Category Archives: Australia

Judicial activism

The common law is an interesting and organic beast. To explain: our basic system of law is judge-made law. The common law became somewhat inflexible in medieval times, and thus many litigants started appealing to the King. The King got sick of dealing with the petitions, and palmed them off to the Lord Chancellor. Eventually, the Lord Chancellor set up his own court to deal with these questions, called the Court of Chancery (the court of Equity), which dealt with cases on the basis of conscience and fairness. It was a parallel system, separate from the common law, but when the two conflicted, it was equity which prevailed over common law: Earl of Oxford’s Case (1615) Mich 13 Jac 1; 21 ER 485. The Chancery courts used an inquisitorial system rather than an adversarial system, and accordingly, cases before these courts became increasingly drawn out and inefficient, as famously portrayed by Dickens in Bleak House. Thus, the legislature decided to “fuse” the two systems by means of the Judicature Acts of 1873 and 1875. Accordingly, a judge in a “fused” court could apply both rules of equity and the common law. In all Australian States apart from New South Wales, Judicature Acts were also enacted shortly after the UK versions were enacted. New South Wales did not fuse its common law and equitable courts until 1972. Consequently, the New South Wales Equity Bar produced some fine and learned equity lawyers, but they also tended to be very conservative indeed.

Obviously, these days, legislation (enacted by Parliament) plays a very much greater role in the development of the law, but the common law and equity are still important, and still keep developing.

Why the mini lecture at the start of this post? Well, I was reading a New South Wales Court of Appeal case called Harris v Digital Pulse Pty Ltd [2003] NSWCA 10, and it raises some interesting questions about “judicial activism”. Judicial activism is a perjorative term. It is directed at judges who ignore precendent, and instead mediate a dispute in accordance with their own personal prejudices about what is appropriate social and political policy. The Mason Court of the 1980s was frequently accused of judicial activism, as it produced decisions giving rise to an implied right of political freedom of speech in the Constitution and the Mabo decision, among others.

In Harris, Heydon JA (now a judge of the High Court) had this to say about the role of creativity and the judiciary at [456] – [458]:

As to Sir George Jessel MR’s account of the development of equity in Re Hallett’s Estate, it is true that the rules of equity have changed from time to time, and true that individual Chancellors – and Masters of the Rolls, Lord Keepers and Vice Chancellors – have effected these changes. It is also true that the rules can be changed in future. But those deeds of single judges were done when there was no appellate jurisdiction in the House of Lords, or very limited access to it, at a time before modern parliamentary democracy had developed, and members of parliaments consisted largely of wealthy men who in turn supported Cabinets composed largely of aristocratic oligarchs whom it was difficult to interest in the details of private law. What individual judges did in those constitutional and forensic conditions is not a sound guide to what modern Australian courts, at least at levels below the High Court, can do. A single equity judge in the time of Sir George Jessel MR had the power, the competence, the authority and the capacity to compel acceptance from other judges which only the High Court has now, at least where the change goes beyond the application of existing principles in a new way or marginal extensions of the law.

In In re Diplock. Diplock v Wintle [1948] Ch 465 at 481-2 Lord Greene MR, Wrottesley and Evershed LJJ said of the equitable claim made in that case by next-of-kin against persons who had wrongly received the testator’s assets under an invalid bequest:

“if the claim in equity exists it must be shown to have an ancestry founded in history and in the practice and precedents of the courts administering equity jurisdiction. It is not sufficient that because we may think that the ‘justice’ of the present case requires it, we should invent such a jurisdiction for the first time.”

The defendants relied on those words. That is a sound modern approach, at least for courts below the High Court, and at least where anything more than non-radical change is involved.

Sir George Jessel MR’s judicial life coincided with the time when democracy in a modern form was beginning and the responsiveness of Parliament to social or legal ills was starting to develop. It was a time when the judiciary was small, highly skilled and united. It is now large, less skilled, and far from entirely united. For courts below the High Court to act in the manner of the single judges sitting in Chancery who made modern equity is to invite the spread of a wilderness of single instances, a proliferation of discordant and idiosyncratic opinions, and ultimately an anarchic “system” operating according to the forms, but not the realities, of law.

As I read it, his Honour is essentially saying that no judge except one who is on the High Court can develop a new doctrine of law or equity. Anything else is “judicial activism”. Lower court judges just have to apply “the law”. The judgment of the High Court in the case of Farah Constructions Pty Ltd v Saydee Pty Ltd [2007] HCA 22 displays a similar sensibility, which was one of the reasons why I suspect it was penned by Heydon J.

It is very important that like cases be decided in a like manner, otherwise unfairness could result. This is why the common law has the doctrine of stare decisis or following precedent. So if X fell off her bicycle and got compensation, and I fell of my scooter in almost identical circumstances, I would expect to be treated in much the same way as X. It would not be fair if the trial judge had an unreasoning dislike of scooters and decided that I should not get compensation because she did not like the proliferation of scooters in society. Nonetheless, if there was a “right answer” as to what the law was in every dispute, we lawyers would be out of a job. The whole point is that one can usually argue the point either way in cases which actually make it to trial.

Next point: not all cases will be exactly like a case which went before. Indeed, surely if it was exactly like a previous case, it is likely that one side’s solicitors would have advised them to settle. In the event, if the case is not quite like any previous case, the judge has to look at the cases and legislation which govern the area and decide how the law applies to this slightly different situation. The more different the situation is from anything that has gone before, the more difficult it is for the judge to decide on the basis of existing law. What a judge should do in this circumstance is develop principle in a way which is consonant with previous cases, but which also adapts to the new circumstances. In this way, the judge is not indulging in judicial activism. She is extending the law out to a new situation, but in a way which is consistent with principle.

Indeed, it could result in great inflexibility and injustice if a court cannot deviate from principle which has gone before even though the circumstances are different to anything which has gone before. This was one of the reasons why the law of equity arose: because of the failure of common law courts to adapt to changing circumstances and difficult situations created great injustice. Heydon JA’s judgment seems to me to be out of touch with the spirit and genesis of equity. Also, it may be scary for some lawyers to know this, but the law is slowly changing and developing all the time. Otherwise we would still be stuck applying some kind of medieval common law, unchanged for millennia.

Now, a very important point. What happens if I have a novel legal situation, but I cannot afford to appeal all the way to the High Court (as Heydon JA seems to think necessary)? In that circumstance, it is up to the trial judge to make the best and fairest decision that he can, and to show some creativity. We can’t all afford to take litigation up to the High Court and hire silks. (Well, I doubt if I could afford to indulge in any litigation whatsoever, but fortunately for me, that’s not an issue I’ve had to face). Obviously a trial judge cannot overrule a High Court decision, and cannot ignore law that has gone before. But I definitely think there is room for a trial judge to show creativity in a situation which is novel and does not bear any analogy to a previous case. And it should not be necessary to require litigants to go all the way to the High Court. Such a point of view is unrealistic and elitist.

Aaah. I feel much better now I’ve gotten that off my chest.

Advertisements

2 Comments

Filed under Australia, courts, law

Monkey business no laughing matter

Racist skull analysis

This rather offensive picture comes from Josiah Clark Nott and George Robert Gliddon, Indigenous races of the earth (First published 1857). It illustrates scientific theories of racism in the 19th century, which continued into the early 20th century. Essentially, the theory is that Aryan “races” are superior in evolutionary terms to Black “races”, and that people of African descent are more genetically related to monkeys than Aryan races. Personally I think that Apollo Belvidere looks like a bit of freak, and I’d rather be more closely related to the chimp than him, but maybe that’s just me. Such theories were used to justify colonialism, slavery, apartheid and racial discrimination by Europeans towards other races.

India

Cricket has been marred recently by allegations that Indian Harbhajan Singh called Australian Andrew Symonds a “monkey” during the recent test at the SCG. Three Australian players backed up Symonds, whereas Singh denies that he said Symonds was a monkey, and Tendulkar backs him up. Oh, and an important detail: although Symonds was brought up in Australia by his adoptive parents, he is part West Indian. There was a history behind this, with Symonds being repeatedly taunted by the Indian crowd in Mumbai last year, who made monkey gestures at him. Symonds alleges that Singh also called him a monkey during that match, but he preferred to settle it “man to man”, going to Singh after the match and asking him not to do it again. Singh also denied saying such a thing on that occasion, but apologised.

In the recent incident, match referee Mike Procter accepted the allegations of the Australian team and suspended Singh for 3 matches. Indian officials then threatened to abandon the Indian cricket team’s tour of Australia, saying that the allegations against Singh were unfair. In India, effigies of the test umpires and the Australian captain, Ricky Ponting, were burned. There were calls for Ponting to be sacked as captain, in part because he “dobbed” Singh into the umpires. One of the umpires, West Indian Steve Bucknor, was made to stand down for the next test in Perth, prompting outrage from the West Indies. Brad Hogg was then accused by the Indians of calling Anil Kumble and Mahendra Dhoni “bastards”, scarcely a term of offense in Australia (more a term of affection), but much more offensive in India. The Indians now say that “monkey” is not an offensive term in India. In any case, the Test will now go ahead after the ICC acceded to the Indian team’s demands.

There’s a few things here. Both the Indian and the Australian cricket teams have at times behaved badly. Neither team are perfect. Both have complained about the other appealing too many times. Both have sledged.

In Sydney, India lost a match which it looked like it was going to win, in part because of some refereeing decisions. I think this is why the decision to ban Singh provoked such passion. It was mixed up with frustration and disappointment. Certainly, I would have been very disappointed if I was an Indian fan after the Sydney test. Australia has been the dominant force in cricket in the recent decade (very much like the West Indies during my youth), and there is a perception by the Indians that Australia thinks it can rule the roost as a result. By the same token, the Indian cricket authorities are using their economic power to get their way in a bullying fashion, but if anyone questions it, they claim Australians don’t like the thought of “brown” people controlling the game. I don’t care who controls the game, as long as whoever controls it treats everyone equally, regardless of whether they are black, brown or white, and regardless of how much money they put into the game. That’s a fundamental principle of justice – no favour should be given to race, religion or class. The adjudication should merely be on the merits.

On the merits of the matter, there are two conflicting accounts of events, both with esteemed players backing up their sides’ account, which makes it very difficult to adjudicate. I’m reluctant to come down on any particular side or the other without a full view of the evidence. What is important is the lesson to be learned about sledging and the appropriateness of “friendly” rivalry. I’ve never been a fan of sledging and taunting the other team. I really don’t think it’s very sportsmanlike, whoever does it.

The Australian team should be aware that in other countries, the term “bastard” is far more offensive than it is in Australia. I know that when I went to live in the UK, my father warned me not to use the term. But the other teams should also be aware that if an Aussie calls someone a bastard, it’s often more affectionate than nasty.

By the other token, I think that Indians should be aware that there is an entire racist discourse behind calling a person with West Indian background as a “monkey”. It may be culturally acceptable in India to call someone a monkey, but as the picture at the beginning of this post shows, to single out the only black man in a team for that name has some very unpleasant connotations. If it’s not racist, why did the Mumbai crowd single out Symonds? Why were the other (white) team members not called monkeys too? I suggest the only answer can be racism. It ill behooves a group of people who have been under the colonial yoke to adopt racist colonial stereotypes. There is a certain fallacious logic to some of the responses that “brown people can’t be racists”. Anyone can be racist. Racism is present in all societies. It so happens that in most continents, for reasons of “luck” or historical happenstance (rather than because of any intrinsic superiority), Europeans colonised and subjugated other people. But it could just as easily have been a different ethnic group if the conditions had been right.

To call a man of partial West Indian descent a “monkey” could be said to suggest, in accordance with 19th century scientific racism, that black people are somehow less than human. So it’s far worse than just an insult. It’s a justification for slavery and genocide. It’s like teasing a Jew with a swastika and saying it’s an innocent Hindu symbol – the racist subtext of the swastika makes it non-innocent. I note that in the Hindustan Times, many Indians have written justifying the use of the word “monkey” towards Symonds. Those Indians should look at the picture at the start of the post and think carefully about that claim, because there is a deep racism ingrained in that insult. In my opinion, regardless of whether or not Singh actually called Symonds a monkey, it should be made clear to all cricketers and cricketing fans that racist terms such as this are simply unacceptable, and to say it was “just a friendly term” is disingenous.

7 Comments

Filed under Australia, cricket, history, india, media, racism, society, tolerance

Reflection on good fortune

Last night, I went to a friend’s hen’s night, and after dinner, we went out dancing. I am not sure how many years it is since I have done something like that…a long time, to be sure. Anyway, I caught a taxi home, and my driver was a Somalian man of about my age. He had three children, and the two youngest were either side of my daughter in age. So we had a good laugh about the funny things little kids do, the temper tantrums they throw, their affection and all of that kind of thing. Then he was telling me about how he came to leave Somalia, how he goes back to help kids with medical problems, and the advantages and disadvantages of living so far from home in Australia. “The peace in Australia, it is beautiful,” he said. “If I was at home, I would have all my extended family. I miss that. But the peace here is so good.” We were then talking about the terrible things happening in Kenya, and hoping that civil war doesn’t break out there.

And as I type, I think about the terrible things happening in Pakistan. If I was a lawyer in Pakistan, I wouldn’t be able to speak my mind on a blog. I’d be in gaol, probably.

This is where I am a passionate believer in human rights; unfortunately, the kind of situations where they are most needed are exactly the kind of situations where they are unlikely to be respected. Mob violence, corrupt governments, anarchy, civil war…

How lucky most of us are in Australia. Most of us have clean drinking water, enough food, and do not have to worry about epidemic diseases for which immunisation and treatment is available. Since settlement, we’ve never had a civil war, never had a military coup, and never had a dictator.

The exception to this is of course, indigenous people, some of whom still do not have clean drinking water and suffer from treatable diseases. And the various phases of European settlement have had a devastating impact on indigenous communities and people. But otherwise, we are incredibly lucky. Sometimes it’s worth sitting back and thinking about that. Thank you to that taxi driver for making me reflect on how good my life is. And I wish he and his family all the best here in Australia.

1 Comment

Filed under Australia, human rights, immigration, Personal, refugees, society, war

More on defamation and blogging

It seems that the threat of defamation proceedings for blog posts is alive and well in Australia. Check out this post on The Local at blogs.com.au.

(Hat tip to the inestimable Jim Belshaw)

15 Comments

Filed under Australia, blogging, blogs, defamation, law, technology

Am I true blue?

Once a year, on the last Saturday in September, I tend to doubt my credentials as a true Victorian. Yes, it’s the Grand Final of the Australian Football League. I just can’t get that much passion up about it any more. I don’t know if my apathy stems from the fact that both my parents were born in New South Wales, and regard the game with polite incomprehension. Cherryripe and I did play in the school “Little League” for a while, until we got in trouble for doing handstands against the goalposts.

For non-Victorians and non-Australians, the football of which I speak is Australian Rules Football, which is quite different to soccer, rugby (league or union) or gridiron. It is a peculiar game, played with a particular passion in my home State of Victoria. It involves an oval ball, lots of jumping in the air to catch the ball (called “marking”) and lots of goals (worth 6 points)  and behinds (worth 1 point).

We don’t have a family team or any particular family loyalty. The team I chose at a very young age was the Richmond Tigers, because I like tigers. And, at the time, they were a very good team. However, I later defected to Hawthorn, because Cherry also barracked for the Hawks. It must be confessed that it was also around this time that the Hawks started winning premierships. And I liked Michael Tuck because he had a beard like my Dad.

After a four year stint in the UK, I found that I had no feelings for Hawthorn any more, and decided to go back to my original team, the Tigers, despite the fact that they were no longer great. I describe myself as a “lukewarm Tigers supporter”. My husband is perhaps worse. He was born on the border of Victoria and New South Wales , and moved all over the place. He barracks for multiple teams, generally chosen on the basis of what will most irritate the people he is with at the time.

Anyway, the last Saturday in September is traditionally the day of the Grand Final. The Saturday just passed was that august day. First, I turned the TV on in the morning, and the only subject was football, football, football. Yawn! There were lots of melodramatic voiceovers in deep ocker tones, with scenes of men jumping for the ball: “Yeeeees! He’s a true heeeeeeeeeeee-ro!” (and etc). All the pollies were getting in on the act in a smarmy manner. We had to go to a wedding this year on Grand Final day. Despite being a Hawks supporter, and not a fan of either of the teams playing, a friend’s husband was so aggrieved that he didn’t attend the wedding. I just couldn’t get up the energy to care. On the way to the wedding, I doubted my credentials as a True Victorian.

My husband reminded me of the time that he persuaded me that the Tigers were going to have to become the “Launceston Tigers” and how I almost burst into tears (much to his horror). He also asked me the following question: “Do you still hate Collingwood and Carlton”, to which the answer was “Of course I do”. After some moment’s thought, he said, “Would you care about the Grand Final if the Tigers were playing, instead of being at the bottom of the ladder this year?” (Alas, it’s true, the Tigers got the “wooden spoon” this year.) After some thought, I conceded that I would have found it more difficult to attend the wedding had the Tigers made the Final. I would have had to ring people to get regular updates. Perhaps I would have had to locate a TV in the reception centre. Hmm, maybe my ennui stems from Richmond’s dismal performance this year. C’mon Tiges, do better next year!

Okay, maybe deep down I am a true Victorian after all…

5 Comments

Filed under AFL, Australia, Personal

Kevin Rudd and the strip club

The mainstream media really gives me the pip sometimes. The recent reaction to the revelation that Kevin Rudd visited a strip club four years ago is one of those things which irritates me.

If Rudd had misued his position of power in some way, perhaps there would be some reason for the incident to be raised. But otherwise, I think it is utterly irrelevant to the upcoming federal election. I’d prefer that the press focus on real issues. The same would go if the revelations were about any other politician from any other party.

20 Comments

Filed under Australia, politics

More on choosing judges

Women are represented in the law as judges, barristers, solicitors, attorneys-general, law makers and court administrators. They identify an issue quickly, focus on it and persuade rather than dictate. Mostly, women who work in the law are goal oriented. They readily identify their litigation goal, their judgment goal.Women provide perspective. They search out the resolutions.Women have finely honed organisational skills (hence they make excellent juniors and instructors in litigation, sometimes of itself a distinct disadvantage).

Women are adaptive and flexible. They have identified the open and closed areas of legal practice. Thus, women have remained in the traditional fields of family law, conveyancing and criminal prosecution but expanded into relatively new areas, taxation and revenue law, planning and environmental law, administrative law, human rights law and indigenous land rights law. In so doing they have avoided the more adversarial, combative zones of commercial law and common law.

Women bring to the law a strong sense of method. This is borne out in the judgment writing of women in the superior courts…

(Extract from speech by Marilyn Warren, current Chief Justice of the Supreme Court of Victoria, on 15 May 2003 to Victorian Women Lawyers)

I’d like to explore my own ambivalence about the words of Chief Justice Warren above. Are women different to men? Do they bring different qualities to a role? Before I had male cousins, I would have said that women and men were the same, but I no longer believe this. In general, women and men do have different approaches to matters. That is not to say that either approach is better than the other. It is also not to say that all women are the same. Most people will have a mixture of “masculine” and “feminine” traits. For example, my husband will kill me for writing this, but I am better at reverse parking and spatial tasks than he is (typically thought to be a more masculine trait). Further I am far more adversarial than my husband. He does not like confrontation. I don’t like it either, but if I have to confront someone, I will. And there are women who are far more aggressive than any man, and far less caring. Think about someone like Maggie Thatcher – hardly a stereotypically “feminine” woman.

I guess I’m wary of gross generalisations, and the idea that women are somehow better than men. We aren’t better than men, sometimes we’re just different. But I do think that many women have a very valuable perspective to add to the judicial bench. With this in mind, I am considering the appointment of Justice Kiefel to the High Court of Australia.

Will Justice Kiefel bring a different perspective to the Court? I really hope so. I don’t care if it’s as a result of her gender or not. To me, the point for celebration is not that Her Honour is a woman, but that she shows some signs of having independent thought processes. The present High Court is so hidebound. I don’t know if this is some kind of pendulum effect – whether the Court is at pains to swing away from the perceived “activism” of the 80s and 90s. I think that this is mistaken. To try to keep the law static is as much activism as is attempting to change the law. It also has a political agenda behind it.

The whole point of being on the High Court is that the law is (within reason) what you say it is. You are not bound by precedent. A High Court should both explain what the law is and develop it if necessary. By contrast, recent judgments of the House of Lords in the last 10 years have been interesting and one gets the feeling that they actually have open minds. I find myself almost wishing that there was still an avenue of appeal to the Privy Council. {Zounds, can a republican like myself really be saying that? Shows how desperate times have become… Note for US readers: republican = anti-Queen-as-head-of-Australia in this context}

So, congratulations, Justice Kiefel. May you make a difference!

6 Comments

Filed under Australia, courts, feminism, high court, judges, law, law reform, Uncategorized