“House of Review” - Transcript of the Third Social Justice Forum

House of Review was JATL’s third social justice forum for 2015 and it examined whether Queensland should restore its upper house. Chaired by Professor Nicholas Aroney (TC Beirne School of Law), students had the unique opportunity to witness a lively debate on the topic between two masters of the art, with Mr Anthony Morris QC (barrister) in the affirmative and Ms Rachel Nolan (former Queensland Government Minister) in the negative.

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Rose: “Good evening everybody and welcome to JATL’s third social justice forum for 2015. I’d like to say thank you to our speakers, and I’d like to recognise the traditional owners of this land, the Turrbal and Jagera Peoples. Tonight’s forum will look at whether Queensland should restore its upper house in the context of it being the only unicameral state parliament in Australia. We are happy to welcome Professor Nicholas Aroney from the TC Beirne School of Law, and our speakers Mr Anthony Morris QC and Ms Rachel Nolan, a former Queensland Government Minister. Thank you very much for your time and wisdom. Nicholas Aroney is a future fellow at the centre for public international and comparative law. The purpose of his research in the fellowship is to identify the principles and values that should underlie the Australian governmental system. He is very well placed to act as our chair on this topic. Professor Aroney has published widely on the topics of constitutional law and legal theory and has held several positions at Australian and foreign universities. We are very fortunate to have him currently at UQ. Without any further ado please welcome Professor Aroney.”
 
Nicholas Aroney: “Thank you very much for such a kind introduction and it is nice to talk to some of the students that I never get to know. The good news is I’m coming back to teaching next year. It’s my pleasure to introduce the debate this evening. My role is to provide you with some background information to contextualize the debate so the speakers can focus on their arguments.

Professor Nicholas Aroney

Queensland is the only state without a second chamber. All the other states have a legislative assembly or legislative council, and they are both elected in two different ways so their composition tends to be a little different and so they perform functions somewhat differently in those states. In Queensland there is only one house. What that means is that whichever party secures the most votes holds not only the position to be in government but they are also in the position to legislate. Executive and legislative power is concentrated in the same political hands. The Queensland parliament does have a committee system which does moderate that to some degree, particularly to the extent that those committees provide feedback and review of legislative proposals or review matters of political importance. Particularly when those committees are composed of backbenchers who are frank and fearless or leaders of the opposition as well.

A lot of the debate is about understanding our political system, like our parliament and how it operates, and other institutions like the CCC that looks into crime and corruption matters. Upper houses can be constructed in many different ways. In New South Wales there are forty-two members of the upper house who are elected on a rotational basis, twenty-one members at a time on a proportional system. The quota to get elected is low in New South Wales and relatively small parties and independents are able to be elected.  This provides for a variety of representatives in the New South Wales upper house. The South Australian upper house elects eleven at a time, so the quota is a bit higher. In Victoria and Western Australia and in some cases Tasmania (Tasmania is upside down, as the lower house has proportional elections) the number of representatives is based off five or six regions, not the state as a whole. These design features of upper houses have an impact on their capacity to function within the bicameral system.

So why is Queensland different from the other systems? When Queensland became a state in 1859 it did have a second chamber. When it split from New South Wales the imperial statute that related the order in council that established Queensland required there to be a parliament as similar as possible to that in New South Wales. At that time, whilst the lower house was elected the upper house was nominated by the governor on the advice of the reigning Premier, so it wasn’t an elected body. Around 1915 till 1925 the first Labor government came into power under T. J. Ryan and Ted Theodore, and they tried to remove the upper house. The upper house didn’t want to vote itself out of existence. At some point the government made use of the referendum procedure that was established in earlier legislation so it went to a referendum. It is controversial how the referendum was presented and if the people had a decent chance to think about it but they voted against the abolition of the house. Then the Theodore government appointed additional members to the upper house and over several appointments the Labor government was able to get through the statute to abolish the upper house. So the members of the upper house effectively voted themselves out of existence and we haven’t had an upper house since.

The one other thing to appreciate, several years later in 1934 another statute was passed which entrenched the absence of an upper house. A lack of an upper house is entrenched and it can only be revived by a referendum. In all of the other states, excluding Tasmania, upper houses can only be removed by a referendum, so referenda are entrenching mechanisms in all of those five states, but in a reverse way in Queensland. Those entrenching provisions were not introduced by referendum so there’s a deeper question whether it is legitimate for a referendum procedure to be imposed when that imposition wasn’t approved by referendum itself. So there are remaining questions about that and case law on the issue, the High Court hasn’t said there is a problem with that but maybe there is a question of legitimacy. So they are the essential things I wanted to convey to you by way of the debate. 

It is now my pleasure to introduce our two speakers for tonight. For the affirmative, that the upper house should be reintroduced is Mr. Tony Morris QC. He is a barrister here in Queensland, his principle areas of law are commercial law and equity, and he has come before the High Court in several matters. He took silk at the age of thirty-two and his appointment as QC was the youngest in Queensland’s history. The subject of youth is an interesting point about both our speakers. He’s a member of various boards and an established author, having written at least once or twice on the topic of an upper house in Queensland. He was also the commissioner of the Bundaberg Hospital Inquiry.
 
Our second speaker is Ms Rachel Noland who was a minister in the Bligh Labor government. When she was first elected as a member for Ipswich in 2001 she was the youngest woman to be elected to the Queensland Parliament. So these are two high achievers that we have to listen to today. She now writes for the monthly and is an adjunct professor of philosophy at the University of Queensland.”
 
Tony Morris QC: “Thank you Professor Aroney and thank you all for your significant contribution to the public discussion of this issue, which I think needs to be discussed more.  I will begin with three confessions, the first is how delighted I am to be in this building. It was derelict when I was a student thirty-five years ago and I’m delighted to say the blistering paint in the stairwell still hasn’t been touched up. The second confession is I’m going to cheat a bit, because the topic is should Queensland restore its upper house, and this is because no one would seriously suggest we restore the type of council we had prior to 1923 which had people appointed for life so it was like the Australian equivalent of the House of Lords. The third confession is rather like how I go to court everyday with well-prepared notes and get on my feet and abandon it entirely. I’m going to approach things in a different way from what I originally intended.

Tony Morris QC

Given the informal nature in which this is being presented, I’d like to begin with a pop quiz to demonstrate how little any of us know about our state’s political history. Rachel has a significant advantage over us, as someone with a distinguished political career, but Rachel may also throw in an answer if she so wishes.

Question One: Who was the first Queensland Premier who attempted to rig the outcome of an upcoming election by changing the electoral laws in a way so as to benefit his own party? Any thoughts? Campbell Newman? Joh Bjelke-Petersen? Actually you have to go back to 1915 when Digby Denham was worried that Labor was more organized than his own party. He was worried the Labor Party, which was largely run by shop stewards at that time, was very good at getting people to the polling booths to vote. So his government was the first in the British Empire to implement compulsory voting to ensure that Labor’s advantage did not lead to his determent. It didn’t work and he lost the election. For those who see a similarity with Campbell Newman, the similarities go even further, Digby Denham was the first Queensland Premier to lose his seat at a general election. Newman matched this singular achievement a century later. But this phenomenon is not unique to the non-Labor side of politics. In 1942 William Forgan Smith noticed Labor was doing badly in three-cornered contests, where you had a Labor candidate against a Liberal candidate and a Country Party candidate. To get around this problem, Forgan Smith was the first leader, anywhere to my knowledge and I suspect the last, to abolish preferential voting and go back to the first past the post system. This was to ensure the non-Labor forces didn’t benefit from three-cornered elections.  That’s Question One.
 
Question Two:  Which Queensland Premier was responsible for the most obscene gerrymander in Australian history? We all think Bjelke-Petersen. We think that because our knowledge of Australian history is based on two things; our own memories and what we’ve been taught by educators and journalists. All of those people are of my generation or younger, they are post baby-boomers and they can’t remember a time before Bjelke-Petersen. It has become the received wisdom that bad government began with Bjelke-Petersen, had a resurrection under Campbell Newman, but otherwise didn’t exist. Absolute nonsense. I’m not here to defend what Bjelke-Petersen did, his gerrymander was an outrage, at the height of it the largest seat was Pine Rivers at 16,700 voters and the smallest was Gregory at around 6000, a margin of about two and a half. If you think that’s an outrage think about what Ned Hanlon’s government did in 1949, when the seat with the most votes was Mt Gravatt at 26,000 and the smallest was Charters Towers with 4000 voters, six times smaller than Mt Gravatt. Under the Hanlon system for his government to win a seat they needed 7000 votes, coincidently it was the same under the Bjelke-Petersen’s government. They also needed 7000 votes to win a seat, but there were of course many more voters when Bjelke-Petersen came along. For Labor to win a seat under Bjelke-Petersen, they needed 12,800 votes. Under the Ned Hanlon government the Country Party needed about 9900 votes, the Liberals needed 23,000 votes to win a seat. If you’re looking at gerrymanders that’s a great one.

Question Three: When the gerrymander was brought in, in 1949, which future Premier of Queensland decried it saying that the minority will rule the majority? He said that the government of the day was proclaiming that whether you like it or not we will be the government. Who would have said that? Vince Gair, Frank Nicklin, Jack Pizzey, Gordon Chalk, Mike Ahern, Wayne Goss or Peter Beattie? No it was the newly elected member for Nanango, Johannes Bjelke-Petersen.

Question Four: Who was the first Queensland Premier to be the subject of corruption findings at a commission of inquiry. Fitzgerald's was not the first. In 1929 we had a royal inquiry, it concerned the purchasing of mining properties by the state government. The corruption revealed was of a nature and scale that rivaled anything uncovered by the Fitzgerald Inquiry. The properties were purchased at vastly more than their actual value and it only emerged at the inquiry that two Labor Premiers each secretly held a 20% interest in the company that sold the land, those being Ted Theodore and William McCormack.

William Forgan Smith

Question Five: Which Queensland Premier was responsible for the legislation that was famously used to create a state of emergency, so as to suppress anti-apartheid demonstrations at a Springboks rugby match in 1971? We all know it was Bjelke-Petersen invoking the legislation, however it was based on the State Transport Act passed by the Labor government under William Forgan Smith in 1938. Peter Beattie is said to have admired Forgan Smith and I’m not sure why. Wikipedia begins its article on Forgan Smith with the observation that his populism, firm leadership, defence of states’ rights and interest in state development make him something of an archetypal Queensland Premier and it goes on to note that Forgan Smith was also a typical Queensland Premier in that he was criticized for being authoritarian and dictatorial, that he used his strong and forceful personality to dominate cabinet and his government passed a number of pieces of controversial legislation. I can’t resist but tell you one Forgan Smith anecdote. In the late 1930’s Queensland was doing badly, it hadn’t recovered from the Great Depression of 1929, and Forgan Smith went on a global fact-finding mission to see how other parts of the world were dealing with the aftermath of the Great Depression. What he liked best was what he saw in Germany. The first thing he did upon his return in 1938 was to create the office of Coordinator-General, a position to this day that is unique to Queensland. The Coordinator-General has the responsibility over the development of what are described as ‘state significant projects’, large-scale infrastructure projects both public and private. Forgan Smith saw this as achieving the level of efficiency he had witnessed first hand under the Third Reich. 

Question Six: Which Queensland Premier was most active in defending states’ rights against perceived federal incursions? I won’t go into details, but T.J. Ryan wins hands down over Bjelke-Petersen or anyone else. 

Sir Robert George Wyndham Herbert (via State Library of Queensland)

And finally who was the first openly gay Premier of Queensland? It’s a trick question because we’ve never had an openly gay Premier, but the first Premier of Queensland was a man called Sir Robert Herbert. He was the grandson of the Earl of Carnarvon, a distinguished scholar educated in Eton and Oxford. He had been private secretary to William Ewart Gladstone. At Oxford he met his long-term companion John Bramston, they shared rooms together at Oxford, when they went to London they shared rooms again, when Herbert came out to Queensland, originally as private secretary to the first Governor (Governor Bowan) Bramston decided to come with him. Herbert as Premier in the first state government appointed Bramston as Governor General. They shared a house on the future site of the Royal Brisbane and Women's Hospital and they named that house after a combination of their surnames, Herbert and Bramston, which they called Herston, hence the suburb of that name. Herbert went back to the UK and was appointed Under-Secretary of State for the Colonies, a job he held for 21 years. Bramston was appointed Assistant Under-Secretary of State for the Colonies and held that job for 20 years. Upon his retirement from the public service in 1892 Herbert became chancellor of the Order of St Michael and St George and Bramston became registrar of the Order of St Michael and St George. Bramston eventually married but Herbert never did. I’ll invite you to draw your own inferences from that cautionary tale.

Why did I tell you all these random facts from Queensland’s political history? Well Karl Marx observed that history repeats itself twice, the first time is tragedy, the second is farce. Those who only know of Bjelke-Peterson and Campbell Newman think that’s just one side of politics, but that simply isn’t true. What we can learn from history is that the excesses of Forgan Smith, Hanlon and Gair governments, Labor governments, were repeated by Bjelke-Peterson as abject tragedy and then by Newman as abject farce. No side of politics has a monopoly on honesty or integrity or good behaviour. No side of politics is exempt from misbehaviour. I doubt there isn’t someone in this room that doesn’t have some bias against a political party of one type or another, it could be the Greens, Katter's Australian Party, Palmer’s dis-United Party or Pauline Hanson. I shouldn’t describe that as a bias, if you support Pauline Hanson or Mr Palmer that’s more a symptom of advanced mental disability. But we all have political preferences, and we all tend to think that the party we support are the good guys. If that’s what you think, you have to remember that sooner or later the bad guys are going to get in charge and when that happens you want checks and balances in place.

The reality is different, there are no good guys or bad guys. We have an electoral system, a democratic system, that fortuitously creates good results on many occasions, but is also capable of producing really outrageous results, as we’ve seen over the past century or so. There is one way and only one way that has been proven to prevent that in the other Australian states and in most comparable western democracies. I know, as Professor Aroney said, it doesn’t happen in New Zealand, it doesn’t happen in the ACT, NT and most Canadian provinces, but around the world successful governments are always characterized by a lower house which elects the government and an upper house which is removed to the point of providing some review not only of legislation but of some administrative abuse. I quoted from Karl Marx about history being repeated, Edmund Burke made a similar remark, though a less humorous or more measured version. Edmund Burke remarked that ‘People will not look forward to prosperity who never look backward to their ancestors’. Burke’s point is: repeating history’s mistakes is not inevitable, repetition is just the default position, if you do nothing about it, if you don’t learn from what’s gone before, only then will you have problems. We’re in a position to learn from history and we have the ability to bring Queensland up to speed with the most effective system of government that has existed anywhere in the history of the earth.”

[Applause]

The Hon Rachel Nolan

Rachel Nolan:  “Thanks Tony, the primary point I’ve taken from that is that Queensland politics remains the only show in town, and I think it has ever been thus. I could on a light note rebut that while many of us in considering this question would make the argument, as Tony does, that there is an innate backwardness or conservatism and frequent corruption, when compared to other states. It can be argued, but I won’t argue it, by want of our different structure we are more backward. I think the Herston example contradicts that in and of itself, in that it took the South Australians who usually pride themselves on their progressiveness until the 1970s to get Don Dunstan, but we had Herbert back in colonial times. 

I’m going to begin with a confession of my own, when Rose came to me and asked me to speak on this topic I initially said no. I wanted to help her and so I cast around asking people I know on the progressive side of politics to find an alternative to speaking myself. I spoke to two Cabinet Ministers, two former Cabinet Ministers, three academics and three rising stars of the Labor backbench, and it seems everyone is re-arranging their sock draw tonight. So that’s how you ended up with a tired old has-been like me. There is however something in this, this topic, should we restore an upper house in this state, is something of a boring old chestnut, it has been discussed at length over the years and no doubt it will continue to be discussed for the years to come. I think that those of you who are scholars and those interested in governance think on the face of it that Queensland would simply fit in with the other states, that this is the standard model of democracy and why wouldn’t we have that too? The way it plays out in the political debate, which is where I come from, is that this is a conservative hobby horse. The reason I rang around and couldn’t get anyone to turn up is that progressive people honest to God don’t care. Lawrence Springborg tends to get excited about the issue from time to time, but it’s never been a matter of Labor policy to reintroduce the upper house, despite the modern tendency for progressive governments to put forth more measures extending the franchise of good governance in and of itself. It’s not that we aren’t interested in good governance, but we’re not interest in good governance through the vehicle of an upper house.

Then the question has to become why? Why is this not the law? Why is this a partisan issue, and why does it divide amongst those lines? There are a number of legitimate answers. Tony’s argument is that Queensland has this cracker of a history, that there’s a long history of authoritarianism to the point of corruption, which is true, but there are a couple of points I’ll make in response to that. Firstly, is that this has not been the case for a significant period of time. The great modern watershed in Queensland political history was the election of the Goss Government in 1989.  Whilst it is true that the Newman government was extremely unpopular as we all saw, I felt we were terribly unpopular. When we lost and went from loosing a seat like mine and having only seven seats in parliament, I thought everyone hated us. I went overseas for a year and a half, and when I came back I was astonished at the level people hated them. So there were these two spectacular results, but in a way what the demise of the Newman government proves is that review in this state works perfectly well, the Newman government was out of touch and a bit mad, but the electoral system fixed that in the absence of an upper house. 

So what would happen if you introduced an upper house in this state? And why is it that conservatives are more drawn to this idea than those on the progressive side? The philosophical reason is this, it is that progressive people want to get in and govern, we want to make social change. The conservatives are more about moderating things. Of course the Newman government was a bit different, but the conservatives who are about moderation, who aren’t about a fire in the belly for social change are more comfortable if their ability to govern is held aside and is moderated by others. But what do we actually get from upper houses? Do we really get a greater system of review or do we simply shift power from the lower house, where we understand how everyone is elected and on what terms and why, to another group of people entirely, to another group of people who are far less accountable and far less well understood than those who we are seeking to moderate?

The Hon Brian Harradine, via The Mecury

Lets have a look at it. From my memory from 1994 to 1999, Brian Harradine, a Tasmanian senator, was in power. You can get elected as one of the twelve senators for Tasmania’s half a million people on a small vote, Harradine’s career was marked by this life-long opposition to women’s rights. He held the balance of power for five years. Then you have the Democrats who are at least a political party, and they controversially gave us the GST, then the Greens who used their influence to turn down the possibility of an emissions trading scheme and now you have a ragtag bunch of formerly Palmer independents, you have Jacqui Lambie, one of the people holding the balance of power in the senate, you have Ricky Muir, an illiterate saw-miller from Victoria who was elected with 0.51 percent of the primary vote and Glenn Lazarus known as the brick with eyes. So when you get an upper house, you moderate but you also shift power to a group of people who are not elected on a particular platform who are often elected in crazy and unusual circumstances, who people have never heard of until they find themselves in positions of enormous importance, and then we all act surprise when they do mad things. In New South Wales right now the balance of power is held by a combination of the Shooters and Fishers Party and the Christian Democrat mad-homophobe Fred Nile. In stark contrast, in Victoria power is held by the Shooters and Fishers Party and a party no one had ever heard of ‘Vote One Jobs’ and by the Australian Sex Party.

So what you do with an upper house, you don’t get deep consideration, what you frequently do with an upper house is transfer power to a group of crazy fringe dwellers of whom you have never heard. If the argument is that Queensland has a cracker of a history and the implication is that we would be a little more sophisticated and a little more like everyone else if we adopted everybody else’s system of government. Let’s think in practical political terms of who we would put into those last places, the balance of power places in a Queensland upper house. Who have been the big minor parties to come out of Queensland in recent years? There was One Nation, do you want them in charge? The Katter United Party and most recently Clive Palmer and his cohort. What you would do in practice is to move away from Labor governments or indeed the Campbell Newmans of the world being in a position of power to actually make change, but you would put power directly into the hands of a mad group of rag tag rednecks, gun toting lunatics, the kind of people we have never before seen. This would not by osmosis make us that little more slick, it may well in practice make things much, much worse. 

I agree with the essential point that Queensland would be better governed if there was a better level of review. Having eleven years in the Queensland Parliament I think that’s quite certainly the case. At the end of the Bligh years a program of parliamentary reform was developed to deal with this problem, this program had a number of elements, the extension of right to information legislation which was freedom of information on steroids and the bigger change was to the state’s committee system so that the parliament was managed for the first time by a bipartisan committee, there were committees in more direct portfolio areas and the estimates committees were changed so public servants could be questioned directly by the committee. Which is important because unlike political leaders those people just always tell the truth, in committees they just start blabbing it’s awful. So there was an effort to create some review.

There are some limitations to not having an upper house, I don’t dispute that, but one of the first things the Newman government did was to take those things away. One of the most scandalous things they did was to move the estimates committees that had previously run day by day, one committee at a time over a period of two weeks and changed it to where they all happened over a period of one or two days. That along with the changes to right to information takes away the public's ability to scrutinize what’s going on. It is true in an upper house that the people have to be reasonably switched on. They have to pay some attention, and that’s why things like freedom of information and committees can work very well. 

There is another reason, which is a more controversial reason but I believe it to be true and that is why it is the conservatives that are always drawn to this issue, and it’s this, there is among conservative politicians in particular in Australia, a kind of hidden but occasionally emerging desire to doth their caps and rub their shoulders with royalty. They love a bit of that sort of thing. It’s why we have Tony Abbott who was formerly the leader of Australians for Constitutional Monarchy. Along with it goes a tendency to believe you can have a bit too much democracy. It might be okay that if for instance as we have in the House of Lords, who aren’t elected at all, if we had more of our own people running the show. You might think I’m just being mean, but how do you think we have had the reintroduction of knights and dames in this country. How is it do you think that the first Australian knight was Prince Phillip? What do you think motivates someone like Bronwyn Bishop to fly around on the public purse, treating everyone like she’s some poor-man’s brand of royalty? What is this sense of entitlement, this sense that the proper people should run the show? It’s not a big streak and it’s not among all of them, but there is a sense that we should have an upper house so that things are done properly in the old-fashioned British way. In examples like those and in the yearning to have an upper house, despite the fact you cannot substantiate the argument that it would give us a better system of governance, you see little twinkles of it, as if they came from the wand of the Queen herself. Never ignore that there is that tiny little streak that underlies what we hear in this debate. You won’t hear it always but you will hear echoes of it from time to time.  Thank you.”

Prof. Nicholas Aroney: “Thank you speakers for so eloquently making your cases. I think we need to give you the opportunity to have some questions from the audience, so please are there any questions?”

Eddie Obeid via The Land

Audience Member 1:  “My question is for Mr Morris QC, you spoke very eloquently on how in Queensland we have had this history of government overreach and you say this will be remedied by an upper house, but is that the case when you look at the Obeid scandal in NSW and other places where there have been gerrymanders in the past? Where you have an upper house there still is often a problem when you have governments being elected with sufficiently large majorities like the Beattie government or Newman where they would have gained control of the upper house anyway. With that in mind, with this problem extending across the states not just Queensland would it actually make a difference?”

Tony Morris QC: “I don’t think an upper house is a panacea for all problems, it wouldn’t deal with Obeid style problems and one can make a catalogue of the topics it can’t answer. What it can answer is exactly the type of problem Rachel spoke about, where you have a well-intentioned and honourable government, like that of which she was a member, that promotes new reforms and then when a new government gets elected those reforms get swept away. An upper house will address the problem of whoever is Premier of the day has absolute power. At least in New South Wales you have ICAC which brought to light the Obeid scandal. The Newman government did its very best to dismantle the system of non-partisan corruption investigations under what was then the Crime and Misconduct Commission. That’s the result of having absolute power in the hands of the Premier. I’ll confess my natural tendency is towards the conservative side of politics, but I think the best Premier of Queensland in living memory was Peter Beattie and because he had the honest and honorable intention of achieving good government the fact he had absolute power to control parliament didn’t matter. It does matter when the electoral system produces an anomaly.

That leads me onto two points I wanted to mention briefly. The first is the architecture of any new system is very important otherwise you end up with the Ricky Muirs and the Brian Harradines and the Pauline Hansons, but those are the results of the distortion in the senate electoral system where half a million people in Tasmania get as many senators as the 5 or 6 million people in NSW. That’s an absurd distortion and wouldn’t exist in a Queensland upper house. The other element is the larger the amount you vote in, in a senate style election, the more chance there is for producing some crackpots. If the number is confined to around five per district, then you will inevitably get two from one side of politics, two from the other and one who is either Labor or LNP or possibly an independent. If there are five you’ll need at least eighteen percent of the vote to be elected, so it’s going to have to be someone reasonably respectable, for example the man whom the Palaszczuk government relies on for his support, Mr Katter Junior. Someone reasonably respectable like that. It’s all about the architecture of the system, it’s not a universal that you’re going to have crackpots ruling the roost, that’s simply not the case.

My final point in response to the question is that the type of upper house that exists in the senate is quite unique and it has distortions in regards to our history, but the upper houses in other states actually do a good job of review. Yes it may be the case that sometimes the balance of power is held by fruit loops but we tend to attach too much significance to the balance of power because if the major parties agree on something, then the balance of power doesn’t enter into it. The balance of power only arises when the parties are at odds. It may sound odd, but I’d prefer to have an illiterate saw-miller from Victoria than a system where one person has absolute power, and that’s the system we have at the moment.”

Audience Member 2:  “This is for Ms Nolan, you spoke of progressive governments wanting to act in a progressive manner. A progressive government is currently in power and they’ve spent a lot of time repealing the decisions of the previous government. If we had an upper house, even if it was filled with crazies, they would only have the power to stop legislation. If an upper house existed wouldn’t they have stopped some of the decisions of the previous government, which would have allowed this government to act in a more progressive manner, rather than spending its time correcting the mistakes of the previous government.”

Rachel Nolan: “There’s a huge bunch of issues in this, about how they’re elected and what their powers are, that become matters of design. As a general principle, one reason why we don’t get into the debate, is that whilst it sounds like a good idea on the face of it, an almighty brawl would emerge over its design. So I don’t think you can assume an upper house wouldn’t have the power to introduce its own legislation. To come then to your question of ‘doesn’t a progressive government still get to be progressive?’, the very fact of an upper house not being able to introduce legislation only being able to stop it is kind of unrelated to that point. Nicholas might know more about this than me, but to my recollection when Queensland finally got rid of an upper house in 1922 there were many issues, but the most significant issue that the Ryan Labor government had been trying to get up was the introduction of a workers compensation scheme. Those who were appointed in the upper house were the landed gentry and were opposed to the workers compensation scheme for their shearers who cut themselves all the time, but you can still block whatever you like, and that is an impediment to the progressiveness of a progressive government.

What played out in the Whitlam years, was that the Liberal upper house was opposed to a number of reforms that the Labor government was seeking to make. One of those scandals was the Khemlani loan scandal, where money was borrowed from a shady middle-eastern oil baron, which later became a mainstream thing to do, but that government was stymied from implementing its agenda, by the more conservative upper house which didn’t want to see Australia going down, what was also ultimately thought by the Australian people to be a radically progressive path. The ultimate answer is that if you can block legislation, you can block the progressiveness of a government and that matters to more leftist governments. This is changing and the Palaszczuk government thus far is the best example of the change. We think we’re here for a good time not a long time, as there have historically been longer periods of conservative rule, so we historically think that our role is getting in and getting into it and that’s why we care about potentially being stymied more.”

Audience Member 3: “This question is directed to Rachel. You made the argument that proper people should govern, but the argument could be made from the other side. Political parties who have a very tight grip on the lower house, MPs who criticize their parties are unlikely to be re-elected for parliament. The parties in the lower house are tightly controlled by parties such as the Labor party, as opposed to a better system that could be introduced in the upper house, whether that be proportional representation or for instance one model is that local council mayors could form an upper house. Now I don’t know if that would be representative, but it would provide a greater range of people and I think it would be unfair to classify all council mayors as crazies.”

Audience Member 4: “Don’t you think part of the problem with accountability, is that accountability is left to the elected members. Take for example the problem with the expenses scandal, such as Tony Burke’s family trip to Uluru. If you take Mr Morris’s point of learning from history, hasn’t it been that in Queensland’s history it has been non-elected committees and commissions that have changed things. One of Fitzgerald’s greatest complaints against the Goss government was its dismantling of the EARC. Some of the greatest reforms have been the introduction of the productivity commission and the strengthening of the right to information. So to learn from history we need to look beyond the traditional Westminster system, one of the best mechanisms of accountability actually came from Sweden through the introduction of Ombudsmen. So do we need to look past the Westminster system for different types of measures?”

Rachel Nolan: “Regarding the first question, I think it’s important not to misunderstand what’s political and what’s structural. That is in so much as it’s true now, it’s a generational thing were young people take this view that politics is done by someone else. When I was at university we thought those sort of people were us and that was probably the case for Tony as well. There is a perception and a reality that party discipline is strong, meaning that political power is locked up in the hands of someone who isn’t us but them. I essential disagree with that view, I believe political power is available to every single citizen. If people become involved, that’s what changes politics. If you want to change politics it’s not in my hands it’s in yours. It’s different from there being an upper house because that’s not a method of political practice, that’s a method of changing the rules and that is indeed something that people in political power at that time can do.

The other thing that I neglected to touch on, that we in the political parities believe we are the right sort of people. There is an extent to which that is true and we who were members of the lower house think that we’re the right sort of people compared to those elected on proportional representation. Keating famously called the senate unrepresentative swill, and it’s abusive but it’s funny and there’s an element of substance to it. The idea that those who are members of the lower house are indeed the right type of people is not based on party affiliation. There is a direct connection between a member for parliament who represents a constituency and those they elect. So when I was the member for Ipswich, I walked amongst those I represented everyday. Senators who represent 0.5 percent of five million people don’t have the direct connection with the constituents they represent and don’t have a direct accountability to those people, and don’t have a relationship with those people in the same way. I recently talked to a person who was in the senate but now serves in the lower house and he or she said to me ‘they just come in and want to talk to you’. Senators have no idea what it’s like to have a connection with the people they represent because it’s so many people who are often so far away.

When you have a direct relationship of representing the electorate, you develop a deep relationship and responsiveness to what those people want and need. So when I take about proper people it’s not about party affiliation, it’s about real, alive and direct accountability. So onto the final point of ‘can we have ombudsman, a supreme court and all these other bodies of power’. So you’re an anti-democrat. Certainly we should have people of expertise, but we as a citizenry get the politicians we deserve and we do have a responsibility to hold them to account, you can’t just know better. The people I loathe the most are opinionated but don’t vote. We have an obligation, it is a two way street, if people are disengaged then what do you expect? Democracy is participative. There has to be an ultimate accountability. No one else is as accountable to the people as elected members of parliament are.”

Tony Morris QC: “I first want to address what was said about how we get the politicians we deserve. I disagree fundamentally, no one deserves to have Bronnie Bishop as their local member. That might be an extreme example, but the fact is that every political party has at one time produced inappropriate members of parliament. There are a couple who have appeared in the newspapers in the last few months from the Palaszczuk government, but no political party has so far been able to find a way to prevent some people from slipping through the cracks.

The only way to prevent those people achieving absolute power as exercised by Ned Hanlon, Joh Bjelke-Petersen and Campbell Newman is to have an upper house, there is no other way. If I was doing this as part of my day job, and being a little more ruthless than is appropriate, I would say the argument against me is bizarre. It amounts to two propositions, one is that if you have an upper house you’re going to get a lot of fruit loops and the other problem is that the people who want an upper house want it because the right sort of people will occupy it. As I say it’s all about architectural structure. I have a controversial view of my own that if we have an upper house, the members should have a lengthy term of six or eight years, but they should then be ineligible to stand again for either house of parliament for as long as they have been a member of the upper house, as a way to ensure that people going into that house don’t do so as a long term career expectation that they will spend the rest of their lives occupying a seat in parliament, but on the basis that they can do what their conscious tells them to do, not what the party dictates, not necessarily even what the community dictates but what they in their heart of hearts believe they should do, with neither an expectation of being rewarded should they decide to follow the party line, nor an expectation to be punished if they go in the opposite direction. This is probably an extreme view, but I mention it in regards to the fact that it all depends on the structure.

Certainly the notion that an upper house is going to attract odd bods is completely answered by saying it’s completely dependent on how you design it and if you have optional representation with three or five members for each district this problem just doesn’t arise. I’m particularly interested in the second question, which I think is a particularly insightful one. It is true undoubtedly that some of the best work in terms of good governance, comes from people who aren’t politically elected. Judges, royal commissioners and commissioners of inquiry, organisations such as ICAC, ombudsmen and specialist ombudsman such as the telecommunications ombudsmen and the banking ombudsmen, but also public servants who are apolitical and just do a good job regardless of who is in power. They do great work, but for those organisations to be able to achieve that protections need to be in place.

Take for example a right to information commissioner who is ensuring that the public get the information they need to see if anything is going wrong in government, you need to have the legislation in place as it was brought in by the Bligh government but you need the protection that the next government to come into power can’t undo it all, which is precisely what happened with the Newman government. We had world-class legislation brought in by the Bligh government, but what use is it to anyone when the next government can dismantle it. So yes, the non-political branches of government are hugely important but that has to be on the basis of an administrative and legislative structure that is responsive to community requirements and can’t be undone at the whim of one person.”

Rose: “Unfortunately this marks the end of tonight’s lively debate. Thank you very much to our panel, Professor Nicholas Aroney, Mr Anthony Morris QC and Ms Rachel Nolan. I thoroughly enjoyed tonight’s debate, I’m a little more confused but I’m positive everyone in the audience is as well.  Could everyone join me once more in saying thank you to our speakers.”

[Applause]

Judge's Associate Seminar

On the 2nd of September, the Justice and the Law society, in conjunction with the UQ Law Society, held a seminar about becoming a judge's associate. The guest speakers were:

• Patrick O’Brien – Associate to Justice Greenwood (Federal Court)
• Rebekah Oldfield – Associate to Justice Applegarth (Supreme Court) 
• Hugh Hadgraft – Associate to Senior Member Peter McDermott (Administrative Appeals Tribunal)
• Anna Hede - Associate to Justice Forrest (Family Court)

Elizabeth: Hi everyone! Welcome to our Judge’s Associate seminar. I’m Elizabeth from the UQLS, and we are also joined by Jill from JATL; we have combined forces to organise this event. We have four Judge’s Associates here today: Pat, Rebekah, Anna, and Hugh, and they are each going to start by talking a bit about their experience, the application process, the interview process, any tips they have, and then we’ll hand it over to you for a Q&A.

Pat: Hi everyone, I’m Pat O’Brien. I am an associate of Justice Greenwood in the Federal Court. The application process, firstly, is wildly different for everyone. It is not like going to a firm where there is a start and finish date, a round of interviews, etc. I literally wrote a letter, and got a letter back with an invitation to an interview. The timing depends on the judge; I know my judge has appointed for next year, and he has got a stack for the year after. There’s another judge who has not yet appointed for next year, or I think he’s just appointed. 

The application process is kind of odd because the nature of the work: you are working very closely with a person. When people ask what it’s like… has anyone seen West Wing? I tell people my job is kind of a mash between Leo, the chief of staff, and Charlie, the body man, as I am telling the judge what he needs to know, what we’ve got on today, and organising his calendar, and also picking up his glasses when he leaves them in a café. It is not necessarily the person with the best GPA who is the most attractive candidate; the most attractive candidate is the one about whom the judge can say, “I can sit next to you on a flight for five hours to Perth with. I’m happy to have coffee with you, I’m happy to have dinner with you in Sydney.” It is as much about a personality thing as anything else. 

The nature of the work is not what I expected. It is not hours of research, which is what some people expect – I see a lot of relieved faces! A lot of it is administrative because no one speaks to a judge directly, for obvious reasons. You don’t want parties contacting a judge with their opinion. All the contact with the court comes through the associate. It is a bizarre situation to come straight out of law school, to have senior partners emailing you saying, “Mr. Associate, if it’s not too much trouble, can you ask the judge this?” There is a lot of admin and organising, there is research involved, but it is usually more procedural things – I am getting very good at the Federal Court rules. I’m not going and finding reams and reams of cases for the judge because that is what the parties are there for. They are coming and bringing the cases to the judge. 

One of the biggest parts of my job is, unfortunately, editing. In the Federal Court, over the time the judge goes to court, he will write something. It is not like in the State Courts where there’s criminal matters in which the judge is almost referee – before sentencing anyway. Aside from five minute directions hearings, where the parties have come with agreed orders, every time he goes to court, he writes something. Because of the nature of the areas of law and the Federal Court, you’re talking Commonwealth legislation, corporations, tax, and administrative law. You have got some judgments that are five- to ten-page Refugee Review Tribunal appeals. I’ve proofed a 300-page judgment this year, which was sort of all-consuming. It’s not as daunting as you think… afterwards. 

I love the Federal Court because there is no criminal law. There is Commonwealth criminal law, but everything that is criminal law goes to the States. The closest we’ve had is the ACCC pursuing someone on civil penalties for not disclosing documents they were compelled to, and that is absolutely the closest and it’s not even really criminal. A large body of the work is admin, a lot of admin law, because often things that seem like another area of law, are actually administrative law; for example, a tax matter might be admin, since it’s reviewing a Tribunal. A lot of corporate, or maritime law, which is something I knew nothing about coming out of university, but now I know a lot about. 

It also differs depending on the judge, because in the Federal Court they have a docket system whereby they try and direct cases to an appropriate judge. My judge, Justice Greenwood, is on the maritime law panel, so we get a lot of shipping cases coming through. The work is good, I think it’s very enjoyable. I think it’s the best working year I’ll have for a long time because it’s a good mix between having a lot of interesting work, and different work. I’m not going through and reading and doing discovery, for example. There’s a lot of exposure to different areas of law, and it’s very dynamic; also it’s not as time-consuming as some grad spots may be. I live with a couple of lawyers who are doing grad spots and they’re coming home at 10 and 11 o’clock at night, and it’s not usually that bad, sometimes it is, but often it’s not. 

One of the perks of the Federal Court, that the other courts miss out on a bit, is the Federal Court is obviously a national court. Something I didn’t realise coming out of university, that you never think to look up because it’s not a useful thing, is that the Federal Court appeals to itself in the full Federal Court. There’s no different judges like there are in the States. There are a series of windows through the year that are set down for Full Court periods, and all the judges just move around the country and hear appeals. I’ve been to Sydney three times, Melbourne twice, Cairns, we’ve had associates go to Canberra, Adelaide, Perth, and there’s been four trips to Papua New Guinea as well, because two of the federal judges in Brisbane sit on the Papua New Guinea Supreme Court. Travel is a great opportunity with the Full Court; in fact, there have been people out all over Queensland doing native title. 

I would say: don’t limit which judge you would apply to based on your perceptions of the judge, because, firstly, they’re often wrong: the court persona is often very different to out-of-court persona. Some of the judges in court who are some of the meanest, toughest judges, are the most lovely, kind people out of court. The work is enjoyable whether you have got someone who is a good judge or a bad judge – not that there are any bad judges in the Federal Court, there’s only seven of us in Brisbane, so we’re quite lucky in that sense. Most Judge’s Associates are for a year, we’ve had a few odd JA’s who’ve stayed on a bit longer when there is a particularly long judgment they’re proofing or something like that, but it’s pretty standard — a year. In Brisbane it’s the first week of February to the first week of February. Other States they do it a bit differently, they stagger it, but in Brisbane it’s pretty set. You can’t apply early enough, because as I said, my judge had appointed next year before I started, and he’s looking at 2017 now, and I know some of the judges have appointed that far out, so there’s not a too-early time to send your resume in and put on a stack. I literally just wrote a letter, “Here’s my resume, I’d love to be a Judge’s Associate”. 

Rebekah: My name’s Rebekah Oldfield, I’m the associate to Justice Applegarth on the Supreme Court, but I think that given everyone else here is Federal, I’ll also speak a bit about the District Court and the Court of Appeal because they’re obviously very different experiences for the associates. First of all, in terms of the application process, it’s standardised, unlike the Federal Court, so there is an opening date, which is typically the 1st of December, but you can go on the Court’s website and check that closer to the date. This year they extended it so that you had 3 months in which to put in an application, but that was kind of an error because most judges still just appointed within the regular 2 months because they didn’t realise they had longer to consider applicants. A whole bunch of people sent their resumes in late February, and they simply didn’t even get a look in. I’d say that if they continue to have an extended time frame, even though it technically doesn’t close until February, still get your applications in early, be ready to put them in in December, rather than start writing them in December. One judge hired in the first week of December, others still haven’t hired at all; there’s no end date by which they have to stop considering applications. 

Also, it wouldn’t be a surprise to any of you, but there’s been lots of turnover in the State Courts. It has actually opened up doors for people to start mid-year, which is quite beneficial, as I imagine most of you are doing dual degrees, and typically you end up finishing in July, which can be an awkward time to be applying for things. Don’t let that be a deterrent – watch the news and whenever they make a next Supreme Court appointment, have your resumes ready to go and put them in. Just flood their inbox. Our email addresses are not hard to find out, they’re all standardised. Applications are quite similar to what Pat was saying. You write a cover letter and you attach a resume. A lot of it is common sense: don’t use scented paper, don’t use gold paper, don’t use black envelopes and pretty little starred paper clips. Just write a professional letter. It’s always good to make your cover letters personalised to the judge, even if you are sending out 25 applications or something. The reality is they do go down the hallway and say “I’ve just got this application, have you seen it?” “Oh yeah, I’ve just got pretty much the same one sitting in my inbox as well”. It’s not that they expect you to write completely different cover letters. 

The general approach is you have a few standardised paragraphs and you change the first one around based on whether or not your judge that you’re applying to does, for example, some P&E work so you talk about planning and environment experience, you might have or your love of property law or something. And then you finish it off with some little quip about, “I find it very impressive that you’ve done blah blah blah”, so that you can at least show that you’ve taken the initiative to read their judicial profile on the library website, and maybe their swearing in speech or something like that. Don’t go overboard. Judges do get creeped out if they think you’ve been stalking them at every event that they’ve gone to. I’ve listened to enough chats in the UQ library to know that’s what some people do – don’t do that, it doesn’t come off well. 

At the end of the day, it really is a personality thing. If you’ve got, I don’t know, a 5.3 GPA and above I’d probably say you’re capable of doing the job. It is really a lot of administrative work. That is partially because the judge doesn’t really have a staff, they have a secretary who does dictation and manages their diary, and that’s about it, and keeps track of their kilometres on their government car, but that’s really all they do, and then there’s them. Unless you have a very proactive judge, they’re probably not going to want to sit down and write a whole stack of what are essentially administrative emails to people in the court or this sort of thing, so you’re there to fill that gap. If you don’t like admin work or if you think that you are above admin work, or that you’d just not be very good at it, or you’d rather spend your time doing other things, that’s perfectly fine, but just realise that this job is probably not the job for you. That is the way that you’re most beneficial to your judge, not whether you can correct them on the law. They are pretty bright. Most times they know the law once they have read the submissions. 

At the very least, you want to be able to do that part of your job very well, similarly assisting them in court with that procedural aspect of your job. The chance to do research, and those sort of more typically legal tasks, really depend on which judge you are with. Some judges really load their associates up with that stuff and want an outline of the whole matter before they start writing a judgment. Other judges have probably got half of it sitting in their head while they are in court, so there is really no way for you to find out what judge does it which way unless you know someone who’s worked for them previously; it’s a bit of a guessing game. 

Whatever method or way that they choose to adopt, it’s still very beneficial for you obviously observing their working practices. Especially if your judge, which a lot on the Supreme Court have, extra duties. Rather than simply sitting on the normal court calendar, they’ll also be on the Mental Health Court for example. My judge, he’s a supervised case list judge, of which there are three. That means that we have got carriage of about an extra 45 or so matters, twenty of which involve self-represented litigants. Every day I’m dealing with self-represented litigants sort of coming to me and saying, “I don’t know how the court process works” and this sort of stuff; it can be a minefield to try and navigate that. It also means that as an associate you’ve got just an added opportunity to observe a niche area of the courts which is really great. 
The District Court: obviously it is a lot of crime, so if you don’t like watching a lot of sex offence cases, don’t go to the District Court. Having said that, the work load is less because you basically sit in trials the whole time, so you don’t have as much to do before court, you don’t have as much to do after court, because you don’t have editing to do. Proofing of judgments, like Pat said, is what takes a lot of time. It’s often a really fun crowd, less work, have more social events; it’s really good. It is still really challenging. If you do want to go into crime, it’s enormously beneficial, you will get to know all the regular players from the criminal law firms, the defence council, this sort of thing, and you go on circuit a lot. If you manage to save up all your circuit allowance, you are probably earning more than the Court of Appeal associates as well, which is good. 

Supreme Court: you’ve got diversity. If you do get crime, you pretty much only get murder or drug offences, mostly drug offences – very light on crime, and there’s not been much crime around this year either (I don’t know if that’s a new trend or not). It’s a lot of civil stuff. Be prepared for most trials to fall over: you’d be surprised, I’ve only seen one or two trials through to completion in the seven months that I’ve been in this job, one of which was a two day easement case – not the most interesting thing you could watch. However, being in the Supreme Court is a good opportunity to see some really fantastic litigation, and also the reality of what a multi-million dollar case looks like from within the court when it doesn’t settle, and it gets that far. You see what all the disclosure amounts to, what is actually taken into consideration, and this sort of thing. It’s very nice to view that, particularly if you know that you’ll probably end up doing a graduate stint in a commercial law firm or something. It is nice to know what the judge hates, in cases with a lot of paper, and this sort of thing. 

The Court of Appeal is very different again. It’s probably quite well-balanced between crime and civil. You have three judges typically sitting on the bench, so it means that from an associate’s perspective, only the senior-most judge’s associate actually does anything during court. They’ll do things like marking exhibits and keeping an electronic log of what’s going on procedurally in that hearing. The other two associates basically just have to sit there and attend to their judge if they need to, so your in-court duties are not as onerous, but it means that you have a lot of judgments being churned out by your judge constantly, so there’s a lot more proofing. Everyone encounters the same sort of duties, but it is more a question of to what extent they need to do those duties, and how often. 

Anna: I’m currently working as a legal associate in the Family Court. As I’ll explain to you tonight, the legal associate at the Family Court works differently to other Courts. I started working at the beginning of 2014 while I was in my final year here at UQ, and I decided to stay on with the position this year, so this is my second year. I was initially working for Justice Bell, but within a few months His Honour took long leave, and then ultimately retired at the beginning of this year, so after 39 years on the bench, His Honour decided to retire soon after I was employed as his associate. I tell myself that was just a coincidence. In about August last year, I then started working for Justice Forrest and have continued in that role since.
To explain how the Family Court works: the judges are either in the Trial Division or in the Appeals Division, and each judge has two associates: a judicial associate and a legal associate. The judicial associate, they work full-time and perform an administrative role. They generally have no legal qualification, and they are the ones who go to court with the judge, and they perform other duties like managing the judge’s diary, typing up orders, listing mail matters, and general running of chambers. The legal associate, on the other hand, as which I am employed, has a law degree. Each appeals judge is entitled to a full-time legal associate, whereas the trial judges are entitled to a half-time associate each, so you would either work full-time for two judges for two judges in the Trial Division, or you would work full-time for one judge in the Appeals Division. I should actually mention that in the Appeals Division, the associates are the ones who attend Court with the judge, and they also do quite a bit of interstate travel. As Pat said before, they travel to places like Sydney, Melbourne, Adelaide, and Perth, which is one of the benefits of being in a federal jurisdiction. The role of the legal associate varies very differently between chambers, so it depends on the particular judge and how he or she likes things to work. 

My role involves preparing a summary of each matter for His Honour. Generally the matters we see in the Family Court were commenced in the Federal Circuit Court and have been transferred to the Family Court because of the complexity of the case, so by the time the matter comes before His Honour, the parties have been litigating for many years and the file is quite large. In the summaries I have to prepare, I just look at what application is being heard, what order each of the party is seeking, the witnesses, the material. I summarise the procedural history which is often quite long. I summarise the facts and try to identify the issues that will need to be determined, and look at what the expert opinions say, and raise any issues that might come up at the hearing. I also do any research that His Honour might require, and this is really good because you have the benefit of the court library, and we are given really good research training there too, which has been really helpful. I do other things like proofreading, doing catchwords, editing, and you do the citations and check all of those things. We sometimes draft parts of judgments, and really just do any task that might assist His Honour. You actually get to do a lot of legal work. 

The amount of time the associate spends in court really varies depending on which judge you work for. I’ve been really lucky that I’ve been able to spend a lot of time in court, and during that time I will take notes and perform just general associate duties. I should also highlight though that the Family Court doesn’t have jury trials and it is an affidavit-based Court, so counsel rarely has to lead evidence from the witnesses. In child-related proceedings the rules of evidence don’t apply, unless the Court decides, so unlike the other courts you have limited exposure to those sort of processes. 

I really can’t speak more highly of being an associate. I absolutely love the job, I’ve learnt so much and met so many wonderful people. I would really urge you all to apply for these positions in the court where your interest lies. I have always been interested in family law, and it was actually Anne-Marie Rice, who’s the family law course coordinator here at UQ, who recommended that I apply for the position. Being an associate has taught me so much, not only about the law, but about the court processes, and about how a case is run. You get great experience because of the diversity of the matters and also the different applications that you see. You see behind-the-scenes, gain an understanding of how the cases are decided, and you experience different firms and barristers as Rebekah outlined, and have the benefit of seeing how different practitioners advocate. 

I feel extremely lucky actually to have worked for Justice Forrest, because His Honour goes out of his way to explain the law to me, and he will often come up from court and he’ll discuss with me what just happened in the courtroom, the different strategies the barristers used, strengths and weaknesses of their arguments, how they dealt with difficult witnesses and things like that. He also points out different techniques that the barristers have used in cross-examination that were really effective or not so effective, and they are things that I would never have noticed otherwise. It is invaluable experience and I don’t think that you can get it in any other job. The judges are all so intelligent and have such a wealth of knowledge and experience, and if you open yourself up to the experience you can learn so much. Justice Forrest, who I work for, manages the Magellan case list, and so that’s matters that involve a lot of family violence and a lot of sexual abuse; the nature of the work can be quite confronting and it isn’t for everyone. In the Family Court you also get a lot of self-represented litigants, and there are people going through some of the most stressful and difficult times of their lives, so everything is on the line when their children are involved and it’s really important to be respectful towards everyone you deal with. Discretion in both the courtroom and the chambers is really important for the job. 

In terms of the application process, I’d encourage you to apply not only in Queensland for the Brisbane Registry, but also the Registries interstate because it is a federal jurisdiction. Legal associates are a non-ongoing position with the federal government. The positions are generally only for a year and they are advertised when they become available, so unlike the State Courts, there’s not one time of year that the positions come up, the positions come up at any time throughout the year. You can see when positions are available via the government Gazette which you can find on the APS website. The APS is the Australian Public Service website, or alternatively you can register your interest for legal associates nationally on the template register which is on the Family Court website. There is no one intake period, the positions come up throughout the year. The process is from those advertisements the applicants are shortlisted and invited to attend an interview with the team leader at the court. From there you are shortlisted again and recommendations are made, and there is a possibility then that you get invited to meet with the judge for a further interview and then the offer is made from there. If you do have an opportunity to be interviewed, my biggest tip is to show that you are passionate about the area of law that the position is in. I’ve heard this comment being made following interviews for a number of positions: that the applicant was really good, however they just didn’t seem that keen on family law, they just wanted to be an associate. Months after I began working at the court, my supervisor told me that was the reason I was offered my position over another applicant. That was the difference for me, and that’s the tip that I would pass onto you all. 

I’ve thoroughly enjoyed working as an associate. I have learnt so much and gained a great deal of confidence in my abilities and the knowledge in the area. Justice Forrest often tells me that I’m one of his top five associates, which brings me great confidence considering he’s only had four. If anyone has any questions, I’d be happy to chat with you. Thanks for having me.

Hugh: I’ll pull out my notes because if I allow myself to speak at length without any sort of constraint you could be extremely bored. I would have to echo the sentiments of my friends, and that is: there is an extremely close professional relationship between you and your relevant judge, or in my case, member of the Tribunal. It’s a unique position, it’s a position which causes a significant amount of trust to be reposed in you. It is a position in which you may well have to attend to a variety of personal matters. 

I think the principal quality in any of the professional matters or personal matters that you attend to is discretion. Has anybody done administrative law? Okay, quite a few of you. You’ve probably heard about the AAT before. Which is surprising because I used to work for a barrister and sometimes I’d be fortunate enough to be taken out for lunch and people would say, “Hugh, what are you doing next year? You must have something lined up.” And I’d say, “Oh yeah, I’m really excited, I’m going to be an associate in the AAT”. And they said, “Oh, what’s that?” And I said, “The Administrative Appeals Tribunal”. Perhaps they weren’t used to the abbreviation. It’s the peak merit review Tribunal in Australia. I’m sure you’re all adequately familiar with what the AAT is. It’s nothing like a court, and you probably know about that because it can determine its own procedure, it’s not bound by those rules. It’s not bound by the rules of evidence either.

What I will say is that the Tribunal has a lot of eminent members. Some of them are professors of law, a lot of them are silks, some of them are Justices of the Federal Court. It’s by no means an inferior opportunity just because it’s called a Tribunal instead of a Court. In fact you get a lot of the same experiences, and in fact I should say that you may even get more litigation time as well, because I would sit in the Tribunal on hearings for about 3 out of 5 days every working week. You go on circuits as well, you can go to Cairns, Townsville, you can go to rural NSW, and I think that that’s important, it’s nice to have some diversity and see some different things. The Tribunal deals with some fairly diverse matters: tax, freedom of information, Commonwealth compensation cases, which are fairly interesting, some matters with restricted security clearance, and civil aviation matters as well. 

I think I’d also echo the sentiments of Pat, in that it’s not about the graduate with the highest grades garnering a job in the Tribunal, I think it’s about a passion for administrative law. I don’t know if that seems like an oxymoron. You know, how could you possibly be passionate about administrative law? I can assure you that some people are, as unique and curious as that may be. If you don’t have marvellous grades, then I think it’s necessary to put that in context. Perhaps you might have a GPA that’s at the lower end, but you know if you’re working full-time and you’re part of a university society, and you might have done really well in individual assignments, well, I think you need to put that in context because some people are able to achieve wonderful grades – and I take nothing away from that – by doing university at a slow pace, and perhaps not having to support themselves, or perhaps not having to work or to do other things, whereas other people of course have much different circumstances. I don’t think it’s any excuse to say, “Well, I had to support myself at university, and I had to do this and that”, but you may well be able to put your grades in context and say, “I actually did really well on my civil procedure assignment, and I think if I didn’t have the distractions of all these other things, I may have been able to replicate that success more consistently”. 

In terms of what you’ll need for your application, I think to talk about that in isolation is really quite artificial. I think that the application process really begins in your first year of university. You really need to be involved as much as possible. You should probably be out there attempting to gain work experience at a very early stage. I mean you don’t need me to tell you that the legal profession now, more than ever, is extremely competitive. I don’t want to dissuade you, or I don’t want to demotivate you in any way, but if you can get some experience early on, that obviously will work in your favour. 

I think one thing I would say is that working for barristers can be an untapped resource. A lot of people think that they need to work for a firm, or they need to go down to clerk on Eagle Street. I don’t think that’s the case. I think that there is a huge resource of barristers, many of whom require support staff, and a lot of which, given the collegiate nature of the bar, would be more than happy and capable of assisting you in any way, even if the work for some period was unpaid. That’s certainly something that I did from an early stage, and I think it has been a tremendous benefit to me. Keep in mind too that the people that you’ll be applying to, that is, judges of the Supreme and District Courts, and indeed members of the Tribunals too, come from the bar for the most part. That’s worth thinking about. 

If you’re stuck on firms, if you really want to work for them but don’t succeed in Brisbane, why don’t you try somewhere regional? I think that might be worthwhile. Certainly some members of the judiciary have said that too. There are firms outside of Brisbane that would like to have some work experience students or people working in a paralegal capacity over the university holidays. I think a lot of university societies and skills competitions are worthwhile as well. 

I think, in terms of your application, if you know that you’re bad at writing cover letters, and you know someone who has got a good one, you could benefit from reading it. Don’t copy it, but people make good points and they put things in an interesting way. Obviously you need to have an interest in the field, and you need to get your applications in on time. The important thing about the Tribunal is that there’s a thing called The Australian Public Service values, and it’s a document about how we should all be honest and have integrity, and a lot of those other fairly human things, but you need to read that duty statement because you’ll need to answer a number of criteria, certain questions, in your application, as an adjunct to your cover letter, and it’s helpful if you are familiar with the material. 

I think in terms of formalities of the AAT process, it’s generally advertised through universities, it’s available on the website. I think that there was approximately 10 others that were interviewed with me, and about 3 of us were chosen. The AAT also compiles a merit list, so if you don’t make the first cut, you may well be called upon later to take up a position. That was certainly the case six months after I was interviewed. Another member was appointed and one of my colleagues was called out of the blue, for what I’m sure was a very pleasant surprise for her. It’s not “all over red rover” if you don’t get the job at first instance. And I think that’s about it.

Elizabeth: Thank you so much for our speakers, for giving us an overview, we’re actually going to open it up to you guys if you have specific questions for Pat, Bec, Anna, or Hugh, so if you have any questions just stick your hand up and I will come to you with the mic. If you have a question for a specific JA, if you can direct it to them, that would be great.

Question 1: This is not to a specific person, but I think this was a general idea, that you should show passion for what you’re applying for. Obviously a lot of people are going to hear that and say “Yeah, I’m interested”, so how do you show them the difference that you’re actually particularly interested, and show them that you’re different? Do you show them through previous work experience that is in that field?
Anna: Actually, that’s actually a really good point. That’s one thing that I think is really good, especially with family law, I had done work experience with a few different firms and barrister who did family law. Even things, like, I went along with a barrister to just a couple of trials that he was doing. I did some work experience actually with Anne-Marie Rice for a week at her firm, and just little things like that show that you’re really keen and you’re really interested. I think also when you show you really have an interest in something, it will come across in the interview. You might want to talk about where you want to go with your career, what you want to achieve, and then talk about how this job will help you to achieve that. Often for Judge’s Associate positions, it’s really good experience if you want to go to the bar, because you are just getting all of that exposure to the courtroom and processes, and if you genuinely are interested you say, “I want to go to the bar and this would help me so much. I want to get an idea of cross-examination, and the applications, arguments, how to manage difficult witnesses, all of those things would just help me so much”. If you actually say that, they can see that you’ve thought about it and you have a goal. This is where you want to start so that you can work to achieve that.

Pat: With the Federal Court, and I imagine with the Supreme and District as well, because it’s a bit broader, obviously there’s not a specific area. I can’t show a passion for just law, that would be a bit silly. In my interview, my judge at the time was writing a competition law case, and I was studying competition law at the time, and I actually really like competition law, and so half of my interview turned into a chat about this particular facet of a case. I’d say showing a passion for admin or family law, in the AAT or Family Court is important, but in the broader courts, showing you’re just engaged generally, showing that I am obviously not going to be in love with every facet of Commonwealth law, in fact admin law is my least favourite area, which is annoying because we have a lot of it. But having some engagement and showing that I’m not just doing this as a one-year goal to move on. I’m not doing law just so I can make the big bucks, even though you can fake it, showing you’re actually engaged in what you’re doing.

Rebekah: Yeah, if you’re after the big bucks don’t become an associate at the State level, it doesn’t pay well at all. In terms of showing a passion, Pat’s right, it’s very broad, so unless you’re applying to one of those judges who has some sort of extra thing on their plate, like Mental Health Court, like P&E, that you’re really passionate about, so you’ve applied to them for a particular reason, it can be really difficult to decide what about your resume you want to emphasise in your cover letter, what experiences you’ve had that they might be interested in. That’s why we’re doing a bit of extra digging around and seeing, “Oh well, Justice Applegarth does a stint teaching media law at UQ, and I loved media law, so why don’t I talk about that?” – which I hadn’t done, and I didn’t realise at the time of the interview. I think that, certainly for the judges that I know on the Supreme Court, going to the bar is, for some of them, actually a prerequisite they look for in their associates because they feel as though it’s almost a bit of a wasted opportunity on some other people, which it’s not, but it’s that the benefit of someone who wants to go to the bar is just that much greater. Definitely at least having an interest, you don’t need to commit yourself to anything, but I’m still a bit uncertain about the bar, but I made it clear that that was one of the top things that I was considering, so I think adding something like that in your resume shows that you’re thinking about the longer term goals as well and how your year as an associate would help you achieve those goals.

Question 2: I’ve got 2 questions. One that’s puzzled me for many years: why do associates only last for a year and what is the philosophy behind the 12-month thing? And the second question is what happens to associates at the end of 12 months? Where do they go, what do they do?

Rebekah: There’s a notorious Brisbane barrister who spent 12 years an associate on the District Court with the same judge. That really doesn’t happen that often. That judge was quite stubborn. I don’t know historically why that’s been the case. I imagine because that’s clearly a mentoring role, that there becomes a limit on how much you can get from a mentoring relationship, so it’s more beneficial for you to move on. They should have mentioned earlier that within the State Courts that it’s quite common for someone to do a year on the District Court, and then do a year on the Supreme or Court of Appeal or go to the Federal Court or something. Similarly when there was a Supreme Court associate from last year who’s now a research officer at the High Court. I think it’s not the fact that you cannot do two years as an associate, it’s just that there’s very limited utility in doing two years on the same court, and I think the judges are quite conscious that there are a lot of worthy people out there and they wouldn’t want others to be missing out on the benefits of that year. In terms of where people go, as I said, they can go to other courts, if you’ve been on the District Court and you have a love of crime, and you start to know the people from the DPP very well, then a lot of District Court people end up going into the DPP which is still a tough gig, but they’ve simply got a head-start because they know the profession, which is one of the benefits of being an associate. Some associates don’t have anything lined up next year and they’re looking on the open market like everyone else.

Pat: In terms of the first question, I would agree, that from the associate’s point of view, there’s no way to progress in a sense. I personally think it’s a shame it’s only a year, I think I’m only just getting good at the job now, and I think Melbourne they do a year and a half… maybe? And obviously some judges keep them longer. You can only grow in the role for so long, and then you are just marking time. In terms of what to do next, I’m one of the lucky ones. I’m going through the open market. But one of the things I’ve discovered this year, and I say genuinely discovered, is that there’s more than like six firms in Brisbane. Because, in all seriousness, you go to university, you know the top tier firms, and that’s the be all and end all. Clerkship day is the most stressful days you’ll ever have and you think there’s no progression if you don’t get a clerkship or an offer. That’s absolute rubbish. One of the top tiers are top tiers purely because they are very big. Particularly in the Federal Court where the law is slightly different, we have a lot of mid-tier firms and even what you’d call boutique firms, firms that are only in commercial litigation or in solvency that are fantastic and would be perfect if you have an interest in that area. You have to do some work and find them because there’s no classifieds for law jobs, but don’t be disheartened if you’re GPA is not a 6.9 and you’re getting an offer at Freehills. There are plenty of firms out there, it’s not as dire as everyone thinks it is. You just have to do some leg work and find them.

Anna: Just on that point, one thing that I think is really great way to get jobs is to email partners directly, just bypass the HR process. I have many friends who have done that, and it’s really just easier to talk straight to the partners, and if they see you are passionate they’re very happy to meet with you and even if there’s not a position then, they keep you in mind for a position later on. I would really encourage you to do that. If there’s a firm that you’re really keen to work at and it just hasn’t quite worked out, see if you can meet someone and have a coffee or something and you never know through meeting people where you might end up. 

Pat: A great tip I got: up until you’re admitted, it’s all HR. As soon as you’re admitted, the lawyers want nothing to do with HR. They’ll say, “You,” (the lawyer), “I want you”. Of the associates in the Federal Court, four of us are admitted, and the rest of us are doing PLT, and the second half of the year, the ones who are admitted, they are going and having coffee with people who are saying “I’m moving out of my role, I want you to replace me”. Once you get admitted you can bypass the HR circus.

Question 3: Hi, I’ve just got some questions about the application process, so I’m sure this will be different for each, but it’s for all of you. One: can you do a Skype interview? Is that possible if you happen to be overseas during the time of the interviews? 

Rebekah: Yes definitely, several of next year’s associates have been hired via Skype. 

Question 4: Thanks. And my second question is: obviously most people apply for the year after they graduate. But do you think there’s a market for applying the year after? Do judges look negatively on that, or do you have any thoughts on that? 

Anna: Actually one of the girls that’s working in the Family Court at the moment, she was actually a commercial lawyer and decided that it wasn’t for her, and she wanted to know whether she was interested in family law and she is sort of interested in going to the bar. She became an associate later on, and she’s really loved it, and now she is enrolled for the bar practice course and she’s going to pursue that. In terms of the Family Court, there’s no restriction, but I don’t know if it is different for the other courts or tribunals.

Pat: Of the seven associates in Brisbane, one is two years out I think. And another interesting thing is that in Melbourne, while it is a Federal Court, it’s not totally federal. In Melbourne they actually pick people who have been out for 3 or 4 years. Melbourne has no one who is just out of university, I’m not sure why they do it that way, but they’ll pick people who’ve gone to a firm for a couple of years and then they will want to transition out to the bar, they’ll want to grab someone like that. Then they will go as a JA and then they’ll do the bar practice course and go out. I would say it is not necessary, no.

Rebekah: I should just mention that in South Australia they have just started something that is designed to help women transition to the bar. It is intend for women to go into after they have had several years of practice, and then they come and do a specified associateship role with more active mentoring. That’s meant to be a way of overcoming certain barriers that women face in going to the bar. I think the courts have been a lot more conscious of the fact that these days it’s not a simple progression from a straight law degree into an associateship, into the bar. They are certainly not opposed to taking some people who have some life experience behind them.

Question 5: I understand that there’s a shared pool at least in the Supreme and District Courts of applicants that all the judges can access. First of all, is there a similar system in the Federal Court and Tribunals and what not amongst applicants? And for all of you, would you say that applying to that is worthwhile, or is it realistically better just to go directly to a judge?

Pat: In Brisbane there’s seven judges, so when you talk about a pool… the seven judges are in a corridor, and their offices are all beside each other. They do chat and have coffee, etc. I’d say apply to all the judges, as I said before. I’d apply individually, I wouldn’t go through a Federal Court application, I’d apply to each judge individually, there’s only seven. Even if it is a similar application, different judges are looking for different things. And even in the style they work; for example, there are some judges who don’t want to see anything before they go into court. They sit down and say, “Right, what’s this about?” That’s a different skill set from my judge who wants to know absolutely everything beforehand. He has read everything, he’s heard me summarise it, etc. And you can’t know those things beforehand. As I said before, it’s as much a personality thing as it is a grades thing. In the Federal Court, there’s not a formalised pool, but I wouldn’t say no to writing to everyone – in fact I would encourage writing to everyone. 

Rebekah: Yes, there is a pool for the State Courts. Should you apply to it? All it takes is for you to upload it online, you may as well just put it in there. Do the judges look at it? Whether the judge sees what goes on that pool is basically dependent on one associate who has the responsibility for checking that Dropbox, and I think in this last seven months we had about 180 applications sitting there, and you are usually hiring your successor within the first two weeks of your job, you frankly have a lot bigger concerns than checking that Dropbox: it’s not the most fool-proof way of making sure the judge sees that application. I would certainly hand it in in hard copy as well. Having said that, some people did get hired for next year simply on the basis of submitting it to that pool. I think they were typically by judges who hired later in the year after the initial flurry of hiring.

Hugh: Yeah, there’s certainly a pool. There are also plenty of associates in the Tribunal, which is interesting because some of the part-time members have extremely interesting and diverse backgrounds. I think it’s worth submitting an application at any time and in fact if you don’t submit one during the period in which everybody else is submitting one, you may well stand a better chance because people might take notice of your application more than they would otherwise. 

Question 6: Just a bit of an obscure question on providing an updated resume or application as the case may be, for example too early and they’ve written back and said, “I’m not considering it until later in the year”, I know that’s particularly a concern with the Federal Court, is there a manner in which you should go about that and is there any traps to avoid in doing that?

Pat: When resumes are submitted to the Federal Court they either get emailed directly to my inbox, which is the associate inbox, or it goes to the registry and they email it up and the really technical HR-approved process is: I print them and then put them on a stack. In answer to your question, yes, I would send through a more recent one and say, “I applied a couple of months ago and in the meantime I won the Rhodes scholarship and cured cancer so I’m going to update my resume”. Personally I’d say sure and find your old one and stick the new one in.

Question 7: I just wanted to know whether you find your roles quite individual or if there’s sort of a team environment where you can associate with other associates?

Rebekah: That’s where the Supreme Court is definitely the best. Being in that building and having the benefit of being in District Court, and Supreme Court, and Court of Appeal, it’s kind of known for being a bit more of a social hub. I’ve got no doubt that everyone at the other courts gets along well, but we often have dinners and social events and we have social sport teams and this sort of thing. There’s a lot going on that the associates organise. In terms of doing work collaboratively though, it’s not really the case. The Court of Appeal may be a bit more collaborative in the sense that the judges, when they finish a hearing, they’ll go up and share a pot of tea together and they’ll probably have a little bit of a chat and some of that might filter down to the associates and there might be a bit of discussion as to how they’re going to formulate the orders precisely and something like that and it might involve a bit more interaction between the associates. Socially: really great; work wise: it is just individual work, but it’s not isolating, which is the most important thing.

Anna: We definitely do a lot of collaboration with each other in the Family Court because often, like for example today we got a case and I’d never seen this sort of matter before, it’s a special medical procedure, and the child of the applicants has gender dysphoria. It’s a matter that you don’t often see and you have to get leave of the court to undergo a medical procedure. It’s a closed court when that sort of application comes up, so it is really hard to research previous judgments; it’s just a matter of going around to the other associates, and seeing if any of their judges had heard a matter like this before, and then finding out where I should go from there. We do a lot of that sort of thing. It’s really good actually: one of the girls I was working with last year, she was just the most amazing, you’ve never seen anyone research like it, and she used to teach me so much, and she’s gone on to do a Masters at Cambridge and now she’s teaching there and the end of the year. The people you meet and you teach each other little skills along the way; those things are really good.

Hugh: I think there’s plenty of collaboration and the associates sort of stick together, so it’s a great social event too. There’s often an Associates’ Ball at the end of the year, and fortunately the Tribunal was invited this year. The first year ever! It’s really social, it’s good.

Pat: In terms of social, yes, there’s seven of us – we have lunch together every day, we’ve been away on trips together, go out for drinks on Friday, etc. There’s plenty of social and we do talk to the State associates sometimes. We go over to the Coffee Club and have drinks with them. Near them, at least. They don’t like us. Work wise it’s a bit different. Each chamber is an almost entirely autonomous unit. It’s kind of like a team at a firm. Often people will walk in and say, “Pat, what are your thoughts on this? I don’t know how to research this.” In fact, I had a question about Parliamentary procedure. Where would you go for that? And I said, “Oh, I don’t know, ask the librarian”. A lot of things don’t translate because the procedures in each chamber are actually really surprisingly different. The split of work between the EA and the associate is different within each chamber. As I said before, I do a lot of leg work before my judge goes to court. A lot of associates do nothing and then do a lot afterwards. My judge never has me draft any judgments but some judges do. Socially, there’s no isolation. Always up for a chat or a coffee. Work wise it’s unique to chambers.

Rebekah: I should say that something that’s really common on the State Courts because there’s quite a lot of judges, when a judge takes leave, then that associate is the associate who is available to the judge whose associate is taking leave, you do get the opportunity to sit with other judges; for example, my judge goes on two months’ leave from next Monday so I’ll be the first port of call for any judge who’s associate is away, ill, or on holidays, or whatever else. Even though you’ve applied to your judge, you have to be willing to work with any judge. It’s fantastic because then you get the benefit of you know actually having them remembering your name around the corridors; there’s such a high turnover of associates it can be hard to establish a personal relationship with anyone other than the judge who hired you. That is one way where it can be a bit more collaborative.

Elizabeth: Alright, we’re probably going to end it there for questions for now. Before everyone gets up, we just wanted to thank our wonderful JA’s for coming along.

Interview with Stephen Page: Surrogacy, Adoption, LGBTI Marriage Equality and more!

Stephen Page

Stephen Page is an Australian family lawyer, who specialises in surrogacy law and LGBTI legal issues. He is one of two international representatives on the American Bar Association's Artificial Reproductive Technologies (ART) Committee, and the only Australian Fellow of the American Academy of Assisted Reproductive Treatment Attorneys. He was awarded 'Activist of the Year' at the 2015 Queen's Ball, which joins the numerous accolades Stephen has earned over the years for his work. He also blogs about gay & lesbian legal issues.

On Thursday, 20 August 2015, Stephen sat down with JATL executive members Wil Alam and Jocelyn Bosse to discuss the legal and social justice issues with which he works.

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Wil: "Under s 22 of the Births, Deaths and Marriages Registration Act 2003, a couple must divorce if one partner has gone through a gender reassignment. How do you feel about that?"

Stephen: "The first thing about that legislation is that it's not quite as clear-cut as that. The reason is that, after the law came into force, I managed to get a client who was married, to have their birth certificate altered from an M to an F. My client had been born in Queensland, had gone through surgery, and had moved overseas. So, they had been born "male" but presented to the whole world as female, and then married a bloke over in the USA.

The problem with that was that - the marriage was valid, to my understanding - but, the problem was that for immigration purposes in the USA, if seen as male, it would result in her having to leave the USA. Therefore, her husband would have to uproot himself from good employment and they'd have to move to the other side of the Pacific, to Australia.

Judy Spence, previous Labor MP

So, I complained to my local member, who was Judy Spence, and then she got onto Rod Welford, who was the then-Attorney-General. He issued a ruling that said that if you are not married in Australia, and you are not living in Australia, then that law does not apply to you. That was from the Minister for Justice down to the Registrar of Births, Deaths and Marriages. We got the alteration through - though you would never have expected, looking at the legislation.

The thinking behind the legislation was the old thinking about marriage, which was that "You're born male, or you're born female, that's it." So, the whole idea of being transgender hadn't come into any legal thinking. It was seen as "inappropriate" and that they "shouldn't be married." New South Wales legislated that way, and Queensland copied the NSW laws - but hasn't changed them since.

There are couple now who feel that they either get recognised for their identity (which means they have to get divorced - which is just terrible!) or they say together, but don't have their identity properly recognised. It's just awful. This is an issue where we're really behind the times, I think. If you want to talk about discrimination towards gay and lesbian people, well I think gay and lesbian people are way ahead of trans people.

On my bookshelf is proof in the pudding about that: "Speaking Out: Stopping Homophobic and Transphobic Abuse in Queensland." This was written by two academics from Griffith [University], Alan Berman and Shirleene Robinson. They carried out several forms of research, and they found that they people who were copping the most abuse were trans people: they felt like they were being treated like freaks."

Jocelyn: "It's hard, I think, in the LGBT community - whenever the mainstream media are talking about the issue of gay marriage, or any gay issues, it's always this image of two white men together - you almost never see any other imagery associated with LGBT issues..."

Stephen: "You mean like this...?" [shows a picture of himself and his partner] [laughter].

Jocelyn: "... yes. And it's hard, because there are so many other issues that are going on, which are being ignored because of the way we are thinking about it. So when we talk about the issue of forced divorce, it's hard to get that message through because the mainstream imagery is swamped by something else entirely."

Wil: "Leading on from that, the momentum for marriage equality has been moving around a lot, especially now that Ireland has just legalised it. How do you feel about our momentum for marriage equality, and what do you think is the best way to achieve that?"

Stephen: "The momentum at the moment sucks, let's not mince words about it. I happened to be in Ireland in the lead up to their referendum, talking to a number of Irish people who were hopeful of change. Several of them were despairing that there would ever be change because they saw that the country was very conservative, of course, it has been a Catholic country. The Catholic church and Pentecostals from the USA were funding a campaign against it, and a number of them were coming over to Ireland to campaign against it. But, overwhelmingly, the Irish people supported the change. I think that was an astounding result, which was topped off by the result in the US Supreme Court.

That outcome was particularly gratifying to me because a couple of my friends over in the United States were part of litigation teams that were litigating those cases. They have run a series of cases in state courts, and before the Supreme Court, arguing this very issue. It is an extraordinary experience that lawyers make a difference. It goes to show the difference between the United States and Australia. We're both liberal democracies, we both speak the English language, we have the same values of common law and equality before the law - that English system - but they've got a Bill of Rights, and we don't. As a result, their Supreme Court can make this ruling, and our High Court can't... unless the High Court adopts the approach that Chief Justice Mason took some years ago, saying that there are implied rights in the Constitution.

If they say that there is an implied right to marry - that hasn't been litigated - it might be different from a legal point of view, but I think the chances of that happening are remote. I think it's profoundly depressing, what we've seen in the last week or so. I, for one, want to get married, and I am unable to do that here. I was hoping that there would be a change and that I could get married here this year, but instead it looks like I'll be going overseas. My relationship won't be recognised by the State, which I think is really sad. I can still be liable to pay a property settlement if we split up, I can still pay spousal maintenance if that applies, we can raise a family together - but the fundamentals of our marriage don't get recognised.

What has been consistent throughout this entire process, is that there has been strong community support. All the polling indicates that there is strong community support for change to the Marriage Act to enable gay and lesbian couples to marry. Indeed, it was raised with me the other day, "What about trans people, and intersex people?" If you have a transgender person who hasn't transitioned to the extent that Kevin did, in that case of Kevin and Jennifer, then can they marry? The answer is that it's a grey area. As for intersex people, depending on how they identify, are they truly "of that gender" and are they entitled to marry? I don't know the answer to that. There's an old case that essentially says "If you are a hermaphrodite, then tough luck."

In terms of intersex people, we know that intersex people get married, but their marriages may not be valid. I think that this is just really rough, whereas if you remove that discrimination - I know I'm preaching to the converted - but if you remove that discrimination, you say that "adults can marry other adults." You still keep all the rules about consanguinity - so, you can't marry your father, for instance. All that discrimination goes out the door.

I don't think the issue has gone. We have the Government saying "Well, we'll have a plebiscite." There was discussion about a referendum, but of course we know that, as a matter of law, it can't be a referendum, despite what Scott Morrison said. It has got to be a plebiscite, but what concerns me is whether Liberal Party politicians will be able to have a free say in the running of the plebiscite. Are they going to be told, "We've got a party policy that says we're against this, so therefore you vote against it." If that happens, it will doom it. Then, a conservative Prime Minister will come along and say, "Well, it's been doomed by plebiscite," and the change will never happen.

I think a fundamental of any plebiscite - and I don't see that there is a need for one, I might add - if our politicians actually showed the gumption of what is reflected consistently by the polls, it would just be legislated. It didn't take that much effort to change the Marriage Act in 2002 - there was nowhere near as much controversy back then as there is now. If we are to be burdened by a plebiscite, then that plebiscite needs to ensure that the politicians of both major parties are not burdened by party rules - that they are able to vote with their conscience." 

Wil: "It seems that most people outside of the LGBTI community think that marriage equality is the be all and end all - what are some other legal issues that you think the LGBTI community faces?"

Stephen: "I'm going to work backwards first. When I went to that award, the Queen's Ball award, it made me reflect on what changes have happened. In 2000, the first baby steps happened. There was an industrial award that, for the first time, allowed a man or a woman to take time off to be with their same sex partner. That was an extraordinary development, and we didn't know at the time whether there'd be rioting..."

Jocelyn: "... or the apocalypse..."

Stephen: "... or mass chaos, that kind of thing - cats and dogs living together... But that change managed to go through, and then there was some extraordinary change. We saw, in Queensland, within a couple of years, virtually all discrimination go, under state legislation - it was just amazing. Within a few years, with Kevin Rudd getting elected, there were about 100 pieces of Commonwealth legislation that were then altered. Largely, Commonwealth legislation doesn't discriminate, which I think is great, but there's unfortunately still discrimination at state level.

Across the country, it's not consistent. For example, if you're a gay couple in Brisbane, and you want to make a baby, you can access surrogacy. If you're a gay or lesbian couple in Adelaide, you can't. If you are a single man in the ACT, you can't - sexuality doesn't matter, but you cannot be single. So, we see discrimination in various states when it comes to family formation. In WA and South Australia, there is quite clear discrimination. In South Australia, only married or de facto heterosexual couples can access surrogacy - so singles, and gay or lesbian couples can't. In Western Australia - bizarrely - married or de facto heterosexual couples, lesbian couples and single women can access surrogacy, but gay couples and single men can't. Go figure.

Four jurisdictions - and Queensland is one of them - discriminate on the basis of sexuality when it comes to adoption, so that's got to go. Tim Wilson, the Human Rights Commissioner, he has written an excellent report which sets out the 'shopping list' of things that have got to change, which for Queensland includes the differential age of consent. Typically, the age of consent is 16 years old, but for anal sex it's 18 years old. How did that come about?

Prior to the Fitzgerald Report, it was all sodomy and illegal for men to have sex with other men, as a result of which, men were getting blackmailed, so this was the basis for corruption. Fitzgerald said to get rid of it. Wayne Goss, in 1990, brought those changes in, and he copied what Neville Wran had done, which was from the age of 18 years. Everyone has moved on, but Queensland hasn't moved on since 1990. We have, unfortunately, gay teenagers who are having sex with each other, and putting themselves at risk of being charged as sex offenders, even though they are having consensual sex between the ages of 16-18 years old.

Other discrimination we've seen is the 'gay panic' defence, expungement of prior criminal convictions for gay sex - those are two that stand out. If you go to our Anti-Discrimination Act, it has specific exceptions for religious schools that employ teachers. The deal that Peter Beattie did, to get through his anti-discrimination legislation in 2002, was to let that exception go through because the Catholic church got all upset about it. There are any number of gay and lesbian teachers employed in Catholic schools who could lose their job because of that exception.

There is also an exception for Assisted Reproductive Treatment (ART), or IVF, so it is lawful, under our state legislation, for an IVF clinic to say "We're not going to treat you because you're a gay couple." We've seen that happen in the past: Queensland Fertility Group was sued by a lesbian who wanted IVF treatment. It went to the Anti-Discrimination Tribunal, she was successful. QFG appealed to the Supreme Court and they were successful, so she was declined treatment. Terrible outcome. I'm pleased to say that QFG and other clinics do not discriminate - I think they've learnt the lesson. But the legislation is still there, and it ought to go.

Another thing is that, if you talk about when families split up, thirty years ago it was common to see women separating from their husbands and getting the care of the children. Then they find another woman, and there would be an order that they couldn't spend time with the other woman in the presence of the children. There are a number of reported cases where they would give an undertaking to the court that they would not do it, and they breached the undertaking - surprise, surprise. One of the things that was taken to account was whether or not there was a homosexual lifestyle which "placed the children at risk." I'm pleased to say that the family law courts have moved way past that now.

Dame Quentin Bryce

What we've seen, though, is that there's structural problems in society. First, when it comes to domestic violence, the Bryce Report said that there is a problem when it comes to domestic violence in same-sex relationships - not because of the law, but because people don't want to access it. Often there can be greater marginalisation or victimisation in same-sex relationships. Domestic violence occurs in same-sex relationships (the research is pretty sparse) at least at the same rate as the wider community, maybe slightly higher, because it is a smaller community, and there are higher rates of drug and alcohol use - disinhibitors. There are some unique features, like the threat to out, the threat to reveal a partner's HIV status or make a false statement about it. Because it is a small community, there's often just one 'gay pub' that everyone goes to. If you split up from your partner and want to go out socially, your ex may tell everyone, and you show up to that one place and find that you are a pariah, and you may have to leave town. Bryce has certainly called for more information and more education to help those in same-sex relationships dealing with domestic violence.

But trans people are also more at risk of domestic violence because they are treated as very much on the outer, and I think that's particularly a problem. They are in a much weaker position. When you get to the family court, the kinds of cases that are now popping up are where, for instance, the wife has decided that the relationship is over because she can't handle her husband transitioning, then says to the children "Your new mum is just dreadful." That dynamic is now playing out in the family courts."

Jocelyn: "It's so complex because, in the fight for marriage equality, we want to present this idea of 'This is what a gay couple looks like' as so perfect and one-dimensionally awesome, but at the same time, we want to address these issues of domestic violence and so on - it's really hard to do both at the same time."

Wil: "And it feels like marriage equality does overshadow most other issues, but it is quite nice to see things like Caitlyn Jenner and what has been happening with the trans community coming out into the spotlight"

Jocelyn: "So, I wanted to talk a little more specifically about surrogacy. As a starting point, with Medicare that the moment, for women accessing IVF for the purpose of surrogacy, is it correct that they still can't claim that on Medicare?"

Stephen: "Yes and no. You can't claim Medicare for IVF services once the surrogacy arrangement is in place, but if you are clever about it, you use Medicare to create the embryos, then subsequently enter a surrogacy arrangement. So you can get a subsidy from the Government. It's really hard for the Government to say that it is for the purpose of surrogacy.

So the obvious question is, what happens if two gay guys want to create embryos, neither of whom obviously can get pregnant, is the IVF clinic going to rely on state legislation to discriminate? Or is it going to be more concerned about Commonwealth legislation that it shouldn't discriminate? They provide the service, and they get the subsidy."

Jocelyn: "So, in practice, it's not much of a problem?"

Stephen: "Well, it can make a difference, but people have to be clever about it. The Medicare regulations are changed annually, though you can't find them on Austlii, as I discovered. You find them on Comlaw, and once you get into it, then your eyes start to spin, til finally you get your answer."

Jocelyn: "There's been a lot of talk, which pops up from time to time, about altruistic surrogacy and commercial surrogacy, and that debate, particularly following stories of people going to Thailand, and the issues for children and women. What do you think is the way forward, with people who want to go down the commercial route?"

Baby Gammy, via ABC.

Stephen: "It's now about a year since the baby Gammy saga started, and it's not over yet. I spent a lot of time talking to the media, and the question they were often asking was, "How do you prevent this kind of thing from happening again?" I said that it's an issue of supply and demand. Infertility in Australia is, according to the doctors, the third biggest disease (the top two being cancer and heart disease). It affects one in six couples. Often, it's fixed by IVF, but also by egg donor or sperm donor, or the option of last resort: surrogacy.

Everyone focuses on surrogacy, but egg donation is also an interesting one. To make a baby, to state the obvious, you need sperm, an egg, and a woman with a viable uterus to carry the child. The last one is the surrogate if you can't do it yourself - but what about the first two? Sperm is usually pretty easily to get a hold of. If there's not an adequate supply here, then sperm donors from the United States or Denmark will happily supply sperm to Australians.

But with egg donors, there is often a shortage. Our laws make it an offence, punishable by up to 15 years, to pay an egg donor, other than her out of pocket expenses. The American Society of Reproductive Medicine has estimated that for a sperm donor in the United States, the whole process (including counselling) takes about an hour. I wonder how much of that hour counselling takes... But an egg donor takes 50 hours, and she goes through a lot more pain.

The result is that we have a shortage of egg donors in Australia, so Australians have then ventured across the globe. You can imagine there might be a married couple where his sperm is okay, but her eggs are duds. They might end up in places like Argentina, Spain, Greece, USA, and as we've known in the past, India, Thailand, Ukraine, Georgia, Cyprus and Mexico, for example. In many of those places, the law or practice is that you will never know who the donor is - which I just think is terrible. I think the first thing is to say that if we look at the whole equation, we should have the ability to pay donors, so that these women who go through this pain are actually recognised.

We can't control what happens in the outside world - some want complete anonymity of donors. If we enable it to occur here, then we reduce demand so that people don't go overseas. I think Australia has the ability to adequately protect human rights - I would feel much more confident about that than in a place like Ukraine.

The other part of the equation is surrogacy. What we've seen is that Australians have similarly gone around the world. Since baby Gammy, and Thailand closing down and India virtually saying "no" to most Australians, where do Australians go? Increasingly, if they are from Queensland and New South Wales, they might go to Canada, but those are small numbers. They are also going to Mexico and Nepal, which are places not renowned for governance, or wealth - at least in the hands of the many - and they don't have transparent systems.

There are sharks in the water, and when you deal with desperate people who can't have children, who go to a developing country where there aren't transparent processes, then you are asking for trouble. It may all go through smoothly, but it may all be a complete disaster. I think we have the capacity in our country to have adequate human rights protections for surrogates. Talking to women who are surrogates in the United States and Australia, the motivations aren't terribly different. Their prime motivation is to help others. These are women who have had kids before, don't want to have any more, love being pregnant and don't mind childbirth.

Even though I've been highly critical of how we've organised surrogacy in Australia because I think it's a bit ramshackled, on a state-by-state basis and inconsistent - when one looks at what the strengths are of our system, it is that everyone gets independent legal advice at the beginning, everyone has really clear counselling, and at the end of the process, we have judicial oversight. If you look at places where there has been trouble - India at times, Mexico at times - in all those places, there has been an absence of judicial oversight. Judges aren't looking at it and asking "Is this in the best interests of the child?"

On the other hand, if you look at the United States and Canada, which are both transparent systems, it is the same, wherein you have a judge overlooking it. So going back to the question of how we avoid baby Gammy, you reduce demand by having it happen here. You increase the supply, you reduce the number of Australians wanting to go overseas. We have very good IVF clinics in Australia. If you could go to the IVF clinic around the corner, why would you go to Nepal?

I think another feature is that you have the Australian Government saying to overseas governments to make changes, but I think the entrenched interests of certain doctors or government might be to resist that - but we should still be asking. We should be engaging with the Fertility Doctors Associations, to use the soft power that Australia has to encourage better standards.

The other way to do it is to have an international architecture. A lot of the journalists were asking about the international laws regarding surrogacy, to which I replied "What laws?" They just assumed that there was a system, but there isn't one. There have been moves since 2010 for there to be a Hague Convention on international surrogacy. With the Hague Conference of Private International Law, we have the Hague Bureau, and Australia is party to a number of conventions to do with children, including the 1980 convention on child abduction, and the Hague inter-country adoption convention. There are various proposals about how a Hague convention might work, and I'm at the centre of one of those proposals because of my position with the American Bar Association."

Jocelyn: "As for adoption in Australia, it has been notoriously difficult. Even though it should technically be higher up on the list than surrogacy, it often isn't. What do you see as the avenues for reform to help make the process easier, or faster?"

Stephen: "One area of reform will actually make it slower, and that is in the four jurisdictions where there is discrimination. There should be no discrimination in Queensland, for instance, against single people adopting or same-sex couples adopting. That would mean that the pool of applicants becomes bigger, and therefore it might be slower for those who are already there. However, it's the fair thing to do.

The reality is that there's very few children available for adoption. You might wonder how we got 10,000 kids back in the 1970s when Australia was a lot smaller? Well that was back when we removed children from their mothers by nuns. We've had a national apology about that. Now, I don't know how low the numbers are, but they are under 100 nationwide, unless they are from care, or step-parent adoptions. There's a few hundred who are from overseas.

We know that the reform to enable women to not give up their children, by having Centrelink payments, that shouldn't change, and we shouldn't be trying to disempower anyone.

However, there is a very large number of children in foster care who are moved from placement and have no certainty, under some legal assumption that, one day, they'll get back together with their family. It's wishful thinking - it's something that comes straight out of Pollyanna. I think it was Tim Carmody, who as we know is not flavour of the month at the moment, but I think he identified that if many of these children were able to be adopted out, we would potentially solve two problems at the same time. We would provide certainty for these children, which has got to be the number one priority, but also the legitimate desires of people who can't have children, to care for children.

If we could do that, then I can tell you that many of the people who come through the door of my office who want to talk about surrogacy - they only look at surrogacy a lot of the time when they can't adopt. We would reduce the demand, at least to some degree.

However, we know that some people have waited a very long time for adoption overseas. The Hague convention has made it more difficult. That is why the Abbott government has, quite rightly, been looking at bilateral agreements with other countries to allow adoption to occur. I think the numbers are still going to remain low for structural reasons.

One of the amazing things that is happening, is that the people of China have lifted themselves out of poverty, the people of India are lifting themselves out of poverty - slower than we'd like, but it's happening. A side effect of that that children who were previously available from those societies are not now. There has been a rise of nationalism, but in addition (I think the New York Times reported), US citizens who are of Indian origins used to adopt Indian children, but they are not available anymore, because they are being adopted by the Indian middle class, in India - they aren't leaving the country at all.

That kind of structural change will continue. The children being made available now from China in the last few years are typically aged 2-3 years old and have a disability. There will be people who want to adopt a child like that because it's a child, and they can provide the child with love and care. But it just goes to show that the number of children who are available is much lower.

The migration regulations prevent Australians from adoption from overseas, unless they've lived there for at least a year for some other purpose. So they can't do a Madonna, get in a private jet, fly to Malawi and pick up a kid, come back and say "Life's good" - you can't do that if you're Australian. I don't think that necessarily needs to change, but I think there certainly needs to be changed about how he Hague convention operates.

“I don’t think anyone in their right minds would want to risk human rights, but we don’t want to make it so bureaucratic that it just doesn’t work.”

My concern is that a Hague surrogacy convention might be as restrictive as the adoption convention. While it looks pure and great, it becomes a roadblock. I don't think anyone in their right minds would want to risk human rights, but we don't want to make it so bureaucratic that it just doesn't work. I recall being in a seminar in London, where an academic was saying "We want to copy the Hague adoption convention for surrogacy, because it's a success." Up stood the president of the American Academy of Adoption Attorneys, who said "If it's such a success, how come the numbers have dropped so much?" It's because the convention is a roadblock. It is a lot harder to adopt in Australia, and I think unnecessarily so.

Adoption, internationally, is still discriminatory against gay and lesbian couples. Australia should be, as part of its diplomatic efforts, talking to other countries and adopt Hillary Clinton's line that 'Gay rights are human rights.' But of course, it's hard to do that when we still say 'But we won't let them marry!'"

Wil: "Putting an LGBTI perspective on it, a lot of the younger generation talk about adoption as if it's a non-issue - they say 'We'll just have kids that way'..."

Stephen: [laughs incredulously] "How long do they want to wait?? Under the law of demand, they've got to make an election: IVF or adoption. What a terrible choice!

Let's say they choose adoption - then they have to decide which country's list they are going to be on. So those poor people who were on the list from Ethiopia three years ago, when the Federal Government said that they were concerned about children being sold in Ethiopia, so they closed the list. Fair call, we don't want kids bought and sold like chattels, but if you are on that list, the first you hear of it is a media report saying that they are off the list. They may have waited five or six years on that list, only to discover that they are back at the beginning again. That's cruel."

Jocelyn: "Is there a final message you would give to our readers, particularly the law students?"

Stephen: "When I went through law school, which was at what is now QUT..."

Jocelyn: "Traitor." [laughter]

Stephen: "... but I have a lot of affection for UQ. When I went through law school, I never thought I would be doing family law. I didn't think it was 'real' law - not like trusts or commercial or land law, which really interested me. Somehow I ended up in a law practice with a fire-breathing dragon, but who loved her clients and they loved her. As a result of that, I thought 'Family law is the area for me, because I want to help people.' Then my practice evolved. I started to do a lot of domestic violence work - I was shocked by it and by the extent of it. Then I started acting for gay and lesbian clients, and the occasional trans client. Then, by a combination of forethought, and being in the right place at the right time, I started doing all this surrogacy work.

When I was at law school, I got a book called "The Body as Property." I read that and thought it was all very esoteric. It was the kind of discussion about 'When does life begin?' I thought, "I'm going to be a lawyer, when will I ever deal with that?" Then, in 2012, I got an order from a judge about when a child is 'conceived' and that was the first time that decision had been made by any judge anywhere in the world. 

Just so that you know what the answer is: we had a surrogacy arrangement, and under the Surrogacy Act 2010 (Qld), the surrogacy agreement must be signed before the child was conceived - but there's no definition of conception. There are two occasions which might be conception: we might say it is fertilisation, when we create the embryos; or, the later point, which is the placing of the embryo in the woman's body, resulting in a pregnancy. I was concerned that if we had a judge, who said it was the former, many people would not be able to have their surrogacy arrangements in place. There are lots of frozen embryos sitting around IVF clinics.

Her Honour Judge Leanne Clare SC

In this particular case, the mum-to-be had had cancer, so she was told to get her eggs out and fertilised, and froze them. As a result of her cancer, she wasn't able to carry a child. Her sister came along and offered to carry a child, and they entered into a surrogacy arrangement with all the counselling and legal advice. The child was born and we were in court, and Justice Leanne Clare ruled that conception was the act of pregnancy. That's when people consider a child to be conceived: when a woman gets pregnant.

Her Honour looked at what the ordinary person thinks, and looked at all the legal definitions we could find and medical dictionaries - I spent hours researching this.

In 2011, I went over the USA for the world's first international surrogacy conference, and I asked whether anyone had a case about conception. The general response was "No, but that's really interesting! Let us know how you go." I blogged about the outcome, and it just shows the power of the internet, because within 12 hours, I got an email from someone in Philadelphia. He said that the case was ground breaking, and asked for the written reasons, which I didn't have yet. Then I got a second email from a woman in Mendoza, Argentina, saying that she was rewriting the surrogacy law there, and she also wanted a copy of the written reasons.

At university, I never would have dreamt that I would be looking at 'When does life begin?' But you just make the most of what life offers up to you. I had a vision some years ago to have a national practice with surrogacy, and I've been very lucky in that space - I've been quite determined - but ultimately you don't know how it's going to go. You just have to go with the journey."

Wil & Jocelyn: "Thank you so much for your time!"

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.

#Indonesia’s #defamation #laws …#nofilter

What do a law student, housewife, journalist and an atheist have in common? The set-up for a good joke doesn’t deliver when the punchline is that they’ve all been charged with cyber-defamation for using social media. The law student called a city ‘poor, stupid and uncivilised’ on social media site Path, the housewife sent emails to friends complaining about the service she’d received at a hospital, the journalist posted an online article reporting on corruption and the atheist? - Well, he did what atheists often do and questioned the existence of God on Facebook. These stories might be funny, if the people involved weren’t facing harsh sentences under cyber-defamation laws. 

                    Written by Balawyn Jones   

Article 27(3) of Indonesia’s Electronic Information and Transaction (‘ITE’) law prohibits the distribution or transmission of electronic information which is defamatory. Persons who commit cyber-defamation are subject to a penalty of up to six years imprisonment and fines of up to one million rupiah (approximately AUD$9600) under Article 45(1) of the ITE laws. Cyber-defamation offences exist in addition to criminal and civil defamation laws in Indonesia. 

Articles 310-316 of the Criminal Code establish criminal defamation, which can be reported to and investigated by the police. The penalty is usually up to five years imprisonment, however if an official is defamed in the exercise of their office the penalty can be increased by a third. Whilst normally in criminal proceedings defendants can only be jailed if found guilty, in cyber-defamation cases defendants can be incarcerated pre-trial for up to 50 days.

The only defence to criminal defamation, found in Article 312, is that the statements are true and made in the public interest or out of necessity. Further, if the defence of truth is raised but not made out, the defendant will be liable to a greatly increased penalty for the aggravated offence of ‘calumny’ under Article 311. Importantly there is no explicit distinction between opinion and fact, or between reasonable and unreasonable statements. 

You might question whether the right to use social media should be defended? Protecting freedom of expression is important, especially considering Indonesia’s history of authoritarian government. Under Presidents Sukarno (1945-1966) and Suharto (1966-1998) public opinion was suppressed and media was censored. After the fall of the New Order Regime in 1998, restrictions on free speech were relaxed and Indonesia had their first democratic presidential elections in 1999. The following year, the Constitution was amended to enshrine human rights, including the freedom of expression. 

Indonesia is now the world’s third largest democracy and freedom of expression remains essential for a functioning democracy. Under Article 28E of the Constitution, Indonesians have the right to freedom of expression, opinion and thought, as well as the ‘right to communicate…using all available channels’ in Article 28F. Recently these channels have greatly expanded and Indonesians are now the fourth biggest users of Facebook globally and the fifth highest users of Twitter. 

Since the introduction of the cyber-defamation laws in 2008, over 85 people have been charged. In 36% of cases, the ‘defamed’ complainant was a government official (including accusations of corruption) and 40% of cases were consumer complaints, in which service providers were ‘defamed’. The application of these laws to silence critics has an oppressive tone eerily similar to recent history under Sukarno and Suharto. Criminal and cyber-defamation laws have a ‘chilling’ effect on freedom of expression because of the involvement of the police, significant jail sentences and increasing of punitive severity if the claimant is a government official.

The Constitutional Court reviewed the constitutionality of the Criminal Code provisions in 2008 and ITE provisions in 2009. The role of the Constitutional Court is to decide whether legislation is compliant with, or offends, the Constitution. Rights in the Constitution aren’t absolute and must be balanced against one another. The legislature has the right to pass laws to prioritise some rights over others. The Criminal Code and ITE defamation laws are legislative measures passed to protect the constitutional right to honour and dignity against defamatory attacks, which can result in significant harm to an individual's reputation and even loss of income. Implicitly, these laws limit the constitutional right to freedom of expression. On this basis, the Constitutional Court upheld the constitutionality of the laws. 

In these cases, the Court acknowledged that the implementation of the laws had been flawed, however this was not a basis on which the Court could invalidate the laws. The fact that the laws aren’t unconstitutional doesn’t mean that they shouldn’t be reformed. Since reform is the responsibility of the legislature, and not the courts, the Indonesian Parliament must be called upon to amend the criminal and cyber-defamation provisions.

The cyber-defamation laws are described as hukum karet (‘rubber laws’) because of their vague drafting which allows for abuse in their application. It is suggested that these laws need to be amended in a number of ways. As recommended by the United Nations, criminal defamation laws especially those with potential imprisonment should be repealed. Instead, specific civil defamation laws should be drafted. At a minimum, defences need to be broadened and strengthened so that these laws are only able to be applied to individuals who are actually attacking the honour and dignity of others, as opposed to those expressing genuine opinions or constructive criticisms. In their current form, the laws are clearly open to abuse.

Remember the law student mentioned at the start of this article? Florence Sihombing was found guilty of cyber-defamation and sentenced to two months imprisonment, or six months probation, and a fine of 10 million rupiah (approximately AUD$970)…That’s enough to make you think twice before calling someone stupid on Facebook next time you visit Indonesia.