a specificmeaning, though some use the termas a slogan meaning conditions underwhich people have dignity andfreedom and governments are nottyrannical. We hear the term frequently.It has become a political ideal ormantra.Legal philosopher Joseph Raz assertsthe rule of law is one of those virtues agood legal system should possess. Itis not the same thing as democracy,freedom, equality, or human rights.theverdict autumn 2003 page 31


the legal system king hitIt has a separate meaning.At its narrowest it means governmentsand rulers should be ruled by the lawand be subject to the law. Take JamesI. While still James VI of Scotland hewas travelling to England to becrowned James I, King of England. Agreat caravan of subjects and noblesfollowed him. Behind them was amotley group of hangers-on andthieves, some of whom were eventuallybrought before the King, who orderedtheir executions on the spot.The crowd was happy. But Attorney-General Edward Coke was not. TheKing had not followed proper process -no trials, no objective weighing ofevidence. The crowd had merelydemanded retribution.The rule of law might be under threat inthis King’s reign, said Coke,prophetically - what the King did tothese men he could do to others whostood in his way or troubled him.In summary the ‘rule of law’ means:• the law is not flexible according tothe whims of a ruler;• the law applies to all - the powerful,the wealthy, the poor, thedisadvantaged;• judges ought to be independent ofgovernment and mob influence;• retroactive criminal laws, secret lawsand all forms of arbitrariness arerepugnant.In 1977 the famous Oxford Universitylegal philosopher Joseph Raz detailedthe components of the term:• all laws should be prospective,publicised and clear;• laws should be relatively stable;• making laws should be guided byopen, stable, clear and general rules;• the independence of the judiciarymust be guaranteed;• the principles of natural justice mustbe observed;• courts should be easily accessible;• the discretion of crime preventionagencies should not be allowed topervert the law.Even in medieval times, there was anotion of the rule of law. For example,towns required criminal laws to be readout aloud in the square so that thepeople knew the laws and could followthem. Ordinary citizens could thenbring claims to independent courtsfor redress.The rule of law developsOn 10 June, 1215, in Runnymede, afield near London, some essentialelements of the rule of law gainedexpression. The highest nobles inEngland, the Barons, were weary of theKing raiding their properties for moneyand provisions to fight wars in Europe.The clergy were angry too - they ownedmuch land in England and wantedcertain ‘rights’ recognised by the King.So they pulled on their armour andraided London, capturing the town.That’s how they got to Runnymede.where law ends,there tyranny“begins“The Barons opposed absolute powerin the King and drew up a list ofliberties – the Articles of the Barons.King John turned up to be greeted withthe proposal that he was also subjectto the law.The rights listed in this document,called the Magna Carta, still makegood reading. It talks about your rightsat trial; you cannot be exiled or strippedof your rights except by the lawfuljudgment of equals or by ‘the law ofthe land’; individuals could not bepicked on, the law should be the samefor everyone.Official abuse, whim and inconsistencywere Magna Carta targets. You couldbe fined only in proportion to youroffence - no special favours, no heftyfines for others at the whim of officials.It was this government by whim of thesovereign’ that was central to the attackof the Barons. Justin Fleming says in‘Barbarism to Verdict’ at p43: “For if thedocument lacked convincing, eternal,legal authority, the event in themeadow was a powerful symbol of therising of a society against the whimand spasm of the ruling conscience…It signifies the authority of the peopleand the limits of kings.”In a nutshell, the people came to seethemselves as the source of the law.Rule of law todayThe term means the law rules over allpersons and institutions - great orsmall, monarchs and prime ministers,presidents and public officials, ordinarycitizens. A system that respects therule of law runs according to legalprinciples that have general application.“Freedom of men under government isto have a standing rule to live by,common to everyone of that society,and made by the legislative powerelected in it; and not to be subject tothe inconstant, unknown, arbitrary willof another man,” said John Locke. 1Adherence to the rule of law means theexecutive arm of government - whichincludes Ministers, administrativetribunals, the civil service - must adhereto legal principles enunciated bystatutes or the courts.Arbitrary arrest and punishment cannotoccur. You are not punishable unlessyou have broken statutory or commonlaw.William Pitt, the great English politician,said: “Where law ends, there tyrannybegins.”The rule of law is a bastion againsttyranny. Of course, the law and thelegal system can be usurped andmisused by tyrants and manipulators.For that reason a legal professionsteeped in the traditions of honour,integrity and independence frompolitics is vital. It must be a nobleprofession - if that nobility or integrity isattacked from within or outside, theattacks must be resisted.The study of law makes you sensitiveto “the approach of tyranny,” asEdmund Burke, in his speech on‘Conciliation with America’ put it: “Thisstudy renders men acute, inquisitive,dexterous, prompt in attack, ready indefence, full of resources ... theyanticipate the evil, and judge of thepressure of the grievance by thebadness of the principle. They augermisgovernment at a distance, andsnuff the approach of tyranny in everytainted breeze.”Fostering the rule of law has been vitalin modern western society, asdemocracy triumphed overgovernment by despots. And thepredictability and fairness of lawsenables economic growth.Colonial AustraliaCorruption abounded in NSW in 1807.The lucrative rum traffic was ofparticular interest to the corrupt NSWCorps. Any Governor espousing therule of law was a threat. Then GovernorBligh tried to contain the rum traffic andin 1808 the Rum Rebellion overthrewBligh’s government. 2When the revolt flared, Governor Blightried to escape but the rebels foundtheverdict autumn 2003 page 32


the legal system king hithim hiding under a feather bed. 3The officers of the NSW Corpsbecame an aristocracy. They wereallowed to engage in trade andagriculture; they gained control ofimports, particularly spirits; and within12 months of Governor Phillip’sdeparture, rum became the recognisedmedium of exchange. Even labourcould be purchased only with spirits.For two years, the rebels ran thecolony. The rule of law had been putaside. Then Governor LachlanMacquarie arrived in 1810. Prudently, hebrought his own regiment, andreinstated good government. 4With him came a qualified lawyer, the27-year-old inappropriately-named EllisBent. Bent became Judge-Advocate,the colony’s second professionallyqualified judge, after Richard Atkins.He clashed often with the Governor,but he was intent on establishing therule of law in NSW. Bent objected to themilitary nature of the criminal court, theconflicting roles of the Judge-Advocate(prosecutor and judge in criminalmatters) and interference in theadministration of law by Governors.He wanted to move NSW from an opengaol to a free society, from arbitrarypower to government on constitutionalprinciples. He recommended reforms –removing the militaristic administrationand fostering a legal profession (hesuggested two barristers and twosolicitors could be attracted, by landand cattle grants, to settle in thecolony), and trial by jury. Trial by juryfinally came in 1833, after it waschampioned by William Wentworth.Case StudiesMalaysiaIn 1999 the Deputy Prime Minister,Anwar Ibrahim, was arrested undercorruption charges under anexceptional statute - the InternalSecurity Act, not the Criminal Code.Anwar was beaten in custody by thepolice chief and not released. He wascharged but the charges were changedduring the trial. His lawyers claim theywere harassed. Australian PrimeMinister John Howard called this “alurch towards authoritarianism.”In short, there was a failure of the dueprocess the Magna Carta wasconcerned about, a failure to apply therule of law and judges were pressuredto side with the powerful ruler.Back in 1988 Malaysia’s top judge, LordPresident Tun Mohd Salleh Abas, wasasked to step down by the PrimeMinister and the King, following hispublic protestations over governmentcriticism of the judiciary. Five SupremeCourt justices were then suspended,and two later dismissed.The International Commission ofJurists condemned this as an attack onjudicial independence. It protested thedismissal of the highest judge in theland, the “unpersuasive” report of theTribunal that recommended dismissal,“the campaign of attacks on thejudiciary and on the rule of law inMalaysia by the Prime Minister ofMalaysia,” and inclusion in the Tribunalconsidering the ‘misbehaviour’ of theLord President of a person likely tobecome Lord President if theincumbent departed.Nazi GermanyNazi Germany provides the mostdramatic recent example of the TotalState. What happened to the judiciaryand to lawyers in that regime?The Nazis took power in 1933 whenHitler became Chancellor. Judges andlegal scholars immediately came undergreat pressure. The State was planningto act dramatically and without dueprocess in dealing with its enemies.Hitler said in 1942: “Justice is no aim initself. … Its task is simply to serve thatpurpose [to maintain man’s socialorder].”The leader could have no law otherthan himself.In 1940 German legal academic CarlSchmitt, justifying the new order,wrote: “The Fuhrer protects the lawfrom its worst abuse if, in the momentof danger, he creates immediate justiceon the authority of his leadership andthus of his supreme judgeship. ‘At thishour I was responsible for the fate ofthe German nation, and was thus thesupreme judge of the German nation’.The true leader always is a judgeas well.”One event triggered the systematicabuse of the rule of law that theGerman nation under Hitler suffered,leading to mass executions of Jewsand others.On 30 June, 1930, the ‘Roehm Purge’occurred. Ernst Roehm was anorganiser for the Nazis, a popular,rough and tough leader. He was incharge of the Nazi private army –known as the Brownshirts, the SA, theStormtroopers - which numbered fourmillion men. It was a powerfulorganisation, bigger than theReichswehr, the official armyof Germany.Roehm was a revolutionary whothought Hitler and the other leaderstoo soft. He wanted the Nazis to pushfurther with socialist reform andremove all power from the privilegedestablishment. He criticised Naziattacks on unions and on freedom ofopinion. He said: “Adolf is rotten. He’sbetraying all of us. He only goesaround with reactionaries…” Roehmwanted the SA to absorb theReichswehr. But Hitler decided toremove Roehm, who had outgrownhis usefulness.Roehm and dozens of others werecharged with being opponents ofHitler, with having “pervertdispositions.” They were accused ofbeing in a plot, of being in “opposition.”One victim, SA Gruppenfuhrer Ernt wasabout to go on honeymoon when hewas arrested. On the way to prison hesaw a newspaper headline saying hehad been executed - he thought it waspart of an elaborate prank to celebratehis marriage. He joked with thearresting officers - until he was put upagainst a wall and shot. His last wordswere an astonished ‘Heil Hitler’.A music critic, Dr Willi Schmidt, wasshot though he had never beeninvolved in any activity but music. Hewas mistaken for SA GruppenfuhrerWilhelm Schmidt.The killings took place on the streets,in offices, in homes, in forests -wherever victims were found. Hitlerapproved these executions. Hisauthority was enough.Joachim C. Fest in ‘Hitler’ (1974) atp465: “The Roehm Purge ‘representeda break with [Hitler’s] tactical imperativeof strict legality’. He had nowabandoned any semblance of justiceand due process. There were no trials;there was no presentation of evidencetheverdict autumn 2003 page 33


the legal system king hitor advocacy; there were not even anyjudgments; no inquiries into guilt orinnocence. The Nazis’ end was powerand all things bent to that. The meanswere not important, as long as the endwas served.”The popular General Roehm awaitedhis fate in his cell. Hitler harbouredsome sentiment for this old and loyalwar-horse of the Nazi Party. But otherleading Nazis demanded decisiveaction. Roehm was handed a pistol inhis cell and told he had 10 minutes todo the ‘ decent thing’. The officers leftthe cell, but no shot sounded over thenext 10 minutes so they burst in, firing.Roehm was waiting with his shirtmelodramatically stripped off.The Nazi Cabinet met days later. Theminutes carried one sentence on thematter: “The measures taken on 30June and 1 and 2 July to suppresstreasonous assaults are legal as acts ofself-defence by the State.”The arrests and killings were decisivebreaches of the rule of law. The publicwas shocked. They knew Hitler wasnow the supreme judge. Strong peoplewere intimidated. Judges knew theyhad to toe the line so they joined Naziorganisations and adopted Naziterminology. They passed harshersentences. New ‘political’ appointeesto judgeships adopted elitist and racisttheories and ideology and appliedthem with ruthless enthusiasm.The People’s Court was established in1934 to deal with crimes against theState. Judges like Roland Freisler(1893-1945) abandoned all pretence ofimpartiality and attacked the accusedwith amazing vitriol. Defence counselsometimes abandoned clients,knowing strong defence would leadto retribution.In Nazi Germany state genocide andterrorism were instituted, tolerated, andflourished when opposition toundermining the rule of law becamealmost impossible.The success of the Roehm daysemboldened Hitler. He now knew therule of law was no longer a problem.There’s a direct line from Roehm to theconcentration camps.Fiji coupMoving ahead 60 years, we see similardisrespect for the rule of law in thecoup in Fi ji in May 2000.Consider the following reports andconsider how the rule of law was flouted.• Time magazine, 29 May 2000:“Seven men armed with AK-47sstormed Fiji’s Parliament anddetained Prime Minister MahendraChaudhry and his ethnic-Indiandominatedgovernment. Theirleader, George Speight, a formertimber industry official, said thegroup had executed a civil coup onbehalf of the indigenous people ofFiji and named government MPTimoci Silatolu as the new PrimeMinister. As rioters looted andburned shops in downtown Suva,President Ratu Sir Kamasese Maradeclared a state of emergency.Speight and his accomplices didnot appear to have the support ofthe military. Sitiveni Rabuka, theformer army strongman who seizedpower in a 1987 coup and lost it toChaudhry in free elections a yearago, asked the group to reconsidertheir action. The hostage crisis inFiji’s Parliament entered its secondweek as coup leader GeorgeSpeight rejected an offer from thepowerful Great Council of Chiefs topardon him and his coconspirators,appoint a newgovernment that would includesome of Speight’s supporters, andgive ‘ special attention’ to reviewingthe constitution. On Saturday, hoursafter a skirmish betweengovernment soldiers and coupsupporters in which two soldiersand a journalist were wounded,President Ratu Sir Kamisese Maraannounced that he had dismissedthe captive, democratically electedgovernment, leaving him to ‘run thecountry in the coming months’. TheUN and Fiji’s Pacific neighbourshave condemned the coup andurged Fijians to restore thedemocratically elected government.”• Radio National’s Law Report withChris Richards, in program number361 on 19 September 2000,discussed ‘making law out ofchaos’. Chris Richards and SianPrior summarise the program: “Thisweek The Law Report looks at thedifficult task of re-establishing legalsystems in States which have beenrecently ravaged by war. Thechallenge has always been todemonstrate that there are otherways of effecting change andpursuing justice than at the point ofa gun. Australian lawyers have beenworking to meet that challenge innations like Cambodia, Vietnam,East Timor and Somalia. MarkPlunkett from Griffith University’sKey Centre for Ethics, Law, Justiceand Governance, and Lieutenant-Colonel Mike Kelly from theAustralian Defence Forces, explainhow you go about transforming therule of war into the rule of law innations which have been dominatedby warlords and militia-men.Melbourne solicitor Gerard Bryantdescribes the ‘woeful lack ofresources’ hampering those whoare attempting to establish a judicialsystem in East Timor. Two oldcomputers, no printer and hardly anypens or paper for the judges andlawyers in the Dili District Court, forexample... But with the help of amentoring system organised byAustralian lawyers, and aforthcoming funding appeal by theInternational Commission of Jurists,international supporters of the ruleof law are hoping to provide bothpeace AND justice in East Timor.And Melbourne University lawyerGillian Triggs talks about somepeacekeeping and legal trainingprojects in Vietnam and Mongoliawhich are being privately funded,rather than government-sponsored.She points out that the learningprocess works in both directions - infact Western lawyers can learn a lotfrom their Asian counterparts aboutcooperation and mediation.”notes1 John Locke, “An Essay concerning the trueoriginal Extent and End of Civil Government”(1690) s22.2 The Royal Australian Historical Society Journalvol ii, p 195.3 Bligh has been characterised as a brutal andruthless Governor. But history is now lookingmore kindly on him. HV Evatt (1894-1965,Labor politician and High Court judge) inRum Rebellion (1938) painted Bligh asprincipled and courageous. Bligh tried torepair a corrupt system in NSW and was theheroic victim of unscrupulous wealthymonopolists and the NSW Corps.4 In 1821, when he sailed home to Britain,Macquarie said: “I found NSW a jail and leftit a colony. I found a population of idleprisoners, paupers and paid officials and lefta large free community thriving in theproduce of flocks and the labour ofconvicts.”theverdict autumn 2003 page 34


the legal systemlawyers as peacemakersthe place of mediation in the legal systemby Melinda ShirleyMelinda Shirley BALLB(Hons) LLM is a lecturerin the Law Faculty of theQueensland University ofTechnology. She hasBachelor of Arts, Bachelorof Laws and Master ofLaws degrees and holdsthe Graduate Diploma inLegal Practice. She is also ajudge of the state andnational SCRAM (SchoolsConflict Resolution andMediation ) competition runby Queensland Law Society.One of America’s most famouspresidents, the lawyer AbrahamLincoln, once said: “Discouragelitigation. Persuade yourneighbours to compromisewhenever you can. Point out tothem how the nominal winner isoften a real loser – in fees,expenses, and time. As a peacemaker,the lawyer has a superioropportunity of being a good man.”For many people, the traditional imageof a lawyer in a trial is that of a ‘hiredgun’, someone who knows and canuse all the legal tricks available to beatthe other side on their client’s behalf.The reality, however, is quite different.The practice of law in the 21 st century isincreasingly about resolving disputesoutside of the traditional adversarialcourt system, through tribunals orprivate organisations that offeralternative dispute resolutionprocesses such as mediation.What is mediation?In mediation, the disputing parties areencouraged to explain their side of thedispute to the other side, with the helpof a neutral third person. That thirdperson, the mediator, is neutral in thesense that the person does not knoweither party and has no vested interestin the outcome.The mediator is trained in many skills toassist people who are angry and inhigh conflict to negotiate issuesbetween themselves and come upwith their own agreement.Lawyers can and do represent peoplein mediation, but they may alsochoose to allow the parties toparticipate for themselves, assistingboth in preparation for the session, andagain at the end to ensure anyagreement is appropriately structured.A settlement reached at a mediation isdifferent from a court judgmentbecause it is invented by the partiesthemselves, not a judge. The mediatordoes not decide who is right or wrong,but helps the parties find a settlementto the dispute that they can live with ona continuing basis.The agreement generally reflects theparties’ needs and interests as well astheir legal rights and an agreementreached at mediation can involvesolutions not available at law - forexample, an apology, an agreementnot to make noise at certain times, oran agreement to continue to workfor someone.In addition to the flexible remedies,there are numerous proceduralreasons why people choose mediationover a court battle:• court proceedings can take monthsor years whereas a mediationsession can be arranged within daysor weeks and can take as little asthree hours to conduct;• careful preparation is required butmediation generally costs lessthan litigation;• court proceedings are governed bytechnical legal rules of evidence andprocedure whereas the two simplerules of mediation are that the partiesshould not interrupt or denigrateeach other;• if a mediation does not produce asettlement of the conflict it may stillhelp narrow the issues in dispute,making any trial shorter and lessexpensive;• court proceedings are generallyopen to the public whereasmediation is private and journalistsare not present;• in mediation the parties are in control,choosing the identity of their mediator,the date and time for the session andthe issues to be discussed;• non-confrontational processes arepreferred over litigation inmany cultures;theverdict autumn 2003 page 35


the legal system lawyers as peacemakers• court proceedings generally producea winner and a loser whereas inmediation it is possible for bothparties to win in some way; and• because it can be win-win thedisputants can often retain theirworking relationship, havingacquired skills to help them resolveconflict in future.What happens in a mediation?Prior to the mediation session, partieswill usually be asked to sign anagreement to mediate. This agreementacts as a contract between the partiesand the mediator and covers aspectssuch as payment for the mediator’sservices, where and when themediation will take place, and acommitment from both the parties andthe mediator not to disclose any detailsof the mediation.In family disputes the parties may alsobe asked to attend a preliminary‘intake’ session so the mediator canensure the dispute is appropriate formediation. As family mediation is oftenabout people reaching agreement onhow they will relate to each other infuture, it is unlikely to be effective wherethere has been a history of violenceand a likelihood it will recur.At the start of the mediation sessionthe mediator will generally make anopening statement explaining what themediator’s role is and what is going tohappen in the session. In thatstatement the mediator will reinforcethe importance of confidentiality andwill ask the parties to commit to theground rules for the session.Following that introduction each of theparties will be invited to tell their story intheir own words. In mediation peopleare encouraged to include theirfeelings, needs and interests in thisstatement. This is another significantpoint of difference with courtproceedings where parties givingevidence are permitted to answer onlythe question asked of them.In theory, the initial statement given byeach party offers the other side anopportunity to see the dispute fromtheir opponent’s perspective. If bothsides include their interests, feelingsand needs it also expands theinformation available to devise possibleoptions for settlement.After the parties or their lawyers havegiven their initial statements themediator will help the parties toidentify the issues in dispute in anobjective way. An agenda will often bedevised using a whiteboard orbutcher’s paper, so the parties canagree which issues they wish todetermine in order of priority.Skilled mediators will often set anagenda consisting of questions abouthow the parties can solve theirproblems in a mutual way. Manymediators believe that future-focussedin mediation it ispossible for bothparties to win“in some way“questions help people in conflictmove beyond the fights they havehad in the past and work togethertowards a solution that will improveboth their lives.Where disputants are finding it hard tofollow the ground rules and arerepeatedly interrupting ordenigrating each other, the mediatormay call for a private session with eachof them separately.In a private session each side is able toreveal information to the mediator thatthey may not be comfortable revealingin front of the other side, but themediator is bound by strictconfidentiality and can only revealinformation discussed in a privatesession with the express permission ofthe party concerned.The remainder of the mediation isgenerally spent in a series of combinedand private sessions exploring optionsfor settlement. Whilst the partiespropose and evaluate solutions themediator assists them to ‘reality test’possible agreements, ensuring theyare workable and contain sufficientdetail to survive after the parties haveleft the mediation room.Many supporters of mediation arguethat agreements reached throughmediation are more likely to befollowed by the parties because theyhave invested personal time and effortin reaching them. Reliable statisticalevidence of this is not yet available.Where is mediation used?Parties involved in civil courtproceedings in Queensland can nowbe ordered to participate in mediationunder Queensland’s Uniform CivilProcedure Rules of 1999.In addition, many barristers andsolicitors now practise as full-timemediators through agencies such asthe Bar Association of Queensland,the Queensland Law Society andLegal Aid Queensland.Almost all tribunals include mediationin some form to encourage parties toresolve their own dispute before aformal hearing is scheduled whilstcommercial contracts now ofteninclude alternative dispute resolution(ADR) clauses which bind thecontracting parties to use mediationrather than litigation if a dispute arisesbetween them over the contract.Victim-offender mediation is alsobeing trialed in our criminal courts.Where victims agree to participate,this scheme focuses on juvenilesinvolved in first-time minor offences.It offers them the opportunity toprovide some form of compensationto their victims in lieu of a normalcriminal sentence and works on therationale that mediation can giveyoung offenders an opportunity toface the consequences of theiractions and to feel appropriateshame for their conduct.Where parents and other familymembers are included in the processmediation can encourage a wholefamilyapproach to helping the youngperson take control of their situationand avoid reoffending.ConclusionMediation theory and skillstraining is now offered at most lawschools and the Schools ConflictResolution and MediationCompetition (SCRAM) establishedand managed by the QueenslandLaw Society helps ensure thatAustralian high school students inyears 9 and 10 are also being trainedin this important process.If you are contemplating a career as alawyer take heed of AbrahamLincoln’s words because theopportunities to make peace as alawyer are definitely increasing.theverdict autumn 2003 page 36


independent studyseparation of powersby Yvette HolmesYvette Holmes BA (JusticeStudies), Grad Dip Teaching(Secondary) is the schools& community educationofficer at the QueenslandLaw Society. Before joiningQueensland Law Society sheworked as a communitycorrectional officer withQueensland CorrectiveServices and then asecondary school teacher inQueensland, specialising inlegal studies. She is currentlycompleting a Bachelor ofLaw at QUT.a note to year 12sSometime this year your teacherwill ask you to complete anindependent study task. It will bea challenge for you to identify anindependent study topic that notonly interests you, but also allowsyou to show your teacher thatyou have attained an in-depth,personal understanding of an areaof law. the verdict has a solutionthat will help save you precioustime. In every edition of theverdict we will suggest topics foryou to to consider and relatedareas for research.It is important for you to rememberthat the topics are suggestions only.Don’t forget to consult with yourteacher before you begin yourresearch.This edition looks at the ‘Separation ofPowers’ doctrine - a topic which lendsitself to critical evaluation.The ‘research idea’ iconsuggests a specific anglefor research.What is the ‘Separation ofPowers’ doctrine?The ‘Separation of Powers’ is one ofthe most fundamental doctrines ofour English style of government. Itwas first observed by the Frenchpolitical philosopher and writerCharles de Montesquieu whopublished a book called The Spiritof the Laws in 1748. In that book,de Montesquieu said thatgovernment was capable of beingcategorised into three typesof power (see diagram 1).diagram 1Justification for the doctrine centresaround the dangers inherent inconcentrating the total power ofgovernment in one person,organisation, or institution. Theobjectives of the doctrine are theprotection of liberty and thefacilitation of good government.How is the ‘Separation ofPowers’ applied?Strictly, the Separation of Powersdoctrine requires that all three armsof government should be separate.legislativepowerthe power to make lawsIn Australia, this power is given toMembers of Parliament (MPs),both State and Federal, who arethe democratically electedrepresentatives ofthe people.executivepowerthe power to carrylaws into effectIn Australia, this power is given to theCabinet, those Ministers who are incharge of the various governmentdepartments staffed by the publicservice. eg. the Ministerfor Educationjudicialpowerthe power to interpretand enforce the lawIn Australia, this power is givento the courts led by independentand unbiased judges.theverdict autumn 2003 page 37


independent study separation of powersIn the United States, the doctrine isapplied in its most total sense andno member of the legislative,executive or judicial arms maysimultaneously be a member of oneof the other arms. However, inAustralia the doctrine is notstrictly applied.The relationship between thelegislature and the executivein AustraliaIn the case of the legislature andthe executive, much blurring andoverlap between the powers istolerated and sometimesencouraged. In fact, the PrimeMinister and all the CabinetMinisters who are members of theexecutive must also be Members ofParliament (the legislature). Formore on this see s.64 of theAustralian Constitution.The relationship between thelegislature and the executiveraises a multitude of questionsabout where the real power liesin our political system.diagram 2legislativepowerthe power tomake lawsexecutivepowerthe power tocarry laws intoeffectIn Australia, we have a party systemof government. Federally, thepolitical party which secures themajority of seats in the House ofRepresentatives will dominate theparliament. The successful partywill then form the government. Themost important parliamentarianswill then become the Cabinet, theMinisters in charge of departmentsof government - see diagram 1. Themost important Member ofParliament is the Prime Minister.Cabinet members largely dictatewhat laws will be proposed andpassed. This party system ofgovernment ensures that cabinetdominates the legislature andmakes a fiction of the purity of thenotion of ‘Separation of Power’.The judiciaryJudges are not allowed to be partof the executive or legislative armsof government. Judicial power hasbeen reinforced by the courtsthemselves as the one powerdemanding the greatest degree ofindependence. (Boilermakers’ case(1956) HCA).The absence of constitutionallyentrenched rights and freedomsfor citizens in Australia providesfurther impetus for ensuring thejudiciary maintains itsindependence.Certain fundamental rights andfreedoms are entrenched in theUSA’s Bill of Rights and theCanadian Charter of Rights andFreedoms. For example, the rightto: free speech, religious freedom,freedom from cruel and unusualpunishment, freedom fromunreasonable search and seizure,freedom from discrimination on thegrounds of race, religion andgender. Because these rights andfreedoms are constitutionallyentrenched, the majority partiescannot repeal or compromise them.The courts are the sole authorityempowered to interpret and applythese fundamental rights andfreedoms. Our AustralianConstitution omits any explicitreference to rights and freedoms,leaving them vulnerable to beingabolished by the legislature. Thisheightens the importance of thecourt’s role as the protector ofindividual liberties.In Australia, an independentjudiciary is held up as ideal.However, in recent times therehas been a growing demand forjudicial accountability. Politicaland public pressure is beingapplied to individual judgesconcerning the exercise of theirsentencing discretion.Who has the right to appeal againsta sentence passed by a judge if it isperceived that the sentence is not inline with community standards?In Queensland, the Attorney-General may appeal to the Court ofAppeal against a sentence passedheard it in courtLawyerAnswerLawyerAnswerLawyerAnswerHave you lived inthis town all yourlife?Not yet.What is your name?ErnestineMcDowell.And what is yourmarital status?Fair.Lawyer Officer, what led youto believe thedefendant wasunder the influence?Police officer Because he wasargumentary and hecouldn’t pronunciatehis words.These quotations are taken fromofficial court reports.for an indictable offence and thecourt may vary the sentence to oneit considers appropriate: CriminalCode (Qld) s669A(1).According to Kenny (2000;28), anappeal by the Crown againstsentence has been described as ajurisdiction which should beexercised only in ‘rare andexceptional’ cases. This is becausethe court has recognised thejeopardy facing convicted personsin such proceedings - Sheppard(1995) 77 A Crim R 139.A successful sentencing appeal bythe Attorney-General can mean thata convicted person has theirfreedom delayed beyond thesentence imposed. The ‘Separationof Powers’ doctrine can bepotentially weakened by excessiveinterference by government injudicial discretion. This isparticularly so in relation tointerference in sentencing discretionbecause the protection of liberty isan objective of the ‘Separation ofPowers’ doctrine.BibliographyKenny R. (2000) An Introduction toCriminal Law in Queensland andWestern Australia (Fifth Edition).Butterworths, NSW.theverdict autumn 2003 page 38


independent study separation of powersReferences• Anglo-Australasian LawyersSociety. (2001) Separation ofPowers – a comparison of theAustralian and UK experienceshttp://www.law.gov.au/ww…/0974947510ADC110CA256B5C00790A19?OpenDocumen• Carney G. (1993) Separation ofPowers in the Westminster System.Paper presented to ASPGQueensland Chapter on 13September 1993.• Currie S. & Cameron D. (1996) YourLaw: A course in Legal Studies.Moreton Bay Publishing, SouthMelbourne.• Hughes R. & Leane G. (1996)Australian Legal Institutions:Principles, Structure andOrganisation. PearsonProfessional Australia. Victoria.• Queensland Law Society – MediaReleaseshttp://www.qls.com.au/media/2002-12/release021212b.htmhttp://www.qls.com.au/media/2002-12/release021212a.htm• Ratnapala S. (1995) WestminsterDemocracy and the Separation ofPowers: Can they Co-exist?www.aph.gov.au/senate/pubs/Pop%2026/Pop%2026%20-%20Chapter%206.pdf• Separation of Powershttp://australianpolitics.com.au/democracy/terms/separation-ofpowers.shtml• Spindler G. (2000) The Separationof Powers: Doctrine and Practice.http://www.parliament.nsw.gov…./3laeed1097592aaOca25693000316ab1?Open DocumenCases• Boilermakers’ case (1956) H.C.A• Sheppard (1995) 77 A Crim R 139Legislation• Queensland Criminal Code (Qld)s669A(1).• Australian Constitution s 64.Cases for you to considerAttorney-General sentencingappeals• R v Bryan; ex parte A-G (Qld)[2003] QCA 18http://www.courts.qld.gov.au/qjudgement/ca03_001.htm• R v Van der Vegt; ex parte A-G(Qld) [2002] QCA 535(5 December 2002)http://www.austlii.edu.au/au/cases/qld/QCA/2002/535.html• R v Parks; ex parte A-G (Qld)[2002] QCA 533 (5 December2002)http://www.austlii.edu.au/au/cases/qld/QCA/2002/533.html• R v Young; ex parte A-G (Qld)[2002] QCA 474 (5 November2002)http://www.austlii.edu.au/au/cases/qld/QCA/2002/474.htmlSuggested research siteson ‘Separation of Powers’• Queensland Law Society – mediareleaseshttp://www.qls.com.au/media/2002-12/release021212b.htmhttp://www.qls.com.au/media/2002-12/release021212a.htm• australianpolitics.com• Separation of Powershttp://australianpolitics.com.au/democracy/terms/separation-ofpowers.shtml• Spindler G. (2000) The Separationof Powers: Doctrine and Practice.http://www.parliament.nsw.gov…./3laeed1097592aaOca25693000316ab1?Open Documen• Anglo-Australasian Law yersSociety. (2001) Separation ofPowers – a comparison of theAustralian and UK experienceshttp://www.law.gov.au/ww…/0974947510ADC110CA256B5C00790A19?OpenDocumen• Ratnapala S. (1995) WestminsterDemocracy and the Separation ofPowers: Can they Co-exist?www.aph.gov.au/senate/pubs/Pop%2026/Pop%2026%20-%20Chapter%206.pdf• And try a Google search enteringthe words ‘Separation of Powers’.boggo roadgaol toursThe gaol is open Mon-Fri from 9amto 3pm. General admission is $4for adults and $3 concession. Nobooking is required.Guided tours are available throughbookings only. All of our guidedtours are conducted by ex-prisonofficers that worked at Boggo RoadGaol during its operation. The costfor these is $6 for adults, $4concessions, and $3 for schoolaged children. Teachers do notpay when bringing a school groupin. We will start a tour usuallyfrom 9am to 2.30 pm. We areflexible, and can make timesoutside these. Tours go for about1.5 hours which also includes aquestion and answer period withthe tour guide.We can also offer night tours/weekend tours for visitors. Thesemust also be booked and the costfor these is $10 for adults, $8concession/school aged children,and $6 per student when part of anorganised school group. Schoolsleepovers can also be arrangedby contacting the gaolmanagement.For school groups, our websitecontains info about the gaol, aswell as a worksheet that can bedownloaded from the site. Thequestions on the worksheet will beanswered by the tour guide atthe gaol.phone 3846 7423fax 3846 7134email admin@boggoroadgaol.com.auwebsite www.boggoroadgaol.com.autheverdict autumn 2003 page 39


celebrity suitsnot so poshvictoria beckham sued for slanderby Jacqueline RogersJacqueline Rogers BA LLBis a coordinator inContinuing Legal Educationat the Queensland LawSociety. Prior to that shewas a secondary schoolteacher in Queensland andLondon, specialising in legalstudies. She has acombined Arts/Law degreeand a PostgraduateDiploma in Education.British newspapers reported in mid-2002 that Victoria Beckham (alsoknown as ’Posh Spice’ or the wife ofEngland’s biggest football star,depending on where your interestslie) was to be sued for slander by asports memorabilia shop calledGT’s Recollections.In March 2001, Posh Spice accusedGT’s Recollections in a “loud, rudeand unreasonable” outburst of“ripping off its customers by sellingfake autographs of my husband.”The alleged words were spoken byMs Beckham when two shopassistants and at least threecustomers were in the open-frontedshop. Everything said by Posh Spicewas then reported in the press,increasing the damage allegedlycaused by the original remark.Owners of the family-run company,Timothy, Glynis and AnthonyMcManus, claimed they suffered adrop in sales and financial loss afterthe press reports and gossipcirculated throughout thememorabilia trade that they dealtin fakes.The store added that VictoriaBeckham’s statements were falseand that their shop sells only genuinecelebrity autographs. James Price,QC, representing GT’s Recollections,told the hearing Beckham’s mannerwas intentionally vocal to attractattention to her outburst. Beckhamdenied all allegations and said theaction had no merit.The High Court found that parts ofthe slander claim should be struckout as “it was not reasonablyforeseeable that Ms Beckham’salleged comments would go furtheror be reported in the press” but thisdecision was overturned in the Courtof Appeal.Lord Justice Waller of the AppealCourt agreed with GT’sRecollections, that a reasonableperson in Posh Spice’s position (whois just as famous being DavidBeckham’s wife as she ever wasbeing a Spice Girl and is followed bypaparazzi everywhere) should haveappreciated there was significant riskthat what she said would berepeated in whole or in part in thepress which would increase thedamage caused by her slander.It then follows, he said, that if adefendant is aware that what shesays or does is likely to be reportedand that slanderous words wouldtherefore be repeated, there is justicein her being held responsible (liable)for the further damage the slandercauses via publication.Three other justices of the Court ofAppeal agreed with Lord JusticeWaller that GT’s Recollections shouldbe allowed to proceed with theirclaim for £500,000 (A$1,385 000)from Beckham. She has also beenordered to pay £35,000 (A$96,950) ininterim legal costs.So what would the situation be ifPosh were a Queenslander? Couldshe be sued under our legislation?In Queensland, our legislation doesnot distinguish between slander (oralor spoken publication of a falsehooddamaging to a person’s reputation)and libel (written publication of afalsehood damaging to a person’sreputation), but includes them bothunder the civil offence of defamation.The meaning of defamation is set outin sections 4 to 6 of Queensland’sDefamation Act 1889:any person who,by spoken words, audible sounds,words intended to be read eitherby sight or touch, signs, signals,theverdict autumn 2003 page 40


celeberity suits not so poshgestures or visiblerepresentations,publishes - exhibiting in thepresence and/or hearing of anyother person than the persondefameddefamatory matter:• words or imputations thatwould be likely to ruin theperson’s reputation, or• injure them in their professionor trade, or• cause other persons are likelyto avoid, ridicule or despise theperson defamedis acting unlawfully, unless suchpublication is protected, justifiedor excused by law.Based on these requirements ofQueensland’s legislation, do youthink it would be necessary todemonstrate (as GT’s Recollectionslawyers had to do) that it wasreasonably foreseeable that Posh’sremarks would be reported by thepress for them to win the right to suefor defamation?Let’s work through the elements:• any person: Victoria Beckham is‘ any person’• who by spoken words: go nofurther! Posh allegedly said, in a“loud and rude outburst,” that theshop was “ripping off its customersby selling fake autographs of myhusband.”• publishes: at the time of Victoria’soutburst it is reported that twoshop assistants and at least threecustomers were in the openfrontedshop. They are personsother than the McManus family. Herremarks were then reported in thepress, publishing her accusationsto millions of people.• defamatory matter: to bedefamatory the words have toinjure a person’s reputation orinjure them in their profession ortrade. The McManus’ claim theysuffered a drop in sales andconsequent financial loss - this isinjuring them in their profession ortrade. They also claim that gossipcirculated throughout thememorabilia trade that they dealt infakes. This is likely to ruin theirreputation amongst theircolleagues and perhaps causethem to suffer ridicule in theindustry and from potentialcustomers.As you can see, under therequirements of Queensland’slegislation, it would seem Posh Spicecould be sued for defamation. Itwould not be necessary to raise theargument that she should haveknown her comments would bereported in the press thus causingfurther damage to the company’sreputation, and for which she shouldbe held liable. All that is required inQueensland to win the right to sue fordefamation, is exhibiting to any otherperson than the person defamed,material likely to injure a person’sreputation. It doesn’t even have toactually injure the person’sreputation. It is sufficient even if thedefamatory matter is only likely toinjure their reputation.But at this point we need toremember that Posh Spice denies allallegations. So far GT’s Recollectionshave only won the right to go aheadwith a trial for defamation. Even if it isestablished that Posh Spice did saythose words, there may be defencesavailable to her. The most obvious isoutlined in section 15 ofQueensland’s Defamation Act 1889:“It is lawful to publish defamatorymatter if the matter is true, and if it isfor the public benefit that thepublication complained of should bemade.”Posh Spice would have todemonstrate that the autographs ofher husband the shop was trying tosell were fake and also that it was forthe public benefit that she made heraccusation. People buy sportsmemorabilia either as a financial orsentimental investment and sheprobably could successfully arguethat it was for the public benefit thatshe made potential customers awarethat they could be investing inworthless fakes.It remains to be seen whether a juryat trial will decide that the casebrought by GT’s Recollectionsagainst Posh Spice has any merit,and whether she will be liable for the£500,000 damages they claim shecaused.Queensland Police MuseumThe Queensland Police Museum runsa popular education program thatcaters for years 5 to 12 and is closelytied to the current curricula. Themajority of their school aged visitorsare in years 10 to 12 and arecompleting study in Forensic Science,Multi-strand Science and LegalStudies. The lure of Forensic Scienceto students is strong, hopefully notjust because of the type of evidenceusually associated with this type ofscientific investigation, but because itrepresents an interesting police activityand is often at the forefront oftechnological advancement.The Police Museum is open Monday toFriday 9am - 4.00pm. Group visits canbe booked for between 30 January and15 December. Informative talks are givento groups visiting on Tuesdays andThursdays at 10.30am, 1.00pm and2.30pm, and on Wednesdays at 9.00am,10.30am, 1.00pm and 2.30pm.Bookings are essential. Educationkits are posted, faxed or emailed toschools after a booking has beenmade. Groups are booked in forperiods of 75 minutes.Please contact Police Museum staff forinformation and bookings on3364 4013 or fax 3236 0954.theverdict autumn 2003 page 41


internet sitesthe essential linksAustralian Legal ResearchLegal Research LinksYAHOO! (Australia and NZ) –Government: Lawhttp://au.yahoo.com/government/law/National Library of Australia’sAustralian Law on the Internet:Subject Indexhttp://www.nla.gov.au/oz/law.html#lawsubjectsAustralian Institute of Criminologyhttp://www.aic.gov.au/Australian Law Onlinehttp://www.law.gov.auLex Scriptahttp://www.lexscripta.com/legal/FindLawhttp://www.findlaw.com/WebLawhttp://www.weblaw.edu.au/weblaw/index.phtmlRTA Update andSchools websiteUpdate is the ResidentialTenancies Authority’s quarterlyindustry newsletter. Updatecontains a range of informationregarding issues concerningrenting and propertymanagement in Queensland.The RTA website contains aschools section, which greatlyimproves access to informationabout the ‘rules of renting’ inQueensland for Legal Studiesteachers and studentswww.rta.qld.gov.au/schools_section.cfmLinks to Queensland LegislationQOPC – Queensland Legislation Onlinehttp://www.legislation.qld.gov.au/OQPChome.htmQueensland Parliament Home Pagehttp://www.parliament.qld.gov.au/Links to Australian Cases OnlineAUSTLII – Consolidated Commonwealth Actshttp://www.austlii.edu.au/au/legis/cth/consol_actAUSTLII – High Court Decisionshttp://www.austlii.edu.au/au/cases/cth/high_ctAUSTLII – Federal Court Decisionshttp://www.austlii.edu.au/au/cases/cth/federal_ctAUSTLII – Queensland Court of Appeal Decisionshttp://www.austlii.edu.au/au/cases/qld/QCA/AUSTLII – Queensland Supreme Court Decisionshttp://www.austlii.edu.au/au/cases/qld/QSC/theverdict autumn 2003 page 42


legal glossarylegal glossaryActionable Providing grounds for anaction at law.Adversarial systems A mode of disputeresolution in which the competing claimsof the parties are presented, usually bylegal representatives who have no interestin the outcome of the dispute, to animpartial and disinterested third partywith the power to impose an authoritativedetermination.Aggravated Damages Substantial,general compensatory damages awardedwhen the manner in which a tort iscommitted is particularly insulting andhumiliating.Allege Declare, esp. without proof.Allegation An assertion or accusationthat a particular person has committed acriminal offence or an element of acriminal offence.Bail The right to be released from custodygranted to a person charged with anoffence, on the condition he or sheundertakes to return to the court at somespecified time, and any other conditionsthat the court may impose.Bill A legislative document in the form of aproposed Act of parliament that has notbeen passed by parliament and receivedroyal assent. Commonwealth bills requireapproval by the House of Representativesand the Senate and assent by theGovernor-General. State bills requireapproval by the relevant houses and theassent of the State Governor.Civil offence or wrong An infringementof a person’s rights, for which the personwronged may sue for damages or someother civil remedy. Examples are torts andbreaches of contract.Common law The unwritten law derivedfrom the traditional law of England asdeveloped by judicial precedence,interpretation, expansion andmodification.Contributory negligence A plea inmitigation of damages based on theplaintiff’s failure to take reasonable carefor his or her own safety and well-being,that contributes to the injuries suffered, theaccident causing the damage, or theoccurrence of a situation in which injuriesare foreseeable.Counsel a barrister or barristers collectively.Corporate capacity The power of acompany to acquire and exercise legalrights and to assume legal liabilities; forexample to make contracts. A company isdeemed to have the legal capacity(including powers) of a natural person.Corporate person See corporatecapacityDamages Compensation for damagesuffered; a court-awarded sum of moneywhich places the plaintiff in the position heor she would have occupied had thelegal wrong not occurred.Defamation The publication of astatement about a person that tends tolower their reputation in the opinion ofright-thinking members of the communityor to make them shun or avoid them.Defamation is usually in words, butpictures, gestures, and other acts can bedefamatory.Defendant A person against whom courtproceedings are brought.DNA Deoxyribonucleic acid, a chemicalstructure that forms chromosomes.Due process A concept introduced intothe common law through Magna Cartaand developed through CriminalProcedure Imprisonment Act 1354 whichprovides that no-one is to be imprisoned,disinherited, put to death, or out of land ortenement without first being brought toanswer in due process of law.Governor in Council A State Governoracting with the advice of the State ExecutiveCouncil, comprising ministers of the StateGovernment.Gratuitous services Services providedfree of charge by private individuals to aperson who has suffered injury fromanother’s negligence, to assist that personin coping with the injuries.Immunity Freedom or exemption fromlegal proceedings.Indemnity An agreement by one person(X) to pay to another (Y) sums that areowed, or may become owed, by a thirdperson (Z). It is not conditional on the thirdperson defaulting on the payment, ie Ycan sue X without first demandingpayment from Z.Indict To charge with an offence or crime,to accuse.Indictable offence An offence that maybe tried on indictment, ie. by jury in theCrown Court. Most serious common-lawoffences are indictable (eg. murder, rape)and many are created by statute.Injunctive relief or interim relief A formof interlocutory relief expressed to operatefor a short period only, expiring on a datespecified in the order.Injunction A remedy in the form of acourt order addressed to a particularperson that either prohibits them fromdoing or continuing to do a certain act ororders them to carry out a certain act.Jurisdiction The scope of the court’spower to examine and determine thefacts, interpret and apply the law, makeorders and declare judgment.Jurisdicition may be limited bygeographic area, the type of parties whoappear, the type of relief that can besought, and the point to be decided.Litigation The conduct of legalproceedings by parties before a court.theverdict autumn 2003 page 43


legal glossaryLiable to An expression used in penalprovisions of legislation to impose asanction or penalty.Libel Defamatory material expressed inprint, writing, or any other mode ofcommunication capable of beingcomprehended visually.Limitation period A period during whicha cause of action or prosecution may becommenced in court or an interlocutorystep taken in proceedings. The periodvaries according to the sphere of law andthe jurisdiction.Merit Right or wrong of a matterunobscured by technicalities.Natural justice The right to be given a fairhearing and the opportunity to presentone’s case, the right to have a decisionmade by an unbiased or disinteresteddecision maker and the right to have thatdecision based on logically probativeevidence.Natural persons Human beings in theordinary sense, as opposed to artificialpersons or entities such as companieswhich are recognised as legal personsunder the law.Nonfeasance The omission or failure bya person or public body to do somethingwhich that person or public body asagreed or is otherwise liable to do.Obiter dictum A remark in passing.Judicial observations that do not form partof the reasoning of a case.Paramount (in land law) - Superior:having or denoting a better right or title.Plaintiff A person who seeks relief againstany other person by any form ofproceedings in a court.Plea 1 A formal statement in court by oron behalf of an accused person as aresponse to the charge made againstthem. 2 A defendant’s answer to aplaintiff’s declaration an action atcommon law.Plea bargaining In criminal law,negotiations between the prosecutionand the defence by which the accusedagrees to plead guilty to an offence oncondition that the prosecution notproceed with a more serious charge.Prerogative A prior particular orexclusive right or privilege.Prescriptive That prescribes, givingdirections or injunctions.Pro bono 1 Legal work performed for thepublic good or in the public interest onissues of broad community concern orwith significant impact on disadvantagedor marginalised groups. 2 Legal workperformed free or at a reduced fee.Proceedings An action commenced in acourt. A proceeding is a proceeding in acourt whether between parties or not,including an incidental proceeding in thecourse of, on in connection with aproceeding, and includes an appeal.Professional negligence In tort law,advice or information impartednegligently by a defendant incircumstances in which he or she realisesor ought to have realised that the plaintiffwas relying on the advice or informationas the bases for a course of action.Proprietary Belonging to a proprietor orproprietors. Pertaining to property orownership.Punitive Damages Also know as‘exemplary damages’ or ‘retributivedamages’. Damages awarded in additionto general damages, where the court notonly wishes to compensate the vicitim of atort, but to punish the defendant. Suchdamages are not compensatory in natureand extend beyond the general principle ofdamages that the injured person should beplaced, so far as money can do, in theposition he or she would have been in hadthe tort not been committed.Ratification Confirmation of an act. If, forexample, X contracts with Y as agent for Z,but has in fact no authority to do so, Z maynevertheless adopt the contract bysubsequent ratification.Recidivism The phenomenon of habitualor repeated commission of offences. Insentencing the court is entitled to take intoaccount the protection of the communityfrom the recidivism of the offender.Redress The means given by law for therecovery of a right, or of compensation forthe infringement thereof.Regime Method of government,particular government; prevailing system.Remedy Any of the methods available atlaw for the enforcement, protection, orrecovery of rights or for obtaining redressfor their infringement.Respondent The defending party in anappeal or petition to the courts.Slander A defamatory statement madeby such means as spoken words orgestures ie. Not in permanent form.Generally slander is only actionable onproof that its publication has causedspecial damage, not merely loss ofreputation.Statute An Act passed by Parliament.Statutory Of an offence, recognised bystatute, legally punishable.Subordinate legislation Legislation thecreation of which, by individuals or bodiesother than parliament, is authorized by anAct of parliament.Sue To make a claim for a remedy in thecivil courts by issuing court proceedings.Third party A person who is not aprincipal to an agreement, proceeding ortransaction.Tort A wrongful act or omission for whichdamages can be obtained in a civil courtby the person wronged, other than awrong that is only a breach of contract.The law of tort is mainly concerned withproviding compensation for personalinjury and property damage caused bynegligence.Upheld support, maintain, confirm.SourcesThe Australian Little OxfordDictionary 2nd edition, publishedby Oxford University PressMozley & Whitley’s LawDictionary 9 th edition, by John BSaunders, published byButterworths, AustraliaA Dictionary of Law 3 rd edition,published by Oxford UniversityPressConcise Australian LegalDictionary 2 nd edition, publishedby Butterworths, AustraliaThe Macquarie Dictionary 2 ndedition, published by theMacquarie Library, Australia.theverdict autumn 2003 page 44

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