The VCAT model – civil litigation revolution-in-progress

lawyer-no-ethicsNicholas Gruen recently posted about the high cost of civil court proceedings in Australia (and for that matter throughout the common law world):

A more promising kind of imperialism would be the application of simple economic principles to the way various social systems are managed. HECs and managing child support within the tax system are examples of this kind of reform. We should apply it more widely to our system of civil law which, as it stands is a scandal – available to the rich and those poor enough to access legal aid, but only otherwise to those willing to risk a large part of their life savings.

I can see what Nicholas is saying, and it’s a powerful indictment of a legal system whose traditional design may (perhaps) deliver Rolls Royce justice but also at Rolls Royce prices. Moreover, well-intentioned reforms based on the recommendations of the UK Woolf Committee from the 1990s, the most frequently adopted approach to achieving more accessible and affordable civil justice, have at best had mixed success.  Woolf-style reforms have been implemented to varying degrees by courts throughout Australia, arguably most fully in the Northern Territory’s Supreme Court.

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Another workaround our dysfunctional legal system

Barristers protesting against cuts to the legal aid budgetThis article explains the idea being explored in Victoria for a ‘victims redress’ scheme for victims of institutional child abuse. It’s clearly yet another scheme for cutting the dysfunctional legal system largely out of the action of providing redress for abuse and handing it over to something that makes more sense – via some more administrative scheme.

We have such schemes in all sorts of areas now. Often workers compensation schemes close down full access to the legal system – ditto various kinds of negligence liability. And there’s small claims. Ken Parish and others can presumably flesh out the list.

But to drag an idea out of the economics playbook, there’s something a bit dodgy about all these special schemes. They are set up as exceptions, when the overarching legal system should be delivering something similar. There may be a case for specialist tribunals and so on if those hearing a case need or would benefit from special knowledge. But generally the legal system should embrace this principle which I’ve set out before:

Economists’ ‘imperialism’ towards other disciplines has manifested itself largely in the application of economic methodology to problems which are not purely economic. If few of the results have been sublime, some have been ridiculous. A more promising kind of imperialism would be the application of simple economic principles to the way various social systems are managed. HECs and managing child support within the tax system are examples of this kind of reform. We should apply it more widely to our system of civil law which, as it stands is a scandal – available to the rich and those poor enough to access legal aid, but only otherwise to those willing to risk a large part of their life savings. With absolute respect to the need for judicial independence on interpreting the law, the costs of arbitrating disputes should be commensurate with the magnitude of the damages at risk. This simple micro-economic principle should be reflected in all legal procedure. Further, both justice and efficiency demand that either litigant to a dispute should be able to pre-emptively elect a low cost tribunal free from any threat of appeal, except upon their opponent bearing all resulting costs.

This is a huge micro-economic reform issue, but sadly it’s seen as fairly esoteric. And in so far as it’s discussed within mainstream reform thinking it tends to be within a deregulatory frame – as in breaking the various monopolies and restrictive practices of the profession. The problem is the whole architecture of the system.

Citizenship-stripping and the Constitution

TONY ABBOTT CITIZENSHIP PRESSERThe chorus of public concern over the constitutionality of the Abbott government’s citizenship-stripping proposal is growing.  Malcolm Turnbull has again been emboldened to break ranks with his Prime Minister while denying he is doing any such thing.

It will be ironically appropriate if the citizenship-stripping issue ends up derailing Abbott’s plans to revive his ailing leadership in the wake of the failed spill motion against him earlier this year. Abbott’s strategy ever since he achieved Liberal Party leadership in late 2009 has been squarely based on racist dog whistling and inflaming national security paranoia.

The fact that citizenship isn’t even mentioned in Australia’s Constitution flows in part from similar racist sentiments among our Founding Fathers. They couldn’t work out a plausible way to define Australian citizenship without conferring it on Chinese, Japanese and Pacific Island migrants not to mention Aborigines. As South Australian delegate James Howe put it: “the cry throughout Australia will be that our first duty is to ourselves, and that we should… make Australia a home for Australians and the British race alone.”[1] No sly Abbott/Howard-style dog whistling in those days; our forefathers were openly and proudly racist.

The solution our Founding Fathers came up with was to avoid mentioning citizenship in the Constitution, but give the new Commonwealth Parliament wide-ranging powers to make laws with respect to immigration and “aliens”.  The new Parliament proceeded to enact the White Australia policy.

This deliberate constitutional silence is one reason why it isn’t certain whether the Abbott government could now validly legislate to confer the power to strip citizenship on a Minister rather than a court.

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Stripping Australian citizenship – the illusory protection of judicial review

Human rights lawyer Kerry Murphy has a very useful explanation of the weakness of judicial review as a safeguard against new laws foreshadowed by the Abbott government which would permit arbitrary ministerial stripping of Australians’ citizenship from those accused/suspected of terrorist activity.  However, if anything the situation is even worse than Murphy says.  Citizenship is arguably the most fundamental right any Australian possesses, without which no other human rights protection is assured, even the most basic application of the rule of law. And yet our citizenship right itself is not protected by our Constitution.

We don’t actually know exactly what provisions the citizenship-stripping law proposed by Abbott and his Immigration Minister Peter Dutton will contain, but you can bet they will include the following:

  1. A subjective opinion clause;
  2. A clause requiring national security or criminal intelligence information to be withheld from a suspect and his lawyers but nevertheless to be used against him.

These provisions have become increasingly popular with governments at both federal and state levels since the “moral panic” induced by September 11.  As a result, the combination of enthusiasm for greater power and less accountability on the part of both politicians and intelligence agencies, and a relatively supine response on the part of the High Court, has had drastic adverse consequences for the freedom and human rights of all Australians.  It is hardly an exaggeration to observe that in today’s Australia the right to impartial judicial review of executive government action, which was intended by the drafters of our Constitution to be a fundamental aspect of our system of national governance, is now an optional extra that governments can effectively negate almost at will.  And yet hardly anyone knows about it.

That is probably because some of the concepts are quite difficult to explain clearly to non-lawyers.  Nevertheless, bear with me. It’s important and worth “unpacking” the argument.

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Politics in the Courtroom: Political Ideology and Jury Decision Making

by Shamena Anwar, Patrick Bayer, Randi Hjalmarsson. Publication is available here.

This paper uses data from the Gothenburg District Court in Sweden and a research design that exploits the random assignment of politically appointed jurors (termed naemndemaen) to make three contributions to the literature on jury decision-making: (i) an assessment of whether systematic biases exist in the Swedish naemndemaen system, (ii) causal evidence on the impact of juror political party on verdicts, and (iii) an empirical examination of the role of peer effects in jury decision-making. The results reveal a number of systematic biases: convictions for young defendants and those with distinctly Arabic sounding names increase substantially when they are randomly assigned jurors from the far-right (nationalist) Swedish Democrat party, while convictions in cases with a female victim increase markedly when they are assigned jurors from the far-left (feminist) Vaenster party. The results also indicate the presence of peer effects, with jurors from both the far-left and far-right parties drawing the votes of their more centrist peers towards their positions. Peer effects take the form of both sway effects, where jurors influence the opinions of their closest peers in a way that can impact trial outcomes, and dissent aversion, where jurors switch non-pivotal votes so that the decision is unanimous.

Showdown at the Supreme Court corral

Queensland’s judicial system looks to be in quite a bit of strife at present. The former Newman LNP government’s ill-advised appointment of an utterly unsuitable Supreme Court Chief Justice in Tim Carmody is continuing to cause serious problems.

Mercifully, at least Carmody CJ has been belatedly bludgeoned by his judicial colleagues into recusing himself from further hearing an appeal against conviction by Brett Cowan, who was convicted last year of the murder of Daniel Morcombe.  Carmody CJ  grudgingly admitted when pressed that he had held a private meeting with Hetty Johnson, outspoken founder of child sexual abuse lobby group Bravehearts, while considering the Morcombe appeal.  Simultaneously the DPP is appealing Cowan’s sentence as manifestly inadequate.  Daniel Morcombe’s parents apparently don’t agree, but Carmody’s colleagues may have actually done them a favour.  Had he not recused himself, there is a significant probability that an appeal to the High Court on grounds of reasonable apprehension of bias would have succeeded. The Morcombe family would have been faced with a least a couple more years of litigation pressure and lack of “closure”.

Holding private meetings with parties and their associates during court proceedings is one of the classic bases for disqualification on bias grounds. Bias decisions on this ground almost always cite McInerney J in R v. Magistrates’ Court at Lilydale; Ex parte Ciccone [1973] VicRp 10; (1973) VR 122:

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Elferink ups the ante, Delia folds

Delia Lawrie’s announcement today that she was resigning as NT Labor Opposition Leader isn’t really surprising in light of yesterday’s news that Attorney-General John Elferink had referred her conduct over the Stella Maris controversy to both NT Police and the Director of Public Prosecutions for investigation:

At her office in her electorate of Karama, Ms Lawrie said she would be focusing on her upcoming legal problems. …

“The news that the CLP were referring the Stella Maris [inquiry] to the Director of Public Prosecution and the police makes me want to focus my mind with my legal team.”

In two previous articles I discussed aspects of the current controversy surrounding NT Labor Opposition Leader Delia Lawrie in the wake of adverse findings made against her in the Supreme Court after she unwisely pursued judicial review proceedings challenging on natural justice grounds earlier adverse findings against her by a Commission of Inquiry (effectively a royal commission) headed by former Australian Crime Commission boss John Lawler. The judicial review proceedings failed after Lawrie was forced to disclose confidential lawyer/client communications.  Southwood J found that the emails revealed that, far from being denied a fair opportunity to be heard before Commissioner Lawler, Lawrie and her lawyers had made a calculated decision to “disengage … ignore … and discredit” the Commission from a fairly early point in its hearings.

My previous articles mainly focused on deficiencies in the Commission proceedings and report, as well as reasonably arguable appeal points Lawrie might pursue against aspects of Southwood J’s decision.  However, the Attorney-General’s referral of Lawrie’s conduct for investigation of possible criminal conduct raises further questions that need to be examined.

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Perverting the course of justice?

(NB See my previous post on this important NT Supreme Court decision). News that CLP Attorney-General John Elferink has referred the Delia Lawrie matter to the Director of Public Prosecutions is hardly a surprise, given adverse comments about her behaviour in a Supreme Court judgment last week. In a realpolitik sense it’s the governing party’s job to put the heat on the Opposition whenever possible, and vice versa:

Northern Territory Opposition Leader Delia Lawrie has been referred to the Director of Public Prosecutions (DPP) by her political rivals after a Supreme Court judge said she knowingly made false allegations. …

“The fact that you have the Leader of the Opposition colluding to put information in front of a Supreme Court, ultimately to encourage it to make the wrong decision, is a very serious matter indeed,” he said.

“I’m asking the question as to whether or not an affidavit that potentially contains false information may become a breach of the Oath Act or ultimately a breach of the criminal code.”

Another news story suggested that Elferink was asserting that Lawrie and her lawyers may have engaged in a conspiracy to pervert the course of justice.

But what are the prospects that the DPP would decide to lay charges, or that they might succeed? I am not a criminal law expert nor do I have a complete knowledge of the facts in Lawrie v Lawler nor access to the relevant court documents. However, as an administrative law expert and very experienced general civil litigation lawyer I can make a few tentative observations. (warning – may be a bit dry and legalistic for some tastes)

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Snatching defeat from the jaws of victory?

The old, heritage-listed Stella Maris Seamen's Mission in Darwin's CBD

The old, heritage-listed Stella Maris Seamen’s Mission in Darwin’s CBD

Northern Territory Labor Opposition Leader Delia Lawrie is a fearsome political warrior, a divisive figure who seldom compromises or takes a backward step. In many circumstances those are great qualities for a politician, but not always.  For my money the wise politician’s central credo was best summarised by the great Kenny Rogers:

You’ve got to know when to hold ‘em
Know when to fold ‘em
Know when to walk away
And know when to run …

Every gambler knows
That the secret to survivin’
Is knowin’ what to throw away
And knowin’ what to keep
‘Cause every hand’s a winner
And every hand’s a loser
And the best that you can hope for is to die
in your sleep

Kenny’s words of wisdom were never so important for Delia Lawrie as now, when she’s contemplating whether to hang in as Labor leader in the face of an adverse Supreme Court decision, and whether to appeal that decision.

Many observers find it quite puzzling as to why Ms Lawrie decided to embark on those Supreme Court judicial review proceedings in the first place. After all, few if any Territorians even registered the fact that the Lawler Commission of Inquiry had even taken place let alone made somewhat adverse findings against Delia Lawrie. Certainly the general media and political view was that the Lawler Report was something of a damp squib that had sunk almost without trace, doing little or no damage either to Ms Lawrie or Labor in general.

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