A Family Court judge has rebuked the federal government for its “inordinate delay” in replacing retiring judges in an extraordinary speech calling for an urgent injection of funds to deal with a growing caseload.

Justice Stephen Thackray, who resigned as a judge of the Family Court’s appeals division amid a controversial shakeup of court administration, said judges worked “very much harder” than was reasonable and court staff had not received a pay rise in “four years and eight months”.

He said inefficiencies in the Family Court were caused by a range of factors, including a shortage of judges and registrars. Retiring judges were “either not replaced or replaced with inordinate delay”, he said.

Justice Thackray took aim at the “bizarre” family law structure in which jurisdiction is shared between the Family Court and the Federal Circuit Court, saying it “[confused] the hell out of everyone” because different rules and procedures applied in each court.

Attorney-General Christian Porter said on Friday: “Both the Family Court and Federal Circuit Court have a full complement of judges, with the most recent appointment to the Family Court announced on 15 March.”

He said he was “convinced that significant efficiencies and improved outcomes can be achieved by a range of reforms inside existing resources”.

Mr Porter said “decisions of substantive internal court management” were ultimately a matter for Chief Justice Pascoe and Chief Judge Alstergren and “my observation is they are bringing an unprecedented energy to making a more efficient family court system”.

Source : Sydney Morning Herald





After being quick to condemn police this week in the wake of a scathing report into the tasering of a driver in Fremantle, Western Australia’s Attorney-General has given an assurance the McGowan Government will pay two other taser victims more than $1 million in compensation.

The assurance from John Quigley comes despite his Government’s continuing legal action against the couple which, if successful, could leave them financially ruined.

Robert Cunningham and Catherine Atoms were awarded more than $1.1 million in damages — to be paid by the police officers and the WA Government — by District Court Judge Felicity Davis in December 2016.

They have spent hundreds of thousands of dollars on legal fees and medical bills since they were tasered after a night out in Fremantle in November 2008.

Their legal struggles over the past decade have left the couple suffering post-traumatic stress disorder and physical injuries, but they are still waiting for their damages payments.

One reason for the delay is that the WA Government is appealing against the damages decision of Justice Davis, which will be heard by the WA Supreme Court of Appeal next month.

But in an attack on how police investigate misconduct within the police force, Attorney-General John Quigley told the WA Parliament that he would ask the State Solicitor to consider whether criminal or disciplinary offences were committed by the three police officers.

He also suggested that taxpayers would pay Mr Cunningham and Ms Atoms’ damages.

“When that finding came out with a $1.1 million damages award that the taxpayers will ultimately have to pick up — I note it is under appeal, but the taxpayers are obviously going to have to foot the bill — the Police Department’s response on that occasion was that those people had been fully investigated and that, despite the judge’s findings against them, had been cleared,” he said.

A spokeswoman for the Attorney-General told the ABC his statements in Parliament constituted an assurance on behalf of the Government that compensation would be paid in full.

In the District Court case, the police officers and the WA Government took the position that they acted lawfully and fairly.

But Justice Davis found the three officers — Glenn Caldwell, Peter Clark and Simon Traynor — each acted maliciously and, along with the WA Government, were liable to pay damages.

Appeal argues Government’s liability

It could be difficult for the couple to receive damages from the police officers involved.

Court documents from last year said the three police officers were impecunious — meaning they had little or no money — while their appeal fell apart after they failed to pay security for their costs.

At the same time, the WA Government has appealed Justice Davis’s finding on the basis that it is not liable to pay the damages because, in a change from its earlier position, the officers acted maliciously.

Under section 137 of the Police Act, if officers have been malicious or corrupt, they are personally liable.

There is also discretion within the Act for the Treasurer to pay the damages if Mr Cunningham and Ms Atoms are unlikely to receive them.

But the couple could miss out if the WA Government is successful in its appeal and the Treasurer chooses not to exercise their discretion.

In a written response, Mr Quigley said the Government had not appealed Dr Cunningham or Ms Atom’s entitlement to damages or the amount of damages awarded.

Source : https://www.msn.com/en-au/news/australia/couple-tasered-by-police-in-fremantle-will-get-dollar11-million-in-damages-wa-attorney-general/ar-BBKAOKl?ocid=spartanntp

 





FAMILY LAW : S.121

Restriction on publication of court proceedings.

 

I have been having an ongoing debate as to whether S.121 applies to cases afoot in the Family Law Courts or does it extend indefinitely for the rest of the natural lives of the parties including the children when they become adults?

 

I, argue, that it only applies whilst cases are afoot, there is no blanket prohibition for all of eternity, as to have such a thing would require the wording of the Legislation to be crystal clear and unambiguous if there was such a prohibition, it would need to be written in express and clear terms, anything less than that from Parliament would not be enforceable for breach of the principle of legality.

There are a few formulations of the principle of legality, with relatively minor variations. In Re Bolton; Ex parte Beane (1987), Brennan J set out the principle in these terms:

 

Unless the Parliament makes unmistakably clear its intention to abrogate or suspend a fundamental freedom, the courts will not construe a statute as having that operation.[1]

In Attorney-General (SA) v Corporation of the City of Adelaide, Heydon J said:

The ‘principle of legality’ holds that in the absence of clear words or necessary implication the courts will not interpret legislation as abrogating or contracting fundamental rights or freedoms. For that principle there are many authorities, ancient and modern, Australian and non-Australian.[2]

 

In Lee v New South Wales Crime Commission (2013), Gageler and Keane JJ said that the application of the principle is not confined to the protection of rights, freedoms or immunities that are hard-edged, of long standing or recognised and enforceable or otherwise protected at common law. The principle extends to the protection of fundamental principles and systemic values.[3]

Having said that, in  practice, it seems abundantly clear, that there is an eternal prohibition and this post should not be considered as legal advice, nor even a legal position, but just a matter of curiosity….

FAMILY LAW ACT 1975 – SECT 121

Restriction on publication of court proceedings[4]

[1] Re Bolton; Ex parte Beane (1987) 162 CLR 514, 523. This was quoted with approval in Coco v The Queen (1994) 179 CLR 427, 437 (Mason CJ, Brennan, Gaudron and McHugh JJ).

[2] Attorney-General for South Australia v Corporation of the City of Adelaide (2013) 249 CLR 1, 66 [148] (Heydon J).

[3] Lee v New South Wales Crime Commission (2013) 302 ALR 363.

[4] FAMILY LAW ACT 1975 – SECT 121 Restriction on publication of court proceedings accessed here http://classic.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s121.html 14/02/2018 at 7.39pm.





Introduction

This paper examines ‘Phil’ the hypothetical lawyer who didn’t study international commercial law, which is not necessary to complete a law degree.  Phil didn’t know the United Nations Convention on Contracts for the International Sale of Goods ‘CISG[1] applied to a contract of sale based on Victorian law.

The CISG[2] has been adopted worldwide by 84 States[3] becoming the governing law globally, covering international sales of goods since the 1st of January 1988 and adopted in Australia, in all states and territories, since April 1st 1989[4].

Autonomous Application.

The CISG is autonomously applicable to all Australian transactions involving the sale of goods internationally by virtue of Article 1 (1) as a result of Australia being a contracting State.  The Convention, which is now part of the municipal law of Australia, is not to be treated as foreign law which requires proof as a fact[5], the Provisions of the Convention have the force of law in Victoria[6] and prevail over any other law in Victoria to the extent of any inconsistency[7].

Despite three decades of operation few cases have considered CISG in Australia.  According to the Pace Law School, Institute of International Commercial Law, that maintain a CISG database of cases, their Country Case Schedule (last updated on the 25th of January 2016) contains links to some 3,152 cases where Courts in Member states have considered CISG, of those only 26 cases from Australia get a mention[8], similarly searches on Australian Legal Databases produce few results.

Australian application of the CISG has been criticized as still in the Australian legal outback[9], with criticism extending to suggest Australian lawyers have paid the CISG inadequate attention to their clients detriment[10].

The criticism has been savage, “the CISG has not been fully understood”[11] and “it is fair to say that the CISG is scarcely known in Australia.”[12] One has to wonder what chance would an Australian client have with an Australian lawyer who is not well versed in CISG?

The Lawyer Who Doesn’t know Part I – Does CISG apply?

If Phil relied on his knowledge of Australian Contract Law when drafting, choosing Victorian Law as the agreed law that governs the contract and thus invoking the Goods Act 1958 (Vic) ‘GAV’,     he may unwittingly have put his client into a position where the contract is subject to the CISG first and foremost, with Australian law only filling any gaps.

This is because the GAV provides that the CISG has force of law in Victoria, and prevails over any inconsistencies[13]. Even if a lawyer tries to avoid the CISG in the pleadings the Court may still apply the CISG due to the lawyer pleading incorrectly inapplicable domestic laws.

This was evident in Downs Investments Pty Ltd v Perwaja Steel SDN BHD [2001] QCA 433[14] where the contract stated any dispute to “be settled by the laws prevailing in Brisbane”[15] yet it was held that the CISG applied, stating

“As the respondent was in Australia and the appellant in Malaysia it was held that The United Nations Convention on Contracts for the International Sale of Goods, made relevant by the Sale of Goods (Vienna Convention) Act l986, applied to the transaction. The learned trial judge held on the evidence that the appellant had fundamentally breached the contract and assessed damages pursuant to Articles 74 and 75 of the Convention.”[16]

Then in Perry Eng P/L (Rec And Man Appt’d) V Bernold AG No. SCGRG-99-1063 [2001] SASC 15 (1 February 2001) ‘Perry[17] where Perry already entered default judgement and the hearing turned to damages, the contract provided:

“The Contract shall be deemed to have been made in the State of South Australia and all matters relating directly or indirectly thereto or arising directly or indirectly there from shall be governed in all respect by the Laws of the State of South Australia and the parties submit to the exclusive jurisdiction of the State of South Australia Courts.”[18]

The Court however took a different view, stating “However, there is a further complication that the Sale of Goods (Vienna Convention) Act 1986 (SA) applies to the dealings between the parties but the relevant provisions have not been pleaded in the plaintiff’s statement of claim. The statement of claim has been drawn up on the assumption that the South Australian Sale of Goods Act applies. This seems to me to be fatal to the plaintiff’s ability to proceed to judgment based on damages for breach of contract.”[19]

In response Perry contended “that it was not necessary to plead the specific provisions of the Sale of Goods (Vienna Convention) Act”[20].  Reliance was placed on Roder Zelt v Rosedown Park[21] but, Burley J did not accept this and distinguished the cases stating “in my view that case is not authority for the proposition contended for by the plaintiff. The trial Judge, von Doussa J, did not complete the hearing of the matter and did not then indicate that it was unnecessary to plead the statute.”[22]

Therefore it is clear that Roder Zelt can be easily distinguished, as held by Brumby J above.[23]  Ultimately it was held “That being the case, the Court cannot proceed to an assessment of damages based on the provisions of an Act of Parliament which the plaintiff acknowledges do not apply to the claim pursued by the plaintiff.[24]  Phil just lost his client damages.

The Lawyer who doesn’t know Part II – Domestic Pleadings.

In the case of Ginza Pty Ltd v Vista Corp Pty Ltd[25]Ginza[26] ordered contact lens solution from Vista subject to compliance with the Australian Therapeutic Goods Administration (‘TGA’) regulatory requirements including that the goods were sterile.

The TGA discovered bacterial contamination in its random testing and ordered the goods recalled.

A dispute between the Seller and Buyer ensued with Vista suing for full contract price and Ginza countered that no payment should be due with claims for breach due to non-conformity, negligence[27] and claimed damages for lost profits and lost goodwill as well as costs of recall[28].

Merchantable Quality.

Ginza argued express terms of compliance with TGA regulatory requirements and sterility were a condition of the contract and in the alternative implied terms of “merchantable quality and fitness for purpose” applied pursuant to the Sale of Goods Act 1895 (WA) or the CISG[29].

The problem with such an argument is that “merchantable quality” is not a CISG term[30], it comes from Common Law and Domestic Legislation, which the CISG is above autonomously and any interpretation of the Contract, as it is covered by CISG, ought to be read in light of CISG Article 35(2)(a) and global case law.

In this case the appropriate standard is “fitness for purpose” which requires the goods to be of specific standards[31] and non-conformity under Article 35(1) which requires compliance with “quality, quantity and description”.

If it was not so clear cut and the distinction was drawn between merchantable quality in reliance upon domestic law as opposed to fitness for specific purpose which is a narrower standard under the CISG, Phil’s client could face a controversial matter.

Phil might erroneously find in Ginza a reason to cite a non-CISG case in support of an argument of contamination[32] however, as Barker J considered, any pleadings ought to be made in light of the CISG on cases of non-conformity[33] and with CISG case law available which specifically deals with the issue of contamination, non-conformity and whether there was an obligation to take the goods,[34] Phil would be in trouble if he doesn’t know this.

Reasonable Time

Another issue Phil needs to consider, is notification under the CISG, even if the item does not conform with the specifications in the contract, the CISG requires that the Seller be notified within reasonable time or the right to claim is forfeited[35].

The CISG has been adopted into domestic legislation and because domestic law forms part of the agreement and applies CISG to a transaction even if the opposing party is not a CISG country so long as the choice of law is Australia, CISG applies, as held in  Playcorp Pty Ltd v Taiyo Kogyo Ltd [2003] VSC 108 ‘Playcorp’[36].

It has been held that CISG applies unless expressly excluded as noted by Bridge, “[t]here seems to be hardening in favour of the view that choice of law clauses in favor of the law of a Contracting State do not exclude the CISG”[37].

The trend in Australia in Commercial contracts for international sale of goods has been to opt-out of the CISG which in many cases may not be in the best interests of the client, who would be better served had CISG been the operative law[38].

Services can be captured by the CISG

The CISG can apply to services, not just goods, a client represented by Phil may be surprised to find that they may be liable for breach of a service contract pursuant to the CISG in certain circumstances[39], this is provided for in Article 3.
If an Australian Client supplied substantial materials to the Seller to transform and sell back to the Buyer, this might attract the CISG as it may be held the buyer is liable for the transformative process to the degree the quality of the materials supplied affects the quality of the product.  Where the value of the goods exceeds a 50% maximum threshold for transformation services[40], under CISG the seller may avoid responsibility.

When the service component is completed in Australia, Phil didn’t know that Arbitration clauses can be avoided in service contracts in certain circumstances, pursuant to S.106 of the Industrial Relations Act 1996 (NSW) on the grounds of being an unfair contract in terms of the effect the contract has on the Industry norms[41].

Australian Consumer Law may not apply

Goods bought for personal use are excluded under the CISG, as are stocks, shares, negotiable instruments and money, also ships, aircraft and the supply of electricity are excluded, as are auctioned goods and goods sold on execution of authority of law under Article 2.2.3.

Phil faces another problem with Article 2.2.4, he may not think the Convention applies and find himself captured by it regardless, because it was not explicitly excluded.[42] His arguments on common law contract validity and the effect which the contract may have on property if the goods sold, are excluded by the CISG[43].

If Phil relies upon such Australian cases when ultimately the CISG is the prevailing law, he may be applying precedents that globally have been criticized and have valid International precedents[44] from CISG cases and other external sources[45] used against him.  Much of Phil’s argument could be struck out[46] of court.

Phil didn’t know that the Interpretation of Legislation Act (1984) s.35 is in conflict with the CISG and to the extent of the conflict the CISG prevails, for start, the CISG has it’s own interpretive provisions in Article 7 that require it to be interpreted in light of its international character and the need to promote uniformity and good faith in international trade.

Article 7(1) CISG “excludes recourse to methodological theories of interpretation of domestic texts”[47] meaning use of domestic law in resolving interpretation of text covered by the CISG is explicitly excluded.  You can’t use domestic law to interpret CISG.

Phil is thrust into the CISG world where autonomous[48] interpretation[49] as seen in Playcorp where even if the other contracting party is from a Country that is not a member state of the CISG it still applies as Part of Australian Law which governs the Contract.  In doing so CISG is lifted autonomously above the domestic law and prevails in the event of inconsistencies.  It is to be interpreted under three CISG directives.  Having regard to the CISG’s International Character, promoting uniformity in application, and promoting good faith in International Trade[50].

Good Faith

Australian contract law has struggled to come to terms with “good faith” as a contract term[51], yet the CISG requires it in International Trade.

As Australia’s contract law values freedom of contract and economic independence, the High Court recently cast doubt upon whether good faith is an automatic term in contract law.[52]

However, in Australia, such an implied term appears to conflict with fundamental notions of caveat emptor that are inherent (statute and equitable intervention apart) in common law conceptions of economic freedom. It also appears to be inconsistent with the law as it has developed in this country in respect of the introduction of implied terms into written contracts which the parties have omitted to include.”[53]

“Good Faith” is not implied into a contract in Australia as it is with CISG, Phil might argue that good faith is not part of the contract as it is too vague and uncertain[54] as is the Australian position and that his client’s legitimate interests were being protected, which is not in breach of an express contractual term. Which in Australian contract law, he may be right, but here with CISG being the dominant law, that argument would fail.

Phil may find acting in good faith, in CISG terms, involves both parties acting in good faith, to each other, to the point of minimizing damages of the other party as much as favoring the party acting in its own “legitimate interests”,[55] to be seen as good faith.  To do an act that knowingly a party ought to realise is foreseeable to cause harm would be considered a breach of that good faith.

It would be easy to fall into the trap of relying on the Queensland decision of Downs Investments Pty Ltd (in liq) v Perwaja Steel SDN BHD [2002] 2 Qd R 462 ‘Downs’, which itself misinterpreted the application of the CISG in common law terms citing erroneously non-CISG cases of Robinson v Harman (1848) 1 Ex 850 and Hadley v Baxendale (1854) 9 Ex 341 ‘Hadley’ instead of focusing on Article 74 and International cases.  It’s a published decision that forms part of our Common Law after all.

However, CISG can be distinguished from our Common law in that Article 74 focuses on damages, and limits to it, to actual damages and lost profits for breach, and then limits it further to foreseeable damages which ought to have been known, the CISG views things from the perspective of the breaching party unlike our Common law and the cases cited in Downs which examines the ‘contemplation’ of both parties[56] this would not assist in a CISG argument.

To make things worse now for Phil, CISG Article 73 defines foreseeability as a ‘possibility’ whereas he relies on Common law in Hadley requiring ‘probability’. A significantly different standard of foreseeability, with ‘probability’ requiring the additional level of an objective reasonable person test of whether or not on the balance of probabilities it was more likely to happen, than not, that it is ‘probable’ that the event would occur.

Phil is in difficulty if his client is the one doing the breaching, the plaintiff just needs to prove that is was foreseeable, that it was possible, while Phil may argue to the wrong standard and cost his client avoidable damages.  Had Phil known the Court was obligated to determine the matter on CISG Jurisdiction, he may have submitted additional evidence to counter the foreseeability to a possibility standard.

Phil sees a case based on Victorian Law and relies upon the Goods Act (Vic) 1958 which requires that the goods be of a merchantable quality, where as now he finds himself in CISG Jurisdiction which requires fitness for intended purpose.

The higher standard of specific purpose requires that the seller disclosed to the buyer the specific purpose that the goods would be used for and required that the Seller confirm that the goods could meet that specific purpose as opposed to a merchantability standard, which just requires that the goods are fit for the general purpose they are intended for.

So while Phil argues that the goods the seller supplied were of merchantable quality, the buyer doesn’t care.  If the buyer asked can I use your microwave oven to melt glass safely? If the seller said yes, then it matters not that the microwave works perfectly for its general purpose it was intended for, if it can’t melt glass, it is not fit for the purpose.

In Conclusion;

Phil has a lot to learn.  A Corporate client with Phil as a lawyer would certainly be disadvantaged, a lawyer who has not studied CISG and International Commercial Law would be ill-equipped to advise a client on even drafting a contract, let alone litigating a dispute based on one.   Any commercial transactions in Australia involving the sale of goods internationally would need an experienced International Commercial Lawyer who is well versed in CISG.   As Australian Courts play catch up, they may entertain Phil and his arguments for a while, but if the dispute turned on application of the letter of the law, the Australian Courts will be obligated to follow the CISG and its application as a higher law when it comes to international contracts for the sale of goods.

Postscript

You can begin to appreciate the value in having a lawyer trained in CISG, similarly so, you ought to ensure, if you have a problem, that your Mediator is also experienced and trained in CISG and International Commercial Law.

What does your mediation clause state in your contract?  Does it provide for mediation by a Nationally Accredited  CISG Mediator?  How can you mediate what you don’t understand?

Footnotes:
[1] United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 ‘CISG’.

[2] Ibid.

[3] CISG: Table of Contracting States, accessed at http://cisg.law.pace.edu/cisg/countries/cntries.html on 02/01/2018 at 1.27pm.

[4] Sale of Goods (Vienna Convention) Act 1987 (Vic) (repealed) now found in the Goods Act (Vic) ‘GAV’ S.85, Sale of Goods (Vienna Convention) Act has also been incorporated into all other States and Territories and the Trade Practices Act 1974(Cth) S.66a, now found in Competition and Consumer Act (Cth) 2010 – Schedule 2 The Australian Consumer Law, s.68.

[5] Roder Zelt and Hallenkonstruktionen GMBH v Rosedown Park Pty Ltd. (1995) ACSR 153, op cit.

[6] GAV S.86.

[7] Ibid S.87.

[8] CISG Database Country Case Schedule accessed at http://cisg.pace.edu/cisg/text/casecit.html on 02/01/2018 at 1.35pm.

[9] Spagnolo, L., “The Last Outpost: Automatic CISG Opt Outs, Misapplications and the Costs of Ignoring the  Vienna  Sales  Convention  for  Australian  Lawyers” (2009)  10 Melbourne  Journal  of  International Law 141, at p.142.

[10] Ibid, David Fairlie, ‘A Commentary on Issues Arising under Articles 1 to 6 of the CISG’ (Paper presented at the United Nations Commission on International Trade Law (‘UNCITRAL’) and Singapore International Abitration Centre Joint Conference, ‘Celebrating Success: 25 Years United Nations Convention on Contracts for the International Sale of Goods’, Singapore, 22–3 September 2005).

[11] Benjamin Hayward, “The CISG in Australia–The Jigsaw Puzzle Missing a Piece” ‘Benjamin’, citing Zeller,

B., “Traversing International Waters” (2004) 78(9) Law Institute Journal 52, at p352.

[12] Ibid citing Finn, Justice P., “National Contract Law”, supra fn 7, at p.9.

[13] GAV S.85-87.

[14] Downs Investments Pty Ltd v Perwaja Steel SDN BHD [2001] QCA 433.

[15] Ibid at 21.

[16] Ibid at 2.

[17] Perry Eng P/L (Rec And Man Appt’d) V Bernold AG No. SCGRG-99-1063 [2001] SASC 15 (1 February 2001) ‘Perry’.

[18] Ibid at 15.

[19] Perry at 16.

[20] Ibid at 17.

[21] Roder Zelt-und Hallenkonstruktionen gmbh v Rosedown Park Pty Ltd & Anor [1995] FCA 275; 13 ACLC 776.

[22] Perry at 17.

[23] Ibid.

[24] Perry at 18.

[25] Ginza Pty Ltd v Vista Corp Pty Ltd  [2003] WASC 11 (Unreported, Barker J, 11 January 2003) ‘Ginza’.

[26] Ibid.

[27] Ginza at [12]–[13], [16]–[18]. A related action between Ginza and a corporation related to Vista, Kontack Pty Ltd was consolidated with this action. Counterclaimed commission fees were admitted and are not relevant to the current discussion: see ibid [20].

[28] Ibid at [21], [214]. On damages for loss of goodwill under art 74.

[29] Ibid at [13], [16].

[30] Ibid at [190].

[31] Ibid at [124], [153].

[32] Ginza at [131], [152].

[33] ICC Award No 6653 of 1993 (1993) (22 per cent of steel bars outside specified weight tolerances); Engines for Hydraulic Presses and Welding Machines Case (Landgericht Düsseldorf, Germany, 23 June 1994) and ICC Award No 8740 of 1996 (coal contained 20 per cent rather than specified 32 per cent dry matter).

[34] International Flavors & International Flavors & Fragrances Inc.  IFF & Fragrances (Netherland) B.V. v Ramon Sabater SA heard in the Spanish Court of Appeal Audiencias Provinciales May 24, 2012.

[35] Spagnolo, Lisa — “The Last Outpost: Automatic CISG Opt Outs, Misapplications and the Costs of Ignoring the Vienna Sales Convention For Australian Lawyers” [2009] MelbJlIntLaw 10; (2009) 10(1) Melbourne Journal of International Law 141, A maximum time of two years for notice is imposed by art 39(2) of the CISG. However, normally a much shorter period is imposed by the requirement that notice be given within a ‘reasonable’ time: see  Model Locomotives Case (Kantonsgericht Schaffhausen, Switzerland, 27 January 2004) §3c (reasonable time in art 39 depends on the type of goods); Person of Greece v Ed Fruit and Vegetables BV (Rechtbank Breda, Netherlands, 16 January 2009) [3.12] (watermelons subject to decay, inadequate notification if not within days).

[36] Playcorp Pty Ltd v Taiyo Kogyo Ltd [2003] VSC 108 ‘Playcorp’.

[37] Benjamin at 201, Footnote [63]-[65].

[38] Lisa Spagnolo, The last Outpost: Automatic CISG Opt outs, misapplications and the costs of ignoring the Vienna Sales Convention for Australian Lawyers, Melbourne Journal of International Law, Vol.10, ‘Spagnolo’.

[39] Ibid, Footnote [82].

[40] Ibid, Footnote [83]-[90].

[41] Metrocall Inc v Electronic Tracking Systems P/L (2000) 52 NSWLR 1.

[42] Olivaylle Pty Ltd v Flottweg GMBH & Co KGAA (No 4),  [2009] FCA 522; (2009) 255 ALR 632,  “CISG was excluded by the words ‘Australian law applicable under exclusion of UNCITRAL law’ at [28].

[43] CISG Article 2.2.4(b).

[44] Benjamin Hayward, The CISG’s place in Australian Law – An incomplete jigsaw puzzle, The jigsaw puzzle missing a piece (2010) 14 VJ 193 – 222 at 211, ‘Benjamin’ at 222.

[45] Ibid.

[46] Spagnolo Pg.55, 57.

[47] Spagnolo at 211., Schlechtriem, P.,  “Article  7” in  Schlechtriem,  P.and  Schwenzer,  I.(eds),Commentary  on  the  UN Convention on the International Sale of Goods (CISG), 2ndEnglish ed, 2005, Oxford University Press, New York, p.93, at p.96, para.12.

[48] Benjamin at 211.

[49] Playcorp Pty Ltd v Taiyo Kogyo Ltd [2003] VSC 108 (Unreported, Hansen J, 24 April 2003) at 235.

[50] Ibid.

[51] Marcus S. Jacobs QC, Professor Katrin Cutbush-Sabine, Philip Bambagiotti The CISG in Australia-to-date: An illusive quest for global harmonisation?” at 9.2, accessed at https://www.cisg.law.pace.edu/cisg/biblio/jacobs2.html#35 on 01/09/2018 at 8.58pm, ‘Marcus’.

[52] Ibid at 9.4.2 citing Royal Botanic Gardens & Domain Trust, v South Sydney City Council,[41] Kirby J.

[53] Ibid.

[54] Aiton v Transfield [1999] NSWSC 996 (1 October 1999).

[55] South Sydney District Rugby League Football Club Ltd v News Ltd & Ors [2000] FCA 1541 (3 November 2000) at [393, 394].

[56] Benhamin citing Spagnolo, L., “The Last Outpost”, supra note 6, at p.178.





Domestic Violence Statistics & Family Law ~ By Mishka Hudson

Mishka Hudson – The Legend.

As the recent chief justice Bryant stated in the Australian published Oct, 2017, I agree the Family Court should be scrapped[1], but despite her reasoning being delays, my views are that the system is simply not fit for purpose as the majority of Australian cases (72%), involve some level of family violence[2]. This court is not equipped to adequately investigate complex matters involving family violence[3].

 

Issues and Statistics re women losing custody after raising family violence and abuse

In the Leadership Council’s report[4];

Mothers alleging domestic violence only received primary physical custody 35% of the time[5] as detailed in Saccuzzo, D. P., & Johnson, N. E. (2004). The leadership Council also agreed that this research supported that lawyers may well be justified in informing victims not to disclose abuse to mediators or they are more likely to receive less favourable custody arrangements.

The leadership council also referenced Chesler, P. ,(1991, 1986)[6], involving a study of 60 cases where fathers were more likely to gain custody, (p.65) and more than 59% of these fathers were found to have abused their ex-patners.

Faller & DeVoe, (1995), conducted research at a uni-based clinic where they analysed 214 cases where sexual assault was alleged. They found that the more substantiated the claims were, the more likely negative sanctions, ( such as jail, loss of custody to the alleged offender, ‘gag orders’,  and prohibitions against taking the child to an external specialist, because of concerns about sexual abuse), were applied by the court on the protective parent[7], Faller, K. C., & DeVoe, E. (1995).

Polikoff, (1992), Found that judges evidence a strong “paternal preference” in contested custody cases. Sole custody was awarded to the father in 50-63% of cases.

The American Psychological Association. (1996), found that fathers are often awarded sole custody even when their sexual and physical abuse of the children is substantiated. The American Judges Association, state that 70% of the time the abuser convinces the court to give him custody[8].

………………………………………………………………………………………………………………………………..

As the AIFS noted in their July 2013 report “Violence, abuse & the limits of shared parental responsibility”, the adversarial approach has “too much policy-based evidence and too little evidence-based policy”… and the most pertinent issue is neatly summed up through their observation of the advocate stance; A major argument has been that the involvement of both parents in children’s lives increases the risk of violence against women. That is an issue of great importance. But the middle ground is to be found in articulating more clearly the circumstances when parenthood ought to be dissoluble, rather than resisting the historic transformation in the law of parenting after separation”.

Let us remember that the 2006 amendments creating a presumption of equal shared parental responsibility, does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in abuse of the child or family violence (Family Law Act 1975, s 61DA). The family court appears to disregard or at least inadequately attend to this potentially protective piece of legislation.

Primary considerations

The benefit of meaningful contact with both parents should be consistent with the need to protect from harm, (s.60B (1)(b)). Greater weight should be given to protecting children over contact.

In addition 60CG provides that:

In considering what order to make, the court must, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration, ensure that the order … does not expose a person to an unacceptable risk of family violence[9].

Despite the above, the history of violence and child’s fears, views, voice and risk are consistently, not adequately recognised or managed. My view is this is largely due to the lack of impartial, empathetic and adequately qualified family violence and abuse experts. It is poor practice to assume that legal professionals have a clue about how to manage these issues. Court report writers have similar issues and the need for improved training and expertise has been noted in the recent parliamentary final report into a better family law system to support and protect victims of family violence[10] However, let’s not kid ourselves with any improvement in this area, this inquiries verbal submissions exposed that out of the 10.7 million allocated to introduce more report writers to the family court this year, a pathetic 180K has been set aside for training.

Dismissal of family violence reports as reported in the parliamentary inquiry final report[11]

The parliamentary inquiry final report noted that reports are either dismissed or viewed with suspicion and quoted the DV crisis service, (Submission. 29, p. 3);

“We are still being told by women that their lawyers warn them about raising

abuse allegations and are pressured to sign consent orders they fear will

endanger their children. Victims are still finding that both their disclosures

and those of their children are diminished or disbelieved”.

 

Jannawi Family Centre were quite insightful in the same report in their submission, (no.51, p.4-5), and highlighted that the family law system ‘fails to listen’ to reports of family violence, especially by children, and most significantly fails to identify how trauma impacts this disclosure…”The lack of recognition of the way complex trauma impacts on brain functioning, particularly memory and the ability to provide significant recall is a barrier to disclosing. This is then further exacerbated by a system which may not believe, or discredits disclosures. It appears that disclosures are viewed as a tactic to prevent contact

or that children have been coached and this is a dangerous starting point”.

The neuropsychological and verification process required to identify this was highlighted thorough the Australian Paralegal Foundation’s submission (no. 8).

 

Professor Rachael Field, Ms Zoe Rathus AM, Dr Samantha Jefferies, and Dr Helena Menih presented research to this inquiry which concluded that family reports can re-frame and re-name family violence and perpetrator coercive control as inconsequential to contact, and attack the credibility of protective women labelling them as manipulators. They also noted the selective silencing and reconstruction of the child’s views. I strongly state that his false paradigm obviously has repercussions on how the court views parental capacity and harms a protective parents request for contact. This was also noted by the National Child Protection Alliance, (Sub.5, pg 4), the Women’s Legal Service Queensland, (Sub. 81, p. 19).

 

Victim respondents to this inquiry included observations that their claims were ‘dismissed’, ‘ignored’, minimised without due consideration to risk, deemed to have no bearing on the outcome, and were managed without empathy or due consideration.

 

Do stakeholders seriously believe that protective parents would endure the emotional and financial cost of family court just to vexatiously make up claims against their ex for no valid reason? Parents are losing thousands, their homes, often experiencing ptsd due to secondary system abuse. Some are put in prison or psych wards for their convictions. Children in Australia and abroad have been put in psych care and medicated, rather than consent to unacceptable risk. This is not okay. It is absurd to consider that a significant proportion of protective parents are anything but seriously concerned about the risk presented to their children.

 

The small minority that do waste the courts time with fabrications should feel the force of contempt laws which are apparently, in my view, currently reserved for protective parents. Any parent that denies their child the benefit of a meaningful relationship with the other parent, for reasons other than genuine protection, needs to understand that they are harming their child’s development and sense of self to their core, and the impact of this will be lifelong. This is absolutely not acceptable; the child deserves the best of both parents, in a safe, nurturing environment.

 

That said, for those that still feel ALL protective parents manipulate for contact consider this…

Opinions such as Judge Colliers minimising the claims made by protective parents are part of the reason many violent parents are able to commit further family violence through access. His view is not aligned to research done by the Leadership Council in the USA which has consistently shown that false allegations of sexual abuse are rare and that children tend to understate rather than overstate the extent of any abuse experienced.
Gardner’s (1999) theory of ‘parental alienation syndrome’ , is not supported by  sound research and has been used to support the concept that this type of alienation is used through methods such as fabricating allegations for advantage in disputes. This is NOT supported by the reality in most cases.
The Australian Institute of Family Studies highlights an analysis of 10 years of reports of sexual assault, (Lisak et al)., and found the actual figure of false reports to be around 2%-10%. The higher percentage included inconsistencies in data collection, including police reports where crime was detected but not proceeded with.
Current practice in the Family Court which does not adequately identify or protectively manage family violence and abuse, often encourages the SILENCING of GENUINE PROTECTIVE PARENTS. This puts the safety of children at risk by promoting access arrangements which favour an abuser.

The parliamentary report discussed highlighted, (pg 90/91), that a number of submissions noted that families are frequently advised by lawyers and barristers, not to raise issues involving family violence, as it may harm their case. This is common knowledge among many in the legal profession[12] and is often noted by victims and reported to many advocates[13].

The Safe Steps Family Violence Response Centre, (sub. 34, p.8)., quoted Emeritus Professor Rosalind Croucher AM[14], who described the legal, ethical and risk issues involved with disclosure involving the interconnected systems of child protection and family court. She explained how child protection services required the mother to act protectively, or risk losing custody/parental authority of the child. Family law proceedings conflict with this paradigm in practice, when the mother is not viewed as a friendly co-parent where she makes claims of abuse, withholds protectively or attempts to have supportive independent reports admitted to file.

(This is often despite providing evidence meeting the balance of probabilities supporting past abuse, current and future risk, or even a historic criminal standard of evidence, contrary to the FLA, principles which actually don’t hold this minimal probabilities standard).

The consequence of this is often coerced consent. The mum is forced to support a ‘meaningful relationship’ with the perpetrator of abuse, or risk losing custody. The Australia’s National Research Organisation for Women’s Safety, (ANROWS), (Sub.73, p.11)., informed that many women are coerced onto high risk ‘consent’ orders to minimise the risk of full residency with the unsafe parent. The concession is that at least the protective mum may prevent risk for ‘some’ of the time as opposed to not at all.

It is therefore not surprising that sexual assault is rarely raised in Family Court, as noted by the Sexual Assault Support Service, (Sub. 32, p. 5) who referenced the Australian Law Reform Commission, (ALRC), finding that legal representatives may be ‘reluctant’ to inform the Court of sexual assault[15].

 

If there is any doubt re the credibility of the family court’s investigative process , I invite you to read the following article showing strong views from a paediatrician and psychologist;

`Never again’: Paediatrician David Wood and psychologist Susan Aydon, in Brisbane yesterday, discuss problems with the Family Court

The Australian, Edition 1 –

All-round Country MON 29 AUG 2005, Page 001

Family Court `Putting Children Last’  By: Tony Koch

Some of Queensland’s most respected medical experts have joined the growing list of specialists refusing to become involved in Family Court litigation, warning that their evidence is being ignored. They have written to Family Court of Australia Chief Justice Diana Bryant, saying they will no longer be involved in an adversarial system that they say fails to have the best interests of children at heart.

Last April, David Wood, chairman of the College of Physicians in Queensland, wrote to Justice Bryant detailing his long held concerns about the Family Court. Those concerns were confirmed by the court’s treatment of him and other specialists at a custody hearing where an eight-year old girl alleged sexual abuse by her father, before he successfully obtained custody of her and her 12 year old brother.

The case was also a defining moment for Sue Aydon, a clinical psychologist with 29 years’ experience working with children, and child psychiatrist Brian Ross, both of whom were involved as experts. Dr Wood, who is also chairman of the Abused Child Trust in Queensland and chairman of its national body, Kids First Foundation, said the bullying he received at the hearing had left him refusing to see patients whose case could end up in the Family Court. He also refused requests by lawyers to provide second opinions for the court. “I know a number of medical experts who have adopted this approach –that they are not prepared to be part of an adversarial game that seeks just to discredit them so the parent with the most aggressive and expensive lawyer wins,” said Dr Wood, who is also director of paediatric health services at Brisbane’s Mater Hospital. This is a Family Court that should be looking at the best things for children. This is not about the parents. It is about children, and I do not believe the current system cares about, or seeks, that outcome.” Dr Wood also questioned lawyers’ aggression and tactics in the court. “In a recent matter in which I was involved I actually fainted in the witness box and they had to call an ambulance,” he said. Dr Wood also said that copies of file notes he had taken concerning two children “were destroyed by the solicitors acting for the father the day after I handed them over to them, so they were never presented to the court and the judge had no idea what was contained in them”. Ms Aydon said she would “never again” appear in the Family Court. “I have actually said I would not see any child patients anymore because so many of those cases end up in the Family Court,” Ms Aydon said. “We get totally vilified in court, get no chance to explain why we have used certain techniques with the kids, and there is no understanding in the court of what we are trying to do.’

For two years, Ms Aydon treated the two children involved in the case about which Dr Wood wrote to Justice Bryant, and she said she was astounded that nobody involved spoke to the children -not the court -appointed children’s representative, nor counsel for either parent, and they were not called to give evidence. ` `Children have no rights in the Family Court despite the rhetoric that they operate in the interests of the child,” Ms Aydon said. Dr Ross said the legal system sought to “dismantle any kind of medical credibility”. “The result is that sometimes kids end up in places where they should not. I deliberately avoid and do not see cases I think will end up in the judicial system because I don’t trust it,” he said. In the case in question, the mother involved in the litigation spent nearly $600,000 in her unsuccessful attempt to keep custody of her two children and restrict her former husband’s unsupervised access. She gave evidence for three days, and on the morning of the second day of her testimony was approached by her solicitor who demanded she sign a document mortgaging her home to the legal firm or they would withdraw from the case. The Child Support Agency has since notified the mother, a dentist, that she must pay her former husband $1700 a month in child maintenance. However, when she had the children until last June, the husband, who told the court his computer business earned more than $2 million a year, paid $20 a month to her for child support. On June 27, Justice Bryant’s chief of staff responded to Dr Wood’s letter, saying the Family court was ` `working towards developing new policies and programs to give children a greater voice in family law processes and to reduce the impact of disputation on children”. A spokeswoman for the Family Court said last night the Chief Justice was not in a position to comment.

http://www.kidsindistress.org.au/never%20again.pdf

So in 2005, the now retired Justice Bryant’s chief of staff said they were going to give children a greater voice….the final inquiry report, discussed through this paper supports that they are still waiting.

Further media response;

Paper: Weekend Australian (Australia), page 10

Title: Doctors’ anger at Family Court. Author: Tony Koch

Date: September 10, 2005

MEDICAL experts who accused the Family Court last week of not caring about children yesterday blasted Chief Justice Diana Bryant for releasing a judgment critical of their evidence. Brisbane psychiatrist Brian Ross said the court’s reaction “highlighted the perversity of a system that didn’t get the truth”. Dr Ross said the mother involved in a custody battle over two young children had been a patient of his for three years, and for the court to accuse her of being vindictive against her former husband was “a blatant misrepresentation of the truth”. “She had no agenda. Her issue was to be protective of her children,” Dr Ross said. “She would not have risked the care of her children to get back at her husband, and to alienate her is an abuse.” Justice Bryant made the unusual order to allow publication of the judgment, with the names of the parties excised, but the expert witnesses -three of whom criticised the Family Court –named “to enable some sense to be made of the judgment as a whole”. Justice Bryant said an article quoting the medical experts, published in The Australian last week, allowed readers to form the view that the Family Court failed to have regard for the best interests of children and allowed medical witnesses to be bullied and discredited by aggressive lawyers. In an 81-page judgment on June 10, judge Neil Buckley decided that a girl,8, and a boy, 12, should be taken from their mother and live with their father .Justice Buckley was not satisfied that allegations the father had sexually abused his daughter were proven, or that there was an unacceptable risk for the children in living with or having unsupervised contact with the father ,Justice Bryant said. “He rejected the opinions of these issues expressed by Dr Wood and Ms Aydon. On this issue, it is fair to say, however, that his honour’s rejection of their evidence had more to do with the rejection of the mother’s evidence and its underpinning of the experts’ views than the expertise of the expert witnesses themselves,” she said. Justice Bryant said public confidence in the Family Court, as in all courts, was vital. “It is in the interests of public confidence in the court for the public to be made aware, if that is possible, of the judgment, and in response to the main thrust of the article, namely that the Family Court puts children last.” The witnesses included David Wood, Queensland chairman of the Australian College of Paediatrics and the Abused Child Trust, and clinical psychologist Sue Aydon. Dr Wood said assertions by the court that he and other medical experts were biased in favour of the mother were absurd. “Our role and whole history of our careers is to represent the children, our patients,” Dr Wood said. “The court was not interested in getting information on the children. They were interested in discrediting me, and there was no attempt to right the balance by counsel including the children’s representative, the mother’s or father’s lawyer or the judge. “This treatment is precisely the reason why so many medical experts refuse to have anything to do with the Family Court.”

I have documented numerous lists of cases where custody was awarded to an undisputed violent or predator perpetrator. The family court has identified that risk factors in these cases are low enough to permit contact. This certainly is not consistent with the reasonable man test or basic community standards.

I also have lists of dozens of children murdered post proceedings after, in my view, inadequate attention to risk and safety precautions. A list the family court has not bothered to review to inform and improve practice. (I am grateful and give thanks to a brilliant barrister who has diligently provided these records).

In my view, the family court is an industry that grossly misrepresents itself, as having adequate capacity to determine and manage risk factors, post separation. Let us stop pretending that mistakes made are due to poor legal representation. It is my view that the discretion afforded to the application of law, denial of due process[16], adversarial culture, inadequate report writer expertise and ignorance of safety, which is absolutely destroying children. This I believe, festers a toxic environment of misfeasance, malfeasance and unacceptable risk. The rising calls from united advocacy groups for a Royal Commission, indicates that this is a broken system of epic proportions.

 

It may be useful to replicate the New York Chief Justice Judith S. Kaye’s 1997 announcement where he stated that; “Sunshine is good for children” when he opened the State’s court doors to scrutiny and media. This transparency facilitated much accountability, review and reform[17].

Footnotes:

[1] Outgoing family chief justice Bryant in push to reform sourced at http://www.theaustralian.com.au/business/legal-affairs/outgoing-family-court-chief-justice-bryant-in-push-to-reform/news-story/19bdab6d02808550ae3a8f4cadc6c5b1 as published on 06/10/2017, sourced online on 08/01/2017
[2] Domestic violence a factor in 72pc of family law cases, the lowest in the country, new figures reveal, ABC news Mon 18 Apr 2016, 10:47 AM AEST, sourced at http://mobile.abc.net.au/news/2016-04-18/domestic-violence-a-factor-in-72pc-of-family-law-cases/7334150 on 08/01/2017
[3] Diana Bryant’s funding plea, The Australian, on 30/03/2016 at https://www.google.com.au/url?sa=t&rct=j&q=&esrc=s&source=web&cd=2&cad=rja&uact=8&ved=0ahUKEwia_OnLssbYAhWIx7wKHcJsDDsQFggtMAE&url=http%3A%2F%2Fwww.theaustralian.com.au%2Fbusiness%2Flegal-affairs%2Ffamily-court-chief-justice-diana-bryants-funding-plea%2Fnews-story%2Fc9d5d6b8128f4e4010a12f56fd1dac85&usg=AOvVaw1n_45I9DYn46rrEFL7-4XP as sourced on 08/01/2017
[4] Are "Good Enough" Parents Losing Custody to Abusive x-Partners? By Stephanie Dallam ,for the Leadership Council on Child Abuse & Interpersonal Violence. Sourced at http://www.leadershipcouncil.org/1/pas/dv.html on 08/01/2018
[5] Saccuzzo, D. P., & Johnson, N. E. (2004). Child custody mediation’s failure to protect: Why should the criminal justice system care? National Institute of Justice Journal, 251, 21-23.
 Available at http://ncjrs.org/pdffiles1/jr000251.pdf[6] Chesler, P. ,(1991, 1986)[6]., Mothers on Trial: The Battle for Children and Custody. NY: Harcourt Brace Jovanovich, Publishers.
[7] Faller, K. C., & DeVoe, E. (1995). Allegations of sexual abuse in divorce, Journal of Child Sexual Abuse, 4(4), 1-25.
[8] Report of the American Psychological Association presidential task force on violence and the family. American Psychological Association., (1996) . Washington, DC : Author.  Available at http://www.apa.org/pi/pii/familyvio/issue5.html [9] Australian Institute of Family Studies sourced at https://aifs.gov.au/publications/family-matters/issue-92/violence-abuse-and-limits-shared-parental-responsibility on 07/01/2017
[10] A better family law system to support and protect those affected by family violence Recommendations for an accessible, equitable and responsive family law system which better prioritises safety of those affected by family violence, House of Representatives Standing Committee on Social Policy and Legal Affairs, © Commonwealth of Australia ISBN 978-1-74366-727-9 (Printed Version) sourced at http://parlinfo.aph.gov.au/parlInfo/download/committees/reportrep/024109/toc_pdf/Abetterfamilylawsystemtosupportandprotectthoseaffectedbyfamilyviolence.pdf;fileType=application%2Fpdf on 07/01/2017
[11] A better family law system to support and protect those affected by family violence Recommendations for an accessible, equitable and responsive family law system which better prioritises safety of those affected by family violence, pages 90-92/411, House of Representatives Standing Committee on Social Policy and Legal Affairs, © Commonwealth of Australia ISBN 978-1-74366-727-9 (Printed Version) sourced at http://parlinfo.aph.gov.au/parlInfo/download/committees/reportrep/024109/toc_pdf/Abetterfamilylawsystemtosupportandprotectthoseaffectedbyfamilyviolence.pdf;fileType=application%2Fpdf on 07/01/2017
[12] As described in the AIFS study; Bagshaw et al.,(2011), The effect of family violence on post-separation parenting arrangements. The experiences and views of children and adults from families who separated post-1995 and post-2006, Family Matters No. 86 - March subtitle; Disclosing violence, sourced at https://aifs.gov.au/publications/family-matters/issue-86/effect-family-violence-post-separation-parenting-arrangements on 08/01/2017[13] National Child Protection Alliance,Submission 5, (p. 3); Women’s Legal Services Queensland, Submission 81, (p. 19)., and victims statements in box 3.2, page 91, in the parliamentary report; A better family law system to support and protect those affected by family violence Recommendations for an accessible, equitable and responsive family law system which better prioritises safety of those affected by family violence, pages 90-92/411, House of Representatives Standing Committee on Social Policy and Legal Affairs, © Commonwealth of Australia ISBN 978-1-74366-727-9 (Printed Version) sourced at http://parlinfo.aph.gov.au/parlInfo/download/committees/reportrep/024109/toc_pdf/Abetterfamilylawsystemtosupportandprotectthoseaffectedbyfamilyviolence.pdf;fileType=application%2Fpdf on 07/01/2017
[14] Emeritus Professor Rosalind Croucher AM, ‘Family Law: Challenges for responding to family violence in a federal system’, 
Families, policy and the law: Selected essays on contemporary issues for Australia, Australian Institute of Family Studies, May 2014, <https://aifs.gov.au/publications/families-policy-and-law/21-family-law-challenges-
responding-family-violence-federal>.
[15] Sexual Assault Support Service, Submission 32, p. 4; see also Australian Law Reform Commission and New South Wales Law Reform Commission, Family violence – A national legal response, ALRC Report 114/ NSWLRC Report 128, 2010, p. 1124.
[16] Bemiller, Michelle. (2008). When Battered Mothers Lose Custody: A Qualitative Study of Abuse at Home and in the Courts. Journal of Child Custody, 5(3/4), 228-255.
[17] Women’s credibility doubted in many family courts, author; Victoria Graham, 28/10/2001, Women’s news.

Sourced at http://womensenews.org/2001/10/womens-credibility-doubted-many-family-courts/ on 08/01/2018




ARE YOU AN INDEPENDENT CONTRACTOR OR AN EMPLOYEE?  SOMETIMES EVEN THE COURTS SEEM TO STRUGGLE TO ANSWER THIS QUESTION.

Fair Work Ombudsman ‘FWO’ v Quest South Perth Holdings Pty Ltd, ‘Quest[1]

AS COMPARED WITH

Tattsbet Limited v Morrow, ‘Tattsbet[2]

Introduction

This case note examines the cases of Quest and Tattsbet which were resolved by the Full Court of the Federal Court a few months apart pertaining to controversies about the question of whether a person was an employee or an independent contractor, the outcome of which caused some confusion regarding the legal principles involved.

 

This analysis seeks to clarify the legal principles and approach the Courts will take in the wake of these two cases, by examining the facts and issues in each case, analyzing the reasoning in reaching the decisions, the goal is to assist in answering the question who is an employee at common law?

Quest Case Background

The case involved Quest South Perth Holdings Ptd Ltd, who carried on a business of 40 serviced apartments and employed housekeepers as casuals to clean them.  Management of Quest contacted a company called Contracting Solutions ‘CS’ who were a “contract labor hire business”.  Quest engaged CS to implement its contracting system providing Quest a fixed hourly rate for its housekeepers and receptionists to eliminate obligations that would normally be found under an Employee-Employer relationship.

Facts

As part of the agreement CS would “convert all the current staff[3], (into independent contractors), and the benefit to Quest would be that they “are not bound by industrial relations legislation[4], with a “key difference” that Quest would not need to pay penalty rates to its employees”.[5]

 

The conversion would take place by CS under licence of “The ODCO System”,  which was developed by Odco P/L who promoted itself from successes with “workers engaged as  ODCO independent contractors operating outside state and federal industrial relations systems and [would] gain validity through the Independent Contractors Act 2007 and Federal and High Court decisions.[6]”  This strong marketing statement cited the High Court judgement Accident Compensation Commission v Odco Pty Ltd F.C. 90/040 of 22nd October 1990 and Odco P/L v Building Workers Union of Australia (1989) No VG 151 of 1988).

With CS concluding that “these judgments have been challenged on occasion, however, when administered correctly have always been found to be a legal method of contractor engagement.  CS has a 100% success rate in this area.”[7]
Having been reassured by such bold promises, Quest engaged CS who then proceeded to “convert” two Quest housekeepers into Independent Contractors, for the two employees, nothing much changed, they did the same work, in the same way, they just got paid by CS instead of Quest.  Ultimately it is these converted employee’s that brought action against Quest through the Fair Work Ombudsman ‘FWO’ who claimed this conversion was a breach of the Fair Work Act 2009 (Cth)[8]FWA’ sham contracting provisions.

Issues & Analysis

Sham contracting under the FWA s.357 provides that:

A person that employs, or proposes to employ, an individual must not represent to the individual that the contract of employment […] is a contract for services under which the individual performs, or would perform work as an independent contractor.’

The first issue is whether in a triangular arrangement such as this, where the employees voluntarily resigned and then applied to become independent contractors of CS, could Quest be characterized as “employing or proposing to employ” in the first instance and then whether that proposal misrepresented a contract of employment as a contract for services as an independent contractor.

The Court resolved this holding “There is no issue that the representation was made by Quest through CS acting as its agent.[9]”  However the Court in this case stated it did not rely on this[10] despite reaffirming its significance, stating “CS must be regarded as having performed those functions as the agent of Quest[11] and again “CS made those payments (of wages) as Quests agent.”[12]

The second issue was to answer whether there was a breach of the FWA S.357, the question had to be answered whether the housekeepers were employees and not independent contractors, and then whether the provision for ‘the contract of employment’ in the FWA S.357 could be characterized as including third party contractors like CS.

The process the Court adopted was to refer to previous decisions[13] and examine the “real substance of the relationship[14] to determine whether the person was an employee or an independent contractor. To do this the Court held “The pursuit of profit is at the core of entrepreneurship and to be regarded as one of the primary hallmarks if not the primary hallmark, of a business[15] and that “In pursuit of a profit, the independent contractor will not merely seek remuneration commensurate with the value of the personal services provided, the entrepreneur providing commercial services will want to be remunerated by making a profit[16]

The Court went on to analyse the triangular arrangement and held that “Given our view that, in relation to Best and Roden, the Hiring Agreement, (between CS and Best and Roden), was inoperative and that CS did not, either via that agreement or at all, provide the labor of Best and Roden to Quest”.[17] This was so despite the agreement being signed, CS paying Best and Roden and having them pay their own indemnity insurance, holding that “Those three factors are, in our opinion, substantially and decisively outweighed by factors to which we have already referred and which tend in favour of the conclusion that Best and Roden were employees (of Quest)”[18].

Despite the above findings the FWO’s case against Quest was dismissed because S.357 did not cover a representation by an employer about a contract, or future contract, with another party.   As Quest did not make the representations and there was no dispute in relation to S.357 and CS, there could be no breach.  The FWO appealed to the High Court.

High Court Decision

The High Court held[19] s.357(1) prohibits an employer from misrepresenting to an employee that the employee performs work as an independent contractor under a contract for services with a third party, finding that the misrepresentation could be attributed to Quest as it falls ‘squarely within the scope of the mischief to which the prohibition in s.357(1) was directed and is caught by its terms[20]’.

The Court considered that the reference to ‘contract of employment’ in s.357 should be construed as the object of the prohibition.  Therefore “an employer would be liable to pecuniary penalty if the employer said to an employee “you are employed by me as an Independent contractor.[21] Moreover the HCA considered the triangular relationship and held that “who might be the counterparty to the represented contract for services, and whether the counterparty might be real or fictional entity, is correspondingly immaterial to the operation of the provision.[22]

In other words, the prohibited representation need not be directly between the employee and employer, but includes any third party acting as an agent of the employer.

The High Court considered the view that the legislations intent was to prohibit sham contracts and use of third parties to defeat that intent would be “doing little to achieve its evident purpose within the scheme of Pt. 3-1. That purpose is to protect an individual who in truth is an employee from being misled by his or her employer about his or her employment status.  It is the status of an employee which attracts the existence of workplace rights”.[23]

Tattsbet Case Background

The case of Tattsbet Limited v Morrow [2015] FCAFC 62 ‘Tattsbet[24] involved a decision of the Federal Circuit Court that a person who ran a Tattsbet outlet as an independent agent was in fact an employee, Tattsbet appealed that decision.

Facts

In 2004, Morrow entered into the first of four agency agreements with Tattsbet initially to operate a store in Moorooka. She later applied unsuccessfully for an agency in Brisbane and from that application she was offered and took control of an agency in Logan Central, from time to time she was offered and accepted opportunities to operate other agencies while still running the Logan Central agency, this was during the period from 2005 until termination in 2011[25].

 

The primary judge held Morrow was not merely doing a clerical role, her role extended “to ensuring smooth operation of the agency and making sure it was open at relevant times and was adequately staffed.[26] Morrow did this, she employed staff[27] and was not only an “active” member but became Vice-President of the UNiTab Agents Association[28] it was also noted that she completed her own BAS Statements, was registered for GST[29] and of significance her income was related to the takings of the agency rather than her hours and the difference between her total business income and her net income, indicating the hallmarks of running a business were present.[30]

Issues & Analysis

The two main issues in this case are whether Morrow was an Employee or an Independent Contractor and whether Tattsbet breached s.340 of the FWA when it terminated Morrow’s agency, regardless of whether it is found that Morrow is an Independent Contractor or Employee.[31]

To answer the first part, the question was whether the primary judged erred in finding that Morrow was an employee.  Jessup J was critical of the primary judge’s focus on examining “a dichotomy between a situation in which the putative employee works in the business of another and a situation in which he or she conducts his or her business as an “entrepreneur[32] citing Buchanan J in ACE Insurance Ltd v Trifunovski (2011) 200 FCR 532, “working in the business of another is not inconsistent with working in a business of one’s own[33] adding “The question is not whether the person is an entrepreneur : it is whether he or she is an employee[34].

In examining Jessup’s reasoning in finding the worker was an independent contractor, the following indicia were highlighted in the decision:

Firstly the agency agreement itself provided that Morrow was an Independent contractor and this was held to be an “acknowledgement[35] rather than a provision of the contract, and although any attempt to place a “label” on the relationship would be of little importance, in this case it was significant as it reflected the reality of the relationship.[36]

Secondly Morrow was paid not for the hours worked but in reference to the value of the business transacted, she was not required to perform all the work herself, but was free to employ others to assist her or on occasion work in place of her.[37]

Thirdly her net income was about a third of the total revenues earned and she ran her agency as a business, paying GST, claiming deductions in BAS statements and forwarding to the ATO the GST amounts due.[38]

 

It was held that “the situation before his Honour involved a number of features that, in combination, compel the conclusion that Morrow was not the employee of Tattsbet[39] holding that “I take the view that the primary Judge’s conclusion that the agency agreement established a relationship of employer and employee cannot be sustained.[40]

 

Difference in Reasoning in Quest cf Morrow

In the case of Quest, North and Bromberg JJ (with agreement of Barker J) gave detailed attention to the question whether the cleaners were employees or independent contractors, the in course of which their Honors held that the answer to any such question would be yielded by first answering the question whether the workers in question were engaged in the conduct of their own businesses.[41]

 

Firstly, it is worthy to note that, Tattsbet, on the facts, is very different from Quest.[42]  In Tattsbet it was accepted that Morrow was working “in the business” of Tattsbet, using their premises, equipment, systems and had little scope to vary the way she worked, and insofar as the work there would be little to distinguish her from an employee, such as a store manager.   Using these indicia alone would suggest it was an employee and employer relationship[43].

 

The judgment text of Alsop CJ in Tattsbett considered the case of Quest and held it “does not require any different conclusion in this particular case.  The place of Morrow as an employer of workers in the agency, her means of remuneration, and the other factors pointed to in the reasons of Jessup J lead to the factual conclusion of a sufficient “enterprise” being undertaken by her to warrant the conclusion reached here by Jessup J, with which I agree.”[44]

Alsop CJ then dismissed the need to conduct further enquiry (as was held in Quest at [179]) in search for the “hallmarks of a business[45] such as whether a commercial enterprise is a going concern with employed capital and undertaking risk as there was already sufficient evidence in Tattsbet to indicate that Morrow was not and employee but an Independent Contractor.

 

Why it has caused confusion

The Tattsbet case caused some confusion as “at least since Hollis[46], it may be accepted that the distinction between an employee and an Independent Contractor is “rooted fundamentally in the difference between a person who serves his employer in his, the employer’s business, and a person who carries on a trade or business of his own[47]”, and then to further look that the hallmarks of a business which include acquisition of tangible and intangible assets in pursuit of profits, business aspiration to have goodwill or saleable assets beyond its physical assets, holding that these are all indicia of the hallmarks of a business[48].

With the Tattsbet decision, Morrow was working in the business of another and would not meet much of the hallmarks of a business set out in Quest, the Court resolved these differences and held Morrow to be an Independent contractor using a multi-factor test instead of the entrepreneurial test of Quest.

Conclusion.

In answering the question of determining the status of a worker, the Courts have adopted a colorful approach stating that; “the parties cannot create something which has every feature of a rooster, but call it a duck and insist that everybody call it a duck.”[49]

The mere use of a label, in an agreement, that a person is an “Independent Contractor” is insufficient to determine the true nature of the relationship.  A multi-factorial approach is required to assess whether the person is the victim of a sham contract arrangement which was noted in Quest as being :

an arrangement through which an employer seeks to cloak a work relationship to falsely appear as an independent contracting arrangement in order to avoid responsibility for legal entitlements due to employees[50]

 

Despite the apparent confusion in the approaches the Court has adopted in answering this question, in each case the Court has examined every facet of the relationship to determine its true nature, in Quest the employer relied on promises of CS that their “system” could convert its employees to independent contractors, relying on previous Court decisions, however, ultimately it was obvious that their system relied on a distinct set of facts and could not be applied universally.

 

The employees could not be labelled as independent contractors and expect that label to withstand the scrutiny of the Court.  The court considered the fact that they performed exactly the same work, in the same way and was not swayed by the attempt to use a contract that cloaked the employer – employee relationship.  CS acting as an agent of Quest to pay the wages of the employees (and having them contribute 1% to indemnity insurance) was an insufficient a cloak to satisfy the Court.

 

 

There is scope for an Independent Contractor to legitimately exist as we see in Tattsbet, where the person was running an Agency, she had the ability to delegate responsibility, hire staff, prepare BAS statements and in every aspect was operating her own business within a business and the Court held they cannot now invoke employee workplace rights and insist on Superannuation to be paid.

 

In both instances, the Court made the right decision, a decision after careful analysis of all the facts determined the true nature of the relationship, the Court exercised flexibility in the tests it applied based on the facts before it in each case, in Quest, the question was whether the workers were employees and it was answered by the fact that little of what they did had the hallmarks of a business.

 

In Tattsbet, despite many of the same hallmarks being missing, it was already evident through the multi-factorial analysis conducted by the Court that she was an Independent Contractor running her own business, with her net income being a third of total income, and all the other factors that made it clear she was not an employee.

 

In conclusion if it quacks like a duck, waddles like a duck, it’s a duck! That is to say, if it has all the hallmarks of a business or a multi-factorial approach can objectively conclude that the true nature of the relationship is one of a person engaged in their own business, then it is safe to conclude that the relationship involves one of a legitimate independent contractor.

 

 

If it crows a “cock-a-doodle-do” like it always used to, it’s a still Rooster, no matter what cloak you give it to appear that  it’s not, even the use of third party intermediaries to disguise that relationship will not assist when the activities of the person do not exhibit the hallmarks of a business and when a multi-factorial analysis of the facts cannot lead to a conclusion that the person is operating their own business, then the person must be characterized as an employee.

 

 

[1] Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd [2015] FCAFC 37 (17 March 2015), ‘Quest’.

[2] Tattsbet Limited v Morrow [2015] FCAFC 62 (11 May 2015), ‘Tattsbet’.

[3] Quest at [11].

[4] Ibid.

[5] Ibid at [12].

[6] Ibid at [13].

[7] Quest at [13].

[8] Fair Work Act 2009 (Cth)[8] ‘FWA’.

[9] Quest at [28].

[10] Quest at [131].

[11] Quest at [226].

[12] Ibid at [239]

[13] Damevski v Giudice [2003] FCAFC 252

[14] Quest at [317].

[15] Ibid at [181].

[16] Ibid.

[17] Ibid at [256].

[18] Ibid at [257].

[19] Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd & Ors [2015] HCA 15.

[20] Ibid at [22].

[21] Ibid at [17].

[22] Ibid at [15].

[23] Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd & Ors [2015] HCA 15 at [15].

[24] Tattsbet Limited v Morrow [2015] FCAFC 62 ‘Tattsbet’.

[25] Ibid at [10].

[26] Tattsbet at [38].

[27] Ibid at {45].

[28] Ibid at [47].

[29] Ibid at [48].

[30] Ibid at [49]-[50].

[31] Ibid at [7].

[32] Ibid at [61].

[33] Ibid.

[34] Ibid.

[35] Tattsbet at [65].

[36] Ibid.

[37] Ibid at [67]-[68].

[38] Ibid at [69]-[71].

[39] Ibid at [64].

[40] Ibid at [72].

[41] Tattsbet at [62].

[42] Tattsbet at [62].

[43] Ibid at [63].

[44] Ibid at [3].

[45] Quest at [179].

[46] Hollis v Vabu Pty Ltd (2001) 207 CLR 21.

[47] Quest at [177].

[48] Quest at [179].

[49] Re Porter (1989) 34 IR 179, 184.

[50] Quest at [89].





Abstract

Alternative Dispute Resolution ‘ADR’ has been evolving with social and legal reforms associated with access to justice.  To provide an expressly defined role of a lawyer in ADR is as difficult as limiting ADR itself. The contemporary climate of ADR evolving and expanding throughout the legal system with emphasis shifting from position driven adversarial litigation to incorporating and adopting an interest driven approach in encouraging dispute resolution requires a dynamic approach by lawyers.

Introduction

This research paper examines the traditional and contemporary role of lawyers in ADR including consideration of the Australian National Mediator Standards[1] regulated by the Mediator Standards Board[2] through the National Mediator Accreditation System ‘NMAS[3] and how it applies to Lawyers today.

This issue is significant for the legal profession with the emerging growth of ADR in distinguishing the role of the lawyer in comparison with the accredited mediator as well as from the perspective of the lawyer as a mediator.

 

The legal profession has always had as one of its functions a role of engaging in negotiations with the other party in seeking to resolve disputes and achieving out of court settlements.

 

This position has advanced with the profession appropriating the role of mediator by default without necessarily being part of NMAS.

 

The author contends that whilst all practicing lawyers may be mediators and accredited mediators may not necessarily have legal qualifications, the legal profession ought to consider with the expanding role of ADR in the legal system that lawyers and law students alike obtain appropriate industry accreditation.

Literature review

The Appropriation of ADR by the Legal Profession

As late as 21 May 2015 an article titled, “Proposed uniform r 15 — definition of barristers’ work” appeared in the Australian Dispute Resolution Bulletin[4] discussing whether ADR was part of the role of a barrister.

This discussion was pertaining to the Australian Bar Association ‘ABA’ examining the Legal Profession Uniform Law ‘UL[5] and in particular the proposed Uniform Bar Rules[6] not expressly recognizing as “barristers’ work” that they act as mediators, arbitrators, referees, etc, in ADR.

The rule adopted by the ABA omitting express recognition of a barrister acting as an ADR provider meant that ADR wasn’t a barristers’ role, unless it was “other work as is from time to time commonly carried out by barristers”.

 

To complicate matters it would appear for a barrister to engage in ADR could have placed them in breach of r 14. which stated:

  1. A barrister may not use or permit the use of the professional qualification as a barrister for the advancement of any other occupation or activity in which he or she is directly or indirectly engaged, or for private advantage, save where that use is usual or reasonable in the circumstances.

Ultimately a recommendation was made to amend “The work of a barrister” under Legal Profession Uniform Conduct (Barristers) Rules 2015[7] r 11(d) from reading as:

(d) representing a client in a mediation or arbitration or other method of alternative dispute resolution;

to

(d) representing a client in or conducting a mediation or arbitration, reference or other method of alternative dispute resolution[8];

With this change the ABA formally shifted their position from distancing itself from the role of conducting ADR to appropriating the role.[9]

Traditional Roles of Lawyer Integrating with ADR

Creating Certainty with ADR in Contracts

Joachim Delaney in his paper “Dispute Resolution Clauses: Risks, Options and Drafting Tips”[10] identifies the challenges contemporary contract law faces when it comes to accommodating ADR highlighting the dangers of poorly drafted agreements and enforceability. A mediation clause must include certain elements for it to be enforceable[11].

 

Agreements to agree or to negotiate in good faith have been found to be unenforceable[12] however they could be enforceable in the frame of reference of a dispute resolution clause providing the clause is sufficiently certain.

 

For example, a clause to “meet and undertake genuine and good faith negotiations with a view to resolving the dispute or difference” has been upheld by the courts[13]

 

Whereas the clause can’t provide for negotiations on the method of resolving a dispute[14], for instance a clause stating “in the event the parties have not resolved the dispute then within a further 7 days a senior executive representing each of the parties must meet to attempt to resolve the dispute or agree on methods of doing so”[15] has been held to be unenforceable.

 Climate Change

With ADR becoming embodied in State and Commonwealth legislation, Regulations and Court Rules it means there is an accelerated shift from litigation to ADR being imposed upon the legal profession, which must adjust to this dynamic legal climate[16].

Legislation such as the Federal Court of Australia Act[17] and the Victorian Civil Procedure Act[18] have ‘Overarching purpose’ and ‘pre-action’ provisions that require parties to facilitate the timely and efficient resolution of civil disputes. For example, s 7(1)[19] states that the ‘overarching purpose is to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute’.

Use of an ADR process, which includes mediation, is explicitly referred to as one method of achieving the overarching purpose[20].

Liability of Lawyers to Advise on ADR Options

Lawyers who fail in their duty to advise clients have faced various sanctions.  It is a duty that must be considered by Federal Court judges when awarding costs[21] and both parties must file ‘genuine steps’ statements prior to litigating[22] with participation in ADR considered as ‘genuine steps’ that can be taken to resolve a civil dispute[23].

 

Personal Costs Orders Against Lawyers

There is a statutory duty for lawyers to advise and assist clients with genuine steps statements[24], and failure may result in lawyers not only subjected personally to costs orders[25] but the lawyer must not recover the costs from the client[26].

Misconduct Sanctions Foreseeable

It was argued by David Spencer, Senior Lecturer at Sydney University[27] that at the nexus of ADR and the legal profession the governing bodies dealing with growing regulations and rules of professional conduct faced position where ADR was not part of substantive law yet part of the legal profession.

Whilst encouraging ADR absent substantive law regulating it, there may be other heads of liability, such as negligence, where if a Lawyer fails to advise their client it could breach Rules of Professional Conduct.  It is foreseeable that Australian legal practitioners may find themselves liable if they do not advise their clients of ADR options.

In Adamson v Queensland Law Society Inc[28], the test for professional misconduct was: –

“…whether the conduct violates or falls short of, to a substantial degree, the standard of professional conduct observed or approved by members of the profession of good repute and competency”

This was dealing with matters of “Unprofessional conduct or practice” considering a standard of professional conduct expected of the profession.

It is foreseeable as Legislation, Regulations and Rules provide for ADR processes and they become part of the standard of professional conduct expected of lawyers, one who fails to adequately advise their client on ADR may well find themselves liable in a tort of negligence or disciplinary proceedings for malpractice.

As held in Adamson[29]:-

The lawyer should put the client’s interests first and treat the client fairly and in good faith, giving due regard to a client’s position of dependence upon the practitioner, and the clients dependence on the lawyer’s training and experience and the high degree of trust clients are entitled to place in lawyers …particularly with respect to compromise.”

This would suggest there is a duty of care to the client to advise of ADR.

Costs Penalty in Success

There are risks of lawyers getting adverse cost orders imposed by the Courts for failing to negotiate even if they succeed at trial[30], as Mansfield J of the Federal Court of Australia, warned:

“To decline to negotiate in relation to an informal offer when it might have been reasonable to have done so might have

adverse costs consequences to the successful party.”[31]

Collaborative practice — “a new wrinkle”[32]

Collaborative law refers to a process of bringing together the parties and their lawyers in mediation with a desire to resolve the dispute in an open round-table forum recognizing that civil disputes can be resolved between the parties amicably and lawyers can play a role in giving their client confidence that they are getting an equitable result or at least understanding the legal implications of what they are conceding.

 

The negotiations are interest-based and the lawyers are retained purely for collaboration only, if negotiations fail the lawyers involved do not participate in litigation.

 

This sets the scene for open and frank ‘without prejudice’ negotiations and discussions, whilst giving the parties confidence that they are acting upon legal advice, if they should agree, their interests are protected.

 

In collaborative law during mediation, if required, experts are brought in such as financial specialists, auditors, medical experts, child psychologists etc, so all aspects of the dispute are considered.

 

The term “collaborative lawyers” is significant as the legal representatives will be asked to work in unfamiliar ways, in a group environment, giving legal advice in a collaborative as part of the team working to resolve the dispute, so the parties hear the legal advice given to each other as part of an interest-based process that can explore issues and options outside the limited parameters of the legislative framework.

 

Ultimately if talks break down, nothing is held against the parties and they would need to find alternate legal representation for the litigation process.

Discussion

It can be gleaned that the traditional role of a lawyer to advise and represent a client has been complicated by and is evolving with the development of ADR in the Australian legal framework.

 

The Alternative Dispute Resolution Advisory Council ‘NADRAC’ suggests that ‘it may be desirable for legal professional bodies to amend their codes of conduct or issue guidelines to define standards of practice for lawyers participating in ADR.’[33]

 

Legal professional bodies appear to have taken note, for example the Guidelines for Legal Practitioners who act as Mediators[34] issued by the Law Society of New South Wales ‘LSNSW’ and the Guidelines for Lawyers in Mediations issued by the Law Council of Australia ‘LCA[35] address those NADRAC concerns.

LCA Guideline 1 deals with the role of the lawyer in mediation and states that ‘[a] lawyer’s role in mediation is to assist clients, provide practical and legal advice on the process and on issues raised and offers made, and to assist in drafting terms and conditions of settlement as agreed’[36] continuing to say a lawyer’s role will vary greatly from merely advising the client before mediation to representing the client at mediation, but omitting conducting mediation.[37]

 

Worthy to note is the Comment in Guideline 4 on Selecting a mediator:

first look to a mediator’s skill and experience as a mediator, and then to any additional qualifications that may be helpful, such as accreditation or expertise in the subject matter of the dispute or law;”

From this commentary, there is a startling position of the LCA, in that a mediator need not necessarily have qualifications or be accredited and the primary consideration is experience.

In contrast looking to the LSNSW Guidelines it starts with ‘the responsibilities of legal practitioners when acting as mediators in the ordinary course of providing legal services’[38], meaning conducting mediation is an ordinary part of the role and they go on to confirm that it is covered by the Professional Indemnity Insurance.

 

The LSNSW Guidelines qualify that by adding Legal practitioners who intend to practice as mediators in alternative dispute resolution should inform themselves of the licensing provisions of any relevant legislative requirements, including any requirements for national accreditation or alternative insurance arrangements.’

 

Most significant is LSNSW Guideline 3 which goes on to cover the issue of Qualifications of a Mediator, stating in 3.1 ‘No legal practitioner shall act as a sole mediator unless he/she has satisfactorily completed an approved course and has obtained national mediator accreditation or has such appropriate mediation experience as may be approved by the Dispute Resolution Committee of The Law Society of New South Wales.

This position contrasts with that of the LCA where the LSNSW requires a lawyer to have completed an approved course and obtained accreditation, whereas the LCA doesn’t even consider accreditation or completion of an approved course a primary consideration in selecting a mediator.

 

Reviewing the LSNSW Guidelines further in Schedule one[39], it goes further to explicitly define in Section 2 what is an “an approved course”, which happens to be the “gap” identified in the Deakin University MLL328 – Alternative Dispute Resolution: Principles and Practice subject and what is required under NMAS for a student to become an accredited mediator.

 

This “approved course” under LSNSW Guidelines requires that it be conducted by suitably qualified instructors[40] and have coached simulation mediations[41]during a program of a minimum of 38 hours in duration[42] and consists of at least nine simulated mediation sessions, where in at least three, the participant performs the role of mediator[43] and provides written debriefing coaching feedback to two simulated mediations[44] and a written skills assessment reflecting core competencies in the Australian National Mediator Standards ‘ANMS[45] to comply with the National Mediator Accreditation System.

 

The LSNSW Guidelines are issued by the Law Society of NSW, in application of and in compliance with the Legal Profession Uniform Law[46], this law has been adopted in Victoria with the Legal Profession Uniform Law Application Act ‘Application Act,’[47] and confirms in Schedule 1 that the Victorian adoption of the UL includes NSW Rules and Regulations.

 

Thus, LSNSW Guidelines developed in application of and compliance with UL ought to apply in Victoria.  This position is supported by the fact that the Law Institute of Victoria ‘LIV’ has become a Registered Mediator Accreditation Body under NMAS, Registered Mediator Accreditation Bodies ‘RMAB’s have the role of accrediting mediators in accordance with the Australian National Mediator Standards.

Conclusion

In examining the question of the Role of a Lawyer in ADR, the traditional view of the lawyer being there to advise and represent is being challenged by a rapidly evolving legal environment.

 

The lawyer now needs to consider the legislation, regulations and rules that encourage ADR in civil litigation matters and how it affects enforceability of contracts and clauses that invoke ADR in the event of disputes.  The pre-trial processes and ADR being invoked or Court ordered, after trial has commenced, complicate traditional adversarial roles, alter practices of prelitigation discovery and provide pitfalls and costs sanctions for those that are not staying abreast of changes with continuing professional development.

 

The LCA refers to the lawyer’s role in ADR in a traditional perspective of advising and representing the client, conducting mediation is omitted as part of that role.

 

In contrast the ABA has adopted a position of appropriating the “work of a barrister” to include the “conduct of mediation”.  Whereas the LSNSW considering the UL has moved towards the position of the ABA with the role of Lawyers including the conduct of mediation whilst recognizing shortfalls in traditional legal training suggesting additional licensing and accreditation may be required.

 

The position outlined in the LSNSW Guidelines ought to apply in Victoria under the UL however as these are guidelines, there is no compulsory requirement for a lawyer to undergo such training and accreditation to represent a client in or conduct mediation or other forms of ADR but as discussed LIV are a RMAB provider and as such they also endorse the position of continuing professional development in this field, the author contends that the “gap” in the training at Law School compared to the NMAS requirements ought to be filled to ensure law students as they complete their degrees and obtain practicing certificates are properly prepared for ADR.

 

Evolving trends that challenge traditional roles and shift the position based adversarial lawyer to consider interest based collaborative team work in ADR to resolve the dispute without the need to go to Court other than to register the agreement reached provide sufficient foresight that the role of the lawyer in ADR will continue to be dynamic reinforcing the need to have adequate training in this growing field of alternative dispute resolution.

[1] Australian National Mediator Standards, Practice Standards, For Mediators Operating Under the National Accreditation System, September 2007, http://www.fedcourt.gov.au/services/ADR/mediation/mediation_standards.pdf accessed 23/8/2017 at 11.45am.

[2] Mediator Standards Board https://www.msb.org.au/ accessed 23/8/2017 at 11.17am.

[3] National Mediator Accreditation System, https://www.msb.org.au/mediator-standards/standards accessed 23/8/2017 at 11.46am.

[4] Australian Dispute Resolution Bulletin, Proposed uniform r 15 — definition of barristers, Nigel Cotman SC 9 Wentworth Chambers. May 2015.

[5] Legal Profession Uniform Law (NSW) 2014.

[6] Australian Bar Association Proposed Legal Profession Conduct Rules: Barristers (November 2014).

[7] Legal Profession Uniform Conduct (Barristers) Rules 2015 r 11(d) (Published on VicBar accessed here https://www.vicbar.com.au/sites/default/files/Legal%20Profession%20Uniform%20Conduct%20%28Barristers%29%20Rules%202015.pdf on 28/08/2017 at 9.54pm.)

[8] Ibid cf Current version of Legal Profession Uniform Conduct (Barristers) Rules 2015 (Published on Austlii accessed here http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/nsw/consol_reg/lpucr2015509/s11.html on 28/008/2017 at 9.55pm.).

[9] Australian Dispute Resolution Bulletin, Conducting an ADR process and the Legal

Profession Uniform Conduct (Barristers) Rules — recent developments, Nigel Cotman and Mary Walker SC 9 Wentworth Chambers. September 2015.

[10] Dispute resolution clauses: Risks, options and drafting tips, Joachim Delaney, Australian Dispute Resolution Bulletin, July 2014.

[11] Aiton Australia Pty Ltd v Transfield Pty Ltd (1999) 153 FLR 236; 16 BCL 70; [1999] NSWSC 996.

[12] Baldwin & Anor v Icon Energy Ltd & Anor [2015] QSC 12 (3 February 2015).

[13] United Group Rail Services Ltd v Rail Corp (NSW) (2009) 74  NSW LR618; [2009] NSWCA177; Plenary Research Pty Ltd v Biosciences Research Centre Pty Ltd [2013] VSCA 217; BC201312046.

[14] WTE Co-Generation  & Anor v RCR Energy Pty Ltd & Anor [2013] VSC 314 (21 June 2013).

[15] Plenary Research Pty Ltd v Biosciences Research Centre Pty Ltd [2013] VSCA 217 at [12].

[16] The Role of Lawyers in Mediation: Insights from Mediators at Victoria’s Civil and Administrative Tribunal, Kathy Douglas and Becky Batagol, Monash University Law Review 2014 (Vol 40, No 3).

[17] Federal Court of Australia Act  1976 (Cth) s.37M

[18] Civil Procedure Act 2010 (Vic)

[19] Ibid s 7(1).

[20] Ibid s 7(2)(c).

[21] Federal Court of Australia Act  1976 (Cth) s 37N(4).

[22] Civil Dispute Resolution Act 2011 (Cth) ss 6–7.

[23] Ibid s 4.

[24] Ibid s 9.

[25] Ibid s 12. See, e.g., Superior IP International Pty Ltd v Ahearn Fox Patent and Trade Mark Attorneys

[2012] FCA282 (23 March 2012), where no genuine steps had been undertaken, and the Federal Court

ordered the legal representatives of the parties be joined for the purposes of costs.

[26] Ibid s 12(3).

[27] Spencer, David L., Liability of Lawyers to Advise on Alternative Dispute Resolution Options (November 2, 1998). Australian Dispute Resolution Journal, Vol. 9, No. 292, 1998.

[28] Adamson v Queensland Law Society Inc [1990] 1 Qd R 498.

[29] Adamson v Queensland Law Society Inc [1990] 1 Qd R 498.

[30] Are you being too bullish in settlement negotiations and refusing to mediate? Be warned, Michael Hollingdale,  Australian Dispute Resolution Bulletin September 2015.

[31] Australian Competition and Consumer Commission v Harris Scarfe Australia Pty Ltd (No 2) [2009] FCA433 at [33].

[32] Collaborative practice — “a new wrinkle”, Nigel Nicholls, Australian Alternative Dispute Resolution Law Bulletin, June 2017.

[33] National Alternative Dispute Resolution Advisory Council, Maintaining and Enhancing the Integrity of

ADR Processes (2011) 38.

[34] Law Society of New South Wales, Guidelines for Legal Practitioners who act as Mediators 2012.

[35] Law Council of Australia, Guidelines for Lawyers in Mediations (2011).

[36] Ibid Guideline 1.

[37] Ibid.

[38] Law Society of New South Wales, Guidelines for Legal Practitioners who act as Mediators 2012.

[39] Law Society of New South Wales, Guidelines for Legal Practitioners who act as Mediators 2012.

[40] Ibid Schedule 1, S.2(a).

[41] Ibid S.2(b).

[42] Ibid S.2(c).

[43] Ibid S.2(d).

[44] Ibid S.2(e).

[45] Ibid.

[46] Legal Profession Uniform Law (NSW) 2014.

[47] Legal Profession Uniform Law Application Act 2014 (Vic).





When a relationship breaks down and there are children and property involved the complex web known as family law for the parent who doesn’t have the money to hire a lawyer and doesn’t qualify for legal aid can be a heart breaking and soul destroying process where people lose faith in the entire system of justice when the only reason they are experiencing injustice is money.

The first place to start to look at for help is the Family Court Web Site which is an excellent resource for self represented litigants.

Family Law Court Menu

Family Law Court Menu

As you can see above the Family Law Court  provides a step by step menu covering all aspects of Family law for self represented litigants to read and learn.

If you are at the stage of separation and need to know about the process of divorce the Federal Circuit Court has step-by-step guides to the process of divorce here.

Once you have read through the above the Family Law Court has an online application for divorce  which you can register your details and initiate the Divorce process yourself with guided by the Family Law Court.

The Federal Circuit Court has step-by-step guides and forms for applying for parenting orders  and for property orders.

The FCC also has information to help you with how to deal with breaches of court orders by a party.

There are videos available for children to watch to help them understand what’s going on between mum and dad.

When it comes to the various Court Forms there is a comprehensive list of forms available to the public for you to browse to see if there are relevant forms that apply to you.

There is further information for various groups.

Each menu opens up new sections with further details and information in the

category you select.

Once you have read all of the above and have a fundamental understanding of family law processes you can delve deeper.

Here is the Law Society’s “Practitioner’s Guide to Family Law” so you can delve into how a lawyer goes about helping a client with family law matters and deciphers the Family Law Act sections providing guidance to lawyers how to help their clients.

You can then sign up for online law resources that have free trials (use this time wisely to screen cap and save all the relevant information).

The CCH online resource and the Family Law Handbook are the two top online resources for lawyers, which go through all of the above plus cite precedents and provide templates and examples to work off.

Aside from that you may consider jumping onto Gumtree or Ebay or other online resources that deal with second hand books and doing a search for Family Law, you can pick up some great buys of current edition law books being sold by students who have completed the subject.  These books will teach you what law students learn about Family law.

So once you have read all of that, you might not yet have the experience of a lawyer to self represent yourself but at least you are armed with all the information and knowledge about the subject of Family Law, you will be aware of all the pitfalls and be able to use the sword and shield of the law with the new found knowledge you have.

If you do have a lawyer by going through the above it will help your communication with your lawyer and assist you in reducing costs, the more work you put in the less work the lawyer needs to.

 





The Freeman Delusion – The Organised Pseudolegal Commercial Argument in Australia

By : Robert Sudy

   

FREE E-BOOK CLICK HERE TO DOWNLOAD – The Freeman Delusion

This E-Book is the most comprehensive guide to the delusion that some people call “Freeman” or “Sovereign” or the countless other names that the Courts have characterized as Pseudo Legal (stuff that sounds like it is legal talk but more accurately described as gibberish) that collectively have been labelled OPCA Litigants.

This book will help you understand the myths and break it down in simple English why these groups exist and how they are misleading people into harm.
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The following is an extract from Volume 1 of the Final Report of the Constitutional Commission 1988.

The report was forwarded to the the then Attorney-General of the Commonwealth of Australia, The Hon Lionel Bowen MP, on 30 June 1988. Authors of the report include Sir Maurice Byers CBE QC, Professor Enid Campbell OBE, The Hon Sir Rupert Hamer KCMG, The Hon E G Whitlam AC QC and Professor Leslie Zines. The Constitutional Commission 1988 report is available at the Mitchell Library in Sydney and should also be available at any other notable library or educational institution.

Effect of independent nationhood

2.129 The sovereign status of Australia resulted in the rejection of earlier colonial restrictions on the interpretation of the powers of the Commonwealth. It has been declared by a number of High Court judges that the Governor-General, as the Queen’s representative, possesses the prerogatives of the Crown relevant to the Federal Government’s sphere of responsibility, which includes, for example, all matters relating to external affairs.[102]

2.130 The development of Australian nationhood did not require any change to the Australian Constitution. It involved, in part, the abolition of limitations on constitutional power that were imposed from outside the Constitution, such as the Colonial Laws Validity Act 1865 (Imp) and restricting what otherwise would have been the proper interpretation of the Constitution, by virtue of Australia’s status as part of the Empire. When the Empire ended and national status emerged, the external restrictions ceased, and constitutional powers could be given their full scope.

2.131 Sir Garfield Barwick has described the result, in relation to the Framers’ purpose in drafting the Constitution as follows:

The Constitution was not devised for the immediate independence of a nation. It was conceived as the Constitution of an autonomous Dominion within the then British Empire. Its founders were not to know of the two world wars which would bring that Empire to an end. But they had national independence in mind. Quite apart from the possible disappearance of the Empire, they could confidently expect not only continuing autonomy but approaching independence. This came within 30 years. They devised a Constitution which would serve an independent nation. It has done so, and still does.[103]


2.132 As a result of federal legislation all appeals to the Privy Council from Australian courts exercising federal jurisdiction were abolished in 1968 (Privy Council (Limitation of Appeals/Act 1968 (Cth)). All appeals from any decision of the High Court (other than those where a certificate might be granted under section 74 of the Constitution) were terminated by the Privy Council (Appeals from the High Court) Act 1975 (Cth).

2.133 The growth to full national status, of course, did not affect the position of the Commonwealth as a community under the Crown. While the preceding events dissolved most of the constitutional links with the British Government, those with the Sovereign remain.

2.134 Indeed the notion of the Crown pervades the Constitution. The preamble recites that the people of the named colonies had agreed to unite in a Federal Commonwealth under the Crown. The Queen is empowered by section 2 of the Constitution to appoint a Governor-General who ‘shall be Her Majesty’s representative’. Section 61 of the Constitution vests the executive power of the Commonwealth in the Queen and declares that it is exercisable by the Governor-General as the Queen’s representative.

2.135 These powers are, of course, consistent with British constitutional practice, exercised on the advice of Australian Ministers (except in those very rare cases which are said to come within the ‘reserve powers’ of the Crown). On those occasions when the Queen acts in her own capacity, such as in appointing the Governor-General, she also acts on the advice of Australian Ministers, rather than British ones, in accordance with the principle established at the Imperial Conference of 1926.

2.136 The position of the Queen as the Sovereign of a number of independent realms was recognised at a conference of Prime Ministers and other representatives of the nations of the Commonwealth in December 1952 where it was agreed that each country should adopt a form of Royal title suitable to its own circumstances. As a result, the legislation of each country of the Commonwealth (other than Pakistan which expected to become a republic) included for the first time a reference in its Royal Style and Titles to the particular country which enacted the legislation.

2.137 The Royal Style and Titles Act 1953 (Cth), therefore, for the first time referred to the Queen as ‘Elizabeth the Second, by the Grace of God of the United Kingdom, Australia and Her other Realms and Territories Queen, Head of the Commonwealth, Defender of the Faith’. As a result of amendments made in 1973 (Royal Style and Titles Act 1973) the present Royal Style and Titles in Australia are ‘Elizabeth the Second, by the Grace of God Queen of Australia and Her other Realms and Territories, Head of the Commonwealth.’

2.138 The disappearance of the British Empire has therefore meant that the Queen is now Sovereign of a number of separate countries such as the United Kingdom, Canada, Australia, New Zealand and Papua New Guinea, amongst others. As Queen of Australia she holds an entirely distinct and different position from that which she holds as Queen of the United Kingdom or Canada. The separation of these ‘Crowns’ is underlined by the comment of Gibbs CJ in Pochi v Macphee[104] that ‘The allegiance which Australians owe to Her Majesty is owed not as British subjects but as subjects of the Queen of Australia.’


1) High Court of Australia Decision Sue V Hill

The following is an extract of the High Court decision (High Court of Australia, Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ – Sue v Hill [1999] HCA 30 – 23 June 1999 – S179/1998 and B49/1998) relating to the Henry (Nai Leung) Sue – Petitioner and Heather Hill & ANOR Respondents case in which Heather Hill lost her right to take her place in the Senate post the 1998 Federal election

The High Court confirmed that the Queen of Australia does not act as a foreign Queen. One of the main arguments that was raised by Heather Hill was that the Queen of Australia is the same person as the Queen of the United Kingdom and Northern Ireland. Therefore swearing allegiance to the Queen of Australia was the same as swearing allegiance to the Queen of the United Kingdom and Northern Ireland. This argument was rejected by the Court on the basis that whilst physically it is the same person (Queen Elizabeth II) they are “independent and distinct” legal personalities. This notion is known as the divisibility of the Crown which Justice Gaudron found to be “implicit in the Constitution.”


The full report on this decision can be located via the High Court Website.

74. We turn now to the position of the Crown in relation to the government of the Commonwealth. Section 2 of the Constitution states:


“A Governor-General appointed by the Queen shall be Her Majesty’s representative in the Commonwealth, and shall have and may exercise in the Commonwealth during the Queen’s pleasure, but subject to this Constitution , such powers and functions of the Queen as Her Majesty may be pleased to assign to him.” (emphasis added)


It has been accepted, at least since the time of the appointment of Sir Isaac Isaacs in 1931, that in making the appointment of a Governor-General the monarch acts on the advice of the Australian Prime Minister [91]. The same is true of the exercise of the power vested by s4 of the Constitution in the monarch to appoint a person to administer the government of the Commonwealth and the power given to the monarch by s126 to authorise the Governor-General to appoint deputies within any part of the Commonwealth.

75. Section 58 makes provision for the Governor-General to reserve a “proposed law passed by both Houses of the Parliament” for the Queen’s pleasure, in which event the law shall not have any force unless and until, in the manner prescribed by s60, the Governor-General makes known the receipt of the Queen’s assent. Further, s59 provides for disallowance by the Queen of any law within one year of the Governor-General’s assent. The text of the Constitution is silent as to the identity of the Ministers upon whose advice the monarch is to act in these respects.

76. As indicated when dealing earlier in these reasons with the former position of the States, provisions in colonial constitutional arrangements for reservation and disallowance had been designed to ensure surveillance of colonial legislatures by the Imperial Government. The convention in 1900 was that the monarch, in relation to such matters, would act on the advice of a British Minister. That advice frequently was given after consultation between the Colonial Office and the Ministry in the colony in question[92]. With respect to the Commonwealth, the whole convention, like that respecting the appointment of Governors-General, changed after the Imperial Conference of 1926[93].

77. As early as 1929, it was stated in the Report of the Royal Commission on the Constitution[94] with reference to the provisions of ss 58 and 59 of the Constitution that “in virtue of the equality of status which, from a constitutional as distinct from a legal point of view, now exists between Great Britain and the self-governing Dominions as members of the British Commonwealth of Nations, and on the principles which are set out in the Report submitted by the Inter-Imperial Relations Committee to the Imperial Conference in 1926”, for “British Ministers to tender advice to the Crown against the views of Australian Ministers in any matter appertaining to the affairs of the Commonwealth” would “not be in accordance with constitutional practice”.

78. Whilst the text of the Constitution has not changed, its operation has. This reflects the changed identity of those upon whose advice the sovereign accepts that he or she is bound to act in Australian matters by reason, among other things, of the attitude taken since 1926 by the sovereign’s advisers in the United Kingdom. The Constitution speaks to the present and its interpretation takes account of and moves with these developments. Hence the statement by Gibbs J in Southern Centre of Theosophy Inc v South Australia[95], with reference to the Royal Style and Titles Act I973 (Cth), that:

“[i]t is right to say that this alteration in Her Majesty’s style and titles was a formal recognition of the changes that had occurred in the constitutional relations between the United Kingdom and Australia”.

79. It remains to consider the provision in s 122 of the Constitution whereby the Parliament may make laws, among other things, “for the government of any territory … placed by the Queen under the authority of and accepted by the Commonwealth”. The requirement of acceptance by the Commonwealth and, earlier in s 122, the reference to the surrender of territory by a State and the acceptance thereof by the Commonwealth serve to confirm the placement “by the Queen” of a territory under the authority of the Commonwealth as being a dispositive act by the Crown acting on other than Australian advice.

80. For example, what had been the Crown Colony of British New Guinea was by Imperial instruments placed under the authority of the Commonwealth after the Senate and the House had passed resolutions authorising the acceptance of British New Guinea as a territory of the Commonwealth[96]. The procedures adopted for the acquisition of Christmas Island and the Cocos (Keeling) Islands reflected the Statute Of Westminster Adoption Act 1942 (Cth). They involved, as a first step, the passage of the Christmas Island (Request and Consent) Act 1957 (Cth) and the Cocos (Keeling) Islands (Request and Consent) Act 1954 (Cth). The Parliament of the Commonwealth thereby requested and consented to an enactment by the Parliament of the United Kingdom enabling the Queen to place the respective islands under the authority of the Commonwealth. There followed the passage of the Cocos Islands Act 1955 (UK) and the Christmas Island Act 1958 (UK)[97].

81. The point is that the reference to “the Queen” in s122 to distinguish the sovereign from “the Commonwealth” indicates within the structure of the Constitution itself a recognition of the involvement of the Crown in distinct bodies politic.

82. Nevertheless, it is submitted for Mrs Hill that the reference in the preamble to the Constitution Act to unification “in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland, and under the Constitution hereby established” and the identification in covering cl 2 to the heirs and successors of Queen Victoria in the sovereignty of the United Kingdom have a special and immutable significance for the construction of s44(i) of the Constitution. This is said to be so notwithstanding, as we have indicated, that in the regal capacities for which provision is made by the constitutions of the Commonwealth and the States, the sovereign acts on Australian ministerial advice.

The meaning of “the Crown” in constitutional theory

83. Accordingly, it is necessary to say a little as to the senses in which the expression “the Crown” is used in constitutional theory derived from the United Kingdom. In its oldest and most specific meaning, “the Crown” is part of the regalia which is “necessary to support the splendour and dignity of the Sovereign for the time being”, is not devisable and descends from one sovereign to the next [98]. The writings of constitutional lawyers at the time show that it was well understood in 1900, at the time of the adoption of the Constitution, that the term “the Crown” was used in several metaphorical senses. “We all know”, Lord Penzance had said in 1876, “that the Crown is an abstraction” [99], and Maitland, Harrison Moore, Inglis Clark and Pitt Cobbett, amongst many distinguished constitutional lawyers, took up the point.

84. The first use of the expression “the Crown” was to identify the body politic. Writing in 1903, Professor Pitt Cobbett[100] identified this as involving a “defective conception” which was “the outcome of an attempt on the part of English law to dispense with the recognition of the State as a juristic person, and to make the Crown do service in its stead”. The Constitution, in identifying the new body politic which it established, did not use the term “the Crown” in this way. After considering earlier usages of the term in England and in the former American colonies, Maitland rejoiced in the return of the term “the Commonwealth” to the statute book. He wrote in 1901[101]:

“There is no cause for despair when ‘the people of New South Wales, Victoria, South Australia, Queensland and Tasmania, humbly relying on the blessing of Almighty God, have agreed to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland’. We may miss the old words that were used of Connecticut and Rhode Island: ‘one body corporate and politic in fact and name’; but ‘united in a Federal Commonwealth under the name of the Commonwealth of Australia’ seems amply to fill their place. And a body politic may be a member of another body politic.”

85. The second usage of “the Crown” is related to the first and identifies that office, the holder of which for the time being is the incarnation of the international personality of a body politic, by whom and to whom diplomatic representatives are accredited and by whom and with whom treaties are concluded. The Commonwealth of Australia, as such, had assumed international personality at some date well before the enactment of the Australia Act. Differing views have been expressed as to the identification of that date[102] but nothing turns upon the question for present purposes. Since 1987, the Executive branch of the Australian Government has applied s61 of the Constitution (which extends to the maintenance of the Constitution) consistently with the views of Inglis Clark expressed over 80 years before[103] and the Governor-General has exercised the prerogative powers of the Queen in regard to the appointment and acceptance, or recall, of diplomatic representatives and the execution of all instruments relating thereto[104].

86. In State Authorities Superannuation Board v Commissioner of State Taxation (WA) , McHugh and Gummow JJ said[105]:

“Questions of foreign state immunity and of whether an Australian law, upon its true construction, purports to bind a foreign state now should be approached no differently as regards those foreign states which share the same head of state than it is for those foreign states which do not[106]. This is consistent with the reasoning and outcome in Nolan v Minister for Immigration and Ethnic Affairs [107].”


87. Thirdly, the term “the Crown” identifies what Lord Penzance in Dixon called “the Government”[108], being the executive as distinct from the legislative branch of government, represented by the Ministry and the administrative bureaucracy which attends to its business. As has been indicated, under the Constitution the executive functions bestowed upon “the Queen” are exercised upon Australian advice.

88. The fourth use of the term “the Crown” arose during the course of colonial development in the nineteenth century. It identified the paramount powers of the United Kingdom, the parent state, in relation to its dependencies. At the time of the establishment of the Commonwealth, the matter was explained as follows by Professor Pitt Cobbett in a passage which, given the arguments presented in the present matters, merits full repetition[109]:

“In England the prerogative powers of the Crown were at one time personal powers of the Sovereign; and it was only by slow degrees that they were converted to the use of the real executive body, and so brought under control of Parliament. In Australia, however, these powers were never personal powers of the King; they were even imported at a time when they had already to a great extent passed out of the hands of the King; and yet they loom here larger than in the country of their origin. The explanation would seem to be that, in the scheme of colonial government, the powers of the Crown and the Prerogative really represent, – not any personal powers on the part of the Sovereign, – but those paramount powers which would naturally belong to a parent State in relation to the government of its dependencies; although owing to the failure of the common law to recognise the personality of the British ‘State’ these powers had to be asserted in the name and through the medium of the Crown. This, too, may serve to explain the distinction, subsequently referred to, between the ‘general’ prerogative of the Crown, which is still wielded by Ministers who represent the British State, and who are responsible to the British Parliament, – and what we may call the ‘colonial’ prerogative of the Crown, which, although consisting originally of powers reserved to the parent State, has with the evolution of responsible government, been gradually converted to the use of the local executive, and so brought under the control of the local Legislature, except on some few points where the Governor[110] is still required to act not as a local constitutional Sovereign but as an imperial officer and subject to an immediate responsibility to his imperial masters.[111]”

89. What Isaacs J called the “Home Government” ceased before 1850 to contribute to the expenses of the colonial government of New South Wales[112]. On the grant of responsible government, certain prerogatives of the Crown in the colony, even those of a proprietary nature, became vested “in the Crown in right of the colony”, as Jacobs J put it in New South Wales v The Commonwealth[113]. Debts might be payable to the exchequer of one government but not to that of another and questions of disputed priority could arise[114]. Harrison Moore, writing in 1904, observed[115]:

“So far as concerns the public debts of the several parts of the King’s dominions, they are incurred in a manner which indicates the revenues out of which alone they are payable, generally the Consolidated Revenue of the borrowing government; and the several Colonial Statutes dealing with suits against the government generally limit the jurisdiction of the Court to ‘claims against the Colonial Government,’ or to such claims as are payable out of the revenue of the colony concerned …”


Section 105 of the Constitution provided for the Parliament to take over from the States their public debts “as existing at the establishment of the Commonwealth”[116].

90. The expression “the Crown in right of …” the government in question was used to identify these newly created and evolving political units[117]. With the formation of federations in Canada and Australia it became more difficult to continue to press “the Crown” into service to describe complex political structures. Harrison Moore identified “the doctrine of unity and indivisibility of the Crown” as something “not persisted in to the extent of ignoring that the several parts of the Empire are distinct entities”[118]. He pointed to the “inconvenience and mischief” which would follow from rigid adherence to any such doctrine where there were federal structures and continued[119]:

“The Constitutions themselves speak plainly enough on the subject. Both the British North America Act and the Commonwealth of Australia Constitution Act recognize that ‘Canada’ and the ‘Provinces’ in the first case, the ‘Commonwealth’ and the ‘States’ in the second, are capable of the ownership of property, of enjoying rights and incurring obligations, of suing and being sued; and this not merely as between the government and private persons, but by each government as distinguished from and as against the other this in fact is the phase of their personality with which the Constitutions are principally concerned. Parliament has unquestionably treated these entities as distinct persons, and it is only by going behind the Constitution that any confusion of personalities arises.”

91. It may be thought that in this passage lies the seed of the doctrine later propounded by Dixon J in Bank of New South Wales v The Commonwealth[120], and applied in authorities including Crouch v Commissioner for Railways (Q)[121] and Deputy Commissioner of Taxation v State Bank (NSW)[122], that the Constitution treats the Commonwealth and the States as organisations or institutions of government possessing distinct individuality. Whilst formally they may not be juristic persons, they are conceived as politically organised bodies having mutual legal relations and are amenable to the jurisdiction of courts exercising federal jurisdiction. The employment of the term “the Crown” to describe the relationships inter se between the United Kingdom, the Commonwealth and the States was described by Latham CJ in 1944[123] as involving “verbally impressive mysticism”. It is of no assistance in determining today whether, for the purposes of the present litigation, the United Kingdom is a “foreign power” within the meaning of s 44(i) of the Constitution.

92. Nearly a century ago, Harrison Moore said that it was likely that Australian draftsmen would be likely to avoid use of the term “Crown” and use instead the terms “Commonwealth” and “State”[124]. Such optimism has proved misplaced. That difficulties can arise from continued use of the term “the Crown” in State legislation is illustrated by The Commonwealth v Western Australia[125]. However, no such difficulties need arise in the construction of the Constitution.

93. The phrases “under the Crown” in the preamble to the Constitution Act and “heirs and successors in the sovereignty of the United Kingdom” in covering cl 2 involve the use of the expression “the Crown” and cognate terms in what is the fifth sense. This identifies the term “the Queen” used in the provisions of the Constitution itself, to which we have referred, as the person occupying the hereditary office of Sovereign of the United Kingdom under rules of succession established in the United Kingdom. The law of the United Kingdom in that respect might be changed by statute. But without Australian legislation, the effect of s1 of the Australia Act would be to deny the extension of the United Kingdom law to the Commonwealth, the States and the Territories.

94. There is no precise analogy between this state of affairs and the earlier development of the law respecting the monarchy in England, Scotland and Great Britain. It has been suggested[126]:

“The Queen as monarch of the United Kingdom, Canada, Australia and New Zealand is in a position resembling that of the King of Scotland and of England between 1603 and 1707 when two independent countries had a common sovereign.”


But it was established that a person born in Scotland after the accession of King James I to the English throne in 1603 was not an alien and thus was not disqualified from holding lands in England. That was the outcome of Calvin’s Case[127]. Nor does the relationship between Britain and Hanover between 1714 and 1837 present a precise analogy, if only because there was lacking the link of a common law of succession[128].

IV CONCLUSIONS

95. Almost a century has passed since the enactment of the Constitution Act in the last year of the reign of Queen Victoria. In 1922, the Lord Chancellor[129] observed that doctrines respecting the Crown often represented the results of a constitutional struggle in past centuries, rather than statements of a legal doctrine. The state of affairs identified in Section III of these reasons is to the contrary. It is, as Gibbs J put it[130], “the result of an orderly development – not … the result of a revolution”. Further, the development culminating in the enactment of the Australia Act (the operation of which commenced on 3 March 1986[131]) has followed paths understood by constitutional scholars writing at the time of the establishment of the Commonwealth.

96. The point of immediate significance is that the circumstance that the same monarch exercises regal functions under the constitutional arrangements in the United Kingdom and Australia does not deny the proposition that the United Kingdom is a foreign power within the meaning of s 44(i) of the Constitution. Australia and the United Kingdom have their own laws as to nationality[132] so that their citizens owe different allegiances. The United Kingdom has a distinct legal personality and its exercises of sovereignty, for example in entering military alliances, participating in armed conflicts and acceding to treaties such as the Treaty of Rome[133], themselves have no legal consequences for this country. Nor, as we have sought to demonstrate in Section III, does the United Kingdom exercise any function with respect to the governmental structures of the Commonwealth or the States.

97. As indicated earlier in these reasons, we would give an affirmative answer to the question in each stated case which asks whether Mrs Hill, at the date of her nomination, was a subject or citizen of a foreign power within the meaning of s 44(i) of the Constitution. [Back to Menu]


2) Justice Gaudron Extract


164
The first consideration which tells against the United Kingdom not being permanently excluded from the concept of “a foreign power” in s 44.(i) of the Constitution is that the Constitution, itself, acknowledges the possibility of change in the relationship between the United Kingdom, on the one hand, and the Commonwealth of Australia and the Australian States, on the other. Thus, for example, s34 acknowledges that Parliament may alter the qualifications for election so as to eliminate the requirement that candidates be subjects of the Queen. Of greater significance is that, by s5l(xxxviii) of the Constitution, the Commonwealth has power to legislate with respect to “the exercise within the Commonwealth, at the request or with the concurrence of the Parliaments of all the States directly concerned, of any power which can at the establishment of this Constitution be exercised only by the Parliament of the United Kingdom or by the Federal Council of Australasia”. It was pursuant to s51.(xxxviii) that the Parliament of the Commonwealth enacted the Australia Act 1986 (Cth), to which further reference will shortly be made.

165. The second consideration is that, It is implicit in the existence of the States as separate bodies politic with separate legal personality, distinct from the body politic of the Commonwealth with its own legal personality. The separate existence and the separate legal identity of the several States and of the Commonwealth is recognised throughout the Constitution, particularly in Ch III[203].

166. Once it is accepted that the divisibility of the Crown is implicit in the Constitution and that the Constitution acknowledges the possibility of change in the relationship between the United Kingdom and the Commonwealth, it is impossible to treat the United Kingdom as permanently excluded from the concept of “foreign power” in s 44(i) of the Constitution. That being so, the phrase is to be construed as having its natural and ordinary meaning.


3) Royal Style and Titles Act 1953


(The Royal Style and Titles Act 1953 was repealed
by the Statute Law Revision Act 1973 (No
216, 1973)
vide the enactment of the Royal Style and Titles Act 1973)

Royal Style and Titles Act 1953
No. 32 of 1953.

An Act relating to the Royal Style and Titles
[Reserved for Her Majesty’s pleasure, 18th March, 1953.]
[Queen’s Assent, 3rd April, 1953.] [Queen’s Assent proclaimed, 7th May, 1953,]

Preamble

WHEREAS it was recited in the preamble to the Statute of Westminster, 1931 that it would be in accord with the established constitutional position of all the members of the British Commonwealth of Nations in relation to one another that any alteration in the law touching the Royal Style and Titles should, after the enactment of that Act, “require the assent as well of the Parliaments of all the Dominions as of the Parliament of the United Kingdom”:

AND WHEREAS the Style and Titles appertaining to the Crown at the time of the enactment of the Statute of Westminster, 1931 had been declared by His then Majesty King George V in a Proclamation in pursuance of the Royal and Parliamentary Titles Act, 1927 of the United Kingdom, and were, in consequence of the establishment of the Republic of India, subsequently altered with the assent as well of the Parliaments of Canada, Australia, New Zealand and the Union of South Africa as of the Parliament of the United Kingdom:

AND WHEREAS it was agreed between the Prime Ministers and other representatives of Her Majesty’s Governments in the United Kingdom, Canada, Australia, New Zealand, the Union of South Africa, Pakistan and Ceylon assembled in London in the month of December, One thousand nine hundred and fifty-two, that the Style and Titles at present appertaining to the Crown are not in accord with current constitutional relationships within the British Commonwealth and that there is a need for a new form which would, in particular, “reflect the special position of the Sovereign as Head of the Commonwealth”:

AND WHEREAS it was concluded by the Prime Ministers and other representatives that, in the present stage of development of the British Commonwealth relationship it would be in accord with the established constitutional position that each member country should use for its own purposes a form of the Royal Style and Titles which suits its own particular circumstances but retains a substantial element which is common to all:

AND WHEREAS it was further agreed by the Prime Ministers and other representatives that the various forms of the Royal Style and Titles should, in addition to the appropriate territorial designation, have as their common element the description of the Sovereign as “Queen of Her other Realms and Territories and Head of the Commonwealth”:

AND WHEREAS it was further agreed by the Prime Ministers and other representatives that the procedure of prior consultation between all Governments of the British Commonwealth should be followed in future if occasion arose to propose a change in the form of the Royal Style and Titles used in any country of the British Commonwealth:

Be it therefore enacted by the Queen’s Most Excellent Majesty, the Senate, and the House of Representatives of the Commonwealth of Australia as follows:-

Short title

1. This Act may be cited as the Royal Style and Titles Act 1953.

Commencement

2. This Act shall come into operation on the day on which it receives the Royal Assent.

Definition

3. In this Act, “the United Kingdom” means the United Kingdom of Great Britain and Northern Ireland.

Assent to adoption of Royal Style and Titles in relation to Australia

4.
(1.) The assent of the Parliament is hereby given to the adoption by Her Majesty, for use in relation to the Commonwealth of Australia and its Territories, in lieu of the Style and Titles at present appertaining to the Crown, of the Style and Titles set forth in the Schedule to this Act, and to the issue for that purpose by Her Majesty of Her Royal Proclamation under such seal as Her Majesty by Warrant appoints.
(2.) The Proclamation referred to in the last preceding sub-section shall be published in the Gazette and shall have effect from the date upon which it is so published.

Assent to adoption of Royal Style and Titles in relation to other countries of British Commonwealth

5. The assent of the Parliament is hereby given to the adoption by Her Majesty, for use in relation to Her other Realms and Territories, in lieu of the Style and Titles at present appertaining to the Crown, of such Style and Titles as Her Majesty thinks fit, in accordance with the principles that were formulated by the Prime Ministers and other representatives of British Commonwealth Countries assembled in London, as recited in the Preamble to Act.

THE SCHEDULE

The Royal Style and Titles

Elizabeth the Second, by the Grace of God of the United Kingdom, Australia
and Her other Realms and Territories Queen,
Head of the Commonwealth, Defender of the Faith.

4)5)6)7)8)9)10)11)12)13)14)15)16)17)18)19)20)21)22)23)24)25)26)27)28)29)30)31)32)33)34)35)36)37)38)39)40)41)42)43)44)45)46)47)48)49)50)51)52)53)54)55)56)

57) Notes from Final Report of the Constitutional Commission 1988tooltip({ tip: "#footnote_plugin_tooltip_text_56", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] });tooltip({ tip: "#footnote_plugin_tooltip_text_55", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] });tooltip({ tip: "#footnote_plugin_tooltip_text_54", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] });tooltip({ tip: "#footnote_plugin_tooltip_text_53", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] });tooltip({ tip: "#footnote_plugin_tooltip_text_52", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, 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[102] eg Barton v Commonwealth (1974) 131 CLR 477, 498 (Mason J); Victoria v Commonwealth and Hayden (1975) 134 CLR 338, 406 (Jacobs J); New South Wales v Commonwealth (1975) 135 CLR 337.373 (Barwick C J).
[103] PH Lane, The Australian Constitution (1986) viii.
[104] (1982) 151 CLR 101,109.

58)59)60)61)62)63)64)65)66)67)68)69)70)71)72)73)74)75)76)77)78)79)80)81)82)83)84)85)86)87)88)89)90)91)92)93)94)95)96)97)98)99)100)101)102)103)104)105)106)107)108)109)110)

111) Notes from Sue v Hill [1999] HCA 30 – 23 June 1999 – S179/1998 and B49/1998)

[91] Cunneen, King’s Men – Australia’s Governors-General from Hopetoun to Isaacs , ( 1983) at 173-182tooltip({ tip: "#footnote_plugin_tooltip_text_110", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] });tooltip({ tip: "#footnote_plugin_tooltip_text_109", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] });tooltip({ tip: "#footnote_plugin_tooltip_text_108", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] });tooltip({ tip: "#footnote_plugin_tooltip_text_107", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] });tooltip({ tip: "#footnote_plugin_tooltip_text_106", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, 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[92] Inglis Clark, Studies in Australian Constitutional Law , (1901 ) at 323.
[93] Final Report of the Constitutional Commission , (1988), vol 1, pars 2.122-2.123.
[94] at 70.
[95] (1979) 14.5 CLR 246 at 261.
[96] Strachan v The Commonwealth (1906) 4 (Pt 1) CLR 455 at 461-463, 464-465. See also the recitals to the Papua Act 1905 (Cth).
[97] See the recitals to the Christmas Island Act 1958 (Cth) and the Cocos (Keeling) Islands Act 1955 (Cth).
[98] Chitty, Prerogatives of the Crown , (1820), Ch XI, Section III.
[99] Dixon v London Small Arms Company (1876) 1 App Cas 632 at 652.
[100] “‘The Crown’ as Representing ‘the State”‘, (1903) 1 Commonwealth Law Review 23 at 30. See also Hogg, Liability of the Crown , 2nd ed (1989) at 9-13; Law Reform Commission of Canada, The Legal Status of the Federal Administration , Working Paper 40, (1985) at 24-28.
[101] “The Crown as Corporation”, (1901) 17 Law Quarterly Review 131 at 144 (footnote omitted).
[102] Victoria v The Commonwealth (Industrial Relations Act Case ) (1996) 187 CLR 416 at 477-478.
[103] Inglis Clark, Studies in Australian Constitutional Law , (1901) at 65-66.
[104] Instrument dated 1 December 1987, Commonwealth of Australia Gazette , $270, c_) September 1988; see Starke, “Another residual constitutional link with the United Kingdom terminated; diplomatic letters of credence now signed by Governor-General”, (1989) 63 Australian Law Journal 149.
[105] (1996) 189 CLR 253 at 289.
[106] See, generally, Foreign states Immunities Act 1985 (Cth), ss 9-22.
[107] (1988) 165 CLP, 178 at 183-186.
[108] (1876) 1 App Cas 632 at 651.
[109] “The Crown as Representing the State”, (1904) 1 Commonwealth Law Review 145 at 146-147.
[110] Who, legally [represented] the King, but really [represented] the British ‘State’.
[111] As with regard to the reservation of Bills and the exercise of the power of pardon in matters affecting imperial interests.
[112] Williams v Attorney-General for New South Wales (1913) 16 CLR 404 at 448.
[113] (1975) 135 CLR 337 at 494.
[114] Federal Commissioner of Taxation v Official Liquidator of E 0 Farley Ltd (1940) 63 CLR 278 at 302-303.
[115] “The Crown as Corporation”, (1904) 20 Law Quarterly Review 351 at 357.
[116]Words of limitation omitted in 1910, after a successful referendum: Constitution Alteration (State Debts) Act 1909 (Cth).
[117] Evatt, The Royal Prerogative , (1987) at 63.
[118] “The Crown as Corporation”, (1904) 20 Law Quarterly Review 351 at 358. See also Harrison Moore, “Law and Government”, (1906) 3 Commonwealth Law Review 205 at 207.
[119] “The Crown as Corporation”, (1904) 20 Law Quarterly Review 351 at 359.
[120] (1948) 76 CLR I at 363.
[121] (1985) 159 CLR 22 at 28-29, 39.
[122] (1992)174 CLR 219 at 230-231.
[123] Minister for Works (WA) v Gulson (1944) 69 CLR 338 at 350-351.
[124] “The Crown as Corporation”, (1904) 20 Law Quarterly Review 351 at 362.
[125] (1999) 73 ALJR 345 at 352-353, 359, 364-368, 387-390; 160 ALR, 638 at 647-649, 656-657, 663-669, 695-700.
[126] Zines, The High Court and the Constitution , 4th ed (1997) at 314.
[127] (1606) 7 Co Rep la [77 ER 377]. Coke’s report of the litigation was “a massive achievement of ponderous learning”: Tanner, English Constitutional Conflicts in the Seventeenth Century 1603-1689 , (1957) at 269.
[128] Nolan v Minister for Immigration and Ethnic Affairs (1988) t 65 CLR 178 at 192-193; In re The Stepney Election Petition; Isaacson v Durant (1886) 17 QBD 54 at 59-60.
[129] Viscount Birkenhead LC in Viscountess Rhondda’s Claim [1922] 2 AC 339 at 353.
[130] Southern Centre of Theosophy Inc v South Australia (1979) 145 CLR 246 at 261.
[131] Commonwealth of Australia Gazette , s85, 2 March 1986 at 1.
[132] Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178.
[133] See European Communities Act 1972 (UK), European Communities (Amendment) Act 1986 (UK), European Communities (Amendment) Act 1993 (UK) and R v Secretary of State for Transport; Ex parte Factortame Ltd [1990] 2 AC 85; R v Secretary of State for Foreign and Commonwealth Affairs; Ex parte Rees-Mogg [1994] QB 552; R v Employment Secretary; Ex parte Equal Opportunities Commission [1995] 1 AC 1.
[203] See especially ss 75(iii), (iv) and 78.

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References   [ + ]

1. High Court of Australia Decision Sue V Hill

The following is an extract of the High Court decision (High Court of Australia, Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ – Sue v Hill [1999] HCA 30 – 23 June 1999 – S179/1998 and B49/1998) relating to the Henry (Nai Leung) Sue – Petitioner and Heather Hill & ANOR Respondents case in which Heather Hill lost her right to take her place in the Senate post the 1998 Federal election

2. Justice Gaudron Extract


164

3. Royal Style and Titles Act 1953


(The Royal Style and Titles Act 1953 was repealed
by the Statute Law Revision Act 1973 (No

4. ****************************************************

* Notes from Final Report of the Constitutional Commission 1988

5. ***************************************************

* Notes from Final Report of the Constitutional Commission 1988