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ADELAIDE LAW REVIEW

VOLUME 19 1997

TABLE OF CONTENTS SYMPOSIUM: Feminist Interventions in International Law: Reflections on tbe Past and Strategies for tbe Future Pene Mathew, Dianne Otto and Kristen Walker

Introduction

Christine Chinkin

Feminist Interventions into International Law

13

Barbara Cummings, Jenny Blokland and Rebecca La Forgia

Lessons from the Stolen Generations Litigation

25

Yumi Lee

Violence Against Women: Reflections on the Past and Strategies for the Future - An NGO Perspective

45

A Feminist Appraisal of the Dayton Peace Accords

59

Exploitation Under Erasure: Economic, Social and Cultural Rights Engage Economic Globalisation

73

John Williams and John Bradsen

The Perils of Inc\usion: The Constitution and the Race Power

95

Michael Chesterman

Privileges and Freedoms for Defamatory Political Speech

155

John Dewar

Indigenous Children and Family Law

217

Andrew McNicol

Principies of Property Law and the Interpretation of the lncome Tax Assessment Act 1936 (Cth) and lncome Tax Assessment Act 1997 (Cth) 231

Ustinia Dolgopol Krysti Justine Guest

ARTICLES

BOOK REVIEWS Delimiting the Law: "Postmodernism" ami the Polities 01 Law by Margaret Davies

143

The Honourable Justice Gummow AC

Resulting Trusts by Robert Chambers

149

Horst Lücke

Consensus ad Idem: Essays in the Law 01 Contraet in Honour 01 Guenter Treitel Edited by Francis Rose

257

Wrongs and Remedies in the Twenty-First Century Edited by Peter Birks

265

Nicola Lacey

John Keeler

LIST OF BOOKS RECEIVED

153

TABLE OF CASES

277

TABLE OF LEGISLATION

279

INDEX

281

SUBMISSION OF MANUSCRIPTS

283

SYMPOSIUM FEMINIST INTERVENTIONS IN INTERNATIONAL LA W: REFLECTIONS ON THE PAST AND STRA TEGIES FOR THE FUTURE Pene Mathew, Dianne Otto and Kristen Walker·

INTRODUCTION ince the publication of the groundbreaking article "Feminist Approaches to Intemational Law" in the American Joumal oIlnternational Law in 1991,1 feminist analyses and critiques of international law have blossomed. 2 Many of these have emanated from Australia. In an international context, in 1993 the Women in IntemationaI Law Interest Group of the American Society of Intemational Law organised a day-Iong symposium on gender and intemational law, the papers of which evolved into the chapters of Reconceiving Reality: Women and Internarional Law. 3 Feminist analyses have ranged over are as such as human rights, intemational trade, the Security Council and the use of force, to name but a few. 4 The range and depth of feminist

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• 2

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Faculty of Law, University of Melboume. Charlesworth, Chinkin & Wright, "Feminist Approaches to International Law" (1991) 85 AJIL 613. There are two useful bibliographies of Ceminist work in internationallaw: "Bibliography oC Sclectcd Materials on Feminist InternationaJ Legal Theory" (1993) 3 Transnar'¡ L & Contemp Probs 581; and Cook & Oosterveld, "A Select Bibliography oC Women's Human Rights" (1995) 44 Am ULRev 1429. Dallmeyer (ed), Reconceiving Reality: Women and International Law (American Society of Intemational Law, Washington DC 1993). Examples oC Australian Ceminist scholarship in international law inelude: Charlesworth, UThe PubliclPrivate Distinction and the Right to Development in International Law"

2

MATHEW, OTrO & WALKER - INTRODUCTION

scholarship, together with our own interest and work in the area, inspired the idea for a symposium on Feminist Interventions in IntemationaJ Law, from which the artieles in this issue of the Adelaide ÚlW Review have come. The symposium was held at the University of Melboume Law School on 30 September 1996 and was attended by about 90 people from around Australia and overseas. We envisaged two purposes for the symposium: first, a stocktake on what feminist interventions in intemational law have achieved - a retrospective; and second, to look forward to where feminist interventions might be heading and where they might be nceded. Indeed, this latter object seemed in many ways more important that the first, as many area." of intemationallaw remain impervious to feminist and other critical analyses. We wanted to bring together feminists working in various areas of international law and international relations, including not only academics but also women working with non-government organisations (NGOs) and other grassroots activists. It was also fortuitous that Christine Chinkin (London School of Economics), Shelley Wright (Law School, University of Sydney) and Hilary Charlesworth (University of Adelaide and Australian National University) would all be in Australia and able to participate in the symposium, thus emphasising the link back to their 1991 artiele. Rather than follow traditional intemational legal categories, we decided to organise the symposium around four panel s with the themes of diversity, violence, development and citizenship. The collection of published papers that follow inelude Christine Chinkin's opening address and papers from those panel speakers who submitted them for publication. In this introduction, we briefly surnrnarise the unpublished papers and each of the panel discussions, and outline the strategies for future feminist interventions that were highlighted in the coneluding plenary of the symposium. Following Christine Chinkin's opening address, Hilary Charlesworth presented a paper in which she identified five responses to feminist interventions in international law. One response was to bypass feminist interventions altogether, as intemational legal theorists Thomas Franck and Martti Koskenniemi had done. The second was to "wink and nod" in (1992) 12 Aust YBIL 190; Chinldn, "A Gendered Perspective to the Use of Force" (1992) 12 Aust YBIL 279; Gardam, "A Feminist Ana1ysis oC Certain Aspects of International Humanitarian Law" (1992) 12 Aust YBIL 265; Funder, "De Minimis Non Curat Lex: The Clitoris, Culture and the Law" (1993) 3 Transnat'[ L & Contemp Probs 417; Otto, "Challenging the 'New World Order': International Law, Global Democracy and the Possibilities for Women" (1993) 3 Transnat'[ L & Contemp Probs 371; Mathew, "Sovereignty and the Right to Seek Asylum: The Case of Cambodian Asylum-Seekers in Australia" (1994) 15 Aust YBlL 35; Walker, "An Exploration of Artiele 2(7) of the United Nations Charter as an Embodiment of the PubliclPrivate Distinction in International Law" (1994) 26 NYUJ lnt'{ L & Poi 173; Wright, "Women and the Global Economic Order: A Feminist Perspective" (1995) 10 Am UJ lnt'[ L & Pol'y 861; Cass, "Navigating the New Stream: Recent Critical Scholarship in International Law" (1996) 65 Nord J Int'l L 341; Orford, "The Politics of Collective Security" (1996) 17 Mich J lm'{ L 373.

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3

the direction of feminist theorists. This might involve a footnote to say "yes girls, I'm aware of your work", but it avoids serious engagement with feminist theory. Liberal critiques of the feminist project make up the third type of response. Adherents take the view that feminists should work within the existing frarnework of intemational law instead of critiquing it. As noted by Hilary, this approach is exemplified by an artiele by Fernando Tes6n5 and a review by Anthony D' Amato of The Human Rights of Women, edited by Canadian feminist Rebecca Cook.6 In particular, Hilary focussed on D' Amato's charge that there is an inconsistency in sorne contributions to the book which both criticise intemationallaw for its androcentric focus and also criticise states for their failure to apply and implement intemationallaw regarding the rights of women. The fourth kind of response was to accuse sorne feminist interventions of "essentialisrn". She described the anti-essentialist critiques as c1aiming that feminist interventions in intemational law thus far have identified blind spots in intemational law that are of particular concem to white westem feminists and transposed these onto a global plane, assuming that all women confront the same issues. She identified two other aspects of these critiques. First, that sorne feminist interventions rnake an overly broad use of categories such as Nortb/South, third world women/westem women which imply a false homogeneity of interests. Second, that some feminist interventions make use of analytical distinctions such as the public/private dichotomy to dissect intemational law when such distinctions are specific to westem culture, which is said to obscure the lives of women in developing countries. The fifth response identified by Hilary, which she perceived as the one adopted for the symposium, was to rnake room for a variety of different feminist approaches at once. The paper focussed on a discussion of the third and fourth responses. Hilary observed that the criticisms offered by these two very different approaches ilIustrated the point made by the philosopher Elizabeth Gross that feminist theory was caught between the need to analyse with the same "rigour" (in male terms) the hidden gender of disciplines and the requirements of a cornmitment to polítical change. 7 This dual cornrnitment attracts criticisms from two directions: from sorne feminists for co-option by patriarchal forces through participation in privileged, male-structured debates; and from the masculine academy for lack of "disinterested" scholarship and "objeclive" analysis. Hilary pointed out that the liberal critiques of feminist approaches ignore the fact that, while states certainly should be made to implernent the promises they have made thus far to promote

5 6

7

Tesón, "Feminism and Intemational Law: A Reply" (1993) 33 Va J Int'[ L 647. O'Amato, (1995) 89 AJIL 840, review of Cook (ed), The Human Rights of Women: Nalional and Inlernalional Perspeclives (Universily of Pennsylvania Press, Philadelphia 1994). Gross, "Conclusion: What is Feminist Theory?" in Patemen & Gross (eds), Feminist Challenges: Social and Political Theory (AlIen & Unwin, Sydney 1986) p192.

MATHEW, OTTO & WALKER - INTRODUCTION

4

the rights of women, intemationallaw currently offers only a partial response to women's perspectives. In responding to the anti-essentialist critiques, Hilary acknowledged the importance of westem feminists appreciating the limited perspectives of their own views and avoiding the "have we got a theory for you" approach identified by Maria Lugones. 8 However, she raised three questions about the scope and implications of the anti-essentialist critique in the particular context of intemationallaw. First, she observed that intemationallaw was developed by a very small number of colonial states and therefore operates according to distinctly liberal conceptions about the "personhood" of the state and the public/private dichotomy. Accordingly, she argued, it is entirely appropriate to critique these concepts. This is not to say that westem feminist approaches are superior to other feminist approaches but that they are simply one way of exposing certain biases within intemational law. Second, she said that it is arguable that emphasising the diversity of women in the early stages of dialogue with traditional intemational lawyers undercuts the attempt to expose intemationallaw's dominant rhetoric as ignoring women's experiences. "Strategic essentialism", or putting forward a universal concept of womanhood to counter the universal (though c1early deficient and exclusive) concept of manhood espoused by intemational law, may be useful. Third, she argued that the anti-essentialist critiques may unwittingly give succour to uncritical cultural relativism and to the liberal critiques of feminist approaches. Hilary concluded that it is not possible to provide universal explanations for the oppression of women worldwide, but that identifying common features of women' s oppression is one important strategy for ferninist interventions in intemationallaw. Accordingly, she offered sorne tentative ideas for commencing this project. First, she endorsed Isabelle Gunning's proposals always to be explicit and honest abaut one's own perspective. 9 Second, there is a need for westem feminists to be very careful about controlling the political agenda at an activist level. Third, it is necessary to resist fetishising diversity to the point that conversations are stifled by charges of anti-essentialism. While it is important to be selfconscious about the categories used, generalising research should not be rejected out of hand. In the context of intemational law, she said, it may be important to start with sameness rather than difference. She noted her agreement with Martha Nussbaum's point that there is a need to begin with a universal conception of the human being and human functioning in thinking abaut women in intemationallaw. 10 Diverse examples of starting

8

Lugones & Spelman, "Have we got a Theory for You! Feminist Theory, Cultural Imperialism and the Demand for 'The Woman's Voice'" (1983) 6 Women's Stud Int'l F 573.

9 \O

Gunning, "Arrogant Perception, World-Travelling and Multicultural Feminism: The Case of Female Genital Surgeries" (1992) 23 Colum Hum Rts L Rev 189. Nussbaum, "Human Capabilities, Female Human Beings" in Nussbaum & Glover (eds), Women, Culture and Development (Oxford University Press, Oxford 1995) p61.

(1997) 19 Adel LR 1-11

5

poinls for this project could inelude Amartya Sen's idea of human eapabilityll or Chandra Mohanty's imagined cornrnunity.12 DIVERSITY

The diversity panel was chaired by Kris Walker (Law Sehool, University of Melboume) and it was devoted to the question of how feminist interventions in intemationallaw may be inclusive and eneompass women's diversity, picking up on sorne of the issues raised by Hilary. Barbara Cummings, who has played a central role among the Aboriginal eommunities currently seeking redress for the suffering inflicted by the removal of children, Rebeeca La Forgia and Jenny Blokland (both from the Northern Territory University Law Sehool) presented intereonnecting papers. They developed a feminist perspective on the inquiry into, and litigation coneerning, the removal of Aboriginal and Torres Strait Islander children from their families, now referred to as the "Stolen Generations." Their paper appears in this volume of the Adelaide Law Review. Padma Raman, presentIy with the Victorían Law Reform Cornmittee, focussed on the lessons that multiculturalism's impact on law in Australia has for feminist interventions in intemationallaw which attempt to grapple with women's diversity. The paper criticised the liberal notion of muIticulturalism which permits ethnic difference in "dress, dance and dinner", but which demands allegianee to a core oC westem values. This, it was argued, promoted the idea that "other" cultures are static and is not far removed from colonialist theories about non-western cultures. She used an intersectional analysis to examine the way stereotypes converge to construct, in mainstrearn perception and in law, ethnic men as super-oppressive patriarchs and ethnic women as passive victims. She argued that the spokespersons for ethnic cultures in Australia who are listened to are often men and that this has perpetuated dominant stereotypes of ethnic women as passive "signs" of culture, resulting in the acceptance by Anglo-Australia of sexist mores within ethnic cornmunities. A particular example of this is the use of the cultural defence to violent crimes against women, where culture or ethnicity has been taken into aceount when determining the accused's state of mind. In cases such as these, women wilhin lhe particular cornmunily are not asked whether their understandings of lheir "culture" condones men' s arrogation of power to "discipline" women in this way. Rather, lawyers for lhe defence attempt 10 use cultural stereotypes lo let the perpetrators of violence "off the hook". Kris Walker then gave sorne comments from the chair on sexual preferenee and intemationallaw. She observed tbat sexual preference has been a difficult topie to place on the intemational agenda: 1992 saw the first openly gay speaker at a United Nations (UN) 11 12

Sen, "Capability and Well-Being" in Nussbaum & Sen (eds), The Qualiry oi Lije (Oxford University Press, Oxford 1993) p30. Mohanty, "Introduction: Cartographies of Struggle: Third World Women and the Politics of Feminism" in Mohanly, Russo & Torres (ed5), Third World Women and the Politics oi Feminism (Indiana Universily Press, Bloominglon 1991) p4.

6

MATHEW, orro & WALKER -INTRODUCTION

forum, at tbe UN Sub-Comission on Minorities. More recently, tbe Intemational Lesbian and Gay Association has been denied consultative status by the UN's Economic and Social CounciL She said sexual preference is not necessarily dealt with in a desirable manner at the intemationalleveL In responding to the Toonen complaint about Tasmania's antisodomy laws, tbe UN Human Rights Cornmittee emphasised the right to privacy, a problematic concept, rather than the right to equality. She also noted that lesbians are often absent from discussions about sexual preference, altbough lesbians and gay men are now gaining visibility in the intemational arena, particularly in the area of human rights. She suggested several strategies for tbe future: tirst, that aH of us, not just gay men and lesbians, need to speak about the unspeakable - sexual preference; second, that tolerance is a back-handed approach, since it as sumes the abhorrent nature of tbat which is tolerated; tbird, that westemers need to consider non-westem ways of identifying as gay or lesbian and to recognise the effects of colonialism on sexuality in developing countries (which often included criminalisation and moral and religious condernnation); fourth, a convention on sexuality might be desirable; and, finally, domestic implementation strategies, such as the Sexuality Discrimination Bill currently before tbe Australian Senate need to be pursued. The discussion following the papers raised several issues. The first point addressed was the need for feminist interventions in intemational law to deal with intemational law' s foundations in colonialismo Second, it was commented that there was a need to be vigilant about the impact of globalisatíon on the human rights agenda, particularly globalisation's tendency to suppress the assertion of solidarity and equity rights. Third, the question of essentialism was discussed. Points raised on this issue included the viability of coalition politics to put forward a united front when required; the need for a forum for feminists to discuss difference; and the ability of women activists to choose strategies appropriate to their interests from a variety of discourses. FinaHy, the workshop addressed the lessons to be drawn from the "Stolen Generations". It was commented that the practice of taking children from their families was a denial of women's rigbts and their role in Aboriginal and Islander communities. It was al so said that there were other ways in which govemment initiatives had ignored Aborigínal women, for example, the focus on patrilineal descent in íssues relatíng to land ownership and culture. The colonialist emphasis on "authentic" Aboriginality was also discussed, and the denial of access to archival material to indigenous peoples on the basis of the patemalistic fear tbat the material would be destroyed, resulting in decisions by public servants as to what is relevant.

VIOLEN CE The violence panel, chaíred by Pene Mathew (Law School, University of Melboume), addressed violence against women and intemationallaw's incomplete recognition of this issue.

(1997) 19 Adel LR 1-11

7

Yumi Lee, Crom the Women's Intemational League Cor Peace and Freedom, spoke about the conceptualisation and representalion oC violence in UN documents. Tina Dolgopol (Flinders University School oC Law) analysed the Dayton Accords on the ending of the war in the Former Yugoslavia. She argued that the Accords failed to acknowledge women, despite the brutal targeting of women as a weapon of war during the conflicto Both these papers appear in this volume oC the Adelaide Law Review. Judith Gardam (Law School, University of Adelaide) addressed the obstaeles to women's protection from human rights abuses raised by the boundaries between refugee law, intemational humanitarian law and human rights law. Her paper addressed three issues. First, the boundaries between different branches of intemationallaw have failed to reflect the experiences of women. The law relating to armed conflict focuses on protection of combatants and civilians during the conflict, but neglects to deal with the continuing burdens on women after the conflict has ended. Supposedly, the aftermath of anned conflict is left to human rights law and refugee law, however, these do not adequately deal with women's experiences either. Second, the law relating to armed conflict perpetuates the notion that women are appendages of others. For example, intemational humanitarian law conceptualises women in their capacities as mothers, when they are pregnant, and as sexual objects. TIte current focus on sexual violence in war as a result of the conflict in the Former Yugoslavia has not redressed this problem and raises further problems as it may induce a sense of complacency that women in armed conflict are protected. Other issues which need to be considered inelude the effect of economic sanctions and the failure to deal with women in other conflicts such as in R wanda. Third, the doctrine of "military necessity" prevents the realisation of protection for women in armed conflicto It ensures that the military, which is a predominantly male institution, has the final sayas to what may be justifiable in times of war. Karyn Anderson, a member of the Australian Comrninee of Investigation into War Crimes, described the Committee's experience working to direct women's evidence about crimes conunitted against them in the Fonner Yugoslavia to the ad hoc Intemational Criminal Tribunal. She outlined many problems associated with ensuring that women's evidence was received. Among these problems are the reluctance oC women to report crimes of sexual assault, the question of confidentiality for witnesses versus due process for the accused, and the need for follow-up support for witnesses. ]ssues of substantive law were also deaIt with, such as the need for rape lo be prosecuted as a grave breach of intemational humanitarian law, and not only as a crime against humanity which raises difficulties where rape is not directed at a woman because oC her ethnicity. Her paper coneluded with the assessment that the Committee's work was one strategy Cor pursuing the eradication of violence against women and ensuring a change oC altitudes towards women. However, she cautioned that it was important to avoid objectifying women' s experiences through their participation as witnesses in the judicial process.

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MA THEW, OTrO & WALKER - INTRODUCTION

Pene Mathew invited discussion from the panel audience, noting at least five themes arising from the papers: the conceptualisation of violenee; the problematic boundaries within intemational law; the question of ensuring women are included in intemational legal developments; the foeus on the symptoms rather than root causes of sexual violence; and the objectification of women in intemational legal discourse. The question of trafficking in women and the impact of the debate between feminists conceming whether prostitution is forced or chosen were diseussed. Further, the boundaries between different areas of intemational law were criticised, particularly in relation to the law' s role after a conflict has ended. The cornment was made that, in sorne cases, the motivation for dealing with the aftermath of a conflict is suspect, as with the question of compensation c1aims for women rape victims in Kuwait, which had been pursued in order to demonise Iraq. It was also said that there was often no real desire on the part of the intemational community to deal with the aftermath of conflict, thus the Dayton Accords referred to the need for "rehabilitation" but did not elaborate. The boundaries between intemational law and intemational relations were explored. It was noted that the focus on the state in both disciplines leads to a blind spot in relation to civil conflicts. There was discussion of the essentialism debate among feminists working in international relations and what lessons intemational lawyers might draw from it. The question of the application of the law of armed conflict to intemational organisations, especially to UN peacekeepers, was also raised. Finally, the important role of women's NGOs in puning women on the intemational legal agenda was acknowledged.

DEVELOPMENT The development panel was chaired by Deborah Cass (Law School, Australian Nalional University) and three papers were presented. First, Lizanne Bennett, the Women's Officer with the Australian Services Union, spoke on the development of the Intemational Labour Organisation (ILO) convention on homeworking and Australia's subsequent failure to support the Convention foIlowing the change in the Federal Govemment in 1996. Homeworking, or outwork, as it is often known in Australia, impacts disproportionately upon women and has been the subject of work by lhe ILO over a number of years. Under the previous Labor Government, Australia had had a significant involvement in the ILO and in the drafting of the Homeworking Convention. However, in 1996 Australia gave its voting seat on the n.O to South Korea, and it has failed 10 ratify lhe Convention. Second, Janet Hunt, Executive Director of the Australian Council for Overseas Aid, spoke on the role of women's NGOs in promoting women's development and human rights, particularly in the Asia-Pacific region. She highlighted the work of women's NGOs in the Philippines, Thailand, Indonesia, Fiji and other Asian and Pacific countries. She also discussed the importance of intemational fora such as the Nairobi and Beijing World Conferences on Women, which brought together women's NGOs from around the world to address issues such as poverty, inequality, violence, political participation and peace. She concJuded that women's NGOs have had a considerable impact on both intemational and

(1997) 19 Adel LR 1-11

9

national issues, but that there remained areas where gender was still ignored, in particular, international trade and other economic issues. Janet highlighted the need for women's groups to continue to advocate for women and to participate in trade and economic discussions. Finally, Krysti Guest, whose paper is included in this volume of the Adelaide Law Review, considered how economic, social and cultw-al rights are being defined in the context of an intemational political economy dominated by Northern-based transnational corporations and an ethos of "free" market capitalismo Discussion following the panel presentations centred on the strategies which could be used to bring gender into the debates around international econornic and monetary issues, given the current failure of mainstream international organisations, particularly the Bretton Woods institutions, to consider women in formulating poliey. Various suggestions were made, many focussing on the need for Northern women's NGOs to take a more active role on economic issues, both domestically and intemationally. So, foc example, il was suggested that the Homeworking Convention be the subjeet of domestic lobbying and a public awareness campaign in order to persuade the Australian Government to ralify il. At the intemationallevel, it was observed that, post-Beijing, a group called "Women's Eyes on the Bank" has been established to monitor the activities of the World Bank. There seemed to be general agreement that institutions such as the Intemational Monetary Fund and the World Bank are among the most irnpervious to change and pose great difficulty in terms of achieving feminisl change. The new World Trade Organisation will be equally difficult. There was also an interesling exchange over the role of capitalism in women's oppression and the need to influence the economic activities and policies of govemrnents and multinational corporations as well as those of international organisations. Shelley Wright, who taok on the role of chair in Deborah Cass's absence, rnade sorne concluding observations on strategies airned al propelling women's issues onto the mainstream agenda: greater use of and emphasis on the Convention on the Elimination of Discrirnination Against Women (CEDAW); networking between women's NGOs, environmental NGOs and indigenous NGOs; improving women's access to credit; and seeking greater NGO input into regional institutions such as Asia Pacific Economic Cooperation (APEC). CITIZENSHIP The fourth panel of the symposium was ehaired by Dianne Otto (Law School, University of Melboume) and it examined the partial and preearious nature of wornen's eitizenship in nation slate and global polities. Looking at this issue in the context of post Cold War globalisation, lhe first speaker, Jan Pettman (Departmenl of Polities, Australian National UniversilY), asked whether it was an appropriate aim to seek inclusion in traditional structures and definitions of citizenship. She noted how globalisation is dramatieally

10

MA1HEW, OITO & WALKER - INTRODUCTION

shifting power and weaIth away from the preserve of the state and scrambling earlier identity categories. Many women are "out of place", living and working beyond the legal reach of the countries of their ostensible citizenship. This points us to the question of the rights of non-citizens and, as Jan pointed out, suggests that feminists develop transnational solidarities, spaces and identities for women which are mobile and multiple rather than seeking inclusion in outrnoded. singular notions of cítizenship. Pene Mathew was the second panelist. She exarnined the efficacy of intemational refugee law as a response to denial of citizenship for women and looked specifically at the new Australian guidelines on gender in detennining refugee status as an example of a response to feminist interventions in intemational law. Pene's prognosis for the guidelines was a mixed bago On the one hand, they inelude consideration of the actions of "private" (nonstate) actors and broaden the notion of what is considered to be "political". These are important advances as much of the "persecution" experienced by women falls outside the gendered notion of what constitutes the publíc realm and is excluded by dominant conceptions of politics. On the other hand, the new guidelines do not adequately deal with the ways in which women might constitute a "particular social group". Further, domes tic violence remains exeluded from the broadened definition of "torture and other cruel, inhuman or degrading treatment or punishment". This is symplomatic of a failure to deal with violence that is endemic in westem states and illustrates the ease with which certain violations are condernned because they are characterised as "culturally" specific, such as dowry murder. The third panelist was Susan Brennan, solicitor at Minter ElIison and current Joint President of the Young Women's Christian Assocíation (YWCA), an active ¡ntemational NGO. She critically analysed the intemational feminist campaign aimed at states adopting an Optional Protocol (individual complaints mechanism) to CEDAW. Susan pointed to the disjunction between academic caution about what rights discourse has to offer women and the contrasting enthusiastic promotion by many feminist activists of the potential of human rights mechanisms to make a real difference to women's status. She suggested that constructive interaction between these two feminist camps was essential in order effectively to extend the gendered boundaries of human rights discourse while also remai~ing aware of its limitatÍons. In the ensuing discussion, it was recognised that feminist aUempts to challenge the exclusionary effects of intemationaI legal and political discourse have mel with strong resistance and that gendered violence is an important structural aspect of maintaining the denial of fulI citizenship to women. It was generalIy agreed that post Cold War globalisation necessitated a reconceptualisation of the idea of citizenship and that the development of transnational alliances was a high priority for feminists.

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STRA TEGIES FOR FUTURE FEMINIST INTERVENTlONS In the final plenary session of the symposium, Hilary Charlesworth, Christine Chinkin and Shelley Wright presented an overview of the strategies which had been suggested in the panel discussions and then reorganised them into five main strategic outcomes. First, they concluded, the symposium underlined the importance of multiple feminist strategies. In particular, participants had agreed that human rights strategies should not be rejected. Among the advantages of human rights discourse Ihat had been identified during the day were: providing opportunilies for the narration and recording of women's experience; opening up dialogue at the inlemalional level; developing the unexplored potential of CEDA W, for example with respect to how the "appropriate measures/means" provisions in articles 2, 3 and 5 might be interpreted; and as a mean S of insisting on the practical extension of human rights protections to women.

The second strategy which emerged was the continuing importance of theorising and addressing the "rool causes" of women's oppression. Sorne of the causes highlighled during the day were gendered violence, capitalism, armed conflict, Ihe forced movement of man)' women including refugees and migrant (including undocumented) workers, militarism, ongoing colonialism, the natÍon state and popular represenlations of women. Thirdly, the importance of interconnecting theory and practice was emphasised in a number of ways. In particular. feminist theorists must develop ways of linking with grass roots women's organisations. The fourth stralegy relaled to Ihe third in Ihat it emphasised the necessity to recognise and respect the diversity of feminist viewpoints, theories and practices. The difficulties associaled with conversing across differences in power must be addressed by developing specific dialogic strategies which do nol result in dominalion and silencing. Finally. the need for feminist reconceplualisalions of key concepts and institutions was slressed, including "citizenship", the "nation state" and economic and trade structures.

Christine Chinkin'

FEMINIST INTERVENTIONS INTO INTERNATIONAL LAW eminist interventions into intemational law have been relatively recent and have already provoked both practical gains and theoretical dissent. In this introduction 1 will first provide an overview of sorne of the gains rnade. 1 will then appraise where we have reached in light of what 1 see as the paramount objective, that is, developing a more inclusive intemational legal systern that takes seriously the interests of a11 women, and by doing so also opens the way to reirnagining possibilities for change that may permit the pro mise of intemational law for peaceful co-existence and respecl for the dignity of a1l persons lo become a reality. The article may present as a collection of unconnected thoughts. This is because of the deep uncertainty that 1 feel about whether we should be celebrating the achievements of the past few years, or whether we should despair at the lack of genuine transformation and continue to be sceptical about the viability of any real change for those made invisible by the current systern of intemationallaw.

F

The first feminist intervention into intemational law within the academy of which I am aware took place in Canberra in 1990 at a conference widely attended by govemmental and practising intemationallawyers, nongovemment organisation (NGO) representatives and academics. 1 My Dutch friends however have told me of an earlier seminar that took place in the Netherlands. These academic interventions followed decades of activity by intemational and national NGOs. When considering the irnpact of such interventions we cannot ignore the fact that they have taken place against the greatest changes in the intemational legal order since the period of decolonisation. In the space available lean only refer to sorne of the most dramatic of these deve1opments. In 1990 the Soviet Union and the Former Yugoslavia were still intact and the collective action, undertaken with the authority of the United Nations, to remove Iraq from Kuwait had not yet occurred. The latter event was envisaged as heralding a new intemationallegal order in which an undivided United Nations could and would effectively guarantee collective security. The collapse of socialist regimes in Eastem Europe was proclaimed as a triumph of westem values; notably a cornmitrnent to the rule of law, pluralist dernocracy and human rights as the basis for national and intemational legal ordering. AIso in 1990 the Maastricht Treaty had nol yet been agreed; the Uruguay round of GA TI had not finalised the transformation of intemational trade through the formation of GATIIWTO;

*

LLB, LLM (Yale), PhD (Sydney); Professor of Intemational Law, London School of Economics. This introduclion was presented as the opening address at the symposium. The papers from this Conference are published in (1992) 12 Aust YBIL.

14

CHINKlN - FEMINIST INTERVENTIONS

NAFfA had nol come inlo effeet; all subsequent developments that would impact upon intemational trade liberalisation and the globalisation of the economy. The earlier convulsive event in the intemational legal system, the independence of the previous colonial possessions, has failed in many instances, most notably in Africa, to bestow the anticipated benefits. One reason for this was the failure to eouple political selfdetermination with economic self-determination in an international economic order structured and dominated by westem capitalist interests supported by the Bretton Woods arrangements. The transformalive effeet of a New Intemational Eeonomie Order that was cIaimed in the 1970s was strongly and successfulIy resisted by developed states. The two super-powers competed for influence in the newly independent states, too often embroiling them in proxy wars. Nor have the more recent events delivered on their promise. The UN itself is in crisis. The financial crisis is well known, but there is also a crisis of confidence as its actions in, inter alia, Iraq, Somalia, Rwanda and Haití have been criticised from a variety of perspectives leaving uncertainty bOlh as to lhe future direction of the Organisation and il'i capability to fulfil its mandate. The accIamation of events in Eastem Europe has obscured the actuality that the commitment to human rights continues the primacy accorded ro civil and poli tic al rights. This is demonstrated by the scmmble by former Eastem bloc states to join the Council of Europe and become parties to the European Convention for the Protection of Human Rights and Fundamental Freedoms, a civil and political rights convention. The rhetoric of the indivisibility of all human rights that was asserted at Vienna has not been followed through in practice, where cIaims for economic and social justice have been subjugated to the demands of capitalism and lhe free market. and form has becn elevated over substance. In both cases, decolonisation and events post 1990, impetus for societal transformation sternrned from populist movements within the territories in question, and women played significant roles in seeking change that would accord distributive justice. In both cases, women's separate voices have been subsumed within intemationalIy defined nalional imperatives and the interests of the sovereign state have dominated. The adequacy and relevanee of traditional intemational legal doctrine have been strongly challenged as states have embmced greater integmtion on the one hand and, on the other. have fought rearguard actions against the demands of nationalism, the effects of terrorism and environmental degradation and decreasing economic autonomy. In the words of Harold Koh: In this brave new world, transnational aetors. sources of law, allocation of decisional functions, and modes of regulation have all mutated into fascinating hybrid forms. Intemational law now comprises a complex blend of customary. positive, declarative and "soft"law. 2

2

Koh. "A World Transformed" (1995) 20 Yale JIL ix at xi.

(1997) 19 Adel LR 13-24

15

Koh provides a realistic assessrnent of the current intemationallegal order, but traditional intemationallegal doctrine lags behind and c1ings like a security blanket to the syrnbols of state sovereignty. There seerns to be an apprehension that if innovation and change are adrnitted, then the entire edifice of intemationallegal authority will erurnbIe and vanish. Against this backdrop 1 will now tum to sorne of the positive consequenees of feminist interventions into internationallaw. The gains that have been achieved are prirnarily in the area of human rights. The Convention on the Elimination of AH Forms of Discrimination Against Women (CEDAW) has now over 155 states parties drawn [rom all regions of the world. This makes CEDAW one of the most widely ratified human rights conventions in the United Nations system, the most widely ratified being the Children's Convention with over 190 parties. Attention has been given to CEDAW's weaker enforcement measures and shorter meeting time. A draft optional protocol allowing for individual and group complaints to be rnade to the CEDAW Committee for investigation and report is on the agenda of the Commission on the Status of Wornen. The General AssernbIy has approved by resolution an amendment to Article 20, which previously restricted meeting times to two weeks a year. CEDA W now meets for two three week periods in ayear. At the Vienna World Conference on Human Rights the proposition that the "human rights of women and of the girl-child are an inalienable, integral and indivisible part of universal human rights" was accepted. 3 It was aecompanied by the requirement that women's rights be mainstrearned into a11 parts of the United Nations system in an attempt to redress the previous institutional isolation of women. There are indications that at least the United Nations human rights bodies have taken on board this task, and specific programmes on women are underway within various specialist agencies, including FAO and UNESCO, as well as within UNHCR. Perhaps the most dramatic development has been in the context of recognition of the debilitating effects of gender-speeific violenee in denying women enjoyment of human rights. At Vienna,4 in the General Assembly,5 in the Organization of American States in treaty forrn,6 and again at Beijing,7 it has been asserted that the elimination of violence against women, whether eommitted by public officials or private actors, is a human rights obligation upon states. The General Assembly has declared that violence against women "is a manifestation of historical unequal power relations between men and women" and "a social mechanism whereby women are forced into a subordinate position compared with

3 4 5 6 7

World Conference on Human Rights, Vienna Declaratian and Programme of Action, adopted 25 lune 1993, UN doc AlConf 157/24, rep (1993) 32/LM 1661, Pan 1 para 9. At Pan 11, para 38. United Nations Dec1aration on the Elimination of Violence Against Women, GA res 481104,20 December 1993. Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women, Belém do Pará, rep (1994) 33/LM 1534. Fourth UnÍled Nations World Conference on Women, Beijing Declaration and Platform ror Action, September 1995, Ch IV Section D, especially paras 113, 114, 119 and 125.

16

CHINKIN - FEMINIST INTERVENTIONS

men" in public and private arenas. 8 This recognitionof the significance of societal power imbalances moves the analysis of violence out of the confines of antidiscriminationJequality discourse and locates it structuralIy. The formal acknowledgment of the root causes of violence against women offers sorne potential for transformative action. The appointment in 1994 by the Human Rights Cornmission of the United Nations Special Rapporteur on Violen ce against Women brings women's rights into the network of investigatory and reporting powers of the system of special rapporteurs. While one might regret that violence against women was not also brought directly into the mandates of other special rapporteurs, for example those on torture, or enforced or involuntary disappearances. it is a step forward that the Human Rights Cornrnission has requested all such bodies "regularly and systematically to include in their reports available information on human rights violations affecting women".9 Indeed the colIection and collation of gender-aggregated data within the UN has beeo of extreme practical importaoce in mapping the position of the world's women and in providing a factual basis for urging change. Another post 1990s event has been the devastating armed conflict in the Former Yugoslavia. most recently in Bosnia-Herzegovina. From 1992 the international community was shamed by reports of atrocities, including the "massive, organised and systematic" rape that has been used as an instrument of war and a method of ethnic cleansing "intended to humiliate, shame, degrade and terrify the entire ethnic group" into taking a unique response.' o The tribunal that was established by Security Council Resolution is the first intemational tribunal explicitly granted jurisdiction over rape as a crime against humanity. This precedent was followed in the subsequently created tribunal with respect to crimes against humanity in Rwanda. In its Rules of Procedure,11 substantive rulings so far, and prosecutorial process,'2 the Yugoslav tribunal has made clear that it intends to break the centuries-old silence about sexual assault in armed conflicto In particular it has addressed directly the question of conflicting human rights in its consideration of requests for anonymity for victims and witnesses. The tribunal has held that the right of the accused to know the identity of witnesses against him (and all indicted so far have be en male, aIthough this may not be the case in Rwanda) must be 8 9

10 11

12

As aboye, fn5. Human Rights Cornmission res 1993/46. See Connors, "Mainstreaming Gender Within the Inlemational Framework", paper delivered al British Council Conference, Law and Ihe Social Inc\usion of Women, February 1996, Uniyersity of Warwick, Uniled Kingdom, p8 (in possession of author). Mazowieki, Special Rapporleur of the Cornmission on Human Rights, Report Pursuant lo Commission Resolution 1992/S-111, 14 August 1992 FlCN.411993/5, \O February 1993. Cf SC Res 827, 25 May 1993. Slatule of lhe Intemational Tribunal for (he Prosecution of Persons Responsible for Serious Violations of Inlernational Humanitarian Law Cornrnitted in the Territory of Former Yugoslavia since 1991, SC Res 808/1993 artic\es 20-22; Rules of Eyidence and Procedure of the Tribunal rules 69, 75 and 96. See especially Indictment Gagovic & Others ("Foca"), 26 lune 1996.

(1997) 19 Adel LR 13-24

17

balanced against both the victim' s right to security and that of the intemational community in an effective exercise of criminal jurisdiction. 13 The Tribunal did nol limit its ruling to sexual assault cases but did refer to the emphasis given by the Secretary-General to crimes committed against women and the particular safeguards in the Rules of Procedure and Evidence. Another significant action by the Tribunal is the indictment in the "Foca" case issued on 26 June 1996. The prosecution alleged 62 counts of crimes committed against women. These included crimes against humanity, grave breaches of the Geneva Conventions and violations of the laws and customs of war relating especially to rape, torture, outrages upon personal dignity, persecution, wilfully causing greal suffering, enslavement and inhuman trealment. The accompanying press release noted that the indictment is of major legal significance in that il is the firsl time sexual assaults have been diligently investigated for the purpose of prosecution under the rubric of torture and enslavement as a crime against humanity.14 Finally, another positive feature has been the pattem of global surnmits held throughout the 1990s. In regional and national preparatory meetings and at the conferences themselves, women's NGOs have worked to ensure their input into agendas, draft texts and final statements. There has been much success, with women-specific provisions incorporated into the documents of the earlier conferences and the full focus upon women at Beijing. This wil! nol be discussed in delail here, bul Cairo has been seen by sorne as a watershed in Ihat there appeared a new global consensus on two fundamental issues: (1) that empowering women and improving their status are essential to

realising the ful! potential of economic, political and social development; and (2) that empowering women is an important end in itself, for as women acquire the same status, opportunities, social, economic and legal rights as men, as they acquire the right to reproductive health and the right to protection against gender-based violence, human well-being will be enhanced. At Beijing the diversity of women was al last addressed to sorne extent in the recognition that women face barriers to ful! equality and advancement "because of such factors as their race, age, language, ethnicity, culture, religion or disability, or because Ihey are indigenous women" or because of other status. 15 The discrimination faced by women migranl workers and refugees was also mentioned. Perhaps il was al Beijing Ihat Isabel!e Gunning's world 13 14 15

Prosecutor v Dusko Tadic, case IT-94-1-T, 10 August 1995, where the Chamberof the Tribunal provided guidelines for \he granting of anonymity to victims and witnesses. Intemational Tribunal, Press Release 26 June 1996. Beijing Declaration para 32. Cf Platform for Action para 225.

18

CHINKIN - FEMINIST INTERVENTIONS

traveller was most completely present,16 although not entirely vindicated in that the cumulative inlersections of multiple discriminations were not explored in the official documents, and strategies to incorporate them not fully examined. In particular, the abuses of rights suffered by old women, indigenous women and lesbians remain largely invisible in the Beijing Platfonn for Action. But, as has so often been pointed out, the final documents of these summits represent at best political consensus and forward-Iooking programmes. What they do not represent is legal obligation, or national or institutional financial commitment. Their language is deliberately imprecise and indeterminate, giving ample discretion to states with respect to implementation. They fail to specify targets against which perfonnance can be measured and their language is too often that of concession. Perhaps the most notorious example was the trade-off in the Beijing Platfonn for Action in which all mention of sexual orientation was omitted in retum for the deletion of a footnote compromising the universal application of women' s hcalth rights. Now we are looking back twelve months after Beijing and after about six years of focused academic attention on feminist interventions into intemational law. Why do 1 not feel whole-heartedly enthusiastic about all the signs of progress that 1 have mentioned? What are the downsides? 1 think Ihat they can be surnmed up in the expression 1 used earlier: they retain the importance of fonn over substance. There has been sorne broader use of women-inclusive language in intemational instruments, but liule changed practice. This language has neither demanded nor facilitated transfonnation. All this activity has not really challenged gendered assumptions about the structures of global political and economic power, nor of the construction of knowledge in the rapidly changing environment of intemationallaw. Thus the steps taken to bring women's human rights into mainstream UN activities have in most, although not all, instances been limited to placing women on the agenda, a traditional "add women and stir" approach that does not demand any radical rethinking of prograrnmes or gender-awareness. In the words of Jane Connors, rnainstreaming has been "ad hoc, uncoordinated and dependant upon the particular mandate of the body [in question). ... Where human rights are not within the mandate, unless the body is dedicated solely to the concems of women, it is uncommon for the human rights of women to inform the approach of the body."17 While the campaigns with respect to violence against women, and to a lesser extent reproductive rights, have led to sorne acceptance of these issues within human rights discourse, they have al so been confining and have detracted attention from the need to examine the continued dominance of equality discourse and the 16 17

Gunning, "Arrogant Perception, World-TravelIing and Multicultural Feminism: The Case ofFemale Genital Surgeries" (1992) 23 Colum Hum Rts L Re\! 189. Connors, "Mainstreaming Gender Within tbe Intemational Framework", paper delivered al British Council Conference, Law and the Social Inclusion of Women, February 1996, University ofWarwick, United Kingdom, p16.

(1991) 19 Adel LR 13-24

19

denial of women' s rights in other areas, especially those of economic and social rights inc1uding the impact of structural adjustment, globalisation of the econorny, cultural and other difference. Similarly, with the war crimes tribunal, focus on the systematic and massive commission of rape in just two contexts, the Former Yugoslavia and Rwanda, deflects attention from the ongoing regular incidence of rape in all armed conflict, which is still barely noticed let alone addressed as violative of the laws of war. It al so underrnines the many other ways in which women experience war and conflict differently from men, and gives the impression that intemationallaw now takes "women and war" seriously. Advocacy for the advancement of women has moved in these years onto the intemationaI human rights agenda, away from its 1980s Iocation in deveIopment. This has brought "women" into intemationallaw, but human rights is only one branch of intemationallaw and an ofien marginalised one. Its demands, especially those for econornic and social justice, are frequently subjugated lO other demands of the intemational order, as was seen for example at Dayton. 18 Another example is the resistance of GA TI Panels to promoting the linkage between intemational trade law and human rights, for example in situations of exploitative, unregulated labour practices. But even within human rights discourse women's issues have been fudged. The Beijing Declaration and Platform for Action is not a human rights document, nor is the Declaration on the Elimination of Violence. At Beijing, human rights was only one of the twelve critical areas of concem, and it is still open to argument whether other sections carry even the moral authority of human rights language. The binding legal instrument, CEDA W, remains subject to destructive reservations. The paradigm of equality still prevails and restricts the vis ion of women' s rights to the attainment of the same rights as similarly situated men, as defined through male experiences. It is still a rnistake to underestimate the hostility of traditionaI. often well-intentioned, human rights lawyers to what they perceive as a weakening of the traditional parameters of human rights law, and this is occurring at a time when human rights lawyers themselves feel under siege. For example, the American Bar Association (ABA) vigorously attacked the ruling of the Tribunal on anonymity of victims and witnesses on the basis of its undermining of the accused' s right to a fair trial. The Australian Judge in the Chamber, Sir Ninian Stephen, dissented on similar grounds. A synopsis of the ABA position is seen in the April 1996 AJ/L in an editorial by Monroe Leigh. Leigh argues that the Tribunal must "establish itself as the preeminent defender of human rights and particularly of the right of every accused lo a fair trial according to the

18

The General Framework Agreement for Peaee in Bosnia and Herzegovina (the Dayton Peace Accords), initialled Dayton, Ohio. 21 November 1995, signed Paris, 14 December 1995, rep (1996) 35 ILM 15. Although the Peace Accords inelude extensive requirements and meehanisms for human rights proteetion. eonstitutional reeognition oC the two Entities. the Federation of Bosnia and Herzegovina and Ihe Republika Srpska, as well as the Republie of Bosnia and Herzegovina, gives effect to war aims, especially oC the Bosnian Serbs; see Sloan, "The Dayton Peaee Agreement: Human Rights Guarantees and their lmplementation" (1996) 1 EJIL 201.

20

CHINKIN - FEMINIST INTERVENTIONS

most exacting standards of due process required by contemporary intemational law".19 His argument conspicuously fails to engage with (he reality that women typically feature in a criminal trial as victirns and witnesses, while many more men than women feature as accused. Rape remains widely unreported and convictions are hard to secure in national criminal courts, let alone in intemational tribunals. It is unsurprising that the guarantee of a fair trial is seen by many as an absolute right that must not be balanced against other rights su eh as those of the victim and potential victims. The decision is not a blanket assertion of anonyrnity and incorporates safeguards and criteria to be satísfíed befo re according anonymity, but these were not sufficient to assuage the concems. This reaction is a salutary reminder that where there are conflicting human rights the balance will not often come down in favour of women, and where it does (as in the Tribunal's decision) it provokes strong dissent. There is another concem about the Tribunal that is also raised by the campaign for an optional protocol to CEDAW: that is whether adjudicative (or quasi-adjudicative) strategies that highlight individual behaviour (either as complainant or accused) can be effective where there is a systemic power imbalance and disadvantage to women. The complexity of the multilayered concept of rights and its utility for achieving the advancernent of women have long concerned feminists. Taken alone rights strategies cannot be sufficient, but nevertheless 1 believe there remains a symbolism to the legal assertion of rights that underlines both their legitimacy and moral value. Acceptance of an optional protocol to CEDAW would also pro mote the development of a women-centred jurisprudence that is especiaI1y important in a decentralised legal system with no formal legislative power. It would also put CEDA W on a par with the other human rights treaty bodies and enhance its authority. This rnight (hen facilitate further educati ve and reporting functions_ Another continued point of hostility to feminist incursions has been the assenion of state responsibility for private abuse of rights where the state has failed to eKercise due diligence to protect against such violence. This was an especially important aspect of the campaign against gender-specific violence. Such an inroad has apparently been accepted for polítical disappearances and arbitrary executions, as aniculated in the Velasquez case. 20 But as explained by the Special Rapponeur on Disappearances, these are traumas that occur most frequent1y to men as a consequence of their greater involvement in political, public life. 21 There appears to be greater resistance to the same extension of liability for acts of violence committed in private against women. These are still too often dismissed as culturaI1y based, trivial or justifiable. The attitude within mainstream human rights discourse is one of great reluctance towards extending human rights doctrines to embrace women' s experiences. This attitude also serves to exclude new human rights abuses. Such 19 20 21

Leigh, UThe Yugoslav Tribunal: Use of Unnamed Witnesses Againsl Accused" (1996) 90 AJIL 235 al 237; Chinkin, "Due Process and Witness Anonyrnity" (1997) 91 AJIL 75. Velasquez Rodriguez v Honduras rep (1989) 28 ILM 294. UN doc ElCN.4/1994n paras 715-716.

(1997) 19 Adel LR 13-24

21

W1willingness to extend the parameters of human rights law does that law a disservice by failing lo acknowledge its dynamism and tenacity. It also rejects the transformative potential of reconceiving state responsibility for the greater guarantee of rights of a11 persons in a wide range of very different private relations. For example, police connivance at gay bashing, or abuse of indigenous persons by private individual s would be more easily recognised and labelled as human rights concerns. Another aspect of responsibility for private action comes from the increasing privatisation of state activity and economic deregulation in pursuit of free market.. The traditional objective of human rights law in protecting individuals against wrongful state intervention becomes less relevant where governments are promoting non-interventionist policies and abdicating public responsibilities by transferring essential services to the private sector, for example prisons, health care, numeraus areas of employment, and even benefits systems. In Eastern Europe transition to the free market has been accompanied by impoverishment, corruption and crime, including a staggering growth in trafficking in women and children. Dismantling government regulatory frameworks has left a vacuum that is destructive of economic and social justice. The feminist debate as to the impact of the liberal public/private divide on the protection of women's rights is made more complex by this shifting boundary of the private sector with its potential for physical and economic exploitation and abuse, especialIy of the most vulnerable. In developing strategies lo deal with lhis growing encraachment on human rights protection, people such as ourselves who have leamed to take many rights for granted (for example paid workplace rights) should listen to and leam from those who have long been subject to many diverse foems of economic exploitation, inc1uding forced prostitution and trafficking. We have been complicitous in our role as consumers seeking out lower prices, but exploitative work practices make c1aims for equality in the paid work force seem farcical. The dichotomy between paid and unpaid work which was last recognised at Beijing is also too stark in (hese contexts that blur such distinctions. AH (hese areas require further feminist explorations. Yet while slates are transforrning their obligations internalIy this has nol been mirrored externa11y where legal principies of sovereignty and statehood have been maintained, despite the pressures on them that 1 mentioned at the outset. The feminist project has not been seen by international lawyers and decision-makers as part of the mutating internationallegal order but as essentia11y appertaining to women's rights (which can be sidelined along with other human rights). Despite important feminist writings there has not been any radical change in intemational legal structures, sources, methodologies or substance that takes account of them. Feminist interventions in such areas as sovereignty, the powers of (he Security Council and the UN in general, the laws of war, intemational economic law, democracy, disarmament, the use of force and the attainment of peace, the meaning of nalional and colIective security, self-determination, the impact of economic sanctions, and the construction of citizenship (much of it by people at this conference) have had too liule impact and are stilllargely ignored in mainstream and new approaches

22

CHINKIN - FEMINIST INTERVENTIONS

writing, apart from the occasional footnote. I will give one example from the academic arena: Tbomas Franck's work on faimess in intemationallaw.22 This is a subject that one might have thought demanded inclusion of such interests but it is nevertheless silent on feminist interventions. It is perhaps unfair to single out one work, but this book is by a leading, authoritative figure who is attempting to appraise ways in which the fonnal legal system provides for fair and equitable outcomes. He has also been personally supportive of the feminist project and appears open to such critiques, but they are apparently not even for scrutiny in his own work. The same attitude prevails within institutional structures. The General Assembly Declaration on the Elimination of Violence against Women is not perceived in its broader context of inter-state violence. Women were advised at Beijing that this was not che appropriate forum to make proposals with respect to macro-economic issues, resources for development, or peace and disarmament issues. These "important" issues would be advanced elsewhere, that is in male dominated or exclusive arenas. In the words of Janet Hunt, "while women could negotiate on health, education, and other 'social' issues, it seems it is still not intemationaIly legitimate for us to negotiate in these 'tougher' areas" .23 Yet these are areas where many women have personal experience, ha ve developed expertise and can make valuable contributions. Perhaps a few comments on the sources of international law might extend this point further, as well as drawing the connection with the participants for change. Much of the progress that I outlined earlier has been NGO driven, ofien with either an academic base or with collaboration between NGOs and the academy. The maximising of resources through detennination of the most effective ways to bridge the gap between the two for Ihe development of further strategies is another topic for ongoing discussion. Despite statements of support for the benefits of intemational civil society, for example by the Secretary-GeneraI who has described its emergence as a means of engaging in dialogue with the governance lo which the corrununity belongs,24 there is Hule opportunity for such dialogue in Ihe internalional legal system. Opportunities for intervention Ihat lead to changes in the fonnal, undisputed sources of law remain strongly under state control. NGOs are excluded from the processes of intemational law-making unless admitted by states, and from any fonn of dialogue in intemational proceedings before the Intemational Court of Justice by the tenns of its Statute. Although the drive, energy and innovative thinking on the optional protocol to CEDA W carne from NGOs and independent academics, any decision on its final text and institutional acceptance will be taken by intergovernmental bodies, namely the Cornmission on the Status ofWomen and ECOSOC. 22 23 24

Franck. Faimess in International Law and lnstitutions (Oxford University Press, New York 1995). Hunt, "Retlections on Beijing" (1996) 6 Aust Feminist U 39 at 40. Repon of!he Secretary-General on the General Review of Arrangements for Consultation with Non-Government Organisations, UN doc E/AC.701I994/5, 15 June 1994, prepared in accordance with ECOSOC decision 1993(214.

(1997) 19 Adel LR 13-24

23

It will ultimately rest with states whether they choose to become parties or not. NGO representation on official delegations for treaty and other negotiations has increased. Their treaty monitoring and implementing role has al50 been acknowledged, for example in the Beijing Platforrn for Action. Nevertheless. states remain the agents for the conclusion of international commitments, including most so-called soft law instruments. Similarly. despite feminist analyses of the intemal multiple agencies of the state, extemally it is still perceived as a monolithic entity acting with a single purpose and speaking wilh a single voice for the purpose of assessing state practice as a constituent element of customary intemational law, and it is not a feminist defined purpose or a female voice. The traditional sources of intemational law are conservative forces of retention of the status quo, but they retain a tight grip on intemationallaw-making.

Throughout the summits the consistent recommendation has been that of empowering women through equalising (or at least improving) women's participation in national and intemational policy-making bodies. This too is indicative of an "add women and stir" approach, providing the forro bul not the substance of inclusive democratic decisionmaking. While broader participation would give the appearance of greater equity, there is no guarantee that it would lead lo changed decisions and more genuine gender-awareness, or enhanced transparency and accountability. It does nOl cha11enge the structural role of the bodies themselves. Women appointed (or elected) to such positions would also have to learn the language and processes of the bureaucracies, no easy task in the case of the United Nations and its various agencies. Feminists would also have to face the probably inevitable conflict between "selling out" or remaining marginalised in a replay of the debates about femocrats within the national state bureaucracy. There is al so the danger that a more formal role for intemational civil society, for example through NGO participation in intemational decision-making bodies, might entrench the bias in favour of westem NGOs with their greater financial and other resources. This could favour their agendas and priorities and lead to still further alienation and marginalisation of those that operate at grass roots levels in the various societies. This concem about "Whose feminist agenda?" that was widely expressed at Vienna was to sorne extend arneliorated at Beijing where for example poverty was made the first critical area of concem. However, the provisions on poverty and the related issues of multilateral debt and structural adjustment are inadequate. They do not challenge the assumption that structural adjustment, trade liberalisation and global capitalism are in the long term beneficial for a11. They only tentatively suggest aid measures from developed countries and international agencies, and thus do linle to address issues of redistributive justice. Women must work for greater inc1usivity within their own networking and policy-making processes to ensure that cultural and other differences are treated with respect and openness in determining their own priorities so that these values are transported to national and intemational arenas. In the context of the so-caBed post-feminist era of Australian society, it was argued that "[t]o become responsive to difference, and supportive of

24

CHINK1N - FEMINIST INTERVENTIONS

feminist campaigns around issues which affect either aH or sorne women is essential".25 The same is true for international feminists in this post Cold War international order. Perhaps we as women need to talk more about our responsibilities as well as our rights. Finally, ferninist interventions into intemationallaw can only have lasting impact if they are brought into domestic law and policy-making. Here coHaboration between academics, activists and those in national positions of authority is essential. We need to study the language of intemational documents, draw upon analogies and strategies in other areas of intemational law that can be crafted to our benefít and bring these to the attention of aH branches of govemment and the courts. We need to work to hold our governments to their public statements and to remind foreign govemments of their promises. As academics we must hope that someone might grasp our messages. In the words of Hilary Charlesworth: "If women can achieve both inclusion in the mainstream of the international governmental arena to chaHenge male-defined understandings of global problerns and achieve the national translation of intemational commitrnents conceming wornen, business can never be the same again."26 What we have done so far is take the fírst steps. Understanding their Iirnitations is not to diseount them, but to seek to build upon them. Our work today must be both retrospective and forward-Iooking in determining continuing transformation approaches to intemational law for the benefit of all disadvantaged persons within the intemational arena.

25 26

Hughes, "Introduction" in Hughes (ed), Contemporary Australian Feminism (Longman Cheshire, Melbourne 1994) plO. Charlesworth, Keynote Speech, Sillth lnternational Interdisciplinary Congress on Women, Adelaide 23 April 1996.

Barbara Cummings,· Jenny Blokland"· and Rebecca La Forgia···

LESSONS FROM THE STOLEN GENERATIONS LITIGATION INTRODUCTION he Northem Territory Stolen Generations litigation in volved two cases reserved before the High Court: Kruger, Muir, Cole, Hansen, HilL, McClary v Commonwealth;l Bray v Commonwealth. 2 Oral arguments were presented in February 1996. The decision is yet to be delivered. 3 The central focus of the case is the invalidity of the Aboriginals Ordinance 1918 (Cth). This Ordinance gave the Chief Protector power to separate Aboriginal children from their mothers, family and community. The plaintiffs argued that this was beyond the legislative power conferred under the Constitution. The circumstances of the "Sto len Generations" raise issues of relevance to feminism and intemational law. This artide highlights those issues and discusses the strategies employed by the Stolen Generations Group in the utilisation of legal remedies.

T

mSTORICAL CONTEXT In 1911 the Cornmonwealth Government assumed control of the Northem Territory from South Australia. It commissioned anthropologist Baldwin Spencer to make recommendations about the "difficult problem" of control of the Northem Territory' s Aboriginal population. 4

... ** *** 1 2 3

4

Hislorian; Member, Slolen Generations (NT) Group. LLB. LLM (Adel); Senior Lecturer. FacuIty of Law, Northem Territory University. LLB (Hons) (Adel), LLM (Camb); Lecturer, Faculty of Law, Northern Territory Universily. FiJe No M021/95. File No D005/95. Since the completion of this artiele the decision in Kruger v Commonwealth; Bra)' v Commonwealth has been handed down. lt IS reporled in (1997) 146 ALR 126. The majority of the Coun held that the Aboriginals Ordinance 1918 (Cth) was not an invalid exercise of the Territories power contained in s122 of!he Constitution. The reasoning of Ihe Court varied in relation lO arguments based on implied rights and the separation of powers, however the Court was unanimous in deciding tha! the Ordinance did no! au!horise genocide. In contras! lO the High Court decision, lhe Repon of the National /nquiry into the Separatíon of Aboriginal and Torres Strait Islander Children fmm Their Fami/íes reJeased in May 1997 found thal the actions taken under Ihe Aboriginals Ordinance 1918 did amount to genocide. The repon contained wide ranging recommendations and personal testimony from those who had been affected by the policies of forced removal. Spencer. "Preliminary Report on the Aboriginals of the Nonhem Territory" in Repon of the Administrator for the Year 1912.

CUMMINGS, BLOKLAND & LA FORGIA - STOLEN GENERATIONS

26

Spencer made recornmendations regarding the removal of children. His view was that it was only the children of mixed Aboriginal deseent who should be removed. His analysis of the aneestry of the children was as follows: In practically all cases, the mother is a full-blooded Aboriginal. The Cather

may be a white man, a Chinese, a Japanese, a Malay or a Filipino. The mother is oC very low intellectual grade, while the father most often belongs to the eourser and more unrefined members ofthe higher raees. 5 Speneer eoneluded that the ehildren of sueh unions were unlikely, in most cases, "to be of much greater intellectual calibre than those Aboriginal ehildren of full descent".6 The essenee of Spencer's recommendations were given legislative effect in the Aboriginals Ordinance 1918 (Cth). Section 16(1) provided (in part) as follows: The ChieC Protector may cause any aboriginal or half-caste to be kept within the boundaries oC any reserve or aboriginal institution or to be removed to and kept within the boundaries of any reserve or aboriginal institution. This provision refleets a policy which the Stolen Generations (NT) Group has eharaeterised as genoeide perpetrated against Aboriginal people. It is argued here that it was a policy of genoeide partieularly directed towards women. Its effects continue to the present,7 Seetion 16 oC the Aboriginals Ordinance 1918 (Cth) was diseretionary. The diseretion led to a partieularly brutal operation of the section. Not all children were removed. Terms such as "halC caste" and "quadroon" were adopted by the authorities to elassify the children. The white authorities were primarily interested in children of rnixed Aboriginal deseent. The idea was that children of rnixed Aboriginal deseent were "dangerous" if left in Aboriginal eommunities because their white blood would make them natural leaders. Conversely, the same white blood also meant that half eastes could be given rudimentary education and placed in harmless menial jobs. New white settlers in Ihe Northem Territory, particularly public servants, were provided wilh women and girls of mixed Aboriginal deseent as domestics. 5 6 7

At 41. As aboye. This legislation had equivalents in most states: Aborigines Acr 1911 (SA); Aborigines Act 1934-62 (SA); Aborigines (Protection) Act 1869 (Vic); Aborigines Protection Act 1886 (Vic); Aborigines Act 1890 (Vic); Aborigines Act 1915 (Vic); Aborigines Act 1928-57 (Vi e); Aborigines Protection Act 1886-1905 (WA); Aborigines Act 1897-1905 (WA); Native Welfare Act 1905-1954 (WA); Aboriginals Protection and Restriction 01 Sale 01 Opium Act 1897-1939 (Qld); Aboriginals Preservation and Protection Act 1939-1946 (Qld); Aborigines Protection Act 1909-1943 (NSW).

(1997) 19 Adel LR 25-44

27

It was females who posed the real threat of miscegenation which led to the gender specific direction of the removal policy. Jt was presumed that half caste boys would only intermarry with Aboriginal girls and it was also presumed white men would find "half caste" women more attractive than "full blood" women, thus increasing the extent of the "coloured problem". In 1928 it was reported that out of 76 Aboriginal people removed from various parts of the Northem Territory and housed at Kahlin compound in Darwin, 56 were female and 20 were male. 8 Another gender impact of the removals was that cbildren were separated from their Aboriginal mothers. Usually, but not always, their white fathers bad already moved on.

The main public justification for the poliey was that the ehildren removed needed "protection". A survey of official correspondence at the time indicates that on the whole what most patrol officers thought children needed protection from was their mother' s culture. The "protection" from Aboriginal culture was said to be best for the children's welfare and to protect tbem from immorality. However, if protection was tbe basis for the removals, apparently "full blood" Aboriginal children did nol need such protection. Post 1957 After the repeal of the Aboriginals Ordinance 1918 (Cth), the Welfare Ordinance 1953 (Cth) was introduced. The Welfare Ordinance was carefully phrased so thal it did nol refer to Aboriginal people explicitly. However, in its operation it applied only to tbem. The Welfare Ordinance set out new criteria to allow for the remo val of ehildren, in effeet Aboriginal children, from their fanúlies. A declaration of ward status (the legal basis for a removal) was assessed according to the following eriteria: a person's manner of living; their inability without assistance to manage adequately their own affairs; their standard of social babit and behaviour; and their personal associations. A person eould not be declared a ward if tbey were eligible to vote or would become so on tuming twenty one. At the time, no Aboriginal person was eligible to vote. Aboriginal women, who themselves had been removed from tbeir mothers, were vulnerable to the application of the wardship criteria to their own children. Years of institutionalisation for Aboriginal women resulted in many women having no permanent accommodation. Further, many lacked skills for employment and lacked tbe support of association with Aboriginal kin. These factors combined to ensure the eontinuation of the genocidal policy of remo val to the present.

8

Aust, Parl (Report by Bleakley) The Aboriginals and HalfCastes ofCentral Australia and the Nonhem Territory (1928) p14.

28

CUMMINGS, BLOKLAND & LA FORGIA - STOLEN GENERA TIONS

Julia's Story9 Julia' s mother was an Aboriginal woman and her father was a member of a white family with a high profile in the Northern Territory. Julia Jjved with her mother in a group based on the fringes of a town but also moving around the country in the area. Sorne members of this group were survivors who as children had seen their families decimated in a series of related massacres about ten or eleven years before Julia was bom in about 1939. Over 100 people including small children are now known to have died in these massacres, which were officially investigated but whitewashed at the time. The group was intensely fearfu1 of white people, particu1arly police, and Julia remembers them talking about the mas sacres a11 the time. The group felt safer coming in than staying out in the bush, where anything could happen and no-one would know or careo In about 1945 Julia and other children of mixed Aboriginal descent from Julia's group were rounded up from the vicinity of the town by a patro1 officer and walked to a mission about 40 kilometres away. The mother of one of the children later told Julia and others that sorne adults believed that the children were safer from white depredation at the mission, and so it was perceived al least by sorne as not a whol1y bad thing lhat lhey were there. The children began lo go to school there, which Julia enjoyed, bUl were ab1e lo keep up conlact with their mothers and others who camped so as to be near their children, and in fact saw them more or less every day although the missionaries limited their contact with Aboriginal people. Ceremony continued in the area although the missionaries forbade it and attempted to suppress it. The children could hear the sounds of ceremony taking place in the distance. They were tald then and later that ceremony, dance, song and their own language were heathen and wicked. and mention of them was punishable. In 1946, as post-war conditions were being re-established, the Northern Territory Administration recommenced systematic removal. The mothers of the children at the mission were told that the children were to go to schooI somewhere else, and clothes were made for them by two of the women working at the mission. The mothers were not alarmed because they were used to the children living in the donnitories and going to school while still having contact with them and being visible most of the day. Until the day the children were actually taken they didn't envisage the children vanishing permanently to an unimaginably distant place and it was too late when they realised, just before the children left, that something unforeseen and disastrous was happening. None of these mothers spake standard English and mast had either very little Aboriginal English or none. Sorne of the mothers have said that the day the patrol officer and a woman missionary arrived to remove them they were tald that the children were going on a 9

Personal communicatian lo Barbara Cummings. Also reproduced in NAALAS Stolen Generations LitigaLion Uoil. Submission, Complaint Regarding the Commonwealrh Arrangements for the "Nationallnquiry lnto Separation of Aboriginal and Torres Strait lslander Childrenfrom their Families" (1996) pIS. Copy 00 file with authors.

(1997) 19 Adel LR 25-44

29

picnic, something they were used to. The children got ready in the same way as they would have done for a picnic. "We were tricked" one mother said afterwards and others agree. The children who rernember the events also testify that they thought they were going on a picnic. Sixteen children, all related in one way or another, were removed from the mission on a day Julia has never forgolten. The assembled children were loaded into the truck very suddenly and their things thrown in hastily after them. The suddenness and the suppressed air of tension shocked the mothers and the children and they realised something was seriously wrong. Everything was confused and happening very fast. Children began lo cry and the mothers to wail and cut themselves. Julia remembers there being blood everywhere. The tailgate was slammed shut and bolted and the truck screeched off with things still hanging over the back and mothers and other children running after it crying and wailing. The children themselves were terrified. Later Julia's mother, when asked why she cut herself and wailed, told Julia (in Julia's words): "That was sorrow about youse being taken from uSo To us you were all dead, and now we won't see you again." This was the start of a 1000 kilometre trip from the edge of the desert straightto the sea. Julia's group was very different from most of the other children in the horne they went to. Many of the other children were fairer and had grown up in and around the town. Julia is very clear that her group's colour and their closeness lo Iraditionalliving was despised and punished by Ihe missionaries. They were discriminaled against in every way by Ihe rnissionaries, who expected the older ones including Julia to perfonn hard and unpleasant menial work daily from the time they arrived, never rewarded them for anything including any success they had at school, never believed their version of events, and punished them savagely for misdemeanours for which other children were not necessarily punished. Bealings by hand, stick or strap were common. Their language was suppressed and their position as inferior was constantly reinforced verbally as well as by the work they were given, the privileges they were not given and other means. They had no-one to protecl them or speak for them and their powerIessness invaded Iheir lives and undennined their sense of self-worth. AII the children from Ihe inslitution were bussed to Ihe public school in town. Julia loved school, where she did well, although behind her age range because she had started late. She was dux of her primary school and won prizes in high school. She wanted desperately lo continue at school and her teachers were always very supportive, but she was inslead put lo work in the institution nursery about the time she tumed fifteen. Most of the children left the institution virtually devoid of self-esteem and life ski lis, and the situation was intensified for them by the fact that they had absolutely nowhere to go when they left: no family, no extended network, no country, except so far away in time and

30

CUMMINGS, BLOKLAND & LA FORGIA - STOLEN GENERA TlONS

space, and so additionalIy distanced by missionary indoctrination that they had no idea what these might offer them. Julia eontracted a marriage beeause, as she later said, she felt it would be a way to become independent of the missionaries and would give her her own life. At that time she knew very little about life oulside the horne, nothing aboul family Jife and nOlhing about relationships with meno Her marriage was unhappy and she continued to have to work hard at menial jobs in order to support the farnily. A couple of years after her marriage she decided she had to leave it. She was unable to go to the only relatives she knew about, so she approached the mission asking if she could leave her child there in order to talce a livein job she was hoping to gel. Her plan was to wait until she could get a place of her own and Ihen get her child back. Despite Julia telling the woman missionary, the same one who had partieipated in the removal of the ehildren, about the desperation of her eireumstanees the missionary refused lo help her and t(¡ld her she had lo go baek to her husband. Julia could see no other possible kind of support available and went back to her marriage for another 37 years or so until her husband died. As the story of Julia shows, the effects of removals do not stop when a young woman walks out of the mission gates. The effects stay with that woman all of her life. They are passed on to her family. But the ongoing effects are not just personal, they are al so institutional. RECURRING THEMES IN THE HIGH COURT LITIGA TlON - AN OPPORTUNITY TO BE HEARD The level of abstraetion at whieh legal arguments were made in Kruger v Commonwealth masks the tragedy as retold by Julia and other members of the Stolen Generations (ND Group. This is illustrated as follows: McHugh J: But supposing it was done by consent of their parents, that it was an informed decision, that the mothers wanted the ehildren to go away after it had been explained. 1 am not sure that you have not talcen on a large burden on yourselves in this particular case. 10 Alee Kruger (plaintiff in the Sto len Generations Iitigation): They just come down and say, "We talcing these kids". They just talce you out of your mother's arms. That's what they done to me. 1 was still at my mother' s breast when they took me. 11 10 11

Kruger v Commonwealth. transcript of argument, 12 February 1996, p26. MacDonald, Between Two Worlds (lAD Press, Alice Springs 1995) p15.

(1997) 19 Adel LR 25-44

31

This difference between the reality of women's lives and the legal abstraction of intemationallaw has been one of the reasons given by Hilary eharlesworth for the absence of women from intemational law in the past. 12 One of the purposes of feminist interventions has, therefore, been to question assumptions of objectivity and the core rational values that intemational law is constructed around. 13 This is al so the strategy of the Stolen Generations litigation: deconstructing and reconstructing eonstitutional theory so that Aboriginal people's lives and the harro of separation are taken seriously. The multi-dimensional nature of a case such as Kruger may mean that specific gendered arguments are lost in the overall process. Whether the particular gender impaet of the separation policies could be considered by the eourt by presentation of an arnicus curiae brief is problernatic in Australian law. ''The willingness of courts to listen to interveners is a reflection of the value that judges attach to people."14 In Australian law, there exists a sharp distinction between the intervener, who must demonstrate a proprietary, material or financial interest to be granted intervener status, and the arnicus curiae (friend of the coun) who rnay be given permission to make submissions. The test to be able to make submissions as arnicus curiae is strict, as can be seen in Kruger itself.l s At the outset of Kruger, the Intemational eornrnission of Jurists (leJ) was refused leave 10 appear as arnieus. The lel had sought to make subrnissions on fundamental constitutional freedoms, protection of the family from undue state interference, and the intemational obligation on states to ensure effective remedies when the state is in breach of intemational human rights instrurnents.l 6 The Court refused the ICJ's application as it found there was no indication that the parties were unable or unwilling adequately to protect their own interests, nor that the intervention would assist the Coun to come to the correet determination. 17 Of the lel' s written submission, it must be said that most of the subjects covered were eomprehensively dea1t with by the parties, save the leJ's proposed brief submission on the obligation at intemational law on states to provide a remedy for breaehes of human rights.l s The issue of effeetive remedies remains problematic for the Stolen Generations 12 13 14

15

16 17 18

Charlesworth, "Alienating Osear" in Dallmeyer (ed), Reconceiving Reality: Women and fntemational Law (Studies in Transnational Legal Policy No 25, American Society of International Law, Washington OC 1993) p2. Al p12. Counsel for the Jnternational Commission of Jurists in Kruger v Commonwealrh, transcript of argumenl, 12 February 1996, p7, referring to Webster v Reproductíve Health Services 492 US 490 al 522 (1988). Kruger, transcript, 12 February 1996, p12. See a1so Bropho v Tickner (1993) 40 FCR 165 al 171-172 per Wilcox J; Australian Railways Union v Victo rían Railways Commissioners (1930) 44 CLR 319 at 331 per Dixon J; Australian Law Refonn Commission, Standing in Public fnterest Litigation (Report No 27, 1985). Kruger, Amended Submissions of the Inlernalional Commission of Jurists (Australian Section) On the Questions Reserved ppl-12. Kruger, transcripl p12. As aboye, fn16, p12. JI is argued in this artiele thal common law remedies in the Stolen Generations (NT) case could be infonned by inlernationallaw.

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CUMMINGS. BLOKLAND & LA FOROlA - STOLEN GENERATIONS

(NT) Group. Any civil proceedings may be barred by statutes of limitation 19 and because the type of harrn suffered by the children and mothers is not easily accommodated by way of damages in common law remedies, a victor)' in the courts may not deliver appropriate redress. An Australian court would be dealing with distinctively new heads of damage in Stolen Generations litigation. In jurisdictions which readily permit arnicus briefs. or the granting of formal intervener status, cases which reveal the supposedly quintessential "women's" legal issues such as abortion and sexual assault are frequently represented. 20 Even in the more restrictive Australian context the High Court recently granted arnicus status to the Catholic Health Care Association and Abortion Providers Federation of Australia in a medical negligence case for alleged failure to diagnose pregnancy.21 At the heart of feministjurisprudence, including its engagement with intemationallaw, is the identification of the experiences of women. In cases of constitutional challenge. those experiences may nOl be placed before a court by virtue of the balance of convenience favouring the preliminary resolution of questions of law taking the facts at their "highest" or leaving resolution of any factual dispute. If the constitutional issues are capable of resolution without the evidence, it iscurious that McHugh J, in the context of an exchange with counsel conceming the right to freedom of association stated: "This is where 1 feel the lack of evidence in this particular case because there is just no evidence as to what these children were deprived of in general terms or what they may have gained. How do we fill that gap?"22 Counsel answered: "We cannot fill it with evidence, your Honour." It is suggested that an amicus brief directed at bringing issues of relevance to the women would seek to keep the questions as widely drawn as possible and would attempt to persuade the court to hear the evidence, the experiences of the plaintiffs. even against the balance of convenience. 23

19 20

21 22

23

There is disagreement on whether the limitation statute of the state or territory in which the proceedings were issued applies or whether the statule of the place of commission of the tan applies. See. Cor example, the following cases in Canada in which the Women's Legal Educatian and Action Fund (LEAF) intervened: Norberg v Wynrib (1992) 92 DLR (4th) 449 (consenl in the conlext oC sexual activily in lhe medical setting); Moge v Moge (1992) 99 DLR (4th) 456 (maintenance); Schachter v The Queen and Canada Employment and Immigration Commission (1988) 52 DLR (4th) 524 (challenge lO matemity leave). "Abonian: The Mum who Holds the Key"; "Abanion Rights and Wrongs". The Weekend Australian, 21-22 September 1996, ppl, 21. This case was settled prior to argument on the merits. Kruger. transcript p62. In the directions hearing it had been determined that the trial on the constitutional issues be examined befare any of the evidence: Kruger v Commonwealth; Bray v Commonwealth [1995] 69 ALJR 885.

(1997) 19 Adel LR25-44

33

GENOCIDE It is eurious that the eharacterisation of the Aboriginals Ordinance 1918 (Cth) and eonsequent aets as "genocide", whieh has so long been a part of the publie debate raised by the Stolen Generations (NT) Group,24 was not part of the oral argument before the Court. This was despite genoeide being dealt with extensively in the plaintiff's written submission 25 and responded to by the Cornmonwealth. 26

The specifie operation of the separation poliey aetually developed distinctions with more precision than "half caste". Operationally, whether someone was a "half easte" with less than half white blood, a "half easte" with more than half white blood, a "quadroon" or an "octoroon" determined not only whether they were taken but also where they were sent. Generally (and there were exceptions), if a person had less than half white blood they were not taken. If they had less than half blaek blood but not "quadroon" they were sent to one of the remote island missions. If they were "quadroon" or "octoroon" lhey were likely lo end up in a town-based miss ion or moved out of the Northern Territory to a southern state. The administrative enunciation of this policy is set out in the 1928 Bleakley Report.27 The full implementation of separation began arter World War 11, that ¡s, after Australia had ratified the Genoeide Convention. Artiele II of the Convention on the Prevention and Punishment of the Crime of Genocide,28 adopted by the UN General Assembly on 9 Deeember 1948 and ratified by Australia by legislation in July 1949, defmes aets of genocide as: any of the following acts cornmitted with the intent to destroy, in whole or in part, any national, ethnical, racial or religious group, as sueh:

24

(a)

Killing members of the group;

(b)

Causing serious bodily or mental harrn to members of the group;

(e)

Deliberately inflieting on the group conditions of life calculated to bring about its physieal destruction in whole or in part;

(d)

Imposing measures designed to prevent births within the group;

Katona, "We've Been Waiting AH Our Lives for This", address delivered to the National

Press Club, Canberra, 13 February 1996. 25 26 27 28

Kruger, Plaintiffs' Submissions pp63-67. "Fundamental Rights and Genocide", Kruger, Respondent's Submissions pp62-64. As above, fu8. (1951) 78 UNTS 277.

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CUMMINGS, BLOKLAND & LA FORGIA - STOLEN GENERATIONS

(e)

Forcibly transferring ehildren of the group to another group.

We would argue that the removal poliey is genoeide within more than one artic1e of this defmition. Not only is it genoeide but, it is asserted here, it is genoeide with a particular gender focus. The activities of government were directed particularly towards women. The reliance on Artic1e II(d) and (e) of the Genoeide Convention (imposing measures intended to prevent births and forcible transfer of children of a group to another group) in the plaintiff's written subrnission raised an issue which indicated hann specificalIy towards women. 29 The Cornmonwealth's subrnissions indicated that lack of intent would be argued to counter the genocide c1aim. 30 It was argued that the issue of genocide would be the subject of evidence, thus incapable of being raised in the context of the constitutional challenge. The controversy over the issue of "intent" within the Genocide Convention is well recognised. 31 A dominant view is that it must be shown that the aets comprising the genoeide be committed "with intent to destroy, in whole or in part" the group. It is suggested here that despite the difficulty of proving intent and consequentially genocide under the Convention, it is important to keep the characterisation of the aets of removal of ehildren in the Stolen Generations litigation as aets of genocide alive. The loss suffered by the Stolen Generations can be more easily understood and retlected in an appropriate remedy if the wrongs perpetrated are seen as genocide, or de facto genocide. 32 The Stolen Generations (NT) Group has deseribed the nature of the loss as follows: 33 For the mothers whose children were stolen, this meant: Loss of association, inc1uding cultural association, with her child.

29 30 31

32

33

Kruger, Plaintiffs' Submissions p63. Kruger, Respondent's Submissions p64. Slarkman , "Genocide and Intemational Law: Is There a Cause of Action?" (1984) 8 ASILS ¡nr'l U 1; Le Blanc, "The Intent to Destroy Groups in the Genocide Convention: The Proposed US Understanding" (1984) 78 AJIL 369; Clark, "Does the Genocide Convention Go Far Enough? Some Thoughls on the Nature of Criminal Genocide in the Context of Indonesia's Invasion ofEast Timor" (1981) 8 Ohio NUL Rev 321. It is noled that Special Rapporleur Theo van Boven reCers to "genocide, slavery and slavery-like practices" in UN Commission on Human Righls, Sub-Commission on Prevention of Discrimination and Protection of Minorities, Sludy Conceming Ihe Righl lo Restituríon, Compensarían and Rehabilitarion lor Viclims 01 Gross Violations 01 Human Rights and Fundamental Freedoms, Final Report, PJCN.4/Sub.2/1993/8, 2 July 1993 p7, as reproduced in Stolen Generalions (NT), Suhmission to the Human Rights Commission Inquiry into Separatian 01 Ahariginal and Torres Strait ¡slander Children, 29 July 1996. As aboye, fn24.

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•

35

Loss of cultural experience and fulfilment in respect of her child. Loss of maternal experience and fulfilment, and other rights and entitlements associated with motherhood and the rearing of a child. Pain, suffering and mental anguish.

For the children taken away this meant: •

Loss of association with parents, farnily culture and comrnunity. Loss of cultural experience, fulfiIment and spiritual affiliations. Loss of amenities and opportunities for education; formation of personal relationships with family and community; personal freedom and other opportunities of life because of institutionalisation in a different cultural and racial environment to that into which they were born.

•

Pain, suffering and mental anguish.

•

Loss, diminution of, or impediment to hereditary entitlements including entitlements to participate in land claims and right to land provided for or existing under N orthern Territory or Comrnonwealth legislatíon or at cornmon law.

If in fact what has occurred are acts of genocide, devoid of intent, íl may be thal what remains are, as Strickland has said of the situatíon in the United States, acts of "lawful" genocide:

1 am talking not about these cold-blooded atrocitíes but about law and the ways in which genocidal objectives have been carried out under colour of law - in de Tocqueville' s phrase, "legally, philanthropically, without shedding blood, and without violating a single great principIe of morality in the eyes of the world" .... The legal genocide. cultural as well as physical. practísed agaínst the American Indian could only have been the product of a sociely such as ours, a society with a strong sense of the "rule of law".34

34

Strickland, "Genocide-at-Law: An Historie and Contemporary View of the Native American Experience" (1986) 34 U Kan LR 713 al 719.

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CUMMLN'GS, BLOKLAND & LA FORGIA - STOLEN GENERATIONS

Australia has an obligation to prevent acts of genocide.3 5 In taking steps to comply with this part of the Genocide Convention Australia has asserted that laws in force in relation to the offences of "murder, manslaughter, assault, conspiracy and incitement and other malters are sufficient to enable Australia to comply with its obligations under the Conventiono"36 lronically it would appear that Australia had not conceived that to comply wilh the Genocide Convention it may need to prohibit conduct outside of the usual scope of Ihose traditional criminallaw offenceso If the obligation lo prevent genocide cannot be reflected in the High Court' s ruling on the validity of the Aboriginals Ordinance 1918 (Cth), then the acts amounting to or having the effect of genocide (even if intent in the full sense of mens rea is not pro ved) should, it is argued, infonn the question ofremedies if the Aboriginals Ordinance 1918 (Cth) is found to be invalid for other reasonso Until the campaign and subsequent litigation of the Stolen Generations (NT), it would appear that little attention has been given in Australia to the legality of arbitrary forced removal of children by the stateo It is as though the forced removal of children might be regarded as a less serious or softer fonn of genocide: "cultural genocide" o It was the feminised genocideo

EQUALITY AND SOVEREIGNTY: THE HEARTLAND STRATEGY Sustaining international law, as presently understood, are concepts of sovereignty and equalityo Sovereignty creates unconnected, independent and equal entitieso The equality between sovereign states is however a fonnal equalityo James Crawford writes: "States are regarded in international law as 'equa]', a principIe also recognised by the [United Nations] Charter (artiele 2(1»0 000 It is a fonnal, not a moral or political principleo"37 The Stolen Generations (NT) litigation is also concemed with issues of sovereignty and equalityo The Aboriginals Ordinance 1918 (Cth), it was argued, breached the separation of powers doctrine, sl16 of the Constitution, and the implied right to equality, freedom of movement and association, and to be free from genocideo 38 AH of these constitutional arguments depended on a certain view of sovereignty and equalityo The Commonwealth rejected the application of the implied rights argument on the basis that the dominant 35 36

37

38

Genocide Convention Art 1: "The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under intemationallaw which they undertake to prevent and to punisho" De Stoop, "Australia and Intemational Criminal Law" in Ryan (ed), Inlemational Law in Australia (Law Dook Co, Sydney, 4th ed 1984) p1630 The inclusion of rnanslaughter is curiouso Not being a crime of intento it is difficult to see how "non-intentional" killings could ever conceivably lead to proof of "inlent" to destroy the groupo Crawford, The Creation of States in Intenwtional Law (Clarendon, Oxford 1979) p320 The application of constitutional implications and provisions to s122 of the Constitution was also extensively arguedo

(1997) 19 Adel LR 25-44

37

constitutional principIe is the supremacy of parliamentary sovereignty, and equality, as it exists, is to be understood as a formal equality. Nor can an implication of equality under the law so as to fetter Parliament's legislative powers be drawn from the vesting of sovereign power in the people. 39 ... equaJ subjection of all persons to the law and their equality before the courts, and not that the laws themselves be equa!. The principie is therefore concemed with procedural, as opposed to substantive, equaJity.40 In chaJlenging the Cornrnonwealth's arguments the Stolen Generations first contextualised the case:

The Aboriginals Ordinance implemented a regime for the comprehensive subjugation of the Aboriginal people of the Northem Territory between the years 1918 and 1957.41 TIte Cornrnonwealth's submission by contrast began with a legalistic account of the Constitutional history of the Northem Territory .42 The Stolen Generations then argued that the Constitution is based on the popular sovereignty of the people. Popular sovereignty is the basis for the initial and ongoing legitimacy of the Constitution, and has as its inevitable corollary the inherent equaJity of each of the possessors of sovereignty, past and present. 43 This equality, it was argued, entailed a freedom from discrirnination. It was argued to be a substantive notion of equaJity: one that conceived of discrimination as power. It is difficult to conceive of a form of discrimination more offensive to the inherent equality of all Australian citizens than that embodied in the Aboriginal Ordinance. Power was exercised under the Aboriginal Ordinance in relation to a people in a position of special vulnerability ....

39 40 41 42 43

K114ger, Respondent's Submissions pp49-50.

Atp47. K114ger, Plaintiffs' Submissions pI. ''The Aboriginals Ordinance 1918 (N1) was enacted by the Govemor-General on 12 June 1918 pursuant to the powers conferred by section 13(1) of the Administration Act." K114ger, Respondent's Submissions p8. K114ger, Plaintiffs' Submissions p25, citing Detmold, "The New Constitutional Law" (1994) 16 Syd LR 228 at 229.

38

eUMMINGS, BLOKLAND & LA FORGIA - STOLEN GENERATIONS

They were left unprotected in every way against use, abuse or misuse of Ihe arbilrary power conferred on officers of the Cornmonwealth .44 The litigation confinns that the strategy for breaking silence is in challenging the fundamental theory on which exclusion is based. The international feminist strategy is well placed, therefore. al what Hilary Charlesworth has caBed the "heartland of internationallaw and its institutions."45 The Stolen Generations deconstructed and reconstructed equality arguments in a constitutional court. International feminists have no constitutional court in which to re imagine internationallaw. 46 Karen Engle has described three possible approaches taken by ferninists in international law. 47 The doctrinalist focuses on a particular violation and then argues that it breaches a current internationallaw right,48 for example, clitoridectomy violates the right lo heallh. The institutionalist concentrates on the institutions rather than the instruments lo enforce human rights. They accept existing international structures but argue that they must rearrange tbeir priorities and enforcement meehanisms to enforee women' s righls. So they would, for example, consider that the Comrnission on the Status of Women should have wide investigatory functions in relation to the perfonnance of c1itoridectomies. The last category is the external critique, situating itself outside the discourse and raising questions as to whether human rights as presently understood can accornmodate women's rights. The Stolen Generations have not engaged in any one strategy, moving from institutionalist to doctrinalist to exlernal critique. They are doctrinalist in bringing actions in torts, adrninistrative law and breach of fiduciary duty. They are institutionalist in chalIenging tbe National Inquiry into the "Separation of Aboriginal and Torres Strait Islander Children from their Families", creating a memorandum of understanding with the Australian Archives for Access to Information and the initial attempt to negotiate out of court with the Cornmonwealth. They are also engaged in an external critique in reconceptualising their rights in the High Court. The Stolen Generations have maintained a revolutionary agenda within a variety of strategies. 44 45 46

47 48

Kruger, Plaintiffs' Submissions p36. Charlesworth, "Alienaling Osear" in Dallmeyer (ed), Reconceiving Realiry: Women and Intemational Law piS. The International eourt of Justiee showed its reluctance 10 be perceived as a forum of fundamental challenge in Case Conceming East Timor (Ponugal v Australia) lel Rep 30 June 1995. See generally, Engle, "Female Subjects of Public International Law: Human Rights and the Exotic Other Female" (1992) 26 New Eng L Rev 1509. This is understood by Engle as invoking liberal assumptions in that it aceepts international law and works within it: as aboye at 1513. The argument 1 propase here is that the approach does not neeessarily indicate a theory. Jt may be just a "place" for the suuggle to occur.

(1997) 19 Adel LR 25-44

39

Significantly, the Stolen Generations did not reject the rights discourse. 49 In the proceedings of the Going Home Conference, Betty Pearce, one of the participants, responded to advice by a QC that there may be limited legal remedies: 50 First of all, this QC you fellas have got here, even if he gets all that information on paper that you are not entitled to this, that, or whatever, fight for it. 51 The Stolen Generations reconceptualised rights to take their lives into account. As Sarah Pritchard has said, "from socialist, critical and feminist perspectives it is possible to recognise that whilst rights can be obfuscatory, individualistic and sometimes disempowering, they can also provide significant foci for resistance".52 CHARACTERISATIONS The characterisation of the Aboriginals Ordinance 1918 (Cth) is central to the case: was it penal. punitive, even genocidal, or was it for care and protection? The answer to the characterisation will determine whether it breaches the implied rights argued by the Sto len Generations. Characterisation is therefore a significant legal question. The characterisation tums on history. The history receiving most judicial notice is the history of justification. It runs along the Iines of: they thought the act was for patemalistic purposes so it was. This ignores the history of the harm. The harm of stealing the children is only seen through tbe eyes and thoughts of those that perpetrated the act: did they think it was justifiable or not. These are the views that affect legal validity. The woman' s harm by contrast is not significant. It does not affect the validity of the Ordinance both then and therefore now. lt is intertemporal exclusion. The question must be whether at the time of enactment and operation ... in light of the standards and perceptions then prevailing, and in the light of the state of knowledge at that time, the provisions ._. were reasonably capable of being considered to be - and we say that is the test, rather than were appropriate and adapted to the purpose of the protection and preservation of Aboriginal people in the Northem Territory.S3

49 50 51 52 53

According lo Eng1e's analysis there are two vanatJons of Ihe external cnuque: a reconceptua1isation of rights or a critique of rights itself. As aboye at 1520-1523. The advice was not in relation to tbe Stolen Generations litigalion but concerned a published editorial covering tbe Going Home Conference. Going Home Conference, The Long Road Home (Karu Aboriginal Child Care Agency, Darwin 1996) p26. Prilchard, "The Jurisprudence of Human RighlS: Sorne Critical Thought and Development in Practice" (1995) 2 Aust J Hum Rts 11. Kruger, transcript, 14 February 1996, Griffith QC, counsel for the Commonwealth, p230. Emphasis added.

40

CUMMINGS, BLOKLAND & LA FORGIA - STOLEN GENERA TIONS

In opening to the High Court, counsel for the Commonwealth stated:

The Commonwealth adrnits the real issues of social and political concem; it is an area where there is ¡ntense attention being given to the serious social issues arising from the operation of these ordinances repealed so long ago, but the acceptance of this situation does not, we submit, enable this Court to involve itself in what is, in essence, an invitation for the retrospective re-writing of the course of our constitutional evaluation. We say to entertain this case would be, in effect, to apply back for 80 years or so the operation of newly articulated constitutional rights, entitlements, or freedoms. 54 The Comrnonwealth rnaintained that the evolving nature of human rights meant that the Aboriginals Ordinance 1918 (Cth) should be judged according to the social, cultural and political context of the time. 55 The plaintiffs' sentiment on this point was concluded as follows: The proposition thal racist or discrirninatory views can dictate the meaning or effecl of the Constitution directly contradicts the very nature of the compact and the ¡nherent equality of the parties to il. Taken lo its logical extreme, the Defendant's pleading would have justified the attempts by the Third Reich to subject Jews to unprecedented discrimination under the law - eventually leading to genocide - on the basis that such a plan accorded with the "contemporary values and perceptions" of the Gennan people. 56 At intemationallaw, the intertemporal issue is also problematic, although gross violations of human rights occurring in the past may still attract reparations. Recently the claim has been made that reparations are available as a matter of intemationallaw for the continuing damaging consequences of the slave system.57 It has been argued that slavery was once accepted as the nonn and in fact was legal in European states. However this does not necessarily defeat Ihe c1aim brought by those who continue to be affected. 58 lntemational feminists are critiquing the history of justification. Judith Gardam argues that the justification supporting military necessity as the primary consideration in detennining

54 55 56 57 58

Atp162. Kruger, Respondent's Submissions pp95-98. Kruger, Plaintiffs' Submissions plOO. Gifford, "The Legal Basis of lhe Claim for Reparations", paper presented to the First PanAfrican Congress on Reparations, Abuja, Nigeria, 27-29 April 1993. As aboye.

(1997) 19 Adel LR 25-44

41

the rules governing armed conflict, loses its force when women' s history and harm is taken seriously. In fact this would radically change the law of armed conflict. 59 The need to document the history of women is highlighted in the Human Rights Cornrnittee cornrnunication of Mónaco de Gallicchio. on her behalf and on behalf of her granddaughter Ximena Vicario v Argentina. 60 where expanded notions of hann were argued but held to be inadmissible due to lack of evidence. This case has parallels with the Stolen Generations. On 5 February 1977, Ximena Vicario' s mother was taken with the then nine month old child to the Headquarters of the Federal Police in Buenos Aires. Her father was apprehended in the city of Rosario on the following day. The parents then disappeared. In 1984, investigations initiated by the grandmother located Ximena Vicario, who was living in the home of SS, who elaimed to have be en taking care of the child. Genetic blood tests revealed that the child was in fact the granddaughter. The arguments raised by the granddaughter and grandmother ineluded: psychological torture every time she was visited by SS, in violation of Artiele 7 of the International Covenant on Civil and Political Rights, and that SS's regular visits to the grandehild entailed sorne form of "psychoaffeetive" involuntary servitude in violation of Article 8 of the Covenant. In respect of the author's elaims under Artieles 7 and 8, the Human Rights Cornmittee found that Ihe author had failed to substantiate her elaims for purposes of admissibility. Significantly, however, the Committee took a liberal view of the intertemporal issues. Regardless of Ihe faet that Argentina had not signed the Covenant or its Optional Protocol at the time of the disappearanees, it was he Id to be in breach of Artiele 24 paragraphs I and 2 of the Covenant due to the ongoing harm suffered by the child. The reality of women's history should be significant in all decisions. The High Commissioner for Human Rights is pursuing a poliey of actively supporting the development of national human rights institutions. 61 This strategy needs to be assessed from a feminist perspeetive: how have national institutions served us in the past? Are they capable of enforcing the rights of women or are they engaged primarily in the traditional civil and political rights discourse? Significantly, will it mean the human rights of women are privatised behind Ihe nalional human righls instirutions? Al Ihis slage of its development the forums on nalional human rights institulions have shown, at least in principIe, a eommÍtmenl lo women's concerns. The draft reeornrnendations state that national inslitutions should adopt a specific plan of action in 59

60 61

Gardam, "The Law of Armed Conflict: A Ferninist Perspective" in Mahoney & Mahoney (eds), Human Rights in the Twenty First Century: A Global Chal/enge (Maninus Nijhoff, Dordrecht 1993) p419. Cornrnunication No 400/1990, UN doc CCPR/CI531D140011990 (1995). The recent meeting in Darwin of the Asia-Pacific Regional Workshop of National Human Rights Institutions resulting in the Larrakia Declararion (1996) was conducted under the auspices of the United Nations Centre for Human Rights. The 1996 meeting in Darwin had in attendance Ihe Special Adviser lo the High Commissioner for Human Rights on National Human Rights Institutions.

42

CUMMINGS, BLOKLAND & LA FOROlA • STOLEN GENERATIONS

conformity with the Declaration On the EIimination of AH Violen ce Against Women,62 and also support the development of a protocol (for individual compIaints) to the Convention on the Elimination of AH Fonns of Discrimination against Women. This illustrates the interrelated and long term nature of the feminist project. The Declaration On Violence itseIf arises from a long history of theory and activism by women.

REPARATIONS The work of the UN Commission on Human Rights refers to the necessity of successor govemments being bound by the responsibilities incurred by predecessor govemments for gross violations of human rights. 63 As a matter of state responsibiIity the new govemment must make reparations. Further, this work states that U[r]eparations may be claimed by the direct victims and, where appropriate, the immediate family, dependants or other persons having a special relationship to the direct victims."64 Contrary to the Commonwealth's contention that this is a case of ancient history, the Stolen Generations (NT) litigants are the persons directly affected • as mothers and children. Australia's ratification of the Genocide Convention on 8 luIy 1949 does go sorne way towards indicating that at the time of the operation of the Aboriginals Ordinance 1918 (Cth), Australia had made a decision to be bouod by an intemational obligation to refraio from acts of genocide. The arguments before the High Court in Kruger continuaHy raise the need to examine the legislation according to the values at the time. How that is to be assessed is a problem in the Commonwealth's case. Ratification of (he Genocide Convention signals that the community values of the time rejected genocidal practices. Even prior to Australia signing the Genocide Convention it was well accepted that genocide was contrary to intemational law. 65 The possible acceptance in the High Court of a submission that intertemporal views defeat c1aims for redress of serious violations of human rights is of significant concem given that the expression of rights protecting women is relatively recent. 66 Throughout the argument on ufreedom of religion" canvassed in Kruger, there are a number of exchanges between counsel and the bench which indicate that various atrocities perpetrated on women readily spring to mind in the context of the legitimate bounds of state control of religion. Female circumcision and suttee are both mentioned during the 62

63 64

6S 66

Manila Declaration and Recommendations of the Third lnternational Workshop of Narionallnstirutions jor the Promotion and Proteerian oj Human Righrs, Manila, 18·21

Apri11995, Specific Recommendation B2(e). As aboye, fn32. Al p56. Another factor militating in favour of Ihis approach is the principIe Ihat slatutes of limitations should nOI apply. Genocide Convention (Preamble); Lemkin, "Genocide as a Crime Under lnlernalional Law" (1947) 41 AJIL 145 al 147. Eg Sex Discrimination Act (Cth) 1984; Affirmative Actíon (Equal Opportunity jor Women) Act (Cth) 1988; Human Rights and Equal Opportunity Commission Aet (Cth) 1986.

(1997) 19 Adel LR 25-44

43

course of argument 67 Less dramatic but nonetheless fundamental rights historically denied to women in Australia are also discussed: the right to participate on juries68 and the right to vote. 69 In one sense it is heartening to see these issues being considered in the context of argument on constitutional issues. However, it is also a reminder of sorne of the grossest violations against women. Consequently there is a need to persuade the Court to proceed cautiously before striking out the ability to remedy past wrongs. The plaintiffs in Kruger claimed damages for breach of constitutional rights and guarantees independent of any coromon law cause of action. The arguments traversed whether or not a breach of the Constitution can give rise to an action sounding in damages; if so, how darnages might be calculated; whether any State or Territory linútations statutes applied; and whether any declaratory relief or other equitable remedy was applicable. On each issue. the parties and members of the Court indicated there was significant uncertainty in the law, and the possible statutory reform of limitations statutes was raised. 1996 was the twentieth anniversary of the Aboriginal Land Rights (Northem Territory) Act 1976 (Cth). This was cause for some celebration by the Land Councils established under the Act But the Stolen Generations are not celebrating. The Land Rights Act is one further illustration of the loss suffered.

The Land Rights Act establishes two classes of Aboriginal person: those who come within the defmition of "traditional owner" and those who do not. To be classified as a traditional owner an individual must come within the legal and anthropological definitions. They must be a member of the "appropriate" descent group and hold the "necessary" spiritual affiliation. In form the basis of distinction between the two classes lies in the statutory definition of "traditional Aboriginal owner", in effect the distinction is the extent to which an individual and their farnily has suffered genocidal oppression. The old assimilationist laws, having served as the basis for separation, continue to serve as the basis for the denial of land rights. If the plaintiffs' case is successful to the point of calculation of damages and other relief, it is suggested here that the principies to be applied should be informed by Special Rapporteur Theo van Boven's recommendations on reparations. 70 It is suggested that reparations are more arnenable to reflecting the appropriate remedy for the types of harms suffered by members of the Stolen Generations (NT) group. As noted abo ve, even if the acts perpetrated against the Stolen Generations (NT) were not technically "genocide",71 they should be considered a serious violation, capable of close analogy with other gross violations of human rights. 67 68 69 70 71

Kruger, transcript ppI1l-1l2. Kruger, Respondent's Submissions p93. Kruger, transcript p131. As aboye, fn32. For reasons of lack of intent, or for failing to have a forum to try the issue.

CUMMINGS, BLOKLAND & LA FOROIA - STOLEN GENERATIONS

44

Reparation by restitution is recornmended by Special Rapporteur van Boven. In relation to Indigenous Peoples, this may inelude provision of lands by way of restitution, or, where not practicable, compensation. This is a particularly apt form of reparation for many of the Stolen Generations (NT). Reparations also embrace compensation for mental harro, legal costs, pain and suffering, and emotional distress. They may al so include reparations by way of rehabilitation support, counselling and access to victim services, as welJ as reparations by way of satisfaction - public disclosure, declaratory judgment, apology, acceplance of responsibility, commemorations for victims and inelusion of an accurale record of lhe human rights violation in educalional malerials. 72

CONCLUSION The tragedy of this case is that it beco mes the survivors of genocide who, rather than being the focus of increased services, receive less. One of Barbara Cumming's friends described the complete sen se of abandonment she feh when, being too old for the institution she had been in since she was a child, was left in Darwin with no idea of who or where her family was. In a way, thal abandonment is the situation faced today by the Stolen Generations. Lois O' Donoghue wrote lhat, when her mother heard she and her sister were returning years later, "she waited by the roadside every day for three months until we finally turned up. In all, 1 was able to know rny mother for ten years."73 This mother waiting by the roadside, her anguish, her expectations and harm are not legalJy significant. According lo the Commonwealth lhey do nol characterise the Ordinance. A successful High Court case will hopefully change lhis, bUl, even so, lhe challenge will remain lo take women's lives seriously in their own context and diversity so that women will not be made by history but be history-makers. 74

72 73 74

As aboye, fn32, pp57-58. O'Donoghue, "Forewords" in MacDonald, Between Two Worlds pvii. Ann Seales wrote: "The notion that women can affeet history by aecess to courts and legislatures presumes that women have equal potentiaJ as history-makers." Scales, "Militarism, MaJe Dominance and Law: Feminist Jurisprudence as Oxymoron?" (1989) 12 Harv Women's U25 at 34.

Yumi Lee*

VIOLEN CE AGAINST WOMEN: REFLECTIONS ON THE PAST AND STRA TEGIES FOR THE FUTURE - AN NGO PERSPECTIVE

he subtitle of tbe symposium at which this paper was first presented, "ReflectÍans on the Past and Strategies for the Future", cannot readily be applied in the analysis of violence against women. It presumes that we have reached a certain point from where we can ascertain "the past" and where "the future" can be mapped out. It connotes a linear eonstruction of time which feeds into the coneept of progress where a continuum of events unfolds episodically leading to a certain end result. This is certainly not the case for the issue of violence against women. Despite the fact that it was placed firm1y on the global agenda in the Fourth World Conference on Wornen in Beijing, as compared to the First World Canference where it did not rate a single mentian, the reality has aIways superseded rhetorie. In an age where we possess the technology to do our bank:ing, order a pizza and marvel at the wonders of the Uffizi Gallery at horne through the internet, women in both the North and South are still trapped within eenturiesold power relations and dealing with Iittle-changed expressions of brutality. In this respect, we are still living the past in the present. This article will briefly examine representations of violenee in our society and analyse the discourse on violence in four main documents produced from the United Nations World Conferences on Women.

T

It is a truism to state that violence is normally conceptualised in terms of murders, wars and riots, and people tend to associate violence against women with images of females being beaten up or raped. This focus on the physicaI manifestations of violenee effectively curtails the debate and therefore Iirnits the extent of the interventions necessary to effect real changes. The treatment of violence in our society is ess~ntially "superficial, out of proportíon, trivialised, índívidualised and one-síded",I Ideology, cultural prejudices and legal codifieations all serve to define violence in the public imagination. As sueh, the prevailing discourse on violenee systematiealIy reinforces a narrative code which places a premium on certain representations of violence while rendering olhers invisible. Consequelltly lhe fronl page of our newspapers are given over lo Ihe riots in Los Angeles (1992) and the bombing in Atlanta (1996) while the mas sacres of Indians in the Amazon Basin and ehild labour in the Third World are relegated to a few Iines in the inside eolumns. The ideological and cultural prejudices inherent in our society manifest

•

Yumi Lee is the Joinl National Coordinalor of the Women's Intemational Lcague for Peace and Freedom (Australian Section), an organisation with consultative status with the United Nations. She is also completing her PhD on education and development. Salmi, Violence and Democratic Sociely: New Approaches to Human Rights (Zed Books, London 1993) p4. Emphasis original.

46

LEE - VIOLENCE AGAlNST WOMEN: NGO PERSPECTIVE

themselves in the massive publicity given over to the violence inflicted on the four Belgian girls who were victims of a paedophile ring while the thousands of Nepali girls trafficked into brothels in India are ignored. TIte world's attention is forced onto the genocide which took place in the Fonner Yugoslavia but the plight of one sixth of the population of Bhutan, comprised of certain ethnic groups systematically forced out of their own country, is forgotten. 2 Our perspective on violence is also revealed by the fact that while multinational corporations continue to inflict environmental harm with impunity, we face imprisonment if we wilfully damage just one component on their property. We need to interrogate the representations of violence in our society before we examine the issue of violence against women if we are to move beyond the current restrictions of the debate.

If we accept the fact that violence is an avoidable action which violates human rights in its widest meaning, it is possible to classify violence into four main analytical categories direct violence, indirect violence, repressive violence and alienating violence. 3 Acts of direct violence are the most commonly emphasised in the discourse on violence. Direct violence "refers to acts of deliberate violence resulting in a direct attack on a person's physical or psychological integrity".4 TItis ineludes hornicide (genocide, murders), as well as physical or psychological suffering (kidnapping, torture). Indirect violence is a category which covers "harrnful, sometimes even deadly situations or actions which, though due to human intervention, do not necessarily involve a direct relationship between the victims and the institution, person or people responsible for their plight".S Examples of this inelude the infliction of "silent violence" on the 10 000 human beings who die of starvation every day and the 500 million who suffer from chronic malnutrition. 6 Other examples of indirect violence can be witnessed in the common practice among US and European multinationals which peddle "a wide range of toxic products to Third World countries that are banned in their home countries because they can induce cancer, genetic malformations or miscarriages".7 Even modifications of the social and economic environment which bring about "a substantial deterioration of living and health conditions"8 fall under the category of indirect violence. Repressive violence "relates to three groups of fundamental rights: civil rights, political rights and social rights". 9 TIte most coromon forro of this is the violation of the freedom of the press and of the right to belong to a trade uniDn or to go on strike. Alienating violence is "the deprivation of a

2

3 4 S 6 7 8 9

Bhutan - Forced Evictions and Human Rights. A Documelltalion on Humnn Rights Violations in the Kingdom 01 Bhutan. Particularly on Forced Evictions, Forcible Exile. Demolilion 01 Houses and Systemntic Ethnic Cleansing (Peoples Forum for Human Rights,

Bhutan 1995). Salmi, Violence and Democratic Society p 17. As aboye. As aboye. Al pIS. At pI9. As aboye. Al p20.

(1997) 19 Adel LR 45-58

47

person' s higher rights, such as the right to emotional, cultural or intellectual growth". JO Examples of this inelude policies or actions which deny certain ethnic groups their right to express their identity freely, as well as the foreed integration of so-called "primitive" tribes into the mainstream of society. The social ostracism of homosexual s is also ineluded in this category. Needless to say, it is not uncornmon to find the various types of violence enacted simultaneously. Although violence is c1early a social phenomenon which goes beyond blood and bruising, the representation of violence in our society has been limited to portrayals of "direct" violence to the exclusion of the other categories of violence. Consequently, it is not surprising to find that the issue of violence against women has primarily centred around sexual assault and domeslic violence. As mentioned earlier, the flfSt United Nations World Conference on Women ryvCW) held in 1975 did not articulate the issue of violence against women at all. It was only during the second WCW held in 1980 that it was discussed in the context of "Battered Women and Violence in the Family".1 1 By the time the third WCW held in 1985 carne round, the relevant section was entitled "Abused Women" and limited to three sentences. It was only in the fourth WCW held in 1995 that violence against women was accorded the status of a "Critical Area of Concern". An examination of the representation of the issue yields expected results. The Copenhagen dacumenl (1980) clearly facuses on women within the context of the family, as indicated in the heading of the section: "Battered Women and Violence in the Family". Women are not accorded an individual identity, but are classed together with "children and the elderly" as being vulnerable to "violence in the home".I 2 "Battered women" must be saved not because they are women and human beings, but because such violence represents "a grave problem for the physical and mental health of the family as well as for society".13 Although it is acknowledged thal "institutions" are also places where abuse occurs, member states are asked to adopt measures which pertain specifically to domes tic violence. The Nairobi document (1985) refers to the necessity for governments to "affirm the dignity of women" and goes one step further than the Copenhagen document by calling on governments to suppress "degrading images and representations of women in society" and adopt "educational and re-educational measures for offenders".1 4 There is a separate section which deals with "Women Victims of Tmfficking and lnvoluntary Prostitution" which acknowledges that "[f]orced prostitution is a form of slavery imposed on women by procurers".I s The Beijing Document (1995) offers the mosl comprehensive overview of violence against women when compared to the other three documents. For the first time in the WCW, a 10 11 12 13 14 15

Atp21. Report 01 the World Conlerence 01 the United Nations Decade lor Women: Equality, Development and Peace (United Nations, Copenhagen 1980) Pan 5, p67. As aboye. As aboye. The Nairobi Forward-Looking Strategies for the Advancement of Women para 288. The Nairobi Forward-Looking Strategies for the Advancement of Women para 290.

48

LEE - VIOLENCE AGAlNST WOMEN: NGO PERSPECTIVE

definition of violence against women is offered which echoes that found in the Declaration on the Elimination of Violence Against Women which was passed by the General Assembly in 1993. Unlike the other documents. the Beijing Document outlines various steps which the intemational cornmunity, governments and NGOs should talce to "eliminate violence". On the surface, this appears impressive and a significant step forward. However, a closer examination of the text exposes the ambiguity and limitations which revolve around the issue of violence against women. One of the most revealing paragraphs in Section D of the Beijing Document, which highlights the problematic representation of violence against women, is paragraph 116 which states that "women in poverty ... destitute women ... displaced women ... women living in situations of armed conflict, foreign occupation, wars of aggression, civil wars, terrorismo including hostagetaking, are also particularly vulnerable to violence".16 The question which immediately springs to rnind is: how can these women who are already clearly victims of violence, be "particularly vulnerable to violence"? The preamble of Section D in the Beijing Document articulates several features of violence against women. stating amongst other things. that .. [i]n all societies. to a greater or les ser degree. women and girls are subjected to physical. sexual and psychological abuse that cuts across lines of income, c1ass and culture" as well as the fact that "[t]he low social and economic status of women can be both a cause and a consequence of violence against women".17 JI is also worth reiterating the defmition of violence which reads: The term "violence against women" mean s any act of gender-based violence that results in, or is Iikely to result in, physical, sexual or psychological barm or suffering to women. including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or private life. 18 Despite these statements which allude to all categories of violence (direct, indirect, repressive and alienating). the discourse on violence against women is constrained within the confines of violations against women's sexual integrity and their role within the farnily. As such, the examples provided of violence against women focus on rape, sexual assault, sexual harassment. domestic violence. dowry-related violence, trafficking in women and forced prostitution.1 9 Consequently, the actions recommended to eliminate violence against women primarily centre around two aspects, that is, the implementation of gendersensitive laws and enforcement practices which do not discriminate against women. and the community education which needs to occur to break down gender slereotypes. This approach must be interrogated as it compartmentalises violence into a convenient category

16 17 18 19

Beijing Declaration and Platfonn for Action Ch IV Section D para ll6. At para 112. Al para 113. At para 113(a).

(1997) 19 Adel LR 45-58

49

which ignores the dynamics of violence as an integral factor which underpins the framework of our society. It needs to be emphasised at this point that there is no doubt about the fact that domestic violence and sexual assault are pandemic. In France, 95 per cent of victims of violence are women and 51 per cent of these suffer violence at the hands of their husbands. In the United States, more women are injured in domestic violence incidents than in car accidents, rapes and muggings put together and the US Surgeons General have wamed that domestic violence poses the single largest threat of injury to adult women in the United States. In a study of 80 abused women in Costa Rica, 49 per cent reported being beaten during pregnaney. In Bang1adesh, women who are killed by their husbands account ror 50 per cent of al1 murders. The Papua New Guinea Law Reform Commission found that 67 per cent of rural women and 56 per cent of urban women have been victims of spousal abuse. In South Africa, a woman is raped every 90 seconds, totalling approximately 320 000 women raped each year. Over 100 000 women are raped in the United States annually. Between one-in-five and one-in-seven women will be a victim of rape worldwide. 20 The women's movement can take much credit ror pulting these issues on the global agenda and forcing universal acknowledgment of the problem. 21 Only fifteen years ago during the second WCW, the representatives from the Ukraine stood up before the world to proclaim that domestic violence does not occur in their state. No governrnent can today can make such pronouncements. Despite these gains, we need to recognise that there is a concerted effort to contain the discourse of violence against women to a narrow agenda which excludes the fundamental roles played by the globalisation of the world's economy and militarism in perpetuating violence. Although, for instanee, a statement is made in Section D of the Beijing Doeument that "low social and economic status of women can be both a cause and a consequence of violence against women",22 there is no analysis of the mechanisms of the economy and the violence inflicted on women by certain economic policies. While there is mention of armed conflict, there is no examination of how the arms trade and the culture of militarism engender violence against women. These omissions are not accidental. Limiting the scope of the discourse on violence against women will ensure that no substantive intervention can take place to change the power dynarnics which shape the political and economic agenda. It may be pertinent to pause at this point to examine the different forros of violence against

women. While it may be consequential for women living in the North to institute gender sensitive laws and educate the judiciary, there are millions of women for whom the courts will not malter as their next meal is uncertain. One-fifth of the global population lives in 20 21 22

United Nations, The Advancement of Women: Notes for Speakers (Dept of Public Information, United Nations, New York 1995) pp62-63. Address by Radhika Coomaraswarny, Seminar on Conflict and Development in South Asia, Women in Contlict Resolution and Preventive Diplomacy, 2-4th August, 1996, Kalutara, Sri Lanka. Beijing Declaration and Plaúorm for Action Ch IV Section D para 112.

50

LEE - VIOLENCE AGAINST WOMEN: NGO PERSPECTIVE

extreme poverty and of these 1.3 billion people, up to 70 per cent are women. 23 There is even a new phrase which has been coined to describe the situation: "the feminisation of poverty". This is by no means exclusive to the South. In the United States, approximately 75 per cent of all poverty is concentrated among women, and in the Netherlands 70 per cent of all single mothers with dependent ehildren will slip below the poverty line without welfare payments. 24 Women who live in poverty face malnourishment and injury to their health. They suffer from nutritional anaemia which makes child-bearing more taxing and difficult, as indieated in the statistics that half a million women die each year just from matemity.25 While it is simple to frame laws to charge husbands who abuse their wives, it is not as simple to deal with the economic violence of capitalismo When the United Nations itself, through the World Bank and the Intemational Monetary Fund (IMF), imposes economic policies which perpetuate violence against women, the challenge is to broaden the way "violenee against women" is represented. The infamous structural adjustment programmes inflicted on countries in the South have resulted in even more hardships in the lives of the people with women being most affected. Take for instanee the case of Chile which the World Bank and the IMF have c1aimed as a success story. A c10ser examination reveals that nearly one third of its population live in extreme poverty and income inequality has not been redueed. The majority live with "poor health care, education, inadequate or no social seeurity, and the spreading social disintegration, increasing violence and crime".26 Women are being forced to take on low wage jobs in order to feed their families and, unproteeted by eollectiye negotiated eontracts, they eam 50 to 60 per cent less than men.27 What is eyen more disturbing is the effeet which IMF and World Bank intervention has on the stability of a country. In the Former Yugoslavia, for instanee, the macro-economic restructuring imposed by both the IMF and World Bank led to the systematie destruction of the country and the subjugation of a people: "[h]yperinflation, frozen wages, soaring unemployment, and euts in health and social services were the consequences of [the] polieies. Real incomes were 30 percent lower in 1980 than in 1979."28 The ethnic divisions are not the cause of the eonfliet which has resulted amongst other things, in the mass violation of women's rights. It is important to highlight the role of multinational corporations in circumventing laws and ignoring adherence to standards oC human rights in their operations. Their practices also engender violence against women, direetly and indireetly. Women working in electronic assembly lines set up by Japanese conglomerates in Malaysia have sueeumbed to mass 23

24 25 26

27 28

United Nations, The Advancement of Women p22. Atp23. Vickers, Women and War (Zed Books, London 1993) p92. Ariyabandu et al, "Structural Adjustrnent: The Small Producers' I;>ilemma" (1995) 20(10/11) Economic Review (Columbo) 3 al 16. As aboye. Bruin, Root Causes of the Global Crisis: Origins of Social Disintegration, Human Rights Violations, Environmental Destruction, Conflict, ami War in the International Economic System (Women's International League for Peace and Freedom and INHURED Intemational, Geneva & Kathmandu, 1996) p 14.

(1997) 19 Adel LR 45-58

51

hysteria as a result of their highly restrictive working conditions. Illegal female migrants in the United States are exploited by well-known multinational corporations. First hand accounts of such exploitation reveal appalling working conditions where lunch times are limited to three minutes and repetitive strain injuries resulting from long working hours ultimately put an end to paid employment. 29 While women are being harmed as a consequence of working for multinational corporations, there are also millions affected by toxic products targeted specifically at women. Silicone breast implants are a case in point. The harmful effects of contraceptive products on women's health have also been exposed and drug companies have flouted ethical considerations by using women in the South as guinea pigs to test their products without their consent. These forms of violence against women are never articulated as such despite the fact that women suffer physical and psychological injury from the practices of these corporations. There are sorne who may claim that it is not only women, but also men and children, who suffer from economic violence, thereby negating the economic link of violence against women. This can be refuted by a c10ser examination of the defmition of violence against women. It refers specifically to "gender-based" violence which results in "physical, sexual or psychological harm or suffering to women".30 Considering the faet that econornics as practised is clearly (male)gender-based and not gender-neutral, with the results disproportionately harming women, there is no doubt that poverty, starvatíon, malnourishment, suffering and injury caused by economic policies and practices are manifestations of gender-based violence against women. As women are already discriminated against in society, the (male)gender-based economic policies and practices serve to disadvantage women further. The example of women in Africa will also provide evidence of this fact. Women produce 78 per cent of the continent's foad on subsistence plots to which the vast majority hold no title. However. the (male)gender-based policies ensure that they receive only 2 to 13 per cent of the technical assistance and training provided by extension services. 31 The link between econornic policies and the exploitation of women is c1ear. When discrirnination againsl women and the cornrnodification of the female gender co-exist with poverty, we witness the flourishing of trafficking in women. Millions of women and girls are trafficked to service the sex industry annually and, of these, at least one million are girl children.3 2 Strategic Objective D3 of the Beijing Document which focuses specifically on trafficking in women does not mention the need to improve economic conditions as a preventive measure and instead makes general statements about resorting to the legal framework lo solve the problem. As to how genuine even this is can be gauged by the fact that the govemments of the world are to only

29

30 31 32

As toId to the author by a former empIoyee of Johnson and Johnson based in California, 1994. Beijing Declaration and Platform forAction Ch N Section D para 113. United Nations. The Advancemenl o/ Women p20. At pp68-69.

52

LEE - VIOLENCE AGAINST WOMEN: NGO PERSPECTIVE

"consider enacting legislation aimed at preventing sex tourism and trafficking" .33 There is

a great resistance to articulating the causes of trafficking in women and this leads to complete inaction on the issue. Although there is a vague statement urging govemments to "[t}ake appropriate measures to address the root factors", none of these are mentioned and the suggestion offered is to "[strengthen] existing legislation".34 Unless the economic disparity between and within nations is addressed, the exploitation of women and the attendant violence against women will continue unabated. A study tour to the Philippines undertaken by a group of women from Australia and New Zealand in 1995 found that the sex tourism industry "thrives on the poverty of the Philippines, and on the racism and sexism that exist in Australia, New Zealand and the Philippines".35 Australian men with capital are actively participating in the sex tourism industry as owners and operators of such outlets as bars and nightclubs, hiring girls as well as women. The Beijing Document does not deal with the fundamental question of the economics of the traffic in women, preferring instead to focus on "comprehensive prograrnrnes designed to heal and rehabilitate" the "vietims of traffieking".36 The complete laek of real engagement with tbe issue is also demonstrated by tbe faet that no measures are recommended on dealing with trafficked wornen who may have been "rescued". In India, for example, Nepali women and girls "rescued" from brothels are classed as iIlegal migrants, despite the fact that they did not choose to enter the country in the first instance, and are deported without any consideration of the fact that they may not be able to retum to their villages due to the "shame" and "disgrace" of having been sexually "tainted"}1 In Burma, women and girls who have been deported by Thai authorities face prosecution as criminal s for having illegally left the country and worked in Thailand despite the fact that they were trafficked and endured sexual slavery. 38 The other major omission from the discourse on violenee against women is the role of militarism in perpetuating violence against women. Despite the faet that "peaee" is one of the three major themes of the United Nations WCW, its analysis is severely restricted and no eonneetion is made between militarism and the endurance of arrned conflict in the world today. Although the Beijing Document acknowledges that women suffer violence disproportionately during times of armed conflict, it is most revealing that the diseourse does not signal any intention to see the end of armed eonfliet as an ultimate goal. In the 33 34 35 36 37 38

Beijing DecIaration and Platforrn for Action Ch IV Strategic Objective D3, para 131(e). Emphasis added. Atpara 131(b). Confronting Sexual Exploitation: Campaign Against Sex Tourism and Trafficking in Filipino Women, Repon 01 the Panicipants from Australia and Aotearoa/NZ (Centre for Philippine Concems-Australia, Brisbane 1996) p5. Beijing DecIaration and Platforrn for Action Ch IV Strategic Objective D3 para 131(d). Intemational Conlerence on Child Sex Abuse, Victim Protective Investigation and Trial Procedure Mumbai, 22-24 February, 1996 (Neergaurav Research and Development Foundation, Mumbai, India 1996). Campaign notes from the International Women's Deve10pment Agency (Victoria).

(1997) 19 Adel LR 45-58

53

section on "Violence Against Women", we see such language as the "elimination" of violence against women. However, there is no articulation of the need to "eliminate" armed conflict in the section on "Women and Armed Conflict". The headings of the strategic objectives poiot instead to the inevitability of armed conflict: "Increase the participation of women in conflict resolution at decision-making levels and protect women living in situations of armed and other conflicts or under foreign occupation", "Reduce excessive rnilitary expenditure and control the availability of armaments", "Promote nonviolent forms of conflict resolution and reduce the incidence of human rights abuse in conflict situations" and "Promote women's contribution to fostering a culture of peace".39 Although there is mention of the need to "[w]ork actively towards general and complete disarmament under strict and effective intemational control",4o it is not listed as a main "strategic objective" under which reconunendations can be made. It is also revealing that the section on "W omen and Armed Conflict" does not provide a comprehensive breakdown of the effects of armed conflict on women. Despite the breakthrough in the acknowledgment that rape in war constitutes a war crime,41 and the fact that women and children make up sorne 80 per cent of the world' s rnillions of refugees and other displaced persons,42 there is no comprchensive articulation of the social, econornic, physical and psychological suffering and injury which women have to endure as a consequence of anned conflict. Although it is acknowledged that women suffer "displacement, loss of home and property, loss or involuntary disappearance of close relatives, poverty and family separation and disintegration, and ... are victirns of acts of murder, terrorism, torture, involuntary disappearance, sexual slavery, rape, sexual abuse and forced pregnancy in situations of armed conflict",43 there is no attention paid to the effects of armed conflict on the lives of women after the cessation of conflicto There are women in Vietnam today, for instance, who stilllive with the impact of Agent Orange in their lives. They have given birth to weak babies which subsequently succumb to death, and are caring for husbands debilitated by exposure to the toxic chemical. The foIlowing extract gives an idea of the suffering faced by sorne women: I remember 1985 the most. We were destitute then. AII three children and my husband were sick and had to stay in bed all Ihe time. [My] three daughters were blind. They couldn't feed themselves. [They] peed and defecated in bed all the time which made the house smell horrible. No visitor could stand it. The mats and beds were rotten. I had to have my children and my husband nested in the comer of the room with dry leaves. They looked like a herd of pigs.

39 40 41 42 43

Beijing Declaration and Platfonn for Action At Strategíc Objectíve E2 para 143(f)(í). At Strategic Objective E3 para 145(d). At para 136. At para 135.

eh IV Strategic Objectives EI-E4.

54

LEE - VIOLENCE AGAlNST WOMEN: NGO PERSPECTIVE

1 was extremely desperate .... My eldest daughter died in 1986, the third in 1987. The seeond ehild went blind and her muse les shrunk, and then she died.... The war took everything away from my family. 1 lost my husband, my wealth, my happiness, my future and my love. AH the money I'd eamed has been spent on medical expenses. The aftennath of the war was so severe. The chemical war was so terrifying and devastating. 44 The experiences of women in armed conflict situations, let alone after the conflict, are not elucidated fuHy in the Beijing Document and this shortcoming severely curtails the planning of initiatives to address the situation. This has repercussions for such issues as compensation as it is more convenient and less expensive to ignore the after effects of conflict in the lives of women than it is to aniculate what these effects are and then be forced to make reparations. The extreme reluctance to deal with the impact of armed conflict on women is exemplified in the case of the so-called "comfort women". This subject has been adequately covered elsewhere. 45 What is also of importance is the omission of the acknowledgment that armed eonflict is a manifestation of the culture of militarism whieh engenders violence against women. Without an analysis of rnilitarism and how it organises our eeonomic, social and cultural interactions, efforts at eliminating violence against women will be severely hampered. The World Council of Churches has defined militarism as an outcome of a process of militarisation in which "military values, ideology and pattero of behaviour achieve a dominating influence on the political, social, economic and externaJ affairs of the state, and as a consequencethe structural, ideological and behavioural pattems of both the society and the govemment are 'militarized'''.46 The material manifestations ofmilitarism inelude wars, military intervention such as that which took place in Iraq recently when the United States bombarded what it elaimed were military instaJlations, and the foreign occupation of East Timor by Indonesia and Tibet by China. The institutional fonns of rnilitarism in elude the existence of the armed forces and the guaranteed access of the military to the nation's budget. Equally important is the ideological manifestation of militarism and this ineludes "a dissemination of military values, symbols and language among the civilian population which promotes acceptance of hierarchies, nationaJism which defines the 'other' as enemy, violence as a legitimate means of resolving conflicts, and strict division of proper masculine and feminine roles".47 Given the scope of this paper, greater emphasis will be 44

45 46 47

Bennett, Bexley & Warnock (eds), Anns 10 Fight, Arms 10 Protect: Women Speak Out About Conjlicr (Panos, London 1995) ppI74-175. See for example Dolgopol & Paranjape, Comfort Women: An Unfinished OrdeaL (Intemational Conunission of Jurists, Geneva 1994). Commission of the Churches on Internatíonal Affairs, Disannament Prospects and ProbLems (World Councíl of Churches, Geneva 1992), quoted in Víckers, Women and War p39. Women's Intemational League for Peace and Freedom, Women and Milirarism (WILPF Essays No 1, 1994) p2.

(1997) 19 Adel LR 45-58

55

given to the examinatíon of gender and how the representations of the masculine and the feminine are integral to the enterprise of militarism, and in perpetuating violence against women. Militarism is contingent on a particular construction oí manhood and specific ideas about masculinity which are often juxtaposed against ideas about íemininity. Stereotypical masculine characteristics like aggressiveness, bravery, endurance and discipline are demanded of good soldiers and any stereotypical feminine characteristics such as nurturing and compassion are belittled and weeded out in the training of soldiers. The military depends on conformity and strict adherence to acode of masculinity and tbis is witnessed in the treatment oí homosexual s in the armed forces. Men are socialised to aspire to characteristics oí manhood which are epitomised in the good soldier, and boys in schools are drilled into the expected stereotypes which they must íulfil. The construction oí masculinity is therefore "not just incidental to militarism, but is actually es sen ti al to its preservation".48 Militarism depends on men believing that they are the stronger sex and therefore ideally suited to protect their womenfolk and country. As such, it is not surprising to find that there is a direct link between the socialisation of men and the stereotyping of women and violence against women. Proponents of the belief that pomography is an articulation oí violence against women will find ample evidence in its eonnection with militarismo The use of pomography in the military clearly "demonstrates the link between misogyny and military 'preparedness'" and examples of this inelude the "showing of pomographic videos to British troops heading to the FalkIands and American soldiers before bombing raids during the Gulf War". 49 During the war in the Former Yugoslavia, pomography was used as a "tool of genocide".50 Not only were women systematically raped, they were also filmed. A survivor of a rapeldeath camp reported the making of pomography of her rapes as follows: In front of the camera, one beats you and the other - excuse me - fucks you, he puts his truncheon in you, and he films all that. oo. We even had to sing Serbian songs oo. in front of the camera. 5l This is not an isolated incident. The searnless continuity between cornrnercial pomography which proliferated in the Former Yugoslavia before the war and the violence in the rape/death camps found expression in the use of the former in the camps. Survivors of rape/death camps reported that pomographic images pervaded their camps and "piles of pomographic magazine s" were reportedly found in the bedroom of Borislav Herak. a

48 49 50 51

Al p5. Al p7. MacKinnon, ''Tuming Rape Into Pomography: Postmodem Genocide" (1993) 4 Ms 24 al 27. As aboye.

LEE - VIOLENCE AGAlNST WOMEN: NGO PERSPECTIVE

56

captured Serbian soldier who confessed lo scores of rapes and murders. 52 Sexual violence against women also occurs during "peace" time, and is particularly associated with the presence of military bases. Foreign military bases in Southeast Asia, for example, have created and exacerbated the conditions which promote prostitution. Subic Bay in the Philippines is a case in point. When the base was in operation, the small fishing village exploded with 700 bars and clubs, and 20 000 prostitutes catering to the thousands of US marines and soldiers. 53 Even Okinawa has wilnessed countless rapes of Japanese women at the hands of US troops, the most pubIicised recently being the gang rape of a twelve year oId gir\. UN peacekeepers are not exempt. By the end of tbeir operation in Cambodia in 1992, Ihe number of prostitutes (many of them children) had risen from 6000 to 20000 because UN soldiers had created such a demando Women in Australia have nol escaped either. During World War 11 and the Vietnam War, women were raped when servieemen stopped over for rest and recreation leave. 54 Even in this present age, Australian women are not immune according to reports in Westem Australia where US troops stilI conduet their rest and recreation. The Beijing Document does not make any reference to the perpetration of violenee against women in these cireumstances. It is worth noting at this point that the treatment of violence against women in eonnection with the military is not viewed with the same degree of importance as the purchase of military equipment. The Women's International League for Peace and Freedom (Australian Section) undertook a campaign to institute, amongst other things, acode of conduct for the training of US troops in Australia in March 1997. The Australian Government cIaimed that no action needed to be taken to protect women against violence as the agreement signed with the United States Government "covered" the relevant ground. A closer examination of this document, technically caBed the "Status of Forces Agreement", which was signed in 1963, reveals a detailed articulation of protocols dealing with items such as cars and household goods belonging to US troops but no mention of protocols dealing with sexual abuse. While there is complete inaction to protect women in Australia, it is ironie to note that the State Government in Queensland acted to liberalise their prostitution laws in time for the visit of US troops to ensure that the men wouId not be unduly prosecuted. Apart from the direct violence ¡nflicted upon women by the culture of militarism, what is less recognised is the indirect violence associated with it. Although the Beijing Document states that "excessive military expenditure" affects people living in poverty who are deprived because of the lack of investment in basic services,55 Ihis critique does nol in any 52 53

54 55

At 28. See Enloe, Bananas, Beaches and Bases: Making Feminist Sense of Intemational Politics (Pandora, London 1989) pp86-87. "1t's not only men in uniforrn who pay the price of war" in Rigg & Copeland (eds), Coming Out! Women's Voices, Women's Lives (Nelson in association with Ihe ABC, Melbourne 1985) p 113. Beijing Declaration and Platform for Aclion Ch II para 15

(1997) 19 Adel LR 45-58

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way address the fundamental mechanics of military spending. In the first instance, the use of the tenn "excessive" to denote sorne level of censure is ambiguous as it does not define what constirutes "excessive" spending, and it also contradicts the statement calling for complete disarmament as it implicitly sanctions a non-excessive level of military spending. In addition, this statement does not reflect the fact that it is not only people living in poverty who suffer from military spending, as the deterioration of social capital has repercussions for society in general, and women in particular. The world currently expends about one triJ1ion US dollars on the military every year. The cost of providing c1ean water, retiring the debt of developing nations, providing shelter and health care, preventing global wanning, stabilising the world's population, halting ozone depletion, eliminating starvation and malnourishment, eliminating illiteracy, preventing soil erosion and providing c1ean, safe energy can be met with a quarter of that sumo By withholding spending on these activities, women continue to live in siruations of violence as their health and psychological well-being are compromised and harmed. Jt is c1ear that violence against women is perpetrated in many forms. Although great attention is being paid to the category of sexual abuse and domestic violence, there needs to be a proportionate emphasis on the fonns of "silent violence" inflicted on women through the economic system and the culture of militarismo In addressing violence against women, we are also faced with a difficulty which we need to acknowledge. The spectrum of socio-economic-culrural situations facing the women of the world inevitably results in different priorities and definitions of problems. It is no secret that the hegemony of the North has ensured that the global agenda has been shaped according to its self-interest, and we need to guard against the trap of falling into the same panem in our interventions. Although there are benefits to be gained from the insights of postcolonial discourse on the question of the legitimacy of speaking for 'the Other', it is dangerous for us to engage in the false premise of postmodemism where the concept of the collective is debunked. If we are to engage in feminist intervenlions lo change the status quo, there mus! be concerted action to bring the different voices together to speak the language of prolest because women are 'the Other' in the patriarchal order. To enhance the strength of feminist interventions, there needs to be more dialogue between women across nations and within nalions. AIso of importance is the interaction which must occur between grassroots organisations and academics as the latter play an important role in shaping intellectual debate. These steps are crucial in our efforts to eliminate violence against women. The Beijing Document makes one salutary statement conceming the realisation of a society free of violence. It reads: "[d]eveloping a holistic and multidisciplinary approach to the challenging task of promoting families, communities and States that are free of violence against women is necessary and achievable".56 However, the resistance to bringing a "holistic and multidisciplinary approach" to bear is strong. There is still a great reluctance lo view women's issues and violence against women as an integral pan of the 56

Beijing Declaration and Platfonn for Action eh IV Section D para 119.

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LEE - VIOLENCE AGAINST WOMEN: NGO PERSPECTIVE

funetioning of society. The small gains whieh already have been made are constantly under threat, as witnessed by the faet that, in the lead up to the Beijing WCW, eonservative governmeots queried the use of the word "gender" des pite its widespread use in UN doeuments. Other delegates bracketed many resolutions which were agreed upon in the Nairobi Document during the various preparatory eonunittee meetings. The aim of being "holistic and multidiseiplinary" is belied by the faet that disarmament is not seen as a women's issue and the section whieh was most heavily braeketed in the whole document before the Beijing Conference was Seetion E: "Women and Armed Conflict". It is sobering to note that despite the rhetoric contained within the Beijing Document for the necessity of change, the rhetorie of the world's governments and the institution which brought the document to fruitioo, there has been little positive movement to realise the vision of a violence-free world. The encumbrances of the past are still present and there is much work to be done.

Ustinia Dolgopol*

A FEMINIST APPRAISAL OF THE DAYTON PEACE ACCORDS omen have struggled to make their experiences and conceptions of the world known and understood in the wider community. Feminisms have played a significant role in deepening our understanding of oppression and disadvantage and have begun to play an important role in formulating responses to them. With respect to the development of intemationaI humanitarian law and the intemationaI law of human rights, the graphic descriptions given by the media of the violations of the rights of women in Bosnia and Herzegovina have forced the intemational community to reconsider its definition of war crimes and crimes against humanity.1 Despite SOrne significant gains there are many situations in which the rights and interests of women continue to be ignored or deliberately overlooked. The General Framework Agreement for Peace in Bosnia and Herzegovina and the Annexes thereto2 (hereinafter the "Dayton Peace Accords") provide an example of this.

W

Although the intemational community through the Security Council and the General Assembly consistently condemned the rapes and other violations of the human rights of women in Bosnia and Herzegovina.3 liule attention was paid to these violations when the

*

2 3

BA (Hons) (SUNY Buffalo), ID (Hons) (SUNY Buffalo); Senior Lecturer in Law, F1inders University of Soutb Australia. This commentary is based on tbe presentation I gave at tbe symposium on Feminist Interventions in Intemational Law. Given tbe passage of time 1 tbought it important to consider the situation as it has evolved from the time the Dayton Peace Accords were signed. The additions are based on the reports of the UN High Commissioner for Human Rights and the Special Rapporteur of the Commission on Human Rights on the Silualion of Human Rights in the Territory of lhe Former Yugoslavia. See General Assembly Resolution 51fll5 which states: 3. Reaffirms Ihal rape in the conduct of armed conflict constilutes a war crime and that under cenain circumstances it constilules a crime against humanily and an act of genocide as defined in ¡he Convention on the Prevention and Punishment of tbe Crime of Genocide, and calls upon States to take all measures required for the protection of women and children from such acts and to strengthen mechanisms to investigale and punish alI those responsible and bring tbe perpetrators to justice. Rape and Abuse oJ Women in the Areas oJ Anned Conflict in the Fonner Yugoslavia AIRES/51/115, 12 December 1996 paras 8,9. (1996) 35 ILM 89. Sorne of the reso1utions on the subject of the rape and abuse of women are set out in General Assembly, Rape and Abuse oJ Women in the Areas oJ Armed Conflict in the Fonner Yugoslavia, Report of tbe Secretary-General N48/858, 29 January 1994. See also Cornmission on Human Rights, Rape and Abuse oJ Women in the Territory oJthe Fonner Yugoslavia, Repon of tbe Secretary-General ElCN.4/1994/5, 30 June 1993.

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responsibilities of the new republic were negotiated. A close examination of the Dayton Peace Accords leaves one with the impression that the responsibility for addressing past violations of human rights is being given to the international community, through both intergovernmental and nongovemment organisations. Although I believe there are sound arguments to be made in favour of placing the conduct of war crimes trials in the hands of the international community, other responsibilities such as the provision of services (medical and psychological), monetary assistance and the creatíon of mechanisms to record and uncover the truth about past events, should be borne by the government. The rights of women can not be furthered in a country where the government can absolve ítself of any oblígation to address the aftermath of human rights violations cornmítted on its territory. This is particularly so when the state is comprised of the two Entities responsible for those violations even if the individuals in power were not personally involved in the commission of the violations. It is increasingly apparent that the situation of victims of rape and sexual abuse are being ignored by the new Republic of Bosnia and Herzegovina. The Special Rapporteur on the Situation of Human Rights in the Territory of the Former Yugoslavia has referred to the situation of victims of rape as one of the "silent ernergencies" present in the Republic. In her October 1996 report she indicates that individuals of both sexes who were raped or were the subject of other forms of sexual abuse ha ve not been given adequate support. 4 There ís also a suggestion Ihat rapes have continued to occur after the sígning of the Dayton Peace Accords. A recent resolution of the General Assembly recognises the "extraordinary suffering" experienced by the victims of rape and sexual violence as well as the difficulties they are having in obtaining necessary services and assistance with rehabilitation. It calls on a11 states and relevant intergovernmental and nongovernmental organisations to pro vide appropriate assistance. 5 The thesís of this cornmentary is that the Dayton Peace Accords should have dealt with the process of reintegration of those who had suffered from gross violations of human rights. In particular there should have been an acknowledgment of the need for services and monetary assistance to facilitate the process of recovery. Because of concerns about the impact of war crimes tri al s on the fragile peace brought about by the Dayton Peace Accords, too little thought was given to other methods by which the new government could have been encouraged to accept responsibility for the well-being of those who had been subjected to gross violations of human rights. The Constitution of the Republic of Bosnia and Herzegovina should have included provisions detailing lhe obligations of lhe new governrnent with respect lo those resident on its territory who had been the victims of such víolations.

4

5

Rehn, Special Rapporteur of the Cornrnission on Human Rights, Situation 01 Human Rights in the Territory olthe Former Yugoslavia FJCN.4/1997/9, 22 October 1996 para 28. GA Res 511115, Rape and Abuse 01 Women in the Areas 01 Armed Conflict in Ihe Former Yugoslavia AlRES/5l1) 15,12 December 1996 paras 8, 9.

(1997) 19 Adel LR 59-71

61

Although I do not question the necessity of bringing an end to the conflict, the failure of the Dayton Peace Accords to consider redress for past violations of human rights leaves residents of the new Republic vulnerable to further abuse. It also mean s that the emotional and physical consequences of past violations can be ignored by the new government. One wonders what impact this will have on the individuals concerned; their sen se of belonging to one country will not be fostered in a situation where their needs are not being addressed by their own government. And if there is no collective sen se of belonging, then the peace may not be an enduring one.

In the following cornrnentary I pro vide an overview of the provisions of the Dayton Peace Accords concemed with the promotion and protection of human rights and consider whether these mechanisms are a sufficient response to the violations of women's human rights which occurred in the territories that now comprise the Republic of Bosnia and Herzegovina. 1 then offer sorne suggestions as to the obligations that should have been undertaken by the new government.

TIIE DA YTON ACCORDS Even a cursory reading of the Dayton Peace Accords lea ves liule doubt about the rnistrust thal conlinued to exist between the Serbians, Croatians and Bosnians at the time the Accord was being drafted. 6 The negotiators and the parties themselves were under enormous pressure to fmd a "framework" for peace that in the first instance would allow for the cessation of hostilities and encourage confidence building. The emphasis on confidence building was one of the reasons the participation of the Organisation for Security and Cooperation in Europe (OS CE) was deemed necessary.' Sorne of those in volved in the negotiating process have responded to criticism of the Accords by emphasising the need to build trust and to create an atmosphere of cooperation between the warring factions. 8 TIte Dayton Peace Accords consist of a General Framework Agreement and 11 annexes. Almost all of the annexes contain provisions which will ha ve an impact on the promotion and protection of human rights. This commentary will focus on Annexes 4 (the Constitution of the Republic of Bosnia and Herzegovina), 6 (Agreement on Human Rights) and 10 (Agreement on Civilian Implementatíon).

6 7 8

This point has been raised by other commenlators on the Accords. See for ex:ample Morrison, "The Constiturion ofBosnia Herzegavina" (1996) 13 Conse Commentary 145. Por an ex:cellent overview of the Organisation for Securíty and Cooperation in Europe see Brett, "Human Rights and the OSeE" (1996) 18 Hum Rts Q 668. Anonymous, "Human Rights in Peace Negotiations" (1996) 18 Hum Rts Q 249. See in particular the conel usian of this artiele.

DOLGOPOL - DAYTON PEACE ACCORDS

62

The Constitution

Pursuant to Article 1 para 3 of the Constitution, the Republic of Bosnia and Herzegovina is to consist of two Entities, the Federation of Bosnia and Herzegovina and the Republika Srpska. Those living in Bosnia and Herzegovina are to be citizens of both Bosnia and Herzegovina as well as one of the Enlities (AnicIe 1 para 7). Citizenship of an Entity is to be determined by that Entity bUl is nol lo be denied arbitrarily. ArticIe 11 govems the protection of human rights and fundamental freedoms. Reading this articIe, one is struck by the fact that it defmes the rights of those within the territory of Bosnia and Herzegovina primarily by reference to regional and intemational human rights instruments. The European Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols is to apply directly in Bosnia and is to "have priority over a11 other law" (AnicIe 11 para 2). There is a short enumeration of rights in para 3 of Artide 11; surprisingly it does not refer to the rights of women. Paragraph 4 conlains a nondiscriminalion cIause. Pursuant to para 7 the Republic of Bosnia and Herzegovina is to become a party to a list of fifteen intematiooal instrumenls appended to the Constitutioo. There is an underlyiog tension in this Annex: 00 the one hand it sets out the structure for a new and hopefully democratic govemment committed to the promotion and protection of human rights, but on the other hand it emphasises the need for outside surveillance of the parties' compliance with their mandated human rights obligations. This is most evident in para 8 of ArticIe 11 which is entitled "Cooperation". It binds the authorities to cooperate with and provide unrestricted access to: any intemational human rights monitoring mechanisms established for Bosnia and Herzegovina; the supervisory bodies established by any of the intemational agreements listed in Annex 1 to [the] Constitution; the Intemational Tribunal for the Former Yugoslavia ... and any other organization authorised by the United Nations Security Council with a mandate conceming human rights or humanitarian law. 9 Although seemingly intended as a method of ensuring that the Entities and the Republic of Bosnia and Herzegovina work to further the human rights of those resident on their respective territories, it highlights the concems of the intemationaI community as to the 9

Another example of the powers given to the international community is contained in Annel( 7 concerning the creation of suitable conditions of return for refugees. Pursuant 10 Aniele III para 2 Ihe Parties are to give unrestricled access to UNHCR, ICRC and UNDP and "other relevant intemational. domes tic and nongovemmentaI organisations" in order lo facilitate their work with respect to the provision of reinlegration and medical assistance. These organisaLions are lo be allowed 10 carry out traditional human rights monitoring of basic human rights and humanitarian conditions.

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willingness of the parties to comply with tbe commitments tbey were undertaking. In addition, it places an onerous responsibility on the intemational community and may encourage both the national and Entity govemments to see themselves as a secondary component in working for the restoration of human rights. Further evidenee of the mistrust and the importance plaeed on independent contributions to the proteetion of human rights is contained in Article VI wbich defines the role, functions and composition of tbe Constitutional Court. The Court is to be composed of nine members, four selected by the House of Representatives of the Federation, two by the Assembly of the Republika Srpska and tbree by the President of tbe European Court of Human Rigbts after consultation with the Presidency (para 1). The tbree members selected by the President of the European Court of Human Rights are not to be eitizens of Bosnia and Herzegovina nor of a neigbbouring state. AH members of the eourt are to be appointed for an initial term of tive years and are not eligible for reappointment. The Parliamentary Assembly of the Republic of Bosnia and Herzegovina may change the method of selection for tbe independent judges after the tive year period has elapsed. The jurisdiction of the court is to inelude issues referred to it by any court in Bosnia and Herzegovina "conceming whetber a law, on wbose validity its decision depends, is compatible with [the] Constitution [or] tbe European Convention for Human Rights and Fundamental Freedorns and its Protocols", or with a general rule of public intemationallaw (para 3). Although Artiele X permits the Constitution to be amended it may not be amended so as to eliminate or diminish the rigbts and freedoms set out in Artiele II. The Human Rigbts Commisslon Annex 6, Chapter Two sets out the framework for a Commission on Human Rights. IO It is to consist of an Ombudsman and a Human Rights Chamber. The work of both involves consideration of violations of the rights set forth in the European Convention for the Protection of Human Rights and Fundamental Freedoms and diserimination in the enjoyment of the rights set out in a series of intemational instruments appended to tbe Annex. Pursuant to Artiele m para 5 the Commission is empowered to receive assistance from "any governmental, intemational, or non-governmental organization". The enmity existing between the parties becomes evident again in the provisions relating to the appointment of tbe Ornbudsman. The tirst appointee, who is to hold office for a non10

Chapter Three of Annex 6 gives sweeping powers to the intemational community to gain access to the territory of Bosnia and Hel7.egovina. Pursuanl to Ihe tenns of Chapler Three the parties invite severa! of the United Naúons human rights bodies and organs as well as regional human righls organisations to monitor closely the situation in Bosnia and Herzegovina (Artiele XIll para 2). In addition, the parties are to a1low full access to nongovernment organisations investigating or monitoring the human rights situation and are not lO impede them in their functions (Artiele XIll para 3). The parties a1so undertake to cooperate with a range of international organisations and bodies, including the Internaúona! Tribunal for the Fonner Yugoslavia (Article XIII para 4).

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renewable tenn of S years, is not to be a eitizen of Bosnia and Herzegovina or any neighbouring state and the Ombudsman is to appoint his or her own staff (Artiele IV para 2). The appointment of the Ombudsman is to be made by the "Chairman-in-Offiee of the Organization for Security and Cooperation in Europe" after consultation with the Parties (Artiele IV para 2). Generally allegations of human rights violations received by the Commission are to be forwarded to the Ombudsman unless the applicant specifies otherwise (Artiele V para 1). The Ombudsman is to investigate any such complaints and may institute investigations of his/her own (Artiele V para 2). The findings of the Ombudsman are to be made publico Special reports can be made to government organs or officials; there is an obligation on those receiving such reports to reply to them (Artiele V para 6). When a person or Entity fails to comply with the conclusions and recommendations of the Ombudsman, this is to be brought to the attention of the High Representative (Artiele V para 7). The Ombudsman has extensive powers of investigation, with the ability lo gain access to any government file and to compel government officials to provide relevant infonnation (Artiele VI para 1). The Human Rights Chamber is composed of fourteen members, four from the Federation, two from the Republika Srpska with the remaining eight members to be appointed by the Committee of Ministers of the Council of Europe. These members are not to be citizens of Bosnia and Herzegovina nor of neighbouring states. One of this group of eight is to be the President of the Chamber (Artiele VII para 1). The powers given to the Chamber inelude the ability to decide upon complaints of human rights violations referred to it by the Ombudsman or on the basis of complaints made directly to it by individuals, nongovernment organisations or groups of individuals (Artiele VIll para 1). Complaints being heard in other fora cannot be considered by the Chamber, and priority is to be given to "allegations of especially severe or systematic violations and those founded on alleged discrimination on prohibited grounds" (Article VIII para 1). Although empowered to facilitate amicable agreements in resolution, any such agreement must respect the rights and freedoms of the applicant and the text of any agreement must be published and sent to the High Representative, the OSCE'and the Secretary-General of the Council of Europe (Artiele IX). Otherwise fonnal processes are to occur before a panel composed of seven members, one from the Federation, one from Republika Srpska and four of the non-citizen members of the Chamber (Artiele X para 2). Save in exceptional circumstances hearings of the chamber are to be he Id in publico Decisions of the panels are to be reviewed by the full Chamber (Artiele X). Decisions of the Chamber, whether sitting as a panel or a full bench, are to include the steps required to be taken to remedy the established breaches and are to be forwarded to the High Representative, the SecretaryGeneral of the Council of Europe and the OSCE (Artiele XI).

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Tbe Higb Representative As the Accords called for the continued monitoring and close involvement of a significant number of intemational organisations in respect of hurnanitarian assistance, the rebuilding of the country's infrastructure and the establishment of government institutions which would uphold human rights, the parties considered it necessary to have the work of those organisations coordinated by a High Representative to be appointed by the Security Council (Annex 10 Artiele 1). In addition, the High Representative is to oversee the efforts of the Parties in building the structures and institutions of govemment and endeavours to promote human rights (Artieles I and 11). The High Representative is to be the "final authority" with respect to the interpretation of the Accords in regard to the civilian implementation of the peace settlement (AnicIe V).II Although the High Representative is not able to intervene in the affairs of the organisations operating in Bosnia and Herzegovina, such organisations are "requested" to pro vide information about their activities to the High Representative who is to facilitate the activities of aH external and nationa! bodies (ArticIe 11 para l(c». In addition the High Representative is to report on the implementation of the peace agreement to the "United Nations, European Union, United States, Russian Federation, and other interested govemments, parties and organizations" (Article 11 para 1(f). Further, the High Representative is to provide guidance to and receive reports from the Commissioner of the Intemational Police Task Force established in Annex 11 to the Accords (Aniele 11 para I(g». Another important aspect of the work of the High Cornmissioner is the elose working relationship this person is to develop with the International Force of Reconciliation. The High Representative is to attend meetings of the loint Military Commission and offer "advice ... on matters of a political-military nature" (Artiele II para 7). Similarly, the loint Civilian Commission to be established by the High Representative is to inelude the IFOR cornmander (Artiele n, paragraph 2). Observations Despite the emphasis given to the promotion of human rights in the Accords, little is said about the situation of those who suffered violations of human rights during the war. Although it would nol have been possible lo obtain a peace settlement which specified all of the violations nor to name those responsible, it should have been possible to indicate that, whatever the source of their injury, those who did suffer violations of their human rights were to be given priority by the government and that positive measures were to be taken by the government and the Entities to redress those violations. The human rights mechanisms created in the Accords could have been charged with rnonitoring the situation of those individuals who were victims of past human rights violations. The lack of redress 11

Other annexes to the Accords detail the steps to be taken 10 demilitarise Ihe Entities and lo create a civilian police force. These annexes creale additional mechanisms for overseeing their implementation.

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given to the victims is in itself a violation of their human rights. as the necessity for full and fair reparations and restitution has been recognised by the United Nations. 12 The general references in the Accords to the necessity to work toward rehabilitation and reintegration have not proved sufficient to encourage either the nalional govemment or the Entities to address the situation of the victims, including the women who were raped and sexuaUy assaulted. As noted earlier, a part of the reason for this may be the emphasis given in the Accords to the work to be carried out by intemational organisalions whether intergovernmental or nongovernmental. It would appear that those who should be responsible are abdicating that responsibility and looking to the intemational community to carry the burden. Unfortunately the international community do es not appear to be speaking in one voice about the priority to be given to those who have experienced gros s violations of their human rights. In the following section I consider briefly the difficulties facing the women and children who were raped and sexually assaulted during the war.

PRESENT SITUATION OF VICTIMS OF RAPE It does not appear that either of the Entities are taking seriously their responsibilities to pro vide assistance to the women who were raped and sexually abused. Equally troubling is the lack of coverage of this situation being given by the UN High Commissioner for Human Rights field operations in the Former Yugoslavia. None of the four reports available at present from the field offices 13 discuss the current situation of the women who were raped and sexually abused and who are within the territory of Bosnia and Herzegovina or who might wish to retum to that country. Even the Special Rapporteur, who does mention the profound suffering of the victims, does not give signiflcant coverage to the issue. Nor does her report clearly delineate between past and present cases of rape or the context in which they occurred or are occurring. However the comments she does make are worth quoting: Another silent emergency, especially in Bosnia and Herzegovina. is the fate suffered by victims of rape, of both sexes and including many children. These persons face problems of various kinds, including traumatic memories of the act itself, and the anguish of the decision whether to keep children conceived through rape or to give them up for adoption. In all of these cases, the victims need protection, psychological care and practical guidance. In the interest of justice and truth, cases of rape should be brought to court. The Special Rapporteur is concemed. however, about the position of witnesses who will testify in domestic 12 13

See generally Cornmission on Human Rights. The Right to Restitutinn. Compensatíon and Rehabilitation lar the Victims 01 Gross Violations 01 Human Rights and Fundamental Freedoms. Final Report ofthe Special Rapporteur FJCNA/Sub.211993/8. 2 July 1993. Reports oC the field operations are available on the inlemet al http://www.unhchr.ch.

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courts, or before the International Criminal Tribunal for the Former Yugoslavia, about violations of bumanitarian law cornmined in Bosnia and Herzegovina and elsewhere in the former Yugoslavia. She believes that aH such witnesses, and notably victims of sexual abuse, should receive adequate assistance and protection. Personal details should be treated with the strictest confidentiality and not disclosed unless absolutely necessary for the conduct of criminal proceedings. Governments should give priority to protecting such witnesses at the request of domestic courts and the Tribunal. 14 Later in her report the Special Rapporteur makes clear that she is concerned by the lack of cooperation the Entities are displaying with respect to the "apprehension and transfer to the International Criminal Tribunal at the Hague of all indicted war crime suspects".1 s She urges the international cornmunity to take appropriate action "[i]n the event that local authorities continue to prove unable or unwilling to undertake their obligations in this regard".16 This report has been cited by the General Assembly which has also expressed its concern about the "extraordinary suffering of the victims of rape and sexual violence" and the necessity to provide appropriate medical and psychological care to the victims as part of programs of rehabilitation. 17 Paragraph ID of the General Assembly's resolution suggests that the Entities are not cooperating as fuHy as they could with prograrns of rehabilitation, especially for those who are internally displaced. The General Assembly has demanded lhat: the parties cooperate fuHy with (he International Committee of lhe Red Cross, the United Nations High Cornmissioner for Human Rights, the Special Rapporteur of the Commission on Human Rights and her staff, as well as other mechanisms of tbe Commission on Human Rights. the United Nations High Commissioner for Refugees, the monitoring and other missions of the European Union and the Organization for Security and Cooperation in Europe. including by providing full access. 18 Another area of concem is the lack of willingness on the part of the Entities, particularly the Republika Srpska, to fulfil its obligations under Annex 7 to the Dayton Peace Accords with respect to the rights of refugees and displaced persons. Pursuant lO the terrns of Annex 7 anyone in the police, paramilitary or the military responsible for serious 14 15

As aboye, fn4 para 28.

Al para 35.

16

As aboye.

17

Rape and Abuse

18

AlRES/511115. 12 December 1996 paras 7, 8. Al para 10.

01 Women

in the Areas

01 Armed

Conflicl in the Former Yugoslavia

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violations of human rights is to be prosecuted and disrnissed from the relevant force (Artiele 1 para 3(e». 80th the reports of the UN High Cornrnissioner for Human Rights field operations in the Former Yugoslavia and the Special Rapporteur have indicated that the required vetting of the police has not taken place. 19 Further, the reports of the UN High Commissioner indicate police officers are not protecting retumees. In its 3 April 1997 report the Human Rights Field Operation based in Bosnia and Herzegovina stated that the police in sorne areas had attacked and harassed civilian retumees. There is little doubt that the failure of the two Entities to carry out their obligations as set out in Annex 7 will have a significant impact on the women who were raped and sexually abused. They are unlikely to trust those who in theory are there to protect them and would feel physically insecure if they attempted to retum to their homes. Given the participation of the mi1itary and the paramilitary force s in the violations of women' s human rights, the unwillingness of the Entities, in particular the Republika Sprska, to adhere to the agreed process for vetting demonstrates a fundamental disrespect for the human rights of women. AN ALTERNATIVE STRATEGY The theme of the symposium was "Reflections on the Past, Strategies for the Future". When 1 sat down to write my paper 1 thought about the situation of the Comfort W omen and whether we had learned anything about the experiences of women and their views of the assistance they wanl and the methods for delivering that assistance. During the lntemational Commission of Jurists mission undertaken with respect to the Comfort Women issue,20 my colleague, Snehal Paranjape, and 1 interviewed more than 40 women. Consistently in those interviews, the women emphasised that the horrors they experienced did not end when the rapes ended. For them the emotional and psychological pain continued for the remainder of their lives. They described the enormous emotionaI burden of having to keep secret their experiences, the constant sense of sharne and the knowledge that they would be ostracised by their communities if anyone leamed of their past. For those whose experiences were known, many felt little choice but to Iive in isolation. Sorne had to endure insults and verbal abuse from their husbands and their societies. Fifty years after the events the feelings of torment and of a great sense of 1055 remained overpowering. During the interviews the women described the importance of receiving a full and frank apology, the necessity to receive compensation in recognition of the harrns they had 19 20

See January 1997,3 Apri1 1997 and 29 May 1997 reports of the Human Rights Fie1d Operation in the Forrner Yugoslavia (HRFOFY) available on the internet, as aboye, fn13 and Rehn, as aboye, fn4. The author was a member oC an investigative mission sent by the International Commission of Jurists to the Philippines, Japan, the Republie of Korea, and lhe Demoeratie People's Republic of Korea lo inquire into the situation of the women who had been he1d by Ihe Japanese armed forees as so-called "Comfort Women". The olher member of the mission was Snehal Paranjape, an Indian solicitar. A report of the mission has been published by the International Cornmission of Jurists, see Dolgopol & Paranjape, Comfon Women: An Unfinished Ordeal (lCJ, Geneva 1994).

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suffered, the importance of accessing medical services and counselling. It was crucial to the women's sense of empowerment that those working with them understand their situation and have empathy and respect for them. If we had learned from past experiences then the govemment of Bosnia and Herzegovina and the Entities that make up the Republic would not have been allowed to absolve themseIves of responsibility. The structure of the Dayton Peace Accords allows and in faet encourages the Republic to step back from its responsibilities. The govemment is able to elaim that it is the intemational cornrnunity which must respond to the women, not it. Although 1 recognise that in a wartom country, the monetary and human resources to undertake aH the steps needed for the full rehabilitation and reintegration of the women who were raped and sexually abused will not be easy to Iocate, it should still be possibIe for the government to devote some resources to this pressing situation as a matter of priority and to work closely with the intemational cornmunity in the setting up of services and other necessary programs. As noted aboye, this is not occurring. It is time the intemational community, whether through the General Assembly, the

Cornrnission on Human Rights, the Security CouneiI or the various nongovernment and intergovernmentaI organisations working in the territory of the Former Yugoslavia, insisted that the govemment of the Republic become a full partner in efforts to redress the violations of human rights committed against women. Oblique references to the importance of cooperation and the obligation of all states to provide appropriate assistance are not sufficient. The obligations of the Republic have to be elearly enunciated. Not to do so is to condone the present inaction of the government and to make the international cornrnunity an accomplice to the continuing violations of the rights of women.

In terms of govemment responsibility, specific ministries should have been named as being responsible for providing reports to the High Representative on progress being made with respect to the reintegration and rehabilitation of those who experienced gros s violations of their human rights. In addition, these rninistries should have been made responsible for providing a quarterly assessment of the needs of those still traumatised by the war; this would assist in the facilitation of the work of intemational government and nongovernment organisations and would make the Bosnian government a responsibIe and direct pI ayer in this area. At the moment, judgements about priorities and needs are being made by those who are outsiders to the country and are not part of the population which must work together to build a new country.

In addition to identifying those within the national government who should be responsible for reporting on progress and areas of need, officials of each of the Entities should haye been named who would be responsible for carrying out such work within an Entity. Making the Entities and the national government directly responsible would haye sent a message to those suffering human rights violations that the government believes their needs to be important. It would also help to build the necessary infrastructure and commitment within the govemment and the nation. It is important to those who haye

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suffered gros s violations of human rights to know that their societies are aware of the violations perpetrated against them and that they have the support of their societies in their attempt to overcome the physical and psychological affects of those violations. Looking to the future, such support is vitally important as there will come a point when the majority of the intemational organisations and agencies working within the country at present will leave. If the necessary structures and support mechanisms are not in place when that happens the victims will be left in an untenable situation as they will not be able to call on their compatriots to provide the required assistance, whether material or moral. In addition, the involvement of the government and the Entities should in elude an obligation to develop human rights education prograrns; these are necessary to sensitise the population to the impact of human rights violations on individuals as well as the society as a whole. Tbere can not be rehabilitation in any meaningful sense if the truth of the country's past is not addressed. "Unless a society exposes itself to the trutb it can harbour no possibility of reconciliation, reunification and trust. For a peace settlement to be solid and durable it must be based on truth."21 It is not clear that the Accords or the negotiations leading to the Accords gave sufficient attention to the importance of putting in place a mechanism which would allow for an in depth discussion of the legacy of the war. A mechanism for encouraging discussion which does not focus on blame and does not allow a discussion to be side-tracked by political expediency is necessary if the society is to be rebuilt and become a nation. With respect to individual women and children, there is a need for a fund which would provide assistance for efforts at reintegration into the cornmunity. The purpose of such a fund would be to cover tbe cost of women re-establishing themselves in their homes, economic assistance with living expenses, specialist medical services, counselling, psychological and psychiatric treatment, research into issues faced by wornen attempting to reintegrate into their communities after the infliction of rape and sexual assault, and public education campaigns to highlight the trauma experienced by those who have been raped and sexually assaulted. Al! work in this area must assist in restoring the women's sense of self worth and dignity. In addition, a separate fund should be created to offer sorne form of compensation to the women who were raped and sexually assaulted. There is no mention of compensation for those who experienced human rights violations which infringed their physical safety and affected their psychological well being. In contrast, Annex 4 Artiele 11 para 5 allows for 21

Roberto Canas, quoled in Boraine, "Altematives and Adjuncts to Criminal Proseculions" speech delivered on 20 July 1996 in Brussels al Ihe conference on Justice in Calaclysm: Criminal Tribunals in the Wake of Mass Violence. See http://www.truth.org.za/reading/speechOl.htm as quoted in Byrt, "Reconciliation - The Palh 10 Self-Determination: Comment on Repon of the Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families", student essay submitted 20 lune 1997 (essay in possession of Ihe author).

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the return of refugees and displaced person and states that they are to have restored the property of which they were deprived in the course of hostilities or be compensated for any property that cannot be restored. Annex 4 also contains a provision calling on the Entities to provide financial assistance to displaced persons who wish to returo to their hornes. This dichotomy between the approach to violations of physical and mental integrity and violations of the right to property has occurred at the clase of previous wars. In respect to the legislation providing for the payment of compensation by Germany put into effect by the AlIies al the close of World War n, the report of the Special Rapporteur on the Right to Restitution, Compensation and Rehabilitation for the Victims of Gross Violations of Human Rights and Fundamental Freedoms contains the following statement: many observers rnaintained that damage to property and possessions received too favourable consíderation in comparison with the less generous treatment of damage to life and health. 22 Creativity and commitment are needed if we are to move forward in the protection of the rights of women and the girl child. As is evident from the Dayton Peace Accords, cornmitrnent to the rights and interests of women can not be taken for granted even when there is overwhelming evidence of the víolation of women's rights. A part of our strategy for the future must be the continued lobbying of those responsible for the development of interoationallaw, whether at the United Nations or in Departments of S tale or Ministries of Foreign Affairs. It is important that those with the power to affect the outcome of negotiations and to elaborate new ideas for redress be encouraged to thínk about altemative responses lo systernatic and gross violations of human rights. Qur present approach tends to overlook the real needs of those who have suffered violations of human rights and facuses on what ís perceived lo be the "political realities". It is nol clear that this mind-set has led to durable and workable solutions to situalions where mass violations of human rights have taken place. Perhaps it is time to be less pragmatic and to give greater prominence to the many "ferninist interventions" which have been and are being made. Progress involves risk taking; it may also involve a redefinition of what constitutes progress.

22

As aboye, fn 12 p45.

Krysti Justine Guest*

EXPLOITA TION UNDER ERASURE:

ECONOMIC, SOCIAL AND CULTURAL RIGHTS ENGAGE ECONOMIC GLOBALISATION

[I]t might be pointed out that, whereas Lchman Brothers, thanks to computers, "earned about $2 million for '" 15 minutes work," the entire economic text would not be what it is if it could not write ¡Iself as a palimpsest upon another text where a woman in Sri Lanka has to work 2,287 minutes to buy a t-shirt. The "post-modem" and "pre-modem" are inscribed together. 1

WlUTE FEMINISTS AND HUMAN RIGHTS DISCOURSE n the c10sing paragraphs of the final chapter of The Alchemy 01 Race and Rights 2 Patricia Williams moors a story about being jostled from the footpath into the gutter by a group of 10ping, white adolescent basketball players. Responding:

1

[i]n a thoughtless instant 1 snatched off my brown silk headrag, my flag of African femininity and propriety, my sign of meek and supplicatory place and presentation. 1 released the armoured rage of my short nappy hair ... and hissed "Don't 1 exist for you? See me! And deflect, godarnmit!") Williams' demand goes unheeded: "[t]hey gave me wide berth. They c1early had no idea that 1 was taIking to them or about them." It is only when Williams clothes her body in the discourse of rights that the white boys recognise her gaze, albeit diffidently, and permit her active participation into therr economy. "1 stood tall and spoke loudly into their ranks: '1

*

1

2

3

BA (Hons), LLB (Hons) (Melb). Krysti Justine Guest is currently employed in the Commonwealth Parliamentary Research Service as a legal adviser on human rights. Obviously the views in this paper do not reflect those of the Cornmonwealth. The author wishes to thank Belinda Johnston. Shelley Marshall. Anne Orford and Rob Sparrow for their comments on the anide and their ongoing commitment to questions of intemational economic justice. Spivak. In Other Worlds: Essays in Cultural Politics (Routledge, New York 1988) p 171. WiIliams, The Alchemy 01 Race and Rights (Harvard Universily Press, Cambridge, Mass. 1991). Al p235.

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have my rights!' The Dartmouth Summer Basketball Camp raísed íts collective eyebrows and exhaled, with a certain tested nobility of exhaustion and solidarity."4 Williams' staging of this slippage between the response of the white boys to her hissing anger and her tall-standing declaration of rights is offered as a "gift of inteIligent rage". This gift is a reiteration in the text' s fmal moments of Williams' complicated cornrnitment to rights discourse as a useful political conduit, the value of which lies in its operation as a standard mediating the entry of oppressed social groups into the dominant social economy, ''[he magic wand of visibility and invisibility, of inclusion and exclusion, of power and no power".5 The eloquence of the argument circling Williams' "gift of intelligent rage" is highly compelling and consequently is often exercised by defenders of rights diseourse to trump eritics. For example, in her ground-breaking work on feminist analysis of intemational law, Hilary Charlesworth summons the "immense alchemieal fiCe" which breathed life into the United Sta tes Black civil rights movement to fuel feminist interventions into intemational human rights diseourse,6 interventions which have met with a surprising level of formal suecess. 7 However, whilst fully acknowledging the strategic importance of such actions, 1 am not al aIl convinced that, as a white feminist seholar in a eolonised country, my subject position in a paper eoneeming human rights should inscribe, sans question, the position of a Black American feminist. This intellectual move seems a little too amnesie that the gift WilJiams' presents lo her reader is bound up with the heavily taxed eoncept of

4 5

6

7

At pp235-236. At p164. Williams' thesis is partially produced in response to me broadly Marxist critique of the Critical Legal Studies (CLS) movement that rights discourse fails to facilitate a Iiberatory agenda. See Tushnet, "An Essay on Rights" (1982) 62 U Tex L Rev 1386. For WiIliams, announcing the disutility of rights discourse per se, places the CLS critique within an (at leasl) race-blind political field and Ihe promise offered by rights is the possibility, even rhetorically, ofbounded autonomy. After quoting Williams, Charlesworth notes thal "[tlhe empowering function of rights discourse for women, particularly in the intemational sphere where we are still almost completely invisible, is a crucial aspect of its value." Charleswonh, "What are 'Women's International Human Rights'?" in Cook (ed), Human Rights 01 Women: National and Intemational Perspectives (University ofPennsylvania Press, Philadelphia 1994) p61. After years of struggle, feminist activists succeeded in having the human rights of women and the girl-child named as an "inalienable, integral and indivisible pan of universal human rights" in paragraph 18 of me Vienna Declaration and Programme of Action 1993, the agreed document from the World Conference on Human Rights. This followed the success of securing me issue of violence against women being deemed worthy of human rights ¡nterest in me 1993 General Assembly Declaration on me Elimination of Violence Against Women (NRes/4S/104), and a UN Special Rapporteur on violence against women being appointed. For an analysis of me precarious status of violence against women as a violation of women's human rights, see OUo, "Violence Against Women - Something Other Than A Violation of Human Rights?" (1993) 1 Aust Feminist U 159.

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difference. 8 In the twilight of the post-modem age, discussions of difference should not merely engender a reverentiaI nad al what are lermed "different voices" but should compeI critique of the way in which difference is generated as oppression, what its production authorises and what it excludes. One way to begin revealing what the discourse of human rights excludes might be to review the initial body figured by Williams in her story, the hissing body armoured with short nappy hair, which demands the gaze of the white college boys, but cannot be seen. As psychoanalysis has taught us, the concept of the gaze is not a matter of indifference but signifies a complicated apparatus through which difference is negotiated and valued within Westem communities. 9 According to psychoanalysis, from the point of view of the hegemonic subject (male, white, heterosexual, middle-class), difference, particularly sexual difference, is (mis)recognised as the absence of a coherent, reflective self. Fearful of this perceived absence, the hegemonic subject, or more precisely the dominant ideology, scripts and repudiates "the other's" difference as Ioss, a no-thing, and attempts to repudiate any association with this loss by creating a homosocial economy. Paradoxically, however, the "no-thing" of the other is in fact the pivotal thing, as it is its perceived incoherence which shores up the hegemooic subject's sense of cohereoce. According to this logic of symbiosis, the very existence of the incoherent other operates as a constant threat to the hegemonic subject, a threat which must be persistently kept in check through the repudiation of the other. 1O Williams' story coincides with this psychoanalytic schema. Displacing her meek and supplicatory body with a body displaying the armoured rage of short nappy hair, the unmistakable sign of a powerful Black woman, Williams attempts to wrench the white boys' recognition of her from an absence which can, without retlectíon, be railroaded into the gutter to that of an active and legitimate subject, recognisable wilhin Iheir public economy. However Williams' transgression from Ihe meek and slave-like "object of property" to a powerful Black, gendered subject only allows her to switch from a site of invisibilily to one of inscrutability ("[t]hey gave me wide berth. They clearly had no idea I was talking to Ihem"). It is the status of this inscrutable body as excessive which alerts the reader to what must be teared, colonised and submerged in order for Williams' final body, clothed in the discourse of human rights, to become visible and valuable within the white adolescent's homosocial economy. 8

9 10

As aboye, fo 5. The concept of "difference" has become somewhat of a synecdoche within Westem ferninist intellectual production for the enabling crisis presented by the teachings of many Third World women and certain strands of rigourous post-structuralism. For a cogent discussion of this see Spivak, In Other Worlds: Essays in Cultural Potities, pp 134 -153. See Grosz, Sexual Subversions: Three Freneh Feminists (Allen & Unwin, Sydney 1989). For example, through its analysis of the feminine subject as the "¡ncoherent olher" which is persistently encroaching on the "bounded" masculine subject, Lacanian psychoanalysis offers a useful explanation for the psycho-social dynamics of the violent repudiation of women within Westem societies through sexual violence. As above, pp 126-137.

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As writers such as Gayatri Chakravorty Spivak 11 and Edward Said l2 have elaborated, the physchoanalytic schema of subjectivity is both produced by, and reflective of, a more general ideological drive of Eurocentric imperialism, the "civilising" urge which operates along the differential of constructing particular groups of peoples as disorderly, excessive, primitive, other, and in doing so secures a construct of "the West" as rational, enlightened, powerful. If, as Anour Abdel-Malek suggests "contemporary imperialism, is, in a real sen se, a hegemonic imperialism"13 then it is fram this perspective that my "1" would reconstellate the economy in which WilIiams' is circulating her gift. For, as compelling as 1 find WiIliams' argument, 1 am equally convinced that the potential for international human rights discourse to be manipulated as a vehicIe for Westem imperialist hegemony is irnmense and not to be trifled with. 14 Underpinned by a history of Westem legal-political values, constitutionally forced to negotiate the difference between "intemational" and "universalising", human rights discourse, as Williams asserts, also occupies the perilous position of keeper of the "magic wand" of "invisibility and visibility" of the disenfranchised. One consequence for those controlling such a powerful magic wand is the urge to occupy the inescapably civilising position of "saviour ofthe oppressed".15 It is, 1 think, the coalescence of these concerns which renders the invocation of human rights discourse vulnerable to a particular brand of imperialism, what Spivak curtly names benevolent colonialism. 16 White feminists have persistently attracted Ihe charge of benevolent colonialism by engaging in anal ytic practices which assume that the networks of power operating on the bodies of women are continuous and can be analysed by reference to universal frameworks. By writing out the specificity of other women, the Northem feminist scholar is inevitably secured as the subject of her own investigations, foreclosing the possibility of a political analysis which effectively responds to specific forms of other women's oppression. 17

11 12 13 14

15

16 17

Spivak, In Other Worlds: Essays in Cultural Politics ppI34-153. Said, Orientalism (Pantheon Books, New York 1978). Abdel-Malek, Social Dialectics: Nation and Revolution (State University of New York Press, Albany 1981) p145 cited in Mohanty, "Under Westem Eyes: Feminisl Scholarship and Colonial Discourse" (1984) 12(3) boundary 2 333 al 335. For an analysis of the relationships between human rights and imperialism within the context of intemational collective security see Orford, uThe Politics of ColleclÍve Security" (1996) 17 Mich J Int'l L 373; Orford, "The Uses of Sovereignty in the New Imperial Order" (1996) 6 Aust F eminist U 63. For example, the preamble to the Universal Declaration on Human Rights has an implicit civilising urge: "[w]hereas disregard and conlempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind": GA Res 217A(I1I), 10 December 1948. Spivak, In Other Worlds: Essays in Cultural Politics p179. Adrian Howe suggests key feminist approaches to intemational law are lravelling the benevolent colonialist route. See Howe. "While Westem Feminism Meets Inlemationa1 Law: ChallengeslComplicity, ErasureslEncounter" (1995) 4 Aust Feminist U 63.

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How, then, does a white feminist engage responsibly with the discourse of intemational human rights without inadvertently authorising the sovereignty of the Nonhern subject? In the spirit of Chandra Talpade Mohanty's wry condemnation "[s]isterhood cannot be assumed on the basis of gender; it must be forged in concrete, historical and polítical practíce and analysis",18 I will take as my anal y tic opening the space between the two 1995 international women's conferences in Beijíng, the Non Government Organisation Forum on Women and the United Nations Fourth World Conference on Women. 19 What I heard passionately repeated like a mantra from many ferninist networks of the South and a few from the North was that the critical issues which activist feminists must urgently address were the increasing globalisation of the economy, the unbridled power of trans-national corporations (TNCs) and the recolonising effects of intemational institutions and agreements such as the World BanIe, the International Monetary Fund (IMF) and, most particularly, the Uruguay Round of the General Agreement on Trade and Tariffs (GATT).20 Only within this global economic web could other conference themes (govemance, peace, human rights, personal violence) be meaningfully mapped. The economy of the United Nations (UN) conference, however, could not afford such gifts of intelligent rage. Although tbe Platfonn for Action's areas of critical concern relaling lo poverty and the economy refer to the unequal impact on women of programs of international financial inslitutions and economic globalisation, the genesis of this inequality is nol assigned to multinational capitalism nor the global imbalance of weallh. As Dianne Otto notes, the problem for poor women is characterised as liberal capitalism's bete noir, lack of equal access and opportunity, nothing that a bit of targeted credit, business training and entrepreneurialship won't cure. 21 In a Platform of 361 paragraphs, references to TNCs are negligible and to my knowledge the GATI is not mentioned at aH. Keeping in mind that the UN conference folIowed hot on the heels of the rhetorical ascension of women's human rights as key international concerns,22 how is one to evaluate the distance between the two conferences through a human rights lens whilst avoiding the duplicity of benevolent colonialism? 18 19

20

21 22

Mohanty, "Under Weslem Eyes: Feminisl Scholarship and Colonial Discourse" (1984) 12 boundary 2 333 al 339. 1 allemled Ihe Forum in my persunal capacity. Vnlike Ihe UN Conference, lhe NGO Forum was not geared towards producing an agreed Plalform for AClion, so Ihal my narration of "whal happened" as an altendee is even more personally circumscribed than theoretical manoeuvres would usually produce. Groups articulating these concems included: Developmenl Altemalives wilh Women for a New Era (DA WN); Indigenous Women's Nelwork; Grassroots Organisations Operaling Together in Sisterhood; Council for Economic Empowerment of Women in Africa; Women's Environment Development Organisation (WEDO); Intemational Association for Feminist Economics; Asian Women's Human Rights Council. Ono, "Holding Up Half the Sky, But for Whose Benefit?: A Critical Analysis of the Fourth World Conference on Women" (1996) 6 Aust Feminist U7. As aboye, fn 7.

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Spivak proposes one possible analytical framework in her complex analysis of the generation of "value" in critical scholarship.23 Spivak asserts that there are two mutually exclusive ways in which one can predicate the subject of a scholarly investigation. One is the "idealist" predication of the subject which, nurtured from the liberal humanist tradition, places the defining feature of the subject as "consciousness", where consciousness is not thought but is bound up with notions of the subject's intention towards the world. Analytical work from this perspective engages in evaluating the ways in which certain ideological positions which structure one's relationship lo the world operate to exclude other positions and how such exclusion establishes structures of domination. 24 The other possible predication of the subject, which is rarely attended to in critical scholarship, is the "materialist" predication which, from the Marxist tradition, assens that the defining feature of the subject is "labour power". It was Marx's fundamental insight into the nature of capitalism that "Iabour power" is not work (labour) but the ability of a person to create value which is greater than the value the labour cost that person (hence the dynamic of profit).25 A focus on the subject as labour power would entail an investigation of issues concerning the dynamic of exploitation in the creation of "value", rather than a focus on domination. Urging critical scholarship to take such a focus, Spivak remarks that such a theoretical move would create a persistent undoing of the role of exploitation in what is deemed valuable in the production of consciousness and culture. 26 As she carefully points out, this methodology is not an "embarrassing economic determinism", but rather a putting of the "economic text 'under erasure', to see, that is, the unavoidable and pervasive importance of its operation and yet to question it as a concept of the last resort".27 Taking my cue from Spivak, 1 would like to respond to the space between the two conferences by considering a materialist predication of the subject of intemational economic, social and cultural rights, the most likely bundle of human rights relevant to the macroeconomic issues raised at the NGO Forum. In order to rope off a field of inquiry, 1 wish to investigate how a series of reports authorised by key UN bodies produce economic, social and cultural rights within the light of economic globalisation. First, however, 1 would like to map out the meaning of economic globalisati6n as presented at the NGO Forum by the women of the South.

23 24 25 26 27

For a detailed exposition of Spivak's analysis of the quesúon of "value", see Spivak, In Orher Worlds: Essays in Cultural Polirics pp 154-175; Spivak, Ourside in rhe Teaching Machine (Routledge, New York 1993) pp53-76. For example, the argument thal rape results from uncontrollable hormonal urges excludes the feminist analysis that rape is an issue of power and that naturalising such power peffiÚts such domination to continue. Marx, Capital Vol 1, Moore & Aveling (trans), (Progress Publishers, Moscow 1954) pp4387. Spivak, In Orher Worlds: Essays in Cultural Politics pp154-175. Al 168. Emphasis original.

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ECONOMIC GLOBALISA TION The glossy phrase "economic globalisation" generally refers to the current, unprecedented expansion of multinational capitalism throughout the globe, the free market ethos no longer fettered by state socialist blockage. The subjects of this increasing economic integration are TNCs, operating primarily through foreign direct investment in private industry, chiefly agriculture, pharmaceuticals, arms and increasingly services and telecornrnunications. 28 Through rnonopolistic strategies of rnergers, acquisitions and alliances and through intrafmn transactions, TNCs wield irnmense and highly concentrated control over global assets and intemational trade,29 with the vast majority of key TNCs residing in a few industrialised countries. 30 This exponential blossoming of TNCs winds through a range of factors. The entangling by Northem financial institutions of rnany Southem countries in the mire of foreign debt during the 1970s and the subsequent Structural Adjustment Programs (SAPs) of the IMF and the World Bank, forced on rnany Southem (and to a lesser degree Northem) countries a strictly free rnarket econorny arnenable to TNCs based on minimised Governrnent social services, deregulation, privatisation and export production. 31 The "technological revolution", via areas such as microelectronics, biotechnology and communications, has also significantly altered patterns of production in ways enabling of global capital. 32 The effects of econornic globalisation are enormous and only a few effects can be mentioned here. Globalisation has further entrenched the reign of NorthlSouth inequality and the deprivation, starvation and death wrought on many Southern countries by SAPs.33 TNCs' vast economic reach has undermined the power of many States vis-a-vis investment requirements, a position which has a cascading effect on State power in relation to the

28

Background Document Prepared by the Secretary-General on The Relationship Between the Enjoyment 01 Human Ríghts. in Particular Intemational Labor and Trade Uníon Rights. and the Workíng Methods and Activities 01 Transnational Corporations ElCN.4/Sub.211995111 p4.

29

At pll. The Secretary-General notes that "[i]ntrafrrm transactions, which account for 40 per cent oC world trade, give TNCs the possibility 10 exploit price diCferentials around the world and sel prices as global oligopolies." At p2. The Secretary-General notes thal "of Ihe 100 largest TNCs, 53 are located in Westem Europe. 27 in the Uniled States and 14 in Japan". There is a wealth of writing in this area. Por a general overview, see Bello, Dark Victory: The United States. Slructural Adjustment and Global Poverty (Pluto Press, London 1994; George, AFate Worse Than Debl (Penguin, Harrnondsworth 1988); George, The Debt Boomerang (Pluto Press, London 1992). Development Alternatives with Women Cor a New Era (DAWN), Markers on the Way: The DA WN Debates on Allemative Development (DAWN, Barbados 1995) pp5-6 which discusses the role of integrated computer technology, global communication systems and genetic technology in furthering the reach and control oflNCs. As aboye, fns 28 and 32.

30 31

32

33

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GUEST - EXPLOITAnON UNDER ERASURE

provision of social services, industrial relations and general economic management. 34 Through economic might, locational f1exibility and subcontracting, the quality of employment offered by TNCs is often precarious, repetitive, and operates in oppressive and abusive conditions. 35 Notwithstanding TNCs' concentration of economic power, their operational practices have created a decreasing spiral of employment opportunities, affecting unemployrnent worId wide and often decimating local industry. 36 Outside of the economic frame, the poverty and inequality bolstered by globalisation can be linked to the growth of transnational trafficking in women and children and a rise in fundamentalist, patriarchal forces,37 scripting violence in the name of "the nation" in the wake of a failed "decolonisation".38 Institutional mechanisms to facilitate the power of lNCs coalesced in the Uruguay Round ofthe GATf39 described as: concerted efforts on the pan of the developed countries to reshape the existing intemational trading system [toJ promote maximurn freedom of lNes to operate worId-wide. 40 34

35 36

37 38 39

40

Background Document Prepared by the Secretary-General on The Relationship Between the Enjoyment of Human Rights, in Particular International Labor and Trade Union Rights, and the Working Methods and Activities ofTransnational Corporations pp20-33. At p 15 the Secretary-General notes that trade union power has been specificalIy undermined through either non-union preferences for employees or government prohibitions on union activity, particularly in Export Processing Zones. See as above pp20-33. These conditions do not merely prevail in the South, but are clearly operating in the North in situations such as textile homework. As above, fn 34; Development A1tematives with Women for a New Era (DAWN), Markers on the Way: The DA WN Debates on Alternative Development p6; and Background Document Prepared by the Secretary-General on The Relationship Between the Enjoyment 01 Human Rights, in Particular International Labor and Trade Union Rights, and the Working Methods and Activities of Transnational Corporations p26. For example, lNes' switch of focus to low labour intensive services industry, their practice of mergers and acquisitions which result in operational c10sures and an increase in speculative trading, which has a destabilising effect on employment. Development Altematives with Women for a New Era (DAWN), Markers on the Way: The DA WN Debates on Alternative Development p7. Spivak, "Supplementing Marxism" in Magnus & Cullenberg (eds), Whither Marxism? Global Crises in International Perspective (Routledge, New York 1995) p114. The Uruguay Round was the eighth in a series of multilateral trade agreements aimed al encouraging intemational trade through the reduction of tariff and non-tariff restrictions on imports. For a detailed analysis of the intereSls at stake in this Round, see Raghavan, Recolonisation: CArr, the Uruguay Round and ,he Third World (Zed Books, London 1990). Saigal, "Why FearFree Trade in Services?" (1986) 21 Economic and Political Weekly 551 at 552, cited in Raghavan, Recolonisation: GATT, the Uruguay Round and (he Third World p44. At p74 Raghavan notes that pan of the reason the US pushed so hard for the Uruguay Round was the demand of lNes for íncreased deregulation in tbeir new investment areas of services and telecornmunications.

81

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The Uruguay Round prised apart traditional definitions of property related trade, and authorised hard core, deregulation policies in the areas of services (including finan ce, cornmunications), trade-related investment measures (domestic laws on foreign ownership) and trade-related intellectual property rights (TRIPs), all of which are enmeshed with the priorities ofTNCs. Negotiations were opaque and occurred with little inforrned input from the South. 41 The role of TNCs in the TRIPs agreement i5 particularly inforrnative. Discussing the input of thirteen key United States TNCs (incIuding General Electric, General Motors, Hewlett Packard, Monsanto, IBM and Johnson & Johnson) in brokering the main aspects of the agreement, James Enyart of Monsanto proudly remarked: [w]e went to Geneva where we presented [our] document to the staff of the GATI Secretariat. What 1 have described to you is absolutely unprecedented in GATI. Industry has identified a major problem in intemational trade. lt crafted a solution, reduced it to a concrete proposal The industries and and sold it to our own and other Governments. traders of world commerce have played simultaneously the role of patients, the diagnosticians and the prescribing physicians.42 oo'

Although exercising liule agency over outcomes, the effects on the South of the Uruguay Round of the GATI are irnmense and have precipitated what Chakravarthi Raghavan has characterised as the South's recolonisation. 43 More profoundly, however, the measures relating particularly to TRIPs reach far beyond issues of trade agreements: perrnitting patenting on biodiversity, including the possibility of human genetic material,44 summons foundational ethical questions of human rights. 45 41

42

At pp62-65 Raghavan notes this was due to lhe South's weak collective bargaining position during negotiations (due to the use of individualised forms of discussions), the South's inability to resource a sufficiently high level of economic staff and the general opacity within the media of the substance of the Round. Enyart, "A GATI Intellectual Propeny Code" Les Nouvelles lune 1990 pp54-56, cited in Women's Environment Development Organisation. Who Owns Knowledge? Who Owns the Earth? lntellectual Property Rights and Biodíversíty Under the New GAIT and World TraJe Organisation (Monograph, 1995) p2.

43 44

45

As aboye, fn 39. Pan of this recolonisation is lhc acccIeration of the f10w of resources from lhe South to the Nonh. See Raghavan, "$200 billion gain from Uruguay Round: Faet and Fiction" (1993) 29/30 Third World Resurgence 42. Although tbe TRlPs Agreement permits countries to generally exc\ude from patentability plants and animals, this provision is lo be reviewed every four years after the establishment ofthe World Trade Organisation and cornmentators suggest tbat "the USA can be expected to exercise pressure oo, for tbe inclusion of a requirement of patentability of Iife within tbe Agreement on TRIPs": Trebilcock & Howse, The Regulatíon ollnternational Trade (Routledge, London 1995) p268. Shiva, "The Effects of WTO on Women's Rights" (1995) 61/62 Third World Resurgence 52. For a general diseussions of TRIPs and accusations of South "pirating" of transnationally owned resources see Raghavan, "Biopiracy Reaches New Heights" (1995) 63

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To pick but one example, if a farmer eeking out a meagre existence must now pay a royalty to a Westem based TNC on a seed saved from her own crop46 because a history of industrial exploitation has placed the TNC in a position to "control" the seed (code for "historically control the labour power of the farrning communities") then what is the meaning of the right to food? Is it not that fo'oo, and hence life, has become a private privilege for which these farmers must pay? And if a farmer must pay for life, not through a relation of exchange but within a legal cage where her living is in violation of a patent, then hasn't she been relegated to a status even more shadowy than the slave (the object of property) - an infringement on the object of property? It is from the heart of this grim perspective that 1 would like to scrutinise the predication of the subject of econornic, social and cultural rights.

ECONOMIC, SOCIAL AND CULTURAL RIGHTS Historically, the rights mapped in the Intemational Covenant on Economic, Social and Cultural Rights (the Covenant) have been the human rights regime's shabby second cousin, forced lo stumble along after the flash and bravado of civil and polilical rights. 47 However, with the fading of the Cold War, the age of economic, social and cultural rights has dawned, their indivisibility, interdependence and inter relationship with civil and political rights strongly affirmed in the 1993 Vienna Declaration and Program of Actian. 48 Or so the story goes. In order to plat the predication of the subject of these economic, social and cultural rights, I will consider eight reports submitted between 1989 and 1995 by three Special Rapporteurs to the Sub-Commission on the Prevention of Discrimination Against Third World Resurgence 12 and Shiva, "Who are the Real Pirates?" (1995) 63 Third World Resurgence 16.

46 47

Shiva "Conflicts of Global Ecology: Environrnental Activism in a Period of Global Reach" (1994) 19 Altematives 195 at 204. The Covenant entered into force on 3 January 1976 following the deposit of the 35th inslrumenlofratification. As at 30 June 1994, it had been ratified by 129 States. See Note by the Secretary-General, States parties to the lntemational Covenant on Economic. Social and Cultural Righrs and Status o[ the Submission o[ Reports in Accordance with the Programme Established by the Economic and Social Council in Resolution /988/4 and Rule 58 o[the Rules of Procedure ofthe Committee E/C. 121199412. For an overview ofthe history of the Covenant see Craven, The lntemational Covenant on Economic, Social and Cultural Rights: A Perspective on its Development (Clarendon Press. Oxford 1995) ppl16. Unlike the /ntemational Covenant on Civil and Political Rights. the Covenant has no

48

individual communications procedure and it had no effective supervisory body until 1986. See also Alston, "The CommiUee on Economic, Social and Cultural Righls" in AIslon (ed), The United Nations and Human Rights: A Critical Appraisal (Clarendon Press, Ox.ford 1992) p473. Operative paragraph 5. The Dec\aration is the agreed platform of the World Conference on Human Rights, held in Vienna 1993.

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Minorities. These reports focus on the realisation of economic, social and cultural rights generally (the Turk Reports),49 and specifically on income distribution (the Eide and the Bengoa Reports)50 and extreme poverty (the Despouy Reports).SI These reports fonn a backdrop to most resolutions on economic, social and cultural rights in the SubCommission and in the Commission on Human Rights. 52 Their generalist focus is more arnenable lo my invesligation than olher reports submitted lo the Sub-Commission during this time S3 and they are not restrained by the State based reporting system of the Committee on Economic, Social and Cultural Rights. Consequently, by interrogating them, one can tease out certain themes currently circulating within the UN machinery on economic, social and cultural rights.

49

50

51

52 53

The Realisation 01 Economic, Social and Cultural Rights: Preliminary Repon by Mr Daniel Turk ElCNA/Sub.211989/19 (herein cited as the Turk Report No 1); The Realisarion 01 Economic, Social and Cultural Rights: Progress Report by Mr Daniel Turk E/CNA/Sub.211990119 (herein cited as the Turk Report No 2); The Realisation oi Economic, Social and Cultural Rights: Second Progress Repon by Mr Daniel Turk E/CN.4/Sub.211991117 (herein cited as the Turk Report No 3); The Realisation 01 Economic, Social and Cultural Rights: Final Report by Mr Daniel Turk ElCNA/Sub.211992116 (herein cited as the Turk Report No 4). The Realisation 01 Economic. Social and Cultural Rights: Preparatory Document on the Relatianship Between the Enjoyment of Human Rights, in Panicular Economic, Social and Cultural Rights and lncome Distribution, Prepared by Mr Asbjorn Eide E/CNAISub.211994121 (herein cited as the Eide Report); The Realisation 01 Economic, Social and Cultural Rights: Preliminary Repon on the Relationship Between the Enjoyment of Human Rights, in Particular Economic. Social and Cultural Rights and lncome Distribution, Prepared by Mr Jose Bengoa ElCNA/Sub.2/1995/14 (herein cited as the Bengoa Report). The Realisation 01 Economic, Social and Cultural Rights: Preliminary Repon on Human Rights and Extreme Poverty Prepared by Mr Leandro Despouy ElCNA/Sub.211993116 (herein cited as the Despouy Report No 1); The Realisation 01 Economic, Social and Cultural Rights: lnterim Repon on Human Rights and Extreme Poverty Prepared by Mr Leandro Despouy ElCNA/Sub.211994/19 (herein cited as Ihe Despouy Report No 2); The Realisation 01 Economic, Social and Cultural Rights: Second lnterim Repon on Human Rights and Extreme Poverty Prepared by Mr Leandro Despouy ElCNA/Sub.211995/15 (herein cited as the Despouy Report No 3). See the Cornmission on Human Rights resolutions conceming foreign debt and structural adjustment, for example ElCN.411995/176, and the forthcoming report of the 1996 session. Other reports circulaling in Ihe pasl five years are: the reports of Ihe Special Rapponeur on the right lo adequate housing, for example The Right 10 Adequate Housing: Final Report by Mr Rajindar Sachar, ElCN.4/Sub.211995/12; Secretary-General's Preliminary Repon on Basic Policy Guide/ines on Structural Adjustment Programs, ElCNA/Sub.2/1995/1O; lnterim Repon on Opposition ro the lmpunity 01 Perpetrators 01 Human Rights Violations (Economic, Social and Cultural Rights) by Mr El Hadji Guisse, ElCN.4/Sub.2/l995/l9; Background Document Prepared by the Secretary-General on The Relationship Between the Enjoyment 01 Human Rights, in Panicular lnternational Labor and Trad,e Union Rights, and the Working Methods and Activities ofTransnational Corporations. These lasl three reports, although relevant, are only working papers and hence no! paTÚcularly useful for analysis.

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CAPITALISM, EQUALITY AND RIGHTS In producing their subject of economic, social and cultural rights, a curious continuum in aH eight reports is the silence surrounding the word "capitalism" which does not appear once. A typical example is the Turk Report's list of factors "responsible for the painful state of affairs in which hundreds of millions of people ... are deprived of [their economic, social and cultural] rights".5 4 The key factors lísted are directly linked to the cold face of multinational capitalism (debt, structural adjustment, income distribution, economic growth as a panacea) but "capitalism" itself is not permitted to appear. Jacques Derrida has suggested in a different context that the dazzling failure to name what is so crucial results from the need to posit an origin of society, an origin which must be sacred and hence need not be justified and cannot be revealed. Derrida writes: So dangerous is this supplementarity that one can only show it indirectly, by means of the examples oC certain effects derived from it. One can neither show it, nor name it as such, but only indicate it, by a silent movement of the fmger. 55 The threat of "equality" circulates through the Turk, Eide and Bengoa Reports as one such effect. The Turk Report wams of the dangers of an "unqualified egalitarianism" which has "a very destimulating effect on the creation of wealth"56 and Eide cautions that "[s]ome categories of 'welfare' measures ... may ... reduce creativity and productivity".57 The Bengoa Report is more blunt, blithely stating that although it is natural that aH people aspire to the living standards of the West, tbese standards cannot be seen as a right. 58 The communist threat, lurking at the margins of these texts, is a threat to textbook capitalist economics: that "value" operates as a differential and that multinational investment requires an unequal intemational division of labour in order to keep a supply of relatively "cheap" labour in the South, the value of which is realised in, and profited from, in the North. 59 With "capitalism" aH but safely under erasure, along with any reference to TNCs and one reference to GA TI, the reports en gag e in a complex production of the Westem humanist subject as subject of economic, social and cultural rights.

54

55 56 57 58 59

The Turk Report No 4 pl1. Factors seen as meriting particular attention are structural adjustment, debt, income distribution, misconceptions of the statc, economic growth as a panacea; privatising human rights; misguided visions of development; deficient political wil1; environrnental devastation; military expenditure and anned conflict; dualistic views of human rights. Derrida, OfGrammatology, Spivak (trans), (Iohn Hopk.ins Press, Baltimore 1976) p266. The Turk Report No 4 plO. The Eide Report p6. The Bengoa Report p12. Spivak, In Other WorlJs: Essays in Cultural Politics pp166-167.

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ADJUSTING TO NATURElNATURALISING ADJUSTMENT The Turk Report provides a sustained analysis of the decimating effect of debt and SAPs in the South. In a section entitled "Who's to blame?" the report initiaIly hedges the question by naming "external factors combined with certain intemal forces"60 as the culprits. However, its fmal answer is "human beings",61 thereby subsuming the entire international political economy which created SAPs into an unfortunate event of general human error. In a similar move, the Report's warning against "[t]he current global embrace of the market"62 and the "flurry of many States rornanticalIy lO embrace the market"63 slides a political economy driven primarily by TNCs and selected Northern States into "the global" view. This globalising of a specific and local view erases lhe web of exploitative practices engineered lO ensure that "there is no altemative" for States in the South but to forcibly embrace "free" market policies. This construction of the "global view" most dangerously emerges in the Turk Report' s statement that there is "more or less general agreement" that sorne form of adjustment is necessary in the "vast majority of States, those of the South as welI as the North".64 By slotting in a reference to the North, "adjustment" is naturalised as merely one of those realities dictated to a1l by the invisible economic hand. As the exploitation condensed and monumentalised in the seemingly scientific phrase "adjustment"65 is rendered inevitable, the communities which this report tells us have been decÍmated by the effects of SAPs are rendered irrelevant to any agreement on their fate. Their views, no doubt, infringe on the property of others. The solution is to craft adjustment "with a human face", commensurable with incorporating human rights indicators of one sort or another. Although generalIy guarded about the World Bank's recent conversion to poverty reduction and human rights,66 the Turk Report sees as "visionary" the Bank's efforts to reduce poverty through encouraging government expenditure on social services and providing safety nets for those "inevitably" disadvantaged by SAPs. Granting the World Bank an idealist predication, whose consciousness can now strive to reduce poverty, and submerging the materialist predication that the Bank's raison d'etre is profiteering for the Northern elite, the Bank can be positioned as the saviour of its own destructive effects. On the other side of the international division of labour, the physical and psychological violence of "adjustment" imperialism continues.

60 61 62 63 64 65 66

The Turk Report No 3 p21. At p22. The Turk Report No 4 p24 .. Al p27. The Turk Report No 3 p22. Spivak, In Other Worlds: Essays in Cultural Politics p169. The Turk Report No 4 pp36-37.

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INCOME SIMPLICITER Spivak has noted that a paradox of humanist capitalism is that it tacitly makes its plans according to a materialist subject predication, whilst its official ideology offers the discourse of idealist humanismo One example of this manoeuvre is to exalt a fetishised concept of "money", which people just naturally desire and value, whilst sublating the intemational division of labour which produces "money" as "valuable"o67 TIte Eide and Bengoa Reports on income distribution trek a similar routeo TIte Reports wrench definitions of income distribution from "ideological debate and dogmatic fervour" (the text of intemational exploitation) and fetishise income distribution as a neutral measurement68 of relative levels of "intemational equity"69 (the contradiction between its neutrality and its relativity left unresolved)o Inequalities of wealth are consequentIy addressed by appeals to humanist consciousness and glib universalism: "we live in an interconnected, globalized world 000 and must therefore join together in solidarity".1 0 TItis dynarnic continues in the explanations offered for income disparityo Although the Eide Report briefly refers to the negative impact of SAPs and unabated rural to urban migration in the South as relevant faclors, the Report cIearly states tbat income disparity is primarily caused by differential levels of NorthlSouth access to resources, technological progress, education, work force skills and managerial flexibilit Yo 71 By failing to analyse the reasons why such differential levels of resources exist vis-a-vis the intemational division of labour, the Report alIows the North to be predicated through a humanist logic of "naturally" more advanced, educated and technologically proficient, its control of world resources a mark of such advancement. Conversely, the South's lack of resources implicitly flows from the local s' native backwardnesso The historical text of imperialist expropriation, the statistics on the flow of resources from the South to tbe North 72 and the effects ofTNC capital flight are thereby erasedo Solutions can then be located witbin the benevolent discourse of aid, shoring up the North as "saviour" in its forging of "genuine intemational economic co-operation"o7J Within this spirit of benevolence, the Turk and Eide Reports approvingly cite the World Bank's formula for poverty reduction as making "productive use of the poor's most abundant asset,labour"J4 Possessing only labour power, the "poor" are predicated as the materialist subject par excellenceo Their possibility of adjusting to a humanist predication is via education, which tbe Turk and Eide Reports and the World Bank see as critical in ensuring 67 68 69 70 7l 72 73 74

Spivak, In Other Worlds: Essays in Cultural Politics p16So The Eide Report p50 The Bengoa Repon p90 As aboveo The Eide Repon pp 16-17 o The Turk Repon No 4 p19. The Eide Repon pl7, citing tbe draft dec\aration and program of action for the World Summit for Social Development. Al piS; and see tbe Turk Report No 4 pp37-39o

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disadvantaged groups "new opportunities [within adjusted economies] but also ... the means to exploit such opportunities".75 As "intemational co-operation" folds into the imperialist crisis strategy of using education as a key tool for ensuring capitalist circulation,76 the World Bank's oppressive political economy is again naturalised as a former "mistake", which its benevolent consciousness can now rectify. Poverty as a site for capitalist crisis management also threads through the Despouy Report on extreme poverty. Although the Turk Report recognises poverty as a relation to wealtb,77 the Despouy Report fails to engage in any political analysis save for an occasional nod al tbe deleterious effects of SAPs. Instead, it casts "poverty" as a timeless "scourge that has indeed plagued all historical eras", 78 this ahistorical frame silencing the political text of exploitation. The most significant feature of poverty is named as its universality, where the ''universal'' is code for "poverty affects Northem countries", a point insistently repeated in the reporto Deflecting attention away from the differential depth of poverty vis-a-vis the intemational division of labour and the North/South divide, this insistence alerts one to an underlying concem in the Despouy Report of the state of the Northem economy. The Reports on income distribution are less discreet: "inequitable income distribution is ... becoming the main threat to world peace, polítical stability ... and the maintenance of social life".79 In a mu[l;nalional tbeatre where poverty became an actuality quite sorne ago, tbe anxiety hedging tbe sudden intemational interest in poverty is revealed: it is encroaching on "u s" .

PARTNERSHIPS AND PARTICIPATION IN THE VILLAGE As Anne Orford argues, current representations of threats to world security operate complicitly witb tbe global process of recolonisation of tbe South. 80 Within the Reports, this complicity is rnanifested in the drive to establish "partnerships" and other "participatory" rnechanisrns as responses lo Ibe failed realisation for hundreds of millions of people of economic, social and cultural rigbts. This focus on partnerships and participation is heralded as a new global approach, signalling a slide of the concept of "globalisation" into the banality of the post Cold War "global village". Underpinned by the nostalgic desire for a rnythical founding unity, the global village offers all players the chance to really work together for mutually beneficial outcornes. However, scripted as it is through particular forms of telecornrnunications and information networks which produce the local as the global, claims to a global village are only rnade possible by the constant of 75 76 77 78 79 80

The Eide Report p19. Spivak, "Can the Subaltern Speak" in Grossberg & Nelson (eus), Mar:rism and ,he Interpretatían of Culture (University of lllinois Press, Urbana 1988) p271. The Turk Report No 1 p14. The Despouy Report No 2 p 12. The Bengoa Report p 11. Emphasis added. Orford, uThe Uses of Sovereignty in the New Imperial Order" (1996) 6 Ausr Feminisr LJ 63.

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economic exploitation, with "cheap"labour reserves in the comprador theatres 81 producing the technological hardware for TNCs like mM. The invisibility of this constant secures the village's Northem occupation. The most grotesque form of this new global approach is the quest for a "partnership with the poor", an approach applauded in subsequent poverty resolutions at the Cornrnission on Human Rights. The Turk Report passionately c1aims that answers to poverty must be produced within ajoint venture or dynamic confrontation with the poor: The dignity of the individual [the poor] can reach fulfilment only if it is revealed or confirmed by a partner [the non-poor]. The endeavour to understand extreme poverty derives from the same relationship of partnership and fraternity. It reflects the desire of the non-poor to know and their refusal to be indifferent. 82 With questions of power and exploitation submerged by the assumptions of equality implicit in the claims to "partnership and fraternity", this joint venture engages in a securing of the North as hegemonic humanist Subject par excellence. In the aboye quote, our humanist dignity assumed, our gaze is placed as the mirror revealing and measuring the poor's consciousness. However, as it is only through our humanist interpretative mechanisms that knowledge about poverty will be computed, conveyed and developed into strategies for international action, revealing the poor merely reveals a projected image of ourselves. The poor, then, are in fact the measure of our dignity, and their encroaching impoverishment as a threat to the humanity of the Northem sovereign subject becomes a site for crisis management. This dynamic plays itself out in the Seminar on Extreme Poverty83 a "ground breaking"84 exercise in which thirty "extremely poor people" were brought to New York to engage in "direct dialogue" with UN bodies. Ethical questions aside as to the implications of this exchange on the lives of those people, the audacity of the assumption that one can know "the poor" through the reductio ad absurdum of flying thirty "extremely poor people" to New York reveals the seminar as a paradigmatic site of imperialist homogenising of "the poor". This creation of an homogeneous "poor" continues in the substance of the "direct 81 82 83

84

"Comprador" generally refers to a native agenl of a foreign business house. In postcolonial discourse, the phrase has been extended lo cover situations such as the operation of TNCs in local governmenl supported Export Processing Zones. The Turk Report No 2 p5I. Commission on Human Rights, Report of the Seminar on Extreme Poverty and the Denial of Human Rights E/CN.411995/l01. The Despouy Report is highly self-congratulatory about the seminar noting il was "Ihe first time, an intemational seminar was organized in response to a direct appeal by individuals caught in lhe vicious circle of extreme poverty and was held with their participation. In lhal sense, il was an experience of partnership with the mosl deprived." The Despouy Report No 3 p5.

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dialogue", which proceeds by way of the thirty extremely poor people telling their story to the attentive UN representatives, the governing assumption being that one can "know the poor" through their concrete experience. However, by staging the speaking subaltern through the positivism of "concrete experience". the seminar erases all trace of the ways in which any re-presentatíon of such experience is overdetermined by the historical circuits of imperialist law and education or by the epistemic violence wrought on "the poor" by the international division oflabour. 85 Unsurprisingly, these overdetermined representations by "the extremely poor" do not offer a subversive analysis of international political economy. but are merely depoliticised accounts of poverty as a vicious cycle of misery. With authorial power. the Despouy Repon interprets these statements through a series of banal generalisations about "poveny", consistent with its homogenising frame of "the poor", providing no political specificity as to how poverty in particular circumstances can be resisted or why it arose. On the contrary, the Report's primary conclusion is that human rights are indivisible: precisely the conceptual c1aim of the original Despouy Report and continuous with the views of other UN conferences. Our "commonality" with the poor assured and the cornmitment of the UN to poverty shored up through such a conclusion. future "partnerships" with the poor can conlinue lo be forged. Mingling epistemic violence with the advancement of civilisation. token inclusion of "the poor" legitirnises the failure to speak the text of trans-national exploitation which structures poverty as necessary relation. This staging of participatory partnership is a microcosm of the response mapped in the Turk and Eide Reports to the deleterious effect of SAPs on economic, social and cultural rights. Having previously naturalised SAPs, the Turk Report ascribes them a neutral, malleable form which can be "utilized as an opportunity for redressing social imbalances . ... This process remains an issue of conscious choice."86 The role of the state as an agent of this humanist consciousness is somewhat sticky. The Turk Report, whilst acknowledging that the state's autonomy has been significantly undermined by SAPs, asks the "extremely piercing question [of] ... the viability of the modern nation State within the context of its clear failure in fulfilling econornic, social and cultural rights. Might a new vision be required?"87 Although cast in generalist terms, this new vision is directed at the disorderly South, which the Report castigates for using the burden of SAPs to avoid their human rights responsibilities (a criticism also directed at the South by the Committee on Economic, Social and Cultural Rights). Through a positivist political frame these States and their "chosen" poli tic al economy are no longer serviceable within a humanist framework. As 85 86 87

For a discussion of these mechanics of re-presentation of "experience" see Spivak, "Can the Subaltem Speak" in Grossberg & Nelson (eds), Marxism and ,he /nterpretarion 01 Culture pp271-313. The Turk Report No 3 p58. At p56.

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institutíonal power relations masquerade as "choices" for the South, the Repon proposes strengthening the "participation" of intemational financia! institutions in these States' political economy, including supponing the World Bank's commitment to poverty reduction through making "governance" a loan conditionality, and encouraging the IMF to assist states in ensuring that fiscal policies are beneficial to human rights. 88 Concepts of "participation" therefore operate as levellers of institutional responsibility, profit and control. The responsibility of the IMF and the World Bank in enforcing SAPs, the systemic logic of which generated new levels of poverty, is either erased or again ascribed to humanist "mistakes" which can now be remedied by these institutions' newly-honed expert intervention. With "govemance" in place, the "choices" of the South bear the burden for their poverty, their humanist capabilities now measured through a: new regime of grassroots imperialism in the fono of low-intensity conflict management, in which Western-based nongovernmental organizations are being used to replace African governments. 89 Yet it is precisely the role of the participation of the grassroots which the Turk Report sees as balancing the possibility of a "supranational" govemance body.90 The Report notes that the declining capacity of the States vis-a-vis social justice has inspired the evolution of new citizens' movements where "real participation occurs ... and where the legitimate needs of people" are voiced. 91 The Report recornmends the incorporation of this "real participation" into the development process through increased liaison at the nalional and internationaJ levels. For example, the Report champions the role of the state in "creating space" for citizens individually to realise econornic, social and cultural rights. 92 Using the right to housing as an example, state respect for citizens' occupation of land and buildings is urged as a manifestation of that right. Continuous with other romantic, antiestablishment trends, this urging of respect for citizen creativity privileges a concept of "use-value" of labour as the most secure anchor of social justice,93 whilst submerging the hegemonic mode of labour as "exchange-value". Without an analysis of private property and its role in the exploitation of labour power within a global framework, this focus on "use-value" and ¡he creativity of civil society participates in what Spivak calls the humanist critique of the reífication of labour "co-opted and modernised to recode unreconstructed global capitalism as democracy".94

88 89 90 91 92 93 94

The Turk Report No 4 pp59-61. The other Reports reach similar conclusions. Nabudere, "The African ChalIenge" (1994) 19 Altematives 163 at 170. See also George & Sabelli. Faith and Credi/: The World Bank's Secular Empire (Penguin, London 1994) pp 142-161; Tandon, "Recolonization of Subject Peoples" (1994) 19 AI/erna/ives 173. George and Sabelli. Faith and Credit p159. The Turk Report No 4 p47. At pp49-50. Spivak. In O/her Worlds: Essays in Cultural Politics pp161-162. Spivak, "Supplementing Marxism" in Magnus & Cullenberg (eds), Whither Marxism? Global Crises in International Perspective pIlO.

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Similarly, at an intemational level, the Report urges the World Bank and borrowers to "properly inforrn" local peoples of decisions which will affect them and provide an "appropriate opportunity" for expression of their views prior to final decisions. 95 This proposal mirrors what Iris Marion Young names the distributive paradigm of social justice, the most consistent paradigm of social justice employed by Westem, capitalist welfare democracies. 96 The distributive paradigm equates questions of social justice with questions of the state' s morally proper allocation of resources (capital, technology, food) whilst failing to critique the institutional structures of domination (intemational division of labour, ownership of property, cuLturaL rneans of production) which generate inequality as relation. By erasing these power relations, the fiction of the impartial state (or by analogy the impartial intemational institution) is perpetuated. Consistent with this analysis, the Turk Report's participatory model for relations between the World Bank and the local s reifies "participation" as a thing or cornmodity which can be distributed by the WorLd Bank through dialogue and selective decentralisation. The fact that the World Bank retains the ultimate power to enforce their decisions regardless of consultation, thanks to a myriad of unequal power relations produced through the continuing regime of intemational exploitation, is therefore legitimised through humanist notions of liberal pluralism.97

LA W AND VIOLENCE This hazy silence surrounding the issue of enforcement underpins the Reports' recoding of civic participation as democracy. By predicating intemational financial institutions and the state as humanist agents, able to be persuaded by the reasoned arguments of their newly invigorated citizens, "participation" becomes blurred with the actuality of "enforcement" and institutional mechanisms of force drop from view. Although under erasure, there power remains. It is no oversight that SAPs did not compromise the state's violent, repressive capacity which, in the interests of private and patriarchal property rights, served to quell opposition to economic globalisation. 98 The right to employ violence through law to proteet the dominant social arder is a fundamental and constitutive ríght of, at least, the Westem state. 99 This constitutive right, filtered as it is through the "pyramid of violence"¡OO of the judiciary, police, military, jailer and other enforcers, creates the condition of "effective domination" of social dissidents, enabling the smooth "'transmission' of tbe engine of justice".IOI In a situation where prívate property rights are so fine tuned that TNC patents on seeds are enforceable via nationallaw and intemational 95 96 97 98 99 100 101

The Turk Report No 4 p60. Young. Justice and the Politics 01 Difference (Princeton Universily Press, New Jersey 1990). Al pp15-91. Development Altematives wilh Women for a New Era (DAWN), Markers on the Way: The DA WN Debates on Altemative Development p7. Cover, "Violence and the Word" (1986) 95 Yale U 1601; Devlin. "Nomos and Thanatos (Part A). The Killing Fields: Modem Law and Legal Theory" (1989) 12 Dalhousie U 298. Cover, "Violence and Ihe Word" (l 986) Yale U 1601 at 1609. At 1619.

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agreements, blurring "participation" into "enforcement" through celebratory calls for civil society screens analysis of such poli tic al institutions of oppression and their entanglement with the international political economy. Within an intemational frame, rigorous conceptualising of issues of enforcement is similarly critical. The Security Council is increasingly "chiselling its weapons to enable ... more direct interventions in the affairs of ... subject peoples"102 through emerging notions of the right to "democratic govemance".103 These interventions shore up the text of global political economy as a palimpsest for "human rights" concems, as was so breathtakingly displayed during the prolracted Gulf War. 104 By silencing these scenarios, the Reports finally ensure the sovereignty of the Northem subject of intemational capitalism and the dominance of military TNCs I05 as subject of economic, social and cultural rights.

CONCLUSIONS 1 began this artiele considering issues of responsibility, of how white feminist scholarship could resist the imperialist urge of international human rights discourse by a persistent undoing of the role of exploitation in current evaluations of human rights. As detailed aboye, the truly grim power of TNCs in the global economy are under no threat from the definitions of economic, social and cultural rights currently being produced in key UN documents. The subject of these rights remains finnly in the shoes of the legal subject of transnational capitalism. Consistent with this analysis, voting in the Commission on Human Rights in the past two years on these generalised reports, urging respect for human rights, has reached consensus. Voting on resolutions more critical of trans-national exploitation, such as on foreign debt and structural adjustment programs, have been increasingly split along a NorthlSouth divide. 106 The Department of Foreign Affairs and Trade sees this split as "the inability ... of delegations (in all regional groups) to seriously address the content of these rights, and the tendency of (mainly G77) delegations to fall back on north-south rhetoric".I07 Although voting patterns overwhelmingly affirmed criticism of the South's foreign debt and SAPs, the imperialist structure of international 102 103

104

Tandon, "Recolonization of Subjeet Peoples" (1994) 19 Altematives 113 at 111. Franek, "The Emerging Right of Demoeratie Governanee" (1992) 86 AJ/L 46. For an analysis o[ Ihis righl. see Simpson. "Imagined Consent: Demoeratie Liberalism in Intemaúonal Theory" (1994) 15 Aust YBIL 103. For a discussion of the pivotal role played by the rhetoric of human rights discourse in legitimising Securily Council aetion in lhe Gulf War, see Alslon. "The Security Council and Human Rights: Lessons to be Leamed from the Iraq-Kuwait Crisis and its Aftermath" (1992) 13 Aust YB1L 101

105 106 107

Orford, "The Politics of Collective Security" (1996) 11 Mich J lnt'l L 313; Orford, "The Uses of Sovereignty in the New Imperial Order" (1996) 6 Aust Feminist U 63. See Commission on Human Righls resolutions concerning foreign debt and structural adjustment, for example E/CN .4/1995/116, and the fortheoming report of the 1996 session. Commission on Human Rights, Human Rights and lndigenous lssues Newsletter, Issue 2 (Department of Foreign Affairs and Trade, Canberra 1996) p2.

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relations pennits the minority view to place fractured pOSltlOns on transnational exploitation as, once again, primarily the responsibility of the disorderIy South. Issues of responsibility, however, reach further than mapping reports and voting panerns. As a final gesture, and in the spirit of the feminist activism which persistently raised the ferocity of global crisis at the Beijing NGO Forum, 1 would like lo mark the reinvigoration of civil society as a site where while feminist engagement in human rights discourse must persistently undo the text of exploitation. Debates concerning the role of civil society in intemational fora are blossoming within Northem feminist legal scholarship.108 Anne Orford, considering cornments by Spi yak, places concem for an intemational civil society as a "peculiarly Northem phenomenon ... not of immediate relevance to the least privileged women in the South who are engaged in 'hardcore economic resistance'''.I 09 It seems to me that this generation of different sites of responsibility ofien uncritically slides into a generation of mere "difference", shoring up a Northem activist text which fails to account for the fact that its condition of possibilíty is complicit with the need for hardcore economic resistance in the South. On the exploiters' si de of the intemational division of labour, the kindling of an intemational civil society must be persistently interrupted by these hardcore, econornic concems. This unglamorous persistence opens the possibility for white feminists to assist in moving towards an intemational polítical and economic framework unmarked by "global apartheid", 110 where a farmer is no longer an infringement on a patent owned by a TNC.

108 109 110

See for example Ono, "Nongovernmental Organisations in lhe United Nations System: The Emerging Role ofIntemational Civil Society" (1996) 18 Hum Rts Q 107. Orford, "The Uses of Sovereignty in lhe New Imperial Order" (1996) 6 Aust Feminist U 63 at 82 discussing Stephens, "Running Interference: An Interview with Gayatri Chakravony Spivak" (1995) 7 Aust Women's Book Rev 19. Mazrui, "Global Apartheid: StrUclural and Oven" (1994) 19 Altematives L85.

ARTICLES John Williams· and John Bradsen··

THE PERILS OF INCLUSION: THE CONSTITUTION AND THE RACE POWER INTRODUCTION

e

onstitutionally speaking, Australia has been described as "the frozen continent".1 Yet on 27 May 1967 the people of Australia demonstrated an historie consensus in their desire to remo ve a blight on the Constitution. 2 Their decision to amend s51(uvi) and strike out s127 of the Constitution was of profound importance to both Aboriginal and non-Aboriginal Australians. The constitutional ramifications of this are still to be worked out. In the current climate, where the issue of the extinguishment of native title has generated considerable political heat, the question of the scope of the Commonwealth Parliament's power to make "special laws" for "people of any race"

*.

*

2

BA (Hans) (Tas). LLB (NSW), PhD (ANU); Lecturer in Law, University of Adelaide. BA (Adel), LLB (Hans) (Adel); Senior Lecturer in Law, University of Adelaide. As well as lhe anonyrnous referee lhe aulhors wish lo acknowledge lhe following for their cornments and assistance on earlier drafts of this paper: Michael Dctmold, Don Dunstan, Leighton McDonald, Rosemary Owens and Wendy Riemens. Sawer, Australian Federalism in the Courts (Melboume University Press, Melboume 1967) p208. See below p 126.

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remains open. In particular, the question of whether or not s51(xxvi) is now limited to making laws that only operate for the benefit of Aboriginal people requires an answer. This article will assess that question and offer a view as to the constitutional limits of the power.

CONTESTED TERRAIN: JUDICIAL METHOD ANO CONSTITUTIONAL INTERPRETA TION The Australian Constitution represents more than the 128 sections that describe, divide and allocate governmental power. Its textual immediacy often masks deep historical, social and theoretical explanations as to its operation. The question of how the Constitution should be interpreted has provided an arena for both judiciaJ3 and academic 4 consideration. Sir Anthony Mason recently captured the current state of Australian interpretative debate when he noted that "[i]n this day and age, there are few certitudes in constitutional interpretation."5 Gone, it would appear (if it ever really existed), is the authority of what Sir Owen Dixon called "strict and complete legalism".6 Its demise can, to sorne degree, be accounted for by the success of the legal realist movement in Australian legal cireles.? The description of Australia's judicial method as a "species of legal realism"8 has brought with it a greater acknowledgment of the place that a sensitivity to policy considerations now plays in the interpretation of the constitutional text. One of the upshots of the critique of the legal realists is that constitutional interpretation is now contested terrain, with a number of perspectives on what is the most appropriate method of giving meaning to the documento A constitution is by its very nature an "incompletely theorized convergence on an abstraction".9 It represents an agreement as to words, though the exact meaning of those words or the theoretical understanding which those words represent remains uncertain. For example we know that the Australian Constitution contains within it the textual requirements of a federal system and a separation of powers. Yet, the actual type of federation (centralised or decentralised) or the degree of separation (stric! or functional)

3 4 5 6 7 g 9

For example see "Swearing in of Chief Justice Dixon" (1952) 85 CLR xi at xiv where he made his now famous "strict and complete legalism" slatement. See also Attomey-General (Cth); Ex Rel McKinlay v Commonwealrh (1975) 135 CLR 1 al 17 per Barwick CJ. Sampford & Preston (eds), Interpreting Constitutions: Theories, Principies and Institutions (Federation Press, Leichardt 1996). Mason, "The Interpretation of a Constitution in a Modern Liberal Democracy" in Sampford & Preston (eds), lnterpreting Constitutions p13. As aboye, fn3. The issue of the influence of Julius Stone on Sir Owen Dixon is taken up by Blackshie1d, uThe Legacy of Julius Stone" (1997) 20 UNSW U 215 at 225-237. Mason, ''The Role ofthe Courts al the Tum ofthe Century" (1993) 3 JJA 156 at 164. Sunstein, Legal Reasoning and Political Conflict (Oxford University Press, New York 1996) p17!.

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was at 1901 "incompletely theorized". As J La Nauze stated when discussing the framers and their constitution: They knew that they could not pro vide such detailed instructions that the verdict in a thousand particular disputes in an indefinite future would rarely be in doubt; this, in Barton's words, was "a Constilution, not a Dog Act".IO The task of interpretation is in large measure "to construe the unexpressed" .11 This article proposes that, in broad terms, the current debate as to how the Constirution should be interpreted can be divided into three models. They are: first, sorne forrn of original intent, secondly textualism and thirdly a "living force" or contemporary values approach. In recent cases members of the High Court haye invoked aU three approaches. Thus it can be concluded that no approach has proved itself to be exclusive of another. 12 Before tuming to their role in the interpretations of s51(xxvi) of the Constitutioo we would lile to layout the various approaches or models and to highlight their reputed strengths and weaknesses.

Original Meaning and Original Intent The interpretation of a constitution based 00 its original meaning or the original intent of the framers of the document has caused much academic debate in the United States and to a les ser degree in Australia. What is meant by "originalism" and how that differs from "intentionalism" is a problematic issue. There is a distinction between an originalism that concentrates on the text, and an original intent that facuses on the intention of the authors of those words. Whilst it is possible to draw a distinction, n there is often slippage in the use of these terrns. Moreoyer, the meaning of a terrn or a phrase may be the subject of yarious intentions. For example, as Quick and Garran note in their discussion of s9O, the "primary meaning" of "excise" in England was different from the "secondary" meaning in colonial Australia, the meaning "in which the expression was intended lo be used in the Constitution of the Cornmonwealth."14 Notwithstanding the problems associated with the tenninology of "originalism" or "original meaning", it is an approach that has been accepted in sorne academic and judicial circIes as one mode of constructing meaning. What do we mean by "originalism"? According to Robert Bork, one of its chief protagonists, the approach may be reduced to a single guiding principIe. 10 11 12

13 14

La Nauze, Making ofthe Australian Constitution (Melbourne University Press, Melbourne 1972) p270. Cole v Whigield (1988) 165 CLR 360 al 394. Though Dawson J has rejecled what might be called a "living force" approach taken by other members oi the Court: McGinty v Westem Australia (1996) 186 CLR 140 al 182-3. Mason, "The Interpretation oC a Constitution in a Modero Liberal Democracy" in Sampford & Preston (eds), Interpreting Constitutions ppI4-15. Quick & Garran, The Annotated Constitution of the Australian Commonwealth (Angus & Robertson, Sydney 1901) p837.

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AH that counts is how the words in the Constitution would have been understood at the time [of its drafting]. The original understanding is thus manifested in the words used and in secondary materials, such as debates at the conventions, public discussion, newspaper artieles, dictionaries in use at the time, and the Iike. 15 Robert Bork is adamant that the meaning of the words is not a search for the subjective intention of the authors. 16 Much of the slippage in the use of originalism or intentionalism, as was noted aboye, occurs at this point. For instance, Frederick Schauer's definition of "originalism" suggests a degree of subjectivity. He says that: "Prescriptive language is to be understood by reference to evidence of the actual, contemporaneous mental states of the inscribers of the language at issue."17 Such a definition appears to encompass the very subjective meaning which Bork rejects. Many of the problems of definition capture the fact that "originalism" and what might be called "intentionalism" represent points on the same interpretative spectrum. Leaving to one side definitional problems, the key focus of "originalism" is upon the words of the text at the point of drafting. It is this fact that remains one of the greatest strengths of originalism and, as we will see, one of its greatest weaknesses. The concentration on the words of the text offers a powerful legitimacy to the process of interpretation. For originalists the authority of the original meaning of the words wards off accusations of "top-down" reasoning and provides a Iimiting focus for judicial inquiry.1 g Thus supreme constitutional authority is to be found in the fixed meaning of the words of the Constitution at the time of its construction. Originalism is analogous to orthodox methods of statutory interpretation and construes the words with regard to their original meaning supplemented by arguments developed from the context and the structure of the Constitution. 19 Within the originalist position changes in social reality can be accommodated by the adoption of a number of interpretative methods. In the Australian context these inelude the construction of the words of the Constitution with a broad gen~rality20 and the development of the connotationldenotation 15 16

17 18

Bork, The Tempting 01 America (The Free Press, New York 1990) pl44. As aboye.

Schauer, "Oefining Originalism" (1995) 19 Harv JL & Publ Poi 343. In McGinty v Weslem Australia (1996) 186 CLR 140 at 232 McHugh J stated that "[t]opdown reasoning is not a legitimate method of interpreting the Constitution". He cited as authority for this view an aniele by Justice Posner, "Legal Reasoning From the Top Oown and From lhe Bottom Up: The Question ofUnenumerated Constitutional Rights" (1992) 59 U Chi L Rev 433.

19

20

Mason, "The Interpretation of a Constitution in a Modero Liberal Democracy" in Sampford & Preston (eds), lnterpreting Constitutions p 14. See also Lange v Australian Broadcasting Corporation (1997) 145 ALR 96 at 112 where the Court notes that the scope of "representative government" is to be deterrnined with regard to the constitutional "text and structure". Jumbunna Coal Mine NL v Victorian Coal Miners' Association (1908) 6 CLR 309 at 356358 per O'Connor J.

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distinction. 21 Both of these methods hold troe to the essential original meaning of the words whilst expanding their scope to deal with circumstances that did not exist at the time of their adoption. 22 Crities of originalism have pointed to the obvious faet that often the words are not as clear as the theory would suggest. As Mason states "originalism is deceptive in that it c1aims very much more than it ean deliver".23 The other form of originalism, and one more adapted to the relative "silences" in the Constitution, is "original intent". As the name suggests, where the aetual meaning of the words remains unclear the Court may have reeourse to the intentions of the frarners. The advantages of such an approach is that it provides a powerful legitimacy to the curial proeess. What greater authority could there be for the meaning of particular words than their authors? The proeess, it is argued, offers an objective and legitimate standard that non-originalism does not. 24 In the Australian context reeourse to the intentions of the framers, as captured in the Convention Debates, was until recently denied. 25 However, sinee Cole v Whitfielcf26 the use of historical material su eh as the debates has been used in a number of High Court decisions. Historical material may be consulted by the Court for the purpose of identifying the eontemporary meaning of language used, the subject to which that language was direeted and the nature and objectives of the movement towards federation from which the compact of the Constitution fmally emerged.27 The weakness in the original intent approach is that often there are silences as to the intention. 28 A related problem is the use of history in the hands of the legally trained. 29 21

22

23 24 25 26 27 28 29

R v BrisliJn; ex pane WiIliams (1935) 54 CLR 262 and R v Commonwealrh Conciliarion and Arbitrarion Commission; ex parte Association 01 Prolessional Engineers (1959) 107 CLR 208 at 267 per Windeyer J. For a discussion of the cases and issues in this area see Zines, The High Coun and rhe Constitution (Butterworths, Sydney, 4th ed 1997) pp17-22. With regard to originalism and this method see Mason, "The Interpretation of a Constitution in a Modern Liberal Democracy" in Sampford & Presto n (eds), Interpreting Consrirutions p 14 and Goldsworthy, "Originalism in Constitutional Interpretation" (1997) Fed L Rev 1 at 31-32. Mason, "The Interpretation of a Constitution in a Modern Liberal Democracy" in Sampford & Prestan (eds), Interpreling Consrilutions pIS. Scalia, "Originalism: The Lesser Evil" (1989) 57 U Cin L Rev 849 at 862. Sydney Municipal Council v Commonwealth (1904) 1 CLR 208 at 213-214. (1988) 165 CLR 360. At 385. As Sir Daryl Dawson has stated, "ofien the convention debates or history in general throw no Iight upon the problem": Dawson, "Intention and the Constitution - Whose Intent?" (1990) 6 Aust Bar Rev 93 at \Ol. Schoff, uThe High Court and History: [t Still Hasn't Found(ed) What !t's Looking For" (1994) 5 PLR 253.

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As Scalia said of an argument based on original intent "[i)t is, in short, a task sometimes better suited to the historian than the lawyer."3o Further, the original intent approach begs the question "whose intent?"31 It as sumes that it is possible to distil a single or overriding intent when there may be a multitude of them on offer. For instance there were nearly 90 delegates to the Constitutional Conventions over the decade leading up to federation. Which of them do we suggest may be said to represent the relevant intent? In solving the problem of multiple intents should we look at what the group collectively decided? As we will see below with regard lo certain provisions in the Constitution, their approval or rejection was sometimes based on slender majorities. Should we require something approaching greater consensus than mere rnajorities in detennining intent? Moreover, what do we do when we establish the intention and it is repugnant to our modem sensibilities? These are but a few of the problerns associated with the original intent approach to constitutional interpretation. 32 There remains one other major aspect that may be associated with the revival of "originalism" in America, and to a degree in Australia. It is that underlying sorne of the endeavours is an auempl to caH to task so-called judicial activism. Thus in light of the originalist position Bork can describe the jurisprudence of the Warren Court as "constitutional revisionism"33 and Craven the recent High Court as an "unfaithful servant" .34 Textualism The nolÍon that the Constitution should be interpreted according to the nonnal rules of statutory interpretation was adopted in the High Court's very fírst year. In Tasmania v Commonwealth the Court said that "[tjhe same rules of interpretation apply that apply to any other written document."35 However, it was also acknowledged that the Constitution was not like any other statute; it was "a rnechanisrn under which laws are to be rnade, and not a mere Act which declares what the law is to be".36 The difficulty with applying the ordinary rules of statutory interpretation was highlighted during the fírst two decades of the Cornrnonwealth when, presumably while keeping faithful to this method, the original

30 31 32 33 34

35 36

Scalia, "Originalisrn: The Lesser Evil" (1989) 57 U Cin L Rev 849 al 857. Many of these issues are fulIy developed in Dworkin, A Maner of Principie (Clarendon Press, Oxford 19B6) pp38-57. Sorne of these argurnents are discussed by both Bork, The Tempting of America ch8 and Goldsworthy, "Originalisrn in Conslitutional Interpretation" (1997) red L Rev 1 at 25-27. Bork, The Tempting of America p130. Craven, "The High Court and the Founders: An Unfaithful Servant" (1997) 30 Papers on Parliamenl63. Tasmania v Commonwealth (1904) 1 CLR 329 al 338. Attomey-General (NSW) v Brewery Employees of New South Wales (Union Label Case) (1908) 6 CLR 469 at 612 per Higgins 1.

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justices of the High Court were able to develop the implied immunities and reserved powers doctrines. 37 After 1920 the textual approach to the interpretation of the Constitution becarne closely associated with the Engineers Case. 38 The case itself has been criticised for its logical inconsistencies and unexpressed assumptions. Nevertheless, the Engineers Case has come to symbolise an approach to the Constitution that has been characterised as "legalistic". That is, an approach that strongly rejects social or political outcomes, or theories of federalism as being relevant to the process of constitutional interpretation. The Engineers Case endorses a statutory method of interpretation that concentrates on the express terms of the Constitution. It is this last emphasis on the text that gave rise to a belief that the case ultimately prohibited all implications in favour of sorne form of barren literatism. 39 As the aboye discussion has highlighted, the text plays a critical role in the interpretative exercise. A good statement of the textualist methodology can be found in McHugh J's judgment in McGinty. There he said that: The Constitution contains no injunetion as to how it is to be interpreted. Any theory of constitutional interpretation must be a matter of conviction based on sorne theory external to the Constitution itself. But since the people have agreed to be govemed by a constitution enacted by a British statute, it is surely right to conclude that its meaning must be determined by the ordinary techniques of statutory interpretation and by no other means. It must therefore be interpreted by late twentieth century Australians according to the ordinary and natural meaning of its text, read in the light of its history, with such necessary implications as derive from its structure. 40 The strength in sueh an approach is that it has the authority of the document itself. Words have meaning, so the argument goes, and that meaning can be found within the document. The irony of this approach is that its perceived strength is also its greatest weakness. Words are ofien open to numerous interpretations, for instanee the phrase "absolutely free" was inserted into s92 of the Constitution with the defence by Reid that "[i]t is a linle bit of laymen's language which comes in here very well."41 History demonstrates that this "linle

37

38 39 40 41

For a discussion of the developmenl of the doctrines see Zines, The High Court and the Constitution chl. Amalgamated Society of Engineers v Adelaide Steamship Co LId (1920) 28 CLR 129. Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 al 133 per MasonCJ. McGinty v Westem Australia (1996) 186 CLR 140 al 230. Official Record of the Debates of the Australasian Federal Convention (hereafler "Debates") Melbourne 1898 (Government Prinler, Melbourne 1898) p2367.

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bit of laymen's language" took on alife of its own and provided, until Cole v Whitfield,42 anything but c1arity.

The "living force" or contemporary values In 1901 Andrew Inglis Clark published his Studies in Australian Constitutional Law. 43 In the second chapter of the work he outlined his belief as to how a written constitution should be interpreted. He said: This method of interpreting a written constitution cannot be properly said to be characteristic of either a liberal or a strict construction of the instrumento The basis of it is the recognition of the fact that the Constitution was not made to serve a temporary and restricted purpose, but was framed and adopted as a permanent and comprehensive code of law, by which the exercise of the governmental powers conferred by it should be regulated as long as the instruments which it created to exercise the power should exist. But the social conditions and the politica! exigencies of the succeeding generations of every civilized and progressive cornmunity will inevitably produce new governmental problems to which the language of the Constitution must be applied, and hence it must be read and construed, not as containing a declaration of the will and intentions of men long sin ce dead, and who cannot have anticipated the problems that would arise for solution by the future generation, but as declaring the will and intentions of the present inheritors and possessors of sovereign power, who maintain the Constitution and have the power to alter it, and who are in the immediate presence of the problems to be sol ved. It is they who enforce the provisions of the Constitution and make a living force of that which would otherwise be a silent and lifeless document. 44 Inglis Clark presents us with a wonderful irony. He has been described as the "primary architect of the Constitution"45 and (hus would be an individual whose views would surely be important for those who wish to make an original intent argument. Yet, when we look to Inglis Clark he instructs us to look not to the past but to the presento Inglis Clark's views were given prominence by Justice Deane in his judgment in Theophanous. 46 Cornmenting on the "living force" argument Deane J said that the Constitution must be construed so as to represent the will and intentions of all contemporary Australians. 47 In 42 43 44 45 46 47

(1988) 165 CLR360. Inglis Clark, Srudies in Australian Constirutional Law (Legal Books, Sydney 1997). Al pp20-21. Theophanous v Herald & Weekly Times Ltd (1993) 182 CLR 104 al 172 per Deane J. As aboye. Al 173.

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the context of the case, Justice Deane said that in determining the content of "representative government" the Court must "take full account of contemporary social and political circumstances and perceptions".48 One of the striking features of the "living force" approach to constitutional interpretation is that it incorporates evolutionary standards. In Cheatle v R the question befo re the Court was whether or not the requirements of a jury tri al contained in s80 of the Constitution were infringed by South Austtalian legislation that allowed for majority verdicts. 49 In their discussion of the characteristics of tria) by jury in 1900 the Court acknowledged that sorne of those aspects are now inconsistent with the "generalIy accepted standards of a modern democratic society".50 In particular, the judges noted the property qualification and the exc1usion of women from service on juries. In rejecting the 1900 understanding of trial by jury the Court stated that [i]t would, however, be absurd to suggest that a requirement that the jury be truly representative requires a continuation of any such exc1usion in the more enlightened climate of 1993. To the contrary, in contemporary Australia, the exclusion of femaIes and unpropertied persons would be in itself inconsistent with such a requirement. 51 Similar arguments were put in McGinty52 where the meaning of the concept "chosen by the people" in ss7 and 24 of the Constitution was considered. In their judgments Chief Justice Brennan and Justices Toohey, Gaudron and Gurnrnow noted the dynamic and evolving nature of Australia's representative democracy.S3 It was this evolutíon that would, in the judgment of Toohey, Gaudron and Gurnmow 11, and arguably also in the víew of Brennan CJ, prevenl the return of a forrn of representalive government that did not inelude a modern notion of democracy. Justice Toohey explicitly Iinked this conclusion with the "living force" doctrine. He said that the Constitution cannot be frozen by reference to the year 1900 or thereabouts. The Constitution must be construed as a living force and the Court must take account of political, social and economic developments since that time .... [A]ccording to today's standards, a system which denied universal adult franchise would faH short of a basic requirement of representati ve democracy. 54 48 49 50 51 52 53

54

At 174. Cheatle v R (1993) 177 CLR 541.

Al 560. Al 560-561. McGinty v Westem Australia (1996) 186 CLR 140. On representative democracy as a dynamic concept, see Kirk, "Constitutional Implications from Representative Democracy" (1995) 23 Fed L Rev 35 al 50. McGinty v Westem Australia (1996) 186 CLR 140 al 200-201.

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Likewise Gaudron J stated that: Notwithstanding the limited nature of the franchise in 1901, present circumstances would not, in my view, pennit senators and members of the House of Representatives to be described as "chosen by the people" within the meaning of those words in ss7 and 24 of the Constitution if the franchise were to be denied to women or to members of a racial minority or to be made subject to a property or educational qualification. 55 Justice Gummow noted that the "evolution of representative government" meant that universal adult suffrage was now a characteristic of popular election "which could not be abrogated by reversion to the system which operated in one or more colonies at the time of federation."S6 Chief Justice Brennan said that "[iJn view of the fact that the franchise has historical1y expanded in scope, it is at least arguable that the qualificatíon of age, sex, race and property which limited the franchise in earlier times could not now be reimposed so as to deprive a citizen of the right to vote". 57 The aboye expressions of the Constitution as a "living force" raise the complex problem of the way in which the "contemporary" standard s are to be determined. The debate as to what "corrununity standards" are and what values are enduring or temporal and how they should be used to shape Australian law is an ongoing one. 58 In 1957 Sir Owen Dixon noted that the common law was the "ultimate constitutional foundation" and that "constitutional questions should be considered and resolved in the context of the whole law, of which the cornmon law, including in that expression the doctrines of equity, form not the least essential part".S9 This statement was later c1arified by three Justices in Theophanous when they noted that the "antecedent cornmon law can at most be a guide" in determining what is necessary for the working of the Constitution and its principles. 60 In Maho (No 2) Justice Brennan made a definitive statement with regard to the common law and contemporary values. He said that "the common law should neither be nor seen to 55 56 57 58

59 60

At 221-222. At 287. A similar statement is made by McHugh J in Langer v Comnwnwealth (1996) 186 CLR 302 al 342. At 166-167. See Braithwaite, "Cornmunity Values and Australian Jurisprudence" (1995) 17 Syd LR 35; Ziegert, "Judicial Decision-Making, Community and Consented Values: Sorne Remarks on Braithwaite's Republican Model" (1995) 17 Syd LR 372 and Braithwaite, "A Reply: Broadening Disciplines that Dull as Well as Sharpen" (1995) 17 Syd LR 397. See also Brennan, "Courts for People - Not People's Courts" (1995) 2 Deakin LR I at 7. Dixon, Jesting Pilate (Law Book Co, Sydney 1965) pp212-213. Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 126 per Mason CJ, Toohey and Gaudron]J. See Lange v Australian Broadcasting Corporation (1997) 145 ALR 96 at 108-112 where the Court discusses the relationship between the "one common law in Auslralia" and the Constitution.

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be frozen in an age of racial discrimination" and that the rejection by the intemational cornrnunity of the doctrine of terra nullius was in "accord in this respect with the conternporary values of the Australian people."61 This later point will be taken up in the last section of the artiele conceming s5l(xxvi) where a link will be made between changes in the cornmon law which reflect cornmunity standards and the interpretation of the Constitution. Summary These then are the three rnodels that have been the mainstay of constitutional interpretation io Australia since federation. As has been suggested, none of these models has pro ved to be exclusive of another. Indeed Goldswortby has argued Ihat the High Court has been deft in "side-stepp[ing] or den[ying]" the intention of the frarners in favour of other means of interpretation when they felt it appropriate to do so.62 This artiele does not elaim that these are the only, or indeed the preferred, methods of interpreting our Constitution. Rather, we have chosen to focus our inquiries on those methods that have been endorsed by members of the Court since 1903. The purpose of laying out the models is to pro vide a frarnework for the interpretation of s51 (xxvi). The next section will investigate the historieal material related to the section as a way of appreciating its place in the Constitution. In lerms of the aboye models such an inquiry will be critical for any interpretation based on originalisrn and of sorne irnportance for the "living force" approach. The second approach, textualism, of course would nol necessarily rely on this historical material. THE mSTORICAL BACKGROUND TO SECTIONS 51(xxVI) AND 127 This next seetion will be divided ioto four parts dealing wilh the historieal background of ss51(xxvi) and 127. It begins with the formation of the Constitution and ends with the referendurn in 1967. The purpose of this historieal sweep is to build an aeeount of the intentions of the framers, and those who proposed arnendments to the Constitution.

Federation and Australian Aborigines As the centenary of Federation draws near, it is important not only to refleet on the road to Federation, but also the distancc that we as a nation, have travelled. In 1901 the Australian Constitution enshrined the state of race relations in this eountry. Two seetions expressly made mention of Aboriginal Australians and their place io the life of the nation.

61 62

Mabo v Queensland (No 2) (1992) 175 CLR 1 at 41-42. Goldswonhy, "Originalism in Constitutional Interpretation" (1997) Fed L Rev I al2.

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51. The Parliament shall. subject to this Constitution, have power to make laws for the peace, arder, and good govemment of the Commonwealth with respect to:- ... (xxvi.) The people of any race, other than the aboriginal race in any State. for whom it is deemed necessary to make speciallaws. and

127. In reckoning the numbers of the people of the Cornrnonwealth. or of a State or other part of the Commonwealth, aboriginal natives shaIl not be counted. How did these sections get into the Constitution? And what was their effect? In an anide published on the eve of the 1967 referendum Geoffrey Sawer noted that the frarners of the Constitution "paid ... litt\e attention to [the Aborigines'] position".63 While this next section will traverse much of the same ground that Sawer has covered. it will do so as a means of establishing the intentions of lhe framers with regard to ss51(xxvi) and 127. As Sawer himself made clear the Convention Debates provide us with "contemporary evidence" of the thoughts of the framers. However, when he was writing in 1966 the High Court limited recourse to such material. 64 The denial of the Convention Debates was, as Sawer indicated, "absurd". 65

Section 51 (xxvi) The debate as to the meaning of what became s51(xxvi) commenced in Sydney in 1891. When clause 53 (as it was) was discussed in Corruniuee the key point of dispute amongst delegates was whether or not the dause as it stood would limit the capacity of the States. 66 Thynne. for instance, argued that the States must retain the power of "excluding from the franchise any particular race or c1ass of people whom they think it is undesirable ... [to have]. .. entrusted with the franchise."67 There was initially sorne confusion as to whether or not the clause affected that right of the States. Sir Samuel Griffith reassured de\egates that [t]he intention of the c1ause is that if any state by any means gets a number of an alien race into its population, the malter shall nol be dealt with by the state, but the cornmonwealth will take the matter into its own hands. 63 64 65 66 67

Sawer, "The Australian Constitution and the Australian Aborigine" (1966) 2 Fed L Rev 17 al17. Municipal Council ofSydney y Commonwealth (1904) 1 CLR 208 al 213-214. Sawer, "The Australian Constitulion and the Australian Aborigine" (1966) 2 Fed L Rev 17 at 22 fn27. See Appendix A as to the original words of what became s51 (xxvi). Debates Sydney 1891 p702.

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What I have had more particularly in my own mind was the immigration of coolies from British India, or any eastern people subject to civilised powers. The Dutch and English governments in the east do not allow their people to emigrate to serve in any foreign country unless there is a special law made by the people of that country protecting them, and affording special facilities for their going and coming. 6B During a short debate the question of the effect of the clause on Aborigines was not discussed. Indeed, when reciting the clause during debate Gillies omitted the passage dealing with "aboriginal native race in Australia and the Maori race in New Zealand."69 In the end the clause was adopted with the addition (without debate) of the phrase "to whom the parliament of the cornmonwealth deem necessary" moved by Deakin. 70 When the c1ause was next considered in Adelaide in 1897 again no express reference was made to its impact on Aborigines, though the Drafting Cornmittee had removed the phrase "in Australia and the Maori race in New Zealand", acknowledging the fact that New Zealand would not be joining a wider Australasian federation. What discussion there was of the clause carne from H B Higgins who stated that he assumed that the power was to "deal with the important question of the excIusion of the kanakas". 71 In resisting Higgins' minor verbal amendments to the c1ause O'Connor invoked a greater authority. "This is Sir Sarnuel Griffith's clause. He had a special knowledge of the matter."72 Thus it is fair to assume that the intention which Griffith had provided six years before was endorsed in Adelaide. The c1ause was not considered in Sydney in 1897. It was nOI until Melbourne in 1898 thal Ihe final major debate as lo the meaning of Ihe clause look place. Inreconstructing the debate a number of themes are presenl in the minds of those frarners who discussed the cIause. The first, and most obvious issue, was that of race. As Barton stated "[t]here are few questions of more importance" than the capacity of the Federal Parliament to deal with this subject.1 3 The colonial representatives were all keen to have recorded for posterity the 68 69 70

71 72 73

Al p702-703. Al p703. Al p704. Clearly, Ihis is an important amendmenl. We would argue Ihal il is for the Cornmonweal!h to determine whe!her or nol a particular circumstance requires a legislative response. However, as with a11 heads of power, !hat response must be within the scope of !he power otherwise the Parliament could effectively recite itself into power: Australian Communist Party v Commonwealth (1951) 83 CLR 1 al 258 per Fullagar J. Debates Adelaide 1897 p831. At p832. Debates Melboume 1898 p238.

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types of legislation that they had passed to deal with their various racial groups. Mr Isaacs told delegates that in Victoria they should be free to pass legislation to regulate Afghans and their access to hawkers' licences. He al so raised the example of the use of Chinese labour in factories. 74 Braddon from Tasmania likewise noted the "grave question" of "Hindostanese" and hawkers' licences. 75 Sir John Forrest boasted that his colon y had prevented "Asiatic or African alien[s]" from acquiring miners' licences and that they had also prevented these races from going into townships in the goldfields.7 6 According to Barton the original intent of the section "was to deal with the affairs of such persons of other races - what are generally called inferior races, though 1 do not know with how much warrant sometimes - who may be in the Commonwealth at the time it is brought into existence."77 The second theme, and one not unrelated to the first, was the question of protectionism. The type of eeonomic union for the new Federation and the effect it might have on the various colonial economies had been a highly problematic issue for the framers of the Constitution. The influx of cheap labour was c1early of concem for those delegates from colonies with established manufacturing sectors. As Trenwith, the only representative of the labour movement, pointed out to his fellow delegates, the need for legislation dealing with aliens differed in the various colonies.7 8 He went on to note that Victoria alone had factory legislation that "affects the Chinese in a manner such as no other colony has yet thought it necessary lo affeet them."79 The "Chinese question", as Walker described it, was an issue that underlined the discussion on the control of cheap labour during the Convention. 8o Similarly the economic position ofQueensland with its "black labour" gave sorne delegates cause to pause and consider the Iikelihood of unifonn legislation for the regulation of aliens. 81 A third theme that is apparent in the discussion of the c1ause is the greater issue of citizenship. At the time of the debate over c1ause 53 the Melboume Convention had before it c1ause 110 which Inglis Clark. the then Attomey-General of Tasmania, had proposed at

74

Debates Melboume 1898 pp227-228.

75 76

At p233. Al pp240-241. Presumably ForreSI was discussing s92 of the Goldfields Act 1895 (WA) which stated: Any Asiatic or African alien found mining on any Crown land shall be liable ror every such offence to a penalty nOI exceeding Ten pounds and lhe warden shall in his discretion cause such person lO be removed from any goldfield and whether such person has or has nOl been prosecuted for an offence against lhe provisions of Ihis secuon. Debates Melboume 1898 p228. Atp235. Atp236. Atp254. See Wise al p230 and Deakin al p231.

77 78 79 80 81

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the 1891 Convention and which was modelled on the Fourteenth Amendment to the Constitution of the United States. The c1ause stated that: A state shall not make or enforce any law abridging any privilege or immunity of citizens of other states of the Commonwealth, nor shall a state deny to any person within its jurisdiction the equal protection of the laws.

Inglis Clark was later to move, through the Tasmanian Parliament, an amendment to this c1ause so as to extend its operation to inelude the protection of "Iife, Iiherty, or property with due process of law".82 When dealing with the "race power" John Quick for one noted that e1ause 110 would stand in the way of a citizenship that was based on excIusion. 83 Higgins went further, giving a practical example of the effect of cIause 110. He said, "[i]t has been held under a provision such as this that you cannot cut a Chinaman' s pigtail off'.84 The issue of citizenship became c10sely linked with the question of discrimination. In a somewhat enlightened cornment for the time Kingston made it cIear that the race power should not be used to draw distinctions between various races with one ex.ception. Mr Kingston.- I think it is a mistake to emphasize these distinctions. Keep these coloured people out if you do nol want them here, hut if you admit them and do not want them to be a standing source of embarrassment in connexion with your general government, treat them fairly, and let them have all the rights and privileges of Australian citizenship. Sir John Forrest. - Would you give them the right to vote? Mr Kingston.- 1 do not think we ought to give them the right to vote. ss Ultimately, the issue of race and citizenship would prove to be the critical factor in the decision of the framers not to adopt the "bill of rights" proposed by Inglis Clark. 86 A final theme that emerged during discussion of the "race power" had ramifications for colonial interests. This issue was essentially one of federalismo What sphere of government was to have ultimate authority to pass legislation dealing with particular 82 83 84

85 86

For an account oC the attempt 10 inelude this section in the Constitution see Williams, "Race, Citizenship and the Fonnation of the Australian Constitution: Andrew Inglis Clnrk and the '14th Amendment'" (1996) 42 Aust J Po! & Hist 10. Debates Melboume 1898 p246. At p246. Al p247. WiIliams, "Race, Citizenship and the Fonnation of the Australian ConstilulÍon: Andrew Inglis Clark and the '14th Amendment'" (1996) 42 Aust J Poi & Hist 10.

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races? A close reading of the debates highlights the shifting views of the delegates as each supported either exclusivity to the new Commonwealth, the States or concurrence between the two. In the discussion of the elause there is no recorded view as to its effect on Aborigines. From today's standpoint it would appear astonishing that our original constitutional "race debate" did not inelude any mention of Aborigines. Tuming to the other section in the Constitution that expressly mentions Aborigines we find a similar lack of engagement on the part of the frarners.

Section 127 The genesis of s127, as with s51(xxvi), can be found in a proposal by Sir Samuel Griffith on the second last day of the 1891 Sydney Convention. In introducing the new clause Griffith made no mention as to why Aborigines were specifically excluded from the deterrnination of the population. 87 Chapter VII elause 3 stated that: In reckoning the number of people of a state, or other part of the commonwealth, the aboriginal natives of Australia shall not be counted. The c1ause was agreed to without discussion. 88 The next discussion of the clause took place at the Adelaide Convention in 1897 where there was a hint as to the reason behind the exc1usion of Aborigines from the census. Commenting on the elause, Dr Cockbum agreed with the general sentiments of others as to the need for the section and added that with regard to those "natives who are on the rolls ... they ought not to be de barred from voting".89 Deakin, who next spoke. made the link between the census data and the quota for representation in the Cornmonweallh Parliament. He said, however, that the "aboriginal population is too srnall to affect that in the least degree".90 The other link that was rnade between Aborigines and the census was expenditure. As WaIker said: [W]hen we come to divide the expenses of the Federal Govemrnent per capita, if he [Dr Cockbum] leaves out these aboriginals South Australia will have so much the less to payo whilst if they are counted South Australia will have so much the more to pay.91 Having made these points the Cornmittee agreed to the c1ause without division. It would thus appear there was a link made between the Aboriginal population and representation and expenditure. However. if this explanation was to provide sorne clarity on the issue it 87 88 89 90 91

Debates Sydney 1891 pp898-899. See Appendix B. Debates Adelaide 1897 p1020. As aboye. As above.

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was soon disavowed the following year in Melboume. By 1898 the various colonial parliaments had considered the draft Bill and made suggested amendments. With regard lo s127 the Committee had before it two amendments from the Legislative Couneil of New South Wales and the Legislative Couneil of Tasmania which sought to insen "and aliens not naturalized" after the word "natives".92 When diseussing these amendments Barton made it clear that the section was not connected with the determination of electors or finances. Those issues, he indicated, were covered in other clauses of the draft Constitution, which ultirnately became s25 of the Constitution. He assured the delegates that -the purpose of the clause was "solely to the reckoning of the number of people of a stale when Ihe whole population has to be counted, and where it would not be eonsidered fair to inelude Ihe aborigines."93 There was no funher debate and the amendments proposed by New South Wales and Tasmania were rejected. The last amendment to the section occurred after the fourth repon when the words "of the Commonwealth or" were inserted after "people".94 The section as il appears in the Constitution was fmally adopted by the Melboume Convention.

Federation and Race From the aboye aceount it would appear that Aboriginal people were in the background when the framers tumed their minds to s51(xxvi). With respect 10 s127 there appears to be a confusion between the delegates as to what was being achieved. If we look to contemporary constitutional authors to clarify the issue there are similar silenees. John Quick and Roben Garran in their Annotated Constitution 01 the Commonwealth 01 Australia9S when discussing the two sections briefly summarise the Convention Debates. In terms of s51(xxvi) they note that the Commonwealth Parliament is empowered to deal with the people of any alien races after they have entered (he Cornrnonwealth; to locallze them within defined areas, to restríct their migration, to confme them to certain occupations, or to give them special protection and secure their retum after a certain period to tbe country whence they came. 96 This last point picks up on cornments made by Griffith at the 1891 Convention regarding tbe protection of Brítish and Dutch subjects working overseas. What is cIear in their summary of the section is that the main objective of the power was to authorise discrimination on the basis of race. Indeed, they give the example of the Fourteenth

92 93 94

95 96

Debates Melbourne 1898 p713. Asabove. Quick & Garran, The Annorared Consriturion o/the Ausrralian Commonwealth p984. As aboye. Atp622.

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Wll..LlAMS & BRADSEN . THE CONSTITIJTION AND THE RACE POWER

Amendment oC the United States Constitution that would have prevented such discrimination and conclude that: There is no section in the Constitution oC the Commonweallh conlaining similar inhibitions. On the contrary it would seem that by sub-seco xxvi. the Federal Parliament will have power to pass special and discriminating laws relating to "the people oC any race," and that such laws could not be challenged on the ground oC unconstitutionality, as was done in Yick Wo v Hopkins. 97 The case mentioned, Yick Wo v Hopkins,98 had been fírst produced by Isaac Isaacs in his argument against the adoption oC the Tasmanian Amendment based on the Fourteenth Arnendrnent. The case itself ¡n volved an ordinance of the City and County oC San Francisco which denied laundry licences to Chinese. The ordinance was he Id to be unconstitutional by the Supreme Court in that it violated the "equal protection" c1ause oC the Fourteenth Amendment. In addressing delegates in Melboume in 1898 Isaacs cited the case and wamed that iC the amendment was adopted "[y]ou could not make any distinction between these people [Chinese] and ordinary Europeans".99 Apart Crom these conclusions as to the capacity oC the Commonwealth to use the power to discriminate on the basis oC race, Quick and Garran make no comment on the relation between the section and Aborigines. Tuming to their discussion oC sl27 there is a similar lack oC information to be gleaned from their account. They briefly give an historical note which does not offer any reason for lhe exclusion of Aborigines Crom the operation of the SectiOD. What mention of "aboriginal natives" there is involves the reproduction of atable that purports to "show the number of aborigines enumerated or believed to exist in each Australasian Colony in 1891".100 IC we tum to the other constitutional authors oC Cederation there is similarly liule to be gained. Andrew Inglis Clark in his Studies in Austra/ian ConstitutionallAw published in 1901 and 1905 made no direct reference to Aborigines apart Cromnoting that s51(xxvi) was a concurrent power. 101 William Harrison Moore in his work The Constitution of ¡he Commonwealth of Australia published in 1902 and 1910 noted that s51(xxvi) enabled Ihe Cornrnonwealth to deal with the various race problerns which arise in different parts of Australia, and enables the Parliament to establish laws conceming the Indian, Afghan, 97 98 99 100 101

Al p623. (1886) 188 US 356. Debates Melboume 1898 p669. Quick & Garran, The Annotated Constitution o/ the Australian Commonwealth p984. The total Aboriginal population was estimated at 59 603. Inglis Clark, Studies in Australian Constitutional Law p88.

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and Syrian hawkers; the Chinese miners, laundrymen, market-gardeners, and furniture rnanufacturcrs; the Japanese settlers and Kanaka plantation labourers of Queensland. and the various coloured races employed in the pearl fisheries of Queensland and Westem Australia. I02 In terros of s 127 he noted that it was "suggested by the Fourteenth Amendment (sec. 2) to the United States Constitution."I03 The section in the American Constitution states that: Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persoos in each State, excluding Indians not taxed. The only other reference to Aborigines noted their exclusion from voting under the Commonwealth Franchise Act 1902. 104 How do we assess this general oversight on the part of the frarners with respect to Aborigines? We would argue that while there is a general disinterest in the plight of Aborigines there is keen concem by the framers on the issue of raee. The framers were united in their wish to empower the Commonwealth to deal with people of any race. If we look at the debates it becomes elear that there is a bifurcation of the intended use of the power. Most discussion focused on the capacity of the Commonwealth to discriminate in a negative way with respect to the "undesirable" races. 105 Thus the Cornmonwealth could take up the role, if it so desired, to pass legislation with respect people of any race. What is a1so elear following Griffith's introduction of the power is that it was intended to have a beneficiaI elernent to it as well. This would. as Griffith said. a1low for "special" laws for the subjects of nations that would not allow thern to travel to Australia without sorne protection. As Griffith's exarnples indicate these were the people of the "Dutch and English governrnents in the east".I06 As to Aborigines there is very little comment. The next section of this artiele will attempt to reconstruct the intention of the frarners by reviewing post-Federation material that touches on the issue. Federation to 1967 Royal Commission on the Constitution 1929

The first major review of the Constitution after Federation was initiated by the Bruce government in 1927. The Royal Commission consisted of seven members chaired by lB 102 103 104 105 106

Harrison Moore, The Constitution of the Commonwealth of Australia (Legal Books. Sydney 1997) p464. At pllS. At p126. Debates Melboume 1898 p665-666. As aboye, fn68.

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WILLIAMS & BRAOSEN - THE CONSTITUTION ANO THE RACE POWER

Peden and reported in December 1929. 107 The terms of reference of the Commission involved an inquiry into "the powers of the Cornmonwealth under the Constitution and the working of the Constitution since Federation". 108 In particular the Comrnission inquired into ten areas,I09 though it also addressed other issues relating to theoperation of the Constitution. One question that counsel assisting the Commission, Mr HS Nicholas, put to the Commission involved the issue of the status of Aborigines under the Constirution. As he said: The only question 1 submit to the cornrnission is whether that exception of aboriginal races should not now be deleted [from s51(xxvi)1 .... 1 know it has been suggested from time to time that dealing with the aboriginal races is properly a Commonwealth function. It is a function upon which the good name and reputation of Australia very greatly depend, and 1 suggest that it is worthy of the commission' s consideration,1 10 The Commission sat in Canberra and every State capital (as well as sorne regional centres). It examined 339 witnesses and collected two volumes of evidence. Those who gave evidence to the Commission on the issue of Aborigines may be divided into three groups. The first represented those witnesses who offered general opinions on the Constitution. The second group offered an opinion on social matters including Aborigines. The last group limited their comrnents solely to the issue of the Aborigines. The first group included Richard Windeyer, Philip David Phillips, HB Higgins, Edward Angelo, and Josiah Henry Symon. Higgins and Symon had both been delegates to the Constitutional Convention and presumably would ha ve had intimate knowledge as to the intention of s51 (xxvi). Higgins offered little insight, saying that: With regard to the aborigines, 1 regard it as OUT duty as a nation to look after those whom we have dispossessed, but, at the same time, it by no means follows that, because a Protector of Aborigines is employed by the Cornmonwealth, he would necessarily do his work better than if he were employed by the State ... .1 pass those things [tbe question of responsibility] by saying 1 do not comrnit myself to any opinion about them. 111

107 108 109 110 111

The membership was The Hon JB Peden KC, MLC, Senator PP Abbolt, TR Ashwonh, The Hon EK Bowen, MP, The Hon Sir HP Colebatch KB, MB Duffy, and The Hon OL McNamara MLC. Aust, Royal Commission on the Constitution (Peden, Chair) Repon (1929) pi. Aviation, company law, health, industrial relations, interstate commission, judicial power, navigation law, new states, taxation and trade and commerce. Aust, Royal Commission on the Constitution of the Commonwealth (Peden, Chair) Repon 01 Proceedings and Minutes 01 Evidence (1927) p31. Al p435.

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Symon went further, noting that he gave his "strong support" to the proposal to allocate power to the Cornmonwealth saying that: there should be adequate humane provision for the aboriginal inhabitants of this country. They are the original owners of the soil, and the crueIties and ill-treatment and the want of care and so on to which they have been exposed have awakened a strong feeling of sympathy.1l2 He continued by proposing the creation of an Aboriginal "State" along the Iines of the Indian reserves in the United Slates. The other two witnesses who addressed the question of conslitutional responsibility gave somewhal conflicling opinions. Windeyer supported the transfer mainly on the basis that it was a subject that required a nalional policy.113 Phillips in his evidence felt Ihat the section should be slruck out altogether stating: "you may ask whelher the advantages of speciallegislation for special races are not so dangerous as to make it advisable to ex.c1ude that power altogether."114 The second group that gave evidence to the Cornmission consisted of three women's groups representing the Victorian Women Citizen Movement, the National Council of Women and the Women's Non-Party League of Tasmania. Mrs Edith Ernily Jones from the Victorian Women Citizen Movement gave a passionate account of the need for social reform on many fronts including marriage, divorce, education and affirmative aetion. In respect of Aborigines she believed that the Cornmonwealth was best able to proteet their interests. 1l5 Mrs Clara Rulherford representing the National Council ofWomen stated that there should be a transfer as "[t]here is always a 101 of local prejudice and local influenee. In the Federal atmosphere they would disappear." 116 Mrs Edith Waterworth from the Women's Non-Party League echoed the thoughts of the other women's groups acknowledging the need for a Cornmonwealth response to the question. 117 The last group of witnesses represented the bulk of evidence on the question. These witnesses carne from three major groups. The first were from the various State Aboriginal protectorates. The second were from a number of church missionary societies or protection societies. The last group represented the pastoralists. Evidence was again mixed on the best way to proceed. Generally the pastoralists did not see the need for a transfer of power. The church groups took the eontrary view, with the State protectorates

112

Atp1084.

lB

At p223.

114

At p771. At p334. At p626. At p918.

lIS 116 117

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WILLIAMS & BRADSEN - THE CONSTIfUTION AND THE RACE POWER

supporting the approach of their various governments. Of those who favoured the transfer of responsibility a number of reasons emerge. The first of these, and perhaps the most critical in understanding the frarners' intention as to the section, was explained by Mr Auber Octavious Neville, the Chief Protector of Aborigines for Western Australia. In reviewing the Convention Debates and s51(xxvi) he noted: From this it will be seen that the aboriginal raee was deliberately excluded. The Constitution finally adopted contained only a slight reference to the indigenous raee, in section 51 (xxvi.). One can only conclude that in the earlier stages of the discussions it was assumed that the natives were so few in number and so rapidly dying out that it was not worth while creating provision for their control by the National Governrnent. 118 According to his biographer, Samuel Griffith was "sympathetic to the Aboriginals" though he "probably shared the view of rnany of his contemporaries that the problems would soon vanish. Meanwhile, he wished to take humanitarian measures, albeit tempered by legalism, for them."1l9 This may explain the intention behind the absence of Aborigines in Griffith's original draft sections. This point becomes evident in the line of questioning of witnesses before the Comrnission. Indeed, one of the recurring questions is whether or not the Aboriginal race was dying out. 120 The overwhelrning view of witnesses before the Commission was that they were not. 12I For many witnesses it is tbis fact that suggested that there was now a need to have a national approach. The Reverend Emest Richard Bulmer Gribble added an element of moral responsibility on the pan of government when he suggested that "[t]he position at the present time is that the States are not bearing an equaI burden, they are not bearing the white man' s burden so far as the aborigines are concerned." 122 The reason for the transfer of responsibility aIso had an intemational dimension to it. As Nicholas had noted, the world was watching. Auber Neville made a similar point when he said: If we are going to save this race we must not lose time in improving our

methods, and adopting new ones, giving more time and thought to the malter as a nation deemed capable in the eyes of the world of caring for its liS 119 120 121 122

Al p4SS. Joyce, Samuel Walker Griffith (University ofQueens1and Press, St Lucia 1984) p11S. See for example Aust, Royal Cornmission on the Constitution of the Cornrnonwealth (Peden, Chair) Report of Proceedings and Minutes of Evidence (1927) pp478, 493. One eryptic eomment carne from Edward Ange10 who stated at p6SS: "Our peop1e are looking after the aborigines very well. The aborigines are fas! disappearing." Al p1270.

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section of the indigenous races within its bounds, and so remove the reproach of the past. 123 In general the tone with regard to Aborigines was we11-intentioned, but, from a modem viewpoint, highly patemalistic. In the end the majority report of the Commission made no recommendation as to the amendment of s51(xxvi). It did however state that: We recognise that the effect of the treatment of aborigines on the reputation of Australia fumishes a powerful argument for a transference of control to the Cornmonwealth. But we think that on the whole the States are better equipped for contro11ing aborigines than the CommonweaIth. The States control the police and the lands, and they to a large extent control the conditions of industry. We think that a Commonweahh authority would be at a disadvantage in dealing with the aborigines, and that the States are better qualified to do so.124 The minority report of Duffy and McNarnara (with which Ashworth concurred) under the sub-heading of "Aborigines, Fauna and Flora, Fisheries and Forestry" made the following statement with regard to Aborigines: The recommendation regarding aborigines is based upon the responsibility of the natioD as a whole to care for the aboriginal native races of this country. It is hardly fair that the burden of caring for the natives should rest upon the States which have small populations but in which the bulk of the natives are, while the more settled States have little or no financial responsibility in the matter. The national Parliament should see that a11 carried their fair share of burden in respect to the displaced native races, and should accept the responsibility for their well-being. 12S The Comrnission made no recommendation as to s 127.

Constitutional Review 1959

In May 1956 the House of Representatives and the Senate appointed a loint Committee to "make recommendations for such amendment of the Constitution as the Comrnittee thought necessary in the light of experience." 126 The Committee presented its first report in October 1958 and was reconstituted to continue its work in April 1959 presenting its fmal report to the Parliament later in that year. The membership of the Committee from the House of Representatives included the Prime Minister and Leader of the Opposition, as 123 124 125 126

At p490. Ausl, Royal Cornrnission on the Constitution (Peden, Chair) Repon (1929) p270. Al p303. Aust, Joint Cornrniuee on ConstitutionaJ Review (O'Sullivan, Chair) Repon (1959) pI.

WILLIAMS & BRADSEN • THE CONSTITIITION AND THE RACE POWER

118

ex officio members, Mr Calwell, Mr Downer, Mr Drummond, Mr Hamilton, Mr Joske, Mr Pollard, Mr Ward and Mr Whitlarn. The Senate was represented by Senators O'Sullivan (Chair), Kennelly, McKenna and Wright. The Cornrnittee investigated many aspects of the Constitution including the number and terms of Senators, s57, legislative powers with regard to navigation and shipping, aviation, scientific research, nuclear power, cornmunícations, industrial relations. corporations, trade practices. economic regulation and transport, new States and procedures related to constitutional alteration. In its deliberation on the question of Aborigines the Cornmittee limited itself to the operation of s127. In reviewing the section, the Committee suggested a reason as to how il found its way into the Constitution. They concluded that [a]t Federation, the available means of communication made it almost impossible to obtainan accurate count of the aboriginal population of a State. Sorne difficulty will continue to be experienced in counting the number of aborigines who do not live in proximity to settlements but the means of cornmunication and available sources of contact with aborigines of nomadic habit have improved so much since Federation that the Committee believes that there are no longer insuperable barriers to lhe carrying out of a satisfactory census of the aboriginal population of the States. l27 The Comrnittee heard from a number of groups who supported the removal of the seetion from the Constitution. In making their submission, representatives of the Australian Federation of Women Voters referred to the Universal Declaration of Human Rights, arguing that the repeal of s127 would be consistent with the principies of the Declaration. While [he Cornmittee did not consider the existence of s127 a breach of the Declaration it did concede that the repeal of the section would be consistent with the objectives of the Declaration. 128 Ultimately the Committee recornmended the repeal of s 127 .129 Summary

This then concludes the historie al search as to the framers' intention with respect to ss51(xxvi) and 127. What becomes clear from the aboye accounts is that Aborigines were very much overlooked by the framers when they diseussed s51(xxvi). Clearly there is an argument that the reason that Aborigines were excluded from the legislative reach of the Cornmonwealth in s51(x:x:vi) was due to a belief. as wilh olher welfare issues, that this was an issue best left to the States. However, lhe underlying explanation for Aborigines' 127 128 129

Atp55. Al p56. As aboye.

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deliberate excIusion from the Commonwealth's reach can be better understood by reference to the general belief that they were, as Neville testified in 1927, a dying race. Their place was in the language of social Darwinism, as a natural process of "survival of the fittest". According to this analysis, the future of Aboriginal people was inevitably doomed; what was needed from governments and missionaries was to "smooth the dying pillow". 130 As such their constitutiona! imprint was only marginal and indicated that they were to be subjects of the States until such time as they were to be the subjects of history. As was noted before. the overwhelming (though not exclusive) intention of s51(xxvi) was to discriminate with respect to race. On the whole this was negative discrimination with the small exception of certain groups such as British or Dutch subjects who entered Australia.

Constitution Reforro: The Road to Referendum The first steps towards the constitutianal amendment of 1967 commenced on 11 November 1965. On that day the (hen Prime Minister Sir Robert Menzies introduced the Constitutional Alteration (Repeal of Section 127) Bill 1965 into the Commonwealth Parliament. As the name suggests the gavernment limited its reform agenda to s 127 and did not propase to change s51(xxvi). In the second reading speech Menzies noted the report of the 1959 Committee and suggested that the "practical difficulties" of counting the Aboriginal population of 1900 had now been removed and that "section 127 is completely out of harmony with our nationa! attitudes and with the elevatíon of the Aborigines into the ranks of citizenship which we all wish to see."131 Wilh regard lo the questian of why the government had chosen nol to amend s51(xxvi) Menzies explained that the words "other than the Aboriginal race in any state" contained in the section were a protection against discriminaban by Ihe Commonwealth Parliament in respect of Aborigines. The power granted is one which enables the Parliarnent to make special laws. that is, discriminatory laws in relation to other races - speciallaws that would relate to them and not to other people. The people of the Aboriginal race are specificalIy excIuded from this power. There can be in relation to them no valid laws which would treat 130

131

Aust, Human Rights and Equal Opportunity Commission, Bringing them Home: National lnquiry into the Separation of Aboriginal and Torres Slrait lslander Childrenfrom Their Families (1997) p28. AUSI, Parl, Debates (1965) Vol 48 al 2639.

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WILLIAMS & BRADSEN - THE CONSTITUTION AND THE RACE POWER

them as people outside the normal scope of the law, as people who do not enjoy benefits and sustain burdens in common with other citizens of Australia. 132 Menzies also elaborated on the original purpose of the section. He said that it should be "remembered that section 51 (xxvi) was drafted to meet the conditions that existed at the end of the last century - for example, the possibility of having to make a special law dealing with kanaka labourers."IH Thus, for Menzies, the section as it stood in 1965 represented a benefit for Aborigines as they were presumably beyond the discriminating hand of the Commonwealth. This is an interesting intention to ascribe to the texl. Whilst it is clear under the Menzies' view that the Commonwealth could not directly pass legislation with respect to Aborigines, it could not discriminate against them either. Taking such a view, Ihe power to enact legislation under s51(xxvi) could not be seen as discriminatory with regard to Aborigines. At worst it was neutral. In the debate Ihat followed over the BiIl the Labor Opposition supported the removal of the "blot" from the Constitution, however they also wished to see reform lo s51(xxvi),134 Kim Beazley Snr said that the sections damaged Australia's intemational reputation and argued for the improvement of the Constitution so that there was "conferred upon the Commonwealth a positive power to make laws for the benefit of Aborigines".135 Dr J Cairns likewise was unwilling to accept the Prime Minister' s arguments regarding s51(xxvi). He said that: 1 do not think we need worry about creating for the Commonwealth power to do something for the Aboriginal people. Surely this is not a legitimate concem or something that we should be unwilling to do. Certainly our overall objective is to treat the Aborigines as on the same footing as the rest of us, with similar duties and similar rights. But surely this is not an argument against providing for the Commonwealth a simple power to be able to do something for the Aborigines. 136 Perhaps the most interesting contribution to the debate over the Bill carne from the member for Mackellar, Mr Wentworth, who described as an "anachronism" those sections dealing with Aborigines in the Constitution. 137 In his speech he proposed an arnendment to the Constitution introducing a new section 138 that would "establish Australia as a non132 133 134 135 136 137 138

Al 2638-2639. Al 2639. Aust, Parl, Debates (1965) Vol 49 p3067 per Calwell. Al3077. Al 3079. Al 3068. The Wenlworth proposal slaled that: Neither the Commonwealth nor any Slale shall make or maintain any law which subjects any person who has been bom or naluralised wilhin lhe Comrnonwealth of

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racial society" but al 50 that would give the Commonwealth a power "to help the Aborigines and would prevent any discriminatory laws against them."139 In the end the Wentworth amendment was not put and the Bill was passed through the House of Representatives without dissent. l40 . In March 1966 Mr Wentworth fonnally introduced his constitutional amendment in the guise of the Constitution Alteration (Aborigines) BiH 1966. The Bill amended s51(xxvi) by omitting the original words of paragraph (xxvi) and adding these words: "The advancement of the aboriginal natives of the Cornmonwealth of Australia". Further the BiH created a new section 127 A which adopted the language of his previous motion.l 41 The reasons for the Bill, according to Wentworth, were based on moral and resource realities. Moreover, he said that:

The mere omission of the words [from s51(xxvi)] seems to me to be unsatisfactory foe several reasons. First, the sub-section does not say whether the discrimination should be adverse or favourable. If one looks at it one sees sorne implication, at any rate, that the discrimination would be unfavourable. We do need the power for favourable discrimination; we should not have the power for unfavourable discrimination. 142 This Bill was supported by all speakers who participated in the debate and many pointed to the need for positive action by the Cornmonwealth Govemrnent. Mr Bryant, for instan ce, noted: The position is this: The Aboriginal people are still denied sorne of the advantages and benefits of being Australians and they will be denied those advantages while this section of the Constitution remains. While anything inhibits Cornmonwea1th action in the field of Aboriginal advancernent, the Aborigines cannot receive the fuH benefits of Commonwealth resources. 143

In the end the BiHlapsed with the prorogation of Parliarnent. Australia to any discrimination or disability with the Cornrnonwealth by reason of his racial origin:

139 140 141 142 143

Provided thal this section shall nOl operale so as lo preclude lhe making of laws for the special benefil of the aboriginal natives of the Commonwealth of Australia. Al 3070. As aboye. At 3079-3080. When the BiH was pUl to the Senale it passed withoUl dissenl: AUSI, Parl, Senale, Debates (1966) Vol S30 al 2025. As aboye fn137. Aust, Parl, Debates (1966) Vol 50 al 123. Al 132. A similar slalemenl was made by Mr Robinson al 134.

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WILLIAMS & BRADSEN - THE CONSTITUTlON ANO THE RACE POWER

In February 1967 the then Prime Minister Mr Holt made a ministerial statement committing the government to the constitutional procedures required to remove from the Constitution s127 and the words "other than the Aboriginal race in any State" in sSI (xxvi). 144 The government decIined the proposal of Wentworth on the grounds that it might "complicate the issues" .145 When the Constitutional Alteration (Aboriginals) BiII 1967 was introduced into Parliament the Prime Minister suggested that in regard to sSl(xxvi) there had been established an "erroneous" but nevertheless a "deep rooted" view that the words in the section were discriminatory.l46 Notwithstanding this view the Government accepted that if the proposed referendum was approved by the people "the Government would regard it as desirable to hold discussions with the States to secure the widest measure of agreement with respect to Aboriginal advancement."147 In the debate that followed, the Leader of the Opposition, Mr Whitlam, pledged the support of the Australian Labor Party. Whitlam made cIear what would be the ramification of the a1teration of sSI(xxvi). He said that the Parliament

will be able for the first time to do something for Aboriginals Aboriginals representing the greatest pockets oC poverty and disease in this country. The incidence oC leprosy, tuberculosis and inCant mortality is higher among Aboriginals than among any other discernible section oC the world's population and, as we know, the opportunitíes for Aboriginals even to have education - and certainly to pursue a calling after they have leCt school - to enjoy good housing conditions and to enjoy good public hygiene are less than those of other Australians. Hitherto it has been impossible Cor the Commonwealth to do these things directly itself. HereaCter it will be possible Cor the Commonwealth to provide the Aborigínals with sorne oC that social capital with which most other Australians are already endowed. 148 Mr Wentworth, speaking during the debate, stated that with the amendment the Cornrnonwealth would have the power to discriminate Cor the benefit oC Aborigines. He said: ". think that sorne discrimination is necessary. But. think it should be Cavourable, not unfavourable."149 Mr Bryant continued, stating that he believed that the amendment would give the Commonwealth the chance to address the plight oC Aboriginals. He stated his belief "that it is only from the Cornmonwealth - even with a govemment such as this that benefits are likely to flow from the wealth and prosperity oC this country."150 Mr 144 145 146 147 148 149 150

Aust, Parl, Debates (1967) Vol 54 at 113. At 114. At263. As aboye. Emphasis added. Al 279. Al28!. Al 282.

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Beazley Sor stated that "[tJhe Commonwealth should have this power because it is the Government which is confronted with the conscience of the world on this issue".151 When the Bill was put it received unanimous support in both the House of Representatives l52 and the Senate. 153 In summarising the thoughts of those parliamentarians who spoke to the Bill it is possible to say that at the very least they wanted to rernove frorn the Constitution the "erroneous" perception of discrimination. However, the overwhelming view is that they wished lo remove the constitutional obstacle so that the Commonwealth could legislate beneficially, especialIy in the areas of housing, health and education. This was evident when members discussed the aborted attempt by Wentworth to explicitly provide a power dealing with the "the advancement of the aboriginal natives of the Commonwealth of Australia". Notwithstanding that this amendment was not put (primarily to counter the vagaries of constitutional amendment in Australia), the sentiments that it contained were transferred to the decision to omit the words "other than the Aboriginal race in any State" from s5 1(xxvi).

When the people of Australia voted on the constitutional amendment they were presented with only a "yes" case that had bipartisan support. The case stated: CONSTITIJTION ALTERAnON (ABORIGINALS) 1967 Argument in favour of the proposed law THE CASE FOR YES The purposes of these proposed amendments to the Commonwealth Constitution are to remo ve any ground for the belief that, as at present worded, the Constitution discriminates in sorne ways against people of the Aboriginal race, and, al the same time, to make it possible for Ihe Commonwealth Parliarnent to rnake special laws for the people of the Aboriginal race, wherever they may live, if the Cornrnonwealth Parliament considers this desirable or necessary. To achieve this purpose, we propose that two prOVISlOns of the Constitution be altered which make explicit references to people of the Aboriginal race.

IS1 152 153

At 28S. Al 287. Aust, ParI. Senate, Debates (1967) Vol S33 at 372.

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The first proposed alteration is to remove the words "other than the Aboriginal race in any State" from paragraph (xxvi.) of Section 51. Section 51 (xxvi.) reads: UThe Parlianient shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Cornmonwealth with respect to: (xxvi.) The people of any race, other than the aboriginaI race in any State, for whom it is deemed necessary to make special laws." The proposed alteration of this section will do two things. First, it will remove words from our Constitution that many people think are discriminatory against the Aboriginal people. Second, it will make it possible for the Commonwealth Parliament to make special laws for th~ people of the Aboriginal race, wherever they may live, if the Parliament considers it necessary. This cannot be done at present because, as the Constitution stands, the Commonwealth Parliament has no power, except in the Territories, to make laws with respect to people of the Aboriginal race as such. This would not mean that the States would automatically lose their existing powers. What is ¡ntended is that the National Parliament could make laws, if it thought fit, relating to Aboriginals - as it can about many other matters on which the States al so have power to legislate. The Commonwealth's object wilI be to co-operate with the States to ensure that together we act in the best interests of the Aboriginal people of Australia. The second proposed alteration is the repeal of Section 127 of the Constitution. That section reads: "In reckoning the numbers of the people of the Commonwealth, or of a State or other part of the Cornmonwealth, aboriginal natives shall not be counted." Why was this provision included in the Constitution in 1900? Well, there were serious practical difficulties in counting the Aboriginals in those days. They were dispersed, and nomadic. Cornmunications in inland Australia were poor, and frequently non-existent. Today the situation is very different and counting is practicable.

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Our personal sense of justice, oue cornmonsense, and our intemational reputation in a world in which racial issues are being bighlighted every day, require that we get rid of this out-moded provision.· Its modem absurdity is made clear when we point out that fm sorne years now Aboriginals bave been entitled to eneol for, and vote at, Federal Eleetions. Yet Seetion 127 prevents tbern from being reckoned as "people" for tbe purpose of calculating our population, even for electoral purposes! The simple truth is that Section 127 is completely out of harmony with our national altitudes and modem thinking. It bas no place in our Constitution in tbis age. AH political parties represented in the Cornmonwealth Parliament support these proposals. The legislation proposing these Constitutional amendrnents was, in faet, adopted unanimously in both the House of Representatives and the Senate. We have yet to leaen of any opposition being voiced to them from any quarter. Just as every availabIe Member of the Commonweallh Parliament voted for the proposals outlined aboye, we believe that the Australian eIectorate as a whoIe will give strong support and endorsement to tbem. We urge you to vote VES to both our proposals as to Aboriginals by writing the word YES in the square on the ballot-paper, thus: YES

This case has been authorised by the majority of those Members of botb Houses of the Parliament who voted for the proposed law and was prepared by lhe Prime Minister, the Rt. Hon. Harold Holt. Leader of the Federal Parliarnentary Liberal Party; by the Deputy Prime Minister, the Rt. Hon. John McEwen, Leader of the Australian Country Party; and by the Leader of the Opposition, Mr. Gough Whitlam, Leader of the Australian Labor Pacty. As with lhe debate in Parliament a number of express intentions can be found in the "yes" case. First, the arnendments were to remove any ground for beIief that the Constitution "discrirninates in sorne ways against people of the Aboriginal cace" and "[t]hat the Cornmonwealtb's object will be to co-operate with the States to ensure that together we act in the best interests of Ibe Aboriginal peopIe of Australia". Second, the amendment would allow tbe Parliament to make special laws foc Aborigines. Last, the amendments were made because of U[o]ur personal sense of justice, ouc commonsense, and our international

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126

reputation". It is a fair representation of the "yes" case to suggest that everything pointed towards the fact that the amendrnents would bring about a benefit to the Aboriginal people. But more importantly thete is nothing to suggest that the opposite would be the case. When the people of Australia voled on 27 May 1967 the result was an overwhelming endorsement of the arnendment. 154

Number 00 roll

Votes

Total Valld

agalnst (%)

Votes

1949036

182010

2131046

35461

(91.46%)

(8.54%)

1 525026

85611

1610 637

19957

(94.68%)

(5.32%)

748612

90587

839199

9529

(89.21%)

(10.79%)

473440

75383

548823

12021

(86.26%)

(13.74%)

319823

75282

395105

10 561

(80.95%)

(19.05%)

167176

18134

185310

3935

(90.21%)

(9.79%)

5183 \13

527007

5710 120

91464

(90.77%)

(9.23%)

for New South Wales

2315828

1734476

Victoria

Queensland

South Australia

Westem Australia

904 808

590275

437609

199589

Tasmanla

Commonwealth

6182585

Infonual

Votes

(%)

This represents by far the rnost cornprehensive suppon for any constitutional amendment that has been put to the people. As Mr Bryant, the member for WilIs, reflected: "That overwhelming vote, had it occurred in sorne other part of the world, would have been said by rnany of us to have been rigged."155

154 155

The following lable is taken from Macintyre, Polideal Australia: A Handbook of Faets (Oxford University Press, Melboume 1991) p35. Aust, Parl, Debates (1967) Vol 56 at 186.

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What was the effeet ot the referendum?156 The obvious outeome was the removal of s 127 and the striking out of the words "other tban the aboriginal race in any State" for s5l(xxvi). In terms of the power the resuIt of the 1967 referendum could give rise to one of three views. The first is that the removal of the words "other than the aboriginal race in any State" meant that the power reverted to its original intention as a power to make special laws tor both the benefit and detriment of any particular race. That is, it simply made Aborigines subject to the legislation of the Commonwealth Parliament. Such a view, we would argue, diminishes the intentions of those who campaigned and voted for the amendment of the section. The second possible view is that the power remams a power to pass both beneficial and detrimentallaws with respect to all races other than the "aboriginal raee". That is, the effect ofthe 1967 referendum with its specific reference to Aborigines (based on a positive desire or intention with respect to Aborigines) is sueh that the section now incorporates an implied prohibition against detrimental legislation in the case of Aborigines. Notwithstanding that such a reading of the events of 1967 might create an anomalous situation as between the Aboriginal people and other rae es we would argue that it is perhaps the most historically aecurate concJusion to be drawn from the 1967 referendum. The final outcome is that the power is now whoJly a beneficial one as to its operalion. In other words, the 1967 amendment imposed a prohibition on detrimental legislation with respect to all races incJuding Aborigines. The weakness in such a reading is the absence of any discussion or advoeacy (apart fram Wentworth's proposed section 127A) of this position.

In summary, we argue that the original inteotion ot lhe framers of the Coostitution was lO provide a power tor lhe Cornmonwealth to legislate with respect to the people of any raee. The eoncJusion to be drawn from the debates is that this legislation was to diseriminate io a negative sense against "undesirable" races and in a minority of cases to provides "special laws" tor privileged races. Aborigines were assumed to be the "doomed" race and were thus left to the States to administer. The events surrounding the 1967 referendum c1arify the meaning ot the section. We have argued that the cJear theme that emerges from the parliarnentary debates and the "yes" case is that the passage ot the amendment would allow the Commonwealth to legislate tor the benefit of Aborigines. Nothing to the eontrary is evident.

156

For a general discussion of the role of referendums and constitutional adjudication see Coper, "The People and the Judges: Constitutional Referendums and Judicial Interpretation" in Linden (ed), Future Directions in Australian Constitutional Ltrn;: Essays in Honour 01 Prolessor Leslie Zines (Federation Press, Sydney 1994) pp73-89. Coper does conc\ude that "transgression of the limils [of the notion of an implied benefit] would require a relatively extreme and unambiguous eltample of detriment lo the intereslS of the Aboriginal people." (Al 84.)

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WILLIAMS & BRADSEN - THE CONSTITUTION AND THE RACE POWER

THE IflGH COURT AND THE RACE POWER In the first part of this paper we bighlighted the three analytical models that represent the modes of interpretation that have been developed by the High Court. In this section we will use these models as a way of assessing the case law in the area and offer a view, based on the statements of the various justices, as to whether or not sSl(xxvi) is now solely for the "benefit" of Aboriginal people.

As was noted in the first section of this article, the three models are by no means exclusive of each other. Indeed one of the difficulties thal occurs in their application is the way in which individual justices move between the models. For instance, Gibbs Cl in Koowarta v Bjelke-Petersen,157 relied on an original intent argument to suggest that the power is open to both benevolent and detrimental usage, then proceeded to give a textual interpretation of the word "any".158 Further, conclusions reached by one justice based on a particular approach are often adopted in another judgment which is applying a different methodology. For instance, Deane 1's view that the power is "a general power lo pass laws discriminaling against or benefiting the people of any race", in Commonwealrh v Tasmania (Tasmanian Dam Case),159 was developed (and qualified) after a discussion of the historical events relating to the section. This passage was repeated in Westem Australia v Commonwealth (Native Title Act Case) 160 which essentially took a textualist approach. 161 The scope and meaning of the race power with respect to Aborigines has been considered in three major cases: Koowarta,I62 Tasmanian Dam Case, 163 and Native Title Act Case. 164

Original Intent and Section 51 (xxvi) From the aboye historicaI overview it is possible to isolate three groups fram whom the meaning and intent of the power can be found. The firsl is that of the framers who considered the delailed provisions of the Constitution in the 1890s. The second is that of the parliamentarians who debated and passed the 1966 Bill that set in train the amendment of the Constitution. Last, there are the people of Australia and their endorsement of the 157 158 159 160 161

162 163 164

(1982) 153 CLR 168. See below p130. (1983) 158 CLR 1. (1995) 183 CLR 373. At 461. The qualification Ihat Deane J added to this conclusion (and one that highlights his historical approach) was: "Since 1967, that power has included a power to make laws benefiting lhe people of the Aboriginal race." This sentence was nol included in the Native Title Act Case. See below, fn 178. (1982) 153 CLR 168. (1983) 158 CLR 1. (1995) 183 CLR 373.

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spirit and tenns of the "yes" case put to them at the 1967 referendum. It is critical to determine the overriding intention. If 1900 is the key moment then it is clear that the frarners intended that the section was to allow discrimination on the basis of race with the occasional benefit for particular races. In other words, the section contains within it both beneficial and detrimental elements. If, however, we take the 1966 amending legislation as the key intentional moment, then it is cIear that the intention behind the removal of the words was to ensure that benefits should flow to Aboriginal Australians. At no point in the debates was the use of detrimental legislation given serious consideration. The final moment is that of 1967 when over 90 percent of the electorate, arguably infonned by the "yes" case, endorsed these proposed changes to the Constitution. From the 1967 perspective it must surely be argued that the section would be linúted solely to the benefit of Aborigines.

A weakness in the original intent argument in regard to s51(xxvi) is that the number of intents increase over time. If we leave aside the possibility of collective intents then in 1898 there were at most 50 possible views on the section. In 1967, 165 parliamentarians passed the legislation. In 1967 the amendment was supported by 5 183 113 voters who presumably had a view on what the section was intended to achieve. Clearly there are sorne problems in ascribing what is the guiding intent if that intention is not described as a collective one over time. It should be noted, though, that the two most recent of the three coIlective intents favour a beneficial approach. In a series of cases in 1992 sorne members of the High Court declared that the Australian people were the ultimate holders of sovereignty in the constitutional sense. 165 Such a view has major ranúfications for notions of parliamentary sovereignty but al so for the way in which the Constitution is to be interpreted. More particularly, when we speak of sovereignty with respect to s51 (xxvi) do we mean the people of the 1890s who endorsed the Constitution, the people of 1967 who amended it or the people of today who live with the Constitution? Or do we mean that each of these moments represent an ongoing endorsement of the Constitution since 1901? If the lalter is the case then the events of today have no greater importance than the referendum of 1967. Surely this cannot be the case. If, however, we mean that the people are sovereign in the sen se that they ha ve ownership of their Constitution then it is possible to say that the people are sovereign and they share that sovereignty equally over time.

Be this as it may, it is suggested that the most recently expressed intention of the people must be taken to be the defining one. Thus in 1967 the people clarified the meaning of s51(xxvi) of the Constitution. The reason for, and the intention behind, that clarification can be found in the words of their political representatives and the "yes" case. 165

See Nationwide News Pty Ltd v Wills (1992) 177 eLR 1 al 72 per Deane and Toohey JJ; Australian Capital Television Pty Ltd v Commonwealth (1992) 177 eLR 106 al 137 per Mason ej.

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Wll..LIAMS & BRADSEN - THE CONSTITUTION AND THE RACE POWER

The cases which have considered the scope of s51(xxvi) have induded sorne references to the intentions that lay behind the text. In the judgments that have considered the question two views on the importance of 1967 have emerged. The first of these is found in Koowarta where Gibbs eJ, having referred to the "original form"166 ofthe section, merely mentioned the 1967 amendment to suggest that it achieved nothing more than an extension in the scope of the power. He then conduded that [i]t would be a mistake to suppose that s. 51(xxvi) was included in the eonstitution only for the purpose of enabling Parliament to make laws for the special protection of people of particular races. 161 Gibbs eJ cited as authority for this proposition Quick and Garran and the 1966 Sawer artide, both of which only refer to the framers' intentions for 551 (xxvi).168 It is thus curious that, for Gibbs eJ, intention is relevant, but only that of the framers in the 1890s. This approach, we would argue, is unsatisfactory, particularly when, as Deane J acknowledged (citing the same authority), "the architects of the eonstitution paid no attention al a1l lo the position of the Aboriginal people".169 The judgmenl of Gibbs eJ in Koowarta relegated the intentions of the people in 1967 to that of merely conferring legislative power. One would naturally presume that the people who inserted the power had sorne intention relevant to the way in which the power should be exercised and that that intention should prevail over the intention of people who, at an earlier time, expressed virtually none. Thus, we would argue, it is difficult to conclude, as Gibbs eJ does, that on the question of intention the section is open to both a positive and negative interpretation. The other judgments in Koowarta did not consider the question of intent but focused primarily upon the text or contemporary values in deterrnining the scope of the power. Both of these issues are dealt with below. The question of the intention behind the section was dealt with in greater detail in the Tasmanian Dam Case. 170 The most striking comments on the issue are found in the judgment of Murphy J. His Honour held that the section authorises "any law for the benefit, physical and menta!" 171 of the Aboriginal people. Further he said: To hold otherwise would be to make a mockery of the decision by the people [to amend s51 (xxvi) in 1967] which was manifestly done so that

166 167 168 169 170 171

Koowarta v Bjelke·Petersen (1982) 153 CLR 168 al 186. As aboye. Emphasis added. As aboye. (For lhese references, see aboye, fnl3 & 62.) Tasmanían Dam Case (1983) 158 CLR 1 at 272. (1983) 158 CLR 1. Al 180.

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Parliament could legislate for the maintenance, protection and advancement of the Aboriginal people. 172

In the sarne case Brennan J said "[n]o doubt par. (xxvi) in its original form was thought to authorise the making of laws discriminating adversely against particular racial groups".m The judgment, however, then affinned that the approval of the proposed law for the amendment of the proposed par. (xxvi) by deleting the words "other than the Aboriginal race" was an affirrnation of the will of the Australian people that the odious policies of oppression and neglect of Aboriginal people were to be at an end, and that the primary object of the power is beneficial. 174 His Honour subsequently referred to the operation of sSI(xxvi) in protecting sites of particular significance to the Aboriginal people, as consistent with "the high purpose which the Australian people intended when the people of the Aboriginal race were brought within the scope of its beneficial exercise" .175 Consistent with this "high purpose". Brennan J noted that Parliarnent's passing of the Racial Discrimination Act manifested the Parliament' s intention that the power will hereafter be used only for the purpose of discriminatorily conferring benefits upon the people of a race for whom it is deemed necessary to make speciallaws. 176 Justice Deane made it clear in his judgment that since the founders "paid no attention at all to the position of the Aboriginal people", 177 their intention is hardly compelling. In contrast: As it became increasingly clear that Australia, as a nation, must be dirninished until acceptable laws be enacted to mitigate the effects of past barbarismo the exclusion of the people of the Aboriginal race from the provisions of s. 5l(xxvi) carne to be seen as a fetter upon the legislative competence of the Cornmonwealth Parliament to pass necessary special laws for their benefit. The referendum [in 1967] was carried by an overwhelming majority of the voters in every State of the Commonwealth. The power conferred by s. 51(xxvi) remains a general power to pass laws discriminating against or benefiting the people of any race. Since 1967, 172 173 174 175 176 177

As aboye. At 242. Brennan J cites tbe accaunt af Quick and Garran to support trus conc1usion. As aboye. At 245-246. At 242. At 272.

132

WILLlAMS & BRADSEN - THE CONSllTUTION AND THE RACE POWER

that power has included a power to make laws benefiting the people of the Aboriginal race. 178 The elear indication in Justice Deane's view is that the intention ofthe Australian people in 1967 is highly significant. The only ambiguity in Deane l' s judgrnent is whether or not the outcome of the 1967 referendum was merely an addition to the scope of power (so that it could be used for the benefit or detriment of Aboriginal people) or an addition of an implied prohibition against its deleterious use. If the former is the case then it involves a reading of the intention of the people of 1967 which, we argue, is contrary to the relevant statements of the time. Moreover, it would appear to be inconsistent with the "past barbarism" which the 1967 amendment sought to "rnitigate". The language strongly suggests that the general underlying power which continued to operate after 1967 was modified in that year to inelude AboriginaI people, but only for their benefit. Given the absence of attention paid to Aboriginal people at Federation and the obvious significance of the 1967 referendum it seems absurd for Gibbs CI to assert that "[h]istory [apparently pre-1967 history] strongly supports the view that 'for' in par. (xxvi) means 'with reference to' rather lhan 'for the benefit or".179 The question of a guiding intention for s51(xxvi) received only passing reference in the Native Title Act Case with the judgment of Masan CI, Brennan, Deane, Toohey, Gaudron and McHugh lJ approaching the issue from a textualist standpoint.¡SO In detennining what is meant by the word "necessary" the judges concluded that it is for Parliament to decide. This is supported by reference to passages from the Constitutional Conventions of Sydney in 1891 and Melboume in 1898. 181 The only other reference to the framers' intention is by way of a quotation from the judgrnent of Deane l in the Tasmanian Dam Case where he said that the race power is "a general power to pass laws discrirninating against or benefiting the people of any race."182 Consideration of the fuH quotation reveals that this conclusion does not do his Honour' s opinion justice. As we saw aboye, the context of this statement by Deane l ineludes an account of the significance of the 1967 referendum. Moreover, the Court in the Native Title Act Case specifically left open the question of whether or not it retained sorne "supervisory jurisdiction" over parliarnent in the face of "a rnanifest abuse of the races power".183

178

179 180 181 182 183

Al 272-273. Jt shou1d be nOled al lhis point that the omission of the 1asl sentence from that passage in lhe Native Title Act Case (1995) 183 CLR 373 at 461 does an injustice lo its meaning when the sentence is seen in ilS fuller contexto Tasman;an Dam Case (1983) 158 CLR 1 al 110. Native Title Act Case (1995) 183 CLR 373 at 460-462. Al 460 fn321. Al 461 (quoting Tasma/l;an Dam Case (1983) 158 CLR 1 al 273). At 460.

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In conclusion it is clear from the cases that the issue of intent is a relevant consideration for sorne justices in detennining the scope of s51(xxvi) of the eonstitution. Though sorne refer to the frarners we argue that their views are not convincing and that the thrust of the judgments that give pre-eminence to the spirit and terrns of 1967 are to be preferred. It is the events of 1967 that clarify, or indeed introduce, a new overriding intention and one which sorne justiees have endorsed in concluding that the power is now to be used solely beneficially. Textualism and Section 51(xxvi)

As was noted aboye, a textual approach to s51(xxvi) would not, in the striet sen se, require any knowledge of the historie al background of the section. The meaning of the words of the eonstitution, as Barwick eJ stated, are to be found within the four comers of the eonstitution. 184 In evaluating the section within the textualist framework it is clear that conelusions are often reached without detailed argument. For instance, Stephen J suggested that the terrns of the section are ''unusual'' in that [t]he content of the laws whieh may be made under it are left very much at large; they may be benevolent or repressive; they may be directed to any aspect of human activity; so long as they are with respect to the people of a raee sueh as is described in par. (xxvi) they will be within power. 185 Stephen J based this eonclusion on a general reading of the power. So too Wilson J in Koowana noted, with a "toueh of irony", the fact that the Cornmonwealth had argued that the Racial Discrimination Act 1975 (Cth) eould be based on a power that allowed discriminatory laws ''for good or ill, for the people of any race." 186 The section, however, does contain a number of key words and phrases that determine the scope or limit of the power. In assessing the case law we have limited ourselves to discussion of whether or not any of the wards of the seetion impart a limitatian as to benefit ar not. Any textual analysis embodies a eertain inherent dissatisfaction, whieh is magnified in the case of this section due to the fact that the judgments have often examined and grouped the terms used in different ways. Nevertheless sorne themes do emerge. Hfor"

The word "for" is considered directly in just three judgments. The first of these is found in Koowana where Murphy J adapted an uncharacteristically textual approach. His Honour said:

184 185 186

Attomey-General (Cth); ex re! McKinÚJY v Commonwea!th (1975) 135 CLR 1 at 17. Koowarta (1982) 153 CLR 168 at 209. At244.

WILLIAMS & BRADSEN - THE CONSTITUTION AND THE RACE POWER

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In par. (xxvi) "for" mean s "for the benefit of'. lt does not mean "with respect to", so as to enable laws intended to affect adversely the people of any race. If with respect to or sorne similar express ion were intended, it would have been used, as it is in other parts of s. 51 (see the opening words and pars. (xxxi) and (xxxvi».187

In striking contrast Gibbs el in the Tasmanian Dam Case, whose use of history suggests, io truth, a textual approach, said that: "History strongly supports the view that 'for' in par. (xxvi) means 'with reference to' rather than 'for the benefit of ."188 The other judgment in which the word was expressly considered is Ihat of Gaudron 1 in Chu Kheng Lim. 189 Quoting the above statement of Stephen 1 in Koowarta as to the "benevolent or repressive" nature of the section. Gaudron 1 responded by saying that: There is. however, no decision of this court that compels the conclusion that a law which operates on or by reference to ... people of a race for whom it is deemed necessary to malee special laws is, on that accouot, a valid law with respect to ... the people of that race. 190 Her Honour then added: In Koowarta v Bjelke-Petersen, Murphy J expressed the view - which in my opinion has much to commend it - that S. 51(xxvi) only authorises law for the benefit of the race concemed, because, in context, "for" means "for the benefit of' and not "with respect to".191 Gaudron 1 also cited Brennan l' s judgment in the Tasmanian Dam Case as supporting this position.1 92 The term "for" was not referred to in the Native Title Act Case. While there has been limited consideration of the word. the opinion tends towards the view that the meaning of the word "for" is to be construed as "for the benefit of'. "special" The attitude of sorne members of the Court to the question of whether or not the section is limited to laws that bestow a "benefit" can al so be discemed in their discussion of the word "special". In Koowarta Stephen 1 said that for a law to be one with respect to s51(xxvi) it "must be because of their special needs or because of the special threat or problem which 187 188

A1242. Tasmanian Dam Case (1983) 158 CLR 1 al 110.

189

ehu Kheng Lim v Minister for lmmigration. Local Govemment and Ethnic Affairs (1992)

190 191 192

176 CLR 1 al 55. A155. Al 56. As above. referring 10 Tasmanian Dam Case (1983) 158 CLR 1 al 242.

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they [the race] present that the necessily for lhe law arises".193 Later in Tasmanian Dam Mason J slaled his view as to the scope of "speciallaws" within the section. They are: lo enable the Parliarnenl (a) to regulate and control the people of any race in the event thal they constitute a threat of or problem to the general cornrnunity, and (b) to protect the people of any race in the event that there is a need to protect them. 194 Wilson J was of the view Ihat "a law within S. 51 (xxvi) must of its very nature be discriminatory. It must be a special law for the reason that it addresses a problem that is peculiar to the people of a particular mce."195

In the Native Title Act Case the joint judgment cited the aboye passages and concluded that "special" qualifies "law" and that a "special quality appears when the law confers a right or benefit or imposes an obligation or disadvantage especially on the people of particular race." 196 The conclusion to be drawn from the aboye discussion of "speciallaws" is that the power is open to deal with "threats", "problems" or "needs" and is at best neutral. The response to those situations may be beneficial or detrimental to the particular race for whom it is deemed necessary to make these laws. While it is possible lo reach this conclusion, it is difficult to sustain it in the face of the fact that three members of the joint judgment (Brennan, Gaudron and Deane JJ) have indicated a preference for the view that the section is now limited to the benefit of Aboriginals. What are we to make of the textualist analysis of the section? There are a number of unsatisfactory aspects to this approach to the section. To say that the word "for" means "with respect to" or "for the benefit or' highlights the problem of the textualist approach. Often, as in this case, words do not have any obvious meaning outside their contexto In determining the context of this word there is an inevitable movement towards either an historical inquiry or a "living force" analysis. In other words, the textualist approach with regard to s51(xxvi) begs the question rather than answers it. Thus, we would argue that textualism is not a satisfactory vehicle by which the meaning of the section may be determined. ''Living Force" and Sedion 51(xxvi) The last part of this section wiU deal with lhe so-called "living force" approach to the interpretation of s51 (xxvi). As was noted abo ve, this approach sees the Constitution as an 193 194 195 196

Koowana (1982) 153 CLR 168 at 210. Tasmanian Dam Case (1983) 158 CLR 1 al 158. Al 203. Native Tille Act Case (1995) 183 CLR 373 al 460-461.

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WILLIAMS & BRADSEN - THE CONSTITUTION ANO THE RACE POWER

evolving instrument that changes to meel Ihe "social conditions and the political exigencies" of contemporary Australia. 197 It is not the "dead hand" of the past but the current holders of the Constitution that malee it a "living force". Thus its meaning and operation should continue to be informed by contemporary values. In Cheatle it was described as "absurd" to suggest that the requirements of "tri al by jury" in s80 would now be met if women were excluded from them. 198 We would argue that it would be similarly "absurd" to interpret the Constitution so as to permit discrimination based on race. Contemporary values have moved since 1901, an evolution that was as much achieved as it was endorsed by the people of 1967. Part of the "living force"/contemporary values approach requires an assessment of the distance that we as a nation have travelled since Federation. Thus, implicit in the view that women and the unpropertied could no longer be excluded from acting as jurors is a view on gender relations and citizenship in contemporary Australia. Likewise our understanding of "democracy" has come to encompass (at least) universal adult franchise.

On the question of race, as was mentioned aboye by Justice Brennan in Mabo (No 2), "the common law should neither be nor be seen to be frozen in an age of racial discrimination".199 Contemporary values on racial issues have moved on, notjust since 1901 but al so since 1967. It needs to be remembered that in 1971 Milirrpum' s Case 200 held Australia to be terra nullíus notwithstanding the finding by Blackbum J that "if ever a system could be caBed 'a govemment of laws, and not of men', it is that shown in the evidence befare me".201 In effect Mabo held that Milirrpum in 1971 was decided in what was still an age of racial discrimination. A similar progression may be seen in many of the judgments relating to 551 (xxvi). For instance in Koowarta, particu]ar]y in the context of Australia's intemationa] reputation,202 Justice Wilson noted that the existence of racial barriers is repugnant to the ideal s of any human society. In substance the preamble testifies to the view that it is essential to the peace and well-being of the intemationa] community that the laws of a community apply to all members of that comrnunity regardless of mee. It recognises that there is a generality that is basic to good laws. It is

197 198

199 200 201 202

Inglis Clarlc, Studies in Australian Constitutional Law p20. See above pI03. Mabo v Queensland (No 2) (1992) 175 CLR 1 at 41-42. Milirrpum v Naba/co Pry Ltd (1971) 17 FLR 14l. At267. In this case the imp1ementation of the Intemational Convention on the Elimination

Fonns 01 Racial Discrimination.

01 AlI

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in order to give effeet within Australia to the Convention that the Parliament has enaeted the Act. 203 A significant element in the determination of contemporary values is captured in an acknowledgment of the past injustices visited upon the Aboriginal community. For instance, Justiee Murphy in an appendix to his judgment highlighted works that "starkly outline the discrimination suffered by Australian Aborigines".204 Other justices likewise implieitly acknowledge the discrimination that Aborigines ha ve suffered, and the relevanee of contemporary vaIues, in their discussion of what constitutes "special laws". An example is Stephen 1's reference to the "speciaI needs" or "special threat or problem" which a particular race presents. 20S The special needs of the Aboriginal people are to overcome the consequences of 200 years of sustained racial discrimination. The only threat or problem they pose, as a raee, is to Australia's international reputation if these needs are not met. Implicit in this statement is an acknowledgment that speciallaws for a race (be it because of the special needs of, or a special threat or problem presented by, Aboriginal people) cannot be understood as unchanging through time. Their needs may have sorne "fixed" or "objective" elements but in good rneasure they will inescapably be what people appreciate as being their needs as they develop over time. The aboye anaIysis of the possible rneanings of s51(xxvi) is by no rneans conc1usive. As was indicated by the joint judgment in the Native Title Aet Case, the question has nol been considered by the Court. We have argued, however, that under each of lhe three interpretative models it appears that there is a strong indication that the power can be used solely for the "benefit" of Aboriginal people. From an original intent perspective the only question appears to be which inlent is conc1usive of the issue. For those juslices who highlight the 1967 referendurn (such as Murphy, Deane and Brennan JJ) that intent modified nOl only the actual words of the section but provided a guiding prohibition against detrimental legislation. For Gibbs Cl the intention of the framers appears lo be the principal intent. Yet, as we have demonstrated, the framers' views on the section's operation as to Aborigines were nonexistent. In reconstructing their intention from other material the eonc1usion to be drawn is that, seeing the Aboriginal people as a "dying race", the frarners did nol see Ihe need lo enter them into the constitutional comrnunity. Within the lextualist model the question of historical intent is less relevant. Among the justices who have addressed the question of the meaning of the section opinion is divided. 203 204 205

Koowana (1982) 153 CLR 168 al 244. See a1so al 260 per Brennan J. Al 242. Al 210.

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Justices Murphy and Gaudron note that the word "for" is to be construed to mean "for the benefit or' Aboriginal people. Alternatively Gibbs CJ, Stephen J and possibly Wilson J appear to believe that Ihe power is open to both benevolent and detrimental use. There is sorne indication also that the word "special" suggests that the power is available lo deal with the "threat" or "problem" or "needs" of a particular race. This could suggest that the power is not limited solely to benefit. However, as we have noted, this conclusion does not take into account those views of three justices (Brennan, Gaudron and Deane JJ) who have indicated a preference for benefit. As was noted, however, the textualist model is unsatisfactory in that it highlights that the meaning of this section is not obvious or conclusive. Thus, it was argued, further inquiry beyond the text would be required to determine the meaning of the section. The last model by which we assessed the power was the "living force" or contemporary perspective. There is Iiule direct consideration of the power from within this model, though the analogous treatment of s80 and the concept of representative or democratic government suggest that just as it is now "absurd" to conceive of a system of jury tri al that excludes women, so too it would be "absurd" to believe a power within the Constitution allows racial discrimination. This conclusion we believe is supported by the progressive or contemporary values thal the "living force" approach incorporates. There rernains one last consideration in the argument that s51(xxvi) can now only be used solely for the "benefit" of (at least) Aboriginal people. That is the apprehension which the High Court has shown in considering the merits or otherwise of legislative decisions. The notion that the use of the power contained in s51 (xxvi) is a malter of political rather than juridical consideration is clearly an important one. However, as Lindell rightly points out, "the mere fact that a malter may be characterised as political, using the term 'political' in its widest sense, is not sufficient to render the malter non-justiciable and beyond the scope of judicial review."206 As Dixon J noted in the State Banking case: The Constitution is a political instrumento It deals with government and governrnental power. The statement is, therefore, easy to make though it has a specious plausibility. But it is really meaningless. It is not a question whether the considerations are political, for nearly every consideration arising from the Constitution can be so described, bUI whether they are compelling.207 Notwithstanding the fact thal every consideration might be described as "political" there rernains an over-arching con cero regarding the proper exercise of the Cornmonwealth' s legislalive power. As Brennan J said in Re Limbo, "it would be a rnistake for one branch 206

Lindell, UThe Justiciability of Political Questions: Recent Developments" in Lee & Winterton (eds), Australjan Constjtutional Perspectives (Law Book Co, North Ryde 1992)

207

Melboume Corporation v Commonwealth (1947) 74 CLR 31 at 82.

piSO.

(1997) 19 Adel LR95-142

139

of government to assume the functions of another in the hope that thereby what is percei ved to be an injustice can be corrected.''208 The separation of powers is essential not only to the maintenance oC government, but also for the protection of rights. Thus, while the judiciary cannot assume the function of another branch. it must determine the critical question of the existence and scope of the power upon which the legislature proceeds to exercise its political assessment. 209 If, as we have argued, the power is limited solely to make laws for the benefit of AboriginaI people then the High eourt will (as with any other power) be required to make a determination as to the characterisation of the proposed law. The key issue in such a determination is that the concept of "beneCit", which was introduced by the referendum of 1967, is by way of an implied prohibition on the otherwise unfettered operation of the section. While they represent prohibitions rather than a grant of power, it is possible to make an analogous argument with respect to ss92 and 117 and the implied prohibition in s51(xxvi) of the eonstitution. The High Court has developed purposive tests against which the operation of the guarantee or limitation in ss92 and 117 may be assessed. Thus in CastlefTUline Tooheys Ltd v Sourh Australia the test was whether or not the law was "appropriate and adapted" to the Parliarnent' s legitimate objective. 2lO Such a balancing process is one means, we would argue, for deterrnining whether or not the legislative objective is "disproportionate" to the guarantee of "benefit" implied within s51(xxvi).2II Clearly, this method incorporates a "margin of appreciation" for the objectives of the legislature at the same time as upholding the prohibition within the power. 212

208 209 210

211

212

Re Limbo (1989) 92 ALR 81 al 82. See Australian Communist parry v Commonwealth (1951) 83 CLR l. CastLemaine Tooheys Ltd 11 South Australia (1990) 169 CLR 436 al 473 per Mason eJ, Brennan, Deane, Dawson and Toohey n. Gaudron and McHugh n approached lhe issue by reference 10 the discrimination involved in the scheme (al 473-480). Similar statements were made in Street v Queensland Bar Association (1989) 168 CLR 461 al 511 per Brennan J and al 573-4 per Gaudron J. It should be acknowledged lhal in Leask 11 Commonwealth (1996) 140 ALR 1 sorne members of the Court nOled that. for the purposes of characterisation, proportionality is limited to purposive powers and when the law falls foul of a constitutionallimitation: at 7 and 9 per Brennan CJ. at 15 and 18 per Dawson J and al 33 per Gummow J. The issue of the legislative Acts (such as the Natille Title Act 1993 (Clh» having both beneficial and negative elements 10 them is taken up by Blackshield where he assesses the Acl wilhin lhe "equalily doctrine" developed by members of the Court in Leerh 11 Commonwealth (1992) 174 CLR 455: Blackshield, "The Implied Freedom of Communication" in LindeIl (ed). Furúre Direcrions in Ausrralian Constirurional Law pp245-251. The doctrine of "legal equalily", as developed by Deane and Toohey JI in Leeth. was considered by members of the Court in Kruger 11 Commonwealth (1997) 146 ALR 126. In lhal case members of the Court were critical of lhe doctrine (al 155-159 per Dawson J. at 226-228 per Gummow J, and al 195 per Gaudron J). It muSl now be conceded thal a "legal equalily" argumenl with respect to s51 (){Xvi) is unlikely lO succeed. Australian Capital Television v Commonwealth (1992) 177 CLR 106 al 159 per Brennan J.

140

WILLIAMS & BRADSEN - THE CONSTITImON AND THE RACE POWER

CONCLUSION In 1978 He ("Nugget") Coombs wrote that

[t]here is liule io the hislory of the decade since the referendum about which white Australians can feel complacent, but the way ahead is c1earer and the ferment of ideas necessary to opeo that way has begun. 213 Fourteen years later the High Court contributed to the task of finding the "way ahead" with its landmark decision in Mabo (No 2)214 and still Jater in Wik Peoples v Queensland. 21S How we respond lo the challenges that these decisions have presented will determine whether or not as a nation we move ahead or retum to an age of division. The status of being an outsider, in the constitutional sense, ror Aboriginal Australians was overcome in 1967. It would be a perversion of the hopes and aspirations of the people of Australia if thirty years later we celebrated their contribution to our constitutional history by suggesting that s51(xxvi) is a means by which yet another round of dispossession may be visited upon Australia's indigenous people.

213

214 215

Coombs, Shame on US! Essays on a Future Australia (Centre tor Resource and Environmental Sludies, ANU, Canberra 1996) piii. Mabo v Queensland (No 2) (1992) 175 CLR 1. (1996) 187 CLR 1.

(1997) 19 Adel LR 95-142

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APPENDIXA Section Sl(xxvi) Sydney 1891 Chapter 1 clause 53. The Parliamenl shall, also, subjecl to the provisions oC this Constitution, have exclusive power to rnake laws Cor the peace, order, and good governrnent oC the Cornrnonwealth with respect to the CoIlowing rnatters:l. The affairs of any race with respect to whorn it is deerned necessary to rnake laws not applicable to the general cornrnunity; but so that this power shaIl not extend to authorise legislation with respect to the affairs of the aboriginal native race in Australia and the Maori race in New Zealand. Adelaide 1897 Chapter 1 c1ause 53. The Parliament shall, subject to lhe provisions of this Constitution. have exclusive powers 10 rnake laws for the peace. order, and good governrnent oC the Cornrnonwealth with respect to the foIlowing rnatters:l. The affairs of the people of any race with respecl to whorn it is deerned necessary lo rnake speciallaws not applicable to the general cornrnunity; but so that this power shall not extend to authorise legislation wilh respect to tbe affairs of the aboriginal nalive race in any Stale. Sydney 1897 Not considered Melboume 1899 As in Constitution

142

Wll..LIAMS & BRADSEN - THE CONSTITUTION AND THE RACE POWER

APPENDIXB Section 127 Sydney 1891

Chapter VII clause 3. In reckoning the numbers of the people of a State or other part of the Commonwealth aboriginal natives of Australia shall not be counted. Adelaide 1897

Chapter VII clause 120. In reckoning the numbers of the people of a State or other part of the Cornmonwealth aboriginal natives shall not be counted. Sydney 1897

Not considered Melboume /899

As in Constitution

BOOK REVIEWS Nicola lAceyO

DELIMITING THE LA W: "POSTMODERNISM" AND THE POLITIeS OF LA W By Margaret Davies Pluto Press, London 1996 184pp ISBN SC O 7453 0769 8 ISBN HC O 7453 1100 8

nyone who has read Margaret Davies' excellent Asking the lAw Question' will be familiar with her very particular gifts as a legal theorist. Davies has something approaching a genius for recasting complex, abstract ideas so as to simplify and render them accessible to a wide audiencc. Even more admirably, she generally manages to do so without reducing the object of her analysis to a crude or simplistic caricature of its original formo Furthermore, Davies, like her compatriot Valerie Kerruish, is unusual among "critica!" legal theorists in engaging seriously and in sorne detail with the "onhodox" theorists whose work forms the target of her critique. These gifts are vividly displayed in Delimiting rhe lAw, which addresses sorne of lhe musí difficult ideas in conternporary legal theory and, in panicular, explores the implications of Derridean deconstruction and postmodem tbeory for both our understanding of law and the project of legal philosophy. Along the way, we are treated to brilliantly condensed accounts of sorne of the key ideas of thinkers as diverse as Finnis and Fitzpatrick; Derrida

A

•

Departrncnt of Law, Birkbeck Collcgc, University of London . Davies, Asking the Law Question (Law Book Ca, Sydney 1994).

144

LACEY - DELIMITING THE LA W

and Dworkin; Butler and Raz; Irigaray and Kelsen - accounts which often pack more into a stylish paragraph than their original exponents expressed in a lengthy chapter. In Delimiting the Law, Davies offers, from a deconstructionist perspective, an astule critique of the contours and self-conception of traditional legal philosophy. She also provides a positive conceptualisation of law drawn from her critique and, though more schernatically, sorne insights as lo how legal theory might move yet further in a progressive or transformative direction. Delimiting the Law can therefore fairly claim to be both a useful exposition and elaboration of a Derridean approach to law and an original contribution to legal theory. As its title suggests, the central problemalic around which Delimiting the Law is constructed is that oC the paradox of the limits of law. Davies shows how traditionallegal theories are haunted by the logical conundrum set up by law's inevitable origins in the extra-legal: specifically, in Corce. Though the problem also afCects sociologists of law (who receive liule attention) and, in a different way, naturallawyers, Davies' main target is the positivist tradition. She regards the circularity inherent in Austin' s account of sovereignty, echoed in Hart's "rule of recognition" and Kelsen's Grundnorm, as the most vivid articulation of a problem which cannot be acknowledged without destroying both the image of law's authority and the foundations of modem legal philosophy. In particular, Davies emphasises the way in which the undecidability of law's limits echoes through the system al every level: each judicial decision both assumes and disproves the limited nature, or closure, of law, thus undermining, as it utters, the authoritative nature of legal decisionmaking. Thus, in a wonderfully bold gesture, she paints Kelsen not only as implicilly recognising this predicament in his late reconceptualisation of the Grundnorm as fiction rather than postulate, but al so as prefiguring a constructionist notion oC "law as performance" in his dynamic theory of norms. This idea of law as performance, which draws on the work of Judith Butler, is the key to Davies' aspiration to develop a "material" theory of law - a theory which emphasises the centrality of repetition or iteration to law. Law is materialised in Ihe repetitions of its officials and other actors in legal fora. Equally, legal subjects are effects of legal iterations: law has a constructive role in which subjects are both subject to and subjects of the legal order. This exploration of law as an iterative practice is one in which the modem conception of the pre-legal subject - the "subject before the law" - evaporates, and not only is the pasl implicated in the present, but the future may also be glimpsed. So while she is generally persuaded oC the strong distinction between law, whose mystical foundations lie in the concealed violence of a past which is replayed in every decision, and justice, which is particular and unrepresentable and hence always in the future, Davies is al so concemed to recognise, if nol thoroughly lo explore, the limits, as it were, of deconstruction. Law,on a deconstructionist view, is a Iimit which invites transgression: but can thal transgression escape the binary logic which marks even deconstruction itself? Her argument, which draws on the work of feminist writers such as Irigaray, is that deconstruction remains

(1997) 19 Adel LR 143-147

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preoccupied with the law: whilst it opens up our vision of the repressed underside of law on which the alchemy of legal authority and closure depends - the "other of the same" - it fails to, or perhaps cannot, move beyond that analysis to imagine a different law in which, to paraphrase Seyla Benhabib, "the differend might appear in its midst". Though deconstruction gives us a glimpse of Plato's cavem - the "other of the other" - its logic precludes any hope of realising or even approaching that "other" in terms of reconstructed legal practices. Even Irigaray, in her work on special rights, reinstates a binarism (that of sexual difference) which Davies is keen to question. The fundamentally political, and significantly feminist, motivation of Davies' critique makes her uncornfortable with such a limit to critique. and whilst this is the most underdeveloped part of her book, the reader sen ses that a utopian horizon is central to her imaginative project. In attempting an assessment of the book' s contribution. it is worth reflecting briefly on its structure. The book falls into two parts. The first develops a critique of "orthodox" legal theory - naturallaw and positivism - from a deconstructionist point of view. Davies' task here is to show how the method and self-conception of legal philosophy itself has served to obfuscate the poli tic s of law and law's implication in prevailing power relations. As she recognises, her project in this part of the book has much in cornrnon with that of "critical legal theory". The distinctive features of her particular approach are the meticulousness with which she approaches "orthodox" theories and the breadth of her conception of law and legal actors, which stretches well beyond the familiar terrain of cases and legislation, judges and legislators to encompass a wide spectrum of norms. In the second part, however, Davies aspires to move beyond a critical approach which nonetheless leaves "Iaw" in place as a relatively unproblernatic category understood as social or political institution, and to follow through the logic of the deconstructive arguments (used somewhat unevenly and pragmatically by sorne criticallegal theorists) so as to generate a more thorough "postmodem" vision of law. The two parts of the book are bridged by an "interlude" which sets up the legal decision as the salient figure around which her own analysis will be framed. Curiously, this is almost exclusive1y understood as the judicial decision and, somewhat ironically, it presages a retreat into a rather more conventional and limited vision of the legal terrain in the second part of the book. The bipartite division of DeLimiting the lAw serves Davies' purposes well in many respects. However, both the dominance of Derridean and postmodemist critical arguments in the first part (Davies draws on writers inspired by continental philosophy. such as Douzinas and Goodrich, rather than on the American school of critical legal studies) and the salience of positivist adversaries in the second, mean that the division is, perhaps appropriately to the project, far from watertight. One slightly unfortunate - again, ironic - implication is a significant degree of repetition in what is a re1atively short book. Davies' project is frrst and foremost a contribution to legal philosophy. This entails, as she implicitly notes at various points in the text, its own set of paradoxes. Philosophy, like law, is a tradition; it is a tradition whose history is selectively represented and whose contingency is necessarily repressed within its system of meaning and validation. The

LACEY - DELIMITING THE LAW

146

pretension of deconstruction to be, as it were, a post-philosophical philosophy is an intriguing one which might usefully have attracted more critical attention in Davies' text. In particular, it is perhaps significant that the relatively broad conception of the legal which Davies affirms early in the book gradually falls fram view as her increasingly radical argument focuses on an increasingly traditional tenain: that of judicial decisions, generally considered in the abstract. We are left, as so often in legal theory, wondering about the links between philosophical critique and the more overtly polítical interpretive projects spawned, for example, by feminist legal analysis. Though Davies' examples spanning this gulf, such as the recurring example of the legal construction of women who kilI violent partners, are effective, they are few and far between. The question may therefore be raised as to why, as a complement to her sure-footedness in handling abstract philosophical arguments, Davies did not also explore sorne more sustained examples.

In this respect, it is interesting to compare Davies' work with that of Drucilla Comel!. As Davies recognises, Comell has done more than any other feminist legal theorist both to elaborate the implications of Derridean thought for legal philosophy and to emphasise the "utopian moment" in Derridean deconstruction. This moment, which underpins the possibility of what Comell calls "ethical feminism", consists in the irreducible reference to what has been repressed, and hence a glimpse of the "other", in alllegal analysis. This is presumably what Davies would call "the other of the same", and is therefore precisely what she wants to build upon yet go beyond. In assessing the possibility of a more radically utopian approach to law and legal theory, it is instructive to think about Comell's latest book The lmaginary Domain 2 which had presumably not appeared when Delimiting the ww went to press. In this book, Comell holds lo her vision of the utopian possibilities of deconstruction. What is distinctive about The lmaginary Domaín is that analysis of legal constructions of particular practices (abortion, harassment and pomography) have a more central place than in any of her previous work. It is fascinating to see that, as her analysis has become more rooled in concrete issues, her principal theoretical resources are no longer those of deconstruction but those of liberal political philosophy: a philosophy in which law's cIosure is, by definition, assumed rather than questioned. Rawls and Nagel displace Derrida (who is refened to only once) and at least demote Lacan from their status as symbols of philosophical authority in, for example, Beyond Accommodation.3 It is as if the move from philosophical (de)construction to critical analysis of existing legal discourses gets drawn into the legitimating metaphysics of madem law and legal theory. Is this displacement the (negative) answer to Davies' question about the possibility of a more radically utopian legal philosopby, and indeed tbe explanation of her own failure to develop the project to which she affirmatively gestures? Answers, on a Derridean postcard, may presumably he expected not to arrive. Happily, the principal messages of

2

Comell, The lmaginary Domain: Aborrion. Pomography and Sexual Hamssment

3

Camell, Beyond Accommodarion: Erhical Feminism. Deconsrrucrion. and rhe Law

(Routledge, New York 1995). (Routledge, New York 1991).

(1997) 19 Adel LR 143-147

147

Davies' book, eloquently articulated and well directed as they are, are certain not to share the same fate.

The Honourable Justice Gummow AC"

RESULTING TRUSTS By Robert Chambers Clarendon Press, Oxford 1997 xxx, 260 pp ISBN HC O 19 876444 8

e law as to resuIting trusts ought by now largely lO be senled. But sorne issues continue to excite differences of opinion. The presumptions of advancernent still give rise to debate. If a mother takes title in the name of her child, is a resulting trusl rather than a gift to be presumed?1 Does any presumption of advancernent by a parent, mother or falher, in favour of a child continue to represent common experience?2

T

Again, doubts are still expressed 3 as 10 whether a resulting trust arises on a voluntary conveyance of land. 4 However, the history of the maner is described in Scott on Trusts and the concIusion reached: It seems to be clear law today that where the owner of property transfers it without declaring any trust, the transferee does not hold the property upon a resulting trust for the transferor merely because the transfer is gratuitous. s The aulhor of the work under review deals Wilh lhe first of the above issues by concluding that "equal treatrnent" of both parenls will "beco me lhe order of the day", bul that it should be considered whether the presumption of advancement ought lo apply lo su eh suspicious dealings as substanlial gifts from elderly parents 10 children upon whom they depend. 6 He deals with the second issue somewhat inconclusively.7 In chapter 3 there is also the

• 1 2

3 4 5

6 7

BA, LLM (Syd), Hon LLD (Syd); Justice of the High Coun of Australia. See Brown v Brown (1993) 31 NSWLR 582 al 591. Nelson v Nelson (1995) 184 CLR 538 al 600-603. See Newcastle City Council v Kem Land Pty LId (Unreported, NSW Supreme Court, Windeyer J, 11 June 1997). The Torrens System may give rise to special considerations: DKLR Holding Co (No 2) Pty LId v Commissionerof Stamp Duties (NSW)(1982) 149 CLR 431 al 460. Seott & Fratcher, The Law ofTruses Vol V (Little, Brown & Co, Boston, 4th ed 1989) pIS. Chambers, Resulting Trusts (Clarendon Press, Oxford 1997) p29. Al ppI4-19.

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GUMMOW - RESULTING TRUSTS

suggestion that the Quistclose trust is a resulting trust or "at least need not be an express trust".8 The author takes to task Lord Browne-Wilkinson for his analysis in Westdeutsehe Bank v Is/ington LB(;9 that aH species of resulting trust (including those where an express trust does not exhaust the whole of the beneficial interest) give effect to the presumed intentions of the settlor. His Lordship did not accept Megarry J's view expressed in In re Vandervell's Trusts (No 2) that in cases where the whole of the beneficial interest has not been exhausted "the resulting trust takes effect by operation of law, and so appears to be automatic" .10 Perhaps most of what can be said of those cases where an express trust makes no provision as to what is to happen to the property bound by the trust if the trust fails completely or there is a surplus is found in the following passage in Seott on Trusts: The inference is that the trustee is not to keep the property. and since no other disposition is made of it the property or the surplus should be retumed to the settlor. The inference is. not that the settlor actuaHy intended that the property or surplus should be retumed to him, for there is no evidence that he contemplated the possible failure of the express trust or the possible existence of a surplus, bul that he did not inlend in any event that the lrustee should ha ve a beneficial interest. Since the trustee was not intended to keep the propertY or the surplus, and since no other disposition has been made in the event that has happened, the court will compel the trustee to retum the property or the surplus to the person who created the trust. It cannot be said that the settlor actually intended this result, since there is nothing to indicate that he had any intention with respect to the matter. At most it can be said that il is what he probably would have intended if Ihe question had occurred to his mind. 11 In Perpetual Trustee Co Ltd v Commissioner 01 Stamp Duties (NSW),12 Starke J said of a beneficial interest not fully disposed of by a settlement of propertY that the interest which would result to the settlor, in the event of failure of the limitations made in the settlement, had not been comprised in the gift and was nol reserved under the gift itself to the settlor. 13

8 9 10 11 12 13

At p83. Westdeutsche Landesbank Girozentrale v lslington Londcn Borough Council [1996] AC 669 at 708. [1914] Ch 269 at 289. Seon & Frateher, The Law 01 Trusts p1. Emphasis added. (1941) 64 CLR 492; affirmed by Commissioner lor Stamp Duties (NSW) v Perpetual Trustee Co Ltd [1943] AC 425. (1941) 64 CLR 492 at 507. See also al 503 per Rieh ACJ, at 511 per Dixon J, at 513 per McTiernan 1.

(1997) 19 Adel LR 149-151

151

The decision of the House of Lords in Westdeutsche 14 was given two weeks after the author had delivered his manuscript to the publisher. The text was then revised for publication. His interest in the subject, and a significant theme of the book, had been stimulated by the paper by Professor Birks, "Restitution and Resulting Trusts".15 The thesis is Ihat a resulting trust should arise wherever money has been paid under a mistake, which vitiates the actual intention of the payer, or when money is paid upon a condition which is not subsequently satisfied. The present author urges the recognition of unjust enrichment as "the generic event" to which what once was called the implied contract and the resulting trust each respond. 16 One difficulty is that the thesis, as it effects resulting trusts, has been rejected by the House of Lords in Westdeutsche I7 Whether the same result would follow in Australia is an inappropriate speculation here. However, the following points may be made. No doubt it may be said that, in circumstances discussed aboye, it would be unconscientious for the trustee to assert a beneficial as well as legal titIe. In a sen se, then, a consequence of the resulting trust is the prevention of the enrichment of the trustee to the prejudice of the settlor. However, that does not necessarily mean Ihat it is Ihe prevention of unjust enrichment which founds the institution of the resulting trust. Again, it may be said that an account of profits serves to prevent the enrichment of the defendant, but the liability of a fiduciary to account is not detennined by any concept of unjust enrichment at the expense of the person to whom the fiduciary duty is owed. In Warman lnternational LId v Dwyer,18 the High Court recently affirmed this position. The number of short works on various aspects of equity is on the inerease, and the trend is to be welcomed. This addition to the field is a stimulating illustration of what Lord Goff of Chieveley has identified as the malter of great difficulty in fixing the role of equitable proprietary c1aims in a coherent law of restitution, 19 or, as others might prefer it, in fixing a place for normative principies of restitution in the well-developed scheme of equitable institutions, doctrines and remedies.

14 IS 16 17 18 19

[1996) AC 669. Birks, "Restitution and Resulting Trusts" in Goldslein (ed), Equity and Contemporary Legal Developments (Sacher Institute for Legislative Research and Comparative Law, Hebrew University of lerusalem,lerusalem 1992) p33S. Chambers, Resulting Trusts p223. [1996) AC 669 at 689-690 per Lord Goff of Chieveley. at 708-709 per Lord BrowneWilkinson. (1995) 182 CLR 544 at 557-5S8. Westdeutsche (1996) AC 669 al 685.

LIST OF BOOKS RECElVED

Bradbrook & Croft, Commercial Tenancy Law in Australia (Butterworths, Sydney, 2nd ed 1997) (ISBN O 409 30786 6). Butterwonhs Course Materials Law anO. Ethics (Butterworths, Sydney 1996) (ISBN O 409 31364 5). Chambers, Resulting Trusts (Clarendon Press, Oxford 1997) (ISBN O 19 876444 8).

Gamsey & Smith (eds), New South Wales Barristers Directory /997/98 (Butterworths, Sydney 1997) (ISBN 0409 313858). Heydon & Loughlan, Cases and Materials on Equity and Trusts (Butterworths, Sydney, 5th ed 1997) (ISBN O 409 31181 2). McKeogh & Stewart, /ntelleetual Property in Australia (Butterworths, Sydney 2nd ed 1997) (ISBN O 409 30677 O). Mullany (ed), Torts in the Nineties (LBC Information Services, Sydney 1997) (ISBN O 455 214379). Seddon & ElIinghaus, Law 01 Contraer (Butterworths, Sydney, 7th ed 1997) (ISBN O 409 30976 1).

Steinwall & Layton, Annotated Trade Practiees Aet 1974 (Butterworths, Sydney 1997) (ISBN O 409 313203).

LIST OF BOOKS RECEIVED

154

Young, The Advocate's Notebook (Prospect Publishing, Sydney 1997) (ISBN 1 863 16 111 2).

ARTICLES Michael Chesterman *

PRIVILEGES AND FREEDOMS FOR DEFAMATORY POLITICAL SPEECH

INTRODUCTION

he joint judgment of a1l seven Justices of the High Court in Lange v Australian Broadcasting Corporation, J handed down on 8 July 1997, made the interaction between defamation law and the implied constitutional freedom of political communication 2 a good deal clearer. Uncertainties on this issue had seemed highly likely in the wake of the Court's path-breaking ruling in the 1992 cases of Nationwide News Pty Ltd v Wil/s 3 and Australian Capital Television Pty LId v Commonwealth (No 2)4 that a freedom of poütical communication was implicit within the Commonwealth Constilution. This ruling seemed inevitably lO require judicial

T

*

I

2 3 4

BA (Hons), LLB (Hons) (Syd), LLM (London); Professor of Law, Universíty of New South Wales. This anicle is 10 be reproduced, in revised form, in a forthcoming colleClion of essays on Ihe prorection of freedom of expression in Australia, 10 be published by Ashgate Publishing. 1 owe thanks for valuable commenlS on draft versions lo Mark Aronson, Eric Barendl, Anne Aahvin, Robert Post and Adrienne Slone. 1 am grateful a150 to Harley Wright for conducting very useful research and lo the Law Foundation of NSW for funding this research. (1997) 145 ALR 96; 71 ALJR 818. The Lange judgmenl adopts the term "politica! communication". In the earlier High Court cases, shortly lo be mentioned, the terms "politica! discourse" (in Ihe 1992 cases) and "poliúca! discussion" (in the 1994 cases) were more commonly used. (1992) 177 CLR 1. (1992) 177 CLR 106.

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reconsideration of the many principIes of cornmon law and statute law, including those of defamation law, which inhibit the freedom of citizens to discuss polítical matters. The uncertainties reached major proportions when, in the 1994 cases of Theophanous v Herald & Weekly Times Ltds and Stephens v West Australian Newspapers Ltd. 6 the Court directly addressed the issue of interaction between the constitutional freedom and defamation law. This was chiefly due to a sharp division of opinion within tbe Court and to difficulties in interpreting the judgment of greatest significance in the two cases, that of Mason CJ, Toohey and Gaudron JJ in Theophanous. By contrast, one of tbe most important results of the unanimous judgment in Lange is that a set of principIes to which all members of the Court subscribe now determines how defarnation law, in its application to the public discussion of polítical malters. relates to the constitutional freedom. For the time being. at least, changes in the composition of the Court will not give rise to speculation as to how this relationship might also change in consequence. Another result, heing a feature of the Lange decision with which this article is particularly concemed, is that the ruling concept in this relationship is henceforth to be "conforrnity". Conforrnity, said the Court, exists and should continue to exist between the implied constitutional freedom and the substantive common law principies of defamatÍon, which are 10 be developed independently of the freedom but with due regard to its requirements. The Court in Lange also redefined, in narrower terms, the implied freedom of polítical communication and reformulated the principies underpinning it. In Levy v Victoria,? decided about three weeks later, the concurring judgments of all seven Justices furlher elaborated this new definition. This redefinition is outlined below. 8 A further highly significant outcome of Lange was that the Court, in pursuit of this aim of conformity. effected a major change lO the common law of defamation. It radically enhanced the sphere of operation of an important and long-standing ground of defence in defamation law - that of common law qualified privilege. The nature and implications of this expansion of qualified privilege are explored below. 9 The main purpose of tbis article, much of which was prepared before the decision in Lange was handed down, is to investigate how far sorne major defences in Australian defamation law, including the enhanced defence of qualified privilege, genuinely do "conforrn" with the constitutional principIe of freedom of political communication. In addition, the article will consider briefly the impact of tbe constitutional freedom on statulory amendments lo 5 6 7 8 9

(1994) 182 CLR 104. (1994) 182CLR211. (1997) 146ALR248; 71 ALJR837. At ppI61-166. Al pp175-181.

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defamation law, with particular reference to sorne of the changes envisaged in the Defarnation Bill 1996 (NSW). PRlVILEGES, FREEDOMS AND THEIR INTERACTlON The legal concept of privilege is very versatile. It is used with different shades of meaning in a wide variety of contexts relating to comrnunication. An important basic distinction is between the privilege to speak, write or otherwise cornmunicate and the privilege to remain silent, in each case with impunity. The laner privilege typically arises in courtroom situations, as with the privilege against self-incrirnination and legal professional privilege. Privilege in defamation law belongs in the former category. Generally speaking, a defence of privilege in defarnation law attaches to the specific occasion on which the relevant defamatory publication is rnade. Thus, in marked contrast to the well-known "public figure" test operating in American defamation law, no account is specifically taken of the characteristics of the plaintiff - for example, of whether the plaintiff is a public official, a public figure or, to cite a category invoked by Deane J in Theophanous,lo a holder of "high public office". More cornmonly, it is the relationship between the defendant and the person or persons to whom the defamatory malter is published that establishes the "occasion" of the publication as a privileged one. When a defence of privilege applies, there is accordingly a limited enclave of free speech. This may produce the further consequence that particular categories of defendant, because they frequently play the role of speaker - or, in terms of defamation law, "publisher" within an established occasion of privilege become, in effect, "privileged publishers". Here, the contrast with the American "public figure" test becomes even more striking. In determinations as to privilege, it is defendants, not plaintiffs, who are put into categories. Sometimes, in ways and for reasons that this article briefly explores, the speech occurring within an occasion of privilege can fairly be described as "especially free". This is because the speaker not only enjoys imrnunity from civilliability for defamation (and from other legalliabilities, such as a prosecution for crirninallibel), but is al50 protected by rules prohibiting and inhibiting the speech from being questioned or criticised in other forums. These rules, which frequently also bear Ihe name "privilege", provide special support for freedom of speech within the privileged occasion, at the expense of freedom of speech outside il. The prime example of this notion of "especially free" speech is speech in parliamentary debates or other parliamentary proceedings. The defamation defences establishing enclaves of free speech through use of the notion of privilege did not spring, fully formed, from an articulated set of principies about the 10

(1994) 182 CLR 104 at 184-186. Deane J' s view was lhat such a person should have no right of action for damages against a publisher of defamatory imputations relating lo his or her official conduct.

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structure and process of government. Their evolution did, however, reflect broad assumptions, usually implicit rather than explicit, of a social and political natUfe. These assumptions were operative in England rather than Australia and in sorne instances crystallised many centuries ago. It follows Ihat these defences originated and were developed against very different political, social and constitutional backgrounds to that of present-day Australia. On the other hand, a noteworthy feature of the recent discussions of defamation law in the High Court is that, for the first time in the history of this law, they have formed part of broad debates about the fundamental principIes of democratic government in present times}t Conclusions on major issues of constitutional law and theory, notably the formulation of a constitutional implication of freedom of political communication, have been highly influential in tbe fonnulation of major changes to defamation law. In addition, one of the terms frequently employed within this process has been "freedom". Unlike "privilege", this tenn has connotations of general applicability to all citizens, notably because of its use in Bilis of Rights and other general constitutional guarantees. The most famous and most broad-ranging guaranlee of freedom of speech in Ihe cornmon law world, the First Amendment to the United States Constitution, has not in any sen se been transplanted to Australia. But sorne of its underlying political assumptions have been very influential in the High Court's discussions of the implied freedom of political comrnunication.

In the outcome, both the idea of a general freedom (in the legal sense) of political cornmunication and the political concept of freedom of speech - "freedom", here, in a nonlegal sense - have formed part of the currency of the debates about how defamation law should develop in Australia. These comments about the background lo Lange v ABe draw attention to an important aspect of Ihe role which this case has played in a process of transfonnation of defamation law. A striking feature of the Lange judgment is its returo to the. common law of defamation and its traditional concepts, notably that of "privilege". Yet it seeks to develop these concepts in a fashion Ihat will accornmodale broader, newer ones, notably Ihat of a universal "freedorn" of cornmunication arising out of Ihe text and structure of Australia's constitution, interpreted in the light of modero notions of representative and responsible government. In considering how far the Court's avowed aim of "conformity" is achieved, or al leasl achievable, a basic question is whelher Ihis interaction of old and new concepts can occur with sorne degree of harrnony.

II

In Loveland, "Reforrning Libel Law: The Public Law Dirnension" (1997) 461nt'/ & Comp LQ 561 at 571, this aspecI of the High Court decisions is contrasted with tbe relative failure of English courts, and of the European Court of Hwnan Rights, lo consider tbe "public law dirnension" in sorne recent leading defamation cases.

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The ensuing diseussion of the interaetion between eonstitutional principIes and defarnation law in the wake of Lange proeeeds as follows. After sorne brief eomments on the similarities and differenees between the Australian response to these issues of interaetion and that of American law, the nature of the constitutional implication and the political theory which underpins it will be described. The article then deals with the existing defenees of privilege and, brietly, with the defenee of fair cornment, outlining in each case (a) the nature of the defence; (b) its origins and development, with particular attention to politieal assumptions explicitly or implicitly associated with it; and (e) the extent to which the defence and these assumptions seem to conforrn with the constitutional freedom and its political orientations. The article eoncludes, as already mentioned, with sorne comments on how the implied constitutional freedom bears upon statutory reform of defamation law.

tbe

The species of privilege which forrn the principal subject-matter are: (a) qualified privilege at cornmon law; (b) (he absolute privilege attaching to statements made in parliamentary or court proceedings and in other analogous contexts, along with other legal principies giving speeiaJ proteetion to the speech occurring in parliamentary and eourtroom proeeedings; (e) the qualified "fair report" privilege attaehing to fair and accurate reports of such proceedings or of various other official or semi-offieial proceedings, documents and statements; and (d) statutory qualified privilege under provisions such as s 16 of the Defamation Act 1889 (Qld) and s22 of the Defamation Act 1974 (NSW). Where appropriate, eomparisons are made with the American counterparts of these speeies of privilege.

DIFFERENT METHODOLOGIES IN AME RICA AND AUSTRALIA Tbese present-day questions as to how, in Australia, defamation law may best interaet with a constitutional free speeeh principie eonfronted American defamation law about thirty years ago. They arose after the US Supreme Court had decided in 1964, in the case of New York Times v Sullivan,12 that defamation should be subject to the principies of the First Amendment. The High Court of Australia' s rulings in Theophanous and Stephens that the implied eonstitutional freedom mandated a significant ehange to the eontent of defamation law in cases arising within politieal diseussion eonstitute the Australian equivalent, broadly speaking, of SulLivan. The ehoiees made in America sinee 1964 have been relatively clear-cut. Many preexisting eornmon law and statutory rules of defamation law have been wholly or partly superseded through a process of "constitutionalisation".13 The rules ehietly affeeted by the 12 13

376 US 254 (1964). See generally Eaton, "The American Law of Defamation through Genz v Roben Welch. Inc and Beyond: An Analytical Primer" (1975) 61 Va L Rev 1349; Watkins & Schwartz, "Gertz and ¡he Common Law of Defamation: Of Fault, Nonmedia Defendants and Conditional Privileges" (1984) 15 Tex Tech L Rev 824 at 864-885.

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body of constitutional rules known collectively as the "public figure test" have been the defences of justification, faír comment and privilege. In many situations, the frrst of these defences has become irrelevant and the second and third largely irrelevant, because of requirements imposed on the plaintiCC by the Sullivan decision and the line oC Supreme eourt authority following it. By contrast, even beCare the decision in Lange, it seemed unlikely that Australian defamation law would be "constitutionalised" to anything like the same extent as its American counterpart. This is attributable to the High eourt's comparative caution in introducing free speech considerations into defamation law. The Theophanous and Stephens cases did not tilt the balance towards freedom of speech nearly so far as the decision in SuLlivan had done. In Theophanous, the joint judgment of Mason eJ, Toohey and Gaudron 11, who comprised three of the four majority justices, stated that the "public figure" test "gives inadequate protection to reputation"14 by virtue oC the requirement oC proof of "actual matice" on the part of the defendant. They favoured instead a test of "reasonableness", imposing a distinctly greater obligation on publishers to try to achieve accuracy.15 The methodology adopted in Theophanous was however similar to that of Sullivan, in so far as the decision imposed upon the common law and statutory rules oC defamation an overriding principie of constitutional law. The majority Justices held that where defamatory statements were published in the course of "political discussion", a concept to which they gave a broad meaning,I6 a "constitutional defence", embodying this concept of reasonableness, should applyP The new constitutional defence did nol supersede existing defences, but existed alongside tbem. In Lange, however, the High eourt retraced its steps. It abandoned Ihis process of partial constitutionalisation, in favour (as has already be en said) of a methodology oC achieving

14

15

16 17

(1994) 182 CLR 104 at 135. The fourth member of the majority, Deane J, took the view, comparable to that of Black, Douglas and Goldberg JJ in Sullivan. that members of Parliament, other holders of "high public office" and candidales for such positions should ha ve no right al all to sue in respect of defamatory Slalements about the "ofticial conduct or suitability of a member of the Parliament or other holder of high Commonwealth office": at 185. He concuITed with the result reached by the other three majority Justices in order to reach a decision on lhe facts. For discussion of these aspec\s of Theophanous. see Walker, "The Impact of the High Court' s Free Speech Cases on Defamation Law" (1995) 17 S)'d LR 43. In Canada, the Supreme Coun has been similarly unsympalhetic 10 the "public figure" test, despite the presence of a guarantee of freedom of expression in Artiele 2(b) of the Canadian Charter of Rights and Freedoms: see Hill v Church of Scienrology ofToronto (1995) 126 DLR (4th) 129. (1994) 182 CLR 104 at 123-125. Their approach to defining "political discussion" is outlined al pl62 below. At137.

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and maintaining "confonnity" between the common law and the implied constitutional freedom. The Court in Lange gave one majar reason for not continuing down the American path. The judgment explains that in America, the common law is "fragmented into different systems of jurisprudence",18 so Ihat any uniform constitutional standard, such as the guarantee of freedom of speech and of the press prescribed by the First Amendment, must be superimposed upon the common laws of the States. It may produce a "constitutionaI privilege" against the enforcement of such laws or may in sorne circumstances give rise to a federal cause of action. 19 By contrast, a single, unifonn common law, "declared by this court as the final court of appeal",2o exists in Australia. It is both subject to the Constitution and "infonns" the Constitution, in the sense that the Constitution' s provisions "are framed in the language of the English cornmon law, and are to be read in Ihe light of the corumon law's history".21

MAIN FEATURES OF THE IMPLIED FREEDOM OF POLITICAL COMMUNICATION For the purposes of this article, the important features of the implied constitutional freedom of política] cornmunication, as redefined in Lange, are as follows:

1. The freedom does not protect freedom of speech generaIly,22 but only cornmunication on "political or governmenl matters" within a political and social structure of a specific type: viz, representative and responsible government, as provided for within the CornmonweaIth Constitution. It can no longer be said to be based on broad propositions, to be found particularly in Theophanous,23 to the effect that such a freedom is a necessary concomitant of a general principie of representative democracy permeating the Constitution. Instead, the judgment in Lange derives it directly from the "text and

18 19 20 21

22 23

(1997) 145 ALR 96 at 108. Al 108-109. The judgment draws attention to the role of the Fourteenth Amendmenl in achieving tbis result. Al 108. Al 110, citing Chearle v R (1993) 177 CLR 541 al 552. In explaining this idea Ihat lhe conunon law "¡nfonns" the Constitution, lhe Court rehes expressly on the thinking of Sir Owen Dixon in uThe Comrnon Law as an Ultirnate Constitutional Foundation" (1957) 31 AU 240 and in "Sources of Legal AUlhority", reprinted in Dixon, Jesting Pilate (Law Book Co, Melboume 1965) ppI98-202. Although sorne dicla have implied that iL might in due course be held 10 do so: see eg Australian Capital Televjsion v Commonwealrh (No 2) (1992) 177 CLR 106 at 141 per Mason CJ, at 212 per Gaudron J. These are of doubtful authority foIlowing Lange. (1994) 182 CLR 104 at 121 per Mason CJ, Toohey and Gaudron JI; see too Cunliffe v Commonwealth (1994) 182 CLR 272 at 298-299 per Mason CJ. The principal dissentient al this stage was McHugh J; see eg his judgments in Australian Capital Television (1992) 177 CLR 106 at 227-235, and in McGinty v Western Australia (1996) 186 CLR 140 at 230-236.

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structure"24 of the Constitution, on the basis, as Dawson J said subsequently in Levy, that "the Constitution does nOl incorporate any concept of representative government other than can be identified in the provisions of the document itself'.25 The Lange judgment asserts that a number of sections of the Constitution - notably ss7 and 24, requiring that members of the Commonwealth Parliament must be "directly chosen by the people", and s128, providing for referenda to amend the Constitution - "give effect to the purpose of selfgovernment by providing for the fundamental features of representative government".26 It goes on to define the freedom as covering communication on "government or polítical matters" which are or might be relevant to (he making of informed electoral choíces at Cornmonwealth Ievel. 27 2. For two reasons, the freedom, as so defined, is broader (han might appear at first sight. Fírst, by vírtue of the principie that the executive branch of government is responsible to the legislature (as indicated particularly in s64), the range of matters to whích it applies is not confined to the conduct of Houses of Parliament and their actual and would-be members, but includes also the conduct of govemment ministers and departments, publíc servants, public utilities and statutory authorities. 28 Secondly, discussíon of a matter which at first sight seerns only to be a "discrete State issue"29 or a rnatter of relevance only to a Territory may nonetheless be protected by the Cornmonwealth freedom because of "the increasing integration of social, economic and political matters in Australia". 30 This factor may possibly extend the freedom even to issues oC local govemment. 31 But except where the Constitution of a State ineludes provisions similar to those from which the Cornmonwealth freedom is derived,32 the question whether any implied freedorn exists within State constitutionallaw has not yet been resolved. It did not arise in Lange and was expressly left open by all the Justices in Levy.

24 25 26

27 28 29 30 31

32

Lange v ABC (1997) 145 ALR 96 at 112, citing McGinty v Westem Australia (1996) 186 CLR 140 at 168,182-3,231,284-5. Levy v Victoria (1997) 146 ALR 248 al 261. Lange (1997) 145 ALR 96 at 104. The Court (at 104- \05) also draws attention to ss 1, 8, 13, 25, 28 and 30 of the Constitution. Al \06-107, 112. Al 105-107, 112. The Court also draws attention to ss6, 49, 62 and 83 ofthe Constitution. Levy (1997) 146 ALR 248 at 253 per Brennan CJ. Lange (1997) 145 ALR 96 at 116. See too discussion in Levy al 252-253 per Brennan CJ, al 289-291 per Kirby 1. In BaUina Shire Council v Ringland (1994) 33 NSWLR 680, the NSW Court of Appeal, in ruling by majority that local authorities could nol sue in their eorporate eapacity for defamalion, gave considerable weigbt to the fael tbal local councilIors are chosen in demoeratie eleetions. Cf the decision of the House of Lords to the same effeet in Derbyshire County Council v Times Newspapers Lid [1993] AC 534. As is Ihe case, broadly speaking, in WA, by virtue of s73(2)(c) of the Constitution Act 1989 (WA): see Stephens v West Australian Newspapers (1994) 182 CLR 211 al 232-234 per Mason CJ, Toohey and Gaudron JI, at 236 per Brennan J.

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3. It is not clear how far this redefinition in Lange lea ves scope for the idea, pUl forward particularly in Theophanous, thal because it is not possible to define in advance lhe matters with which governmenl may become concerned, the scope of "polilical or government matters" must be left open-ended. "Politic al discussion" was in fact said in Theophanous to embrace "all speech relevant to lhe developmenl of public opinion on the whole range of issues which an intelligent citizen should think about". 33

4. The conception of freedom of speech 34 that specifically supports the implied freedom is an instrumental one. 35 Freedom of cornrnunication on political or governmenl malters is a means to an end, that of enabling lhe people of Australia "lO exercise a free and infonned choice as electors".36 This is an "indispensable incident of that syslem of representative government which lhe Constilulion creates".37 It follows that the separate theory that freedom of speech is essential to the pursuit of truth through the competition of viewpoints in a free "marketplace of ideas" is not directly relevant. This theory seeks to justify a freedom of a wider scope than "polítical communication". 5. A fundamental premise of the High Court's concept of representative government is that "all powers of government ultimately belong to, and are derived from, the govemed".38 They do not, as earlier in Australia's history, reside in a sovereign monarch. This does not mean, however, that a theoretical model of direct self-government, by way of

33 34

35 36 37

38

(1994) 182 CLR 104 at \24, quoting from Barendt, Freedom of Speech (Clarendon Press, OxCord 1985) p152. See too Cunliffe v Commonwealth (1994) 182 CLR 272 at 298-299, 336,379. For accounlS oC lhe lhree "justifications" of freedom oC speech referred to in this brief discussion oC the implied eonstilutional guarantee, see Campbell. "Rationales for Freedom of Communieation" in Campbell & Sadurski (eds). Freedom of Communication (Dartmoulh, Aldershot 1994) pp 17 -44; Emerson, "Toward a General Theory oC the First Amendment" (1963) 72 Yo le U 877; Smolla, Free Speech i/l an Open Societ)' (Knopff, New York 1992) eh!. Cf the distinction between "insuumental" and "eonstilUrive" lheories of freedom of speeeh drawn, for example. in Dworkin, "The Coming Battles Over Free Speech", Civil Liberry, January \993,pll. úmge (1997) 145 ALR 96 at \07. At 106. In Theopho.nous, the "efficaeious" operation of represenlative democracy was a recurring theme in the judgment of Mason Cl, Toohey and Gaudron JJ: (1994) \82 CLR 104 at 123-125, 128, 130. 133, 134. Notionwide News v WiIls (1992) 177 CLR 1 at 70 per Deane and Toohey J1; see too the statement in La/lge (at 104) that the seetions of rhe Constitution which establish the "fundamental features" of representative government "give eEfeel to the purpose of selfgovernment". This does not, however, imply that eaeh eitizen entitled to vote must ha ve equal voting power: see McGinty. For a recent analysis of lhe relationship between government by consent and freedom of speech. see AlIan. "Citizen and Obligation: Civil Disobedienee and Civil Dissent" (1996) 55 Cambridge U 89.

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metaphorical "town meetings", is invoked. 39 As point 8 in this list makes c1ear, Ihe division between "the represented" and tbeir elected represenlatives is consislently maintained. 6. A theme of primary importance in the High Court's conception of represenlative govemment is that electors must have freedom to receive information about government matters, so that they can make informed political choices. 40 This nolÍon of public access lo informalion is particularly pervasive in the Lange judgment. In a passage of five paragraphs,41 starting with the heading "Freedom of communication", where the Court explains how the implied freedom is a necessary element of representative govemment, tbere are no less than eighl separate references to it. The passage also quotes Ihe slatement of Dawson J in Australian Capital Television 42 that "Iegislative power cannot support an absolute denial of access by Ihe people to relevant information aboul the functioning of govemment in Australia and about the policies of polítical parties and candidates for election".43 As outlíned in Lange, Ihe implied freedom seems more c10sely related to the policy underlying freedom of information legislation than to any other aspect of free speech. 7. An accompanying theme in the Court's conceplion of representative govemmenl is that eleclors must have freedom to indulge, without undue fear of legal repercussions, in public criticism of the official conduct of their representatives, with a view to ensuring that these people carry out their duties satisfactorily.44 This element is implicit in Lange, in so far as Ihe decision treats defamalory statemenls aboul the conduct of people engaged in politics or govemment as a form of speech protected by the implied freedom. It is more c1early apparent in Levy, wbere Ihe Court makes il clear that demonstrations and other forms of political protest are protected by the freedom, even when at first sight tbey may not seem

39 40

41 42 43 44

Conlrasl ¡he use of this metaphor by Alexander Meiklejohn, the American theorist most commonly associaled with democratic theories of free speech: see eg Meiklejohn, Political Freedom: TIJe Constitutional Powers oftlJe People (Harper, New York 1960) pp24-28. For instances prior to LAnge, see Nationwide News (1992) 177 CLR I at 72 per Deane and Toohey 11; Australian Capital Television \1 Commonwealrh (1992) 177 CLR 106 at 159 per Brennan J, at 231 per McHugh J. For an American opinion that this ascribes an unduly passive role lo cilizens in a democratic socielY, see Posl, "Equality and Aulonomy in First Amendment Jurisprudence" (1997) 95 MieIJ L Rev 1517 al 1522- 1525. Lange (1997) 145 ALR 96 al \06-107. (1992) 177 CLR \06 al 187. Lange (1997) 145 ALR 96 at 106. For instances prior to LAnge, see Nationwide News (1992) 177 CLR I al 74-75 per Deane and Toohey JI; Austra/ian Capital Television (1992) 177 CLR 106 al 138-139 per Mason CJ, at 159 per Brennan J; Theophanous (1994) 182 CLR 104 al 129-130 per Mason CJ, Toohey and Gaudron JI. In Ihis last passage, the implied freedom is linked with Ihe recent decisions, referred lo in fn31 aboye, lhallocal authorilies may not sue for defamation.

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to involve speech strictly so-calIed. 45 This idea is very prominent in First Amendment thinking, to the extent that any law repressing eritieism of government poliey, for example the law of sedition, is seen as fundamentally hostile to free speech. 46 8. Aceordingly, the cornmunication proteeted is notjust between the represented and their representatives - that is, between the people on the one hand and the Parliaments, their members and other government instrumentalities and agencies on the other4 7 - but also among the represented. This is indeed supported by the Court's decision in Australian Capital Television that Cornmonwealth laws restricting political advertising by any person or organisation through the broadcasting media infringed the freedom. Citing this decision, McHugh J, discussing the importance of the print and electronic media in giving publicity to citizens' views on political or government matters, confirmed in Levy that "a law that prevents citizens from having access to the media may infringe the constitutional zone of freedom". 48 9. The implied freedom does not confer private legal rights of freedom of political communication on individual members of the Australian community.49 Instead, these ríghts derive from the common law. The High Court expressed this idea in Lange as folIows: Under a legal system based on the common law, "everybody is free to do anything, subject only to lhe provisions of the law", so that one proceeds "upon an assumption of freedom of speech" and turns lo Ihe law "10 diseover the established exceptions to it".50 45

46 47 48

49

50

Levy (1997) 146 ALR 248 at 251-252 per Brennan CJ, at 269-270 per Gaudron J (who al so

states tbat freedom of movement is protected where this is necessary to protect freedom of political communication), al 274-276 per McHugh J. al 286-289 per Kirby J. See eg Kalven, "The New York Times Case: A NOle on 'The Central Meaning of the First Amendment'" [1964] Sup Ct Rev 191; Blasi, "The Checking Value in First Amendment Theory" [1977] Am B Found Res J 521. This formulation is adapted from Ihe judgment of Deane J in Cunliffe v Commonwealth (1994) 182 CLR 272 at 335. See 100 Nationwide News (1992) 177 CLR 1 at 73-75 per Deane and Toohey 11. Levy(1997) 146 ALR 248 al 274; see too al 252 per Brennan CJ. Prior to Lange. this aspect was mosl strongly emphasised by Brennan J: see eg his judgments in Australian Capital Television (1992) 177 CLR 106 al ISO and Cunliffe (1994) 182 CLR 272 al 326-327. In tbejudgment ofMason CJ, Toohey and Gaudron JI in Theophanous. Ihe freedom was expressly labelled an "implication", in preference to (he lerm "guarantee", in order 10 illustrate Ihal the Court had nOI yel decided whether il constituted "a source of positive righls": (1994) 182 CLR 104 al 125-126. For a comparison of tbis approach wilh other recenl High Court cases seeming, by conlraSl, 10 creale individual righls, see Bailey, "Australia - How Are You Going, Male, Withoul a Bill of Rights? or Righting !he Constitution" (1993) 5 Canterbury L Rev 2S 1. Lange (1997) 145 ALR 96 al 110. The quoted words are from Altorney-General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109 al 283.

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10. This view of the constitutional implication confirms, along with points 1 and 4 in this list, that the implication is not directly supported by the philosophical "self-fulfilment" argument for freedom of speech, ie Ihe argument Ihat this freedom is a fundamental personal right, directly altributable to the fact that all people are independently endowed with their own separate capacity for self-expression. 11. The implied freedom is not absolute, but lea ves scope for inhibitions on political communication to be imposed by rules of cornmon law or slatute in furtherance of a legitimate countervailing interest. sl Since, as already stated,S2 the freedorn operates in conformity with, rather than overriding, the common law, it will not invalidate Ihose "eslablished exceptions" lO freedom of speech which arise under the common law. It may however render invalid legal restraints on such communication imposed by statule law, whether enacted by the Commonwealth or by a State or Territory Parliament. 53 Accordingly where such restraints, in an area such as defamation, have a "chilling effecI" on freedom of political cornmunication, amendment of the relevant statutory rules may be constilutionally necessary. The precise criteria 10 be employed in determining, since Lange, whether or nol a statutory provision which restricts political communication (as defined in that case) is struck down by the implied freedom are explored below. 54 12. The freedom appears to confer no special status on the press, ie the print and broadcasting media, as compared with other members of the Australian community. But, as mentioned in point 8 of this list, the important role of the media - notably television, on account of its "unique communicative powers"ss - in conveying the views of citizens on political or government matters to Ihe cornmunity at large was acknowledged in Levy.

On two important points in this list, numbers 1 and 9, as also on other maners, such as the presence or absence of an express provision, the implied freedom differs significantly from the First Amendment to the American Constitution. On points 4, 10 and 12 there is a difference of emphasis at least. S6 The High Court has stressed more than once Ihat the implied freedom and the First Amendment are in no way lo be equated with each other. 57 51 52 53

54 55

56

Thus a legislature may, for example, protect a prescribed melhod of voting at elections by prohibiting the advocating of informal voting: Langer v Commonwealth (1996) 186 CLR 302; Mu/downey \1 South Australia (1996) 186 CLR 352. Al p156. See eg Theophallous (1994) 182 eLR 104 at 125-129 per Mason eJ, Toohey and Gaudron 11, at 164-167, 178-180 per Deane J. Al pp211-215. Levy (1997) 146 ALR 248 at 275 per McHugh J. Sorne American scholars rnight deny any significant differences on points 4 and JO by characterising the First Amendment as principaIly based on a concept or public discourse: see eg Post, "The Constitutional Concept of Public Discourse: Outrageous Opinion, Dernocratic Deliberation and Hust/er Magazine v Fa/welC' (1990) 103 Harv L Rev 601 at 626-646. But others advocate continued adherence to the "marketplace" justification (see eg eoase, "The Market for Goods and the Market for Ideas" (1974) 64 Am Econ Rev 384),

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COMMON LA W QUALIFIED PRIVILEGE General Nature The occasions on which qualified privilege arises at common law are authoritatively defined as those in which a person has a legal, social or moral duty to make a comrnunication on sorne topic, or an interest in making such a comrnunication, to a person or persons with a corresponding interest or duty to receive the cornmunication. 58 There rnust in this sense be a "reciprocity of inlerest or duty".59 The privilege may be clairned in respect of any defamatory staternent rnade in legitimate pursuil of the relevant duty or interest. A wider policy justification for the privilege Ihat is frequently put forward in the cases is Ihat it promotes "the cornmon convenience and welfare of society".60 As is more fully explained below,61 the defence has, until recently, been generally only available in respect of publications rnade to a limited range of people. But as a result of the decision of the High Court in Lange, it is now also available 10 any publication on "governrnent and polilical rnatters" lo the public at large, or sorne other "Iarge audience",62 provided that the defendant can establish that the publication was "reasonable". Qualified privilege will nol be available if the stalernenl is found to exceed the limits of the privileged occasion. In other words, the staternent rnust be "referable and appropriate lo" the relevant duty or interest. 63 Furthermore, the defamed plaintiff can defeat the privilege by showing that the statement was made without an honest belief in its truth 64 or out of spite or ill-will towards the plaintiff. In each of these situations of common law "mal ice" the statement cannot be said to have becn made in legitimate pursuit of the duty or interest which gave rise to Ihe privilege. 6S In the succinct language of Jordan CJ, the slatement

57 58

59 60

61 62 63

64 65

or lo the notion lhal a basic human righl lo self-expression underpins the Firsl Amendment (see eg Redish, "The Value of Free Speech" (1982) 130 U Pa L Rev 591). See eg Theophanous (1994) 182 eLR 104 al 125 per Mason eJ, Toohey and Gaudron JJ; Lange (1997) 145 ALR 96 al 108-109; Levy (1997) 146 ALR 248 at 251-252 per Brennan eJ, al 274 per McHugh J, al 286-287 per Kirby J. Toogood v Spyring (1834) 1 eM & R 181 at 193 . See eg Lange (1997) 145 ALR 96 al 114, citing Adam v Ward [1917] Ae 309 al 334. Toogood v Spyring (1834) 1 CM & R 181 al 193, cited in Lange al 114. Al ppI74-175. Lange (1997) 145 ALR 96 at 116. Adam v Ward [1917] Ae 309 at 329. It may be that lhis form of malice has been jettisoned in the expanded form of qualified privilege established in Lange. See pp176-177 below. See eg Clark v Molyneux (1877) 3 QBD 237 at 246; and the judgment of Hunt J in Waterhouse v Broadcasting Station 2GB Pty LId (1985) 1 NSWLR 58, compan ng common law malice lO the "good faith" requirement for statutory fair report privileges contained in s26 orthe Defamation Act 1974 (NSW).

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must therefore be "a communication which is capable of serving the purpose of the occasion and is made with no other object than thal of serving thal purpose".66 A notable difference between common law qualified privilege in Anglo-Australian law and its counterpart in the USA prior to the Supreme Court decision in Gertz v Robert Welch Inc67 is that, in sorne US jurisdictions at least, proof of unreasonableness on the part of the defendant was recognised as a fonn of malice, sufficient to defeat the privilege. 68 This was however a different way of using the notíon of reasonableness in making the defamatory pubIication than is to be found in Lange, because it placed the onus lo disprove reasonabIeness on the plaintiff. A con sequen ce of the ruling in GerlZ that even private pIaintiffs must prove fauIt in order to succeed (at least where the matter is of public concem or a media defendant is being sued) is that this ground of defeasance has become largely superfluous in the USA. 69 Origins and Early Development The origins of common law qualified priviIege in English defamation law are obscure and intriguing. The earliest case noted by Holdsworth 70 is Vanspyke v Cloyson,11 in which the defendant suggested to Dudley, a merchant, that the plaintiff, also a merchant and a debtor to DudIey, was not financially trustworthy. The plaintiff's action for slander failed, the report stating cryptically that "it is nol any slander to the plaintiff, but good counsel to Dudley". In a subtle and detailed account of the development of common law qualified privilege, MM Slaughter72 locates this type of justification for denying a remedy to the defamed plaintiff wíthin a major process of transition within defamation law. According to her analysis, which talces as its starting-point Robert Post's three-way c\assification of types of reputation into "honour", "dignity" and "property",13 defamation law in pre-capitalist, 66 67 68 69

70 71 72 73

Mowlds \1 Fergusson (1939) 40 SR(NSW) 311 al 318, quoted by McHugh J (dissenling) in Stephens (1994) 182 CLR 211 at 261. 418 US 323 (1974). See American Law Inslilute, Restalement ofthe Law ofTorts (American Law Instilule, SI Paul, Minn 1938) paras 600-601; Tieffer, "Qualified Privilege lo Defame Employees and Credit Applicants" (1977) 12 Ha~ CR-CL L Rev l43 al 153-168. See American Law Inslilule, Restatement of (he Law (Second): Torts (American Law Institute, St Paul, Minn 1977) para 600, commenl b; Walkins & Schwartz, "Gertz and lhe Common Law of Defamation: Of Fault, Nonmedia Defendanls and Conditional Privileges" (1984) 15 Tex Tech L Rev 824 at 869. Holdsworth, "Defamalion in Ihe Sixleenlh and Sevenleenlh Cenluries" (1925) 41 LQR \3 al 29-30. (1597) Cro Eliz 541. Slaughter, "The Development of Common Law Defamation Privileges: From Communitarian Society to Markel Society" (1992) 14 Cardozo L Re\l 351. Post, uThe Social Foundalions of Defamation Law: Reputalion and the Constilution" (1986) 74 Cal L Re\l 691.

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"cornmunitarian" societies chiefly treated reputation as a fonn of "honour" or "dignity". Jt primarily focussed on the status of the defarned person within society and was strongly concemed to protect the social values within which that status resided as well as the defamed person's private interest in reputation. Because its role, in part, was therefore to punish the defamer for improperly violating social standards by making an unjustified attack on the honour or dignity of one of its members, it required proof of actual malice, in the sense of ilI-will, on the defarner's part. 74 It foIlows that a remark such as occurred in Vanspyke v Cloyson would not attract liability, on the ground that it was not maliciously defamatory of the plaintiff but was merely "good counsel" to the merchant Dudley. To modem eyes, the case seems to be one of qualified privilege: indeed, transmitting information about the creditworthiness of a would-be borrower in response to a request by the potentiallender was recognised relatively early as a privileged occasion. 75 Slaughter explains the evolution of common law qualified privilege as part of defamation law' s reaction to the development, from the eighteenth century onwards, of a predominantIy capitalist, market-oriented society. In such a society, reputation was primarily viewed as an asset of the individual concemed. An injury to a person' s reputation was in essence an injury only to that item of private property. In becoming increasingly concemed to fumish monetary compensation for that injury, defamation law abandoned its requirement that the plaintiff prove fault, in the form of malice, on the defendant's parto While malice had sti1\ to be pleaded, it was presumed by operation of law simply from the fact that the statement was defarnatory of the plaintiff. Concurrently, however, the courts also framed rules for determining when a plaintiff's interest in obtaining compensation for injury to his or her reputation should yield to sorne notion of public good, defined along broadly utilitarian lines. These crystallised as situations of qualified privilege, ie as occasions where the law's presumption of mal ice did not apply and where the plaintiff, in order to succeed, was therefore obliged to prove malice in fact. For the purposes of tbis artiele, tbree elements of Slaughter's account are of special interest. First, the changes to defamation law that she describes had the effect, inter alia, of bringing an important dimension of this law under judicial control. Whereas under the prior law mal ice, an issue for the jury to determine, had always to be proved by the plaintiff, it was now for the judge to say whether the occasion was a privileged one. Only when the 74

75

This part of Slaughter's analysis is expressly dependent on the findings of research described in Helmholz, "Civil Trials and the Limits of Responsible Speech" in Helmholz & Oreen (eds), Juries. Libel and lustice: The Role of English luries in Seventeenth- and Eighteenth-Century Trials for Libel and Slander (Clark Memorial Library, University of California, Los Angeles 1984) pp3-36. See eg Herver v Dawson (1765) 5 O 3.

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plaintiff sought to plead and prove malice to defeat the privilege would the jury be brought back into the picture. Secondly, at least in its early stages of development, privilege was often associated with confidentiality. Private and confidential communications on matters of mutual interest between businessmen who trusted each other (as in Vanspyke v Cloyson), or indeed between friends or relatives, were the chief instances of occasions held to be privileged. When the principal categories of privilege crystallised (more or les s) in the nineteenth century, the communications held to be privileged were still, in the main, private ones, even though confidentiality or mutual trust between defamer and recipient was no longer specifically required. Thirdly, the range of relationships within which privilege might be recognised broadened in the nineteenth century so as to serve new elite groups and institutions of power within newly developing social structures based on a capitalist economy. This occurred because, in Slaughter' s words, the basis of privilege doctrine "shifted to relationships that were individualistic, impersonal and contractual - more characteristic of market society than community", with lhe result that privilege "served a conlraclarian ideology of private ordering".76 Slaughter describes the scope of the defence in the nineteenth century as follows: The overwhelming number of cases of private privilege 77 involve property interests. The defamed person is a creditor [sicj,78 trader, servant, local officer, minister, employee, or public beneficiary. He claims he has suffered injury to his propeny, pocketbook, credit, or ealling .... The defamer's interest is also frequently economic; namely, the protection of his or the interlocutor' s property, employees, money, or investments. 79 She comments that the sweeping poliey justifications offered by nineteenth century English judges 80 for the existence of qualified privilege as a defence - ie that it serves "the convenience of mankind"8l, "the general interest of society"82 and so on - are based on an economic theory "like Adam Smith's invisible hand, where self-interested transactions 76 77 78 79 80 81 82

Slaughler, "The Development of Common Law Defamation Privilcges: From Communitarian Society to Market Society" (1992) 14 Cardozo L Rev 351 at 375. This term, as used by Slaughter. corresponds with common law qualified privilege as used by Australian lawyers. She uses "public privilege" to describe the defence of fair comment. wilh which her anide is nOI explicitly concemed (see al 375 fn92). A reading oC the surrounding text (see especially at 389-396) suggests mat the word "debtor" might have been intended here. It certainly could belong in me Iist, given Ihat credil references were frequently recognised lo be privileged communications. Al 376. And echoed in the late twentieth century by Australian judges: see pl76 below. Hodgson \1 Scarlett (1818) 1 B & Ald 232 at 239-240. Whiteley v Adams (1863) 15 CB(NS) 393 at 418.

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ultimately ensure the bettennent of all".83 But there is an important inferenee whieh Slaughter fails to draw. Just as Adam Smith's aeeount of laisser faire economies concealed the fact that it was not "all" within society who aetually attained "bettennent" from "self-interested transactions", but those who achieved success within individualist, competitive market systems, the judicial ideology that privilege ex.ists "for the general interest of society" conceals the faet that it primarily operated to proteet the rich andJor powerful. It may, for instanee, ha ve conferred sorne benefit on capable and honest wouldbe employees to know that the references being written both about them and about anyone else competing with them for a job could provide frank assessments rather than bland or wholly favourable ones because of the privilege eonferred on the writers,84 but clearly the principal beneficiaries of this privilege were the employers themselves. They not only reeeived frank assessments of individual applicants (which the applicants themselves could not scrutinise in arder 10 reply to any false allegations), but they knew that their freedom to write references under the protection of privilege was a very useful deterrent against employee misconduct. 85 A brief glance at the nineteenth eentury case-Iaw, as surnmarised in Slaughter's aceount, demonstrates this proposition that typically the plaintiff whose defamation aetion was amenable to the defence of privilege was in a weak or disadvantaged position vis-a-vis one or more of the "players" amongst whom the privileged cornmunication was made. In the present century, the position is much the same. 86 The plaintiff is cornmonly an actual or would-be servant, public officer or debtor, or is a person who is or seeks lo be subject to the formal or informal authority of a reeognised association or institulion, such as a domestic tribunal or a professional disciplinary body. The defendant and/or the person to whom the defarnatory cornmunication is made is an actual or potential master, superior officer or creditor, or is a member of the association or institution which actually or potentially ex.ercises authority over the plaintiff. AIso, as Slaughter points out, the distinclly malleable concept of "legal, moral or social duty" was ex.tended during the 83 84

Slaughter, "The Developmenl of Common Law Defamalion Privileges: From Communitarian Soeiety 10 Market Society" (1992) 14 Cardo"(.o L Rev 351 at 377. See eg Rogers v Clifton (1803) 3 Dos & Pul 587 at 591. For discussion of tbis topic in the light of modern American developments, see Shore, "Defamation and Employment Relationships: The New Meanings of Private Speech, Publication, and Privilege" (1989) 38 Emory U 87l.

85

86

See Tieffer, "Qualified Privilege to Defame Employees and Credit Applicants" (1977) 12 Harv CR-CL L Rev 143. The balance of power in tbis siluation has recently been sbifted in me employee's favour by me House of Lords' ruling in Spring v Guardian Assuranee Pie [1995] 2 AC 296 that an employer who writes an employment reference for a former or present employee may be subject to a duty under Ihe law of negligence to use reasonable skill and care in preparing il, even mough under defamation law lhe reference is prolected by qualified privilege. For an outline of US and English categories of privileged occasion in the 1920s, see Jones, "Interest and Duty in Relation 10 Qualified Privilege" (1924) 22 Mieh L Rev 437. For a comprehensive description of presenl-day categories, see Drown, The Law of Defamatíon in Canado. (Carswell, Toronto, 1987) ch13.

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nineteenth century to protect public-spirited cltlzens who made defamatory cornmunications voluntarily to such a person (master, superior officer etc) without having been specifically requested to do so.87

Application to Material Disseminated to the Public The Law Prior lo Theophanous ll(Id Stephens Significant changes to common law qualified privilege, in its application to material disseminated by the media or through other means to the public, were suggested in 1994 in the High Coun' s judgmenls in Theophanous and Stephens. Further changes resulting from Lange brought the law to its present position. as outlined above. ss To put these two sets of changes into contexto a review of the law just prior to Theophanous and Stephens is necessary. As just explained. qualified privilege in its early development was confined to private and sometimes confidential communications. or to communications made to defined groups of people, such as shareholders in a company,S9 who shared the specified interest on which the privilege was based. During the nineteenth century, extension of the defence to newspaper publications was canvassed. 90 Newspapers argued Ihat Ihey had a duty lo convey material on matters of public interest to the pub lic. which had a reciprocal interest in receiving such material. Generally, however, while defamatory comments by newspapers (and others) on matters of public interest obtained protection under the separate defence of fair comment. 91 the protection afforded by common law qualified privilege to defarnatory allegations of fact was not extended to newspaper publications. A striking instance was the case of Duncombe v Daniell. 92 Here, while defamatory allegations made by an elector about a candidate for election to Parliament were said to be privileged so long as they were communicated only to other electors. a publication lo "all the world" in a newspaper was held to have exceeded the boundaries of the privilege. 87 88 89 90

91 92

Slaughter, "The Development of Common Law Defamation Privileges: From Communitarian Society lo Market Society" (1992) 14 Cardozo L Reji 351 at 380-382, citing Coxhead v Richards (1846) 2 CB 569; Davies v Snead (1870) 5 LR 4 QB 608. AtppI61-166. See eg Lawless ji Anglo-Egyplian Corton & Oil Co (1869) LR 4 QB 262. Contrast Gilpin ji Fowler (1854) 9 Ex. 615. where the range of publication was too wide. See eg notes on this topie in (1869) 47 Law Times 63 and 102; (1870) 50 Law Times 131; (1878) 42 lP 291; (1886) 81 Law Times 308 (in which the press, sardonically labelled "the watchdog of eivilisation", is said to believe that "the public like incessant howling at the moon" and to resent deeply the occasional flying of a "boot-jack" by the law, that "crusty old-fashioned fogey"). See eg Henwood ji Harrison (1872) 7 CPLR 606; Davis ji DU/lcan (1874) 9 CPLR 396; see pp207-208 below. (1837) 3 Car & P 223; see too Brown v Croome (1817) 2 Stark 297.

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During the twentieth century. this duty-interest argument was again raised by the media in a number of common law jurisdictions. It sometimes received a sympathetic hearing,93 particularly in the USA.94 But generaIly the response of the courts was that, except in sorne limited siruations, the media could not c1aim to be subject to a "legal, moral or social duty" to publish material of public inlerest. 95 The public might well have an interest in receiving such material, but the necessary reciprocity of duty and interest was lacking because no corresponding duty bound either the media or media employees. It was said that they should in lhis context be equated with ordinary citizens. 96 By the same token, and again wilh sorne exceplions,97 most individuals communicaling defarnatory publications via lhe media to the world al large, even when they had been major figures in government or in sorne other aspect of public life, were held to lack the necessary duty.98 On the other hand, where a newspaper was disseminated only to a restricted group of people who share a special interest in sorne subject-matter, defamatory material published on that subject in the newspaper might altract qualified privilege. 99 Accordingly, before 1994 the exceptional situations where a media publication to the world at large might be protected by qualified privilege were determined in lhe following way. If sorne third person had a recognised duty to cornmunicate material to the public or had an interest in so doing, and that duty or interest was matched by a corresponding 93

94

95

96 97 98

99

In Canada, in particular: see eg Dennison v Sallderson [1946] 4 DLR 314 and the judgment at first inslance in Drew v Toronto Star LId [1947] 4 DLR 221. These cases and the circumstances of their overruling are discussed in Weiler, "Defamation, Enterprise Liability and Freedom of Speech" (1967) 17 U Toronto U 278 at 282-289; see loo Brown, The Law oj Dejamation In Canada pp583-589. In Australia, see the dissenting judgment of Smithers J in Australian Broadcasting Corporation v Comarco Ltd (1986) 68 ALR 259. The best-known of the US cases is probab1y Co/eman v MacLenllall 78 Kan 711, 98 P 281 (1908), which was cited with approval in the judgment of the Supreme Court in Sullivan 376 US 254 at 280-282 (1964). For a useful review of these cases, see Loveland, "Qualified Privilege as a Defence for Polítical Libels Againsl Elected Politicians: Going Back to Derbysrnre's American Roots" (1997) 26 Anglo-Am L Rev 175. For leading judgments to this effect, see Telegraph Newspaper Co v Bedjord (1934) 50 CLR 632; Morosi v Mirror Newspapers LId [1977] 2 NSWLR 749 (Australia); Blackshaw v Lord [1984] 1 QB 1 (UK); Ballles v G/obe & Mail Ltd (1961) 28 DLR (2d) 343 (Cunada); Templeton v Iones [1984] 1 NZLR 448 (NZ); Post Publishing Co v Hallam 59 F 30 (6th Cir 1893) (USA). In Australia and England, this view of!he role of the media and of joumalists is frequently supported by reference to a statement to trns effeet in the judgment of Lord Shaw in Arno/d v King Emperor(1914) 30 TLR 462 at 468. Eg Toyne v Everingham (1993) 91 NTR 1. For example, in Lang v Willis (1934) 52 CLR 637, the High Court of Australia followed Duncombe v Daniel/ (1837) 3 Car & P 223 in holding that elcction speeches made to large audiences were not necessarily privi1eged even if Ihey dealt with issues of interest 10 electors. See eg Chapman v El/esmere (Lord) [1932]2 KB 431; Andreyevich v Kosovich (1947) 47 SR(NSW) 357.

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interest in the public lo receive the communication, media reports of any defamatory communication actually made shared any privilege lo which Ihe maker was entitled. Significantly, the media defendanl was in these situations acting as a conduit-pipe only, relaying to the public someone else's statement about an issue of public interest. In accordance with this approach, qualified privilege was accorded lo media reporls of a government minister correcting a prior public slatement which was misleading,lOO of a medical tribunal spokesperson' s nOlification to lhe public that a named medical practitioner had been disqualified from practice lOI and of a defamatory ulterance of a person who was seeking to repair his reputation after having be en defamed in parliamentary proceedings which were reported to the public (exercising, in a loose sense, a public "right of reply").102 This line of reasoning was also somelimes sufficient to bring within common law qualified privilege media reports of proceedings of administrative tribunal s and other public bodies which were nol specificaIly covered by fair report privilege. 103 The Effect ofTheophanous and Stephens Two aspects of the High Court' s judgments in Theophanous and Stephens directly bore on lhe availability of common law qualified privilege in cases where lhe defamatory material had been disseminated to the public. First, lhe dissenting judgments of Brennan and McHugh JJ in Stephens contained proposals lO make the defence available to any person who with "special knowledge" on government or poli tic al malters conveyed factual information on such malters lo the public, and to any media or other defendanl which, in errect, acled as the conduit-pipe for transmitting this information lO lhe public. 104 In lhe opinion of McHugh 1105 (bUl nol Brennan )106), Ihis privilege for the media would be "ancillary" only; hence it would fail if tha! of the primary privilege-holder were defeasible on the ground of malice. Brennan J considered that, in 100 101

102

103 104 105 106

DUliford Publicity Studios Ltd v News Media Ownership Ltd [1971] NZLR 961. Allbutt v GeneraL Council 01 Medicar Education and Registration (1889) 23 QBD 400. In so far as considerations of public safety arise in this situation, it has parallels wilh a recenl decision that a consumer magazine's warning to the public about allegedly dangerous gas heaters should be protected by qualified privilege: see Bowin Designs Pty Ltd v Australia" Consumers Association (Unreponed, Federal Coun, Lindgren J, 6 December 1996). Adam v Ward [1917) AC 309; see too Watts v Times Newspapers Ltd [1996] 2 WLR 427; [1996] 1 AH ER 152. The response musl, however, be commensurale wilh the occasion: see Penton v Calwell (1945) 70 CLR 219; Marks v Construclion Mining. Energy. Timberyards. Sawmills and Woodworkers Union of Australia (WA Branch) (1995) 14 WAR 360, a case involving a trade union journal. For a recent instance, see Homestead Award Winning Homes Pty LId v South Australia (Unreported, SA Supreme Coun, Prior J, 15 July 1997). Slephens (1994) 182 CLR 211 al 246-255 per Brennan J. al 264-266 per McHugh J. At 266, drawing on dicta in Loveday v Sun Newspapers Ltd (1938) 59 CLR 503 al 519 per Dixon 1. Al 253-255.

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contrast to the normal definition of common law malice in the context of qualified privilege, a defendant reponing the defamatory statemenl of a person with special knowledge should not be deemed malicious merely because he or she "had no personal knowledge of (and hence no belief in)" the truth of the defamatory statement. 107 But he suggested also that the defamed person should be "fairly given" an opportunity to malee a "reasonable response" to the defamatory malter. los This last suggestion was carried fQrward to fonn pan of the criterion of "reasonableness" in Lange. 109 Secondly, a short passage in the majority judgment of Mason eJ, Toohey J and Gaudron ] in Theophanous contained the dramatic suggestion that aH defamatory communications made in the course of "political díscussion" (as defined in that case), whether to lhe public at large or to a small audience, and whether or not by a media organisation, should be protected by qualified privilege. IIO This was put forward as a natural offshoot of the implied constitutional freedom, though the detailed grounds for such a massive expansion of the privilege were not speHed out at al\. In decisions following Theophanous and Stephens, lower couns responded in very different ways to these diverging judicial opinions on the scope of qualified privilege. 11l It was a period of considerable confusion. The Effect 01 Lange

The unanimous joint judgment in Lange substantially resolved these uncertainties. It expanded lhe operation of common law qualified privilege to inelude publications made by the media or any other publishers to any wide audience on "government and political malters". It stated that the fundamental requirement of reciprocity of duty or interest in qualified privilege l12 was satisfied by virtue of the following reasoning: each member of the Austrdlian cornmunity has an interest in disseminating and receiving information, opinions and arguments concerning government and political malters that affect the people of Australia. The 107 108 109 110 1LL

L12

Al 253. The ingredients of common law malice are outlined at p167 aboye. At 252-253. See Lange (1997)145 ALR 96 al 118, and Ihe discussion al p 176 below. Theophanous (1994) 182 CLR 104 al 140. See eg Han \1 Wrenn (Unrepol1ed, NT Supreme COUI1, Mildren 1, 19Ianuary L995) (noled in (1995) 2 Media L Rep 158); Sporting Shooter's Associatioll of Australia (Vic) \1 Gun Control Australia (Unrepol1ed, County Coun of Victoria, Iudge Shelton, 2 March 1995); Peterson \1 Advertiser Newspapers LId (1995) 64 SASR 152. For academic discussion, see Dreyfus & Neal, "First Viclory on Political Qualified Privilege" (1995) 2 Media L Rep 82; Cassirnatis, "Theophanous - A Re\liew of Recent Defarnation Decisions" (1997) 5 Torts U 102. In New Zealand, the notion of extending common law qualified privilege 10 siluations of "political expression" was sanctioned in Lmlge v Atkinson (1997) 2 NZLR 22. See p167 aboye.

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duty lo disseminate such information is simply the correlative of the interest in receiving it. The common convenience and welfare of Australian society are advanced by discussion - the giving and receiving of information - about govemment and political matters. l13 The Court referred to "changing conditions" during the present century as calling for this extension of qualified privilege, notably "[t]he expansion of the franchise, the increase in literacy, the growth of modem political structures operating at both federal and State levels and the modern developments in mass communications, especially the electronic media" .114 It stated that these changes also affected the scope of the implied constitutional freedom. 115

In this newly-enhanced sphere of operation of qualified privilege (though not in any situation where prior to Lange the defence was available)1l6 the defendant must satisfy an additional new requirement of "reasonableness of conduct" in making the publication. The Court justified this in terrns of the much greater hann that can be done to reputation by a publication made to "tens of thousands, or more, of readers, listeners or viewers" .117 It entails proving, "as a general rule", that the defendant "had reasonable grounds for believing that the imputation was true, taok proper steps, so far as they were reasonably open, to verify the accuracy of the material and did not believe the imputation to be untrue".118 An accaunt of "reasonableness" in these terms has clase parallels with its operation in the defence of statutory qualified privilege under s22 of the Defamation Act 1974 (NSW),1l9 to which the judgment in Lange refers on several occasions. But the Caurt added an extra requirement, that the defendant must also, generally speaking, have "sought a response from the person defamed and published the response made (if any)".120 In ú:mge, the High Court also discussed defeat of the defence on grounds of malice, with particular reference to this expanded operation of the defence. It endorsed the traditional definition of malice as publication for an improper motive,121 but emphasised that the plaintiff must prove the publication to have been "actuated" by mal ice, not merely that illwill or sorne other improper motive existed. It added that neither the motive of causing political damage nor the "vigour of an attack or lhe pungency of a defamatory statement" would be enough of itself to constitute malice. 122 It did not mention me altemative forrn of mal ice, namely that the defendant did not have a positive belief in the truth of the 113 114 115 116 117 118 119 120 121 122

(1997) 145 ALR 96 at 115. Al 110-111. Al 11 \. This is made c1ear at 117.

A1116. A1118.

See discussion at pp205-206 below. A1118. See p167 above. Al 118.

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imputation. This may mean that this form of malice does not apply to the defence in its expanded field of operation, 123 but this issue cannot be regarded as settled. Conformity with Implied Constitutional Freedom In simple legalistic terms, appropriate "conformity" between the expanded version of cornmon law qualified privilege and the implied freedom of political communication must be taken to exist because a unanimous High Court has so pronounced, in a judgment in which it substantially redefined both the freedom and the privilege. The Court suggests, however, that conformity does not mean complete equivalence. 124 The privilege, in its expanded sphere of operation, covers cornmunications on "government and political matlers". The freedom covers only cornmunications relevant to the makíng of free and informed choices by Commonwealth electors. The Court illustrated this distinction by reference to "discussion of matters concerning the United Nations or other countries", which "may be protected by the extended defence of quaJified privilege, even if those discussions cannot illuminate the choice for electors at federal eleclions or in amending the Constitution or cannOl lhrow light on the administration of federal govemment".125 This concession lea ves sorne leeway for the range of communications prolected by qualified privilege lo expand further wilhout having lo be linked lo the making of electoral choices. For example, the broad nolion of "government and political malters" might in elude lhe aClivities of large companies, al least when they direelly affeet a large seclion of lhe public. But this is by no means certain. There is a strong case for saying that in any event the expanded privilege should be recognised as covering this aspect of public life, given that the dividing line between "public" and "private" in a context such as this is anything but clear. 126 It should, for instance, cover defamatory material published in relation lo BHP's recent decision lo close down its operations in Newcastle. Such an extension would not, however, be possible if the notion of "conformity" implied that lhe expanded qualified privilege must always be defined with reference to the making of electoral choice s at Cornmonwealth level. The "conformity" lhat emerges from Lange has only been possible because the High Court has made fundamental changes lo the conceptual foundations of common law qualified privilege. The abo ve oulline 127 of the origins and development of this defence shows that 123 124 125 126

127

This view is taken in Walker, "Proving Belief' (1997) 44 Gaz L & J 12. Though a passing comrnent al 111 does suggest eqúivalence. At 115-116. For aniculation of this view, see Edgeworth & Newcity, "Politicians, Defamation Law and Ihe 'Public Figure' Defence" (1992) 10 Law in Context 39 at 60-61; Chesterman, "The Money or the Truth: Defamation Reform in Australia and the USA" (1995) 17 UNSW U 300 at 304; Groves, "A Constrained Defence" (1997) 44 Gaz L & J 3 at 5. Al pp168-172.

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it was initially confined to private or even confidential communications, and that in its de facto operations it chiefly promoted the interests of individuals or institutions possessing power or authority, such as employers or creditors in their dealings with actual or would-be employees or debtors, or professional regulatory bodies in their dealings with actual or would-be members of the relevant profession. In the words of Bowen LJ in Merivale v Carson,l28 "privileged occasion" was used "in a legal sense ... with reference to a case in which one or more members of the public are clothed witha greater immunity than the rest". If the established methodology of the defence had been maintained in its extension to communications made to the public on "government and political matters", there would have been a real risk of creating further categories of "privileged publishers", rather than a "Ievel playing field"129 for the making of such communications by all people within the community. Media organisations and joumalists could, for instance, form one such category. This would have happened if they had been suceessful in persuading Australian courts (as they have sought to do on many oecasions in the past)130 that by virtue of their long-standing role within soeiety they eolleetively have a general "legal, moral or social duty" lo make communieations to the publie on all maners of publie interest and that the public has a reciprocal interest in receiving such eommunieations. The dangers of this have been pointed out even in the United States, notwithstanding that the First Amendment expressly protects freedom of the press as well as of speech and the press has always been recognised as playing a very special role (indeed, in the words of one cornmentator, it has been placed on a "structural and historical pedestal"I3I). During the 19705, observation5 in Supreme Court judgrnents, notably in Gertz v Robert Welch,132 suggesting that media defendants might therefore enjoy greater constitutional protection against defamation liability than non-media defendants, at least in actions brought by private plaintiffs, provoked strong objeclions lo the prospect of a "mediaocracy" being "grafted on to the First Amendment .... 33 Later Supreme Court decisions l34 did in faet 128

129 130 131 132 133

(1887) 20 QBD 275 at 282. This dictum is disputed in Radcliffe, "The Defence of 'Fair Cornment' in Actions for Defamation" (1907) 23 LQR 97. But Radcliffe's argumenl, al 99, Ihat "[e]veryone has an equal right to use defamatory language in giving the character of a servanl, in making complaint of a subordinate lO his superior, and the like" tends chiefly lo confirm !he potential of qualified pri vilege to favour elite groups. The phrase is borrowed (deliberately) from Australian Capital Teleyision (1992) 177 CLR 106: see the discussion of this issue in that case at 144-147, 175,219-221,238-241. See pp 172-\73 aboye. Schauer, "Social Foundations of the Law of Defamation: A Comparative Analysis" (1980) 1 J Media L & Practice 3 al 19. 418 US 323 (1974); see eg Ihe Court's fonnulation ofthe issue to be determined, al 332. Shifrin, "Defamatory Non-Media Speech and First Amendment Methodology" (1978) 25 VCLA L Rey 915 at 934-935; see loo Karst, "Equality as a Central PrincipIe in the First Amendment" (1975) 43 V Chi L Rey 20; Eaton, "The American Law of Defamation through Gem. y Robert Welch. Inc and Beyond: An Analytical Primer" (1975) 61 Va L Rev 1349 al 1403-1408, 1416-1418; Watkins & Schwartz, "Gertz and the Common Law of

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appear to eliminate, though not entirely conc1usively, this spectre of a "mediaocracy", though, lo the extent Ihat Ihe First Amendment is interpreted as primarily concerned with public discourse, the media has a slrong claim to its protection because prima facie at least its publications fonn part of this discourse. 13S Another category of "privileged publishers" would have arisen if the extension of cornmon law privilege had been to statements by persons with "special knowledge", in the manner suggested by Brennan and McHugh JI, dissenting, in Stephens. 136 McHugh J suggested the following as examples of such persons: The scientist who discovers that lack of governmental action is threatening the environment, the "whistleblower" who observes the bureaucralic or ministerial "coyer up", and the inyestigaliye journalist who finds Ihat grants of public money haye been distributed contrary to the public interest.!37 A defmition of "special knowledge" and Ihe mode of resolving any claim by a defendanl to possess it would have been detennined by judges (il is to judges, not juries, that the detennination of occasions of qualified priyilege is generally entrusted).138 They could well haye displayed undue respect for orthodox, conservatiye expertise and/or experience and insufficient respect for the insighls of those who haye acquired unconyentional, potentially ground-breaking knowledge by unorthodox means. Such people mighl haye laboured long and hard lo find out whal they could about all the relevanl issues, bUI have been denied access to what really would be useful infonnalion, wilh the result Ihat it would be very easy for a defamalion plaintiff lo point to defects in the factual basis for their assertions. 139 On the other hand, if haying "special knowledge" were defined more ec1ectically and loosely as having made sorne plausible attempt to be infonned about the relevant issues,

134

135

136 137 138 139

Defarnation: Of Fault, Nonrnedia Defendants and Conditional Privileges" (1984) 15 Tex Tech L Rey 824 at 831-864. Eg Dun & Bradstreet Inc y Greenmoss Builders Inc 472 US 749 (1985). For commentary on the current law, see Sack & Baron, Libel. Slander and Related Problems (Praclising Law Inslilule, New York, 2nd ed !994) pp352-358; Smolla, Law of Defamatioll (Clark Boardrnan, New York 1995) para 3.02[4]. See eg Post, "The Conslitutional Concept of Public Discourse: Outrageous Opinion, Democratic Deliberation and Hust/er Magazine y Fa/welf' (1990) 103 Harv L Rey 601 al 677-678. In ¡he New Zea1and case of Lange y Atkinson [1997)2 NZLR 22 at 47, Elias J expressed concern that, due 10 anxieties about the power and influence of modern media organisations, extensions of qualified priyilege might be fashioned in such a way as 10 discriminate against them. See pp 174-175 aboye. (1994) 182CLR211 at265. See p169 aboye as 10 how Ibis carne about. Cf criticism along similar lines in Lallge v Atkinsoll [1997)2 NZLR 22 al 50-51 per Elias J.

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one is starting to ¡nch towards a criterion of "responsibleness" or even "reasonableness". Indeed, McHugh J acknowledged during argument in Lange and Levy that he was "not wedded" to a criterion based on "special knowledge" and that "reasonableness" - the test ultimately agreed on by all members of the High Court - may have better expressed the idea that he had in mind in Stephens. l40 Media representatives and other commentators have argued that this test, as explained by the Court in Lnnge, places unduly heavy burdens on the media. These concems are based particularly on the media's relative lack of success with the test of reasonableness under s22 of the Defamation Act 1974 (NSW) and on the fact that the definition of "reasonableness" in Theophanous for the purposes of the constitutional defence was more favourable to them. They have been outlined elsewhere 141 and need not be re-examined in detail here. The important point for the analysis in this artic\e is however that common law qualified privilege, in its expanded field of operation, has been fundamentally transformed by the High Court. Relying on broad (and virtually meaningless) concepts such as "the common convenience and welfare of mankind", the Court has brought the defence in line with its relati vely egalitarian version of polítical communication within a representative democracy. It now promotes a form of "free" discussion, both between the "representatives" and the "represented" and amongst the "represented", in which all citizens, so long as they act "reasonably", may participate on equal terms, rather than with sorne enjoying the status of "privileged publishers". It reflects the fact, as noted above,I42 that the implied constitutional freedom is one of communication or discussion, not specifically or preCerentially oC the press or of the media. While this "egalitarian" conception of political communication is most prominent in the 1992 and 1994 cases on the implied freedom, it receives c\ear support from the treatment of political protest in Levy and it is in no way contradicted by Lnnge. To refer back to a comparison outlined above,143 the Court has, in short, converted common law qualified privilege (in its new sphere of operation) from a "privilege" into a "freedom". Instead of tending to "privilege" particular c\asses of publishers who convey defamatory material within a generally familiar range of "privileged occasions", (he defence now exisls as a "freedom" which applies relatively indiscriminalely within the sphere of debate on govemment and political malters. 140

141

142 143

úllIge v ABe; Levy v Vicroria, transcript of argurnent p35 l. See eg lhe following shon comrnenls on Lange in (1997) 44 Gaz L & J: Chesterrnan,

"Clarily and Loose Ends" (al S); Appleganh, "What is a Mass Communication?" (al 6); Nicholas, "Regrels of (he Deadline" (at 7); Hallam, "Pressure on Sources" (al 9); Evatt, "Back to Eanh" (al 10); Colernan, "Tortured Inquisition" (at 10). Al pl66 aboye. See too comrnenls on the impact of the media on modern sociely by Mahoney JA, dissenting, in Ballina Shire Council v Ringland (1994) 33 NSWLR 680 al 723-725. Atpp157-158.

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ABSOLUTE PRIVILEGE AND OTHER FORMS OF PROTECTION FOR SPEECH IN PARLIAMENTS AND COURTS General Nature The primary instances of absolute privilege in defamation law are the privileges attaching at common law to statements, whether oral or in written form, made in the course of parliamentary proceedings (including the proceedings of committees)144 and in the course of proceedings in a court,145 or a tribunal which is exercising the functions of a court. l46 These instances of eommon law privilege are in many jurisdictions confirmed by statutory provisions. 147 In addition, as explored in the next section,I48 the proceedings of parliaments and courts receive further protection, of a most unusual kind, respectively from other branches of parliamentary privilege (for which the sanction of punishment for contempt of parliament may, in theory at least, be invoked) and from the law of contempt of court. Retuming to defamation law, an additional occasion of absolute privilege at common law is a communication between "high officers of state" in relation to an "aet of state".t 49 Absolute privilege is also conferred by statute on (a) broadeasts of parliamentary proeeedings;150 (b) offieial reports, papers, proceedings etc published by authority of a

144

145

146 147 148 149 150

The privilege does not apply when an MP, while oulside parliarnent, repeals or simply c1aims to "stand by" a defamatory slatement initially made by him or her in the course of a parliamentary proceeding: Beitzel v Crabb [1992] 2 VR 121. According to McHugh J, dissenting, in Srephens, qualified privilege should apply instead: (1994) 182 CLR 211 at 26B-269. In the latter situation, the defamed person may in any event be precluded by parliamentary privilege from proving the contents of the defamatory statement: see Beirzel at 128 and pl86 below. The privilege covers rnatter published in the course of taking any step in the relevant judicial or quasi-judicial proceedings, 5uch as the making of a complaint pursuant to an established procedure (Hercules v Phease [1994] 2 VR 411), bUI nOI ¡he rnaking of a complaint to an investigating or prosecuting authority: Mann v O'Neill (1997) 145 ALR 682; 71 ALJR 903. It extends to appellate or review proceedings and may cover a statement made outside the relevant court or tribunal provided lhal il forrns "an integral and necessary part of the preparation for and pursuit of the liligation": Mann at 710 per GummowJ. See eg Oliver v Bryant Srrata Management Pty LId (1995) 41 NSWLR 514. The proceedings of sorne disciplinary tribunals, including tribunals regulating lega) practitioners, are covered: see Hercules, Mann. See eg Parliamentary Privileges Act 1987 (Cth) sS; Defamation Act 1974 (NSW) s17. At ppI82-186. See Gibbons v Duffell (1932) 47 CLR 520, where the High Court emphasised that the "officers of state" must be of the highest rank. See eg Parliamenrary Proceedings Broadcasting Act 1946 (Cth) s15.

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House of Parliament;ISI and (c) proceedings before, repons of and statements to or by specified institutions or officials of govemment, chietly when the exercise of quasi-judicial or investigative functions is involved. 152 Absolute privilege is exceptional among forms of privilege in one important respect, namely that it allows no comeback for the plaintiff once ils applieability to a defamatory publieation is proved. This is a striking feature, given that every situation to which it relates would al so fall wilhin established principIes of qualified privilege, where the plaintiff would have scope to defeat the privilege by proving malice. The only significam mitigation of the "absoluteness" of the privilege is that in sorne Houses of Parliament, such as the Senate, a defamed person may claim the right to make a reply within the same forom, also under absolute privilege. 15J In addition, such a person, along with any media organisations which report the defamatory material, may generally invoke qualified privilege if his or her reply to il defames the maker of it. 154 Origins and Development Speech in Parliamentary Proceedings

In its absolute fonn in defamation law, privilege stems initially from the endeavours of English peers in medieval times to obtain freedom to crilieise their monarch within Parliament. 155 By the time of the Tudors, the Speaker of the House of Cornrnons regularly presented a petition, which was regularly granted, that there should be freedom of speech in parliamentary debate. One of the issues resolved in Parliament's favour during the long 151 152 153

154 155

See eg ParliameTltaT)' Papers Act 1908 (Cth) s4; Parliamentary Priyi/eges Act 1987 (Clh) sIl; Wrongs Act 1936 (SA) s 12(1) (considered recently in Rowan y Cornwall (1997) 68 SASR 253). See eg Royal Commissions Act 1902 (Cth) s7; De/amation Act 1974 (NSW) ssI7A-17R, 18,19. On ¡he operation of this procedure in the Senate, see Aust, Parl, House of Representalives Standing Cornrnittee on Procedure, A Citiz.en's Right 01 Reply: Repon (1991). On 20 October 1997, the NSW Premier announced that a similar procedure would soon be adopted in lhe NSW Parliament. Adam y Ward [1917] AC 309; see pp173-174 aboye. On the evolution of the parliamentary privilege of freedom of speech, see eg Wittke, The Hislory 01 English Parliamentary Priyilege (Da Capo, New York 1970) pp23-32; Mummery, uThe Privilege of Freedom of Speech in Parliament" (1978) 94 LQR 276; Bogen, uThe Origins of Freedom of Speech and Press" (1983) 42 Md L Rey 429 al 429435; Lock, "Parliamentary Privilege and Ihe Couns: The Avoidance of Conflict" (with an appendix by Lord Denning) [1985) Pub L 64; Boulton, Erskille May's Treatise on the Laws, PriYileges, Proceedings and Usages 01 Parliament (Butterwonhs, London, 21 sI ed 1989) pp70-74; Oliver, "Parliament and the Press: A Right 10 be Reponed?" in KingsfordSmith & Oliver (eds), Economical with Ihe Trulh: The Law and the Media in a Democratic Society (Ese Publishers, London 1990) pp43-55; Harders, "Parliamentary Privilege Parliament versus Ihe Courls: Cross-examinalion ofCommiuee Witnesses" (1993) 67 AV 109 at 112-118.

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conflict between King and Parliament during the Jacobean period was whether this privilege was truly a right, as Parliarrient c1aimed, or merely a favour which the King could withdraw if he so wished. In 1684, the conflict reached its height when the Speaker of the House of Commons was convicted and fined for having signed an order, under the direction of the House, authorising the publication of a paper containing libels against the future James 11. But the defeat of absolutist monarchical aspirations in relation to parliamentary privilege was sealed, following the "Bloodless Revolution", in Article 9 of the Bill 01 Rights 1688, which declared that "The freedom of speech and debates or proceedings in parliament ought not to be impeached or questioned in any court or place out of parliament". During its period of developmenl, parliamentary privilege became recognised as a defence to all civil or criminal defamation claims, not merely prosecutions instigated by the monarch. A key decision was Lake v King,l56 where it was he Id that documents circulated for official purposes to members of a committee of the House of Commons were privileged for the purposes of defamation law. This extension was justified primarily on the basis that the members of a body charged wilh supreme legislative responsibilities needed 10 have absolute freedom of speeeh in Ihe eourse of their deliberations. Significantly, this establishment of a privileged enclave of free speecb was accompanied by Ibe assumption of power to repress the freedom of speech of Ibose both inside and outside the enclave who were minded to publish critica! views about its operations. 157 Such people could be punished by the relevant house of parliament for contempt of parliament or breach of privilege. 158 At the present day in Australia, however, tbis species of eontempt of parliament, so-called "defamatory contempt", has virtually, though nol completely, died out. 159 In relation lo the Commonwealth Parliament, it was abolished by s6 of the Parliamentary Privileges Act 1987 (Cth). The law of parliamentary privilege also developed rules, based on Article 9 of the Bill 01 Rights, that wilhout the consent of the relevant house of parliament (a) the record of a 156 157 158

159

(1668) 85 ER 137; see Holdsworth, "Defamation in Ihe Sixleenth and Seventeenth Centuries" (1925) 41 LQR 13 al 29. See generally Goldfarb, The Contempt Power (Columbia Univ Press, New York 1963) eh!. For a diseussion of Ihe early hislory of Ihis branch of parliamenlary privilege, see Wittke, The History 01 English Par/iamentary Privilege pp49-52; Siebert, Freedom ofthe Press in England, 1476-1770 (Illinois Univ Press, Urbana 1952) pp112-116, 275-279,368-374. As 10 eonlempt of parliament and its relalionship 10 breach of parliamenlary privilege, see Boulton, Erskine May's Treatise on the Lows, Privileges, Proceedíngs and Usages 01 Parliament pp69-70, 103-104; Walker, Contempt 01 Par/iament ami the Media (Adelaide Law Rev, Ade1aide 1984). For a discussion of a very recenl inslanee of imprisonmcnl for parliamenlary conlcmpt (thc ground being the refusal of a petitioner 10 apologise for having, in the Par1iament's view, abused the right of "commoner's" petition), see Goodwin, Stewart & Thamas, "Imprisonment for Contempt of the Weslern Auslralian Parliament" (1995) 25 UWA LR 187.

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parliamentary debate should not be tendered in evidence in a court or any other body and (b) no statement made in a parliamentary debate, or by any person to a parliamentary committee, should be subjected to "questioning" or "impeaching" in "any court or place out of Parliament" .160 The scope of this last prohibition requires elaboration, not leasl because its effect has, it would seem, been significantly enhanced in relation to the Commonwealth Parliament by the enactment of s 16(3) of the Parliamentary Privileges Act 1987 (Cth). In Australia (both at common law and under this Act), England and New Zealand its impact on defamation claims has recently provoked sorne important and controversia! decisions. At common law, it is c1ear that where a Member of Parliament whose statement in a debate or other proceeding might be questioned or impeached in court is the defendant in a defamation action, the prohibition applies, generally to the detriment of the plaintiff s case. The point at issue here is not that the plaintiff is disabled by this prohibition from suing on the statement. As just explained, the reason why his or her suit will fail is Ihat under a separate principie of defamation law the statement will enjoy absolute privilege. The significance of the prohibition on "questioning" or "impeaching" is thal evidence of the statement made in the parliamentary proceeding cannol be introduced for any other purpose, for example, to show lhat the defendant did not genuinely believe in the truth of a defamatory statement made outside paeliament. The position when a Member of Parliament is a defamation plaintiff is less c1ear. According 10 a South Australian decision in 1990, Wright and Advertiser Newspapers Ltd v Lewis,161 the prohibition cannot be invoked in this situation in order to prevent the defendant from pleading and proving a potentially successful defence of justification, qualified privilege or faie comment. This is the case even though doing so would impugn the integrity of a statement made by the plaintiff in a parliamentary proceeding. In Prebble v Television New Zealand, 162 however, the Privy Council, on appeal from the Court of Appeal of New Zealand, disagreed with this conclusion. Lord Browne160

161 162

See eg Boulton, Erskine May's Treatise 011 the Laws. Privi/eges. Proceedings and Usages 01 Par/iament pp90-92, 145-160; Lock, "Parliamentary Privilege and Ihe Courts: The Avoidance of Conflict" (with an appendix by Lord Denning) [1985] Pub L 64. For discussion of Australian instances, see Campbell. Parliamentary Privilege in Australia (Melbourne Univ, Melbourne 1966) pp34-38; Walker, Co/!tempt o[ Par/iament and the Media. The significance of the privilege's operation in relation 10 statements rnade by witnesses who are not MPs to parliamentary committees is critically discussed in Harders. "Parliarnentary Privilege - Parliarnent versus the Courts: Cross-examinalion of Cornminee Witnesses" (1993) 67 AU 109. (1990) 53 SASR 416. [1995] 1 AC 321. This decision is criticised in Best, "Freedom of Speech in Parliament: Constitutional Safeguard or Sword of Oppression?" (1994) 24 VUW LR 91; MarshalI, "Impugning Parliamentary Immunity" [1994] Pub L 509; Leopold, "Free Speech in

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Wilkinson, delivering the Privy Council's advice, he Id Ihal the prohibition applied lo Ihis fonn of challenge 10 a stalemenl made in parliamenl, though il would not preclude tendering evidence to pro ve no more Ihan the content of such a stalement. Furthennore, since it is a privilege belonging to the relevant House of Parliamenl, a member could not waive il, either implieitly (eg through the act of suing) or by express words. He wenl on lo say Ihal in an extreme case, where, for instanee, "the whole subjecl-matter of the alleged libel relates to the member's eonduct in the House",163 the resultant injustiee to the nonmember defendant rnight be so great Ihat Ihe member's defamation proceedings would have lo be pennanently stayed. This ruling was perceived by members of Ihe Uniled Kingdom Parliament to be potenlially unfair to them. 11 led to Ihe staying of a high-profile defamation suit broughl by Neil Hamilton, a member of the House of Commons, againsl The Guardian newspaper. In consequence, a statutory right for individual members lo waive the privilege was inlroduced, as a last-minute amendment, inlo United Kingdom defamation legislation passed in 1996. 164 Ironieally, after Mr Harnillon had supplied the neeessruy waiver and Ihe stay order had been lifted, his case collapsed. The enactment of s 16 of the Parliamentary Privileges Act 1987 (Cth) has produced further complications where proceedings in the Commonwealth Parliament are involved. Section 16 confinns Ihal Artiele 9 of the Bill 01 Rights applies lo Ihe Commonwealth, in addilion to the other newly-enaeted provisions of the seclion. Section 16(3) is as follows: (3) In proeeedings in any court or tribunal, it is nOI lawful for evidenee to

be lendered or received, questions asked or slatemenls, submissions or cornrnents made, conceming proceedings in Parliament, by way of, or for the purpose of: (a) questioning or relying on the trulh, motive, intention or good faith of anything forrning part of those proceedings in Parliament; (b) otherwise queslíoníng or establishing the credibilíty, motive, intentíon or good faith of any person; or (c) drawing, or ínviting the drawing of, inferences or conelusions wholly or partly from anything fonning part of those proceedings in Parliament.

163 164

Parliamenl and lhe Courts" (1995) 15 Legal Stud 204; Harris, "Sharing lhe Privi1ege: Parliamenlarians, Defamation and Bilis of Rights" (1996) 8 Auckland U L Rev 45. Prebble [1995] 1 AC 321 at 338. Defamation Act 1996 (UK) s13. The seclion also permits waiver when lhe MP is a defendant. For critical cornrnents, see Williams, "'Only Flattery is Safe': Political Speech and the Defamation Act 1996" (1997) 60 Mod L Rev 388.

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It has been suggested that this provision merely restates Article 9 of the BilL 01 Rights, 165 having been enaeted because a prior judicial interpretation of this Article 166 limited its operation to situations where a person might otherwise suffer criminal or eivilliability on aceount of a statement made in parliament. But this view has been disputed,167 on the footing that the language of the provision, partieularly paragraph (e), appears wider than the phrase "questioning or impeaching" in Article 9, and that in any event sI6(3), unlike the privilege emanating from Artiele 9,168 leaves no room for waiver by the Cornmonweahh Parliament. In the reeent case of lAurance v Katter,169 the Queensland Court of Appeal considered how s16(3) should operate when a member of the Commonwealth Parliament, having made defamatory statements in the Parliament about a non-member, said outside the Parliament that he had evidence to substantiate those statements. Pincus J A, treating the provision as broader than Article 9, held that, on account of the implied constitutional freedom (as set out in Theophanous and the other cases of 1994, ie prior to IAnge), it could not apply to defamation cases because of its capacity to prevent non-members from properly pursuing or defending defamation claims involving members. 170 Davies lA held that it did not apply to the facts alleged because the publication by the defendant member which was sued upon had occurred outside Parliament, and allowing evidence to be tendered as to what he previously said in Parliament would not in any way impinge on his freedom to speak within Parliament. 171 Fitzgerald P, dissenting, held sI6(3) to be valid and applicable according to its terms. ln The High Court has granted speeial leave to appeal.

Speech in Proceedings ofCourls and Tribunals In a similar fashion to privilege in parliamentary proceedings, the royal courts in England established for judges, counsel, litigants and witnesses an immunity covering anything said in court proceedings or in documents filed with relation to a court case. This forro of privilege had none of the profound constitutional resonances associated with parliamentary privilege, which probably helps to explain why iI crystallised sooner, being settled in the

165

166 167 168 169 170 171 172

Ammann Aviation Pty Ltd v Commonwealth (1988) 19 FCR 223 at 231; Prebble [1995] 1 AC 321 at 333. In R v Murphy (1986) 5 NSWLR 18. See eg Laurance v Karter (1996) 141 ALR 447 at 482-485 per Pincus JA, at 488 per Davies JA; Harders, "Parliamentary Privilege - Parliament versus the Courts: Crossexamination ofCommittee Wilnesses" (1993) 67 AU 109 al 135, 138. Prebble [1995]1 AC 321 at 335; Harders, "Parliamentary Privilege - Parliament versus the Couns: Cross-examination of Committee Witnesses" (1993) 67 AU 109 at 133-135. (1996) 141 ALR 447. At 482-486. Al 488-491. Al 451-453, 479-481.

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common law early in the seventeenth century.173 Once again, it was justified as being necessary for the efficient workings of vital organs of government. By the end of lhe nineteenth century, it had been extended at cornmon law to cover tribunals which exercised Ihe functions of a court. 174 As in the case of parliamentary privilege, this establishment of a privileged enclave of free speech was again accompanied by Ihe assumption of power to repress the freedom of speech of those who were rninded to publish critical views about its operations. 175 Such people could and, within limits, still can be punished by an appropriate court (sometimes the same court as had been criticised) for contempt of court. 176 Similarly, fTom the early 1800s onwards, the sub judice doctrine that became establíshed within the law of contempt has produced the effect that, at least while proceedings are "pending", publications which cast doubt on the case presented by parties and their witnesses, or indeed their general credibility, might be liable to penal sanctions. 177

Conformity with the Implied ConstitutionaJ Freedom The speech that occurs in parliamentary or court proceedings is thus protected not only by absolute privilege in defamation law, but also under accompanying privileges of parliament and under the law of contempt of court. It is not an overstatement to characterise such speech as not merely free speech but "especiaJly free speech". As outlined above,178 however, the political theory underlying the implied constitutional freedom of políticaJ cornmunication, harnessing notions of representative and responsible government, suggests that elected representatives should be genuinely responsible to those 173 174 175 176

177

178

See Holdsworth, "Defamation in the Sillteenth and SevenleenLh Centuries" (1925) 41 LQR 13 al 29, citing Brooks v Montague (1606) Cro Jac 90 and subsequent cases. See Royal Aquarium and Summer and Winrer Garden Sociery v Parkinson [1892] 1 QB 431. See generally Goldfarb, The Contempt Powerchl. For brief discussíons of [he ear1y origíns of contempt of court, see Arlidge & Eady, The lAw of Contempt (Sweet and Maxwell, London 1982) paras 1.01-1.02; Australian Law Reform Commissíon, Contempt (Report No 35, 1987) paras 20-22. The important eighteenth century developments which established a summary mode of trial for contempt by "scandalisíng" (íe criticising courts or judges) are described in Hay, "Contempt by Scandalising Lhe Coun: A Political History of the First Hundred Years" (1987) 25 Osgoode Hall U 43 L The leading authorities in present-day Australian law are Ga/lagher v Durack (1983) 152 CLR 238 and Nationwide News Ltd v Wills (1992) 177 CLR 1. The latest reported Australian instance of a conviction for contempt by scandalising is In the Marriage ofSchwarvcopff(1992) 16 Fam LR 539. The early history of \he sub judice doctrine is outlined in Arlidge & Eady, The Law of Contempt paras 1.29-1.30. For a recent ilIustration of its operation in protecting litigants from public abuse, su Harkianakis v SktJlkos (Unreported, NSW Court of Appeal, 25 June 1997). At pp161-166.

eHESTERMAN - DEFAMATORY POLITIeAL SPEECH

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whom they represent and that citizens should therefore be free to engage in public criticism of public officials, including, but not limited to, Members of Parliament. Bearing this in mind, does this special "privileging" of two relatively narrow categories of speech under long-standing principIes of law genuinely "conform with" the implied constitutional freedom?

Speech in Parliamentary Proceedings i) Absolute Privilege in Defamation The principal argument initially justifying absolute privilege for parliamentary speech in England was that, if it were not free to the extent that Members of Parliament were immune from prosecution for seditious or criminal libel when they criticised the monarch, Parliarnent would inevitably be subservient to the Crown. The dangers of royal retaliation against members who expressed opinions which the monarch did not like were panicularly acute during any periods, such as those of the Jacobite kings, where the judiciary was not independent from royal influence. Crystallisation of this form of parliamentary privilege in Article 9 of the Bill of Righrs was thus an important political vietory for the English Parliament, marking a major step in the long transition from an absolute to a constitutional monarchy. Its significance in this regard has given it a special symbolic strength. Nowaclays, the availability of absolute privilege in a wide range of contexts, including but not limited to parliament, is justified on broader and more overtly functionalist grounds than that of confirming the supreme authority of parliament as against the executive. Put briefly, absolute privilege is said to be a matter of "inherent necessity",179 essential to enable parliaments, as also the eourts and other high-ranking officials and institutions of government within a narrow range, to funetion effectively. Without it, discussion and debate would be unaceeptably inhibited. 180 It is argued at times that parliamentary privilege in defamation law acts in aid of the democratic principies underlying the implied freedom of political communication in so far as it provides absolute immunity for individual members to use parliament as a fornm in which to raise allegations of corruption, inefficiency etc against government ministers oc bureaucrats. 181 This line of reasoning was indeed endorsed by the High Court in Lange. The Court's judgment identifies s49 of the Constitution, whereby the par1iamentary privileges enjoyed by the English House of Cornmons are conferred on the Commonwealth 179 180

181

This phrase is used, for instance, by Zelling eJ in Australian Broadcasti/lg Corporatio/l v Chattenon (1986) 46 SASR 1 al 18. See eg Gibbons v Duffell (1932) 47 eLR 520 al 528 per Gavan Duffy eJ, Rich and Dixon JI; Mann v O'Neill (1997) 145 ALR 682 al 686 per Brennan eJ, Dawson, Toohey and Gaudron JI, at 692-694 per McHugh J (dissenting), al 706-707 per Gurnrnow J, al 721-722 per Kirby J. See eg Edgeworth & Newcity, "Polilicians, Defarnation Law and lhe 'Public Figure' Defence" (1992) 10 WII' in Contexl 39 at 52.

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Parliament until the Parliarnent declares otherwise, as one of the constitutional provisions which "provide for a system of responsible ministerial government" .182 It is less c1ear, however, whether an absolute right for individual Members of Parliament during parliamentary proceedings to make defamatory statements, even with evident malice, about any person al all sits comfortably with the nolions of popular sovereignty and the responsibility of parliaments to the people. In this respect, rnembers seem to occupy a privileged position vis-a-vis any citizens whom they attack in parliamentary debate, rather than being accountable to them and their feIlow-citizens. This special favouring of Members of Parliament is, however, weakened by three factors. First, as already mentioned,I83 sorne Houses of Parliament pennit any citizen whose reputation is attacked by a member in a parliamentary debate to make a reply within the same House of Parliament. Secondly, a citizen so defamed, along with any media organisations that report the attack, may c1aim qualified privilege if the member is defamed in any published reply. Thirdly, members who overtly abuse the privilege can be disciplined by the Speaker or their party leader, 184 or can be voted out by the electors at the next election. The possibility of repercussions such as these, even if they do not always eventuate in practice, provides sorne measure of accountability. When all these factors are taken into account, absolute privilege for defarnatory statements in parliamentary proceedings, when considered alone, appears compatible with, and in sorne respects lo promote, the objectives of lhe implied constitutional freedom. The facl that it granls 10 Members of Parliament a distinclly greater leeway 10 defame than other defendanls may c1aim seerns warranted by virtue of the argument thal parliament needs uninhibited freedom of speech to function effectively. But it is important that Australian parliaments should mitigate the potential injustice inflicted by absolute privilege on ordinary citizens through extending the practice of giving any person defamed during parliamentary proceedings a right of reply in those proceedings or in Ihe parliamentary record. 18S

182 183 184

185

Lange (1997) 145 ALR 96 at 105.

Al p182. In 1995, the current Premier of NSW, when Opposition Leader, removed a Member of the Legislative Council from his Shadow Cabinet because he believed Ihat in the course of a speech in lhe Council she had abused parliamentary privilege by accusing a member of the public of serious criminal offences. Late in 1997, an MLC' s allegation of a "paedophilia cover-up" provoked the establishment of a special commission of inquiry and her own expulsion from her pany. As recommended by lhe NSW Law Refonn Commission in Defamatioll (Repon No 75, 1995) para 11.27.

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ii) "Defamatory Contempts" of Parliament The accompanying privilege empowering parliaments to treal public crilicism of their activities or their members as contempt of parliament has, however, a very different starting-point. This is the distinctly absolutist notion that public respect for, indeed deference to, individual s and institutions wielding state power should be compeIled by law. Just as medieval monarchs in England, in the days before parliamentary free speech was recognised, sought to protect their e1evated status as absolute rulers by punishing any members of the nascent English Parliament who criticised them, Parliament created its own privileges in order to protect its authoritative status by punishing any person who criticised it or questioned what was said in its debates. Paradoxically, it did so in the name of free speech. While this absolutist view of the relationship of rulers to subjects is no longer political orthodoxy, relics of its several centuries of dominance still remain. 186 They are discernible in the power, still theoreticaIly available to sorne Australian parliaments,187 to punish as "defamatory contempt" the publication of material "retiecting on" a House of Parliament. As was emphasised in 1984 in the Report of a Joint Select Committee of the Commonwealth Parliament,188 this is in direct conflict with democratic principies of free speech, particularly in view of the protection given to members by Ihe defence of absolute privilege. Undoubtedly, it is not in conformity with the implied constitutional freedom of polítical communication. A law subjecting critics of a state authority to criminal punishment is, in substance, a law of seditious libe\. The American notion that the protection of citizens from any such law is a "central" function of the First Amendment has clear paraIlels in the High Court's exposition of this freedom in Australia. 189 The Commonwealth Parliament has got rid of the notion of defamatory contempts by enacting s6 of the Parliamentary Privíleges Act 1987. In view of the High Court's recognilion, in Lange, of the "integration" of Cornmonwealth, State and Territory political matters, it is at least arguable that the "chilling" of public criticism of sorne State and Territory Parliaments and politicians caused by retention of this branch of contempt of 186 187

188 189

See eg Goldfarb, The Contempt Power pp280-308; Edgeworlh, "Benealh Contempt" (1983) 8 Leg Serv Bull 171. The Parliaments oC Queensland, South Australia, Victoria, Western Australia and the Northern Territof)' retain this power because they have broadly the same contempt powers as the English House of Commons. Before 1987, Ihis was the position for lhe Commonwealth Parliament, by virtue oC s49 of the Constitution, but s6 of the Parliamelltary Prjvileges Act 1987 (Cth) specifically abolished lhe calegory of "defamatory contempt". The Parliaments of New Soulh Wales and Tasmania have only ever had the COnlempt powers attributable to "subordinate" parliaments. which do not elttend to punishing this form of contempl. See generally Walker. Law of Journalism ill Australia (Law Book Co, Sydney 1989) paras 2.5.04 - 2.5.05, 2.5.10. Aust, Parl, Joint Select Committee on Parliamentary Privilege. Final Report, (PP 219. 1984) para 6.15. See pl64 aboye.

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parliamenl is incompatible with the implied freedom. The High Court mighl nOI, however, accept this argument, because it acknowledges the constitutional independence of parliamenls in such matters 190 and it might well deem the operation of principies of conlempt of parliament in relalion to State parliaments lo be a "discrete State issue", beyond the reach of Ihe implied freedom. 191 The appropriate bodies lo do away with Ihe archaism of "defamatory contempts of parliament" are the relevant parliaments themselves. iii) Privilege Prohibiting "Questioning" or "Impeaching" As iIlustrated above,ln the parliamentary privilege, deriving from Article 9 of the Bill of Rights 1689, which purports to prevent anything said during proceedings from being "questioned" or "impeached" in "any court or place out of Parliament" may seriously affect the conduct of defamation proceedings between a Member of Parliarnent and a nonmember. Jt may disadvantage a plaintiff non-member, by precluding evidence of things said by the Member in parliamentary proceedings being tendered in court for the purpose of establishing a cause of action based on a publication outside Parliament, or of rebutting a defence (for example, through proving ma1ice). It may similarly disadvantage a nonmember who is defending proceedings brought by a Member, where the material in question is necessary to mount a defence. If the disadvantage in the laner situation is excessive, it may give grounds for a stay of the proceedings, thereby producing an unfair result for the member. The lalter two situations will not occur if, as held in Wright and Advertiser Newspapers Ltd v Lewis, 193 the privilcge must be taken to have been waived by the Member initiating proceedings, or if, as is now the case in the United Kingdom. legislation has been passed permitting such waiver. 194 But on any view of the overall position, the potential for conflict between the privilege and the principies of freedom of speech on political malters is obvious. The potential is enhanced in cases involving the Cornrnonwealth Parliament if sI6(3) of the Parliamentary Privileges Act 1987 (Cth) does indeed have a wider field of operation than Artiele 9. In the Privy Council's judgment in Prebble, Lord Browne-Wilkinson conceded that this

conflict existed: Their Lordships are acutely conscious (as were the courts below) that to preelude reliance on things said and done in the House in defence of Iibel proceedings brought by a member of the House could have a serious impact on a most important aspect of freedom of speech, viz, the right of the public to commenl on and criticise Ihe actions of Ihose elected lo 190 191 192 193 194

See eg R v Richards; Ex parte Filzpatrick and Browne (1955) 92 CLR 157. The quotation is from Levy (1997) 146 ALR 248 al 253 per Brennan Cl See p 162 aboye. AlppI84-186. (1990) 53 SASR 416. Defamation Act 1996 (UK) s13.

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192

power in a democratic society: see Derbyshire County Council v Times Newspapers Ltd [1993] AC 534. If the media and others are unable to eSlablish lhe truth of fair criticisms of the conducl of lheir elecled members in the very performance of their legislative duties in the House, the results could indeed be chilling to the proper moniloring of members' behaviour. But lhe presenl case and Wright's case, 53 SASR 416 illustrate how public policy, or human rights, issues can conflict. There are three such issues in play in these cases: first, the need to ensure that the legislature can exercise its powers freely on behalf of its electors, with access to an relevant information; second, lhe need to protect freedom of speech generally; third, the inlerests of justice in ensuring that aIl relevant evidence is available to the courts. Their Lordships are of the view that the law has long been settled that, of these three public interests, the first must prevail. I95 The judgment asserts that this ordering of priorities is justifiable on two main grounds. First, Members of Parliament and witnesses appearing before parliamentary committees must have no inhibitions whatsoever against speaking fully and freely.J96 Secondly, there is a broader principie of separation of the two branches of govemment.l 97 The judiciary and the legislature must carefully refrain from examining and passing judgment on each olher's affairs. In determining the appeal in Laurance (for which it has granted special leave), the High Court will have an opportunity to pronounce on these issues. One of the fundamental questions before the Court will be whether the two broad grounds of justification put forward by Lord Browne-Wilkinson for a broad interpretation of the privilege are appropriate in Australian jurisdictions, given that implications from the "text and structure" of the Commonwealth Constitution create a competing constitutional principie of freedom of political communication. This broad interpretation does seem unduly to threaten the leeway given to citizens, under the implied freedom, to criticise their elected representatives in arder that electoral choices should be genuinely free, as required by ss7 and24 of the Constitution. So far as lhe Commonwealth Parliament is concemed, the Court cannol ignore the direct support given to parliamenlary privileges of all kinds by s49 of the Constitution. But in view of the uncertainties that have developed in judicial interpretation of the seo pe of the privilege against "questioning" or "impeaching", both in its Bill of Rights form and under sI6(3) of the Parliamentary Privileges Act, the Court can legitimately make rulings whieh accommodate this parliamentary privilege with freedom of speech on political malters in a more sympathetie way than the Prebble rulings did. Three specific rulings would 195 196 197

[1995]1 AC 321 at 336. At 334. Al 332.

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significantly promote confonnity between this branch of parliamentary privilege and the implied freedom. The first would be a ruling confinning, in opposition to Prebbie, Ihe correctness of the South Australian Supreme Court's decision in Wright v Lewis that a Member of Parliament who sues a non-member for defamation cannot c1aim the benefit of the privilege against "questioning" or "impeaching". In line with the methodology favoured in Lange, this deterrnination is best reached as a matter of common law and simultaneously designated as being in confonnity wilh the implied constitutional freedom. The second would be an endorsement of the conclusion of Davies lA in Laurance that the privilege do es not preclude a non-member plaintiff from adducing evidence of the content of a member's defamatory statement in Parliament where the cause of action is based on a publication adopting it outside Parliament. A third ruling which would pro mote "conformity" would be that s 16(3) of the Parliamentary Privileges Act 1987 should be interpreted as narrowly as possible, at least in its application to defamation proceedings. lt should not make things more difficult for non-members who are parties to such proceedings than Artide 9 of the Bill 01 Rights does.

Speech in Proceedings 01 Courts and Tribunals The reeoneiliation of absolute privilege in court proceedings with freedom of political discussion is more straightforward. The need for all participants, operating within a framework of adversary trial procedures, lO perform their roles without any fear of defarnation c1aims can be fairly readily established. 198 It is also importanl to avoid the "reagitation by diseontented parties of decided cases after the entry of final judgment",199 other Ihan by the established procedures for appeal or other review. The very faet that these procedures are adversary creates a likelihood that a response to any defamalory allegalion will be forthcoming from the defamed person, or someone on his/her behalf, within the sarne proceedings. The capacily of a judge or magistrate 10 control the course of proceedings is dislinctly grealer than that of a parliamentary Speaker. 2OO Furthermore, in contrast lo the situation with parliamentary privilege, permitting the imperatives of courtroom proceedings to take precedence over individual reputations does not seem to infringe any general principie of political accountability.

198

199 200

For judicial assertions lo lhis effect, see Henderson v Bromhead (1959) 4 H & N 569; Dawson v Lord Rokeby (1873) 8 LR 4 QB 255; Mann v O'Neill (1997) 145 ALR 682 al 686 per Brennan CJ, Dawson, Toohey and Gaudron 11, al 707 per Gummow J, al 715, 722 per Kirby J. Mann (1997) 145 ALR 682 at 707 per Gummow J. For a judicial asserlion lO lhis effecl, see Roy v Prior [1971] AC 470 al 480 per Lord Wilberforce. cited in Mann (1997) 145 ALR 682 al 722 per Kirby 1.

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The additional protection given to judges, courts and courtroom speech by the common law of contempt by scandalising raises different issues. The first issue lO consider is whether publications which constitute contempt by scandalising might fall within the scope of the implied freedom of political communication. As outlined above,201 the Lange judgment invokes principies of representative and responsible govemment, as embodied in key sections of the Constitulion, to reach the conclusion that the implied freedom covers communication about malters which are or might be relevant lO the operations of the legislature and the executive branch of government. Nothing is said, however, about the judiciary. There is of course significant executive involvement in such mattees as the operation of courts, the appointmcnt of judicial officers and the hearing of complaints against them. This is indeed illustrated in the very recent decision of the High Court in Mann. But there exists also a principie of judicial independence, preventing judicial officers from being directly responsible to either the executive or the legislature. In the light of these considerations, it is al least arguable that publications which impugn the performance of courts or judges mighl nOl be prolecled by lhe implied freedom, particularly if the courts oc judges of a State were in volved. If howevec it were subsequently held by the High Court, as was almost certainly the law

before Lange, that such publications were after all within the scope of the implied freedom, the Court would still probably rule that the common law of contempt by scandalising was constitutionally valido There are strong hints to this effect in the High Court's judgments in Nationwide News Pty Ltd v WillS,202 and the deference paid in Lange to traditional common law restrictions on freedom of speech reinforce this conclusion. 203 Yet this aspect of the protection of courts and courtroom speech seems al odds with the basic democratic values underpinning the freedom. 204 The law of contempt by scandalising has in fact been held by the High Court of Ontario to contravene the guarantee of freedom of express ion contained in Article 2(b) of the Canadian Charler of Rights and Freedoms.205 There is an unhappy contradiclion between the High Court's apparent endorsement of the law of scandalising despite the existence of the conslitutional freedom and its apparent endorsement, as being in line with this freedom, of the recent decisions in 201 202 203 204 205

At ppI61-162. (1992) 177 CLR 1; see too Theophanous (1994) 182 CLR 104 al 187 per Deane J. In Mann, however, Kirby J used the desirability of Iimiling the use of contempt by scandalising as a reason for not extending the scope of absolule privilege in cases involving defamatory criticism of judges: (1997) 145 ALR 682 at 717. See eg Chestennan, Public Crilicism of Judges (Australian Law Reform Commission, Contempt Research Paper No 5, Sydney 1984); Walker, "Scandalising in lhe Eighties" (1985) 101 LQR 359. R v Kopyto (1987) 47 DLR (4th) 213. By contrast, the European Court of Human Rights held in 8arford v Denmark (1989) 13 EHHR 493 that the publication of criticism of the High Court of Greenland, of a type that might well constitUle "scandalising" under contempt law, could be punished despite the guarantee of freedom of expression in ArticIe 10 of the European Conventioll on Human Rights.

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New South Wales and the United Kingdom that elected local authorities may not in any circumstances sue for defamation. 206 The contradiction cannot entirely be resolved by saying that contempt law prolects an institution (the courts) while defamation law protects individuals,207 or that local authorities can be distinguished from courts because their members are elected by popular vote.208 Tbe High Court in Nationwide News took pains to indicate that criticism which is true or which constitutes fair comment does not amount to contempt. 209 But a would-be critico facing the onu s of establishing these defences, may well be deterred into silence. Accordingly if, as suggested above,21O an underlying tenet of the implied freedom is that laws (such as the law of seditious libe\) which repress free public criticism of state institutions are not compalible with the making of free electoral choices. abolition of the law of contempt of court by scandalising. even if not fonnally mandated by constitutional considerations, would certainly promote the basic philosophy underlying the implied freedom of polítical communication. Other Speech Protected by Absolute Privilege

Arguments on grounds of effectiveness can be raised in support of the remaining statutory categories of absolute privilege, particularly in so far as they protect statements made during proceedings in tribunals and other bodies analogous to courts. The privilege for communications between "high officers of state" relating to "acts of state" is perhaps difficult to justify as an absolute rather than a qualified privilege, but it seems scarcely e"ver to be invoked. 211 An important feature of the High Court's treatment of absolute privilege in Mann 212 is its insistence that this category of privilege should not be extended at cornmon law. Tbe same view has recently been urged in relation to extensions by statute. 213 Tbe foregoing review of the origins and impact of absolute privilege suggests that this view is entirely compatible with the aspirations of the implied freedom of polítical communication.

206

207 208 209 210 211 212

213

Ballina Shir-e Council v Ringland (1994) 33 NSWLR 680; Der-byshire COUIlt)' Coullcil v Times Newspapers Lrd [1993) Ae 534. See fn31 aboye. See eg Theophanous (1994) 182 eLR 104 al 187 per Deane J. lhis was seen as imponant by GIeeson eJ, one of lhe two majority judges in Bal/ina Shire Council v Ringland (1994) 33 NSWLR 680 al 691. (1992) 177 eLR 1 al 31-33 perMasoneJ, 38-39 perBrennan J, 90-91 per Dawson J. At pl64. See NSW Law Reform eonunission, Defamarioll (Report No 75, 1995) paras 11.11- 11.13. (1997) 145 ALR 682 at 686-687 per Brennan eJ, Dawson, Toohey and Gaudron JI, at 706· 707 per Gurnrnow J, al 725-727 per Kirby 1. AH these judges cited strong slatements to the same effect in Gibbons v Duftell (1932) 47 CLR 520 al 528 per Gavan Duffy eJ, Rich and Dixon n, and al 734 per Evatt J. NSW Law Reforrn eommission. Defamation (Report No 75, 1995) para 11.9.

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FA IR REPORT PRIVILEGE General Nature At common law, "fair repart privilege" is the privilege attaching to fair and accurate reports of parliamentary214 and judicial proceedings which are open to the public 215 and of the contents of public documents which are kept on a public register pursuant to statute and open to public inspection. 216 The privilege covers any document which is used or "deployed" in open court proceedings, unless the court has ordered that it not be available for publication. It does not extend to documents which are filed but not so "deployed" unless, possibly, members of the public are perrnitted to inspect the court file. 217 Numerous statutory elaborations extend this privilege to reports of the public proceedings of, and documents and reports issued by, commissions, tribunals and a host of other public agencies. 218 There is also scope for judges to invoke the basic doctrines of common law qualified privilege so as to enlarge the range of official and semi-official proceedings which may be reported under privilege, eilher lo the general public or to specified interestgroups.219

214 215

216

217 218 219

For a recent discussion of the scope of parliamentary documents covered by this privilege, see Bruton v Estate Agents Licensing Authority [1996) 2 VR 274 al 300-307. If the parliamentary body or court is c10sed to the public, or (it would seem) if reporting has been prohibited by a valid order, the privilege does not apply. If the relevant statutory power is broad enough, such an order may on occasions be made with a view to protecting the reputalion of someone involved in the proceedings: see eg Mirror Newspapers Lrd v Waller [1985] 1 NSWLR 1. Such common law powers as exisl are nOl sufficiently broad: Raybos Australia Pry Ltd v Iones [1985] 2 NSWLR 47. Searles v Scarlerr [1892] 2 QB 56, as interpreted in Gobbart v West Austmlian Newspapers LId [1968] WAR 113 al 120. See too Little v Law lnstitute of Victoria (No 3) [1990] VR 257 al 287-288; Smith v Harris [1996) 2 VR 335 at 348-351. Smirh v Harris [1996] 2 VR 335; see loo Litlle v Law IlIsritute of Victoria (No 3) [1990] VR 257 at 287-288. See eg Parliamentary Privileges Act 1987 (Cth) slO; Defamarion Act 1974 (NSW) ss24-26 and Schedule 2, paras 2, 3; COlIstitutioll Act 1975 (Vic) s74; Wrongs ACI 1958 (Vic) s3A. Por recent examples, see Bruton v Estale Agents Licensing AUlhority [1996] 2 VR 274 (reports of disciplinary proceedings inc1uded in Annual Report of Estate Agents Board held privileged so long as only published 10 specified groups having a special interesl in lheir contents); Homestead Award Winning Homes Pty Ltd \1 South Australia (Unreported, SA Supreme Court. Prior J, 1S July 1997) (reports of proceedings of Commercial Tribunal held privileged). See further discussion al pp203-204 below. In lhe USA, the numerous inslances of addilional fair repon categories being established by case law (as to which see eg Elder, The Fair Report Privilege (Butterworths. Sloneham 1988) pp21-146) are expansions of the privilege in its own right rather than applications of the general principies of common law qualified privilege. See eg the comparative discussion in Kyu Ho Youm, "Fair Report Privilege versus Foreign Government Slatements: United States and English Judicial Interpretations Compared" (1991) 40 Inl'[ & Comp LQ 124 al 131135.

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To attract fair report privilege, the report must be made in good faith. This requirement does not imply Ihat the publisher should believe the relevant defamatory imputations to be true. They may indeed be thought or even known to be untrue. It is the motive for publication only that must be legitimate. 22o The position taken by the law is that the relevant public policy considerations justify dissemination of the fact that the imputations were made within the specijied official proceedings or document, which in Ihis context is deemed not lo be the same as an outright conveying of the defamatory imputation itself.221 despite the resultant damage to the plaintiff s reputation. There is however a requirement in Australian and English law that the report be in fact substantially accurate. at leas! as a summary. It is not enough Ihal Ihe publisher believed, even if on reasonable grounds. that substantial accuracy had been achieved. 222 In America, the common law rule to this effect has be en substantial1y diluted by the constitutional requirement, stemrning from Sullivan and Gertz, that both public and private plainliffs rnust show the defendant to have been. in sorne sense. at fault. 22J

Origios and Development Nowadays, the idea that the media and other reporters of parliamentary or court proceedings should not encounter liability through performing this reporting function is more or less treated as self-evident. But this has not always been the case. The right to report parliarnentary proceedings without legal repercussions is in fact of comparatively recent origino Not untillate in the eighteenth century did it become safe for anyone without specific statutory aUlhority to report the proceedings of the Parliarnent al Westminster. 224 Unauthorised reports could be deemed breaches of parliarnentary privilege and punished accordingly. In 1834, two years afler the first Reform Bill, it was held in the leading case of Stockdale v Hansard2 25 that a resolution by the House of Cornrnons that an official report which had been presented to it (but which did not relate to or form part of its own proceedings) should be published did not protecl the publisher from 220 221 222

223

224

225

See eg Salmon v /SQllC (1869) 20 LT 885; Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58. For an early English instan ce of this kind of distinction being drawn. see Bell v Byme (1811) I3 East 554. See eg Bruton v Estate Agents Licensing Authority [1996]2 VR 274 at 309; Chakravati v Advertiser Newspapers Ltd (1996) 65 SASR 527. For an illustration in the analogous field of sub judice contempt, see R v Pearce (1992) 7 WAR 395. See generally Elder, The Fair Repon Privi/ege pp221-280, 333-358; Oliver, "Parliament and lhe Press: A Right to be Reported?" in Kingsford-Smith & OIiver (eds), Economical with Ihe Trulh: The Law and the Media in a Democralic Society pp43-55. See eg Siebert. Freedom olthe Press in England. 1476-/770 ehl7; Boultan, Erskine May's Treatise on the Laws, Privileges. Proceedings and Usages 01 Parliament pp86-89; Kyu Ho Youm. "Fair Report Privilege versus Foreign Government Statements: United States and English Judicial Interpretations Compared" (1991) 40 Int'l & Comp LQ 124 al 126-130. (1834) 9 Ad & E 1.

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liability for defamation, because the resolution was legally ineffective. 226 Joumalists were not officially given a place in the parliamentary gallery until 1803, and a special stand was not built for thero until 1834. Habermas treals the gradual acceptance of reporting and public criticisro of parliamenlary proceedings as a key element of lhe growlh of a public sphere in Britain that "functioned in the poli tic al realm" .227 The wheel lumed full circle in the course of lhe Spycalcher saga in Britain in the late 1980s. When the Attomey-General instigated proceedings to restrain, on grounds of national security, the publication of material which included accounts of parliamentary debates, sorne Members of Parliament asserted thal this would be a breach of parliamentary privilege because Parliament had a positive right to be reported. 228 Specifically in relation to defamation, the case of R v Wrighr 229 was significant for deciding lhat a prosecution íor criminal libel relating lo material in a published account of a House of Cornmons report could be defended on grounds of privilege. BUl lhe importanl ruling that fair and accurate reports of parliamentary proceedings enjoyed qualified privilege in the law of civil defamation did not occur until Wason v Wa/ter 230 in 1868. This was a major step in the developmenl of a democratic tradition of public scrutiny oí an elected parliament. As wilh absolute privilege for lhe speakers themselves, the development of qualified privilege for reports oí what was said in court proceedings was more rapid than in the case of parliamentary proceedings. The principIe ·that "justice should be open" has its roots in medieval times,231 no doubt partly because the king's justices on circuil were the mosl visible sign of royal authority in local communities and if they functioned behind closed doors they would leave a weaker impression of power and authority.232 It would seem that by the end of the eighteenlh century, in the case of Curry v WaLter,233 the nOlion of a 226 227

228 229 230 231 232 233

This situation is now covered by absolute privilege under statute: see pl81 aboye. Habermas, The Structural Transformation of the Public Sphere: An lnquiry into a Category of Bourgeois Society (Polity Press, Cambridge 1989) pp58-67. For an elaboration of the concept in an American context, see eg Post, uThe Constitutional Concept of Public Discourse: Outrageous Opinion, Democratic Deliberation and Hustler Magazine v Falwelf' \03 Harv Law Rev 601 (1990) at 626-646. See Oliver, "Parliament and the Press: A Right to be Reported?" in Kingsford-Smith & Oliver (eds), EconomicallVith the Truth: The Law and the Media in a Democratic Society pp43-55. (1199) 8 D & E 293. (1868) LR 4 QB 73. For a brief historical discussion, see Raybos Australia Pty Ltd v fones [1985] 2 NSWLR 47 al 50-55 per Kirby P. See eg Anderson, Passages from Antiquity to Feudalism (Verso, London 1974) ppI47-153. (1796) 1 Bos & Pul 525. For brief accounlS of lhe developmenl of lhe privilege 10 report court proceedings in England and the USA, see Fraser, "The Privileges of the Press in Relation 10 the Law of Libel" (1891) 7 LQR 158; Elder, The Fair Report Privilege ppl519; Kyu Ho Youm, "Fair Report Privilege versus Foreign Government Stalements: United

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qualified priyilege for repons of coun proceedings was eslablished. In the view of the legal historian Sir William Holdswonh, Ihis might haye happened earlier if the concept of a qualified privilege, a privilege defeasible on proof of malice, had been quicker to crystaIlise. 234 At first sight, fair report privilege seems to be a derivative or ancillary privilege. The qualified privilege, for inslance, to publish fair and accurate reports of proceedings in parliament or in a court would seem lo have been derived from, or at least to be "related to",235 the absolute privilege enjoyed by the participants (eg Members of Parliament, witnesses) in those proceedings. This line of thinking does not, however, adequately explain why the presence of malice, or lack of good faith, should destroy the fair report privilege. If it were merely an extension of Ihe "primary" privilege, this qualification on its operation would seem illogical. 236 Furthermore, there are or haye been situations, for example an important English statutory extension of fair report privilege for newspapers in the late nineteenth century ,237 where a fair report enjoys privilege but the speakers being reported do nol. Fair report privilege in fael resLs on distinctly different poliey grounds than its relationship to recognised categories of absolute priyilege. These are particularly significant for the present discussion. In the literature on fair report privilege in America,238 where the underlying policy issues have been more fully discussed Ihan in Australia or England,

234 235 236 237

238

States and English Judiciallnterpretations Compared" (1991) 40 Im'l & Comp LQ 124 at 126-130; Saef, "Neutral Reportage: The Case for a Statutory Privilege" (1992) 86 Nw U L Rev 417 at422-425. Holdsworth, "Defamation in the Sixteenth and Seventeenth Centuries" (1925) 41 LQR 13 at29-30. This is the rather guarded phrase used in Nelson, Libel in News of Congressional Investigating Commitlees (Univ of Minnesota, Minneapolis 1961) pp4-5. This is in essence the view taken by Cockbum eJ in Wason v Walter (1868) LR 4 QB 73 at 84-85, commenting on dicta of Kenyon eJ, treating the two privileges as linked, in R v Wright (1799) 8 D & E 293 at 296. Under 54 of the Law of Libel Amendmenl Act 1888 (UK) (replacing an earlier version, enacted in 1881, which reversed lhe decision in Davison v Duncan (1857) 7 El & BI 229), a "fair and accurale report published in any newspaper of the proceedings of a public meeting" was entitled lo privilege unless it was published maliciously, or it included blasphemous or indecent maller, or the newspaper, despite a requesl, failed or refused to publish a "reasonable letter or statement by way of contradiction or exp1anation of such report". There was however no general qualified privilege for the speakers at such meelings, as was confirmed by ¡he High eourt of Australia sorne 50 years later in Lang v Willis (1934) 52 eLR 637. See Fraser, "The Privileges ofthe Press in Relalion lo me Law ofLibel" (1891) 7 LQR 158. See eg Elder, The Fair Repore Privilege pp3-14; Nelson, Libel in News of Congressional Investigating Committees pp3-16; Sowle, "Defamation and the First Amendment: The Case for a Conslilulional Privilege of Faír Repon" (1979) 54 NYU L Rev 469 al 483-487; Lee v Dong-A libo 849 F 2d 876 at 878-879 (1988).

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three overlapping justifications for the privilege are put forward, known respectively as the "agency", "supervisory" and "informational" rationales. First, it is argued that where a media publisher reports official proceedings, it is simply the agent of the public in disseminating material which members of the public could ascertain for themselves by attending the relevant proceedings. 239 This presupposes that the proceedings are open to the publico This is in general a prerequisite of the operation of the privilege in Australia,240 though in sorne of the early English cases establishing the scope of the privilege 241 it was not a determinative factor. The agency argument has been criticised on the ground that the damage to reputation caused by widespread dissemination of the relevant defamalory matter greatly exceeds what can occur within the forum where it is first uttered. 242 The second justification is that reporting of proceedings is essential to enable the public to supervise adequately the performance of the members of parliament, judges and other public officials in their official capacities. As exemplified in the following short quotation, the judgment of Cockburn el in Wason v Walter contains an eloquent exposition of this rationale: Where would be our confidence in the government of the country or in the legislature by which our laws are framed, and to whose charge the great interests of the country are cornmitted, - where would be our attachment to the constitution under which we live, - if the proceedings of the great council of the realm were shrouded in secresy and concealed from the knowledge of the nation?243 The third justification seeks to meet the objection sometimes raised in relation to the second that mueh of what is reported from a courtroom, a parliamentary ehamber or from other proeeedings to which the privilege applies mi;lY not actually be necessary for the effective scrutiny of official aetion. It is to the effect that the public has a general interest in obtaining information going beyond what is needed for such scrutiny. The limits of the "public right to know" must not be defined too narrowly because, in the last resort, it is for the public, in whom sovereignty resides, to determine what are issues of public interest and

239 240 241 242 243

This reason for maintaining Ihe privilege was implicit in Curry v Walter (1796) 1 Bos & Pul 525 and was spelt out by the House of Lords in Macdougall v Knight (889) 14 App Cas 194 al 200. See eg the regular repetition of the word "public" in the Defamation Aet 1974 (NSW) Schedule 2, para 2. See eg Pureell v Sowler (1877) 2 CPD 215. See eg Venn v Tennessean Newspapers Inc 201 F Supp 47 (M D Tenn 1962) al 57, ciled in Sowle, "Defamation and lhe First Amendment: The Case for a Constitutional Privilege of Fair Report" (1979) 54 NYU L Rev469 al 484 fn77. (1868) LR 4 QB 73 at 89.

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concern. The reasons why an individual citizen may want to know what has gone on in official proceedings may lie entirely "outside the mainstream".244

In English case law, sorne other arguments in support of fair report privilege can be found: for example, that court proceedings are under the control of the presiding judge, 245 or that it may be beneficial to the defamed plaintiff to have the allegation made known to the public as one made in a courtroom rather than continuing to circulate as a rumour. 246 But, generally speaking, the three rationales just outlined constitute the law's justification for fair report privilege. Conformity with Implied Constitutional Freedom The requirement that, to aUract faír report privilege, a report must be made in good faith is significantly more lenient to the defendant than the requirements of "reasonableness" and absence of mal ice in the context of common law qualified privilege, as reforrnulated in Lange so as to "conforrn with" the implied freedom The most significant feature of the "good faith" requirement is that the reporter need not believe that the defamatory imputations reported are true. He or she may indeed know or strongly suspect that lhey are falseo This makes fair report privilege especially attractive to defendants. The three rationales - "agency", "supervisory" and "inforrnational" - put forward for this privilege conforrn c1osely, however, with the principIes underlying the implied freedom. Their correlation with these principIes can be demonstrated by drawing attention to the provenance of the following sentence in a judgment: How could the cornmunications between the representatives of the people and their constituents, which are so essential to the working of the representative system, be usefulIy carried on, if the constituencies were kept in ignorance of what their representatives are doing? This sentence does not, as one might think, come from Theophanous or Lange or any of the other recent High eourt cases establishing and applying the implied constitutional freedom. It is instead from the judgment of eockbum eJ in Wason v Walter,247 the leading English case of 1868 which held that fair report privilege should apply to parliamentary proceedings. Its emphasis on the importance of public being aware of government and political maUers, as a necessary prerequisite of the operation of

244 245 246 247

See Bech, "Isolating the Marketplace of Ideas from the World: Lee v Dong-A libo and the Fair Repon Privilege" (1989) 50 U Pitt L Rev 1153 al 1160-1161. Davison v Duncan (1857) 7 El & BI 229 at 231. Webb v Times Publishing Co Ltd [1960]2 QB 535 al 561. (1868) LR 4 QB 73 al 89. This passage immedialely follows the one quoled al p200 aboye.

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representative government, mirrors the special prominence given to this consideration in Lange. 248 In addition, the argument in the "informational" rationale that the subject-matters which the "public right to know" should embrace must not be rigidly detined has clase parallels in the High Court's acknowledgment that tbe subject-matters wbich might belong within "political communication" cannot be categorically identitied. 249 These factors justify the absence of any requirement in fair report privilege that the defendant should believe the matter published to be true or that the publication should be "reasonable", even though qualified privilege, as redesigned to conform with the constitutionaI freedom, contains these requirements. The important point, as already stated,250 is that the reporter' s function in reporting a defamatory allegation is not to make the allegation on bis or her own bebalf, but solely to report the faet that it was made witbin the relevant officiaI proceedings or doeument. What adjustments, if any, to fair report privilege might seem appropriate, following the decision in Lange, to bring it ioto eyen closer eonformity with the implied freedom of political cornmunication? Three possibilities come to mind. The tirst, in conformity with the concept of "reasonableness" outlined in Lange,251 is that where defamatory allegations, made within proceedings or aocuments protected by absolute or qualitied priyilege and reported under faír report priyilege, provoke a response from the defamed person within the same proceedings or document, this response should al so be reported. A requirement to tbis effect would serve two interests: protecting reputation and maintaining tbe tlow of information to tbe public about tbe proceedings of, or documents emanating from, tbe relevant official body. As just mentioned, tbe latter interest received strong emphasis in tbe High Court's exposition of tbe implied freedom of political communication in Lange. Where the response formed part of the same section of proceedings or the same document as the defamatory material, omission of it in the report could indeed violate tbe requirement of substantial accuracy in the faír report itself. 252 The reasoning underlying fair report privilege is howeyer that public policy considerations justify dissemination of the ract tbat tbe relevant defamatory imputations were made within the specified official proceedings or document. This is deemed not to be the same as an outright conveying of tbe defamatory imputaLÍon itself. Tbe requirement tbat a defamed persan be giyen an opportunity to respond may well be generally justifiable, as he Id in Lange, wbere the defendant was primarily responsible for the initial damage to reputation, 248 249 250 251 252

See pp 163-164 aboye. See p162 aboye. Al p197 aboye. See p176 aboye. See p197 aboye.

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but not, it is submitted, where it did no more than report official proceedings or documents under fair repon privilege. 253 A second possibility would be to widen fa ir report privilege by treating it as sufficient for a defendant to pro ve that at the time of publication it entertained an honest and reasonable belief that it was fairly and accurately reporting a proceeding or document to which the privilege applied. This altemative to the existing requirement of actual faimess and accuracy has formed part of American defamation law for a significant period of time. 254 Its reliance on the concept of reasonableness is entirely within the spirit of both the implied freedom and the expanded version of qualified privilege. The third possible change would be to bring specifically within fair report privilege, rather than comrnon law qualified privilege, the publication of repons of statements on government and political maners by persons who possess relevant "special knowledge". In his dissenting judgment in Stephens, Brennan J in fact came close to doing this, even though he was making pronouncements with respect to common law qualified privilege. 255 This is because he proposed for this situation a significant modification of the test of common law mal ice, namely, that a media defendant would nol be deemed malicious merely because it had no belief in the truth of the statement being reported. This limiting of the grounds for defeating the privilege to lack of good faith assimilated it c10sely lo fair report privilege. 256 It also carne to resemble c10sely a form of privilege in American law called "neutral reportage". In 1977, the US Court of Appeals in Edwards v National Audubon Society lnc defined the contours of this privilege as follows:

[W]hen a responsible, prominent organization ... rnakes serious charges against a public figure, the First Amendment protects the accurate and disinterested reporting of those charges, regardless of the reporter's private views regarding their validity. ... What is newsworthy about such accusations is that they were made. We do not believe that the press may be required under the First Amendment to suppress newsworthy 253

254 255 256

In eonfonnity with this approaeh, ¡he NSW Law Refonn Commission has reeommended that plaintiffs should be able to obtain judicial decJarations of falsity, which the defendant must publicise, but that lhis remedy should not be available ir (inler alia) Ihe defendanl raises an arguable defence of fair report privilege: Dejamation (Repon No 75,1995) paras 6.2,6.16-6.20,6.22-6.24,6.38-6.43. See further diseussion at pp211-212 below. See also an earlier recommendation of the Australian Law Refonn Commission for mandatory correction orders: Unfair Publication: Dejamation and Prillacy (Report No 11, 1979) eh 11, Draft BiIl, Pan 1IJ). See p 197 aboye. (1994) 182 CLR 211 at 246-253. See discussion of the distinct concepts of malice and lack of good faith, at pp 167, 197 aboye.

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statements merely because it has serious doubts regarding their truth. ... It is equally c1ear, however, that a publisher who in faet espouses or eoneurs in the charges made by others, or who deliberately distorts these statements to launch a personal attack of his own on a public figure, cannot rely on a privilege of neutral reportage. 257 Since the Auduhon case, this privilege has been he Id to cover reports of charges made by public officials or public figures rather than just "prominent organisations", and in sorne decisions the requirement that the maker of the charge be "responsible" has not been insisted upon. 2S8 Although it was recently said to be "gaining slow but steady acceptance",259 relatively few subsequent cases have in fact applied it. 260 In one significant respect, namely, that the media defendant may entertain serious doubts about the truth of what is being reported, the defence of "neutral reportage" goes even further than the Sullivan "public figure" test in protecting the media against defamation claims by public officials or public figures. A fortiori, it confers more protection than cornmon law qualified privilege in Australia, as redefined in Lange. It has, however. been criticised 261 as insufficiently promoting First Amendment interests because of (a) the requirement that the person defamed be a "public figure" and (b) the "chilling effect" that is created if a media defendant, in deciding whether or not to publish material, has to second-guess a court's decision as to whether the source is "prominent" and "responsible". While this change in the direction of greater freedom of speech may not seem essential to achieve "confonnity" between defamation law and the implied constitutional freedom of political communication, it is entirely in line with the latter's concem for a "free flow of information" on govemment and polítical matters.

257 258 259 260

261

556 F 2d 113 al 120 (1977). See Smolla, The Law oi Defamarion para 4.14[3]. At para. 4.14[4]. A notable example is Priee v Viking Penguilllne 881 F 2d 1426 (8th Cir 1989), eert denied 110 S Ct 757 (1990). See generally Sack and Baron. Libel, Slander and Relaled Problems pp391-41O; Note, "The Developing Privilege of Neutral Reportage" (1983) 69 Va L Rev 853; Page, "Priee v Viking Penguin Ine: The Neutral Reportage Privilege and Robust, Wide Open Debate" (1990) 75 Minll L Rev 157; Saef, "Neutral Reportage: The Case for a Statutory Privilege" (1992) 86 Nw U L Rev 417. See Saef, "Neutral Reportage: The Case for a Statutory Privilege" (1992) 86 Nw U L Rev 417 at 442, eiting Barry v Time 584 F Supp 1110 al 1126 (ND Cal 1984); Levin, "Constitulional PriviIege lo Republish Defamation" (1977) 77 Colum L Rev 1266.

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STATUTORY QUALIFIED PRIVILEGE General Nature, Origins and Development Common law qualified privilege has been extended, supplemented or in some cases replaced by statutory provisions during the last 150 years. Generally, the pressure for statutory broadening has come from the media, due to their dissatisfaction with the limited seope of the eommon law defenee, prior to 1994, in cases involving dissemination of defamatory material to the general publie. During the nineteenth eentury in England, newspapers made sorne headway in seeuring statutory qualified privilege. In particular, s2 of Lord Campbell's Act 1843, as amended in 1845, provided that a "publie newspaper or other periodieal publication" eould defend a defamation aetion by (a) showing that the offending matter was "inserted without actual mal ice and without gros s negligence", (b) making a payment into court "by way of amends" and (e) publishing an apology. Further defences or partial defences specifie lo the media, such as s4 of the WW 01 Libel Amendmem Act 1888, noted above,262 were enacted during the next fifty years. But, as demonstrated in Pat O'Malley's work on the subject,263 the rise of the popular press was instrumental in undennining the legitimacy of c1aims by the "responsible press" lo further privileged treatment of this nature. In two Australian States, Queensland and Tasmania, statutory qualified privilege now both wholly replaces and significantiy extends the common law defence. The Defamaríon Codes of these two States confer a defence of "Iawful excuse" on publications in a number of eategories. Those of direct relevance to publie discussion of matters of public interest are publícations made "in good faith":

(i) to proteet the interests of the person making the publication or of some other person; 264 (ii) for the public good;

265

(iii) to give infoonation to a person on a subject on which that person is reasonably believed to ha ve such an interest in knowing the truth as to make the publicatíon reasonable in the circumstances;266 and

262 263 264 265 266

See fn237. O'Malley, "Accomplishing Law: Structure and Negotiation in Legislative Process" (1980) 7 Brir J Law & Soc 22; O'Malley, '''The Invisible Censor': Civil Law and the State Delegation ofPress Control, 1890-1952" (1982) 4 Media, Culture & Societ)' 323. DefamationAct 1889 (Q1d) and DefamatiollAct 1957 (Tas) sI6(1)(c). Defamarion Act 1889 (Qld) and Defamation Act 1957 (Tas) s 16(1 )(c). Defamation Act 1889 (Qld) and Defamation Act 1957 (Tas) sI6(1)(e).

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(iv) in the course of, or for the purposes of, the discussion of sorne subject of public interesl, the public discussion of which is for the public benefit, and ir, so far as the defamatory matter consists of comment, the comment is fair. 267 The statutory definition of "good faith" requires (i) that the defamatory malter be relevant to "the malters the existence of which may excuse the publication in good faith of defamatory matter", (ii) that the manner and extenl of the publication be within reasonable limits and (iii) that the publisher should nol have been actuated by iII will towards the plaintiff or by any other improper motive and should not have believed the maUer to be untrue. 268 During this century, common law qualified privilege has also been supplemented by stalute. The best-known Australian instance is s22 of the Defamation Act 1974 (NSW). This establishes qualified privilege for malter published in the course of giving information to a person on a subject in which that person has an interest or apparent interest, provided that the making of the publication is reasonable in the circumstances. Because of the absence of any requirement of a reciprocal duty and ¡nterest, or a shared common interest, Ihis privilege, when enacted, seemed far more valuable for the media than common law privilege. But their hopes in this regard have been disappointed by a series of judicial decisions making it difficult in practice to satisfy the requiremenl of "reasonableness".269 Conformity with the Implied Constitutional Freedom

These examples of statutory qualified privilege in Australia resemble the expanded defence of common law privilege by using the concept of reasonableness in sorne formo Theyalso have sufficient breadth and universality of application to warrant being called "freedoms" rather than "privileges", in (he sense in which these lerms are distinguished at the commencement of Ihis artiele. 270 The presence of s22 in the NSW Act was in fact trealed explicitly in Lange2?1 as a reason why NSW defamation law confonned with the implied freedom. liS requirements are very close to those of common law qualified privilege, in the expanded version of this defence created in Lange.

267 268 269

270 271

Defama/ion Ac/ 1889 (Qld) and Defamnlion ACI 1957 (Tas) s 16(1 )(h). Defama/ion Act 1889 (Qld) and Defamation Act 1957 (Tas) s 16(2). Notably the Privy Council decision in Austin v Mirror Newspapers Ltd [1986] 1 AC 299. See generally Walker, "Qualified Privilege under Section 22 of the Defamation Act 1974 (N.S.W.): Margan v Joh1l Fairfax & S01lS Limited" (1990) 18 Aust Bus L Rev 346; Henskens, "Defamation and Investigative Journalism in New South Wales: The Evolution of Statutory Qualified Privilege" (1990) 6 Aus/ Bar Rev 267. Al pp157-159 abo ve. (1997) 145 ALR 96at 116,118.

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The defences in the two Code States272 appear to leave more scope than common law privilege under Lange or s22 of the NSW Act for a defendant to argue Ihat it may be reasonable lo publish defamatory maner without having taken steps by way of verification andlor without a positive belief that it is true. 213 This is quite compatible with the implied freedom because, as stated in Lange, "a statute which diminishes the rights or remedies of persons defamed [i.e., as compared with the common law] and correspondingly enlarges the freedom to discuss government and political malters is not contrary to the constitutionaI freedom".274 Oulside lhe domain of poli tic al communication, statutory versions of qualified privilege will retain their significance as provisions which, generally speaking, increase the range of situations where privilege can be established.

FAIR COMMENT ON A MATTER OF PUBLIC INTEREST General Nature The common law defence of fair comment275 on a malter of public interest requires a defendant to pro ve four things. First, the relevant defamatory material must contain one or more "comments" or "opinions". as opposed lo statements of fae!. Seeondly. there must exist expressly or impliedly identified maner (often called a "substratum"), to which the cornment refers. Most commonly. this is a statement of a factual nature or the publication or public performance of an artistic, musical or literary composition. In the former. case, the facts alleged as lhe "substratum" must be shown by the defendanllo be troe or to have been put forward as tfUe in a statement (again identified expressly or impliedly) which was

272 273

274 275

Defanration Act 1889 (Qld) and Defamation Act 1957 (Tas) 516. Relevant here are (a) Ihe narrower sphere of operation given lo the lest of reasonableness in sI6(2) of the Queensland Act as compared with s22 in New South Wales, and (b) the distinction between "honest belief in Irulh" (generally necessary 10 succeed under s22) and "being unaware of falsity" or "nOI believing lo be untrue" (Ihe requirement under sI6(2)). For discussions of these aspects of the statutory defences, see Calwell v /pec Australia Ltd (1975) 135 CLR 321 (dea1ing wilh an earlier NSW equivalenl oflhe Queensland defence); Austin v Mirror Newspapers Ltd [1986] 1 AC 299; Margan v John Fairfax & Sons Ltd (No 2) (1991) 23 NSWLR 374 (NSW defence). See too Walker, "The Impact of the High Court's Free Speech Cases on Defamalion Law" (1995) 17 S)'d LR 43 al 51-53; NSW Law Reform Commission, Defamation (Report No 75, 1995) paras 10.9-10.16; Buller, "Lange v Australian Broadcasting Corporation: lts Impacl on the Code Slales", Paper presented at Australasian Law Teachers Association Conference, University of Technology Sydney, 3 October 1997. (1997) 145 ALR 96 at 111. Australian statutory versions, replacing the common law, are the Defamation Act 1889 (Qld) sl4, the Defamatio,! Act 1957 (Tas) sl4 (ie lhese two appear within fully codified statements of defamation law) and the Defanration Act 1974 (NSW) Part 3, Division 8.

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published on a privileged occasion. 276 Thirdly, the matter cornmented on must be a matter of public interest. This means. according to a majority judgment in a recent High Court case,277 that it must be the "conduct or work" of a person who was engaged in public activities which expressly or implicitly invited public criticism and discussion. rather than a broad abstraction such as "the adrninistration of justice" or "political and state matters". Founh and finally, the opinion expressed must be "fair", in the specific sense (a) that it is one that a person could honestly hold, even if it can also be characterised as "prejudiced", "obstinate" or "exaggerated",278 and (b) that it was in faet the opinion held by the defendant. 279 At coromon law, there is controversy as to whether proof of spite or ill will towards the plaintiff, ie one of the two strands of cornmon law malice, is enough of itself to defeat the defenee of fair comment. If it does not,280 it is at least evidence !hat the requirement of "faimess", as juS! outlined, has not been mel. If an improper motive of this son actually motivates the commen!, it is hard to see how it could be described as the honest opinion of the defendant. 281

Origins and Developmcnt To Anglo-Australian lawyers, including the comrnon law defence of fair comment on a matter of public interest, or any of its statulory equivalents. within a discussion of privileges under defamation law seems quite wrong. But on one view of the historical development of fair comment. 282 it did in fact begin as a branch of qualified privilege. Like Ihis form of privilege, it covered a broad species of occasions where the common law's presumption of the necessary ingredient of malice on the defendant's pan was prima facie displaced, rendering it necessary for the plaintiff to establish by positive proof that

276 277 278 279 280 281 282

Sueh a eommenl may be on the alleged faels Ihemselves: il need not relate solely to the fael that lhe allegations were made in the relevanl privileged stalement See Wason v Walter (1868) LR 4 QB 73; Pervan v North Queensland Newspapers (1993) 178 CLR 309. Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 al 214-219 per Dawson, McHugh, Gummow n. These lerms are used by Esher MR in Merivale v Carson (1887) 20 QBD 275 at 281; see too Gardiner v John Fairfax & Sons Pry Ltd (1942) 42 SR(NSW) 171 al 174 per Jordan Cl (HA eritic is entitled lO dip his pen in gall ror the purpose of legitimate critieism"). Where the initial maker of the stalement is not [he defendant (he or she may, for instanee, be an employee of the defendant, or an ¡ndependent third party). different rules apply. For lhis view. see Cawley v Australian Consolidated Press Ltd [1981]1 NSWLR 225. For an eloquent articulation of Ihis point of view, see the judgment of Collins MR in Thomas v Bradbury Agnew & Co Ltd [1906] 2 KB 627. Under the NSW Acl and the Codes, it is clear that malice is not relevant. See eg Bellino \1 Australian Broadcasting Corporation (1996) 185 CLR 183 at 215 per Dawson, MeHugh, Gummow JJ; Radeliffe, uThe Defence of 'Fair Comment' in Actions for Defamation" (1907) 23 LQR 97; Rowland, "Fair Comment and Qualified Privilege" (1907) 4 Comm L Rev 202.

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malice was indeed present 283 In the American Restalement (Second) of Torts 284 and in American defamation texts,285 fajr cornment, which eontinues to playa role outside the categories of case covered by the Sullivan "public figure test", is still classified as a fonn of qualified privilege.

In sorne nineteenth century English cases, however, dieta are to be found distinguishing the two defences. This was either on the footing that if a eomment was to be c\assified as truly "Fair" (a requirement that al Ihat time seems to have been closer to the vemaeular meaning than it is now) it was not really libellous,286 or Ihal the two were to be distinguished because fair eomment, unlike privilege, was a defenee open to any defendant 10 maintain. 287 The established modem distinetion between the two defenees arose ehief1y beeause, as shown earlier in Ihis article,288 Ihe proleetion for factual defamatory allegations made 10 the publíc whieh qualified privilege eonfers was held nol 10 arise merely beeause an allegation related to a matter of publie interest. The necessary reciprocity of duty and interest had 10 be proved. No such element was neeessary foc fair eomment, though any factual substratum for the defamatory eomment had be true (or privileged).289 In relatíon to the common law versions of the two defences, this statement of principie still holds good, as does the distinetion between them. 290

Conformity with the Implied ConstitutionaJ Freedom In tenns of broad orientations, there seems to be considerable conformity between fair comment and the implied freedom. In numerous places in the High Court eases dealing with the implied freedom, the need for members of the public 10 have leeway to commenl on and criticise the individual and collective actions of those exercising state power is cited 283

284 285

286 287 288 289 290

See eg Holdsworth, "Defamation in the Sixteenth and Seventeenlh Cenluries" (1925) 41 LQR 13 al 24-30; Helmholz, "Civil Trials and the Limits of Responsible Speech" in Helmholz and Green (ed), luries, Libel and lustice: The Role of English Juries in Seventeenth- and Eighteenth-Century Trialsfor Libel and Slander 4. For supporting caselaw, see Wason v Walter (1868) LR 4 QB 73 at 87; Henwood v Harrison (1872) 7 CPLR 606; Davis v Duncan (1874) 9 CPLR 396. Amencan Law Institute, Restatement ofthe Law (Second): Tons (American Law Instilute, St Paul, Minn 1977) para 566 comment a. See eg Smolla, Law 01 Defamarion para 6.02; EalOn, "The American Law of Defamation through Genz v Roben Welch, lnc and Beyond: An Analytical Primer" (1975) 61 Va L Rev 1349 al 1362-1363. See eg Campbell v Spottiswoode (1863) 3 B & S 769, and Ihe discussion of Ihis poinl in Note, "Privileged Criticism" (1872) 53 Law Times 310. See eg lhe judgment of Bowen LJ in Merivale v Carson (1887) 20 QBD 275 at 282. See pp 172-173 abo ve. Davis v Shepstone (1886) 1I App Cas 187. For a recent instance of strong emphasis on Ihis distinction at High Court level, see the judgment ofMcHugh J. dissenting, in Stephens (1994) 182 CLR 211 al 266-267.

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as an essential ingredient. 291 This directly parallels one of the core purposes of the defence of fair cornrnent. The following passage from a NSW Supreme Court decision in 1907 illustrates well how the courts view the defence as an important contribution to political debate: The right of every member of the community to comment either in the columns of the public press or otherwise on matters of public interest or general concero, provided that he does so fairly and honestly, is now well established. Every citizen is free to discuss the political schemes and aims of any public man or any political party, and to denounce those aims as mischievous or injurious to the well being of the cornrnunity, provided that he keeps within the bounds of fair and legitimate criticism and does not either misrepresent facts or impute to those whom he attacks unworthy motives or dishonourable conduct. 292 In modero formulations of the defence, a specific requirement that the criticism be "legitimate" or that it refrain from imputing unworthy motives or dishonourable conduct would no1 be appropriate. 293 But the broad grounds for permitting (he defence would be very similar to these. A further reason why conformity seems to exist is the lack of any established categories or "occasions" to which fair comment is restricted, and therefore of any tendency for "privileged publishers" to emerge. This aspect of the structure of fair comment marks it off from most forms of privilege.294 The most evident change that faír comment, both at cornrnon law and in statutory versions, might undergo in response to recent developments is a relaxation of the requirement that where the comment is based on a factual "substratum", the relevant facts, which are not necessarily defamatory, must be proved to be troe or to have been asserted in a privileged statement. By contrast, qualified privilege, as newly defined, protects the publication of defamatory factual allegations on government and political matters if the defendant acted "reasonably" and without malice. It seems anomalous that the test should be stricter for the (sometimes non-defamatory) substratum of a defamatory comment than for a defamatory factual allegation. 295

291 292 293 294 295

See p 164 aboye. Slatyer v Daily Telegraph Newspaper Co (1907) 7 SR(NSW) 488 at 501 per Street J. In the NSW stalutory version, s30( 4) of the Defamation Act 1974 expressly eliminates the lalter requirement. See discussion al pp178-180. Though in Pervan v Nonh Queensland Newspaper Co L¡d (1993) 178 CLR 309, McHugh J considered himselfbound 10 interprel the Queensland Code so as to reach Ihis result.

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In Pervan v North Queensland Newspaper Co Ltd,296 decided in 1993, a majorily of the High Court interpreted the predecessor of sI6(l)(h) of the Queensland Delamation Act 1889 297 as stating, amongst other things, that the factual substratum for any comment falling within the scope of the section did not have to be proved troe. It was enough that the statutory requirement that the publication be made "in good faith", as defined in s 16(2), was satisfied in relation to the substratum, along with the other relevant elements of the publication. This decision relates only to the Code version of fair comment, not to the common law defence itself. A change of this nature would also bring the Australian defence in line with its American counterpart, though, as already indicated, the SuLLivan "public figure" rule leaves little scope for the defence of fair comment in cases to which it applies. 298 ASSESSING THE V ALIDITY OF STATUTORY AMENDMENTS TO DEFAMATION LAW In Lange, the High Court considered how the constitutional validity of any enactment which directly or indireetly restriets freedom of political eommunication should be determined. Two passages in the judgment are relevant. One states that the law will be valid if it is reasonably appropriate and adapted to serve a legitimate end the fulfilment of which is compatible with the maintenance of the constitutionally preseribed system of representative and responsible govemment and the procedure preseribed by s 128 for submitting a proposed amendment of the Constitution to the inforroed decision of the people. 299 The key sentences in the other passage, which refers speeifically to defamation law but would presumably apply also to other situations where existing rules of common law inhibit freedom of political communication, are as follows: The corrunon law rights of persons defamed may be diminished by statute but they cannot be enlarged so as to restriet the freedom required by the Constitution. ... Laws made by ... parliaments or ... legislatures ... may therefore extend a head of privilege, but they cannot derogate from the cornrnon law lo produce a result which diminishes the extent of the irnmunity conferred by the Constitution. 300 296 297 298 299

300

(1993) 178 CLR 309. This proYision is discussed at p205 aboye. See pl59 aboye; Sack and Baron, Libel, Slanderand Related Maflers ppI99-217; Smolla, Law 01 Defamation paras 6.02, 6.03. Lange (1997) 145 ALR 96 at 112. Al 111-112.

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This second passage could mean that any statutory enlargement of the common law rights of defamed persons is automatically invalido But this is not its necessary meaning. A preferable interpretation, more in line with the first passage, is that statutory "enlargements" of the common law rights of person defamed are not prohibited per se, but only if their effect oyerall is to restrict the freedom required by the Constitution. This issue of interpretation would be brought into prominence if the Defamation Bill 1996 (NSW), which was promulgated for public discussion by the NSW Attomey-General in October 1996, were enacted and a challenge were mounted to the validity of Part 6. This Part establishes the remedy of a "judicial declaration of falsity" for a defamed plaintiff. 301 If such a declaration is granted, the defendant may be ordered to publicise it so as to reach a broadly similar audience as the defamatory imputation itself. An order for indemnity costs may be made against the defendant. The effect of Clause 55 of the Bill is that only absolute priyilege and fair report privilege operate as defences to an action for such a declaration. However, the requirement in Clause 54 that the plaintiff prove the falsity of the imputation maintains the poliey underlying the existing defences based on truth, doing so in a manner which giyes greater protection to the defendant. It is clearly arguable that, in cases falling within political communication, as redefined in Lange, Part 6 of the Bill is unconstitutional. It confers on defamation plaintiffs a right to claim a declaration of falsity in respecl of any defamatory imputation, but excludes both common law qualified privilege and the defence under s22 from Ihis cause of action. It would seem therefore to "enlarge" the common law rights of defamed persons and to "diminish the extent" of the constitutional irnmunity. This argument would be all the stronger if, as sorne comrnentators on the Bill haye predicted,302 the new form of action would be very popular and its existence would "chill" freedom of political communication.

A number of eounter-arguments can, howeyer, be forrnulated. Their implications are significant both for defamation reform and for the general issues explored in this article. They can be briefly outlined as follows. First, the Lange judgment describes the common law of defamation as one which "requires electors and others to pay damages ... or leads to the grant of injunctions".303 On this yiew of the scope of the cornrnon law, a plaintiffs right to a declaratíon could well be classífied as a separate statutory right with its own separa te remedy. It has indeed a wholly different emphasis from the primary common law remedy of damages. lis aim is essentially to 301 302 303

Por discussion of Ihis law under lhe law prior lo Lange, see NSW Law Reform Commission, Dejamation (Report No 75, 1995) paras 6.48-6.52. The Bill is based on Ihe draft legislatian fonning part of this Report. See summary in Griffilh, Dejamarion Law Rejorm: Declarations oj Falsity and Othu Issues, Briefing Paper No 24/96 (NSW Parliamentary Library Research Service, Sydney 1996) pp69-70. (1997) 145 ALR 96 at 113.

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ensure the public vindication of a wrongly defamed plaintiffs reputation, for the benefit of both the plaintiff and of either the cornmunity as a whole or that section of it which has an interest in the truth or falsity of the defamatory statement. 304 On this view, the validity of Part 6 would not be detennined by specific reference to its confonnity with common law principIes. The test instead would be whether, in terms of the first passage quoted aboye, it was "reasonably appropriate and adapted to serve a legitimate end ... compatible with Ihe constitutionally prescribed system of representative and responsible government".305 Both the purpose ofpublic vindication ofreputations and the means adopted would seem to satisfy this test. A second counter-argument addresses the overall effect of the new rights and remedies created by Pan 6 upon the balance between protection of reputation and freedom of politicaI cornrnunication. It is to the effect that when all relevant factors are taken into account, this balance does not differ significantly from that achieved in the cornrnon law of defamation.

Two prominent features of the Bill are relevant here. One, affecting actions both for damages and for declarations, is that the BiIl reverses the onus of proof regarding falsity. It requires that, in any case relating to a malter of public interest, a plaintiff must pro ve any factual defamatory imputation sued upon to be false, instead of the defendant having to prove truth if a defence of truth (as curren ti y set out in ss15 and 16 of the Defamation Act 1974) is to be relied on. The other is that the particular dimension of freedom of cornrnunication that receives special emphasis in Lange - namely, that it provides to citiz.ens the degree of access to information on government and political malters that will enable Ihem to "exercise a free and informed choice as electors"306 - is well served by the provision in Clause 54(2)(b) of the BiII that the court may order a declaration of falsity to be given publicity by the defendant. In addition, in so far as the defendant would be reporting a particular outcome of court proceedings, the "infonnational" purpose underlying fair repon privilege307 is promoted. A similar requirement of publicity for a voluntary correction made by a defendant, under a procedure introduced in Pan 8 of the BiII, has a similar orientation. 304 305

306 307

See NSW Law Refonn Commission, Defamarion (Repon No 75, 1995) paras 6.5-6.6; Chesterman, uThe Money or the Truth: Defamation Reform in Australia and the USA" (1995) 18 UNSW U 300 al 309-310. Lange (1997) 145 ALR 96 at 112. At 107. See p200 aboye. This line of argument receives indirect support, with reference to the statutory declaration remedy provided by s24 of the Defal1Ultion Acr 1992 (NZ), in Lange v Atkinson [1997] 2 NZLR 22 al 47-48 per Elias J. For further elaboration, see NSW Law Reform Commission, Defamation (Report No 75, 1995) paras 6.38-6.39; Chesterman, UThe Money or the Truth: Defamation Reform in Australia and the USA" (1995) 18(2) UNSW U 300 al 312-316; Griffith, Defal1Ultion Law Reform: Declararions 01 Falsity and Other Issues pp65-68.

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Provision for a court to order publication of a declaration of falsity may seem to contravene a well-known principie of freedom of speech that the editorial autonomy of the media should not be overridden by a mandatory order to publish made by a state agency. 308 However, it would seem that the only sanction fOI failure to publish contemplated in the Bill is that the defendant may be exposed, under Clause 8(3), to a follow-up action for damages. The defendant may, in effect, choose to divert the plaintiff towards an orthodox claim for damages. A third counter-argument, Iinked closely with the second, is that this remedy of a publicised declaration of falsity, aimed at public vindication of a defamed person's reputation, has a similar orientation to an important feature of the new form of common law qualified privilege created in Lange. This is the requirement that a defendant wishing to satisfy the "reasonableness" test must norroally give the defamed person an opportunity to have a response published along with the defamatory material or as soon as practicable thereafter. This does not involve any mandatory infringement of editorial autonomy by an order of a state agency, as the defendant is free to decide against providing this opportunity, at the risk of losing the benefit of the defence. The significant coromon feature of a publicised declaration of falsity and this form of "right of reply" within common law qualified privilege, as now defined, is that both effectively substitute a non-monetary remedy, aimed at conveying the "plaintiffs side of the story" to the public, for an award of damages. In the case of the declaration, the plaintiff primarily chooses whether to accept this substitution, though the defendant, by refusing to publish, may effectively steer the remedy back to damages. On the other hand, the choice whether to reinforce the argument for the defence of qualified privilege by granting a "right of reply" lies with the defendant. In conclusion, the constitutional validity of Pan 6 of the NSW Defamation Bill 1996 emerges, on c10se examination, as easier to sustain than might appear at first sight. 309 Interestingly, however, it could be argued that the Lange judgment' s insertion of a "right of reply" element into common law qualified privilege has weakened the case in favour of introducing into NSW defamation law another form of non-monetary relief (the declaration of falsity) through enacting Part 6. This argument would seem stronger if yet another forro of non-monetary relief within the Bill, voluntary correction orders under Pan 8, were also introduced. The declaration procedure might then seem superfluous. This argument, however, is not necessarily compelling, for at least two reasons. First, the declaration of falsity is the only one of these remedies that the plaintiff can choose to pursue against the defendant's will, at least to the point where the dec1aration is madc. 308 309

As rnost strikingly illustrated in the US Supreme Court case of Miami Herald Publishing v Tomillo 418 US 241 (1974). For this author's own "first sight" cornments on this issue, see Chesterman, "Clarity and Loose Ends" (1997) 44 Gaz L& J 5.

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Secondly, the vindicatory effect of a plaintifr s own response (ie one published in order to bolster the defence of qualified privilege) will generally not be as slrong as a published decIaration of falsity, which proclaims that the plaintiff has proved the imputation to be false in a court proceeding. 80th these considerations also supply grounds for maintaining that the declaration remedy, if introduced, should continue not to be susceptible to the defence of qualified privilege. It is noteworthy, finally, that the need for this reconsideration of the policy arguments for and against enactment of Part 6 of the Defamation Bill 1996 (NSW) is just one of the many results of lhe High Court's decision in Lange v ABC. The Lange case is indeed a "big" one, whose ripple-effects are bound to continue for many years.

John Dewar*

INDIGENOUS CHILDREN AND FAMILY LAW n its report on Multiculturalism and the Law, the Australian Law Reform Commission (ALRC) concluded that, when translated into law, multiculturalism as a policy was best implemented, not by the development of special laws for particular groups, but rather through "a general amendment of Australian law to make it less narrowly monocultural and more flexible to accommodate individual differences".1 In the context of family law, an interesting and important question to ask is just how flexible and accommodating the general law is to cultural difference. In the particular context of children, that question resolves itself into one of the law's ability to recognise different conceptions of relationship or kinship, and to accornmodate child-rearing practices that may differ from those considered desirable by the dominant culture. The argument 1 want to make in this artiele is that, when viewed from the perspective of Australia's Indigenous communities, there is still a long way to go; and that the barriers to achieving that sort of flexibility may be so close to the heart of the social practices of the dominant culture that they are abnost invi~ible except from outside that culture. One consequence of this is that "lndigenous farnilies respond to the cultural inappropriateness of Australian family law by avoiding the Court and dealing with family disputes informally, or under traditionallaw".2

I

The Aboriginality of children in farnily law is most often visible to family lawyers when a court is required to decide which of two parents, one Indigenous and the other nonlndigenous, should have their child living with them. In such cases, it may be impossible to avoid the case being heard within the formal court system. In this context, the most important decision of (he Full Court of the Family Court is currently that of In the Marriage 01 B and R,l in which the Full Court held that evidence concerning (he history and effects of removal of Indigenous children to non-Indigenous environments was relevant to placement decisions under the Family Law Act 1975 (Cth). The Full Court decided that the relevance of Aboriginality in child placement disputes went beyond the "right to know one's culture", and required a proper acknowledgment of "the effects on Aboriginal children of being raised in a white environment, in which the lack of

'"

2

3

BeL, MA (Oxon), PhD (Oriff); Professor of Law, Oriffith University. 1 would like to thank my colleague Shaunnagh Dorsen for cornrnents on an earlier draft of this anic\e and for encouraging my interest in this area, and Professor Reg Graycar for her cornmenlS on an earlier draft. Australian Law Reform Commission, Multiculturalism and the Law (Report No 57, 1992) para 1.24. Aust, Human Rights and Equal Opportunity Cornrnission, Bringing them Home: Repon of the Nationallnquiry into the Separation of Abo rig ina 1and Torres Slrait ¡slander Children from Their Families (1997) (hereafter "Bringing rhem Home") p486. (1995) 19 Fam LR 594.

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reinforcement of their identity contributed to severe confusions of that identity and profound experiences of alienation".4 The Full Court stopped short, however, of introducing a full-blown Aboriginal Child Placement PrincipIe (ACPP) into family law decision-making. 5 The decision in B and R does not by any means settle all the legal and policy questions surrounding child placement decisions in family law. For example, there remains the question of whether Australian family law as it currently stand s conforms to Article 30 of the UN Convention on the Rights of the Child,6 which requires State parties to ensure that an Indigenous child "not be denied the right, in community with other members of his or her group, to enjoy his or her own culture ... or to use his or her own language". The Full Court in B and R described Article 30 as conferring "general" rights to know one's own culture.? Nevertheless, Article 30 may be open to more "specific" interpretations, including that an ACPP, or something like il, be introduced in family law cases where the dispute is not between the child's parents, but between a child's parent on the one hand and a foster carer from a different culture on the other. 8 In addition, the Family Law Reform Act 1995 (Cth), which carne into force in 1996, and therefore after the decision in B and R, introduced a new item into the checklist of factors which a court must take into account in deciding where a child's best interests lie, namely, a reference to the child' s "background (inc1uding any need to maintain a connection with the lifestyle, culture and traditions of Aboriginal peoples or Torres Strait Islanders)".9 The meaning of this provision is unc1ear. First, it secms open to the interpretation that no such need is to be presumed but must be proved in each case. 10 Second, it is unclear what is meant by "connection" for these purposes. The decision in B and R would suggest that

4 5

6 7 8

9

10

A160l. Differenl versions of lhe ACPP are lo be found in Slale and Terrilory child welfare and adoplion legislation: Children (Care and Protection) Act 1987 (NSW) s87; Children's Protection Act 1993 eSA) s5; Community Wellare Act 1983 (NT) s69; Adoption 01 Children Act 1994 CNT) sil; Adoption 01 Children Act 1964 (Qld) s 18A; Adoption 01 Children Act 1984 (Vic) ss37(1), 50. For discussion, see Bringing them Home ch21; McRae, Nellheim & Beacroft, lndigenous Legallssues: Commentary and Materials (Law Book Co, Sydney, 2nd ed 1997) pp428-437. Convention on the Rights of the Child, 20 November 1989, GA Res 25 (XLIV), UN Doc AlRES/44/25 (1989), reprinted in (1989) 28 ILM 1457. (1995) 19 Fam LR594 at 60l. An example of such a case is Re CP (1997) 21 Fam LR 486, discussed below. For an argument that an ACPP is appropriate in such cases, see Davis and Dikstein, "lt Just Doesn't Fit: The Tiwi Family and the Family Law ACI - Can the Two be Reconciled?" (1997) 22 Alt U 64. Family Law Act 1975 (Cth) s68F(2). Bringing them Home p483. The Report suggests Ihat s68F falls short of full incorporalion of Art 30 ofthe UN Convention on the Rights ofthe Child.

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"connection" means more than just being provided with information about their own culture: but how much more is required?ll 1 will retum to these issues towards the end of this aniele. For the moment, 1 want to approach the issue of Indigenous children and family law in a slightly different way. FAMILIES IN LA W 1 want to suggest that family law in Australia currently falls sorne way short of the sort of multiculturalism proposed by the ALRC. This is especially evident from the way in which legal relations amongst family members are constructed. In defining kinship, or its conceptions of relationship, Australian family law reflects its Anglo-European heritage. So, when it comes to constructing legal relationships around children, the law tends to as sume a nuclear model: that is, that a child will have two parents for legal purposes, generally those who are its biological mother and father. 12 These are the people who automatically have legal status with respect to the child, a status that they never technically lose. Thus, s6lC ofthe Family Law Act 1975 (Cth) states that each parent of a child has parental responsibility for it, and that this responsibility survives any changes in the relationship between the parents. "Parental responsibility" for the child ineludes a11 duties, powers, responsibilities and authority a parent might have in relation to a child. 13 The recent changes to the Family Law Act, which introduced the concept of shared and continuing parental responsibility between biological parents, have, if anything, served further to entrench this nuclear model in the law. 14 Thus, according to the principIes underlying the new Part VII, contained in s60B, children have a right to know and be cared for by both their parents, 15 but not by other significant figures in their lives; and parents (but not others) share duties and responsibilities for the care, welfare and development of their children, and should agree about their children's future. 16 11 12

13 14

15 16

Davis & Dikstein, "It Just Doesn't Fit: The Tiwi Family and the Farnily Law Act - Can the Two be Reeoneiled'!" (1997) 22 Alt L./64 at65. "Parent" ineludes an adoptive parent, and anyone recognised as a parent under State, Territory and Commonwealth legislation dealing with as5isted reproduction: Fami/y Law Act 1915 (Cth) ss60D(1), 60H. The Family Law Act ineludes tbe eoncept of a "relative", wbich is elaborately defined in s60D(3), and is primarily relevant to the meaning of "family violence" in s60D(1), s68F(2)(i) and U) and s68J. Family Law Act 1915 (Cth) 561B. Although, ironieally perhaps, the ALRC supponed tbe broad outline of these cbanges on the basis that eontinued parental responsibility after divoree or separation would allay tbe fears of sorne immigrant communities al tbeir possible loss of parental stalus on divoree: "depriving a parent of custody [sic] of a child may result in a major loss of status, bonour and identity of that parent and deprive tbe parent of the opponunity to exercise a deeply felt sense of responsibilily for a cbild": Australian Law Reform Commission, Multiculturalism and the Law (Repon No 51, 1992) para 6.29. Family Law Act 1915 (Ctb) s60B(2)(a). Section 6OB(2)(e) and (d).

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This nuclear model is reflected also in intra-farnily obligations of financial support. So, for example, both the Child Support (Assessment) Act 1989 (Cth), and Division 7 of Part VII of the Family Law Act (which concems maintenance for children who are not covered by the child support scheme), place almost exclusive responsibility for supporting children on their parents. 17 Step-parents may in limited circumstances be ordered to pay support for step-children under the Family Law Act, but even here it is ex.plicitly stated that the stepparent's obligation is secondary to the parent's primary duty, and that any step-parental liability does oot derogate from that of the biological parent. 18 The rigidity of this nuclear model for support purposes can have serious consequences for thoseethnic groups, including those from Indigenous commuoities, for whom social obligations of support are in practice more fluid than the legaVnuclear model suggests. For ex.ample, under sl17 of the Child Support (Assessment) Act 1989 (Cth), it is possible for a liable parent to seek a reduction in their child support assessment on the ground that their capacity to provide financial support for a child is significantly reduced because of "the duty of the parent to maintain any other child or another person". 19 Although there has yet to be an authoritative ruling, the consensus is that "duty" tor these purposes means only "legal duty" .20 If that is right, then, because those legal duties of support are defined in strictly nuclear terms, it would not be open to a Iiable parent to argue for a reduction in child support 00 the basis that they were supporting someone else's childreo, no matter how strong that obligation might be within the context of a particular community, group or culture. This could cause real hardship in communities in which it is customary for children to be looked after by, and to receive financial support from, adults other than their biological parents. There are sorne notable exceptions to this nuclear model of kinship relations. For example, it is possible for someone who is not a parent to obtain parental re5ponsibility for a child by applying for a "parenting order" under Part VII of the Family Law Act. Any person concemed with the care, welfare or development of a child may apply for such an order. 21 There is in theory no limit to the number of people who may obtain parental responsibility in this way, although the extent to which a parenting order confers parental responsibility is determined by the order itself: there is no assumption that someone with a parenting order lhereby acquires parental responsibility in full. 22 In that respect, the law still gives parents preferential treatment by automatical1y giving them, and only them, parental responsibility in full.

17 18 19 20 21

22

Child Support (Assessment) Act 1989 (Cth) 53; Family Law Act 1975 (Cth) s66C. Family Law Act 1975 (Cth) 5660. Child Support (Assessment) Act 1989 (Cth) si 17(2)(a). Riethmuller, "Conflicting Duties: Child Support and Australia's Maintenance Quagmire" (1997)71 AU 190. See In rhe marriage ofHartcher and Vick (1991) 15 Fam LR 149. Fami/y Law Act 1975 (Cth) s65C(c) . Section 6lD(1).

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Other departures from the nuclear model can be found in the s68F(2) checklist, which requires a court to take account of a child's relationships with persons other than its parents in making decisions about the child' s best interests. Thus, in addition to paragraph (f) already discussed, paragraph (b) refers to "the nature of the relationship of the child with each of the child's parents and with other persons"; paragraph (c)(ii) refers to "the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from ... any other child, or other person, with whom he or she has been living"; and paragraph (e), which talks of "the capacity of each parent, or 01 any other person, to provide for the needs of the child, including emotional and intellectual needs".23 FinaIly, the statement of objects underlying Part VII talks of the child' s right of contact with parents and with others "significant to their care, welfare and development".24 However, each of these provisions has to be seen as a qualification of, or as an exception to, a basicaIly nuclear, two-parent model of parent-child relations. In general, then, the Family Law Act and the child support regime enshnne particular assumptions about reIationships between children and parents. While these may seem natural to many members of the dominant European culture, they beco me, in the context of Indigenous cultures, a senous barner lo lhe sort of increased flexibilily lo which the ALRC refers. In the case of support obligations in particular, the current law amounts to a clear breach of the principIe of substantive equality, stated to be a cornerstone of multiculturalism, in the sense that the current law "unintentionally act[s] to disadvantage certain groups of Australians".25 Yet it is the supposed naturalness of these assumptions, and the powerful ideology of the nuclear family surrounding them,26 that renders tnem invisible to many. From the point of view of the Indigenous cornmunity in particular, this nuclear model doesn't fit at a11 well with Indigenous child-rearing structures or practices.

INDIGENOUS CHILDREN: STRUCTURES ANO VALUES Although practices vary between Indigenous groups. it seems generally true that conceptions of kinship and of good child-raising practice are significantly different from the nuclear modeP1 Kinship relations are constructed in different ways from Westem 23 24 25

26 27

Emphasis added in eaeh case. Family Law Act 1975 (Cth) s60B(2)(b) . Australian Law Reforrn Commission. Mulricu/turalism and the Law (Report No 57, 1992) para 1.1. The child support legislation as currenl1y interpreted does not create an "environment that is tolerant and accepting of cultural and social diversity" (para 1.1). See Bittman & Pixley, "Is the Myth of the Nuclear Family Dead?" in Bittman & Pixley, The Double Life 01 the Family: Myth, Hope and Experience (Allen & Unwin, St Leonards, NSW 1997) eh 1. Bourke & Bourke, "Aboriginal Families in Australia" in Hartley (ed), Fami/ies and Cultural Diversity in Australia (Allen & UnwinlAIFS, St Leonards, NSW 1995) pp48-69; Collard, Crowe, Harries & Taylor "The Conlribution of Aboriginal Family Values 10 Australian Family Life" in Inglis & Rogan (eds), Flexible Families: New Directions in Australian Communiries (Piulo, Leichhardt, NSW 1994) pp 113-126.

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kinship systems, with the term "mother", for example, often being used 10 cover a much wider group of people Ihan the biological rnolher. Kinship systems amongst many Indigenous groups are classificatory, which means Ihat a much larger proportion of the social group, perhaps all members of the group, are accounted for in terms of kinship. Westem kinship systems, by contrast, consist of a much narrower range of relations. 28 As Bringing them Hame says: "By privileging parents and relegating the rights of other family members, the Australian family law system conflicts with Aboriginal child-rearing values".29 In addition, child-rearing practices often differ markedly: whereas nonIndigenous culture tends to emphasise permanence and stability as posilives for children,30 Indigenous culture sees movernenl of children, either geographically or between or within kinship groups, as beneficia\. As Bringing them Home argues, "by privileging stability of residence, the system similarly entrenches a bias against the Aboriginal practice of mobility of children amongst responsible adults and their households".31 Many of these issues arose in a recent decision of the Full Court of the Family Court, Re CP.32 This case concemed the residence of a 4-year-old boy, C. C's parents were from the Tiwi Islands, a geographically remo te group of islands 80 miles lo the north of Darwin. C had been bom on the Islands, bul had been living since a very young age in Darwin with F, an Indigenous woman from Thursday Island in the Torres Strait, who had taken e to live with her in Darwin while working on a fishing boal around the Tiwi islands. C's biological mother lived on Melville Island, which is part of the Tiwi group. There was sorne dispute about the circumstances surrounding e's move to Darwin, especially over the expected duration of the arrangement. The Iitigation was initiated by F, who sought orders giving her joint guardianship and sale custody of C. This is now old terminology, but amounted to an application that C Iive with F, and that F and e' s mother share responsibility for C' s long tenn welfare and development. In many respects, the case was eloser to a child welfare case (involving a con test between a parent and a substitute carer) than to an inter-parental dispute like B and R.

28

29

30

31 32

Kinship amongst the Mardu people of Western Australia extended "far beyond consanguinal and local group limits to inelude the most distant of kin and former strangers": Tonkinson, The Mardu Aborigines: Living the Dream in Australia's Desert (Holt, Rinehan anu Winston, Fon Wonh, Texas. 2nd ed 1991) p58. This is also discussed in Gilding, Australian Families: A Comparative Perspective (Longman, Melboume 1997) ppI48-156. Bringing rhem Home p486. A good, and influential, example of this is the suggestion of Goldstein, Freud and Solnit that a child's best interests lie in preserving the continuity of a child's relationship with one "psychological parent": see Beyond the Besr Interests 01 tire Child (Free Press, New York 1973). According to Parker, Parkinson and Behrens in Australian Family Law in Context: Commentary and Materials (Law Book Co, Sydney 1994) "[p]reservation of the status quo appears to be the most significant determinant of custody disputes" (p835). Bringing them Home p486. (1997) 21 Fam LR 486.

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C's mother responded by seeking orders that C be "in the eustody oC his extended maternal and paternal family at Bathurst and Melville islands".33 Her application was supponed by two sisters, and a cousin (that is, her Cather's brother's daughter, but someone who, in the Tiwi way, was also regarded as the mother's sister: according to Tiwi kinship thinking, all four women were C's mothers). The cousin was al so co-ordinator oC Link-Up, a service which assists Indigenous people to regain contact with parents or children Crom whom they have been separated. Strictly speaking, the order sought by the mother was an order that it was not really possible Cor the court to malee, since, under the Family Law Act, custody (ar, now, residence) has to be vested in an individual, or individuals, rather than in a kinship group. In other words, while the order applied for may have refleeted what was likely to happen iC the child went baek to the Tiwi islands, namely that responsibility for his care would be shared by his extended Carnily, it could not be given expression by a Farnily Court arder. There was evidence before the trial judge conceming the child-rearing practices oC the Tiwi people. 34 That evidenee disclosed Ihat it is eornmon practice for Tiwi children to be brought up by someone other than their biological mother and that "[i]t is not uncornrnon Cor Ihe children to loeate thernselves in several of the extended Carnily households throughout their respective childhood years".35 There was also evidence from an anthropologist appointed by the child's Separate Representative conceming the differences between mainland and island Indigenous cornmunities, and, more generally, on the importance oC an Indigenous child remaining within their own cornrnunity: [The] [d]isadvantages of not bringing up an Aboriginal child within his or her own community oC kin and within at least Crequent visiting distance oC country with which he or she is identiCied might inelude: the los s of relations with a vast range of kin who will perform a wide variety of roles associated with social relations, emotional and physical support, educative knowledge, economic interactions and spiritual training. . .. loss of knowledge which stems Crom the social interactions rnentioned aboye; ambiguities in or loss oC identity with one's own kin and eountry, features 1 understand as essential to identity from an indigenous point of view. 36 The trial judge granted custody to F. The main issue on appeal was whether the trial judge had properly taleen account oC the child's Indigenous background, and speciCically oC his Tiwi background. The Full Court held that the judge had not given sufficient weight to the differences between the lndigenous culture of the Tiwi as against F' s Indigenous 33 34

35 36

At 49l. The expert evidence is reproduced in greater detail by Davis and Dikstein, "It Just Doesn't Fit: The Tiwi Family and the Family Law Act - Can the Two be Reconciled?" (1997) 22 AlrU64. At 65. (1997) 21 Fam LR 486 al 502.

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background as a Thursday Islander (which, according to expert evidence in the case, were substantiaI). The judge, in short, had assumed that all Indigenous cultures were much the same, so that the weight accorded to C's specifically Tiwi background was diminished in the judge's reasoning. As the Full Court put it, the judge "demonstrated an incorrect view of homogeneity of Aboriginal cultures".37 The judge had also taken the view that the child's need to maintain "connection" with his lifestyle, culture and traditions, as specified in s68F(2)(f), would be satisfied by maintaining C's education about the Tiwi way of life and through regular visits to the Islands. This cIearly conflicts with the FuIl Court's decision in B and R, and the Full Court in Re CP took this to be evidence of the judge's failure lO appreciale the differences between, and specificity of, Indigenous cultures. The case is of interest for a number of reasons. One is that, at least in cases of interIndigenous disputes over children's residen ce, the Family Court will be open to hearing evidence about differences in Indigenous cultures. It suggests that the rights contained in Article 30, and reflected in s68F(2)(f), will (perhaps contrary to what was suggested in B and R) be interpreted as a right to maintain connections with a speciftc Indigenous culture, rather than Indigenous culture in general. It also underlines the point, consistently with B and R, that "connection" for the purposes of s68F(2)(f) means more than education and occasional visits. For present purposes, though, rny interest is in two other aspects of the case. The first is the Court's approach to Indigenous child-rearing practices, and especialIy to the practice of moving children around. The judge had regarded it as a factor favouring F that C's mother was not able to provide a clear picture of who would be looking after the child. The FuIl Court, however, quoted al length from the expert evidence of an anthropologist, Dr M: It is not at all unusual for Aboriginal children to move freely, even frequently, although lhe legal system tries to control and restricl lhis. Such movements, except for infanls, are alrnost always with the willing consent of the child and are frequently initiated by the child who has a right to express their own desires with regard to residential arrangements. Moves can be occasioned by many factors, incIuding the desire for change, to reside with paternal kin for sorne time, to move away from conflicts - io other words, many of the sarne reasons adults express as well for moving aTound. These movements between kin, and often between communities, are seen as important ways in which children acquire their understandings of the ways in which kinship and country relalionships are lived out. They are thus not a sign of disruption as they might be interpreted by non-Aboriginal people bUI are an important factor in socialising childreo. 38

37 38

Al 501. Al 502-503.

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The Courl wenl on lo suggest that the trial judge had failed to have regard lo lhe importance of movemenl in an Indigenous child's social developmenl and had therefore wrongly construed the mOlher' s lack of c1arity in future plan s for the child adversely to her case. This aspect of the case seems to be a very welcome development: it displays the sort of flexibility and openness to cultural practices that the ALRC was talking about. But it is striking how fragile the legal foundation for any such developmenl might be. The case tums almost entirely on the weight given by the judge to lhe evidence before him: wilhoUl lhe anthropologisl's evidence, it mighl have been harder for the FuIl Court to have arrived at the concIusion it did. What flexibility there is, therefore, has to be fought for, and the cost reckoned in tenns of gathering the necessary evidence. Indigenous parties, it seems, are always likely to be on the back foot when it comes to establishing the validity of cultural difference. This suggests that even the apparently progressive approach of the Full Court in B am1 R may leave something to be desired; for, as Lisa Young has argued, "[a]sking every applicant to lake responsibilily for these issues [lhrough lhe production of evidence] is the wrong solulion ... Caucasians are nOl pUl lo proof of malters of such notoriely, why should Aboriginal ... parents be?"39 The second important aspect of the case concems the remarks made towards the end of the judgment about the problems of applying the legal framework of the Family Law Act to disputes of this sort. As the Full Court put it: this case has highlighted difficulties in the applicability of the Family Law Act to cultural systems of family care which, like the Tiwi way, contemplate circumstances where the child will live and be cared for within a kin network. 40 The Court went on to talk about the limitations of what 1 have called the nuclear model of parentlchild relations enshrined in Australian family law and that it led, in particular, to "the many non-biological mothers of a Tiwi child [being] invisible to the law".41 Even the provisions about parenting orders, the Court suggests, are not sufficient to deal with the issue, because those in whose favour such orders are made still have to be identified in advance: [T]he Act proceeds on lhe basis thal orders will be made in favour of identified persons (who will usually be parties lo the proceedings or have indicated their consent to orders being made in their favour). As the presenl case iIlustrates, the fluidity of indigenous care arrangements do not 39 40 41

Submission lO lhe Nalional Inquiry into the Separation of Aboriginal and Torres Strait Islander Children {ram Their Families, quoted in Bringing them Home p486. (1997) 21 Fam LR 486 at SOS. Al 506.

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lend themselves to such a priori specificity and may give rise, as was again evident in this case, to criticisms about the uncertainty of arrangements for a child, which, depending on the facts found in a case, may be unwarranted. It appears to us thal the legislative recognition of indigenous culture and heritage in s 68F may need to be complemented by provisions which take account of the kinship care systems of Aboriginal and Torres Strait Islander peoples. 42

Re CP highlights two problems facing a family law system seeking to become more culturally inclusive in the context of children. The first concems structures, and in particular a willingness to recognise kinship structures other than the nuclear one, and to make provision for them in law. The second concems child-rearing values. In making decisions abaut children, judges are usually governed by the "best interesls" principle. 43 It tends to be assumed that the cancept of "the best interests of the child" is susceptible of an objectively determined content. The current s68F checklist, and specificalIy the reference to indigenous culture, are pointers to what that content should be in any particular case. But the chalIenge of becoming more flexible, more inclusive of other cultures, requires more than that: as Re CP illustrates, it requires an acknowledgment that there are different conceptions of the good, or that there are different ways of understanding what it means to bring up children well, which can easily be misunderstood by the dominant culture, and interpreted negatively in its own tenns. Twant to consider now sorne ways in which these problems might be addressed. IS A "MULTICULTURAL" FAMIL y LA W POSSmLE? It has been said that:

A constant for Aboriginal people is that non-Aboriginal systems and institutions do not recognise Aboriginal structures and ways of doing things. There is much rhetoric from non-Aboriginal Australians about being culturally aware. Such awareness on its own is no Ionger acceptable. Aboriginal social structures and codes of behaviour need to be formally acknowledged. 44 In the preceding discussion. 1 have suggested that there are real barriers, often unintended. in the way of a fuIl and fonnal acknowledgment of Indigenous child-rearing practices and values in Australian family law. 1 have suggested that there are two main problems: that of 42 43

44

As aboye. The "best interests" principie is not applied throughout the Family Law Act lO aH decisions affecling children, bul il does apply, for example, lo decisions about parenting orders: Family Law Act 1975 (Cth) s65E. Bourke & Bourke. "Aboriginal Families in Australia" in Hartley (ed). Families and CuLturaL Diversity in Australia (ABen & Unwin/AIFS, SI Leonards, NSW 1995) p69.

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structure, and particularly the structure of the nuclear family that seems so deeply embedded in Australian law, and which is so far removed from the social practices of sorne Indigenous groups; and those of values, in particular the values concemed with good and bad ways of raising children. 45 In this final section, 1 want to consider whether "multiculturalism" in the ALRC's sense of one law that is flexible enough for all, is possible. Taking the issue of structures first, we have seen that one of the difficulties in Re CP was that the order sought by the mother, that the custody of the child be vested in the child's kinship group, presented a problem for a legal syslem that seeks to attach responsibility for a particular child to a limited number of adults, preferably his or her biological parents. As the Full Court pointed out, orders are usuaJly made in favour of parties or those who have consented lo the arder being made, primarily for reasons of enforcement, since orders relating to children are not "readily enforceable by or against a re1atively amorphous group" .46 Yet, as we have seen, such an outcome may be at odds with the reality of Indigenous child care practices, in which responsibility is widely spread and frequently changing. A solution proposed by the Court, but not discussed in detail, was that a Tribal Elder could be nominated to accept responsibility for compliance. 47 While not providing a complete solution (not least because it lea ves the underlying nuclear assumplions of the law unchallenged), such a creative approach to order-making by the Court could ameliorate the cultural blindness of basic family law structures. We tum, then, to the question of values, or the criteria by which cases are lo be decided. One way of resolving residence disputes involving Indigenous children would be to adopt a private law version of ¡he Aboriginal Child Placement Principie. This has been advocated by Davis and Dikstein in the context of cases, like Re CP, in which the dispute is between a parent on the one hand and a non-parent substitute carer from a differenl racial group on the other. 48 Given the similarities with those child welfare cases in which ACPP is already operative, there seems to be a strong argument that the ACPP should extend into the realm of the Family Court's decision-making in such cases. 49 In cases involving disputes belween parents of children of mixed parentage, however, the consensus has been that ACPP would be inappropriate. 11 has been considered and rejecled

45 46 47

48 49

Similar poinls could be made abou\ lesbian families. (1997) 21 Fam LR 486 at 506. At 507. Davis and Dikstein, "It JUSI Doesn't Fit: TIte Tiwi Family and the Family Law Act - Can the Two be Reconciled?" (1997) 22 Alt U 64. This did not, in the end, occur in Re CP itself: when the case was reheard by a different trial judge, the same decision was reached as the original trial judge.

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by those who have addressed the issue, either judicially50 or as law reformers. 51 Further, it would run counter to Ibe "Family Court's reluctance to introduce presumptions of any sort into Ihis area. 52 In view of this, it seems that the "best interests" principIe will remain the yardstick for the foreseeable future. Tbe question that then arises is whether the best inlerests principIe, in the shape of a general, presumption-free and factor-driven standard, can be adapted so as to acknowledge the distinctivenature of Indigenous child care practices, and the associated conceptions of where a child's best interests might lie? Tbere are, I suggest, grounds forcautious optimismo The notion of a child's welfare or best interests, even when applied to the dominant culture, is historically specific. Different conceptions of children' s welfare have come and gone in the name of the best interests principIe. For example, the idea that an adulterous parent was unfit to care for children was accepted in the courts until quite recentIy, but would now be regarded as simply wrong. 53 Similarly, there has in recent years been a powerful trend towards emphasising the child's need to maintain contact with the nonresident parent, a trend Ihat has dramatically altered the landscape of decision-making in children's cases. 54 In addition to this, the fact that the best interests principie is, on its own, indetermínate, has Ied to heavy reliance on welfare professionaIs lo give Ihe principIe determinate content in particular cases; and these groups have themselves used the principIe as vehicle for their own professional ideologies. 55 Tbe historically conditioned and ideologically determined character of the best interests principIe has often been a basis for criticism of it;56 but, in this context, the malleability of the best interests principie, and its openness to inputs from other disciplines (such as antbropology), makes it potentially a suitable vehide ror a multiculturaI family law. Deployed sensitively, and wilh a consciousness of Indigenous child-rearing values, it can avoid the imposition of one set of values on another. However, the success of Ihe besl interests principie in this area depends on a number of factors, such as the availability and admissibility of evidence and the sensitivity of the 50 SI 52 53

54 SS 56

In the Marriage ofGoudge (1984) 54 ALR 514 al 524 per Evalt ej. Australian Law Reforrn Commission, The Recognition of Aboriginal Customary Laws (Repon No 31, 1986) p257; Australian Law Reform eommissíon, Multiculturalism and rhe Law (Repon No 57, 1992) para 6.39. B and B (1997) 21 Farn LR 676 at 734. See Smart, The Ties that Bind: Law, Marriage and the Reproduction of Patriarchal Relations (Routledge & Kegan Paul, London 1984) pp92-96. Sman & Neale, "Arguments Against Vinue - Must eontaet be Enforeed?" (1997) 27 Fam Law 332. This patlem is more c1early evident in the United Kíngdom than Australia. Fineman, "The Use of lhe Social Scienees in Custody Poliey-Makíng" in Fineman, The Illusion of Equality: The Rhetoric and Reality 01 Divorce Reform (University of Chieago Press, Chicago 1991) eh7. Grayear & Morgan, The Hidden Gender of I..aw (Federation Press, Annanda1e, NSW 1990) chlO; Secretary, Department of Health and Community Services v 1MB and 5MB (Re Marion) (1992) 175 CLR 218 per Brennan J.

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decision-maker to lhat evidence and its irnplications. B and R is a source for sorne optintism in this respecl. It suggests that the Fantily Court is willing to adrnit the relevant evidence, on the basis of equality of respect, and that it has understood the distinction between a tokenistic acknowledgment of the relevance of cultural identity and background and what Bourke and Bourke call a "formal acknowledgment" of Indigenous values and structures. 57 However, Re CP itself is evidence that there is still sorne way to go: that not all Fantily Court judges at first instance may display the sensitivity of the judges of the Full Court who gave judgment in B and R and Re CP. and that having the evidence does not autornatically mean that Indigenous practices will be given proper weight. More generally, there is the concem, already rnentioned, that B and R places a heavy evidential burden on Indigenous parents and cornmunities which non-Indigenous parents do not have to bear. In the light of this. what can be done to ensure Ihat the best interests standard achieves its potential for providing a flexible and inclusive basis for family law decision-making? There is no single answer, but there are a number of possible strategies. One of these is judicial education, so that Indigenous parties are not constantly under the evidential burden of proving the legitimacy of their difference. This is recornmended by Bringing them Home;58 and the Family Court has already started to take this seriously through the creation of its Indigenous and Torres Strait Islander Awareness Conunittee. 59 Another strategy would be further arnendment of the Family Law Act. This is also recornmended by Bringing them Home, which suggests two changes.6o The first is the addition of a new para (ba) to s60B(2), the subsection that sets out the objects and principies underlying Part VII of the Family Law Acr, which would incorporate Article 30 (see abo ve) directly into Australian law. 61 The second is the amendment of s68F(2)(f) to make it clear that the need of any Indigenous or Torres Strait Islander child to maintain contact with his or her cullure must be taken into account in deciding a child's best interests, as opposed lO the currenl drafting which appears lo leave it to the discretion of the judge. These changes would ensure that Indigenous parties would not have to establish the relevance of Indigenous culture. since ajudge would have no option but to consider it. However, it could be argued that these changes would do little more than declare what, in

57 58 59 60 61

Bourke & Bourke, "Aboriginal Families in Australia" in Hartley (ed), Families and Cultural Diversiry in Australia (Allen & UnwinlAIFS. SI Leonards, NSW 1995) p69. The Report recommends education tor all Family Court otficers involved in parenting disputes, including Registrars, counsellors and welfare officers: Bringing them Home p487. Harrison and Sandor, "News from the Farnily Court" Family Matters No 44 Winter 1996 pp38-39. Bringing them Home pp596-597. TIte new paragraph would read: "children of Indigenous origins have a right, in community with other members of their group, 10 enjoy their own culture, profess and practice their own religion. and use their own language": at p597.

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the wake of B and R, is already the existing law_ 62 In B and R, as we have seen, Ihe Court seemed to regard it as essential that the rights in Artiele 30 be vindicated where relevant. 1 suggest that something more is needed. We have seen that one of the problems encountered by Indigenous parents is that child-rearing practices regarded as normal and desirable in Indigenous society may be considered aberrant and harmful by dominant conceptions of children's best interests. The issue of mobility as against permanence, stability and the status quo is a central example. The changes proposed by Bringing them Home would not overcome that risk: the emphasis on connection with, or enjoyment of, their culture, however non-optional, may not be enough to persuade a judge to retum a child to live in an environment which, on a non-Indigenous view of things, is going to be harrnful to the child. I suggest, therefore, that the Full Court's suggestion in Re CP, Ihat s68F should be amended to "take account of the kinship care systems of Indigenous and Torres Strait Islander peoples",63 should be taken very seriously. I understand this to be a suggestion that judges should in fu tu re be directed to take account of the child care . practices and values of the Indigenous group concemed as a relevant factor in its decision making. 64 I am not suggesting that this would be an easy thing to dO: 65 it· would require extensive education of decision-makers, and a heavy reliance on evidence in each case as to what the values of a particular community are. Nor am I suggesting a complete slide into cultural relativism, so that the values of the minority group are determinative no malter what. That would seem to run counter to the legal policy of multiculturalism as presently understood. I am suggesting, however, that those minority values should be accepled in the decisionmaking process as proper and legitimate, to be weighed as such in the process of balancing the other factors relevant lO the child's best interests. In those family law cases in which an ACPP would not be appropriate (and they are likely to be a majority), factor-based decision-making of this sort, conscientiously exercised, is perhaps our best hope of achieving the flexibility and inclusiveness characteristic of a legal policy of multiculturalism. 66

62 63 64

65 66

The proposed amendment may change the onus of proof. (1997) 21 Fam LR 486 at 506. This is not a suggestion that the Family Court should recognise and give effect to Indigenous customary laws conceming children, ahhough any such laws would form part of the "practices and values" of which account should be taken. For a brief discussion, see McRae, Nettheim & Beacroft, Indigenous Legallssues: Commentary and Materials (Law Book Co, Sydney, 2nd ed 1997) pp446-469. It is possible, for example, that parents may come from different groups whose practices differ. Cf Sunstein, Legal Reasoning arul Political Conflict (Oxford University Press, New York 1996) who suggests that factor-based (as distinct from rule-based) decision-making is an essential technique in a society characterised by diversity and lack of consensus: see especially ch6.

Andrew McNicol*

PRINCIPLES OF PROPERTY LA W AND THE INTERPRETATION OF THE lNCOME TAX ASSESSMENT ACT 1936 (CTH) AND lNCOME TAX ASSESSMENT ACT 1997 (CTH) INTRODUCTION he British colonisation of Australia involved not only the introduction to Australia of the rabbit, fox: and prickly pear but also the transportation of the British cornrnon law including the law regulating the fragmentation of interests in real property. The law regulating the fragmentation of proprietary interests is a fundamental component of Ihe common law which, in the author' s opinion, is one of the foundation stones of the lncome Tax Assessment Act 1936 (Cth) (the Tax Act). In particular the fragmentation of proprietary interests can be understood in tenns of the distinction between income and capital. That distinction is one of the basic concepts of lax:ation law. Jt will be argued in this artide that an appreciation of the principIes of property law is needed by law makers, legal practitioners and others in applying, drafting, interpreting and teaching income tax law and practice.

T

In his artide on easements and capital gains tax, Patrick Cussen notes that the provisions of Part lIlA of the Tax Act are based on concepts of property law. 1 Cussen's observation is based on his review of the cornrnents of Davies and Einfeld 11 in Gray v Federal Commissioner ofTaxation (Gray's Case).2 Cussen states: The comments of Davies and Einfeld JJ appear to indicate that, in the absence of specific provisions in Pt lIlA, the concepts of property law should apply in analysing the application of the CGT provisions lo the grant of easements.

'"

2

B Com, LLB (Melb), LLM (Mon), ACA; Lecturer. Department of Business Regulation and Taxation. Faculty of Business and Economics. Monash University. A shorter version of this paper was presented by the author at the Australasian Law Teachers' Association conference al lhe University ofTechnology. Sydney. in Seplember 1997. This artiele now represents the final revised and expanded forrn of that papero Cussen, "The Granl of Easements and Capital Gains Tax: - Has the Commissioner Lost His Way?" (1994) 23 AT Rev 64. [1989] 2 ATe 4640 al 4643.

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This appears to be a sensible approach as the CGT provisions have at their heart the concepts ofproperty law. 3 The purpose of this article is to detennine whether common law principies of property law are reflected in the provisions of the Tax Act and in particular Part I1IA: the capital gains provisions of the Tax Act. In discussing these principies this artide will discuss the Federal Court decision of Hill J in Ashgrove Pty Ltd v Deputy Federal Commissioner of Tcuation4 (the Ashgrove Case) and the contents of Income Tax Ruling TR 95/35 issued by the Cornmissioner of Taxation following that case. That decision and the ruling provide useful discussion points regarding the interpretation of Part lIlA with respect to those principies. This article will al so examine the application of those principies to the proposed rewrite of the capital gains provisions that will eventually replace Part lIlA. It will be argued that certain property law principIes (relating to the fragmentation of

proprietary interests): l. are impIiedly incorporated into taxation law; 2. are only excluded by specific statutory provisions of the Tax Act; 3. need to be recognised in interpreting and utilising the current capital gains provisions of the Tax Act (Part I1IA) and the proposed rewritten capital gains provisions; and 4. should be a compulsory component of a subject for students who undertake studies in taxation law where their course will not otherwise cover those principies. For example, students who undertake business courses where such courses do not cover the principies of property law discussed in this paper. THE ALIENA TION OF INTERESTS IN REAL PROPERTY Historical Basis Property Iaw has for centuries recognised that freehold ownership of real property carried with it a right to grant lesser interests in respect of real property. Such rights would inelude the granting of life interests, tenancies and profits a prendre. For example, the cornmon law has for centuries recognised that the granting of alease alienates an interest in the land subject to the lease: "For nearly 500 years it has been recognised that alease is

3 4

Cussen, "The Granl of Easemenls and Capital Gains Tax - Has the Cornmissioner Lost His Way?" (1994) 23 AT Rev 64 al 68. [1994] ATe 4549.

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not a mere contract but creates rights in remo thal is lo say, an eslate or interest in the land demised."s William Blackstone devoted Chapter 4 in his second book of the Commentaries on the Laws of England to describing the historical origins of the feudal system: It is impossible lo understand, with any degree of accuracy, either the civil constitution of this kingdom, or the laws which regulate its landed property, without sorne general acquaintance with the nature and doctrine of feuds. or the feodallaw ... :6 The grand and fundamental maxim of all feodal tenure is this; that all lands were originally granted out by the sovereign, and are Iherefore holden, either mediately or irnmediately. of the crown. The grantor was called the proprietor, or lord; being he who retained the dominion or ultimate propeny of the feud or fee: and the grantee, who had only the use and possession, according to the terrns of the grant, was stiled the feudatory or vasal, which was only another name for the tenant or holder of the lands. 7 Although Blackstone's writings on the legal principies relevant to interests in land were published in the seventeenth century, those legal principies forrn the basis of the modem law of real property in Australia. In particular, it is critical to understand that the origin of those principIes is the feudal system. Under the feudal systemall interests, including interests in respect of real property, were ranked. The most important interesl was that of the sovereign, that is, all other interests were lesser interests with each lesser interest being granted by virtue of a superior interest. This ranking is still reflected in modem property law. For example, an interest in fee simple is greater than a leasehold interest which in tum is greater than a licence to occupy. Each interest is dependent on the existence of a superior interest. In addition, at any point in time only one of each particular type of interestcan exist with respect 10 a particular property. For example, two identical leasehold interests cannot be granted in respect of the same property. This ranking of interests and the ability to grant lesser interests is reflected in the Latin maxim "nemo dat quod non habet" (no one can give what he does not have). This maxim can be applied to interests in real property as the holder of a leasehold interest in property can create a lesser interest, such as a licence. but cannol creale a freehold interest (a superior interest) by virtue of holding the leasehold interest. 5 6 7

Bradbrook & Croft, Commercial Tenancy Law in Australia (Butterworths, Sydney 1990) pI. Blackstone, Commentaries on the Laws 01 Engkmd: Book II (University of Chicago Press, Chicago 1979, facsimile of 1st ed 1766) p44. Atp53.

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It is submitted that when a purchaser acquires a freehold interest in real property the purchaser is acquiring a bundle of rights in respect of that property inc1uding the right to alienate sorne or all of those rights. That ability to alienate or fragment the bundle of rights acquired by the purchaser is a fundamental concept that is embodicd in Part lIlA.

General PrincipIes The subject of interests in land and the alienation of such interests in land is discussed by Sackville and Neave. s The authors discuss such alienations in the context of the doctrine of estates, that is, the fragmentation of interests in land and the extension of that principIe to other types of property. The authors state: The doctrine of tenure has influenced the modem law in one important respect. By classifying interests in land according to the canditions on which they were granted (the tcnurial incidents), the doctrine of tenure recognised that the sum total of rights in relation to an object could be divided in many ways, so that a number of persons could have proprietary interests in a single piece of land. .., Land has certain special characteristics. While its use may change, its location is permanent and it may be capable of generating income forever. In these respects it differs from most chattels, although in modem times personal property such as stocks and shares may share the same characteristics of apparent pennanenee and ineome produeing potential. 9

The Position in Australia As discussed aboye, the English system of real property law evolved the principIes of land tenure over many centuries. When Britain began to acquire colonies those principies became part of the laws of the new colonies. In the decision of the High Court of Australia in Mabo v Queensland (No 2)10 (Mabo) the High Court exarnined the transportation of English cornrnon law principies of property law lo Ihe Australian colonies. In exarnining those principIes the High Court referred to a line of decisions that recognised the principie that, on the colonisation of New South Wales in 1788. the English law regulating interests in real property became the law in the colony of New South Wales and each of the other Australian colonies as they separated fram New South Wales.

8

Neave, Rossiter & Stone, Sackville and Neave: Property Law: Cases and Materials

(Butterworths, Sydney, 5th ed 1994) pp195-196. 9

As aboye.

10

(1992) 175 CLR 1.

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In Mabo Brennan J (as he then was) referred to two decisions of the High Court which recognised that the laws of England regulating real property became the laws of New South Wales at the time of colonisation:

The doctrine of exclusive Crown ownership of all land in the Australian colonies was again affinned by Stephen J. in New South Wales v. The Commonwealth ("the Seas and Submerged Lands Case"): ''That originally the waste lands in the colonies were owned by the British Crown is not "in doubt. Such ownership may perhaps be regarded as springing from a prerogative right, proprietary in nature, such as is described by Dr. Evatt in his unpublished work on the subject ... tbe prerogatives of the Crown were a part of the common law which the settlers brought with them on settlement..." Dawson J., following this line of authority in Mabo v Queensland, said that "colonial lands which remained unalienated were owned by the British Crown".11 Brennan J also cited the following passage from Randwick Corporation v Rutledge: On the first settlement of New South Wales (then comprising the whole of eastern Australia), all the land in the colony became law vested in the Crown. The early Govemors had express powers under their cornmissions to make grants of land. The principIes of English real property law, with socage tenure as the basis, were introduced into the colony from the beginning - all lands of the territory Iying in the grant of the Crown, and until granted forrning a royal demesne. 12

INCOME TAX LAW AND INTERESTS IN REAL PROPERTY The distinction between income and capital for tbe purposes of the Tax Act has, for many years, been a fruitful source of remunerative work for the legal and accounting professions. In its most basic forrn the distinction between income and capital can be described as the distinction between the land itself - the capital - and the product of the land - income. That distinction has been addressed by courts in many jurisdictions over many years. For example, probably the best known attempt to provide a layperson's definition of the distinction between income and capital are the comments of the Supreme Court of the United States of America in Eisner v Macomber:

1\

At 28. The cases referred to are New South Wales v. Commonwealth (\975) \35 CLR 337 at 438-439; Mabo v Queensland (1988) 166 CLR 186 al 236.

]2

(1959) 102 CLR 54 al 71, cited in Mabo (1992) 175 CLR \ al 27-28.

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The fundamental relation of "capital" to "income" has been much discussed by economists, the former being likened to the tree or the land, the latter to the fruit or the crop; the former being depicted as a reservoir supplied from springs, the latter as the outlet stream, to be measured by its flow during a periad of time. 13 The historical origin of the income and capital distinction is, in the aulhor's opinion, derived from principIes of property law, including those regulating the fragmentation of proprietary interests in real property, that evolved wich the development of che English cornmon law over many centuries. Those principIes became an integral part of Australian law following the British colonisation of Australia in 1788. A understanding of the fragmentation of interests in real property has significant implications for interpreting the various capital gains provisions of the Tax Act. Once it is acknowledged that rights with respect to real property can be fragmented, the issue then arises (and this issue is of signifícance with respect to the applicalion of Part lIlA) as to whether the fragmentation of an interest creates a new asset or splics off an existing right from a bundle of rights that collectively represents the freeholder owner's interest in the real property. This issue is important with respect to che application of the capital gains provisions of the Tax Act irrespective of whether the asset from which the interest was alienated was acquired by the owner before or after 19 September 1985. If the alienation does create a new asset then that asset will be an asset subject to capital gains tax and any malter giving rise to a disposal in respect of that new asset may give rise to a capital gain for the asset' s owner. Altematively if the alienation does not create a new asset and the asset from which the new asset was alienated was acquired before 19 September 1985 then that asset will nol be subject to the capital gains provisions of the Tax Act. If the old asset is ao asset subject to capital gains then, in the absence of sorne particular provision providing otherwise, there will be a part disposal of an existing asset and the issue of apportionment arises with respect to the cost base of the original asset.

The Competing Theories: Fragmentation or New Asset? The opposing views are as follows. The fírst view (known as the "existing rights" view) is that the rights accrue to the owner of the freehold at the time the freehold is acquired and are not created at the time the owner chooses to exercise or alienate those rights. 14 The exercise of those rights merely confirms the existence af those rights stemming from the ownership of a freehold interest in the land. The second and diamelricaIly opposing view (known as the "new rights" view) is that the alienation of the interest or right in land creates lhat interest or righl - that is, the right or interest is a new asset at least for income lax purposes. As such the alienation/creation of the new right gives rise to an asset subject lo capital gaios and any consequential capital gain so realised is included in the former 13 14

252US 189 at 206(1919). Gray's Case [1989] 2 ATC 4640.

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owner's assessable income. 11 should be noted thal the "new rights" view has been adopted by the Commissioner in Income Tax Ruling TR 95/35. Tax Cases Dealing with Interests in Real Property The cornrnon Iaw principIes regarding the nature of inleresls in land have been recognised by the courts in interpreting the various provisions of the Tax Act. For example, in Chelsea lnvestments Pty Ltd v Federal Commissioner 01 Taxation l5 lhe High Court of Australia, in delermining if a paymenl made by a landlord lo a tenanl lo abandon a leased premises was deductible under s88 of Ihe Tax Act, referred lo, with approval, various common law authorities dealing wilh the nature of alease. Furthermore, there have been subsequent decisions dealing with profits a prendre l6 (ie a right granted by the owner of real propeny 10 another that allows the grantee to remove sorne valuable commodity from the land such as standing timber or sand), the granting of leases l7 and restrictive covenants. For example, in Hepples v Federal Commissioner 01 Taxation l8 (Hepples' Case). a case dealing with a restrictive covenant, Deane J look the view in obiter dicta thal a profit aprendre was an asset thal was not created by the disposal but was a pre-existing asset and the granting of a profit a prendre or an enforceable easement (an interest in land) attracled lhe applicalion of sl60R (part disposals) and nOI s160M(6) (creation of new asset) of the Tax Act. His Honour commented: the grant of an enforceable easement or proftt a prendre would come within s. 160R as a disposal of part of the pre-existing right to use or exploit and the calculation of any resulting "capital gain" would make allowance for any resulting diminution in the value of Ihe subject property .19 The view of Deane J Ihat there is a disposal of a pre-existing asset is consistenl with established principies of property law. In Gray' s Case, the Full Federal Court examined the application of s l60ZS(l) to the granting of a ¡ease where the lease was granted over property acquired before 20 September 1985 (ie, the date on which the capital gains provisions of the Tax Acl became effective). In making their decision, Davies and Einfeld JI remarked that lhe granling of a lease was a part disposal of a pre-existing assel. Their Honours stated thal the submission

15 16 17 18 19

(1966) 115 CLR 1. Ashgrove Case [1994] ATC 4549. Federal Commissionerof Taxation v Cooling [1990] 2 ATC 4472. [1991]ATC4808. At 4821.

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of the taxpayers that the grant of alease constitutes the part disposal of an asset had much to commend it. 20 However, in the Ashgrove Case 21 Hill J of the Federal Court too k the view that the granting of a profit a prendre over land acquired before 20 September 1985 was the creation of a new asset and not the disposal of a pre-existing asset.

THE ASHGROVE CASE: A PRACTICAL EXAMPLE OF THE ISSUES The facts in the Ashgrove case required Hill J to consider the distinction between determining the income tax status (capital or income) of payments having a common source: the disposal of standing timber on real property where the real property was acquired before 20 September 1985. That case serves as a good illustration of the importance of analysing the income tax nature of interests acquired and disposed of so as to identify and quantify the resulting income tax consequences. The Ashgrove Case involved appeals to the Federal Court by five taxpayers, four individuals and a company, against assessments issued by the Cornmissioner of Taxation. Each taxpayer had received payments under standard form contracts in which the taxpayers disposed of standing timber situated on rural properties in Tasmania. The purchasers of the timber were either North Broken Hill Ltd or Forest Resources, a division of HC Sleigh Resources Ltd. The facts cornmon to all the taxpayers in the Ashgrove Case were as follows: l. Each taxpayer received payments in respect of agreements for the sale of standing timber situated on real property owned by the taxpayers. 2. Each taxpayer had acquired the real property upon which the standing timber subject to the agreement stood prior to 20 September 1985. 3. The agreements were standard documents used by the two purchasers. Each agreement gave the purchaser the right to cut standing timber and granted the relevant purchaser the right to enter the taxpayer's land and the right if necessary to construct access roads. The consideration payable was either a set price and/or an agreed cate per tonne of timber cut and removed. 4. Each agreement was similar to the type of agreement used in Stanton v Federal Commissioner ofTaxation 22 (Stanton 's Case).

20 21 22

[1989]2 ATC 4640 at 4643. [1994] ATC4549. (1955) 11 ATD 1.

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In Stanton' s Case the court held the relevant agreement was not for the payment of a royalty (a payment calculated by reference to the quantity of timber cut) but a payrnent of a capital nature receiyed for the sale of a capital a55et: the standing timber and therefore the amount payable under the agreement was of a capital natUfe and non-assessable. In the Ashgrove Case the Commissioner assessed each taxpayer on the basis that the payments for the standing timber were amounts assessable: (a) under s25(1) as ordinary in come being: (i) royalties; or (ii) amounts referable to a venture in the nature of trade, that is, a business of selling standing timber; or (b) under Part lIlA as the agreements involved the creation of an asset for the purpose of sI60M(6) or s160(7), being the: (i) grant of an interest in land, being a "profit contract for the sale of the timber; or

a prendre"23 rather than a

(ii) sale of timber as distinct fram the sale of standing trees. The agreements, therefore, involved the creation of an asset for the purposes of ss 160M(6) or (7) of the Tax Act and the proceeds were fully assessable under Part nrA. Each taxpayer claimed the contracts were for the sale of goods and as the goods were acquired before 20 September 1985, that is, pre-capital gains, the proceeds were nonassessable capital receipts. Altematiyely if the agreements did create an interest in land subject to Part I1IA then the consideration should be apportioned under sI60ZD(4) of the Tax Act. Each taxpayer denied that the proceeds were assessable under s25(1) or as royalties under s26(f) of the Tax Act. In making his decisions in the Ashgrove Case 24 HilI J considered the possible application of Part IIIA, the creation of assets and ss160M(6) and 160M(7) prior to their amendment following the decision of the High Court in Hepples' Case,25 income under ordinary concepts, apportionment under 5160ZI, part disposal under sl60R and rayalties for the purposes of the Tax Act. In particular the decision raises a fundamental capital gains issue regarding the granting of interests oyer real property and therefore has implications for the

23 24 25

[1994] ATC 4549 al 4557. As aboye. [1991] ATC 4808.

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interpretation of the current s160M(6) of the Tax Act and the provisions that will replace that subsection. In addition, from a tax planning perspective, the decision highlights first the need to analyse carefully the rights to be granted, created or destroyed by contracting parties prior to executing timber and other agreements creating similar rights. Secondly the decision highlights the need to ensure that the intended income tax consequences of such agreements are in fact achieved and no unforseen income tax Iiabilities crystallise. Following the Ashgrove Case, on 25 May 1995 the Commissioner issued Income Tax Ruling TR 95/6. 26 In that ruling the Commissioner sets out his views on the taxation of receipts arising from the forestry industry, including the taxation of receipts, under sI60M(6), referable to a profit a prendre. The Commissioner's views are discussed below.27

Capital Gaios Nature of the lnterest Sold

TIte critical Part lIlA issue in the Ashgrove Case was the determination as to whelher each taxpayer was disposing of an existing assel (the timber) as distinct from an asset created from an existing asset (the right to the produce from the land). Hill J found, after a detailed review of case law and legislation dealing with the sale of goods, that as each taxpayer had disposed of an asset, namely the timber, and as the asset had been acquired before 20 September 1985, Part lIlA had no application to the disposal of the timber. Hill J applied the decision in Marshall v Green 28 to conclude that the agreements were for the sale of goods and not an interest in land. Hill J quoted the following passage of Sir Edward Vaughan WiIliam' s judgment in Marshall v Green: TIte principIe of these decisions appears to be this, that wherever at the time of the contract it is contemplated that the purchaser should derive a benefit from the further growth of the thing sold from further vegetation and from Ihe (mtriment lo be afforded by the land, the contract is to be considered as for an interest in land; but where the process of vegetation is over, or the parties agree that the thing sold shall be immediately withdrawn from the land, the land is to be considered as a mere warehouse of the thing sold, and the contract is for goodS. 29

26 27 28 29

Income Tax Ru1ing TR 95/6, lncome Tax: Primary Production ami Forestry. See below, pp250-251. [1875] 1 CDP 35. Al 39, quoled in [1994] ATC 4549 al 4558.

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Applying the principie in Marshall v Green lo the facts of each taxpayer, Hill J concluded that the contracts did not give the purchasers an interest in the land but provided for a disposal of part of the land: the standing timber. Hill J stated: The surrounding circumstances make it abundantly c1ear in each case that the interest of the purchaser in the transaction was to secure a supply of timber to be felled and carried away. As has already been noted, the tests in Marshall v Green involve disceming from the tenns of the agreement and the events which in fact happened. whether the contemplation was that the purchaser would derive a benefit from further growth .... Although none of the agreements created an obligation upon the purchaser to remove timber immediately, in aH cases it appears that logging began almost irnmediately the agreements were entered into .... 1 see no reason to conc1ude that the purchaser desired to obtain a benefit from the land itself rather than to acquire the cimber "warehoused" on che land. 30

Granting Rights of Access, Storage and Road Construction Each contract in the Ashgrove Case also gave the purchaser the right of entry to the taxpayer' s land and the right to construct access roads. For example, c1ause S of the agreement between taxpayer Gooch and North Broken Hill Ltd granted a right of access to the Purchaser and its contractors and its and their servants, agents and employees together with its or their vehic1es, tools and machinery free access at aH times during the period of and for the purposes of this Agreement. 31 Clause 6 of that agreement gave North Broken HilI Ltd the right to construct access roads (clause 6(a)) and to quarry material from the taxpayer's land for the purposes of building and maintaining any road required for the purposes of extracting the timber (clause 6(b)). Those rights of access and road construction were regarded by Hill J as ancillary to the timber rights notwithstanding the facI that the granting of such rights created an equitable profil a prendre. As was stated by Hill J: 1 have concluded that each of the agreements should be treated as being an agreement for the sale of goods to which the right to en ter and sever the timber was ancillary, rather than as being an agreement for the sale or creation of an interest in land. To the extent that each agreement conferred upon the purchaser a right to quarry for the purpose of building roads through the property and in aid of the timber getting agreement, it did create an equitable profit prendre, but the grant of the right was ancillary

a

.30 31

[1994]ATC4549at4561. At 4565.

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to the timber rights and no separate consideratíon was payable in respect of it. It may thus be disregarded for present purposes. 32

Section 160Z1 and Apportionment Hill J found that the timber was in all cases an asset acquired before 20 Septernber 1985 and consequently an asset not subject to Part I1IA. However, HiIl J noted that if the timber had been subject to Part IDA then the appropriate method of .determining any capital gain or 10ss would require an apportionment, as required by s160ZI, of the composite asset's cost base, that is, the land and the timber. Hill J remarked: Had the land been acquired after 20 September 1985, the provisions of Pan lIlA would apply as a disposal of part of the realty and s. 160Z1 of the Act would have application to determine the cost to be attributed to the trees. 33

Section 160M(6): The Creation o/ New Assets and Competing Theories As noted abo ve, HilI J found that the agreements did not create a profit a prendre, that is, an interest in the land. However by way of obiter dicta, Hill J made sorne cornments regarding a profit a prendre and Part lIlA. Hill l' s comments are very clear on these points: Had I been of the view that the agreement should be characterised as an agreement for the sale or creation of an interest in land (rather than a sale of that which was formerly part of the land), then 1 would have had no difficulty in concluding that there was a disposal, within s. 160M(6), which resulted in the total receipts under each of the timber agreements being included in assessable income by the provisions of Part lIlA of the Act. Whatever the difficulties may be in construing s. 160M(6), there seems no difficulty in that sub-section applying to the creation out of an existing asset of a new proprietary right. ... Whatever else s. 160M(6) may embrace, its language is apt to treat the grant of a profit a prendre as a disposition. The interest created, if there be a grant of a profit prendre, is clearly an asset as defined in s. 160A; the interest is an asset which did not exist prior to the grant operated to create that interest. The profit a prendre would have been created by the very act which constituted the disposal and in the result s. 160M(6) would apply. There would be no offsetting amounts of the kind described in the section, with the

a

32 33

At 4562. As aboye.

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consequence that the gross proceeds would form part of assessable income. 34 This remark by HiII J is very significant as his Honour has, at least in respect of a profit a prendre, indicated that he regards the granting of an interest in land as the creation of a new asset. This view is of particular significance with respect to the application of the capital gains provisions of the Tax Act because if Hill J is correct then the creation of such a new asset will give rise to a capital gain (under the old sI60M(6» at the time the new asset is created irrespective of when the asset (from which the new asset was created) was acquired. But, more importantly, HiII J' s approach indicates that he subscribes to the single asset theory as discussed below. ASSET CREA TION OR PART DISPOSAL OF AN EXISTING ASSET? Hill l' s cornments indicate that his Honour accepts the view that a freehold interest in land is a single asset, as discussed in Quinn' s articIe. 3s That particular view is diametrically opposed to the bundle of rights theory as discussed and favoured by Barkoczy and Cussen. 36 Their artiele builds upon the written cornrnents of Inglis 37 Ihat a series of rights are conferred on the owner, for example, the right to grant alease interest, a licence or a profit a prendre. This issue is also discussed with respect to easements by Cussen. 38 The distinction between the bundle of rights theory and the single asset theory is of critical importance where the taxpayer acquires an asset before 20 September 1985 and then disposes of an interest in that asset after that date. If the single asset approach is adopted then the granting of a profit a prendre or indeed any right in respect of a freehold interest will fall within sI60M(6) (as it was then). Altemalively if the bundle of rights theory is adopted the taxpayer is disposing of a right acquired at the time the taxpayer acquired the freehold and consequently sI60M(6) could never apply to assess the consideration paid or payable to the taxpayer as the taxpayer would be disposing of a pre 20 September 1985 asset. The distinction would be equally important where the asset was acquired after 19 September 1985 because sI60M(6) would apply, and the realised capital gain would be caIculated with a minimal cost base as calculated under sI60M(6A) and not the potentially greater cost base which would be calculated under sl60ZH of the Tax Act.

34 35 36

As aboye. Quinn, '''0 Death, Where ls Thy Sting?': Capital Gains Tal{, Life Estales and Remainder Inlerests Under a WiIl" (1994) 6 CCH J o[ Aust Tax 56. Barkoczy & Cussen, "Capital Gains Tax and the Grant of Life and Remainder Interests Under Wills: The Debate between the Creation and Part Disposal Views" (1993) 22 AT Rev209.

37 38

Inglis, "Commenls on Commissioner's Views Concerning CGT and Life Estates" (1991) 50 (12 Nov) BWf Bull [828]. Cussen, "The Grant of Easements and Capital Gains Tax - Has the Commissioner Los! His Way?" (1994) 23 AT Rev 64.

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The issue of the part disposal or the ereation of an asset is also critieal in the applieation oC the new sl60M (as diseussed below). The Arguments for the Bundle of Rights Theory

In the author's opinion the bundle of rights theory, in respect of interests in real property and other forrns of property, is to be preferred to the single asset theory for the following reasons: (a) The definition of asset in s160A is widely drafted and ineludes any forrn of property, a chose in action or other right. This definition would inelude any interest in land sueh as a profit a prendre, a leasehold interest or a lieenee; (b) The bundle of rights theory has judicial support in at least two cases: the majority decision of Davies and Einfeld JJ in Gray's Case 39 and the High Court judgment of Deane J in Hepples' Case;40 (e) The bundle of rights theory is eonsistent with long established principies of property law. 41 As such, there can (in respect of at least real property) be a part disposal of a lesser asset than the freehold and consequently the taxpayer is required to apportion the cost base of the asset fragmented by the alienation; (d) The bundle of rights theory is specifically reflected in the capital gains provisions of the Tax Act, such as s 160R, s 160ZS and s 160ZSA. That is, the bundle of rights theory is only displaced by the single asset theory when the Tax ACI specifically provides for such displacement; and (e) Arguments for the single asset theory, as analysed below, are based on cases that deal with taxation statutes other than the Tax Act and are inconsistent with basic principIes of property Iaw. As the definition of asset in Part I1IA is widely drawn, any interest in real property is an asset for Part I1IA purposes and such an asset will be subject to the general provisions of Part I1IA unless Parliament has decided otherwise. An example of where Parliament has decided otherwise is s l60ZS (grant of lease lo constitute disposal). In Ihe absence of a specific provision the asset will be subject lo the ordinary rules of Part I1IA and the time of acquisition of that asset will be determined under either s 160U(3); (acquisition or disposal under a contract) or s160U(4) (acquisition or disposal not under contract). Section 160U(3) provides that the time of acquisition is the time of the making of the eontract and 39 40 41

[1989] 2 ATC 4640. [1991] ATC 4808. For example, Blackstone, Commentaries on the Laws of England Book Il p53 and Neave, Rossiter & Stone, Sackville and Neave: Properry Law: Cases and Materials pp 195-196.

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s160U(4) provides that the time of acquisitíon is when the change of ownership of the asset occurred. As such, when a taxpayer acquires, for example, a freehold interest in respect of real property the taxpayer acquires a series or a bundle of rights, in respecl of that freehold interest and the acquisition time of those rights will be determined under s160U(3) or sI60U(4) unless a specific provision such as s160ZS applies. As discussed aboye, in Gray's Case Davies and Einfeld 11 stated that the subrnission of the taxpayers that the granf of alease constitutes the part disposal of an asset had much to commend it. 42 Similarly, in Hepples' Case Deane J by way of obíter dicta stated that: "the grant of an enforceable easement or profit a prendre would come within s. 160R as a disposal of part of the pre-existing right to use or exploit...". 43 Both these remarks indicate that their Honours took the view that the granting of the respective interests was the disposal of an existing asset, as distinct from the creation of a newasset. The drafting of Part lIlA is based on an underlying assumption that favours the bundle of rights theory as against the single asset theory. For example, s160R is a general provision providing for the part disposal of a Part lIlA asset. That is, the drafting of Part lIlA recognises that an asset may be divided into parts. Such a division would ¡nelude the fragmentation of the various interests (each a Part lIlA asset) that are acquired when a taxpayer acquires an interest in real property. In direct eontrast to s 160R the single asset theory is only recognised in the Tax Act by statutory exception. Section 160ZS (grant of lease to constitute disposal) is drafted in a manner that recognises that the granting of a lease is the disposal of a pre-existing asset from a collection of assets. The effect of s160ZS is to deem the granting of the lease to constitute the disposal of an asset by the lessor to the lessee and not "to constitute the disposal of part of the property". That is, s 160ZS abrogates the cornmon law position of the fragrnentalion of proprietary inlerests in land that has been adopted as an underlying principie in the drafting of Part lITA. This abrogation was recognised by the Full Federal Court in Gray's Case, where Davies and Einfeld JJ cornmented: we reject the altemative view ... that Parliament had in mind that capital gains tax would not apply to premiums received on leases granted over property acquired prior lo 20 September 1985. The Aet prescribes that the granl of alease will nol be looked upon as Ihe part disposition of property .44

42 43 44

[1989] 2 ATC 4640 al 4643. [1991] ATe 4808 al 4821. [1989]2 ATC 4640 al 4644.

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Arguments for tbe Single Asset Tbeory In the Ashgrove Case4 5 Hill J cited his own judgement in Federal Commissioner of Taxation v Cooling 46 where he referred to a profit a prendre as an example of a situation falling within s160M(6): In this Court 1 illustrated the case of a grant of a profit el prendre or easement as an example of a case falling within the sub-section: see FC of T v Cooling. 47 Hill J also believed his opinion regarding s160M(6) and the granting of a profit a prendre was correct because the High Court had not rejected his proposition. He remarked that: "no judge of the High Court expressed the view that the grant of a profit el prendre did nOI fall within the section."48 Whereas the High Court in Hepples' Case did not reject HiII J's proposition, the rejection, acceptance or refinement of that proposition by the High Court was nol necessary as the High Court was not considering the issue of sI60M(6) and a profit a prendre Can interest in real property) but a restrictive covenant granted by an employee to an employer which was a malter dealing with the employer's goodwill. The view of Hill J in the Ashgrove Case is in direct contrast to the view of Deane J in Hepples' Case. It would appear that whilst both views are only of persuasive authority (being merely obiter dicta) the view of Deane J wou1d carry more weight since it is a judgement of the High Court. In addition, HiII J's opinion is contrary to that of Davies and Einfeld JJ in Gray's Case,49 as noted aboye. Quinn makes the following points regarding the argument by Barkoczy and Cussen that a profit a prendre is not a part disposal of a pre-existing asset: 50 (a) such a view is not supported by the Commissioner of Taxation in IT 2561; (b) IT 2561 follows the decision in Gray' s Case, and that case can be used to support the

proposition that an easement or a profit same lime. 51 45 46 47 48 49 50 51

aprendre is an asset created and disposed of at the

[1994] ATC 4549. [1990] 2 ATC 4472 at 4489. [1994] ATC 4549 al 4562. As aboye. [1989] 2 ATC 4640 al 4643. Quinn, '''O Death, Where Is Thy Sting?': Capital Gains Tax, Life Estates and Remainder Interests Under a Will" (1994) 6 CCH J ofT56. At 61. Quinn is referring 10 the folIowing commenlS (by way of obiter) of Sheppard J in Gray's Case: "In passing I should mention that the provisions of subsec 160U(3) and (6) of

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(e) Quinn states that "the grant of an easement or a profit a prendre is more akin to the creation of assets in that the full ownership of the asset is reserved by the grantor notwithstanding the faet that the value of that asset may diminish as a result of the transaction";52 and (d) the views of Deane J that the grant of a profit aprendre falls within sl60R "also appear to be in conflict with the decisions in DKLR Holding Co (No 2) Pry Ltd v Cornrnr of Starnp Duties (NSW) and Cornrnr of Taxes (Qld) v Carnphin."53 In particular the decision in DKLR Holding Co (No 2) Pty Ltd v Commissioner of Stamp Duties (NSW) "stands for the proposition that ownership when vested in the one person does not ínelude a substratum of proprietary rights as a legal abstraetion". S4 Although there is sorne merit in the views of Quinn, Ihe present author believes that the following matlers qualify and reduce (he effecti veness of Quinn' s arguments: (a) The views in IT 2561 are the Cornmissioner's views and not do not neeessarily eorreetly state the law. IT 2561 uses the single asset theory as its basís whereas, for the reasons diseussed in this article, Ihat theory is inappropriale for the general interpretation of Part lIlA. (b) Gray's Case deals with the granting of alease and not an easement or a profit a prendre. More importantly, as discussed aboye, the court in Gray's Case recognised that s160ZS was an exeeption to lhe general rule regarding the alienation of interests in land and Part OlA. Ce) There is either the creatíon of an asset or there is nol. Arguing by analogy that sornething is "akin to the creation of an asset" is useful but not detenninative partieularly where there is High Court authority (Deane J in Hepples' Case) which recognises that the granting of an enforeeable right such as a profit a prendre is a disposal of a pre-existing asset. (d) Quinn aeknowledges that the granting of an interest in land may diminish the value of the superior interests in the real property. Whereas the issue of value is important, it is not a conelusive factor in ascertaining whether there has been the crearion of a new asset. Indeed rhe alienation of a leasehold interest may actually increase the value of the freehold interest. For example, the valuation of high rise offiee buildings is usually based on the rental income that the building will generate and the acquisition of long term tenants for

52 53 54

the Act are such as to bring to tax gains made on the grant, on oc aftee 20 Septembee 1985, of other interests in land held before that date, for instance, an easement oc a profit a prerulre": [1989]2 ATC 4640 at 4645. At 61. As above. DKLR Holding Co (No 2) Pty Ltd v Cornmissioner 01 Stamp Duties (NSW) (1982) 149 CLR 431; Commissioner olTaxes (Qld) v Camphin (1937) 57 CLR l27. At 59.

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such buildings makes such buildings attractive investment properti~s. This factor was behind the various tease incentives that were offered to and accepted by many tenants in the late 1980s and early 1990s resulting in such cases as Federal Commissioner of Taxation v Cooling 55 and Selleck v Federal Commissioner 01 Taxation. 56 (e) The decision in DKLR Holding Co (No 2) Pty Ltd v Commissioner 01 Stamp Duties (NSW)51 can be distinguished on a number of grounds. That decision was dealing with the Stamp Duties Act 1920 (NSW) and not the Tax Act. Even if that case does stand for the proposition that ownership when vested in the one person does not inelude a substratum of proprietary rights as a legal abstraction, such a distinction is not a sound basis for arguing that the alienation of an interest by the owner is necessarily the creation of a new asset. The absence of a substratum of proprietary rights does not mean that such rights do not exist. The critical issue is the ability of the owner of the fee simple to alienate such rights. The owner, for the reasons discussed aboye, does not create such rights. The owner acquires the rights when the owner acquires the fee simple interest. The act of alienation only severs the right (an existing asset) from the fee simple. The Current sl60M(6)

In the Ashgrove Case the court was considering sI60M(6) as it was prior to the 1992 amendments, which apply to transactions which too k place after 25 June 1992 (see Taxation La.ws Amendment Act (No 4) 1992 (Cth) s25(b)). The new sI60M(6) reads as follows: Subject to this Part (other than subsection (7) of tbis section), if: (a) a person creates an asset that is not a form of corporeal property; and (b) on its creation, the asset is vested in another person: tben subsections (6A) and (6B) apply. The new sI60M(6) bas three threshold requirements. The fírst requirement is that s 160M( 6) plays a residual role as s 160M(6) is read subject to the other provisions of Part lIlA. That ¡s, sI60M(6) only applies where no other provisions of Part IlIA apply. For example, if s l60R (part disposals) or s 160SZ (grants of leases) apply to a Part lIlA asset, then sI60M(6) cannot apply.

55 56 57

[1990) 2 ATe 4472.

(1996) 33 ATR 543. (1982) 149 CLR 431.

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The second mreshold requirement for the application of the new sI60M(6) is Ihat a person creates an asset that is not a form of corporeal property. The term "corporeal" is not defined in the Tax Act. Using common law principies from property law. a corporeal asset is an asset having a physical existence such as land. Incorporeal assets are assets having no physical existence. that is. intangible assets such as goodwill or contractual rights. As such the new s160M(6) prima facie applies to a profit a prendre or indeed any interest in land because such interesls are forms of "incorporeal property". However, me third threshold requirement for the application of sI60M(6) is that the incorporeal asset was created by the person who disposed of that asset. If the asset was not so created sI60M(6) cannot apply. The application of the bundle of rights theory or the single asset theory beco mes critical in detennining the application of the new s 160M(6). as two of the three threshold requirements (one and three as discussed aboye) for the application of sI60M(6) are memselves determined by the application of either the bundle of rights theory or the single asset theory. If the single asset theory is correet then s160M(6) will apply to the alienation of any interest in land irrespective of when that land was acquired. Altematively if the bundle of rights approach is correct the alienation of an imerest in real property acquired after 19 September 1985 will be a part disposal and subject to sl60R or a specific provision of Part IllA such as s 160ZS. If the real property was acquired before 20 September 1985 Part llIA will not have any application in the absence of a specific taxing provision such as s160ZS. Assurning that the bundle of rights theory is correct, then it follows that the ownership of real property gives the owner the right to dispose of part of the real property. This means, in tum, that the alienation of an interest in respect of that real property will be a part disposal of the asset. If the real property was acquired before 20 September 1985 then s 160P and s 160R will apply to apportion part of the cost base of the asset subject to the disposal proceeds. The Explanatory Memorandum to the new s 160M(6) states that it is a residual provision. that is. the new sI60M(6) would only apply when sorne other provision of Part lIlA does not apply to the asset in question. In particular the Explanatory Memorandum makes it clear mat sI60M(6) will not apply if the asset is a pre 20 September 1985 asset: if either subsection 160M(6) or 160M(7) and another provision of Part llIA could apply lo a particular transaction, that olher provision will apply. Subsection 160M(6) and 160M(7) will not apply. This wi11 be the case, for example, where the transaction constitutes the disposal of the whole or of part of me existing asset for the purposes of Part I1IA. even if the asset was acquired before 20 September 1985. 58 58

Explanatory Memorandum to Taxation Laws Amendment Bill (No 4) 1992 (Cth) p78.

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In addition, that Explanatory Memorandum uses the example of the granting of a tenancy in common as an example of the disposal of part of an existing asset. For example, the owner of a block of land may sell part of his interest in the land to another, thereby creating a tenancy in common. Because the sale constitutes a disposal by the person of pan of his land, neither subsection 160M(6) nor 160M(7) will apply.59 Lehman & Coleman note that the new s160M(6) plays a residual role in that, where a taxpayer grants a profit aprendre, the disposal will be a part disposal and the cost base of Ihe assets will be deterrnined under s 160ZI.60 They base Iheir view on the obiter dicta of Deane J in Hepples' Case. 61 They also refer lo Cussen's anide as casting serious doubl on Ihe Commissioner's views. 62

Income Tax Ruling TR 95/6 and the Creation of Interests in Land Paragraphs 76-82 of TR 95/6 63 deal wilh Ihe granting of a profit a prendre. Commissioner's views are as follows. Where the profit a prendre was granted:

The

(a) after 19 September 1985 but before 21 September 1989 there is a pan disposal of an existing asset and Part lIlA will not apply if the land was acquired before 20 September 1985;64 (b) after 20 September 1989 but befo re 26 June 1992, the granting of the profit a prendre is the creation of a new asset by the grantor and a disposal of that asset. The disposal proceeds are taxable under s160M(6). In support of his slance lhe Commissioner cites the obiter from the judgment of Hill J in the Ashgrove Case;65 and (e) after 26 June 1992 the proceeds are taxable under the new sI60M(6).66 In TR 95/6 Ihe Commissioner splits lhe application of the old s 160M into 2 periods, before and after 21 September 1989. The split is due to the date of the decision in Gray's Case

59

60 61 62 63 64 65

66

Asabove. Lehmann & Coleman, Taxatioll Law ill Australia (LBC Infonnalion Services, Sydney, 4th ed (996) p267. As aboye. For the abiter dicta af Deane J in Heppler' Case, see text lo fn 19, aboye. Cussen, uThe Grant of Easemenls and Capital Gains Tax - Has the Cornmissioner Lost His Way?" (1994) 23 AT Rev 64, cited in Lehmann & Caleman, Taxation Law in Australia p268. Income Tax: Ruling TR 95/6, [lIcome Tax: Primary Produclion and Foreslry. Al para 77. At para 78-80. At para 81-82.

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(ie 1989). In Gray's Case Sheppard J, by way of obiter dicta, made the following cornment regarding profits a prendre and the capital gains provisions: the provisions of subsec. 160U(3) and (6) of the Act are such as lo bring to tax gains made on the grant, on or after 20 September 1985, of other interests in land held before tbat date, for instance, an easement or a profit a prerulre. 67 In Income Tax Ruling IT 2561 the Commissioner states that, following the decision in Gray's Case, easements, profits a prendre or licences granted after 20 September 1989 would be taxable under Part lIlA irrespective of when the land subject to the easement, profit a prendre or licence was acquired. 68 The Commissioner's views in both IT 2561 69 and TR 95/670 are based on an opinion that accepts the single asset theory over !he bundle of rights theory. The author believes, for the reasons set out abo ve, that the Cornrnissioner's view regarding the taxation of receipts referable to a profit a prendre (or indeed any interest in land) under both the old and the new s160M(6) are flawed except in respect of a profit a prendre granted after 19 September 1985 but before 21 September 1985. APPORTIONMENT

The Real Issue As discussed aboye, in the absence of statutory provisions to the contrary. the bundle of rights theory is to be preferred to the single asset theory in applying the capital gains provisions. As such, the real issue, in the author's opinion, for the taxpayer under the selfassessment system is to apply sl60R (part disposal) and consequently make the corree! apportionment in respect of the asset' s cost base when Ihe assel subject lO the part disposal is an asset subject to Part IDA. How does a laxpayer determine the cost base of a profit a prendre, a leasehold ¡nterest or indeed any interest in land at Ihe time Ihe taxpayer acquired the land? There is no easy answer. Take, for example, a laxpayer who acquires in 1996 a freehold inlerest in land for $100 000. Two years later, in 1998, the taxpayer grants, for $50 000, a profit a prendre lo a timber company lo extract 10 000 loones of timber from the land for the next 10 years. The timber harvesting wiU begin in 5 years time, ie in 2003. Section 160M(6) cannot apply because, notwithslanding the fact that a profit a prendre is a form of incorporeal 67 68 69 70

[1989]2 ATC 4640 at 4645. Income Tax Ruling IT 2561, Income Tax: Capital Gains: Granrs o/ Easements, Profits Prendre and Licences al para 16-18.

As aboye. lncome Tax Ruling 1R 95/6, Income Tax: Primary Production and Forestry.

a

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property, it is not created, for the reasons discussed abo ve, by the person disposing of that asset as that persoo acquired the asset when the freehold interest was acquired. As sI60M(6) does not apply the cost base of the profit a prendre is not deemed by sI60M(6)(c) to be nil. The asset's cost base will be detennined under s160ZH. Depending on the taxpayer's records and circumstances the cost base wiU be anywhere between nil and $50000. A Solution? To avoid the considerable practical problems of identifying the cost base of an asset acquired with other assets a simple solution would be to regard the "bundle of assets" as a composite asset for Part lIlA purposes. When the owner receives an amount (that is not assessable under sorne other provision of the Tax Act) referable to that composite asset the cost base or indexed cost base of that asset would be reduced by the amount of the consideration received for the disposal of part of the composite asset. If the proceeds exceed the cost base of the asset the excess would be assessable as a capital gain. This principIe is already utilised in Part lIlA in sl60ZM (retum of capital on investrnent in trust) and sl60ZL (retum of capital 00 shares). If the asset were acquired before 19 September 1985 then Part I1IA would have no application unless the Tax Act was specifically ameoded to deem, as a general principIe, the fragmented asset to be acquired after that date. Currently, the Tax Act only uses such deerning with respect to specific circumstances. For example, this is the situation under s 160ZS (grant of lease to constitute disposa\).

THE NEW CAPITAL GAINS PROVISIONS In lune 1997 the Australian Taxation Office released the document entitled Tax Law Improvement Project: Exposure Draft No 10: CapitaL Gains Tax Part 1 (CGT Draft 1).71 That document is the first stage of lhe rewrite of Part lIlA. Part 2 was released in September 1997. The ATO expects that the new capital gains provisions will be enacted as Divisions 100 to 142 of the lncome Tax Assessment Act 1997 (Cth), and will apply as from the 1998-99 income year. The purpose of rewriting the capital gains tax (CGT) provisions was nol to amend the existiog CGT provisions but to reduce the language in which the CGT provisions were expressed to simple English that could be readily understood. The authors of CGT Draft 1 make the following cornments:

71

Reproduced in Tax Law Improvemenr Projecl: Exposure Draft No JO: Capital Gains Tax Parl J: Exposure Draft and Explanatory Memorandum, June 1977. in CCH Austra/ian Income Tax Bilis service.

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In rewriting the CGT law, we have looked closely al what is going on in relation to each event so we can re-express that in terms not of an artificial structure but in terms of reality .... Currently, all of this information is scanered throughout the law. In contrast, the redraft brings it together in a logical and coherent way. As a result, the legislative intention is more simply and directly expressed. 72 As CGT Draft 1 merely redrafts the existing CGT provisions, the underiying principies of property law that applied to Part I1IA will apply equally to the proposed Divisions 100 to 142. A review of the replacement provisions confirrns that those provisions adopt the underlying principIes of property law upon which the old provisions were based. For example, as discussed aboye, sl60ZS provides for the CGT consequences arising on the granting of alease. That section operates to abrogate the underlying principie of property law that there is a part disposal of an existing asset when a leaseho1d interest is granted by the owner ofthe freehold. In a similar manner ss104-11O of the CGT draft provisions set out the proposed rules for the taxation of amounts received for the granting or extension of alease. The charging provision is sI 04-1 \0(3) which reads as follows: The lessor makes a capital gain if the capital proceeds from the grant, renewal or extension are more than the expenditure it incurred on the grant, renewal or extension. It makes a capital loss if those capital proceeds are less. The consequences of slO4-11O(3) are exactly the same as those arising under s160ZS, that is, the amount received for the granting or renewal of the lease is fulIy assessable, irrespective of when the property in respect of which the lease interest has been granted was acquired by the lessor, and the amounts deductible against those proceeds are specifically restricted to the expenditure incurred in granting or extending the lease.

TEACHING TAXATION LA W It is submitted that taxation law courses (at both graduate and undergraduate levels) as presently taught at tertiary institutions would benefit by the inc1usion in their syllabuses of fundamental property law principies for pedagogical and educational purposes where those principies would not otherwise normalIy be covered. For example, many degrees in business studies do not have a subject that covers these principies. As well as acquiring skills for practice, a proper understanding of taxation law involves as a precondition a working knowledge ofproperty law. Many tertiary institutions require a student to have successfulIy completed property law before the student can study trust law. Perhaps property law, or at least the major principies of property law, should also be a prerequisite subject for taxation law. 72

Al pI.

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CONCLUSION The principies of property law regarding the fragmentation of interests in real property that evolved as part of the English feudal system beca me part of the laws of Australia following the colonisation of Australia in 1788. That syslem was based on a hierarchical order where an inleresl in real property could only be fragmented from a superior interest. The principIes of property law lhat evolved from the feudal system are also reflected in Australian revenue law, particularly with respect to the fundamental distinction between income and capital. Those principIes of property law are reflected in the bundle of rights theory as distinct from the single asset theory. In the author's view the bundle of rights theory is to be preferred to the single asset theory: l. as the bundle of rights theory is: a) consistent with historical principies of property law. That is, interests in land and other assets are capable of being fragmented and such fragmentation does not create a new asset; and b) supported by the comments of a judge (Deane J) of the High Court of Australia in Hepples' Case 73 and two judges (Davies and Einfeld JJ) of the Federal Court in Gray's Case. 74 The only directly opposed judicial cornrnents are those of the minority decision (Sheppard J) in Gray's Case 75 and HiII J, sitting alone, in the Ashgrove Case.76 2. as Part lIlA has been drafted with those traditional principies of property law as its foundation, inc1uding the presumption that interests in respect of real property can be fragmented; 3. as the only places where the single asset theory is found in Part I1IA are where the drafters have specifically opted for that theory and therefore deliberately exc1uded the bundle of rights theory. It is hoped that, notwithstanding the Commissioner's view as expressed in TR 95/6 and IT 2561 the views of HiII J in the Ashgrove Case and Sheppard J in Gray' s Case, that the Commissioner will interpret and apply the current sl60M(6) (and the other provisions of Part I1IA) and Divisions 100-142, when enacted, in a manner consistent with the drafting of Part lIlA.

73 74 75 76

[1991] ATC 4808 at4821. [1989]2 ATe 4640 at 4643. At 4645. [1994] ATC 4549.

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In conclusion, (he author also believes that an educational grounding in the basic principies of property law would assist students in developing their revenue law skills. If the fundamental principies of property law are finnly established and grasped by the student of taxarion law then, both theoretically and cechnically, ir should not matter that regular reforrn and amendments to particular provisions of the Tax Act occur. If frequent and detailed alterations to particular provisions of the Tax Act do occur (and this is known to be the case in practice), then any resulting uncertainty and confusion about the interpretation of new (and often technical) provisions can be more easily resolved by reference to the finnly established, finnly understood and well entrenched fundamental property law principies which will continue to underlie these provisions.

BOOK REVIEWS Horst Lüeke"

CONSENSUS AD IDEM: ESSAYS IN THE LA W OF CONTRACT IN HONOUR OF GUENTER TREITEL Edited by Francis Rose Sweet & MaxweU, London 1996 xl, 309 pp ISBN O 421 57780 O

hiS Festsehrift, offered to Guenter Treitel by a group of eolleagues and friends on the occasion of his retirement from the Vinerian Chair at Oxford. covers a variety of subjeets. all of whieh are in sorne way linked with the law of eontraet. Their eornmon purpose is to honour "the greatest living exponent of the English Law of Contraet".!

T

Throughout the book one finds many and varied eomplirnents to Treitel, but none truer than the observation by Lord Browne-Wilkinson Ihat "his writings are the produet of careful and principled thought founded on an exact and honest analysis of the existing ease law".2

2

Professor Emeritus. University uf Adelaide; Research Associate. Max-Planck [nstitutc. Rose, "Prefacc" in Rose (ed), Consensus ad ldem: Essays in the Law of Contraet in Honour of Cuenter Treitel (Sweet & Maxwell, London 1996) pix. Browne-Wilkinson, "Foreword" in Rose (ed), Consensus ad ldem: Essa)'s in the Law of Contraet in Honour o/Cuenter Treitel pv.

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Only two of the contributions are concemed with core tapies of contract. Most deal with the undoubtedly equally important and interesting way in which contract interacts with other areas of the law.

PURE CONTRACT TOPICS The most fundamental questions in the general law of contract are concemed with the nature of the contractual obligation and particularly the intricacies of the exchange element (the synallagma in the terrninology of Continental lawyers). Many such questions are traditionally debated under the heading "frustration", a subject to which Treitel himself has devoted a major study. 3 Jt is thus particularly fitting that two of the contributions, Ibbetson's "Absolute Liability in Contraet", and the most substantial of all the papers, Beatson's "Jnereased Expense and Frustration", are concemed with this subject. In the eighteenth and early nineteenth centuries, the common law accepted the so-called theory of absolute contractual obligation. Come hell or high water, a contractual undertaking had to be perforrned exactly in accordance with the literal meaning of the terrns in which it had been pronounced. Probably the only virtue of such a theory is that it illustrates an extreme position and concentrates the mind upon ways in which its effects can be avoided. The locus c1assicus for the theory is Paradine v Jane,4 a decision of the Court of King's Bench handed down in 1647. Jbbetson's contribution provides for us perhaps the fullest account yet given of that case. As the author points out, there is not much wrong with the decision as such. After all, the action was for the enforcement of a debt, and an uneonditional debt arising from a fUIlY exeeuted eonsideration has surely always been an absolute obligation, not capable of being diseharged by subsequent events other than payment or aecord and satisfaction. Admittedly, one might object that alease should not be regarded as fully executed before the end of its termo However that may be, Jbbetson explains quite convincingly that the actual decision in Paradine v Jane was in harmony with the law as it was understood at the time. The unfortunate doctrine with which the case is associated arose from a second reason for the decision (an altemative ratio decidendi, as one might say nowadays) given by the Court of King' s Bench, that a contractual undertaking must be performed as it stands, "notwithstanding any aecident by inevitable necessity, because [the promisor] might have provided against it by his eontract".5 As Jbbetson points out, after sorne time this became

3 4 5

Treilel, Frustration and Force Majeure (Sweet and Maxwell, London 1994). (1647) Aleyn 26. As abo ve, quoted in Ibbetson. "Absolute Libility in Contraet: TIte Antecedents of Paradine v. Jayne" in Rose (ed), Consensus ad Idem: Essays in the Law of Contraet in Honour of Guenter Treitel p34.

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settIed law. 6 In 1809 Lord Ellenborough CJ stated the rule as foIlows: "No exception (of a private nature at least) which is not contained in the contract itself, can be engrafted upon il by implication, as an excuse for its non-perfonnance".7 Having a very safe ground for their decision already available, the Court of King's Bench would hardly ha ve endorsed this very sweeping altemative if they had feh in the leas! uncomfortable with it. The greater part of Ibbetson's study is in tended to elucidate the historical reasons why the Court adopted this principIe with such apparent ease. The author takes us on a grand tour through the early history of the cornmon law of contract, emphasizing those ¡nstances of contractual liability in which strict Iiability (which eventually tumed into absolute liability) occurred. Ibbetson makes good use of the very illuminating distinction between strict and absolute liability, which was the predominant legal principIe. The list is too long to be fully included here, but the following should be mentioned: the conditional bond, the later history of the action of covenant, and the developments which seem lo have resulted in the important distinction between dutíes imposed by law and those self-imposed by conlractual undertakings. In one' s search for the historical reasons for Ihe theory of absolute contract, one might be forgiven for adding the observation that such a simplistic, unsophisticated view of contract could not have developed if common lawyers had nol insisted on holding themselves aloof from the mainstream of Continental legal thoughl, where (he very opposite principIe had been an important theme since at least the Middle Ages. The theory of absolute contract has left its traces deep in the common law. Several years ago I tried, relying upon somewhat slender Auslralian aUlhority, to fonnulate one branch of the "necessity" view of contractual implications as follows: "a [qualifying] tenn will be implied [in a contractual undertaking] if il is necessary to do so ... lo avoid the imposition of obligations which the parties, despite their use of seemingly absolute words of promise, cannot be talcen lo have intended".8 It is difficult to imagine a mature legal system without such a principIe and it is a liule disturbing that there should still be so little sign of it in the common law outside the realm of frustration. The reason seems to be that Paradine v Jane has only loosened but not entirely lost its grip on cornmon law lawyers. Support for this view of the present state of the common law is provided by Beatson with his spirited auack upon a rule which, as he explains, has its origins in the pre-Taylor v

6 7 8

Al p35. Atkinson v Ritchie (1809) 10 Ea 530 at 533. Lücke, "Ad hoc Implications in Written Contracts" (1973) 5 Adel LR 32 al 36.

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Caldwel[9 case lawo The rule is part of the modem law of frustration and is fonnulated by Beatson as follows: "000 an increase in expense, however great, will not of itself frustrate a contract"olO Fully spelt out, this would read: "000 an increase in the expense, however great, associated with perfonnance by one of the contracting parties will not of itself frustrate a contracto"

Beatson analyses the relevant case lawo He also reviews the policy reasons which are usually adduced to support this rule and concludes that none of them justifies sucb an absolute ruleo Instead he would like to see cases in tbis category subjected to tbe nonnal test of frustration as laid down in Davis Contractors Ltd v Fareham UDColl If Beatson can persuade tbe judges that tbis remnant of Paradine v Jane can be overcome by a further infusion of maritime law into tbe common law (he relies particularly upon the doctrine of abandonment of voyage), he will bave rendered a valuable serviceo . If Codelfa Construction Pty Ltd v State Rail Authority 01 New South Wales,12 which came close to raising the issues which are Beatson's concem, is any guide, Australian judges at least should be ready to take tbe steps whicb be advocateso INTERACTION OF CONTRACT WITH OTHER SUBJECTS Most of the papers deal witb the way in whicb contract principies interact witb other areas of the law such as criminal procedure, civil procedure, conflict of laws, family law, property, intellectual property, tort, agency and restitutiono It may well be that, when law is not codified, its various categories are less neatly separated and problems of interaction are of greater importanceo Keeping the law in neat boxes is certainly not possible in practice, so practitioners will probably read these essays with a sen se of satisfactiono

Criminal and Civil Procedure, Conflict oC Laws and Family Law Katharine Grevling explains the significance to criminal procedure of contracts to surrender the privilege against self-incrimination. Support for the legal efficacy of sueh a contract may be found in the statement by Hart ve that "a man may contraet so as to ineur the obligation to make the discovery of all the facts relative to that contract, although the effeet of that discovery may, incidentally, subject him to peeuniary penaltieso"13 As Grevling points out, most of the cases on this subject deal directly with forfeiture and penalties rather tban witb criminal charges. She finds the case law on tbis subject 9 10 11

12 13

(1863) 32 LJQB 164; (1863) 3 BRS 826. Beatson, "Increased Expense and Fruslration" in Rose (ed), Consensus ad ldern: Essays in the Law o/Contraet in Honour o/Guenter Treitel pl21. [1956) AC 6960 (1982) 149 CLR 337. Green v Weaver (1827) 1 Sim al 430, quoled in Grevling. "Contracting Out oC lhe Privilege Against SeIC-Incrimination" in Rose (ed), Consensus ad Idern: Essays in the Law 01 Contrael in Honour o/ Guenter Treitel p48.

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ambivaLent, but concludes that a system like the American which has elevated the privilege to constitutionaI status is unlikely ever to embrace such a suggestion, and that English law wilI also tum against it decisively, perhaps under the impact of the European Covenant on Human Rights. Michael Howard discusses the problems encountered by claimants who seek to secure arbitrators' awards or courtjudgments in England in foreign currencies. His starting point is the decision of the Rouse of Lords in the Havana Railway Case, 14 in which the House of Lords held that when foreign currency cIaims are to be enforced in British courts, they have to be converted into pounds sterling as at the day on which they fell due. Before explaining how this decision was reversed in Miliangos v George Frank (Textiles) Ltd l5 only fifteen years later, the author promises the reader "an interesting illustration of the doctrine of precedent in operation in modem conditions" .16 Those with a special interest in precedent will not be disappointed. The Miliangos Case solved the problem of the enforcement of foreign debts in English courts, but it did not, as one writer seems to ha ve thought,l7 resolve aH the problems. As Howard shows, the question of giving damages awards remained and was eventually resolved by the introduction of a set of practical principIes, particularly the concept of the "proper currency of the contract [i.e.] the currency with which payments under the contract have the closest and most real connection".18 Cretney takes up Maine' s famous statement that the law has tended to develop from status to contract and asks to what extent this has been tme in two areas of family law: adoption and spousal financial support. In the former case, he shows that adoption was originalIy thought of as a contract or contract-Iike arrangement between natural parent and adopter. However, the Adoption Act 1926 (UK) and the changes which followed it placed increasing emphasis upon the complete integration of the child into the adopter's household, thus lessening the rights of the natural parents and diminishing anY contractual significance which the relationship might have had earlier. In the case of spousal financial support, on the other hand, the law seems to be moving in the opposite direction. High points of the status approach were the decisions in Hyman v Hyman 19 and Bennett v Bennett,20 which made it very difficult for a wife to relinquish by contract, even for a substantial consideration, her right to apply to the Maintenance Coun. 14 15 16

17 18

19 20

Tomkinson v First Pennsylvania Banking and Trust Co [1961] AC 1007. (1976) AC 443. Howard. "Foreign Currency Judgments in Contractual Claims" in Rose (ed), Consensus ad ldem: Essays in the Law 01 Contraet in Honour 01 Guenter Treitel p56. Mann, The Legal Aspeet 01 Money (Clarendon, Oxford, 5th ed 1992) p351, cited by Howard, as aboye, at p69. Societé Franfaise Bunge SA v Beleoll NV (The Federal Huron) [1985]2 Lloyd's Rep 189 at 190 per Bingham J. [1929] AC 601. [1952) 1 KB 249.

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This principie frequently defeated substantial contractual interests to which she would otherwise have been entitled. Cretney demonstrates that the device of the consent order, by which an arrangement between the parties would be given legal sanction and made enforceable, was a partial rctum to a contractual approach. He favours the complete retum to such an approach, whereby private agreements, subject to the usual safeguards, would be considered binding. Property and Intellectual Property

In his analysis of proprietary estoppel, whieh started its twentieth century career in England with Chalmers v Pardoe,21 Roger Smith asks whether one is dealing with a purely contractual development or whether it is also an institution of property law. This depends, so the author argues, upon the question whether proprietary estoppel binds successors in title to the person originally estopped for, in contraet law, agreements, and one should add agreement-like devices, eannot impose burdens upon third parties. Reeeived wisdom is reflected in Moriarty's statement that suecessors are bound. 22 Smith finds this position diffieult to reconcile with the faet that judges exereise discretion in relation lo proprietary estoppel. He also sees a basic contradietion in the faet that estoppel should be given a proprietary effect when eontracts, with the exception of contracts for legal estates, should be denied il. His examination of the case law leads him to the conclusion that the proprietary view does not rest on a secure foundation and that further debate and Iitigation about such questions must be expected. Colin Tapper is concemed with the legal complexities whieh arise from a very modem transaetion, the aequisition of a nght to use a eomputer programme (software) supplied in Ihe foem of object code on a disk, usually together wilh a manual. As every compuler user knows, this is usual1y supplied with a registration foem and a form of licence. Is this a contract for the granting of a licenee, foc the sale goods or for services? The very nature of the contraet is in doubt and so are the legal consequences which flow from it. The paper concludes with the observation that the situation enes out for the attention of the honorando Tapper is very eritical of the European Un ion Software Directive which is, no doubt, the result of a well-meaning aUempt to clarify sorne of the issues whieh he highlights. He applies to the Directive the very exaeting (sorne Continental lawyers would say "exeessively pedantic") standards of preeision and striet terminologieal eonsistency of English legal draftsmanship. Whether the more relaxed Continental drafting style might nOI also have its advantages is nol considered.23

21 22 23

[1963]1 WLR 677. Moriarty, "Licences and Land Law: Legal Principies and Public Policies" (1984) 100 LQR 376 al 317. See Dale, Legislative Drafting: A New Approach: A Comparative Study of Methods in France, Germany, Sweden and the United Kingdom (Butterworths, London 1977).

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Agency and Restitution Peter Cane views the interaction of conlract with ton and fiduciary principies against the background of Ihe L1oyd's debacle. Not surprisingly, the names who had suffered Iried to recoup their los ses by suing those brokers. underwriters and other participants in Ihe industry whom Ihey considered responsible for involving them in loss-making insurance contracts. One of their problems was that they had suffered damage in Ihe nature of pure econornic loss. The law in this area of torts was al Ihal time jusI in Ihe process of settling down. The aUlhor identifies five issues which arose from these law suits and deals with them in tumo The conclusion Cane offers is that, far from c1arifying these issues, Ihe cases have thrown the law into a state of further confusion, from which il is unlikely to recover for many years. It may nol be a very helpfullesson to draw, but who is to say thal it is not a realistic analysis? Interaction between contraet and agency is nothing new; one rnight almost say that agency as a subject is inlended lo play an auxiliary role to contracto Nevertheless, Francís Reynolds, in discussing the role of agency in the contexl of insurance conlracts shows how these areas are dominaled by mutually inconsisten! principies and how difficulties arise from this. 24 A trilogy of articles by Peter Birks, Derek Davies and Francis Rose (the edilor) deal with problems of restitution. Peter Birks pUIS forward an attractive argumenl of limiled scope. thal in a restitutionary aClion based upon faílure of consideration. it is wrong lO require a total failure of consideration. He would allow such an action when there has been a substantial failure, subject lo the requiremenl thal the plaintiff must make counterreslÍlution of benefits which he may have received. No conlract teacher who has thought abou! Ihis issue can faíl to be sympalhetic lo such an argument. A more complex argument is pUl forward by Derek Davies. He gives an account of developments in Australian law. contrasting cornmon law cases involving restitution with equitable remedies based upon breach of an obligation of confidence, participation in breach of fiduciary obligation. unconscionable conduct and fiduciary relationships. The author applauds suggestions that Ihe former group should now be subsumed under a normative concepl of unjusl enrichment, thus enabling ¡he various inslances of such liability to develop in a more harmonious fashion; however, he resists attempts lo deal wilh his catalogue of equitable remedies in the same way, because he considers them lOO diverse for such treatment. Instead he suggests that the various equitable remedies should be brought into a better relationship with each other. One wonders whether this is really very different from their being subsumed under a single new concept such as unjust enrichment.

24

Reynolds. "Sorne Agency Problerns in Insurance Law" in Rose (ed). Consensus ad ldem: Essays in the Law of Contraer in Honour of Guenter Treitel pSI.

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Francis Rose has contributed a chapter on restitutionary and proprietary con sequences of iHegality. He understands "i1legality" in a broad sense so as to inelude aH situations in which, for reasons of public policy, the normal operation of contractual and other rules is disallowed. The subject is one of known complexity and one must sympathise with Rose's rejection of the traditional attempt to encapsulate it all in a few Latin maxims. He al so rejects the suggestion that the extensive use of judicial discretion would solve aH the problems. The auihor puts forward, in textbook fashion under 27 headings and subheadings, a series of rules and principIes derived from the case law, which reflect the current state of English law.

CONCLUDING REMARKS Paul Craig examines the law of the European Union as it impacts upon government procurement contracts. He leaves the reader in no doubt about the great economic importance of such contracts, which account for sorne fifleen per cent of the gross domestic product of the European Union. Craig's paper is also an indication of the growing importance to the legal systems of a11 the member states of the law developing at European Union level. The jurisprudence of the European Court of Justice is inspiring Continentallawyers to begin to think, or perhaps to dream, about the emerging European contraet law. Books are being written on this subject. If this Festschrift had been written ten years later, European contract law might have taken up considerably more than se venteen pages. P No book is without errors. 1 have not proof-read this book, but have noticed the amusing "Untied States"25 and the mention of the Encyclopedia of International and Comparative Law. 26 Having worked for Ihis publication for sorne years, 1 find the scope of its true title International Encyclopedia of Comparative Law quite ambitious enough. Consensus ad Idem is a treatise which combines high academic quality with practical relevance. Jt should appeal not only to English academics and praetitioners, but also lo their counterparts elsewhere in the eoroman law world.

25 26

Tapper, "Sorne Aspects of Contractual Licences for Software" in Rose (ed), Consensus ad ldem: Essays in the ÚlW ofContraet in Honour ofGuenter Treitel p283 fn9. Rose, "Preface" in Rose (ed), Consensus ad Idem: Essays in the Law of Contraet in Honour of Guenter Treitel px.

John Keeler·

WRONGS AND REMEDIES IN THE TWENT~FIRSTCENTURY

Edited by Peter Birks Clarendon Press, Oxford 1996 xii, 333 pp ISBN O 19 826292 2

ronKS and Remedies in the Twenty-First Century is a collection of papers from three seminars in a series on "Pressing Problems in the Law" given in Oxford during 1995 and 1996. One seminar was devoted exclusively to Atiyah's paper on "Personal Injuries in the Twenty-First Century", another to four papers on professional negligence and the third to six papers on exceptional mea sures of damages. The volume also includes cornmentaries on each set of papers given at the two latter seminars and a general introduction by the editor.

W

Atiyah's paper is subtitled "Thinking the Unthinkable". Its majar propasa] is essentially that the cornmon law of negligence be abolished with respect to liability for personal injuries. Provision for compensation should then be left to the social security system (which he sees as shrinking and likely to eontinue to shrink) and to pnvate markets for first party insuranee. There are sorne minor qualifications lo this: Ihe paper excIudes eonsideration of intentionally inflieted injuries, contemplates the existence of a modera te form of lort liability with a very restrieted eeiling on c1aims (perhaps $500-$750) and regards as inevitable (as distinct from desirable) the existenee of a no-fault scheme for motor vehic1e accidents. The lalter is described eonventionally as a first party insurance system beeause it is capable of eovering a ease where the aceident involved nobody other than the claimant, though in practice the c1aimant need not have contributed any premium to the se heme and many c1aimants who may have paid premiums are disqualified from benefits through specific provisions. Since this is an English paper it must be remembered that the proposals are made in a context in which there is no separate workers' eompensation scheme, and industrial injuries are eovered by a specific social security benefit pitehed at comparable levels to other social security provisions and by the common law of negligence. Atiyah envisages that unions will bargain with employers for employer-funded group disability insurance to replace cornmon law c1aims. The context against which the proposal is based is explicitly one in which govemments are seeking to reduce the range of public responsibilities and incrcase the mattcrs left to private cost and provision, in which the contraction of the welfare state is an important eIernent in pursuing Associate Professor, Faculty of Law, University of Adelaide.

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this general objective and in which the looming crisis of an aging population will place ever increasing demands on what can be spared for it. And this gives rise to the distinctive feature of the proposal: that it does nol include any public sector scheme such as the New Zealand accident compensation legislation lo replace the common law rights that have been abolished and, unlike the proposals that Atiyah put forward in the early editions of Accidents, Compensation and the Law,l does not incorporate any improvements 10 social security provision through the short-lived experiments with earnings-related benefits. Instead, Atiyah speculates optimistically that, given new opportunities, the insurance market will produce new products that will enable those who wish to make further provision for themselves to do so. The case against the common law of lorts and damages is a familiar one. Atiyah dismisses any c1aims that the common law can be justified according to theories of correcti ve justice on Ihe ground that few tortfeasors in fact pay the costs of the injuries they cause: the costs are paid by third party insurers or by employers through the medium of vicarious liability. While this imposes most costs on companies, Atiyah thrusts aside the corporate veil in arguing that in many cases, including high cost mas s tort litigation, damages are really paid by people who may well have become shareholders and employees OT directors long after the tort was commiued while those whose behaviour attracted liability may well suffer no financial detriment al aH. Since the practical operation of the law of torts cannot be justified on the basis of corrective justice it must be seen as a medium for distributive justice, and in this role it fails even more miserably gíven íts unpredictable, arbitrary and inadequate performance in reaching people who have suffered personal injury and the absence of any attention to distribution from rich to poor. It remains as an outrageously expensive and ineffective institution, and one which is characterised by unpredictable and uncontroHable cost increases that lead to untenable c1aims on resources which could be employed infinitely more productively elsewhere. So it has to go. The unthínkable element in this is scarcely the proposal to abolish the law of torts but to abolísh it without formal replacement other than a no-fault motor vehic1e accident compensation scheme. A significant point in this is that the proposal is aimed at a UK audience so that (subject to. the outcome of union negotiations) its most obvious beneficiaries would be employers, whose liability for the costs of employment-related sickness and injury would be reduced to their share of National Insurance contributions. So, at a time when much of the economic theory which restricts the scope of social security provision also supports the notion of providing incentives 10 industrial safety by imposing the costs of accident preventíon and of accidents on employers and management theory generally sees quality control matters (including work safety) as a matter of organisational responsibility rather than individual carelessness, it transfers the costs of accidents to individual workers and the social security system. Australia's Industry Commission's

Atiyah, Accidenrs, Compensation and (he Law (Weidenfeld & Nicolson, London 1970).

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report on workers' compensalion2 may have been unsophisticated in dealing with the practical problems of running an industrial injuries eompensalion seheme, but it had no doubts about the need to place substantial responsibility for the costs of work aecidents on employers. Placing faith in union bargaining to improve provisions for disability in a world of declining union power and patchy coverage among different seetors of the workforee shows little if any eoncem for the issues of eomprehensive eoverage or equity of finaneial treatment for workers to whieh the relative inereases in casual and part-time employment have drawn attention, espeeially in a eountry which has never had any centralised mechanisms for settling disputes. Mueh of the debate on industrial injuries in Britain has been focussed on the disadvantages of the law of torts and the justifications for an industrial preference within the social security system for so long that it is no longer noticed that Ihis is one field in which there are serious grounds for replacing the law of torts with a proper compulsory no-fauIt scheme, whether it is administered through the private or the public sector. There is certainly no need for Australian thought and policy to be so confined. The practical difficuIties which attach to running the compensation side of any scheme dealing with personal injury or disability, and the political difficulties which attach to the desire of the States to give themselves a competitive employment advantage by reducing the costs of workers' compensation to employers by reducing benefits, are no justification for considering abandoning (as distinct from improving) any of the schemes presently in operation in Australia. Atiyah reluctantly accepts that the common law would have to be replaced by a no-fault se heme covering motor vehicle accidents. This he sees as simply a malter of practical polities, and there can be no other reason for supporting the removal of an industrial preference while advocating the retention of a motor vehicle preference. In this he is probably right; even in jurisdictions where comrnon law aetions against employers remain available the comrnonest tort claims are motor vehicle c1aims, and their abolition without any replaeement could easily be made lhe subject of acrimonious political debate. The arguments that there is nothing special about people disabled through motor vehicle accidents as against those disabled in other ways, and that the usual criticisms of the law of torts with respecI to concepts of fault, deterrence and correetive justiee have particular force with respect lo motor vehicle aecidents, are valid. But few, if any, commentalors have lo my knowledge advocated abolishing Ihe law of torts in this field without advocating either a no-fault scheme or a more comprehensive accident or disability compensation se heme. In Britain and mosl Australian States it has nol yet been possible to achieve the replacement of the cornmon law by a no-fault scheme, and it may be that the reasons for that failure need sorne further consideration. It can hardly be that the power of any vested interests of the legal profession is so strong in this area, where it has not been in many others in recent years nor in Australia, Ihat the strength of the interests of private insurance companies, which have generally voluntarily withdrawn from the field, dominates the polilical process. Whal seems to have happened in Australia is that the 2

Aust, Industry Cornmission, Workers Compensation in Australia (Repon No 36, 1994).

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statutory restnctlOns on damages, especially those for non-economic los ses and the voluntary provision of services, and the imposition of statutory discount rates, have reduced the dangers to third party insurance funds and controlled premium increases, thus removing a good deal of political pressure for other change. At the same time the experience of the more comprehensive workers' compensation schemes in Victoria and South Australia, where the perceived desirability of keeping levies low has made them political footballs, contributed to CommonweaIth-State financial tensions and led to both reduced benefits and distorted forms of benefits for lost eaming capacity, has not instilled confidence in their operation. Perhaps the experience of the no-fault motor vehicle schemes in Victoria and the Northem Territory could be used to offset much of this. but in other States the prospects for radical change have probably diminished rather than improved in recent years. In a State such as Victoria, where access to the common law in motor vehic\e and industrial injury claims has been dramatically reduced in the last decade, the practical scope of the law of torts must be very tiny: products. builders', occupiers' and professional liability cases must surely cover a minuscule fraction of the small proportion of injured and disabled people who recover tort damages. Should it be unthinkable to abolish the rest of the law of torts with respect to personal injuries there? If the arguments favouring a nofault workers' industrial injuries scheme are valid and if a no-fault motor vehicle scheme is inevitable, then the case for equality of treatment for the disabled is impaired. Apart from this fact. though. all the arguments about the cost and delays of ¡he legal process relative to the numbers who recover, and the absence of justification for treating those disabled through injury differently from those disabled by sickness, must surely be overwhelming once the only areas which generate substantial numbers of successful plaintiffs are removed from its operation. The case for the retention of a compulsory community response for those disabled through avoidable injury, as distinct from preferring voluntary and market responses, rests on two separate bases. The first is the likelihood that the private sector will not provide anything like an equitable distribution of provision: despite the disadvantages and ineffectiveness of the common law and the levels of social security benefits, private disability insurance is uncommon, patchily distributed and not available at economic rates to those who are obviously poor risks. The market aims to provide allocative efficiency, not to satisfy the distributional needs of the indigent and disadvantaged. The second is often put in terms of the symbolic value of a social rccognition that those who have caused avoidable injuries to others should have a responsibility fOL meeting the financial consequences of those accidents or ensuring that they are meto This argument can he based on ideas of moral responsibility, the provision of economic incentives to safe practice, and the avoidance of the temptations of freeloading on safety issues, or the aversion of governments (particularly evident in Australia) to accept fmal responsibility for the costs of the medical and hospital treatment and income maintenance of those disabled by another. These objectives can be met outside the law of torts. of course; no-fault motor vehicle schemes

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give the insurer/admínistrator rights of recovery against drivers who have committed particular offences and den y such drivers' cJaims in respect of their own injuries, and workers' compensation schemes incorporate reward systems and penalty levies on bases that can scarcely reflect actuarial assessments of risk but satisfy demands that employers with good accident records should pay less than comparable employers with worse records. But the very existence of such mechanisms, as well as such others as subrogation and social security recovery of compensation benefits, indicates the strength of the demand that those who are seen as causing accidents should have sorne substantial responsibility for them, regardless of issues of deterrence, the overall efficiency of cost-recovery mechanisms or the impact on individual responsibilities of the grant of juristic personality to corporations. Atiyah' s proposals may not be unthinkable, and the general context against which he puts them forward suggests that they should be considered. But they unquestionably constitute the bleakest of the visions for the future of personal injury law, provision for the disabled and even accident prevention that have been .put forward in recent years. That bleakness stems from the absence of any analysis of what the role of social security or other public sector provision should be, what the market can be expected to provide and to whom, and what relationships between public and private sector provision we should aim for, remembering that each can come in differenl forms and lhat where the market fails the private sector often means family support. It is perhaps irenic that at this general level of thinking about public policy the essay should (apart from the determination lo do away wilh the common law) ha ve an essentialIy ad hoc appearance. The great virtue of Accidents, Compensation and The Law remains that it was (and is) the only work on personal injury law which described nol only the operation of the law of torts but also that of the social security system and of private sector accident insurance. But the depth of the theoretical exposition of tort law and theory (and in this 1 inelude the analysis of general deterrence theory) was not matched by any equivalent attempt to provide a critical basis for the role of either social security or the private sector, nor analysis of the relationship between the roles of the public and private sectors in a mixed economy. The preference for the reform of personal injury law through the public sector and social security appeared as a matter of pragmatism: it would be the most effective and probably the most cosleffective way of attaining the equitable and distributional (if nol necessarily egalitarian) goals that a scheme of provision for the disabled should aim foro BUI now, in "Personal Injuries in the Twenty-First Century", Atiyah abandons the practicability of using the public sector as a medium of reform, again apparently as a malter of pragmatism: within the present thrust of the philosophy of small government and low taxation there is no desire for wider welfare systems for the disabled or for anyone else, and the wider systems cannot be afforded even if they are desired. AH that is left then is the private sector and especially the market, and expressions of hope that it will fill sorne gap s left by the removal of the common law. Even where alternative provision such as workers' compensation is sensible, generally supported by economic theory and there is evidence Ihal it does help to reduce accidents its possibility is ignored. The abolition of the common

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law as a means of dealing with personal injury and disability thus remo ves one forro of public intervention, and the possibilitiesassociated with it of certain forms of public regulation and private backing for them, without offering any grounds for assessing cither the purposcs or the effccts of what is left to deal with the real problems_ If one contcmplates the extension of this general approach to meeting other forms of welfare needs it becomes apparent that this form of thinking the unthinkable is not simply a question of assessing the utility of a particular mechanism for dealíng with a technical problem but is one aspect of the kind of society we should be aiming foro Here Atiyah declares himself in favour of the free market and the eKpansion of choice that he sees as associated with it. But his proposals envisage a market which subsidises injurers, socialises part of the cost of the harro they cause and then offers the free market as a means of spreading the rest in a field in which it is not equipped to work. The role of the common law as a method of public regulation of individual activity is also an underlying theme of the essays on professiorial liabílity, though the authors approach from very dífferent perspectíves. Ian Kennedy's essay is primarily concemed to den y the utility of the fiduciary relationship as a tool for dealing with the liability of the medical profession for iatrogenic injuries, largely on the ground that the courts, especialIy in Britain, are too likely to allow doctors to determine which interests of their patients they should be concerned to further. He would no doubt approve the approach of the High Court in Breen v WilLiams 3 (which had not been decided when he wrote) to the use of the fiduciary relationship, though perhaps with reservations as to the result of the case. The essence of his argument, though, focuses much more on the inabilíty of any common law technique to achieve, let alone guarantee, a framework for the development of the doctorpatient relationship in a way which meets the needs of both, bearing in mind the intrinsic imbalance in power between them. His basic argument seems overstated in the terms in which it is put in jurisdictions which have rejected the Bolam principle,4 but Kennedy's preference - he calls it his "impossible dream"- is for a regulatory regime based on wider considerations as to the utility of different kinds of machinery for regulating professional behaviour. Such a dream would incorporate financial support for the victíms of medical accidents on the basis of need, paid for out of general revenue and perhaps a levy on the private heaIth sector; codes of practice developed by the various Royal Colleges setting out what can be eKpected of doctors who wíll be made accountable through positive programs of audit, inspection and monitoring performance indicators; review and regulation of doctors who fail to meet the specified standards by a body with medical and lay members; and a limited role for the courts in dealing with new or hard cases, especially those conceming the criminallaw and human rights. John Powell, Keith Stanton and Tony Dugdale seem to have no doubts about the capacity of the judicial system to deal with professional liability for economic losses, though they 3 4

(1996) 186 CLR 71. Bolam v Frian Hospital Management Committee [1957]2 AH ER 118.

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do haye their different concems with the operation of the common law. Powell argues that the difficulty is with the operation of the law of tort and the existenee of simultaneous liabilities in contraet and tort, and that where there is a contractual relationship between the parties there should be no place for a coexisting liability in tort. The practieal consequences that he sees as stemming from this is that it would beco me easier to accept that, as a practical maner, professionals are strictly liable for the suceess of at any rate routine services, and that should be recognised, and that contractual rules as to Iimitation of actions would apply. It is not at all c1ear that the first point is valid. In Australia it is implicit in Bryan v Maloney 5 that a warranty of merchantability can co-exist with a contractual and tortious obligation to exercise careo But, whether the mechanisms employed are seen as contractual or tortious, the proposal would require the deyelopment of a criterion of distinction between services subject to striet liability and those where the implied contractual undertaking is one to exercise due careo This process might bring transparency to a field which at present is obscured by the ability of the courts to adjust the leyels of care required and the eyidence needed to support a c1aim behind the general rubric of the standard of reasonable care for professionals, and made unnecessarily costly to administer by the use of expert witnesses as to what are usual and appropriate procedures. He does not offer any suggestion as to where such a line might be drawn, nor any reasons as to why the tortious rules as to limitation of actions are unfair or inappropriate in cases where the c1ient is only likely to discover the breach of the contractual undertaking when loss or darnage occurs. Keith Stanton's concem is not with the introsion of the law of torts into professional liability; on the contrary he sees the recent reaffinnation by the English courts of tortious liability coexisting with contractualliability as a welcome affinnation of the public interest in professional standards and accountability for them. His doubts are rather as to the effectiveness of the conceptual devices - voluntary undertaking, reliance and proximity used by the law of torts to assess the existence of a duty of care in cases involving professional services or professional advice. Australian lawyers will be well acquainted with these doubts, especial1y since the retreat from Deane 1's conception of proximity by several Justices in Hill v Van Erp,6 though the English sceptieism about the concept of reliance has not yet been fully explored in the High Court (but "general reliance" has met mortal blows in Pyrenees Shire Council v Day7). Stanton's conc1usion is that no general fonnula encompassing the situations giving rise to a duty of eare is likely to be satisfactory and that the main helpfulness of the concept of proximity should be in eneouraging a close scrutiny of the facts, the nature of the relationship between the parties in the different kinds of situation in which c1aims for professional liability can arise and a careful consideration of the purposes for which professional advice and services are provided in them, a conc1usion that essentially applies a traditional pre-Anns interpretation of how the neighbour principIe is best used in the specific fie1d of professional negligence. 5 6 7

(1995) 182 CLR 609. (1997) 1SS CLR 159. [1998] HCA 3.

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272

Tony Dugdale does not seem to question the respective roles of contract and tort in professional liability cases at al!. He is rather concemed with two specific matters. First he thinks it unfair that valuers who have negligently overvalued property so that lenders who have lent on the basis of the valuation when, had the valuation been careful, they would not have lent at aH should be hable for a11 the losses suffered by the lender when the borrower defaults, inc1uding losses arising from general falls in property values. His concem stemmed from the decision of the UK Court of Appeal in Banque Bruxelles Lambert SA v Eagle Star lnsurance Co Ltd,8 which has since been reversed by the House of Lords,9 and which has in tum been rejected by the Federal Court of Australia in Kenny and Good Pty LId v MGICA (1992) Ltd. 1O He convincingly analyses the difficulties in trying to approach the issue as one of causation or remoteness, regardless of its categorisation as contract or tort, and persuasively argues that because the purpose of a valuation is to provide the lender with a basis on which it can make adequate security provision at the date of the loan, and not to predict future market trends nor persuade the lender to make the loan, it is fair that the valuer should be liable for the amount of the overvaluation because it deprives the lender of that amount of security but unfair Ihat there should be any greater liability. A substantially similar argument is persuasively made by Stephen Waddams in the terrns that the valuer's liability should be restricted to the anticipated security margin and that the lender should have to accept any losses going beyond that. ll Dugdale's fear thal use of the conventionallanguage in which causation and remoteness issues are expressed make it difficult to address this point is amply and dismally borne out by the judgments at all levels in both these cases, none of whkh manage to address it al all. Secondly he is con cerned that it is unfair that professionals should have to be liable for all the losses Ihat are suffered when Ihey fail to prolect their dient against the wrongdoing or negligence of a third person who cannot be found or is bankrupt, and thal it is often difficult 10 eSlablish comributory negligence against a c1ient. Acknowledging the commercial pressures on professionals not to make use of clauses limiting their liability, he canvasses the possibility of the courts having a discretion to limit damages to prevent disproportionate Iiability where it is fair to do só in preference to establishing schemes of proportionate liability. But the argument here is brief and not fully worked through. In his comments on this group of papers, Joshua Getzler focuses on the broad issue of the role of the cornrnon law, as distinct frorn self-regulation and the individual autonorny of the professional and the c1ient, in ensuring the maintenance of professional standards. (Since none of the papers argued for increased external regulation he does not consider that possibility.) He recognises that when self-regulation is cffective it should leave very liule scope for common law principies to operate, but argues that the incentives lo the 8 9 10

[1995] 2 AH ER 769. [1997] AC 191. (1997) 147 ALR568.

1I

Waddams, "Liability of Valuers: Kenny & Good Pty Ltd v MGICA (1992) Ltd" (1997) 5 Torts U 218.

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furtherance of professional self-interest are too strong for self-regulation to be a reliably effective means of securing the accountability of professionals to their clients, especially as the range of activities for which professional status is claimed increases. Nor do es he see confining professional liability to contractual undertakings as satisfactory in a field in which many clients (though not aH) have inadequate information for bargaining to be effective, so that market failure is to be expected. Ultimately he views the common law as providing a means through which the best practices of individual professions are identified and used to reinforce the standard s according to which they are practised. and in performing this role the formal c1assifications of tort, contract, restitution, fiduciary relationships and so on are subsidiary to the achievement of the overalI objective. This is an interesting and constructive approach to the role of the common law, and the rejection of the forrnalism implicit in the use of the formal categories of tort and contract as a solvent to difficuIt substantive issues, reinforced as it has been by recent law and economics theory, is to be welcomed. But it is perhaps more easily seen to be pursued in jurisdictions like Australia which have modified or abandoned the Bolam principIe, which in terms refers to standards adopted by "a responsible body" of professional opinion 12 and does not seem to require adherence to "best practice" principies, and does not address the question raised by Atiyah and Kennedy that in the sphere of personal injury law the practical operation of the common law causes so much harm that any minor good it may bring about is inadequate to justify its existence. The papers from the third conference are on the subject of exceptional measures of damages. While the individual tapics brought within this rubric are interesting, the titIe covers a less than coherent misceHany. Sorne of the papers derive from Lord Devlin's judgment in Rookes v Barnard,13 which sought to restrict the scope of exemplary or punitive damages to cases of oppressive or arbitrary action by government, cases in which the defendant's actions are calculated to gain a profit exceeding the plaintiff's loss and cases in which they are authorised by statute. To this has been added two essays on the treatment of contractual penalty c1auses. Andrew Burrows canvasses the arguments for and against exemplary damages once damages are alIowed lo compensate for humiliation and hurt feelings, and finds that a<; a malter of principie a clean distinction between the criminal law, the business of which is punishment, and civillaw, which is less well suited to it in terms of the range of penalties available, and the need to find in many cases that harm has resulted from conduct which should be punishable because it is intrinsically objectionable, is desirable. But he also finds that there is a pragmatic case for the retention of exemplary damages, though he does not seem sure what it is except in cases where official law enforcement mechanisms may be compromised and inefficient, as in the case of actions against the police. He is puzzled at the relative lack of importance auached to exemplary damages in Australia, where they 12 13

Bolam v Friem Hospital Managemenr Commitree [1957] 2 AII ER 118 at 122. [1964] AC 1129 at 1225-1226.

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are accepted as being available in cases in which the defendant's conduct has been wanton and in contumelious disregard of the plaintiff. Nicholas McBride finds sufficient justification for the award of exemplary damages in cases where the defendant has knowingly breached a common law obligation, provided that the defendant has not already been punished by the criminal law and certain procedural safeguards are satisfied, because of the practical failings of criminal enforcement. This is a broader view than the cornmon law encompasses: in particular it includes deliberate breaches of contract, though this is in general not a crime. Peter Birks and Peter Cane in their more general introduction and commentary respectively see no reason why the sphere of the civillaw and the law of torts in particular should be defined in such a way as to exc1ude the condernnation of deliberate wrongdoing through exemplary damages. Perhaps behind Brennan 1's statement in XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd 14 that the social purpose of exemplary damages is "to teach a wrong-doer that tort does not pay" lie not only the historical connections between deliberate torts and deliberate crimes and the equally oId objective of appeasement of a plaintiff who rnight otherwise resort to self-help, retaliation or duelling, but the idea that the courts should not ignore the deliberate flouting of the basic norms protecting personal and property interests for the defendant's own purposes where il has not been directly addressed through the criminallaw. Most of the Australian law on exemplary damages, inc\uding the exhortations to keep them moderate and in proportion to the offence, are consistent with this, though their extension to cases of negligence where the defendant has knowingly exposed the plaintiff to a risk of injury stretches the point. Harvey McGregor QC begins by excoriating his assigned topic of "restitutionary damages" on the ground that damages compensate for loss while restitution compels the restoration of gains won by the defendant. Even within Ihis restilutionary framework hes the dislinction between cases where the plaintiff has suffered a loss equivalent to the defendant's gain and those where Ihe defendant's gain has been won by exploiling the plaintiff, (he plaintiff s property or the relationship between the parties in a way that the plaintiff would not have done. But McGregor has no doubt that the defendant should be compelled to surrender both kinds of gain in tort cases, especially where the tort has been intentionalIy committed. McGregor notes the availability of equitable remedies compelling the disgorgement of the gains from equitable wrongs and argues thal defendants who deliberately break contracts in order to make greater profits for themselves should also be compelled to disgorge them. None of the authors who address the topic question that restitutionary remedies should be available in the cases where the plaintiff has suffered a loss, nor that they should be available where the defendant's gain arises from an intentional lort. Nor is there any substantial disagreement that a remedy is appropriate where there has been a breach of 14

(1985) 155 CLR 448 at 471, quoting Lord Diplock in Broome v Cassell & Co [1972] AC 1027 at 1130.

(1997) 19 Adel LR 265-276

275

contract and the defendant has provided less than was promised and paid foro (The illustrative cases involve a security firm providing fewer personnel and resources for the protection of premises than specified in the contract though the plaintiff suffered no consequentialloss thereby, and cases in which purchasers build more houses on a site than a restrictive covenant imposed by the selIer alIows, both cases in which a remedy has been denied on the basis that the plaintiff has suffered no loss.) Hugh Beale would justify the conclusion on the basis that the defendant had received something for nothing, in that the plaintiff had not received full value for the consideration paid and had in a sen se been cheated, but would prefer to approach the issue of recovery by an extended concept of "1055" including the consumer surplus expected by the plaintiff from the contract. But he opposes the award of damages in a case such as the Israeli one of Adras Ud v Harlow & Jones GmbH, I S where a defendant who had sold oil to the plaintiff at an agreed price resold it to a third person at a much higher price when the price of oil rose dramatically but temporarily, and the plaintiff was subsequently able to replace the oil that had been bought in the market place at the original price. On the facts of the case the plaintiffs had obtained oil at the price they had initially agreed to pay, and, while Beale i5 willing to give a wide ambit to the determination of their recoverable losses, he can see no compelling reason for adopting a rule that would give them more than the difference between the position the contract would have put them in and the position they ended up in. In effect the difference between his position and McGregor's (and Birks's) is that he does not accept that there should be a rule which, in sorne cases, would act as an incentive to keeping contracts by (to adapt Brennan J) seeking to ensure that deliberate breach of contract does not payo The decision in the Adras case that the gain should be disgorged is not accepted in England or Australia, which in this respect remain closer to Oliver Wendell Holmes' s idea Ihal a party to a contract has an oplion as lo whelher lo keep it or to break it and put (he other party in lhe financial position they would have been in had it been kept. Lastly there are two papers on contractual penalty clauses by Tony Downes and Mindy ehen-Wishart. Both criticise the conventional rules based on Dunlop Pneumatic Tyre Co Ltd v New Garage & Motor Co Ltd l6 and prefer a more general approach based on unconscionability. This will come as no surprise to Australian readers, as unconscionability principIes invade the Trade Practices Act, even if astute commentators including my colleague David Wright have noticed a withdrawal by the High eourt from the use of the concept of unconscionability as a general solvent since Ihe retiremenls of Mason el and Deane 1. It is evident that the papers come from a provocative and stimulating series of seminars. A good deal of the provocation and slimulation comes from the overt discussion of general issues that underlie large fields of law. Peter Birks's introduction make5 specific reference to the influence of economic analysis on law generally through the economic rationalism 15 16

(1988) 42(1) PD, noted by Friedmann in (1988) 104 LQR 383. [1915] AC 79.

276

KEELER - WRONGS AND REMEDIES IN THE TWENTY-FIRST CENTURY

which argues Cor as small a role as possible Cor the state and the never-ending pursuit of eCfieieney goals, defined in a way which efCectively removes equity from national agendas. While Patrie k Atiyah's paper is the cIearest example oC the effects of debate at this general level on our conceptions of private law, the papers on professional liability are alI concerned to justify intervention by the legal system in sorne form, even though most professionalliability cases raise agency cost issues which invite a _,easure oC intervention to ensure sorne level of accountability. Law and economics seems also lO have stimulated a hardening oC c1assifLcatory criteria and functions: one detects the idea that one should use a single instrument to achieve a single purpose behind the view oC Burrows and Beale that civil remedies should have solely compensatory purposes. Simílarly. one detects the libertarian underpinning oC economic analysis in Powell's plea that contract should have primacy over lort in the regulation of relationships. But Beale's approach to determining losses is more beneCicially influenced by economic writing, and many oC his ideas concerning a broader analysis of recoverable losses seem influenced by taking a finner grip on recovery Cor lost opportunity costs. We in Australia are very fortunate in this respect lO have Hungerfords v Walker l7 ralher than Westdeutsche Landesbank Girozentrale v Islington London Borough Council 18 to apply. Againsl this stands a more traditionaI approach championed by Peter Birks and Peter Cane: that the la\'l should not lose sight of its moral foundations and should be willing lo identiCy them and use them as the basis oC its future development. (Jt must be said, though, Ihal Ihis does nol diminish Peter Birks's inclination to adopt and use quite rigid technical cIassifications, particularly with respect to restitution; he often gives the distressing Ceeling thal classiCications deCine the legallandscape, rather than being provisional descriptions oC it.) It is hard to say which side presents its case more persuasively. But what the volume does show is ú willingness to engage in and identify with the larger issues Ihat will decide not merely the technical limits of legal principIes but the nature oC the society that they will both reflect and help to constitute. And that engagement is both important and at the heart of the interest of the seminars.

17 18

(1989) 171 CLR 125. [1996] AC 669.

TABLE OF CASES

Adras Ltd v Harlow & Iones GmbH ...... 275 Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (Engineers Case) ........................................... 101 Ashgrove Pty Ltd v Deputy Federal Commissioner of Taxation ............. 232,

Gray v Federal Commissioner of Taxation .............................. 231. 237,

................. 238-241, 246, 248, 250, 254

Hill v Van Erp ................................. 271 Hungerfords v Walker ........................ 276 Hyman v Hyman .............................. 261 In re Vandervell' s Trusts (No 2) .......... 150 In the Marriage of B and R ......... 217, 218,

Australian Capital Television Pty Ltd v Commonwealth (No 2) ..... 155, 164, 165 Banque Bruxelles Lamben SA v Eagle Star Insuranee Co Ltd ........................... 272 Bennen v Bennen ............................. 261 Bolam v Friem Hospital Management Committee ............................ 270, 273 Breen v Williams ............................. 270 Bryan v Maloney .............................. 271 Castlemaine Tooheys Lid v Soulh Australia ............................. 139 Chalmers v Pardoe ............................ 262 Cheatle v R .............................. 103, 136 Chelsea Investments Pty Ltd v Federal Commissioner of Taxation .............. 237 Chu Kheng Lim v Minister for Imrnigration, Local Goverrunenl and Ethnie Affairs ................................ 134 Codelfa Construetion Pty Ltd v State Rail Aulhority of New Soulh Wales ........ 260 Cole v Whitfield ......................... 99, 102 Commissioner of Taxes (Qld) v Camphin ...................................... 247 Commonwea1lh v Tasmania (Tasmanian Dam Case) ....... 128, 130, 132, 134, 135 Curry v Walter ................................. 198 Davis Contraetors Ltd v Fareham UDC ................................ 260 Derbyshire County Council v Times Newspapers Ltd ............................. 191 DKLR Holding Co (No 2) Pty Ltd v Commissioner of Stamp Duties (NSW) ........................ 247,248 Duncombe v Daniell ......................... 172 Dunlop Pneumatic Tyre Co Ltd v New Garage & Motor Co Ltd .................. 275 Edwards v National Audubon Society Ine .................................... 203 Eisner v Macomber ........................... 235 Federal Commissioner of Taxation v Cooling ................................. 246, 248 Gertz v Robert Welch Ine ..... 168, 178, 197

............................... 244-247, 250,254 Hepples v Federal Commissioner of Taxation .............................. 237, 239,

............................... 244-247,250,254

....................... 222,224,225,228,229 Kenny and Good Pty Ltd v MGICA (1992) Ltd .................................... 272 Koowarta v Bjelke-Petersen ........ 128, 130,

..................................... 133, 134, 136 Kruger v Commonwealth ..... 25, 30,31. 42 Lake v King .................................... 183 Lange v Australian Broadeasting Corporation

................. 155-168, 172,175-177,180, ...................... 186, 188, 190, 193, 194, ........................ 201. 202, 206, 211-215 Lauranee v Katter ............... 186, 192, 193 Levy v Victoria ............ 156, 162-166, 180 Mabo v Queensland (No 2) ......... 104, 136, ..................................... 140, 234, 235 Mann v Q'Neill ........................ 194, 195 Marshall v Green ....................... 240, 241 McGinty v Westem Australia ...... 101, 103 Melboume Corporation v Commonwealth (State Banking Case) ...................... 138 Merivale v Carson ............................ 178 Miliangos v George Frank (Textiles) Ltd ................................. 261 Milirrpum v Nabalco Pty Ltd ............. 136 Mónaco de Gallicchio, on her behalf and on behalf of her granddaughter Ximena Vicario v Argentina ................................... .41 Nationwide News Pty Ltd v Wills .............................. 156,194, 195 New South Wales v Commonwealth (Seas and Submerged Lands Case) ............. 235 New York Times v Sullivan ....... 159, 160,

.............................. 197, 204, 209, 211 Paradine v Jane ......................... 258, 259 Perpetual Trustee Co Ltd v Commissioner of Stamp Duties (NSW) .................. 150 Pervan v North Queensland Newspaper Co Ltd ......................................... 211

278

Prebble v Television New Zealand ........................... 184, 191, 192 Pyrenees Shire Council v Day ............ 271 R v Wrighl ..................................... 198 Randwick Corporation v Rutledge ....... 235 Re CP ................. 222, 224, 226-228, 230 Re Limbo ....................................... 138 Rookes v Barnard ............................. 273 Selleck v Federal Commissioner oC Taxation ................................... 248 Stanton v Federal Cornmissioner of Taxation ................................... 238 Stephens v West Australian Newspapers Ltd ............................. 156, 159, 160, 172, .............................. 174, 179, 180,203 Stockdale v Hansard ......................... 197 Tasmania v Commonwealth ............... lOO Taylor v Caldwell ............................. 259 Theophanous v Herald & Weekly Times Ltd ......... 102, 104, 156, 157, 159-161, 163, ................ 172,174,175,180,186,201 Tornkinson v First Pennsylvania Banking and Trust Co (Havana Railway Case) ................................ 261 Vanspyke v Cloyson ................... 168-170 Velasquez Rodriguez v Honduras ........... 20 Warrnan International Ltd v Dwyer ...... 151 Wason v Walter ................. 198, 200, 201 Wesldeulsche Landesbank Girozentrale v Islington London Borough Council ..................................... 150,151,276 Weslern Australia v Cornrnonwealth (Native Tille Act Case) ...................... 128, 132, ..................................... 134,135, 137 Wik Peoples v Queens\and ................. 140 Wright and Advertiser Newspapers Ltd v Lewis .................... 184, 191, 192 Wright v Lewis ................................ 193 XL Petro1eurn (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd .......................... 274 Yick Wo v Hopkins .......................... 112

TABLE OF CASES

TABLE OF LEGISLATION

CONSTITUTION s7 ........................ 103, 104, 162, 192 s24 ...................... 103, 104, 162, 192 s49 .................................... 188, 192 s51(xxvi) ..... 95, 97,105,127.128-142 s64 ........................................... 162 s80 .................................... 136. 138 s90 ............................................. 97 s92 ........................................... 139 s116 ............................................ 36 s 117 .......................................... 139 s127 ............................... 95, 105-127 s128 ................................... 162.211

COMMONWEALTH Aboriginal Land Rights (Northem Territory) Act 1976 ..................... 43 Aboriginals Ordinance 1918 ........ 25-27. ..................... 33. 36. 37. 39. 40. 42 chlid Support (Assessment) Act 1989 ....................................... 219.220 Commonwealth Franchise Act 1902 .............................................. 113 Farnily Law Act 1975 ..................... .. .................. 217.219.220.223.225 s6OB(2) ................................. 229 s60B ..................................... 219 s61C .................................... 219 s68F .............................. 226. 230 s68F(2) ................................. 220 s68F(2)(f) ....................... 224. 229 Family Law Refonn ACI 1995 ....... 218 Income Tax Assessment Act 1997 .. 252 Income Tax AsseS5ment Act 1936 Part II1A ................. 231. 232. 236, .................... 240. 242. 244, 247. ...................... 248, 250-252, 254 525(1) ................................... 239 526(f) .................................... 239 588 ....................................... 237 s 160(7) ................................. 239 s 160A ................................... 244 sI60M(6) ............... 237. 239, 240. .................... 242. 243, 246. 248 • ..................... 249. 250. 252, 254 sI60M(6)(c) ........................... 252 sI60M(6A) ............................ 243 sI60M(7) .............................. 249 s160P ................................... 249

s160R ................... 237. 239. 244, ...................... 245,247-249, 251 5160SZ ................................. 248 5160U(3) ........................ 244, 251 5160U(4) ............................... 244 5160U(6) ............................... 251 sI60ZD(4) ............................. 239 s160ZH .......................... 243, 252 s160Z1 .................... 239. 242. 250 s160ZL ................................. 252 s160ZM ................................ 252 s160ZS ..... 244.247.249. 252. 253 sI60ZS(1) ............................. 237 s 160ZSA ............................... 244 Parliamentary Privileges Act 1987 s6 ................................. 183, 190 s16 ................................ 185. 186 sI6(3) ............... 184.186,191-193 Racial Discrimination Act 1975 ..... 133 Taxation Law5 Amendment Act (No 4) 1992 s25(b) ................................... 248 Welfare Ordinance 1953 .................. 27

NEW SOUTH WALES Defamalion Act 1974 522 .... 159, 176, 180, 206. 207, 212 s15 ...................................... 213 sl6 ....................................... 213

QUEENSLAND Defamation Act 1889 s 16 ....................................... sI6(1)(h) ............................... sI6(2) ................................... Defarnation Code .........................

159 211 211 205

TASMANIA Defarnation Code ......................... 205

CANA DA Canadian Charter of Righls and Freedoms Arl 2(b) ................................. 194

UNITED KINDOM Adoption Act 1926 ...................... 261 B ill of Rights 1689 ............... 183, 192 Art 9 ..................... 183, 185, 186, ............................ 188, 191, 193

280

Law ofLibel Amendment Act 1888 s4 ........................................ 205 Lord Campbell's Act 1843 s2 ....................................... 205

UNITED ST ATES Constitution First Amendment ..... 159, 165, 166, ................................... 190, 203 Fourteenth Arnendment ..... 109, 113

INTERNATIONAL INSTRUMENTS Constitution, the Republic of Bosnia and Herzegovina ............................... 62 Convention on the Elimination of Al! Forms of Discrimination Against Women ............... .15, 19,20,22,42 Convention on the Prevention and Punishment of the Crime of Genocide ..................... 34, 36, 42 Art n ...................................... 33 Convention on the Rights of the Child Art 30 ..................... 218,224,229 Declaration On the Elimination of AIl Violence Against Women ...................... 19, 22, 42, 48 European Convention for the Protection of Human Rights and Fundamental Freedoms ................................... 62 Intemational Covenant on Civil and Political Rights ......................... .41 Art 7 ..................................... .41 Art 8 ...................................... 41 Art 24 ..................................... 41

TABLE OF LEGISLATION

INDEX

ABORIGINES ANO TORRES STRAIT ISLANOERS Genocide ............................ 26, 33-36 Indigenous Children and Family Law ........................................ 217-230 Child Rearing Practices and Family Law ........................................ 221-226 Land Rights 43 Stolen Generations Litigation ...... 25-44 gender impact of the separation policies ................................ 31 CONSTITUTIONAL LA W Constitution Based on Popular Sovereignty ........................ 37, 129 Freedom from Discriminanon .......... 37 Freedom of Political Cornrnunication ........................................ 155-215 main features .................... 161-166 Historical Background to ss51 (XXVI) and 127 .................................. 105-127 1967 referendum ............... 119-127 Constitutional Review 1959 ......... . .................................... 117-119 federation and australian aborigines .................................... 105-111 federation and mee ............. 111-113 Royal Cornrnission on me Constitution 1929 .......... 113-1 I7 RacePower ............................ 95-142 Theories of Constitutional Interpretation .......................................... 96-105 "living force" or contemporary va1ues .................................... 102-105 original intent .................... 97-100 textualism ....................... 100-102 CONTRAeT Computer Software Licences .......... 262 Contract and Agency .................... 263 Contracts to Surrender the Privilege Against Self-Incrimination .......... 260 Contractual Penalty Clauses .......... 275 Judgments in Foreign Currencies .... 261 Proprietary Estoppel ..................... 262 Restitution .......................... 263, 264 Theory of Absolute Contractual Obligation .......................... 258-260 Treitel, Guenter ........................... 257

OEFAMA nON LA W Absolule Privilege in Parliaments and Courts .............................. 181-195 and constitutional freedom of political communication .............. 187-195 Common Law Qualified Privilege ........ ........................................ 167-180 and constitutional freedorn of political cornmunication .............. 177-180 Fair Comment on a Matter of Public Inleresl .............................. 207-211 and constitutional freedom of politica1 communication .............. 209-211 Fair Repon Privilege .............. 196-204 and constitutional freedorn of political cornrnunication .............. 201-204 Political Speech .................... 155-215 Privilege .............................. 157-159 Statutory Arnendrnents ........... 211-215 Stalutory Qualified Privilege .... 205-207 and constitutional freedorn of political cornmunication .............. 206-207 US and Australian Approaches ........... . .. ...................................... 159-161 FAMILY LAW And Indigenous Children ......... 217-230 best interests principIe ....... 227-230 And Muhiculturalisrn ...... 217, 226-230 Nuclear Family Model ............ 219-221 FEMINIST LEGAL THEORY And Deconstruction ................ 143-147 Econornic Globalisation .............. 79-82 Ferninist Appraisal of me Dayton Peace Accords ................................. 59-71 Militarisrn as Violence Against Wornen ............................................ 54-57 Spivak, Gayatri Chakravorty ............. .. ........................... 76, 78, 86, 90, 93 Syrnposium: Ferninist Interventions in International Law: Reflections on the Past and Strategies for the Future ....... 1-93 introduction citizenship ................... 9-10 development .................. 8-9 di versity ........................ 5-6 responses to ferninist interventions ............... 2-5

INDEX

282

violence ........................ 6-8 White Feminists and Human Rights Discourse .............................. 73-78 WiIliams. Patricia ...................... 73-75

INTERNATIONAL LAW Beijing Conference ............. 17. 18,23, .... .45.47.49.51. 52. 56, 57, 77, 93 women and armed conflict ....... 53-54 Copenhagen World Conference on Women ..................................... 47 Dayton Peace Accords ................. 59-71 Economic, Social and Cultural Rights and capitalism in UN documents ..... ........................................ 82-93 and economic globalisation ..... 73-93 Former Yugoslavia intemational tribunal ........... 16, 17 • ....................................... 19.20 redress for victims ofrape ....... 66-71 Genocide removal ofIndigenous children ...... . .................................. 26,33-36 Human Rights Law and Economic Deregulation .............................. 21 Nairobi World Conference on Women ... ............................................... .47

Symposium: Feminist Interventions in International Law: Reflections on lhe Past and Slrategies for ¡he FUlUre ....... 1-93 Violence Against Women ........... 15-16• ...................................... 20.45-58

LEGAL THEORY And Deconstruction ................ 143-147 T AXATION LA W New Capital Gains Provisions ........... . ........................................ 248-251 Relevance of Property Law PrincipIes ........................................ 231-255 capital gains versus fragmentation of an existing asset ............. 236-248 arguments for the bundle of rights theory ...................... 244-245 arguments for lhe single asset theory ...................... 246-248 distinction between income and capital .................................... 235-236

TORTS Exemplary or Punitive Damages ......... . ........................................ 273-275 Professional Negligence .......... 270-273 Proposa! to Abolish Common Law of Negligence for Personal Injuries ........ ........................................ 265-270 TRUSTS Resulting Trusts .................... 149-151