Curl

To Change or Not to Change? That is the (Constitutional) Question

2012-03-04T16:32:00.000+10:00

On 19 January, the Panel on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples ('Panel') delivered its report Recognising Aboriginal and Torres Strait Islander peoples in the Constitution. Since the Panel was convened, there has been a lot of comment and public debate - mostly, it seems, centred around the legal implications of constitutional change.

If you are, like me, not an expert in constitutional law, your head may be spinning trying to keep track of the pros and cons of the recommendations. What then are the primary recommendations for change, and how on earth do we sort through the legal arguments? In this post, I go out on a limb and say that we need to focus on the goal of constitutional change and let go of the law.

Bats, Dangerous Creatures & Domain Over Land

2012-02-26T08:27:00.002+10:00

Bob Katter has recently called for landowners to have 'control over his (sic) backyard'.

"So if he decides to remove a deadly animal, like this bat up here, or a snake, it's his backyard, not the crown's.

In Mr Katter's view:

"As a race of people we have moved away from (the idea of) 'this backyard belongs to us'."

What I take his meaning to be is that the state has too much regulatory power over activities undertaken upon freehold land. That is, he is seeking a more libertarian approach in terms of elevating private property above state intervention. In other words that a person's home is their castle.

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Women's Bodies, the Law and Media

2012-02-20T08:20:00.000+10:00

In the last couple of weeks I've commented on a variety of media reports concerning how women should look and how the law impacts upon women's bodies, as a guest of the blog Amicae Curiae. You can read these posts on the links below.

I Know What Boys Like

Who Controls Women's Bodies

Husband and Wife are Two Souls in the One Flesh...

2012-02-11T17:43:00.001+10:00

It hath beeneresolved by the Justices that a wife cannot be produced either against or for herhusband...[for they are two souls in oneflesh], and it might be a cause of implacable discord and dissention betweenethe husband and the wife, and a meane of great inconvenience. (Lord Coke, 1628, cited in David Lusty, 2004)

As a result of the Biblical principle that husband and wife are 'two souls in one flesh', there is a common law tradition whereby women may not be obliged to give evidence against their husbands. This principle has apparently extended to apply to men giving evidence against their wives.

There are different bases on which a person may be required to or be excused from giving evidence. Their competence differs from their compellability which differs from whether privilege attaches to their evidence, once they are giving testimony. I am not seeking to explore these legal differences - and for the purposes of this post, will refer to these laws by a non-technical use of the term 'privileges'. I recognise that this term in itself has in part created the ambiguity in aspects of the common law in the area of spousal privileges.

The issue of spousal privilege has recently arisen in Australia, in the 2011 High Court decision Australian Crime Commission v Stoddart. This decision found that (the technical legal) spousal privilege does not exist in Australia. (Others have discussed the case: eg here and here.) However the case did, particularly in Heydon J's dissenting judgement, discuss the nature, genesis and evolution of spousal privileges (in their generic sense).

While I have little, if any, expertise in the law or practice of evidence, what interested me about this topic and the High Court's recent decision on it, was the foundation of spousal privilege laws - that husband and wife are 'two souls in the one flesh'. In considering the idea of spousal privilege laws and the Court's approach to them, I am therefore interested in the notion of status-based laws, and their implications.
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Sex & Immorality: The Court's Take

2012-01-29T15:24:00.003+10:00

Early this year, the Supreme Court of New South Wales handed down its decision in Ashton v Pratt. This was an action by Ms Ashton to enforce a promise made by Richard Pratt - director of Visy Industries and well known philanthropist. The Court accepted (though somewhat reluctantly it seems) that Mr Pratt had told Ms Ashton that he would establish trusts of $2.5 million for each of her two children, pay her an allowance of $500,000 per year, pay up to $36,000 per annum for rental accommodation for her, and pay $30,000 per annum for her business expenses, particularly travel. [para 28].

In exchange, Ms Ashton agreed not to return to the escort industry, and provide services (non-exclusively) to Mr Pratt as his mistress on occasions when he was in Sydney.

In spite of the Court finding that such a promise existed, it refused to uphold the promise. Others have commented on the decision - eg here and here - however what interests me in particular is one basis for this refusal; that even if there were a contract, the Court would not enforce it on grounds of public policy. The question that springs to my mind is why the law would still presume to find an apparently consensual sexual relationship - for money or otherwise - immoral to such an extent that it fell foul of 'public policy'.

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Professionalism and Sustainability in Lawyering

2012-01-23T15:26:00.000+10:00

I have not long returned from the beautiful city of Vancouver in Canada, having attended the eighth International Conference on Environmental, Cultural, Economic and Social Sustainability. What has been interesting about the conference has been the capacity of quite diverse academic and professional disciplines to converge in terms of their theoretical approach. That is to say, each presenter at the conference offered the opportunity to re-imagine an aspect of our world in terms of sustainability.

One aspect of thinking about sustainability that struck me in particular from a number of presentations is the dimension of what I'll call professional thinking. For example one speaker discussed the effect of sustainability assessment tools in architecture competitions on the design of sustainable buildings. Her point, as I understood it, was that a more 'checklist' approach to architecture may detract from a more wholistic or qualitative approach. The latter approach would take into consideration factors that could impact (positively) more completely in terms of sustainability or eco-design.

Another speaker discussed the role of tertiary education in teaching our teachers. Amongst his points was that our graduates need humility and gratitude: teaching involves gratitude for the opportunity to serve and is humbling in the recognition of the centrality of the teacher's role. Such attitudes, in conjunction with a keen sense of community, lend themselves to a philosophy and approach as a professional that embody interconnectedness and engagement with both community and the natural world - preconditions for educating youth in and for sustainability.

Both these discussions resonated in terms of legal education and indeed the practice of law. The revision of the LLB at my own institution involves embedding sustainability as an overarching concept: a lens through which to learn the content mandated by our professional bodies. But importantly, it also provides a pedagogy or a strategy or approach for teaching that aligns with what I took from the two discussions above.

The legal profession in Australia has for some years been asking why so few women are partners in private practice; why there are so few non-metropolitan practitioners; why (law) student wellness is such an issue; why there are high reported rates of practitioner mental unwellness...

Based on these now well-known issues, there are moves in legal education to incorporate different ways of teaching law: methods of teaching that encourage resilience, a reflective approach to practice and self-management. These intersect with a greater emphasis on ethics - a move away from a traditional approach to ethics as a set of professional regulatory rules, to a more embedded approach that incorporates also 'soft' skills in communication and a more qualitative understanding of the nature of professionalism. It seems that the academy and the profession is in agreement about the need for a new approach (see eg here).

And so to what I took from the speakers at the sustainability conference. If we continue to teach our law students rules without context, and abstracted legal reasoning without attention to self, we run the risk of leaving a profession that is unsustainable. One which cannot support the justice system and serve society. One in which it is not sustainable for individuals to continue to practise. Sustainability is a complex concept and poses particular problems for lawyers who prefer to have a tight definition; and who see sustainability in law merely in terms of environmental regulation.

Sustainability is much more than this. It relates to our world and our place in it. It relates to law as justice in both human, environmental and ecological terms. It relates to our profession and to society; practitioner and client. It relates to our personal and our professional self. All of these aspects are inter-related and it is our responsibility to educate professionals who have the capacity to understand this and to experience these facets in a wholistic way.

Knowing laws does not make a professional and as with criteria for an architecture competition, adherence to a checklist of laws will not address wider and contextual issues that represent the essence of lawyering. As with teacher education, humility and gratitude embody the intersection of personal and professional, or two sides of the same coin. Our students deserve the opportunity to engage in their development during their study of law, and our profession and society deserves graduates who have this capacity.

The Invisibility of Marriage

2012-01-04T15:44:00.001+10:00

Marriage can construct visibility

By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband; under whose wing, protection, and cover, she performs every thing (Sir William Blackstone, Commentaries on the Laws of England. Vol, 1 (1765), 442

In the contemporary debate in both Australia and internationally over same-sex marriage, I have been torn between my antipathy towards the institution of marriage and my desire to see a more inclusive society. In this post I consider this tension in an attempt to articulate a consistent basis from which to understand ‘marriage’ in a way that respects all as individuals in their own right and likewise affords respect at law to the domestic partnerships they enter into.

Is Local, Organic Sperm the Next Big Thing?

2011-12-30T10:28:00.000+10:00

Findlaw recently reported that the US Food and Drug Administration was seeking to stop Trent Arsenault from donating his sperm on the basis that he was in the business of manufacturing human cells. This apparently is in contravention of US regulations. While Mr Arsenault has received no payment for his sperm donations, it was his lack of 'sexual intimacy' with any of the recipients that caused him to fall foul of the rules.

The primary concern of the charges against Mr Arsenault (in fact 'his Establishment') is that in failing to screen his sperm for certain agents, he has failed to 'provide adequate protections against the risks of communicable disease transmission'.

To those interested in the question of property in the human body, this case draws attention again to the nature of human cells and the human body itself as an object (rather than a subject) of law. In deeming Mr Arsenault's gifts of his sperm as 'manufacture', the regulations in question suggest a categorisation of sperm as a thing outside of oneself rather than something that forms part of us (well, as part of Mr Arsenault). As something considered under the regulations to be independent of a human, the sperm arguably then become capable of being the subject of property rights and interests - in spite of a long-term reluctance of the common law, including US law, to find a property interest in the human body (though exceptions do exist).

It is not suggested that sperm donation be free of regulation - though there does appear to be inconsistency in US regulation of sperm donation that needs to be resolved. It is however interesting to note that the framework of regulation of 'recovery' and distribution of sperm (and other human cells) adopts the language of manufacture within an 'establishment'. This gives the appearance of an economic enterprise, presupposing the production of goods, or personal property. This raises questions such as: can the FDA confiscate Mr Arnault's sperm? At what point in the 'production' process do his sperm become contraband, or unlawful? These questions highlight the problematic nature of considering ejaculation and conception as a manufacturing process.

Some argue in favour of investing the human body with the characteristics of property, and others argue against. In either case, any regulatory framework needs to be clear and consistent in its purpose, and to use language appropriate to the unique character of the human body and its component parts.

(The title is a reference to an article in the Daily Mail Online.)

What to wear in court?

2011-12-29T11:05:00.000+10:00

I recently made a guest appearance on Amicae Curiae blog about wigs and gowns in court.

Live Cattle Exports and Plain Cigarette Packaging: Public/Private Tensions

2011-06-11T10:53:00.000+10:00

There are two hot issues in the twittersphere and in the Australian press at the moment that involve a similar paradox - live export of cattle from Australia and cigarette packaging. While the latter issue has attracted the attention of libertarians, the former takes a more directly economic focus. Both however involve an intersection between the public and the private.

The cattle industry in Australia is of course regulated in a number of ways, including in terms of animal welfare and public health. The live export trade is trending though because of the horror attendant on footage of inhumane treatment of live animals in Indonesian abattoirs. Public outcry has resulted in the suspension of live exports to Indonesia until the welfare of cattle can be guaranteed.

While petitions have gained widespread public support, there has been criticism of the government's decision. The mayor of Charters Towers for example, asks just how far policing of cattle treatment will go. Similarly, the ABC reports the loss of 'real Indigenous jobs' as a result of the suspension of exports. Both these arguments are based on economic impacts of the decision - a decision made based on public interest grounds ie animal welfare, that affect private or market based interests.

Cigarette packaging might seem a world away from live cattle exports, but this issue shares a similar tension.

On the one hand, the Australian government's policy on smoking is based on a public health argument. Senator Penny Wong in a radio interview identifies that tobacco companies 'market their products and what this does is remove one of the mechanisms for marketing, which is the labelling'. Cutting smoking will in turn improve public health outcomes and reduce the cost associated with health care for smoking-related disease.

On the other hand, there are two libertarian arguments against a plain packaging policy. The first of these rests on the right of an individual to engage in whatever behaviours they like - such as smoking. 'Who is the government to tell me not to smoke?' The second lies in what amounts to compulsory acquisition of the intellectual property in tobacco companies' logos and packaging.

Part of the debate about the plain labelling is uncertainty about whether it will actually work to reduce the number of smokers. In one sense though this is a side issue to the tension between the public and the private. So while this is a cost-benefit (economic) argument (that would require some evidence that plain packaging would result in the cost savings assumed), it is also a values-based argument. This argument goes along the lines of how much regulation of private interests do we want and expect. Likewise, live exports represents a values-based argument: in what circumstances do we make regulatory decisions that impact on economic interests.

Perhaps what is needed is a debate about the values upon which we make decisions to regulate. This is not simply a big government/small government issue, but rather a prioritisation of public values. Such a debate would forestall the need for focus groups or emergency and reactive online petitions to force government action. It would lead as well as reflect community expectations, and map a clear pathway towards good policy and clear and consistent foundations for regulation.

The Husband, his Widow, his Sperm and the Court...

2011-06-10T13:28:00.001+10:00

A recent decision in the New South Wales Supreme Court found that Ms Edwards, the wife of a deceased man had a possessory interest in his sperm, removed after his untimely death. The decision is interesting to property lawyers for a number of reasons. First, it discusses at some length the nature of the interest found to vest in the applicant wife. Secondly, it highlights the challenges involved in identifying rights in the human body, or parts of it, in favour of third parties.
The case again affirmed the turn of the (20th) century Australian decision in Doodeward v Spence, which held that there was no property in the human body unless the so called 'work and skill' exception applied:

'...when a person has by the lawful exercise of work or skill so dealt with a human body or part of a human body in his lawful possession that it has acquired some attributes differentiating it from a mere corpse awaiting burial, he acquires a right to retain possession of it...'

Doodeward v Spence is one in a long line of cases that demonstrates the courts' reluctance to find property in the human body - dead or alive - or in parts of the human body. In one sense, the recent NSW decision does likewise.
The court identified that Ms Edwards held a right to possess her deceased husband's sperm. The Court referred to a High Court decision:

"Property" is a comprehensive term which is used in the law to describe many different kinds of relationship between a person and a subject-matter; the term is employed to describe a range of legal and equitable estates and interests, corporeal and incorporeal. Accordingly, to characterise something as a proprietary right (and, a fortiori, a quasi-proprietary right) is not to say that it has all the indicia of other things called proprietary rights. Nor is it to say "how far or against what sort of invasions the [right] shall be protected, because the protection given to property rights varies with the nature of the right". (Citations omitted).

This wide and inclusive definition of 'property' has been identified as problematic in relation to genetic material. A 2003 Law Reform Commission Report, for example, recommended against regarding genetic material (which would include sperm) as property. To do so may imply its suitability for transfer sale and management. Possession however would be appropriate.
In the Edwards case, the Court therefore had the task of identifying what kind of right might vest in the sperm. It found that this right whether property or not, amounted only to possession. It seems though that even this possessory right was limited.
While it was clear that Ms Edwards would seek to use the sperm for the purposes of IVF, the Court was not in a position to award possession for this purpose. Indeed the Court was asked 'to put aside any consideration of what she might do with it as a result of such possession' - legislation in New South Wales forbids the use of gametes for IVF where the gamete provider is deceased and there is no (written) consent.
In finding even this limited possessory right, the Court had to overcome a number of obstacles in identifying Ms Edwards herself as the party entitled to that possession. First, was it Mr Edwards who had an interest in his own sperm? If this were the case, then the right to the sperm would vest in his administrator (Ms Edwards) as property. The Court found that he did not - he did not have an interest in his sperm before death, so he did not have one afterwards.
Secondly, applying the 'work and skill' exception to no property in the human body, did the doctors who removed the sperm post mortem have property in the sperm? Again, the Court found that they did not. In this case, they undertook this work on behalf of Ms Edwards and for her benefit.
Thirdly, if Ms Edwards as administrator of the estate has a 'quasi' property right to the body of the deceased, did she have 'quasi' property in the sperm? This right is limited to possession for the purpose of burial, not for the extraction and possession of sperm from the deceased. Ms Edwards' role as administrator though was relevant in influencing the Court's discretion as to possession of the sperm:

"Ms Edwards is the only person in whom an entitlement to property in the deceased's sperm would lie. The deceased was her husband. The sperm was removed on her behalf and for her purposes. No-one else in the world has any interest in them. My conclusion is that, subject to what follows, it would be open to the Court to conclude that Ms Edwards is entitled to possession of the sperm."

The Court in this case, in citing the Law Reform Commission Report, acknowledged the appropriateness of a case by case approach - an approach that will weigh up the public interest and private rights at stake in each set of circumstances. The outcome of this decision is instructive of the challenge of the public private divide in determining which rights exist and which are at stake.
This case was resolved in terms of property interests in sperm. While the Court accepted that the sperm would be capable of being subject to a property right, it nonetheless exercised caution in finding a possessory interest. This represents the caution exhibited by the Courts in such cases, where they seek to avoid opening the possibility of creating property and therefore a market in human body or tissue.
On the other hand, the private interest of Ms Edwards in having a child with her late husband and the consequences for a possible child create a matrix of considerations that weigh in against the wider public interest of maintaining the dignity of human life. In light of these complex questions, it remains to be seen as to whether dealing with human gametes in terms of proprietary (via possessory) interests is of any value or whether an alternative framework of thinking might provide a less problematic answer.

Unbundling Interests in Land

2011-05-29T11:36:00.000+10:00

It used to be that 'a man's house is his castle' and indeed this aphorism is reflected in the common law doctrine of cuius est solum, eius est usque ad coelum et ad inferos or he who owns the soil is theirs up to heaven and down to hell. Increasingly however this doctrine has been narrowed as interests in land have become unbundled.

I draw a distinction here between the recognition that one cannot literally own 'up to heaven' or 'down to hell' and what is considered to constitute 'land'.

Originally the only reservation in a grant of land was the royal metals, gold and silver, which were reserved to the Crown. That is to say, one would own the 'land' except for any gold/silver contained in it. In Australia, various other minerals and metals were extracted from land over time - not by mining, but through legislative reservation of minerals for the Crown. This resulted in creation of one subject of property rights - land - and a second subject of property rights - minerals.

Likewise, the common law recognised riparian rights - rights to water that flowed over or adjacent to land. So water was considered to be part of the land. This too has become 'unbundled', creating yet another subject of property rights.

The contemporary clash over coal seam gas in Australia represents another dimension of this progressive unbundling whereby the landowner loses control over access to resources under the ground and according to some landowners, also lose control over permissions to access land: they 'don't have a choice' in giving permission for the gas wells.

The result, as reported in The Weekend Australian there is an alliance between environmentalists and farmers both of whom reject coal seam gas as an interference in the farmers' control over farmlands.

The consequence of unbundling of property rights in this context is the creation of another market for private property interests (coal seam gas) that ostensibly directly competes with an existing private property interest (land ownership). While there may not be anything inherently wrong with a private property interest or market (depending on your ideological persuasion of course) what does need to be considered here is the foundation that justifies the making of laws that allow this direct competition.

If private property interests are to be elevated above all else (a libertarian view of property) then there seems to be an inherent conflict between the pre-existing (private) property rights of the landowner and the subsequent interests of the coal seam gas rights holders. Perhaps such competition is regarded as putting resources to their highest use (see eg Adam Smith and comparative advantage). In this case, the law's granting of permission to extract coal seam gas will presumably be based on a public interest argument - that this land is put to more productive use by coal seam gas extraction than from farming. Coal seam gas extraction seeks to meet global demand for energy production - a pressing public need.

The arguments by farmers and environmentalists challenge this. These arguments seem to be based not just on protection of pre-existing private property, but are likewise public interest arguments about the utility of food production, land quality and wider environmental protection. On this basis, not only is there a private property competition, there is also a competition for public goods.

It is my observation that these private/public issues are becoming increasingly prevalent, particularly in the context of the unbundling of property rights in land. Where globalisation of problems - climate change, environmental degradation, human rights, sustainability, energy production - result in the need for national public responses, it is interesting to note the solutions proposed often, though not always, utilise private property interests and free market mechanisms.