Lecture 10: Legal Change. Interaction of case law and statute. Law Reform.
Dr Fady Aoun w/ thanks to Prof Barbara Mc of Law (JD)
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Senior trial judges from England and Australia speak about judging Tuesday, 8 March 2022, 6.00pm (ADST) 7.00am (GMT)
A distinguished panel of speakers will discuss important aspects of judging in practice. The topics to be covered include: finding facts; decisions on the papers; writing judgments; case management; closed hearings; and ex tempore judgments.
Sir Ross C, Professor of Law at the London School of Economics and a former judge of the High Court, Queen’s Bench Division, will be the Chair.
(Further details to be posted on Canvas. Registration essential)
What we will look at in this lecture on Legal Change
1.The value of dissenting judgments: an example: Chester v Waverley Corporation (1939) 62 CLR 1; [1939] HCA 25
2.International convention to Statute; interface of Commonwealth Statute and State Statute
3. How can we change the law? Comparing statutory law reform and common law reform as means of change.
The University of Kirby on Judicial Dissent
‘A dissent, expressing disagreement over the outcome of a case, is an appeal to the future[9]. Before 1977, when the High Court served for life, they often lived long enough to see their dissents accepted. For example, from 1907 insisted on a different way of interpreting our Constitution[10] that was not fully accepted until 1921[11]. It has survived ever since. patiently laid down his approach to the law which was gradually embraced during his thirty-five year service[12]. Today, because High Court judges must retire at 70[13], the appeal of dissent must generally be addressed to the judge’s successors, to the legal profession and to the young.’
• , ‘Judicial Dissent’ (Speech, University, 26 February 2005) The University of Sydney
(emphasis added) (citations omitted) available here
on Judicial Dissent
‘There are many in society who hate disagreement, demand unanimity and insist on more consensus, including amongst appellate judges. They speak endlessly of the need for clarity and certainty in the law. Truly, these are goals to be attained if at all possible. But judges must not achieve them at the sacrifice of truth, independence and conscience. There are many failings in the judicial system of Australia for it is a human institution. But amongst its greatest strengths is the role it gives to judges to state their honest opinions. As citizens, we can agree or disagree with those opinions. But we must vigilantly protect, and cherish, these open procedures. And that includes the expression of disagreement, where it exists.
The dissenting judge may, or may not, be vindicated by history. However, the true vindication for the dissenting judge arises at the moment of the decision when truth, as it is seen, is spoken and conscience is clear. The right and duty to dissent signals that every Australian judge, whatever his or her values, honestly states the law and its application to the case as conscience dictates. If we think about it, we would not have it any other way. Going along with the numbers and with sheer power may work in
Tammany Hall. It has no place in an Australian courtroom.’
• , ‘Judicial Dissent’ (Speech, University, 26 February 2005) available here
The University of value of dissenting judgments
– Dissenting judgments: not merely the judge being difficult… they:
– show different interpretations and approaches to the law
– show that the law is not so certain that the judgment below was untenable
– may put perspectives that take a bit of getting used to
– set the scene for future challenges to the status quo/existing law, so that change is more predictable
– limit the impact of the majority decision by pointing out other issues or undesirable consequences
The University of value of dissenting judgments in influencing legal change: Recovery of nervous shock in negligence actions
– ChestervWaverleyCorporation(1939)62CLR1;[1939]HCA25
– Facts:8yearoldMaxChesterfellinaditchdugbyWaverley Council in his residential street where local children played. The ditch had filled with muddy water. His body was not discovered for several hours, after a frantic search by his mother and others. His mother saw his body dragged from the ditch. She suffered “nervous shock” in the form of a psychiatric illness.
– Issue:CouldsherecoverfromtheCouncilinnegligence?
– Majority of 3 judges: NO. Because she did not see him being killed,
injured or put in peril.
– DISSENT: Moving and quite persuasive 35-page dissent by Evatt J arguing that the prolonged agony of the mother of the lost child was foreseeable.
The University of v Waverley Corporation (1939) 62 CLR 1
‘Because of the great importance of the present case I have set out my reasons at length. I think that the plaintiff was entitled to have her claim considered by the jury and that the trial judge erred in nonsuiting her’
• Evatt J at 48 (in dissent) The University of of Evatt J’s dissenting judgment:
– ImmediatelegislativeresponseinNSW:LawReform (Miscellaneous Provisions) Act 1944 passed in NSW only.
Section 4:
The liability of any person in respect of injury caused after the commencement of this Act by an act, neglect or default by which any other person is killed, injured or put in peril, shall extend to include liability for injury arising wholly or in part from mental or nervous shock sustained by –
(a) a parent or the spouse of the person so killed, injured or put in peril; or
(b)any other member of the family of the person so killed, injured or put in peril where such person was killed, injured or put in peril within the sight or hearing of such member of the family.
– Note:“nervousshock”notdefined.Wherewouldcourt look for definition of this?
– Note:appliestoanyact,includingintentionalacts,not just negligence
The University of states
– But in other states, the common law continued to develop but slowly.
– Developments in UK: the House of Lords preferred Evatt J’s judgment to that of the majority.
– Chester decision overruled in Jaensch v Coffey (HCA) 1984: enough that wife of victim saw the immediate aftermath of the accident. All they needed to decide on the facts.
– Extended again in Annetts v Australian Stations (HCA) 2002: not essential that parents of missing boys saw their death or immediate aftermath in order to recover for psychiatric illness. Not essential that their illness be caused by a sudden shock. (The common law does not operate like a statute.)
The University of law in NSW now limited by Civil Liability Act 2002 (NSW)
A person ( “the defendant”) does not owe a duty of care to another person ( “the plaintiff” )to take care not to cause the plaintiff mental harm unless the defendant ought to
have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken.
(2)For the purposes of the application of this section in respect of pure mental harm, the circumstances of the case include the following:
(a)whether or not the mental harm was suffered as the result of a sudden shock, (b)whether the plaintiff witnessed, at the scene, a person being killed, injured or
put in peril,
(c)the nature of the relationship between the plaintiff and any person killed, injured or put in peril,
(d)whether or not there was a pre-existing relationship between the plaintiff and the defendant.
The plaintiff is not entitled to recover damages for pure mental harm unless: (a) the plaintiff witnessed, at the scene, the victim being killed, injured or put in peril, or (b) the plaintiff is a close member of the family of the victim.
The University of not in Queensland: common law applies
– Whomighthavesufferedtraumafromwitnessingorhearingabout the tragic accident at DreamWorld in 2016? Are Queensland
claimants better or worse off without a statute?
– https://www.abc.net.au/news/2020-02-24/dreamworld-accident- inquest-coroner-findings/11993742
– WhoclaimedintheUKaftertheHillsbroughFootballdisaster?
– https://www.bbc.com/news/uk-19545126
– HouseofLordsimposed3limitsonclaimants.Wasthisarbitrary? Compare the common law and the statutory restrictions on liability.
– Isit“arbitrary”ifthelegislaturedecidestolimitliabilityto certain relatives or to people who were there? what do we assume legislatures have done before legislating?
The University of Liability Act 1953 (SA) as amended – “ Section 53(1):
Damages may only be awarded for mental harm if the injured person — (a) was physically injured in the accident or was present at the scene of the accident when the accident occurred; or (b) is a parent, spouse or child of a person killed, injured or endangered in the accident
The University of v Philcox (2015) 255 CLR 304 at [49] – KeaneJ(citationsomitted):
The requirement of presence at the scene is not, as the respondent argued, an arbitrary limit upon the recovery of damages to be strictly confined in its effect. Rather, it is a limitation upon the recovery of damages which reflects an intelligible legislative choice to limit the extent of liability for the consequences of a defendant’s negligence. The exclusion of liability effected by s 53(1)(a) of the Act is an informed and rational response to issues thrown up by the case law (103) as to where the law should best draw the line to limit indeterminate liability and unreasonable or disproportionate burdens upon defendants and those who are obliged, under private or public insurance arrangements, to defray the cost of meeting those burdens. The exclusion reflects a balancing of interests (104), the rationale of which is readily intelligible. Arguments as to whether the line drawn by the legislation accords with the latest stage in the ongoing development (105) of the common law by the courts are beside the point; it is wrong to characterise the exclusionary line drawn by the legislation as arbitrary, so as to justify reading the expression “present at the scene” as meaning no more than in the
same place as the accident.
The University of University of convention to Statute; interface of Commonwealth Statute and State Statute
Background: Tasmanian Law
The relevant impugned provisions of the Tasmanian Criminal Code Act 1924 (TAS) were contained in Chapter XIV – Crimes Against Morality. They were:
s122. Any person who –
(a) has sexual intercourse with any person against the order of nature; … or (c) consents to a male person having sexual intercourse with him or her against the order of nature,
is guilty of a crime.
Charge: Unnatural sexual intercourse.
s123. Any male person who, whether in public or private, commits any indecent assault upon, or other acts of gross indecency with, another male person, or procures another male person to commit any act of gross indecency with himself or any other male person, is guilty of a crime.
Charge: Indecent practice between persons. The University of journey from International Convention to Statute
• (known as the ‘author’) filed a complaint (referred to as a ‘communication’) to the UN Human Rights Committee accordance with the Rules and Procedures in the ICCPR and the First Optional
Protocol to the ICCPR:
• see Toonen v. Australia, Communication No. 488/1992, U.N. Doc
CCPR/C/50/D/488/1992 (1994) available here
• Mr Toonen complained that, because of Sections 122 (a) and (c) and
123 of the Tasmanian Criminal Code he was a victim of violations by
Australia of:
• Articles17 (privacy),
• Article 2.1 (non discrimination) and
• Article 26 (equality before the law) of the ICCPR.
• Mr Toonen and the Federal Government made submissions to the Committee.
• The Federal Government’s submission conveyed the views of the Tasmanian Government on Mr Toonen’s complaint.
The University of Covenant on Civil and Political Rights
Australia is a signatory to the International Covenant on Civil and Political Rights available here
Article 17
1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
2. Everyone has the right to the protection of the law against such interference or attacks
The University of ’s submission to HRC
Toonen, submission to the committee, stated that, inter alia, the Tasmanian laws:
Empower[ed] Tasmanian police officers to investigate intimate aspects of his private life and to detain him, if they have reason to believe that he is involved in sexual activities which contravene the above sections. He adds that the Director of Public Prosecutions announced, in August 1988, that proceedings pursuant to Sections 122(a), (c) and 123 would be initiated if there was sufficient evidence of the commission of a crime.
Tasmanian government claimed there have not been any charges pursuant to ss 123 and 123 for many years
Nevertheless, Toonen argued that because of his high-profile LGBT activism, his activities as an HIV/AIDS worker, and his long- term relationship with another man, his private life and liberty
were threatened by the continued existence of these laws The University of RC Views:
’s appendix to the decision
‘The discriminatory criminal legislation at issue here is not strictly speaking “unlawful” but it is incompatible with the Covenant, as it limits the right to equality before the law. In my view, the criminalization operating under Sections 122 and 123 of the Tasmanian Criminal Code interferes with privacy to an unjustifiable extent and, therefore, also constitutes a violation of article 17, paragraph 1 . . . I share the Committee’s opinion that an effective remedy would be the repeal of Sections 122(a), (c) and 123, of the Tasmanian Criminal Code.’
The University of ftermath
Tasmanian government still refused to repeal the offending laws following the HRC views, so the Federal government passed the Human Rights (Sexual Conduct) Act 1994 (Cth) (see overleaf)
The Tasmanian government continued to refuse to repeal the laws, so Croome, gay right activist and academic, then applied to the High Court of Australia for a ruling as to whether the Tasmanian laws were inconsistent with the Federal Human Rights (Sexual Conduct) Act: see & Another v. The State of Tasmania (1997) 91 CLR 119.
The Tasmanian government sought to have the case struck out, and after much obfuscation and delay, finally repealed the offending provisions of the Criminal Code.
The University of wealth Government response post HRC ‘views’
HUMAN RIGHTS (SEXUAL CONDUCT) ACT 1994
Table of Provisions
Long Title
An Act to implement Australia’s international obligations under Article 17 of the International Covenant on Civil and Political Rights 1 Short title [see Note 1]
2 Commencement [see Note 1]
3 Act extends to external Territories
4 Arbitrary interferences with privacy
The University of UMAN RIGHTS (SEXUAL CONDUCT) ACT 1994 – SECT 4 Arbitrary interferences with privacy
Arbitrary interferences with privacy
(1) Sexual conduct involving only consenting adults acting in private is not to be subject, by or under any law of the Commonwealth, a State or a Territory, to any arbitrary interference with privacy within the meaning of Article 17 of the International Covenant on Civil and Political Rights.
Note: Article 17 of the International Covenant on Civil and Political Rights is set out in Schedule 2 to the Australian Human Rights Commission Act 1986 .
(2) For the purposes of this section, an adult is a person who is 18 years old or more.
The University of about law reform
– Whataretheadvantagesanddisadvantagesofcommonlaw over statute?
– Commonlaw:
– Mustawaitacaseoranappeal-dependsonparties’means
(cf Toh v Suh?) and determination
– Islimitedtothefacts.Courtscannotlegislate.Butcanexpress general principles
– Courtsareboundbyprecedent
– Butcanchangewhennecessary
– Notdependantonpoliticalwillorpopularity
– Courtscannotsay”pass”ondifficultissue(cf.TattingJinthe fictional case of the Speluncean Explorers)
The University of reform options
– ReformbyStatute
– Canbebasedonresearchandsubmissionsaboutimpacton
– Parliamentcanactonowninitiative
– Parliamentcancoverthefield
– Parliamentcanlimitliabilitiesandobligationsandremedies
– Parliamentcancreatedefences
– Parliamentcanprepareforthefuture
– dependsonpoliticalwillandpriorities
– Dependsonconsensus-someissuestoohard
– Canbecomeentrenchedandimmovable,needingreform – Badlegislationmuststillbeapplied
– Canhaveunintendedconsequences The University of Sydney
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