You’ll Never Walk Alone:

You’ll Never Walk Alone: Thoughts on the Ups and Downs of engaging in Socially Constructive Legal Work: notes for a talk at the launch of the University of Queensland Law School Pro Bono Centre’s Indigenous Deaths in Custody Database at the TC Beirne School of Law on 1 August 2018.

I have decided to speak to you not about the magnificent work you have done in compiling the database, your expertise in that is probably much greater than mine, but about the idea that some of the work we do as lawyers may have a social relevance beyond the interests of our immediate client and beyond our important role of serving, with our honesty and expertise, the rule of law.
I do not wish to try to define what is socially constructive legal work. Sometimes, lawyers’ work takes on a social relevance because it is done free or for reduced fees. Free work is called pro bono for a reason, “pro bono” being short for “pro bono publicae” meaning “for the good of the public”. The idea is that, by assisting those who cannot afford legal services by doing the work for no fee, we are indeed helping the society as a whole.

Working to enforce environmental laws; working to improve environmental laws; assisting prisoners who are experiencing harsh custodial practices; campaigning to improve industrial safety are all activities which take on importance whether or not they are provided free or at a reduced rate.
I want to draw on the experience of others who have walked these trails before us. Whenever we embark on a difficult task, it is both true and false that we do so, alone. It is true because there always comes a point where we have to put in the hard thinking and the long hours and we have to make the difficult judgement calls, ourselves.
But it is also false. In most cases, wheels have already been invented; challenges encountered and obstacles overcome. And it is frequently helpful to draw on the insights of others who have faced similar challenges. Sometimes, it is useful to know that things are not as difficult as we imagine. And, oftentimes, it is useful to know that we can expect resistance which, left to our own devices, we may never have imagined. While forewarned does not necessarily mean forearmed, it does help to know that the windmills against which we are tilting are not about to fall of their own accord.
So I will start by trying to make us all as depressed as possible by stressing the difficulties of making things in society better. I will try to move to the lighter notes so that, by the end, we might all feel a little better because of the inspiration provided to us by some of the great fighters who have gone before us.
Part of what I want to communicate is that there is something in all of this for us. By giving our time and our energy, we also receive. John Donne’s bell that tolls for us is not always bringing the impending news of our death.

Power structures, bureaucracies and the Fitzgerald Report
I wanted to start by describing how difficult it is to achieve positive social change by socially relevant constructive work or by any other method. The point I want to make is that the bad things that happen in our society do not happen merely by chance. And that bad things do not persist merely because of neglect or because no one is aware of them. The bureaucratic power structures which are essential to our society’s well-being also contain vested interests and those vested interests will resist any change which threatens their power. It is not always clear why people benefit from other people dying in custody. You can be sure, however, that the causes you identify and the solutions you recommend will be resisted by some people who currently exert authority and wield power.
My problem is, of course, to find the words of somebody else who had articulated these points for me. So I wanted to find a nicely packaged quotation which stated that bureaucracies see their role as protecting the present power structures; that they have infinite wells of people, time and resources; and they can wear down any positive movement for social change.
The quotation would say, with unmatchable elegance that, even when they suffer reverses, bureaucracies have an innate ability to regroup, retool and regain lost ground and bounce back with greater strength than they had before.

I wanted the lost quote to say that those who wield power within bureaucratic structures had an unquenchable thirst to punish anyone who challenged their unwritten laws: that even unsuccessful whistle blowers had to be crushed until their lungs were so damaged that neither they nor anyone else would be tempted to blow a whistle for decades to come.
As an added bonus, I hoped that the passage would wander into a discussion to the effect that it is not surprising that the rich and the powerful have been able to divide and conquer the poor and disadvantaged with threats and force and hate-filled propaganda so as to retain the reins of power because the bureaucracies of the rich and powerful have used those methods to divide and conquer and rule the poor in authoritarian societies long before some of the Greek states experimented with the notion of democracy and had fine tuned those methods during the last two thousand years or so after the Greek experiment was quickly abandoned.

I thought the quote would be easy to find. I could have got former Gold Coast police officer, Rick Flori, who was prosecuted (but acquitted by a jury) for releasing to the media a video of a suspect being viciously assaulted by numerous police officers to sign off on least several paragraphs of the quote I was looking for.
It is probably good that I did not find that particular quotation. I would have managed to depress all of us far too much such that my subsequent efforts to haul us back from the brink would be to no avail

I did, however, find a quote from the late Laurence J. Peter, a Canadian educator who died in 1990. This quote does, in a much more succinct manner, hint at the key qualities of the relationship between bureaucracy and power. Peter is the author of the famed Peter Principle which you may have referenced yourselves. The principle states that, in a hierarchy, every employee tends to rise to his level of incompetence. In time, every post tends to be occupied by an employee who is incompetent to carry out their duties. Work is accomplished by those employees who have not yet reached their level of incompetence.

Very informative but not quite hitting the points we are addressing.
I think the dogged resistance of a bureaucratic power structure to positive change is better distilled in Peter’s aphorism that bureaucracy defends the status quo long after the quo has lost its status. And the darker side of bureaucratic resistance to positive change may be captured by another of Peter’s phrases: if two wrongs don’t make a right, try three.
Having only been partially successful in finding the conveniently packaged version of what I wanted to say, I have decided to take an example from history, namely, from the Queensland Police Force at the time it was investigated by Tony Fitzgerald QC. I am not saying that the institutions responsible for the wrongs you discover and seek to correct will be carbon copies of the Queensland Police Force of that time. But some of the phenomena that Mr. Fitzgerald describes are specifically bad examples of general tendencies exhibited by powerful bodies whose operations and structures need correction in a significant way.

First, Mr. Fitzgerald says that, while police officers are diverse in their individual lives, they collectively form a strongly-bonded separate social group which has a unique culture. Mr. Fitzgerald also says that, because the police force is drawn from the community, it shares the failings of the community including materialism and a likely roughly representative proportion of people who break the law. A profound danger arises when the culture of the police force incorporates a code that takes a different attitude to breaches of the law by police compared to other members of the community. The practical result from the authority and powers given to police officers is that lawbreaking by police becomes above the law. Once this happens, the effects of a culture of misconduct spreads to sap the moral vigour of the entire Force (page 200).

Mr. Fitzgerald then turned to his actual findings concerning the Police Force as it existed at the time of his investigation. Mr. Fitzgerald found that the culture of the Quensland Police Force was marked by contempt for the criminal justice system; disdain for the law and rejection of its application to police; disregard for the truth and abuse of authority (page 200).
Mr. Fitzgerald found that skilled police are acutely aware of how laws can be circumvented or broken without penalty. He explained how the values of recruits which are compatible with police culture are reinforced by that culture. When youthful recruits rise to senior positions over time, they hold values that are decades out of step with those of the broader community. The culture of the Police Force had resisted all attempts to challenge it. In describing the particular historical event of Commissioner Whitrod’s failed attempt to reform the Force, Mr. Fitzgerald said that the various elements of the culture were interwoven and supported each other (201). This last sentence, that various elements of the culture were interwoven and supported each other, is an apt description of what reformers face when we take on a power structure.

In talking about the police code, Mr. Fitzgerald said that, under the code, it is impermissible to criticise other police. Any dissidents, especially those take their concerns outside the power structure of the Force, are dealt with for breaching the code (202). A concern with the real but vastly exaggerated prospect of false allegations is taken to the point where all allegations against police are assumed to be false and malicious. The phrase of “no work-no trouble” is used to explain that those police officers who attract complaints from the public do so because they are resented for being hard and effective workers. Allegations against the police are brought to their attention at an early stage, inadequately investigated and virtually never sustained. A person who accuses or criticises a police officer also faces graver risks ranging from trumped-up charges involving planted or fabricated evidence to being the subject of a violent attack (203).
Mr. Fitzgerald goes on for many more pages but I will stop there.

Although, as I have acknowledged, Mr. Fitzgerald is describing a particular institution at a specific point in time, every institution has the tendency to develop self-sustaining mechanisms. If your work reveals things being allowed to happen that should not be allowed to happen, the chances are that causing that quo to lose its status will involve some intricate and unexpected battles.
Charles Hamilton Houston: it’s not enough to do good: we have to be good at what we do
Charles Hamilton Houston was born in 1895. He graduated from college and became an English lecturer before joining a then segregated army and serving from 1917-1919 as a first lieutenant. One of his most valuable statements relates to that experience. He later wrote: “The hate and scorn showered on us Negro officers by our fellow Americans convinced me that there was no sense in my dying for a world ruled by them. I made up my mind that, if I got through this war, I would study law and use my time fighting for men who could not fight back.”
Houston entered Harvard Law School in 1919 and was a star. Inter alia, he was the first black student to be elected to the editorial board of the Harvard Law Review. Later, he was founding member of the Washington Bar Association which was affiliated to the National Bar Association which was, in turn, founded by black lawyers in 1925 who had been refused membership of the American Bar Association. It seems that Jim Crow was everywhere in the 1920s.

Houston was recruited to the faculty of the Howard University Law School where he served as Vice Dean and Dean from 1929 to 1935. Houston was influential in changing the law school of the famous university, founded in 1867 to educate a new post-Civil War generation of Afro-American leaders, from part-time to full-time.
Houston is famous for being a mentor and role model for the first Afro-American Supreme Court Justice, Thurgood Marshall and, through Marshall, Barak Obama. He is also famous for being the architect and chief constructor of the litigation strategy which led to the Supreme Court’s decision in Board of Education of Topeka v Brown decided in 1954.
In 1935, Houston left academia to run the legal defence and education fund for the National Association for the Advancement of Colored People. In aiming to bring down segregation, Houston accepted the separate but equal doctrine from the 1896 case of Plessy v Ferguson on which it was based. He chose to bring cases in the area of education and to gather the evidence to show what was being offered to Afro-Americans was not equal. He aimed to make segregation so expensive that it would have to be abandoned. He demanded equalisation of teacher’s salaries and equal facilities. He chose to concentrate on law schools which were mainly male so that his legal campaign would not be derailed by the primal fear of whites that black young men might date white young women.
In the 1938 case of Missouri Ex rel. Gaines v Canada, the student Lloyd Gaines sued the State of Missouri to be allowed admission to the law school at the State University of Missouri. There was only one law school in Missouri. Offers were made to pay his tuition at a law school in a neighbouring state but Gaines refused the offer. The state courts refused relief but the Supreme Court upheld Houston’s argument and forced the University to allow Gaines admission.
By the time that Brown v Board of Education of Topeka was decided in 1954 and overruled the separate but equal doctrine, Houston had died of a heart attack. Thurgood Marshall always acknowledged that success in Brown would not have been possible if it had not been for Houston’s years of work laying the basis for the final frontal assault on Plessy v Ferguson. The unanimous ruling, brokered by newly appointed Chief Justice and former Governor of California, Earl Warren, famously held that, in the field of public education, separate is inherently not equal and is therefore unconstitutional.

The Brown whose name figures in the name of the case was Oliver Brown and it was his daughter, Linda Brown, who was refused entry to an all-white school in Topeka. Although Topeka integrated its schools, many states in the south resisted the ruling and the civil rights movement was sparked to pressure government to comply with the law and the Constitution. Just a year later, in 1955, in Montgomery, Alabama, Rosa Parks, famously, refused to give up her seat on the bus and the Montgomery Bus boycott commenced.
The Civil Rights Act of 1964; the Voting Rights Act of 1965; and the Fair Housing Act of 1968 followed after much further struggle. Many other people including one Martin Luther King contributed to these latter events. Nonetheless, Charles Houston’s roundabout legal strategy started way back in the 1930s played a crucial role in preparing the courts and the country for dramatic change.
Now, when I decided to talk to you about Charles Hamilton Houston, I wanted to quote his famous phrase that “we have to be twice as good as the other lawyers because our job is twice as hard”. It is a phrase of Houston that I have quoted many times in conversation. It makes an excellent point. It is very tempting when one does socially constructive legal work to be lazy about the task; to think that you are the good guy in the room; to throw up the virtuous argument thinking that, because it is virtuous, it must be the law; and then to blame the judge and the system when we don’t win the case.

The point is that, when we do socially constructive work, we have to be the very blackest of black letter lawyers. We have to work hard; locate and adduce the evidence; research the legal principles; find the factual and legal bases for the result which we seek; and then map the course which the judge will need to take to get to that result. Good law, indeed, all law must be and is black letter law.
The only problem with this is that, despite the internet being replete with pithy, moving quotations from Charles Hamilton Houston, I have been unable to find him saying anything about coloured lawyers or civil rights lawyers or progressive lawyers having to be twice as good as their opponents. It turns out that we have to be twice as good as them is what every Afro-American parent is reputed to have taught their children usually at the precise moment that the child has disappointed their parent with bad news about the child’s academic performance from school.
Where does that leave me? Perhaps, I should provide you with something that Houston actually said: “A lawyer’s either a social engineer or … a parasite on society … A social engineer [is] a highly skilled, perceptive, sensitive lawyer who [understands] the Constitution of the United States and [knows] how to explore its uses in the solving of problems of local communities and in bettering conditions of the underprivileged citizens.”

I still have not found out the context in which Houston uttered these famous phrases. I do know that the Howard Law School quote them in the “Our History” part of their web page. The faculty still thinks that Charles Hamilton Houston is a sufficiently important part of its history to feature him in this way.
And, perhaps, the passage says, in much more elegant terms, what I so wanted Houston to say that I had dreamed of reading him say it. A socially constructive lawyer (the social engineer) must understand our basic laws (the Constitution) and be skilled, perceptive and sensitive enough to explore its uses in the solving of local problems and in bettering the disadvantaged. We have to be black letter lawyers as well as have a sense of social justice. We have to be twice as good.
Viktor Frankl: psychotherapist and survivor
Having told you of the battles we can all expect and of the need for absolute excellence in our work, I thought I would talk to you about finding happiness. Who better to turn to than someone who spent time as a prisoner in Auschwitz.

Victor Frankl was one of those long lived holocaust survivors. He died on 2 September 1997. But he did not survive Auschwitz as a child and have his whole life ahead of him at the end of the war. Frankl was born in 1905. He was an accomplished psychiatrist and neurologist in Vienna in 1942 when he was uprooted from his home and sent to the Theresienstadt Concentration Camp. On 19 October 1944, he and his wife were transported to Auschwitz. He was sent to Kaufering, part of Dachau where he worked for five months as a slave labourer. In March 1945, he was offered a move to a rest camp, Turkheim, also associated with Dachau, where his role was to work as a physician looking after typhus patients as well as he could with very limited medicines and other resources.
Martin Gilbert writes that Frankl’s father died in Theresienstadt; his mother died in Auschwitz; and his wife in Belsen. Frankl established a school of psychotherapy called logotherapy whose principal tenet is that the key to human existence is having meaning in our lives. He published a book in 1946 which explains the principles of logotherapy against the context of a detailed record of Frankl’s experiences across four Nazi concentration camps. The book, published under various names and now known as “Man’s Search for Meaning” remains a best seller. It has sold over 24 million copies. My favourite book shop, Folio, had a copy in stock when I sought to buy one for the purpose of today’s talk. It is clearly still in print.
In the book, Frankl relates a particular incident. It was a bad day in Auschwitz. A few days earlier, a prisoner had broken into the potato store and stolen a few kilos of potatoes. The authorities demanded that the prisoner be given up or the whole camp would have no rations for a full day. None of the 2,500 prisoners betrayed the suspect.
On the evening of the day without food, in Frankl’s hut, with the residents lying in darkness on their bunks, the senior block warden talked of the need to keep up hope in even these direst of times. He then handed over to Frankl to put flesh on the bones of his idea. Frankl relates the impromptu talk that he gave that evening. I wanted to extract a short portion of his recounting which deals with hope but also with the importance of having and finding meaning in our lives.

He says: “Then I spoke of the many opportunities of giving life a meaning. I told my comrades (who lay motionless, although occasionally, a sigh could be heard) that human life, under any circumstances, never ceases to have meaning, and that this infinite meaning of life includes suffering and dying, privation and death. I asked the poor creatures who listened to me attentively in the darkness of the hut to face up to the seriousness of our position. They must not lose hope but should keep their courage in the certainty that the hopelessness of our struggle did not detract from its dignity and its meaning. I said that someone looks down on each of us in difficult hours – a friend, a wife, somebody alive or dead, or a God and he or she would not expect us to disappoint them. He would expect to find us suffering proudly – not miserably – knowing how to die.”
I find most actions of resistance in Auschwitz pretty moving but I guess that smuggling gunpowder in order to facilitate blowing up the ovens is not an everyday option for most of us. Nonetheless, our work, especially, socially constructive legal work, can be full of frustrations when others fail to heed the evidence we uncover or fail to take note of the proposals we put forward for change. The lesson that we can take from Frankl’s words, albeit, uttered in a much more extreme context, is that the frustrations and difficulties of any important task we undertake also have meaning and give meaning to our lives as do the small victories and advances that we manage to achieve.
Bryan A Stevenson/Vaclav Havel
Frankl also spoke about sources of hope and reasons for hope as well as sources of meaning in his speech in the darkness. I am going to go to Bryan Stevenson, the director of the Equal Justice Initiative in Montgomery, Alabama for a word on the importance of hope.
Stevenson, immediately after graduation from Law School, in 1989, went to work on death penalty cases in Atlanta, Georgia for the Southern Center for Human Rights. His work included death penalty cases in Alabama. Sensing a need, in 1994, he established the Equal Justice Initiative in Montgomery, Alabama. It was a time when the Republicans had regained control of Congress in the 1994 mid-terms and cut off funding for centers that did work for prisoners on death row. So he had to raise the money as well as do the cases in the beginning.
The EJI guarantees representation to every prisoner on death row in Alabama and works to eliminate excessive and unfair sentencing; exonerate innocent death row prisoners; and assist children sentenced as adults.

Lessons we can learn from the work of Stevenson include the importance of getting the message out and the importance of telling people’s stories, both lessons that may be relevant to your work.
In 2014, Stevenson published a memoir called Just Mercy. It has been a best seller ever since. In the book, he recounts the stories of clients and the injustices they suffered in a justice system that imposes the severest of penalties without even ensuring that defendants are properly represented and resourced. By reading the book, one obtains a personal insight into the extent to which a justice system not only fails to provide justice for the poor and disadvantaged but fails to even aim for justice or care whether it is delivered. The book gets the message out. It adds a multiplier effect to the successes of the litigation. It even assists the work of the Center by gaining support and donations.

Just Mercy contextualises the current injustices it describes, particularly, in the south of the United States, against the racist history of slavery; the Civil War; the Jim Crow era; and the resistance to any form of civil rights for minorities. (That same context is very helpful in understanding current controversies over voter rights and the removal or retention of Civil War statues.)
Not content to tell the stories of his clients, the EJI under Stevenson’s leadership, has acted to tell the stories of those who were the victims of the South’s racist past. In April, this year, the EJI opened the National Memorial for Peace and Justice and the Legacy Museum: from Enslavement to Mass Incarceration both in downtown Montgomery. The memorial has 805 hanging rectangles representing each of the counties in which the 4,300 documented lynchings took place between 1877 and 1950. The Legacy Museum contains artworks but also archival materials and interactive displays setting out the history of oppression that spans from slavery itself through to the mass incarceration of Afro-Americans that is today’s phenomenon.
In this way, Stevenson has reinforced for us how important it is to tell people’s stories. One of the artefacts of oppression is that the oppressed do not get to tell their own stories. Indeed, oppressive governments and societies actively take steps to monopolise the story-telling and punish anyone who tries to broadcast an alternative narrative. Telling the stories, past and present, of those who suffer injustice is an important part of our function as lawyers and social activists.

While these are important lessons, one thing that particularly drew my attention when I was reading Just Mercy was a little lesson on the importance of hope. Stevenson draws his lesson from Vaclav Havel, the great Czech playwright, dissident leader and then statesman. Stevenson describes what he took from Havel as follows: “Havel had said that people struggling for independence wanted money and recognition from other countries; they wanted more criticism of the Soviet Empire from the West and more diplomatic pressure. But Havel said that these were things they wanted; the only thing they needed was hope. Not that pie in the sky stuff, not a preference for optimism over pessimism, but rather “an orientation of the spirit”. The kind of hope that creates a willingness to position oneself in a hopeless place and be a witness, that allows one to believe in a better future, even in the face of abusive power. That kind of hope makes one strong”.
We have a number of objectives when we engage in socially constructive legal work. But creating this kind of positive and constructive hope, I think, must be one of them.

Through these diverse windings through the work and writings of others, I have tried to draw lessons for us as lawyers who, through our work, try to cure injustice and make the world a more moral and worthy place in which to live.
In the end, however, the lessons we draw for our work from those who go before us are many. Those I have sought to share may not be those which resonate with you. Your need for inspiration and guidance will be different in important ways to me and to the person who sits besides you.
Feel free to ignore my substantive lessons. Choose your own. I urge you, however, to take one thing from the stories and words I have shared.
Remember that you are not alone either in space or time. Read widely and take your lessons where you find them. Choose those which strike your chords.
Find your heroes. Know your heroes. And take inspiration and encouragement from them. The road may be long and the task may be difficult but we can learn from others who trod these paths before us. We do not walk alone.
Stephen Keim SC
26 July 2018

Bell v BCC: the central importance of planning schemes in development assessment

The Court of Appeal’s decision in Bell v Brisbane City Council [2018] QCA 084 (Sofronoff P and Philippides and McMurdo JJA), delivered 4 May 2018, is a very significant appeal for planning law in Queensland which emphasises the importance of development complying with the planning scheme.

The appeal concerned a large development at Toowong, an inner-city suburb of Brisbane in Queensland.

The site formerly housed the ABC studios in Brisbane and was a prime location on Coronation Drive adjacent to the Brisbane River minutes from the CBD.

The proposed development comprised a 555-unit riverside development with two 24 storey towers and one 27 storey tower.

[caption id="attachment_317" align="alignnone" width="600"] Grace on Coronation (courtesy Sunland)[/caption]

The development’s official name was “Grace on Coronation” but the three towers were dubbed the “champagne flutes” by local residents in 2015.

The proposal was very controversial and a principal objection from surrounding residents was that it did not comply with Brisbane City Council’s planning scheme, which only allowed for 15 storeys on the site.

Brisbane City Council (BCC) approved the development despite the inconsistency with its planning scheme.

A neighbouring resident, Kate Bell, appealed against BCC’s approval to the Planning and Environment.

Rackemann DCJ dismissed the appeal in 2017 following a 13 day hearing.

Mrs Bell sought leave to appeal against that decision to the Queensland Court of Appeal.

On 4 May 2018 the Court of Appeal granted leave to appeal and allowed the appeal on the basis that Rackemann DCJ had erred in law.

Central to the Court of Appeal’s unanimous reasoning was the importance of a proposed development complying with the planning scheme.

McMurdo JA (with whom Sofronoff P and Philippides JA agree) cited, at [66], a previous decision of Keane JA (as his Honour then was) in Clark v Cook Shire Council [2008] 1 Qd R 327 at 338; [2007] QCA 139 at [32]:

“The terms of a planning scheme inevitably reflect the striking of an overall balance, in the public interest, between the many interests potentially affected by the planning scheme.” (Emphasis added.)

McMurdo JA went on to state at [67]:

“[67] It is not for the decision maker (including in this context a Court), to gainsay the expression of what constitutes the public interest that is in a planning scheme. A decision maker might think that a limit of 15 storeys is too restrictive, and the public would be better served by a higher limit. But this decision maker must accept that it is in the public interest that the limit be 15 storeys, because that is what the planning scheme effectively provides.”

McMurdo JA allowed the appeal because of the trial judge’s error in failing to give proper consideration to the planning scheme:

“[77] At no point did the judge refer to the Scheme as an embodiment of what represented the public interest. The judge did not identify any way in which the Scheme’s specification of an acceptable height was to be disregarded as the result of an error in drafting, a change in relevant circumstances from those which existed when the Scheme was prepared or a failure of the Scheme to anticipate a need, in the public interest, for a development on this site with buildings of this height. In essence his Honour formed his own judgment of what was in the public interest without recognising the relevance of the Scheme to that question. The same may be said of his conclusion that the public interest justified the conflict between the decision and overall outcome (4)(h).

[78] Ultimately, by the judge substituting his own view of the public interest for that which was expressed in the Scheme, there was a legal error which affected his conclusion under s 326. Further, that was also affected by the legal error in the interpretation of overall outcome (3)(h).”

While the appeal concerned the repealed Sustainable Planning Act 2009 (Qld) (which has now been replaced by the Planning Act 2016 (Qld)), it emphasises a central tenant of planning law: the importance of proposed development complying with the planning scheme.

It also underlines the limitations on councils’ and the Planning and Environment Court’s discretion to approve development that does not comply with the planning scheme.

This decision is likely to reverberate in Queensland planning law for many years to come.

State of Queensland v Noble: Considerations in Granting Forfeiture Orders after an Animal Cruelty Conviction

State of Queensland v Noble concerns an application for a forfeiture order against an elderly man guilty of multiple counts of animal cruelty. The parties agreed that the property in question was “tainted” and subject to possible forfeiture but differed on what the court should consider when deciding the application. Noble came after broad community demands to ban the greyhound racing industry throughout Australia and after a planned ban in New South Wales which was later reversed.

The respondent, Thomas Noble, pleaded guilty to fifteen counts of serious animal cruelty pursuant to section 242 of the Criminal Code Act 1899 (Qld). The offences involved the use of live piglets, rabbits, and possums to train greyhounds for racing purposes. All offences are confiscation offences, and they occurred between 20 August 2014 and 15 October 2014 on the respondent’s 40 acre property in the locality of Churchable. Noble received a suspended sentence of three years imprisonment.

The applicant, the State of Queensland, applied for a forfeiture order pursuant to Chapter 3 of the Criminal Proceeds Confiscation Act 2002 (Qld) (“the CPCA”), within the six months required by section 106(1)(a). The subject of the application was the respondent’s Churchable property.

Judge Crow found the property to be “tainted” (pursuant to section 104 CPCA) by the animal cruelty offences, establishing a “substantial connection” between the offences and the property which was “not difficult to establish.” Counsel for the respondent conceded this point, agreeing with the applicant’s construction of section 151(3) of the CPCA.

The point of contention was the court’s application of its discretion to make a forfeiture order. Section 151(2) of the CPCA establishes four considerations the court may have regard to:
Any hardship there is expected to be caused to anyone by the order;
The use that is ordinarily made or is intended to be made by the property;
The seriousness of the offences concerned; and
Anything else the court considers appropriate.

Judge Crow acknowledged a further fifteen considerations outlined by Justice Bond in State of Queensland v Statham. Although these considerations were derived from the facts of Statham, His Honour regarded them as broadly applicable to this case. The applicant argued that a forfeiture order was consistent with the object of the CPCA, namely, the removal of financial gain through crime and financial loss in connection with crime. His Honour also acknowledged a deterrent object within the CPCA and that such the requested order would have that effect although the forfeiture itself would not be a punishment for the offences should it be granted.

Judge Crow considered the following in his decision:
At the time of this case, Noble and his wife were 71 years of age and 69 years of age, respectively;
The respondent had “no relevant prior convictions;”
The property was fully paid for and fully developed prior to the offences occurring;
No part of the value of the property was acquired through the offences;
Minimal financial gain came from the offences;
The offences involved heinous animal cruelty, involving:
Use of small animals as live bait;
Their subjection to painful and prolonged deaths in order to develop a “bloodlust” in the greyhounds (per Judge Horneman-Wren SC at first instance);
A minor portion of the property was used in relation to the offences;
A forfeiture order cannot divide the property in order to seize only part of it;
The respondent had full involvement in the offences;
The respondent had a significant interest in the property as its sole registered proprietor;
Mrs Noble likely holds an equitable interest in the property;
Mrs Noble owns a separate property at Karrabin;
The property is the only income source for the respondent and his wife via rent and their only significant retirement asset;
The respondent suffered from untreatable illnesses;
Mrs Noble was an innocent party whose treatment of medical conditions was funded through rental income from the property;
The only connection between the offences and the property is that it was the physical place in which the offences occurred;
The above discretionary considerations outweigh the deterrent factor of a forfeiture order;
Deprivation of self-sufficiency through forfeiture is detrimental to society as it would have likely resulted in the respondent and his wife relying on welfare; and
The forfeiture must be proportionate with the offences.

At [34], Judge Crow stated that “there is no evidence to suggest there was any financial gain at all let alone substantial gain from involvement in the serious criminal offences.” However, at [71], his Honour said that “the agreed schedule of facts identified the number of trials such that the actual proceeds of crime is somewhere between $635 and $1270.” One must assume that his Honour considered “financial gain” to be profit and “proceeds” as income before business costs are subtracted. The point is not clarified in the reasons.

In weighing the competing factors Justice Crow determined that a forfeiture order would not be appropriate primarily due to issues of proportionality, the health and financial circumstances of the respondent and his wife, and the hardship that forfeiture would cause the elderly couple. The application was dismissed.

The decision provides a helpful discussion and application of the principles of criminal forfeiture to the difficult case. Unsurprisingly, such matters tend to raise much more complexity than might be imagined when such legislation is progressing through the Parliament.

Stephen Keim SC
Xavier Radnedge
9 April 2018

Australian Constitutional Law and Theory Commentary and Materials (7th ed)

The 7th edition of Blackshield and Williams Australian Constitutional Law and Theory Commentary and Materials recently published by Federation Press is a great book that will make a useful addition to any chambers’ library.

The previous edition was published in 2014 and the new edition incorporates recent developments such as the evolution of the implied freedom of political communication in McCloy v New South Wales (2015) 257 CLR 178; [2015] HCA 34 and Brown v Tasmania [2017] HCA 43. These new developments also include what the authors colourfully describe as the “veritable cavalcade of parliamentarians and candidates [who] faced disqualification under s 44 of the Constitution.”

The insightful commentary and incorporation of a wide range of constitutional scholarship is what sets this book apart from many others in the field.

The new edition maintains the status of this book as “much more than a casebook” as Sir Anthony Mason said of a previous edition.

At a recommended retail price of $110 it is remarkable value for money.

In short, this is a really useful, authoritative reference on Australian constitutional law for any practitioner’s library.

Publication details:

Authors: George Williams, Sean Brennan and Andrew Lynch

Published: 19 January 2018

Publisher: The Federation Press


Australian RRP: $110.00

Whither the Chief Justice?

The Supreme Court of the United States has been precariously balanced with four progressive justices; four conservative (translatable as “extreme right wing”) and one swing justice, Justice Kennedy.

The edge of the precipice concern is what would happen if the present president of the United States got to appoint another justice in place of one of the existing progressives. (Cross the road carefully, Justice Bader Ginsburg.)

This interesting piece by Linda Greenhouse, published in the New York Times, raises the thought, albeit, on scarce evidence, that Chief Justice John Roberts (to the left of Justice Stephen Breyer in the photograph, below) might already be moving his judicial position closer to the centre:

The Chief Justice’s position on crucial votes will be worth watching both in the near future and in the longer term.

R v Williams: Considerations in Sentencing Young Sex Offenders

R v Williams concerns appropriate sentencing for a young offender guilty of multiple counts of child pornography offences, threatening behaviour, and harassment.

By use of false identities, threats, and blackmail, Williams had manipulated and coerced the underage complainant into sending him more than 100 explicit photos and videos of herself. Williams had also threatened the sister and mother of the complainant in his pursuit of such images. At trial, the accused pleaded guilty to the offences which had occurred over a 13 month period whilst he was 17 and 18 years of age. The complainant during this time was 16 and 17 years old. Both Williams and the complainant lived in separate states and all communication had occurred online and through telephone.

At first instance, Williams was sentenced to three years imprisonment on the first count of using a carriage service to cause child pornography material to be transmitted to himself, and was sentenced to lesser periods of imprisonment for the remaining counts. The sentencing judge made an order under s 20(1)(b) of the Crimes Act 1914 (Cth) for Williams to be released on recognizance after serving seven months imprisonment.

On appeal, the applicant argued that the actual period of custody (seven months) was too severe and “manifestly excessive,” and did not take into account all the particulars of the offences. The applicant’s submissions proposed a period of three to four months. This was rejected by the Court of Appeal in a single unanimous set of reasons. Their Honours considered that the judge at first instance had taken into consideration the unique features of the offences, as well as the characteristics of Williams. They noted that the judge had also considered the complainant’s victim impact statements whilst balancing the possible detriment to Williams’ rehabilitation imprisonment may have.

The Court of Appeal considered five factors to be most important when deciding the sentence for Williams: the prolonged duration of the offences; the depression and anxiety caused to the victim; the fact that Williams was a youthful offender; the fact that Williams had no criminal history; and the possible adverse effects of jailing a youthful offender.

In arriving at these considerations, their Honours concluded that the trial judge had considered these factors and agreed with the decision in R v Leask that such offences bring with them a broad range of possible sentences. They found that the sentence fell within this range and that a distinction between the seven months imposed and the three to four months suggested by the applicant “smacks of the artificial.” The application for leave to appeal was rejected.

Stephen Keim SC
Xavier Radnedge
19 December 2017

Manus Detainees Win Procedural Battle in PNG Damages Claim

The now famous refugee journalist, Behrouz Boochani, heads up a claim by 731 asylum seekers on Manus Island for damages for breach of constitutional rights.

Procedural matters play a significant role in most litigation. The same is true of Mr. Boochani’s litigation.
The State of PNG brought an application for the Court to dismiss Mr. Boochani’s action for being outside a time limit to commence proceedings within 6 months of the alleged breach giving rise to the claim.

The proceedings were commenced on 4 November 2016. The State argued that the unlawful detention by the State had ceased on 27 April 2016, the date that the Supreme Court decision which, in earlier litigation, declared that detention on Manus Island unconstitutional and illegal was communicated to the detainees.

The State relied on the availability of a bus service travelling to and from Lorengau as evidence that detention had ended. The claimants relied on various circumstances that included the gates of the detention centre were still locked; travel on the bus were hedged around with the need for permits and other restrictions; and a prohibition of leaving the detention centre on foot or, otherwise, than by the bus service.

The gates were eventually unlocked on 12 May 2016. The Supreme Court held unanimously that the restrictions on the refugees’ constitutional rights continued until 12 May 2016. Therefore, the proceedings were within time when they were commenced on 4 November 2016, within the six months limit which would have expired on 12 November 2016.

The application to dismiss the proceedings was dismissed by the Court. The claim for damages for unlawful detention will continue.

Stephen Keim SC
Higgins Chambers
19 December 2017