Monthly Archives: February 2015

Australian Feminist Judgments: Righting and Re-Writing Law: Book Review

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By Professor Ann O’Connell

Do women think differently to men? Do women lawyers think differently to their male counterparts? More importantly, do women judges judge differently to male judges? A new book, the product of an Australian Research Council grant, seeks to deal with this question. The book is Australian Feminist Judgments: Righting and Re-Writing Law, edited by legal academics Professor Heather Douglas, Dr Francesca Bartlett, Dr Trish Luker and Professor Rosemary Hunter. The book draws inspiration from similar projects in the United Kingdom and Canada, but, as its title indicates, the focus is on Australian judicial decisions. The purpose of the project is to investigate the ‘possibilities, limits and implications of a feminist approach to legal decision making’.

The Australian project involved 55 (mainly) academic lawyers who were tasked with revisiting and rewriting significant decisions in their chosen field which were ‘influenced by, or alternatively, offended feminist principles’. Most, but not all the contributors are women. Most, but not all of the judgments are High Court decisions. The oldest judgment is from 1963 but the majority are more recent cases: 17 of the 26 decisions being handed down since 2000. This is significant because the task was not about updating the judgments to reflect contemporary social mores, but rather it was to step into the shoes of the judge (or judges) as if deciding the case afresh but at the time of the original decision.

The book contains 26 rewritten judgments covering a range of legal subjects. Some of the areas covered might be regarded as covering predictable ‘feminist’ subjects — family law, sexual offences and discrimination law — but the book also deals with less obviously feminist areas of law such as immigration, tort law, taxation, constitutional law, environment and indigenous issues. Four themes were identified to group the judgments: public law; private law; crime and evidence and interpreting equality. The contributors comprised a ‘judge’ (or ‘judges’) who rewrote the judgment and a commentator who provided the context for the original decision and a discussion of the rewritten judgment. Continue reading →

CGU Insurance Ltd v Blakeley

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The High Court has dismissed an appeal from a decision of the Victorian Court of Appeal on jurisdiction to make declarations sought by parties outside of a contract. The first respondents were appointed liquidators of the second respondent (Akron Roads) and later commenced proceedings against the remaining respondents for insolvent trading as directors of Akron Roads. One of those respondents, Crewe Sharp Pty Ltd, claimed indemnity to those claims under an insurance policy it had with the appellant. After the appellant denied liability, Continue reading →

Plaintiff S297/2013 v Minister for Immigration and Border Protection; Plaintiff M150/2013 v Minister for Immigration and Border Protection

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The High Court has issued a writ of peremptory mandamus commanding the Minister to grant the plaintiff a permanent protection visa. In June 2014, the High Court upheld a challenge to the validity of the Migration Amendment (Unauthorised Maritime Arrival) Regulation 2013 (Cth), known as the PPV Regulation, in two related matters. The Court held the Minister’s determinations in relation to Plaintiffs S297/2013 and M150/2013 were invalid and issued a writ of mandamus in each instance directing the Minister to consider and determine each visa application according to law. Continue reading →

News: Nettle J joins the bench

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On Tuesday morning, the High Court held a ceremonial sitting for the swearing-in of Nettle J as the Court’s fiftieth judge, attended by all six of his future colleagues, thirteen of his former colleagues on the Supreme Court of Victoria, nine of Australia’s eleven Chief Justices and a multitude of senior lawyers and former judges. Video of the ceremony (the first such to be posted on the High Court’s website under its new audio-visual policy) captures the moment when Nettle J strode directly up to French CJ and announced his commissioning by the Governor-General. He  took an oath of allegiance and of office – a choice also taken by every other new High Court judge in the past two decades bar one – and then his seat on the bench. As in all High Court ceremonies, the bulk of proceedings were taken up with speeches from senior lawyers lauding the new judge, beginning with federal Attorney-General George Brandis, who said that he ‘can scarcely remember an appointment to this Court which was so seamless, so free of controversy, and so universally appraised.’

While the bulk of the ceremony looked to Nettle J’s past, its last fourteen minutes provide a glimpse of the Court’s future. Two parts of Nettle J’s swearing-in remarks are especially illuminating. Continue reading →

News: Furore over AHRC President

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Recently, Australian Human Rights Commission President Gillian Triggs has been under intense criticism, particularly by The Australian newspaper for her handling of an AHRC report involving a West Papuan man called John Basikbasik.Two points should be made at the outset. First, Triggs is not a judge, and accordingly her decision was not binding. The report contained recommendations which could be rejected by the Minister. Secondly, the Minister did in fact reject President Triggs’ recommendations in May 2014. Mr Basikbasik remains detained and will not receive the recommended compensation.

As these two recent articles in The Australian indicate, the criticisms are being made in the context of a wider furore about the timing of Triggs’ AHRC report into children in detention. Indeed, Richard Ackland has claimed that The Australian newspaper is focusing on the Basikbasik case for this reason. Academic opinion about the Basikbasik case has generally been on Triggs’ side, as prominent Australian international law scholars and others have written to express their support of Triggs’ determination in the Basikbasik case. Professor Mirko Bagaric of Deakin University was a rare exception, and expressed the view that the determination was in error because it took into account the International Covenant on Civil and Political Rights (‘ICCPR’). On Friday last week, The Australian published an article by Professor Ben Saul of Sydney University which was strongly in favour of Triggs. As Professor Saul points out, the definition of the “human rights” under s 3 of the Australian Human Rights Commission Act 1986 (Cth) expressly mentions the ICCPR as a source of such rights.

There is a High Court link to the furore, as the Basikbasik case came before the High Court in 2013, although he was called SZOQQ. Continue reading →