Scholarship Series

The Amicus Institute publishes scholarly articles in various fields in the Scholarship Series.

Peter Butler, Child Soldiers: Legal and Ethical Challenges in International Law


A. Introduction

The international community has long recognized that children deserve the highest level of protection. The recruitment and use of child soldiers, however, violate this fundamental principle, stripping children of their innocence and exposing them to grave human rights abuses. This paper explores the complex legal and ethical questions surrounding the accountability of child soldiers under international law, particularly whether they should be prosecuted for war crimes. It evaluates existing legal frameworks and considers whether restorative justice offers a more effective approach to addressing these violations.

B.  The Child Soldier

The definition of a child soldier has evolved over time due to the lack of a universally accepted age of majority. The 2007 Paris Principles and Guidelines on Children Associated with Armed Forces or Armed Groups provide the most widely accepted definition, identifying a child soldier as anyone under 18 involved in an armed force in any capacity. This includes both combat and non-combat roles such as espionage, logistics, and sexual slavery.

The recruitment of child soldiers remains widespread, with children actively engaged in armed conflicts in over 40 countries. Reports by the United Nations (UN) Secretary-General and the European Commission document the use of child soldiers in conflicts across Africa, the Middle East, and South America. Alarmingly, approximately 75% of armed conflicts involve child soldiers, contributing to prolonged instability and societal trauma.

The methods used to recruit child soldiers vary, but coercion and force are predominant. Many are abducted, while others join voluntarily due to poverty, lack of opportunities, or a desire for revenge. The use of children in warfare is often strategic; they are seen as easily manipulated, expendable, and physically capable of handling modern lightweight weaponry.

Child soldiers face severe physical and psychological consequences, including malnutrition, infectious diseases, substance abuse, and post-traumatic stress disorder. The UNICEF and Human Rights Watch have reported widespread sexual violence against girls recruited into armed groups, further exacerbating the long-term effects of their involvement in armed conflicts.

The primary dilemma in addressing child soldiers lies in their dual status as both victims and perpetrators. While many are forcibly recruited, they also commit atrocities, including murder, torture, and war crimes. The Graca Machel Report (1996) highlighted that some child soldiers even participate in crimes against their own families and communities, raising critical questions about criminal responsibility.

International human rights law has struggled to balance accountability with rehabilitation. The Convention on the Rights of the Child (CRC) prohibits the recruitment of children under 15 for armed conflict. The Optional Protocol to the CRC on the Involvement of Children in Armed Conflict (2000) further raises the minimum age to 18 for direct participation in hostilities. The Rome Statute of the International Criminal Court (ICC) classifies the recruitment of child soldiers under 15 as a war crime but does not establish clear guidelines on prosecuting child soldiers themselves.

C. Prosecuting Child Soldiers: Legal Frameworks and Challenges

International law remains inconsistent regarding the criminal responsibility of child soldiers. The International Criminal Court (ICC) does not have jurisdiction over individuals under 18, leaving the prosecution of child soldiers to national courts and special tribunals. The Special Court for Sierra Leone (SCSL), established in 2002, controversially allowed the prosecution of individuals as young as 15 for war crimes. This decision was widely criticized by human rights advocates who argued that child soldiers should be treated as victims rather than criminals.

One of the primary legal challenges is the lack of a universally accepted minimum age of criminal responsibility. While some states set this threshold as low as seven, others recognize 16 or 18 as the appropriate age. This discrepancy complicates international efforts to prosecute child soldiers uniformly. Moreover, legal scholars argue that if a child under 15 is deemed too young to fight, they should also be considered too young to bear criminal responsibility for human rights violations committed while under coercion.

Here’s a 500-word piece on the development of anti-child soldier legislation over the past century:

The Evolution of Anti-Child Soldier Legislation Over the Last 100 Years

The use of child soldiers has long been a tragic reality in conflicts across the world. Over the past century, international laws and treaties have evolved significantly to address this issue, moving from broad protections of children in wartime to explicit bans on child recruitment and use in hostilities.

Early Protections (1920s–1940s)

The first international steps toward protecting children in armed conflict emerged in the early 20th century. The Geneva Conventions of 1929, which primarily focused on the treatment of prisoners of war, contained no specific provisions on child soldiers, but the broader principle of protecting civilians was introduced.

In 1924, the League of Nations adopted the Geneva Declaration of the Rights of the Child, which stated that children should be protected from exploitation. However, this declaration lacked enforceability and did not explicitly address the issue of child soldiers. The atrocities of World War II reinforced the need for stronger protections for children, leading to the development of the 1949 Geneva Conventions, which included provisions for the protection of children but still did not explicitly prohibit child recruitment.

Post-World War II and the Cold War (1950s–1980s)

Following World War II, the establishment of the United Nations (UN) led to greater attention on human rights, including child protection. The 1948 Universal Declaration of Human Rights emphasized children’s rights to security and dignity, setting the stage for future legal frameworks.

In 1977, the Additional Protocols to the Geneva Conventions made significant progress by prohibiting the recruitment of children under 15 into armed forces and their participation in hostilities. However, enforcement mechanisms remained weak, and many armed groups and governments continued to recruit children.

The 1990s: A Turning Point

The 1990s saw a shift in global awareness of the issue, largely due to conflicts in Africa and the Balkans, where child soldier recruitment was widespread. The 1989 UN Convention on the Rights of the Child (CRC) was a landmark treaty that explicitly addressed the rights of children, including protections against forced recruitment (Article 38).

Building on this, the 1997 Cape Town Principles, developed by UNICEF and human rights organizations, defined a “child soldier” as any individual under 18 involved in armed forces, whether as combatants, porters, or for sexual exploitation. This helped shape future legal frameworks.

In 1998, the establishment of the International Criminal Court (ICC) under the Rome Statute further reinforced accountability. The statute classified the conscription of children under 15 as a war crime.

The 21st Century: Strengthening Enforcement

The 2000 Optional Protocol to the CRC on the Involvement of Children in Armed Conflict (OPAC) raised the minimum age for compulsory recruitment to 18 and urged states to prevent the use of child soldiers in all circumstances.

The Paris Principles of 2007 and efforts by the UN Security Council have increased global pressure to demobilize child soldiers, with sanctions imposed on those who violate these laws.

Despite legal advancements, child recruitment remains an issue in various regions. Continued efforts focus on enforcement, rehabilitation, and prevention to ensure full protection for children worldwide.

D. Restorative Justice as an Alternative Approach

Given the ethical and legal complexities involved, restorative justice has emerged as a compelling alternative to punitive measures. This approach emphasizes reintegration, rehabilitation, and reconciliation rather than retribution. David Harris argues that accountability mechanisms should balance justice for victims with the need to address the trauma suffered by child soldiers themselves.

Restorative justice programs have been implemented in post-conflict settings, such as Uganda and Sierra Leone, with some success. These initiatives focus on psychological support, education, and skills training to reintegrate former child soldiers into society. Critics, however, question whether such programs provide sufficient justice for victims and whether they can effectively prevent the future recruitment of children into armed groups.

E.  Conclusion

The recruitment and use of child soldiers remain among the most egregious violations of international human rights law. While the Rome Statute, Geneva Conventions, and various UN protocols criminalize the recruitment of children into armed conflict, they do not provide clear guidance on prosecuting child soldiers themselves. The question of criminal responsibility remains unresolved, with international law offering conflicting approaches.

Rather than subjecting child soldiers to punitive legal processes, restorative justice offers a more ethical and pragmatic approach. By prioritizing rehabilitation over retribution, the international community can work toward breaking the cycle of violence and preventing future generations from being drawn into armed conflicts. Ultimately, the long-term solution lies in eliminating the root causes of child soldier recruitment—poverty, instability, and coercion—while ensuring that those responsible for their exploitation are held accountable.

Bibliography

 


Rachael Asher, The Lex Mercatoria: An Analysis Of Its Ancient And Modern Defining Features

I.             Introduction

Lex mercatoria is a Latin phrase which translates to ‘law merchant’.[1] The definition of the lex mercatoria is a disputed subject among scholars.[2] The purpose of this paper is to analyse the defining features of both the ancient lex mercatoria and the modern version that emerged in the twentieth century.[3] This will be achieved by first describing and explaining the concept and history of the ancient lex mercatoria based on what many of its advocates claim it to have been.[4] Following this, the accuracy of that description and account is analysed.[5] A description and analysis of the new lex mercatoria and its defining features is then provided following the same structure.[6] Each analysis will demonstrate that aspects of both the ancient and new lex mercatoria have been defined by some scholars inaccurately to an extent.[7] The paper then concludes by suggesting alternative theories on what was, and is, the lex mercatoria.

II.           An account of the ancient lex mercatoria

The ancient lex mercatoria was a body of transnational law made up of ‘uniform and universal’ commercial customary rules that applied in mercantile transactions.[8] It is thought to have been developed exclusively by merchants rather than by any ruling authority, and thus it was non-state law.[9] Merchants would travel throughout the nations trading at ‘markets, fairs and seaports’, and in doing so, they transmitted their customs along the way.[10]

The lex mercatoria governed transnational commercial transactions throughout Western Europe for a period of eight centuries, beginning from the eleventh century.[11] During this time, domestic legal systems lacked laws that were effective for solving transnational commercial disputes.[12] For this reason, ‘quasi-judicial courts’ which were situated at the markets and fairs performed the function of resolving such matters under the lex mercatoria.[13] Such courts were both established and ran by those in the mercantile field; and a ruling could be enforced against a party by withholding money until conditions were complied with, or through the threat of impacting a merchant’s standing.[14]

It has also been claimed that the lex mercatoria came into being far earlier than the 11th century.[15] Some researches are of the view that the lex mercatoria can be traced to events involving cross-border transactions that are recorded in the Bible.[16] For example, the Bible records the occurrence of a transaction involving the sale of land between Abraham and the Hittites.[17] The Bible also records a transaction where the Midianites sold a person by the name of Joseph to an Egyptian named Potiphar.[18]

Furthermore, it has been suggested that the lex mercatoria was utilised by the ‘Phoenicians, the Greeks, and the Romans, then by the Arabs, and finally by the Italian merchants of the Middle Ages’.[19] Under this view, once the lex mercatoria reached Italy, it is thought then to have made its way into Western Europe.[20] Various accounts also claim that eventually the lex mercatoria became dormant until it was reawakened in the twentieth century.[21] The obsolescence of the lex mercatoria has been attributed to the development of state laws in the Middle Ages.[22] Alternatively, it has been suggested that from the seventeenth century and onwards, the nations began to progressively implement the lex mercatoria into official law, thus causing its end.[23]

III.        Defining the ancient lex mercatoria

It is clear that the ancient lex mercatoria existed in a form throughout the ages.[24] There are various references contained in historical literature about the lex mercatoria that clearly point to its existence.[25] Accordingly, the question addressed in this section is not whether the lex mercatoria existed, but rather, what were its defining features.[26] The account provided in the previous section suggests that the ancient lex mercatoria was independent, ‘uniform and universal’ and that its rules derived from customary practices.[27] The following sections analyse whether such ideas accurately describe the ancient lex mercatoria.

 

 

A.   The agenda underlying the different perspectives

Legal researchers of the lex mercatoria form two distinct categories: those that advance a glamourised account of the ancient lex mercatoria, such as the version described in Part II; and those that claim such ideas are historically inaccurate.[28] The former are often referred to as ‘mercatorists’ and the latter, ‘anti-mercatorists’.[29] It has been suggested that the ‘mercatorists’ cling to the glamourised account because it can be used as a model to demonstrate how current and future transnational commercial law ought to function.[30]

B.   The independence of the lex mercatoria

The first question to be addressed is whether the lex mercatoria was an independent system of law.[31] Some researchers are of the view that the lex mercatoria was not in fact a system of law that operated independent of national law.[32] This is because, under their view, the lex mercatoria did not derive exclusively from customary law, but rather, it derived from several sources of law, including ‘common contract forms’, as well as ‘state and non-state rules and procedures…’.[33] Accordingly, if the lex mercatoria was in fact partly comprised of state rules, it could not have been a system of law that was independent of the state.[34] Instead, some researchers argue that the lex mercatoria was an all-encompassing term for a range of sources of law and procedures.[35]

Furthermore, while merchants did in fact perform the role of judges in tribunals formed by the merchants themselves, Donahue claims that such establishments generally did not function ‘independently of local political power’.[36] To illustrate, a cleric by the name of Alpert wrote in the early eleventh century that the guild of merchants in Flanders were badly behaved men that finalised disputes based on their subjective notions of what the outcome should be, and that they claimed to derive the authority to do so from an imperial charter.[37] This might suggest, at least in Flanders, that the lex mercatoria did not operate independently.[38] This is because the power to make decisions by reference to mercantile custom was seemingly conferred on those merchants by the ruling authority.[39]

Moreover, it was previously mentioned that tribunals are said to have enforced their decisions by withholding money until conditions were complied with, or through the threat of impacting a merchant’s standing.[40] Arguably, the capacity to enforce a decision is a feature of independence.[41] However, those factors do not prove that such tribunals did have the capacity to enforce a decision.[42] This is because such practices only had the effect of encouraging an outcome, rather than the effect of enforcing an outcome.[43]

For example, threatening to impact standing is a form of influence, not a form of legal enforcement.[44] Furthermore, while withholding money until conditions were complied with does resemble a form of legal enforcement, this practice would have similarly only been a form of influence.[45] The reason being, this method was likely the product of a favourable set of circumstances from the point of view of one party which had the effect of influencing the other party to fulfil a condition, rather than the product of a proper system of enforcement.[46]

C.   The uniformity and universality of mercantile customs

The following question addressed is whether mercantile customary rules and practices were ‘uniform and universal’.[47] Research suggests that customary mercantile rules and practices were not in fact ‘uniform and universal’ in nature.[48] Rather, trade customs largely applied locally, and in these local settings, custom was relied on for the purpose of supplementing the lex mercatoria.[49] Furthermore, where mercantile rules did apply universally, they are thought to have originated, as mentioned, from contracts and state laws.[50]

One of the reasons suggested in support of this argument is that rules that originate in legislation or through the formation of a contract are able to be clearly stated.[51] Therefore, such rules can be communicated and passed on from merchant to merchant, thus eventually becoming universal.[52] Whereas mercantile customary rules are likely to have been unwritten and vague in nature.[53] Therefore, it would have been difficult for merchants to describe such rules to one another, and thus it is unlikely that mercantile custom ever obtained universal status.[54] These propositions will now be illustrated with examples.[55]

The law of bankruptcy was produced in the period of the Roman Empire in the language of Latin which was understood throughout Europe.[56] It then became statutory law in northern Italy in the Middle Ages, and by the sixteenth century those laws applied throughout northern Europe in modified forms.[57] Similarly, during the fifteenth century, Italian insurance contracts were being utilised throughout Europe.[58] Following this, in the sixteenth century England began to replicate and later produce modified versions of Italian insurance contracts.[59]

It has been suggested that because such laws and legal documents were both written, and expressed in a language that could be understood or translated; such laws and legal documents could therefore be communicated and passed on.[60] In contrast, and as previously mentioned, customary law does not tend to encompass the features which are necessary to enable it to become universal.[61] Accordingly, some researchers contend that customary merchant law was not universal on the basis that ancient merchants would have been unable to effectively communicate, and thus transfer, their customs throughout the nations.[62]

 

 

D.  The meaning of custom and related issues

So far, arguments have been presented in this paper which demonstrate that the lex mercatoria was likely not independent, and its customary components were likely practiced in local settings rather than under a ‘uniform and universal’ system.[63] Relevant to the latter proposition, it can alternatively be argued that merchant custom has a broad meaning that encompasses a wide range of ancient commercial rules and practices.[64] If a broad meaning is applied to the concept of custom, it can also be argued that various universal merchant practices were in fact customary practices.[65]

However, in this paper custom is considered to be ‘…repeat behavior to which the community has tacitly consented to be bound…’.[66] Under this definition, it is difficult to argue that the lex mercatoria is a product of custom.[67] To illustrate, merchants were known to widely engage in the practice of using ‘common contract forms’, as well as the practice of using similar terminology in bills of exchange.[68] However, under the aforementioned definition, those practices would not fall within the meaning of custom on the basis that merchants were not bound to follow such commercial practices, rather, they elected to.[69]

Furthermore, according to Donahue, no documented ‘general collection of customs of merchants’ deriving from the Middle Ages has been discovered.[70] This is problematic because the absence of any comprehensive record does create uncertainty about whether a body of universal customary mercantile rules existed at all.[71] Instead, evidence of commercial rules are found in various sources, such as court records, transaction documentation, and statutory laws.[72]

Furthermore, Donahue suggests that if such evidence was thoroughly studied, it is unlikely that the results of the study would demonstrate that a body of universal customary mercantile rules existed.[73] However, it may be the case that a record of customary mercantile rules were compiled, but that it no longer exists.[74] This is plausible given that between the twelfth and sixteenth centuries it was common practice to document other forms of custom.[75]

Nonetheless, if a comprehensive record of mercantile customary rules was found, it may have only applied locally, rather than universally.[76] One record that was written by a monk around A.D 1000 states that in the context of a dispute between merchants and local persons, the merchants would claim that an agreement formed at a fair was binding irrespective of the fairness of the transaction.[77] It can be inferred from this customary rule that merchants would have also produced other rules designed to protect their interests.[78]

In light of this, the ‘mercatorists’ might argue that such rules were able to become universal because all merchants could identify the risks in a transaction and thus discover the rule needed to eliminate the risk.[79] Accordingly, it could have been a common human nature which predominantly caused ‘uniform and universal’ mercantile customary rules to come into being.[80] Furthermore, if this is the case, it would also follow that the argument that such rules could not be effectively communicated is redundant.[81] 

E.   Alternative theories on the ancient lex mercatoria

The foregoing research overall demonstrates that it is unlikely that the lex mercatoria was a legal system that operated autonomously from the state and consisted of ‘uniform and universal’ transnational commercial rules.[82] The question remaining to be determined, then, is what was the lex mercatoria? It has been suggested that it may have been a term used to convey the idea that merchants engaging in cross-border transactions relied on ‘procedural or evidentiary requirements and business practices’ which were unique to their field of work.[83] It has also been suggested that the lex mercatoria, instead, encompassed a combination of ‘public statutes and private customs’ that were applied in both courts and merchant ran tribunals.[84]

IV.         The new lex mercatoria

In the twentieth century cross-border commercial activity increased significantly and it became apparent that national institutions and laws were inadequate to deal with the legal affairs of those involved in transnational commerce in this changed world.[85] Thus, the lex mercatoria emerged once again from its resting place to meet the needs of parties engaging in transnational commerce.[86] This new lex mercatoria has been defined in a variety of ways by numerous scholars.[87] It was suggested by Volckart and Mangels that it is a ‘set of rules of conduct for border-crossing transactions developed autonomously by the international business community…’.[88]

Furthermore, some scholars adopt a similarly broad view of the new lex mercatoria claiming that its modern sources include: ‘international standard form contracts, general commercial practices, trade usages, customary law, codes of conduct, rules of international organizations and generally recognized principles of law…’ and ‘…international conventions and uniform laws’.[89]

In practice, international arbitration tribunals apply the rules contained in such instruments when determining transnational commercial disputes provided that the parties have expressly consented to such an arrangement.[90] Moreover, the majority of transnational contracts contain an arbitration clause enabling this.[91] However, despite what occurs in practice, there is disagreement among scholars concerning the claim that the new lex mercatoria which emerged in the twentieth century is an independent system of law.[92] To illustrate, as mentioned, the lex mercatoria is not the creation of the state, and thus its principles are not binding.[93]

Therefore, if a party to a contract dispute that is governed by the lex mercatoria refuses to comply with the decision of an international tribunal, the other party must then rely on a state court to enforce the decision, if that option is available.[94] Accordingly, it can be argued that the new lex mercatoria is not truly independent in that its principles derive their binding force from the state.[95] However, it has been suggested as a counterargument that rules do not need to be created by a state legislature in order to be binding in nature.[96] Rather, their binding nature derives from the fact of being ‘…recognised as an autonomous norm system by the business community…’.[97]

The issue with this statement is that it assumes that the international business community is capable of collectively recognising the purported independent and binding nature of the new lex mercatoria, notwithstanding that, in practice, this is not possible in a world where thought is so diverse.[98] For example, a transnational contractor may not be inclined to recognise the autonomy of the lex mercatoria in a situation where he or she was seeking to escape liability under the contract.[99]

This could be especially so where the facts and circumstances of the contract do not enable the aggrieved party to seek relief.[100] For example, it would be difficult for the aggrieved party to obtain justice if the contractor who seeks to escape liability resides in a country which has no courts capable of enforcing an arbitration award, or in a country where the legal system is wanting.[101] Alternatively, it could be argued that such recognition is evinced by the fact that most awards made by arbitrators are willingly complied with.[102]

Nonetheless, this factor alone does not provide a sufficient basis for drawing the conclusion that the new lex mercatoria is recognised as binding by the international business community.[103] Furthermore, the statement overlooks the fact that the capacity to enforce is arguably a precondition to the formation of an autonomous system, and therefore, since the lex mercatoria lacks this feature, it cannot accurately be regarded as autonomous.[104]

In addition, it can also be contended that the existence of clear and comprehensive rules are also preconditions to the formation of an independent legal system.[105] And that for this reason it is inaccurate to regard the lex mercatoria as an independent system of law on the basis that it is characterised by ‘incompleteness, vagueness and incoherence’.[106] However, it has also been suggested that this argument is unconvincing on the basis that the laws of state legal systems are similarly ‘incomplete and require gap-filling’.[107] Moreover, while in some respects the lex mercatoria may be incomplete, some of its areas are not, and it is in fact in the process of gradually developing into a mature system of comprehensive law.[108] On that note, the new lex mercatoria could also be defined as sets of non-binding transnational commercial rules at different stages of development.[109]

V.            Conclusion

The analysis of this paper demonstrates that the ancient lex mercatoria was likely not a system of independent law consisting of ‘uniform and universal’ customary mercantile rules.[110] Instead, research suggests that it encompassed local custom and statutory law and that it was applied in both courts and merchant ran tribunals.[111] The ancient lex mercatoria could not have been an independent system of law since it was, to an extent, comprised of state law and enforced under state authority.[112] Furthermore, its customary rules were likely not ‘uniform and universal’ for the reason that custom tends to lack the features which enable it to be transmitted throughout the nations.[113] Similarly, the new lex mercatoria is not an independent system of law on the basis that it lacks the features necessary to operate autonomously.[114] Rather, the new lex mercatoria arguably consists of sets of non-binding transnational commercial rules at various stages of development.[115]

 

 

 

 

 

 

 

 

 

 

 

Bibliography


A.   Journal articles

Baron, Gesa, ‘Do the UNIDROIT Principles of International Commercial Contracts Form a New Lex Mercatoria?’ (1999) 15(1) Arbitration International 115

 

Donahue, Charles, ‘Medieval and Early Modern Lex Mercatoria: An Attempt at the Probatio Diabolica’ (2004) 5(1) Chicago Journal of International Law 21

 

Hatzimihail, Nikitas E, ‘The Many Lives – and Faces – of Lex Mercatoria: History as Genealogy in International Business Law’ (2008) 71(3) Law and Contemporary Problems 169

 

Johnson, Vanessa M, ‘Codification of the Lex Mercatoria: Friend or Foe?’ (2015) 21 Law and Business Review of the Americas 151

 

Kadens, Emily, ‘The Myth of the Customary Law Merchant’ (2012) 90(5) Texas Law Review 1153

 

Lando, Ole 'The Lex Mercatoria in International Commercial Arbitration' (1985) 34(4) International and Comparative Law Quarterly 747

 

Michaels, Ralph, ‘The True Lex Mercatoria: Law Beyond the State’ (2007) 14(2) Indiana Journal of Global Legal Studies 447

 

Sachs, Stephen E, ‘From St. Ives to Cyberspace: The Modern Distortion of the Medieval ‘Law Merchant’’ (2006) 21(5) American University International Law Review 685

 

Volckart, Oliver and Antje Mangels, ‘Are the Roots of the Modern ‘Lex Mercatoria’ Really Medieval?’ (1999) 65(3) Southern Economic Journal 427

 

B.   Other

‘East Timor Appeals to Australian Court on Jurisdiction to File Company Complaint’, Visit East Timor (Web Page) <https://visiteasttimor.com/news/east-timor-appeals-to-australian-court-on-jurisdiction-to-file-company-complaint/>


‘Legal System Law and Legal Definition’, US Legal (Web Page) [1] <https://definitions.uslegal.com/l/legal-system/>

 

Mustill, Michael, ‘The New Lex Mercatoria: The First Twenty-five Years’, Trans-lex.org Law Research (Web Page) 98-99 <https://www.trans-lex.org/126900/_/mustill-michael-the-new-lex-mercatoria:-the-first-twenty-five-years-arbintl-1988-at-86-et-seq/#head_3>

 



[1] Vanessa M Johnson, ‘Codification of the Lex Mercatoria: Friend or Foe?’ (2015) 21 Law and Business Review of the Americas 151, 151.

[2] Ibid 151-52.

[3] Ibid 151.

[4] Emily Kadens, ‘The Myth of the Customary Law Merchant’ (2012) 90(5) Texas Law Review 1153, 1156-57.

[5] Ibid.

[6] Gesa Baron, ‘Do the UNIDROIT Principles of International Commercial Contracts Form a New Lex Mercatoria?’ (1999) 15(1) Arbitration International 115, 120-22.

[7] Ibid; Kadens (n 4) 1156-57.

[8] Johnson (n 1) 151; Kadens (n 4) 1158; Baron (n 6) 117.

[9] Kadens (n 4) 1158; Ralph Michaels, ‘The True Lex Mercatoria: Law Beyond the State’ (2007) 14(2) Indiana Journal of Global Legal Studies 447, 448-49; Baron (n 6) 116-17.

[10] Baron (n 6) 116.

[11] Johnson (n 1) 151.

[12] Ibid.

[13] Ibid; Baron (n 6) 117.

[14] Ralph Michaels, ‘The True Lex Mercatoria: Law Beyond the State’ (2007) 14(2) Indiana Journal of Global Legal Studies 447, 455; Kadens (n 4) 1155-56.

[15] Charles Donahue, ‘Medieval and Early Modern Lex Mercatoria: An Attempt at the Probatio Diabolica’ (2004) 5(1) Chicago Journal of International Law 21, 22; Johnson (n 1) 151.

[16] Charles Donahue, ‘Medieval and Early Modern Lex Mercatoria: An Attempt at the Probatio Diabolica’ (2004) 5(1) Chicago Journal of International Law 21, 22, 24.

[17] Ibid 22.

[18] Ibid 24.

[19] Ibid 22.

[20] Ibid.

[21] Johnson (n 1) 151; Ralph Michaels, ‘The True Lex Mercatoria: Law Beyond the State’ (2007) 14(2) Indiana Journal of Global Legal Studies 447, 454-55. 

[22] Johnson (n 1) 151.

[23] Nikitas E Hatzimihail, ‘The Many Lives – and Faces – of Lex Mercatoria: History as Genealogy in International Business Law’ (2008) 71(3) Law and Contemporary Problems 169, 179.

[24] Stephen E Sachs, ‘From St. Ives to Cyberspace: The Modern Distortion of the Medieval ‘Law Merchant’’ (2006) 21(5) American University International Law Review 685, 754.

[25] Ibid.

[26] Ibid.

[27] Johnson (n 1) 151; Kadens (n 4) 1158; Baron (n 6) 117; Ralph Michaels, ‘The True Lex Mercatoria: Law Beyond the State’ (2007) 14(2) Indiana Journal of Global Legal Studies 447, 448.

[28] Hatzimihail (n 23) 173; Baron (n 6) 120.

[29] Baron (n 6) 120.

[30] Hatzimihail (n 23) 173; Baron (n 6) 120.

[31] Ralph Michaels, ‘The True Lex Mercatoria: Law Beyond the State’ (2007) 14(2) Indiana Journal of Global Legal Studies 447, 448.

[32] Ibid 454.

[33] Ibid 454; Kadens (n 4) 1158, 1205.

[34] Michaels (n 31) 454.

[35] Ibid.

[36] Donahue (n 16) 36.

[37] Oliver Volckart and Antje Mangels, ‘Are the Roots of the Modern ‘Lex Mercatoria’ Really Medieval?’ (1999) 65(3) Southern Economic Journal 427, 437-8.

[38] Ibid.

[39] Ibid.

[40] Michaels (n 31) 455.

[41] ‘Legal System Law and Legal Definition’, US Legal (Web Page) [1] <https://definitions.uslegal.com/l/legal-system/>.

[42] Michaels (n 31) 455.

[43] Ibid.

[44] Ibid.

[45] Ibid.

[46] Ibid.

[47] Kadens (n 4) 1158.

[48] Ibid 1158-59.

[49] Ibid 1158, 1160.

[50] Ibid 1158.

[51] Ibid 1159.

[52] Ibid.

[53] Ibid 1159, 1187.

[54] Ibid 1159.

[55] Ibid 1162.

[56] Ibid.

[57] Ibid.

[58] Ibid.

[59] Ibid.

[60] Ibid 1159, 1162-63.

[61] Ibid 1159.

[62] Ibid.

[63] Ibid 1158-60; Michaels (n 31) 454.

[64] Kadens (n 4) 1167.

[65] Ibid.

[66] Ibid 1168.

[67] Ibid 1167-68.

[68] Ibid 1161, 1167, 1205.

[69] Ibid 1167-68.

[70] Donahue (n 16) 28.

[71] Ibid.

[72] Ibid 28-29.

[73] Ibid 31.

[74] Ibid 29.

[75] Ibid.

[76] Ibid; Kadens (n 4) 1158.

[77] Volckart and Mangels (n 37) 439.

[78] Ibid.

[79] Ibid; Baron (n 6) 120.

[80] Volckart and Mangels (n 37) 439; Kadens (n 4) 1158.

[81] Kadens (n 4) 1159.

[82] Kadens (n 4) 1158-59; Michaels (n 31) 454; Johnson (n 1) 151; Baron (n 6) 117.

[83] Kadens (n 4) 1171.

[84] Michaels (n 31) 454.

[85] Baron (n 6) 118-19; Michaels (n 31) 454-55.

[86] Hatzimihail (n 23) 184; Baron (n 6) 118-19.

[87] Johnson (n 1) 151-52.

[88] Volckart and Mangels (n 37) 427.

[89] Baron (n 6) 119-20.

[90]  Michael Mustill, ‘The New Lex Mercatoria: The First Twenty-five Years’, Trans-lex.org Law Research (Web Page) 98-99 <https://www.trans-lex.org/126900/_/mustill-michael-the-new-lex-mercatoria:-the-first-twenty-five-years-arbintl-1988-at-86-et-seq/#head_3>.

[91] Volckart and Mangels (n 37) 432.

[92] Baron (n 6) 120; Michaels (n 31) 456-57.

[93] Baron (n 6) 121.

[94] Ibid; Volckart and Mangels (n 37) 433.

[95] Baron (n 6) 121; Volckart and Mangels (n 37) 433.

[96] Baron (n 6) 122-23.

[97] Baron (n 6) 123, quoting Ole Lando, 'The Lex Mercatoria in International Commercial Arbitration' (1985) 34(4) International and Comparative Law Quarterly 747, 752.

[98] Baron (n 6) 123.

[99] ‘East Timor Appeals to Australian Court on Jurisdiction to File Company Complaint’, Visit East Timor (Web Page) <https://visiteasttimor.com/news/east-timor-appeals-to-australian-court-on-jurisdiction-to-file-company-complaint/>.

[100] Ibid.

[101] Ibid.

[102] Volckart and Mangels (n 37) 432.

[103] Ibid.

[104] ‘Legal System Law and Legal Definition’ (n 41).

[105] Baron (n 6) 121-22.

[106] Ibid 121.

[107] Ibid 123.

[108] Ibid.

[109] Ibid 119-20, 123.

[110] Kadens (n 4) 1158-60.

[111] Ibid; Michaels (n 31) 454.

[112] Michaels (n 31) 454.

[113] Kadens (n 4) 1158-59.

[114] Baron (n 6) 120-21.

[115] Baron (n 6) 123.



Asheesh A. Shawel, Legal Professional Responsibility: Honesty Is The Best Policy

INTRODUCTION

A legal practitioner is an officer of the court. The public expects, and public interest requires, that only persons of good character be given that status.  Upon admission, the court holds a legal practitioner, as someone in whom, the public entrusts their affairs and confidence, be confident in their integrity and whose conduct does not undermine administration of justice.[i]

Traditionally, only well qualified people of good character were allowed admission into the legal profession. As always, the entry requirements, apart from legal qualifications and practical training include good fame and character. The character requirement disqualifies from legal practice those having a dishonest record, serious criminal misconduct or continued disregard for law and legal institutions.[ii]

In this article, I will elucidate on the character requirements for admission as a legal practitioner, especially dishonest act and fraud. I would also analyse, where a dishonest act committed, whether unrelated to legal practice or committed in the past, is a bar to admission or not.

REGULATORY ADMISSION REQUIREMENTS

Apart from educational requirements, an applicant for admission needs to satisfy the admitting authority that he/she is a “a fit and proper person" to be admitted to the legal profession.[iii] 

The Supreme Court of each state and territory has inherent jurisdiction, conferred by the relevant legislation, to ensure a lawyer’s conduct meets the standards and conduct required of a lawyer admitted to practice.[iv]

In all jurisdictions except South Australia, legislation also requires the Admitting Authority to consider whether the applicant is currently “of good fame and character”.[v] All these tests reflect the overarching requirements of the pre-existing common law.[vi]

Pagone, J explains “fit and proper person” in Frugtniet v Board of Examiners[vii] as

… A legal practitioner, upon admission to practice, assumes duties to the courts, to fellow practitioners as well as to clients. At the heart of all those duties is a commitment to honesty and … to open candour and frankness, irrespective of self-interest or embarrassment. The entire administration of justice in any community governed by law depends upon the honest working of legal practitioners who can be relied upon to meet high standards of honesty and ethical behaviour….

For above reasons, Courts show strong reluctance to admit someone guilty of improper conduct.[viii] However, that doesn’t mean that prior improper conduct will always prohibit an applicant to gain admission, unless it is serious, in which case the courts will be hesitant to accept a change in the applicant’s character.[ix]

 

DISHONEST ACT and FRAUD

 

Lawyers must not engage in conduct making them an unfit and improper person to practice law, or that brings disrepute to the profession, including fraudulent behaviour, misappropriation of money, deception, and inappropriate behaviour towards clients.[x]

There are numerous cases where Lawyers have lost their right to practice due to dishonest conduct.

In Council of the Law Society of NSW v Mayo[xi] the respondent acted unprofessionally in dealing with receipt of trust moneys. Sometimes he received cash, which he kept for personal use. Other times he instructed the client to deposit money to the law practice trust account but gave his personal bank details. In many cases, the respondent did not register the client’s file with the law firm, conducting them as his own.

The Tribunal, disbarring him, determined that the respondent’s conduct displayed lack of trustworthiness, honesty and integrity and thus was not a fit and proper person to practice law.

In another NSW case, Hendrick Jan van Es, a lawyer was struck off from the roll for cheating in an “ethics” exam by hiding papers in his clothing. He was initially refused entry into the barrister’s examination for carrying a lot of papers and not showing them to invigilators. CCTV footage showed that, once outside, he tucked some documents in his trousers underneath his jumper and tried to enter again, but was again refused entry.

Later in a meeting with the Bar Association, van Es denied bringing in any unauthorised material but when confronted with CCTV footage, admitted to his act.

In 2013, Mark Flynn, another NSW solicitor, was struck off the roll after falsifying trust account records and harassing a female client with more than 30 voice and text messages in a 24-hour period. He was also alleged to have forged a signature on a statutory declaration with the intention of misleading the Local Court of NSW.

The Victoria Supreme Court ordered Philip Rhoden, a lawyer with 45 years’ experience, be struck off as he breached his fiduciary duty by claiming more than $350,000 in executor s commissions on eight estates without any entitlement.[xii]

Another Perth solicitor, Dean love, came up with an ingenious idea of creating a look-alike Legal Aid website, in order to divert clients who intended to apply for Legal Aid with the WA Legal Aid Commission.  He was struck off the roll.[xiii] The WA Supreme Court’s full bench described Love's misconduct as 

“aimed at advancing the practitioner's financial interests in preference to the interests of those to be deceived, and of involving a sustained plan of deception continuing over a period of many weeks”. [xiv]

 

On the extreme side, QLD Supreme Court sentenced the former criminal lawyer Timothy Meehan for 5 1/2 years on one count each of aggravated fraud more than $30,000 and eight counts of fraudulently falsifying a record. The Queensland Law Society, comparing Meehan’s sentencing with “an indelible stain on the legal profession, [xv] remarked,

“It is extremely disappointing when any lawyer abuses the trust and faith members of the public place in them and as an officer of the court deserves the harsh penalty imposed by the Supreme Court of Queensland.”[xvi]

 

Thus, the dishonest and fraudulent conduct of a few bad apples tarnishes and brings into question the otherwise exemplary work and integrity of the legal profession as a whole. This invites a strict treatment by the Supreme Court of the relevant jurisdiction and sending a strong message out to the community that a dishonest and fraudulent conduct by a legal practitioner will not be tolerated at all. 

 

ACADEMIC MISCONDUCT

 

An adverse finding of academic misconduct against a student at university is a serious matter having consequences later when seeking admission to practice as a lawyer.[xvii]

 Academic misconduct generally includes plagiarism, recycling of work, fabricating data and contracting others to write assignments or sit examinations.[xviii] Plagiarism, which means using someone’s academic work without acknowledgement and portraying it as one’s own, is consistently reiterated by Universities to students around the world.

Applicants for admission who misstate their academic and/or practical qualifications, or who furnish false certificates of good character, prima facie display a lack of candour and honesty expected of members of the legal profession.[xix]

 

OUT OF CONTEXT

 

There is no doubt that conduct unconnected with legal practice may justify a finding that a lawyer is not a fit and proper person to practise law, and so justify their disbarment. However, it is a mixed bag with the Court practicing its discretion.

In Legal Services Commissioner v Piva (Legal Practice)[xx] Judge Ross’s tribunal identified 3 categories of conduct, which can be termed outside the course of practice viz.

(i) criminal convictions;

(ii) misconduct in connection with litigation; and

(iii) other misconduct.

Judge Ross further elaborated points with the help of certain examples:[xxi]

(I) CRIMINAL CONVICTIONS

for repeated acts of dishonesty 

·         a solicitor convicted of defrauding a company, as its own director was struck off;[xxii]

·         a lawyer convicted of four serious offences of improperly using his position as company chairman for personal advantage and to cause the company disadvantage, was struck off. The court found that the offences were committed over a long period of time, rather than momentary aberrations[xxiii];

·         a solicitor convicted of bribing a police officer was struck off.[xxiv]

for offences not involving dishonesty[xxv]

·         Convictions for drug trafficking: In Re a Practitioner[xxvi] a lawyer, who was sentenced to 7 years’ imprisonment for being involved in the importation of narcotics, possession and trafficking in drugs of dependence, was struck off;

However, in Prothonotary of the Supreme Court of NSW v P[xxvii], A solicitor who was sentenced for importing a trafficable quantity of cocaine, was not struck off the roll as the Court found that the solicitor has been drug free for five years and did not pose any risk to the public.

In Ziems v Prothonotary of the NSWSC[xxviii], by Supreme Court’s order, Ziems was removed from the roll of barristers of the State. He was convicted of manslaughter and sentenced to two years imprisonment, when he, while driving, struck a motor cycle, killing the rider. He was charged of DUI and causing the collision.

Setting aside the Supreme Court order, the High Court held that a barrister convicted of vehicular manslaughter should not be struck off.

for serious sex offences (particularly child sex offences)[xxix].

·         In Law Society of South Australia v Rodda the Court held that even if the offence is not connected with professional conduct, it reflects poorly on the legal profession to allow the lawyer to continue practising, so must be struck off.[xxx]

·         In December, NSW Court of Appeal unanimously struck off Craig Franklin, finding he was not fit and proper to practice law.  Although Franklin's criminal behaviour was unrelated to his work as a barrister, the court held that his conduct "revealed defects of character incompatible with the standards and behaviour required of a lawyer".[xxxi]

Per Meagher JA, 

"Although [Franklin's] conduct did not take place in the practice of law, or directly involve any dishonesty, it included the most serious crime of sexual intercourse without consent in circumstances of aggravation."[xxxii]

However, in Re MCF[xxxiii], Queensland Court of Appeal determined that the applicant, notwithstanding his convictions for child pornography offences, was a fit and proper person to be admitted as the offences were at the lower end of seriousness occurring about six years ago; the applicant fully cooperated with authorities; he sought immediate psychiatric assistance; the psychiatric evidence was that treatment had been successful and the applicant was extremely unlikely to ever reoffend.

(II) MISCONDUCT IN CONNECTION WITH LITIGATION

Legal practitioners owe a duty of honesty and candour to the courts. They must not mislead a court by stating facts which are untrue, or conceal facts which ought to be drawn to the attention of the court, or knowingly permit a client to deceive the court.[xxxiv]

For example, knowingly giving false evidence on oath before a Criminal Justice Commission inquiry[xxxv]; failing to disclose undischarged bankruptcy when representing to the court that he was fit to be appointed as a company director[xxxvi]; wilful non-disclosure by a solicitor with respect to his own divorce proceedings and failed to admit his own adultery[xxxvii]; swearing a false affidavit as to his estimated income in family law proceedings in which he was a party[xxxviii]; or choosing deliberately to take advantage of an error for personal advantage[xxxix].

(III) OTHER MISCONDUCT

Include acts such as not filing income tax returns for 38 years[xl]; Fraud in partnership[xli]; attempting to extort money by means of a threatening letter[xlii]; In certain cases, lawyers have been struck off even though the conviction was quashed on technical ground[xliii].

 

EFFLUXION OF TIME

 

Despite the statute expressly providing that the court considers the current fame and character of the applicant, the courts have consistently held the most reliable indication of an applicant’s present and future character is based on the applicant’s past behaviour[xliv], particularly any conduct bearing on the applicant’s honesty.[xlv]

In Frugtniet v Board of Examiners[xlvi], the applicant, for over 25 years, committed offences like perjury, fraud and theft. The Court held that it would require many years of blameless conduct before he could be considered for admission. Similarly, in The Council of the NSW Bar Association v Franklin (No 2),[xlvii] although the assault occurred seven years ago, HH found no evidence to suggest any reform of character.

However not all criminal behaviour bars legal practice as it also depends on its nature, the frequency and rehabilitation of the lawyer in the intervening period.[xlviii] A Court may overlook prior convictions, including for dishonesty, if it was a result of an applicant’s youth, stemming from immaturity.[xlix] A person overcoming difficulties contributing to the past conduct may point towards the underlying character of the person.[l]

         For example, in Re Owen[li], the applicant committed numerous offences including burglary at ages 25 and 27. However, he turned a new leaf when he was 30 years old and gained a law degree. He sought admission when he was 38. The NZ High Court held the period of positive behaviour showed he had reformed.

         In Re Tkacz[lii], WA Supreme Court admitted the applicant despite a prior criminal conviction for corruption as a public officer. Murray and Templeman JJ were influenced in their ruling by the following findings: (i) the events occurred many years ago[liii]; (ii) not revealing any flagrant disregard for law or a sustained course of dishonesty, but failing to properly safeguard his employer’s interests and distinguishing them from his own;[liv] (iii) the amount involved in the offence and the fine imposed was not great[lv]; (iv) he received no personal benefit from the events giving rise to his conviction.[lvi]

In Re Application by Gadd[lvii], Blockland J admitted an applicant who nine years earlier, between ages 23 and 25, pleaded guilty to possessing stolen property and other criminal charges dismissed or set aside, in view of a demonstrated willingness to accept responsibility for his failings, his subsequent rehabilitation and compelling character references.[lviii]

Where a former practitioner has been disbarred for pecuniary dishonesty, his intrinsic character is a material consideration in determining his application for restoration to the roll. In this context, fitness includes pecuniary honesty as well as knowledge and ability.[lix]

Thus, time lapsed from last misconduct is not an essential criteria for admission and there is no specific time frame when an applicant can be admitted. It is purely based on factors as to rehabilitation and facts and circumstances surrounding the incidents.[lx]

 

 DISCLOSURE OF PRIOR MISCONDUCT

 

An applicant for admission is obliged to approach the Board, and the court, with utmost good faith and candour[lxi], comprehensively disclosing any matter which may reasonably be taken to bear on an assessment of fitness for practice.[lxii]

A candid and comprehensive disclosure reflects an applicant’s proper perception of their duty, and in turn good character.[lxiii] However, a failure to disclose, or incomplete disclosure,[lxiv] even a minor prior offence,[lxv] may prevent admission to practice, even though had the conduct been disclosed it would not necessarily have prevented admission.[lxvi] 

Such matter may include criminal convictions,[lxvii] criminal charges and spent convictions,[lxviii] prior professional disciplinary proceedings,[lxix] including overseas jurisdiction.[lxx]

Similarly, findings of academic misconduct, including related to law study or subject of a formal disciplinary committee finding,[lxxi] must also be fully disclosed, and may preclude admission[lxxii] or justify removal from the roll, especially if coincident with a lack of full disclosure.[lxxiii]

Where the court believes that the reason for non-disclosure is to hide misconduct from an authority’s attention, it will clearly amount to a lack of fitness and propriety.[lxxiv]  However, where the court is convinced that the non-disclosure was an oversight, genuine mistake, or an understandable error of judgment, the consequences are likely to be more lenient.[lxxv] 

 

CONCLUSION

 

In light of the above analysis, it is clear that there is no one specific criteria applied by the admitting authority when admitting a legal practitioner. Where one was granted admission despite him committing serious offences, another was denied admission even after the lapse of a long period of time. Each application for admission and readmission is examined on its own facts and merit.

However, most cases above, point towards two factors which form the basis for any disciplinary action, viz.[lxxvi]

Members of the public approach a lawyer during personal difficulties, and are vulnerable to exploitation. Thus, to summarise, it is important to the credibility of the legal profession that its members uphold professional standards and act with integrity[lxxvii] and maintain high standards of conduct including unfailing courtesy to both the court and their opponent.[lxxviii]


 

Endnotes



[i] Re Application for Admission as a Legal Practitioner (2004) 90 SASR 551, 555-556 [29] (Doyle CJ).

[ii] Christine Parker, ‘Regulation of the Ethics of Australian Legal Practice: Autonomy and Responsiveness’ (2002) 25(3) University of New South Wales Law Journal 676.

[iii] Legal Practitioners Act 1981 (SA) s 15(1)(a); Legal Profession Act 2006 (ACT) s 26(2)(b); Legal Profession Act 2006 (NT) s 25(2)(b); Legal Profession Act 2007 (Qld) s 35(2)(a)(ii); Legal Profession Act 2007 (Tas) s 31(6)(b); Legal Profession Act 2008 (WA) s 26(1)(a)(ii); Legal Profession Uniform Law (NSW & Vic) s 17(1)(c).

[iv] Marlene Ebejer, Legal practice and ethics, (Lexis Nexis Butterworths, 1st ed, 2013) 5 [1-15].

[v] Legal Profession Act 2006 (ACT) s 11(1)(a); Legal Profession Act 2006 (NT) s 11(1)(a); Legal Profession Act 2007 (Qld) s 9(1)(a); Legal Profession Act 2007 (Tas) s 9(1)(a); Legal Profession Act 2008 (WA) s 8(1)(a); Uniform Admission Rules 2015 (NSW & Vic) r10(1)(f).

[vi] Law admissions consultative committee, disclosure guidelines for applicants for admission to the legal profession (2016), 1 <https://www.lawadmissions.vic.gov.au/sites/default/files/embridge_cache/emshare/

original/public/2016/11/eb/b0fc6dbbc/DISCLOSURE%20GUIDELINES%20FOR%20APPLICANTS%20FOR%20ADMISSION%20TO%20THE%20LEGAL%20PROFESSION.pdf>.

[vii] [2002] VSC 140.

[viii] Ex parte Lenehan (1948) 77 CLR 403, 424 (Latham CJ, Dixon and Williams JJ); Re Application for Admission as a Legal Practitioner (2004) 90 SASR 551, [42].

[ix] Ex parte Tziniolis (1966) 67 SR (NSW) 448, 461 (Walsh JA).

[x]Ugur Nedim, Lawyers Struck Off for Professional Misconduct, 14 December 2014, Sydney Criminal lawyers <https://www.sydneycriminallawyers.com.au/blog/lawyers-struck-off-for-professional-misconduct/>.

[xi][2014] NSWCATOD 134.

[xii]Felicity Nelson, Victorian solicitor struck off for professional misconduct, 9 March 2016, Lawyers Weekly <https://www.lawyersweekly.com.au/news/18120-victorian-solicitor-struck-off-for-professional-misconduct>.

[xiii]Hellfire Club, Excuses, excuses, 14 November 2014, Justinian <http://justinian.com.au/archive/excuses-excuses.html>.

[xiv] Legal Profession Complaints Committee v Love [2014] WASC 389, [36].

[xv]Melissa Coade, QLS condemns actions of disgraced lawyer as ‘stain on the profession’, 14 July 2017, Lawyers Weekly <https://www.lawyersweekly.com.au/news/21494-qls-condemns-actions-of-disgraced-lawyer-as-stain-on-the-profession>.

[xvi]Ibid.

[xvii]Mary Wyburn, ‘Disclosure of Prior Student Academic Misconduct in Admission to Legal Practice: Lessons for Universities and the Courts’ (2008) 8(2) Queensland University of Technology Law and Justice Journal 314.

[xviii]Ibid 316.

[xix]LexisNexis, Halsbury’s Laws of Australia (at 21 August 2017) 250 Legal Practitioners, ‘Academic qualifications and misconduct’ [250-55] citing New South Wales Bar Assn v Jetnikoff (unreported, New South Wales Court of Appeals, Kirby P, Clarke and Cripps JJA, 18 December 1992); Law Society of South Australia v De Souza [2003] SASC 316; Borhani v Legal Practitioners Admissions Board [2013] QCA 14.

[xx][2009] VCAT 1200, [98].

[xxi][2009] VCAT 1200, [99].

[xxii]Prothonotary of the Supreme Court of NSW v Carr [2004] NSWCA 2.

[xxiii]Re a Practitioner (1997) 95 A Crim R 467.

[xxiv] Prothonotary of the Supreme Court of NSW v Pangallo (1993) 67 A Crim R 77.

[xxv] [2009] VCAT 1200, [100].

[xxvi] [2004] WASCA 283.

[xxvii] [2003] NSWCA 320.

[xxviii] (1957) 97 CLR 279.

[xxix]Law Society of South Australia v Rodda (2002) 83 SASR 541; Barristers’ Board v Pratt [2002] QCA 532; Law Society of South Australia v Liddy [2003] SASC 379. Contra: A Solicitor v Council of the Law Society of NSW (2004) 216 CLR 253.

[xxx] (2002) 83 SASR 541, [25].

[xxxi]Hellfire Club, Conduct unbecoming, 18 December 2014, Justinian, <http://justinian.com.au/archive/conduct-unbecoming.html>.

[xxxii]Council of New South Wales Bar Association v Franklin (No 2) [2014] NSWCA 428, [36].

[xxxiii][2015] QCA 154.

[xxxiv][2009] VCAT 1200, [103] citing Rondel v Worsley [1969] 1 AC 191; Saif Ali v Sydney Mitchell & Co [1980] AC 198; Tombling v Universal Bulb Co Ltd [1951] 2 TLR 289; Vernon v Bosley (No 2) [1999] QB 18; Unioil International Pty Ltd v Deloitte Touche Tohmatsu (No 2) (1997) 18 WAR 190, 193; Kyle v Legal Practitioners’ Complaints Committee [1999] WASCA 115.

[xxxv]Barristers’ Board v Young [2001] QCA 556, [15].

[xxxvi]New South Wales Bar Association v Maddocks New South Wales Bar Association v Maddocks [1988] NSWCA 102.

[xxxvii]Re Thom; Ex parte The Prothonotary (1962) 80 WN (NSW) 968.

[xxxviii]Coe v New South Wales Bar Association [2000] NSWCA 13. 

[xxxix]Chamberlain v Law Society of the Australian Capital Territory [1993] FCA 527; (1993) 43 FCR 148.

[xl]New South Wales Bar Association v Cummins [2001] NSWCA 284.

[xli]In Re: Selway (1894) 15 NSWLR 147.

[xlii]R v Southerton (1805) 102 ER 1235.

[xliii]R v Southerton (1805) 102 ER 1235; Re King 8 QB 129.

[xliv]Re B [1981] 2 NSWLR 372, 381.

[xlv]Frugtniet v Board of Examiners [2005] VSC 332, [27].

[xlvi][2005] VSC 332, [19], [70].

[xlvii][2014] NSWCA 428.

[xlviii]G. E. Dal Pont, Lawyers' Professional Responsibility (NSW Thomson Reuters (Professional) Australia Ltd, 6th ed, Pyrmont, 2017) 46, [2.60].

[xlix]Ibid.

[l]Application for Admission by B (as Legal Practitioner) [2016] ACTSCFC 2, 5 [23] (Refshauge, Penfold and Burns JJ), 5 [23] (Refshauge, Penfold and Burns JJ).

[li][2005] NZLR 536, [38].

[lii](2006) 206 FLR 171.

[liii](2006) 206 FLR 171, [72].

[liv](2006) 206 FLR 171, [73].

[lv](2006) 206 FLR 171, [74], [76].

[lvi](2006) 206 FLR 171, [75].

[lvii][2013] NTSC 13.

[lviii]G. E. Dal Pont, above n, 15, 47.

[lix]Re S (a solicitor) [1985] VR 343.

[lx]G. E. Dal Pont, above n, 65 [2.180]; Gregory v Queensland Law Society Inc. [2002] 2 Qd R 583.

[lxi]LexisNexis, Halsbury’s Laws of Australia, (at 21 August 2017) 250 Legal Practitioners, ‘Function and effect of disclosure upon admission’ [250-425] citing Re Del Castillo (1998) 136 ACTR 1, 7; Re Hampton [2002] QCA 129, [26] per de Jersey JA; S v Legal Practice Board of Western Australia [2004] WASCA 28, [47] per Malcolm CJ, Steytler and Wheeler JJ; Re Bell [2005] QCA 151, [5]; XY v Board of Examiners[2005] VSC 250, [61] per Habersberger J; Jackson (previously known as Subramaniam) v Legal Practitioners Admission Board [2006] NSWSC 1338, [59]-[61] per Johnson J (affirmed Jackson (previously known as Subramaniam) v Legal Practitioners Admission Board [2007] NSWCA 289; Legal Services Commissioner v Scott [2014] QCA 266, [9] per Alan Wilson J, with whom Fraser JA and Atkinson J concurred.

[lxii]Re Hampton [2002] QCA 129, [26], quoted In the matter of an application by Thomas John Saunders [2011] NTSC 63, [6].

[lxiii]LexisNexis above n citing Thomas v Legal Practitioners Admission Board [2005] 1 Qd R 331 (Jersey CJ).

[lxiv]LexisNexis above n citing Re Deo (2005) 16 NTLR 102 (Martin CJ).

[lxv]LexisNexis above n citing New South Wales Bar Association v Prince (unreported, New South Wales Court of Appeals, Mahoney, Priestley and Clarke JJA, 2 March 1993).

[lxvi]LexisNexis above n citing Re Davis (1947) 75 CLR 409, 426 (Dixon J); Law Society of Tasmania v Scott (No 2) [2007] TASSC 72, [20] (Tennent J).

[lxvii]Re Davis (1947) 75 CLR 409, 416 (Latham CJ); Prothonotary of the Supreme Court of New South Wales v Tatar [2005] NSWCA 104.

[lxviii]Jackson (previously known as Subramaniam) v Legal Practitioners Admission Board [2006] NSWSC 1338, [92] (Johnson J); Frugtniet v Board of Examiners [2002] VSC 140; Re Petroulias [2005] 1 Qd R 643.

[lxix] Re Evatt (1987) 92 FLR 380; Re Petroulias [2005] 1 Qd R 643.

[lxx] Morrissey v New South Wales Bar Assn [2006] NSWSC 323.

[lxxi] Re OG (A Lawyer) (2007) 18 VR 164.

[lxxii] Re AJG [2004] QCA 88.

[lxxiii] Re Liveri [2006] QCA 152; Re OG (a lawyer) (2007) 18 VR 164; Re Onyeledo 2015 NTSC 60.

[lxxiv] LexisNexis above n citing Re Deo (2005) 16 NTLR 102, [53], [68] (Martin CJ).

[lxxv] LexisNexis above n citing Re Application for Admission as a Legal Practitioner (2004) 90 SASR 551, [47]; Legal Services Commissioner v Scott [2014] QCA 266.

[lxxvi] [2009] VCAT 1200, [127]-[128].

[lxxvii] Ugur Nedim, above n 10.

[lxxviii] Trevor Riley, The Little Red Book of Advocacy (Law Society of the Northern Territory, 2nd ed, 2016), 80.


Ken Parish, Public law: what is it and why is it so important?

Ken Parish

 

"When rights are so aggregated that their exercise affects members of the public to a significant degree, they may often be described as public rights and their exercise as that of public power. Such public power must be exercised bona fide, for the purposes for which it is conferred and with due regard to the persons affected by its exercise.  ....  There is a difference between public and private power but, of course, one may shade into the other."

 

What is constitutional law?

 

What is the rule of law?

 

 The rule of law is a fundamental aspect of Australia's constitutional system. See Clause 5 of the Commonwealth of Australia Constitution Act 1900 (Imperial). The clauses of the Imperial Act are sometimes referred to as the "covering clauses" of the Australian Constitution. The importance which the Westminster tradition (from which Australia's system of government derives in large part) places on the rule of law derives from Britain's constitutional history, especially the momentous events of the seventeenth century. The renowned British legal scholar A.V. Dicey said that there were 3 aspects of the rule of law:

 

Mason P of the NSW Court of Appeal said that the rule of law has a "chameleon-like quality", and may include the notions of parliamentary supremacy, judicial review of executive action (administrative law), judicial review of legislative action (constitutional law), adherence to precedent, persistence in a minority opinion and the protection of human rights:

"In reality the idea of the rule of law is a complex mix of fundamental ethical and political principles. These are necessarily influenced by changing values, and in turn influence those who exercise authority in our society, most notably the judges."

In The Authority of Law: Essays on Law and Morality (Clarendon Press, Oxford, 1979) Joseph Raz identified 8 principles derived from the fundamental notion of the rule of law:

 

Note that both Raz's principles and Dicey's original formulation of the rule of law emphasise due process or fair procedures as the essence of the rule of law. Unlike Mason P's definition, their formulations have no overt place for ethics, morality or any concept of inalienable human rights. In theory, a Nazi-like totalitarian regime could satisfy all eight of Raz's rule of law principles. Raz is a 'positivist' in jurisprudential terms. 'Natural law' theorists, on the other hand, would deny that any valid concept of the rule of law can exclude ethics, morality or human rights, because the legitimacy of law is grounded in these things.

 

Separation of powers

 

 

"The difference between the departments (of government) undoubtedly is that the Legislature makes, the executive executes, and the judiciary construes, the law."

 

Federal division of powers

 

Australia has a federal system of government with legislative powers shared or distributed between the Commonwealth and the States. This is known as the federal division of powers. The Commonwealth has specifically enumerated powers, although the trend of High Court decisions has been progressively to expand the effective scope of Commonwealth law-making powers. On the other hand, the States are said to have the residual legislative power i.e. all the law-making power that is not occupied by valid Commonwealth laws.  The States (and for that matter the self-governing Territories - the Northern Territory and Australian Capital Territory, subject to the Commonwealth's overriding law-making power) have "full and plenary" power to make laws for the "peace, order and good government" of their State or Territory except to the extent that such a law is inconsistent with a valid Commonwealth law.

 

Responsible government

 

Responsible government is a system of government in which the Executive (i.e. the administrative arm of government) is responsible to the Legislature (i.e. Parliament). Australia adopted this aspect of its constitutional system from Britain's Westminster system, preferring it to the American/French model of strict separation of powers between the Executive and Parliament.  Responsible government was seen by the Founders as the preferred method of making the Executive government accountable and protecting individual rights (to the extent that they regarded this as important). See Amalgamated Society of Engineers v Adelaide Steamship Co. Ltd. ("the Engineers' case") (1920) 28 CLR 129 at 146. Also see Brown v West   (1990) 169 CLR 195 at 205 per Mason CJ, Brennan, Deane, Dawson and Toohey JJ. The Executive (i.e. the Governor General as representative of the Queen) acts on the advice of ministers, so long as they continue to command the support of the majority of the representative chamber, the House of Representatives. At State level, in those States which have two houses of Parliament, the government must command a majority in the Lower House -- usually called the Legislative Assembly. See Victoria v Commonwealth   ("the PMA case") (1975) 134 CLR 81 at 156; Western Australia v Commonwealth   ("the Territory representation case") (No. 1) (1975) 134 CLR 201 at 278; FAI Insurances Ltd v Winneke    (1982) 151 CLR 342.  

Does responsible government make the Executive accountable and protect individual rights?

 

Representative government

 

The Commonwealth Constitution sets up a system of elective representative government, confirming the supremacy of the people within the Australian system of government.  See Lange v Australian Broadcasting Corporation (1997) 189 CLR 520. This constitutionally prescribed system of representative government gives rise to an implied constitutional freedom to discuss political and governmental affairs, and possibly also an implied freedom of association and movement, because these freedoms are essential to the effective exercise of the people's right to elect their Parliamentary representatives.  

 

 

What is administrative law?

 

Administrative Law is the body of rules, practices, tribunals and institutions which regulate the exercise of government power once constitutionally valid laws have been passed.  Margaret Allars (in Halsbury's Laws of Australia, par 10-1, p 12 031) defines it as the body of principles 'governing the relationship between the government and the governed'.  On the other hand, Aronson & Dyer (Aronson, M and Dyer, B, Judicial Review of Administrative Action, Law Book Company, Sydney, 1996) state that: 'Defining administrative law is a topic on which few commentators can reach agreement, because it ultimately depends on what they want out of administrative law.  We know what we want.  As a minimum, we want a legal system which addresses the ideals of good government according to law. We take those ideals to include openness, fairness, participation, accountability, consistency, rationality, accessibility of judicial and non-judicial grievance procedures, legality and impartiality.'  Not surprisingly, Australia's administrative law system does not always live up to these ideals in practice.

1. merits review; and

2. judicial review.

 

What is administrative law merits review?

 

 

What is administrative law judicial review?

 

1. common law or prerogative judicial review; and

2. judicial review provided by legislation e.g. the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the 'ADJR Act'), or its more recent State equivalents in Victoria and New South Wales.

 



Sébastien Lafrance, A Brief Overview of Quebec Civil Law and Constitutional Interpretation in Canada

Sébastien Lafrance[i]

 

This paper provides a brief and non-exhaustive overview of some methods[ii] of legal interpretation that are used in Quebec civil law – without, however, “examining the full range of technical details of civil law interpretation” –, and in Canadian constitutional law since “[t]he Canadian Constitution is an excellent medium for studying the problems of constitutional interpretation.”[iii]

The relevancy for an Australian readership to pay attention to how the constitution is interpreted in Canada resides, for example, in the fact that “[l]ike most judges charged with the interpretation of constitutions, the judges of the High Court of Australia commonly refer to, analyse and are sometimes persuaded by, the analyses of courts of other countries that have decided similar questions.”[iv] This includes Canada. Australia and Canada share a common legal system that is inherited from the United Kingdom, and are both keen to assert their (legal) differences (peacefully) from the Motherland. In addition, the approach taken in this paper is also supported by the fact that “[w]ithin each nation there have been independent debates regarding theories of constitutional interpretation.”[v]

As pointed out by Justice LeBel of the Supreme Court of Canada (hereinafter ‘Court’), “legal interpretation is a method and a result at the same time”.[vi] For jurists and law practitioners, “legal interpretation is unavoidable”.[vii] This makes its study essential for those who are interested in the law.

Knowing legal interpretation methods is essential for the jurists and law practitioners since laws are made up of standards whose application requires interpretation: “as the law contains only general principles, it becomes necessary, in order to apply it to the various specific cases, to deduce the consequences, that is, in fact, to interpret it”.[viii] Legal interpretation should ideally be reflected, directly or indirectly, in judicial decisions[ix]; “interpreting the wording of a legislative provision does not necessarily lead to a single solution. ... the interpretation exercise requires the interpreter to make choices”.[x] An author underlined, in this regard, that “among the multitude of interpretation methods available ... the interpreter chooses ... those which best suit the way they see their role and the nature of the text to be interpreted”.[xi]

A legal interpretation that is retained for a specific factual situation – because “interpreting the law is to go from one point to another, from the universal to the singular, through the singular”[xii] – can have a significant impact that could go well beyond the sole interest of the parties involved in a dispute. Nevertheless, “there is nothing that compels the court to adopt one method of interpretation over another. The choice is made according to the desired result and this, ultimately, depends on the social philosophy of the interpreter”[xiii], but this choice must still be made within the parameters of the law,[xiv] and cannot be arbitrary.[xv]

In the oft-cited and seminal decision Rizzo & Rizzo Shoes Ltd. (Re), the Court adopted the following formula – that became famous in the Canadian legal area since then –, created by Elmer Driedger in his book Construction of Statutes, that applies to legislative interpretation: “Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.”[xvi]

The wording of or a term in a provision may from time to time be ambiguous. “What, then, in law is an ambiguity?”, asked Iacobucci J. in the decision of the Court Bell ExpressVu Limited Partnership v. Rex.[xvii] Major J., a judge of the same court, had clarified before then, in the decision CanadianOxy Chemicals Ltd. c. Canada (Attorney General) that “[i]t is only when genuine ambiguity arises between two or more plausible readings, each equally in accordance with the intentions of the statute, that the courts need to resort to external interpretive aids.”[xviii] For example, a genuine ambiguity may be well illustrated with “the term ‘host’ that designates at the same time the person who receives and the person who is received”.[xix]

An author argued that the fact that the wording of a provision may be clear “does not exempt the judge from any effort of interpretation”[xx] whereas another author claimed that “it should not [if it is clear] be interpreted, but applied purely and simply”[xxi], that when a text is clear “there is no reason to alter the meaning ordinarily given to the words used, so as to add limitations which it does not contain, either expressly or by implication.”[xxii] Regardless of the approach taken in this regard, one should keep in mind that “when a law raises doubt or ambiguity, it must be interpreted in such a way as to make it fulfill the intention of the legislator and achieve the purpose for which it was passed”.[xxiii] This is when methods of interpretation become quite useful.

The intent of the legislation, and more specifically of a provision, may be found by consulting, among other sources, the comments made in the preparatory work of the Parliament or the legislature that “explain the reasons why they adopted the text in question”.[xxiv] The Court had initially “established the principle ... that parliamentary proceedings [could not] be a source of legal interpretation”.[xxv] Nevertheless, the Court eventually, several years later, changed its mind and then stated, “There is no reason to systematically disregard the Minister’s commentaries, since they can sometimes be helpful in determining the legislature’s intention, especially where the wording of the article is open to differing interpretations.”[xxvi]

Legal interpretation becomes essential when it comes to applying, for example, a section of a law to a factual framework. The action of applying a legal norm to a set of facts triggers de facto the need to interpret this norm in order to verify whether it is applicable or not, i.e. if the terms of this or that section ‘sticks’, expressed in a prosaic way, to a specific factual framework; this process gives life, when applicable, to laws. For instance, “every time we apply a contract, we find ourselves interpreting it”.[xxvii]

Certain Methods of Interpretation in Quebec Civil Law

Baudouin observed that “the legal interpretation of the Quebec Civil Code, after hesitating between two opposite techniques, the French and the British, looked for a method of interpretation that will be a compromise between the two systems”.[xxviii] He also noted that “the jurisprudence of the province of Quebec, using methods of interpretation sometimes from the French system sometimes from the common law, resulted in the creation of an original system of interpretation”.[xxix]

The Honourable Michel Robert, former Chief Justice of the Quebec Court of Appeal, summarized Quebec’s historical legal background as follows:

To our French ancestors, we owe the fact that the French language and culture have been maintained in North America. We also owe them the development of the French legal culture, which includes, in particular, a legislative drafting style based on general principles and criteria, a method of deductive reasoning, by first laying down a principle and then applying it to the particular facts of the case on which a decision has to be reached, and lastly a civil code forming a coherent, complete, organized and logical whole.

To our British ancestors, we owe the influence of the tradition of common law, which, in particular, consists of a detailed style of legislative drafting, often including precise definitions, a method of inductive reasoning that makes it possible, when examining all the case law, to identify the rules to apply to the legal action on which a ruling must be made, and courts having inherent powers that allow them to create new solutions to meet the changing needs of society.[xxx]

In Quebec civil law, “even though the English rule of stare decisis does not exist, legal precedents are still important”.[xxxi] The Quebec Civil Code resembles the French Civil Code[xxxii], and “the judicial interpretation given to the provisions of the Quebec Civil Code follows a method similar to that which is used by French courts”.[xxxiii]

In Quebec contract law, legal interpretation also matters because, for example, “courts must focus on the common intention of the parties. In that respect, courts must take into account the nature of the contract and the circumstances in which it was concluded. Also, when interpreting a contractual provision, one must consider the contract as a whole, since its clauses are necessarily interpreted in relation to each other, giving each a meaning that harmonizes with the whole”.[xxxiv]

It also covers situations where the terms of the contract have multiple meanings.[xxxv] The Court pointed out generally with regard to the civil of contracts in Quebec in the decision Quebec (Agence du revenu) v. Services Environnementaux AES inc.:[xxxvi]

In the civil law, the law of contracts is premised on a principle of consensualism, and a fundamental distinction exists between the exchange of consents and the written expression of that exchange. The parties are free as between themselves ... The determination by the courts of the common intention, or will, of the parties represents a true exercise of interpretation

However, as one author argued, “[i]f most of the principles which guide the interpretation of contracts ... can be transposed to the interpretation of the law, they nevertheless have limited authority and scope with respect to the latter”.[xxxvii] This is true even though, as noted by L’Heureux‑Dubé J., dissenting but not on this point, in the decision Manulife Bank of Canada v. Conlin of the Court, “the ‘modern contextual approach’ for statutory interpretation, with appropriate adaptations, is equally applicable to contractual interpretation. Statutory interpretation and contractual interpretation are but two species of the general category of judicial interpretation.”[xxxviii]

In the great scheme of things, it must be noted that the methods of interpretation in Quebec civil law are not only limited to the rules of interpretation that apply to contracts as they are provided in the Quebec Civil Code.[xxxix] Generally speaking, “the rules provided by the [Quebec Civil] Code should not normally be interpreted strictly ... and even less in a restrictive manner”.[xl]

The literal or grammatical method examines closely the terms used in a provision, and this is, as some authors pointed out[xli], where the interpretation begins. This method of interpretation involves giving effect to each of the words used by the legislator.[xlii] For example, in the decision Pharmascience Inc. v. Binet, LeBel J., writing for the majority of the Court, recalled regarding the weight to be given to the ordinary meaning of words:[xliii]

Most often, “ordinary meaning” refers “to the reader’s first impression meaning, the understanding that spontaneously emerges when words are read in their immediate context” (R. Sullivan, Sullivan and Driedger on the Construction of Statutes (4th ed. 2002), at p. 21...).  In Canadian Pacific Air Lines Ltd. v. Canadian Air Line Pilots Assn., [1993] 3 S.C.R. 724, at p. 735, Gonthier J. spoke of the “natural meaning which appears when the provision is simply read through”.

LeBel J., however, added a caveat to the exclusive use of the literal or grammatical method in the interpretation of a provision when he wrote, “even when a provision seems clear and conclusive, [it remains important] to nevertheless review the overall context of the provision”[xliv].

With respect to the contextual method, it “postulates that the meaning of a legislative provision is revealed in the light of its context”.[xlv] Iacobucci J. wrote in the decision of the Court Bell ExpressVu, “The preferred approach recognizes the important role that context must inevitably play when a court construes the written words of a statute”.[xlvi]

Another method of interpretation is the purposive approach (or method)[xlvii] that “requires a court to look at the purpose of the statute, and Parliament’s (or a legislature’s) intention when they created the statute, as well as the words written in the statute itself. The words must be interpreted in the broader context of the statute itself.”[xlviii] As stated by the Quebec Court of Appeal in its decision Muridal inc. Commission scolaire des Navigateurs, “[b]y applying the rules of interpretation from a purposive method, one must ask himself or herself at the outset about the purpose of the law”.[xlix] The purpose approach is also used mutatis mutandis in Canadian constitutional law.

Certain Methods of Interpretation in Canadian Constitutional Law

Section 52 of the Constitution Act, 1982 established as a basic principle that the Constitution stands above all other laws. In Canada, the principle which underlies the theory of constitutional interpretation is the presumption of the validity of laws.[l] Dickson J. of the Court gave a word of caution to the courts in the decision Hunter v. Southam Inc., “It should not fall to the courts to fill in the details necessary to render legislative lacunae constitutional.”[li] This goes along with the concept of the separation of powers, which is “an essential feature of our constitution”.[lii]

 In the decision R. v. Big M Drug Mart Ltd., Dickson J. also stated regarding the constitutional validity of an Act or of its provisions:[liii]

... both purpose and effect are relevant in determining constitutionality; either an unconstitutional purpose or an unconstitutional effect can invalidate legislation. All legislation is animated by an object the legislature intends to achieve. This object is realized through the impact produced by the operation and application of the legislation. Purpose and effect respectively, in the sense of the legislation’s object and its ultimate impact, are clearly linked, if not indivisible.

It must be recalled here that, since constitutions are adopted and interpreted in different historical contexts[liv], attempts to transpose legal rules (legal transplant[lv]), including methods of interpretation that would be foreign from a national legal system, must be considered with the greatest caution and integrity, even in the context of the “inevitable globalization of constitutional law”[lvi]. Indeed, the Court stated in the Reference re Senate Reform (hereinafter ‘Senate decision’) decided in 2014, “The rules of constitutional interpretation require that constitutional documents be interpreted in a broad and purposive manner and placed in their proper linguistic, philosophic, and historical contexts”.[lvii]

Before the adoption of the Canadian Charter of Rights and Freedoms (hereinafter ‘Charter’), enshrined in the Canadian Constitution that followed its repatriation[lviii] in 1982[lix], legal issues that involved constitutional law were mostly about the division of powers between the central and provincial entities. The enactment of the Charter then added, with fundamental rights and freedoms, another dimension to the Canadian constitution[lx]. Pursuant to its section 32, the Charter applies to the actions of the federal, provincial and municipal governments. It created new parameters both for the development and the implementation of laws.[lxi]

Pozsár-Szentmiklósy observed that in the context of the interpretation of fundamental rights, “Canadian scholars usually refer to three interpretive techniques ...: the progressive, the purposive, and the generous interpretation.”[lxii]

The ‘living tree’ doctrine, introduced in Canada with the decision Edwards v. Canada (Attorney General)[lxiii], refers to a method of constitutional interpretation that allows the protection afforded by fundamental rights and freedoms to change and evolve over time.[lxiv] This is the progressive interpretation – or evolutive approach – of interpreting human rights. The Court stated in Reference re Same-Sex Marriage, the Canadian “Constitution is a living tree which, by way of progressive interpretation, accommodates and addresses the realities of modern life.”[lxv] 

Although the Canadian Bill of Rights[lxvi] (hereinafter ‘Declaration’) – adopted in 1960 – included several of the same rights and freedoms as provided in the Charter, courts usually gave a narrow interpretation to the rights and freedoms provided in the Declaration[lxvii] whereas those provided by the Charter have been given a “large and liberal interpretation”[lxviii] in contrast to a ‘narrow and technical’ interpretation; they are two fundamentally different legal instruments.[lxix]

In R. v. Big M Drug Mart Ltd., previously cited, Dickson J. summarized as follows the purposive method of interpretation in the context of constitutional law: “The meaning of a right or freedom guaranteed by the Charter was to be ascertained by an analysis of the purpose of such a guarantee; it was to be understood, in other words, in the light of the interests it was meant to protect.”[lxx] Interestingly, this method of interpretation is codified in Quebec, for example.[lxxi] An author argued that “[t]he purposive interpretation probably fits the best with the examination of fundamental rights disputes.”[lxxii] Peter W. Hogg pointed to the fact that “the original purpose of a right ... is usually unknown”[lxxiii], then it is up to the court to identify the purpose. Based on what has been discussed so far in this paper, one feature to be remembered about the purposive approach is that “[p]art and parcel of the purposive method of interpretation of human rights legislation is the rejection of a strict grammatical approach.”[lxxiv] 

In sum, one must be cautious while comparing constitutional rights and freedoms between different countries in order to not consider that the similarity, or even the identity, of how a fundamental right or freedom is worded or called in a legal instrument as guaranteeing ipso facto that they will be interpreted the same way. In other words, the effectiveness of a right or freedom cannot be assumed simply by its own existence in a legal instrument, think, for instance, of their (non-)application in some developing countries.

In addition, several factors such as the use of a different language in this and that country[lxxv] (when applicable) as well as the philosophical and historical context, which is different, for example in Canada and Australia, would not necessarily lead a court to adopt a similar or identical interpretation of such a right or freedom, even if their wording in a legal instrument is identical. For example, the High Court of Australia stated in the decision Clubb v Edwards; Preston v Avery rendered in 2019: “perhaps the most significant difference between different jurisdictions is the different weight that is afforded to particular constitutionally protected values.”[lxxvi]

The Canadian constitutional law jurisprudence may be used as a reference or, at the very least, a basis for comparison, with approval or not[lxxvii] – when these methods of interpretation can be transposed, not necessarily transplanted, into the Australian legal context. “Comparative law is also useful for researchers when examining with a critical eye the institutions of their own judicial order.”[lxxviii]       



[i] Currently Crown Counsel (Prosecutor) at the Public Prosecution Service of Canada. LL.M. / Law Candidate (Laval University), LL.B. / Law (Université du Québec à Montréal), B.Sc. / Political Science (University of Montreal). He was a part-time professor of law (University of Ottawa). He also was a clerk for the Honourable Marie Deschamps of the Supreme Court of Canada (2010-2011), and he previously clerked for the Honourable Michel Robert, Chief Judge of the Quebec Court of Appeal (2008-2009). He worked as in-house counsel at the Law Branch of the Supreme Court of Canada (2011-2013). He is a public speaker on various legal issues around the world, in 19 countries so far. He published book chapters and articles about different areas of the law in English, French and Vietnamese in Canada, India, Indonesia, the United Kingdom, Vietnam and now in Australia. He is a hyperpolyglot: he studied Vietnamese and Chinese Mandarin (University of Toronto); Indonesian (General Consulate for Indonesia in Toronto); Russian (McGill University); Arabic (University of Montreal); German and Spanish (Collège de Maisonneuve), etc. This work was prepared separately from this author’s employment responsibilities at the Public Prosecution Service of Canada. The views, opinions and conclusions expressed herein are personal to this author and should not be construed as those of the Public Prosecution Service of Canada or the Canadian federal Crown.

Email: seblafrance1975@gmail.com

[ii] Sébastien Grammond, ‘L'interprétation des contrats’ [The Interpretation of Contracts] in P.-C. Lafond (ed.), Juris‑classeur – Collection droit civil – Obligations et responsabilités civiles, Montréal, LexisNexis, 2008, p. 6: “It is more convenient to talk about ‘methods’ of interpretation rather than rules” [translated in English by Sébastien Lafrance].

[iii] W. Ivor Jennings, ‘Constitutional Interpretation: the Experience of Canada’ (1937) 51(1) Harv. L. Rev. 1, p. 1.

[iv] Adrienne Stone, ‘Comparativism in Constitutional Interpretation’ (2009) New Zealand Law Review, 45.

[v] William Rich, ‘Approaches to Constitutional Interpretation in Australia: An American Perspective’ (1993) 12(2) U. Tasm. L. Rev., 151

[vi] Louis LeBel, ‘La méthode d’interprétation moderne : le juge devant lui-même en lui-même’ [The Modern Method of Interpretation: Judges Facing Themselves] in Interpretatio non cessat – Mélanges en l’honneur de Pierre-André Côté, Éditions Yvon Blais, Cowanswille, 2011, 107 [translated in English by Sébastien Lafrance].

[vii] Charlotte Lemieux, ‘Éléments d’interprétation en droit civil’ [Elements of Interpretation in Civil Law] (1994) 24 R.D.U.S. 221, 227 [translated in English by Sébastien Lafrance].

[viii] E. De Chabrol-Chaméane, Dictionnaire de législation usuelle [Dictionary of Usual Legislation], Paris, 1835, 132 [translated in English by Sébastien Lafrance].

[ix] See, e.g., R. v. Sheppard, [2002] 1 SCR 869, para [5]: “The giving of reasoned judgments is central to the legitimacy of judicial institutions in the eyes of the public.”

[x] Amar c. Commission de la Santé et de la Sécurité du Travail (CSST), 2003 CanLII 19612 (QC CA), para [27] [translated in English by Sébastien Lafrance].

[xi] Mélanie Samson, ‘Interprétation large et libérale et interprétation contextuelle: convergence ou divergence?’ [Broad and Liberal Interpretation and Contextual Interpretation : Convergence or Divergence?] (2008) Les Cahiers de droit, 49(2), 298-299 (italics added) [translated in English by Sébastien Lafrance].

[xii] Eros Roberto Grau, Pourquoi j’ai peur des juges – L’interprétation du droit et les principes juridiques [Why I am afraid of judges – The interpretation of law and legal principles], Paris, Kimé, 2014, 19 [translated in English by Sébastien Lafrance].

[xiii] François Gendron, ‘L’interprétation des contrats en droit civil québécois’ [The Interpretation of Contracts in Quebec Civil Law], 6, see online: http://www.institut-idef.org/L-interpretation-des-contrats-en.html [translated in English by Sébastien Lafrance]; see also François Gendron, L’interprétation des contrats [The Interpretation of Contracts], Montréal, Wilson & Lafleur, 2002.

[xiv] For a more detailed discussion on judge’s decision-making and judge’s law-making, see Shruti Bedi and Sébastien Lafrance, ‘The Justice in Judicial Activism: Jurisprudence of Rights and Freedoms in India and Canada’ in Salman Khurshid, Lokendra Malik and Yogesh Pratap Singh (eds), The Supreme Court and the Constitution – An Indian Discourse, Wolters Kluwer, 2020.

[xv] See, e.g., Alex Kozinski, ‘What I Ate for Breakfast and Other Mysteries of Judicial Decision Making’ (1993) 26 Loy. L.A. L. Rev. 993.

[xvi] [1998] 1 SCR 27, para [21].

[xvii] [2002] 2 SCR 559, para [29] [Bell ExpressVu]; Ruth Sullivan, Construction of Statutes, 6th ed (Markham: LexisNexis Canada, 2008), 22-24.

[xviii] [1999] 1 SCR 743, para [14].

[xix] Charlotte Lemieux, above n vii, 227 [translated in English by Sébastien Lafrance].

[xx] Sébastien Grammond, above i, 6 [translated in English by Sébastien Lafrance].

[xxi] Lucie Lauzière, ‘Le sens ordinaire des mots comme règle d’interprétation’ [The Ordinary Meaning of Words as Rule of Interpretation] (1987) Les Cahiers de droit 28(2), 376 [translated in English by Sébastien Lafrance].

[xxii] Canadian General Insurance Co. et al. v. Canadian Mercantile Insurance Co., [1979] 2 SCR 17, 21. 

[xxiii] Louis Baudouin, ‘Méthode d’interprétation du Code civil du Québec’ [Method of Interpretation of the Quebec Civil Code] (1950) 10 R. du B. 397, 401.

[xxiv] Louis Baudouin, ibid, 403.

[xxv] Louis Baudouin, ibid, 412, referring to Gosselin v. The King, (1903) 33 S.C.R. 255.

[xxvi] Doré v. Verdun (City), [1997] 2 SCR 862, para [14]; see also Sylvio Normand, ‘Les travaux préparatoires et l’interprétation du Code civil du Québec’ [Preparatory Work and the Interpretation of the Quebec Civil Code], (1986) Les Cahiers de droit, 27(2).

[xxvii] Sébastien Grammond, above n ii, 7.

[xxviii] Louis Baudouin, ‘Méthode d’interprétation du Code civil du Québec’ [Method of Interpretation of the Quebec Civil Code], (1950) 10 R. du B. 397, 401[translated in English by Sébastien Lafrance].

[xxix] Ibid, 419 [translated in English by Sébastien Lafrance].

[xxx] The Honourable Michel Robert, Chief Justice of the Quebec Court of Appeal, “Which Judge for Which Society?”, Proceedings of the 2008 Judges’ Conference, 2008, 23 (emphasis added); to illustrate this fact, he used the example of shepherd’s pie, example provided by Sébastien Lafrance, who was then a law clerk for the Honourable Michel Robert; see also Charlotte Lemieux, above n vii, 232.

[xxxi] Michèle Rivet and Monique Ouellette-Lauzon, ‘L’interprétation par le juge des règles écrites en matière de droit civil’ [Judge’s Interpretation of Written Rules in Civil Law] (1978) 13(1) R.J.T., 29 [translated in English by Sébastien Lafrance]; see also Albert Mayrand, ‘L’autorité du précédent au Québec’ [The Authority of Precedents in Québec] (1994) 28 R.J.T. 771; Pierre-André Côté in collaboration with Stéphane Beaulac and Mathieu Devinat, The Interpretation of Legislation in Canada, 4th ed., Carswell, 2011, 581: “The question of precedent is a complex one in Quebec and, in Quebec civil law doctrine, the normative weight to be afforded to precedent is controversial”.

[xxxii] Louis Baudouin, above n xxiii, 397. 

[xxxiii] Louis Baudouin, ibid, 402 [translated in English by Sébastien Lafrance].

[xxxiv] Gilbert c. Bolduc, 2015 QCCS 3725, paras [15]-[16] [translated in English by Sébastien Lafrance]; see also sections 1425-1427 of the Quebec Civil Code, CQLR c. CCQ-1991 (hereinafter ‘Quebec Civil Code’); see also Deserres v. Brault, (1906) 37 SCR 613, 613; Louis Baudouin, above n xxiii, 403.

[xxxv] Section 1429 of the Quebec Civil Code.

[xxxvi] [2013] 3 SCR 838, preamble.

[xxxvii] Lucie Lauzière, above n xxi, 369 [translated in English by Sébastien Lafrance].

[xxxviii] [1996] 3 SCR 415, para [41].

[xxxix] Beetz J. of the Supreme Court of Canada wrote in Cie Viger v. Lauréat Giguère, [1977] 2 SCR 67, 76: “The Civil Code does not contain the whole of civil law”.

[xl] Charlotte Lemieux, above n vii, 236  [translated in English by Sébastien Lafrance].

[xli] Charlotte Lemieux, ibid, 245; see also Stéphane Beaulac and Frédéric Bérard, Précis d’interprétation législative [Precis of Legislative Interpretation], 2th ed., Montréal, LexisNexis, 2014, 51; Pierre-André Coté, Interprétation des lois [Legal Interpretation], 2th ed., Montréal, Thémis, 1990, 260.

[xlii] Mélanie Samson and Catheryne Bélanger, ‘La méthode littérale ou grammaticale’ [The Literal or Grammatical Method], Law Faculty, Laval University, Chaire de rédaction juridique Louis-Philippe-Pigeon, see online: https://www.redactionjuridique.chaire.ulaval.ca/sites/redactionjuridique.chaire.ulaval.ca/files/capsule_methode_litterale_ou_grammaticale_cb-ms.pdf; see also Pierre-André Côté with the collaboration of Stéphane Beaulac and Mathieu Devinat, Interprétation des lois [Legal Interpretation], 4th ed., Montréal, Thémis, 2009, 316-320.

[xliii] [2006] 2 SCR 513, para [30] (emphasis added).

[xliv] Ibid, para [32]; see also Montreal (City) v. 2952‑1366 Quebec Inc., [2005] 3 SCR 141, para [10].

[xlv] Catheryne Bélanger and Mélanie Samson, ‘La méthode contextuelle’ [The Contextual Method], Faculty of Law, Laval University, Chaire de rédaction juridique Louis-Philippe-Pigeon, see online: https://www.redactionjuridique.chaire.ulaval.ca/sites/redactionjuridique.chaire.ulaval.ca/files/capsule_methode_contextuelle.pdf [translated in English by Sébastien Lafrance]

[xlvi] Bell ExpressVu, above n xvii, para [27].

[xlvii] Formule Pontiac Buick GMC inc. c. Bureau des services financiers, 2005 QCCA 1027, para [1].

[xlviii] Center for Constitutional Studies, “Purposive Approach to Charter Interpretation”, see online: https://ualawccsprod.srv.ualberta.ca/2020/07/purposive-approach-to-charter-interpretation/; see also Mélanie Samson and Catheryne Bélanger,  “La méthode téléologique” [The Purposive Method], Faculty of Law, Laval University, Chaire de rédaction juridique Louis-Philippe-Pigeon, see online: https://www.redactionjuridique.chaire.ulaval.ca/sites/redactionjuridique.chaire.ulaval.ca/files/capsule_methode_teleologique_ms_0.pdf; see also Luc B. Tremblay, ‘L’interprétation téléologique des droits constitutionnels’ [The Purposive Approach of Constitutional Rights] (1995) 29 R.J.T. 459, 462.

[xlix] 2006 QCCA 4, para [36].

[l] Raynold Langlois, ‘L’application des règles d’interprétation constitutionnelle’ [The Application of Constitutional Interpretation Rules], (1987) Les Cahiers de droit, 28(1), 212; see also Ruth Sullivan, Construction of Statutes, 6th ed (Markham: LexisNexis Canada, 2014), 523 [translated in English by Sébastien Lafrance].

[li] [1984] 2 SCR 145, 169.

[lii] Mikisew Cree First Nation v. Canada (Governor General in Council), [2018] 2 SCR 765, para [35]; see also Wells v. Newfoundland, [1999] 3 S.C.R. 199, para [52]; Ontario v. Criminal Lawyers’ Association of Ontario, [2013] 3 S.C.R. 3, para [27].

[liii] R. v. Big M Drug Mart Ltd., above n lxx, para [80].

[liv] Vicky C. Jackson, “Methodological Challenges in Comparative Constitutional Law”, 28 Penn. St. Int’l. Rev. 319, 324 (italics added).

[lv] See, e.g., Alan Watson, Legal Transplants: An Approach to Comparative Law, Edinburgh, 1974.

[lvi] Title of an article published by Mark Tushnet, “The inevitable globalization of constitutional law”, Hague Institute for the Internationalization of Law, Harvard Public Law Working Paper No. 09-06, 2008.

[lvii] [2014] 1 SCR 704, para [25].

[lviii] “It signaled true independence from the former colony state quaintly called a ‘dominion,’, and reaffirmed the principles upon which Confederation of 1867 had been based: democracy, federalism, respect for minorities and accommodation.”: Remarks of the Right Honourable Beverly McLachlin, P.C., (now former) Chief Justice of Canada, “Defining Moments: The Canadian Constitution”, see online: https://www.scc-csc.ca/judges-juges/spe-dis/bm-2013-02-05-eng.aspx#fnb1.

[lix] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (U.K.), 1982 c.1 (hereinafter ‘Charter’).

[lx] Raynold Langlois, above n l, 213.

[lxi] Sébastien Lafrance, “La Charte Canadienne des droits et libertés à la lumière de la “révolution scientifique” et de la “révolution constitutionnelle”: l’exemple du droit constitutionnel du travail” [The Canadian Charter of Rights and Freedoms in light of the “Scientific Revolution” and the “Constitutional Revolution”: the Example of Labour Constitutional Law], Lex Electronica, 18(2), 2013, para [2], see online: https://www.erudit.org/fr/revues/lex/2013-v18-n2-lex01053/1021109ar/

[lxii] Zoltán Pozsár-Szentmiklósy, “The Canadian Approach to Fundamental Rights Disputes – Methodological Exceptionalism in Constitutional Interpretation and Proportionality Reasoning”, Elte Law Journal, 2017, see online: http://eltelawjournal.hu/the-canadian-approach-to-fundamental-rights-disputes-methodological-exceptionalism-in-constitutional-interpretation-and-proportionality-reasoning/.

[lxiii] [1930] AC 124.

[lxiv] Peter W. Hogg, Constitutional Law of Canada, vol. 2, 5th ed (Scarborough: Thomson, 2007), 36.8(a).

[lxv] [2004] 3 SCR 698, para [22].

[lxvi] S.C. 1960, c. 44.

[lxvii] See, for example, Attorney General of Canada v. Lavell, [1974] SCR 1349.

[lxviii] Hunter et al. v. Southam Inc., above n li.

[lxix] Raynold Langlois, above n l, 219 (italics added).

[lxx] R. v. Big M Drug Mart Ltd., [1985] 1 SCR 295, para [116].

[lxxi] Interpretation Act, CQLR, c. I-16, section 41.

[lxxii] Zoltán Pozsár-Szentmiklósy, above n lxii.

[lxxiii] Peter W. Hogg, ‘Canada: From Privy Council to Supreme Court’ in Jeffrey Goldsworthy (ed), Interpreting Constitutions. A Comparative Study, Oxford University Press, 2007, 89-90.

[lxxiv] Gould v. Yukon Order of Pioneers, [1996] 1 SCR 571, 636-637 (L’Heureux-Dubé J., dissenting but not on this point).

[lxxv] See, e.g., Sébastien Lafrance, ‘The Presumption of Innocence in Canada: A Comparative Perspective with Vietnam – What Kind of Presumption?’, University of Melbourne, see online : https://law.unimelb.edu.au/centres/alc/news-and-events/the-presumption-of-innocence-online-experts-workshop/papers

[lxxvi] [2019] HCA 11, para [502].

[lxxvii] For a Canadian example when the Supreme Court of Canada addressed the issue of standing, see Rebecca Lefler, ‘A Comparison of Comparison: Use of Foreign Case law as Persuasive Authority by the Unites States Supreme Court, the Supreme Court of Canada, and the High Court of Australia’, (2001) 11 Southern California Interdisciplinary Law Journal 165, 177: “The [Supreme] Court [of Canada] did not base its decision on a specific text, but rather decided what general principles it should apply to its relatively new Charter of Rights and Freedoms. This is the type of issue that benefits from the use of comparison. The foreign cases in this instance were not used to legitimate the Canadian Supreme Court’s position nor to reaffirm the importance of the issue, but rather were viewed as alternative positions to be considered. It is telling that the Court did not simply ignore foreign precedent because it was not favorable to its conclusion. Instead, it discussed different approaches before articulating its own. In this way, the Court was able to use the history and wisdom of other countries to clarify what types of restrictions would be unacceptable under the Canadian Charter.”

[lxxviii] Khagesh Gautam and Sébastien Lafrance, ‘A Comparative Survey of the Law of Bail in India and Canada’ in Salman Khurshid, Sidharth Luthra, Lokendra Malik and Shruti Bedi, Taking Bail Seriously, LexisNexis, 2020, 126.


Rachael Asher, Defining Transnational Law By Reference To Tralješić’s Case


I.               Introduction

Transnational law is an increasingly significant field due to the phenomenon of globalisation: that is, the ‘…spread of transplanetary and… supraterritorial – connections between people’.[1] Connections that are transnational in nature can give rise to transnational objectives.[2] Therefore, this paper argues that for the purposes of pursuing such objectives, Philip C. Jessup’s definition of transnational law is the optimal conception.[3] This is because it broadly specifies the conditions that are necessary for an objective to be addressed within a transnational legal framework which can create order in the landscape of transnational law thereby making it more navigable.[4] To demonstrate how this proposition was reached, a summary of facts is presented on Tralješić’s extradition case, of which is then utilised to analyse the definition of transnational law.[5] In particular, the analysis examines origins and sources of law, four competing definitions, and finalises with a discussion on resolving challenges within transnational law, including jurisdictional issues, implications on state authority and legal pluralism.[6]

II.             Case Study Facts

A. Background

On 14 March 2005, in the Federation of Bosnia-Herzegovina, Rasim Tralješić was convicted of attempted murder and causing general danger.[7] He was sentenced to 3 years and 10 months in the Bihac prison.[8] While serving his sentence, Tralješić was granted temporary leave of absence.[9] He did not return to prison at the required time, and eventually an investigation revealed that he had fled to Australia where he holds citizenship.[10]

B. Case law history

On 13 February 2014, Australia received an extradition request from Bosnia-Herzegovina for the return of Tralješić to complete his sentence.[11] At Tralješić’s hearing, on 20 August 2015,  Magistrate Holzer of the Magistrates’ Court of Victoria ordered that Tralješić was eligible to be surrendered.[12] In turn, Tralješić applied for the order to be reviewed, and on 20 April 2016 the Federal Court of Australia confirmed the decision of Magistrate Holzer.[13] Tralješić then appealed to the Full Court of the Federal Court of Australia (‘FCFCA’), and on 28 April 2017 his appeal was dismissed.[14] Following this, Tralješić filed an application with the High Court of Australia for special leave to appeal and on 20 October 2017 his application was granted.[15] On 10 November 2017 Tralješić withdrew the appeal.[16]

C. Question of law

The primary question of law in the proceedings was whether an extradition objection arose under section 7(c) of the Extradition Act 1988 (Cth) (‘the Act’).[17] This section provides that a person shall not be extradited if:

‘… on surrender to the extradition country in respect of the extradition offence, the person may be… punished… by reason of his… religion… or political opinions…’[18]

D.   The evidence of Tralješić

Counsel for Tralješić claimed that an extradition objection arose because he may be punished due to his religion and political opinions if compelled to serve the remainder of his sentence at Bihac prison.[19] In support of this assertion, Tralješić gave oral evidence to the effect that prior to escaping prison he was subjected to continuous violent assaults by other prisoners.[20] This was because he was perceived to be opposed to the recognition of Bosnia-Herzegovina as an Islamic state; an advocate of Fikret Abdic; and a supporter of Serbia.[21] Moreover, he claimed to be targeted because in his former role as a police officer, he assisted in matters that led to the imprisonment of other inmates; and because he was regarded as a ‘non-strict Muslim’ that is ‘sympathetic to Christians’, married to a Christian person and gave his child a Christian name.[22]

Tralješić claimed to know that the assaults occurred by reason of these factors because the perpetrators informed him.[23] He also stated that Bihac prison authorities knew of the assaults as well as the reasons for them and did not act to prevent them.[24] Tralješić’s oral evidence was generally considered a ‘reliable account’ throughout proceedings.[25]

E. The evidence of Bosnia-Herzegovina

Counsel for Bosnia-Herzegovina submitted three letters as evidence to demonstrate that prison conditions had improved since Tralješić was incarcerated.[26] These included:

1. A ‘statement of adherence’ to the ‘minimum standards’ required internationally;

2. Information about Bihac prison and its prisoner composition; and

3. A guarantee that Tralješić would serve the remainder of his sentence in a different correctional institution if he elects to.[27]

However, the primary judge described the evidence as ‘self-serving’ and ‘untested’, and it was given insignificant weight throughout proceedings.[28]

F. FCFCA: Reasons for final judgment

Nonetheless, the FCFCA agreed with the primary judge that Tralješić’s evidence did not satisfy an extradition objection under section 7(c) of the Act.[29] This was due to the following reasons:

1. Section 7(c) of the Act serves to protect persons from wrongful conduct by the State in the context of its criminal justice system; and

2. The wording ‘by reason of’ means that the ‘apprehended punishment’ must have a ‘causal connection’ with the political opinion of the person.[30]

To give effect to that construction in the present case, the Court stated that evidence was required demonstrating that authorities were ‘complicit in, or condoned’ past assaults by prisoners on Tralješić due to his political opinions.[31] No evidence of this nature was submitted.[32] As a result, the Court was unable to distinguish whether authorities did not act to prevent the assaults due to the political opinions of Tralješić, or due to other reasons, such as a ‘lack of resources’ or ‘indifference’.[33] Consequently, the extradition request was granted.[34]

III.           Origins and Sources

Transnational legal activities such as the practice of merchant law have operated for centuries.[35] However, the need to conceptualise transnational law is a contemporary issue that arose out of the contention that international law did not function as an all-encompassing point of reference in addressing global issues.[36] Jessup therefore contended that transnational law ‘is all law which regulates actions or events that transcend national frontiers’.[37] This includes public and private law derived from domestic and international settings as well as other miscellaneous rules.[38] Under this definition, parties to transnational legal matters can include ‘…individuals, corporations, states, organizations of states, or other groups’.[39] This conception of transnational law, as noted by Jessup, resembles ‘George Scelle’s unified intersocial law’.[40]

IV.          Comparative Analysis

A. Three alternative definitions

However, since the rise of transnational relations, alternative ways of defining transnational law have been proposed.[41] To begin with, some scholars view transnational law as confined to ‘global contract law’ between private entities such as individuals and corporations.[42] Under this definition, transnational law is not regulated by the state, but rather, by private authorities based on principles derived from merchant law; and it sits alongside national and international law as an ‘autonomous legal system’.[43]

Since Tralješić’s case involves public law, several issues with respect to this definition are apparent.[44] For example, to contend that ‘global contract law’ exclusively embodies transnational law seems counterintuitive in that the latter inherently has a broad meaning so as to include public law.[45] The effect of excluding public law is that cases which concern state institutions in matters that extend across national boundaries are displaced from the classification of transnational law.[46] This is evinced by Tralješić’s case which, under this definition, falls outside its scope despite the fact that neither international law, or the national law of one state, could wholly address the extradition request or the human rights issues that flowed from the extradition objection.[47] Thus, arguably restricting transnational law to contractual matters is an ineffective conception because it disregards wider transnational objectives.[48]

In contrast, Peter Rijpkema suggested that ‘…national law, international law and other forms of supranational and transnational regulation…’ collectively operate as a ‘network of authoritative rules, institutions and procedures’ that require systemising in order to conform to the ‘Rule of Law’.[49] While Rijpkema does not contend that this proposition is a definition of transnational law, it could be viewed in part as such because it enumerates a list of elements that, when arise in a transnational matter, arguably encapsulate transnational law.[50]

To illustrate, the proposition has direct application in Tralješić’s case wherein numerous sources of national and international law consisting of rules and procedures formed a ‘network’ that, for the purposes of determining the final decision, were systemised in a way so as to uphold the ‘Rule of Law’.[51] In light of this, the term ‘network’ is of great utility because as evinced by Tralješić’s case, all transnational matters have their own sets of facts which give rise to unique networks of applicable rules and procedures.[52] To demonstrate how rules can be networked, Counsel for Tralješić’s argued that the Nelson Mandela Rules 2015, which are non-binding international guidelines on minimum prison standards, imposed a duty of care on Bosnia-Herzegovina to its prisoners.[53]

The other benefit of this conception is that it references the rule of law which is ideal because arguably adherence to this principle is the overarching object in transnational legal matters.[54] For example, without the rule of law in cases such as Tralješić’s, individuals could be arbitrarily forced to face the criminal justice systems of other nations.[55] Thus, Rijpekma’s proposition captures important aspects of transnational law; however, arguably, it falls short of Jessup’s conception because it does not articulate the conditions required in order for a matter to be addressed by transnational law.[56]

Similar to Rijpkema, Harold Hongju Koh utilised a descriptive approach in proposing his definition of transnational law suggesting that it is a ‘hybrid’ system of international and domestic law that is transplanted between jurisdictions, for example:[57] where international law becomes domestic law; where domestic law becomes international law; or where domestic law is replicated in other nations.[58] This definition is useful in that it broadly describes how transnational law can be identified, and how it can be transferred.[59] For example, section 7(c) of the Act, which was of primary focus in Tralješić’s case, is an implementation of Art 3.2 of the European Convention on Extradition 1957 and is but one example of how law has been transmitted across jurisdictions.[60]

Nonetheless, not all law that is transferred can be regarded as examples of transnational law.[61] For example, the common law of England was transplanted to the colonies of Australia.[62] However, since the common law is treated as domestic law, it is illogical for the common law as a whole to be regarded as transnational law except to the extent that the common law applies to an ‘action or event’ that is transnational in nature, such as extradition.[63] Thus, the weakness of Koh’s definition is that it mainly describes how law crosses jurisdictions, and like Rijpkema’s definition, it neglects to address the core components of transnational law.[64] That is, the conditions that need to be apparent for a matter to be addressed within a transnational legal framework.[65]

B. The importance of conditions

In light of this, within Jessup’s conception of transnational law, he introduced two conditions.[66] These conditions can be illustrated by reference to Tralješić’s case.[67] For example, firstly, for a matter to fall within the scope of transnational law, there must be an ‘action or event’ that requires regulating, which in this case was the extradition of Tralješić.[68] And secondly, the legal issues connected to that ‘action or event’ must metaphorically ‘transcend’ the borders of nations.[69] To illustrate, in Tralješić’s case, issues of extradition, prison standards, political and religious rights and criminal justice transcended Australia, Bosnia-Herzegovina and the international arena because they could not entirely be addressed by a particular jurisdiction or international body.[70]

Tralješić’s case also highlights the utility of specifying conditions within the definition of transnational law.[71] For example, the courts were tasked with determining how the law of several jurisdictions interacted with one another.[72] Furthermore, each party utilised the law relevant to the aforementioned issues to pursue their own transnational objectives: Bosnia-Herzegovina sought the extradition of Tralješić, a convicted person, from Australia in order to enforce the law of its criminal justice system; Australian authorities sought to ensure that the extradition request was justified; and Tralješić sought to resist extradition on human rights related grounds.[73]

In view of these objectives, it is evident that each party required a means of navigating complex transnational legal issues in seeking their desired outcome.[74] Accordingly, by articulating the conditions necessary in order for a matter to be addressed by transnational law, Jessup’s proposition facilitates the navigation of transnational matters in the following ways:[75] the definition functions as a first point of reference where a transnational ‘action or event’ gives rise to a legal matter; the use of the term ‘regulates’ invites research and inquiry regarding how transnational ‘actions and events’ are or ought to be regulated; and in doing so, it presents the opportunity for pathways to be established or improved for the purpose of solving transnational legal problems.[76] Lastly, by being broad in terms of sources of law, it allows for sub-definitions to fit into its framework such as ‘transnational contract law’.[77] For these reasons, Jessup’s conception can improve navigating the vast terrain that is transnational law in pursuit of objectives that ‘transcend’ borders.[78]

 

V.             Challenges and Opportunities

Transnational law attempts to resolve many challenges produced by globalisation.[79] For example, a major issue is the increased complexity of transnational relations where the laws or rules of several authorities ‘overlap’ in regulating the same matter.[80] This can lead to uncertainty for the parties involved; as well as problems determining which authority, whether private, national, or international, has jurisdiction over the matter in question.[81]

In addition, some types of transnational law have been conceived and operate outside a territorial framework such as ‘international arbitration’ or ‘international sports law’.[82] Such legal systems are unique in that their legitimacy is not derived from the concept of state sovereignty over land.[83] However, their existence has in turn called into question: are such legal systems valid; and to what extent should the judicial systems of nation-states recognise and take into account non-state laws when determining a matter.[84] Moreover, if non-state law is valid, how can this be reconciled with the idea of the ‘primacy’ of sovereign states.[85] Various ways of resolving these issues have been suggested.[86] For example:

1.     To restore the notion that supreme lawmaking authority exclusively derives from territorial sovereignty;[87]

2.     To globally harmonise laws;[88]

3.     Or to embrace the reality of legal pluralism or ‘overlapping legal systems’ by accepting and making provision for non-state forms of law.[89]

However, arguably, none of these approaches can be implemented as an all-encompassing solution to the problems that transnational law seeks to solve.[90] This is because ‘actions and events’ that ‘transcend’ national borders are indescribably varied, and therefore require individually tailored legal solutions.[91] For example, Tralješić’s case is entirely different in comparison to a transnational internet law matter, yet both fall within Jessup’s definition of transnational law.[92] Accordingly, the idea of universally harmonising extradition laws may be met with great opposition because many legal systems have conflicting conceptions of criminal justice and human rights.[93] Whereas, the idea of creating a universal ‘contract law’ based on the historical merchant law might receive greater support on the basis that it could facilitate transnational commerce.[94]

VI.           Conclusion

This paper sought to demonstrate that Jessup’s conception remains relevant as a primary definition because it conveys the central elements of transnational law.[95] These being the requirements that need to be satisfied in order for a matter to be resolved within a transnational legal framework.[96] However, the other three aforementioned definitions fit comfortably within Jessup’s framework and are equally relevant.[97] This is because they express secondary features of transnational law that are not illustrated in Jessup’s definition, and in doing so, they demonstrate the complex myriad of ways in which transnational law can operate.[98] Moreover, as Jessup’s definition is broad, transnational legal phenomena is inexpressibly vast and diverse.[99] Therefore, it follows that in resolving transnational problems, no single solution is adequate.[100] Instead, solutions should arguably be adapted to cater for subcategories within transnational law.[101]

 

 

 

 

 

BIBLIOGRAPHY

A.   Books

Berman, Paul Schiff, Global Legal Pluralism: A Jurisprudence of Law Beyond Borders (Introduction) (Cambridge University Press, 2012)

Cook, Roy T, A Dictionary of Philosophical Logic (Edinburgh University Press, 2009)

Domingo, Rafael, The New Global Law (Cambridge University Press, 2010)

Finkelstein, Ray, et al, Concise Australian Legal Dictionary (LexisNexis, 5th ed, 2015) 560

Jessup, Philip C, Transnational Law (New Haven: Yale University Press, 1956)

B. Cases

Tralješić v Bosnia and Herzegovina [2016] FCA 383

Tralješić v Bosnia and Herzegovina & Anor [2017] HCATrans 213 (20 October 2017)

Tralješić v Bosnia and Herzegovina [2017] FCAFC 70

C. International Law

European Convention on Extradition 1957

Nelson Mandela Rules 2015

D.   Internet Materials

High Court of Australia, Case M160/2017 Tralješić v Bosnia and Herzegovina & Anor <http://www.hcourt.gov.au/cases/case_m160-2017>

E. Journal Articles

Calliess, Gralf-Peter, ‘The Making of Transnational Contract Law’ (2007) 14(2) Indiana Journal of Global Legal Studies 469

Castles, Alex C, ‘The Reception and Status of English Law in Australia’ (1963) 2(1) Adelaide Law Review 1

Cotterrell, Roger, ‘What is Transnational Law?’ (2012) 37(2) Journal of the American Bar Foundation 500

Duval, Antoine, ‘Lex Sportiva: A Playground for Transnational Law’ (2013) 19(6) European Law Journal 822

Hatzimihail, Nikitas E, ‘The Many Lives – and Faces – of Lex Mercatoria: History as Genealogy in International Business Law’ (2008) 71 Law and Contemporary Problems 169

Koh, Harold Hongju, ‘Why Transnational Law Matters’ (2006) 24(4) Penn State International Law Review 745

Menkel-Meadow, Carrie, ‘Why and How to Study ‘’Transnational’’ Law’ (2011) 1(1) UC Irvine Law Review 97

Rijpkema, Peter, ‘The Concept of a Global Rule of Law’ (2013) 4(2) Transnational Legal Theory 167

Scholte, Jan Aart, ‘Defining Globalisation’ (2008) 31 (11) World Economy 1471

F. Legislation

Criminal Code of the Federation of Bosnia and Herzegovina 2003

Extradition Act 1988 (Cth)

Extradition (Bosnia and Herzegovina) Regulations 2009



[1] Jan Aart Scholte, ‘Defining Globalisation’ (2008) 31 (11) World Economy 1471, 1478; Carrie Menkel-Meadow, ‘Why and How to Study ‘’Transnational’’ Law’ (2011) 1(1) UC Irvine Law Review 97, 100, 102-3; Antoine Duval, ‘Lex Sportiva: A Playground for Transnational Law’ (2013) 19(6) European Law Journal 822, 822-3.

[2] Roger Cotterrell, ‘What is Transnational Law?’ (2012) 37(2) Journal of the American Bar Foundation 500, 500.

[3] Ibid 501; Philip C Jessup, Transnational Law (New Haven: Yale University Press, 1956) 1-2.

[4] Cotterrell, above n 2, 500; Philip C Jessup, Transnational Law (New Haven: Yale University Press, 1956) 1-2; Roy T Cook, A Dictionary of Philosophical Logic (Edinburgh University Press, 2009) 155 ‘intensional definition’.

[5] Tralješić v Bosnia and Herzegovina [2016] FCA 383; Tralješić v Bosnia and Herzegovina [2017] FCAFC 70.

[6] Paul Schiff Berman, Global Legal Pluralism: A Jurisprudence of Law Beyond Borders (Introduction) (Cambridge University Press, 2012) 4-5.

[7] Tralješić v Bosnia and Herzegovina [2016] FCA 383, [4], [134]; Criminal Code of the Federation of Bosnia and Herzegovina art 28, 166 para 1, 323 para 3.

[8] Tralješić v Bosnia and Herzegovina [2016] FCA 383, [4].

[9] Ibid.

[10] Tralješić v Bosnia and Herzegovina [2017] FCAFC 70, [1]-[2].

[11] Tralješić v Bosnia and Herzegovina [2016] FCA 383, [4]-[5].

[12] Ibid [1], [8].

[13] Ibid [3].

[14] Tralješić v Bosnia and Herzegovina [2017] FCAFC 70, [74].

[15] Tralješić v Bosnia and Herzegovina & Anor [2017] HCATrans 213 (20 October 2017).

[16] High Court of Australia, Case M160/2017 Tralješić v Bosnia and Herzegovina & Anor <http://www.hcourt.gov.au/cases/case_m160-2017>.

[17] Tralješić v Bosnia and Herzegovina [2016] FCA 383, [2]; Tralješić v Bosnia and Herzegovina [2017] FCAFC 70, [6].

[18] Extradition Act 1988 (Cth) s 7(c).

[19] Tralješić v Bosnia and Herzegovina [2016] FCA 383, [2].

[20] Ibid [36].

[21] Ibid

[22] Ibid

[23] Ibid.

[24] Ibid.

[25] Tralješić v Bosnia and Herzegovina [2016] FCA 383, [39]; Tralješić v Bosnia and Herzegovina [2017] FCAFC 70, [28].

[26] Tralješić v Bosnia and Herzegovina [2017] FCAFC 70, [29].

[27] Tralješić v Bosnia and Herzegovina [2016] FCA 383, [47].

[28] Ibid [124].

[29] Tralješić v Bosnia and Herzegovina [2017] FCAFC 70, [70].

[30] Ibid [58]-[59].

[31] Ibid [60].

[32] Ibid.

[33] Ibid.

[34] Ibid [70].

[35] Nikitas E Hatzimihail, ‘The Many Lives – and Faces – of Lex Mercatoria: History as Genealogy in International Business Law’ (2008) 71 Law and Contemporary Problems 169, 169.

[36] Rafael Domingo, The New Global Law (Cambridge University Press, 2010) 37-8.

[37] Cotterrell, above n 2, 501; Philip C Jessup, Transnational Law (New Haven: Yale University Press, 1956) 1-2.

[38] Cotterrell, above n 2, 501; Philip C Jessup, Transnational Law (New Haven: Yale University Press, 1956) 1-2.

[39] Philip C Jessup, Transnational Law (New Haven: Yale University Press, 1956) 1-2.

[40] Domingo, above n 36, 38.

[41] Cotterrell, above n 2, 500-1.

[42] Ibid 501, citing Gralf-Peter Calliess, ‘The Making of Transnational Contract Law’ (2007) 14(2) Indiana Journal of Global Legal Studies 469, 476.

[43] Cotterrell, above n 2, 501, citing Gralf-Peter Calliess, ‘The Making of Transnational Contract Law’ (2007) 14(2) Indiana Journal of Global Legal Studies 469, 476.

[44] Tralješić v Bosnia and Herzegovina [2016] FCA 383, 1.

[45] Gralf-Peter Calliess, ‘The Making of Transnational Contract Law’ (2007) 14(2) Indiana Journal of Global Legal Studies 469, 476; Jessup, above n 39, 1-2.

[46] Tralješić v Bosnia and Herzegovina [2016] FCA 383; Tralješić v Bosnia and Herzegovina [2017] FCAFC 70.

[47] Tralješić v Bosnia and Herzegovina [2016] FCA 383, 1-3, 27.

[48] Cotterrell, above n 2, 501, citing Gralf-Peter Calliess, ‘The Making of Transnational Contract Law’ (2007) 14(2) Indiana Journal of Global Legal Studies 469, 476.

[49] Peter Rijpkema, ‘The Concept of a Global Rule of Law’ (2013) 4(2) Transnational Legal Theory 167, 168.

[50]  Ibid; Roy T Cook, A Dictionary of Philosophical Logic (Edinburgh University Press, 2009) 213 ‘ostensive definition’.

[51] Rijpkema, above n 49, 168.

[52] Ibid; Tralješić v Bosnia and Herzegovina [2016] FCA 383, 1-2.

[53] Rijpkema, above n 49, 168; Tralješić v Bosnia and Herzegovina [2016] FCA 383, [97]-[100].

[54] Rijpkema, above n 49, 168.

[55] Ray Finkelstein et al, Concise Australian Legal Dictionary (LexisNexis, 5th ed, 2015) 560 ‘rule of law’.

[56] Rijpkema, above n 49, 168; Jessup, above n 39, 1-2; Roy T Cook, A Dictionary of Philosophical Logic (Edinburgh University Press, 2009) 155 ‘intensional definition’.

[57] Harold Hongju Koh, ‘Why Transnational Law Matters’ (2006) 24(4) Penn State International Law Review 745, 745-6; Rijpkema, above n 49, 168.

[58] Harold Hongju Koh, ‘Why Transnational Law Matters’ (2006) 24(4) Penn State International Law Review 745, 745-6.

[59] Ibid.

[60] Tralješić v Bosnia and Herzegovina [2016] FCA 383, [66], citing European Convention on Extradition 1957 art 3.2.

[61] Alex C Castles, ‘The Reception and Status of English Law in Australia’ (1963) 2(1) Adelaide Law Review 1, 7.

[62] Ibid.

[63] Ibid; Jessup, above n 39, 1-2; Cotterrell, above n 2, 501.

[64] Koh, above n 58, 745-6; Rijpkema, above n 49, 168.

[65] Jessup, above n 39, 1-2; Roy T Cook, A Dictionary of Philosophical Logic (Edinburgh University Press, 2009) 155 ‘intensional definition’.

[66] Jessup, above n 39, 1-2; Cotterrell, above n 2, 501.

[67] Tralješić v Bosnia and Herzegovina [2016] FCA 383; Tralješić v Bosnia and Herzegovina [2017] FCAFC 70.

[68] Jessup, above n 39, 1-2; Tralješić v Bosnia and Herzegovina [2016] FCA 383, 1; Cotterrell, above n 2, 501.

[69] Jessup, above n 39, 1-2; Cotterrell, above n 2, 501.

[70] Extradition Act 1988 (Cth); Extradition (Bosnia and Herzegovina) Regulations 2009, Criminal Code of the Federation of Bosnia and Herzegovina 2003; Nelson Mandela Rules 2015; European Convention on Extradition 1957; Jessup, above n 39, 1-2; Tralješić v Bosnia and Herzegovina [2016] FCA 383, 1-2.

[71] Roy T Cook, A Dictionary of Philosophical Logic (Edinburgh University Press, 2009) 155 ‘intensional definition’; Tralješić v Bosnia and Herzegovina [2016] FCA 383.

[72] Tralješić v Bosnia and Herzegovina [2016] FCA 383, 1-3.

[73] Ibid [2]-[4].

[74] Ibid.

[75] Jessup, above n 39, 1-2.

[76] Jessup, above n 44, 1-2; Roy T Cook, A Dictionary of Philosophical Logic (Edinburgh University Press, 2009) 155 ‘intensional definition’; Rijpkema, above n 49, 168.

[77] Gralf-Peter Calliess, ‘The Making of Transnational Contract Law’ (2007) 14(2) Indiana Journal of Global Legal Studies 469, 476.

[78] Jessup, above n 39, 1-2; Roy T Cook, A Dictionary of Philosophical Logic (Edinburgh University Press, 2009) 155 ‘intensional definition’.

[79] Antoine Duval, ‘Lex Sportiva: A Playground for Transnational Law’ (2013) 19(6) European Law Journal 822, 822-3.

[80] Berman, above n 6, 5, 18.

[81] Ibid 5, 9.

[82] Ibid 3-4; Duval, above n 79, 825.

[83] Berman, above n 6, 5.

[84] Duval, above n 79, 825, 830; Berman, above n 6, 7, 14.

[85] Berman, above n 6, 9.

[86] Ibid 9.

[87] Ibid.

[88] Ibid.

[89] Ibid 10.

[90] Ibid 9-10.

[91] Jessup, above n 39, 1-2.

[92] Tralješić v Bosnia and Herzegovina [2016] FCA 383.

[93] Berman, above n 6, 9-10.

[94] Gralf-Peter Calliess, ‘The Making of Transnational Contract Law’ (2007) 14(2) Indiana Journal of Global Legal Studies 469, 476; Berman, above n 6, 9.

[95] Jessup, above n 39, 1-2.

[96] Ibid; Roy T Cook, A Dictionary of Philosophical Logic (Edinburgh University Press, 2009) 155 ‘intensional definition’.

[97] Rijpkema, above n 49, 168; Koh, above n 58, 745-6; Cotterrell, above n 2, 501, citing Gralf-Peter Calliess, ‘The Making of Transnational Contract Law’ (2007) 14(2) Indiana Journal of Global Legal Studies 469, 476; Jessup, above n 39, 1-2.

[98] Rijpkema, above n 49, 168; Koh, above n 58, 745-6; Cotterrell, above n 2, 501, citing Gralf-Peter Calliess, ‘The Making of Transnational Contract Law’ (2007) 14(2) Indiana Journal of Global Legal Studies 469, 476.

[99] Jessup, above n 39, 1-2.

[100] Berman, above n 6, 9-10.

[101] Ibid.



Danial Kelly, Australian Indigenous Property Law


The Australian law’s historical starting point in relation to Aboriginal customary law title to land was non-recognition. The road to recognition of Aboriginal customary law title to land has a peculiar history in Australian law and the Yolngu have played a particularly central role in this history.

 

In 1963, the Commonwealth government excised what was then a part of the Arnhem Land Aboriginal Reserve[1] in order to establish a bauxite mine.[2] In protest to the government’s actions a number of Yolngu constructed what became known as the ‘bark petition’ – a petition written in both English and Yolngu matha and framed in bark painted with designs belonging to the clans that signed the petition.[3] The petition was sent to the Commonwealth Parliament and a Parliamentary Committee was established to investigate the matter. The mine went ahead regardless. The Yolngu petitioners brought the matter to the Northern Territory Supreme Court and this case - Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 - became a milestone in the history of Australian law recognising the Madayin system specifically and land rights under Aboriginal customary law generally. The Yolngu plaintiffs argued that the type of rights that they hold under their Aboriginal customary law can be described as ‘communal native title’.[4] The judge, Blackburn J, held that the doctrine of communal native title ‘does not form and never has formed, part of the law of any part of Australia’,[5] whether as legislation or as case law, and was therefore unable to recognise the plaintiff’s claims. Although the judge’s decision meant that Aboriginal land rights under Aboriginal customary law were not recognised by Australian law, the judgement contained many other findings that would in following years be often cited by lawyers, academics and advocates of Aboriginal rights including perhaps most famously the following part of His Honour’s judgement:

The evidence shows a subtle and elaborate [Madayin] system highly adapted to the country in which the people led their lives, which provided a stable order of society and was remarkably free from the vagaries of personal whim or influence. If ever a system could be called a “government of laws, and not of men” it is that shown in the evidence before me.[6]

 

The Milirrpum case proved to be a catalyst for legislative reform in respect to Aboriginal people’s land claims in the Northern Territory.  The Australian Labor Party included Aboriginal land rights as part of their 1972 election platform.[7] Gough Whitlam, the then Labor leader, declared that if Labor won the election they would enact Aboriginal land rights legislation, ‘not just because their case is beyond argument, but because all of us as Australians are diminished while the aborigines are denied their rightful place in this nation’.[8] Labor won the election and Woodward, counsel for the Yolngu plaintiffs in Milirrpum v Nabalco, was appointed to conduct the Aboriginal Land Rights Commission.[9]

 

The Aboriginal Land Rights (Northern Territory) Act 1976 (Cth)

 

Aboriginal Land Rights Commissioner Woodward’s second and final report included the stated aims of recognizing land rights for Aboriginal people including ‘[t]he preservation, where possible, of the spiritual link with his own land which gives each Aboriginal his sense of identity and which lies at the heart of his spiritual beliefs’.[10]

 

Woodward’s recommendations were largely implemented in the form of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth)[11] (‘ALRA’), thereby furthering the legislative proposition of the Australian Labor Party endorsed by the demos who voted Labor into government. 

 

Although the Whitlam Labor government started the ALRA process it was the successive Fraser Liberal government that passed the bill into law. The Minister who introduced the ALRA into Parliament, the Honourable Ian Viner, said in his second reading speech that the ALRA represents ‘a fundamental change in social thinking in Australia to recognise that within our community there are some people, the Aborigines, who live by a unique and distinct system of customary law’.[12]

 

It is worth noting that whilst Blackburn J held in the Milirrpum case that the Aboriginal customary law concept of communal customary (native) title ‘does not form and never has formed, part of the law of any part of Australia’,[13] the ALRA changed that by specifically including Aboriginal customary law concepts such as communal title in the requirements of a successful land claim under ALRA[14]  - a demonstration of parliamentary supremacy if nothing else. Additionally, the ALRA provides that for the purposes of ALRA where group consent of traditional Aboriginal owners of an area of land is required, the process for obtaining consent shall be the relevant Aboriginal traditional process (where it exists) of giving consent,[15] in other words according to the relevant Aboriginal customary law.

 

The 2008 ‘Blue Mud Bay’ case[16] saw the High Court recognise the right of Aboriginal land owners under ALRA to exclude persons from fishing in tidal waters connected to ALRA land. Currently approximately 50% of Northern Territory land is held under ALRA title.[17]

 

An essential qualification required of traditional owners to be awarded land rights under ALRA is a spiritual one.[18] Traditional Aboriginal owners of ALRA land are defined to mean, inter alia, Aboriginals ‘who have common spiritual affiliations to a site on the land, being affiliations that place the group under a primary spiritual responsibility for that site and for the land’.[19]

 

Native Title

 

The Yolngu claim for recognition by Australian law of communal native title failed in the Milirrpum case. But twenty years later the Mirriam people of the Island of Mer in Far North Queensland were successful in having the High Court of Australia recognise their title to land under their customary law in the landmark case of Mabo v Queensland (No 2) (1992) 175 CLR 1. For the first time in Australian legal history, title to land under Indigenous customary law was recognised by the Australian common law by the name of ‘native title’.

The High Court in Mabo (No 2) held that recognition of native title rights by the common law would be impossible if such recognition would be inconsistent with ‘the basic doctrines of the common law’.[20] One such basic doctrine of Australian land law is the doctrine of tenure; ‘a doctrine which could not be overturned without fracturing the skeleton which gives... (Australian) land law its shape and consistency’.[21] The Court held that the Crown possessed not an allodial title but rather a radical title, ‘a postulate of the doctrine of tenure and a concomitant of sovereignty’.[22]

The High Court in Mabo (No 2) held that native title survived the assertion of sovereignty by the English colonials.[23] In Mabo (No 2) Brennan J declared that native title ‘has its origins in and is given its content by the traditional laws and customs acknowledged by and the traditional customs observed by the indigenous inhabitants of a territory’.[24] As the previously held common law doctrine of terra nullius was rejected by the Court in Mabo (No 2), so too was ‘the notion that sovereignty carried ownership in its wake’.[25]

This was a remarkable finding by the court given the common law’s prior consistent refusal to recognise native title.[26] This monumental change of jurisprudence was well recognised by the High Court: their judgements included obiter on the need to not break an Australian land law ‘skeletal principle’ with such a major change.[27]

 

The Mabo (No 2) decision was handed down in 1992. In 1993 the Commonwealth government enacted the Native Title Act 1993 (Cth) which provided the legal mechanisms for determining future native title claims and included in its objectives ‘to provide for the recognition and protection of native title’.[28] Significantly, the Native Title Act took for its definition of ‘native title’ ostensibly the same definition that Brennan J formulated in Mabo (No 2), that is ‘the rights and interests ... possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders’.[29] The enactment of the Native Title Act provided the authority of the demos (via the legislature) for the recognition of native title by Australian law. However the jurisprudence remains complicated.

 

In Wik Peoples v Queensland (1996) 187 CLR 1, Toohey J opined that the types of native title available could form a spectrum of rights with full ownership at one end and merely rights to access land for ceremonial purposes at the other end.[30] The majority in Wik held that native title could co-exist with other types of title to land,[31] especially when the native title was of a type in the lower end of the spectrum.[32] The ‘spectrum’ that Toohey J spoke of became known in native title jurisprudence as a ‘bundle of rights’,[33] that is, a collection of various types of interest in land as perceived by Australian lawyers.

 

As native title finds its way into Australian law via ordinary statute, it is vulnerable to be extinguished by another ordinary statute.[34] In Wik[35] the High Court held that native title rights could co-exist with pastoralists’ rights. However Wik prompted the demos via the federal government of the day to amend the Native Title Act. As a consequence of the amendment, the ability to extinguish native title rights was increased.[36]

 

Efforts have also been made by Indigenous litigants to have Indigenous cultural knowledge recognised as a form of native title. In the Full Federal Court decision of Western Australia v Ward (2000),[37] the Court held that ‘we do not think that a right to maintain, protect and prevent the misuse of cultural knowledge is a right in relation to land of the kind that can be the subject of a determination of native title’[38] within the parameters of s 223(1) of the Native Title Act. On appeal, the High Court in Western Australia v Ward (2002)[39] agreed with the Full Federal Court on this point[40] and also held that Indigenous cultural knowledge does not amount to a new species of intellectual property recognisable by the common law under s 223(1)(c).[41]

 

Kirby J, in dissent, argued that ‘the right to protect cultural knowledge is, in my view, sufficiently connected to the area to be a right “in relation to” land or waters for the purpose of s 223(1) of the NTA (Native Title Act)’.[42] His Honour accepted submissions by counsel for Wik that the connection between a native title right and the material land and waters need not be a physical connection, and that cultural knowledge in a traditional context is inextricably linked to the land.[43]  While recognising that such a right would be ‘akin to a new species of intellectual property’,[44] Kirby J accepted that existing Australian ‘laws of intellectual property are ill-equipped to provide full protection of the kind sought in this case’.[45] Kirby J also suggested the future possibility of ‘a constitutional argument for the protection of the right to cultural knowledge’[46] based upon the Constitutional right to freedom of from laws affecting the free exercise of religion found in s 116 of the Constitution. It would be interesting to see how the contemporary legislature would react to a court decision that reflected Kirby’s position. Given that the legislature (and not a court) is empowered to enact the will of the demos combined with the doctrine of parliamentary supremacy, the essential nature of Australian law of rule by the contemporary demos should, at least in theory, be preserved.

 

Northern Territory Aboriginal Sacred Sites Act

 

The Northern Territory Aboriginal Sacred Sites Act (Sacred Sites Act) is a statute of the Northern Territory Legislature that synthesises Aboriginal customary law norms with Australian law. The Sacred Sites Act applies to all Madayin sacred sites as well as to the sacred sites of other Aboriginal religions in the Northern Territory. This Act makes it an offence to affect, destroy or desecrate an Aboriginal sacred site anywhere in the Northern Territory.[47] The Act adopts the meaning of sacred site from the Aboriginal Land Rights (Northern Territory) Act 1976,[48] which defines sacred site as meaning:

 

 

a site that is sacred to Aboriginals  or is otherwise of significance according to Aboriginal tradition, and includes any land that, under a law of the Northern Territory, is declared to be sacred to Aboriginals or of significance according to Aboriginal tradition.[49]

 

The long title to the Northern Territory Aboriginal Sacred Sites Act[50] provides a clear expression of Parliament’s intention in enacting the Act. The long title states inter alia that the Act is:

 

to effect a practical balance between the recognized need to preserve and enhance Aboriginal cultural tradition in relation to certain land in the Territory and the aspirations of the Aboriginal and all other peoples of the Territory for their economic, cultural and social advancement.

 

The long title provides an insight into the purpose of the demos as acted upon by the legislature. That is, the purpose of the Northern Territory Aboriginal Sacred Sites Act is not merely the protection of sacred sites but also to affect a balance between purposes of the relevant stakeholders.

 

The Northern Territory Aboriginal Sacred Sites Act establishes the Aboriginal Areas Protection Authority in order to implement the provisions of the Act.[51] Such provisions include the exclusive responsibility[52] of prosecuting offences of entry onto sacred sites without permission,[53] desecration of sacred sites[54] and administering a regime for allowing entry onto sacred sites for certain approved activities.[55] Even with a valid permit for entry upon sacred sites, the Aboriginal customary law of secrecy finds statutory expression in s 38 of the Act which forbids the making of a record or communicating ‘information of a secret nature according to Aboriginal tradition acquired by reason’[56] of being connected to the Act as an Authority member, an Authority employee or involvement in a procedure for the purposes of the Act.[57] Also, the views of the custodians of the relevant sacred site must be taken into account when the Authority exercises a power under the Act.[58]

 

Protection and economic development

 

The legal protection of Aboriginal land and sacred sites is not exclusive to economic development; however that protection certainly has acted as a brake upon resource exploitation in the Australian context. Before any economic utilisation of land that is subject to native title or land rights can occur, an extensive process of negotiation and agreement between developers and native title holders must be completed.[59]

 

Legal protection of Aboriginal land in Australia has occurred largely without the sort of economic development that Aboriginal and non-Aboriginal stakeholders envisaged. Well-known Indigenous leader Noel Pearson is cited as describing the situation as ‘land rich and dirt poor’.[60] The extent of legal protection of Aboriginal land is, from time to time, debated publicly.[61]

 

Linked to the legal protection of Aboriginal land under ALRA in the Northern Territory is the museumification of Aboriginal culture.[62] The risk that exists is that if the land is so important to Aboriginal culture, how can that land be affected by economic development (such as mining or tourism) without damaging the authenticity of the Aboriginal culture? This is a dilemma that is not yet resolved for Indigenous Australians living in remote communities.

 

In the Australian context, the socio-economic disparities between Indigenous and non-Indigenous peoples remain notwithstanding the integration of both groups of people into the national legal system. The legal protection of land for Indigenous peoples may have resulted in the unintended outcome of thwarting economic development for Indigenous Australians.

 



[1]        Commonwealth of Australia Gazette (14 April 1931) 643.

[2]        Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141.

[3]        Museum of Australian Democracy and National Archives of Australia, Yirrkala bark petitions 1963 (Cth), Documenting a Democracy <http://foundingdocs.gov.au/item-did-104.html> ; Agreements, Treaties and Negotiated Settlements, Yirrkala Bark Petitions (1 January 1963) ATNS Database  <http://www.atns.net.au/agreement.asp?EntityID=1783>

[4]        Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141, 198.

[5]        Ibid 245.

[6]        Ibid 267.

[7]        Gough Whitlam, It’s time for leadership, Policy speech for the Australian Labor Party, 13 November 1972, <http://parlinfo.aph.gov.au/parlInfo/download/library/partypol/1022125/upload_binary/1022125.pdf;fileType=application%2Fpdf#search=%22library/partypol/1022125%22>

[8]        Ibid, 4.

[9]        Marty Harris, The origins of Australia’s uranium export policy (2 December 2011) Parliament of Australia <http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/BN/2011-2012/UraniumPolicy#_ftnref35>

[10]      Edward Woodward, Aboriginal Land Rights Commission: second report (Australian Government Publishing Service, Canberra, April 1974) 134.

[11]      Marty Harris, The origins of Australia’s uranium export policy (2 December 2011) Parliament of Australia <http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/BN/2011-2012/UraniumPolicy#_ftnref35> At the time the Commonwealth still controlled the Northern Territory, self-government not being conferred until 1978 by the Northern Territory (Self-Government) Act 1978. But even with self-government the Commonwealth could, and still can, legislate for the Northern Territory under s 122 of the Constitution.

[12]      Commonwealth, Parliamentary Debates, House of Representatives, 4 June 1976, 2.

[13]      Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141, 245.

[14]      Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), ss 3, 11, 12.

[15]      Ibid s 77A.

[16]      Northern Territory of Australia v Arnhem Land Aboriginal Land Trust (2008) 236 CLR 24.

[17]      Northern Land Council, What we do, Northern Land Council <http://www.nlc.org.au/articles/info/what-does-the-northern-land-council-do/>

[18]      Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), s 3, definition of traditional Aboriginal owners.

[19]      Ibid.

[20]      Mabo v Queensland (No 2) (1992) 175 CLR 1, 45.

[21]      Ibid.

[22]      Ibid 48.

[23]      Mabo v Queensland (No 2) (1992) 175 CLR 1: Brennan J at 57, Deane and Gaudron JJ at 79 and 82 and Toohey J at 182-3.

[24]      Mabo v Queensland (No 2) (1992) 175 CLR 1, 58.

[25]      Ibid 45.

[26]      Stuart v Cooper (1889) 14 App. Cas. 286, cited in Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141, 242.

[27]      Mabo v Queensland (No 2) (1992) 175 CLR 1, 43, 45.

[28]      Native Title Act 1993 (Cth) s 3a.

[29]      See Mabo v Queensland (No 2) (1992) 175 CLR 1, 58 and Native Title Act 1993 (Cth) s 223(1).

[30]      Wik Peoples v Queensland (1996) 187 CLR 1, 126-127.

[31]      Ibid 2.

[32]      Ibid 127.

[33]      Western Australia v Ward (2002) 213 CLR 1, 95.

[34]      Mabo v Queensland (No 2) (1992) 175 CLR 1, 64.

[35]      Wik Peoples v Queensland (1996) 187 CLR 1.

[36]      Native Title Amendment Act 1998 (Cth).

[37]      99 FCR 316.

[38]      Ibid 483.

[39]      213 CLR 1.

[40]      Ibid 84, 274-275.

[41]      Ibid 84.

[42]      Ibid 247.

[43]      Ibid.

[44]      Ibid 248.

[45]      Ibid.

[46]      Ibid 249.

[47]      ss 33-39A.

[48]      s 3.

[49]      Aboriginal Land Rights (Northern Territory) Act 1976, s3.

[50]      Northern Territory Aboriginal Sacred Sites Act, long title.

[51]      s 5.

[52]      s 39.

[53]      s 33.

[54]      s 35.

[55]      s 34.

[56]      s 38.

[57]      s 38.

[58]      s 42.

[59]      National Native Title Tribunal, Future Acts (15 September 2014) National Native Title Tribunal http://www.nntt.gov.au/futureacts/Pages/default.aspx; Northern Land Council, Economic Development (15 September 2014) Northern Land Council < http://www.nlc.org.au/>

[60]      Ibid.

[61]      See for example Amos Aikman, Aboriginal land rights out of step? (31 July 2014) The Australian <http://www.theaustralian.com.au/news/features/aboriginal-land-rights-out-of-step/story-e6frg6z6-1227007700222>

[62]      Eric Venbrux, ‘A history of art from the Tiwi Islands: the source community in an evolving museumscape’ (2014) Australian Aboriginal Anthropology Today: Critical Perspectives from Europe http://actesbranly.revues.org/583


Asheesh A. Shawel, Age of Majority in Australian Contract Law

Introduction

In Australia, there has been significant progress in Contract law reform, including reducing the age of majority, which has been lowered progressively around Australia between 1970 -1974,[1] from 21 years to 18 years; however, there is more room for improvement.

Further, the existing mix of common law and multiple different state legislative rules in relation to minors have rendered the assessment of contractual capacity exceedingly complex.[2]

 

This paper seeks to explore:

1.             Whether the age of majority should be further lowered from 18 to 16 years of age? And,

2.             Whether Contract law in relation to minors should have more uniformity among the states and territories?

 

 

Legal principle at common law

At common law a contract made by a person less than 18 years is voidable, with following exceptions, [3] viz.

 

Contracts for necessities: by a minor is binding on both parties.  ‘Necessities’ generally means food, clothing, shelter and access to medical treatment. Necessities are determined by reference to a minor’s ‘existing life style’. In Victoria, this is given statutory force of the Goods Act 1958.[4] 

 

Need for reform: Since middle of the nineteenth century there has been a secular trend towards earlier maturity. The trend, still continuing, is that boys and girls mature one year younger, than those born 30 years earlier.[5] The same stands true today where teenagers are exposed to the internet and a wealth of knowledge at a very early age.

 

Commerce has come a long way since Nash v Inman.[6] People of all ages enter into commercial transactions which were unheard of in 1908.

 

These days, marketers target children who are significant consumers of toys, fast food, entertainment and clothes. Young people also have direct spending power from pocket money and their own earnings.[7] Businesses selling cell phones, electronics etc. to minors, if not necessities, is normally voidable, and minors may opt to disaffirm the contract.[8] In the absence of fraud, a minor is under no obligation to repay money or return property already transferred to them.[9]  If a [minor] obtains property by misrepresenting his age, he can [only] be compelled to restore it as long as it is traceable in his possession. However, if the minor spends the proceeds or parts with them, the same are not recoverable.[10]

 

Further a child can enforce a contract against the other party but not vice versa. Such rules can make service providers reluctant to contract with young people..[11]

 

One resolution to this problem can be restitutionary Approach, where an adult contracting with a minor, if repudiated, is not deprived of all recovery rights and is entitled to apply to the court for compensation from the minor based on restitutionary principles.

 

This approach helps in three ways. First, it encourages adults to provide goods and services to minors. Although, the adult loses a chance for profit, however, he still retains a chance to be restored to the original position before contracting. Secondly, it ensures that the minor does not use the defence of minority as a means of profiting at the expense of the adult. Thirdly, the proposal mitigates instances where a minor has paid money or rendered services, repudiates the contract, and is unable to recover the money or the value of the services.[12]

 

Case for a lower age of Majority: Participation of young people in the digital economy, either as entrepreneurs or consumers, is a concept foreign to the common law, whose treatment of young people (focusing on “necessities”) reflects a time long gone. For example, is an MP3 song purchased online, a ‘necessity’ under the common law? Does common law permit a youngster to market and sell a “software application” developed by them?[13]

 

It is submitted that reform in this area of law, which better recognises the role of young people in the digital economy would be beneficial to both young people as well as people doing business with them.

 

Further, under the Criminal law, the age of consent means the age of legally giving informed consent to sexual acts with another person. It varies across states and territories being 16 years in ACT, NSW, NT, Victoria and WA and 17 years in Tasmania and SA.[14]

 

Our argument is if a person is mature enough to enter into a sexual relationship at age 16, then legally, that person is old enough to enter into a commercial contract.

 

Beneficial contracts of employment: by a minor is binding provided it is beneficial (not unfair or oppressive).  A minor can, repudiate such a contract upon maturity for e.g. sporting contracts, are generally enforceable providing the contract is for the benefit of the minor.

 

However, taking sporting contracts as an example, a four-year contract between a Canadian ice hockey club and a minor stipulating that the club, in return for grooming the minor, would receive a percentage of any future income earned should the minor play professional ice hockey, was held to be unenforceable as it was not beneficial to the minor.[15]

 

Another category is sponsorship and endorsement contracts, a popular alternative to sporting contracts, operate in a similar capacity. Such contracts will only be binding on a young athlete if the terms of the contract are not overly burdensome, and the duration of the contract is not unreasonable.[16]

 

Need for reform: In today’s highly competitive sporting world, problem arises when clubs go athlete poaching. A third party may influence a minor to avoid a contract where the minor could have elected to affirm it upon majority. This was an issue in Proform Sports Management Ltd. V Proactive Sports Management Ltd. The court held that there was no liability for inducing a breach of a voidable contract by a minor.[17]

 

These are certain aspects which need to be considered in order to arrive at a fair and level playing field for both parties to contract.

 

Where contracts with minors are not within the two exceptions, [viz. for necessities and beneficial employment] they will not be binding and the minor is legally entitled to void the contract and not held liable.[18]

 

 

Inconsistency between state and territory statutes:

In recent years there has been a notable shift to a harmonised regulation, especially under the Council of Australian Governments (COAG). This has reduced the extent to which different rules apply in different jurisdictions. Nevertheless, important differences between jurisdictions [still] remain.[19] The enforceability of agreements with minors is an area of general significance lacking uniformity.[20] The effect of a contract with a minor and the consequences for the parties vary greatly among the jurisdictions.[21]

 

At present NSW is the only state that has enacted a comprehensive statute, the Minors (Property and Contracts) Act 1970.

 

Queensland’s law employs both Age of Majority Act 1974 and Law reform Act 1995, and the common law.

 

South Australia follows Age of Majority (Reduction) Act 1971 (SA) and the Minors’ Contracts (Miscellaneous Provisions) Act 1979 (SA).

 

Western Australia law comprises Age of Majority Act 1972 (WA) and the Statute of Frauds (Amendment) Act 1828 (UK) (‘Lord Tenterden’s Act’) in its original form as imperial legislation.

 

Tasmania, ACT and NT all have a combination of statutes and the common law.

In Victoria, the law needs to be gathered from the Age of Majority Act 1977 and some provisions in Goods Act 1958 (Vic) and the Supreme Court Act 1986. This does not include contracts for land purchase, provision of services or employment, still governed by common law.[22]

 

Legal developments in Australia

 

As mentioned before, NSW took concrete steps in the field of Contract reforms, especially on the subject of contracting with minors. In 1969, the Law Reform Commission of NSW published its Report on Infancy in Relation to Contracts and Property.

 

The Commission recommended:

 

‘That the age of majority be reduced from 21 to 18 years so far as concerned the matters within its terms of reference’,[23]

 

Which were

‘To review the law of infancy relating to contracts and dispositions of property and testamentary capacity and incidental matters’. [24] The Commission interpreted these terms as requiring it to consider the law… apply[ing] to those who are below whatever age of majority was adopted and concluded that this was a field in which the law ought to be codified.[25]

 

In 1970, following the publication by the Law Reform Commission of NSW in 1969 of its Report on Infancy in Relation to Contracts and Property, the Parliament of New South Wales enacted the Minors (Property and Contracts) Act 1970.[26]

 

Briefly put, the Act provides that a contract is binding on a minor if it is for his benefit, unless at the time of contracting, he lacked the understanding to participate due to his youth.[27] Otherwise the contract is non-binding, unless he affirms it after majority[28] or does not repudiate it before he is nineteen years old.[29] The Court may, affirm a contract[30] binding the minor, or approve of a particular contract,[31] or grant him capacity to enter into a particular contract, certain types of contract, or all contracts.[32] Before taking such a step, the Court must consider that to do so would be beneficial to the minor. A disposition of property to a minor is binding unless consideration is manifestly excessive [33] and a disposition by a minor is binding unless the consideration is manifestly inadequate.[34] If an independent solicitor or the Public Trustee certifies that a minor makes a disposition of property, understanding its effect and doing so “freely and voluntarily”, the consideration not being manifestly inadequate, the disposition will bind the minor.[35] A minor may appoint an agent by power of attorney or otherwise.[36] A guarantor of an obligation of a minor is bound by the guarantee to the extent to which he would be bound if the minor were not a minor.[37] A minor is liable for a tort whether or not it is connected with a contract or the cause of action for the tort is in substance a cause of action in contract.[38]

 

Minors (Property and Contracts) Act 1970 (NSW) was itself greatly influenced by the Latey Committee and its Report on the Age of Majority, published in England in 1967, concerning law relating to minors' contracts. The Committee suggested that the age of majority should be lowered to 18 years from 21 years.[39]

 

Comparison with other Common law jurisdictions[40]

 

England and Wales: The age of majority for children in England and Wales varies; there are different rules distinguishing children of different ages for different purposes.  The age typically ranges from between 16 (school no longer mandatory) to 18 (voting rights and consumption of alcohol).[41] However, Latey commission, as explained earlier, was a true step for reforms in contracts with minors in England.

 

Scotland: Persons under 18 years of age are divided into pupils and minors. Pupils are boys under 14 years and girls under 12.

 

In its 1965 report, the Scottish Law Commission recognised that the existing law being complex seemed ill-equipped to meet the needs of the young person and adult alike. The Commission observed that if an adult were aware of the rules in order to safeguard his position, he might be deterred from transacting with young people. The Commission further suggested that the law should be simplified making the protection offered by such laws more effective.[42]

 

In June 1985, the Scottish Law Commission published its Consultative Memorandum No. 65, Legal Capacity and Responsibility of Minors and Pupils. The document extends beyond the question of contractual capacity of persons under age.  

The Memorandum suggested that the age of majority should be fixed to 16 years, and the rule of incapacity should not be subject to any exceptions entitling a person under 16 to act with the consent of a parent or guardian or, except possibly in relation to the making of a will, with the consent of a court.[43]

 

Canada: In the provinces of British Columbia, Northwest Territories, Newfoundland and Nova Scotia, Nunavut and Yukon, the majority age is 19 years, and the rest of Canada it is 18 years. The law in Quebec is based on the French civil law system. In other provinces, common law rules prevail, subject to statutory changes, some similar to those affecting the law. In Alberta, a minor is liable on a contract for life insurance; in Manitoba, a minor over 16 living away from home may be liable on a contract to perform work or services unless the Director of Public Welfare declares it void on the ground of injustice.

 

Proposals for general reform of the law relating to minors' contracts have been made in Alberta and British Columbia, and the subject has also been considered by the Ontario Law Reform Commission.[44]

 

New Zealand: For all legal purposes, a person becomes major at age 20.[45] However, Brett Hudson, MP has introduced a bill in the Parliament vide Age of Majority (Attainment at 18 Years) Amendment Bill dated 17 March, 2015 to bring down the age of majority from 20 years to 18.[46]

 

Proposals for reform

 

Reduce the age of majority to contract:- The English Law Commission, in its Working Paper on Minors' Contracts, published in 1982, proposed that the age of full contractual capacity be reduced to 16. The Commission noted that its proposal raised ‘issues which go beyond detailed law reform’ and were primarily social rather than legal. They therefore made no formal recommendation concerning the proposal but stated that they would welcome readers' views.[47] The English Law Commission favoured the age of sixteen at the time at which full contractual capacity should arise because ‘society, as a practical matter, already recognises this to some extent’.

 

However, in later consultations the commission abandoned the proposal because they received mixed reception.[48] But the fact that the commission made this recommendation proved there were certain minds thinking in this direction. Maybe at the time, such an idea was quite controversial.

 

The Scottish Law Commission, in its Consultative Memorandum has also provisionally proposed that a person should have full contractual capacity on reaching age sixteen.[49]

 

In Australia, The proposal of lowering the age of contractual capacity is supported by the Women's Advisory Council vide their DRP Submission 26.[50]

 

There should be a rebuttable presumption that a child over the age of 16 years living independently is competent to initiate or defend litigation. The Attorney-General should introduce legislation to this effect applying to the Federal and High Courts and amending their rules to reflect that legislation. The Attorney-General through SCAG should encourage the States and Territories to enact similar legislation in State and Territory courts.[51]

 

Uniformity in Legislation: Australian contract law comes from a range of sources. While common law made by the courts is the same throughout Australia, variations between statute law in the states and territories mean that contract law lacks uniformity. Thus one option for reform may be to harmonise these laws.[52] Greater stress needs to be given in achieving cooperation between the Federal; state and territory governments to ensure more consistent legislation are passed.[53]

 

Uniform comprehensive statutory provisions, as exist in NSW, are desirable for efficiency and effectiveness in a national economy,[54] and should be adopted on a national basis for young people aged 16 and 17. The Attorney-General, through the Standing Committee of Attorneys-General (SCAG), should encourage the States and Territories to enact legislation to this effect.[55]

 

Back home in the Northern Territory, the government has supported a uniform age of contractual capacity vide DRP Submission 71.[56]

 

Conclusion

 

With the changing dynamics of society our youth are maturing much younger and are finding the need to enter into contracts. So why is our state and territory laws not catching up to this change?

 

The suggestion to lower the age of majority from 18 to 16 would help to keep abreast with the dynamic changes in today’s social, economic and commercial trends and of harmonisation of laws between Commonwealth, states and territories.

 

 



[1] Minors (Property and Contracts) Act 1970 (NSW) s 9; Age of Majority Act 1974 (Qld) s 5; Age of Majority (Reduction) Act 1970 (SA) s 3; Age of Majority Act 1972 (WA) s 5; Age of Majority Act 1973 (Tas) s 3; Age of Majority Act 1981 (NT) s 4; Age of Majority Act 1974 (ACT) s 5.

[2] Julie Clarke, Capacity to contract (2010, 2013) Australian Contract Law < http://www.australiancontractlaw.com/law/formation-capacity.html>.

[3] Ibid.

[4] Goods Act 1958(VIC) s7.

[5] NSW Law Commission, Infancy in relation to Contracts and Property, Report No 6 (1969) 9 [14].

[6] [1908] 2 KB 1.

[7] Australian Law reform Commission, Seen and heard: priority for children in the legal process, Report No 84 (1997) Chapter 11.1.

[8] Roger Leroy Miller, Business Law Today, the essentials (Cengage Advantage books, 10th ed. 2012) 249.

[9] Cowern v. Nield [1912] 2 K.B. 419.

[10] Leslie (R) Ltd v. Sheill [1914] 3 K. B. 607.

[11] NSW law commission, above n 11.9.

[12] Law Reform Commission of British Columbia, Report on Minors' Contracts, Report No 26 (1976) 22

< http://www.bcli.org/sites/default/files/LRC26-Minors_Contracts.pdf>.

[13] Andrew Hii, Submission No 17 to Attorney-General's Department, Submissions to the Review of Australian Contract Law, 20/07/2012, 1-2.

[14] Debbie Scott, Age of consent Laws (December 2012), Australian Institute of family studies, Australian Government <https://aifs.gov.au/cfca/publications/age-consent-laws>.

[15] Toronto Marlboros Major Junior “A” Hockey Club v Tonelli et al [1979] 23 OR (2d) 193.

[16] Macdonnells Law, Sports Law - Are contracts entered into with minors enforceable? (July 8, 2014) <http://www.macdonnells.com.au/blog/sports-law-are-contracts-entered-into-with-minors-enforceable/>

[17] [2007] 1 All ER 542

[18] Macdonnells Law, above n.

[19] Andrew Stewart, What’s wrong with Australian law of contract, (Research Paper No. 2012-15, University of Adelaide Law School, 2012) 77-78.

[20] Ibid 78.

[21] Bryan Horrigan, Dr Emmanuel Laryea, Ms Lisa Spagnolo , Submission No 35 to Attorney-General's Department , Submissions to the Review of Australian Contract Law,  20/07/2012 [1.1.4].

[22] Julie Clarke, above n.

 

[23] NSW Law Reform Commission, above n [25].

[24] Ibid 7 [1].

[25] Ibid 13 [35].

[26] The Law Reform Commission, Report on Minors' Contracts (LRC 15 – 1985) 59.

[27] Minors (Property and Contracts) Act 1970 (NSW) s 18, 19.

[28] Ibid s 30(1)

[29] Ibid s 31

[30] Ibid s 30(2)

[31] Ibid s 27

[32] Ibid s 26

[33] Ibid s 20(2)

[34] Ibid s 20(1)

[35] Ibid s 28, 29

[36] Ibid s 46 (1) (a)

[37] Ibid s 47

[38] Ibid s 48

[39] NSW Law Reform Commission, above n 8 [6].

[40] The Law Reform Commission, above n 35.

[41] Clare Feikert, Children’s Rights, August 2007, Lib. of Cong. U.S. Govt. Web. 167 https://www.law.ox.ac.uk/sites/files/oxlaw/oscola_4th_edn_hart_2012.pdf accessed 24/09/2015.

[42] Scottish Law Commission, Report on the Legal Capacity and responsibility of minors and pupils (Scot Law Com No 110, 1987) 3 [2.20]. <http://www.scotlawcom.gov.uk/files/9412/8015/1622/26-07-2010_1440_751.pdf>

[43]Scottish Law Commission, Legal Capacity and responsibility of minors and pupils, Consultative Memorandum No 65, June 1985, 109 [5.12].

[44] The Law Reform Commission, above n 41.

[45] Age of Majority Act 1970 (NZ) s 4 (1). [46] Age of Majority (Attainment at 18 Years) Amendment Bill 2015 (94-1), cl 4 (1). [47] English Law Commission's Working Paper No. 81, Minors' Contracts, Part XII (1982) [1.12], cited as a footnote 53 in The Law Reform Commission, above n 100.

[48] The Law Reform Commission, above n 101..

[49] Scottish Law Commission, Legal Capacity and responsibility of minors and pupils, Consultative Memorandum No 65, Vol.2, June 1985, 113 [5.15].

[50] Australian Law reform Commission, Seen and heard: priority for children in the legal process, Report 84 (1997) in Footnote 1178.

[51] Australian Law reform Commission, above n Appendix D, Recommendation 68.

[52] Australian Government Attorney-General’s Department, Should contract law be harmonised? Infolet 5 [1] <https://www.ag.gov.au/Consultations/Documents/ReviewofAustraliancontractlaw/Shouldcontractlawbeharmonised.pdf.>

[53] Ibid. Para 4.

[54] Bryan Horrigan, above n [1.1.5].

[55] Australian Law reform Commission, above n Appendix D, Recommendation 52.

[56] Australian Law reform Commission, above n Footnote 1178.