Evidence and Confession(al)s

It’s been a long week, and in the midst of it came the news that a Bill with a bland title had been passed by the Legislative Council. In due course, the Governor will provide royal assent and it will become law.

The bill in question is called the Children Legislation Amendment Bill 2019. It amends a number of Acts, but the amendments that have drawn most attention relate to the Children, Youth and Families Act 2005 (CYF Act) and the Evidence Act 2008.

Image from here

The text of the bill can be found here. Once its amendments are made, §182 and §184 of the CYF Act will relevantly read as follows –

Section 182 – Who is a mandatory reporter?
(1) The following persons are mandatory reporters for the purposes of this Act— …
(ea) a person in religious ministry;… .

Section 184 – Mandatory reporting
(1) A mandatory reporter who, in the course of … carrying out the duties of his or her office … forms the belief on reasonable grounds that a child is in need of protection … must report to the Secretary that belief and the reasonable grounds for it as soon as practicable …

Penalty: 10 penalty units. …

(2A) To avoid doubt, a person is not exempt from the requirement to report under subsection (1) merely because the information would be privileged under section 127 of the Evidence Act 2008. …

This amendment dovetails with §327 of the Crimes Act 1958.  This section relevantly provides that

Section 327 – Failure to disclose sexual offence committed against child under the age of 16 years 

(2)     … a person of or over the age of 18 years (whether in Victoria or elsewhere) who has information that leads the person to form a reasonable belief that a sexual offence has been committed in Victoria against a child under the age of 16 years by another person of or over the age of 18 years must disclose that information to a police officer as soon as it is practicable to do so, unless the person has a reasonable excuse for not doing so.

Penalty:     3 years imprisonment. …

This would be fairly unremarkable, but for the amendments to the Evidence Act.  Post-amendment, §127 of that Act relevantly reads as follows –

Section 127 – Religious confessions
(1)     A person who is or was a member of the clergy of any church or religious denomination is entitled to refuse to divulge that a religious confession was made, or the
contents of a religious confession made, to the person when a member of the clergy.

(2)    Subsection (1) does not apply— …
   (b)        in a proceeding for an offence against section 184 of the Children, Youth and Families Act 2005; or
    (c)    in a proceeding for an offence against section 327(2) of the Crimes Act 1958. …

(4)     In this section, “religious confession” means a confession made by a person to a member of the clergy in the member’s professional capacity according to the ritual of the church or religious denomination concerned.

The effect of this is tolerably clear: in cases falling under the CYF Act or the Crimes Act, a priest may now be prosecuted for failing to maintain the seal of the confessional.  In these cases, a cleric is to be obliged to violate a sacrament and to excommunicate himself (a person who dies in such a condition has no hope of salvation).  While the Minister who steered the legislation through Parliament insisted it applied to a range of faiths, it’s unlikely many people think it was aimed at anyone except Catholics:

For better or worse, §116 of Australia’s Constitution offers clerics little protection.  In relevant part, that section says that “The Commonwealth shall not make any law … for prohibiting the free exercise of any religion”.  Leaving aside whether s.116 applies to State legislatures, the High Court long ago emptied the section of most of its force.  As Griffith CJ put it in Krygger v Williams (1912) 15 CLR 366

To require a man to do a thing which has nothing at all to do with religion is not prohibiting him from a free exercise of religion. It may be that a law requiring a man to do an act which his religion forbids would be objectionable on moral grounds, but it does not come within the prohibition of sec. 116, and the justification for a refusal to obey a law of that kind must be found elsewhere.

I remember my long-ago lecturer in Criminal Law went through a thought experiment where he demonstrated that law of even the most 1984-esque type could be rationalised as being for the protection of children.  One imagines he may now feel vindicated.

The Mutiny continues

Pitcairn Island, some readers will know, was settled by the mutineers of HMAV Bounty.  Their descendants make up most of the 50-person population of the Island.  The national occupation, it appears, is keeping lawyers employed.

Michael Warren was the mayor of Pitcairn Island.  Alarmingly (since he worked in child protection), he was charged with possession of child pornography and of grossly indecent items.  The matter was dealt with in the Pitcairn Islands Supreme Court. He was sentenced to be imprisoned for 20 months: The State v Warren (2016) Radio New Zealand, 5 March 2016.. His appeal to the Pitcairn Islands Court of Appeal [6 July 2016] was dismissed: Warren v The State (2016) Radio New Zealand, 14 July 2016 . He appealed to the Privy Council.

Pitcairn_Island_In_The_Distance
Pitcairn Island (Image from here)

Perhaps in keeping with the Island’s mutinous heritage the appellant submitted that the Pitcairn Constitution Order 2010 was undemocratic, thereby breaching the Bill of Rights 1688 and various international human rights norms.  It followed (he said) that all arrangements for trials relating to Pitcairn were unlawful.

The Pitcairn Constitution Order was made under §2 of the British Settlements Act 1887 (UK) which says –

It shall be lawful for Her Majesty the Queen in Council from time to time to establish all such laws and institutions, and constitute such courts and officers, and make such provisions and regulations for the proceedings in the said courts and for the administration of justice, as may appear to Her Majesty in Council to be necessary for the peace, order, and good government of Her Majesty’s subjects and others within any British settlement.”

Following Sabally and N’Jie v Attorney General [1965] 1 QB 273, the Board accepted that the British Settlements Act 1887 did in fact enable the Crown to create a non-representative legislature where the population was too sparse or little-educated.  This was the situation of Pitcairn, whose population “is approximately 50 persons of whom fewer than 40 are adults”.

The appeal was dismissed

Warren v The State (Privy Council, 30 July 2018)

Pius wasn’t on the ballot

The 1949 Australian Federal Election is usually remembered for the election of the long-lived Liberal/Country Party government which lasted until 1972. It threw up one other interesting result: a High Court decision which (a little surprisingly) has never been reported.

Gordon Anderson was the winning candidate for the newly-formed electorate of Kingsford-Smith.  He took 49.7% of the vote.  His election was challenged by independent candidate Henry Crittenden (who took a whopping 3.2%).  Crittenden alleged that the Gordon – a Roman Catholic – was under an allegiance to the “Papal State”.  This would mean that his election breached §44(i) of the Australian Constitution. That section provides that –

Any person who … is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.

By contrast, s.116 of the constitution states that “no religious test shall be required as a qualification for any office … under the Commonwealth”.

Chick
Nope! (Image from here)

The case was brought in the High Court of Australia sitting as the Court of Disputed Returns. Anderson applied to stay the proceedings as vexatious. The matter was dealt with by Fullagar J. His Honour said –

[E]very person born in Australia, into whatever religion he may be born and whatever religion he may embrace, is according to the law of this country … a British subject owing allegiance to His Majesty, and that of that allegiance he cannot rid himself except in certain prescribed ways. … But the root of the matter, to my mind, lies in the fact that the petitioner really seeks to revive a point of view which was abandoned in England in 1829, when §2 of Act 10 Geo. IV, c. 7 enacted that any person professing the Roman Catholic religion might lawfully sit and vote as a member of either House of Parliament, if in other respects duly qualified. Section 116 of our own Constitution was, of course, not enacted by men ignorant or unmindful of history, and it is, in my opinion, §116, and not §44(i) of our constitution which is relevant when the right of a member of any religious body to sit in parliament is challenged on the ground of his religion. Effect could not be given to the petitioner’s contention without the imposition of a “religious test”. In my opinion, the ground put forward … is quite untenable.

The application was dismissed with costs against the petitioner.

Crittenden v Anderson (High Court of Australia, Fullagar J, 23 August 1950, unreported)

Quo usque tandem abutere, Catilina, patientia nostra?

Shoutout to my friend and New Orleans lawyer Brett Bonin who identified the flag of Tuvalu! Honourable mention to David Coale who law-blogs over at 600 Camp who deduced that it wasn’t Texas (being kinda the opposite of a Lone Star flag).

How long is too long?

Tuvalu is not a big country. Its legislature runs to some 15 people and there are no political parties. Section 62(3) of the Tuvaluan constitution specifically provides that the number of government ministers (aside from the Prime Minister) cannot be greater than one half of the Parliament’s membership.

On 6 January 2014 Leneuoti Maatusi MP was appointed Acting Minister for Health. He remained in that role as of 7 March 2015. His appointment brought the number of ministers to eight.

TV Parl
Parliament House, Tuvalu (Image from here)

Other Members of Parliament applied to the High Court of Tuvalu for a declaration that Mr Maatusi’s appointment was unconstitutional and therefore void. In response an argument was made that his appointment under §69(1)(b) operated as an exception to §62(3) –

(1) When—

… (b) a Minister other than the Prime Minister is —

(i) absent from Tuvalu; or

(ii) for any other reason unable to perform the functions of his office,

the Head of State, acting in accordance with the advice of the Prime Minister, may appoint another member of Parliament to perform temporarily the functions of the Minister.

Among other arguments, the appointment was challenged as not being temporary. The Court said (I quote the slightly imperfect phrasing of the report) –

“Temporarily” is a word of inexact meaning. How long is something “temporary” before it becomes permanent? That depends on one’s interpretation: one person’s interpretation may not be another’s.Tot homines, quot sententiae!

A line may be drawn between a something being temporary and it having gone on for so long that no sensible person, could argue that it is still temporary. No need to work out where the line is to do that. Easy to tell which side of the line the something is.

All I need say is that Leneuoti Maatusi’s appointment has long crossed the line and become, to all intents and purposes, permanent. The gentleman’s appointment is against both the spirit and the letter of the Constitution.

The application was granted.

Latasi v Attorney-General (High Court of Tuvalu, Millhouse J, 23 March 2015, unreported)

The SCOTUS Nomination: Two Antipodean Cents

It seems that every lawyer I know (in the United States or not) has an opinion on who should be nominated to replace Kennedy J on the Supreme Court of the United States.   May I take this moment to offer my own two cents on the matter before President Trump names his nominee tomorrow at 11am AEST?  And incidentally, up until a few years ago, it was, literally, possible in this country to throw in one’s own two cents –

1990 Australia 2 Cents copy
Image from here

It is not overly surprising that a startling amount of commentary from liberals and conservatives has hinged on the likelihood of His Honour’s replacement joining a majority to overrule the decision in Roe v Wade 410 US 113 (1973).  Despite this, it is hard not to feel that many of the commentators are missing the point.  As Mr Justice Scalia observed with a touch of bitterness, the Court’s usual business rarely involves the great moral issues of our time, but overwhelmingly issues that only a lawyer could be interested in: the tax code, the rules of civil and criminal procedure, ERISA and so on.  Moreover, constitutional jurisprudence out in this little colony suggests that assumptions about how this or that judge will decide are as reliable as tosses of a coin.

What do I mean?  In the 1970s the Whitlam government enacted the Senate (Representation of Territories) Act 1973.  The effect of this Act was to enable the Northern Territory and Australian Capital Territory to be represented by two senators each: previously only Australia’s States had been represented in the Senate.  The States objected to this dilution of their voting power on the grounds that it breached the Australian Constitution.  On one hand, §7 of the Constitution stated that –

The Senate shall be composed of senators for each State, directly chosen by the people of the State, voting, until the Parliament otherwise provides, as one electorate. [emphasis added]

On the other, §122 said that –

The Parliament may make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth … and may allow the representation of such territory in either House of the Parliament to the extent and on the terms which it thinks fit.

Which section controlled?  A challenge was brought in Western Australia v The Commonwealth (1975) 134 CLR 201.  The Act was upheld by a majority consisting of McTiernan, Mason, Jacobs and Murphy JJ.  In a distasteful passage (at p.270) Mason J took it upon himself to declare the clear wording of §7 outmoded and that the Parliament’s powers in §122 had (apparently magically) expanded.  Barwick CJ, Gibbs and Stephen JJ dissented.

In the following years the composition of the Court changed: the elderly (generally pro-Commonwealth) Edward McTiernan retired, replaced by the more conservatiuve Keith Aickin.  Fairly predictably, a fresh challenge to the election of Territory senators was brought: Queensland v The Commonwealth (1977) 139 CLR 585.  A successful challenge was a foregone conclusion with the minority from the previous case – Barwick CJ, Gibbs and Stephen JJ – now joined by Aickin J.

Except it wasn’t.  Gibbs and Stephen JJ “flipped their votes” and declined to overrule the earlier decision.  Gibbs J said (at p.599):

No Justice is entitled to ignore the decisions and reasoning of his predecessors, and to arrive at his own judgment as though the pages of the law reports were blank, or as though the authority of a decision did not survive beyond the rising of the Court. A Justice, unlike a legislator, cannot introduce a programme of reform which sets at nought decisions formerly made and principles formerly established. It is only after the most careful and respectful consideration of the earlier decision, and after giving due weight to all the circumstances, that a Justice may give effect to his own opinions in preference to an earlier decision of the Court.

Many reasonable people of good will may well be hoping for the sun to set on Roe‘s case.  They may be disappointed.