The keynote address will be delivered by Mike Wait from the Crown Solicitor’s Office, who was counsel in the recent Holmdahl case that challenged compulsory voting in Australia. The other speakers are Masters students from Malaysia, Cambodia, France, Germany and Australia.

Event Details:

11 May 2013, 9 for 9.15 am – 3.15 pm

Moot Court, Ligertwood Building, The University of Adelaide

No attendance fee, but rsvp necessary.

RSVP: cornelia.koch@adelaide.edu.au by 9 May 2013

Further information can be accessed here.

Let’s conduct a thought experiment. Imagine the Commonwealth Parliament passing a law that takes away the right of women to vote in Commonwealth elections. Most constitutional lawyers, I suspect, would agree that the High Court would not let this stand although the precise doctrinal formulation of the reasoning condemning such a law would be a matter of some speculation. What if the same Parliament instead took away the voting rights of Indigenous Australians? I imagine that most constitutional lawyers would agree that this too would fall foul of the High Court. Ok, a third thought experiment. What if the Parliament removed the secret ballot from Commonwealth voting legislation? I guess here that most constitutional lawyers would also agree that the High Court would not allow this – although perhaps there might be a little more hesitation on this one.

Let’s change the scenario one more time. Now the Commonwealth legislates to remove compulsory voting. My guess here is that most constitutional lawyers would say that this would probably pass muster in the High Court. I want to argue that if the High Court would invalidate the law in the first three scenarios it should do the same if compulsory voting were removed.

The first three scenarios are really examples of constitutionalization. The first two, the voting rights of women and Indigenous Australians, are examples of constitutionalization after the formation of the Commonwealth Constitution. The last of the three, the secret ballot, is probably an example of constitutionalization by adoption of unwritten practice existing before 1901. There is nothing new in unwritten practices which exist before the creation of our Constitution being incorporated into that constitution. After all the Constitution has adopted judicial review, indeed, the very notion of the judiciary, from the Anglo-American constitutional tradition and the common law. And the reality of our executive government, the office of Prime Minister and other ministers, is another series of unwritten practices that have been woven into our constitution.   In other words, constitutionalization is a normal thing. The adoption of unwritten practices that came into being after 1901 might be considered more contentious but, as suggested by my thought experiments, I would be surprised if any constitutional lawyer in Australia would agree that the High Court would condone Commonwealth legislation removing voting rights for women or Indigenous Australians and, probably, the secret ballot. These are just too enshrined in our constitutional thought and practice to be anything other than part of the fabric of the Australian Constitution.

So, should the constitutionalization of compulsory voting be treated as just another example of constitutionalization of unwritten practice in line with my examples of voting rights for women and Indigenous Australians, or the secret ballot?

It might be argued that the first three examples deal with individual rights while compulsory voting does not. It is undoubtedly true that they do deal with individual rights. But they also deal with communal rights – the right to have a polity where all people get to vote (including women and Indigenous Australians) and where the vote is exercised in a manner that is commonly accepted as being fundamental to a free choice in an election (the secret ballot). In other words, it should be considered a constitutional right in Australia to be part of a political system where all Australians, irrespective of sex, ethnicity, religion, etc, are guaranteed a right to vote and where such voting takes place in secret.

I would argue that our political and constitutional history similarly enshrine a constitutional right to vote in a political system where everyone votes: where the constitutional requirement that the parliament be chosen by “chosen by the people” means chosen by all the people and not just the 50% or 60% or whatever percentage of the voting population that can be bothered to vote in a non-compulsory system. Couldn’t it be argued that it is also a communal value to have all adult Australians voting in Commonwealth elections, that this is a value for everyone and thus an individual right for all?

Australia’s political and constitutional history is inextricably bound up with compulsory voting since its introduction in state voting in Queensland in 1915 and federally in 1924. It is difficult to imagine, for example, how the constitutional crisis of 1975 would have turned out if the election of December, 1975 which swept out the Whitlam government had been held under voluntary voting. Whatever one’s views of the merits of the Whitlam government, the actions of the Liberal and Country parties of the time, of Sir John Kerr’s decision and the involvement of Sir Garfield Barwick and Sir Anthony Mason in this crisis, the fact that all Australians of voting age were given both the right and duty to vote in the ensuing election must have worked to help resolve this crisis. It is not implausible to believe, I would argue, that one of the reasons that Australia has had such a stable constitutional and political history since compulsory voting was introduced is the very fact of compulsory voting. The acceptance of women’s and Indigenous voting rights has only worked to reinforce this effect.

The advantages of compulsory voting go beyond enhancing stability, however. In general terms it can also be argued that compulsory voting has worked to limit the extent to which governments attempt to “bribe” the electorate. It is far harder, after all, to bribe 100% of the voting public than it is to bribe 50% or 60% of the same group.  The rent-seeking behaviour which is endemic in all countries has been reduced in Australia by ensuring that everyone is given both the right and duty to vote in elections and, to use contemporary language, “own” the results.

I think that it is a general rule that the more the people are involved in their own governance the better off they are, politically, economically and socially. Compulsory voting is an Australian manifestation of this rule and is now part of our constitutional fabric and should be recognised as such.

Dr John Gava is an Associate Professor at the Adelaide Law School, University of Adelaide.

Attorney-General (SA) v Corporation of the City of Adelaide (the Street Preachers Case).

The AACL and the AIAL are jointly presenting two seminars to explore the administrative and constitutional issues emerging from the decision.

Seminar 1:  The Scope of Council By-Law Making Powers After the Street Preachers Case

Michael Roder SC, Howard Zelling Chambers

Date:            14 May 2013

Time:           1-2pm

Venue:        Pilgrim Hall,12 Flinders Street

RSVP:          10 May 2013 to Sarah Mitchell: mitchell.sarah@agd.sa.gov.au

 Seminar 2:  Freedom of Political Communication After the Street Preachers Case

Luci Byers & Mike Wait, Crown Solicitor’s Office

Date:            29 May 2013

Time:           1-2pm

Venue:         Pilgrim Church,12 Flinders Street

RSVP:          24 May 2013 to Sarah Mitchell: mitchell.sarah@agd.sa.gov.au

* Please ensure that you specify in your rsvp which seminar(s) you wish to attend.

In Australia, integrity and accountability of the exercise of public power are now core principles that we associate with a democratic government under the rule of law. A myriad of mechanisms are in place to oversee government action and provide redress to those affected by it. However, one of the difficulties that these mechanisms face is that they are often on the outside looking in. One of the most important mechanisms in an accountability framework therefore is the protection of those within the public sector who have disclosed inappropriate behaviour they have witnessed. Whistleblowers find themselves in an extremely vulnerable position, facing a bewildering potential range of civil, criminal and administrative liabilities.

There are legitimate reasons for governments to protect public secrets and information in some instances. A balance must be struck that encourages and protects persons making disclosures about conduct that they bona fide believe is wrong, but prevents abuse of that system which may unnecessarily hamper efficient and effective government.

In Australia, the States and Territories have all implemented whistleblower protection regimes. The Commonwealth, however, has held out. There is limited protection afforded by s 16 of the Public Service Act 1999, which protects a member of the public service from victimisation or discrimination because they have reported breaches of the APS Code of Conduct.

On 21 March 2013, the Commonwealth Government introduced the Public Interest Disclosure Bill into Parliament. Clause 6 states that the objects of the Act are:

(a) to promote the integrity and accountability of the Commonwealth public sector; and

(b) to encourage and facilitate the making of public interest disclosures by public officials; and

(c) to ensure that public officials who make public interest disclosures are supported and are protected from adverse consequences relating to the disclosures; and

(d) to ensure that disclosures by public officials are properly investigated and dealt with.

While the objects are lofty, in a submission to the Senate Legal and Constitutional Affairs Committee inquiry into the Bill, we (Gabrielle Appleby, Judith Bannister and Anna Olijnyk) highlighted a number of concerns about the protections actually offered to potential whistleblowers under the legislation.

It is clear that the Bill’s primary focus is to encourage persons to make internal disclosures about inappropriate conduct. An internal disclosure must be to an ‘authorised internal recipient’, which includes authorised officers within agencies, the Ombudsman and the Inspector-General of Intelligence and Security. It is only if the investigation conducted following an internal disclosure is ‘inadequate’ that a whistleblower may make an external disclosure – for example to a journalist. The whistleblower must be sure, among other things, that the investigation of the internal disclosure was ‘inadequate’, as defined in the legislation, and that ‘the disclosure is not, on balance, contrary to the public interest’.

We agreed with concerns that have been expressed elsewhere about the exclusion of the conduct of Ministers, the Speaker of the House of Representatives and the President of the Senate from the definition of disclosable conduct in the Bill; and the exclusion of conduct that is connected with intelligence agencies. History has demonstrated that it is often the conduct of these officials that transgresses appropriate boundaries. These concerns have been well canvassed elsewhere, see for example, Suelette Davis’ piece on The Conversation. As such, we focussed on other shortfalls of the legislation.

Our major concern is the complexity of the scheme – both in terms of the process that must be followed to ensure an individual enjoys the protections afforded under the legislation and also the legal tests that must be satisfied. By its nature, this complexity militates against disclosures being made. An individual who is contemplating ‘blowing the whistle’ would find it extremely difficult to determine whether they would be protected under this legislation. 

We recommended a number of changes to the Bill, including changes to simplify the legal tests involved (particularly the legal tests that must be satisfied before a protected disclosure may be made to an external source), and to assist persons who are seeking to make a disclosure, or whistleblowers who have to bring or defend actions in court.

Our full submission can be accessed here.

Last Friday, we witnessed the regular pilgrimage of state and territory leaders to meet with the Prime Minister in the Council of Australian Governments (COAG). This ritual, despite being one which has been part of Australian governance since the beginnings of the federation, is one which has always attracted criticism of its worth and this time was no exception. Queensland Premier Campbell Newman again attacked the process as a ‘dysfunctional farce’ that should be abandoned. Tony Shepherd of the Business Council of Australia argued COAG has ‘failed’ to achieve a fairer distribution of revenue between the Commonwealth and the States and Territories and should be reverted to an earlier state of limited premiers’ conferences and stronger ministerial councils.  Stephen Bartos has argued the process is overburdened and should be reformed. While each of these people makes credible points about the problems with the COAG process, they blame this on structural flaws in COAG, when in fact the problem is much deeper. If we as a nation are to solve the problems Newman, Shepherd and Bartos allude to, we need to look at the structure and distribution of responsibilities within the federation.

Initially, let’s examine why COAG exists. We have a federal system in Australia where the vast bulk of policy can be regulated either by the States and Territories or by the Commonwealth. States have the power under their constitutions to legislate on any issue. The Commonwealth has limited legislative powers under sections 51 and 52 of the Australian Constitution and full legislative powers in the territories which are exercised, by virtue of legislation, by the Territory governments. What this means is that the States, the Territories and the Commonwealth all have overlapping constitutional powers to legislate in the vast bulk of policy areas. Section 109 of the Australian Constitution resolves conflict between Commonwealth and State law (in the Commonwealth’s favour), but the distribution of policy responsibilities is left for the various Australian governments to decide for themselves. Furthermore, in the absence of a constitutional provision for where these arrangements are to be made, it is left for the governments to design and participate in their own forum to manage their political relationships. Currently, this forum is COAG.

Both the Commonwealth and the states and territories have a strong incentive to attend COAG. The States and Territories, as a result of a drift of taxation power from the states to the Commonwealth since the 1940’s, are dependent on Commonwealth grants in order to fully fund their programs. The Commonwealth is also facing greater electorate expectations upon it than it has in the past and requires the states and territories to be in agreement with their programs in order for them to come to fruition. The result is a meeting where the leaders of the States and Territories and the Commonwealth come together, each with their own agendas, and negotiate to get the best deal for their jurisdictions. Sometimes, like setting up a national training system, interests align and an agreement is reached. Other times, such as the current education reform package, agreement is not forthcoming at the meeting. Sometimes, like with rules on royal succession, an agreement results after multiple meetings. The success or failure of these meetings hangs on the balance of political and parochial interests that each leader brings to the table and this situation is the primary basis for criticism of COAG. The solutions presented, however, are unsupportable.

Let’s examine what will happen if we abandon COAG completely. Because of the shared nature of political responsibility in the Australian federal system, without a forum like COAG meeting regularly each jurisdiction could legislate on almost any political issue without reference to other jurisdictions. This will inevitably result in overlapping regulation. As a result, the only way for jurisdictions to interact with one another in the policy formulation process would be through individual meetings between the Commonwealth and individual States and Territories or after the fact through a court challenge to an enacted law.  Neither of these options is practically feasible as bi-lateral meetings on every issue of cross-jurisdictional concern would be overly burdensome. Furthermore, challenging every law enacted with a cross-border concern in court would see the entire governance process grind to a halt while the cases were being considered. In addition, the extra cost and burden on the court system would have serious implications for the accessibility of the wider community to the justice system. As such, a meeting of government leaders is a practical necessity. As COAG is that meeting, abandonment of the process wholesale is impractical.

The second option is to slim down the COAG process, allowing the meeting more scope to deal with a smaller number of issues in greater detail. This seems reasonable in theory but in practice, as with abolition, it is not possible. As the independent financial capacity of the States and Territories continues to drop, and the electorate expectations on the Commonwealth continues to grow, more and more policy will need to be coordinated between the different levels of government. Put simply, the States and Territories need the Commonwealth’s money and the Commonwealth needs to draw on the legislative power of the states to implement policy. This means that the amount of policy which goes to COAG will inevitably increase. It will only be decrease if, somehow, the states and territories gain enough revenue to act more independently, or the electorate expectations on the Commonwealth decrease. Neither is likely.

This leads us to the final option of slimming down COAG and putting more issues to ministerial councils to resolve. This is not a solution as it only shifts the responsibility. Ministerial councils still exist and contribute to the policy discussion. Moving responsibility from COAG to ministerial council simply shifts issues to another forum. Furthermore, ministerial councils do not have the capacity for final government sign off, which requires the Prime Minister and Premiers.

Ultimately, the problems with COAG are a symptom of wider systemic issues with our federation. As long as responsibility is shared between jurisdictions rather than specifically distributed, negotiation and cooperation will be necessary and therefore, so will COAG. The only way to change this is to alter the constitutional distribution of powers or to create a body with greater capacity and without political division to conduct inter-jurisdictional negotiations. Even this may not fully solve the problem as interaction between jurisdictions is in the nature federal government. Either way until then constitutional reform is forthcoming; COAG, with all its flaws, is the best we have.

Mark Bruerton is a PhD Candidate at the Adelaide Law School, University of Adelaide.

The Sex Discrimination Amendment Bill will amend the existing federal prohibitions against sex discrimination to extend protections to cover sexual orientation, gender identity and intersex status. The draft Guidelines on the Recognition of Gender propose a new national standard for the recognition of sex and gender in Australia. The Guidelines distinguish between biological sex, and gender which relates to social identity. If the Guidelines are adopted the federal government will ordinarily only collect data regarding an individual’s gender, not their sex, and individuals will able to indicate their sex and/or gender is M (male), F (female) or X (indeterminate/intersex/unspecified).The Guidelines also propose a new standard for the recognition of change of gender in Australia. It is recommended that the Australian Government recognise each of the following as sufficient evidence of an individual’s sex and/or gender:

a)   a ‘Gender Recognition Certificate’  signed by a  doctor which states the gender in which the person lives;
b)   a valid Passport, which specifies their preferred gender, or
c)    an amended State or Territory birth certificate, which specifies their preferred gender.

Adelaide Law School academics Dr Laura Grenfell and Anne Hewitt recently made submissions regarding both these proposed reforms. While they supported the spirit of both reforms, Anne and Laura did question some of the content of the proposals. Their complete submission regarding the Sex Discrimination Amendment Bill can be seen here. However, one particular concern regarding the Bill was that the proposed amendments would not offer protection to individuals who suffer discrimination because they are in the process of changing their sex or gender status. In their submission regarding the draft Guidelines, Anne and Laura indicated their support the creation of a uniform national approach to the recognition of gender and noted the impact that inconsistent legislative and policy approaches can have on the lives of affected persons. However, they criticised the Guidelines for continuing to embed a medicalised understanding of sex and gender. They also noted that the Sex Discrimination Amendment Bill includes a significant exemption regarding the collection of data which would undermine the operation of the Guidelines, and suggested that exemption be narrowed.

As the convener of the Public Law Research Community I have often been asked what is ‘public law’. My response is that I have always thought of public law broadly, not limited to the traditional conception of constitutional and administrative law that is usually covered in courses on the area. I start from the fundamental conception that public law looks at the relationship between the government and the governed. Private law, in contrast, concerns the relationships between individuals within a community.

Public law looks at the responsibility of the government to the governed because of their position as custodians of public power. The concern of public law is therefore to ensure that this power is exercised in a way that pursues the public good.

Public law so defined will often transcend the purely legal and enter the realm of policy. However, its political aspect should not be confused with partisan concerns. Public lawyers look at how policy can achieve community and individual benefit. This is likely to be influenced by the philosophical perspective of the scholar, but this is a far cry from influence by party political positions. Scholars chose their positions based on faithfulness to a particular conception of the public good, and the role of government in society, and reason from this to conclusions on particular policy. Importantly, although public law scholars may be influenced by different understandings of public law, they advocate for positions based on principle and reasoning, and not to further the interests of a constituency. Party political debate is often not grounded in theory, or required to take a consistent approach. Indeed, often the role of the public law scholar is to identify the underlying understandings of public law that are being relied upon and used as justifications for policy, pointing out their historical origins, and their theoretical influences. An important role of public law scholars is to point out the diverse influences drawn upon by government and courts, and sometimes to identify incoherence and inconsistency in the use of these influences.[1]

Public law has an inherently different quality to private law, although the distinction is not always maintained. Sometimes, for example, the government will intervene in the legal relationships between individuals – such as the Commonwealth’s recent reform agenda in contract law. Thus, private law may ultimately be regulated by the government and the form of regulation may be influenced by what is in the best interests of the community. Nonetheless, it remains fundamentally about resolving disputes between individuals (whether they are natural persons or corporations). Sometimes, of course, the government becomes involved in transactions like those entered into by individuals and will become party to these disputes. The public nature of the government changes these disputes – public law enters the arena of private law – in ways such as the model litigant principle.

So where does that leave my answer to what disciplines would fall within public law? I do not deny that questions about the accountability of power – as are traversed in constitutional and administrative law – are at the heart of public law. Human rights and anti-discrimination law is also concerned with questions about the accountability of public power when exercised against the individual and naturally fall within the purview of public law. There are often international dimensions and influences in these areas of law, and to that extent, public international law must fall within the concept of public law.

In days past, the private sphere was much larger than it is today. Services and activities previously considered exclusively in within the domain of the individual are now regulated and overseen by government. Anti-discrimination legislation, for example, now applies in private as well as public workplaces.

Criminal law, and the role of the state in policing and prosecuting crimes within society on behalf of the community, is an obvious addition to the public law field. Migration and refugee law and the role of the State in defining who we are, through citizenship, and therefore defining the ‘Other’ and prescribing how the ‘Other’ is to be dealt with, is also an important part of public law.

Environmental and planning laws have an important public dimension. Planning controls and environmental protection measures are implemented and executed by the government on behalf of the community. The government’s actions in this area are therefore an important concern of public law. Related but separate to these areas is the field of native title law, which also falls within the purview of public law. Because of the nature of native title in Australia and its extension to Crown lands only, the government is always important party in the determination of native title claims and therefore native title law concerns the relationship between the government and the government.

A large number of other subject areas involve questions about what is the proper role of government in the regulation of the conduct of individuals and the government’s role in overseeing and intervening in these areas. Labour law and the extent to which the government ought to regulate and oversee industrial relations is an important and often controversial part of public law. The FairWork Ombudsman is a statutory authority with the responsibility to oversee and investigate compliance with these regulations. Another is competition law and the protection of consumers against unregulated market practices. In competition law, the Parliament has created a government watchdog, the ACCC, to police and enforce the regulation it has imposed. This is also the case in the corporate and financial sectors. While these areas now have a distinct public aspect to them, they remain predominantly areas of law concerned with the relationships between individuals.

In an earlier post, one of my colleagues Dr John Gava asked whether the distinction between public and private law served any purpose. I think it remains an important distinction, useful because it emphasises the different nature of power that is involved and therefore the interests of the community in its proper exercise and bringing it to account. While, for example, contract law may from time to time be the subject of government intervention to change the rules, it is not the subject of ongoing government oversight and therefore responsibility. Its enforcement remains a question between individuals. In contrast, the enforcement and compliance with public law is a question that concerns the whole community.

I am a PhD candidate at the Adelaide Law School and was one of two winners of a 2012 Fulbright South Australia Scholarship.  My PhD research examines the rights of the States of Australia to water from rivers that flow through more than one State.  I am currently spending 10 months in the United States for the purpose of investigating how interstate water disputes have been resolved in the United States, and considering whether these approaches can be applied in Australia.  In particular, I am interested in the role that the United States Supreme Court has played in settling interstate water disputes.

 Intrastate water regulation in the United States  

One of the interesting features of the development of water law in the United States is that the States in the western region of the US have taken a very different approach to intrastate water allocation compared to the eastern States.  Broadly speaking, the courts in the States in the east adopted an approach that attempted to preserve the natural flow of the river, because when the relevant laws were developed (in the nineteenth century) the flow of the water was used to operate mills on the banks of rivers and streams. 

In the drier western States water use was driven largely by mining and irrigation – uses that required water to be diverted from the river, thereby depleting its flow.  Consequently, in the west, rights to water were generally granted on a first-in-time basis, irrespective of how that water use might disturb the natural flow of the river for subsequent downstream users (so long as the water was being put to use and not wasted). Courts in the west expressly acknowledged the need for water users to be allowed to divert water with the confidence that subsequent users downstream would not be able to challenge their claim. The basis for the development of the common law in this way was that the different environmental conditions and water uses in the west dictated a different approach.

Interstate water conflicts in the United States

The fact that different approaches to intrastate water allocation were adopted only further complicated how water from interstate rivers, such as the Colorado River and Arkansas River, was to be shared between States. While many interstate water disputes have been solved by the States entering into a compact (or what we might refer to in Australia as an ‘intergovernmental agreement’), some disputes have not been able to be resolved in this way and have been litigated by States in the United States Supreme Court. The first interstate river dispute – Kansas v Colorado – was first heard by the Supreme Court in 1902 and since that case the Court has heard a number of interstate river disputes.

The United States Constitution does not deal expressly with interstate water rights; however, the Supreme Court has held that there is an ‘equality of right’ between States and, despite the fact that there is no uniform common law across the United States, the Court has held that there must be an ‘interstate common law’ – sometimes referred to as ‘federal common law’ – applicable to interstate river cases.  In a series of cases during the twentieth century the Supreme Court developed the ‘equitable apportionment doctrine’ for allocating water from interstate rivers. The Court has explained that the common law doctrine of equitable apportionment doctrine must remain flexible to take into account the unique characteristics of each interstate dispute.  However, the key factors have been identified as (see, for example, Nebraska v Wyoming (1945) 325 US 589, 618):

• Physical and climatic conditions;
• The consumptive use of water in the sections of the river;
• The character and rate of return flows;
• The extent of established uses;
• The availability of storage water;
• The practical effect of wasteful uses on downstream areas; and
• The damage to upstream areas as compared to the benefits to downstream areas of a limitation is imposed on the former.

The last of these factors requires the Court to engage (at least in part) in a cost-benefit analysis in determining whether the upstream State is permitted to withhold a greater amount of water.

Unsurprisingly, the evidence in an interstate water dispute can be lengthy and complex.  Consequently, the US Supreme Court does not hear the evidence, but instead appoints a Special Master to hear the case and make findings and a final recommendation. The hearings can involve hundreds of documents and thousands of pages of testimony from experts.  For example, in Arizona v California – a dispute between a number of the western States over the Colorado River – the trial before the Master lasted for just over two years, the evidence of 340 witnesses was put before the Master, thousands of exhibits were tendered, and the transcript of the proceedings was over 25,000 pages.  With such a large volume of evidence it is unsurprising that the report of the Master was over 400 pages.

Sharing water from interstate rivers in Australia

From an Australian perspective, the interesting question is whether the High Court of Australia could adopt a similar approach in resolving and future disputes over the waters of the River Murray by developing or modifying the common law. Could the High Court find similar principles of ‘equality between States’ in the Australian Constitution that might support the modification of the common law? If such a principle can’t be found within the text or structure of the Constitution, could the common law in Australia still be developed in such a way as to create an interstate water right?

The creation of an interstate water right at common law in Australia would, in effect, place a limitation on the legislative power of the States in circumstances where such a limit is not provided for in the Constitution. This raises interesting questions about the extent to which the Constitution may influence the development of the common law and the development of the common law in a way which is consistent with the Constitution.

Whether the High Court is required to consider these questions is now largely dependent on the acceptance by the States (and other interested parties) of the Murray-Darling Basin Plan.  These issues could only come before the High Court if the validity of the plan is challenged.   However, as the United States Supreme Court has noted in the dealing with interstate river disputes in that country, litigation should only be seen as a last resort and resolution of these matters by compact (or intergovernmental agreement) is preferable. Perhaps this is the first lesson that Australian States can learn from the United States interstate water disputes.

Thanks to the 1999 thriller starring Ashley Judd and Tommy Lee Jones, many Australians are familiar with the legal principle of ‘double jeopardy’, and hopefully are also aware that the principle was wildly misrepresented in that movie.[1]

It is less well known that double jeopardy is just one part of the broader ‘principle of finality’, which not only stops a person acquitted of a crime from being tried again for the same crime, but also limits the appeal rights of people convicted of criminal offences.

South Australia has just expanded the rights of any person to appeal their conviction and sentence. While this is a great advance for individual defendants, the Parliament took a narrow approach to the problem of wrongful convictions and failed to consider systematic changes to the conduct of criminal trials.

The finality principle is well founded. When a defendant is found not guilty they should not have to constantly watch over their shoulder wondering whether they will be prosecuted again. Similarly, victims of crime and those close to them should not have to live in fear of traumatic crimes being re-lived through baseless appeals.

However, closing the door on criminal matters prevents the court from intervening where new evidence suggests that mistakes were made in the past. This has become a significant issue in recent years where scientific developments, particularly the ability to re-test DNA, have created doubt about original decisions that cannot be reconsidered either for or against a criminal defendant.

The advances in forensic science raised the question: if a defendant is found not guilty but evidence re-analysed years later implicates them in a rape or murder, shouldn’t they be tried again?

South Australia responded to this question in 2008 by limiting the application of double jeopardy so that a person can be re-tried where ‘fresh’ and ‘compelling’ evidence of certain serious crimes comes to light.[2]

However, until now the finality principle had not been modified to benefit defendants who are wrongly convicted. As is still the case throughout the rest of Australia, defendants were entitled to a fair trial and then only one appeal.

Once the right to appeal was exhausted, a person could petition for mercy to the state Governor, who routinely refers it to the Attorney General. As the petitions were not heard in an open court, and legal advice given in relation to them was not available through freedom of information applications,[3] there was a lack of transparency regarding their consideration and a general perception that political rather than legal factors determined whether they were successful. In the rare case of a successful petition, the person is only pardoned and their conviction stands.

There is also a constitutional right of appeal to the High Court,[4] but special leave needs to be granted and the established practice is that the High Court cannot receive evidence on appeal from a state court exercising state jurisdiction.[5]

The question then has arisen that if ‘fresh’ and ‘compelling’ evidence can justify the re-trial of an acquitted person, should it not justify another appeal for a convicted person?

In an Australian first, on 19 March 2013 the South Australian Parliament passed the Statutes Amendment (Appeals) Bill 2012 to enact Part 11 of the Criminal Law Consolidation Act 1935 (SA) that will allow second and further appeals against conviction and sentence.

The Bill reflects the language of the provisions limiting double jeopardy, but goes beyond bringing parity to the state and defendants, and gives greater latitude to convicted people than it does to police or prosecutors.

The Director of Public Prosecutions can only re-try a serious offence, such as murder or ‘aggravated’ rape. However, a person convicted of any offence, no matter how minor and in which court, can now apply for second and further appeals.

The Bill has addressed concerns that prisoners will waste court resources by lodging appeals without any merit by requiring that an appellant must satisfy two judges of the Supreme Court not only that there is ‘fresh’ and ‘compelling’ evidence, but that the appeal should be heard ‘in the interests of justice’ if there has been a ‘substantial miscarriage of justice’.

If the Supreme Court is satisfied that an error was made in the initial trial and appeal, it can quash the conviction and direct a verdict of not guilty, or order a new trial.

The standard required for an appeal to be allowed is not so low that it will open the floodgates for disgruntled prisoners to pursue frivolous appeals, but is not so high that the right will be impossible to exercise. It is a welcome advance for defendants’ rights that is also sensitive to the interests of the broader community.

However, the Parliament was invited by the Legislative Review Committee to consider measures to try and avoid wrongful convictions and deliver a fairer trial process for all defendants. This challenge was declined in favour of the limited approach of simply correcting mistakes as they occur, on the basis that ‘South Australia is not Texas. This State is not awash with wrongful convictions and the falsely imprisoned.’[6]

Scientific and expert evidence has become a critical and confusing area. It is highly persuasive to judges and juries and yet very difficult for them to understand, especially when presented and challenged on a partisan basis under the adversarial system.

A number of options were put to Parliament to demystify scientific evidence for courts. This included encouraging the prosecution and the defence to agree on certain evidence before trial and present it to the court on a bipartisan basis, and allowing judges and juries to question expert witnesses as necessary.[7]

Unfortunately, the Parliament opted not to take a systematic review of the pre-trial and trial procedures related to the presentation of specialised evidence. Even more unfortunately it did not offer an indication that such a review was likely any time in the future.

Rather Parliament seems to have decided that rather than take innovative steps to optimise fairness at trial, it will introduce the minimal steps necessary to rectify unfairness at trial and be satisfied with the very modest standard of fairness of ‘higher than in Texas’.

Kellie Toole is an Associate Lecturer at the Adelaide Law School. In 2006 she spent 4 months volunteering at the Gulf Region Advocacy Center (GRACE) in Houston Texas working with poor people facing the death penalty.

In late February, the Senate Legal and Constitutional Affairs Committee recommended that the Senate pass the Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Bill 2012 (UMA Bill). The Bill restricts the legal entitlement to apply for a protection visa of asylum seekers arriving by boat on the Australian mainland, thus putting these asylum seekers in the same position as asylum seekers arriving on excised off-shore places such as Christmas Island.  The Committee made its recommendation despite outlining the many objections to the Bill that had been canvassed with the committee in submissions and evidence. The objections included that the Bill breached many international treaty obligations, unfairly discriminated between asylum seekers based on their mode of arrival in Australia, placed an unsustainable burden on regional processing countries, unduly restricted access to the courts to asylum seekers.

The committee outlined these objections, but did not respond to them. It justified its support for the Bill on the basis that ‘any loss of life at sea by persons seeking asylum is simply not acceptable’. The rationale of saving lives at sea was accepted on its face, and the capacity of the Bill to contribute to the rationale was not questioned, despite submissions raising doubts on this point as well.

The rationale for the Bill to prevent loss of life is a key objective underpinning the recommendations of the Expert Panel on Asylum Seekers. The passing of the UMA Bill illustrates just how firmly entrenched the Expert Panel’s report is as the foundation for policy making on asylum seekers. The government used the report to break the deadlock between the government and the opposition on asylum seeker policy in August last year. It accepted all of the Expert Panel’s 22 recommendations and these recommendations have taken on an untouchable status.

Given the influence of the Expert Panel Report on subsequent policy making in this area, there needs to be greater scrutiny of the Expert Panel’s report, and the process of its creation. The three member Panel was commissioned in late June 2012 and was required to report to the Prime Minister before Parliament sat in August 2012, giving it 6 weeks to compile and table its report. In that time it consulted with 136 individuals, and received over 50 submissions from groups and organisations, and nearly 300 submissions from individuals. The task for the 3 member panel of reading, let alone properly considering these submissions, was monumental. It did not release a draft report for further public consideration.

To put the Expert Panel’s inquiry and report into some perspective, the government commissioned an inquiry into funding of schooling in July 2010. The 6 member panel chaired by David Gonski released an emerging issues paper early in the review process and received 1290 submissions in response to this paper. In August 2011, it released a Review of Funding for Schooling: Paper on Commissioned Research, which accompanied the public release of four research reports that it had commissioned on the issues for inquiry, and invited a final round of public submissions on this review of the research. The Panel presented its final report to the Minister, Review of Funding for Schooling: Final Report in December 2011. Although the Government has committed to implementing much of the Gonski report, it has already indicated that it does not accept all the recommendations. The report forms the basis for policy deliberation, but not a blueprint for policy formation.The role of the Gonski report is much more typical of the process by which government commissioned reports feed into the policy and law making process.

There is a clear contrast between the role of government reports on such areas as education and tax reform and the role of report of the Expert Panel on Asylum Seekers. The dogmatic adherence to the report of the expert panel by government and Parliament has replaced on-going policy deliberation in a highly complex area of policy. In relation to the UMA Bill, it relieved the Legal and Constitutional Affairs committee of drawing its own reasoned conclusions on the merits of proposed legislation.  Since the Expert Panel released its report, further developments on the ground have occurred that require a reconsideration of its recommendations, including:

• that boat arrivals have not slowed since regional processing commenced on Nauru and Manus Island, meaning that the government has only had the capacity to send approximately 1 in 18 boat arrivals for regional processing, the rest being detained on the mainland or released into the Australian community raising new policy considerations not canvassed by the expert panel;
• that conditions of detention on Nauru have been reported to be inhumane, and there have been consistent reports of detainees self-harming.

In the policy cycle, government commissioned reports should offer assistance to government in making policy. They should not replace independent government deliberation, or independent parliamentary scrutiny.

Alexander Reilly is an Associate Professor at the Adelaide Law School.