Monday, October 29, 2012


 I am reading a book on ancient Egypt that I found last week when I came across this interesting little piece on the employment of name and title for the Pharaoh. Although it doesn't answer all of our questions, it does illustrate a few interesting things and I hope that it'll make a bit of sense to those of you that are researching the importance of the name, the prenomen, the nomen, and the title as it's employed by the so-called elites for themselves, as well as for us.

“The word Pharaoh is derived from the two words per aa, Great House. In the middle of the Eighteenth Dynasty the phrase was employed for the first time as an honorific manner of referring to the king himself, just as the Sultan of Turkey was called the Sublime Porte (Great Door) or the medieval Emperor of China was called the Grand Khan (Great Palace). For superstitious reasons it was not desirable to use the name of so powerful a person in a direct fashion: a polite circumlocution was preferred. In actual fact Pharaoh bore not but five ‘great names,’ which he assumed on the day of his accession. The list of names and titles, known as titular, followed an invariable sequence. Suitably enough, it began with the Horus name. This name, by which the king was commonly known in early dynastic, consisted of the particular personification of Horus which the king chose for his personal use on earth. This name was often enclosed in a rectangular frame representing a primitive form of the royal palace with a crowned falcon perched on tp. After the Horus name came the Nebty or Two Ladies name, the two ladies in question being the vulture goddess Nekhebet of Upper Egypt and the cobra goddess Buto of Lower Egypt. The title was an ancient one, perhaps assumed by the founder of the First Dynasty to signify that the Two Lands were united in his person. This third name was the Golden Horus name, the significance of which is imperfectly understood. On the Rosetta Stone, dating from the Late Period, the Greek scribe employed the phrase ‘Horus superior to his foes’ to translate the Egyptian title. In the early period the monogram may have symbolized more particularly the victory of Horus over Seth, or even his reconciliation with Seth. Between the Golden Horus name and the fourth name stood a title which reads ‘He who belongs to the Sedge and the Bee’, symbols respectively of Upper and Lower Egypt. The title is thus translated ‘King of Upper and Lower Egypt.’ The fourth name was the prenomen, the king’s principal name, employed upon his monuments and in his documents. From the time of Cheops onwards, with a few Old Kingdom exceptions, it was compounded with the name of the god Ra. Finally there came the namen, preceded by the epithet ‘Son of Ra.’ The nomen usually consisted of the family name of the dynasty or the personal name of the king before his accession to the throne. The prenomen and nomen were enclosed in separate cartouches. “Cartouche’ is the French word for a cartridge, which in its elongated form the Egyptian object resembles. The actual Egyptian words means ‘circle,’ and under the First Dynasty the cartouche was simply the king’s name inscribed within a circular clay seal. Some authorities prefer to describe it as a double thickness of rope with the ends tied together. There may be the symbolic suggestion that the Pharaoah whose name was inside the cartouche governed all that was ‘encircled by the sun,’ the outline of the cartouche representing the diurnal course of the sun across the heavens. A full example of the titular may now be given. The following are the names and titles of the great Tuthmosis III of the Eighteenth Dynasty:
            Horus Strong-bull-arising-in-Thebes, Two Ladies Enduring-of-kingship-likeRa-in-heaven, Golden Horus Powerful-of-valour-and-holy-of-diadems, King of Upper and Lower Egypt Menkheper-Ra (i.e. The-appearance-of-Ra-is-established), Son of Ra, Tuthmosis-beautiful-of-appearance (Tuthmosis, i.e. Thoth-is-born), beloved of Hathor, Lady of the Turqoise.
            The reference to the Lady of the Turqoise was included in this particular example of Tuthmosis III’s titular because it was carved at Sinai by an expedition which brought back from the famous quarries a supply of that coveted stone. Although Pharaoh tended to emphasize the prenomen, it is the nomen which Egyptologists have used to build up their sequence of kings. The manner in which Egyptologists render these royal names deserves a brief comment, for the newcomer to the subject is often bewildered by the wide variety of forms to be found in Egyptological publications. Thus the name Tuthmosis can be found in the form of Tethmosis, Thutmosis, Thotmosis, Thutmose, Thutmase, Thothmes, Thotmes, Tehutimes, Djehutimes and so on. To take another example, Sesostris occurs at Senusert, Senusret and Senwosret. The prime difficulty involved in rendering proper names is to decide whether to accept the Hellenized forms handed down by Manetho and other ancient writers or whether to attempt an approximate transliteration of the original Egyptian. Thus Tuthmosis and Sesostris are the Greek renderings of words which may originally have sounded dimly like Djehutimes and Senwosret. The safest rule would seem to be to use word forms which are clear, euphonious, readily pronounceable and supported by authoritative scholarship. Perverse, pedantic and uncouth word forms are to be avoided. No systemic usage can be agreed upon and the matter must remain one for personal taste and judgement. Anomalies are bound to occur. For example, the present writer, while employing the forms Tuthmosis and Sesostris, does not employ the Hellenized form Sethos for Seti on the ground that it is not so much in general use.[1]

[1] Ancient Egypt. Its Culture and History. J.E. Manchip White

Friday, October 26, 2012


Tuesday 1 May 2012
Courts and our democracy – Just another government agency?
Public misapprehension of the role of the Courts
Recently The Australian newspaper published an article about problems in the Department of Justice and the corrections system in Victoria. The article related to the death of a prisoner in custody. It included a statement that there were failings at the highest levels of justice.
This statement troubled me. It involved a misapprehension of justice and the role of the courts. It is a misapprehension perpetuated these days within the public sector and possibly misunderstood in the media and the community. Justice is delivered by the courts applying the rule of law.
Rather than my delivering a pontificating legal address about the ‘Rule of Law’, let me try to give the concept a political setting. At the Commonwealth Heads of Government meeting in Abuja, Nigeria, in 2003, the Latimer House Principles on the Three Branches of Government were resolved. They were seen as a set of guidelines on good practice governing relations between the Executive, Parliament and the Judiciary ‘in the promotion of good governance, the rule of law and human rights’.
Although now ten years old the principles are worth revisiting. They describe the three branches of government or the trinity articulated by Montesquieu centuries ago. They describe that the relations between Parliament and the Judiciary should be governed ‘by respect for parliament’s primary responsibility for law making on the one hand and for the judiciary’s responsibility for the interpretation and application of the rule of law on the other hand’.
Significantly, the guidelines state that the judiciaries and parliaments should fulfil their respective but critical roles ‘in the promotion of the rule of law in a complementary and constructive manner’.
The guidelines go on to consider the independence of the Judiciary. They state that ‘an independent, impartial, honest and competent judiciary is integral to upholding the rule of law, engendering public confidence and dispensing justice’.
The guidelines also include a section on the role of non-judicial and non-parliamentary institutions. They expressly focus on the role of the Executive.
Significantly, the guidelines state that an independent, organised legal profession is an essential component in the protection of the rule of law and that the Executive must refrain from obstructing the functioning of an independent legal profession.
Incongruity of the public sector and political perception of the courts as ‘part of the Government of the day
Now the Latimer House guidelines state the high principles that would be adopted without hesitation by Victorian politicians and public administrators. Let us look, however, as to how the interaction between the Parliament, the
Judiciary and the Executive plays out in practice. It is particularly the interaction between the Judiciary and the Executive upon which I will focus.
We should recall that Thatcherism had a dramatic impact on public administration. In the 1990s Victoria shifted to mega-departments and the courts found themselves as a mere business unit along side areas such as gaming, emergency services, corrections and police. The title of ‘justice’ was appropriated to cover all sorts of non-court functions, indeed, anything remotely connected to social control, culminating in a department of justice. Under this system, departmental officers make the ultimate decisions, not the courts, about the provision of resources to the courts. Thus, notwithstanding its constitutional function under the Australian Constitution and the Constitution Act of Victoria the Supreme Court of Victoria is ‘business unit 19’ of the Department of Justice.
The development of ‘law and order’ as a political topic overlooking or pushing to one side the traditional role of the rule of law
For a long time now, law and order has become part of the political armoury of the modern politician. I can remember years ago, Senator Ivor Greenwood speaking publically about the need for law and order and the promotion of a sense of safety in the community.
This, of course, has continued to be developed into a principal political plank of state governments. ‘Law and order’ is associated with a prominent police presence and a strong spectre of corrections as a consequence of any breach to the laws of the state. Yet, whilst the police investigate and prevent crime and the corrections authorities carry out society’s admonition, punishment, rehabilitation and general consequences for criminal offending, it is only achievable because of the application of the rule of law.
Parliament creates the laws of society and together with the common law, judge made law developed by the courts, we have the set of rules that underpin the rule of law. However, as we know, Parliament is the law maker. It is up to the courts to apply the rule of law. So, for example, it is not the role of the Parliament to submit a person to trial for wrong doing and, if convicted, sentence the individual. That is the role of the courts.
I suspect it is in fact confusing for the public which starts out equating the courts with justice to observe blurred lines between the facilitator of resources for the courts – the government department, the investigator of crime – the police, and the enforcer of the courts decision – the corrections system.
We would rarely hear a politician or a public administrator speak of ‘the rule of law’. Rather, they are more likely to speak of ‘law and order’ and ‘community safety’. What in fact has occurred is that the concept of the rule of law has merged with the more populist catchcry ‘law and order’ and ‘community safety’.
Public administrators’ concept of justice as a ‘service’ that they (i.e. the public administrators) provide cf. the application of the rule of law by the courts
It is important to understand that the courts serve the community. However, they do not serve the community in the same way as members of Parliament or public administrators. Courts serve the community by applying the rule of law in an open and transparent way. The courts cannot apply the rule of law in a way that is politically expedient or subject to the policies of the government of the day. This of itself sometimes creates a misapprehension on the part of some public administrators as to what they believe courts should do.
Alexander Hamilton cautioned in the Federalist Papers that in practice the Judiciary is the weakest of the three branches of government because it controls neither the sword nor the purse. Yet, through the application of the rule of law the courts have the power and authority to overrule or strike down the laws made by the Parliament, to direct or restrain actions by Ministers of the government of the day and the public administrators serving that government.
The significance of the role that the courts play in cases where the citizen versus the state and citizen versus citizen
One way of comprehending the value and significance of courts to our democratic structure is to reflect on the types of cases that go through the courts. In criminal cases the state represented by the prosecuting authority brings a citizen before the court. It is a matter of the State v the Citizen. We have important, fundamental principles applied in our criminal justice system. A person is entitled to a fair trial, a fair hearing and is innocent until proved guilty beyond reasonable doubt. Whilst we now have a Charter of Human Rights in Victoria, these principles are ancient rights that can be traced back to the origins of our democratic society, the development of the rule of law and our civilisation as we know it.
Day in day out, in the Victorian courts, individuals are prosecuted for minor through to major criminal offending. On any given day across the state, but in particular in Melbourne, individuals are prosecuted for offences in the Magistrates’ Court such as drink driving, assault, theft, drug trafficking and possession. In the County Court accused are prosecuted for more serious crimes and tried before a jury of 12 individuals. The prosecution carries the obligation to prove the guilt, beyond reasonable doubt, of the individual. In the County Court the serious offences played out each day involve cases such as intentionally causing serious injury, drug trafficking and rape. In the Supreme Court, mostly, the cases are homicide cases where the citizen faces the prospect of life imprisonment if convicted.
The importance of the courts in maintaining peace and harmony
Sometimes it is forgotten in the running commentaries about our political structures and society that the courts play an important part in maintaining peace and harmony within our society. Professor Hazel Genn in the 2008 Hamlyn Lectures spoke about the role of civil justice as a public good. It facilitates peaceful dispute resolution between citizens thereby avoiding citizens resorting to confrontation and violence as may occur in less civilised societies. There is a collective benefit in the rule of law. It supports the tranquillity of the state through ensuring social order, cohesion and, significantly, restraint on the Executive. As Professor Genn also points out civil justice re-enforces the civic values and norms of our society.
Most disputes in society are not resolved in court. In the civil cases litigated in the courts less than five percent ultimately go before a judge. These days civil litigation is largely resolved through alternative dispute resolution such as mediation and arbitration or settlement between the parties. However, it is the fact of a civil justice system symbolised by the courts that enables parties to enforce their rights. It is also the power of the courts that brings reluctant parties to the negotiating table.
Sometimes there is a view in society that judges are old fashioned because of the ancient rituals of the court room, our procedures, our insistence on due process and very often our appearance in the robes that we wear. However, the modern judiciary plays a critical role in the efficient management of cases and the promotion of alternative dispute resolution between parties frequently culminating in settlement of cases to the greater social good.
That is the civil side.
On the criminal side there has been a growth in the criminal justice system. We need only look at the shelves of statutes enacted each year in State and Federal Parliaments to have some indication of the extent to which modern society is increasingly regulated by the laws of the state. Professor Genn has described this phenomenon as ‘legislative hyperactivity’. Inevitably as politicians and public administrators seek to ensure the delivery of the law and order agenda combined with a sense of safety in the community so there is a greater call on the judiciary to oversee the application of those laws, the application of the rule of law and the protection of the citizen’s rights.
All this leads to the maintenance of peace and harmony in our society.
Just as the courts are the protectors of the rule of law so they need to be protected and separated from the Executive
In the interests of society the courts, as the protectors of the rule of law, need themselves to be protected and separated from the Executive. Sometimes, too, they need to be protected from the Parliament. I will speak in a moment about courts’ performance. However, there is a dramatic difference between the performance by the courts of their role and function and that of the Executive.
The Judiciary performs in a constant way: transparently open to the public and in a way that enables the public to know how the outcomes are determined. Each day courts list their cases so that the public know what cases will be heard where. This is part of the openness of the courts. It facilitates the media in learning which cases will be determined on a particular day. It also enables the public, if they wish, to come and sit in a court room and observe justice played out. When the public come they do not see a bureaucrat perform an office-like function, writing a report, preparing a budget or distributing funding. A judge does not sit at a desk in a private office. Instead a judge sits in an open court room. The events in the court room - that is what is said - are recorded, evidence is documented and the case is argued in an open court room before an impartial, unbiased individual who is beyond corruption. The judge is independent and must be so. Ultimately when the case is decided a judge is bound to give reasons for the decision. This is all part of the transparency of justice. The judge is not preparing a report to a political master. The judge provides a reasoned judgment which is publically available to the parties and, in the Supreme Court usually on line, so that the public knows why the decision was reached. This in turn enables an aggrieved individual to have at least one right of appeal to a higher court to identify any error by the first court. All this is part of the justice system.
It is a long, long way from the offices of the Department of Justice.
However, judges need to be able to focus on their work in an environment that is adequately resourced. It is difficult for courts to compete against the palpable human demands on government of medical care, educational needs and housing and accommodation requirements. It is easy to comprehend why a politician will more readily react to meeting the fundamental and immediate human needs of health, education and housing before turning to the sometimes less obvious needs of justice. However, if we do not have courts applying the rule of law and delivering a justice system we put at risk the very provision of health, education and housing services. Without the courts, there will be no civil society or democracy.
It is fundamental to our democratic society that the courts be protected and separated from the Executive.
The undesirability of a government department (in Victoria the Department of Justice) controlling judges’ staff, court registries, IT and other essentials
In Victoria we have a courts governance system where court budgets and resources are controlled by the Department of Treasury and Finance and the Department of Justice. Treasury determines each year the budget to be provided to the courts. For the Supreme Court we have an annual budget of about $50 million dollars. A large part of the total budget of the Department of Justice is calculated on the provision of the needs of the courts.
The courts charge fees for litigation. They do not set or keep those fees. The monies go directly into consolidated revenue, the government’s fund. The Supreme Court is the highest revenue earner of the courts (about $13M of the total courts’ fees pool of about $25M). Under s.29 of the Financial Management Act a portion of the total courts’ fees are returned to the Attorney-General who distributes the monies among the courts. $3M is automatically paid to meet the unfunded contract liability for the PPP for the County Court building. Under the previous government a sizeable portion went to projects of the Attorney-General and to meet unfunded recurrent expenditure. The balance was broadly split across the three main courts (about $1M each). The current Attorney-General is endeavouring to ensure that the courts receive all the monies for their purposes.
It is important for citizens to know that despite courts charging fees, especially the Supreme Court, they do not keep or control them.
The approach of public administration is to see court fees as a means of costs recovery. Yet even then, the level of costs recovery by government in the Supreme Court is about 31 per cent compared with approximately 9-11 per cent in the Federal Court. It remains that the delivery of justice is an important and necessary cost to government. It is a fundamental cost for our social democracy. Costs recovery is anathema to the concept of justice.
The Victorian Department of Justice has a very large budget. Included in its budget is a component for depreciation (about $50M) and contingency (about $30M). If the courts need funding for their buildings or to meet an unexpected contingency (such as the damage to the Supreme Court building in March 2010 following the dramatic hail storms in Melbourne) the courts must appeal to the Department of Justice to accommodate the financial need. If an unexpected phenomenon arises in litigation, such as the prosecution of the various killings during the gangland era, we must turn to the Department of Justice to provide us with the necessary funding to meet that demand. We have no independent resources available to us. If the Department does not exhaust its depre ciation or contingency monies the courts do not have access to the funds. Indeed, we have no say over thefunds even though they are calculated and budgeted by Treasury in part on the basis of the courts’ needs.
If government introduces law reform measures such as extended supervision orders for serious sex offenders whose sentences have expired, the courts are usually expected to simply take on the extra burden.
Similarly, when governments determine to increase the resources of the police, traditionally this has occurred in isolation without considering what the consequences might be for the courts. Let me give a more recent example. The state government over a period of four years will increase the police numbers in Victoria by 1700. We know that with the increased numbers the Victoria Police will particularly focus on domestic violence including sexual offences. Experience dictates that inevitably there will be an increased reporting of crime and therefore an increased prosecution of crime within the courts. However, no provision is made for an increase in the Judiciary and courts’ resources to meet that demand. I estimate that the increased number of police in Victoria will lead to an increase in the order of 25 per cent of sexual offences cases in this state. This in turn will have a flow on effect into trial courts, in particular the County Court and then the Court of Appeal within the Supreme Court. That is not to suggest that I am critical of the increase in police numbers. Rather, it is to highlight how the courts are over-looked. It is also to demonstrate that if the courts are to perform their role and function of applying the rule of law then they should not be involved in the political equation. It needs to be understood that the courts are above and beyond politics.
Most recently the State government announced its sustainability measures resulting in reduction in numbers of staff in the public sector. In the last eight years the courts have largely been quarantined from these types of arrangements. The cut in staff numbers was announced across the board with very few exemptions. Initially the courts were not excluded and thus the reductions would have applied to judges’ staff.
When a judge sits in court their staff are essential to the judicial process. If I take a criminal trial, the judge’s staff consist of an associate and tipstaff or two associates. With a criminal trial those staff will assist with the empanelment and management of the jury. The judge does not do that directly. I mentioned earlier that everything that occurs in court is usually recorded. In trials, transcripts are produced. The staff who prepare the transcripts, the Victorian Government Reporting Service, prepare the transcribed word of what the judge, barristers and witnesses say in court. But the courts themselves do not directly control the staff or fund the provision of that transcript.
Court cases do not occur in isolation. Parties need to file papers in both criminal and civil proceedings, trial and appellate. These papers are received in registries where files are created in both hard and soft copy. Judges do not create the files but the files themselves are an important part of the judicial process. The files will contain the very document, called the writ, that commences the proceeding and brings the dispute before the court. All these files and documents need to be managed. Court registries are an integral part of courts and their function. Thus reductions to judicial staff, transcription services and registries would impede the sittings of judges and their application of the rule of law. Initially when the State government’s sustainability measures were announced the courts, especially the Supreme Court were dramatically affected. The action reflected a misunderstanding of what courts do and their vital role. It was an example of courts being treated as just another government agency. Fortunately, the intervention of the Attorney-General largely resolved matters and protected the courts.
As a demonstration of the Executive purported controlling the courts, in the Victorian Parliamentary Public Accounts and Estimates Committee Outcomes Report for 2010-11 a curious paragraph appeared. It recited that the results for the Department of Justice’s performance measure ‘Quality of Court Registry Services’ had consistently been above 95 per cent but that for 2010-11 the figure had declined to 85 per cent. The Public Accounts and Estimates Committee approached the Department of Justice for information about the ‘sudden and significant decline in service quality’. The Department responded saying that the 85 per cent figure was merely an estimate and that the actual result was confirmed at 95 per cent. The Department went on to report that ‘it has introduced changes to ensure the actual result can be reported sooner rather than rely on an estimate’.
The question must be asked, what was the Department of Justice doing reporting upon the performance and work of court registry services? To be direct it is none of the business of the Department of Justice. More so, it was curious that the Department of Justice did not involve the courts themselves, certainly not the Supreme Court, in seeking advice on the performance of the Court’s registry. Another point, the information that was vetted by the Public Accounts and Estimates Committee was derived from the Annual Report of the Department of Justice. A further question can be asked, what was the Department of Justice doing reporting on court registry services in its departmental report. Again, I reiterate, the performance of court registries has nothing to do with the Department of Justice. It is the business of the courts themselves.
For many years the courts have been concerned about the fact that IT services are encompassed within the mega Department of Justice. The concern was heightened with the announcement of the previous government of the CenITex proposal for the centralization of IT resources. In a nutshell, the Supreme Court informed the government that it would not participate in the CenITex process. It was seen to go to the very heart of the independence of the Judiciary. The Supreme Court was prepared to “pull the plug” and return to typewriters. As matters stand, there is a potential capacity for the operators of the Department of Justice IT system to look into the judgments of judges before they are delivered. That is to not to say it occurs, nonetheless, the potential is dangerous and offensive.
I am very pleased to say that by the end of this financial year the Department of Justice will have assisted the Supreme Court in achieving a separate IT system from the Department. For the first time judges’ emails, judgments and other court documents will be entirely separate from the Department of Justice. Now it might be asked is this all just a little too precious? The fact remains that a significant litigator in the Supreme Court is the Secretary and the Department of Justice. The citizen at the other end of that litigation needs to know that the Court is separate from the Secretary and the Department. The need for the independence of the Supreme Court in this regard is self evident.
Inevitably there are other aspects of government management of courts that warrant consideration. The Integrated Court Management System was the subject of criticism by the Ombudsman in his report on government IT services (completed in consultation with the Auditor-General). The ICMS system was developed over six years ago by the then Victorian government in order to achieve an integrated data collection system for the Victorian courts and, at some point, e-filing. It has been implemented, so far, only in the Supreme Court and partly in the Coroner’s Court at a total cost of over $60 million. It has not proved a success. In developing the system the Department of Justice held the control and took the leadership function. The Judiciary was essentially left out of the specification process.
The report of the Ombudsman demonstrates the need for the courts to have their own system and self manage that system.
Current systems of governance in Australia – the federal model, the South Australian Authority model and the states executive model
We have three courts governance models in Australia: the federal model – independent and self managed of which the Federal Court is the obvious example; the courts authority model – a cooperative and joint institution run by the three courts, Supreme, District and Magistrates, chaired by the Chief Justice of which South Australia is the prime example; the executive model – a dependant institution run within a state government department of which all states except South Australia are examples and of which Victoria is the most extreme example.
The current state of governance developments in Victoria: the Government’s policy for a Courts Executive Service
In the state context a number of attempts have been made at altering the executive model. Eighteen months ago, the Victorian Attorney-General, the Hon. Robert Clark, commenced the development of a new courts governance model for Victoria. The Attorney-General largely contemplated a South Australian courts authority model with appropriate adaptation for Victoria including any suitable aspects of the federal model. Study discussions were led by the Attorney with the Victorian heads of jurisdiction and Department of Justice personnel to see the Chief Justice of South Australia, the Honourable John Doyle AC and his courts administration authority colleagues. We also met, separately, the Chief Justices of the Federal Court and the Family Court of Australia with their CEOs.
Next the Victorian Attorney established a Courts Executive Service Steering Group chaired by the former Federal Court Chief Justice the Honourable Michael Black AC. It consisted of the Victorian heads of jurisdiction, the secretaries of the Departments of Premiers, Treasury and Justice and two leading economists. We met for the better part of 2011 and provided a report to the Attorney-General. The Attorney-General’s proposal to separate the courts from the Executive arm of government is essentially supported by the courts.
However, inevitably the creation of a courts executive service and separating it from the Executive arm of government is challenging for some public administrators across the wider public service. In my experience the courts are interrogated as to why and how they should be separated from the Executive arm with a largely dominant focus on costs saving, economies of scale, efficiencies and productivity savings.
If I turn back to some of my observations at the beginning, this kind of language and approach seems to equate courts with government departments, hence the title of this discussion.
A little while ago the community services component of the Victorian Department of Health was separated. A new department was created. The split apparently cost millions of dollars. By contrast, the separation of the courts from the Victorian Department of Justice is generally considered by some public administrators to be one that can be achieved on a cost neutral basis which will provide efficiencies and opportunities for costs savings. Do remember here we are talking about the separation of the third arm of government not just the splitting of a department. Whereas the health experience was allocated millions, the courts are expected to achieve something greater, but, with savings. It seems to me that there is a serious misunderstanding, indeed, misapprehension, as to the role of the courts.
Currently, the senior Justice Department administrators provide extensive support. They and the courts do their best to make things work. Some excellent projects have been achieved. However, the present courts governance structure is inappropriate, clumsy and compromises the independence of the courts. This is a non-partisan matter that the courts have been explaining for almost ten years.
The Victorian Attorney-General continues to pursue the establishment of the courts executive service. He is supported by the courts.
The special constitutional role of Supreme Courts: Kable, Kirk, Totani
I have spoken broadly about the judiciary and the courts. Yet there is a special constitutional role of State Supreme Courts under the Australian Constitution. Sometimes, state parliaments have endeavoured to constrain the powers of Supreme Courts and their capacity to intervene in government action. In a line of cases in the last few years the High Court of Australia has made it clear that the state Supreme Courts have a special constitutional role.
The High Court has held that the supervisory jurisdiction of state Supreme Courts cannot be removed by a state parliament.
Furthermore, legislation that would compromise the integrity of a Supreme Court will be struck down as invalid.
In that context it is at least ironic and, indeed, questionable, for government departments under the Executive to be able to interfere in and constrain the functions of courts through the provision of services and resourcing.
Courts’ accountability and performance: the measurement of courts performance
All of the Victorian courts are accountable to the Victorian Parliament. They each provide separate annual reports.
In addition, under the Council of Australian Governments (COAG) regime there is the annual report of government services (ROGS). Included in the report is a chapter on courts administration. There is detailed analysis of each of the state and federal courts on a state and national basis broken down into categories of civil and criminal, trial and appellate. The report is intended to provide a national comparison of courts’ performance.
In the Supreme Court as part of assessing our own performance we have embarked upon the International Framework for Court Excellence. The framework was developed by an international consortium. Under the rubric of the framework the Supreme Court has developed a strategic statement. Our goal is to be an outstanding superior court. We define our purpose as safe-guarding and maintaining the rule of law to ensure:
• Equal access to justice
• Fairness, impartiality and independence in decision making
• Processes that are transparent, timely and certain
• Accountability for the court’s use of public resources; and
• The highest standards of competence and personal integrity.
In addition, as part of the framework we have developed a five-year plan, a business plan, and have prepared to publish public feedback and assessment of our performance.
All this is intended to be part of the ongoing improvement of transparency and accountability of the Supreme Court. The framework documents I have just mentioned will shortly go up on the Supreme Court website. They are presently delayed because we must await facilitation by the State government’s ‘e-gov’ services before we can put up our own material on our own website.
External review of courts’ performance
There are of course other agencies that will purport to vet court’s performance and integrity: the Auditor-General, the Ombudsman and, when established, IBAC.
The question of performance audits of non-judicial functions of courts was examined in Victoria by a parliamentary committee reviewing the Audit Act 1994. The position adopted by the committee, on independent legal advice, and supported by government was it is unlikely that there are any constitutional impediments to the Auditor-General conducting audits of the non-judicial functions of the courts assuming it would not interfere with the exercise of the courts’ jurisdiction or affect the exercise of the judicial function. However, there are difficulties in discerning the line between what is judicial and what is non-judicial or administrative. A similar principle applies with respect to the Ombudsman.
As for IBAC or any corruption commission, at the end of the day someone must supervise the investigator and protect the citizen from unlawful investigation. And that, at the end of the day, will be the Supreme Court.
The need for the recognition of courts’ capacity to be accountable and administratively competent
The reticence or scepticism that is displayed by some towards greater independence for the courts fails to recognise the effectiveness of the modern superior court. The Victorian Supreme Court for a number of years has achieved a balanced budget. It has dramatically reduced delays through judge-driven initiatives and reforms acknowledged by the government allocating $3.2M to the court. It has introduced its own electronic filing system presently being piloted called RedCrest at a fraction of the cost of the ICMS system I mentioned earlier.
When we look at the Report on Government Services data we see that the Victorian Supreme Court delivers justice at a nationally efficient and economic level.
What every citizen is entitled to expect
Every Victorian citizen is entitled to expect a Judiciary made up of judges who are independent and impartial and who decide cases without fear, favour, affection or ill-will. That is the judicial oath we take as judges. The citizen is also entitled to be confident that there will be sufficient judges assigned to hear cases; that court sittings will be scheduled; that court lists will be controlled and managed in a way so that cases can be heard expeditiously; that there will be courtrooms available where judges can sit and determine cases; and that there will be a registry and court staff capable of carrying out these functions and supporting judges in the delivery of justice in the determination of disputes between citizens and between the citizen and the state. Above all else the citizen is entitled to expect a Judiciary which is not subjected to controls and interference from the Executive, independent of the government of the day and beyond corruption.
Inevitably, the question posed as to whether courts are just another government agency is answered with a resounding no.
The courts must be given an institutional structure that enables them to truly function independently.
Democracy is precious.
Because of the critical role of the courts in our democratic system their independence cannot be compromised.
Postscript: a few hours before the lecture was given the State Budget for 2012-13 was delivered. At p. 186-190 of the Budget under the Department of Justice section a heading appears ‘Dispensing Justice’. There follows a set of ‘outputs’ under which the aims of the Department (as distinct from the courts) are stated including to ‘administer justice according to law’. The statement demonstrates another appropriation of the courts’ function by the Executive.
Further, at p. 186-190 of the Budget a series of ‘major outputs’, ‘deliverables’ and ‘performance measures’ are laid down. The Supreme Court was not consulted about the inclusion of these disaggregated targets. They are rejected as inappropriate. The Court sets targets and reports on its performance to the Parliament. Targets are not set by the Treasury. They also carry the inference that if the Supreme Court does not meet these externally imposed targets funding will be reduced.
The targets equate the courts with a car factory. If the courts do not meet ‘management’s’ production-line target they will be penalised. The courts deliver justice and apply the rule of law. They do not ‘produce’ cars, widgets or anything else.
Relevantly, the rest of the Department of Justice section in the Budget sets out ‘major outputs’, ‘deliverables’ and ‘performance measures’ for all or most of the Department. They cover a range of Executive activities including emergency management, gambling, liquor regulation, racing, consumer protection and legal policy and law reform. The approach reflects yet again the serious misapprehension that the courts are ‘just another government agency’.


Thursday, October 25, 2012


Court Seal

The Supreme Court Seal

The Supreme Court Seal is often confused with the Supreme Court emblem or incorrectly referred to as the Court Coat of Arms and the Court Crest.
The true Court Seal is used by the Registry of the Court to seal documents such as warrants, certificates of admission to practise as a barrister and solicitor and probate orders and parchments. The small, round rubber stamp used by various members of the Judiciary and Court staff, is used in accordance with Rule 28.04(1) of the Supreme Court Rules which provides for those judiciary and staff to, "...have in his custody a stamp the design of which shall as near as practicable be the same as the design of the seal of the Court with the addition of..." The Rules then go on to say that marking a document with this stamp is sufficient compliance, where there is a requirement that a document be sealed with the seal of the Court.
The Supreme Court Seal bears a variation of the Royal Coat of Arms of the United Kingdom of Great Britain and Northern Ireland and is inscribed thereon with the words "The Seal of the Supreme Court of the State of Victoria".

Coat of Arms

A "Coat of Arms" is a pictorial identification which historically was a means of identifying "friend" or "foe" during battle. Drawings and designs were used to mark a warrior's shield and sometimes his armour. The term Coat of Arms refers to the custom in the 11th to 15th centuries of displaying the Arms on a tunic or coat worn over armour.
Today a Coat of Arms is still used as a means of identification. It is also a sign of authority and the use of it is strictly limited to the holder. Permission to use a Coat of Arms must be sought from the relevant authority; for example, applications for permission to use the Royal Arms are made to the Official Secretary to the Governor-General.
The Royal Arms were first used by Richard the Lionheart and were modified many times over nine centuries until Queen Victoria succeeded to the throne in 1837. Queen Victoria adopted a simplified form of the Royal Arms which are still in use today by Her Majesty Queen Elizabeth II.
A Coat of Arms, often incorrectly referred to as a "Crest", is made up of a number of elements. In the Royal Coat of Arms, the shield shows the various Royal emblems of parts of Britain: the three lions of England in the first and fourth quarters, the lion of Scotland in the second and the harp of Ireland in the third. It is surrounded by a garter bearing the motto Honi soit qui mal y pense (Evil to him who evil thinks), which symbolises the Order of the Garter, an ancient Order of knighthood of which the Queen is Sovereign. The shield is supported by the English lion and the Scottish unicorn and is surmounted by the Royal Crown. Below it appears the motto of the Sovereign Dieu et mon droit (God and my right). The plant badges of the United Kingdom - rose, thistle and shamrock - are often displayed beneath the shield.
A Crest is an accessory to a Coat of Arms. Historically it was an emblem displayed on the helmet of a knight. A Crest appears above the shield or where there is a helmet in the Arms, above the helmet. In the Royal Coat of Arms the Crest is the crowned lion standing on the Royal Crown. The Supreme Court seal does not contain the Royal Crest as it is a symbol used exclusively by the Sovereign. In the Commonwealth Coat of Arms, the Crest is the seven pointed gold star above the shield.
Supporters are the animals, birds or persons appearing on either side of the shield. The lion and the unicorn are the supporters in the Royal Coat of Arms.

The Commonwealth Coat of ArmsThe Commonwealth Coat of Arms

King Edward VII made the first official grant of a Coat of Arms to the Commonwealth of Australia by Royal Warrant of 7 May 1908. This Coat of Arms was fairly simple in design and included the Commonwealth star as a symbol of national unity (six of the points represent the six States - the seventh represents the Territories). The Arms however lacked any specific reference to the States and a new design was approved by King George V by Royal Warrant of 19 September 1912. That design included the addition of six 'quarters' to the shield, which represent the six States. It is this Coat of Arms which is used by the Commonwealth today.
In 1915 the Prime Minister Mr Fisher provided guidance for the use of the Commonwealth Coat of Arms. He reminded officials that the Arms were intended to be used whenever it was necessary to denote Commonwealth property and where it was appropriate that such emblems be used.
The Coat of Arms is used by the Commonwealth on buildings, for example Parliament House Canberra and the Federal Courts. It also appears on departmental correspondence, legal tender and official documents such as passports.

The Victorian Coat of ArmsThe Victorian Coat of Arms

The Victorian Coat of Arms was granted by King George V by Royal Warrant of 6 June 1910. On 28 March 1973, Queen Elizabeth II signed a Royal Warrant which added Victoria's floral emblem, the Pink Heath, to Victoria's Coat of Arms. The Victorian Coat of Arms is used by State Government bodies, but not the Supreme or County Courts.

The Supreme Court Seal

The Supreme Court Seal bears an impression of the Royal Coat of Arms in accordance with the Act which established the Court in 1852 (15 Vic., No 10). That Act was called "An Act to make provision for the better Administration of Justice in the Colony of Victoria".
Section IX of the aforementioned Act stated "That the said Supreme Court of the Colony of Victoria shall be a Court of Record, and shall have and use as occasion may require, a Seal bearing an impression of the Royal Arms of England [sic], having inscribed on a label thereon the words "The Seal of the Supreme Court of the Colony of Victoria; and such Seal shall be delivered by the Lieutenant Governor of the said Colony to and be kept in the custody of the Chief Justice of the said Court".
Section 14 of the Supreme Court Act 1915 changed the wording on the Seal to "The Seal of the Supreme Court of the State of Victoria". Section 14 made some other minor amendments to s.IX of the 1852 Act as did s.76 of the Constitution Act 1975, but the overall meaning and authority as set out in s.IX of the Act remain in force today.
It is interesting to note that s.IX of the 1852 Act went on to say (para-phrased in "plain English"') that any person who forges the seal of or document issuing from the Court or who serves or enforces any such forged process, document etc, shall be guilty of felony; and being convicted thereof, shall be liable to be sentenced at the discretion of the Judge to be worked on the roads of the Colony for a period of between five and ten years; or up to three years' imprisonment. In 1915 the penalty for the said felony became imprisonment with or without hard labour for a term of not more than ten years.


Permission to use the Victorian Coat of Arms was granted by the Protocol and Special Events Branch of the Department of Premier and Cabinet and permission to use the Commonwealth Coat of Arms was granted by the Awards and National Symbols Branch of the Department of Prime Minister and Cabinet.

Wednesday, October 24, 2012


CHANGES to patent rules are being considered that could make it easier for British pharmaceutical companies to develop new drugs.
The Intellectual Property Office (IPO) is looking at amending the Patents Act to remove some of the risks of legal action for infringing patents.
Under current UK law, a limited level of research can be conducted using patented products without infringing the rights of the patent owners.
However, this does not extend to clinical and field trials, which must be carried out before a drug can be licensed.
A pharmaceutical company may legitimately need to use a patented drug in a clinical trial, for instance to compare a new drug with a patented product, or to develop therapies combining new and patented compounds.
But currently, if a company uses a patented product as part of a trial it risks being sued by the patent owner.
The new proposals would remove this risk and create a more supportive environment for pharmaceutical research and development.
An eight week consultation on the changes was launched today.
Intellectual property minister Lord Marland said: "The UK needs an intellectual property system which supports our world class UK pharmaceutical industry that invests over STG12 million ($A18.57 million) in research and development every day.
"Our proposals look to remove the uncertainty around patent infringement in clinical and field trials, so that our life sciences sector continues to create jobs and growth in the UK economy."

Tuesday, October 23, 2012


Sean Fewster, Andrew Dowdell and Colin James adelaidenow October 18, 2012
HUNDREDS of drivers may be able to seek compensation - and dozens of court cases are frozen - because SA's anti-hoon laws have been declared invalid.
Police will stop seeking court orders to sell or crush cars seized from the state's drivers after the Chief Justice ruled anti-hoon laws are invalid, as the Attorney-General John Rau considers an appeal.
On Tuesday, Chief Justice Chris Kourakis overturned an order for a Port Pirie man to forfeit his car in what has become a test case on the validity of the anti-hoon laws.
Police have used the anti-hoon laws to seize thousands of vehicles from drink-drivers over the past five years, earning millions of dollars in impound fees.
Hundreds of the cars have been sold or crushed after police have obtained forfeiture orders from magistrates.
South Australia Police Deputy Commissioner Grant Stephens today said police would  not be making any further applications in court for forfeiture of vehicles following the judgement.
Lonsdale impoundment yard
SA police inspector Andrew Thiele with impounded cars at the Southern Impound Lot, Lonsdale. Picture: Brenton Edwards
"This judgement does not impact in any way on the ability of the police to either impound or clamp a vehicle detected of specific offences detailed within the act, such as drink driving, excessive speed or misusing a motor vehicle," he said.
"Police will still enforce this part of the legislation in the same way as it has in the past.
"Forfeiture matters that are currently before the courts will be dealt with by adjournment until the Crown has examined the judgement and determined any need to appeal or provide legislative change."

It is the second time that a Rann-era law has been deemed constitutionally "repugnant", following the failure of the anti-bikie legislation in 2010.
Impounded cars
Cars at the northern impound yard at Salisbury South, showing vehicles that have been impounded by police.
The Attorney-General is examining the decision by Chief Justice Kourakis and whether the legislation needs to be amended but lawyers urged him to scrap it and start afresh.
Defence counsel Ralph Bleechmore said he had acted for 90 people prosecuted under the state's anti-hoon laws.
"They weren't hoons but ordinary people suffering because of the seizure or destruction of their cars," Mr Bleechmore said.
"The so-called hoon Act is not about hoons at all - it's about generating publicity," he said.
The section of the law relating to impounding cars remains unaffected by His Honour's decision, which deals with the permanent forfeiture of vehicles.
Lonsdale impoundment yard
Impounded cars at the Southern Impound Lot, Lonsdale. Picture: Brenton Edwards
Last year, Graeme Anthony Bell was ordered by a magistrate to forfeit his 1996 Commodore utility after being convicted for a third drink driving offence in a 10-year period.
Mr Bell argued the state's Clamping, Impounding and Forfeiture of Vehicles Act (2007) was invalid on constitutional grounds and challenged the decision in the Supreme Court of South Australia.
His lawyers argued that police did not have authority to punish offenders - and this was the responsibility of courts.
Chief Justice Kourakis yesterday ruled in favour of Mr Bell, saying the anti-hoon legislation took away the discretion of the courts and applied a double punishment to drink-drivers, who would lose their licences and be fined by magistrates.
He said State Parliament had handed police powers to punish people that it was unable to give.
Impoundment yard
Seized scooters and motorcycles at the northern impoundment yard.
In his judgement, Chief Justice Kourakis singled out the wording of the act as the problem.
He said it obliged the state's courts to order cars be forfeited, at the request of police prosecutors, and removed their discretion to refuse.
Chief Justice Kourakis said it was incompatible with High Court rulings that protected the independence of judges from political interests.
He said that forfeiture also acted as a double punishment, for offenders, on top of fines, convictions and disqualification.
"(Such an) order substantially increases the effective penalty above that fixed by the court... in the exercise of its sentencing discretion," he said.
"In imposing that additional penalty the courts act ministerially... as an instrument of the executive government to make an order which is dictated by the very terms of the prosecution's application.
"The forfeiture jurisdiction conferred on the courts of this State is incompatible with their constitutional status as courts which must be fit for investiture with federal judicial power."
Yesterday afternoon, Mr Rau said he was considering an appeal.
"The law, having now been interpreted in a certain way by the Chief Justice in this case presents us with a matter that we are going to have to consider carefully," Mr Rau said.
"Whatever goes on, this is not the whole of the legislation that has been attacked.
"It is a particular provision and many of the other provisions in the legislation dealing with the confiscation of vehicles will continue to operate."
Mr Rau said it was "really too early to say" if cars would have to be returned or compensation paid.
He said it was not yet possible to say how many people or vehicles had been affected under the disputed provision.
Determining the full impact of the ruling was likely to take several days.
"It is obviously from our policy position an unwelcome decision," he said.
"It may be, if this decision is to stand, that we have to look at whether the wording of that provision is adequate to achieve the policy outcome.
"I don't think there's any question about the policy outcome being one that has not been well-received by the community and quite effective as a deterrent."
Since the law allowing police to impound vehicles was introduced in 2009, more than 22,000 cars have been clamped or impounded.
In the 2011-2012 financial year, police clamped or impounded 7932 vehicles.
Of those vehicles, 178 were destroyed, 26 were sold at auction and six were publicly crushed.
The number of clamped or impounded vehicles rose from 7303 in the 2010-11 financial year.
In July, figures revealed police were impounding and clamping nearly 160 cars a week.
There were 8167 cars impounded or clamped in 2011 the first full calendar year after legislative changes broadened the list of offences for which cars could be seized.
That number included 7774 impounded and 393 clamped vehicles.
And that total compares with 5077 in the 2009-10 financial year, 3230 in 2008-09 and 1464 in 2006-07.
About one-third of impounded cars last year belonged to drivers who were reported for drink-driving offences.
Under current laws, it costs owners more than $900 to collect vehicles that have been impounded for a minimum of 28 days, up from $800 in 2011.
Yesterday, former attorney-general Michael Atkinson told 891 ABC Adelaide the anti-loon legislation was crafted during Chief Justice Kourakis' time as solicitor-general.
"He would not have been putting things together (but) he would have advised us from time-to-time, that was his role," he said.
"Now he has a different role, and that's fair enough."
Mr Atkinson defended the law, saying Chief Justice Kourakis' objection was based on "highly technical" legal concepts.
Opposition justice spokesman Stephen Wade said the Government needed to do more prep work before tabling bills.
"Once again, a Labor law is found to be trampling the rights of South Australians," he said.
"That's not uncommon with this Government.
"We will be calling on the Government to review all legislation and bills to make sure they stand up to scrutiny."
>> What the Chief Justice says is wrong with the law:* Courts must order forfeiture whenever a prosecutor asks.
* Courts have no discretion to say no, nor to vary the terms of the forfeit.
* Courts must order forfeiture even if it interferes with, or adds to, an offender's existing penalty.
* Forfeiture is often the most substantial part of the penalty.
* Prosecutors, not the courts, control how severe that punishment is because they get to pick which car is forfeited.
* An application for forfeiture amounts to the government ordering the court to do something.
* The applications force the court to act politically.
* Prosecutors can seek forfeiture retrospectively, forcing the courts to punish people months after their offence was committed.

Wednesday, October 17, 2012


As a record number of lawsuits against the city's police move into litigation, the price tag is $150 million a year and growing. Where will it stop?
Lawsuits against the city’s police soared to a record 2,004 cases entering the courts in the year that ended July 1.
That’s a 28 percent increase over the previous fiscal year, as recorded in the recently released Mayor’s Management Report. It indicates that the flood of cases brought against the New York City police — which have seen a 63 percent rise over the last decade — has not subsided.
Because cases against the NYPD can take at least two to three years to conclude, a spike now means that payouts for court judgments and settlements are likely to squeeze the city budget in coming years.
“It suggests the city has a ticking time bomb for making payouts for police conduct,” said Mark Taylor, an attorney who represents plaintiffs in police misconduct cases. “There is tremendous pressure on the police to make arrests and keep crime numbers low but if there is little legal basis, that costs them money years later.”
More than 2,000 new legal cases hit the NYPD last year, foreshadowing a surge in future payouts to plaintiffs. Photo: Michael Summers/Flickr
Meanwhile, a federal judge ruled this week that the city is liable for hundreds of arrests the NYPD made during the Republican National Convention in 2004, opening up the possibility that plaintiffs could sue for false arrest and further exacerbate the problem.
In 2010, the NYPD became the city agency with the highest volume of tort claims with more than 8,100, surpassing the Department of Transportation and the Health and Hospitals Corporation, and accounting for $135.8 million of the city’s total expenditures for judgments and settlements, according to the New York City Comptroller.
The Mayor’s Management Report only includes claims that have been assigned a litigation start date, and not all claims result in litigation. Some claims may be settled between the city and the plaintiff outside of court, and others never develop into a lawsuit because the claim was baseless or too weak to build a case.
Though the Mayor’s Management Report does not break down its data on cases by type, in past years the rise has been fueled by civil rights lawsuits, which are handled by the Special Federal Litigation Division of the Law Department.
In the most recent five years documented by the Comptroller’s Office, civil rights claims brought against the NYPD increased by 70 percent, from around 1,500 in 2006 to more than 2,600 in 2010. The cost of those claims totaled about $78 million in fiscal year 2010.
The Comptroller’s Office has not yet released the 2011-’12 edition of its biannual report on legal claims against the city, but lawyers who file civil rights cases say the volume of litigation has likely continued to rise.
“All of us have noticed a huge increase in lawsuits against police,” said Joel Berger, a civil rights attorney for 45 years who was a senior litigator with city’s Law Department from 1988 to 1996. “People are going to the [Civilian Complaint Review Board] less and going to the courts more. The city is overloaded with complaints and lawsuits.” (The Mayor’s Management Report shows a 25 percent decrease in Civilian Complaint Review Board cases since the previous edition, to 5,724 last year.)
“Whether it’s stop and frisk, marijuana arrests, trespassing — this stuff is completely out of control,” said Berger.
The NYPD paid out $80 million to plaintiffs who had filed tort lawsuits against the department — a sharp decline from the $99.8 million it paid out last year and a return to a level last seen in 2008, according to the Mayor’s Management Report.
But that’s not the entire picture of the NYPD’s exposure to legal claims. The mayor’s official budget statement, filed earlier this year, shows that the NYPD expected to spend $154 million in 2012 on judgments and claims. For fiscal year 2013, now underway, the NYPD has budgeted $180 million for payouts.
New York City has made efforts in recent years to limit the extraordinary sums of money it spends on tort cases. While Los Angeles pays approximately $14 dollars per capita each year, New York City spends about $81.
In its 2011 bi-annual report on legal claims, the Comptroller’s Office recommended that the police department begin pilot programs to reduce risk and the costs of litigation. The number of claims, the report said, represent a “growing area of concern.”
In response to the rise, the city has been lawyering up, increasing the size of its Special Federal Litigation Unit staff from 92 to 127. Rose Weber, a plaintiffs’ attorney who previously worked for the Law Department, says she saw a clear shift in the city’s posture as the number of lawyers boomed. “They got really cocky, saying we’re not going to settle, we’re going to take them to trial,” said Weber.
However, the city’s eagerness to file motions for dismissal of cases angered some judges, according to Weber. “In two of my cases, the judges were furious. In one, the judge threatened sanctions. I think the city decided ‘let’s pull back on that strategy’ once they saw they were not going to get them all thrown out,” she said.
The Law Department declined to comment for this story. But its 2011 annual report stated that the Special Federal Litigation Division expanded its trial practice and won an “unprecedented 21 consecutive defense verdicts.” The report also indicated that the department is advocating for tort reform measures in an effort to end what it calls the “litigation lottery.”
City Councilmember Peter Vallone, Jr., who chairs the council Public Safety Committee, contends that too many cases gets settled regardless of actual wrongdoing, and that the Law Department should be taking even more to trial.
“Their policy is to settle way too many cases,” said Vallone about the Law Department. “If the Corporation Counsel only settled cases where the police department were wrong, the police could learn a bunch of stuff from that. But if they settle for reasons unknown, then it makes it much harder for police to know.”
To save millions of dollars down the road, the city’s approach to police claims, said Vallone, should be “settle when you’re guilty, learn from it, and fight like hell if you’re not.”
In the past, some within police ranks have claimed the rise in cases is the result of a cottage industry of greedy plaintiffs’ lawyers. But the increasing media attention paid to the NYPD’s tactics might also explain the increase. Coverage of several high profile court cases challenging stop-and-frisk practices, for example, mean plaintiffs are more aware of their rights and the ability to use the courts as a forum for redress, said one attorney. 
“There’s been a lot of public analysis of whether police are engaging in these tactics and whether they are discriminatory,” said Katherine Rosenfeld, who represented 22,000 plaintiffs in a loitering class action settlement against the NYPD that resulted in a $15 million settlement this year. “I think it has filtered into the public consciousness, perhaps even more than other police misconduct lawsuits have in the recent past.”
During budget hearings in May, City Council members raised concerns about the toll of NYPD judgments and claims on the city’s budget. “It is a significant amount, and some of it may be associated with Stop, Question and Frisk,” said Police Commissioner Ray Kelly in response to questioning. “You have to look at the totality, and you have to look at the effects of the tactics and strategies and practices that are in place.”
Berger maintains that the city has so far taken the wrong approach to decreasing litigation against the police and should be following the example of cities like Los Angeles and Chicago, which track litigation data and use it to identify problem officers and issues.
“It is absolutely absurd to respond to an increase in lawsuits by simply hiring more lawyers and defending to the hilt,” he said. “That is such poor public policy. What they should be doing is asking themselves, ‘Why?’”

Tuesday, October 16, 2012


[S.10] Guerin v The Queen
[S.20] R v Sparrow
[S.30] Mabo v Queensland (No. 2)
[S.40] Wik Peoples v Queensland
[5.05] Judges in the highest courts in Canada, Australia and New Zealand have recognised the existence of fiduciary duties owed by government to aboriginal persons. These duties function as a check on the exercise of government power that may otherwise be, in practical terms, unbridled. There appear to be two principal inquiries in this context. First, from where is the fiduciary duty derived? Secondly, what are the duties attendant to the fiduciary relationship? These inquiries are invariably interrelated, for the source of the fiduciary duty will in many cases determine its scope. It is in the Canadian courts in which the concept is most developed. The following extracts from the leading cases in each jurisdiction serve to convey the nature and scope of this emerging fiduciary responsibility.
[5.10] Guerin v The Queen (1984) 13 DLR (4th) 321 (Supreme Court of Canada)
[The Indian Act 1952 (Can) required reserves to be held by the Crown for the use of the respective Indian bands for which they were set apart (s 18 (1)). The Act also prohibited the sale, alienation, leasing or other disposal of reserve land until it had been surrendered to the Crown by the band for whose use and benefit in common the reserve was set apart (s 37). The latter provision was directed ensuring that, by interposing the Crown between the bands and prospective purchasers or lessees of their land, the bands would not be exploited. The Musqueam band of Indians surrendered part of an Indian reserve set apart for its use to the Crown “in trust to lease the same to such person or persons, and upon such terms as the Government of Canada may deem most conducive to our welfare and that of our people”. The Crown subsequently entered into a lease upon less favourable terms than those approved by the band at the surrender meeting. The leading judgment was delivered by Dickson J, with whom Beetz, Chouinard and Lamer JJ agreed.]
DICKSON J … [334] … The issue of the Crown’s liability was dealt with in the courts below on the basis of the existence or non-existence of a trust. In dealing with the different consequences of a “true” trust as opposed to a “political” trust, [the trial judge] noted that the Crown could be liable only if it were subject to an “equitable obligation enforceable in a court of law”. I have some doubt as to the cogency of the terminology of “higher” and “lower” trusts, but, I do agree that the existence of an equitable obligation is the sine qua non for liability. Such an obligation is not, however, limited to relationships which can be strictly defined as “trusts”. As will presently appear, it is my view that the Crown’s obligations vis-á-vis the Indians cannot be defined as a trust. That does not, however, mean that the Crown owes no enforceable duty to the Indians in the way in which it deals with Indian land.
In my view, the nature of Indian title and the framework of the statutory scheme established for disposing of Indian land places upon the Crown an equitable obligation, enforceable by the courts, to deal with the land for the benefit of the Indians. The obligation does not amount to a trust in the private law sense. It is rather a fiduciary duty. If, however, the Crown breaches this fiduciary duty it will be liable to the Indians in the same way and to the same extent as if such a trust were in effect. The fiduciary relationship between the Crown and the Indians has its roots in the concept of aboriginal, native or Indian title. The fact that Indian bands have a certain interest in lands does not, however, in itself give rise to a fiduciary relationship between the Indians and the Crown. The conclusion that the Crown is a fiduciary depends upon the further proposition that the Indian interest in the land is inalienable except upon surrender to the Crown.
An Indian band is prohibited from directly transferring its interest to a third party. Any sale or lease of land can only be carried out after a surrender has taken place, with the Crown acting on the band’s behalf … The surrender requirement, and the responsibility it entails, are the source of a district fiduciary obligation owed by the Crown to the Indians…
[340] … The purpose of this surrender requirement is clearly to interpose the Crown between the Indians and the prospective purchasers or lessees of their land, so as to prevent the Indians from being exploited … Through the confirmation in the Indian Act of the historic responsibility which the Crown has undertaken, to act on behalf of the Indians so as to protect their interests in transactions with third parties, Parliament has conferred upon the Crown a discretion to decide for itself where the Indians interest really lie … This discretion on the part of the Crown, far from ousting, as the Crown contends, the jurisdiction of the courts to regulate the relationship between the Crown and the Indians, has the effect of transforming the Crown’s obligation into a fiduciary one … [341] …[W]here by statute, agreement, or perhaps by unilateral undertaking, one party has an obligation to act for the benefit of another, and that obligation carries with it a discretionary power, the party thus empowered becomes a fiduciary. Equity will then supervise the relationship by holding him to the fiduciary’s strict standard of conduct …
It should be noted that fiduciary duties generally arise only with regard to obligations originating in a private law context. Public law duties, the performance of which requires the exercise of discretion, do not typically give rise to a fiduciary relationship. As the “political trust” cases indicate, the Crown is not normally viewed as a fiduciary in the exercise of its legislative or administrative function. The mere fact, however, that it is the Crown which is obligated to act on the Indians’ behalf does not of itself remove the Crown’s obligation from the scope of the fiduciary principle. As was pointed out earlier the Indians’ interest in land is an independent legal interest. It is not a creation of either the legislative or executive branches of government. The Crown’s obligation to the Indians with respect to that interest is therefore not a public law duty. While it is not a private law duty in the strict sense either, it is none the less in the nature of a private law duty. Therefore, in this sui generis relationship, it is not improper to regard the Crown as a fiduciary.
Section 18(1) of the Indian Act confers upon the Crown a broad discretion in dealing with surrendered land. In the present case, the document of surrender, set out in part earlier in these reasons, by which the Musqueam band surrendered the land at issue, confirms this discretion in the clause conveying the land to the Crown “in trust to lease … upon such terms as the Government of Canada may deem most conducive to our Welfare and that of our people” When, as here, an Indian band surrenders its interest to the Crown, a fiduciary obligation takes hold to [342] regulate the manner in which the Crown exercises its discretion in dealing with the land on the Indians’ behalf.
I agree with [the trial judge] that before surrender the Crown does not hold the land in trust for the Indians. I also agree that the Crown’s obligation does not somehow crystallize into a trust, express or implied, at the time of the surrender. The law of trusts is a highly developed, specialised branch of the law. An express trust requires a settlor, a beneficiary, a trust corpus, words of settlement, certainty of object and certainty of obligation. Not all of these elements are present here. Indeed, there is not even a trust corpus. As the Smith decision [Smith v The Queen (1983) 147 DLR (3d) 237] makes clear, upon unconditional surrender the Indians’ right in the land disappears. No property interest is transferred which could constitute the trust res, so that even if the other indicia of an express or implied trust could be made out, the basic requirement of a settlement of property has not been met. Accordingly, although the nature of Indian title coupled with the discretion vested in the Crown are sufficient to give rise to a fiduciary obligation, neither an express nor an implied trust arises upon surrender.
Nor does surrender give rise to a constructive trust … Any similarity between a constructive trust and the Crown’s fiduciary obligation to the Indians is limited to the fact that both arise by operation of law; the former is an essentially restitutionary remedy, while the latter is not. In the present case, for example, the Crown has in no way been enriched by the surrender transaction, whether unjustly or otherwise, but the fact that this is so cannot alter either the existence or the nature of the obligation which the Crown owes.
The Crown’s fiduciary obligation to the Indians is therefore not a trust. To say as much is not to deny that the obligation is trust like in character. As would be the case with a trust, the Crown must hold surrendered land for the use and benefit of the surrendering band. The obligation is thus subject to principles very similar to those which govern the law of trusts concerning, for example, the measure of damages for breach. The fiduciary relationship between the Crown and the Indians also bears a certain resemblance to agency, since the obligation can only be characterized as a duty to act on behalf of the Indian bands who have surrendered lands, by negotiating for the sale or lease of the land [343] to third parties. But just as the Crown is not a trustee for the Indians, neither is it their agent; not only does the Crown’s authority to act on the band’s behalf lack a basis in contract, but the band is not a party to the ultimate sale or lease, as it would be if it were the Crown’s principal. I repeat, the fiduciary obligation which is owed to the Indians by the Crown is sui generis. Given the unique character both of the Indians’ interest in land and of their historical relationship with the Crown, the fact that this is so should occasion no surprise.
The discretion which is the hallmark of any fiduciary relationship is capable of being considerably narrowed in a particular case. This is as true of the Crown’s discretion vis-á-vis the Indians as it is of the discretion of the trustees, agents, and other traditional categories of fiduciary. The Indian Act makes specific provision for such narrowing in ss 18(1) and 38(2). A fiduciary obligation will not, of course, be eliminated by the imposition of conditions that have the effect of restricting the fiduciary’s discretion. A failure to adhere to the imposed conditions will simply itself be a prima facie breach of the obligation. In the present case both the surrender and the Order in Council accepting the surrender referred to the Crown leasing the land on the band’s behalf. Prior to the surrender the band had also been given to understand that a lease was to be entered into with the Shaughnessy Heights Golf Club upon certain terms, but this understanding was not incorporated into the surrender document itself. The effect of these so-called oral terms will be considered in the next section.
[344] … [T]he Crown, in my view was not empowered by the surrender document to ignore the oral terms which the band understood would be embodied in the lease. The oral representations form the backdrop against which the Crown’s conduct in discharging its fiduciary obligation must be measured. They inform and confine the field of discretion within which the Crown was free to act. After the Crown’s agents had induced the band to surrender its land on the understanding that the land would be leased on certain terms, it would be unconscionable to permit the Crown simply to ignore those terms. When the promised lease proved impossible to obtain, the Crown, instead of proceeding to lease the land on different, unfavourable terms, should have returned to the band to explain what had occurred and seek the band’s counsel on how to proceed. The existence of such unconscionability is the key to a conclusion that the Crown breached its fiduciary duty. Equity will not countenance unconscionable behaviour in a fiduciary, whose duty is that of utmost loyalty to his principal.
While the existence of the fiduciary obligation which the Crown owes to the Indians is dependent on the nature of the surrender process, the standard of conduct which the obligation imports is both more general and more exacting than the terms of any particular surrender. In the present case the relevant aspect of the standard of conduct is defined by a principle analogous to that which underlies the doctrine of promissory or equitable estoppel. The Crown cannot promise the band that it will obtain a lease of the latter’s land on certain stated terms, thereby inducing the band to alter its legal position by surrendering the land, and then simply ignore that promise to the band’s detriment … In obtaining without consultation a much less valuable lease than that promised, the Crown breached the fiduciary obligation it owed the band. It must make good the loss suffered in consequence.
1. Wilson J (with whom Ritchie and McIntyre JJ agreed) held that, while the Crown did not hold reserve land under s 18 of the Indian Act 1952 in trust for the bands interests were limited by the nature of Indian title, it did hold the lands subject to a fiduciary duty to protect and preserve the bands’ interests were limited by the nature of Indian title, it did hold the lands destruction (at 357). Thus the Crown could not utilise reserve land for purposes incompatible with the bands’ Indian title unless the relevant band agreed.
2. From where did fiduciary duty in Guerin stem? How did Dickson J determine its extent? Cf Williams v Minister, Aboriginal Land Rights Act 1983 (1994) 35 NSWLR 497 AT 511 per Kirby, P, who held that the Aboriginal Welfare Board was in the nature of a statutory guardian of the appellant and, as such, the Board was obliged to act “in a manner apt for a fiduciary”. Contra at 519 per Powell JA dissenting; Williams v Minister, Aboriginal Land Rights Act 1983 (1999) 25 Fam LR 86 at 231-243 per Abadee J; State of South Australia v Lampard-Trevorrow (2010) 106 SASR 331 at [329]-[342] (FC).
3. In the context of fiduciary duties owed by government to aboriginal persons, is there a role for the trust? If so, how must the trust, as understood in the private law sphere, be modified to apply in the public law domain? Why was Dickson J unwilling to declare the existence of a trust? Cf Wilson J who held at 361 that the Crown’s fiduciary duty was founded upon aboriginal title, and “crystallized upon the surrender into an express trust of a specific land for a specific purpose”. Samson Indian Band and Nation v Canada (1995) 125 DLR (4th) 294 illustrates one of the difficulties in applying private trust concepts in the public sphere. It was argued that, as legal advice sought by trustees belongs to the beneficiaries in private trusts, a similar result ought to prevail in the government-aboriginal citizen relationship. The Canadian Federal Court of Appeal, in rejecting that contention, said (at 303):
The Crown can be no ordinary “trustee”. It wears many hats and represents many interests, some of which cannot be conflicting. It acts not only on behalf of or in the interests of the Indians, but it is also accountable to the whole Canadian population. It is engaged in many regards in continuous litigation … There being many possible “clients” or “beneficiaries”, there being many possible reasons for which the Crown sought legal advice, there being many possible effects in a wide variety of areas deriving from the legal advice sought, it is simply not possible at this stage to assume in a general way that all documents at issue, in whole or in part, are documents which were obtained or prepared by the Crown in the administration of specific “trusts” alleged by the respondents and in the course of the Crown carrying out its duties as “trustee” for the respondents.
R v Sparrow
[5.20] R v Sparrow (1990) 70 DLR (4th) 385 (Supreme Court of Canada)
[The accused was charged with the offence of fishing with a driftnet longer than permitted by the terms of an Indian food licence that had been issued to the Musqueam band, of which he was a member. In response, the accused argued that the regulation pursuant to which the licence was issued was invalid on the ground that the band had an aboriginal right to fish for food that could not be restricted by a licence. The accused pointed to s 35(1) of the Constitution Act 1982 (Can) – which read “the existing aboriginal and treaty rights of the aboriginal peoples are hereby recognized and affirmed” –to support this contention. The evidence showed that the Musqueam band operated as an organised society prior to the settlement of British Colombia by the white man, and that fishing for salmon in the area in question was, and remained, an integral part of their life.]
DICKSON CJC AND LA FOREST J … [408] … In our opinion, Guerin [v The Queen (1984) 13 DLR (4th) 321, extracted at [5.10]], together with R v Taylor and Williams (1981) 62 CCC (2d) 227, ground a general guiding principle for s 35(1). That is, the government has the responsibility to act in a fiduciary capacity with respect to aboriginal peoples. The relationship between the government and aboriginals is trust-like, rather than adversarial, and contemporary recognition and affirmation of aboriginal rights must be defined in light of this historic relationship …
[409] … There is no explicit language in [s 35(1)] that authorizes this court or any court to assess the legitimacy of any government legislation that restricts aboriginal rights. Yet, we find that the words “recognition and affirmation” incorporate the fiduciary relationship referred to earlier and so import some restraint on the exercise of sovereign power. Rights that are recognized and affirmed are not absolute. Federal legislative powers continue, including, of course, the right to legislate with respect to Indians pursuant to s 91 (24) of the Constitution Act 1867. These powers must, however, now be read together with s 35(1). In other words, federal power must be reconciled with federal duty and the best way to achieve that reconciliation is to demand the justification of any government regulation that infringes upon or denies aboriginal rights. Such scrutiny is in keeping with … the concept of holding the Crown to a high standard of honourable dealing with respect to the aboriginal peoples of Canada as suggested by Guerin v The Queen
Section 35(1) suggests that while regulation affecting aboriginal rights is not precluded, such regulation must be enacted according to a valid objective. Our history has shown, unfortunately all to [410] well, that Canada’s aboriginal peoples are justified in worrying about government objectives that may be superficially neutral but which constitute de facto threats to the existence of aboriginal rights and interests. By giving aboriginal rights constitutional status and priority, Parliament and the provinces have sanctioned challenges to social and economic policy objectives embodied in legislation to the extent that aboriginal rights are affected. Implicit in this constitutional scheme is the obligation of the legislature to satisfy the test of justification. The way in which a legislative objective is to be attained must uphold the honour of the Crown and must be in keeping with the unique contemporary relationship, grounded in history and policy, between the Crown and Canada’s aboriginal peoples. The extent of legislative or regulatory impact on an existing aboriginal right may br scrutinized so as to ensure recognition and affirmation.
The constitutional recognition afforded by the provision, therefore, gives a measure of control over government conduct and a strong check on legislative power. While it does not promise immunity from government regulation in a society that, in the twentieth century, is increasingly more complex, interdependent and sophisticated, and where exhaustible resources need protection and management, it does hold the Crown to a substantive promise. The government is required to bear the burden of justyfying any legislation that has some negative effect on any aboriginal right protected under s 35(1)
1. Their Honours concluded that (at 413): “The special trust relationship and the responsibility of the government vis-á-vis aboriginals must be the first consideration in determining whether the legislation or action in question can be justified.” The court held that the constitutional entitlement contained in s 35(1) required the Crown to ensure that its regulations were consistent with the giving of top priority to the Indian food fishery. A new trial was ordered to ascertain this.
2. Can the fiduciary obligation owed to aboriginal persons be seen to be a form of reverse discrimination? Is it possible that the Crown’s fiduciary duty to a minority could be inconsistent with the public benefit generally? How should the court deal with such a situation?
3. If a contract between two parties use the phrase “recognises and affirms” (or similar language) regarding the duty of one party to another, will this carry with it a fiduciary duty? For this to be so, must there also be vulnerability?
4. In New Zealand, pursuant to the State-Owned Enterprises Act 1986, the Crown proposed to transfer lands without establishing any system to determine the existence over such land of claims to the Waitangi Tribunal. In order to ally these fears, s 9 of the Act provided that nothing contained “shall permit the Crown to act in a manner that is inconsistent with the principles of the Treaty of Waitangi”. Bisson J explained the Crown’s obligation in this respect in New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641 AT 715:
The Maori chiefs looked to the Crown for protection from other foreign powers, for peace and for law and order. They reposed their trust for these things in the Crown believing that they retained their own rangatiratanga and taonga. The Crown assured them of the utmost good faith in the manner in which their existing rights would be guaranteed and in particular guaranteed down to each individual Maori the full exclusive and undisturbed possession of their lands which is the basic and most important principle of the Treaty in the context of the case before this court.
In Te Runanga o Wharekauri Rekohu Inc v Attorney-General [1993] 2 NZLR 301 at 306 Cooke P made the following observation:
The opinions expressed in this court in the cases already mentioned as to fiduciary duties and a relationship akin to a partnership have now been further strengthened by judgments in the Supreme Court of Canada and the High Court of Australia. In these judgments there have been further affirmations that the continuance after British sovereignty and treaties of unextinguished aboriginal title gives rise to a fiduciary duty and a constructive trust on the part of the Crown … In New Zealand the Treaty of Waitangi is major support for such a duty. The New Zealand judgements are part of widespread international recognition that the rights of indigenous peoples are entitled to some effective protection and advancement.
Given that Australia has no equivalent to the Treaty of Waitangi to support a fiduciary duty by government to indigenous citizens, on what basis could such a duty be found? Consider in this context the following extract from the judgment of Toohey J in Mabo v Queensland (No 2).
[5.30] Mabo v Queensland (No 2) (1992) 175 CLR 1 (High Court of Australia)
[The applicants, who were indigenous inhabitants of the Murray Islands located of the Queensland coast, sought declarations that: (a) the Meriam people were entitled to use and enjoy the islands (as owners, possessors or occupiers); (b) the Islands had never been “Crown land” under the (since repealed) Land Act 1962 (Qld); and (c) the State of Queensland was not entitled to extinguish the title of the previous Meriam people. The evidence established that the Meriam people occupied the said islands long before the white settlement of Australia, and that the islands’ current inhabitants descended therefrom. Toohey J was alone in relying on the fiduciary principle in acceding to the applicants’ contentions.]
TOOHEY J … [199] …The Plaintiff seeks a declaration that: “the Defendant is under a fiduciary duty, or alternatively bound as a trustee, to the Meriam people, including the Plaintiffs, to recognize and protect their rights and interests in the Murray Islands.” They argued that such a duty arises by reason of annexation, over which the Meriam people had no choice; the relative positions of power of the Meriam people and the Crown in right of Queensland with respect to their interests in the Islands; and the course of dealings by the Crown with the Meriam people and the Islands since annexation. However, while the plaintiffs claim the declaration just [200] mentioned, the statement of claim does not seek any specific relief for a breach of fiduciary duty.
Existence of the obligation
[His Honour discussed the factors giving rise to fiduciary duty, with particular reference to Hospital Products Ltd v United States Surgical Corp (1984) 156 CLR 41 (see the extract at [4.25]), and continued:]
The defendant argued that there is no source for any obligation on the Crown to act in the interests of traditional titleholders and that, given the power of the Crown to destroy the title, there is no basis for a fiduciary obligation. This can be answered in two ways. First, the argument ignores the fact that it is, in part at least, [201] precisely the power to affect the interests of a person adversely which gives rise to a duty to act in the interests of that person; the very vulnerability gives rise to the need for the application of equitable principles. The second answer is that the argument is not supported by the legislative and executive history of Queensland in particular and of Australia in general. In the present case, a policy of “protection” by government emerges from the legislation, examples of which are quoted above, as well as by executive actions such as the creation of reserves, the removal of non-Islanders from the Islands in the 1880’s and the appointment of a school teacher and an “adviser” in 1892. More general indications include the stated policy of protection underlying the condemnation of purported purchases of land by settlers from Aborigines as, for example, the John Batman incident referred to earlier. And even the general presumption that the British Crown will respect the rights of indigenous peoples occupying colonized territory, as discussed above, itself indicates that a government will take care when making decisions which are potentially detrimental to aboriginal rights.
The defendant also argued that the Crown cannot be a trustee or fiduciary in the present circumstances because its responsibilities towards the Islanders with respect to the reserve are a matter of “governmental discretion”, in reliance upon the “political trust” decisions in Kinloch v Secretary of State for India [(1882) 7 App Cas 619] and Tito v Waddell (No 2) [[1977] Ch 106], rather than an enforceable equitable obligation. In Kinloch Lord Selbourne LC said (at 625-626):
Now the words “in trust for” are quite consistent with, and indeed are the proper manner of expressing, every species of trust a trust not only as regards those matters which are the proper subjects for an equitable jurisdiction to administer, but as respects higher matters, such as might take place between the Crown and public officers discharging, under the directions of the Crown, duties or functions belonging to the prerogative and to the authority of the Crown. In the lower sense they are matters within the jurisdiction of, and to be administered by, the ordinary Courts of Equity; in the higher sense they are not.
Whether the idea of a political or “higher” trust has any utility need not be considered here because it does not, in any case, apply in the present circumstances. Kinloch concerned a specific grant of goods by Royal Warrant to the Secretary of State for India in Council “in trust” for armed forces personnel. The interest claimed [202] to be held in trust was created expressly by the Crown itself. If a traditional title exists, it arises as a matter of common law, quite independently of any grant or other action on the part of the Crown. And if it is extinguishable, then the existence of the power is also a matter of law independent of legislation or the Crown’s action. Ultimately the decisions in both Kinloch and Tito v Waddell (No 2) turned on the construction of an instrument to determine whether it created an express trust. The obligation relevant in the present case arises as a matter of law because of the circumstances of the relationship.
[His Honour then discussed Guerin v The Queen (1984) 13 DLR (4th) 321 (extracted at [5.10]), and continued:]
[203] … [I]f the crown in right of Queensland has the power to alienate land the subject of the Meriam people’s traditional rights and interests and the result of that alienation is the loss of traditional title, and if the Meriam’s people’s power to deal with their title is restricted in so far as it is inalienable, except to the Crown, then this power and corresponding vulnerability give rise to a fiduciary obligation on the part of the Crown. The power to destroy or impair a people’s interest in this way is extraordinary and is sufficient to attract regulation by equity to ensure that the position is not abused. The fiduciary relationship arises, therefore, out of the power of the Crown to extinguish traditional title by alienating the land or otherwise; it does not depend on an exercise of that power.
Moreover if, contrary to the view I have expressed, the relationship between the Crown and the Meriam people with the respect to traditional title alone were insufficient to give rise to a fiduciary obligation, both the course of dealings by the Queensland government with respect to the Islands since annexation … and the exercise of control over or regulation of the Islanders themselves by welfare legislation … would certainly create such an obligation.
Nature of the obligation
To say that, where traditional title exists, it can be dealt with and effectively alienated or extinguished only by the Crown, but that it can be enjoyed only by traditional owners, may be tantamount to saying that the legal interest in the traditional rights is in the Crown whereas the beneficial interest in the rights is in the indigenous owners. In that case the kind of fiduciary obligation imposed on the Crown is that of a constructive trustee. In any event, the Crown’s obligation as a fiduciary is in the nature of, and should be performed by reference to, that of a trustee. In Guerin Dickson J said, referring to the Crown’s duty towards the Musqueam Indians (at 334): “This obligation does not amount to a trust in the private law [204] sense. It is rather a fiduciary duty. If, however, the Crown breaches this fiduciary duty it will be liable to the Indians in the same way and to the same extent as if such a trust were in effect.” Thus, the fiduciary obligation on the Crown, rooted in the extinguishability of traditional title, is in the nature of the obligation of a constructive trustee.
Content of the obligation
The content of a fiduciary obligation or constructive trust will be tailored by the circumstances of the specific relationship from which it arises. But generally, to the extent that a person is a fiduciary he or she must act for the benefit of the beneficiaries. Moreover, this general mandate comprises more particular duties with respect to, first, the procedure by which a fiduciary makes a decision or exercises a discretion and secondly, the content of that decision. On the one hand, a fiduciary must not delegate a discretion and is under a duty to consider whether a discretion should be exercised. And on the other hand, a fiduciary is under a duty not to act for his or her own benefit or for the benefit of any third person. The obligation on the Crown in the present case is to ensure that traditional title is not impaired or destroyed without the consent of or otherwise contrary to the interests of the titleholders. For example, the Crown could not degazette the Islands, thereby terminating the reserve, or simply alienate the Islands contrary to the interests of the Islanders; nor could it take these or any other decisions affecting the traditional title without taking account of that effect. If it did, it would be in breach of its duty and liable therefore.
The content of the fiduciary obligation in this case will be different from that of an obligation arising as a result of particular action or promises by the Crown. For example, in Delgamuukw v British Columbia McEachern CJ found [1991) 79 DLR (4th) 185 at 482] the content of the Crown’s fiduciary obligation to be:
to permit aboriginal people, but subject to the general law of the province, to use any unoccupied or vacant Crown land for subsistence purposes until such time as the land is dedicated to another purpose. The Crown would breach its fiduciary duty [205] it sought arbitrarily to limit aboriginal use of vacant Crown land.
But that is not the kind of duty which is relevant here. Delgamuukw differed from the present case significantly in that both the nature of the protected rights and the source of the Crown’s obligation were different. McEachern CJ held that Indians’ traditional title had been extinguished prior to Confederation (at 464, 477-478); that this unilateral extinguishment was, in part, the source of the Crown’s obligation; and that the rights of the Indians protected by the obligation were those invoked by promises made by the Crown after extinguishment, to permit the Indians to use land not used for other purposes. In the present case, extinguishment or impairment of the traditional title would not be a source of the Crown’s obligation, but a breach of it.
A fiduciary has an obligation not to put himself or herself in a position of conflict of interests. But there are numerous examples of the Crown exercising different powers in different capacities. A fiduciary obligation on the Crown does not limit the legislative power of the Queensland Parliament, but legislation will be a breach of that obligation if its effect is adverse to the interests of the titleholders, or if the process it establishes does not take account of those interests.
Interim Summary
It is convenient at this point to summarize the conclusions so far reached in this judgment. They are that the traditional title of the Meriam people survived the annexation of the Islands; that the title is capable of extinguishment by clear and plain legislation or by an executive act authorized by such legislation; that extinguishment would involve a breach of a fiduciary obligation owed by the Crown to the Meriam people; but that extinguishment of that title has not occurred. These conclusions accept what are the primary aspects of the plaintiffs’ case. It should be noted that the plaintiffs seek no more than recognition of a fiduciary duty or a trust; they do not ask the Court to spell out the consequences of a breach of that duty or trust. In particular they do not seek compensation or consequences of a breach of that duty or trust. In particular they do not seek compensation or damages in respect of any past interference with the rights and interests of the Meriam people in the Islands. Whether there should be a declaration, even on the terms sought, depends in part upon the operation of the Racial Discrimination Act [1975 (Cth)]. I shall explain what I mean by this later. It is convenient at this point to turn to the other form of title claimed by the plaintiffs.
1. From where did Toohey J derive the fiduciary relation and ascertain its scope? In so doing, did his Honour go further than the Canadian cases, in which the fiduciary obligations were derived from express undertakings? Consider in this respect the remarks of Lehane J in Bodney v Western Airports Corporation Pty Ltd (2000) 109 FCR 178 at 201, 202:
Two aspects of the later Canadian cases relied upon caution in their use as authority directly applicable in Australia. One is the extent to which they depend upon a construction of particular statutes, most importantly s 35(1) of the Constitution Act 1982 (Can). That section provides that the existing aboriginal and treaty rights of the Aboriginal peoples of Canada are thereby recognised and affirmed … [I]t is evident that the “constitutionalisation” of Aboriginal rights has had a significant influence on judicial decisions … [T]he other aspect of them which requires caution in their use as authority here [is that] [t]he law as to fiduciary obligations has developed in Canada in ways which are not reflected in developments in Australian law …
2. Toohey J characterised the fiduciary obligation as akin to that of a constructive trustee. Does this mean that the Crown is subject to the strict duties of a private trustee, or do these duties need to be modified by virtue of the “public trust” in issue? Assuming that the Crown is a constructive trustee, upon what basis is constructive trusteeship imposed? In this context, consider the following remarks of Deane and Gaudron JJ in Mabo regarding the usefulness of the remedial constructive trust in the circumstances (at 113):
Notwithstanding their personal nature and their special vulnerability to wrongful extinguishment by the Crown, the rights of occupation or use of common law native title can themselves constitute valuable property. Actual or threatened interference with their enjoyment can, in appropriate circumstances, attract the protection of equitable remedies. Indeed, the circumstances of a case may be such that, in a modern context, the appropriate form of relief is the imposition of a remedial constructive trust framed to reflect the incidents and limitations of the rights under the common law native title. The principle of the common law that the pre-existing native rights are respected and protected will, in a case where the imposition of such a constructive trust is warranted, prevail over other equitable principles or rules to the extent that they would preclude the appropriate protection of the native title in the same way as that principle prevailed over legal rules which would otherwise have prevented the preservation of the title under common law. In particular, rules relating to requirements of certainty and present entitlement or precluding remoteness of vesting may need to be adapted or excluded to the extent necessary to enable the protection of the rights under the native title.
(emphasis supplied)
In what circumstances might constructive trusteeship be an appropriate form of relief ?
3. From the early 19th century, the Supreme Court of the United States has held that a fiduciary relationship exists between the United States government and the various Indian tribes. This relationship derives from the fact that the Indian tribes, as “domestic dependent nations” rather than individuals abandoning their national character and submitting as subjects to the laws of another, have sought and received the protection of a more powerful government, namely that of the United States. Accordingly there arose between the Indian tribes, as separate domestic dependent nations with their own limited form of sovereignty and territorial and governmental integrity, the protection being undertaken by the United States government either pursuant to legislation or otherwise. See Mabo at 164-165 per Dawson J (see also Bodney v Westralia Airports Corporation Pty Ltd (2000) 109 FCR 178 at202-203 per Lehane J). Dawson J, however, was in dissent in Mabo, for he found that upon annexation the Murray Islands became Crown lands and the Crown asserted the right to deal with those lands unimpeded by any recognition of, or acquiescence in, native title. Having so found, there was no room for the application of any fiduciary or trust obligation, which was dependent on the existence of some sort of aboriginal interest existing in or over the land (at 166-167).
4. Clearly all citizens are vulnerable to the power of the government, for the very fact of government dictates that citizens have ceded some autonomy. Is there any basis for the recognition of a fiduciary relationship between the government and the governed? What are the difficulties in applying private trust concepts to the government-citizen relationship? For a discussion of these issues in the context of electoral promises, see Dal Pont, “An Ethical Framework for Governmental Responsibility to the Electorate” (1994) 10 QUTJL 1. In another context, consider Larozo v Ontario (2005) 257 DLR (4th) 761, where the family of a nurse who died from exposure to SARS during her work claimed damages from the provincial Crown for, inter alia breach of fiduciary duty for failing to ensure the nurse’s health and safety. Cullity J struck out the fiduciary claim, reasoning as follows (at [16]):
A conclusion that a fiduciary relationship existed between the Crown and the plaintiffs because of a duty of the Ministry to protect the health of Ontarians would not distinguish the position of the plaintiffs from any other residents in the Province, or the position of the Crown and residents under any other statutes conferring powers, or imposing duties, to be exercised in the public interest. Although the importance of the concept of vulnerability has been emphasised by some learned judges in the Supreme Court of Canada … every member of the public is in a sense vulnerable to the exercise, or failure to exercise statutory powers and duties conferred, or imposed, on Ministers in the public interest. By itself this is insufficient to create a fiduciary relationship- giving rise to enforceable fiduciary rights and duties – between the Crown, or Ministers, and residents of the Province. Nor do I believe the line between duties of care in negligence and fiduciary duties is crossed by the fact that nurses … could be considered to have been in the frontline of the SARS emergency.
5. A leading commentator has said: “The trust given to our officials, elected and non-elected alike, is not without its corresponding burden: accountability to the public is the obligation of all who hold office or employment in our governmental system. That obligation is, in part, a direct product of our commitment to representative democracy, in part, the essential correlative of our devolution of public power to institutions and officials”: Finn, “Public Trust and Public Accountability” (1994) 3 Griffith L Rev 224 at 233-234. Is the fiduciary concept in public law best viewed in terms of accountability? If this is so, what does accountability require of government?
[5.40] Wik Peoples v Queensland (1996) 187 CLR 1 (High Court of Australia)
[The case involved a native title claim by the appellants in respect of land over which the Crown had granted a pastoral lease pursuant to its power to do so under, inter alia, the (since repealed) Land Act 1910 (Qld).]
BRENNAN CJ … [95] … The Wik and Thayorre submissions assert the existence of a fiduciary duty owed by the Crown to the indigenous inhabitants of the leased areas. The duty is said to arise from the vulnerability of native title, the Crown’s power to extinguish it and the position occupied for many years by the indigenous inhabitants vis-á-vis the government of the state. These factors do not by themselves create some free-standing fiduciary duty. It is necessary to identify some action or function the doing or the performance of the function, must be capable of affecting the interests of the beneficiary and the fiduciary must have so acted that it is reasonable for the beneficiary to believe and expect that the fiduciary will act in the interests of the beneficiary (or, in the case of a partnership or joint venture, in the common interest of the [96] beneficiary and fiduciary) to the exclusion of the interest of any other person or separate interest of the beneficiary.
In the present case the only relevant function performed by the Crown is the exercise of power of alienation. That is the only power the exercise of which relevantly affects native title. With all respect for the opposing view, I am unable to accept that a fiduciary duty can be owed to the Crown to the holders of native title in the exercise of a statutory power to alienate land whereby their native title in or over that land is liable to be extinguished without their consent and contrary to their interests.
The exercise of statutory powers characteristically affects the rights or interests of individuals for better or worse. If the exercise of a discretionary power must affect adversely the rights or interests of individuals, it is impossible to suppose that the repository of the power shall so act that the beneficiary might expect that the power will be exercised in his or her interests. The imposition on the repository of a fiduciary duty to individuals who will be adversely affected by the exercise of the power would preclude its exercise. On the other hand, a discretionary power – whether statutory or not – that is conferred on a repository for exercise on behalf of, or for the benefit of, another or others might well have to be exercised by the repository in the manner expected of a fiduciary. Thus in Guerin v The Queen (1984) 13 DLR (4th) 321 [extracted at [5.10]], the Crown accepted a surrender by an Indian band of native title to land in order that the land be leased by the Crown to a third party. The statutory scheme which provided for the surrender to the Crown and its subsequent dealing with the land imposed on the Crown the duty to act “on the band’s behalf”, as “the appointed agent of the Indians … and for their benefit” or for their “use and benefit” …
[97] … The power of alienation conferred on the Crown by s 6 of the 1910 Act is inherently inconsistent with the notion that it should be exercised as agent for or on behalf of the indigenous inhabitants of the land to be alienated. Accordingly, there is no foundation for imputing to the Crown a fiduciary duty governing the exercise of the power. This conclusion precludes the acceptance of a further submission made on behalf of the Wik and Thayorre Peoples. That submission sought to impose a constructive trust in their favour of the Crown’s reversionary interest in the leased land. If the constructive trust be viewed as a remedial institution, as Deane J viewed it in Muschinski v Dodds (1985) 160 CLR 583 at 614, it is nevertheless available “only when warranted by established equitable principles or by the legitimate processes of legal reasoning, by analogy, induction and deduction, from the starting point of a proper understanding of the conceptual foundation of such principles” (at 615). Given that no fiduciary duty was breached by the Crown in issuing the pastoral leases under s 6 of the 1910 Act and that the issue of those leases destroyed native title, there is no principle of law or equity which would require the imposition of a constructive trust on the reversion to restore what the holders of native title had lost.
In view of the observations of Brennan CJ in Wik, coupled with the decision of the High Court in Breen v Williams (1996) 186 CLR 71 (extracted at [4.10]), what scope remains for the argument that the Crown owes fiduciary duties to aboriginal persons? In what ways, if any, can fiduciary duties apply in this context? Would an Australian court follow Guerin v The Queen (1984) 13 DLR (4th) 321 (extracted at [5.10]) if faced with similar facts? Is it true to say that “whether a fiduciary duty is owed by the Crown to the indigenous peoples of Australia remains an open question” (Thorpe v Commonwealth (No 3) (1997) 71 ALJR 767 at 776 per Kirby J)?