Editors --- "Introduction to Issue 18(2)" [2021] CanLawRw 10; (2021) 18(2) Canberra Law Review v

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INTRODUCTION

This second issue of Canberra Law Review for 2021 – appearing somewhat late because of COVID-19 – features articles from Australian contributors regarding evidence, reporting and model litigants. It also features final-year work by Canberra Law School students alongside a review of major studies of the Constitution of the Australian Capital Territory and of constitutional reform as a remedy for political disenchantment, particularly relevant given violence by the far right at the end of 2021 such as the burning of the main entry to Old Parliament House.

Bede Harris’ magisterial ‘Should Australia’s Judges Resign’ offers a detailed exploration of a fundamental question: should judges who are required to apply law that infringes human rights resign rather than participate in an unjust legal system? The question is relevant to Australia because of the scope that the Constitution affords to Parliament to enact legislation that is contrary to internationally-accepted human rights norms, particularly in relation to liberty of the person which can be abrogated without judicial authorisation in a wide range of circumstances and which, in the case of immigration detention, can be indefinite. Building on a lucid examination of the moral responsibility of judges during the apartheid era in South Africa, for example regarding legislation authorising detention without trial and the psychological harm detention inflicted on detainees, Harris suggests that judges have open to them the option of refusing to apply such legislation by developing a common law bill of rights.

The theoretical justification could be based upon a restoration of the common law to the position enunciated by Coke CJ in Dr Bonham’s Case, ie the power to refuse to apply Acts of Parliament contrary to ‘right reason’. An alternative justification could be derived from the new understanding of the rule of law emerging in the United Kingdom, to the effect that the doctrine requires not only that the law conform to formal rules of validity but also that it should comply with external human rights norms, with the rule of law imposes on the courts a duty to restrain Parliament if it enacts oppressive legislation. the article argues that such a course should be adopted by courts in Australia, thereby enabling judges to resolve the moral dilemma presented by legislation that infringes human rights

Brendan Walker Munro’s ‘You Don’t Need To Know’ considers the blurring of traditional lines between “spies and cops” since 9/11, with Federal and State law having become more permissive of the use of criminal intelligence as evidence in proceedings. Walker-Munro argues that criminal intelligence (the synthesis of information and trained analysis to inform decision-making) has been the cornerstone of policing and national security investigations over the last century. The blurring has often occurred in circumstances where parties are not allowed to view the evidence, test its strength or even know it exists. The article engages with this paradigm, not only to expose its weaknesses but also to identify positivist mechanisms where such material – usually probative as to the facts in issue – might be used in ways that do not offend constitutional or common law principles.

‘Duties To Report Child Sexual Offences: A New Era In Australian Criminal Law’ by Ben Matthews notes that in 2021 Queensland became the most recent Australian State to enact a duty in criminal law requiring all adults in the community to report child sexual offences to police. The article conducts a comprehensive doctrinal and comparative analysis of these criminal law duties to identify common elements, and differences in nature and scope. Matthews argues that the laws constitute significant public policy interventions to better identify cases of child sexual abuse, also promoting both national and international policy imperatives to protect children. By creating a positive duty in the criminal law, the laws embody an approach to responsible citizenship which extends the traditional parameters of criminal law liability, but is justified in doing so given the characteristics and gravity of sexual offences against children and their typical non-disclosure.

In adopting a reform orientation, and using rule of law principles of clarity and consistency as an evaluative lens, the article argues that there is a need for a uniform approach across States and Territories. Matthews identifies areas requiring reform in jurisdictions that have already enacted legislation, and optimal approaches for legislative design in jurisdictions yet to enact the laws.

‘Abuse of Power and the Issue of Prerogative Writs – Implications for Breach of the Commonwealth Model Litigant Policy’ by Jason Donnelly considers prerogative writs. The grant of the prerogative writs and relief under s 39B of the Judiciary Act 1903 (Cth) is a matter of discretion. The discretion to refuse relief is not to be exercised lightly. An established ground for refusing the grant of the prerogative writs is “bad faith” on the part of the applicant, either in the transaction out of which the duty to be enforced arises or towards the court to which the application is made.

The article considers the question of whether it is appropriate to withhold the grant of prerogative relief in circumstances where the Commonwealth, as a party to judicial review proceedings, has engaged in conduct considered an infringement of the Model Litigant Policy (MLP) made under the Legal Services Directions 2017 (Cth). Donnelly argues that contravention of the MLP by a Commonwealth party in judicial review proceedings should be considered a ground for a court, exercising judicial power, to refuse the grant of prerogative relief as an extension of the common law model litigant obligations imposed on Commonwealth entities.

A review of David Mossop’ The Constitution of the Australian Capital Territory considers a landmark work on the law of the ACT, of value for legal practitioners within the Territory and more broadly for students grappling with the functioning of constitutions outside the national Constitution that all law students encounter as one of the Priestley subjects.

Student Section

This issue of Canberra Law Review also features contributions from six undergraduate and graduate law students.

Brittany Bretherton’s ‘Opting out of parenthood: A discussion on equality of reproductive rights and men’s right to ‘statutory termination’’ argues that adoption of a right to ‘statutory termination’ raises novel questions about parenthood and equality in reproductive rights, but also difficult fundamental questions about equality before the law. The concept of statutory termination is that men should have equal reproductive choice and rights as women by providing a reciprocal right to terminate all responsibilities relating to an unintended pregnancy.

‘Sic Itur Ad Astra: The CHM Principle, Celestial Bodies, the Moon Agreement and the Artemis Accords’ by William Gallagher discusses international agreements regarding ‘off world’ activity, an area of increasing scholarly and commercial interest attributable to Australian government support of a ‘space industry’ and overseas initiatives led by entrepreneurs such as Jeff Bezos and Elon Musk.

Natasha Nguyen’s ‘Forging A Future For Nature: a comparative analysis of international, Commonwealth and ACT approaches to the law of biodiversity conservation’ notes that although Australia is a signatory to both the World Charter for Nature and the Convention on Biological Diversity, its implementation of environmental laws have not optimally curbed this trend of biodiversity loss. Her article explores the interplay of biodiversity conservation laws in the ACT and the Commonwealth, evaluating whether the Environment Protection and Biodiversity Conservation Act 1999 (Cth) or Nature Conservation Act (ACT) strongly favours the conservation paths advanced by the World Charter for Nature or the Convention on Biological Diversity.

‘Evaluating The Consequences Of Criminalising Coercive Control In The Australian Capital Territory’ by Heidi Andriunas explores whether the Australian Capital Territory should consider introduction of a standalone offence of coercive control. Tasmania, Scotland, England and Wales have all implemented coercive control offences. New South Wales and Queensland are conducting inquiries into the creation of an offence. It is pertinent to consider whether the ACT should follow.

Mallory Comyn’s ‘Locked Up And Drugged Up: Regulating The Use Of Chemical Restraint In Residential Settings’ considers law regarding what has bleakly or indignantly characterised as the chemical cosh, building on the Royal Commission into Aged Care Quality & Safety disclosures regarding the alarming extent of neglect and abuse in Australia’s residential aged care facilities.

‘A Case for Recognition: A Fiduciary Relationship Between the Crown and Indigenous Australians’ by John O’Connell offers insights into unsuccessful attempts by Indigenous Australians to utilise fiduciary law principles for greater recognition of their unique status in Australian society. It contrasts those attempts against the greater success of indigenous Canadians, going on to contrast the fiduciary law regimes in Australia and Canada, highlighting differences between the two jurisdictions, particularly in the context of judicial decision-making about the recognition of a fiduciary obligation owed to indigenous peoples and Canada’s constitutional recognition of its First Nations.

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