School of Law and Justice

University of Southern Queensland

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Most states now have affirmative sexual consent laws, but not enough people know what they mean

08/04/2024 / / 0 Comments
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Jonathan Crowe, University of Southern Queensland and Gianni Ribeiro, University of Southern Queensland

Earlier this month, Queensland became the latest state to pass affirmative consent laws. This means consent is understood as ongoing communication for the purposes of rape and sexual assault offences.

Under affirmative consent, agreement to each sexual act must be actively communicated. That is, each person must say or do something to indicate consent and check the other is willing to proceed.

It’s common for victims of sexual assault to freeze or try to avoid further injury, rather than fighting back. The new laws make it clear these reactions are not consent.

But it’s not just Queensland that has such laws. Where else are they in place, and how are they working in practice?

What do Queensland’s laws do?

The new Queensland laws define consent as “free and voluntary agreement”. They clarify that a person does not consent where they do not “say or do anything to communicate consent”.

The laws also limit the mistake of fact excuse for rape and sexual assault. This excuse allows defendants to argue they honestly and reasonably — but mistakenly — believed the other person consented to sex.

The excuse has been heavily criticised for allowing defendants to rely on irrelevant factors, such as the other person’s clothing or failure to fight back, as the basis for alleged mistakes about consent.

However, the new laws say a belief in sexual consent is not reasonable unless the person took active steps to check their partner was consenting. This is consistent with an affirmative consent model.

Where else has similar laws?

Four out of the six Australian states and one of the two territories have now enacted affirmative consent laws. Tasmania was the first state to adopt an affirmative consent model in 2004.

The Queensland laws follow on the heels of recent legal changes in NSW, the ACT and Victoria. NSW and the ACT legislated affirmative consent in 2021, while Victoria did the same in 2022.

Western Australia and South Australia, meanwhile, are currently reviewing sexual consent laws and may well follow suit.

The national trend is clearly towards an affirmative consent standard. Some scholars have argued this could pave the way to aligning sexual consent laws across the nation — although significant challenges remain.

Critics of affirmative consent laws have suggested they could criminalise “spontaneous marital sex”. However, this ignores the social and legal context within which the laws operate.

There is no evidence of the laws being applied in this way.

Vital for debunking rape myths

Affirmative consent laws can only be effective and fair if people understand what they mean in practice.

However, public attitudes are not always consistent with an affirmative consent model. A NSW government study found 14% of young men “didn’t agree that you must seek consent every time you engage in sexual activity”.

Societal attitudes are clouded by persistent myths about consent and sexual violence. For example, people may think that someone who was drunk or did not fight back cannot be a victim of rape.

Rape myths are not limited to the general public. They influence judges, lawyers, police and jurors as well. Recent research has found rape myths in supreme court judgments and jurors’ perceptions of evidence in rape trials.

It is easy to assume that once affirmative consent laws are passed, they will be fully effective in the courts. However, years after affirmative consent was adopted in Tasmania, courts were still applying outdated legal principles.

Raising public awareness

For affirmative consent laws to serve their purpose, everyone — including judges, lawyers, jurors, police and the public — needs a clear understanding of what affirmative consent means.

Public awareness campaigns can help to clarify that consent is an active, ongoing process that cannot be inferred from silence or lack of resistance.

NSW’s Make No Doubt campaign was launched the week prior to its new consent laws taking effect, but a similar campaign has yet to be announced in Queensland.

The Queensland Women’s Safety and Justice Taskforce heard from victim-survivors, support services, lawyers, police and the broader community about the need for improved public education on consent.

Understanding consent in isolation is not enough. Comprehensive education on respectful relationships is vital to fostering a culture where affirmative consent becomes the norm.

The effectiveness of affirmative consent laws also depends on how they are applied by police, lawyers and judges. If police don’t give effect to the laws, then most sexual assaults will never reach prosecutors — let alone the courtroom.

Comprehensive training for these professionals is essential to ensure affirmative consent is implemented across the criminal justice system.

Since Australia’s affirmative consent laws are so new, there is limited evidence (beyond Tasmania) of exactly how they will work in practice. It will be important to build this evidence base to ensure the laws are functioning as intended.

Government action is essential

Online resources, such as Rape and Sexual Assault Research and Advocacy’s sexual consent toolkit, can help people learn about affirmative consent. However, these resources only reach a small part of the community.

To raise wider awareness of affirmative consent and to overcome persistent rape myths, large-scale efforts are needed.

Governments across Australia should invest in the success of affirmative consent laws through further public awareness campaigns, as well as training and education for criminal justice professionals and the public.

Otherwise, affirmative consent laws could turn out to be just words on paper.

Authors

Jonathan Crowe is Head of School and Dean of the School of Law and Justice at the University of Southern Queensland. 

Professor Crowe is Director of Research at Rape and Sexual Assault Research and Advocacy.

Gianni Ribeiro is a Lecturer in Criminology in the School of Law and Justice at the University of Southern Queensland. She is based at the Ipswich campus.

Dr Ribeiro receives funding from the Australian Institute of Criminology.

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Deliberation distortion: The impact of misinformation on jury decision-making

18/03/2024 / / 0 Comments

By Dr Gianni Ribeiro

Introduction

Jury deliberation is considered a cornerstone of fair trial proceedings. However, a newly published study in Frontiers in Psychology in January 2024, which I co-authored, delves into a crucial issue: the potential for jurors to misremember key evidence from the trial and introduce misinformation during deliberations.

Background

Image by OpenClipart-Vectors from Pixabay

The problem of memory distortion is well-documented in the context of eyewitness testimony, where misinformation can compromise the reliability of witness accounts (see Loftus, 2005, for a review). Discussion among eyewitnesses is a known source of memory distortion and can result in memory conformity, where each eyewitnesses’ account of the event starts to resemble other eyewitnesses’ accounts. As a result, discussion between eyewitnesses is discouraged in efforts to preserve memory integrity. However, in jury deliberations, it is assumed that discussions will enhance jurors’ memory of the key details relating to the case, leading to more accurate verdicts (Pritchard and Keenan, 1999, 2002; Hirst and Stone, 2017; Jay et al, 2019).

Before our research, only one study had explored whether misinformation introduced in jury deliberations affected juror memory and decision-making (Thorley et al, 2020). They found that the more misinformation mock jurors accepted (ie, misremembered it as evidence from the trial), the more likely they were to reach a guilty verdict.

Results

Our research builds on Thorley and colleagues’ (2020) work by also exploring the effect of pro-defence misinformation and whether judicial instructions warning jurors about misinformation may mitigate its influence in a sexual assault trial.

In our first study, we found that participants were more likely to misremember pro-prosecution misinformation as having been presented as evidence during the trial compared to pro-defence misinformation. However, misinformation did not impact ultimate decision-making in the case, which may be attributed to most participants (87.6%) leaning towards a guilty verdict prior to deliberation.

Therefore, in our second study, we used a more ambiguous case that resulted in a more even split of verdicts pre-deliberation (66.7% guilty). Here, we found that participants who received pro-defence misinformation were more likely to misattribute the misinformation as coming from the trial than participants who received pro-prosecution misinformation. Further, pro-defence misinformation led to a decrease in ratings of defendant guilt and complainant credibility, and an increase in the strength of the defendant’s case. However, the judicial instruction about misinformation exposure had no effect.

Conclusion

Together, the findings from our two studies suggest that misinformation introduced during jury deliberations may indeed distort memory of trial evidence and impact decision-making. Although there is popular support for judicial instructions as a legal safeguard, there is mixed evidence for their effectiveness and our research found that there was no effect of warning jurors about potential misinformation prior to deliberation. These findings call for a deeper exploration of strategies to maintain the integrity of juror deliberations and ensure the fairness of trial verdicts.

The article is open access, so you can read and download it for free here.

Author

Gianni Ribeiro is a Lecturer in Criminology in the School of Law and Justice at the University of Southern Queensland. She is based at the Ipswich campus.

Prior to joining the School of Law and Justice in 2023, Gianni obtained her PhD in applied cognitive and social psychology from The University of Queensland in 2020 with no corrections. She was a Postdoctoral Research Fellow in the School of Psychology at the University of Queensland working in collaboration with Queensland Police Service.

Ante-factum statutory general mandatory vaccination: A solution to legal hypocrisy in pandemics

05/03/2024 / / 0 Comments

By A/Pr Ciprian Radavoi

With the next pandemic likely not far ahead, the debate over the suitability of a broad, general vaccination mandate (‘GVM’) goes on. Proponents insist on utilitarian arguments related to the common good, while opponents rely on autonomy and individual freedom of choice.

In an article forthcoming in World Medical and Health Policy, I propose a novel argument in favour of GVM: vaccination should be mandatory because, in the fear-dominated climate of a pandemic, it becomes mandatory anyway — just not in a de jure, parliament-sanctioned form. As former Australian Prime Minister Morrison has put it, the government will make vaccination “as mandatory as you can make it”. That is, left to its own devices, executive power, from governments to the local administration and even corporations, will tend to impose on the non-vaccinated restrictions of such harshness that vaccination becomes de facto mandatory.

Public health policy is supposed to follow the so-called ‘ladder of intervention’, moving gradually from the least to the most restrictive measures in order to attain a certain objective. In pandemics, the objective is reaching herd immunity by having a high enough proportion of vaccinated. At the top of the ladder there is forcible vaccination, obviously prohibited in democratic countries. Next down the ladder are statutory mandates backed with fines, like the one imposed in Austria and a few other countries. Next down, there is a grey area where there is no official general mandate to vaccinate but, to persuade the population to do the right thing, all sort of prohibitions are imposed on the unvaccinated.

As making life difficult to the unvaccinated was at the heart of pro-vaccination policies in the COVID-19 pandemic, they were banned from pubs, churches, shops, etc. An element of reasonable choice remained for most of these: the pubgoer had the option to drink at home, the churchgoer could dispense with the priest’s service for a while and speak to the Divinity directly, the shopper could shop online or ask a friend to shop for them, and so on.

Photo by Daniel Schludi on Unsplash

But when the place you are banned from is the workplace, we are no longer talking about a real choice. ‘No jab, no job’ is not the same as ‘no jab, no pub’. Work is much more than the right to do a job and get a salary in return. As individuals we obtain an income allowing for a decent life (food, clothing, housing, medicines), but also dignity, self-esteem, and social recognition. A person who is denied the right to work is exposed to the risk of poverty, mental harm, and even suicide.

Given the fundamental importance of the right to work, and the longer effect of restrictions on this than on other rights in pandemics, “vaccination or joblessness” is not a reasonable choice the worker is presented with. Without choice, there is coercion. With coercion, there is a mandate. A de facto mandate, more precisely – one imposed by the executive (public or private) power in the absence of statutes stipulating general mandatory vaccination. And this creates three serious problems from a democracy and rule of law perspective:

  • First, banning the unvaccinated from the workplace was done in the COVID-19 pandemic — despite the fundamental importance of the right to work to the human being — without any genuine examination of the elements of balancing (necessity, proportionality) required whenever a right is limited by the authorities.
  • Second, numerous employers sacked the unvaccinated even in jurisdictions where this was not supported or required by public regulation. Corporate overreach, in the form of banning the unvaccinated from the workplace despite the lack of laws requiring this radical measure, is especially concerning given the increased concentration of unchecked power in private hands, in the contemporary globalised world.
  • And third, in a more general perspective, claiming that something mandatory is not mandatory is a case of legal hypocrisy. Legal hypocrisy obscures the harm inflicted on persons and communities, thus silencing the victims. It also erodes trust in the rule of law and in democratic institutions: how can the citizen believe in a system that publicly honours the fundamental liberal value of personal autonomy, while at the same time dismisses it in practice?

In the charged climate of a pandemic, overly zealous action by public and private executive power, including dismissal of the unvaccinated, seems inevitable, with the noxious effects enumerated above. It is better to fence this otherwise laudable zeal by simply making general vaccination de jure mandatory, with all the benefits deriving from this official status in terms of setting the proper balance between the rights and interests at stake. Intrusions into the right to work would be inevitable, but dismissal as a coercion tool would not be used. Indeed, in a parliamentary debate conducted without pressure before the next pandemic hits, dismissal for vaccination refusal would likely not pass the tests of necessity (since the pandemic is temporary, a temporary suspension would suffice) and proportionality (uncertain benefits in exchange for a very severe blow to a fundamental right).

Ciprian Radavoi is an Associate Professor in the School of Law and Justice at the University of Southern Queensland.

Ciprian is a lawyer and former diplomat, currently teaching and undertaking legal research in Australia (international law, tort law, sports law, human rights and social justice).

Whip Use in Horse Racing

10/03/2023 / / 0 Comments
Courtesy of Pixabay
By Aaron Timoshanko

At the end of last year, I was fortunate to have an article titled ‘Could existing anticruelty laws ban whip use in horse racing?’ published in the Adelaide Law Review. More recently, I was interviewed on the Adelaide Law Review podcast, where we discussed some of my article’s background and broader implications.

Adelaide Law Review podcast

The article aimed to investigate whether industry-compliant whip use in horse racing breaches existing animal cruelty laws.

This question has been of interest to me for some time and was one of the reasons I decided to do a PhD. My PhD ultimately took a different path, but I could not find a satisfactory answer to this question during my reading in animal law/animal protection scholarship. I know, for example, that if I whipped my dog Lucy (sorry, Lucy!) to make her run faster, I could (and would likely) be prosecuted by the RSPCA.

So why aren’t jockeys in a horse race prosecuted?

There are many ways to answer this question, from the philosophical (as property, animal interests are not recognised by the legal system) to the more practical.

I took the latter approach. There is, however, no reported case (that I found) involving whipping a horse during a horse race that was compliant with industry standards. Because there is no case law ruling whether industry-compliant whip use was animal cruelty, I turned to principles of statutory interpretation.

By ‘industry-compliant’ whip use, I refer to the Australian Rules of Racing and the Local Rules of Racing, which permit using so-called ‘padded whips’ within specific parameters. So, I acknowledge that if a jockey was to whip a horse in the stables, then there is a good chance that the RSPCA might prosecute — whether the RSPCA would is the subject of another article.

But, my article seeks to answer whether a jockey could be prosecuted for animal cruelty for whipping a horse in compliance with the Rules of Racing.

Using the ‘always speaking’ approach to statutory interpretation, I argue that it is theoretically possible for a court to interpret the words of qualification in the animal cruelty provisions as extending to industry-compliant whip use based on new scientific evidence that horse skin is more sensitive than previously believed.

So, why hasn’t there been a prosecution for industry-compliant whip use? As I cite in the article, recent scientific evidence debunks the myth that horses’ skin is thicker than humans. Instead, the evidence suggests that from an anatomical perspective, horses’ skin is just as sensitive, if not possibly more sensitive, than human skin.

I argue that three constitutional and contextual considerations will likely sway a court in considering whether industry-compliant whip use could constitute animal cruelty.

Consequences of interpretation

This means that courts may consider the consequences of a particular statutory interpretation before adopting a specific meaning. For example, this was done by the High Court of Australia in Project Blue Sky. The majority found that ‘[e]xpense, inconvenience and loss of investor confidence’ would flow from a particular interpretation. Based on these potential consequences, the majority decided to take an interpretation that avoided the adverse effects identified.

Presumption against retrospectivity

It is presumed that legislation won’t operate retrospectively unless there are clear words to this effect.

This is for excellent reasons — it offends people’s sense of fairness if they did something that was lawful at the time but later determined to be unlawful.

This is what I think could be at issue if a court was to interpret the words of qualification in the way I previously put forward — basically, a jockey would be whipping their horse on the widespread belief that this is legal (providing they are doing so per the rules of racing).

Generally, where there is an alternative interpretation open to the court that does not involve retrospectivity, the court will take it — especially in criminal law matters, of which the animal welfare legislation is classified.

Separation of powers

While the common law is an important and valuable source of law, deciding on the lawfulness of an activity is the proper responsibility of a democratically accountable Parliament. It would therefore breach the separation of powers in the Constitution if Courts decided questions of whether certain activities (previously thought to be lawful) should now be unlawful — especially controversial activities such as the whipping of horses for entertainment.

I believe these three considerations explain why we haven’t and are unlikely to see a prosecution for industry-compliant whip use despite the research suggesting padded whips cause horses pain, possibly significant pain.

This does not suggest that the judiciary cannot use the ‘always speaking’ approach to extend existing statutory words and phrases in legislation. But, whether industry-compliant whip use breaches animal cruelty laws, this would require a level of judicial activism that is very unlikely until more people in society change their relationship with animals. And by that time, the Parliament would have probably changed the laws.

You can read the full article here. I hope you find it interesting and thought-provoking.

Fountain pen on black lined paper

Opinion: Grant worship is damaging the humanities

21/10/2022 / / 0 Comments
By Dr Jeremy Patrick, Senior Lecturer, University of Southern Queensland

In the past two decades, many Australian universities have made dramatic shifts in how they recognise research. Often, these shifts are in direct response to government incentives. There have been periods where the sheer quantity of peer-reviewed research was the goal, periods where only ‘Q1’ publications were deemed valuable, periods where ‘impact and engagement’ looked to be the next big thing, and more. Most recently, the only thing that really seems to matter is research income—grants.  Any academic discipline within a university that can’t show major grant income could be punished by mediocre (or worse) ratings in ERA rankings, leading many universities to respond by explicitly building research income into the evaluation of individual academics when it comes to matters like promotion and workload allocation for research.

It may be plausible to argue that this focus on research income is warranted for the sciences. Cutting-edge research in medicine, physics, agriculture, engineering, and related fields isn’t done well on the cheap. In a field where a single piece of laboratory equipment could cost hundreds of thousands or even millions of dollars, every dollar that comes into a university via external research income helps build capacity for future research success.

But—at least for now—universities are more than just STEM research institutes.  The humanities have been poorly served by this new worship of grant success as the be all and end all of what makes a good researcher. At my university, a former research director once remarked: ‘It’s not like anyone does research sitting in their office anymore.’ He had a science background, and I can’t comment on whether or not that’s true in STEM. But for the humanities, I can attest that many of us do perform most of our research sitting behind a desk. In law, the doctrinal methodology of synthesising case law and evaluating legal rules is still foremost in the discipline’s legal journals. A literature scholar looking at portrayals of gender in the works of EM Forster or a political scientist labouring over census data to analyse voting patterns also (probably) don’t need hundreds of thousands of dollars in grant income in order to do good work and publish in the best outlets. 

The distorting effect comes when universities adopt a ‘one size fits all’ approach and evaluate scholars in the humanities by exactly the same criteria that it evaluates scholars in the sciences. Although grants do exist in the humanities, they do so at only fraction of the number and dollar value available for the sciences. More so, many particular disciplines in the humanities have a very different approach to scholarship than the sciences: we don’t usually put fifteen names on a five-page article, track prestige by citation count, ‘partner with industry,’ or join established research teams as doctoral students. There is a fundamental difference in kind that needs to be recognised, and policies that fail to do so (for administrative simplicity or a false equality) are deeply problematic.

Grant worship has a more fundamental flaw, however.  Universities have begun to lose sight of what grants are: a means to an end. Grants are an input, not an output. The ability to wheedle money out of the ARC or some corporation is certainly a skill, but it’s not necessarily the same skillset of what we traditionally value in scholars—the ability to contribute to knowledge. In the past several years, we’ve begun to value the mere obtaining of money for research far more than the actual research itself. We’ve gotten to the point, even in the humanities, where winning a grant to write a book is celebrated (and rewarded internally) far more than the actual writing and publishing of the book. And those scholars who publish regularly without having to resort to grant money? They are, by (new) definition, simply not very good researchers—despite their output constituting the vast majority of total research output. The incentive now is to apply for grants just for the sake of getting the prestige of getting the grant, regardless of whether or not the money is actually necessary or the project is one that the academic is genuinely interested in. And, of course, for the humanities there are so few grant opportunities that all the futile time invested in making repeated applications could probably have been better spent doing actual research.

In this new world for the humanities, ‘publish or perish’ has become ‘fund-raise or perish.’ Though, to be fair, ‘perish’ probably just means being ‘punished’ by additional teaching loads instead of research time, along with a permanent relegation to the bottom ranks of the academic ladder. It still beats digging ditches, of course. But universities need to have a more realistic view of what scholars in the humanities do, and how unrealistic it is to expect more than a handful of us to win significant research income.

Alex Proimos from Sydney, Australia, CC BY 2.0 https://creativecommons.org/licenses/by/2.0, via Wikimedia Commons

Legal Realism and Australian Constitutional Law

04/03/2022 / / 0 Comments

Legal Realism and Australian Constitutional Law

— Jeremy Patrick, University of Southern Queensland

Introduction

It has become textbook wisdom that the High Court of Australia makes its decisions in an extremely technical and (for lack of a better word) ‘legalistic’ way.[1]  This is true not only in areas of law where such a method of decision-making would seem natural, such as tax, but also in areas where it may seem surprising—such as constitutional law.  A ‘strict and complete legalism’ (in Dixon CJ’s famous words)[2] means decisions should be made purely by neutral, objective application of legal principles.  Anything else—policy considerations, personal views, broader ramifications, empathy for the persons affected, and so forth—must be excluded.  Under a legalist model of judicial decision-making, judges are just like referees at a rugby match—they objectively determine whether a try has scored or not.

However, there is another theory of jurisprudence that presents a diametrically opposed explanation for how judges make decisions: legal realism.  If legalism posits that judges apply rules to reach a result, legal realism says the opposite actually takes place, as judges first reach the result they like and then rhetorically justify those results by reference to rules. For appellate courts (like the High Court), legal realism argues that there is simply a nearly inexhaustible array of different rules, conventions, precedents, distinctions, discretions, and ambiguous standards (‘reasonable’ or ‘proportionate’) that allow for almost any outcome to be plausibly justified as ‘what the law requires’. 

This is not to say that judges are cynical liars deceiving the public; judges acting in good faith with the very best of intentions will still find any of their pre-existing inclinations ‘validated’ by a review of the authorities—at least if they look hard enough.

Legal formalism or realism?

It is clear that there is a clash between irreconcilable theories of judicial decision-making. The legalistic, positivist view publicly embraced time and again by members of the High Court is that their decisions are based on rules: rules entrenched in the Constitution by the framers, rules proclaimed in statute by Parliament, and rules carefully crafted over decades by previous courts (precedent). 

The critical realist view is that the ‘rules’ (and the ‘facts’ that they’re applied to) are so inherently manipulable that nearly any result can be announced and made to look plausible.  Thus, a realist view of High Court decision-making would posit that other factors drive actual results.  These factors might involve the personal moral and political views of the judges and their background characteristics, an implicit deference to public opinion, a reluctance to disturb established institutions and the status quo, and many more. At an abstract level, no resolution between the competing theories is possible unless one is shown to be logically self-contradictory—and neither has been.

Empirical study

However, the use of empirical data can be valuable in lending credence or doubt to an abstract theory.  A recent research project conducted by the author tested the realist model of judicial decision-making by positing a particular non-rules-based factor that could drive decisions in constitutional cases. 

Hypothesis

The hypothesis tested was whether a single factor (whether or not the Commonwealth is a party) was enough, standing alone, to reliably predict the outcome of a constitutional law case in Australia. 

If the hypothesis was found to be validated, that could be an important indicator that the elaborate doctrinal structure of Australian constitutional law has little actual impact on decisions.  Instead of ‘the rule of law’, the primary tenet of constitutional law could become ‘the Commonwealth (almost) always wins’. 

On the other hand, if the hypothesis failed substantially, that could indicate that perhaps more weight should be given to the legalist view that neutral rules, objectively applied, determine outcomes.

Dataset

The research looked at all High Court cases from the years 2000 to 2020 (inclusive). Through a set of objective binary decisions, this set of cases was narrowed by excluding:

  1. Cases that did not have a constitutional element; and
  2. From what remained any cases in which the Commonwealth was not a party.

The final set of cases which involved constitutional law and which the Commonwealth was a party was then examined to decide whether the Commonwealth prevailed. 

Results

The research finding was that the Commonwealth prevailed in 79 per cent of these cases. 

If this finding is correct and validated with subsequent empirical research, the fact that the Commonwealth wins four out of every five constitutional cases requires explanation.

The results obviously are not the result of mere random chance, which could only exist if the outcome was closer to 50-50. 

Potential explanations

Nonetheless, correlation is not causation, and multiple ways to account for the observed effect exist.

Lawyer quality

One initially plausible explanation for the disparity in results is that parties litigating against the Commonwealth are simply finding themselves out-lawyered by the expert lawyers and experienced advocates in the Solicitor-General’s office. However, State governments also maintain experienced experts in constitutional law, and the High Court bar in this area is a small but select group of ‘repeat player’ barristers. 

Resources

Another explanation that might be proffered is that the Commonwealth has (quite literally) unmatchable financial resources for litigation—could it just be outlasting its adversaries? This explanation might make sense in some types of cases in other areas (such as environmental law), but constitutional law cases are generally decided on agreed statements of facts and by parties with sufficient resources to stay the course. 

The Constitution

Perhaps the Commonwealth usually wins just because that’s how the Constitution was drafted? Although there were clear defects in the drafting of the Australian Constitution, it is clear that it was intended and structured to create a federal system in which the national government had a limited set of enumerated powers—the dramatic growth of Commonwealth legislative and executive power at the expense of the states over the past century was certainly not by design. Interpreting powers broadly and limitations narrowly was not an inevitable outcome but a deliberate choice by the High Court, and it is begging the question to explain that the Commonwealth usually wins High Court cases by stating that is due to the Commonwealth having usually won High Court cases.

Legal realism

A legal realist explanation for the empirical observation that the Commonwealth wins four out of every five constitutional law cases would likely centre around the most common characteristics of the members of the High Court. There is no national merits selection test to become a High Court justice; appointment is purely at the discretion of the Commonwealth executive.

Historically, and still today, most individuals appointed to the High Court are white, from upper middle-class backgrounds, attended a prestigious (usually private) high school in a capital city, attended a Group of Eight university, and then went onto a successful career in private legal practice for a well-connected law firm.[3] Not every member of the High Court has held each of these typical characteristics, of course, but enough have that the members tend to share a general worldview and set of personal values that are inevitably reflected in the decisions they reach. 

The argument would be that High Court justices are, by virtue of their background and selection, establishmentarian institutionalists. They have found enormous personal and career success working within the establishment, believe they have reached their present position through merit, and are acculturated to a conservative institution known for its preservation of tradition and the status quo. High Court justices would probably not have been selected for the position if they were openly sceptical of the ever-expanding scope of Commonwealth legislative and executive power, repeatedly found against the Commonwealth as a lower court judge, or were perceived by the executive as a (potentially hostile) ‘outsider’ to the system—whatever their ‘merit’ as a lawyer, legal scholar, or judge. 

In essence, to become a High Court justice means having been well-liked and well-regarded within a particular system, with the unsurprising result that one usually supports that system against constitutional attack from outside. Building on the legalist analogy, if judges are mere referees, they are referees chosen solely at the discretion of a single team in the league, and we perhaps therefore should not be surprised that their on-the-field rulings tend to favour that team.

Implications

If legal realism as an explanatory theory better explains and predicts High Court decision-making in constitutional cases, this has major implications for how we teach about the constitution in law schools, how we advise clients on the likelihood of success or failure in contemplated claims, and how we theorise the importance (or lack thereof) of the elaborate doctrinal framework of constitutional law. Perhaps, if nothing else, we should learn that understanding the formal rules of the game may be of little benefit in predicting who will ultimately win it.

This post contained extracts from the full version of Jeremy’s research, which can be found on the Social Science Research Network.

Read more: Legal Realism and Australian Constitutional Law (SSRN)

[1] See, eg, George Williams et al, Blackshield and Williams Australian Constitutional Law and Theory: Commentary and Materials (Federation Press, 7th ed, 2018) 170 (describing the ‘triumph of legalism’ in High Court jurisprudence ever since the Engineers’ Case).

[2] Owen Dixon, ‘Address upon taking the oath of office in Sydney as Chief Justice of the High Court of Australia on 21st April’ (1952) 85 CLR xi.

[3] See, eg, Harry Hobbs, ‘Finding a Fair Reflection on the High Court of Australia’ (2015) 40(1) Alternative Law Journal 13.

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