Procedural Defects in Australia’s Justice System

1. Procedural Defects in Australia’s Justice System Andrew S. Kulikovsky B.App.Sc.(Hons), LL.B., M.A., JP.

2. Areas of Concern • Statutory Interpretation • Definition of ’community standards’ • Failure to Investigate/Prosecute • ‘Lawfare’ • ‘The Process is the Punishment’ • Reversal of the Burden of Proof • Limits of Statutory Defences

3. Statutory Interpretation • Statutes are written texts that must be interpreted according to ordinary linguistic principles. • Not always easy if the statute enacted many years ago. • Statute may contain gaps and ambiguities. • Need to consider contextual information provided by historical, political and cultural circumstances at the time. • Courts must do their best to apply law in accordance with what legislators’ intended—What ‘wrong’ were they trying to prevent? • However, some Courts have started to move away from interpreting legislative intent by reading down provisions according to ‘common law principles of interpretation.’

4. Statutory Interpretation • Lacey v A-G of Queensland(HCA 2011): Does “unfettered discretion” really meant what it said? • HCA said NO! (6-1, Heydon J in dissent) • Majority argued that the appellant would need to show clear judicial error in order to have the sentence increased, otherwise it would be contrary to “deep-rooted notions of fairness and decency” and “infringe upon fundamental common-law principles, rights and freedoms…unless clear language required it.” • HeydonJ: “unfettered discretion” is clear language! Up until 1973, Court had held that there was indeed an unfettered discretion, but from 1973 onwards, began to interpret the provision as the majority had done—requiring that judicial error be shown. Therefore, Qld Parliament explicitly added “unfettered” to provision in the code in 1975. As the Minister for Justice explained in Parliament at the time, inserting “unfettered” was to communicate that Parliament intended to explicitly overrule the Court of Appeal’s interpretation.

5. Statutory Interpretation • Majority dismissed Minister’s statements in Parliament as irrelevant. Legislative intention and legislative purpose were fictions. They are constructed by the Courts using interpretive principles including common-law principles. Common law imputes to legislators an intention not to overrule common law principles and freedoms. • Majority’s argument is bizarre and absurd. • Parliament’s 1975 amendment achieved nothing and the 1973 Court ruling was unaffected. • Courts have authority to continue to develop common law principles regarding contracts, torts etc , they have no authority to change principles of statutory interpretation because they would then become law makers themselves • If legislative intention does not actually exist implies Parliaments enact raw texts containing words and sentences that have no defined objective meaning until the Court gives them one—and even then, a future Court may change it! Why have Parliament at all? • If legislative intentions do not actually exist, the majority cannot argue that common law imputes to law makers an intention notto overrule common law principles and freedoms, because the Parliament has no actual intention! • How can anyone follow and obey a law that is unclear and may only become clear after a court has interpreted it? • Even worse, how can anyone follow and obey a manifestly clear and unambiguous law, only to be found in breach of that law because a court has reinterpreted it to mean something quite different?

6. Definition of ’community standards’ • Gauging community standards was once the task of the jury, but in non-jury trials it now falls to the judge. • Tendency for judges to substitute their own personal values for those of the community. See Gleeson CJ in Neindorf v Junkovic. • However, Lord Bingham appears to speak for many modern judges: “[Judges] know from experience...that the cases they have to decide involve points which are not the subject of previous decisions, or... conflicting decisions or raise questions of statutory interpretation…They know, and the higher the Court the more right they are, that decisions involve issues of policy.” • But authority to determine and set public policy belongs to Parliaments not Courts!

7. Definition of ‘community standards’ • Judges not equipped to gauge community standards: How could a 60+ year old homosexual High Court judge from Sydney possibly know the community standards and values of Adelaide’s northern suburbs or the regional towns of northern Queensland? • Up to Parliaments of Australia to set and regulate community standards. • Courts’ responsibility is to uphold those standards, not to accommodate or redefine them according to their own moral standards and beliefs.

8. Failure to Investigate/Prosecute • Police and other prosecuting are often reluctant or selective. • Human Rights Commission: QUT and Leak cases but not interested in pursuing racial putdowns of Leyonheljm and Bess Price. • Royal Commission referrals for prosecution—especially into Unions. Only handful of prosecutions. Bruce Wilson still hasn’t been charged. • Police refuse or reluctant to charge violent acts committed by protestors right under their noses or clearly recorded on camera. • Failed abortions: Viable babies born alive and left to suffer and die.

9. ‘Lawfare’ • Law increasingly being used as a weapon against other parties: Injunctions, administrative appeals, and over-regulation. • CFMEU won injunction to prevent federal police from examining computer files obtained in raid for which they had a valid warrant. • Environmental lobbyists used s.487 of Environmental Protection and Biodiversity Conservation Act 1999 (Cth) to stop or delay development of Adani Carmichael project. • Even without the legal action, it took 6 years and millions of dollars to obtain regulatory approvals. • Rejected asylum seekers (with help of advocates) use vexatious appeals to delay deportation in hope that they may outlast the Government and be accepted under a new regime. • Discrimination action: Bolt, QUT, Leak, Catch the Fire Ministries, Julian Porteous etc.

10. ‘The process is the punishment’ • Onerous and time-consuming procedural processes imposed on the defendant. • Often worse than the actual consequences of the unlawful act! • Significant direct costs (lawyers’ and court fees) and indirect costs (wasted time, lost wages from time off work, stress and anxiety). • Likely reputational damage even if acquitted, which can affect employment or career prospects, and general standing in the community. • Possibly led to premature death of Bill Leak. • Claimants often pay nothing and can obtain legal and financial support from the State. • Chilling effect on free speech—and important issues of public policy!

11. Reversal of the (Legal) Burden of Proof • Presumption of innocence is cornerstone of our legal system. Prosecution or claimants must prove their case. • Increasing pressure on Parliaments to enact legislation that reverses the burden of proof to make it easier for prosecutors to obtain conviction for matters deemed to have important public policy implications. • May be justified by ‘unique knowledge’ test (Isaacs J in Williamson v Ah On (1926)). • Still many unjustified reversals.

12. Reversal of the (Legal) Burden of Proof • Some examples: • RDA s.18 of the Racial Discrimination Act 1975 (Cth) a complainant need only show one of the reasons for an act was unlawful “whether or not it is the dominant reason or a substantial reason.” • S.8Y of the Taxation Administration Act 1953 (Cth) presumes that all company directors/managers are liable for a taxation offence unless they prove otherwise. • S.193C of the Crimes Act 1900 (NSW) states that If police reasonably suspect that a person’s property is the proceeds of crime, then the person must prove that the property was in fact lawfully obtained.

13. Limits of Statutory Defences • Many statutory defences are not established prima facie but must be argued and established by the defendant/respondent. • Eatock v Bolt(2011): Bolt relied on RDA 1975 s.18D(c)(ii), publishing “a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment.” • Court ruled that Bolt failed to establish this defence. • Catch the Fire Ministries (2006): Defendants relied on RRTA 2001 s.11(1)(b), making statements in “publication, discussion or debate made or held, or any other conduct engaged in, for (i) any genuine academic, artistic, religious or scientific purpose; or (ii) any purpose that is in the public interest. • VCAT held that defence was not established. Supreme Court subsequently upheld appeal. • Note that s.11 of RRTA 2001 does not allow ‘Truth’ as a defence…

14. Suggestions • Statutory Interpretation: • Coalition governments need to ensure only conservative black letter law judges are appointed to state and federal superior courts. Long-term project and pool of conservative judges is small. • Education is a key factor. Many of the faculty of law schools across the country endorse the same views, and tend to produce graduates with similar views. • Young lawyers and law students should be guided and mentored by conservative lawyers, academics and judges and encouraged to enter into academia. Conservatives need to start their own ‘march through the institutions.’

15. Suggestions • Failing to Investigate/Prosecute: • Mainly a resourcing problem. State and Commonwealth DPPs are often overworked and under-resourced. • Poorly prepared briefs or charges result in cases being dropped. • Many areas of public service have become highly politicised—some concern that prosecuting authorities may be reluctant to prosecute offenders who have a similar ideological outlook or believe their activities are in some way justified. • Governments must be able to remove such ideologues from the public service. • Police may be reluctant to intervene because they fear that they themselves may be the subject of an investigation, disciplinary action, or even criminal charges. • Governments, police ministers and senior police must support and back their police officers all the way, not undermine them. The benefit of any doubt should always be given to police unless there is clear evidence of wrongdoing.

16. Suggestions • ‘Lawfare’: • Judges’ too willing to entertain vexatious complaints and grant injunctions. Not easy to fix and requires cultural change among judicial officers. • Abbott government tried to repeal s.487 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) in order to prevent most environmental organisations from challenging developments unless they could show they were “directly affected.” Bill was opposed by Labor and the Greens, and has since lapsed. • Not possible to prevent or limit asylum seeker appeals without violating the rule of law. However, there is no reason why Australian taxpayers should fund these appeals and the lawyers who represent them. • Taxpayers should only be required to fund appeals to the Administrative Appeals Tribunal (Migration and Refugee Division). Any further appeals to the Federal Court and High Court should be at the applicant’s cost, and if their appeal is denied they should be liable for the Government’s costs as well. • Regarding discrimination law, Federal and State Governments) must continue to strive for legislative changeto remove the contentious and subjective elements of the law. • Federal Government must abolish the Australian Human Rights Commission. Serves no useful purpose, and is an oppressive organisation that uses the force of law to silence people, preventing debate and honest discussion. • Vehicle for complainants to extort funds from respondents. QUT case.

17. Suggestions • Statutory Defences: • Truth should always be a prima facie defence. • Legislation should be amended to explicitly state that the respondent/defendant claiming the defence only bears the evidential burden of proof. • Complainant/prosecution bears the legal burden of proof in negating the defence. • Complainant/prosecution should bear the legal costs of the defendant if their defence is successful.