NEW DIRECTIONS FOR LAW IN AUSTRALIA ESSAYS IN CONTEMPORARY LAW REFORM NEW DIRECTIONS FOR LAW IN AUSTRALIA ESSAYS IN CONTEMPORARY LAW REFORM EDITED BY RON LEVY, MOLLY O’BRIEN, SIMON RICE, PAULINE RIDGE AND MARGARET THORNTON Published by ANU Press The Australian National University Acton ACT 2601, Australia Email: [email protected] This title is also available online at press.anu.edu.au National Library of Australia Cataloguing-in-Publication entry Title: New directions for law in Australia : essays in contemporary law reform / edited by Ron Levy, Molly O’Brien, Simon Rice, Pauline Ridge, Margaret Thornton. ISBN: 9781760461416 (paperback) 9781760461423 (ebook) Subjects: Law reform--Australia. Law--Australia. Essays. Other Creators/Contributors: Levy, Ron, editor. O’Brien, Molly Townes, editor. Rice, Simon, editor. Ridge, Pauline, editor. Thornton, Margaret (Margaret Rose), editor. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical, photocopying or otherwise, without the prior permission of the publisher. Cover design and layout by ANU Press. Cover photograph by Kate Ogg. This edition © 2017 ANU Press Contents Foreword . ix The Hon Michael Kirby AC CMG Introduction . 1 Ron Levy, Molly O’Brien, Simon Rice, Pauline Ridge and Margaret Thornton Keynote: Reforming Law – The Role of Theory . 11 Margaret Davies Part I. Commercial and Corporate Law 1 . The Privatisation of Australian Corporate Law . 27 Ross Grantham 2 . On the Road to Improved Social and Economic Welfare: The Contribution to Australian Competition and Consumer Law and Policy Law Reform . 37 Russell Miller AM 3 . Tax, Inequality and Challenges for the Future . 49 John Passant 4 . Brand New ‘Sharing’ or Plain Old ‘Sweating’? A Proposal for Regulating the New ‘Gig Economy’ . 59 Joellen Riley 5 . Good Call: Extending Liability for Employment Contraventions Beyond the Direct Employer . 71 Tess Hardy 6 . The Australian House Party Has Been Glorious – But the Hangover May Be Severe: Reforms to Mitigate Some of the Risks . 83 Gill North 7 . Back to Basics: Reforming Australia’s Private Sector Whistleblowing Laws . 93 Kath Hall and Heather Cork 8 . Lawyers as Whistleblowers: The Need for a Gatekeeper of Justice Whistleblowing Obligation/Exception . 103 Suzanne Le Mire and Christine Parker Part II. Criminal Law and Evidence 9 . Criminal Justice Law Reform Challenges for the Future: It’s Time to Curb Australia’s Prison Addiction . 119 Lorana Bartels 10 . Is Criminal Law Reform a Lost Cause? . 133 Simon Bronitt 11 . Rethinking Rape Law Reform: Challenges and Possibilities . 143 Wendy Larcombe 12 . The Fraught Dichotomy between Context and Tendency Evidence in Sexual Assault Cases – Suggestions for Reform . 153 John Anderson 13 . Improving the Effectiveness of Corporate Criminal Liability: Old Challenges in a Transnational World . 163 Jonathan Clough 14 . Stereotypes in the Courtroom . 173 Blake M McKimmie 15 . The Justice Motive: Psychological Research on Perceptions of Justice in Criminal Law . 181 Diane Sivasubramaniam 16 . How Interpretation of Indistinct Covert Recordings Can Lead to Wrongful Conviction: A Case Study and Recommendations for Reform . 191 Helen Fraser 17 . Australia’s Lower-level Criminal Courts: Tackling 21st Century Problems in a 19th Century Paradigm? . 201 Anne Wallace Part III. Environmental Law 18 . What is the Mainstream? The Laws of First Nations Peoples . 213 Irene Watson 19 . Overturning Aqua Nullius: Pathways to National Law Reform . 221 Virginia Marshall 20 . A Governance Framework for Indigenous Ecological Knowledge Protection and Use . 231 Natalie P Stoianoff 21 . Reforming Environmental Law for Responsiveness to Change . 243 Jan McDonald 22 . Future Water: Improving Planning, Markets, Enforcement and Learning . 253 Cameron Holley 23 . Effective Law for Rural Environmental Governance: Meta-Governance Reform and Farm Stewardship . 263 Paul Martin, Amanda Kennedy and Jacqueline Williams Part IV. Private Law 24 . Pitfalls of Statutory Reform in Private Law: Recipient Liability for Breach of Trust . 275 Darryn Jensen 25 . Recent Reforms to Australian Charity Law . 283 Matthew Harding 26 . Consumer Protection, Recreational Activities and Personal Injury Compensation: Inconsistency in Need of Reform . 291 Joachim Dietrich 27 . Statutory Interpretation and the Critical Role of Soft Law Guidelines in Developing a Coherent Law of Remedies in Australia . 301 Elise Bant and Jeannie Paterson 28 . Meeting the Potential of Alternative Remedies in Australian Defamation Law . 311 Robyn Carroll and Catherine Graville 29 . Designing Reparation: Lessons from Private Law . 321 Simone Degeling and Kit Barker 30 . Apologies, Liability and Civil Society: Where to from Here? . 329 Prue Vines 31 . Renovating the Concept of Consent in Contract and Property Law . 337 Robyn Honey 32 . Nudging Charities to Balance the Needs of the Present against Those of the Future . .. 347 Ian Murray Part V. Public Law 33 . Voluntary Voting for Referendums in Australia: Old Wine, New Bottle . 359 Graeme Orr 34 . Reforming Constitutional Reform . 369 Scott Stephenson 35 . Does Australia Need a Popular Constitutional Culture? . 377 Lael K Weis 36 . Constitutional Dimensions of Law Reform . 387 Gabrielle Appleby and Anna Olijnyk 37 . The Parliamentary Joint Committee on Intelligence and Security: A Point of Increasing Influence in Australian Counter-Terrorism Law Reform? . 397 Dominique Dalla-Pozza 38 . Rights Dialogue under the Victorian Charter: The Potential and the Pitfalls . 407 Julie Debeljak 39 . Court Records as Archives: The Need for Law Reform to Ensure Access . 419 Andrew Henderson and Kim Rubenstein 40 . A Positive Freedom of Public Speech? Australian Media Law Reform and Freedom of Political Communication . 429 Andrew T Kenyon 41 . The Need for Reform of Australia’s Birth Registration Systems . 439 Melissa Castan and Paula Gerber 42 . Simplifying Government Secrecy? . 449 Daniel Stewart Part VI. Legal Practice and Legal Education 43 . Australian Legal Practice: Ethical Climate and Ethical Climate Change . 461 Vivien Holmes, Stephen Tang, Tony Foley and Margie Rowe 44 . Strengthening Australian Legal Ethics and Professionalism . 473 Adrian Evans 45 . Since Lawyers Work in Teams, We Must Focus on Team Ethics . 483 Justine Rogers 46 . The Legal Roots of a Sustainable and Resilient Economy: New Kinds of Legal Entities, New Kinds of Lawyers? . 495 Bronwen Morgan, Joanne McNeill and Isobel Blomfield 47 . Wearing Two Hats: Lawyers Acting as Mediators . 505 Mary Anne Noone 48 . Enabling Marginalised Voices to Be Heard: The Challenge to Law Reform Bodies . 517 Liz Curran 49 . The End of Ramism: And the Shape of Things To Come . 529 Craig Collins 50 . Shared Space and the Regulation of Legal Education . 539 Paul Maharg 51 . Dreaming of Diversity in Legal Education . .. 549 Margaret Thornton Bibliography . 559 Foreword The Hon Michael Kirby AC CMG1 Academic lawyers in Australia have long played a vital role in the national project of law reform. They thought about it; they wrote about it; they worried about its haphazard ways; and they taught their students, and others who would listen, about the need for a more systematic and effective approach to the challenge. As I discovered, soon after my appointment as inaugural Chairman (as the office was then styled) of the Australian Law Reform Commission (ALRC), many members of the judiciary and practising branches of the legal profession were hostile to, or apathetic about, law reform.2 It was substantially left to academic scholars and civil society organisations and individual politicians to stimulate the demand for reform and to propose the directions that it should take. In part, this impasse came about because judges and practitioners were distracted by the daily tasks of resolving, according to the law, the large and often mundane problems presented for the application of the existing law. Although that task frequently revealed imperfections, uncertainties, antiquities and inconsistencies in the law, there was a great deal of complacency. Where injustice was revealed, this was ascribed to the inevitable deficiencies of law since ancient times, against which victims might protest but would rarely prevail. 1 Chairman of the Australian Law Reform Commission (1975–1984); President of the New South Wales Court of Appeal (1984–1996); Justice of the High Court of Australia (1996–2009). 2 See, for example, P A Jacobs, ‘A Plea for Law Reform’ (1940) 13 Australian Law Journal 398. ix NEW DIRECTIONS FOR Law IN AUSTRALIA Whereas many judges and practitioners retained this attitude well into the life of the ALRC, academics were much more ready to challenge the law and to urge changes that would bring it into line with contemporary social attitudes, perceptions of justice, technology and needs for rationalisation and simplification. The ALRC quickly became a vehicle by which Australia’s academic lawyers were brought into a more active contact with the formal law reform process in Australia. They were appointed commissioners (full- time and part-time), consultants and staff members of the ALRC. They were consulted, listened to, engaged with and involved in the development of the program of law reform and with its fulfilment. Many of them found the opportunity to serve for a short time stimulating to their careers and their interests in legal doctrine and useful to their professional tasks of teaching, analysing and writing about the law.