Reasons, Reading and Writing

In Della Bruna v Health Care Complaints Commission [2025] NSWCA 105 Bell CJ and Jirk JA state 

[1] The appellant, Dr Albina Della Bruna (the appellant), prescribed and dispensed human growth hormone (HGH) to ten patients in the period June 2017 to November 2019, doing so “off-label” for reasons said to be connected to fatigue and ageing. The Health Care Complaints Commission (the Commission) brought a complaint in the Occupational Division of the NSW Civil & Administrative Tribunal alleging that this conduct, together with inadequate record keeping, constituted unsatisfactory professional conduct and professional misconduct for the purposes of the Health Practitioner Regulation National Law (NSW) 2009 (the Law). A majority of the Tribunal, writing jointly, concluded that the appellant had engaged in such professional misconduct. The majority was comprised of the two senior members of the Tribunal, who are doctors, along with a general member (the Majority). The presiding principal member of the Tribunal, Ian Coleman SC ADCJ, dissented, and would have found the appellant guilty of unsatisfactory professional conduct only. The remedial “stage 2” hearing is yet to take place. 

[2] The appellant has appealed. She has a right to do so on questions of law and may seek leave to do so on any other grounds: Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act), Sch 5, cl 29(4)(b). 

[3] Her amended notice of appeal raised many grounds, but as oral argument was developed particular attention was directed to the following issues: whether the Majority denied the appellant procedural fairness in finding that her objectivity was compromised as a result of financial pressure to turn over her stock of HGH (ground 5(a)); whether the Majority erred in rejecting the appellant’s oral evidence regarding her prescribing to and management of patients, and thereby reversed the onus of proof, constructively failed to exercise jurisdiction, denied procedural fairness and gave inadequate reasons (grounds 2, 4, 5(b) and 6, noting those grounds also raised other issues); whether the Majority erred in fact in finding that the appellant did not seek blood tests to measure the IGF-1 levels in any patients to whom she prescribed HGH (ground 7, noting leave to appeal is required for this ground). 

[4] Success on any one of these issues would be sufficient to uphold the appeal. In our view the appellant should succeed on all three. It is unnecessary to address the remainder of the issues and grounds raised. The matter should be remitted to a differently constituted Tribunal. 

[5] One further significant point should also be noted at the outset. Although many grounds of appeal were raised, there was no ground relating to how both the Majority and the presiding member of the Tribunal directed themselves as to the meaning of professional misconduct. Given the importance of the topic, the Tribunal’s approach should not be left unremarked. The Majority (at [356]) followed the presiding member (at [263]) in considering that this issue turned on a standard articulated by Kirby P in Pillai v Messiter (No 2) (1989) 16 NSWLR 197 at 200. Yet Kirby P’s discussion related to a past statutory scheme involving a different criterion. Under the Law the notion of “professional misconduct” is defined in s 139E. It means, in short, unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner’s registration (which can be established by the cumulative effect of more than one instance of unsatisfactory professional conduct). The notion of “unsatisfactory professional conduct” is itself defined in s 139B of the Law in relation to registered health practitioners generally, as added to by s 139C with respect to medical practitioners. I: ... 

 Reviewing reasons 

[9] When hearing complaints against medical practitioners the Tribunal is required to be constituted by a member of the Occupational Division of the Tribunal who is a senior judicial officer (as defined in s 165), two health practitioners selected for appointment by the relevant Council who are registered in the same health profession as the practitioner in question, and one lay person: Law, s 165B(2); CAT Act, Sch 5, cll 12-13. If the members are evenly divided on a decision (other than a decision of law) then the opinion of the presiding, legal member prevails: CAT Act, s 57(3)(a). Otherwise, for such non-legal decisions, the opinion of the majority prevails: CAT Act, s 57(1). For the Tribunal to be divided in opinion, and for the presiding judicial member to be in dissent, is relatively unusual in disciplinary matters. However, it is appropriate and important that all members diligently come to their own views. 

[10] It is also appropriate that when a court comes to review reasons given by members of the Tribunal who are not lawyers, that characteristic is borne in mind. In its submissions the Commission quoted a statement that a specialist tribunal “consisting of persons inexperienced in the formulation and use of legal language ought not be expected to craft reasons for judgment in the style of ‘a Brennan’ or display the verve and reasoning power of ‘a Denning’”: Seablest Pty Ltd v Smith (1996) 91 LGERA 1 at 4. So much may be accepted. Compressed reasoning, unusual structuring, infelicities of language, inaccurate use of legal phrases, or such like may simply reflect the nature, training and experience of the author. 

[11] Nevertheless, medical and lay members of the Tribunal are still required to give legally adequate reasons. Section 165M of the Law requires the Tribunal to “give a written statement of the decision”, which statement must set out any findings on material questions of fact, refer to any evidence or other material on which the findings were based, and give the reasons for the decision. Failure to give adequate reasons may suffice to uphold an appeal in such matters: eg Ghosh v Health Care Complaints Commission (2020) 104 NSWLR 107; [2020] NSWCA 353 at [128]-[151]. The reasons must be sufficient to enable a court to see whether the opinion does or does not involve any error of law: note analogously Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [54]; New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231 at [71]-[73]. Given the serious nature of the issues and the potential consequences, there may be little difference in substance from the duty of a court to give reasons: Gautam v Health Care Complaints Commission [2021] NSWCA 85 at [55]. 

[12] The Commission sought to emphasise the oft-cited approval by a plurality of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 of statements by the Full Court of the Federal Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287 and McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609 at 616. The plurality in the High Court said (at 272, citations omitted):

it was said [in Pozzolanic] that a court should not be “concerned with looseness in the language … nor with unhappy phrasing” of the reasons of an administrative decision-maker. The Court continued: “The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.” 

These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed [citing McAuliffe].

[13] Justice Kirby made similar points in Liang at 291, also citing Pozzolanic. As his Honour said there: “The reasons under challenge must be read as a whole. They must be considered fairly”. The plurality’s judgment in Liang is consistent with taking that approach (see eg at 280). 

[14] In Pozzolanic the statement (at 287) about avoiding an “eye keenly attuned to the perception of error” was itself supported by a reference to an earlier judgment of Lockhart J in Politis v Commissioner of Taxation (Cth) (1988) 16 ALD 707 at 708. It is worth noting what his Honour then went on to say in that case after having deployed that phrase (ibid):

the court should approach its task sensibly and in a balanced way, not reading passages from the reasons for decision in isolation from others to which they may be related or taking particular passages out of the context of the reasons as a whole.

[15] Consistently with approaching the task in a sensible and balanced way, a beneficial approach to reasons does not demand that any ambiguity be resolved in favour of the decision-maker: see SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9 at [26] (Stone J); approved eg Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Abigroup Contractors Pty Ltd [2013] FCAFC 148 at [190]; Allianz Australia Insurance Ltd v Rutland [2015] NSWCA 328; (2015) 73 MVR 211 at [26]; Minister for Home Affairs v Ogawa (2019) 269 FCR 536; [2019] FCAFC 98 at [116]. 

[16] The Court’s review of the reasons of a decision-maker should not proceed in a manner inclined to finding error. But that does not mean the Court must strive to read the reasons in such a way as to avoid the conclusion of error. For example, it is not for the Court to fill gaps in reasons by speculating about what further unarticulated considerations, if any, lie behind what the decision-maker said. The Court’s duty is to read the reasons fairly and as a whole, making do allowance (where relevant) for the fact that the authors are not lawyers accustomed to writing in a legal manner.

In Seablest Pty Ltd T/A Salamanca Executive Suites v v R and J J Smith, G L and W Lowman, R and J Upcher, B Ambrose, G and M Casimaty and Hobart City Council [1996] TASSC 39 Slicer J stated 

[10]. A specialist Tribunal consisting of persons inexperienced in the formulation and use of legal language ought not be expected to craft reasons for judgment in the style of "a Brennan" or display the verve and reasoning power of "a Denning". It is inappropriate to examine the published reasons in order to expose an unskilled formulation or to undertake an over zealous exercise in reviewing the language used (Branson v Repatriation Commission [1991] FCA 459; (1991) 23 ALD 600). The question is whether the Tribunal discloses its reasoning process which led it to its conclusion (Ansett Transport Industries (Operations) Pty Ltd v Wraith [1983] FCA 179; (1983) 48 ALR 500) and in the words of Underwood J in Burgess v Umina Park Home for the Aged (1993) 2 Tas R 246 at 262, the test requires that the reasons: "... must be sufficient to enable the parties to ascertain what facts were found, which of the arguments ... were accepted and which were rejected and what law was applied to arrive at the ultimate determination."

No, Just No

In Dayal [2024] FedCFamC2F 1166 Humphreys J considered an solicitor who used AI in generating a list and summary of authorities that, oops but unsurprising given AI hallucinations, were later  acknowledged by the solicitor not to exist. The accuracy of the document was not verified by the solicitor. 

 The judgment states 

This matter relates to my decision to refer the conduct of a solicitor to the Office of the Victorian Legal Services Board and Commissioner. The solicitor in question tendered to the court a list and summary of legal authorities that do not exist. The solicitor has informed the court the list and summary were prepared using an artificial intelligence (“AI”) tool incorporated in the legal practice management software he subscribes to. The solicitor acknowledges he did not verify the accuracy of the information generated by the research tool before submitting it to the court. 

The solicitor concerned is Mr Dayal, a Victorian solicitor and principal of the firm C Law Firm. I will refer to him as “the solicitor” and his name and the name of his firm will be anonymised when my reasons are published, noting the purpose of my decision is not punitive. 

For the background to the matter, I refer to my earlier ex tempore reasons delivered on 19 July 2024 in the enforcement proceeding in which the solicitor appeared as agent for another firm of solicitors.  Those reasons explain the circumstances in which the list and summary of authorities was tendered by the solicitor, how the content of the list and summary of authorities was identified to be inaccurate and the solicitor’s acknowledgement that the list and summary of authorities was prepared with the assistance of AI.... 

In his written submissions the solicitor acknowledged: (a) Handing up to the court on 19 July 2024 a document that purported to contain summaries of relevant authorities and included what looked like medium neutral citations identifying those decisions; (b) Using legal software, and in particular an AI driven research tool module, to generate the list of authorities and summaries; (c) Neither he nor another legal practitioner had reviewed the output generated by the research tool to ensure the accuracy of the list of authorities and case summaries; and (d) The authorities identified in the list and summary tendered to the court do not exist. 

The solicitor has offered an unconditional apology to the court for tendering the inaccurate list and summary of authorities. He has provided an assurance that he will “take the lessons learned to heart and will not commit any such further breach of professional standards in the future.” He asks that I not make a referral to the Victorian Legal Services Board. 

The submissions made by the solicitor include that he did not intentionally mislead the court. In support of that submission, the solicitor provided information as to the circumstances which lead to him relying on the AI tool within the practice management software he uses and how he generated the list of authorities and case summaries. He explained that he did not fully understand how the research tool worked. He acknowledged the need to verify AI assisted research, or indeed any source of legal research relied upon, for accuracy and integrity. 

The solicitor outlined the steps he has taken to address and mitigate the impact of his conduct, including voluntarily making a payment to the solicitors for the other party in the enforcement proceeding, in settlement of costs thrown away for the hearing on 19 July 2024. He says he has informed the Legal Practitioners Liability Committee (“LPLC”) of what occurred and that the LPLC is providing him with ongoing professional support. The solicitor has also provided submissions in relation to his personal and professional circumstances and the stress and cost caused to him as a result of his conduct on 19 July 2024. He offered to provide an affidavit to verify the information provided in his submissions. 

Use of AI in litigation 

The use of technology is an integral part of efficient modern legal practice. At the frontier of technological advances in legal practice and the conduct of litigation is the use of AI. Whilst the use of AI tools offer opportunities for legal practitioners, it also comes with significant risks. 

Relevantly to this case, the USA District Court case of Mata v Avianca Inc drew worldwide attention to the risk of relying on generative AI for research purposes in litigation without independent verification. In that case, attorneys of a firm who relied on generative AI to prepare legal submissions which were filed referring to non-existent cases, and initially stood by the submissions when called into question by the court, were found to have abandoned their professional responsibilities and sanctioned. The USA District Court outlined the potential harms flowing from the filing of bogus submissions in its judgment as follows:  

Many harms flow from the submission of fake opinions. The opposing party wastes time and money in exposing the deception. The Court’s time is taken from other important endeavors. The client may be deprived of arguments based on authentic judicial precedents. There is potential harm to the reputation of judges and courts whose names are falsely invoked as authors of the bogus opinions and to the reputation of a party attributed with fictional conduct. It promotes cynicism about the legal profession and the American judicial system. And a future litigant may be tempted to defy a judicial ruling by disingenuously claiming doubt about its authenticity.

The potential harms identified by the USA District Court apply to the reliance on non-existent authorities in this court. 

Whilst this court has not yet done so, a number of courts in Australia and overseas have formulated guidelines for the responsible use of generative AI by litigants and lawyers, to assist those conducting litigation before them. 

Guidelines issued by each of the Supreme Cout of Victoria and County Court of Victoria for example,emphasise: (a) Parties and practitioners who are using AI tools in the course of litigation should ensure they have an understanding of the manner in which those tools work, as well as their limitations; (b) The use of AI programs must not indirectly mislead another participant in the litigation process (including the court) as to the nature of any work undertaken or the content produced by that program. Ordinarily parties and their practitioners should disclose to each other the assistance provided by AI programs to the legal task undertaken;  and (c) The use of AI to assist in the completion of legal tasks must be subject to the obligations of legal practitioners in the conduct of litigation, including the obligation of candour to the court. 

Importantly in the context of this matter, the guidelines issued by the Supreme Court and County Court of Victoria explain that generative AI and large language models create output that is not the product of reasoning and nor are they a legal research tool. Generative AI does not relieve the responsible legal practitioner of the need to exercise judgment and professional skill in reviewing the final product to be provided to the court. 

Duties of legal practitioners 

Whilst not issued by this court or applying directly to practitioners conducting litigation in this court, I mention these particular guidelines because they reflect the responsible use of AI by practitioners in litigation by reference to the duties of legal practitioners generally, including the duty not to mislead the court or another participant in the litigation process and the duty of candour to the court. In that sense, the guidance provided by these particular guidelines is applicable to practitioners conducting litigation in this court. 

Relevantly to the conduct of the solicitor before me, the duties of Victorian solicitors include: (a) The paramount duty to the court and to the administration of justice,  which includes a specific duty not to deceive or knowingly or recklessly mislead the court; (b) Other fundamental ethical duties, including to deliver legal services competently and diligently;  and (c) To not engage in conduct which is likely to diminish public confidence in the administration of justice or bring the legal profession into disrepute. 

The solicitor has acknowledged a breach of the professional standards expected of a solicitor in this court, by his conduct in tendering a list and summary of authorities that do not exist, generated without disclosing the source of the information presented to the court and without verifying its accuracy.

Humpreys J stated that 'it is in the public interest for the Victorian Legal Services Board and Commissioner to be aware of the professional conduct issues arising in this matter, given the increasing use of AI tools by legal practitioners in litigation more generally'.

In the earlier judgment - Handa & Mallick [2024] FedCFamC2F 957 - Humphreys J stated 

 The matter was stood down this morning for the purposes of the parties’ legal representatives discussing the issues identified earlier this morning in relation to the enforcement application and to see if there was any prospect of a negotiated resolution. I asked if either party’s representative was in a position to provide me with any authorities that they sought to rely upon, for me to read while the matter was stood down. 

Mr B tendered a single-page list of authorities. Upon returning to chambers neither I nor my associates were able to locate the cases identified in that list. The case citations provided for each of the four listed cases correspond with cases reported by names. My associates asked Mr B to provide copies of the authorities referred to in the list, and he did not do so. 

When the matter returned to court, I asked Mr B if the list of authorities had been provided using artificial intelligence. He informed me the list had been prepared from LEAP, being a legal software package, as I understand it, used for legal practice management and other purposes. I asked if LEAP relies on artificial intelligence. He indicated that it does, answering “there is an artificial intelligence for LEAP.” I foreshadowed making procedural orders later in the day, requiring Mr B to provide an explanation as to what had occurred. Mr B clarified this afternoon that he prepared the list of authorities and not Ms Aus Lawyers. 

I informed the parties and their legal representatives this morning that as a concern had arisen in relation to the veracity of information provided in the list of authorities, a concern had in turn been raised in relation to the competency and ethics of Mr B. In light of what transpired, I asked that the husband be assisted to seek advice from a duty lawyer in relation to Mr B continuing to assist him today. The husband has been present in court throughout these discussions. He informed the court via Mr B and also directly in court after seeing the duty lawyer that he is comfortable for Mr B to continue assisting him today. 

Unfortunately, the parties have been unable to reach an agreement in relation to the enforcement application. That may be because other matters have arisen during the course of the day taking their attention and time away from their negotiations. I encourage them to continue those negotiations over the coming days, pending the adjourned hearing next Wednesday. 

I have foreshadowed with Mr B and counsel for the wife, making an order providing Mr B an opportunity to respond to the court's proposal to refer his conduct in tendering the apparently inaccurate list of authorities today, to the Legal Services Board and Commissioner for investigation. Beyond that, I will not be making an assessment or a determination in relation to that conduct. That will be a matter for the legal professional body if a referral is made. The purpose of the order I make is for Mr B to be afforded procedural fairness in relation to my proposal to make that referral. I will provide him with one month to do that. Mr B has been informed of the orders I intend to make this afternoon and has not wished to make submissions against that course. 

Counsel for the wife has foreshadowed making an application for costs in relation to the adjournment of today's hearing. He anticipates doing so at the conclusion of the enforcement hearing rather than separately today. I have indicated to the parties and to their legal representatives today, that if any application is made for costs to be paid personally by Mr B (as agent appearing today for the husband), he is to be put on notice of that application and have an opportunity to respond by way of procedural fairness. I will ensure that any further orders made in relation to the foreshadowed cost application provide for that to occur.

Emergencies, labels and restraint

Heydon J in Pape v Commissioner of Taxation [2009] HCA 23 at [551] quipped: 

 The truth is that the modern world is in part created by the way language is used. Modern linguistic usage suggests that the present age is one of “emergencies”, “crises”, “dangers” and “intense difficulties”, of “scourges” and other problems. They relate to things as diverse as terrorism, water shortages, drug abuse, child abuse, poverty, pandemics, obesity, and global warming, as well as global financial affairs. In relation to them, the public is endlessly told, “wars” must be waged, “campaigns” conducted, “strategies” devised and “battles” fought. Often these problems are said to arise suddenly and unexpectedly. Sections of the public constantly demand urgent action to meet particular problems. The public is continually told that it is facing “decisive” junctures, “crucial” turning points and “critical” decisions. Even if only a very narrow power to deal with an emergency on the scale of the global financial crisis were recognised, it would not take long before constitutional lawyers and politicians between them managed to convert that power into something capable of almost daily use. The great maxim of governments seeking to widen their constitutional powers would be: “Never allow a crisis to go to waste.”

Weeds

In Redland City Council v Kozik [2024] HCA 7 Gageler CJ and Jagot J. state   

 1 In the Preface to the second edition of Mason and Carter's Restitution Law in Australia, the authors referred metaphorically to the "restitution common of the law" being "tended by judges". They encouraged preparedness on the part of judges to "tear out weeds, however ancient". In the factual circumstances giving rise to the present case, Redland City Council ("the Council") tore out actual weeds from part of the actual common – in the form of waterways – within its local government area. The Council also dredged and removed silt, rubbish, and debris from the waterways, repaired revetment walls protecting the banks of the waterways from erosion and preventing subsidence, and improved the quality of the water in the waterways ("the works"). 

2 The Council was required to undertake the works in the discharge of its statutory functions as a local government authority under the Local Government Act 2009 (Qld) ("the Local Government Act") and the Coastal Protection and Management Act 1995 (Qld) ("the Coastal Protection and Management Act"). The Council also had a statutory entitlement to fund the works by levying "special charges" under the Local Government Act on land in its local government area which specially benefited from the works. 

3 The Council in fact funded part of the overall cost of the works by purporting to levy special charges on land which adjoined the land on and waters in which the works were carried out. The Council funded the balance of the costs of the works from its general revenue. 

4 After the Council had completed the works, it discovered that it had failed to comply with a condition of the prescribed process for the levying of special charges under the Local Government Act, as a consequence of which its levying of the special charges was invalid. The Council refunded to landowners so much of the total amount invalidly levied on and paid by them as remained unspent, but it refused to refund so much as it had spent on the works. 

5 Representatives of a group of landowners who had paid the invalidly levied special charges ("the Landowners") brought a proceeding in the Supreme Court of Queensland against the Council for recovery of the unrefunded portion of the amount of the special charges each had paid. Their claim was put on alternative bases. First, it was put as a claim to a statutory debt due by way of refund under regulations made under the Local Government Act providing for the return of "special rates or charges incorrectly levied". Second, it was put as a common law claim in restitution for moneys paid under a mistake of law. 

6 By way of defence (and counterclaim for a negative declaration), the Council pleaded that the claim was defeated by each Landowner having received a "direct and comparable benefit" from the Council in connection with the payment of the special charges because of the Council undertaking the works. 

7 The parties agreed on stating common questions for determination in the proceeding. The primary judge (Bradley J) made orders which answered each of those questions. The effect of the primary judge's answers was that the Landowners succeeded in their claim to a statutory debt but failed in their claim in restitution at common law. 

8 On appeal and cross appeal, the Court of Appeal of the Supreme Court of Queensland (McMurdo JA and Bodice J, Callaghan J dissenting in part) substituted different answers. The effect of the answers as substituted was that the Landowners failed in their claim to a statutory debt but succeeded in their claim in restitution at common law. 

9 In answering the common questions, the primary judge made three important findings. These findings were not disturbed on appeal to the Court of Appeal and were not sought to be disturbed in this Court. The first finding was that each Landowner paid the special charges in the mistaken belief that the Landowner had a legal obligation to do so. The second finding was that the land of each Landowner specially benefited from the undertaking of the works. One benefit was both quantifiable and quantified: an increase in the value of the land (or a prevented diminution of value) of at least one to two per cent, an amount which greatly exceeded the amount mistakenly paid by the Landowner as special charges. Another benefit was unquantified even if quantifiable: an increase in visual amenity. The third important finding was that the special benefit to each Landowner resulting from the works was sufficient to render each Landowner's land "susceptible" to the levy of special charges under the Local Government Act. 

10 The Council appeals by special leave from so much of the orders of the Court of Appeal as substituted answers to the effect that the Landowners succeeded in their claim in restitution at common law. For their part, the Landowners seek special leave to cross appeal from so much of those orders as substituted answers to the effect that the Landowners failed in their claim to a statutory debt. 

11 The proposed cross appeal depends on discrete issues of statutory construction which would render the appeal moot if resolved in the Landowners' favour. For that reason, it is appropriate for special leave to cross appeal to be granted and for the cross appeal to be considered in advance of the appeal. Adopting that course, we would dismiss the Landowners' cross appeal and allow the Council's appeal. 

12 We consider that the answers substituted by the Court of Appeal to the effect that the Landowners failed in their claim to a statutory debt were right. On the proper construction of the regulations made under the Local Government Act, providing for the return of special charges incorrectly levied, the Landowners are not entitled to a refund. 

13 We consider that the answers substituted by the Court of Appeal to the effect that the Landowners succeeded in their claim in restitution at common law were wrong. The Council had a statutory entitlement to fund the works by the levy of special charges payable by the Landowners. The Landowners cannot recover from the Council so much of the moneys as they paid and as the Council spent undertaking the works because, to that extent, the Council was not unjustly enriched at the expense of the Landowners. 

14 The Council's statutory entitlement to fund the works by the levy of special charges payable by the Landowners, and its levy and expenditure in good faith of the special charges on undertaking the works (that is, the Council honestly believing that it had complied with the statutory requirements enabling it to levy and spend the special charges on those works), is an answer to the Landowners' prima facie entitlement to recover moneys paid by them under an operative mistake of law. These circumstances would also answer any prima facie entitlement of the Landowners to recover under the principle formulated in Woolwich Equitable Building Society v Inland Revenue Commissioners – that "money paid by a citizen to a public authority in the form of taxes or other levies paid pursuant to an ultra vires demand by the authority is prima facie recoverable by the citizen as of right" – if that principle were to be imported into the common law of Australia. Whether the Woolwich principle should be imported into the common law of Australia is raised by the Landowners' notice of contention and was the subject of submissions by the Attorney General of the Commonwealth and the Attorney General of Queensland but, given that the circumstances described would answer any such prima facie entitlement to restitution, that question need not be determined.

Concision

In The University of Exeter v Allianz Insurance PLC [2023] EWCA Civ 1484 Coulson LJ states 

[1] The issue in this appeal is whether the loss and damage caused in 2021 by the controlled detonation of a hitherto undiscovered World War II bomb was “occasioned by war” and therefore excluded by the applicable insurance policy. “Unguided gut feeling” (as it is called in one of the authorities) may suggest that the damage caused by a controlled detonation 79 years after the bomb was dropped, and 76 years after the war ended, was not “occasioned by war”. But those same authorities make clear that the approach to legal causation is more nuanced than that, and subject to specific rules and principles. At first instance, HHJ Bird (sitting as a High Court judge in the TCC) (“the judge”) applied those principles and concluded that the, or at least a, proximate cause of the damage was the dropping of the bomb during World War II, such that the exclusion applied. The central issue on this appeal is whether he was right to do so. 

[2] I should note that, although the issue in this case is primarily one of law, leading counsel on both sides referred to the authorities in a measured and controlled way, and spared the court the incontinent citation of numerous vaguely relevant causation authorities, all too common in appeals of this type. We are very grateful to them.

ChatGPT

'Not quite eye to A.I.: student and teacher perspectives on the use of generative artificial intelligence in the writing process' by Alex Barrett and Austin Pack in (2023) 20(59) International Journal of Educational Technology in Higher Education comments 

Generative artificial intelligence (GenAI) can be used to author academic texts at a similar level to what humans are capable of, causing concern about its misuse in education. Addressing the role of GenAI in teaching and learning has become an urgent task. This study reports the results of a survey comparing educators’ (n = 68) and university students’ (n = 158) perceptions on the appropriate use of GenAI in the writing process. The survey included representations of user prompts and output from ChatGPT, a GenAI chatbot, for each of six tasks of the writing process (brainstorming, outlining, writing, revising, feedback, and evaluating). Survey respondents were asked to differentiate between various uses of GenAI for these tasks, which were divided between student and teacher use. Results indicate minor disagreement between students and teachers on acceptable use of GenAI tools in the writing process, as well as classroom and institutional-level lack of preparedness for GenAI. These results imply the need for explicit guidelines and teacher professional development on the use of GenAI in educational contexts. This study can contribute to evidence-based guidelines on the integration of GenAI in teaching and learning. 

Public interest in artificial intelligence (AI) has grown substantially as a result of recent public access to large language models (LLMs; e.g., OpenAI’s GPT-3 and 4, Google’s PaLM 1 and 2), and chatbots (e.g., OpenAI’s ChatGPT, Google’s Bard, Microsoft’s Bing) that allow users to interface with LLMs. These Generative AI (GenAI) tools afford individuals with the ability to instantly generate writing on any topic by inputting a simple prompt. The public discourse surrounding GenAI has been mostly positive, but in the education sector there is serious concern about academic integrity and plagiarism (Dehouche, 2021; Lampropoulos et al., 2023; Sullivan et al., 2023; Yeo, 2023). Some schools have responded by banning the technology outright (Yang, 2023), a move likened by some to the banning of the pocket calculator when it was perceived as a threat to math education (Urlaub & Dessein, 2022). What is clear is that this new technology possesses disruptive potential and that institutions which have relied heavily on student writing for education and assessment will need to respond accordingly. 

Although a few schools have banned ChatGPT and similar tools, many have not, displaying confidence that their institution’s academic integrity policy is robust enough to accommodate the new technology. However, current definitions of plagiarism have been described as medieval (Dehouche, 2021; Sadeghi, 2019), typically including language such as kidnapping, stealing or misappropriating the work of others (Sutherland-Smith, 2005), which now leads us to question whether a chatbot counts as one of these others. Generative AI is trained on a selection of diverse natural language data from across the Internet which allows it to string together unique combinations of words and phrases, similar to how humans learn to produce an unlimited amount of novel spoken or written text from the limited language they absorb from their environment, a tenet of generative grammar (Chomsky, 1991). The result is that there is no identifiable other whose work is being stolen by a chatbot. To complicate matters, the language of OpenAI’s Terms of Use state that it assigns users “all its right, title and interest in and to Output” from ChatGPT, including for purposes of publication (OpenAI, 2023). Any practiced educator would likely agree that submitting an essay written by ChatGPT without disclosure violates academic integrity, but students may not readily see a problem with it. 

Although GenAI has multiple applications, its use as an authoring tool in programs like ChatGPT allow for easy misuse. Students who have purposefully violated academic integrity in the past through the use of contract cheating or paper mills will likely not hesitate to use ChatGPT or other GenAI tools to do so now, but other students will need guidance on how to avoid inadvertently cheating. Student perceptions of academic dishonesty have historically been unclear or incomprehensive, and rarely align with teacher expectations (Tatum, 2022), GenAI will only serve to complicate this (Farrokhnia et al., 2023). 

Some advocate working towards a coexistence with AI in education by establishing common goals and guided exploration of the limitations of the technology (Godwin-Jones, 2022; Tseng & Warschauer, 2023). Yeo (2023) has specifically recommended the exploration of student perceptions about the ethics of using GenAI tools, and Pack and Maloney (2023a) suggested teacher and researcher use should also be investigated. 

To date no consensus has arisen regarding what constitutes appropriate use of GenAI in higher education. Therefore, with the goal of identifying some common expectations, the purpose of this study is to explore student and teacher perspectives of using GenAI for various tasks in the writing process, including brainstorming, outlining, writing, and revising done by students, and evaluation and feedback done by teachers. The research questions guiding the study are: 

1. What are undergraduate students’ and teachers’ perspectives on using GenAI in the writing process (brainstorming, outlining, writing, revising, evaluation, and feedback)? 

2. How do student and teacher perspectives on the use of GenAI in the writing process compare?

Parking and Drafting

It helps not to be prolix.

In Barrett v City of Cockburn [2023] WASC 384 the Court notes 

 The appellant seeks leave to appeal against judgments of conviction that were entered against him in the Magistrates Court in Fremantle on 24 November 2020 in relation to one charge of parking on a portion of a thoroughfare to which a no parking sign applied, contrary to cl 26(1)(e) of the City of Cockburn Parking & Parking Facilities Law 2007 (Parking Law) (Charge 1), and one charge of driving across a footpath, contrary to s 9.4(b) and s 12.24 of the City of Cockburn (Local Government Act) Local Laws 2000 (Local Laws) (Charge 2). The appellant also seeks leave to appeal against fines of $200 imposed in respect of each of those offences. Finally, the appellant applies for leave to appeal against an order made that he pay the respondent's costs fixed at $8,074. 

An appeal notice was filed in this court on 20 April 2022, almost 16 months after the judgments of conviction were entered and sentence was imposed. Accordingly, the appellant requires an extension of time within which to appeal. 

Although it is very clear that the appellant feels aggrieved, and not only because he was convicted of these offences, it is a great pity that so much time and effort has been expended on a matter that resulted in a total of $400 in fines, particularly when the appellant had the option of dealing with the matter by paying a modified penalty of $100. 

The appeal notice that was filed in this matter, together with enclosures, extends to a total of 30 pages. The purported grounds of appeal are discursive and thus the precise nature of the alleged errors and circumstances that are said to give rise to a conclusion that a miscarriage of justice was occasioned are extremely difficult to identify. It is regrettable that the appellant was also permitted to file and serve a 694-page document, euphemistically referred to as an 'Outline Synopsis' as well as a 60-page 'List of Evidence' after the appeal notice was lodged. These documents have hindered, rather than assisted, the court in resolving this matter. 

In an unsuccessful attempt to bring the appellant's complaints about the primary court's decision into focus, on 6 September 2022 a registrar of this court made orders requiring the appellant to file and serve a 10-page summary of the grounds of appeal, cross-referenced to his submissions. In response the appellant filed a four-page document entitled 'Written Submissions Introduction' and a 10-page document entitled 'Written Submissions', both of which fell well short of achieving their desired purpose. 

In addition to the above documents, and compounding the lack of focus, the appellant filed a 67-page, colour-coded document entitled 'Summary of All Evidence', together with an application in an appeal (and a supporting affidavit) in which the appellant sought an order that he be permitted to tender the material referred to in that document on the appeal. Further, in accordance with additional orders made by the registrar, the appellant filed a 19-page colour-coded document entitled 'Evidence to Written Submission', which appears to constitute an attempt to correlate the evidence referred to in the 'Summary' with the submissions made in the 'Written Submissions', as well as the 694-page synopsis. 

The appeal was listed for directions on 20 February 2023. The purpose of the directions hearing was to see whether the appellant was able to clarify his grounds of appeal, and the contentions made in support of those grounds. It was pointed out to the appellant that because of the sheer volume of material that he sought to rely on there was a risk that the points that he wished to make on the appeal might not be properly identified. 

Following the directions hearing, my associate provided the parties with a document setting out, in summary form, the grounds of appeal that the court understood the appellant wished to argue. The content of that document was based on what had been discussed with the appellant at the directions hearing. After considering the document the appellant then made some amendments, added some comments, returned it to the court and provided a copy to the respondent. The court has proceeded on the basis that this document, a copy of which appears as Annexure 1 to these reasons, sets out all the grounds of appeal that the appellant wishes to rely on (Grounds of Appeal). 

Further orders were also made at the directions hearing on 20 February 2023. Those orders were made because the grounds of appeal complained, in effect, that a miscarriage of justice was occasioned because the appellant was prohibited from being able to use a computer during his trial and because certain documents that were the subject of a summons to produce were not produced at his trial. The orders required the appellant to provide lists of the documents the appellant contended were on his computer to which he was denied access, and the documents he contended had not been provided under summons. The appellant complied with those orders and provided two lists of documents. In keeping with the history of this matter, the documents were provided three weeks after the ordered date, and one of those documents was 26 pages long. 

I have not set out the unfortunate history of this matter simply to criticise an unrepresented appellant. However, and with the benefit of hindsight, the court should not have indulged the appellant. The appellant's approach to this matter has severely hampered my ability to confidently and efficiently identify the key points the appellant wishes to make. ... 

Considering all the matters to which I have referred, and with some misgivings because of the lengthy delay, I have reached the view that it is in the interests of justice to grant the appellant an extension of time within which to appeal against the costs order that was made by the magistrate. Accordingly, I would grant an extension of time within which to appeal against the costs order. I would also grant leave to appeal against that order, allow the appeal against the costs order, set aside the order that the appellant pay the respondent's costs and, adopting a broad-brush approach, order that the appellant pay the respondent's costs in the sum of $6,000.

Recusal

Neilson DCJ in Andrew Learmont v SAS Trustee Corporation [2020] NSWDC 595 states 

[1] This is an application that I "recuse" myself. The use of such terminology is deplorable. The Latin root is the verb, recuso, recusare, recusavi, recusatum. That is a technical term in Roman law. It is used by certain jurists meaning, to make an objection or to demur. It is so used by Cicero, Celsus, Quintilian and Julian. It gives a noun form, recusatio, recusationis, which means either a counter plea or a demurrer. However, the verb could also be used generally, meaning to make an objection or to protest. It is so used by Cicero, by Ovid, by Seneca, by Livy and by Caesar. It can also mean, not to accept or consent, or to decline, to reject, or to oppose. It is not used reflexively and is not used in Latin to mean to disqualify oneself. 

[2] According to the second edition of the Oxford English Dictionary published in 1989, the word, recuse, is rare and means, to refuse or to make an objection. There is a form of the word, recusal, but that means an objection to a judge as being prejudiced, but not the action of the judge in disqualifying himself. However, the primary meaning assigned to one form of the word, recuse, was that of being a “recusant” and the associated status of recusancy. A recusant was a person who refused to attend the services of the Church of England as established by Parliament. It applied to all who refused to attend the services of the Church of England but, in particular, members of the Catholic faith. The second edition of the Oxford English Dictionary does not admit the use of the verb "recuse" to mean, the action of a judge in disqualifying himself. 

[3] The 5th ed of the Shorter Oxford English Dictionary published in 2002, does give the verb, recuse, a fourth meaning, when used reflexively, of a judge withdrawing from a hearing of a case because of a possible conflict of interest or lack of impartiality. However, it is clear, from the other entries in the Shorter Oxford English Dictionary that that use is United States usage. It does not admit to the usage being either British, Australian, Canadian, New Zealander or South African. 

[4] However, the verb, recuse, in English has the same meanings as it does in Latin, to refuse a thing offered, to reject or renounce a person or his authority or to object or to refuse to do something. The use of the word "recuse" being a request of a judge to disqualify himself from the hearing of a case is not consistent with its Latin etymology, is inconsistent with English usage and, although it may be used in the United States of America, it is not part of the Queen's English and its use is to be eschewed.

Cato

From 'Goodbye to Law Reviews' by Fred Rodell in (1936) 43 Virginia Law Review 38–45 

There are two things wrong with almost all legal writing. One is its style. The other is its content. That, I think, about covers the ground. And though it is in the law reviews that the most highly regarded legal literature—and I by no means except those fancy rationalizations of legal action called judicial opinions—is regularly embalmed, it is in the law reviews that a pennyworth of content is most frequently concealed beneath a pound of so- called style. The average law review writer is peculiarly able to say nothing with an air of great importance. When I used to read law reviews, I used constantly to be reminded of an elephant trying to swat a fly. ... 

Then there is the business of footnotes, the flaunted Phi Beta Kappa keys of legal writing, and the pet peeve of everyone who has ever read a law review piece for any other reason than that he was too lazy to look up his own cases. So far as I can make out, there are two distinct types of footnote. There is the explanatory or if-you-didn’t-understand-what-I-said-in-the-text-this- may-help-you-type. And there is the probative or if-you’re-from-Missouri- just-take-a-look-at-all-this type. 

The explanatory footnote is an excuse to let the law review writer be obscure and befuddled in the body of his article and then say the same thing at the bottom of the page the way he should have said it in the first place. But talking around the bush is not an easy habit to get rid of and so occasionally a reader has to use reverse English and hop back to the text to try to find out what the footnote means. It is true, however, that a wee bit more of informality is permitted in small type. Thus “It is suggested” in the body of an article might carry an explanatory footnote to the effect that “This is the author’s own suggestion.” 

It is the probative footnote that is so often made up of nothing but a long list of names of cases that the writer has had some stooge look up and throw together for him. These huge chunks of small type, so welcome to the student who turns the page and finds only two or three lines of text above them, are what make a legal article very, very learned. They also show the suspicious twist of the legal mind. The idea seems to be that a man can not be trusted to make a straight statement unless he takes his readers by the paw and leads them to chapter and verse. Every legal writer is presumed to be a liar until he proves himself otherwise with a flock of footnotes. 

In any case, the footnote foible breeds nothing but sloppy thinking, clumsy writing, and bad eyes. Any article that has to be explained or proved by being cluttered up with little numbers until it looks like the Acrosses and Downs of a cross-word puzzle has no business being written.

GPT

'GPT Takes the Bar Exam' by Michael James Bommarito and Daniel Martin Katz comments

 Nearly all jurisdictions in the United States require a professional license exam, commonly referred to as “the Bar Exam,” as a precondition for law practice. To even sit for the exam, most jurisdictions require that an applicant completes at least seven years of post-secondary education, including three years at an accredited law school. In addition, most test-takers also undergo weeks to months of further, exam-specific preparation. Despite this significant investment of time and capital, approximately one in five test-takers still score under the rate required to pass the exam on their first try. In the face of a complex task that requires such depth of knowledge, what, then, should we expect of the state of the art in “AI?” 

In this research, we document our experimental evaluation of the performance of OpenAI’s text-davinci-003 model, often-referred to as GPT-3.5, on the multistate multiple choice (MBE) section of the exam. While we find no benefit in fine-tuning over GPT-3.5’s zero-shot performance at the scale of our training data, we do find that hyperparameter optimization and prompt engineering positively impacted GPT-3.5’s zero-shot performance. For best prompt and parameters, GPT-3.5 achieves a headline correct rate of 50.3% on a complete NCBE MBE practice exam, significantly in excess of the 25% baseline guessing rate, and performs at a passing rate for both Evidence and Torts. GPT-3.5’s ranking of responses is also highly correlated with correctness; its top two and top three choices are correct 71% and 88% of the time, respectively, indicating very strong non-entailment performance. 

While our ability to interpret these results is limited by nascent scientific understanding of LLMs and the proprietary nature of GPT, we believe that these results strongly suggest that an LLM will pass the MBE component of the Bar Exam in the near future. 

Literature and Defamation

'Legal Fiction: Reading Lolita as a Sentencing Memorandum' by Christina Frohock in (2022) 86(1) Albany Law Review comments 

 The idea of a legal narrative often focuses on identifying a narrative within the law, for example, the persuasive power of storytelling in a trial court motion or an appellate brief. The story emerges from the law. This Article proposes inverting that focus so that we identify the law within a narrative. Using the example of Vladimir Nabokov’s classic novel Lolita, the Article explains how we can read the novel as a prolonged sentencing memorandum. That memorandum casts the infamous first-person narrator, recounting his crimes under the pseudonym of Humbert Humbert, as a defendant writing pro se. In Lolita, the law emerges from the story, showing that an entire legal document may be redrawn as a narrative. The legal document and the narrative are one, with a distinct point of view in favor of the criminal defendant. This unity between law and narrative illuminates a deep, essential goal shared by both genres: garnering sympathy. The notion of law without sympathy thus rings hollow. Finally, this essential link between law and sympathy shines a new light on the law’s role to promote justice. Justice must be measured at least partly as an expression of sympathy rather than solely as a cold calculation of costs and benefits.

SCAG earlier this month stated 

 On 9 December 2022, the Standing Council of Attorneys-General approved in principle final amendments for Part A of the Stage 2 Review of the Model Defamation Provisions. This is subject to final agreement in the first half of 2023. Participants noted the significant work that has been undertaken by the interjurisdictional Defamation Law Working Party, led by NSW, since the exposure draft Part A Model Defamation Amendment Provisions were released in August 2022 for public consultation. A large stakeholder roundtable was held in September and 36 written submissions were received. Careful consideration has been given to the feedback received from a wide range of stakeholders and this has informed further refinements to the Part A amendments. The Part A reforms that have been agreed in principle for commencement from 1 January 2024 are a pragmatic approach that is intended to strike a better balance between protecting reputations and not unreasonably limiting freedom of expression in the various circumstances where third parties publish defamatory matter via internet intermediaries. 

The amendments include:

• Two conditional, statutory exemptions from defamation liability for a narrow group of internet intermediaries, including search engines in relation to organic search results 

• A new innocent dissemination defence for internet intermediaries, subject to a simple complaints process (Model B) 

• A new court power to make orders against non-party internet intermediaries to prevent access to defamatory matter online 

• A requirement that courts consider balancing factors when making preliminary discovery orders

• Updates to the mandatory requirements for an offer to make amends for online publications

Participants agreed that Commonwealth officials will consider the desirability of an exemption from section 235(1) of the Online Safety Act 2021 for defamation law and report back to the Defamation Law Working Party in the first half of 2023. 

Participants noted an update on Part B of the Stage 2 Review, led by Victoria, which considers whether absolute privilege should be extended to cover reports of alleged unlawful conduct to police and other entities including statutory investigative bodies and professional disciplinary bodies. 

Participants noted that consultation on the Part B reforms was finalised in October 2022 and that stakeholder feedback is informing final policy recommendations and amendments to the Model Defamation Provisions. This will enable consideration and agreement of the final Part B amendments in 2023. 

Participants agreed in principle that there should be a review of the Stage 1 and Stage 2 amendments to the Model Defamation Provisions beginning no later than 3 years after the commencement of the Stage 2 amendments (for both Part A and B) in all states and territories.

Legal Writing

In Edwards v Nine Network Australia Pty Limited [2022] FCA 509 Wigney J states 

[1] A Current Affair is a television program which, as its name would tend to suggest, occasionally airs stories concerning current affairs. On 24 May 2021 and 1 June 2021, the program aired hard-hitting stories about a complicated triangular custody dispute involving a man, a woman and a dog. The woman, Ms Gina Edwards, is a person who is said to have some notoriety as a lawyer who has worked in the United States. The dog, a cavoodle named Oscar, apparently had some notoriety as one of those cute furry pets that annoyingly pops up uninvited on one’s social media feed – assuming one has one. The man, Mr Mark Gillespie, had no particular notoriety, other than perhaps as a result of his cameo performance in the stories in question. 

[2] The dispute between Ms Edwards and Mr Gillespie was about who was rightfully entitled to Oscar’s canine affections and affiliation. The stories broadcast on A Current Affair included dramatic footage of confrontations between Ms Edwards and Mr Gillespie in a dog park on Sydney’s lower north shore – all while Oscar gambolled nearby, apparently oblivious to the highly charged emotions of his putative masters. 

[3] Anyway, as events transpired, Ms Edwards did not take too kindly to the way she was portrayed in the stories broadcast on A Current Affair, or the related web-based articles which largely reproduced them. She sued the companies responsible for publishing the broadcasts and articles in question, Nine Network Australia Pty Limited and TCN Channel Nine Pty Limited (collectively Nine), as well as the reporter who appeared in and contributed to the production of the relevant stories, Steve Marshall. She alleged that the broadcasts and articles defamed her because they implied or imputed that: she was a thief who stole Oscar the cavoodle; she stole Oscar for her own financial benefit; she deliberately delayed a previous court case about Oscar; she exploited Oscar for her own financial benefit; she adopted delay tactics so as to prolong her unlawful possession of Oscar; and she failed to fulfil her obligation to appear in court in relation to her AVO application against Mr Gillespie. Ms Edwards claimed that the broadcasts and articles, and their “grapevine effect”, had gravely injured her character and reputation and resulted in her suffering substantial hurt and embarrassment. 

[4] The proceeding is at a very early stage. Already, however, it has become mired in procedural squabbles between the parties. The rot first started when Nine and Mr Marshall failed to file their defence within the 28 days allowed in the Federal Court Rules 2011 (Cth): see r 16.32. Following some rather intemperate and fairly unhelpful correspondence between the respective solicitors, Nine and Mr Marshall sought an extension of time in which to file their defence. When that application first came before the Court, Nine and Mr Marshall appeared cap in hand, but sans any draft defence. The explanation given for the delay was also far from satisfactory or persuasive. It was little better than the proverbial dog having eaten their homework. 

[5] Ms Edwards opposed the application. Once bitten, twice shy, she decried. She suspected that Nine and Mr Marshall were sniffing around for some ex post facto justification for their broadcasts. She submitted that Nine and Mr Marshall be required to lay their cards on the table and produce a draft defence before being granted an indulgence by the Court. She also submitted, not without some justification, that Nine and Mr Marshall had failed to provide any, or any satisfactory, explanation for why they had not filed their defence within the permitted time. 

[6] Nine and Mr Marshall were directed in those circumstances to come back when they had completed their homework, at least in draft. ...

Regulation and Interpretation

Lee J at [22] in LCM Funding Pty Ltd v Stanwell Corporation Limited [2022] FCAFC 103 comments 

The conclusion that these types of litigation funding arrangements are not managed investment schemes may be thought by some as meaning such arrangements are “unregulated” and hence dangerous. But the spectre of their operation in some sort of Bir Tawil zone where no laws apply can be dismissed. Overwhelmingly, litigation resulting from such funding arrangements adopts the form of a class action. At all stages during the currency of such litigation, the Court is required to adopt a close protective and supervisory role, be alive to the interests of group members and to take steps to ensure that any class action is conducted in a way which best facilitates the just resolution of the disputes according to law and as quickly, inexpensively and efficiently as possible. Relatedly, the Court is also obliged to protect group members and manage the class action recognising that conflicts of interest, or conflicts of duty and interest, between and among representatives, group members, funders and solicitors can arise. When this is understood and appreciated, any criticism that litigation funding arrangements are “unregulated” is put into proper context. 

 In Alexander v Minister for Home Affairs [2022] HCA 19 Edelman J states 

[180] There are four questions raised by this special case. First, is s 36B of the Australian Citizenship Act supported by a head of Commonwealth legislative power? Secondly and thirdly, is s 36B inconsistent with two asserted implied limitations upon the Commonwealth legislative power under s 51(xix) of the Constitution? Fourthly, does s 36B repose in the Minister "the exclusively judicial function of punishing criminal guilt"? 

[181] As to the first question, the only head of power relied upon by the defendants to support s 36B is the power over "naturalization and aliens" in s 51(xix) of the Constitution. This raises the question of how the meaning of "alien" – a foreigner to the political community – is to be applied. On the approach of the defendants, all dual citizens fall within the aliens power. Therefore, there is power to pass a law such as s 36B of the Australian Citizenship Act simply because all the people to whom it applies are dual citizens. That would mean that, subject to any separate implied limits, the Commonwealth Parliament would have the power to strip persons like Mr Alexander of their citizenship solely because they are dual citizens. The defendants also argued that s 36B is a valid law because the Commonwealth has power in circumstances described as "repudiation of allegiance" to make non‑aliens into aliens. 

182 The application of the essential meaning of "alien" that was urged by the defendants has the likely consequence that potentially half of the permanent population of Australia are aliens, being dual (or more) citizens, being born overseas, or having at least one parent who does not hold Australian citizenship. Almost by definition, something must have gone wrong in the application by this Court of the meaning of the Constitution for it to be concluded that the Commonwealth Parliament has power to legislate on the premise that potentially half of the people of the Commonwealth of Australia are foreigners to the political community of the Commonwealth of Australia. 

[183] Nevertheless, the defendants' approach was only an incremental extension of the present state of the law concerning the application of the aliens power. That approach is the result of the compounding effect of a series of decisions of this Court. Those decisions have seen an imperial march of the application of the aliens power, extending it far beyond any ordinary understanding, capturing more and more members of the permanent population of the Commonwealth of Australia. At some point it will become necessary to confront the correctness of those decisions rather than tip‑toeing around them, carefully confining them by tiny exceptions, or restricting their scope by recognising implied constitutional constraints such as those raised by the second and third questions in this special case. It is not necessary to do so in this case because none of the decisions was challenged. 

[184] The compounding effect of the decisions of this Court began in 1982, when this Court first held that persons who had been unconditionally absorbed into the Australian political community were still within the reach of the aliens power. From that premise, and case by case, the application of the essential meaning of "alien" – a foreigner to the Australian political community – was extended further and further to apply to persons who had less and less "foreign" connection. It might seem like only another small, incremental step to conclude that Mr Alexander is a foreigner to the Australian political community, despite his birth in Australia to two permanent members of the Australian body politic. But, with an appreciation that the decisions of this Court may have already stretched the application of alien beyond breaking point, that is a step that should not now be taken. 

[185] Although s 36B cannot validly apply to persons simply on the basis that they are dual citizens, and would not have applied to Mr Alexander at the time of his birth, the aliens power does permit the Commonwealth Parliament to legislate, as it did in s 36B of the Australian Citizenship Act, in relation to non‑aliens who act in a manner that has been described as a repudiation of their allegiance to Australia. The aliens power permits the Commonwealth Parliament to legislate in relation to some people who were not aliens in extreme cases where circumstances or conduct are capable of making them into aliens. One such circumstance is where a person's conduct is so wrongful and extreme that it can be judged to be inconsistent with continuing membership of the political community. That is the effect of s 36B, so, subject to any other constitutional limits, s 36B would therefore be valid. ... 

[187] It has been suggested that the aliens power resembles legislative powers conferred by the Constitution on the Commonwealth Parliament to make laws with respect to a legal status, such as bankruptcy, trade marks, and marriage, rather than resembling legislative powers conferred by the Constitution with respect to physical things, like lighthouses, lightships, beacons, and buoys. There are grave difficulties with the creation of separate constitutional principles within s 51 according to those classes concerned with physical things and those concerned with legal status on the basis that the former "are fixed by external nature" and "cannot well be extended". 

[188] All of the powers in s 51 are expressed by words which convey meaning, with the meaning anchored in its essence, at the appropriate level of generality, by the contemporary understanding at Federation. That meaning is ideational. It is not confined to categories of physical things or legal status. Indeed, numerous powers might even derive the essence of their meaning from both. For instance, fisheries in Australian waters beyond territorial limits are concerned with both physical things and legal status. So are bills of exchange or promissory notes. The custody and guardianship of infants concerns both people and legal status, and so does "the influx of criminals". Further, just as the application of the essential meaning of words that describe a legal status can change, so too a power that appears limited to purely physical things, such as a lighthouse, lightship, beacon, or buoy, might arguably extend to things never contemplated in 1900 but which are within the same concept, fulfilling the same purpose, such as global positioning system software for seafarers. 

[189] Although there is no warrant for creating new and separate constitutional categories within s 51, the character of a s 51 power can still influence the interpretation of the power, particularly where the character reveals a purpose of the power. But one matter must be common in the interpretation of every power in s 51. It is an axiom of constitutional law in Australia that "[t]he validity of a law ... cannot be made to depend on the opinion of the law‑maker": "a stream cannot rise higher than its source". Hence, no power in s 51 of the Constitution, whether in relation to legal status or not, is with respect to a subject matter that is determined by the opinion of the Commonwealth Parliament. The Parliament is not empowered to make laws based solely on the criterion that, in its opinion, the law is with respect to a status of bankruptcy, trade marks, or marriage. 

[190] In the context of bankruptcy, the legislative power is ample but it extends only "to regulate all matters which fairly fall within that subject". The power is constrained by reference to the "essential feature ... that provision is made for the appropriation of the assets of the debtor and their equitable distribution amongst [their] creditors, and for the discharge of the debtor from future liability for [their] existing debts". 

[191] In the context of trade marks, it has been emphasised that "[i]f the thing is not of itself within the meaning, an Act of Parliament cannot make it so". If the Parliament were to enact legislation dealing with a matter which did not have the "essential qualities" or "common attributes" of a trade mark, it would not be "in essence a species within the language of the legislative powers" and would "amount to an attempt to amend the Constitution by a process not sanctioned by the Charter". 

[192] In relation to passing laws dealing with the personal relationships that are the consequences of the marriage power, it has been observed that, "[s]o far as they can be regulated by law without impairing the essence of marriage", laws about the consequences of marriage, such as cohabitation, would "properly be called laws with respect to marriage". The power "does not support a law which so regulates the incidents of marriage as to impair the essence of marriage". In other words, "[t]he term marriage bears its own limitations and Parliament cannot enlarge its meaning". An exercise of "constitutional interpretation of the marriage power would be an exercise in hopeless circularity if the Parliament could itself define the nature and incidents of marriage by laws enacted in purported pursuance of the power". ... 

Avoiding absurdity 

[196] In an apparently innocuous statement in the joint judgment in Chetcuti v The Commonwealth, four members of this Court said that it was a "settled understanding" that "the aliens power encompasses both power to determine who is and who is not to have the legal status of an alien and power to attach consequences to that status". If read literally, that statement would be a radical new theory of interpretation of constitutional heads of power. 

[197] If the statement in Chetcuti were read literally and without qualification, it might support an assumption that a constitutional alien is no more than the antonym of a statutory citizen. If that were true, then s 51(xix) would confer an unconstrained power on the Parliament to choose its own criteria for citizenship and thereby determine who is an alien and attach consequences to that alienage. Applied to other powers, this reasoning would mean that the Parliament could make laws to divest the assets of Croesus among his creditors on the basis that the Parliament determined for itself the meaning of bankruptcy, irrespective of the essential features inherent in the constitutional meaning of bankruptcy. The Parliament could "define 'trade mark' as including a will, and enact that no will shall be valid unless registered as a trade mark", contrary to "universal agreement in the laws of every part of the British Empire" at the time of Federation concerning "certain essentials founded in the origin and very nature of a trade mark". Or the Parliament could pass laws in relation to the merger of corporations, or forced, non‑consensual unions, on the basis of its own determination of what a marriage is, thus enlarging that meaning beyond its constitutional essence as "a consensual union formed between natural persons in accordance with legally prescribed requirements" and bearing certain characteristics. 

[198] The statement quoted above from the joint judgment in Chetcuti should not be read as rejecting a century of hornbook constitutional law. Rather, and consistently with the acknowledgement in the previous paragraph in Chetcuti that a law of the Parliament might need to be disapplied to the extent of "constitutional overreach" by treating "all non‑citizens as aliens", the statement in Chetcuti should be understood as saying no more than that the Commonwealth Parliament has power to set the criteria for who will, and who will not, be a statutory alien and the consequences of that, provided always that the exercise of that power is within the boundaries of the constitutional concept of "alien". In oral submissions, the defendants quite correctly accepted that position, conceding that the aliens power "cannot be used to treat, as an alien, someone who cannot answer that description on the ordinary understanding of the word". 

[199] The ordinary understanding of the word "alien" – its essential meaning – is simple and well‑established in this Court. At a reasonably high level of generality, which recognises the state of flux at lower levels of generality of the common law of alienage at the time of Federation[, an alien is a foreigner or outsider to the political community of the Australian body politic. The difficult question is how that ordinary understanding of "alien" is to be applied. 

[200] On the submission of the defendants, the application of alien extends to people who have any of the following characteristics, each of which involves some "foreign" element: (i) the person has dual citizenship; (ii) the person was not born in Australia; or (iii) at birth, the person had one or more parents who were not an Australian citizen. It is likely that these slight foreign connections describe more than half of the Australian population; the first criterion alone involves close to half of the Australian population and the second and third criteria together likely involve a similar proportion. On the defendants' submission, therefore, potentially half of the Australian population are aliens within the meaning of the Constitution and can therefore be treated in that way by legislation. 

[201] It is not to the point that it might be thought to be extremely unlikely that the Parliament would ever legislate to impose the consequences of alienage, potentially including deportation, upon half of Australia's population. The identification of the extreme reach of the power on the submissions of the defendants is not to propose an absurd or distorting possibility. Rather, the extreme reach of the power, over more than half of the population of Australia, and the infinite range of possible laws over those persons, or groups of them, which would be within the scope of the power illustrate the difficulties with the proposed interpretation. 

[202] The submission of the defendants was, nevertheless, a carefully devised formulation of the application of the essential meaning of "alien" which respected a line of authority in this Court since 1982. The extreme effect of the submission is only an incremental extension of a series of problematic decisions in this Court. Those decisions have developed the law to a point where the question that is asked of s 51(xix) is no longer which people are aliens. The question that is now asked is usually couched in the euphemism of "the Pochi limit to the aliens power". But that "limit" is not some outer extreme within which Parliament has free rein. Rather, it is an absolutely orthodox requirement that the aliens power be applied in accordance with its meaning. As the application of the aliens power has strayed further and further from its essential meaning, the question has become how to identify which categories or groups of people are not aliens. And as the groups of people who are not aliens have come to be treated as diminishingly smaller, the answer to that question has not been readily forthcoming. 

[203] This case is not the appropriate vehicle to consider the extent to which it is possible to unwind some, or all, of the arguable errors in the decisions of this Court. But, in order to address the submissions of the parties on the first issue in this special case, it is necessary to identify where potential missteps may have occurred in order to explain why the aliens power should not extend any further to dual citizens born in the same circumstances as Mr Alexander.

Doctrine

'Mapping Doctrinal Methods' by Jason N E Varuhas in P Daly and J Tomlinson (eds), Researching Public Law in Common Law Systems (Edward Elgar, 2022) offers 

an account of doctrinal legal method. 

Doctrinal legal method is often presented as a single methodology. However, the umbrella term ‘doctrinal method’ can be shown to incorporate several methods which are distinct, but linked by a common concern to state what the law is and to understand the law on its own terms. 

This chapter identifies and elaborates upon each of these methods. Listed in order of increasing sophistication, they are: (i) description, which may for example involve summarizing a case; (ii) derivation, which involves distilling legal propositions from legal materials; (iii) systematization, which involves organization of interconnected legal propositions into categories, which form part of a wider system; and (iv) interpretivism, which involves interrogating normative justifications which explain legal propositions or categories, and refining one’s account of those legal phenomena by reference to those justifications. 

Accomplished pieces of doctrinal legal scholarship will deploy all of these methods. Each successive method will involve use of the former method(s). Thus, derivation will necessarily involve description. Systematisation will necessarily involve description and derivation. And interpretivism will incorporate the other three methods. 

It is also the case that each successive method is more sophisticated and liable to offer deeper insights into the law. Thus, interpretivism is the highest form of doctrinal method, involving interrogation of the normative foundations of given legal propositions or fields, but it is also dependent upon the other three methods. 

The chapter first introduces the idea of doctrinal method, and then goes on to map the four methods. The chapter’s focus is upon public law, but the methods identified are equally applicable to any legal field. 

Ultimately, the chapter argues that the path forward for doctrinal scholars involves greater attention to the deeper normative commitments embedded in the historic system, and which explain public law doctrines and fields. Such mid-level explanatory theory is crucial to a complete understanding of doctrinal public law, and to coherent judicial decision-making and legal development.

Adverse Possession

More lapidary writing from Master Sanderson. Crage v Wooles [2021] WASC 406 considers a claim for adverse possession - 

[3] ... the plaintiffs reside at 42 The Esplanade, Peppermint Grove and the defendants reside at 40 The Esplanade, Peppermint Grove. In other words, they are next door neighbours. The plaintiffs plead in or about 1991 they constructed a wall which separated the two lots but which was entirely on the plaintiffs' lot. In other words, instead of building the wall on the boundary line, the plaintiffs built the wall and its footings entirely on the plaintiffs' lot. Why the wall was constructed in the position it was is of no relevance to this dispute. What is relevant is that the wall – which is described in the pleading as the 'First Wall' - was built by the plaintiffs and was built entirely on their land. The plaintiffs then plead in 2009 the defendants constructed a wall on the footings of the First Wall for a length of 26 metres from The Esplanade. This is referred to as the 'Second Wall'. The plaintiffs allege the Second Wall was constructed entirely on the plaintiffs' land. 

[4] The plaintiffs say that the defendants have 'previously committed the tort of trespass by planting vines and allowing them to grow over and damage the First and Second Walls'. They allege that unless restrained from doing so, the defendants intend to commit further such heinous acts and that requires this court to issue an injunction to stop the defendants painting the First and Second Walls or doing anything which is inconsistent with the plaintiffs' ownership of the walls. In addition, the plaintiffs want a declaration they are the owners of their lot up to the boundary and a declaration that the defendants have no proprietary interest in the land of which the plaintiffs claim ownership. 

[5] It is worth pausing at this point to marvel at the nature of the relief sought. There is nothing to indicate the plaintiffs intend to demolish either the First Wall or the Second Wall and build a wall on the boundary line. Presumably, what they wish to do is lean over the walls from time to time and ensure that the defendants are not in some way interfering with the surface of the wall facing the defendants' property. Presumably, they may also from time to time point out to the defendants that the wall is on their land and emphasise that fact ought not be forgotten. Otherwise the status quo, which has existed since 2009 when the Second Wall was constructed, would continue. ... 

[8] The defendants plead that the First Wall is, at its greatest point of deviation from the boundary, no more than 135 millimetres inside the plaintiffs' lot. In other words, this case concerns a sliver of land hardly wide enough to accommodate a punnet of petunias. Such is the value of land in Peppermint Grove. ...   

[10] Before detailing that plea I should make some general comments about what constitutes adverse possession. As the title of the cause of action suggests, one party must possess another's real property in a manner which is inconsistent – or adverse - to the owner's title. In other words, the party claiming title by adverse possession must trespass on the registered proprietor's property and act as if that property belonged to the trespasser. If that possession, adverse to the interests of the owner, continues for a period of 12 years, then the right and title to the property upon which the person is trespassing passes to the trespasser. Adverse possession is one of the very few, if not the only instance in Australian jurisprudence where a wrongdoer is rewarded for his or her wrongful acts. 

[11] What constitutes adverse possession has been the subject of numerous decisions.Perhaps the best analysis of the principles is provided by the decision of Murray J in Petkov v Lucerne Nominees Pty Ltd (1992) 7 WAR 163 at 165 ‑ 168. The Transfer of Land Act 1893 (WA), by sections 68 and 222 to 225, recognise the possibility of a claim in adverse possession. But these sections do not actually deal with the legal basis of the claim. In fact, the claim is based on limitation of actions as defined in the Limitation Acts of 1935 and 2005. The act of trespass becomes actionable by a landowner when the trespass first occurs. If the landowner does nothing for 12 years the right of action for trespass is statute barred. That is how the claim arises. So properly viewed, a claim in adverse possession is really a defence to an action in trespass based upon the Limitation Act. 

[12] ... the defendants rely principally on three matters. First, they say the plaintiffs built a wall which enclosed, on the defendants' side of the wall, the land over which adverse possession is claimed. Second, they say the AP Land has been used by the defendants and their predecessors in title for a period of more than 12 years. Third, they say that a building has been constructed on the defendants' land and, in the course of the building works, the defendants possessed the AP Land. 

[13] Against that, the plaintiffs make a number of points. First, and perhaps most importantly, they say adverse possession cannot lie when the enclosure of the land is undertaken, not by the defendants, but by the plaintiffs. It is true that one of the most common indicators of adverse possession is the trespasser fencing the subject land. This is seen as an unequivocal demonstration of the requisite intent to exclude the world at large. The defendants were unable to point to a case where the enclosure had been undertaken, not by the party claiming adverse possession, but by the owner. Furthermore, the plaintiffs say that even on the defendants' plea, there is a break in the chain of adverse possession such that the claim could not run. They also dispute there has been use made by the defendants of the land which is consistent only with adverse possession. ... 

[15] More than that, it does seem to me, on balance, the defendants' position is arguable. True it is, there is no authority for the proposition that enclosure by a registered proprietor can lead to a claim for adverse possession. On the face of it that would seem an odd result. But the fact is the land is enclosed and, on the defendants' case, has been used inconsistent with the plaintiffs' ownership. So the position is arguable. 

[16] In any event, this matter is best litigated once and for all so that the respective interests of the parties can be finally determined. If the plaintiffs are confident that the defendants' pleas in relation to adverse possession cannot be made good on the facts as pleaded, they can simply admit those facts and argue the matter on the law. It might even be possible to produce a statement of agreed facts – although the chance of these parties agreeing on anything would seem to be no more than a pious hope. Nonetheless, it remains a possibility. It is certainly an open question whether, on the facts pleaded in the statement of claim, the relief sought by the plaintiffs is open. This is one of those cases where there is nothing to be gained by interlocutory skirmishing. ... 

[18] The great American poet, Robert Frost, said 'good fences make good neighbours'. In this case there is no doubting the quality of the fences.