Trusts

'The Common Law and Taxation of Trusts in Australia in the Twenty-First Century' by Alexander Robert Fullarton from 2001 argues that

the concept of the ‘trust’ held for over a thousand years under the British legal system is drawing to a close. Education and Legislation is heralding the demise of that ancient and noble institution in the Australian context. The Paper puts forward various alternatives and solutions to the identified problems. 

The term ‘trust’ by definition expresses honour, reliance, justice and friendship. It implies an honourable relationship under which the property of one, the beneficiary, is placed in the control of another, the trustee. The Knights and Barons of Medieval England did not trust their descendants to manage their titles in a favourable fashion but suspected they would slowly but surely allow the decay of property that the barons had fought long and hard to establish. Various types of trust have come to be recognised in modern law. 

In modern times the focus of trusts has shifted somewhat from the preservation of property to the alienation of income and hence taxation. Australian taxation law has continued to attempt to tax the income and property of these trusts with varying degrees of success. Series of Australian Governments have enacted and proposed legislation to pierce the trust structure and tax the income in the hands of the beneficiaries. Where the beneficiaries cannot be taxed the trustee is responsible for the tax. 

For trading purposes trusts are no longer the optimum business structure. The previous taxation benefits of income splitting (and thereby reducing individual taxation burdens) are coming to an end. Trust income arising from personal exertion, whereby income earned by an individual is attempted to be transposed into earnings of a trust, has been vigorously attacked in recent years. The problem is that it is difficult to distinguish between a ‘genuine purpose’ and a ‘tax avoidance one’. 

As beneficiaries are becoming more legally aware they realise the property of their parents has been transferred to them. Parents are being faced with either having to relinquish ownership and control of ‘their’ property or admit that the structure is simply a means of avoiding tax.

Fullarton's suggested 'outcomes' are -

Constitutionally, the Australian Federal Government does not have power to legislate with respect to Trusts other than indirectly by way of matters arising to the taxation implications. The legislative power over Trusts remains in the hands of the States. However a brief history of successive transfer of legislative power from the States to the Commonwealth government indicates that a Federal ‘Trusts Act’ may be inevitable. The Labor Whitlam Government started the Federal Government down the road of ‘centralisation’. The company’s legislative impasse clearly demonstrates the frustration with which successive Federal Governments have been plagued. The problem began with the High Court decision in 1908 in the Huddart Parker and Co Pty Ltd v Moorhead case and has not yet been resolved with the introduction of uniform company’s legislation despite continual attempts over ninety years. From the outset of Federation, the Commonwealth of Australia was envisaged as a servant of the States. The enactors of the Constitution deliberately limited the powers of the Federal Government such that the States would retain sovereignty and control over all matters other than those specifically handed over to the Commonwealth. Clearly there were matters that in the national interest, a central authority was better able to co-ordinate. For the purposes of uniformity, defence, navigation, currency, quarantine, foreign policy and other like matters were placed in the hands of a ‘central authority’. Almost immediately clashes and faults began to appear in the intent and the legal enforcement of the Constitution. The decision of the Huddart Parker and Co Pty Ltd v Moorhead case demonstrated what can happen if rules are followed to the letter and if lawyers argue issues line-by-line and word-by-word. The matter of the Commonwealth power to levy income tax is itself a pivotal point in Australian legal history and arguably the subject of voluminous debate. Discussion of this point is outside the scope of this paper but it is important to note briefly the essential elements by which the ITAA 1936 came into existence, its continuance and the ramifications thereof. ...

It is established that once the States hand over sovereignty or authority to the Federal Government they will never retrieve them. Much debate and many cases have been fought over the matter. That debate is also outside the scope of this paper but is mentioned in order to establish the direction that Commonwealth Legislation is likely to take.

At the core of legislative direction is the Commonwealth’s new found desire to control the States absolutely. Some commentators would argue that the desire is hardly new and has existed since the 1880’s. Conspiracy theorists would have us believe that the dissolution of State Governments absolutely is the ultimate aim of the Federal Government. Whatever the truth of that thought or ultimate plan, if indeed one exists, the title of Father of Australian Centralisation almost certainly goes to Edward Gough Whitlam, Prime Minister of Australian from 1972 until his dismissal on November 11th 1975. ...

It was that knowledge and awareness of the ‘shortcomings’ of the Constitution that brought him to the answer of the conundrum of ‘how can the Commonwealth with its powers limited by the Constitution, control the States and by force if necessary?’ The solution to the problem was to use the Federal constitutional powers over foreign policy. The Federal Government under its foreign policy powers simply executed international agreements which became ipso facto binding on the States. World Heritage and Fishing agreements, United Nations charters and policies set the starting point for the slow but certain wresting of control from the States to the Commonwealth. Consecutive governments were not as blatant as the Whitlam Government but none of Whitlam’s agreements were ever rescinded. On other occasions the Commonwealth has resorted to stealth or outright blackmail. The population of Australia may have thought the Whitlam era was over and history would never repeat itself. History has a nasty habit of repeating itself and the Howard Government is actually succeeding in areas where Whitlam didn’t venture, maybe he didn’t have time.

Successes of centralisation of power by the Howard Government are typified by the issues outlined below:- Gun control - Through the use of the ‘Port Arthur Massacre’ the government used the emotive opportunity to bring in uniform and ‘acceptable firearms controls’. The term acceptable meant acceptable to the Commonwealth.

Many States and their populations disagreed, for example in Western Australia, which had it own effective firearms legislation, or the Northern Territory and Queensland which had none, but saw rampaging gunmen as a city problem. This was achieved as a result of the removal of the powers to raise income tax as discussed above. The States were then left at the mercy of the ‘. . . Commonwealth by the threat of a loss of Commonwealth grants.’

It is alleged in 2006 that statistics of crimes involving firearms have been unaffected by the introduction of the gun control measures from the trend prior to such legislation. That outcome is outside the scope of this paper however the relevant element is the inevitable drift in legislative control from the States to the Commonwealth government.

Tied financial grants - The financial control over the States through the use of Section 96 of the Constitution has become a greater and greater weapon for the Commonwealth in its bid to control the States. As the power to tax is shifted from the States to the Commonwealth the States become more reliant on the benevolence of the Commonwealth for funding. Section 96 was not written with the intent that its use would ultimately serve as a weapon to destroy the States.

No one could have envisaged the transfer of taxes to the Commonwealth that has taken place over the past hundred years but that is the outcome. Section 96 has been drafted in such open terms that the Commonwealth ‘. . . may grant financial assistance to any State on such terms and conditions as Parliament thinks fit.’ Section 96 was used blatantly to force the States to comply or have funding withheld. 

Native title issues - The Commonwealth does not have any authority over land administration or titling. The Commonwealth has the right to acquire land on just terms, or to make special laws for the people of any race.149 It does not however have the power to dictate as to the alienation, encumbrances and transfers of Crown land. That is the province of the States as ex-colonies and founding members of the Commonwealth.

Through the 1967 referendum and the Mabo legislation the Commonwealth is imposing its will on the States to accept ‘Native Title’. Some States and chiefly Western Australia are opposing the Commonwealth on this issue but there is no doubt that despite all argument to the contrary, the Commonwealth will succeed. The all consuming power of Section 96 will overcome any obstacles in this regard.

Revenue and licensing of alcohol, tobacco and fuel - A clever ruse that reinforced Commonwealth powers under section 90 of the Constitution, a gain by stealth rather than an exercise of legal powers. The writer is an ex-quarantine officer of the Commonwealth Health Department and as such is aware that it was common knowledge amongst Commonwealth Quarantine and Customs officers that the control and collection of monies by the States as taxes on alcohol, fuel and tobacco was unlawful. The Constitution forbids the levying of duties by the States which is expressly a province of the Commonwealth.  The Commonwealth by way of duties and excises taxes alcohol, tobacco and fuel. For over sixty years the States also taxed those products by way of licenses based on sales. It was a comfortable but not always popular arrangement. Though many lawmakers and enforcers knew of the illegality, all chose to ignore it as it gave the States a degree of financial independence.

In 1994 and 1995 two duty free store owners in New South Wales, went out of business. The matter would have achieved no further significance had it been left to lie at that. However a curious legal challenge was to unfold. For some unknown reason a pilot was arrested for ‘smuggling’ tobacco from Norfolk Island to New South Wales. The ‘smuggling’ practice was so well organised that purpose-built transport aircraft were used for the regular deliveries.

That Customs became involved in the incident is mystifying as the practice had existed for many years. The owners of the aircraft successfully defended the charge as the tobacco was simply being transported between States and not imported into Australia for the first time. That the complex system of importation and transportation was in place to avoid duty is irrelevant, the practice was lawful.

By coincidence, the owners of two duty free stores became embroiled in an action with the New South Wales government over the State levies by way of licensing. Legal representatives for the parties became aware of the importation case and took action in the High Court to have the convictions for the breaches of the Business Franchise Licenses (Tobacco) Act 1987 (NSW). Though the verdict was contrary to precedents set in Dickenson’s Arcade Pty Ltd v Tasmania (1974); Dennis Hotels Pty Ltd v Victoria (1960); Philip Morris Ltd v Comr of Business Franchises (Vic) (1989); Capital Duplicators Pty Ltd v Australian Capital Territory (No2) (1993), it was held that the State could not impose such levies and that they constituted an excise provided by S 90 of the Constitution. 

The difference being the manner in which the licenses had been based, in New South Wales the fee was based entirely on the total value of sales rather than a set license fee basis and therefore found to be a tax. The only action the New South Wales government had to take was to let the action stand ignore the lost revenue and reset its licensing system back to levels successfully held in the Dickensons and other cases. There the matter may have lay undisturbed for another sixty years but in an interesting political move the Howard, Liberal Government encouraged the Carr, Labor Government to allow the matter to go before the full bench of the High Court even though the plaintiffs’ summons for reference to the Full Court had been dismissed by Kirby J. The Howard Government even financed the legal challenge as under S 96 of the Constitution the Federal Government can grant financial assistance as it thinks fit. Surely the Carr Government should have been aware of ‘Greeks Bearing Gifts’. The outcome was obvious to even the most inexperienced of constitutional law students. The Carr Government was soundly beaten and the State taxation issue sent into disarray. The Howard Government enacted legislation to tax alcohol, tobacco and fuel to provide collections through Federal treasury. The guise is that the tax will be collected on behalf of the States. In fact the States were collecting their own revenue and then became even more dependant on the benevolences of the Federal Government and S 96.

The reader may well wonder what those examples have to do with the future legislation of Trusts. All of the foregoing cases are examples of deliberate and progressive moves to shift control and sovereignty from States to the Commonwealth. By concentrating on one area and then the next, the Commonwealth has managed to extend its control and influence way beyond those powers prescribed in the Constitution.

Many of the above events and other political moves, culminating in the introduction of the GST legislation, will be the final nail in the States’ coffins. Without an independent source of revenue the States are now at the mercy of the Commonwealth. The GST revenue - sharing arrangement with the States is by no means final and binding.

The overwhelming power of S 96 can be used at any time to counter any moves of financial independence and GST rates can be altered. The disparity of fuel pricing between the States particularly that of Western Australia to Queensland is a clear indicator that the States must comply with Federal wishes if they are to satisfactorily finance their maintenance and construction projects. On the other hand if the Western Australian and Queensland 2001 election results can be used as a yardstick, the electorate will have their revenge at the forthcoming Federal election. Australia may not be a true democracy in that the choice of governing group is limited to one of two political parties. The Howard government can take little solace from the alternative being the relatively discredited Labor Party. The Liberal party will not be forming the governing party after 2001.

The authority over Trusts is currently in the hands of the State, but once the new entity taxing legislation is enacted, it will only be a matter of time before power over Trusts is handed over to the Commonwealth, as a matter of uniformity, convenience or duplicity of powers. That the States cannot wrest back powers granted to the Commonwealth is an historical fact. Interestingly the Western Australian experience demonstrates that once Federation was achieved, and the Constitution enacted, the option of withdrawing from the Commonwealth has also been closed to the States.

Historically, there is no doubt that the Howard Government will meet its demise at the very next Federal election.  There is also no doubt the successive Federal Governments will not reverse the trend towards centralisation. The move to entity taxation will eventually see the demise of the Trust, an institution that survived a thousand years are was one of the pinnacles of British law. Trusts may continue to be used for some of the purposes originally conceived that of the dispersal of estates and the like, but as a taxation vehicle the days of the Trust are all but over. The writer predicts that eventually Commonwealth legislation will supersede the State legislation relating to Trusts.

The effect of centralised legislation will be that trust legislation will more closely resemble current New South Wales and Victorian legislation than Western Australian legislation. Past experience and historical fact dictate that the majority of Parliamentarians are influenced by New South Wales and Victoria as they are the main population bases of Australian Society. The legal attitudes of the Federal Government tend to reflect those facts rather than the desire to seek more acceptable alternatives. The fears held by the smaller States that Federalisation would eventually come to mean domination by New South Wales and Victoria will become a reality. It is suggested that the prudent practitioner begin studying New South Welsh and Victorian legislation if he/she is to remain conversant with trust legislation.

It is also likely that the changes to the taxation of trusts will eventually render them to antiquity for business purposes. Many foreign uses of trusts exist and are formed purely for use as tax avoidance vehicles. These foreign trusts are widely promoted by newly formed ‘Tax Havens’. Many of these are ex-British protectorates or colonies such as Vanuatu, the Cook Islands and the British Virgin Islands. These countries promote tax avoidance as a commercial enterprise and have legislated accordingly. The promotion as use of such trusts is becoming more and more prevalent as the use of the Internet and e-commerce grow with the ever expanding use of computer technology. Such trusts are mentioned as alternative future directions of trust law in an international sense, the study of which is extensive and outside the scope of this paper.

Names and Identity Acquisition

Samuel R Delany's 'Coming/Out' in his writes Shorter Views: Queer Thoughts and the Politics of the Paraliterary (Wesleyan University Press, 1999) comments

In the twenty-seven years since the 1969 Stonewall riots, "coming out" has acquired extraordinary significance in the gay community—so much significance that many of us might even say coming out "defines" the difference between being gay and an older, pre-gay notion of being homosexual. Through much of that quarter-century-plus, when, if you hadn't "come out of the closet," many gay men and lesbians felt you had somehow betrayed them, that you couldn't really "define yourself as gay," that you had not "accepted your gay identity," I found myself faced with a paradox: Much of my critical enterprise over that same period had been devoted to showing that such "defining" or "identifying" events (when, as a reader, you first became aware of science fiction; when, as a child, you realized you were black, gay, or an artist) simply did not "define" anything. 

In the gradual, continual, and constantly modulating process of be¬ coming who we are, all events take their meanings, characteristic or un¬ characteristic, from the surrounding event field in which they occur. While certainly they contribute to what we are or are becoming, single events simply do not carry the explicative strength "definition" and "identity" denote. This is not to say some events aren't more important than others. ... 

It's a philosophical paradox: 

Differences are what create individuals. Identities are what create groups and categories. Identities are thus conditions of comparative sim­ plicity that complex individuals might move toward, but (fortunately) never achieve — until society, tired of the complexity of so much individ­ ual difference, finally, one way or the other, imposes an identity on us. 

Identities are thus, by their nature, reductive. (You do not need an identity to become yourself; you need an identity to become like someone else.) Without identities, yes, language would be impossible (because categories would not be possible, and language requires categories). Still, in terms of subjects, identity remains a highly problematic sort of reduction and cultural imposition

'Social Rites of Marriage' by Suzanne Kim and Katherine Thurman in (2016) 17 Georgetown Journal of Gender and the Law 745 comments

The legal consequences for same-sex couples who have married — and for couples who will do so after the historic Obergefell v Hodges decision — are numerous and profound. As legal rhetoric and scholarly research on marriage suggest, however, the social dimension of marriage — apart from its concrete legal benefits — is deeply significant. Despite what we understand about the law’s impact on people’s lives and people’s influence on legal institutions, scholars know surprisingly little about the ways in which same-sex couples socially experience legal marriage. This is all the more pressing, since marriage equality is now a reality in all US states. 

This analysis, part of an exploratory study that examines the intersection of law and the social domain in the context of same-sex marriage, begins to fill a critical gap in socio-legal literatures on marriage and formal recognition of same-sex relationships. We discuss here early themes emerging in this research, based on qualitative interviews and surveys with married same-sex couples, part of a project that provides one of the first scholarly overviews post-Obergefell of negotiation of gender norms in same-sex marriage in daily life. 

Modes of self-presentation (like relationship terms and last name practices), which comprise the focus of this paper, provide a window onto the interplay of legal status, social norms, concepts of tradition, and gender. They also reveal a diverse picture of transitions to formal legal recognition in the context of longstanding, and continued, discrimination against LGBTQ communities. We situate early findings in relation to deeper questions about relationships between marriage, hierarchy, and gender, as well as about intersections of legal and social recognition.

Eugenics and Reparation

'California’s Sterilization Survivors: An Estimate and Call for Redress' by Alexandra Minna Stern, Nicole Novak, Natalie Lira, Kate O’Connor, Siobán Harlow and Sharon Kardia in (2017) 107(1) American Journal of Public Health 50-54 comments

From 1919 to 1952, approximately 20 000 individuals were sterilized in California’s state institutions on the basis of eugenic laws that sought to control the reproductive capacity of people labeled unfit and defective. 

Using data from more than 19 000 sterilization recommendations processed by state institutions over this 33-year period, we provide the most accurate estimate of living sterilization survivors. As of 2016, we estimate that as many as 831 individuals, with an average age of 87.9 years, are alive. 

We suggest that California emulate North Carolina and Virginia, states that maintained similar sterilization programs and recently have approved monetary compensation for victims. We discuss the societal obligation for redress of this historical injustice and recommend that California seriously consider reparations and full accountability.

They state

In 1926, Marsha (all names are pseudonyms) was admitted to the Sonoma State Home in California and recommended for sterilization because of her IQ score of 56, which placed her in the category of “low moron [sic]”. Given this diagnosis and because she was “sly, profane, [and] obstinate,” the medical superintendent determined that Marsha was “dangerous to public health” and, therefore, should be sterilized. Marsha was but one of approximately 20 000 people affected by a law passed in 1909 that authorized such reproductive surgery on patients committed to state homes or hospitals and judged to be suffering from a “mental disease which may have been inherited” and was “likely to be transmitted to descendants.” 

On the books until 1979, this statute provided the legal framework for the most active sterilization program in the United States. California’s sterilization law authorized medical superintendents to perform the operation without consent. Nevertheless, institutional authorities did seek written consent from a family member or legal guardian when possible, probably as a result of liability concerns. Yet, the prison-like environment of state institutions during this era raises serious questions about the validity of the consent process. Notably, sterilization was a prerequisite for release from some institutions. 

Confirming genuine consent is complicated because signatures, dates, and names on consent forms are often inconsistent with information in patient records. The documents themselves do not always record when or whether the operation was actually performed. In addition, we identified multiple efforts by families and patients themselves to prevent sterilization. Although some sterilizations may have been performed with the signed consent of a parent or guardian, these procedures did not meet the standards of voluntary consent, and in many cases people were sterilized against their will. Although California was the most aggressive sterilizer, information about the likely number of living victims is scant because of the paucity of large-scale data sources and the silence of the victims themselves. 

As of 2016, we estimate that as many as 831 patients sterilized in California institutions are alive today. Producing this estimate is one facet of a larger interdisciplinary project devoted to demographic and historical reconstructions of eugenics and sterilization in California. Given public health’s commitments to social and reproductive justice, we believe that public health offers a useful lens for coming to terms with this past injustice. By providing the most rigorous estimate of sterilization survivors in California to date, we hope to spark a conversation about potential opportunities for recognition and redress.

They go on to note that

Human rights and legal scholars have debated instances of injustice that merit more than a simple apology, such as slavery, internment, and genocide. The ethical principles that one legal scholar provides for determining when society is obliged to provide redress to a group of people include that “a human injustice must have been committed” and that said injustice “must be well documented.” In 2003, California officials publicly apologized for the state-run sterilization program, acknowledging the thousands of surgeries as a human injustice. In addition to state counts of the number of sterilizations, our data and archive include official records and requests that fully document the sterilizations and the biased eugenic logic used to justify them. Given the principles outlined by legal scholars guiding “meritorious redress claims,” the state’s own admission of injustice, and the documented impact of sterilization on people with disabilities and from poor backgrounds, it is reasonable to conclude that what happened in California warrants more than a public apology, especially given the state’s high sterilization numbers. Guided by our estimate of the number of living sterilization survivors, we suggest that California emulate its sister states, North Carolina and Virginia, and launch monetary compensation programs for victims. Both North Carolina and Virginia have created agencies (the North Carolina Office of Justice for Sterilization Victims and the Virginia Eugenical Sterilization Act Compensation Program) to process and adjudicate claims for compensation, which were set at $20 000 and $25 000, respectively. Recent efforts in these two states underscore the merit of compensating individuals who have experienced state-sanctioned reproductive injustice. In 2013, after years of organizing by sterilization survivors and supportive legislative officials, North Carolina, which sterilized approximately 8000 people in the 20th century, passed a law to compensate victims. North Carolina’s State Center for Health Statistics used life table methods similar to our own to estimate that there were as many as 2944 living survivors of the North Carolina Eugenics Board’s sterilization program in 2010 (although adjustment for lower life expectancy among groups targeted for sterilization reduced the final estimate of survivors to 1500–2000). Although North Carolina performed fewer total sterilizations than California, its estimate of living survivors is higher because eugenic sterilizations occurred more recently, well into the 1960s.

A $10 million fund was appropriated to correspond to the number of victims deemed eligible for compensation. The state’s Office of Justice for Sterilization Victims required that victims be alive on June 30, 2013, and it accepted claims through June 30, 2014. The state approved 220 of 768 claims and sent out $20 000 checks to verified claimants. The legislation required proof that the procedure was approved by the North Carolina Eugenics Board, and thus some individuals sterilized by private physicians, even those with eugenic intent, were ineligible for compensation. A bill proposed in the state legislature earlier this year would make additional reparations available to some of these victims. In Virginia, where about 7600 people were sterilized in state institutions during the 20th century, the Christian Law Institute pushed for legislation, established the Justice for Sterilization Victims Project, and lobbied the legislature for monetary compensation following the example of North Carolina. The number of survivors in Virginia was estimated to be approximately 1500 on the basis of North Carolina’s calculation that approximately 20% of initial victims had survived to the present day. In 2015, the state set aside $400 000 to compensate survivors with awards of approximately $25 000 each. The Virginia Eugenical Sterilization Act Compensation Program required that victims be alive on February 1, 2015, and the program continues to accept claims.

One concern in both states has been whether receipt of reparations would count toward individuals’ income and make them ineligible for federal programs such as Medicaid or the Supplemental Nutrition Assistance Program. A bill recently passed in the US House of Representatives would ensure that state-level eugenics reparations do not interfere with the benefit eligibility of this aging and vulnerable population. While North Carolina and Virginia were organizing compensation programs, a new episode of sterilization abuse emerged in California, this time among women incarcerated in state prisons. A 2013 Center for Investigative Reporting article revealed that, between 2006 and 2010, close to 150 unauthorized sterilizations were performed in California prisons. In response, Senator Hannah-Beth Jackson requested an investigation by the California state auditor that corroborated and expanded the article’s findings, showing that 144 women were sterilized without adherence to required protocols.

Prejudices expressed by Dr. James Heinrich, the physician who performed many of the tubal ligations, were particularly revealing. He told a reporter that the money spent sterilizing inmates was negligible “compared to what you save in welfare paying for these unwanted children — as they procreated more.” This callous attitude toward the reproductive lives of institutionalized women, the majority low-income women and women of color, echoed earlier eugenic attitudes. In the 1930s, at the height of eugenic sterilization, California’s health officials repeatedly asserted that, in addition to its therapeutic value, sterilization would relieve the state of the economic burden of “defectives” and their progeny.

Senator Jackson connected the prison sterilizations to California’s past when she stated that “pressuring a vulnerable population—including at least one instance of a patient under sedation[—]to undergo these extreme procedures erodes the ban on eugenics.” This recent news and Senator Jackson’s comments point to the importance of recognizing the long history of sterilization abuse involving vulnerable individuals in California.

'Following in North Carolina's Footsteps: California's Challenge in Compensating its Victims of Compulsory Sterilization' by Katherine A. West (2013) 53 Santa Clara Law Review 301 notes

In the 1940s, physicians at the Sonoma State Hospital sterilized Charlie Follett, a fourteen-year-old boy placed in the institution because his parents were alcoholics and unable to care for him. Neither hospital officials nor physicians informed Follett of the procedure he was to undergo. Even worse, Follett did not consent to the operation. According to a CNN interview with Follett, a hospital official brought Follett into the hospital, told him to lie down on an operating table, and gave him a shot to “deaden [his] nerves.” Follett next remembered hearing a “snip, snip”—the sound of him being sterilized. In May 2012, Follett passed away, sixty-seven years after his sterilization operation; he had no remaining family. 

Follett was but one of an estimated 20,108 Californians involuntarily sterilized by the state of California under its eugenic sterilization law. To this date, California has not provided health care services or compensation to its victims of sterilization. State representatives simply issued apologies in 2003 expressing the state’s “profound regret.” 

California is not alone in its history of eugenic sterilization. Beginning in 1907, the United States sterilized roughly 60,000 individuals without their consent. Thirty-two states in total passed eugenic sterilization laws in an attempt to rid the nation of defectives unfit to reproduce and to promote “human betterment.” These state sterilization programs authorized the involuntary sterilization of individuals labeled feebleminded, promiscuous and insane, and targeted those with epilepsy, alcoholism, and syphilis. Proponents of sterilization argued that sterilizing these individuals would cure America’s social ills. State-run sterilization programs continued into the 1970s, with some states maintaining their sterilization laws on the books into the 1980s. Currently, few states have taken action to redress the harm their sterilization victims suffered. Only seven states, including California, have issued apologies recognizing the wrong suffered by their sterilization victims. The remainder of the nation’s victims remain unrecognized.  

North Carolina and its eugenics program recently entered the national spotlight with talks of compensating its estimated 1500 to 2000 living victims. In January 2012, the North Carolina Governor’s Eugenic Compensation Task Force proposed that the North Carolina legislature compensate each living victim with a $50,000 lump sum. In addition, the Task Force recommended that the state offer mental health services for living victims and fund a traveling North Carolina Eugenics Exhibit. In June 2012, the North Carolina state legislature considered the Task Force’s recommendations. The North Carolina House of Representatives approved the legislation; however, the state senate rejected the Task Force’s compensation plan. Had North Carolina adopted these measures, it would have been the first state to compensate its victims of forcible sterilization. While North Carolina contemplated compensating its sterilization victims, eyes turned toward California, the most egregious offender in the nation’s shameful eugenic past. California performed one-third of the total sterilization operations in the nation, more than twice as many sterilizations as its “nearest rivals.” Will California follow North Carolina’s example and consider compensating its living victims? In this Comment, I discuss the challenges California faces in compensating its sterilization victims. Unlike North Carolina whose numbers of sterilizations rose after 1950, California’s sterilization program died down after 1952, meaning a large number of California’s victims are most likely no longer living. In addition, the state will face challenges locating victims and encouraging them to come forward in spite of the shame they may feel. 

Part I of this Comment explores the background of the nation’s eugenics history, focusing particularly on California’s sterilization program. Part II discusses the end of the state eugenic programs and outlines state measures taken to redress victims. Part III analyzes the case for compensation, exploring why states should consider compensating victims of involuntary sterilization. In addition, Part III discusses North Carolina’s approach to the issue. Part IV analyzes California’s challenges in compensating its victims, looking specifically at the number of possible living victims and the difficulties the state will face in locating them. Lastly, Part V examines California’s options and moral obligations, proposing that California should compensate its sterilization victims regardless of how few may be alive and the difficulties the state faces locating victims. I further propose that California should commission a task force to determine the amount of money and type of services it should provide survivors.

Judicial Associates

'The Power Of The Judicial Assistant/Law Clerk: Looking Behind The Scenes At Courts In The United States, England And Wales, And The Netherlands' by Nina Holvast in (2016) 7(2) International Journal For Court Administration comments

Although largely invisible to the public, behind the scenes, judicial assistants/law clerks frequently play a vital role in the process of adjudication. Yet, especially outside of the U.S., little is known about their role and duties in the judicial decision-making process. This article provides insight into the organization of the employment and the duties of judicial assistants in three different jurisdictions: the U.S., England and Wales, and the Netherlands. In particular, this article aims to gain an understanding of the effects different organizational structures have on the potential influence of assistants on the judicial process and to observe what restrictions are employed to prevent assistants from wielding too much influence. 

 Holvast argues

During the hearing, the main public phase of the judicial process, the judge is literally and figuratively positioned at the center. Judicial staff members are usually absent or only present in the background to record the proceedings. Behind the scenes, however, judicial staff members play a vital role in the judicial process. They perform various administrative duties and, in addition, they can assist judges in their adjudicative responsibilities. Virtually all judicial systems employ these types of staff members; however, the position that they occupy in the judicial process and the duties they perform vary significantly from jurisdiction to jurisdiction. In this article, the terms “judicial assistant” and “judicial staff member” are used to describe staff members (in the US also called law clerks) who assist judges in the adjudicative content of their work, but who do not perform any adjudicative duties on their own. This should not be confused with the function of Judicial Assistant (in capital letters), which exists in England and Wales or judicial assistants employed at some American courts. Most research on this topic originates from the United States, and concentrates predominately on law clerks in the U.S. Supreme Court. This research reveals that law clerks play an important role in judicial decision-making and that their abilities to influence are far-reaching. These findings are remarkable, as law clerks are not appointed as adjudicators, but are intended to provide research and support to the judiciary. When a substantial portion of judicial duties are in fact performed by judicial assistants (in this case law clerks) who have not completed a comparable training or gone through the same selection process as judges and who are not subject to the same institutional safeguards (e.g. life-tenure) to ensure their impartiality and independence, this raises fundamental questions about the legitimacy of this allocation of duties (see on this matter also section 4 of Bieri’s contribution to this issue). The probability that law clerks and other non- judicial personnel influence judicial decision-making is an ongoing topic of discussion. It has been a concern of lawyers and academics in the U.S. for decades. Whether the assistants’ influence is regarded as “undue” depends on the perspective one has on adjudication. When taking a classical Rule of Law perspective on adjudication, the involvement of non-judges is perhaps more frequently regarded as “undue” than when one endorses a pragmatic or economic view on adjudication. 

Besides issues concerning differences in training, selection and institutional safeguards, the prospect of diluting one individual’s sense of responsibility for a judgment when large portions of the judicial work are performed by subordinates is also mentioned. In that vein, Posner observes a loss when judgments are “ghostwritten” by law clerks, as clerks are bright, but inexperienced and “judges fool themselves when they think that by carefully editing, they can make a judicial opinion their own.” Posner furthermore argues that extensive delegation could result in more uniform and legalistic judgments, as law clerks would not have the authority and experience to look beyond the (case) law. In addition, Kronman claims that the preparation of memos on cases by subordinates, commissioned and reviewed by a judge, can threaten the deliberative imagination of judges and would make the judges’ perspectives on cases essentially “monocular”. A particularly prominent fear in the U.S. is that of law clerks pursuing their own (political) goals instead of judges’ goals, thereby steering the political outcomes of cases. 

Notwithstanding these concerns, it is widely acknowledged that law clerks have also played a key role in reducing the caseload crises that arose in the U.S. in the 1980s. Given that many countries face rising caseloads and decreasing judicial budgets, delegating certain duties might be ineluctable (see also Bieri in this journal). Judicial assistants can contribute to the efficiency of the adjudication process, and, under certain conditions, also to the quality thereof. According to Edwards the above concerns are, in fact, “much ado about nothing.” Competent and conscientious judges will provide their law clerks with instructions and will “not allow an opinion to issue in their name until the words constitutioning the opinion precisely reflect their views on the proper disposition of the case.” 

In most judicial systems outside the U.S., there is remarkably little knowledge regarding the role of judicial assistants. In those judiciaries, this topic is not a prominent issue of discussion. However, many of the previous concerns could apply equally well to judicial assistants in courts in those jurisdictions. In order to attain greater insight into the issue of delegation of judicial duties to judicial assistants, this article investigates several ways in which judicial assistance is organized in three judiciaries. The central question is: in what ways can the employment of judicial assistants be organized and what are the consequences thereof in relation to the ability of judicial assistants to influence the judicial decision-making? To keep the overview, this article examines only a sample of the existing organizational structures in these judiciaries.

In the next section, the methodology of the article is discussed. Following that section, the selected judicial assistant models are analyzed. Thereafter, the article introduces six features by which judicial assistant models can be distinguished and the ways in which these factors affect judicial assistants’ ability to influence are explored. This is followed by the conclusion which recapitulates the main features that result in or limit the influence of assistants and emphasizes the importance of formalizing their role in the adjudicative process.

Holvast goes on to comment on 'six key features that distinguish the roles and positions of judicial assistants' -

1. Reasons for employing judicial assistants 

2. Ratio of judicial assistants to judges 

3. The qualifications of judicial assistants and the terms of their employment 

4. Duties of assistants and their participation in various stages of the judicial process 

5. Judicial assistants’ assignment to individual judges or the entire court 

6. Judicial assistants working with professional or lay judges

4.1. Reasons for Employing Judicial Assistants 

The first aspect that determines the judicial assistants’ role is the reasoning behind employing them. With regard to U.S. law clerks, the rise in caseloads is the most frequently cited reason for the creation of law clerk positions and for continuing to expand their number. It is also cited as a motivation for the increased allocation of duties to law clerks. This is essentially a motive based on efficiency, as employing assistants is assumed to save judges time. It enables them to handle more cases than would be possible without assistance. A backlog of applications for leave to appeal was also cited as the main reason for starting to employ Judicial Assistants in England and Wales. The Dutch judiciary is increasingly focused on the efficiency of adjudication too and the creation of models with which to delineate the time that judges and assistants spend on cases, reveals a consciousness about the economic benefits of employing assistants. Magistrates’ Courts have also been repeatedly evaluated on their costs, but these studies appear to focus on the (in)efficiency of the employment of lay judges (instead of professionals) and not on the clerks. 

Ward and Weiden conversely state that the establishment of the law clerks position is actually an outgrowth of the apprentice model of legal education. The apprentice component and the unique experience of gaining a deeper understanding of the judicial decision-making process are still mentioned by law clerks, and by Judicial Assistants too, as reasons for applying for the position. Judges frequently emphasize this aspect as well. The Dutch judicial assistant model also originates in an apprenticeship model, but this model was abandoned in the 1950s. From then on, the educational element seems to have vanished. Currently this is of relatively little importance, just as it is for Magistrates’ clerks. A third motive for employing judicial assistants is their plausible contribution to the quality of adjudication. Research contributions of assistants and their involvement as sparring partners clearly help improve the adjudication. All assistants seem to perform these duties to a certain degree, although the processes work differently. The impact on quality is perhaps most obvious at Magistrates’ Courts, where it is the clerks’ responsibility to advise the Magistrates on questions of law. Law clerks and Judicial Assistants mainly serve as sparring partners for the individual judges in their chambers. Dutch judicial assistants are frequently involved in the discussion amongst judges in deliberations. Furthermore, most assistants present their views on cases in memos, which can serve as vehicles for discussion. 

Finally, Magistrates’ clerks and judicial assistants in the Netherlands also perform several administrative and recording tasks, independent of the judge. Ensuring that these tasks are performed is clearly an additional reason for employing the assistants. 

The amount of influence that assistants can have in the recording role is probably minimal. The prospect of wielding (undue) influence is more prominent when assistants are employed for efficiency reasons. Especially when this means that the number of assistants per judge is high. When assistants are employed for reasons of quality improvement, it is actually intended that they have a certain influence on the content of judgments. In this case, the diffusion of responsibilities between judges and assistants is especially likely to become an issue. 

4.2. Ratio of Judicial Assistants to Judges 

Another aspect in which judicial assistant models differ substantially is the degree to which judicial assistants are employed. Employing more assistants increases the likelihood of them having influence. It may turn judges into managers who spend most of their time supervising and coordinating assistants. 

In the Dutch trial courts, judicial assistants generally slightly outnumber the judges. The judicial assistants’ role is particularly important because of the significance of court records for the process of review on appeal. In the U.S., the largest numbers of laws clerks are positioned at the top of the judiciary. The higher the position of a judge, the more law clerks will be assigned to him or her. The number of law clerks for every Supreme Court Justice is four. Judges at other federal Courts and State Highest Courts have about two to three judicial assistants. It is remarkable that the U.S. judiciary has evolved into a system with high reliance on law clerks at the highest level courts, whilst professional judges of its predecessor system in England and Wales, until very recently did not attain any kind of judicial assistance. At present, the English Court of Appeal (38 judges) and Supreme Court (12 judges) still both employ a modest eight judicial assistants. This results in English and Welsh judges having to perform most of the work themselves. The duties of Judicial Assistants are also rather limited and do not include judgment-drafting. This is different from Magistrates’ Courts, where every panel of Magistrates is assisted by one Magistrates’ clerk to provide them with legal advice. 

4.3. The Qualifications of Judicial Assistants and the Terms of their Employment 

The study of judicial assistant models in this article highlights roughly two types of judicial assistants in relation to terms of employment, experience, and credentials. The first type is represented by the U.S. law clerks and English Judicial Assistants in the Courts of Appeal and Supreme Court. These are young, recently graduated lawyers who regularly only occupy the position for a brief period of time, this type of assistant is referred to as temporary assistants. The other type is represented by the Magistrates’ clerks and Dutch judicial assistants in the lower level courts and this type is referred to as the career assistant. These judicial staff members are not necessarily young lawyers, they can be older as well. Moreover, they are employed by the courts for an indefinite time. In the past, these assistants would typically not be legally qualified, but both judiciaries tightened the entry requirements and currently most new assistants are qualified lawyers. 

The choice for temporary assistants serves several purposes. First, it is said to be an important check to prevent undue influence, given that the short term law clerks will never fully master the job and therefore will not be able to consolidate considerable power. In addition, an important motivation for employing recent graduates is that these assistants can present the judges with the latest academic insights on recurrent discussions. By providing young lawyers the opportunity of a rather short clerking experience, the justices also assure themselves of getting the best students who are willing to work exceptionally hard during their year of employment. It also fits the notion of the position as an apprenticeship. 

However, temporary assistant positions entail spending large amounts of time and effort on selecting and training new assistants. Selecting new assistants each year also comes at the expense of attaining continuity in the assistant model and in building expertise. The career assistants, such as the clerks at Magistrates’ Courts and the specific assisting position of staff lawyer in the Dutch judiciary, are employed for their legal knowledge and extensive experience. Furthermore, Dutch staff lawyers are, every so often, involved in producing court policies. Since these judicial assistants are increasingly legally qualified, their contribution to the quality of adjudication can be substantial. However, in the Dutch as well as the English and Welsh system, a lack of career perspectives is observed. This results in the threat of well qualified judicial assistants leaving the judiciary for better job opportunities elsewhere. Experienced assistants are also in a powerful position in relation to judges. Regarding Magistrates, Astor clarifies: “Most lay Magistrates spend half a day, or a day, in court once a week or once a fortnight. They are, in a sense, regular visitors to a complex organization which they play little part in running. It is the Clerk to the Justices and the Clerk's staff, who control this organization and who ensure that the hundreds of cases scheduled to be dealt with each day are properly processed.” This could also, to a lesser degree, be the case in the Netherlands. In particular, in relation to new judges, Dutch judicial assistants can have a powerful position. Evidently, this introduces the risk of career assistants having too much influence and judges relying too much on their expertise, thereby preventing judges from fully considering the merits of cases themselves. 

4.4. Duties of Assistants and their Participation in Various Stages of the Judicial Process 

When comparing the duties of judicial assistants, those of the Dutch assistants seem to be the most wide-ranging, as they include participation in all stages of the judicial process. A historically important responsibility of Dutch judicial assistants is that of creating the court records. Producing a correct record is in fact a shared responsibility of the judge and assistant. In the U.S. and England and Wales (except for in Magistrates’ Courts) administrative staff perform this duty. Recently, Dutch assistants also attained an important role in the preparations for hearings and in drafting judgments, thereby also becoming involved in the content of judicial decision-making. U.S. law clerks are also, to a large extent, involved in the judicial content. In the Supreme Court, their role is particularly far-reaching in the process of deciding what cases will be reviewed (the certiorari process), a feature which is not part of the Dutch mandatory review system. Using memos (in the review process or in preparation for oral arguments) results in the judge no longer being directly confronted with the plurality of claims of the parties but rather receiving a representation of the case from the viewpoint of a subordinate. This is likely to affect judges’ decisions. Kronman fears that this makes the judges’ perspective more monocular. 

Similar to Dutch assistants, U.S. law clerks play a key role in drafting judgments. There is a risk, however, that this involvement inhibits the judge from reconsidering his intuitive first stance on a case.  Furthermore, having the drafting of a judgment done by a subordinate could result in judges (and courts) creating more guidelines in order to assure that the assistants in fact write drafts in accordance with the judge(s)’ views. This could result in less attention for cases that might require deviation from the general directives. Unlike in the Netherlands, in the U.S. Courts of Appeal it is strictly forbidden for anyone other than the judges to enter the deliberation room. This rule limits the actual influence as well as the appearance of law clerks wielding influence. This is different from Dutch judicial assistants, who regularly are present during deliberations. 

The duties of the two types of English judicial assisting staff members are different in many ways. The Magistrates’ clerks play a key role in the courtroom and during deliberations. An interesting observation of Darbyshire was that various court actors viewed court clerks to be more in control of the proceedings than the chair of the Magistrates’ panel. Magistrates’ clerks are also afforded various pre-trial judicial powers. Darbyshire claims that this extends the role of the Justices’ clerk too much. She argues that case management is a judicial task that should be performed by judges and not by clerks. Judicial Assistants assist judges primarily in preparing memos for applications for leave to appeal and, to a lesser degree, in preparing bench memos and acting as sounding boards. Although the function of Judicial Assistant is less than 20 years old, during its existence, the duties have expanded and the contribution of Judicial Assistants to the decision- making process seems to have increased.  In England and Wales, judges appear to be less rigorous about the presence of Judicial Assistants at deliberations than in the U.S. However; they are more restrained in giving assistants a role in drafting judgments.Although the Judicial Assistant scheme was loosely based on the U.S. law clerk model, there is a strongly held opinion amongst judges in England and Wales that Judicial Assistants should not attain the influence that American Law Clerks appear to have. 

4.5. Judicial Assistants’ Assignment to Individual Judges or the Entire Court

The fact that, in common law judiciaries, Appellate Court judges are more adjudicating as individuals (being able to display their individual views on cases through dissenting and concurring opinions to support or deny the final decision) rather than anonymous representatives of the court, is reflected in the manner in which assistants are employed. That is, they are assigned as individual assistants to the judges rather than as assistants to the entire court. England and Wales began their Judicial Assistant model by constructing a pool of assistants available to all judges; however, soon after its creation, this was altered and assistants were assigned to individual judges. This type of arrangement results in assistants frequently having personal relationships with their judges. Peppers indicates several monitoring mechanisms which U.S. Supreme Court justices apply to control the work of law clerks and to prevent them from shirking or wielding undue influence. Some judges, for instance, reduce the likelihood that law clerks have different political preferences by taking this aspect into consideration in the selection procedure. They also monitor law clerks by having products (such as draft-judgements) reviewed by multiple clerks. The personal relationship that many law clerks have with the judges also enhances their loyalty to the judges. The assignment of assistants to individual judges also creates a situation in which judicial assistants associate themselves with professional judicial values held by the specific judge they are supporting and thus may be less concerned with organizational aims. 

In the Dutch judiciary, where judicial assistants work with various judges, the assistants occasionally obtain a role in maintaining the consistency of judgments. Perhaps this setting also results in them being more concerned with upholding organizational aims, such as court efficiency.  In all judicial systems, the judicial assistants are employed by the judicial service. As a consequence, the management of the court has more power over them than over the judges, who obtain special provisions to ensure their independence.

Like Dutch judicial assistants, English Magistrates’ clerks are not assigned to a specific judge. Their employment alongside part-time lay judges places them in a special position. Astor observes a process of balancing organizational aims and procedural rights and legitimacy which Magistrates’ clerks experience when assisting unrepresented defendants. 

4.6. Judicial Assistants Working with Professional or Lay Judges

Panels consisting exclusively of adjudicators without legal training mark the role of the Magistrates’ clerk as a rather unique one. It is exceptional to have adjudication exclusively by lay judges; most countries that employ lay participation utilize systems that group lay and professional judges.  In the English and Welsh system it is the judicial assistant who is required to enhance the legal knowledge of the panel. This is different from judicial assistants who work with professional judges; in that situation, the judges normally retain more legal knowledge than their assistants. A study on Magistrates’ Courts revealed that Magistrates’ justices seek advice more frequently than the professional District judges and the former regard the contribution of Legal Advisers more highly as well.  Their superior legal knowledge combined with their greater experience with court procedures provides Magistrates’ clerks with a unique space to wield influence, which is very different from systems in which assistants are supporting professional judges. Given that Magistrates’ clerks provide legal advice to justices who are not legally qualified, it seems that decisions on law and procedure “[are] invariably that of the clerk”.

Mediation

Last month the NSW Law Reform Commission released its Consultation Paper 18 - Dispute resolution: Model provisions. The paper reflects 2013 Terms of Reference aimed at improving legislative provisions dealing with alternative dispute resolution, in particular recommendations regarding 'a consistent model or models for dispute resolution in statutory contexts, including court ordered mediation and alternative dispute resolution'(excluding dispute resolution under the Commercial Arbitration Act 2010 (NSW) or Industrial Relations Act 1996 (NSW).)

The Commission comments

Alternative dispute resolution (“ADR”) is generally regarded as providing many benefits for disputing parties, especially in reducing costs and delays as compared with litigation. Our terms of reference require us to consider improving or updating the legislative provisions dealing with ADR and to consider the possibility of recommending a consistent model or models for ADR. ... 

In undertaking this review the Commission should have regard to:

• the desirability of just, quick and cheap resolution of disputes through use of mediation and other forms of dispute resolution in appropriate contexts 

• issues of referral powers (including timing of referrals), confidentiality, status of agreements reached, and proper protections required for the parties, mediators, and others involved in dispute resolution 

•  the proper role for legislation, contract and other legal frameworks in establishing frameworks for dispute resolution  

• any related matters the Commission considers appropriate. ...

ADR can provide many benefits for disputing parties. It can reduce the costs and delays associated with litigation and facilitate flexible outcomes. In the context of litigation, ADR can keep disputes private (instead of being exposed in public hearings) and can ensure cases are managed effectively, for example, by narrowing the issues in dispute. It can also assist the parties in preserving, repairing or improving ongoing relationships. 

[We] sought submissions on a variety of ADR processes in NSW statutes. Mediation emerged from this as the focal point of stakeholder discussion. Mediation and quasi-mediation processes in NSW statutes vary in detail and coverage and are often inconsistent. This patchwork contributes to uncertainty among users. In particular, it is sometimes unclear exactly what types of dispute resolution are available and what safeguards apply in particular statutory contexts. Further, there are currently no provisions that protect parties during commercial/consensual mediation outside a judicial or statutory context. 

Despite the patchwork nature of the statutory provisions in NSW, we are not persuaded that there would be significant benefit in attempting to rationalise these provisions into one or a small number of models. Rather we see a benefit in developing model provisions that would apply to mediations taking place outside any statutory or judicial context, unless their application was excluded.

The Commission accordingly recommends model provisions, that in summary are -

Model provision 1: Definitions of accredited mediator and mediation (page 5) 

“Accredited mediator” means a person who is accredited by a Recognised Mediator Accreditation Body in accordance with the National Mediator Accreditation System. “Mediation” means a process in which the parties to a dispute, with the assistance of a third party dispute resolution practitioner (the mediator), come together in an endeavour to resolve their dispute. It includes a process that fits this description even when such a process is described as “conciliation” or “neutral evaluation”. 

Model Provision 2: Confidentiality and admissibility of mediation communications in evidence 

(1) Definitions “Mediation communication” means (a) anything said or done (b) any document prepared, or (c) any information provided, for the purposes of mediation, in the course of mediation, or to follow up mediation including any invitation to mediate or any mediation agreement. “Tribunal” means a tribunal established under statute and includes both administrative and arbitral tribunals. 

(2) Confidentiality of mediation communications

(a) A person must not disclose a mediation communication except as provided for by Model Provision 2(2)(b) or (2)(c). 

(b) A person may disclose a mediation communication if: (i) all the parties to the mediation consent and, if the information relates to the mediator, the mediator agrees to the disclosure (ii) the disclosed information is publicly available, but is not information that is only in the public domain due to an unauthorised disclosure by that person (iii) the disclosure is made for the purpose of seeking legal advice (iv) the disclosure is required for the purposes of carrying out or enforcing a settlement agreement (v) the disclosure is required to bring a claim for mediator misconduct or to respond to such a claim (vi) the disclosure is made for research, evaluation, or educational purposes and is made without revealing, or being likely to reveal, whether directly or indirectly, the identity of any party, mediator, or other person involved in the conduct of the mediation (vii) the disclosure is required by law, or  (viii)the disclosure is required to protect the health or safety of any person. 

(c) A person may disclose a mediation communication with leave of the court or tribunal under Model Provision 2(4). 

(3) Admissibility of mediation communications in evidence A court or tribunal may admit a mediation communication in evidence in any proceedings (including judicial, arbitral, administrative or disciplinary proceedings) only by leave under Model Provision 2(4). 

(4) Leave for disclosure or admission of evidence

(a) A court or tribunal may, on application by any person, grant leave for a mediation communication to be disclosed under Model Provision 2(2)(c) or admitted in evidence under Model Provision 2(3). 

(b) For the purposes of Model Provision 2(4)(a), the court or tribunal must take into account the following matters in deciding whether to grant leave: (i) whether the mediation communication may be or has been disclosed under Model Provision 2(2)(b) (ii) whether it is in the public interest or the interests of justice for the mediation communication to be disclosed or to be admitted in evidence, notwithstanding the general public interest in favour of preserving the confidentiality of mediation communications, and (iii) any other circumstances or matters that the court or tribunal considers relevant. 

(c) Where a person seeks disclosure of admission of the mediation communication in evidence: (i) before a court, the application must be made to the court before which the proceedings are heard (ii) before a tribunal, the application must be made to the tribunal before which proceedings are heard, and (iii) in any other case, the application must be made to NSW Civil and Administrative Tribunal. 

Model Provision 3: Mediator’s immunity (page 10) 

(1) No matter or thing done or omitted to be done by a mediator subjects the mediator to any personal action, liability, claim or demand if the matter or thing was done for the purposes of a mediation session under this Act. 

(2) Model Provision 3(1) does not apply if the claimant can show an absence of good faith on the mediator’s part. (3) This section is not intended to alter the operation of s 33 of the Civil Procedure Act 2005 (NSW) or cl 2 of sch 1 of the Civil and Administrative Tribunal Regulation 2013 (NSW). 

Model Provision 4: Termination of mediation (page 12) 

(1) Where the question of whether a mediation has been terminated arises in any proceedings, the court or tribunal must determine whether the mediation has been terminated. 

(2) Unless evidence to the contrary is adduced, the court or tribunal must presume a mediation has terminated if: (a) the mediator purports to terminate a mediation (b) a party purports to terminate a mediation (c) a time limit for the mediation (and any extensions) agreed by the parties expires, or (d) litigation commences or recommences. 

Model Provision 5: Enforcement of mediated settlement agreements (page 14) 

(1) “Mediated settlement agreement” means an agreement by some or all of the parties to mediation settling the whole, or part, of their dispute. 

(2) If a party to a mediated settlement agreement fails to comply with its terms, another party wishing to enforce the agreement may, on notice to all other parties who signed the agreement, apply to the Court for orders to give effect to the agreement if:

(a) the agreement is reduced to writing and signed by the parties, and 

(b) the mediation was conducted by an accredited mediator, and 

(c) a party against whom the applicant seeks to enforce the settlement agreement has explicitly consented to such enforcement, whether by the terms of the agreement or other means. 

(3) The mediator must draw the attention of the parties to the effect of Model Provision 5(2) before the mediated settlement agreement is signed. 

(4) The Court may refuse to give orders under Model Provision 5(2) only:

(a) at the request of the party against whom it is invoked, if that party furnishes to the Court proof that the agreement is void or voidable on grounds of incapacity, fraud, misrepresentation, duress, coercion, mistake or other invalidating cause, including that the agreement is void or voidable after a court has found it is unjust in the circumstances relating to the contract at the time it was made under the Contracts Review Act 1980 (NSW), or 

(b) if the Court finds that: (i) any of the terms of the agreement cannot be enforced as an order of the Court, or (ii) making the order would be contrary to public policy, or (iii) the mediator failed to draw the parties’ attention to the binding nature of the agreement before it was signed. 

(5) Any undertaking by one or more of the parties to a mediated settlement agreement to pay the fees and expenses of the mediator is enforceable if: (a) the amount of such fees, or (b) the means for their calculation, is specified in the agreement. 

As proposal 1 (Removal of statutory defamation privilege) the Commission recommends'

Provisions establishing a defence of absolute privilege to defamation proceedings arising from the conduct of mediations should be repealed.

Under  Implementation options the paper states

Option 1: Application to mediation under an agreement (page 19) 

This Act applies to any mediation conducted under an agreement to mediate entered into after the commencement of this Act if the mediator is an accredited mediator and: (a) the mediation is wholly or partly conducted in NSW, or (b) the agreement to mediate provides that the law of NSW is to apply to the mediation, unless the parties exclude or have excluded the operation of the Act or any provision of the Act, by agreement. 

Option 2: Application in existing and future statutes (page 20) 

The model provisions should be: (a) inserted in terms or by reference into each of the statutes that in our view would benefit from the provisions listed in Appendix A, and (b) used as a template for future legislation providing for mediation, unless the circumstances otherwise require. 

In discussing confidentiality the Commission comments

2.9 Submissions support a uniform approach to confidentiality and admissibility of mediation information in evidence. This approach should apply unless the context dictates otherwise. A strong regime in this area is essential to allay parties’ concerns that information disclosed during mediation might be used in subsequent litigation or disclosed to the public if the mediation proves unsuccessful. Although the common law provides some degree of protection, a legislative regime would provide additional certainty, allowing courts to protect information appropriately and quickly. For example, in accordance with the Mediation Ordinance 2012 (Hong Kong), the High Court of the Hong Kong Special Administrative Region struck out a defence and passages of affidavits that were based on information obtained in mediation. 

The model provisions draw upon aspects of the Mediation Bill 2016 (Singapore), the Mediation Ordinance 2012 (Hong Kong) and the Commercial Mediation Act 2010 (Ontario). Submissions identified these as appropriate models. The provisions also align with provisions in the UNCITRAL Model Law, and with the exceptions to confidentiality and inadmissibility recently expounded by the UK Supreme Court. NADRAC has recommended a similar general rule about confidentiality and privilege subject to specified exceptions. 

We propose that confidentiality and admissibility be dealt with together, with courts and the NSW Civil and Administrative Tribunal (“NCAT”) placed in a supervisory role under Model Provision 2(4). This reduces procedural complexity and clarifies the relationship between confidentiality and “without prejudice” privilege by integrating both protections into the one regime. The provisions encourage regularity by imposing a default position against admissibility, subject to the aggrieved party being able to justify why the default position should not apply under Model Provision 2(4)(a). 

The factors in Model Provision 2(4)(b) that the courts or NCAT must consider are broadly similar to those imposed by s 138 of the Evidence Act 1995 (NSW) with respect to the admission of illegally or improperly obtained evidence. A number of submissions supported introducing a provision like Model Provision 2(4)(b)(ii), which relates to the public interest. An example of the other circumstances or matters referred to in Model Provision 2(4)(b)(iii) is where there is no concluded settlement but one party to the negotiations has made a clear statement, intending the other party to act on it and the other party has in fact acted, giving rise to an estoppel. 

The exceptions to confidentiality in the recommended provision are broadly consistent with those provided by s 131 of the Evidence Act 1995 (NSW) that exclude evidence of settlement negotiations. Section 131 prevents evidence from being introduced if it concerns communications between disputing parties. This applies in the context of legal proceedings and is not likely to operate where formal legal proceedings have not yet been instituted. The model provisions would expressly extend this protection beyond the litigation context. This supports the role of mediation as a dispute resolution option in its own right.

Comments on the removal of the defamation privilege are

A defence of absolute privilege to defamation proceedings arising from mediations was first introduced by the Community Justice Centres pilot project in 1980. The co-ordinating committee thought it likely that mediations might involve “a heated exchange of views, accusations and abuse” and considered it desirable to protect the parties to a mediation from possible suits for defamation. Along with subsequent provisions based upon it,, this privilege has never been tested. Similarly, there is no known evidence to support the claim made when justifying its insertion into the Land and Environment Court Act 1979 (NSW) in 2007 that “without the protection afforded by [defamation privilege], parties involved in a [mediation] might be less frank and less willing to make concessions to settle a dispute”. 

However, given that mediation communications are inadmissible, purportedly defamatory statements made in the course of mediation will be inadmissible in any attempt to prosecute a defamation claim, unless one of the proposed exceptions applies. Likewise, as mediation communications are confidential and thus cannot “leave the room”, the risk of damage from any purportedly defamatory statement is limited. The good faith immunity provided to mediators also protects them against liability for defamation. 

An express statutory privilege against defamation is, therefore, superfluous. The absence of defamation privilege in any international mediation legislation supports this conclusion. We therefore propose that NSW repeal provisions that establish a defence of absolute privilege to defamation claims. Such a privilege should not be included in any generally applicable statute on mediation.

Corporate and other disclosure

'Too Big to Disclose: Firm Size and Materiality Blindspots in Securities Regulation' by George  Georgiev in (2017) 64 UCLA Law Review comments

This Article argues that the securities disclosure regime contains previously unexamined structural deficiencies, which pertain to the information provided by the largest public companies. These deficiencies arise from the operation of the materiality standard, a core element of the disclosure regime that is used in a number of disclosure rules. The materiality standard is designed to limit firms’ disclosure to information that would be of importance to investors, and to prevent the overproduction of information. I argue, however, that in the case of large firms the materiality standard can also lead to the underproduction of information — or to “materiality blindspots.” Since the threshold for what is material increases as firms get bigger, at the very largest firms even matters that are significant or sizeable in absolute terms may be deemed immaterial and remain undisclosed. Such firms are “too big to disclose” and, in a perfectly legal manner, take advantage of the materiality standard to avoid disclosure. 

I illustrate the materiality blindspots phenomenon by analyzing the disclosure rules in three key areas (material contracts, material legal proceedings, and material business spending) and presenting original case studies of the disclosure practices of large firms. After revisiting accepted theory on disclosure regulation through the prism of firm size and analyzing examples from the case studies, I identify two sets of potential harms. First, materiality blindspots may undermine investor protection and corporate governance, including by diminishing stock price accuracy and making inside and outside monitoring for fraud, waste, or suboptimal management practices more difficult. Second, the materiality standard may give systematic advantages to large firms and lead to market distortions, in effect serving as a regulatory subsidy for bigness. I suggest that certain disclosure requirements that currently rely only on the materiality standard should be supplemented with targeted rules employing quantitative thresholds. This could provide a safety net against materiality blindspots by requiring large firms to disclose additional information that is not caught by the existing materiality standard, but that is significant or sizeable in absolute terms. 

'Case Note: ASG v Hayne - A Case iof Publish and Not Be Damned' by Jeremy Finn in [2016] New Zealand Criminal Law Review 86 comments

The decision in ASG v Hayne has significant implications for persons seeking permanent name suppression. This appears to have been the first time the Court of Appeal has been called upon to consider the meaning of “publication” under section 200 of the Criminal Procedure Act 2011. Unfortunately the decision raises at least as many questions as it answers. Some of these difficulties may reflect the fact that the case came before the Court of Appeal on appeal from the Employment Court, rather than from a criminal proceeding. 

ASG was employed by the University of Otago as a security officer. He pleaded guilty to charges of wilful damage and assaulting a female in relation to an incident unconnected with his work. The District Court Judge discharged him without conviction on both charges, on the basis that the fact of conviction would imperil his employment and such a consequence was out of all proportion to the seriousness of the offence. The judge further ordered permanent name suppression and suppression of other details under s 200 of the Criminal Procedure Act 2011. The Court of Appeal thought it probable that the order was made so that the identity of ASG would not be disclosed to his employer and no adverse consequences could ensue. 

However, the persons present at the court hearing included an employee of the University who had been informed that ASG was to be sentenced for offending. That employee made notes of the matter and then made enquiries as to whether he could disclose the details of the offending and outcome to the University authorities. He obtained legal advice from the University's lawyer, who advised him that the suppression order would not prevent communication of the information as to the charges and guilty pleas to the University as an employer and therefore to a person with a legitimate interest in knowing that an employee had pleaded guilty to conduct of the kind he was supposed to prevent. Following that advice, disclosure was made to the appropriate University personnel and the University conducted an internal investigation which led to first the appellant's suspension from his duties and later to a final written warning. 

The matter then went before the Employment Relations Authority and then, on appeal, to the Employment Court. ASG contended that the communication of information as to the hearing to the University was in breach of the suppression order and therefore the University was not entitled to have regard to it. When the matter came before the Employment Court, the court held that communication of the information did not breach the suppression order, relying principally on the High Court decision in Solicitor-General v Smith on the predecessor legislation which had held that communication of information to persons with a legitimate interest did not breach a statutory prohibition on publishing a report of court proceedings involving a young person.

Finn notes that on appeal the Court held that

the University, as employer, was a person with a genuine interest and therefore the communication to it of information had not breached the suppression order. That decision was telegraphed earlier in the judgement when the Court commenced its discussion of its own views of the matter by emphasising that an employee had a duty to disclose relevant material to her or his employer and that ASG was in breach of that duty. It may be thought that this conclusion, something at least arguably irrelevant to the meaning of “publication”, coloured the rest of the judgement.

Hohfeld

 'Hohfeldian Analysis and the Separation of Rights and Powers' by John Goldberg and Benjamin Zipursky in Shyam Balganesh, Ted Sichelman and Henry Smith (eds), The Legacy of Wesley Hohfeld: Edited Major Works, Select Personal Papers, and Original Commentaries (Cambridge University Press, forthcoming 2018) comments

At the time he wrote, Wesley Hohfeld seemed to be of the view that longstanding conceptual confusions that had blocked progress in legal thought — particularly confusions about legal rights — would soon be put to rest. If so, rights have proved a tougher nut to crack than he expected. Indeed, the difficulty of providing an adequate account of rights has led many scholars, including scholars who share Hohfeld’s aptitude and aspirations for analytic philosophy, to lose sight of a distinction central to Hohfeld’s project, namely, the distinction between a right (or claim right) and a power. Or so we argue in Part I. Worse, confusions over rights and powers, when combined with a particular understanding of what constitutes clear-eyed analysis of legal issues, has contributed to the now-widely shared but mistaken supposition that common law reasoning must (or should) take the form of instrumental reasoning. We outline this claim in Parts II and III. 

Ultimately, we suggest that Hohfeld’s juristic legacy contains two profound ironies. His entirely sound insistence on the analytic separation of legal rights and legal powers has helped to obscure their deep substantive connection in certain bodies of law, especially tort and contract law. And his implicit acceptance of the idea that a commitment to conceptual clarity goes hand in hand with instrumentalism in legal analysis has indirectly led prominent courts — including most famously the California Supreme Court in landmark decisions such as Rowland v Christian — to mangle how rights, duties, and powers are linked within private law. ... 

Legal Realists and Critical Legal Studies scholars have rightly praised Hohfeld for untangling confused concepts and thereby allowing lawyers, judges, and jurists to spot substantive normative commitments concealed as definitions. As progressive scholars have learned the hard way, however, one should not suppose that the identification of a normative commitment within a legal concept or construct will suffice to undermine it. At least since the 1980s, an increasing number of commentators and courts have embraced concepts and constructs associated with libertarianism with their eyes wide open. Exposing false claims of definitional connection can only serve as a prelude to evaluating the substantive principles that, for better or worse, are doing the normative work. 

As we see it, the connection between claim rights and legal powers in a body of law such as tort law is a happier illustration of the same point. Claim rights and legal powers, even though conceptually distinct, are substantively connected in tort law and in other branches of private law. It is a laudable and basic moral commitment of our system that a person whose legal rights against being wrongfully injured have been violated is entitled to demand redress from the violator for the violation. As tort law’s longstanding linkage of rights and powers attests, the right-remedy principle is and has long been a core substantive commitment of our legal system. We would go badly astray if a proper Hohfeldian insistence on the analytic separation of claim rights and powers caused us to lose sight of this commitment.

The same volume features 'Wesley Newcomb Hohfeld: On the Difficulty of Becoming a Law Professor' by John Henry Schlegel.

Schlegel  comments 

Wesley Hohfeld (1879 - 1918) is well known to legal philosophers and to property teachers for his table of fundamental conceptions, a terminological framework for understanding legal doctrine and reasoning. This work was also substantively important for some members of the American Legal Realist movement and Critical Legal Studies. More personally he was part of the generation of law teachers who had to figure out how to become a professional academic in the years after completion of the job of reordering of the corpus juris in the wake of the demise of the writ system. A Harvard Law School educated westerner who ambivalently wanted to move east from his post at the then decidedly non-elite Stanford Law School, Hohfeld eventually made it to the then decidedly non-elite Yale Law School. His relatively brief career sheds light on both how in the years before World War I legal academics built a professional identity and how they navigated the nascent law school network. It also raises a question of how an analytical legal scholar might have responded to later developments in jurisprudence. ...

Anyone who spends a large amount of time with newly appointed, untenured colleagues, presumably because one’s older colleagues are just not all that interesting any more, will recognize that acquiring a professional identity, in the sense of being comfortable putting pants on, tying a tie and keeping shoes shined, is both a matter of imitating the behavior of others and of fitting that behavior into an existing self. Part of that job is social and part is intellectual. However, for someone starting out in law teaching in the earliest years of the Twentieth Century, as did Wesley Newcomb Hohfeld, acquiring an identity was more difficult than it is today. Academic lawyers then were still busy creating such an identity out of the social and intellectual positions in which they found themselves and from which they, as existing selves, could only limitedly escape. Understanding Hohfeld’s academic life requires that one understand the complexities of this world as it, and he too, was forming an academic identity.

Schlegel concludes

It is always sad when a good scholar, finally at the point of being able to put it all together, fades and dies, the project unfinished. This seems to be especially true of Hohfeld, however much that his project misunderstands the practice of law, an activity that thrives, indeed depends, on the ambiguity of its concepts and relations, not in the clarity he sought to bring to it. Still, one wonders whether Hohfeld just might have died happier than he would have had he lived longer. He was not a person naturally comfortable in the world. Indeed, given Corbin’s description of Hohfeld’s behavior and his expressed grounds for resisting a move to Yale, he might well be understood to be at the very high functioning end of Asperger’s Spectrum Disorder. And the fun he made of the work of Bingham’s scholarship suggests that Hohfeld would have been mighty unhappy if such a hypothetical future had unfolded pretty much as it did.

After all, analytic jurisprudence assumed that judicial decision-making was mostly founded in doctrine and that what both judges and lawyers needed to know was how to regularize the judicial action of applying doctrine, how to avoid the misuse of the fundamental legal conceptions. This is precisely the task that Cook undertook in the years around the time of Hohfeld’s death, and a large portion of what he did for the rest of his life when writing on the conflict of laws. But the Realist project that conventionally is taken to have started with Holmes’ “Path of the Law” did not assume that judicial decision-making was mostly founded in doctrine and so spoke less to judges and more toward lawyers trying to understand all of the various factors that played a part in judicial, as well as their own, decision-making. For Realist scholars such as Cook, Corbin and Llewellyn, Hohfeld’s categories identified some of the ways that the doctrinal system worked, but mostly they isolated occasions for puzzling out why judges made the decisions that they did.  Hohfeld probably understood the need for such work -- after all he made a place for it in his “Vital School of Law and Jurisprudence” as “functional or dynamic jurisprudence” -- but he surely would have been unhappy when a co-equal branch of jurisprudence began to take over the law school world to the detriment of his analytical enterprise, especially when the results of that takeover combined a weak version of analytics that goes by the name of critique, a weak version of Realism’s emphasis on social context, and a weak version of normative argument and called the mess legal scholarship.