Editors Michael Potts & Wendy Pei Pandora’s Box © 2015 ISSN: 1835-8624 Published by: The Justice and the Law Society T.C. Beirne School of Law The University of Queensland Printed by: St Lucia QLD 4072 Worldwide Printing www.jatl.org Fortitude Valley SPONSORS This edition of Pandora’s Box would not have been possible without the generous support of the Queensland Law Society and the fundraising efforts of the 2015 JATL Executive. Special thanks must go to Erin Bray and Bianca Jacobi for their patience and kindness. TABLE OF CONTENTS Foreword v Professor Simon Bronitt A Note from the Editors viii About Pandora’s Box ix About the Contributors x An Interview with Professor Heather Douglas 1 The Jury Box and the Urn: Containing Our Expectations 9 Professor Jane Goodman-Delahunty Criminal Justice Research and How I Realised I Know Nothing 17 Associate Professor Tamara Walsh Enforceable Rights for Victims of Crime: Shifting the State/Offender 25 Paradigm in Adversarial Systems of Criminal Law and Justice Dr Tyrone Kirchengast Addressing Indigenous Over-Representation in the Australian Criminal 37 Justice System: Some Thoughts about the Role of Legal Institutions as Stewards of a Complex System Rebecca Wallis and April Chrzanowski An Interview with Soraya Ryan QC 49 Lord Bingham’s Rule of Law and Australia’s Anti-Terror Legislation 59 Greg Barns Fighting to the Death: Thoughts for Anti-Death Penalty Activists to 65 make Further Progress towards the Goal of an End to Judicial and Extra-Judicial Executions Stephen Keim SC and Bridget Armstrong For Whom the Bell Tolls: Reflections on the International Criminal Court 79 and the Death Penalty Melinda Taylor A Critical Examination of the Defence of Dwelling in Queensland 93 Simon Lamb Book Review: Michael P. Sharf, Michael Newton and Milena Sterio (eds.), 105 Prosecuting Maritime Piracy: Domestic Solutions to International Crimes Samuel Walpole ‘Criminal law should attract the best lawyers in the country. No other branch of the law is so important. It is where our commitment to fair trial and the rule of law are tested every day, in courtrooms throughout the nation. It is where fear of wrongdoers intersects with respect for basic rights.’ -- Michael Kirby, Turbulent Years of Change in Australia’s Criminal Laws, speech delivered on 22 February 2001 at the Australia and New Zealand Society of Criminology Conference, University of Melbourne. FOREWORD Professor Simon Bronitt* The quote from Justice Michael Kirby, selected by the editors to introduce this issue of Pandora’s Box, reminds those involved in the academic study and practice of criminal law of its fundamental importance. I am well aware of that quote, as his speech was delivered at the book launch of the first edition of Bronitt & McSherry, Principles of Criminal Law (Lawbook Co., 2001). Our book launch provided Justice Kirby the opportunity to reflect upon the many changes he had witnessed since he first studied criminal law in Sydney law school in the early 1960s. At that time, criminal law in Australia was not widely considered to be a serious academic field, with only a handful of scholars and practitioners teaching the subject, reliant upon ‘imported’ English leading texts, cases and ‘controversies’. The emergence of a distinctive Australian criminal law, Kirby observed, came only in the 1970s, driven by a steady increase in criminal appeals granted by the High Court, providing the necessary ‘raw materials’ to support a local journal (Criminal Law Journal) and a specialist law report series (Australian Criminal Reports). The subsequent decades (1980s- 1990s) witnessed a flourishing of critical and socio-legal scholarship embracing a broader range of disciplinary and normative perspectives on criminal law. Gender, sexuality, race and human rights, in addition to moral philosophy, comparative law and legal history, provided fresh perspectives on the criminal law curriculum, supplements which were not always welcomed by more traditional members of the academy, profession or judiciary. In launching Bronitt & McSherry and this (ongoing) academic partnership, Justice Kirby commended the authors for an ambitious interdisciplinary manifesto, but also offered a polite rebuke that an otherwise ‘excellent’ book had failed to include any discussion of some of the most serious offences, namely treason and sedition. Justice Kirby’s criticism proved to be highly prescient in light of the 9/11 attacks 6 months later. Over the next fifteen years, the ‘War on Terror’, more than any other factor locally and globally, would leave indelible marks on criminal justice. As Ashworth and Zedner observed, the post-9/11 era has witnessed an amplification of ‘preventive justice’, which has come to increasingly displace the traditional ‘reactive’ system of criminal law and punishment.1 The shift towards preventive justice has spread beyond terrorism law to new measures to control dangerous drugs, sexual predators and organised criminal gangs. The shift from post-crime to * Deputy Head of School and Deputy Dean (Research), TC Beirne School of Law, The University of Queensland. 1 Andrew Ashworth and Lucia Zedner, Preventive Justice (Oxford University Press, 2014). pre-crime societies prioritises the routine surveillance and risk management of dangerous persons and other ‘suspect’ groups. The normalisation of ‘exceptional’ hybrid laws (melding civil and criminal law) stands as an enduring hallmark of the post 9/11 era.2 This special issue parallels this evolution of criminal law scholarship. Gender and race remain significant themes (see Douglas; Wallis & Chrzanowski), though these are supplemented with broader perspectives on ‘difference’ including psychological vulnerability (see Walsh; Ryan; Goodman-Delahunty). Cherished ideas about adversarial justice are also contested (see Kirchengast), reimagined to accommodate the needs of victims, other community members and the broader goals of restorative justice. Local and parochial paradigms of criminal law, in which uncivil ‘law and order’ politics spawn self-help defences to combat home invasion (see Lamb), contrast with the global demands for justice before the international criminal court (see Taylor). Legitimacy in criminal law is never far from our agenda, whether framed in terms of how far the War on Terror has undermined the rule of law (see Barns), or how the continued use of the death penalty in many countries undermines both human rights and the system of global criminal justice cooperation (see Keim and Armstrong). Reflecting on Justice Kirby’s speech, the hope then expressed was that criminal law could move beyond narrow philosophical debates about the ‘true’ principles of mens rea that had dominated our own legal education to build a richer understanding of criminal law based upon history, philosophy, psychology and criminology. This was not just an ‘academic fancy’ of interdisciplinarity for its own sake, but had the purpose to create a just and humane system of criminalisation, law enforcement, trial and punishment. This special issue is testament to Justice Kirby’s vision for criminal law and its scholarship, and how far we have progressed beyond those early ‘turbulent years’. 2 Simon Bronitt and Susan Donkin, ‘Australian responses to 9/11: New world legal hybrids?’ in Aniceto Masferrer (ed.), Post 9/11 and the State of Permanent Legal Emergency Security and Human Rights in Countering Terrorism (Springer, 2012) 223, 240. A NOTE FROM THE EDITORS The criminal law is both the law’s grandest construct and, in more ways than one, its darkest corner. For the average citizen, and for lawyers in the halcyon days before they enter the legal world, crime is by far the most visible branch of our legal system. Every day, people from all walks of life make contact with the criminal justice system, especially those who are more disadvantaged. From shocking murders to the most trivial of fines, the criminal law is ever present. Yet it commands far less interest and awe from within the profession. For much of the 20th century, academia was sparse with respect to crime. Out in the field it is, mostly for practical reasons, a comparatively small practice area, and Legal Aid matters form the bulk of matters. This is to say nothing of the psychological and moral hardships that arise out of the real cases. There is indeed an ever so slight hesitance towards the criminal law, with woeful tales of lawyers getting murderers and rapists ‘off’, the strict adherence to rules of evidence and procedure, the persistent fear of never wanting to know whether your client is actually guilty or not, and the constant defending of a career path from the pointed questions asked by peers; peers who echo sentiments, often promulgated by the media, which demonise criminals and defence counsel. This does not culminate in a welcome invitation. Whether in academia or practice, it is understandable how criminal law can be the road less travelled. But we underestimate the criminal law at our peril. Some of the Common Law’s most treasured values – fair trial, natural justice, the presumption of innocence – are at home in the criminal law. Faith in the legal system itself among the citizenry is often shaped most strongly by events in this arena. Criminalisation is used, and has been for centuries, as a tool for behavioural guidance and modification, and more and more it is looked to by governments, often as a ‘quick fix’ to alleviate new or perennial problems. Conversely, the criminal law has also been a tool for the rectification of deep-seated inequality. Indeed, engaging with criminal justice issues is arguably the logical end of one’s profound convictions for open access to justice, the rule of law, and a system of integrity. Little else is so fundamental to the health of a society. It is with these imperatives in mind that JATL presents Pandora’s Box 2015: Crime, Justice and the People. Underneath the surface of the direct application of a process lies a plethora of issues to explore.