Indigenous Incarceration

The Australian Law Reform Commission's Pathways to Justice—Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples report (ALRC Report 133, 2017) is now available.

The ALRC's Terms of Reference state

 It is acknowledged that while laws and legal frameworks are an important factor contributing to over-representation, there are many other social, economic, and historic factors that also contribute. It is also acknowledged that while the rate of imprisonment of Aboriginal and Torres Strait Islander peoples, and their contact with the criminal justice system - both as offenders and as victims - significantly exceeds that of non-Indigenous Australians, the majority of Aboriginal and Torres Strait Islander people never commit criminal offences. 

Scope of the reference 

1. In developing its law reform recommendations, the Australian Law Reform Commission (ALRC) should have regard to:

a. Laws and legal frameworks including legal institutions and law enforcement (police, courts, legal assistance services and prisons), that contribute to the incarceration rate of Aboriginal and Torres Strait Islander peoples and inform decisions to hold or keep Aboriginal and Torres Strait Islander peoples in custody, specifically in relation to: i. the nature of offences resulting in incarceration, ii. cautioning, iii. protective custody, iv. arrest, v. remand and bail, vi. diversion, vii. sentencing, including mandatory sentencing, and viii. parole, parole conditions and community reintegration.

b. Factors that decision-makers take into account when considering (1)(a)(i-viii), including: i. community safety, ii. availability of alternatives to incarceration, Laws that may contribute to the rate of Aboriginal and Torres Strait Islander peoples offending and including, for example, laws that regulate the availability of alcohol, driving offences and unpaid fines. Differences in the application of laws across states and territories. Other access to justice issues including the remoteness of communities, the availability of and access to legal assistance and Aboriginal and Torres Strait Islander language and sign interpreters. iii. the degree of discretion available to decision-makers, iv. incarceration as a last resort, and v. incarceration as a deterrent and as a punishment.

2. In conducting its Inquiry, the ALRC should have regard to existing data and research1 in relation to:

a. best practice laws, legal frameworks that reduce the rate of Aboriginal and Torres Strait Islander incarceration, 

b. pathways of Aboriginal and Torres Strait Islander peoples through the criminal justice system, including most frequent offences, relative rates of bail and diversion and progression from juvenile to adult offending, 

c. alternatives to custody in reducing Aboriginal and Torres Strait Islander incarceration and/or offending, including rehabilitation, therapeutic alternatives and culturally appropriate community led solutions, 

d. the impacts of incarceration on Aboriginal and Torres Strait Islander peoples, including in relation to employment, housing, health, education and families, and 

e. the broader contextual factors contributing to Aboriginal and Torres Strait Islander incarceration including: i. the characteristics of the Aboriginal and Torres Strait Islander prison population, ii. the relationships between Aboriginal and Torres Strait Islander offending and incarceration and inter-generational trauma, loss of culture, poverty, discrimination, alcohol and drug use, experience of violence, including family violence, child abuse and neglect, contact with child protection and welfare systems, educational access and performance, cognitive and psychological factors, housing circumstances and employment, and iii. the availability and effectiveness of culturally appropriate programs that intend to reduce Aboriginal; and Torres Strait Islander offending and incarceration. 

3. In undertaking this Inquiry, the ALRC should identify and consider other reports, inquiries and action plans including but not limited to:

a. the Royal Commission into Aboriginal Deaths in Custody, 

b. the Royal Commission into the Protection and Detention of Children in the Northern Territory (due to report 1 August 2017), 

c. Senate Standing Committee on Finance and Public Administration’s Inquiry into Aboriginal and Torres Strait Islander Experience of Law Enforcement and Justice Services, 

d. Senate Standing Committee on Community Affairs’ inquiry into Indefinite Detention of People with Cognitive and Psychiatric impairment in Australia, 

e. Senate Standing Committee on Indigenous Affairs inquiry into Harmful Use of Alcohol in Aboriginal and Torres Strait Islander Communities, 

f. reports of the Aboriginal and Torres Strait Islander Social Justice Commissioner, 

g. the ALRC’s inquiries into Family violenceand Family violence and Commonwealth laws, and h. the National Plan to Reduce Violence against Women and their Children 2010-2022.

The ALRC should also consider the gaps in available data on Aboriginal and Torres Strait Islander incarceration and consider recommendations that might improve data collection. 

4. In conducting its inquiry the ALRC should also have regard to relevant international human rights standards and instruments. 

5. In undertaking this inquiry, the ALRC should identify and consult with relevant stakeholders including Aboriginal and Torres Strait Islander peoples and their organisations, state and territory governments, relevant policy and research organisations, law enforcement agencies, legal assistance service providers and the broader legal profession, community service providers and the Australian Human Rights Commission.

The ALRC recommendations are

  4. Justice Reinvestment 

R 4–1 Commonwealth, state and territory governments should provide support for the establishment of an independent justice reinvestment body. The purpose of the body should be to promote the reinvestment of resources from the criminal justice system to community-led, place-based initiatives that address the drivers of crime and incarceration, and to provide expertise on the implementation of justice reinvestment. Its functions should include: · providing technical expertise in relation to justice reinvestment; · assisting in developing justice reinvestment plans in local sites; and · maintaining a database of evidence-based justice reinvestment strategies. The justice reinvestment body should be overseen by a board with Aboriginal and Torres Strait Islander leadership. 

R 4–2 Commonwealth, state and territory governments should support justice reinvestment trials initiated in partnership with Aboriginal and Torres Strait Islander communities, including through: · facilitating access to localised data related to criminal justice and other relevant government service provision, and associated costs; · supporting local justice reinvestment initiatives; and · facilitating participation by, and coordination between, relevant government departments and agencies. 

5. Bail 

R 5–1 State and territory bail laws should be amended to include standalone provisions that require bail authorities to consider any issues that arise due to a person’s Aboriginality, including cultural background, ties to family and place, and cultural obligations. These would particularly facilitate release on bail with effective conditions for Aboriginal and Torres Strait Islander people who are accused of low- level offending. The Bail Act 1977 (Vic) incorporates such a provision. As with all other bail considerations, the requirement to consider issues that arise due to a person’s Aboriginality would not supersede considerations of community safety. 

R 5–2 State and territory governments should work with relevant Aboriginal and Torres Strait Islander organisations to: · develop guidelines on the application of bail provisions requiring bail authorities to consider any issues that arise due to a person’s Aboriginality, in collaboration with peak legal bodies; and · identify gaps in the provision of culturally appropriate bail support programs and diversion options, and develop and implement relevant bail support and diversion options. 

6. Sentencing and Aboriginality 

R 6–1 Sentencing legislation should provide that, when sentencing Aboriginal and Torres Strait Islander offenders, courts take into account unique systemic and background factors affecting Aboriginal and Torres Strait Islander peoples. 

R 6–2 State and territory governments, in partnership with relevant Aboriginal and Torres Strait Islander organisations, should develop and implement schemes that would facilitate the preparation of ‘Indigenous Experience Reports’ for Aboriginal and Torres Strait Islander offenders appearing for sentence in superior courts. 

Recommendation 6–3 State and territory governments, in partnership with relevant Aboriginal and Torres Strait Islander organisations and communities, should develop options for the presentation of information about unique systemic and background factors that have an impact on Aboriginal and Torres Strait Islander peoples in the courts of summary jurisdiction, including through Elders, community justice groups, community profiles and other means. 

7. Community-based Sentences 

R 7–1 State and territory governments should work with relevant Aboriginal and Torres Strait Islander organisations and community organisations to improve access to community-based sentencing options for Aboriginal and Torres Strait Islander offenders, by: · expanding the geographic reach of community-based sentencing options, particularly in regional and remote areas; · providing community-based sentencing options that are culturally appropriate; and · making community-based sentencing options accessible to offenders with complex needs, to reduce reoffending. 

R 7–2 Using the Victorian Community Correction Order regime as an example, state and territory governments should implement community-based sentencing options that allow for the greatest flexibility in sentencing structure and the imposition of conditions to reduce reoffending. 

R 7–3 State and territory governments and agencies should work with relevant Aboriginal and Torres Strait Islander organisations to provide the necessary programs and support to facilitate the successful completion of community- based sentences by Aboriginal and Torres Strait Islander offenders. 

R 7–4 In the absence of the availability of appropriate community- based sentencing options, suspended sentences should not be abolished. 

R 7–5 In the absence of the availability of appropriate community- based sentencing options, short sentences should not be abolished. 

8. Mandatory Sentencing 

R 8–1 Commonwealth, state and territory governments should repeal legislation imposing mandatory or presumptive terms of imprisonment upon conviction of an offender that has a disproportionate impact on Aboriginal and Torres Strait Islander peoples. 

9. Prison Programs and Parole 

R 9–1 State and territory corrective services agencies should develop prison programs with relevant Aboriginal and Torres Strait Islander organisations that address offending behaviours and/or prepare people for release. These programs should be made available to: · prisoners held on remand; · prisoners serving short sentences; and · female Aboriginal and Torres Strait Islander prisoners. 

R 9–2 To maximise the number of eligible Aboriginal and Torres Strait Islander prisoners released on parole, state and territory governments should: · introduce statutory regimes of automatic court-ordered parole for sentences of under three years, supported by the provision of prison programs for prisoners serving short sentences; and · abolish parole revocation schemes that require the time spent on parole to be served again in prison if parole is revoked. 

10. Access to Justice 

R 10–1 State and territory governments should work with relevant Aboriginal and Torres Strait Islander organisations to: · establish interpreter services within the criminal justice system where needed; and · monitor and evaluate their use. 

R 10–2 Where needed, state and territory governments should establish specialist Aboriginal and Torres Strait Islander sentencing courts. These courts should incorporate individualised case management, wraparound services, and be culturally competent, culturally safe and culturally appropriate. 

R 10–3 Relevant Aboriginal Torres Strait Islander organisations should play a central role in the design, implementation and evaluation of specialist Aboriginal and Torres Strait Islander sentencing courts. Recommendation 10–4 Where not already in place, state and territory governments should introduce special hearing processes to make qualified determinations regarding guilt after a person is found unfit to stand trial. 

R 10–5 Where not already in place, state and territory governments should implement Recommendation 7–2 of the ALRC Report Equality, Capacity and Disability in Commonwealth Laws to provide for a fixed term when a person is found unfit to stand trial and ensure regular periodic review while that person is in detention. 

11. Aboriginal and Torres Strait Islander Women 

R 11–1 Programs and services delivered to female Aboriginal and Torres Strait Islander offenders within the criminal justice system—leading up to, during and post-incarceration—should take into account their particular needs so as to improve their chances of rehabilitation, reduce their likelihood of reoffending and decrease their involvement with the criminal justice system. Such programs and services, including those provided by NGOs, police, courts and corrections, must be: · developed with and delivered by Aboriginal and Torres Strait Islander women; and · trauma-informed and culturally appropriate. 

R 11–2 Police engaging with Aboriginal and Torres Strait Islander people and communities should receive instruction in best practice for handling allegations and incidents of family violence—including preventative intervention and prompt response—in those communities. 

12. Fines and Driver Licences 

R 12–1 Fine default should not result in the imprisonment of the defaulter. State and territory governments should abolish provisions in fine enforcement statutes that provide for imprisonment in lieu of, or as a result of, unpaid fines. 

R 12–2 State and territory governments should work with relevant Aboriginal and Torres Strait Islander organisations to develop options that: · reduce the imposition of fines and infringement notices; · limit the penalty amounts of infringement notices;  · avoid suspension of driver licences for fine default; and · provide alternative ways of paying fines and infringement notices. 

R 12–3 State and territory governments should work with relevant Aboriginal and Torres Strait Islander organisations and community organisations to identify areas without services relevant to driver licensing and to provide those services, particularly in regional and remote communities. 

R 12–4 State and territory governments should review the effect on Aboriginal and Torres Strait Islander peoples of statutory provisions that criminalise offensive language with a view to: · repealing the provisions; or · narrowing the application of those provisions to language that is abusive or threatening. 

13. Alcohol 

R 13–1 All initiatives to reduce the harmful effects of alcohol in Aboriginal and Torres Strait Islander communities should be developed with, and led by, these communities to meet their particular needs. 

R–2 Commonwealth, state and territory governments should enable and provide support to Aboriginal and Torres Strait Islander communities that wish to address alcohol misuse to: · develop and implement local liquor accords; and/or · develop plans to prevent the sale of full strength alcohol or reduce the availability of particular alcohol ranges or products within their communities. 

14. Police Accountability 

R 14–1 Commonwealth, state and territory governments should review police procedures and practices so that the law is enforced fairly, equally and without discrimination with respect to Aboriginal and Torres Strait Islander peoples. 

R 14–2 To provide Aboriginal and Torres Strait Islander people and communities with greater confidence in the integrity of police complaints handling processes, Commonwealth, state and territory governments should review their police complaints handling mechanisms to ensure greater practical independence, accountability and transparency of investigations. 

R 14–3 Commonwealth, state and territory governments should introduce a statutory requirement for police to contact an Aboriginal and Torres Strait Islander legal service, or equivalent service, as soon as possible after an Aboriginal and Torres Strait Islander person is detained in custody for any reason—including for protective reasons. A maximum period within which the notification must occur should be prescribed. 

R 14–4 In order to further enhance cultural change within police that will ensure police practices and procedures do not disproportionately contribute to the incarceration of Aboriginal and Torres Strait Islander peoples, the following initiatives should be considered: · increasing Aboriginal and Torres Strait Islander employment within police; · providing specific cultural awareness training for police being deployed to an area with a significant Aboriginal and Torres Strait Islander population; · providing for lessons from successful cooperation between police and Aboriginal and Torres Strait Islander peoples to be recorded and shared; · undertaking careful and timely succession planning for the replacement of key personnel with effective relationships with Aboriginal and Torres Strait Islander communities; · improving public reporting on community engagement initiatives with Aboriginal and Torres Strait Islander peoples; and · entering into Reconciliation Action Plans. 

15. Child Protection and Adult Incarceration 

R 15–1 Acknowledging the high rate of removal of Aboriginal and Torres Strait Islander children into out-of-home care and the recognised links between out-of-home care, juvenile justice and adult incarceration, the Commonwealth Government should establish a national inquiry into child protection laws and processes affecting Aboriginal and Torres Strait Islander children. 

16. Criminal Justice Targets and Aboriginal Justice Agreements 

R 16–1 The Commonwealth Government, in consultation with state and territory governments, should develop national criminal justice targets. These should be developed in partnership with peak Aboriginal and Torres Strait Islander organisations, and should include specified targets by which to reduce the rate of: · incarceration of Aboriginal and Torres Strait Islander people; and · violence against Aboriginal and Torres Strait Islander people. 

R 16–2 Where not currently operating, state and territory governments should renew or develop an Aboriginal Justice Agreement in partnership with relevant Aboriginal and Torres Strait Islander organisations.

Australian Competition Law Penalties

Today's OECD report on Pecuniary Penalties for Competition Law Infringements in Australia compares

the pecuniary sanctions regime for competition law infringements in Australia to that of a number of other major OECD jurisdictions. It has been prepared based on an analysis of Australia’s pecuniary sanctions regime and its comparison with pecuniary sanctions regimes in the European Union, Germany, Japan, Korea, the United Kingdom and the United States. It builds on previous work on ‘Sanctions in Antitrust Cases’ pursued in the context of the 2016 OECD Global Forum on Competition. 

The authors comment

Despite Australia’s competition law system being in line with international practice, it has characteristics that differentiate it from other regimes. Notable among such differences is the method for applying sanctions. While in most regimes pecuniary penalties are set by reference to a detailed and publically available methodology that focuses largely on the size of the infringing company, in Australia the amount of pecuniary penalties is determined by the Federal Courts following an ‘instinctive synthesis’ of various factors. These differences do not prevent Australia from imposing substantial and deterrent sanctions for breaches of competition law. However, and as described in this Report, the maximum penalties that are imposed in Australia for competition law infringements are lower than in comparable jurisdictions.

In recent years, important cases have been increasingly brought before the Australian courts for decisions about sanctions for competition law infringements. This accumulated experience provides an opportunity for retrospective and comparative review, which is the objective of this report that compares Australia’s framework and experience with competition law sanctions to the frameworks and experiences of other jurisdictions. The OECD jurisdictions selected for comparison are the European Union, Germany, Japan, Korea, the United Kingdom and the United States. These jurisdictions include leading large jurisdictions, such as the European Union and the United States, as well as smaller jurisdictions with advanced competition law regimes, such as Germany, Japan, Korea and the United Kingdom. Together, they provide a good sample of established competition jurisdictions, while also providing a valuable mix of characteristics that reflect the variety of competition law regimes across the world and illustrate the breadth of approaches in different legal systems.

Australia belongs to the set of jurisdictions where the competition authority brings cases for enforcement action before a court, which acts as a decision-maker with respect to the alleged breach of competition law and the applicable penalties. It has a bifurcated system where the adjudicative role in competition law matters is divided between the Australian Competition Tribunal and the Federal Courts. The latter have jurisdictions regarding enforcement proceedings undertaken by the Australian Competition and Consumer Commission (ACCC) for breaches of the competition provisions of the Competition and Consumer Act.

Civil penalties for competition law infringements in Australia have as their primary objective deterrence, both general and specific. Pecuniary penalties are one of a number of civil and criminal sanctions that Australian courts can impose for such infringements. When determining the amount of a pecuniary penalty, Australian courts take into account a number of different criteria and principles – including the course of conduct principle (where appropriate), the totality principle and the parity principle. The judicial assessment of the appropriate penalty is a discretionary judgement synthesising all factors and principles relevant to a particular case in a process of ‘instinctive synthesis’. While the determination of the type and amount of penalties imposed on contraveners for infringements of competition laws is an exclusive prerogative of the courts, the ACCC and respondents may make joint submissions to the court in which they propose an agreed civil penalty (and other relief) for the courts’ consideration. If the court is persuaded that the agreed penalty is an appropriate penalty, it is consistent with principle, and highly desirable in practice, for the court to accept the parties’ proposal and impose the agreed penalty

All the comparator jurisdictions share with Australia the goal of ensuring deterrence of competition law violations through pecuniary penalties. Unlike Australia, however, all comparator jurisdictions deploy structured methods for determining the level of pecuniary sanctions. These methods require the calculation of a base fine, generally based on some measure of the volume of affected sales in the country in question over the time period of the legal violation. This base fine can then be modified to take account of mitigating and aggravating circumstances and, in many jurisdictions, also to reflect other factors deemed of importance. Such methods are reflected in publically available guidelines. The existence of structured methods reflected in public guidelines ensures predictability, the uniform treatment of companies for comparable violations, and that fines reach levels that can enhance deterrence.

This report compares the level of actual fines in Australian competition law sanction cases to the level that would apply in the comparator jurisdictions. The result of this comparison is that the amount of pecuniary penalties imposed for competition law infringements in Australia is significantly lower, in both absolute and relative terms, than the amounts imposed in other OECD jurisdictions, particularly as regards large companies or conduct that lasted for a long period of time. This is despite pecuniary penalties in Australia and all reviewed jurisdictions: (i) ostensibly pursuing the same objective, deterrence; (ii) being set by reference to similar criteria – i.e. the corporation’s turnover or the illicit commercial gains obtained through the anticompetitive conduct; and (iii) relying on a broadly similar list of mitigating and aggravating factors when determining the final amount of a pecuniary penalty. Looking at the amounts of penalties imposed in Australia in a number of cartel cases up to November 2017 – which exclude more recent cases that are still under appeal – and the base fine that would have been applied in the comparator jurisdictions, the average pecuniary penalty in Australia was AUD 25.4 million (Australian dollars), while the average base penalty in the comparator jurisdictions would have been AUD320.4 million. Even considering that these calculations are rough estimates that do not take into account aggravating or mitigating circumstances, this means that the average Australian penalty would have to be increased 12.6 times to reach the level of the average penalty in the comparator jurisdictions. This is despite the fact that Australia’s legal regime seems to allow for the imposition of pecuniary penalties at the same level or even higher than in the comparator jurisdictions. This disparity in the amount of pecuniary penalties imposed in Australia and elsewhere has the potential to limit the effective deterrence of sanctions against competition law infringements in Australia.

Ultimately, the two main differences that this Report finds between Australia and the comparator jurisdictions are that: (i) fines in Australia seem to be lower, at least at the higher end of imposed penalties; (ii) Australia does not follow a structured methodology for the determination of pecuniary penalties. While the Report is unable to conclude that there is a causal relationship between these two phenomena, it is plausible that they are related.

The Report ultimately recommends that Australian authorities consider actions to ensure that pecuniary penalties better deter anticompetitive conduct. Such recommendations include, among others, increasing awareness of and taking into account international practices in the determination of pecuniary penalties; linking the amount of the penalty to the economic impact of the sanctioned company’s conduct and the seriousness and duration of the infringement, and decoupling it from the sanction amounts imposed for similar anticompetitive conduct in the past; and studying whether to develop and adopt a structured method for the calculation of the amount of pecuniary penalties – including, potentially, the identification of a base pecuniary penalty. Public guidance could create a more transparent and predictable penalty framework, which, in turn, could be useful for companies and decision makers, ultimately promoting deterrence.

US Antitrust and Equity

Whatever Did Happen to the Antitrust Movement?' by Herbert Hovenkamp in Notre Dame Law Review ( forthcoming) comments

Antitrust in the United States today is caught between its pursuit of technical rules designed to define and implement defensible economic goals, and increasing calls for a new antitrust “movement.” The goals of this movement have been variously defined as combating industrial concentration, limiting the economic or political power of large firms, correcting the maldistribution of wealth, control of high profits, increasing wages, or protection of small business. High output and low consumer prices are typically unmentioned.

In the 1960s the great policy historian Richard Hofstadter lamented the passing of the antitrust “movement” as one of the “faded passions of American reform.” In its early history, he observed, antitrust had a powerful movement quality but very little success in the courts. Later, it ceased to be a movement just as it was attaining litigation success. As a movement, antitrust often succeeds at capturing political attention, but it fails at making effective – or even coherent – policy. The coherence problem shows up in goals that are both unmeasurable and fundamentally inconsistent, but with their contradictions rarely exposed. Among the most problematic contradictions is the one between small business protection and consumer welfare. Consumers benefit from low prices, high output and high quality and variety of products and services. But when a firm is able to offer these things it invariably injures rivals, typically smaller firms or those dedicated to older technologies. Although movement antitrust rhetoric is often opaque about specifics, its general effect is invariably to encourage higher prices or reduced output or innovation, mainly for the protection of small business or firms dedicated to older technologies. Indeed, some spokespersons for movement antitrust write as if low prices are the evil that antitrust law should be combating.

This piece sets out to do three things. First it describes so-called “movement” antitrust, focusing on recent writings disparaging consumer welfare in favor of alternatives that seek to protect small business welfare, redistribute wealth, or pursue other goals. Then it describes the fundamental contours of technical antitrust, whose stated goal is the protection of low prices and high output, and explains why this approach is much more consistent with concerns about economic rationality, due process, administrability, and federalism. Finally, it examines several areas where technical antitrust rules could be improved, focusing mainly on merger policy and one particularly problematic area, which is antitrust’s historical failure to deal adequately with monopsony power in labor markets.

'Equity: Notes on the American Reception' by Samuel L. Bray in Dennis Klimchuk, Irit Samet, and Henry Smith (eds), Philosophical Foundations of the Law of Equity (Oxford University Press, 2019) considers

the reception of equity in the law of the United States, and in particular the reception of two ideas: first, a small-scale moral reading of the law, analysed under the rubric of “nice adjustment,” and second, a willingness of courts to give direct orders to private parties and government officials, analysed under the rubric of “judicial command.” These ideas have had very different careers in the United States. Nice adjustment has faded, while judicial command has been embraced with enthusiasm. This article asks why.

Bray comments

The Earl of Oxford’s Case famously presents equity as a solution to the problem of exceptional cases. In an exceptional case, equity offers a moral reading of the law. In this moral reading—this appeal to Conscience — the chancellor could make a ‘nice adjustment’ to keep clever people from circumventing the law, from exploiting its inevitable gaps and ambiguities. Below the surface, The Earl of Oxford’s Case also shows another distinguishing trait of equity. Equity was willing to tell people what to do. The intricate history of this seventeenth-century case does not need to be recounted here, but it should be noted that the defendants in equity, the master and bursar of Magdalen College Cambridge, spent five weeks imprisoned in the Fleet for their refusal to submit to Chancery’s jurisdiction.  

In the centuries since The Earl of Oxford’s Case, equity has been received in the United States. That reception is the topic of this article. ‘Reception’ is used not only in the technical sense of adoption of a body of law as binding, but also in a looser sense: how has equity made its way in the United States? Particular attention is given to two ideas from equity: first, a small-scale moral reading of the law, analysed under the rubric of ‘nice adjustment’, and second, a willingness of courts to give direct orders to private parties and government officials, analysed under the rubric of ‘judicial command’. These two ideas have common premises and are subject to common criticisms. But their reception in the United States has been strikingly different. Nice adjustment has faded, while judicial command has been embraced with enthusiasm.

He concludes

What lies ahead for equity in the United States is not easy to predict. As the American baseball player Yogi Berra said, ‘It’s tough to make predictions, especially about the future.’ Nor is it easy to say what lessons should be drawn from the American experience with equity. One way to join prediction of the future with assessment of the past is to ask which of our existing beliefs about law should be revised in light of the American experience of equity. Here are several possibilities: 

1. Professional knowledge matters more than we thought, and what the law says matters less than we thought. There have been huge changes in the American practice with respect to these two ideas from equity, even though there has been essentially no change in relevant legal authority. 

2. Professional knowledge is more fragile than we thought, and more dependent than we thought on what is taught by the law schools and other institutions that transmit legal knowledge. 

3. There was once a vigorous argument among legal writers about whether equity needed to be special in order to be useful. On one side, some argued that getting rid of equity’s sense of separateness would bring its demise. On the other side, some said that was ridiculous: equity could offer its gifts to the legal system without being considered something special or distinctive. Now we know who was right. Step by step, the decline of equity’s distinctiveness has brought a corresponding decline in the knowledge and appreciation of equity. 

Relatedly, there may be an implication regarding the efforts to pare equity down to its unique essentials. If equity is to make a differentiated contribution to the law, it might need a certain scale, along with ample markers of distinctiveness. Perhaps it is only a larger, woolier equity that can fend off the predators. 

What lies ahead, and what lessons should be learned from what lies behind, depend on the knowledge of equity among future generations of American lawyers. If that knowledge continues to decay, then by the end of this century in the United States a book called Philosophical Foundations of the Law of Equity may seem as quaint as Philosophical Foundations of the Law of Mortmain. But if the knowledge of equity grows, that knowledge can be used: all of the legal authorities that make equity relevant are still there, waiting to be picked up by an enterprising lawyer.

'Modern Equity' by Emily L Sherwin in the same volume comments

In this essay, I examine the role that equity historically has played in moderating the outcomes of determinate legal rules in particular cases. The advantage of traditional equity was that its role within the legal system was subordinate relatively obscure, allowing courts to affirm the authority of rules while altering their consequences in particular cases. One of the objectives of American Legal Realism was to bring equitable principles to the forefront of law. I suggest that the transition proposed by the Realists may undermine the important compromise courts were able to strike through more traditional management of equity.

Speech, Reporting and Refugees

'Freedom of Speech under the Southern Cross—It Arrived and Departed by Sea?' by Wendy E. Bonython and Bruce Baer Arnold in (2018) The Round Table comments

Australian offshore processing of asylum seekers and others seeking to enter the country without authorisation has attracted substantive criticism for abuses of their human rights, particularly their mandatory detention in Australian-funded facilities located in Nauru and Papua New Guinea. Official and corporate disregard of the rights of Australians in dealing with those people—contrary to the official accountability that underlies the liberal democratic state—has attracted less attention. This article explores the offshore processing regime through an examination of how legislation that criminalises disclosure of information about mandatory detention is conceptually inconsistent with the freedom of political communication implied under Australia’s Constitution, and expected by Australian citizens. That legislation treats asylum seeking as a matter of national security rather than humanitarian law. It conflicts with the ethical obligations of health practitioners and others, and with Australian expectations about effective mandatory reporting intended to prevent abuse of children and other vulnerable people. It affects Australian and other officials, contractors, care providers, advocates, and journalists who deal with asylum seekers inside and outside Australia. Accountability and minimisation of harms to non-citizens can—and should—be achieved through an independent oversight mechanism reporting directly to parliament. 

Law is often a matter of conflicting values, interests, and rules. Freedom of speech and accountability (distinguishing features of the liberal democratic state), maintenance of sovereign borders (with the ability to exclude non-citizens), the protection of vulnerable people from harm, and respect for contract that restricts disclosure of information by employees are all governed by discrete bodies of law. Where those laws intersect in regard to Australian asylum seeker policy, tensions reflecting underlying values, interests, and rules become evident. This article explores those tensions by considering Australia’s offshore processing of refugees, particularly detention occurring in a privately operated facility on Nauru, a state that is formally independent but in practice heavily dependent on its Australian partner. Claims of sexual abuse, other violence, and self-harm at detention facilities are credible and concerning. Public discussion and investigation of those claims has been restricted through official disregard of access principles articulated in the national freedom of information statute, and more recently through ‘border protection’ law that criminalises unauthorised disclosure of information that is potentially relevant to both the exercise of human rights and the accountability of Australia’s executive. That border protection law co-exists uneasily with legal and ethical obligations binding professionals, including health and social workers and educators, to mandated reporting of child abuse. It also collides with the freedom of political communication that is discerned by Australia’s High Court in interpretation of the national constitution. 

The article begins by considering Australia’s recent history regarding exclusion of asylum seekers, an exclusion marked by public policy rhetoric about national security and existential threats to the state requiring both militarisation of border policing and restrictions on reporting about that policing. The rhetoric has culminated in establishment of the Australian Border Force within a national Department of Immigration and Border Protection, along with passage of the Australian Border Force Act 2015 (the ‘border protection law’) and associated Secrecy and Disclosure Rule. 

The article then considers Australia’s weak constitutional protection for dignity, official accountability, and public participation, in particular regarding an implied freedom of political communication rather than broader freedom of expression and the absence of a recognised ‘right to know’. It notes that the secrecy regime is inconsistent with the freedom of political communication that Australian citizens working as contractors or Australian government employees at Nauru or Papua New Guinea should enjoy in informing the Australian and international communities on matters of public interest. It identifies ethical and statutory obligations of health professionals and other individuals to support asylum seekers, in particular by reporting specific and systemic abuse, but identifies inconsistencies in the effectiveness of that reporting, likely to be further entrenched by the Border Force secrecy provisions. Secrecy provisions criminalising the dissemination of information about the mistreatment of vulnerable people impermissibly reduce the accountability of the Australian government and its agents, irrespective of whether that mistreatment occurs within Australia or in a client state. 

The article concludes by suggesting an alternative model of reporting that would be consistent with international obligations and assuage political concerns regarding national security whilst fostering public confidence in the transparency and lawfulness of government action regarding Australia’s asylum seeker policy.

Faith

The 'Great Beast' (or great fraud) Aleister Crowley reappears yet again.

In Bottrill v Sunol (Discrimination) [2018] ACAT 21, dealing with the latest dispute over the Ordo Templi Orientis (OTO), the ACT Civil and Administrative Tribunal considers what is a 'religion' and thus potentially covered under vilification regimes. There had been earlier appearances in eg Ordo Templi Orientis v Legg (Anti Discrimination) [2007] VCAT 1484 and Bottrill v Sunol & Anor (Discrimination) [2017] ACAT 81

The OTO had been characterised as a satanic cult that featured child sacrifice.

The Tribunal comments

Statute

In the dictionary of the Discrimination Act the following definition occurs

religious conviction includes— 

(a) having a religious conviction, belief, opinion or affiliation; and 

(b) engaging in religious activity; and 

(c) the cultural heritage and distinctive spiritual practices, observances, beliefs and teachings of Aboriginal and Torres Strait Islander people; and 

(d) engaging in the cultural heritage and distinctive spiritual practices, observances, beliefs and teachings of Aboriginal and Torres Strait Islander peoples; and 

(e) not having a religious conviction, belief, opinion or affiliation; and 

(f) not engaging in religious activity. 

Cases 

In Church of the New Faith v Commissioner of Pay-Roll Tax (Vict.) (1983) 154 CLR 120,(the Scientology case), the High Court found that Scientology was a religion and canvassed the varying criteria that might be sufficient to satisfy that description. There were three separate decisions and the tests were not exactly the same. Mason ACJ and Brennan J said at [17]:

...for the purposes of the law, the criteria of religion are twofold: first, belief in a supernatural Being, Thing or Principle; and second, the acceptance of canons of conduct in order to give effect to that belief, though canons of conduct which offend against the ordinary laws are outside the area of any immunity, privilege or right conferred on the grounds of religion. Those criteria may vary in their comparative importance, and there may be a different intensity of belief or of acceptance of canons of conduct among religions or among the adherents to a religion. The tenets of a religion may give primacy to one particular belief or to one particular canon of conduct. Variations in emphasis may distinguish one religion from other religions, but they are irrelevant to the determination of an individual’s or a group’s freedom to profess and exercise the religion of his, or their, choice. (emphasis added)

At [23] it was said not to be limited to theistic religions and the test of religious belief was satisfied by belief in supernatural ‘Things’ or ‘Principles’ and not to limited to belief in God or in a supernatural ‘Being’. 

Wilson and Deane J gave similar but not identical tests and said at [18]:

One of the more important indicia of a religion is that the particular collection of ideas and/or practices involves belief in the supernatural, that is to say, belief that reality extends beyond that which is capable of perception by the senses. If that be absent, it is unlikely that one has a religion. Another is that the ideas relate to man’s nature and place in the universe and his relation to things supernatural. A third is that the ideas are accepted by adherents as requiring or encouraging them to observe particular standards or codes of conduct or to participate in specific practices having supernatural significance. A fourth is that, however loosely knit and varying in beliefs and practices adherents may be, they constitute an identifiable group or identifiable groups. A fifth, and perhaps more controversial, indicium (cf. Malnak v. Yogi [1979] USCA3 125; (1979) 592 F (2d) 197 is that the adherents themselves see the collection of ideas and/or practices as constituting a religion.

They also said at [19]:

As has been said, no one of the above indicia is necessarily determinative of the question whether a particular collection of ideas and/or practices should be objectively characterized as a religion. They are no more than aids in determining that question and the assistance to be derived from them will vary according to the context in which the question arises. All of those indicia are, however, satisfied by most or all leading religions. It is unlikely that a collection of ideas and/or practices would properly be characterized as a religion if it lacked all or most of them or that, if all were plainly satisfied, what was claimed to be a religion could properly be denied that description. Ultimately however, that question will fall to be resolved as a matter of judgment on the basis of what the evidence establishes about the claimed religion. Putting to one side the case of the parody or sham, it is important that care be taken, in the exercise of that judgment, to ensure that the question is approached and determined as one of arid characterization not involving any element of assessment of the utility, the intellectual quality, or the essential Truth or worth of tenets of the claimed religion.

In Harrison and Commissioner for Social Housing in the ACT and Minister for Community Services and Minister for Aboriginal and Torres Strait Islander [2012] ACAT 10 at [50] it was said:

There is no definition of the phrase in the Discrimination Act 1991. The word conviction is used in this context in its ordinary meaning - to indicate a settled or strongly held belief.

In fact, there is a definition as set out above for religious conviction and it is much wider. 

Conclusion about religious conviction 

The test is wider than that explained in the Scientology case as it extends to non-belief. No doubt atheism was intended to be covered. Thus, the element of the supernatural is not essential. On the undisputed evidence in this case the OTO did satisfy the criteria described in the Scientology Case and the applicant had a conviction based on its teachings. If the crimes attributed to the applicant and OTO in the blog complained of were true, it would be likely that it would not be regarded as a religion as they would constitute: ...canons of conduct which offend against the ordinary laws are outside the area of any immunity, privilege or right conferred on the grounds of religion

Chipper

No great surprises in the report that Meow-Ludo Disco Gamma Meow-Meow has been unsuccessful after brouhaha over his bodyhacking of a Transport for NSW (TfNSW) travel card.

Mr Meow-Meow was noted here, here and in a piece for The Conversation.

TfNSW had taken action against him for not using a valid  ticket (using public transport without a valid ticket and for not producing a ticket to transport officers).

Despite hyperbole about 'cyborg rights' (does everyone with a stent, a pacemaker or joint implant count as a cyborg?),  he today pleaded guilty to both offences at Newtown Local Court.

The ABC reports that  Mr Meow-Meow

was fined $220 for breaching the Opal Card terms of use and was ordered to pay $1,000 in legal costs. 

The lawyer representing Mr Meow Meow argued that transport legislation had advanced to include methods of contactless payment through MasterCard and some smart phones. He said that the law should adapt to all available technologies including implantable tech. 

But Magistrate Michael Quinn said, while the legislation may catch up with technology in the future, the law of the day must be followed. 

Outside court, Mr Meow Meow said he was disappointed both offences were not dismissed and that he was ordered to pay legal costs. 

Despite the decision, Mr Meow Meow said he would continue to experiment with implanted technology. He said he was planning to push the boundary even further, replacing his Opal chip with one that will hold all of his personal information, including credit cards and memberships. 

DIY unauthorised modification of credit card and membership cards will breach the terms and conditions of his account with the credit card providers, so he can expect to see those businesses restricting or cancelling the relevant accounts.

Carceral Theory

Liberal to Carceral Feminism' by Karen Engle in Janet Halley, Prabha Kotiswaran, Rachel Rebouché and Hila Shamir (eds) Governance Feminism: Notes from the Field (University of Minnesota Press, 2018) comments 

Feminist legal theory came to international law and discourse later than it came to many other legal fields. It primarily emerged in international human rights where, in a surprisingly short amount of time, it went from being extremely marginal to relatively mainstream. Not unrelatedly, it has primarily grown, and also developed significant influence, in the doctrinal areas of international humanitarian and criminal law. This piece, written as a chapter in a book on governance feminism, chronicles the trajectory of feminist engagement with international law, paying special attention to how both feminisms and feminists have played governing roles in its development and operation.

The chapter provides an account of three distinctive feminist approaches to women’s human rights that developed from the mid-1980s through the mid-1990s. Each of the three approaches is identified according to its distinctive concern: liberal inclusion, structural bias, and the Third World, respectively. During the early period of feminist engagement, these approaches variously competed, complemented, and exchanged with each other in the push for a feminist foothold in human rights law. But the end of the Cold War, a compromise around “culturally sensitive universalism,” the emergence of a preoccupation with sexual violence in conflict, and the pursuit of criminal law as the primary response to it all ultimately functioned to favor a strand of structural bias feminism focused on female sexual subordination and to suppress and sideline the other feminist critiques, especially their material dimensions.

Tracing this genealogy, the chapter calls into question a dangerous common sense about sexual violence in conflict, a common sense that bears upon culture, sex, economic distribution, and criminalization, and that still dominates human rights law and discourse today. It seeks to motivate a return to, and reevaluation of, other possibilities of feminist critique that were left by the wayside when the structural bias critique prevailed, and when sexual violence and carceral responses became central to feminist approaches to human rights law.