The Inaugural Derek Fielding Memorial Lecture

WRITTEN BY: JOCELYN BOSSE

On Tuesday 14th July, I had the pleasure of attending the Hon Michael Kirby's speech at the Inaugural Derek Fielding Memorial Lecture, along with JATL executive member Christine Chang. The lecture was on the subject of "Magna Carta, Bastille Day, North Korea and the Protection of Human Freedoms."

President Michael Cope of the Queensland Council for Civil Liberties introduced Kirby, at one point noting his twenty-three honorary degrees, which Kirby amusingly remarked was "Not enough!"

Kirby highlighted the importance of the fifteenth year of a century. Important dates in legal and political history have included such events as:

• Battle of Waterloo in 1815, which marked the end of the French Revolution
• Signing of the Magna Carta in 1215 by King John of England
• Landing of Australian troops at Gallipoli in 1915, a tragic but pivotal point in Australian history

Kirby recounted his involvement in some significant cases relating to civil liberties, including Parker v DPP (1992) 28 NSWLR 282, in which Kirby took the opportunity to cement the common practice that where the judge is contemplating an increased sentence, the judge should indicate this fact so that the appellant can consider whether or not to apply for leave to withdraw the appeal.

The Parker decision came years after Kirby had an experience where a judge failed to give the usual warning that they were considering a harsher sentence, and a client received gaol time where they had previously been sentenced to none.

Kirby also remarked upon the decision of Green v The Queen (1996), which established the controversial 'gay panic' defence for killing someone after an apparently unwanted, non-violent sexual approach. He reiterated the point made in his dissenting judgment in the case:

“If every woman who was the subject of a “gentle”, “non-aggressive” although persistent sexual advance, in a comparable situation to that described in the evidence in this case could respond with brutal violence rising to an intention to kill or inflict grievous bodily harm on the male importuning her, and then claim provocation after a homicide, the law of provocation would be sorely tested and undesirably extended.”

— Justice Kirby, Green v The Queen (1996) 191 CLR 334

The Green decision is particularly important given that Queensland still retains the defence.

Kirby reflected frequently and positively on his time in the Council for Civil Liberties, but lamented that there were many times where the CCL was slow to act, or did not act at all. Such issues as the White Australia policy, gay rights, the treatment of Aboriginal and Torres Strait Islander Australians and women's issues were all neglected.

Kirby mused that in 30 years time, we may look back in shame at any number of issues which are currently being neglected by civil libertarians, and suggested that these might include:

• Disproportionate incarceration of Aboriginal Australians
• Terror laws which have been recently enacted (Justice Kirby highlighted the worrying similarities to the legal changes in Uruguay which eventually caused their democracy to crumble).
• Bill of rights, or the lack thereof, in Australia.
• The fact that Members of the Refugee Review Tribunal (RRT) have not been reappointed, which represents a worrying trend given the complex and critical nature of the work being done.

Justice Kirby with Ban Ki-moon, Secretary-General of the United Nations

In a brief conclusion, which was condensed due to his impending flight back to Sydney, Kirby noted that the issue of the Democratic People's Republic of Korea (or, North Korea) was of considerable importance. He assured the audience that, although he could not speak much on the topic that night, a wealth of information on the topic is available on his website.

Kirby has been working with the UN Human Rights Council to address the alleged human rights violations in the Democratic People's Republic of Korea.

Data Privacy: A European Perspective

Written by: Madeleine Gifford

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Justice and the Law writer Madeleine Gifford

Last month the European Commission confirmed that it still aims to adopt the General Data Protection Regulation (GDPR) before the end of the year.[1] This new set of laws aims to comprehensively protect data privacy, taking into consideration recent technological advancements.

With the exception of the UK, there has mostly been an internal consensus on the underlying values of the legislation, with disagreements mainly concerning administrative issues.[2]

The harshest criticisms of the GDPR have originated from the US. American companies and interest groups active in Europe have argued that overregulation will stifle innovation and harm commercial interests.[3] Following the Snowden disclosures negotiations of the Transatlantic Trade and Investment Partnership and the Safe Harbor agreement have become more strained.[4] Clear divisions over privacy in governmental and commercial areas have resulted in frequent ideological clashes between the EU and US. These issues go beyond the struggle between commercial and consumer interests, to also encapsulate what James Whitman calls the clash between ‘Dignity and Liberty’, in this case the clash between the right to privacy and freedom of speech.[5] This debate was exemplified in the Costeja decision, where many American commentators argued the decision infringed on freedom of information and made Google a moral arbitrator of content.[6] In response, the US’s piecemeal approach to legislation was criticised for not providing adequate legal solutions for people who wished to remove images of dead family members, exploitative images, nude photos or revenge porn from their country’s Google search results.[7]  

For an Australian observer, analysis of these differing approaches is valuable in forming our own approach to data privacy. To better understand privacy concerns within Europe, I’ll be talking to author Yvonne Hofstetter who has become a staple in the German media on topics regarding technological advancements and information privacy.

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Author Yvonne Hofstetter

MG: Thank you for taking the time to speak with me today. To start off, could you provide some examples of privacy infringement and its implications?

YH: There are numerous examples. Bank loans can be influenced by an individual’s Internet history. For example reliability could be determined based on the socio-economic status of friends on social media.  From the analytics of your telephone behavior (for example whether you make calls during the evenings or weekends) analysts can make conclusions about your character.

Data brokers can use these pieces of information as part of a portfolio in determining your reliability and stability. The worry is that data brokers will sell this information to credit scoring firms. There is concern about how this may affect the health insurance industry, and how data may be used to discriminate against individuals. With the introduction of new technologies we need to have these issues in mind. For example, Oral B has introduced a new toothbrush that records the time and manner in which you brush, then sends the data to your dentist. We need the regulations in place so that insurance premiums aren’t unfairly affected if dentists pass this information onto insurance firms.[8]

MG: So what legislative steps should be taken to prevent invasions of privacy? Should it be under the GDPR or through the laws of individual countries?

YH: Data privacy laws are only part of the solution. I don’t think you can fix everything through legal reforms. Technology professionals should build privacy measures into their systems. They need built-in privacy. Legal protections are still of paramount importance. Negative freedoms that allow people to avoid digital platforms should be entrenched in legislation, otherwise discrimination will inevitably occur.

For example, a friend of mine moved to the United States and applied for health insurance. As a military officer it was against protocol for him to have Facebook or other social media accounts. Because the insurance firm used social media to gauge the risk of individual’s leisure and recreational pursuits, and because he didn’t use any of these platforms, he was automatically charged a fifteen percent higher rate as they could not conduct a risk evaluation. This is the type of discrimination that needs to be avoided. However, different nations are going to combat these types of problems in different ways. Europe puts a greater focus on human dignity, whilst America and to some extent other countries such as England or Australia put a greater focus on the concept of freedom.  

MG: In the wake of the Costeja decision, Google will now take requests for content to be taken down.[9] In Germany you can apply for your house to be removed from Google Maps.[10] These solutions seem more reactionary than pre-emptive. Are there any ways that privacy violations could be curbed before they occur?  For example, prior to the program’s launch all domestic violence shelters were removed from Google Maps.[11]

YH: Companies could take pre-emptive steps but they won’t, as it’s not their job. To self-regulate in such a way is not the task of a commercial institution.  It is the job of governments to ensure that Internet infrastructure is compliant with privacy standards. Corporations are going to push the limits. For example, Airbnb or Uber violate many regulations and laws. There was a constant back and forth between Uber and the German courts in 2014.[12] Despite a lengthy privacy policy, Airbnb still does not fully explain who has access to identity verification files. Up until last year Airbnb had no ban on secretly filming guests. Only in November did they finally adopt a disclosure requirement for surveillance equipment.[13]

MG: After recent criticism Uber hired IBM's former chief privacy officer Harriet Pearson to review their data privacy program.[14] Uber appears to be one of a string of companies to have recently pledged more transparency, however these steps don’t lead to any enforceable consequences for misconduct.[15]

YH: Indeed and with new technologies such as the Google Glass you can see a continuation of legal disputes well into the future. In my opinion Google Glass could potentially violate up to fifty different German laws. It is the job of European governments to enforce legal rights.

MG: Privacy concerns regarding something like Google Glass go beyond Continental Europe. In America and the UK it is already looking like the device will be banned in cinemas, cafes, hospitals, casinos and when driving.[16] In Australia last year the ALRC proposed a new national offence for those recording private conversations with new technologies such as Google Glass in mind.[17] This reflects global concern regarding privacy issues, however at the same time a transatlantic culture clash exists.  The European mindset has obviously been shaped by historical violations of privacy under fascist and communist regimes.[18] Data protection is a fundamental right enshrined in Article 8 of the Charter of Fundamental Rights of the European Union.[19]

In comparison the United States has no explicit constitutional protections from privacy violations by businesses and concerns are often raised that privacy laws may infringe on freedom of speech.[20] Arguably more relaxed laws have allowed the US to reap the benefits of big data, creating more innovative and competitive markets. Big data is set to revolutionise the US health care industry and is likely to improve the lives of millions in the process.[21]

In your opinion is this culture clash between the US and EU reconcilable? 

YH: Definitely it is a transatlantic cultural clash and it will not be worked out universally. In the negotiations of the Transatlantic Trade and Investment Partnership (in which they want an open trade zone between the US and Europe) this clash between the values of freedom of speech and human dignity, and to an extent between capitalism and social democracy, can be seen. 

The US will dominate because they can maximise profits, whilst European markets are subject to greater restrictions. We are losing technology. The US is simply stronger at exporting ideas, business models and their understanding of economics.  Already the European military industry is becoming an extended part of the American market, as we are losing production capabilities. Commercially there are no major smart phones being fully produced in Europe therefore we have to accept products with built-in surveillance.  We have no alternatives and with no alternatives can we put our ideals to universal levels? Certainly not.

MG: The GDPR plans to penalize foreign companies acting in Europe €100 000 000 or up to 5% of their annual worldwide turnover for data breaches.[22] From your answer I’m guessing you don’t think this will be enforceable?

YH: I think what first needs to be highlighted is that there is rampant lobbyism in Europe. In Brussels firms will set up their lobbyist teams who will apply written proposals. What’s concerning is that some of these proposals will be copied verbatim into directives and laws. I personally think Google has had too much influence upon the directive. An example of this type of undue influence can be seen in the scandal regarding Belgian MEP Louis Michel who was accused of being influenced by lobbyists.[23]

MG: Michels is not alone - in 2013 senior British MEPs far more blatantly copied lobby papers.[24] Yet this did not breach parliamentary rules and lobbyists have the right to have their positions considered. If they didn’t have their concerns heard the issue would no longer be about balancing corporate and consumer interests but excluding corporate interests all together. Also if companies such as Google hold such influence, how have such high penalty rates been supported?

YH: The GDPR is perhaps the most aggressively lobbied legislative reform in EU history. A less vigilant approach has been proven to fail and any victories again have come through vigilance. Despite potential biases I do think the GDPR will have a positive effect. It will help entrench the right to be forgotten. It will also make it easier for companies, who will now only have to look at one set of laws.

MG: The GDPR was set to save €2.3 billion a year for businesses by unifying a currently fragmented administrative system.[25] Last year saw disagreements regarding how a 'one stop shop' mechanism would be implemented in practice.[26] Concerns regarding Article 17 (the right to be forgotten) were also raised.[27] Consensus over the GDPR sometimes appears to be strained.

Do you regret not being more conciliatory with the initial plan, as support now seems to be fragmenting? Do you think this signals a need for a change of tact by privacy activists?

YH: Securing support from a large group of nations is difficult, and maintaining that support over a period of years whilst facing fierce opposition is even harder. This setback highlights the need to press harder for privacy reforms. It explains why interest in the subject was reinvigorated in 2014. It also shows that changes made to placate corporate interests may not result in financial savings.

MG: The UK often has a different stance on privacy laws from its continental neighbours and the US. For example, the UK is a signatory of the Charter of Fundamental Rights of the European Union, however article 1(1) of an attached protocol states that the charter does not give power to the Court of Justice of the European Union or UK courts to find conduct in violation of the charter.[28] In NS v Home Secretary it was emphasised that this does not mean the UK is exempt from its commitments however doubt still remains as to whether the charter is actually enforceable and has any real effect.[29] Another example could be that many Britons have requested the removal of links following the Costeja decision, despite the ruling sparking controversy within the UK.[30]

What role do you think the UK plays in bridging transatlantic values?

YH: Historically and culturally the UK is much more closely allied with America than with the continent. There seems to be a constant clash of opinions between the UK and the continent and recently the UK’s position within the EU seems to be becoming more precarious. I think no single member of the Five Eye Countries [signals intelligence alliance between Australia, Canada, New Zealand, the UK, and the USA] can radically vary their data privacy policies, even in the corporate sphere.  Historically the GCHQ has been accused of privacy violations worse than those committed by the NSA. Whilst things have changed, there are still ongoing issues. Recently concerns have arisen over the ability of the GCHQ to access bulk NSA data without a warrant. Historical and continuing issues make me hesitant to believe the UK will make sustained changes.[31]

MG: Last year the High Court of England and Wales confirmed the existence of a tort of the misuse of private information in Vidal-Hall & Ors v Google.[32] Australia is obviously not subject to the same conditions, such as those imposed by the UK’s Human Rights Act. However, Australian courts have left the concept of a tort of privacy open, and last September the ALRC recommended the implementing a tort of the misuse of private information.[33] Do you think Australia should protect data privacy through a tort of misuse of private information similar to the one implemented in the UK? Or should data privacy be protected through different methods?

YH: I don’t think such a tort has a future within the British legal system. It is too controversial and is likely to be overridden by legislative amendments. Similarly I think it would be unpalatable to the Australian legal system. Not being an expert in English or Australian law, I wouldn’t be comfortable recommending changes to their privacy laws.

MG: I think we’ve covered more than enough topics for one interview. Thank you so much for taking the time to speak with Pandora’s Blog.

[1] European Commission, Data Protection Day 2015: Concluding the EU Data Protection Reform essential for the Digital Single Marke (28 January 2015) <http://europa.eu/rapid/press-release_MEMO-15-3802_en.htm>.

[2] Germany and France appear concerned that smaller, less capable states could decide on data privacy issues that effect the entire EU.

McCann FitzGerald, Paul Lavery and Ian Duffy, EU data protection – latest developments (January 27 2015) < http://www.lexology.com/library/detail.aspx?g=2a0cbcf2-5c70-4d1f-89bd-f25b347a0a3e>.

[3] There is not only an economic, but social element to the argument against strict privacy laws. Big data is set to revolutionise the healthcare industry, reducing ambulance times, hospital administration costs, improving patient care and revolutionising how the progression of diseases is tracked. Privacy laws could prevent EU citizens from receiving these potential benefits.

Adria Warren and Chanley Howell, Big Data Creates New Opportunities for Healthcare Entities (2 March 2015) The National Law Review < http://www.natlawreview.com/article/big-data-creates-new-opportunities-health-care-entities>.

Michael Roth, How Data Restrictions Hurt The Global Economy (3 March 2015) Information Week <http://www.informationweek.com/strategic-cio/executive-insights-and-innovation/how-data-restrictions-hurt-the-global-economy-/a/d-id/1319301>.

[4] Alexander Dix, EU Data Protection Reform (November 2013) Centre for European Policy Studies< http://www.ceps.eu/system/files/article/2013/10/Forum.pdf>.

[5] James Whitman, ‘The Two Western Cultures of Privacy: Dignity Versus Liberty’ (2004) 113(6) The Yale Law Journal 1151, 1153-1190.

[6] Jeffrey Toobin, The Solace of Oblivion (29 September 2014) The New Yorker < http://www.newyorker.com/magazine/2014/09/29/solace-oblivion>.

[7] Ibid; Adam Clark Estes, This is the Revenge Porn Law We Need in America (25 February 2015) Gizmodo <http://gizmodo.com/this-is-the-national-revenge-porn-law-we-need-1686856437?utm_campaign=socialflow_gizmodo_facebook&utm_source=gizmodo_facebook&utm_medium=socialflow>.

[8] Sam Schechner, Web-Enabled Toothbrushes Join the Internet of Things (2 March 2014) The Wall Street Journal <http://www.wsj.com/articles/SB10001424052702304360704579415161522531046>.  

[9] Google Spain v AEPD and Mario Costeja Gonzále (C-131/12) [2014] ECJ 317.

[10] Kevin O’Brien, Many Germans Opt Out of Google’s Street View (15 October 2010) The New York Times < http://www.nytimes.com/2010/10/16/technology/16streetview.html?_r=0>.

[11] Stephen Hutcheon, Ogle at street level: free speech or invasion of privacy? (5 June 2007) The Age <http://www.theage.com.au/news/national/ogle-street-level-free-speech-or-invasion-of-privacy/2007/06/04/1180809424855.html>.

[12] Concerns regarding Uber in Germany don’t relate to privacy infringement, but they do highlight the struggle of foreign companies to adapt to European regulations. There have been some privacy concerns in other countries:

Kevin Rawlinson, Uber service 'banned' in Germany by Frankfurt court (2 September 2014) BBC < http://www.bbc.com/news/technology-29027803>.

Maya Kosoff, Uber's nightmare scenario: How everything could go wrong for the world's hottest new company (9 February 2015) Business Insider <http://www.businessinsider.com.au/how-everything-could-go-wrong-for-uber-2015-2#more-public-relations-blunders-could-cause-public-opinion-of-uber-to-shift-1.>.

[13] Read more about concerns regarding AirBnB:

Jack Smith, Airbnb Finally Adds a ‘Don’t Secretly Film Guests’ Policy’ (6 November 2014) The Observer <http://observer.com/2014/11/airbnb-finally-adds-a-dont-secretly-film-guests-policy/>;

Nassim Khadem, You can't book with us unless you upload a personal video, Airbnb tells users (16 February 2015) Sydney Morning Herald <http://www.smh.com.au/business/you-cant-book-with-us-unless-you-upload-a-personal-video-airbnb-tells-users-20150216-13foor.html>;

Rishi Iyengar, Airbnb Sued by Group of Users in New York City for Breach of Privacy (3 September 2014) Time

<http://time.com/3260313/airbnb-sued-by-group-of-users-in-new-york-city-for-breach-of-privacy/>.

[14] Serena Saitto, Uber hires former IBM privacy chief to conduct review amid controversy (21 November 2014) Sydney Morning Herald <http://www.smh.com.au/digital-life/consumer-security/uber-hires-former-ibm-privacy-chief-to-conduct-review-amid-controversy-20141121-11r67g.html>.

[15] Heather Clancy, Why data privacy will become a competitive differentiator (18 November 2014) Fortune <http://fortune.com/2014/11/18/data-privacy-competitive-differentiator/>.

[16] Richard Grey, The places where Google Glass is banned (4 December 2013) Telegraph < http://www.telegraph.co.uk/technology/google/10494231/The-places-where-Google-Glass-is-banned.html>

[17] James Hutchinson, Proposed privacy laws put blinkers on Google Glass (31 March 2014) Financial Review <http://www.afr.com/p/technology/proposed_privacy_laws_could_make_9fjR6ab6xHVteBdI0LxaJM>.

[18] Viktor Mayer-Schonberger, Delete: The Virtue of Forgetting in the Digital Age (Princeton University Press, 2009) 141.

[19] Charter of Fundamental Rights of the European Union [2010] OJ C 83/389, art 8.

[20] Jeffrey Toobin, The Solace of Oblivion (29 September 2014) The New Yorker < http://www.newyorker.com/magazine/2014/09/29/solace-oblivion>.

[21]Bloomberg, How Big Data will Revolutionize US Health Care (3 February 2015) < http://www.bloomberg.com/news/videos/2015-02-02/how-big-data-may-revolutionize-u-s-health-care>; Jonathan Fisher, Who’s set to make money from the coming intelligence boom? (24 February 2015) Business Insider Australia < http://www.businessinsider.com.au/artificial-intelligence-how-to-invest-2015-2>; Josh Knowles, Stanford researches use big data to identify patients at risk of high-cholesterol disorder (29 January 2015) Stanford Medicine < http://med.stanford.edu/news/all-news/2015/01/researchers-use-big-data-to-find-patients-with-high-cholesterol-risk.html>; Jennifer Bresnick, Will the White House Chart a Course for Healthcare Big Data? (25 February 2015) Health IT Analytics < http://healthitanalytics.com/2015/02/25/will-the-white-house-chart-a-course-for-healthcare-big-data/>.

[22] European Parliament legislative resolution of 12 March 2014 on the proposal for a regulation of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) [2014] OJ C7-0025, art 79 (2a(c)), Amendment 188.

[23] Nikolaj Nielsen, Belgian MEP blames assistant for industry-scripted amendments (22 November 2013) EU Observer <https://euobserver.com/institutional/122205>.

[24] Bruno Waterfield, Tory MEPS ‘ copy and paste Amazon and Google lobbyist text’ (12 February 2013) Telegraph <http://www.telegraph.co.uk/technology/9865977/Tory-MEPs-copy-and-paste-Amazon-and-Google-lobbyist-text.html>.

[25] European Commission- Press Release, Commission proposes a comprehensive reform of data protection rules to increase users' control of their data and to cut costs for businesses (25 January 2012) <http://europa.eu/rapid/press-release_IP-12-46_en.htm>.

[26] Out-Law.com , Plans unveiled to remodel proposed 'one stop shop' regulation of data protection in the EU (2 June 2014) <http://www.out-law.com/en/articles/2014/june/plans-unveiled-to-remodel-proposed-one-stop-shop-regulation-of-data-protection-in-the-eu/>.

[27] Christian Wiese Svanberg and John Bowman, The Big Takeways from DPC 2014 (26 November 2014) IAPP <https://privacyassociation.org/news/a/the-big-takeaways-from-dpc-2014/>.

[28] Margot Horspool and Matthew Humphreys, European Union Law Oxford University Press 2012 7th ed .147

[29] NS v Home Secretary and ME v Refugee Applications Commissioner (C-411/10 and C 493/10) [2011] QB 102.

[30] BBC, Thousands of Britons seek 'right to be forgotten' (12 October 2014) < http://www.bbc.com/news/uk-29586700>.

[31] James Ball, GCHQ views data without a warrant government admits (29 October 2014) The Guardian < http://www.theguardian.com/uk-news/2014/oct/29/gchq-nsa-data-surveillance>.

[32] Vidal-Hall & Ors v Google Inc [2014] EWHC 13 (QB).

[33] Australian Broadcasting Commission v Lenah Game Meats Pty Ltd (2001) 208; Australian Law Reform Commission, Serious Invasions of Privacy in the Digital Era (ALRC Report 123)- 5. Two Types of Invasion(3 September 2014) <https://www.alrc.gov.au/publications/5-two-types-invasion/misuse-private-information>.

An Interview with Professor Suri Ratnapala – Reflecting on 25 Years of Australian Constitutional Law and Looking Ahead to the Future

At the conclusion of 2014, UQ’s long-serving Professor of Public Law, Suri Ratnapala, will be retiring from TC Beirne. In a tribute to Professor Ratnapala’s contributions to the teaching of constitutional law and jurisprudence at UQ, two Editors of Pandora’s Box, Samuel Walpole and Tristan Pagliano (and with the assistance of another, William Isdale) joined Professor Ratnapala in this conversation about some of the thematic issues in Australian constitutional law.*

                                                         Professor Ratnapala, pictured with the interviewers

PB: Professor Ratnapala, thank you for joining us. What would you consider the most        significant development in Australian constitutional law over the last 25 years?

SR: In my view it is the development of the doctrine of institutional integrity of state courts  beginning with Kable v DPP.[1] The doctrine introduces an element of separation of powers to the state constitutions. There are four aspects to the doctrine that have been established through the jurisprudence as the doctrine has developed.

The first concerns the constitution of a court, with the High Court expressing an opinion that the overuse of acting judicial appointments would be unconstitutional.[2] The second element relates to the prohibition against conferring impermissible jurisdictions and incompatible functions on state courts, such as those relating to control orders and the like.[3] The third aspect, established in Kirk v Industrial Court of NSW,[4] is the most important. It is concerned with prohibiting the withdrawal of jurisdiction and says that a state parliament cannot remove a state Supreme Court’s jurisdiction to review a judicial or administrative decision on the basis of legality. This is a direct support of the rule of law at the State level. Finally, there are the procedural guarantees. The High Court has not always held in favour of accused persons in these cases, but they have restricted the limitations state parliaments can place on procedural guarantees.

PB: What aspect of Australian constitutional jurisprudence are you most critical of?

SR: For me, the Engineers{C}[5] doctrine, as affirmed in Workchoices,[6] is the most pernicious constitutional doctrine since Federation. I am most concerned about the way it is used. There is an element, with respect, of hypocrisy with the way the High Court uses the doctrine. The doctrine is like a sword. It is left sheathed whenever the High Court wishes to, ironically, strike down, legislation. However, when it wants to defend a piece of legislation it unsheathes the sword. The subsequent implied rights cases, the Melbourne Corporation case[7] and those cases that followed it all basically ignored the Engineers doctrine. However, where desired, the High Court will bring it out. WorkChoices was a recent example. I am opposed to the doctrine as I do not think a constitution can be interpreted without taking into account its text and structure.

PB: What are you views on the two recently proposed amendments to the constitution? Firstly, to provide a power to fund local governments directly (proposed by the Gillard government) and secondly, constitutional recognition of indigenous Australians?

SR: My opposition to the local government referendum proposal is well known. My opposition is basically that it undermines fiscal federalism and the economic existence of the States. The states must have a real existence if federalism is to prevail, not just one in form or law. A real existence means an economic existence. Direct funding by the Commonwealth erodes that capacity of the states to manage their own local economy. Furthermore, if implemented it further erodes state legislative power. It happens in this way: if a local authority receives a grant on conditions determined by the federal parliament, those conditions which are constitutionally authorised under an amended s 96 will prevail against state law. It is an indirect way of taking over State legislative power. States’ financial dependence on the Commonwealth means they cannot refuse s 96 grants. Local authorities are even more dependent on such funding. 

PB: What about the proposal to constitutionally recognise Indigenous Australians?

SR: Those seeking to constitutionally recognise Indigenous Australians seem to seek three things. The first is a symbolic statement of recognition. I do not see any objection to that, though it I do not think it will provide a material benefit to Indigenous communities. The second goal is to remove s 25,[8] which I am in favour of.

The third proposal, to reformulate the race power in s 51(xxvi) is more problematic. I am in favour of repealing this paragraph but many proponents of the proposal also wish to replace the paragraph with a power to legislate for the benefit of Indigenous Australians but not for their detriment. Although I like this in principle, it is not possible to implement. People within Indigenous communities themselves will clash over whether law conveys a benefit. To an extent these will be clashes of economic theories. Disputes will go up to the High Court, however, as it will be a constitutional matter. How will the High Court resolve these political and economic arguments?  There is one solution to this, which is very simple – a constitutional prohibition on racial discrimination generally. The Expert Panel did want to have the power to legislate for Indigenous Australians to be given to the Commonwealth to the exclusion of the states. However, it also sought a prohibition on racial discrimination.

PB: There could be problems with that position though. Section 8 of the Racial Discrimination Act 1975 (Cth) allows a discriminative law to be upheld if it is a special measure. There have been laws upheld on this basis, such as those restricting alcohol in remote communities. What if a particular community wanted such laws. Would such a blanket prohibition in the Constitution prohibit such programs even if the community sought them for their benefit? Is that a legitimate concern?

SR: It is. There always will be such when you insert a provision like that into the Constitution. There has to be some sort of reservation or qualification. At least it will be an easier issue for the High Court than deciding whether legislation is beneficial or detrimental. This is because there is established jurisprudence in the United States, European Union and Australia on what amounts to discrimination. There is, at least, more guidance on the point.

PB: Are they any other possible constitutional amendments you would like to see that are not widely discussed?

SR: I have two amendments in mind. One relates to my views on federalism. The first one I would like is the extension of the just terms clause[9]  to the States. Hardly a month passes where some rural farmer doesn’t write me a letter – as I have written on the subject – saying they have suffered as a result of regulatory takings: restrictions on property use so extensive that they could be considered acquisitions. They have no defence and no way in which they can get anything out of the government if the government decides to regulate some land use in a way that destroys the market value of the land. It happens time and time again. That is in the rural properties but there are issues even in urban areas.

PB: And your second proposal?

SR: Remove the conditionality of grants to the states by the Commonweath under s 96, as that is what has undermined the powers of the States.

PB: The States have essentially become service providers for the Commonwealth, in some respects. This takes us to our next question. There is currently discussion occurring about 'reforming' Australian federalism. Does Australian federalism need reform, and what shape should reform take?

SR: The main issue with Australian federalism is vertical fiscal imbalance. The main thing I would like to see reform of is fiscal federalism. I would like the Australian fiscal arrangements to be brought into line with the United States system. This means the states have to be allowed to impose income tax. That ties in with amending s 96 as the High Court has said s 96 grants can be made subject to the condition that states do not impose income tax. The Commonwealth has a monopoly on income tax. There is no way in which the states can refuse to take grants offered by the Commonwealth and they have to agree not to impose income tax to obtain the grants. The US states can impose income tax without any limit except for practical ones. The other aspect of this is to amend s 90 and allow the states to charge sales tax. That again is a power that US states possess. The fiscal position of the states is much better there, although not perfect, for that reason.

PB: It can be quite interesting in the US when you leave a store, check your receipts and notice the sale taxes are different from state to state.

SR: Yes, and there is competitive federalism there! I once was in Conneticut on the border with New York state. In Conneticut, you could not buy a beer on a Sunday. So we just drove ten minutes into New York state and got our beer!

PB: Continuing this federalist theme in our discussion, the Commonwealth Government's power to fund many schemes was struck a blow by the High Court's decision of Williams v Commonwealth (No 1).[10] Do you think this was a good decision, and do you think it will result in a more powerful role for the states in the future?

SR: I would not say it will give the states a more powerful role as state financial dependence on the Commonwealth continues. What it means, however, is that the Commonwealth cannot bypass the states in making a s 96 grant unless covered under a head of power or required by a national emergency. It limits the Commonwealth’s power to give direct grants to local authorities and private institutions. This was affirmed in Williams (No 2).[11] Of course, there is a level of cost involved in sending money through the states but in the long term it is for the benefit of fiscal federalism. However, it could be a pyrrhic victory if the local government amendment to the Constitution succeeds at a referendum.

PB: It’s like a game of Whack-a-Mole. Every time you think you’ve got the Commonwealth it just jumps up somewhere else.

SR: Yes, as someone said at a conference on the case, the Commonwealth is like a hydra. On the whole I think Williams is positive but it could be a pyrrhic victory. Both parties support the constitutional amendment to allow direct funding, because they want the legislative power.

PB: The Australian Constitution was based significantly off the American constitution. As Dr Ananian-Welsh has observed in a recent interview,[12] since the drafting of the Australian constitution many other constitutions (eg. the Indian Constitution) have been created. Are there any particular concepts Australian constitutional law can draw from the jurisprudence interpreting these constitutions?

SR: Certainly, we could take from the US Constitution and we have in the past around separation of powers issues and section 92. I do not think we have made enough use of American jurisprudence. What about those constitutions that came after our own? We have to be a little careful about that. There are different types of constitutions: federal presidential models, unitary presidential models, unitary parliamentary models, federal parliamentary models and the French hybrid model. Federal presidential models include US, Mexico, Brazil, Argentina and so on. Then you have federal parliamentary models (Australia, Canada, India, South Africa) and unitary parliamentary models (UK, NZ, Japan and many EU models).

One of the limitations on applying foreign jurisprudence in Australia is that we do not have a Bill of Rights. With regard to the Indian Constitution, the Indian Supreme Court until recently had developed a fairly sound body of jurisprudence regarding their Bill of Rights though of course we lack such provisions. However, in recent years, the Indian Supreme Court has gone mad in adopting its public interest jurisdiction. They have employed their Bill of Rights to do many different thing usurping the powers of the executive and legislature. They have basically taken the view that they can draft a law because the parliament has not done enough and this becomes the law until the parliament does otherwise. They also ordered all government motor cars to be run on natural gas. They have ordered bridges to be built to connect remote parts of the country. They have given instructions about foreign adoptions and basically legislated.

This came about due to a lack of confidence in the legislature and executive. The institution with the most credibility in the public eye is the Supreme Court. In any case, I would not like the High Court of Australia to imitate the activism of the Indian Supreme Court. That sort of culture will not fit in here where the political institutions are stronger. If they imitated the Indian Supreme Court, the public would come and chase them out of their courthouse!

What this illustrates is that in determining whether to adopt comparative jurisprudence you should not just look at the equivalence of the law but also consider the institutional qualities of the Court. There are two factors to consider: the equivalence of the law and the quality of the jurisprudence. The quality of the jurisprudence does not depend solely on the intellectual abilities of the judges. It depends on the conditions that bear on the independence, impartiality and integrity of the courts. What political pressures are they subject to? However, there is nothing wrong in reading their judgments and seeing what you can get out of it. You must be very careful in adopting some overseas precedents though.

PB: I suppose, however, with respect to the US Constitution our Constitution is more related to it and the institutions there are stronger. And I suppose something similar could be said about Europe?

SR: Exactly. Why don’t we look at Germany? Germany is a federation, and their Constitutional Court is very, very competent. To some extent we can use European Court of Human Rights’ judgments. However, I would hesitate about using jurisprudence from many other jurisdictions.

PB: In the case of Tajjour v NSW, handed down by the High Court last week, the High Court upheld the validity of NSW's anti-consorting laws. The High Court held that whilst the laws burdened the implied freedom of political communication, they could be justified as proportionate to the aim of preventing crime. Law enforcement issues aside, do you think cases such as Tajjour show a reluctance on the part of the Court to employ their implied rights jurisprudence to invalidate legislation?

SR: I do, actually. It is not easy for them to do it, however. I think drawing limits on implied rights is quite difficult. Once the burden on free speech is established it becomes a question of reasonableness of the limitations. That is where I think the Courts like to respect the judgment of Parliament rather than take it upon themselves.

There is one case where I think the Court should have decided the issue differently. That is APLA Ltd v Legal Services Commissioner (NSW)[13] where the Court ruled that the ban on advertising legal services did not violate free speech. Access to legal services in my opinion is essential to the functioning of representative democracy. Australia has a legal service industry that is one of the most tightly regulated in the world. This regulation makes legal service unaffordable to most people and imposes a heavy economic cost on the nation. In an increasingly complex legal system, having access to information about legal services is an essential condition for vindicating rights that are founded on democratically enacted laws. There is a direct link, I think, between the right to advertise legal services, – even if you exclude all other commercial advertising from the freedom – the rule of law and the democratic nature of the polity. Legal services are the ultimate way of vindicating individual rights. Accounting services are allowed to be advertised. If accounting services can be deregulated to that point, then why can’t lawyers be treated the same? It is old-fashioned protectionism.

PB: What do you think are the greatest threats to liberty and the rule of law in modern Australia?

SR: Without doubt, the greatest current threat is Jihadist terrorism. It is a threat in two ways. Firstly, the jihadist ideology rejects liberal institutions such as basic rights and the rule of law. Its main aim is to overturn the liberal way of life. Hence, it directly threatens  liberty and the rule law. Terrorism also affects liberty and the rule of law in an indirect way. It provokes democratic governments to take counter-terrorist measures that curb our liberties and erode the rule of law. There is a need for extraordinary measures to meet extraordinary threats. There is also a need for heightened vigilance to safeguard against excessive grants of power to governments, particularly unreviewable powers. Thus, this type of threat is not only harmful itself but has another effect that can also be quite dangerous. It is a responsibility of politicians to debate such powers with public servants, consider the other factors involved, take the people with them and strike a balance. Judicial oversight is one essential aspect that should not be given up. The other safeguard needed is to have a sunset clause. It cannot be such that these strong powers are an indefinite part of legal culture.

PB: What advice do you have for students who are nearing the end of their degrees?

SR: If you look at Res Ipsa last year, I had to write a message. If you excuse me, I will repeat a little bit of that: 

 “There no shortcuts to success for most of us. Genius is overrated. Industry, tenacity, integrity, reliability, trust, fellow feeling, courtesy, modesty, and dare I say, a bit of personal charm and decent luck are all helpful to success. Always play with a straight bat. But don’t let the pursuit of success consume you. If you do, you will miss out on some joys of life that are on offer for free.”

PB: It’s been an honour having you here teaching us all in Constitutional Law and Jurisprudence. What are your plans for retirement?

SR: I am looking forward to enjoying retirement. Watch more cricket! I will continue to research and write because that is something I have done for the joy of it and because of my passion for it. There are important things I want to continue to say in my writings. That will not stop. Other than that, I want to go and write travel books.

PB: Anywhere in particular?

SR: I am a fan of Europe, and Italy in particular. I have been there many times. I love the medieval cities and Renaissance architecture. There are so many cities I want to see in Europe. Hopefully, I can get there.

PB: Professor Ratnapala, thank you for speaking with Pandora’s Blog.

* Professor Suri Ratnapala (LLB(Hons) LLM PhD) is presently Professor of Public Law at the TC Beirne School of Law, University of Queensland where he has taught constitutional law, jurisprudence and legal method. After a distinguished career, Professor Ratnapala will be retiring from the University at the end of 2014. This interview was conducted at UQ on 15 October 2014 by Samuel Walpole and Tristan Pagliano. The interviewers wish to thank Will Isdale for his assistance in formulating questions and Balawyn Jones for her editorial assistance.

[1] (1996) 189 CLR 51.

[2] Forge v ASIC (2006) 228 CLR 45.

[3] See, eg. South Australia v Totani [2010] HCA 39.

[4] (2010) 239 CLR 531.

[5] Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129.

[6] New South Wales v Commonwealth (2006) 229 CLR 1.

[7] Melbourne Corporation v Commonwealth (1947) 74 CLR 31.

[8] Section 25 allows the states to disqualify particular people of races from voting in federal elections.

[9] Constitution s 51(xxxix).

[10] (2012) 248 CLR 156.

[11] [2014] HCA 23.

[12] ‘An Interview with Dr Rebecca Ananian-Welsh’ (2014) 21 Pandora’s Box 35.

[13] (2005) 224 CLR 32.