Volume 27(2)
July 1998
ARTICLES
A Matter of Justice: Human Rights in Australian Law, John Toohey AC (pp 129-139)
Judicial Indepencence and the High Court, Daryl Williams QC MP (pp 140-155)
Property Valuations: The Role of the Margin of Error Test in Establishing Negligence, Neil Crosby, Anthony Lavers and John Murdoch (pp 156-194)
The Duty of Solicitors to Give Tax Advice: Recent Developments, Robert K O'Connor QC (pp 195-202)
WESTERN AUSTRALIAN FORUM
Removal of Indigenous Children from their Families: The Litigation Path, Tony Buti (pp 203-226)
Domestic Violence and Sexual Abuse: Should the Courts Abandon the Welfare Approach to Sentencing?, Julia Davis (pp 227-247)
The Judges of Western Australia: Part II, Kate Offer (pp 248-254)
BOOK REVIEWS
Private Prisons and Public Accountability, RW Harding; and Privatizing Prisons: Rhetoric and Reality AL James, AK Bottomley, A Liebling & E Clare (pp 255-263) Reviewed by Neil Morgan
The Mooting Manual, T Cygar & A Cassimatis (pp 264-265) Reviewed by Gavin Douglas
Overviews
ARTICLES
A Matter of Justice: Human Rights in Australian Law (pp 129-139) 
John Toohey AC (Justice of the High Court of Australia 1987-1998)
In this essay, John Toohey, a former Justice of the High Court of Australia, considers the protection afforded to human rights in Australia by the common law and statute and examines the case for enactment of a Bill of Rights.
The position of Australia’s indigenous people is not directly the subject of my address. For my purposes the significance of the title lies in highlighting that human rights are not, or at any rate should not be, a matter of grace and favour. They are a matter of justice. Unless that is understood, any discussion of human rights seems to me to proceed on a false footing. If it is understood, there is some prospect that human rights will receive adequate protection. And they will be protected, not because they are fashionable or politically correct, but because justice demands it.
The term ‘human rights’ came into vogue after World War II. It replaced ‘natural rights’ because of the association of that expression with natural law, which itself had become a matter of controversy.
I do not think it is possible to offer a satisfactory definition of human rights. It is somewhat easier to compile a catalogue of particular rights, though in the international context there is a continuing debate about what is called ‘cultural relativism’ and the question is asked: are human rights everywhere the same?
International affirmation of human rights took place when, in the aftermath of World War II, the General Assembly of the United Nations adopted the Universal Declaration of Human Rights. Countries of Western Europe accepted the Convention for the Protection of Human Rights and Fundamental Freedoms which established the European Court of Human Rights. On a wider stage, many countries, including Australia, have ratified the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. The earlier emphasis was on civil and political rights which reflected the history and ideology of Western democracies. They proved less controversial than economic, social and cultural rights.
Even within Australia there is plenty of scope for debate as to the content of particular human rights. But the point has been made by Dr Rosalyn Higgins, now a member of the International Court of Justice, that human rights are human rights and are not dependent on the fact that countries may behave differently from each other. The desire of individuals for food and shelter, to be able to speak freely, to practise religion or to abstain from religious belief, not to be tortured, not to be detained without being charged and to receive a fair trial is not dependent upon the particular culture or economic development of a country....
Judicial Indepencence and the High Court (pp 140-155)
Daryl Williams QC MP (Commonwealth Attorney-General)
Recently, some highly contentious decisions of the High Court of Australia have highlighted to the public how important the role of the Court is. In this paper the Commonwealth Attorney-General seeks to explain the role of the Court, and the process of appointing justices to it, as well as offering some comment on notions of judicial independence as they relate to the High Court.
Australian judges are currently under the community microscope and the justices of the High Court are under the most intense scrutiny. I genuinely welcome public interest in the judiciary and in the role of the courts. Public debate of an appropriate kind will, I believe, lead to a better community understanding of the role of the third arm of government in the democratic system enshrined in our 98 year old Constitution.
During the 95 years since its establishment in 1903 the High Court has remained relatively stable in its membership. There were three original members and this remained the case until 1906 when the number of justices was increased to five. Then, in 1912, the Court was expanded to seven. It would probably have remained at this number but for the Depression. That prompted Parliament to amend the Judiciary Act 1903 to reduce the Court to six members. In 1946 the membership was restored to seven. Despite sporadic suggestions that the strength of the High Court be expanded to nine, it continues to comprise seven justices.
There have been 11 Chief Justices, including the present Chief, Murray Gleeson. The average term of office of the Chief Justices is about nine years. Of the 11 Chief Justices, six were members of the Court at the time of appointment. The longest serving Chief Justices have been, in order, Sir Garfield Barwick, Sir John Latham and Sir Samuel Griffith, each of whom served over 16 years.
A total of 43 justices, including Chief Justices, have served on the High Court. Of that number the higher proportion has been appointed by non-Labor governments, a total of 29. Labor governments have been responsible for appointing the remainder of 14. The only female to be appointed has been Justice Mary Gaudron, appointed in 1987.
The average age on initial appointment has been 53 years and the average age on ceasing to be a justice has been 69 years, giving an average length of service overall of about 16 years. The longest serving justice has been Sir Edward McTiernan, who sat for more than 45 years. He is followed by Sir George Rich, who sat for 37 years. Probably the most eminent member of the High Court, Sir Owen Dixon, sat for more than 35 years — 23 years as a justice and 12 years as Chief. Since the constitutional amendments in 1977 which require terms of office to expire at 70 years, it is most improbable that future members of the Court will serve for such long periods.
In the approximately 50 years since the end of World War II, there have been 28 appointments to the High Court. Of that number, 20 have been appointed by Coalition governments and eight by Labor governments. Of those appointed since 1945, the average age at appointment has been 54 years. In this group the average age at the time of ceasing to hold office has been 68 years, seven having died in office. All except one of the most recent 28 appointees to the Court were born in Australia. The exception, Sir Ninian Stephen, was born in the United Kingdom and came to Australia at the age of 17 years....
Property Valuations: The Role of the Margin of Error Test in Establishing Negligence (pp 156-194)
Neil Crosby (Professor, Department of Land Management and Development, University of Reading, UK)
Anthony Lavers (Professor, School of Real Estate Management, Oxfored Brookes University, UK)
John Murdoch (Senior Lecturer, Department of Law, University of Reading, UK)
This paper aims to examine critically the use made of the ‘margin of error’ principle as a test of negligence in property valuations. In particular, it considers whether the ‘bracket’ of 10-15 per cent which is routinely accepted by judges in the UK is justified by reference to existing empirical studies of valuation variation.
The paper traces the development, status and current operation of the margin of error principle through case law in the UK and Australia, noting that the principle was originally put forward by valuers appearing as expert witnesses in negligence actions. It then reviews the previous empirical work on valuation variation carried out in the UK, concluding that the valuation variation studies are more relevant than other studies of valuation accuracy to the point at issue. The valuation variation analysis includes previously unpublished data, including the performance of expert witnesses themselves, where the paper identifies a striking contrast between the experts’ assertions as to the size of ‘error’ which suggests negligence and the range of valuations actually put forward by those same experts.
The preliminary analysis of Australian cases indicates a number of differences in approach by both judges and expert witnesses from that in the UK, including the use of multiple experts for each side and an emphasis on the method rather than the result to determine negligence. This leads to conclusions which are different for each country.
For the UK, the conclusions are that the margin of error principle is lacking in any empirical basis and indeed runs counter to the available evidence. Its use as a means of establishing negligence by a valuer is fundamentally flawed. It is also concluded that the advice given to the judges by expert witnesses is flawed and may call into question their ethics and/or competence. For Australia, the conclusions are that the approach taken by the courts appears to be much closer to that recommended by this paper — namely, that the valuation figure should not be determinative of negligence by the valuer, and that the performance of Australian expert witnesses displays a greater level of consistency between their valuations....
The Duty of Solicitors to Give Tax Advice: Recent Developments (pp 195-202)
Robert K O'Connor QC (Queen's Counsel)
Do solicitors have a duty to advise their clients how best to avoid paying taxes? In Bayer v Balkin ((1995) 95 ATC 4609), a judge of the Supreme Court of New South Wales suggested that they do, but he later felt compelled to withdraw the suggestion. As a result the law has been left in some confusion. In this article a Perth QC clears up some common misconceptions regarding the duty of solicitors to give tax advice and comments on some recent cases which have dealt with this controversial issue.
The duty of solicitors to give tax advice to their clients has been confirmed in an English decision. In addition, an interesting decision of some relevance to this issue has been handed down by the Supreme Court of Western Australia. Both cases are considered in this article, together with a controversial decision of the Supreme Court of New South Wales, Bayer v Balkin ((1995) 95 ATC 4609).
In his reasons for judgment in Bayer v Balkin, Cohen J of the Supreme Court of New South Wales made the following observation: "
It may once have been considered that it was the duty of citizens and residents of a country to make their proper contribution to the revenue so as to enable the government to run the country for the benefit of its inhabitants. It now seems to be accepted, with the imposition of high rates of tax upon those who are most able to contribute to that revenue, that there is a duty on persons such as accountants and solicitors to advise their clients how they can avoid, as far as possible, making what the government regards as a proper contribution. That duty to advise has not been contested in these proceedings."
In August 1996, I attended the Australian Bar Association conference in San Francisco. At the convention dinner, I found myself sitting next to a gentleman who turned out to be Justice Cohen of the Supreme Court of New South Wales. When I told him that I had recently read his judgment in Bayer v Balkin, and written an article about it,3 he acknowledged that his remarks had caused some controversy in Sydney. He added that his comments about the duty to avoid tax were the only part of the long reasons for judgment which he had not supported by quoting authorities. This was because he regarded the point he was making as ‘obvious’, and thus not in need of further elaboration. He went on to say that he had subsequently requested the Public Information Officer of the Supreme Court to issue a press release in defence of his comments, with the result that a newspaper had written up his explanation on the basis that he was ‘joking’ when he made the comments in his reasons for judgment. He had therefore decided that in future he would not seek to explain his judgments publicly.
In July 1997, the Chief Tax Counsel of the Australian Taxation Office issued a statement in relation to the matter, part of which said as follows:
These remarks [in the judgment of Cohen J] have been quickly picked up by some commentators. What has not been picked up is the public statement by the Supreme Court to the effect that the judge was speaking ‘ironically’.
The only reference to that statement that I [the ATO’s Chief Tax Counsel] have found appears in the Sun Herald for 29 October 1995, as follows:
When he said last month that accountants and solicitors now appear to have a "duty" to advise their well-heeled clients on how to avoid paying taxes, the judge was speaking ironically. The tax-avoiding chicanery of lawyers and accountants is abhorrent to Justice Cohen, advised Ms Nelson [Public Information Officer of the Supreme Court of NSW] after reading last week’s item headlined, "Legal View on Tax Avoidance".
The clear views expressed by Cohen J in his reasons for judgment have since been separately and independently reinforced in a recent English decision....
WESTERN AUSTRALIAN FORUM
Removal of Indigenous Children from their Families: The Litigation Path (pp 203-226)
Tony Buti (Lecturer in Law, Murdoch University, Western Australia)
Sir Ronald Wilson's report on the Stolen Generation has drawn attention to the mistreatment of Aboriginal and half-caste children by government authorities from the turn of the century to the mid-1960s. This article considers what legal redress the children – now adults – may have against the State governments and other authorities who forcibly removed them from their families.
From the turn of the century until at least the mid to late 1960s, large numbers of Aboriginal children in all States and Territories of Australia were removed from their families to be raised in institutions and by foster parents. The justifications and policy motives behind the practice varied, but ‘at its most pernicious the practice was a result of theories such as eugenics and assimilation’. The systematic removal of Aboriginal children from their families received nationwide attention with the tabling in Commonwealth Parliament on 25 May 1997 of the Human Rights and Equal Opportunity Commission (‘HREOC’) report of the National Inquiry into the Separation of Aboriginal Children from their Families (the ‘National Inquiry’), entitled Bringing Them Home. In discussing grounds for reparation, Bringing Them Home examined issues such as infringement of parental rights, deprivation of liberty, abuse of power and breach of guardianship duties (within which fiduciary duties were considered). However, these issues were only canvassed in a general and superficial manner. There was no in-depth analysis of common law actions, and no discussion of possible defences and obstacles to successful litigation.
This paper seeks to redress that deficiency. The focus of the paper is on breach of fiduciary duty, the policy/operational distinction under the negligence heading, factual defences, damages, limitation periods and statutory immunity provisions. Only a brief reference will be made to breach of statutory duty, wrongful imprisonment and misfeasance in public office. But before exploring the common law actions, the author will provide some background information on the history and effects of the policies and practices of forced removal....
Domestic Violence and Sexual Abuse: Should the Courts Abandon the Welfare Approach to Sentencing? (pp 227-247)
Julia Davis (Lecturer in Law, BA, LLB (Hons), PhD candidate, University of Tasmania)
This paper analyses the Western Australian ‘welfare approach’ to sentencing in cases of domestic violence and sexual abuse. It begins with an analysis of the justifications put forward for this alternative sentencing method and provides a detailed critique of the strategies and fictions which it entails. The author argues that there is no reason to maintain the welfare approach in its present form. She concludes that unless it can be reconciled with mainstream sentencing principles, or supported by legislation, the welfare approach should be abandoned.
Western Australian sentencing law contains a small but intriguing aberration known as the ‘welfare approach’. The Court of Criminal Appeal (‘CCA’) first used this distinctive terminology in the 1984 incest case of Boyd ([1984] WAR 236) and the sentencing strategy it stands for reached its highest expression in Hodder,((1995) 15 WAR 264; 81 A Crim R 88) a case of serious sexual violence committed by a husband against his wife. The welfare approach is an alternative method of sentencing which allows the trial judge, in rare and exceptional cases of domestic abuse, to depart from a proportionate sentence based on the goals of deterrence, retribution and denunciation, and instead to devise a sentence which takes full account of the position of the victim and the family of the offender and is aimed at rehabilitating and maintaining the family unit. In Boyd, the result was a three year sentence with a short five month non-parole period; in Hodder, the CCA imposed a probation order instead of a ‘deserved’ sentence of between seven and eight years.
The sentencing strategy begun in Boyd appears to be both infrequently used and very difficult to apply: only two of the eleven sentences which were taken on appeal to the Supreme Court in later welfare approach cases were left undisturbed. Five of those cases resulted in complete reversals of the decision to apply the welfare approach, and at times the judges could not agree whether it was appropriate to use it. One of the reasons for this lack of a uniform pattern is the fact that the cases are so easily distinguished. This, combined with a technique which makes selective use of the case law, allows judges to apply the welfare approach in chosen cases instead of following a policy which consistently emphasises proportionality and the seriousness of the offence.
Recourse to the welfare approach is triggered by the victim’s forgiveness of the offender, her wish to be reunited with him and an allegation of hardship which will be suffered if the offender is imprisoned. In most cases strong remorse and the potential for rehabilitation are also required. These post-offence factors, which have no bearing on the culpability of the offender, have traditionally been given little, if any, effect on sentence. However, domestic abuse cases can create unique sentencing difficulties if a victim claims that imprisoning the offender will cause her more harm than the offence itself, and asks the court to reduce the offender’s punishment and set him free for her sake and that of the family.
The welfare approach thus raises two problems which may well occur more often in the future, given recent trends to increase the role of victims in the sentencing process and to encourage courts to be more responsive to their interests. The first challenge is whether a victim-oriented approach can be justified in principle; the second is to find a way to put it into effect under the existing sentencing rules.
This paper begins by considering the justifications put forward for the welfare approach in the Boyd/Hodder series of cases, and goes on to analyse the repeated efforts made by sentencing judges to give it a valid practical form. It discusses the unusual methods and strategies which have been used to side-step the obstacles within the sentencing system and contrasts the welfare approach with the attitudes taken to these issues in other jurisdictions. I conclude that the Western Australian courts have not produced satisfying answers to the two questions raised by the welfare approach and I suggest that it should either be abandoned, supported by special legislation or modified in its scope so that it no longer subverts fundamental sentencing principles.
The Judges of Western Australia: Part II (pp 248-254)
Kate Offer (Associate Lecturer, The University of Western Australia)
In this, the second in our series of pen portraits of the judges of Western Australia, Kate Offer provides short biographies of three Supreme Court justices: Des Heenan, Tony Templeman and Christine Wheeler.
BOOK REVIEWS
Private Prisons and Public Accountability, RW Harding and
Privatizing Prisons: Rhetoric and Reality, AL James, AK Bottomley, A Liebling & E Clare (pp 255-263)
(Reviewed by Neil Morgan)
Twenty years ago, few people would have disputed the proposition that building and running prisons should be the undiluted legal and moral responsibility of the State, immune from the trappings of private enterprise. After all, a breach of the criminal law constitutes something so offensive or harmful to the communal well-being that it triggers the involvement of State agencies, including police and public prosecutors. Such behaviour is not merely a matter for compensation between private individuals but invites punishment, pronounced by a criminal court and inflicted in the name of the State. In the 1970s a proposal for privately built and operated prisons would therefore have appeared to be little more than the whimsical pipedream of an ideologue from the ‘New Right’.
Both of these books demonstrate how dramatically the situation has changed in many parts of the world. In the United States, the United Kingdom and Australia ‘prison privatization’ has occurred at an astonishing speed and the State of Victoria leads the world in its proportionate use of private prisons (over 40 per cent of inmates). It is arguable that privatization is the most significant structural development to have occurred in the penal system in Anglophone countries in the twentieth century. It is indisputable that, like the modern tendency to create verbs out of adjectives and nouns, ‘privatization’ is here to stay.
The Mooting Manual, T Cygar & A Cassimatis (pp 264-265) (Reviewed by Gavin Douglas)
The Mooting Manual is a practical do-it-yourself guide to organising, and competing in, a mooting competition. The Manual’s opening chapter reveals that the modern moot developed during the fourteenth century in London’s Inns of Court to train students of law in the art of advocacy. In Australian law schools the moot continues to be an important, practical adjunct to legal studies. However, the authors suggest that the moot may be utilised in other educational settings as a tool to assist students in the presentation of clear and logical oral argument.
The Manual has two objectives: to assist those organising a mooting competition and to provide advice to those competing in the moot itself. The authors suggest that for the moot organiser and competitor alike, the goals of developing analysis and research skills and persuasive oral argument should be borne in mind both in conceiving and analysing mooting problems.
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