Kantorowicz

'The King’s Two Bodies as Lamentation' by Karl Shoemaker in (2017) 13(1) Law, Culture and the Humanities 25 comments

The King’s Two Bodies is, as has long been recognized, a genealogy of modern state power. But it is also something else less clearly recognized. The King’s Two Bodies is a lamentation. In Kantorowicz’s poignant eulogy, the sovereign that medieval lawyers had made in the imago dei, was revealed at last to be an idol. Profound reverence for the rule of law crumbled into absent- minded legality. The lawful sovereign became diabolical power, forever deciding exceptions but incapable of justice or grace. In The King’s Two Bodies, Kantorowicz mournfully shows how the death and tragic afterlife of a particular medieval concept of sovereignty helped to make possible the horrors of modern political absolutism and state idolatry.

Shoemaker argues

The King’s Two Bodies is a lamentation. The book is of course better recognized as Ernst Kantorowicz’s careful excavation of the medieval sources upon which once stood the Tudor constitutional doctrine that English kings had both a corporal body that would suf- fer infirmity and death and a political body that could not. The clichéd acclamation – “The king is dead! Long live the king!” – turns out to distill a complex medieval solution to the sovereign’s ambiguous relationship to law and to time. Kantorowicz famously showed that the early-modern English doctrine of twin-bodied kingship rested upon the doctrines of medieval lawyers who were attempting to discern the limits suggested by classical Roman law upon the exercise of sovereign power and to reconcile those limits with Christian theological accounts of a Christ-like king ordained by God to rule. In so doing, Kantorowicz showed that English law owed an intellectual debt to medieval Roman law (a claim that is less controversial today than it was when he made it) and that medieval Christian theology served as a midwife for modern concepts of state sovereignty. But alongside this well-known thesis, Kantorowicz offered another less recognized story – a story of sorrow, disenchantment, and loss. 

Suffering the fate of all historically commanding attempts to reconcile law with power, the medieval doctrine of the king’s two bodies eventually collapsed under the weight of its own necessary absurdities. Frederick Maitland had already turned his wit so devastatingly upon the doctrine that Kantorowicz recounted the great historian’s jibes in the opening pages of his own study in order to inoculate against them. The doctrine of two bodies “parsonified” the king, Maitland had quipped. He wryly called it “metaphysiological nonsense.” With a tinge of impish glee, Maitland described how in 1715 peasants subject to a rebellious baron celebrated when their baron’s land was forfeited to the crown. Since, unlike their baronial lord, the king could never die, the peasants shrewdly deduced that the customary taxes paid upon their landlord’s death would never come due again. Or so they thought. After careful examination of the king’s two bodies, Parliament determined that the peasants’ obligation was owed to the king’s mortal body, not his immortal one. Thus, like death, the tax remained certain. At any rate, such were the legal issues that might arise from merging a man made by an eternal God with an eternal King made by man. 

Kantorowicz himself admitted that the temptation “to ridicule the theory of the King’s Two Bodies is indeed great when you read, without being prepared for it, the at once fantastic and subtle description of the king’s superbody” contained in Blackstone. When Blackstone listed the attributes of kingship still recognized by English law in the eighteenth century he was able to recite them without any seeming embarrassment. The king “is invisible” and “always present,” he soberly explained. But even in Blackstone’s age such an account of an extra-corporal, unseen, and omnipresent king was losing its persuasive power. By the nineteenth century, having outlived the historical circumstances that rendered it intelligible, the aged doctrine limped along as an object of ridicule and scorn. But Kantorowicz understood, as Maitland surely had, that behind these “physiologically amusing traits” stood an account of sovereignty that had once framed the relationship between law and power in the major European legal traditions and had provided the jurisprudential foundations of the modern state. The King’s Two Bodies is, as has long been recognized, a genealogy of modern state power. But it is also something else. It is a somber obituary. Perhaps better, the text is a delicately embroidered sheet draped respectfully by Kantorowicz over the naked, lifeless body of the medieval sovereign. Or rather, over a particular medieval concept of sovereignty – a concept whose death and tragic afterlife, in Kantorowicz’s telling, made possible the horrors of modern political absolutism and state idolatry. ... 

Kantorowicz may not have grappled with the question of sovereign absolutism directly, but the problem casts a shadow on every chapter of the book. Indeed, The King’s Two Bodies can be read as a history of the doomed effort of medieval jurists to erect a jurisprudence in which the sovereign was sufficiently powerful and just to bind itself to its own law. 

As we will see, however, by 1957 Kantorowicz had also come to realize that the medieval lawyers he esteemed so much, rather than providing the grounds by which sovereign power could be bound to law, had actually dug the footers into which the foundation of modern legal positivism would be poured. From Kantorowicz’s viewpoint, the sovereign that medieval lawyers had made in the imago dei, was revealed to be an idol. Profound reverence for the rule of law had crumbled into absent-minded legality. The lawful sovereign had become diabolical power, forever deciding exceptions but incapable of justice or grace. Kantorowicz was not inattentive to absolutism. He was disgusted and horrified by it, though his horror and disgust is expressed mostly by the despair threading quietly through The King’s Two Bodies.

Rights and Vilification

'Asian Courts and LGBT Rights' by Holning Lau in Don Haider-Markel (ed.) Oxford Encyclopedia of LGBT Politics and Policy (Forthcoming) comments

Courts have played an integral part in advancing the rights of lesbian, gay, bisexual, and transgender (LGBT) communities in many parts of Asia. For example, Taiwan’s highest court ruled in 2017 that it was unconstitutional to exclude same-sex couples from marriage. As a result, in 2019, Taiwan became the first jurisdiction in Asia to legalize same-sex marriage. Among judicial decisions from Asia, Taiwan’s marriage ruling has gone the furthest in affirming same-sex relationships, but it is not alone in vindicating the rights of gay men, lesbians, and bisexuals. Courts in Asia have also advanced transgender rights. For example, building on earlier cases from Nepal and Pakistan, the Indian Supreme Court stated in 2014 that transgender persons have a right to select gender markers on identity documents based on self-determination. The judgment also directed the government to implement affirmative action programs to support transgender communities. This judgment broke new ground, not only for Asia but for the world. 

While LGBT rights advocates have celebrated these court victories, litigation to advance LGBT rights has failed in other parts of Asia. Indeed, courts in some parts of Asia have entrenched LGBT subordination. A vast expanse separates Asia’s most progressive judicial decisions from the most oppressive. The landscape of judicial decisions is further complicated by the fact that it continues to change at a rapid clip. This chapter examines this mixed and quickly changing landscape of judicial developments concerning LGBT rights in Asia. 

This chapter starts by providing an overview of the divergent roles that Asian courts have played with respect to LGBT rights. It then highlights — and offers preliminary answers to — three questions prompted by the judicial development of LGBT rights in Asia: (1) What factors have contributed to the divergence among Asian jurisdictions? (2) How should developments in Asia inform existing narratives about the development of LGBT rights? (3) How do politics and public opinion affect courts’ ability to advance LGBT rights in Asia?

In Cottrell v Ross [2019] VCC 2142 the Victorian County Court has found that Section 25(2) of the Racial and Religious Tolerance Act 2001 (Vic), aka the RRT Act,  is constitutionally valid.

At the Melbourne Magistrates’ Court on 5 September 2017, Blair Cottrell – the appellant - was convicted of a charge of knowingly engaging in conduct with the intention of inciting serious contempt for, or revulsion or severe ridicule of, another person or class of persons, namely Muslims, on the ground of their religious belief or activity, contrary to section 25(2) of the Act. Cottrell was convicted and fined $2000.

On appeal Cottrell acknowledged that he did participate in a mock execution knowing that it was being filmed and would be published on the internet. His case was that he did not participate in that mock-execution with the requisite intention under s s 25(2).

The Court comments "It is perhaps more accurate to characterise the appellant’s case that the respondent has failed to prove, beyond reasonable doubt, that he had the requisite intention".

Cottrell also contended that s 25(2) is constitutionally invalid because it infringes the implied freedom of political communication.

The Attorney-General of Victoria intervened in relation to that constitutional question and in relation to questions raised under the Charter of Human Rights and Responsibilities 2006 (Vic).

In rejecting Cottrell's claims Kidd CJ has found that s 25(2) of the Act is constitutionally valid and - in considering the first criminal conviction under the Act - has also found the charge brought under s 25(2) is proved.

 In considering Cottrell's appeal Kidd CJ notes that the Act's

 Preamble states that:

1 The Parliament recognises that freedom of expression is an essential component of a democratic society and that this freedom should be limited only to the extent that can be justified by an open and democratic society. The right of all citizens to participate equally in society is also an important value of a democratic society. 

2 The people of Victoria come from diverse ethnic and Indigenous backgrounds and observe many different religious beliefs and practices. The majority of Victorians embrace the benefits provided by this cultural diversity and are proud that people of these diverse ethnic, Indigenous and religious backgrounds live together harmoniously in Victoria. 

3 However, some Victorians are vilified on the ground of their race or their religious belief or activity. Vilifying conduct is contrary to democratic values because of its effect on people of diverse ethnic, Indigenous and religious backgrounds. It diminishes their dignity, sense of self-worth and belonging to the community. It also reduces their ability to contribute to, or fully participate in, all social, political, economic and cultural aspects of society as equals, thus reducing the benefit that diversity brings to the community. 

4 It is therefore desirable that the Parliament enact law for the people of Victoria that supports racial and religious tolerance.

The express purposes of the RRT Act are to ‘promote racial and religious tolerance by prohibiting certain conduct involving the vilification of persons on the ground of race or religious belief or activity’ and to ‘provide a means of redress for the victims of racial or religious vilification

The RRT Act also sets out its objects in s 4(1) as follows: (a) to promote the full and equal participation every person in a society that values freedom of expression and is an open and multicultural democracy; (b) to maintain the right of all Victorians to engage in robust discussion of any matter of public interest or to engage in, or comment on, any form of artistic expression, discussion of religious issues or academic debate where such discussion, expression, debate or comment does not vilify or marginalise any person or class of persons; (c) to promote dispute resolution and resolve tensions between persons who (as a result of their ignorance of the attributes of others and the effect that their conduct may have on others) vilify others on the ground of race or religious belief or activity and those who are vilified. 

The RRT Act states that it ‘is the intention of the Parliament that the provisions of this Act are interpreted so as to further the objects set out in [s 4(1)]’ 

The RRT Act provides a scheme for addressing racial and religious vilification, with escalating seriousness of consequences to address escalating seriousness of conduct. The Act provides for a non-criminal statutory remedy for certain conduct amounting to ‘unlawful vilification’ where proof of intent is not required (Part 2 and Part 3, which includes s 8) and for criminal sanctions for ‘serious vilification offences’ where the perpetrator intends to engender extreme feelings in their audience (Part 4, including s 25(2)).

Kidd CJ offers 'some conclusions' -

The following conclusions may be drawn from the legislation itself, and from the extrinsic materials:

• The legislature considered there was a genuine need to address the issue of racial and religious vilification and the harm caused by that conduct in Victoria. 

• The social benefits which the legislation seeks to achieve can be readily discerned. Section 25(2) is calculated to: o Promote religious tolerance; o Prevent demonstrably harmful conduct that causes physical and psychological harm; o Prevent the marginalisation of persons on religious grounds and promote the full and equal participation of every person in society; o Proscribe conduct that diminishes the dignity of members of the community. 

• The legislation reflects an earnest and considered attempt by the legislature to balance or weigh the policies of preventing vilification and allowing appropriate avenues of free speech. On its face, it has sought to ensure that any restriction occasioned by s 25(2) on the freedom of expression would be limited only to the extent necessary to prevent that harm (serious vilification), and to achieve those social benefits. In that sense the legislature has strived to tailor s 25(2) to its purpose. I accept the arguments advanced by both the respondent and by the Attorney that the relevant legislative context and Parliamentary Debate reflects that much consideration was given to ‘freedom of expression’ and ‘freedom of speech’ before the enactment of the RRT Act. 

• The field of operation of s 25(2) is narrow, it being directed only towards the most extreme, obnoxious and intentional forms of vilifying conduct.

Kidd CJ noted judicial statements in support of the proposition that anti-vilification legislation enhances and promotes the implied freedom of communication, referring to Sunol v Collier (No 2) (2012) 289 ALR 128, [89]; Durston v Anti-Discrimination Tribunal (No 2) [2018] TASSC 48, [36]-[46], [49]; Owen v Menzies (2012) 293 ALR 571, [72].

The judgment in Cottrell accordingly states

In my view, racial and religious vilification speech – especially of an extreme kind – ‘is antithetical to the fundamental principles of equality, democratic pluralism and respect for individual dignity which lie at the heart of the protection of human rights’. Such legislation positively promotes people of different religions to participate in public life and discourse, free from vilification.”

Genomics and Insurers

'Political Economy, Stakeholder Voices, and Saliency: Lessons From International Policies Regulating Insurer Use of Genetic Information' by Anya Prince in Journal of Law and the Biosciences (Forthcoming) comments

 A decade ago, Congress passed the Genetic Information Nondiscrimination Act (GINA), with the goals to address fear of genetic discrimination and prevent adverse health insurance and employment decisions on the basis of one’s genetic information. Yet, fear of discrimination remains because other insurers, notably life, long-term care, and disability insurers, are not covered by the law. Therefore, there have been persistent murmurings for a “GINA 2.0” to extend the protections of the original law. Although it is plausible to assume that the insurance industry has the political economy to control future regulation, given the saliency of genetic discrimination, other stakeholders and bureaucrats may have greater influence. This paper explores the history of policy in four countries — the United Kingdom, Sweden, Australia, and Canada. Each country provides examples of continued policy debate and change following an initial period of reliance on insurance industry self-regulation, with change generally occurring over the objection of the insurance industry. This article argues that US insurers, regulators, and stakeholders should negotiate a consensus solution for insurer use of genetic information that balances between social and economic considerations. The international landscape provides a myriad of examples of policies that have been employed to meet these goals.

Nationalisation

'Tell Me How It Ends: The Path to Nationalizing the U.S. Pharmaceutical Industry' by Fran Quigley comments

The U.S. medicines system is broken. Millions of Americans suffer and some even die because they cannot afford medicines discovered by government-funded research. At the same time, corporations holding monopoly patent rights to those medicines collect some of the largest profits in modern capitalist history. It doesn’t have to be this way. The global legacy of treating essential medicines as a public good and the robust U.S. history of government seizure of private property when necessary for the public interest reveals a better path: the U.S. should nationalize its pharmaceutical industry. U.S. statutory law provides broad powers for the executive branch to immediately order patent-free medicines manufacturing and distribution. And U.S. constitutional law, interpreted in light of the pharmaceutical industry’s substantial reliance on government funding and licensing, along with the industry’s widespread malfeasance that harms the public welfare, justifies full seizure of all industry assets with limited compensation.

Big Data lnternational Law

'Knowledge Production, Big Data and Data-Driven Customary International Law' by Tamar Megiddo comments

 This chapter investigates the role of “Big Data” analysis and data crowdsourcing in shifting power relations with respect to the identification of customary international law. Evidence of states’ practice and legal positions is required in order to determine that a new norm of customary international law has crystallized. And yet, international courts have often settled for anecdotal evidence and impressionistic analysis. However, recent academic works have crowdsourced data collection, compiled big datasets and applied computerized analysis methods to make comprehensive and systematic evaluation of the development of customary norms. I argue that this new mode of knowledge production may democratize both the data collected (giving greater weight to smaller states from the global periphery) and the potential contributors to the production process (including lawyers from different countries and language capabilities). Nevertheless, such production requires scientific sophistication and resources, which once more give actors from rich, developed countries a greater role in developing the law.

ACL Penalty and CDR delays

The Federal Court has ordered Volkswagen AG to pay $125 million in penalties,  the highest total penalty order ever made by the Court for contraventions of the Australian Consumer Law.

Volkswagen AG  declared by consent that it breached the ACL by making false representations about compliance with Australian diesel emissions standards. The company admitted that, when it sought approval to supply and import more than 57,000 vehicles into Australia between 2011 and 2015, it did not disclose to the Australian Government the existence of ‘Two Mode’ software. Volkswagen admitted that when switched to ‘Mode 1’ for the purposes of emissions testing, the software caused its vehicles to produce lower nitrogen oxide (NOx) emissions, but that when driven in on road conditions, the vehicles switched to ‘Mode 2’ and produced higher NOx emissions.

ACCC Chair Rod Sims said

Volkswagen’s conduct was blatant and deliberate. 

This penalty reflects a trend of ever higher penalties for breaches of Australian consumer law. 

The previous highest penalties of $10 million for Coles, Ford and Telstra were recently overtaken by penalties of $12 million against We Buy Houses and then penalties of $26 million ordered against vocational training provider Empower Institute. 

Today’s $125 million in penalties were imposed under the old penalty regime of up to $1.1 million per breach. Under laws that came into effect later last year, maximum penalties are now the higher of $10 million, three times the profit or benefit obtained or, if this cannot be determined, 10 per cent of turnover 

Essentially, Volkswagen’s software made its diesel cars, utes and vans operate in two modes. One that was designed to test well and another that operated when the vehicle was actually being used and which produced higher emissions. This was concealed from Australian regulators and the tens of thousands of Australian consumers driving these vehicles. Volkswagen engineers designed the Two Mode software in 2006 and it was kept secret until it was discovered in 2015. All new motor vehicles supplied or imported into Australia must comply with Australian standards for exhaust emissions. 

If the affected Volkswagen vehicles had been tested while operating in the mode Australians were driving in, they would have exceeded the NOx emissions limits allowed in Australia.

Volkswagen also admitted that it made false representations when applying for the vehicles to be published on the Government’s Green Vehicle Guide website.

The ACCC has meanwhile announced delays in. rollout of the Consumer Data Right (CDR) -

In December 2018, the Treasurer announced the sharing of banking data under the Government’s consumer data right would commence in February 2020. The ACCC draft CDR Rules, which were released on 2 September 2019, detail a phased roll-out of the sharing of consumer data and product reference data (PRD) across the whole of the banking sector over a two year period. Unfortunately, it will not be possible to complete sufficient testing for a February 2020 launch. It is best to get the build of the system right and take steps to have confidence in its secure operation. As a result, the implementation timetable will be adjusted so that the obligations for the four major banks to share consumer data will now commence on 1 July 2020, and those obligations that were to commence in July will be deferred to November 2020. 

Specifically:

• major banks will be required to share consumer data relating to credit and debit cards, deposit accounts and transaction accounts from 1 July 2020 

• major banks will be required to share consumer data relating to mortgage and personal loan accounts from 1 November 2020. 

• Major banks will be obliged to share certain more complex data sets including relating to joint accounts, closed accounts, direct debits and scheduled payments from 1 November 2020.

Obligations to share PRD will remain unchanged. That is:

• major banks will be required to share PRD for credit and debit cards, deposit accounts, transaction accounts, mortgage and personal loan accounts from 1 February 2020

• non-major banks will be required to share PRD for credit and debit cards, deposit accounts and transaction accounts from 1 July 2020.

The ACCC will make the CDR Rules to reflect these changes in January 2020. 

Further consideration will be given to the implementation timing for sharing of consumer data by the non-major banks and the on-boarding of additional accredited data recipients in the first quarter of 2020. 

Entities other than the major banks, who choose to enter CDR early, for instance by becoming an accredited data recipient, will not be obliged to commence sharing consumer data prior to November 2020. Consequential changes may be required to the Rules as a result.

Farmers Rights

"The Substance and Content of Farmers’ Rights – A Framework?' (Griffith University Law School Research Paper) by Charles Lawson and Edwin Bikundo comments

 This report proposes a framework for realising the substance and content of Farmers’ Rights. The framework involves a Hohfeldian analysis of jural relations (analytical jurisprudence) to clarify the right and avoid ambiguity in terminology and slippage and blending between different ideas – helping us in how to think and not what to think. This analytical framework will also clarify the different economic and political implications that follow from the favoured legal relationship and the way that is reflected in domestic laws. A list of rights is also identified from a review of the existing work and effort put into dealing with Farmers’ Rights both within the formal Plant Treaty forums and by institutions and individuals contributing to realising Farmers’ Rights, and existing rights instruments such as the Declaration on the Rights of Peasants and Other People Working in Rural Areas and other relevant rights instruments. By identifying the rights and then the kinds of legal (jural) relationship, future work can more reasonably set out in appropriate rights language the substance and content of Farmers’ Rights. This will, of course, require the appropriate consultations and negotiations. This report merely provides a starting point for a substantive rights discussion and an analytical framework that might be useful.

Hague and AAT Review

"The Hague Judgments Convention in Australian Law' by Michael Douglas, Mary Keyes, Sarah McKibbin and Reid Mortensen in (2019) 47(3) Federal Law Review 420 comments

 In May 2018, the Hague Conference on Private International Law (‘HCCH’) produced a draft convention for the recognition and enforcement of foreign judgments. A Diplomatic Session of the HCCH is expected to take place in 2019 at which this draft ‘Judgments Convention’ will be presented. If a multilateral convention emerges from the Diplomatic Session, Australia is likely to be an early adopter: the Commonwealth Attorney-General’s Department conducted a public consultation on the draft Judgments Convention in 2018. Against that background, this article considers the impact of implementation of the Judgments Convention in Australia. It is argued that domestic legislation that emerges from the Judgments Convention will deliver an overdue refurbishment of the Australian law relating to the recognition and enforcement of foreign judgments. Australia’s adoption of the Judgments Convention ought to be welcomed.

The July report of the Callinan Review of Commonwealth administrative law states

1. The objectives of the Tribunals Amalgamation Act 2015  have not yet been achieved. 

2. The AAT is not operating as a truly amalgamated body; some separation is dictated by differing legislated regimes. To some extent separation is appropriate. 

3. Opinions about decisions often depend upon the philosophy or perspectives of people considering them. There is reason to believe that the AAT is genuinely attempting to promote public trust and confidence: (a) the AAT is, for the various reasons that I have stated, not always meeting community expectations; and (b) in some respects, differing legislation, practice directions, ministerial directions, guidelines and policies of the AAT do not interact efficiently or effectively. 

4. Workloads and backlogs in the AAT are preventing timely and final resolution of matters. 

5. The AAT’s operations and efficiency can be improved through further legislative amendments or non-legislative changes. I have suggested some measures for those. 

6. Funding arrangements for the operations of the AAT are neither appropriate nor consistent across Divisions.

Callinan comments 

The absorption of the Migration Review Tribunal (“MRT”) and the Refugee Review Tribunal (“RRT”), because of their very different legislative regimes and practices, into an amalgamated tribunal, was never going to be an easy task. The difficulties have been immensely compounded by the intimidating backlog of cases in the Migration and Refugee Division (“MRD”) of the AAT. Either or both of two solutions might not be enough to eliminate or even much reduce the backlog, or indeed, cope with its likely increase. The first possible solution, of radical changes to migration law and practice, is a political matter and not within my remit. The second is however, that the deficiency of numbers of Members in the MRD be immediately addressed by the appointment of no fewer than 15 to 30 Members, some only of whom should be part-time Members. 

Measure 1 An event has overtaken, in part, the measure that I thought essential: an immediate enlargement of the Membership of the MRD, that is the appointment on the 29th of November 2018, within days of the completion of my Report, of 33 legally qualified, part-time, Members to the Division. Because, however, there were more than 53,282 applications on hand on 30 June 2018, the welcome appointment of those 33 part-time Members is unlikely to bring the backlog of cases into manageable proportions without further appointments of, preferably, full-time, appropriately legally qualified, Members. 

1.4 Case management as it is now conducted in the AAT is a matter of concern. Differences in practice and procedure, as well as competencies of Members, complicate the operation of the AAT. There is a clear need for a coordinator and manager of the totality of the AAT’s workload in consultation with, and as a delegate of, the President. An appointment of a person to fill that role is, in my view, urgent and necessary. The person who is to fill the role should be a Federal Circuit Court judge as a persona designata. I have been unimpressed by suggestions that have been made to me that the designated person should not be a Federal Circuit Court judge because Deputy Vice Presidents of the AAT are paid a larger salary than a Federal Circuit Court judge, albeit that a Federal Circuit Court judge is a Chapter III appointment and has tenure and other prerequisites of office. Public service pay scales and the settings of the Remuneration Tribunal should not be allowed to defeat essential reform and administrative efficiency. The person holding the office would be acting as the President’s delegate, that is, with the authority of the President. There are many instances in public affairs of the payment of lower remuneration to those who are in charge than those whose duty it is to carry out his or her wishes. Having regard to the present tensions to which I refer in detail in this report, I think it would be better if the appointment to the office were of a person external to the AAT. In Queensland, for example, and in other States, the President of the relevant Civil and Administrative Tribunal is a Supreme Court judge and the Deputy President is a District or County Court judge. That arrangement works well. 

Measure 2 Appoint a suitable and qualified person, a new Federal Circuit Court Judge, to be a full time Judicial Deputy President of all Divisions, to exercise the function of a Senior Case Manager, to arrange and allocate work of the Divisions of the AAT, in consultation with, and as the delegate of, the President, to ensure that the resources of the AAT are used in the most efficient, expeditious and fair performance of the work possible. The Federal Circuit Court judge so appointed would be expected to hear matters in the AAT and cases in the Federal Circuit Court, as available from time to time. 

Measure 3 Case management under the direction and supervision of the Federal Circuit Court judge/full-time Judicial Deputy President (Senior Case Manager) in consultation with the Division Heads will, from time to time, have to be done at the State level in the larger Divisions. That management should ordinarily be done by the Senior Member of the relevant Division in each State, or if appropriate, two States and a Territory, under the overall management and direction of such a Member, a practice leader. The National Practice Managers would no longer be required and may be able to be re-deployed as Members to hearing duties in the MRD. The “discount” from the number of cases that national practice managers in the MRD are now afforded by reason of their duties of case management will no longer be justified. 

1.5 There is in the MRD a “Dashboard”, a display of the numbers of matters finalised by each Member from time to time, a target in effect disguised as a “benchmark”. It has proved to be a distraction of the Members from their work. The work of a Member, as with that of a judge, is not to be evaluated exclusively on a quantitative basis. The complexity of matters is variable. Quantitative evaluation can only be a partial and not always reliable measure of performance. The adoption of the benchmark is driven to some extent by the system of funding of the MRD. I do not think that it serves any practical purpose. 

Measure 4 Consideration should be given to the removal of the “Dashboard” in the MRD. 

1.6 Case management should include the holding of conferences, directions hearings, alternative dispute resolution (“ADR”) of all kinds, including mediations (adjudicative or evaluative), conciliations, and like procedures. All of these should be done by Members, and not by Registry staff. The distinction between the work that the Registry may do, and the work that the Members should do, has become blurred. Conferencing, particularly in an administrative tribunal, can much more readily and fluidly evolve, and productively so, into a conciliation or a mediation, even an adjudicative mediation if agreed. The Members have made an affirmation or oath of office. The expectation of the community would be that a Member and not a Public Servant conduct every episode (event) of an applicant’s application. 

1.7 Training is not enough to make a competent practitioner of ADR. An effective mediator needs to have the trust and confidence of the parties. An effective mediator engages in a process of gaining the confidence of the parties, gentle testing and coaching of parties in their cases, and needs to have a good knowledge of the applicable law and the relevant facts. It is wrong to think that a person who possesses merely training and formal qualification will for those reasons enjoy the confidence of the parties and possess the knowledge and versatility required to conduct ADR. The role of registry staff in conferencing should be restricted to conferences for the purpose of ensuring that the formal requirements of a valid application have been and are being met. 

Measure 5 All conferences (except as to purely formal matters of compliances) and forms of ADR should be done by Members, and not by Registry staff. 

1.8 Much of the work of the AAT is difficult, factually and legally. Capacity to undertake forensic analysis and write reasoned judgments is essential. The better qualified, legally and otherwise, an appointee is, the more opportunity there will be for that appointee to sit in a number of Divisions and, therefore, to facilitate the amalgamation. Application of the 2015 Appointments Protocol to the Administrative Appeals Tribunal is desirable, with the qualification that the appointee must have the legal qualification and the capacity to which I have referred, and be appointed on merit. That Protocol at point 3 states: “… for ... positions, the Attorney-General will seek expressions of interest by public advertisement. The Attorney-General’s Department (AGD) will establish a register to receive applications that address selection criteria developed specifically for the AAT.” 

Measure 6 All further appointments, re-appointments or renewals of appointment to the Membership of the AAT should be of lawyers, admitted or qualified for admission to a Supreme Court of a State or Territory or the High Court of Australia, and on the basis of merit (a possible exception is appointment to the Taxation and Commercial Division to which competent accountants might be appointed). This may happen without repeal of s 7(3)(b) of the AAT Act, although repeal is, for certainty, desirable. 

1.9 Subject to s 17F of the AAT Act, henceforth all appointees (Members) to the AAT should be appointed to and available to sit in all or any Divisions of the AAT as directed by the President from time to time. Before making appointments, the Minister would be free to make such consultations as the Minister sees fit. If the Minister were not to delegate the power of assignment to the President pursuant to s 10A of the AAT Act, the consultation required by ss 17C to 17J should take place in a timely way so that the Member appointed can take up his or her duties immediately upon appointment to the AAT. 

Measure 7 Amendments to the arrangements for the assignment of Members to the Divisions, according to workload, is desirable. At present, some Divisions are not nearly as busy as others. The MRD and the Social Security and Child Support Division (“SSCSD”) are always hard pressed. Others have decisions outstanding for long times. The MRD also will become busier. Flexibility in the deployment of Members is desirable and likely to enhance harmonisation. 

1.10 Each full-time Deputy President and full-time Senior Member of the AAT needs to be assisted by a “Clerk Assistant”. That is the title appropriate to the position and not the one presently, but not universally, of “Associate” used within the AAT. Inflation of job title should be avoided. “Member Support Officer” or “Associate” is an unnecessarily grand title for the mainly clerical job to be done and which should be done at the lowest reasonable cost to the public. 

Measure 8 Each full-time Deputy President and full-time Senior Member of the AAT needs to be assisted by a “Clerk Assistant”. The term “Associate” that Members of the General and other Divisions tend to use for their assistants is an unnecessarily grand title for the largely clerical job to be done and which should be done at low cost to the public. There should be appointed a further group of Clerk Assistants in each State Registry to provide a pool of Clerk Assistants available for assignment to full-time Members especially in, but not confined to the MRD, and part-time Members as sought and approved by the Vice President or Executive Member of the relevant State Registry after consultation with the President or the President’s delegate. These “non-assigned” Clerk Assistants should have the qualifications and be selected and engaged in the same way as assigned Clerk Assistants. The “non-assigned” Clerk Assistants will support the full-time Members and part-time Members to whom they are assigned from time to time. 

Measure 9 The Clerk Assistants should be: (a) engaged for two years at Level 4 of the Australian Public Service; (b) selected, after advertisement for applicants, by a selection panel consisting of the Federal Circuit Court judge referred to earlier, the President as Chair, if he or she wishes, a non-judicial Deputy Presidential Member, another Senior Member and a Registry Official nominated by the President; (c) answerable and reporting to the Member to whom he or she is assigned as Clerk Assistant, in the performance of his or her work of assisting and supporting that Member; and a person who has successfully completed no fewer than ¾ of the subjects required for a degree in law by a recognised Australian University. 

1.11 Members may and should discuss in a collegiate way the legislation and decisions relevant to their work. There is no need for, and it is not appropriate that Registry staff, whether by preparing “templates” for decisions, or giving “legal advice” to Members, participate in making or writing, or assisting in writing, decisions by Members. The role of the Registry is to support the Members by obtaining and providing to the Members, all necessary resources to enable them to decide cases. Those resources should include a non-intrusive but responsive library, staffed by legal librarians, who collate and publish to the Members, on a regular basis, relevant legislation, decisions of Members and of the Courts. The expectation of the Community is, surely, that the whole of the decision making process is undertaken by the Members and not staff of the Public Service, however well-intentioned that staff may be. I have no doubt that the expectation of the community is that decisions of the AAT are truly and exclusively the work of Members. 

Measure 10 The practice of seeking advice from staff by Members should be restricted to requests for the provision of relevant material from the library. Any request by a Member, for the review of or advice on the drafting of decisions is not acceptable. 

1.12 The Registry’s whole purpose should be reinforced in the minds of its staff, that it is to support the Members. Registry staff should be courteous and appropriately respectful to Members, especially during hearings or in the presence of applicants and other parties to matters in the AAT. Members, too, need to be courteous and respectful to the Registry. 

Measure 11 The new Federal Circuit Court judge (Senior Case Manager) should be able to take all such measures as are appropriate to instil in the staff of the Registry and the Members a practice of courtesy and reciprocal support. 

1.13 Engagement of external contractors should be reduced. A deal of the work done by external contractors in the last three years is properly the work of Registry staff. I have learnt that, even by the time of my discussion with the Registrar on the 13th of November 2018, the AAT had engaged a further external consultant at an unstated cost. This engagement is, to say the least, premature, and I think entirely unnecessary, being undertaken, as it is, before even the Parliament and the Attorney-General have considered and decided which, if any of the measures I suggest, might be adopted. Routine work of the Registry is not a “project”. Nor in general does the Registry require logos or designations of a “programme” or “project”, even if one were to assume that either is something more than the performance of the Registry’s ordinary functions. Unnecessary time and money should not be spent on travel, meetings and discussions between Registry staff, for example, in furtherance of the “Registry Transformation Program” initiated at a time when this review was imminent or undertaken. There are five people in the Registry who are Senior Executive Staff in the Public Service. Their profession is administration. It is for them not external consultants to administer the AAT and its amalgamation. 

Measure 12 The AAT should not engage external consultants to do or assist it to do administration. Notwithstanding the Registrar’s statutory power to enter into contracts and the delegation to the Registrar of authority to expend money, as a general practice, external consultants should not be engaged to do administrative work without prior consultation with and approval of the Attorney-General. 

1.14 The Second Review by the General Division of the decisions of the SSCSD should be removed. The provision of a Second Tier of review comes at an expense of time and money. It is discordant with the opportunities for review of decisions in other Divisions. Its existence is a legacy of the absorption of the Social Security Appeals Tribunal (“SSAT”) by the AAT. The existence of a second review may discourage careful attention to the making of decisions within the Department and in the First Tier of the AAT. In suggesting this measure, I have taken into account the Department’s as well as other submissions to the contrary, and relevant statistics. 

Measure 13 The Second Tier of review by the General Division of the SSCSD should be removed. 

1.15 Elements of the support staff of the AAT appear to be unnecessarily and expensively numerous. The Registry should be restructured. That restructure should occur generally in accordance with the organisation chart below to enable redeployment and a reduction of staff to occur, as appropriate, in an orderly manner. External consultants need not be engaged to do this. It would best be done by a small standing committee consisting of the President, the Federal Circuit Court Judge/Senior Case Manager, the Registrar, and such other officials as the President may nominates from time to time.  

1.16 The role of the Executive Deputy Presidents, presently Deputy Presidents assigned by the President to manage the state registries, provides the necessary local focus and point of contact between the President and Division Heads with respect to the conduct of AAT business in each state. There are, however, substantial variations between the registries as to numbers of Members, their levels of appointment, the proportion of full-time and part-time Members, and caseloads. 

Measure 15 The role of the Executive Member (State Manager) appointed by the President should be retained, but not restricted to Deputy Presidents, and could possibly be filled by a Senior Member in the smaller State registries, with non-judicial Deputy Presidents appointed in the larger registries of Sydney, Melbourne and possibly Brisbane. 

1.17 The appointment of Division Heads and Deputy Division Heads should be by the President by way of delegation from the Minister or amendment to the AAT Act. Equally dependent upon the volume of applications and complexity of the matters within a Division the role of Division Head should not be restricted to non-judicial Deputy Presidents. Equally the appointment of a non-judicial Deputy President or Senior Member as a Division Head by the President should be a term as determined by the President from time to time. 

Measure 16 The appointment of all future Division Heads and Deputy Division Heads as such should be made by the President, by way of a delegation of the Minister’s powers by instrument (s 10A of the AAT Act) or amendment to the AAT Act. These roles could be filled by a Deputy President or Senior Member dependent upon the volume of applications and complexity of matters within the respective Division. The term of any such appointment would be at the discretion of the President. 

1.18 As noted in this Report, hearing rooms tend to be allocated to respective Divisions within the AAT throughout the Registries. The larger more formal rooms have generally been retained for the exclusive use of the General and Other Divisions and not available for use by Members hearing applications in the SSCSD or MRD, even when the matter may involve multiple parties, witnesses or a large volume of material. 

Measure 17 Hearing rooms should not be assigned to Divisions but rather be available to all Divisions dependent upon the nature of the hearing and the need for a specific size of hearing room. 

1.19 A strong case has been made for measured limitations upon the often changing material upon which an applicant to the MRD may presently rely. Why this is so is explained in more detail elsewhere in this Report. I was told by several Members of the MRD that during delays in hearings not a small number of applicants contrived situations to support a favourable decision, or ground for appeal to the courts. In Shi v Migration Agents Registration Authority, the High Court said at [99]: “Once it is accepted that the Tribunal is not confined to the record before the primary decision-maker, it follows that, unless there is some statutory basis for confining that further material to such as would bear upon circumstances as they existed at the time of the initial decision, the material before the Tribunal will include information about conduct and events that occurred after the decision under review. If there is any such statutory limitation, it would be found in the legislation which empowered the primary decision-maker to act; there is nothing in the AAT Act which would provide such a limitation.” 

Measure 18 Consideration should be given to legislation for a new information rule conferring a wide discretion upon the AAT to receive or refuse evidence not before the original decision-maker. 

1.20 Presently the manner and form in which documents are received by the AAT varies between the Divisions. The MRD is conducting a trial of electronic lodgement of documents with the Department of Home Affairs (“DHA”). Only files for matters within the jurisdiction of the General Division, however, are regularly prepared properly and in accordance with s 37 of the AAT Act. All files should be in conformity with the section, complete, paginated, and in chronological order when they reach the AAT. 

Measure 19 All files and documents provided to the AAT should be prepared and organised by the respective Departments generally in accordance with s 37 of the AAT Act. 

1.21 The next measure is self-explanatory. 

Measure 20 The power of the AAT to remit matters as provided in s 42D (Power to remit matters to decision-maker for further consideration) should be conferred upon all Divisions. This measure could be achieved by amendment to s 42D by way of, for example: amend sub-s (1) by removing “other than a proceeding in the Social Services and Child Support Division”. 

1.22 The AAT Act by s 43C “purports” to limit appeals in relation to certain migration decisions that the Migration Act 1958 (Cth) (“Migration Act”) describe as being a privative clause or purported privative clause decision and an AAT migration decision. It serves no practical purpose. 

Measure 21 Repeal s 43C of the AAT Act. 

1.23 I have explained the need for the following measure in the chapters concerning Migration and the MRD. In doing that, I have not disregarded the strongly argued support of DHA (and others) for the retention of the Codes of Procedure. 

Measure 22 Repeal the “Codes of Procedure”, an aspirationally exhaustive statement of natural justice, now legislated by the Migration Act 1958 (Cth) (“Migration Act”) in various places in terms generally similar. 

1.24 The identification of a discrete question of law can be problematic. Fact and law are sometimes inextricably mixed. For clarity, appeals should be for errors of law rather than on a question of law. 

Measure 23 Amend s 44 of the AAT Act to provide for appeals from decisions of the AAT, for error of law in lieu of a question of law. 

1.25 Migration interest groups have criticised the Immigration Assessment Authority (“IAA”) and its processes. My inquiries however, have satisfied me that it is an effective and fair decision-maker in the cases with which it deals. It is an appropriate forum for expedition and fair disposition of cases involving similar and relatively simple facts. It is also an appropriate kind of forum to deal with “surges” of cases of these kinds. 

Measure 24 The IAA should be retained and utilised as may be appropriate for time to time. 

1.26 The AAT’s review of small business taxation decisions was the subject of discussions and correspondence with the Commissioner and Second Commissioner of Taxation. There was agreement that there would be utility in the creation of a decision-maker to review, in a relatively informal process, the disputes of taxpayers with the ATO. 

Measure 25 A taxpayer in dispute with the ATO, where the amount in dispute is not more than $100,000 for any one year, or the turnover of the business is not more than $5,000,000 per annum, may, unless the ATO satisfies the AAT that the amount, novelty, or complexity of the dispute or the likely duration of a conference to resolve it, make it inappropriate for the matter to be so determined, by the AAT, elect to have the dispute determined in an informal but adjudicated conference, or other agreed informal adjudicative process, without prejudice to the taxpayer’s rights of appeal for error of law. The Member making the decision may make it in brief form but must make it in writing. All Members of all levels in the Division should be available to conduct conferences as required. 

1.27 It was the view of many of those consulted that the decision in 2015 of the Commonwealth, effectively, to terminate the operation of the former Administrative Review Council (“ARC”) and, instead, transfer its functions to the Attorney-General’s Department (“AGD”), was an imprudent one. There is, in my view, doubt whether “a transfer” is legally possible without legislation. Part V of the AAT Act sets out provisions for the composition (s 49) and appointment of members (s 50), its functions (s 51) and meetings (s 56). The AAT Act clearly assumes the existence of the ARC. It is the duty of the Executive under s 61 of the Constitution to execute and maintain the laws of the Commonwealth. Whether a “transfer” of the functions and powers conferred on the ARC by s 51 of the AAT Act is legally possible or not, it is in my view contrary to the intention and spirit of that Act that any section of any department of government might have a role of overseeing or inquiring into the work of the AAT, that is the reviewer of decisions made by officials of many other departments of government. At the first meeting of the ARC on the 15th of December 1976, the Attorney-General, then Mr Robert Ellicott QC, said that the role of the ARC was “… to ensure that our system of administrative review is as effective and significant in its protection of the citizen as it can be”. The work done by the ARC in the preceding 40 years was useful. There is, in my opinion, a present need for its reinstatement to ensure the implementation of such measures as the Executive and the Parliament may adopt for reform of the AAT in furtherance of the TA Act. The Attorney-General may find it useful to advise the Governor-General to appoint a person, pursuant to s 52(2) of the AAT Act, as a member of the ARC to oversee the implementation of the measures suggested in this Report. 

Measure 26 The ARC should be reinstated and constituted in accordance with Part V of the AAT Act. 

1.28 Its effect is that public servants (in the AGD) would have the role of overseeing the AAT, whose purpose and role is to review the decisions of public servants. 

1.29 It is not for the Members of the MRD who are hearing an application to act as a contradictor of the applicant. Rather, the AAT is to act inquisitorially, not adversarially. In discussions with both Members and practitioners, I found strong support for the establishment of a position of a Counsel Assisting in the MRD, who as a qualified and experienced lawyer, could appear as an advocate, as required, in the public interest. I do not think that a Counsel Assisting would be required in every case. The presence in different and complex cases of such a counsel would relieve the Member of the onerous duties that the Members now have and assist unrepresented applicants. Counsel would not be there as a contradictor but as a vigilant lawyer whose presence and purpose would be of value to both parties as well as the Member. (If a tier of review in the SSCSD is removed it may be useful to have Council Assisting in that Division also as required.) 

Measure 27 A pool of experienced lawyers should be appointed to act as Counsel Assisting in the MRD (and possibly also the SSCSD). 

1.30 I have drawn attention to the serious delays in the Veterans’ Appeals Division. 

Measure 28 Appoint new Members or assign other Members to decide cases in the Veterans’ Appeals Division. 

1.31 It is anomalous that the only migration matters which are not heard within the MRD are those in relation to cancellations of visas or refusals of applications for citizenship on character grounds. If appointees to the Membership of the AAT were appointed to sit in all Divisions, as I suggest, the anomaly would, in time, effectively disappear. It is quite obvious that the MRD is the repository of experience and knowledge in migration matters. A reason why these matters are directed to the General Division seems to be that the Department may have a contradictor in that Division. Logic would, therefore, have all migration matters, including those to which I have just referred, dealt with by the MRD, where there should be a counsel assisting available, as required, and, in particular, in these matters. Despite a perception on the part of some, the General Division is not superior to other Divisions and does not, in my view, have any better ability to deal with any particular matters. 

Measure 29 Consideration should be given to the routing of applications in all migration matters to the MRD. As I have said, Counsel Assisting should be available there and would perform a function in character matters of impartially assisting the Member in the fair resolution of matters according to law. 

1.32 ADR and case conferencing have proved useful within the AAT and have provided a forum to explain to applicants the requirements and material that they require for their applications and whether the material is sufficient to support an application. Presently this process is not available in all Divisions. Either with the consent of the applicant and the department or by Direction of the AAT it should be available across all Divisions of the AAT. The AAT has previously requested that pre-hearing conferences be available in the MRD and SSCSD as recommended in the Metcalfe Report. 

Measure 30 Amendment to the AAT Act to enable access to ADR, case conferencing, conciliation and pre-hearing conferences, either by consent of the applicant and the Department or by direction of the AAT, across all Divisions of the AAT. 

1.33 There are three separate models for the funding of the AAT: one that applied before the amalgamation of the AAT as it was then, and one that applied to each of the former MRT, RRT and the former SSAT. 

1.34 The pre-amalgamation funding of the AAT which now applies to the General and other Divisions (six Divisions) is effectively a “flat” model that is demand driven and based on a pre-determined annual appropriation calculated on expected numbers of applications recoverable in these Divisions. It does not provide for adjustment, either by way of increase or decrease to meet actual changes of numbers within the period of the budget. 

1.35 The funding model of the SSCSD is the model inherited from the former SSAT. It is for an annual appropriation calculated by reference to historical caseload information. The model does however allow for adjustment for changes in Policy. Because the model is not a demand-driven model no adjustments can generally be made during an appropriation period. The MRD is the Division that is most in need of further funding. It is now funded by a demand-driven model inherited from the former MRT-IRT that varied from year to year depending on the number of applications finalised. There is an appropriation which has a “baseline” of 18,000 applications. Of the 40,040 applications finalised by the AAT in the 2017-2018 reporting period 17,960 were by the MRD. A further 37,933 applications were filed during this most recent reporting period of 30 June 2018 leaving 44,436 applications on hand to be reviewed. Adjustments are made at a fixed cost per review for matters finalised in excess of the baseline appropriation of 18,000. The first 2000 finalisations above or below the baseline are “valued” at $2,137 per review, and $3,036 per review for finalisations over the first 2000 matters above or below the baseline. There is a real and pressing need for further Members and resources in this Division. Whilst there is such a deficit in it, reviews to be made will multiply, deserving applicants will continue to live in uncertainty, and dishonest or ineligible applicants will be able to remain within the country. 

Measure 31 Funding of the MRD needs to be changed. A new model for that should be agreed between the relevant Departments and the AAT. 

1.36 The AAT wrote to the Attorney-General, Senator the Honourable George Brandis QC on 22 December 2017 seeking that priority be given to the implementation of a series of recommendations arising from the Metcalfe Report. Of these requested “Priority recommendations”, the AAT sought the full implementation of recommendations: “Powers to hold directions hearings, make directions, dismiss applications for failure to comply with a direction and reinstate applications should be made available in the Migration and Refugee Division (MRD).” 

Measure 32 Power to hold directions hearing, make directions, dismiss applications for failure to comply with a direction and reinstate applications should be made available in the Migration and Refugee Division (MRD). 

Measure 33 A standardised power for the AAT to compel persons to give the AAT information or evidence by issuing a notice or summons should be introduced. Sanction for non-compliance with the notice or summons should also be available. 

Measure 34 The power to make oral decisions should be extended to decisions to vary or set aside a Centrelink decision in the SSCSD. 

1.37 The AAT in July 2016 formulated a document, “Further Potential Legislative Amendments”, which included the following measures with which I agree. The first proposal relates to s 33(1AB) of the AAT Act, which provides that a party to a proceeding before the AAT, and any person representing such a person, must use his or her best endeavours to assist the Tribunal to fulfil the objective in s 2A. Thus, parties and their representatives must act in a way that assists the Tribunal to meets its obligations under the Act. Section 24Z of the AAT Act however provides that s 33 does not apply to the Migration and Refugee Division. As such those appearing as applicants or their representatives do not have a duty as in the other divisions to assist the Tribunal. 

Measure 35 Legislative change should be made to apply s 33 of the AAT Act to applications in the MRD. 

1.38 Section 43AA of the AAT Act allows the AAT to correct obvious errors in the text of a decision or written statement of reasons for the decision, including, obvious clerical or typographical errors, or inconsistencies between the decision and statement of reasons. However, by virtue of the current wording of s 24Z of the AAT Act these provisions for correction do not apply to the MRD. Amendment as proposed would not be inconsistent with the ss 368(2A) and 430(2A) of the Migration Act as those provisions provide that the AAT has no power to vary or revoke a decision after the day and time the written statement setting out the Tribunal’s decision and reasons is made. Extending s 43AA of the AAT Act to apply to the MRD would not be inconsistent with the Migration Act as the corrections would not be a change to the substantive decision that has been made. 

Measure 36 Amend s 24Z of the AAT Act so that s 43AA will apply to the MRD. 

1.39 The AAT has also pointed out that s 33A(1) provides that the AAT may allow or require a person to participate in an ADR process, directions hearing or hearing by telephone or by means of other electronic communications equipment. Section 33A(2) provides that this is not permitted in proceedings to which s 39A of the AAT Act applies; that is, applications relating to adverse or qualified security assessments made by ASIO. The prohibition on allowing a party to participate by telephone or other electronic means currently applies regardless of the type of case “event” to be held and what will be discussed. As such, it therefore includes directions hearings dealing with only procedural matters. The AAT has been informed that the Director-General of Security and his representatives that they have no concerns about participating in directions hearings by telephone when the hearings do not involve discussions of the substantive material in the application. The AAT has proposed that s 33A(2) of the AAT Act be repealed. Whether a party or other person, including a witness, would be allowed or required to participate in a hearing be it by telephone or other electronic means could be then be decided on a case-by-case basis in consultation with the parties. Security considerations would always be paramount. 

Measure 37 Repeal s 33A(2) of the AAT Act or amend to permit directions hearings of a procedural nature and not touching the substantive material in the application to be conducted by telephone or other electronic means. 

1.40 As discussed in my Report, a number of Members and other well-informed persons whom I consulted said there were many instances in which applicants (including many on bridging visas) contrived or deliberately altered their circumstances in Australia for the principal purpose of renewing their visas or establishing a new pathway to a different visa. Whether provisions should be made to disqualify applicants from having automatic access to bridging visas or otherwise deriving rights of residence by these practices is a matter of policy about which it is not for me to make recommendations. Given that s 33A of the AAT Act provides for the participation in hearing by telephone, consideration might however be given to discontinuing an automatic entitlement to bridging visas in relatively simple and straightforward applications such as student visa applications. Hearings of these could be conducted by telephone.

Fair Use

'Can Algorithms Promote Fair Use?' by Peter K You in (2020) 14 FIU Law Review comments

 In the past few years, advances in big data, machine learning and artificial intelligence have generated many questions in the intellectual property area. One question that has attracted growing attention concerns whether algorithms can be better deployed to promote fair use in copyright law. The debate on the feasibility of developing automated fair use systems is not new; it can be traced back to more than a decade ago. Nevertheless, the recent technological advances have invited policymakers and commentators to revisit this earlier debate. 

As part of the symposium on "Intelligent Entertainment: Algorithmic Generation and Regulation of Creative Works," this Article examines whether algorithms can be better deployed to promote fair use in copyright law. It begins by explaining why policymakers and commentators have remained skeptical about such deployment. The article then builds the case for greater deployment of algorithms to promote fair use. It concludes by identifying areas to which policymakers and commentators should pay greater attention if automated fair use systems are to be developed.

Beaches

Clothing Optional?: Nudity and the Law of the Australian Beach' by Theodore Bennett in (2019) 31(1) Bond Law Review 49 comments

This article comprises the first detailed legal analysis of nudity on the Australian beach. It provides an overview of the formal law around public nudity on Australian beaches and unpacks both the cultural significance and practical operation of regulation within th is context. It begins by demonstrating how the Australian beach is a particularly dense nexus of cultural meaning and significance, within which general cultural anxieties about public nudity are amplified. It then sets out the formal legal apparatus that performs the regulatory work that responds to these anxieties, including State/Territory offences relating to public exposure, public behaviour and bathing dress. However, the law ‘in the books’ about beach nudity diverges in significant ways from the law ‘in action’, and this analysis unpacks the practical side of the law of the Australian beach in terms of policing discretion, the application of legal standards of decency and propriety, and social patterns of nude beach use. The formal designation of certain spaces by some States/Territories as ‘free beaches’— where it is not against the law to be nude — is argued to constitute the symbolic containment, rather than endorsement, of public nudity.

Bennett argues

I began writing this article at the end of yet another swelteringly hot Australian summer. For many Australians a swim at one of the nation’s many beaches is a key means of keeping cool during these warmer months, but throughout the year the beach remains a popular location for a range of activities including surfing, sunbathing, exercising, picnicking, etc. However, in addition to constituting a space for relaxation and recreation the beach is also a space governed by regulation. One particularly longstanding and contentious regulatory issue is the extent to which a person can display their body at the beach, and this issue has seen marked change over time. 

In the early 1800s concerns about nudity led to blanket bans on daytime bathing at some Sydney beaches. These bans were subsequently replaced by prohibitions that allowed but restricted beach use on ‘modesty’ grounds, including prohibitions on mixed bathing and prohibitions on undressing at the beach. In subsequent years patrolling ‘beach inspectors’ upheld requirements that swimming costumes sufficiently covered the body of beachgoers, including parts of the arms and legs. The introduction of the bikini to Australian beaches was a flashpoint of concern in the 1940s, but eventually it too was allowed. With such brief clothing becoming acceptable attire at the beach, by the 1970s the contours of contention around bodily display coalesced around the issue of nudity. Public support for allowing nudity on Australian beaches grew during this time and some jurisdictions began to designate specific beaches as spaces where public nudity was lawful. Such beaches are referred to by various names, including ‘nude beaches’ and ‘nudist beaches’, but this article will refer to them as ‘free beaches’. This choice of terminology reflects that there is no requirement that a person making use of such a beach be either nude or a nudist, but instead can make a ‘free’ decision to choose whether or not to be nude without fear of criminal legal repercussions (though the exact legal status of nudity on these beaches is more complex and will be discussed in detail in Parts III-IV below). However, the issue of nudity on Australian beaches has not been laid to rest. Political skirmishes continue to break out about whether nudity should be allowed at certain beaches, and a number of the ‘free beaches’ have subsequently been disestablished over time. The extent to which the body can be displayed on Australian beaches is thus a regulatory issue marked by both ongoing significance and ongoing turbulence. Yet despite all of this, the laws around nude beach use have raised barely a ripple within legal academia. 

This article comprises the first detailed legal analysis of nudity on the Australian beach. The purpose of his analysis is two-fold: firstly, to provide an overview of the formal law around public nudity on Australian beaches, and, secondly, to unpack the cultural significance and practical operation of regulation within this context. In order to ground this analysis, this article draws on legal material about public order criminal offences, sociological and historical work dealing with social nudity in Australia, and cultural studies commentary on the beach as a particular kind of Australian space. The broad scope of this analysis is necessary because of the cultural importance of the beach within Australian society as well as the fact that, as legal academia has long recognised, close examination of an area of law will typically reveal that there are ‘distinctions between law in the books and law in action, between the rules that purport to govern the relations of man and man [sic] and those that in fact govern them’. These distinctions are particularly evident when analysing nudity on Australian beaches as clear divergences open up between the formal content of the laws relating to public nudity (beach law ‘in the books’) and the ‘living law’ of how nudity at the beach actually takes place and how it is policed and judged (beach law ‘in action’). The analysis is structured across the following three Parts. Part II contextualises the law in this area by engaging with the cultural meanings that attach to the Australian beach and to public nudity. Part III identifies the formal legal structures that govern the legal status of nudity on Australian beaches, focusing on the overlapping patchwork of State/Territory-based criminal offences that prohibit certain kinds of public exposure, public behaviour and bathing dress, as well as the legal exemptions granted to designated ‘free beaches’. Part IV unpacks how the legal rules discussed in Part III are suspended, modified or otherwise operate in unpredictable ways in their practical application to nude beach use in Australia. 

Before the analysis can progress, some qualifications are required. This article is concerned solely with laws about nudity itself and only insofar as this nudity occurs within the context of the beach. Its focus is on nude beachgoers who may want to bathe, sunbathe or otherwise avail themselves of the space of the beach in much the same way as clothed beachgoers. These nude beachgoers may include lifestyle nudists, aesthetes in search of a more even tan, those who enjoy the feel of sun/sand/sea on their bare skin, etc. This article will not deal with atypical beach behaviour that could potentially involve nudity (such as public sex) nor will it deal with nudity in other contexts (such as public protests). It will also not deal with the issue of female toplessness as this is a particular kind of partial nudity that warrants its own individual analysis. This article will also not address the law of the beach in relation to the Australian Capital Territory because this jurisdiction is effectively landlocked.

Conscience

Given current controversy over the second exposure draft of the Commonwealth Religious Freedoms Bill it is interesting to note 'Medical referral for abortion and freedom of conscience in Australian law' by Joanne Howe and Suzanne le Mire in (2019) 34(1) Journal of Law and Religion 85, which comments

This article examines legislative changes related to abortion regulation in Australia that create obligations of medical referral on practitioners who have a conscientious objection to abortion. Despite a significant Australian history of accepting secularized conscience claims, particularly in the field of military conscription, the limitation of conscience claims about abortion can be traced to a failure to appreciate the significant secular arguments that can be made to support such claims. We draw on arguments of plurality and pragmatism as capable of providing a firm foundation for legislative protections of freedom of conscience in the case of medical referral for abortion. These justifications are not dependent on religious grounds, and therefore they have the potential to be relevant and persuasive in a secular society such as Australia. Acceptance of a pluralistic argument in favor of freedom of conscience is a powerful commitment to the creation of a society that values human autonomy and a diversity of opinion. It sits comfortably with the democratic values that are enshrined in the Australian political system and institutions. It avoids the potential damage to the individual that may be wrought when conscience is overridden by state compulsion.

The authors argue

The freedom of conscience of medical practitioners to refuse referral for abortion is a vexed issue. In Australia, it necessitates balancing the rights of patients to access abortion, which is a legal and medically accepted procedure, and the rights of medical practitioners not to refer for a procedure that is contrary to their conscience. In 2013, two doctors in the Australian state of Victoria were subject to investigation for potentially contravening their referral obligation enshrined in the Abortion Law Reform Act 2008 (Vic), which provides that medical practitioners who conscientiously object to abortion must, nevertheless, “refer the woman to another registered health practitioner . . . who the practitioner knows does not have a conscientious objection to abortion.” For one of the medical practitioners, the investigation followed revelations that a doctor had refused to refer a patient for an abortion to facilitate sex selection. In the second case, a Facebook conversation involving a doctor who indicated a conscientious objection to abortion was reported to the Australian Medical Board. In his defense, the doctor wrote to the chairperson of the Security of Acts and Regulation Committee, “I am unable to refer for an abortion, because reason and logic lead me to conclude that it is murder.” The doctor was reportedly cautioned. Following these two cases, a private members’ bill was introduced to the Victorian Parliament seeking to remove the obligation to refer. The bill failed to garner support and was defeated in 2016. The Victorian legislative model led to both Tasmania, and more recently, the Northern Territory, introducing an obligation on medical practitioners to refer for abortion despite their own conscience objection. With these reforms, Victoria, Tasmania, and the Northern Territory became the three Australian jurisdictions to take the strongest position in requiring referral for abortion, despite claims of conscience. A bill proposing similar changes in New South Wales was defeated, though concerns about the bill extended beyond the changes to conscientious objection. 

These reforms attracted considerable controversy at the time of enactment. After the Victorian Act was passed one commentator noted, “part of the controversy also stems from the fact that the provision is so unique ... the anomalous nature of the provision has led to questions about its necessity.” The reforms remain inconsistent with legislation in other states, as well as the code of conduct designed to align with Australian national law on regulating medical practice. It may be that this approach indicates a transition in Australian abortion law to prioritize a woman’s right to access health care over religious and secular claims of conscience. 

Conscientious objection seeks to balance the interests of the individual and the interests of society. At stake is the freedom of individuals to follow their own beliefs in matters of religion and morality. Freedom of conscience protects the right of individuals to adhere to a religious and moral position, independent of others’ viewpoints and regardless of others’ objections. Conscientious objection also involves complex questions about the interaction between religion and state, morality, personal autonomy, integrity, and individual and societal good. The areas where it is asserted tend to excite passionate disagreement. Issues like euthanasia, abortion, and military service are ones where convictions are often firmly held and contrary views regarded with suspicion, if not disdain. Conscientious objection also emerged as a point of controversy in the course of a national referendum that approved legalizing same-sex marriage. The conservative Coalition Government refused to legislate for freedom of conscience as part of the legislation permitting same-sex marriage, instead convening an inquiry “to examine whether Australian law adequately protects the human right to freedom of religion.” 

Despite the presence of strongly held views, it is areas such as these that should be particularly open to scrutiny and thoughtful, even if contrary, argument should be entertained. Accordingly, we argue that society has strong reasons to protect the freedom of conscience of medical practitioners from requirements to advise on, provide, and refer for abortion. Our central argument is that freedom of conscience in the context of referral for abortion is worth supporting for two reasons, first, as an approach that values human integrity and promotes a society in which a healthy diversity of views is tolerated (pluralism), and, second, because regulation that seeks to override conscientious objection is generally ineffective in the face of genuine and strongly held beliefs (pragmatism). Finally, we posit that such an approach is consistent with the history of liberalization of freedom of conscience, including by permitting secularized conscience, in Australia. 

Although the religious and philosophical arguments relating to conscientious objection have been rehearsed before, mandatory referral for abortion is a relatively recent legal development in Australia. It is, therefore, timely to consider the specific issues arising from legal constraints on the right of medical practitioners who have conscientious objection to abortion not to refer their patients in need of termination to another doctor. We start our analysis in this article by providing a general background and context to Australian abortion law. We then examine the nature of conscientious objection and the traditional debates around the role of the law in regulating conscientious objection. We then turn to the issue of regulation of conscientious objection to referral for abortion. It is here that the unusually limited approach to conscientious objection has been adopted. We consider the arguments that are made in favor of restricting conscientious objection in the abortion context. In particular, we argue that pragmatism and the advantages of a pluralistic society provide strong arguments for permitting conscientious objection. 

As a threshold matter we are not suggesting that conscientious objection to abortion should be unlimited. For example, we make no argument that conscientious objection should be permitted in the emergency situation, where a woman’s life is at risk. Our focus is on whether a legislative obligation to refer is legally and ethically justified.