Australian Courts Research Articles

Cases before Australian Courts concerning Questions of Public and Private International Law 2023

Cases before Australian Courts concerning Questions of Public and Private International Law 2023

The Influence of “Body Language” on the Assessment of Witness Credibility in Australian Written Court Judgments

ABSTRACT This article examines how “body language” has been used in Australian court judgments when assessing witness credibility, and how it can influence legal proceedings. We first address the use (and misuse) of nonverbal communication. Then, we address the guidelines of the High Court of Australia regarding nonverbal behavior, also known as demeanor within the legal community. The methodology of the doctrinal analysis we conducted and the results are presented. Their implications considering research on nonverbal communication are discussed, and we conclude with a call for legal scholars and practitioners to further address the influence of “body language” in legal proceedings.

‘And Along Came DNA’: The Introduction of DNA Evidence in Australian Courts in the Applebee case

ABSTRACT In 1989, serial offender Desmond Applebee was tried in the Australian Capital Territory for the rape of a young woman. A first for Australian courts, the prosecution tendered DNA evidence to counter Applebee’s alibi that he had been unconscious in his car at the time. However, despite the handling of novel scientific evidence being hotly debated at the time, the trial failed to engage with the legal issues this new evidence raised. The defence was unprepared and under-resourced to put into issue evidentiary principles; there was no systemic means for addressing the issues raised by novel scientific evidence if the defence did not do so. This paper argues that the Applebee case is a dissatisfying case of first impression, graphically illustrating the struggles legal systems can have interrogating novel scientific evidence. The case helped smooth adoption of this new form of evidence. How courts receive and respond to scientific evidence is today again in mind owing to the recent quashing of Kathleen Folbigg’s murder conviction following genetic discoveries; Applebee shows why relying on a particular defendant and particular defence counsel to carry out a gate-keeping function for admissibility of novel evidence collides with practical realities of the court system.

The privilege and the pressure: judges’ and magistrates’ reflections on the sources and impacts of stress in judicial work

There is growing evidence that judges and magistrates experience both high stress and high satisfaction in their work; however, the subjective experience of judicial stress and the cultural and professional factors shaping that experience remain largely unexamined. This qualitative study builds upon earlier quantitative research with the Australian judiciary, by exploring judges’ and magistrates’ perceptions of the sources and impacts of judicial stress and their ideas for court responses. Thematic analysis of 59 in-depth interviews with judicial officers from five Australian courts revealed eight themes pertaining to the better understanding and management of occupational stress within the judiciary. Implications for courts and individual judicial officers are discussed.

Is it time to move on from ‘Mr Big’? Scenario evidence and the risk of unreliable confessions in Australia

The ‘Mr Big’ method is a non-custodial investigative method used by police forces worldwide. A Mr Big operation involves an undercover operation in which a person suspected of involvement in an indictable offence, is unknowingly drawn into a fictitious criminal enterprise, in order to elicit a confession. There are ample concerns around the use of this method. Consequently, courts around the world have grappled with the admissibility of the confession evidence gathered through this approach. This article will first provide an outline of the Mr Big method. Following this, it will discuss the psychological explanation of associated potential coerced confessions which are unreliable. Additionally, various Australian cases and court rulings on confessions obtained using this approach will be described. This information will then be used, given the concerns indicated by psychological research and foreign court responses, in an attempt to address the question of whether the Mr Big method should have a place within the Australian legal system.

Judicial Constructions of Harm in Australian Image-Based Sexual Abuse Case Law: A Feminist Discourse Analysis

Despite almost every Australian state and territory criminalizing image-based sexual abuse (IBSA), which includes the non-consensual taking, creating, or sharing of intimate images, judicial discourse in this context remains underexplored. In this article, using feminist critical discourse analysis, we investigate how Australian courts conceptualize the harms of IBSA in 47 criminal and civil cases. We find that while the serious harms suffered by individual victim-survivors are widely recognized, judicial discourse on societal harms is limited, with little to no recognition of IBSA as a form of gender-based violence (GBV) in and of itself. This is significant for several reasons, including the overrepresentation of women victim-survivors and male perpetrators in our dataset, and the gender and other inequalities that often underpin IBSA. We argue that by adopting an inclusive gender-based approach, the courts can promote more nuanced, relational, and holistic understandings of the individual and societal harms of IBSA, knowledge of which is important for addressing this rapidly growing form of GBV in Australia and internationally.

‘An atrocious crime’: perjury on trial in colonial Australia

Sentencing an aged pensioner to nearly six years imprisonment for perjury in 1910, the Victorian Chief Justice denounced a man ‘as dangerous … as the law could contemplate’. The prisoner had procured a number of others to give false evidence in a civil suit for libel launched by an ex-politician against another still serving in the Commonwealth Parliament. The denunciation expressed judicial abhorrence of what judges regarded as a detestable crime, undermining the administration of justice. This first study of the historical prosecution and sentencing of perjury in Australia explores the characteristics of cases that were committed for trial in the Supreme Court in colonial Victoria. Those prosecuted, and sometimes convicted, included witnesses swearing to alibis in the course of trials for murder, women alleging sexual assault or suing for maintenance of a child, men and women seeking damages or redress in the civil courts over unpaid debts or angry words, and police frustrated by the failure to obtain convictions in sly grog cases. In addressing the prosecution of perjury in Australian colonial courts this article examines what was at stake when private citizens as well as public officials sought to punish those perceived as failing to tell the truth under oath.

Subjective or Objective Legislative Intention: An Australian/German Perspective

Abstract ‘Legislative intention’ as the aim of statutory interpretation has attracted increased attention in the Australian High Court, reinvigorating scholarly attention on the elusive concept. A subjective approach regards it as having an empirical reality. The competing objective view denies any conceptual connection to empirical circumstances and demotes it to a metaphor for the proper application of rules of statutory interpretation. This antagonism prevails in civil law jurisdictions as well. In Germany specifically, it goes back to the 1830s. The article juxtaposes the two local debates so as to mutually provide an additional perspective on the subject matter that can inspire future cross-system discourse. It highlights how similar arguments from both theoretical camps have formed in the two countries over time. And it not only documents striking similarities in how Australia’s and Germany’s highest courts declared commitment to an objective approach but it also reveals contrary curial trends that have most recently emerged.

Institutional Design and the Predictability of Judicial Interruptions at Oral Argument

Abstract Examining oral argument in the Australian High Court and comparing to the U.S. Supreme Court, this article shows that institutional design drives judicial interruptive behavior. Many of the same individual- and case-level factors predict oral argument behavior. Notably, despite orthodoxy of the High Court as “apolitical,” ideology strongly predicts interruptions, just as in the United States. Yet, important divergent institutional design features between the two apex courts translate into meaningful behavioral differences, with the greater power of the Chief Justice resulting in differences in interruptions. Finally, gender effects are lower and only identifiable with new methodological techniques we develop and apply.

Property valuations decided through the court system in family law separation in Australia

PurposeIn Family Law Court decisions in Australia, following divorce, the female party is frequently disadvantaged financially in the long term. This paper provides a critical assessment of valuation evidence as a data source in research and discusses valuation accuracy, valuation variation and valuation bias, as well as the Australian family court system and the role of valuers as expert witnesses. In particular, valuation in family law, as it relates to gender inequality, is discussed. The study aims to determine whether the current system of valuation in the Family Law Courts disadvantages women. This paper was important to reveal information that stakeholders in family law cases use on a day-to-day basis.Design/methodology/approachA database of 658 cases was developed and analysed to examine the influence of valuations of the matrimonial home provided by both the male and female parties on the final decision of the court.FindingsFindings showed that valuations from the female party had marginally more influence on the outcome. However, financial disadvantages for the female party persist despite this. This raises several questions for future research, regarding reasons for this persistent disadvantage.Research limitations/implicationsResearch limitations included a time-consuming process.Practical implicationsFurther researchers can use the findings from this paper to further research.Social implicationsSocial implications include the ability of the research to impact on society. In this regard, it was the matrimonial home in relation to divorce proceedings.Originality/valueThe originality of this paper stems from the analysis of a database that was created from a large number of cases from Austlii database family law cases.

An examination of criminal offenders with dementia in Australian courts

This study aims to characterize people with dementia who were charged with criminal offences between 1995 and 2020 and describe their offending. Court cases were derived from Australian legal databases and descriptive data were manually extracted from case reports. Of 62 people variously charged with homicide, assault, child sexual assault, breach of conditions, property and larceny offences, driving offences, perverting the course of justice and arson, 46 were identified as having executive dysfunction, either as stated by medical expert witnesses or implicitly, due to conditions like Huntington’s disease and frontotemporal dementia. Offending history was found to differ depending on offence type and dementia type. Executive dysfunction appears to underly offending in the sample; furthermore, some disease factors may combine to ‘inhibit’ or ‘permit’ offending. Permitting factors include executive dysfunction and younger age at time of offending; inhibitory factors include dementia-related impacts on mobility, memory and reaction speed.

The role of theory in empirical legal studies

The growing field of empirical legal studies is not an alternative to theory: within every empirical inquiry is an implicit formal theoretical model. Further, good empirical tests should be inspired by substantive theories of the phenomena being analysed. This article explains how theory is built into all empirical testing and illustrates why empirical tests are best informed by well-developed theories. It uses examples of empirical studies of both US Supreme Court and Australian High Court oral arguments to illustrate how these issues apply to the central issues at the intersection of empirical legal studies and constitutional law: the role of judicial ideology and strategy, and predicting judicial behaviour. The article explores common errors in both conducting and consuming empirical work, and presents some solutions, including both methodological fixes and how to draw on substantive expertise. It aims to help the non-technical reader understand when counterintuitive results should be queried and when, in contrast, resistance is more reflective of priors of the reader rather than potential weaknesses of the work. And it acts as a reminder to technical readers and empirical practitioners that theory is built into every empirical test, and so must be taken seriously.

Trans-Tasman Challenge

The Trans-Tasman Proceedings Acts took effect in Australia and New Zealand in 2013, and since then have created a well-functioning trans-Tasman judicial area in which the process of all Australian and New Zealand courts can be served, and the judgments of all of those courts can be enforced, anywhere in New Zealand or Australia. The unquestioned jurisdiction that is given to all Australian and New Zealand courts in trans-Tasman cases is also limited only by principles of forum conveniens and the enforcement of choice of court agreements. In Zurich Insurance Company Limited v Koper (‘Zurich Insurance’), the validity of the Australian rules of jurisdiction under the Trans-Tasman Proceedings Act 2010 (Cth) was challenged. The New South Wales courts and the High Court of Australia all rejected the challenge. This article is an account of the constitutional considerations that were canvassed throughout the Zurich Insurance litigation, including the possibility that a High Court majority recognised a positive constitutional implication when upholding the personal jurisdictions created by the Trans-Tasman Proceedings Act 2010 (Cth) and the recognition of a federal power to extend the jurisdiction of state courts in all international cases. It also undertakes an analysis of the private international law issues of Zurich Insurance: the clarification of the effect of the Trans-Tasman Proceedings Acts; and the unsatisfactory conclusions reached on the territorial application of the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) — the issue that forced the need to consider the validity of the Trans-Tasman Proceedings Act 2010 (Cth) in the first place. In this respect, a plea is made for Australian state parliaments and courts to avoid extra-territorial overreach in the application of state legislation.

Comparative Exceptionalism? Strategy and Ideology in the High Court of Australia

Abstract This Article provides a rare comprehensive empirical assessment of oral argument outside of the United States. Drawing on a novel dataset over twenty-six years (1995–2019), comprising nearly one million speech episodes at oral argument in Australia’s apex court, the High Court of Australia, we are able to compare patterns of judicial behavior found in the U.S. Supreme Court to a comparable Western liberal democracy with a long tradition of judicial independence. There are a number of highly significant institutional differences between the Australian context and the U.S. Supreme Court, including a Chief Justice with additional power at oral argument, unlimited time for the length of argument, and variable panel sizes. Nevertheless, the Article finds evidence of similar patterns between Australian High Court and U.S. Supreme Court Justices. Importantly, this includes engaging in judicial advocacy on behalf of the side of the case that they ultimately support, contradicting the jurisprudential orthodoxy that the Australian judiciary is apolitical. In addition, numerous other factors that have been shown to be highly influential in the American context are also shown to be powerful in the Australian context, most notably judicial ideology, gender, and experience. This suggests that while striking institutional differences can impact oral argument and make arguments look very different, we can nonetheless discern similar underlying patterns of judicial behavior that can be recognized as strategic advocacy. All this suggests that neither system is “exceptional”—judicial advocacy may simply be part and parcel of having a strong independent judiciary.

Skeletons in the cupboard: reading settler anxiety in Mabo and Love

ABSTRACT Thirty years apart, Justices Brennan and Kiefel in the Australian High Court made deeply anxious remarks to define Indigenous identity and assert the power of the Court over Indigenous subjects and subjecthood in the Mabo and Love judgments. The notion that the breadth and depth of the Colonial legal system in Australia in 1992 was so frail as to break its skeleton is a form of gaslighting. Equally, the notion that in 2020 connection to Country is so fragmentable that it can mean one thing in Native Title and another in immigration manipulates an Indigenous notion of Country to fit the mould of settler power. This article analyses the judgments by considering the tone of settler anxiety and finds that in both judgments there remains a sinister logic of seeking to contain Indigenous identity and sovereignty.

Interpreting Declarative Questions in Australian Courts

In common law courtrooms, questions are not merely questions, as they are often used strategically with varying illocutionary force and point. This article dealt with the under-investigated Chinese-English interpretations of declarative questions in virtual court proceedings. Drawn upon the interpreting performance data collected from 50 certified interpreters, the findings revealed that systematic alterations of declaratives that shift the pragmatic force in cross-examination. Such alterations may have further implications for counsels’ questioning strategies and judicial outcomes. This study intends to inform future pedagogical practice in specialised court interpreter training.

Parental gender affirmation and children’s best interests in Australian family law

This article examines how the Australian family courts have considered parental gender affirmation when determining the best interests of children in post-separation parenting disputes under Part VII of the Family Law Act 1975 (Cth). It analyses three features of the jurisprudence which arguably challenge the acceptance of transgender and gender diverse (‘TGD’) families in Australian family law: the potential risk of harm to children, and the impacts on parenting capacity, from a parent affirming their gender; emphasis upon the uniqueness of parental gender affirmation as a childhood experience, with attendant risks to children from ‘public’ exposure; and the importance of language to the social affirmation of gender and for representing the perspectives and experiences of TGD parents and their children. The author argues that as more post-separation parenting disputes involving parental gender affirmation come before the Australian family courts, they will contribute to making TGD families more ‘visible’ in law, thereby promoting greater understanding of a family form that may still be labelled ‘ambiguous’, ‘novel’ or lacking an ‘established social or legal script’.

Administering harm: the treatment of trans people in Australian criminal courts

ABSTRACT In this paper, I argue that the administration of the criminal law by Australian courts causes harm to trans people that compounds with that already experienced. Specifically, court staff and judicial officers can maintain harm when they engage with court forms and provide judicial judgments: court forms that limit descriptions of sex/gender prevent self-identification and increase the potential for misgendering; further, judicial judgments often disregard, dismiss or deny the experiences of trans people through including inappropriate gendered terminology, deadnames and other problematic expressions. I conclude by highlighting three transformations that may disrupt these harms through allowing court staff and judicial officers to become aware of how they perpetuate harm against trans people. These transformations include reviewing and amending forms, educating and training staff and implementing additional supports. Importantly, to effectively disrupt harm, any transformation must be informed, and led, by trans people with lived, intersectional, experiences.

Cases before Australian Courts and Tribunals concerning Questions of Public International Law 2022

Cases before Australian Courts and Tribunals concerning Questions of Public International Law 2022

Autonomous AI: what does autonomy mean in relation to persons or machines?

ABSTRACT Artificially intelligent machines are increasingly capable of accomplishing tasks that have until now been considered exclusively human abilities. One such task is the ability to invent. In 2021, an Australian court became the first court in the world to recognise an Artificially Intelligent system as the inventor in a patent application, raising the question of whether AI systems could be considered the responsible actor of their actions, instead of the human using the AI. This paper examines the question of autonomy: how the concept of autonomy underpins the granting of legal rights to humans, and whether it is justified to grant legal rights to AI systems that are autonomous. We propose that there are two distinct and separate concepts of autonomy, Person Autonomy and Machine Autonomy, and that this distinction can guide how the law should treat AI systems.