The High Court has recently overturned the right to refuse to give evidence against one’s spouse at common law in Australian Crime Commission v Stoddart [2011] HCA 47. It’s a fascinating decision, as it represents a further very large crack in the crumbling notion that husband and wife are one person.
As I’ve mentioned here, the common law had a doctrine known as ‘coverture marriage’. Blackstone explained as follows in his Commentaries on the Laws of England:
By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection, and cover, she performs every thing; and is therefore called in our law-French a feme-covert; is said to be covert-baron, or under the protection and influence of her husband, her baron, or lord; and her condition during her marriage is called her coverture. Upon this principle, of a union of person in husband and wife, depend almost all the legal rights, duties, and disabilities, that either of them acquire by the marriage. I speak not at present of the rights of property, but of such as are merely personal. For this reason, a man cannot grant any thing to his wife, or enter into covenant with her: for the grant would be to suppose her separate existence; and to covenant with her, would be only to covenant with himself: and therefore it is also generally true, that all compacts made between husband and wife, when single, are voided by the intermarriage.
An adult unmarried woman was considered to have the legal status of ‘feme sole‘, while a married woman had the status of ‘feme covert‘. While a feme sole had the right to own property and make contracts in her own name, a feme covert was not recognized as having legal rights and obligations distinct from those of her husband. Through marriage, the woman’s rights and obligations became those of her husband. It has been argued that Blackstone’s interpretation of coverture was far more conservative than the practice that actually occurred. In any case, the passage of the Married Women Property Act in 1882 in the UK abolished the notion that the woman’s property automatically became her husband’s upon marriage.
The spousal right to remain silent is part and parcel of the same notion: that husband and wife are one person, and to force a spouse to give evidence against her husband is effectively to force her to give evidence against herself. It is clear, incidentally, that there is a privilege against self-incrimination in the common law and in statute. Coke CJ said in his First Institute in 1628 that a wife “cannot be produced either against or for her husband” and said that husband and wife were regarded by the law as one flesh, and that to allow the wife to give evidence might be a “cause of implacable discord and dissention between the husband and the wife, and a meane of great inconvenience”.
The facts and background
Stoddart arose in the context of a tax fraud investigation. Mr Stoddart was a tax accountant who carried on practice in Queensland. Mrs Stoddart was his wife of more than 20 years who, before her husband ceased practice, provided him with some part-time secretarial assistance. The Australian Crime Commission commenced a special investigation of Mr Stoddart and others alleging taxation fraud. On 26 March 2009, the ACC’s Examiner issued a Summons which required Mrs Stoddart to attend at the premises of the ACC in Brisbane to give evidence of “federally relevant criminal activity” involving certain named corporations and persons, including Mr Stoddart. Mrs Stoddart attended the ACC and was sworn in as a witness. After swearing in, the Examiner explained to Mrs Stoddart that she had the privilege against self-incrimination (as provided by s 30(4) and (5) of the Australian Crime Comission Act 2002 (Cth)). She indicated that she wished to claim the privilege and the Examiner extended what he called “a blanket immunity” to her. But over and above the privilege against self-incrimination, she declined to give evidence against her husband on the basis of the spousal right to remain silent, arguing that the ACC Act had not abrogated the common law doctrine.
In May 2009 Mrs Stoddart commenced proceedings in the Federal Court seeking to restrain the Examiner from asking her questions relating to her husband and seeking a declaration that “the common law privilege or immunity against spousal incrimination has not been abrogated by [the Act]“. The application was dismissed at first instance, but the Full Court of the Federal Court upheld Mrs Stoddart’s appeal, and granted the declaration sought by Mrs Stoddart. The ACC then appealed to the High Court.
The majority:
It is interesting to note that the majority split among gender divisions: French CJ and Gummow J on the one hand and Crennan, Kiefel and Bell JJ on the other. How nice to see an all-female majority decision!
Essentially, the existence of a common law privilege against spousal incrimination had been previously accepted by the Queensland Court of Appeal in Callanan v B [2004] QCA 478 and the Full Court of the Federal Court in S v Boulton [2006] FCAFC 99 followed Callanan. However, the majority said that these decisions were incorrect.
Mrs Stoddart argued before the High Court that the common law long ago created a right of a fundamental nature which entitled a spouse to refuse to answer questions which might incriminate the other spouse. As a result, the principle of legality would apply to it and require clear and definite statutory language to negate it. She said that it followed from the principle of legality that there is a presumption that it is highly improbable that Parliament would act to depart from fundamental rights or principles without expressing itself clearly. The majority found that any rule with regard to spousal incrimination was not a privilege, was not clearly established in the common law, and was not the kind of rule which required a clear intention to abrogate it.
French CJ and Gummow J:
French CJ and Gummow J noted that there is a distinction between the concept of competence and compellability of witnesses on the one hand and that of testimonial privilege on the other. A person is competent if that person may lawfully be called to give evidence. However, merely because they may be called does not mean that they can be compelled to give evidence. A person is compellable if that person can lawfully be obliged to give evidence. The general rule is that all competent witnesses are compellable, but this is not entirely the case. This should be distinguished from testimonial privilege. Once the witness has entered the witness-box and has been sworn in, the witness must answer all questions put unless excused or unless the refusal to answer is based upon a privilege conferred by law. Competence and compellability attach to the witness herself, and not to the evidence the witness may give.
The majority concluded that the common law had never really recognised a privilege against spousal incrimination, and that insofar as there had been such a privilege it was purely statutory. The cases which purportedly upheld a privilege against spousal incrimination used the term “compellable” to indicate that the witness might be obliged to give evidence in the ordinary sense of the term, not that, in response to particular questions, a privilege might be claimed by the witness. Thus they did not establish the existence of any privilege at common law.
Being a scholar who is interested in breach of confidence and privacy law, I was naturally interested to see the following aside at [22] from French CJ and Gummow J:
It should, however, be added that the equitable principles respecting the protection of confidences may apply, independently of the rules of evidence, to matrimonial confidence, but that equity will not protect confidential communications involving crime or fraud.
This naturally made me think of that sensational case, Duchess of Argyll v Duke of Argyll, a case involving martial confidences. The Duke of Argyll was restrained from publishing purportedly scurrilous material about the Duchess’s sexual procilivities after the breakdown of their marriage.
Crennan, Kiefel and Bell JJ:
Crennan, Kiefel and Bell JJ in the other majority judgment noted at [178] that:
Questions about the competence and compellability of spouses to give evidence against one another have had a long history. Statutes of the Commonwealth, and of the States and Territories, now deal with these questions for the purposes of criminal proceedings, although the provisions are not uniform in their effect. The Evidence Act 1995 (Cth) makes provision for the compellability of spouses and others in certain criminal proceedings but the Act is not expressed to apply to an examination under the ACC Act. Therefore, it is necessary to turn to the common law and the provisions of the ACC Act on these questions.
They say that there is no question that English common law would regard Mrs Stoddart as competent to give evidence against her husband. Although there is a rule in relation to spousal competency, it does not apply to Mrs Stoddart’s situation. There may be a question in English common law as to whether Mrs Stoddart is compellable, but if so, it is merely a rule of evidence, not a rule of law, and is thus more easily negated.
Like French CJ and Gummow J, the distinction between competency, compellability and privilege is essential to Crennan, Kiefel and Bell JJ’s decision. At [186] they say:
A true privilege, such as legal professional privilege, operates as a substantive rule of law and not as a rule of evidence. It enables a person, who is otherwise competent and compellable as a witness, to refuse to answer a question directed to a particular subject, a question which is otherwise relevant to the matters in issue. A privilege has been described as relating to an area of interrogation. A privilege permits a witness to make a choice as to whether he or she will claim it, or provide the answer or produce the document.
They conclude that the matter of giving evidence for or against a spouse has long been treated as one of competence effecting a disqualification. Ultimately, they find that Mrs Stoddart was a competent witness who was compelled by the provisions of the ACC Act to give evidence, and that no privilege of the kind claimed could be raised in answer to that obligation.
Heydon J (in dissent):
Heydon J considered that a competent and compellable witness in proceedings before a court had a common law right to refuse answer questions which might have a tendency to expose his or her spouse to conviction for a crime. Further he considered that a person appearing before an institution which is not a court bound by the rules of evidence have a right to invoke spousal privilege. Finally, he considered that the ACC Act did not abolish that right.
His Honour embarked upon an extensive historical inquiry into case law and textbooks, and came to the opposite conclusion to the majority, concluding that there was an operative common law privilege in existence.
Ramifications?
In the immediate commentary on the decision on the ABC there are two strands. First, there is the disappointed reaction of Terry Gorman from the Council of Civil Liberties who says:
…the ruling overturns hundreds of years of legal practice aimed at upholding the stability of the institution of marriage.
“This judgement is not just restricted to the Australian Crime Commission, it’s not restricted to similar state-based crime commissions, it will reverberate around the ordinary criminal law from the lowest courts in the land, magistrates and local courts, through to supreme courts in all state and territories.
“It is a major, major decision.”
He says lawyers will now be advising their clients to keep sensitive matters from their spouses.
“Frankly, advice that I or any other criminal lawyer would give to spouses now is that if you’re at the slightest risk of being prosecuted, say absolutely nothing to your wife or your husband at all about what might be the subject of a police or crime commission investigation because you’ll be hauled into the dock and made give evidence against your spouse,” he said.
On the other hand, Professor Frank Bates from UNSW said that the decision was entirely predictable and that the High Court was right in its decision:
He says there is no uniformity on statutes regarding privilege across jurisdictions in Australia and he thinks they are being weakened.
“It’s the judges that are weakening it. I think the general principle from which everybody regards as a springboard, shall we say, is that everybody is both a competent and compellable witness against everybody else,” he said.”For example, it has been suggested that the priest-penitent privilege should be abolished.”
Professor Bates says though the High Court decision will be “extraordinarily” influential across Australia, spousal privilege could still be granted if the circumstances were sufficiently different; for instance, he says a ruling may be different “if we were dealing with a situation, for example, where an assault was committed on the wife”.
He says privileges of confidentiality can’t simply be abolished across the board, noting that under least threat is legal professional privilege which exists between a lawyer and their client.
Instead, Professor Bates says each privileged relationship has to be judged individually.
“The argument in favour of [spousal privilege] is that marital communications are such an important part of marriage that they should be protected,” he said.
“It may be that the policy view now is that there are some things that are more important than the protection of marital communications – serious criminal offences.”
Interesting times. Of course, as I noted above, marital confidentiality will still generally be protected by breach of confidence laws, but whether or not a spouse can be compelled to give evidence against the other spouse will now depend upon the circumstances and the nature of the offence allegedly committed by the other spouse.
68 Comments
If the privilege no longer exists, it raises the question of whether the prosecution has a duty to call the spouse in some cases.
Well indeed, Nick. It will be interesting to see if there is a change of practice; I suspect so.
Interesting that it’s a consequence of the emancipation of women. Despite supporting the legal distinction between husband and wife as legal people I’m not happy at yet another capacity that the State has retained to interfere in private relationships. If your spouse can dob you in it gives you an(other) incentive to lie to them.
Are we free or disconnected? Is there a difference?
So, if a bigamous Anglican priest was told by his second spouse that she (in her accountantcy business) had conspired with his first spouse to avoid tax (by claiming him twice), and he was also a qualified doctor employed as a journalist for the Age, and remarked upon the causes of her ensuing depression in his popular Health and Wellbeing column…
Would the ACCC actually get a win?
KVD, you joke, but interestingly the old cases on which the privilege was based involved poor laws and allegedly bigamous marriages – basically in two of the cases, a pauper woman was being moved from one parish to another, she claimed to be married to a particular man in a particular parish – this man’s first wife was produced in the witness box to show that he was bigamous. The question was whether the first (true) wife could give evidence, and it was concluded that she could where the evidence did not directly “criminate”, but tended to incriminate.
The tangled webs we human beings weave!
Yes of course I joke LE, but I’m wondering (as a layman) where (or more importantly why not?) this decision may lead in regard to various other privileges claimed by other relationships?
Are doctor-patient, priest-confessor, journalist-source, lawyer-client relationships honoured by nothing more than similar “customs” – and hence subject to the same revision? (Serious, polite layman enquiry)
“Spousal right to silence” – interesting concept.
.. if the ‘ law’ allows homosexual couples – does the the ‘law’ allow the same ‘right to silence’ ?
.. and yes .. is “information” allowable in a court of law?
KVD, well may you ask. The strongest privilege is lawyer-client communications – the HCA indicated as such and they are very unlikely to be undermined. Doctor-patient is subject to a fiduciary obligation of confidence.
Basically the wife-husband privilege was never very strongly founded anyway – it was always somewhat uncertain in its scope and operation, which is in stark contrast to lawyer-client and doctor-patient.
However, the priest-confessor privilege is under increasing strain, I understand. I suppose sex scandals and the like don’t help.
Davo, interesting question re same-sex couples – would the same privilege have applied? I suspect not, because the recognition of same-sex relationships is not a creature of the common law.
Davo @ 8
Depends what you mean by “the law” allowing homosexual couples.
And Le@10
It had previously been held that the spousal privilege at common law only applied to de jure spouses, so it didn’t apply to de factos – gay or straight. LE: no need to track the case down now that it has all been washed away. I only know about this because of researches for the sake of my own very unpleasant appearance for an inquisitorial body which I think I am not even allowed to say I appeared before but which I will add in passing showed every sign of relishing its star-chamber-like powers.
So now that’s one more advantage which won’t be available to gay people even if they are allowed to be married. Coming too late to the party, again…
kvd @ 4, 6: no common law privilege as far as I am aware for priests, doctors or journalists.
Marcellous – you’re right – it was in fact S v Boulton mentioned above which held that the privilege did not extend to de factos (gay or straight).
How unpleasant to have to appear before one of those inquisitorial bodies. They scare me a little, to be honest.
I can’t remember where I read about privileges for priests being challenged. Priest-pentient privilege doesn’t exist in the UK as a common law doctrine, apparently, but like the spousal privilege it has had a kind of shadowy existence in various jurisdictions including the US.
Now I think on it, perhaps it was on one of the Irish law blogs I visit from time to time – I note from Wikipedia that Ireland has a common law privilege for priest and penitent, but it has been severely strained by the various scandals faced by the Catholic church there in relation to sexual abuse.
The only privilege I can imagine for priests, doctors and journos in Australia would be public interest immunity, I guess. And the doctrines of breach of confidence and fiduciary obligations might also cover confidential communications in those relationships (but those doctrines do not relate to an evidentiary privilege).
Thanks LE and marcellous. I must say I have a fair bit of sympathy for the various relationships noted. But probably that is the result of watching too many movies using this as a plot device.
KVD, apparently Frances Trollope’s murder mystery novel Hargrave from 1843 uses spousal privilege as a plot device. I must go read it now. Anyhoo, the point is – these things have been used as plot devices for a long long time.
The confessional situation is fundamentally wrong. A criminal act should produce a conscience or ethical pressure on the perpetrator to come forward to civil authorities and vicarious forgiveness is only likely to allow a reoffence. Christopher Hitchens summed up the problem of the Catholic Church and its priests and bishops when he wrote;
I find something repulsive in the idea of vicarious redemption.
I would not throw my numberless sins on to a scapegoat and expect them to pass from me; we rightly sneer at the barbaric societies that practice this unpleasantness in its literal form. There is no value in the vicarious gesture anyway.
As Thomas Paine pointed out, you may if you wish take on a debt, or even offer to take his place in prison. That would be self-sacrificing. But you may not a assume his actual crimes as if they were your own; for one thing you didn’t commit them and might have died rather than do so; for another this impossible action would rob him of individual responsibility.
The whole apparatus of absolution and forgiveness strikes me as positively immoral, while the concept of revealed truth degrades the whole concept of free intelligence by purportedly relieving us of the hard task of working out ethical principles for ourselves.
Christopher Hitchens – Letters to a Young Contrarian –Ch. 9 P58
I am inclined to side with Heydon J on this one. I would like to see the privilege extended and the compellability constrained. I also want it extended to those in a marriage like relationship such as same sex and de facto (waiting impatiently here for same sex marriage to be legislated in the positive so it won’t need to be a special category).
I don’t like the original basis in the realm of property and wives not holding same. Yet I see marriage or similar relationships as one including implicit trust of the partner. To make them compellable and removing privilege would undermine the special partnership of the couple.
With the current debates on same sex marriage in Australia I find this decision to be interesting.
I am almost amused in that I hear all about the sanctity of marriage and why it’s so sacred it can’t be offered to non-heterosexual couples. I am starting to wonder with the reality of the majority of marriages and their lack of seriousness if this isn’t another chip in the so called institution.
“Marriage is an Institution, I am not ready to be institutionalized yet”: Mae West
Second recent case in which Heydon J became the defender of individual rights, essentially, due to his strong adherence to and respect for the core rules around evidence (if you wrote the book I guess you’d want to prop it up) and criminal process.
My (not so good anymore) recollection of lectures long ago is that the original reason for the rule was to discourage perjury. It was assumed that a wife would support her husband’s evidence and she should be relieved of the obligation to lie.
But I can’t find any source for this. I guess it’s not mentioned in the judgment?
If that was the origin, its basis probably no longer applies.
D@8, M@11 The law does not “allow” same-sex couples: it either recognises them to some degree or it does not. They exist whatever the law does.
“The only privilege I can imagine for priests, doctors and journos in Australia would be public interest immunity, I guess.”
And there I think they would be stretching it. And further, PII is not really a privilege as such, the term is used for ease but in fact it is more of a duty falling on various parties that can be outbalanced by the public interest in the smooth administration of justice (ie disclosure…). Digressing (but I’m kinda into PII…)
Oh and I think I’m with Ripples. And with Heydon J in both recent dissents.
L @ 19:
You are so right, up to a point.
Depends on the sense of “allow,” the context of the sentence and the country you are in.
PS: @ Armagny
I’m worried because I think I’m with Heydon J on this too. It’s hard to keep a straight face though when Heydon’s dissent gets onto Lord Diplock and the “fusion fallacy” as (by implication or association) the source of all evil.
Then, and this really is a nightmare, I start wondering if I’m with Dr Spry and Heydon on Spry v Kenyon – which probably is not the other dissent you are thinking of.
.”
Nay, mine was the recent case on reinstating penalties imposed by the former, Chaper III offending military courts. It is often hard to keep a straight face in his J-ments and I think he deliberately writes them that way.
I must read the full dissent in this latest. I was at a gathering dominated by nerdy barristers last night and it was a constant talking point. Which can be a problem if, like me, you’ve just glanced at it before forming an opinion…
The judgment was also under discussion at a colloquium I attended yesterday. People liked his summary of the textbook writers, on the whole. The bit I liked in Heydon J’s judgment was the commentary on Bayley J at [86] – [89]. I like those bits of legal colour.
If we were going to have the privilege, I think it should apply equally to all couples (married and defacto – whether straight or same sex). But it seems we’re not.
I haven’t really come to a strongly concluded view yet. I’m kind of worried by this notion that the woman becomes part of the man which seems to underpin the initial doctrine, but as long as the underpinning notion of marriage is revised to a modern non-gendered “what’s mine is yours what’s yours is mine”, then I’d be okay with that, as this squares with our family law regime.
Armagny @ 24;
I am now intrigued by the idea of a gathering of Nerdy Barristers. I had the most amusing visual of a sort of disturbing hybrid of Sheldon Cooper of the Big Bang theory and Rumpole of the Bailey.
I do hope I am wrong. Being myself a Nerdy Solicitor I now have to wonder if there is a nerd spectrum.
The public interest immunity angle is interesting though I agree it could be stretching. I think though there could be a good argument made that it is in the public interest to not undermine these relationships.
I was also thinking about whether the old system was part of the public and private divide and maintaining that paternal type privilege. The whole paternal aspects of the original source of the privilege still make me cringe.
Alas I have only had opportunity to skim the matter so far but have never let lack of preparation, understanding or knowledge stop me having an opinion.
Well, ‘I wish to make a complaint’ seems appropriate
I get a sense here from marcellous, armagny – and even LE – that Heydon J is being given less than due regard for this and maybe other opinions? I’d just like to record disagreement with that attitude to his thinking on this case, and I wonder why it appears an embarrassment (grudgingly noted) to either agree with or at least recognise the reasonableness of his words. Fair enough to instance any errors; less so to damn with (less than) faint praise. I don’t expect an answer to that – given your profession.
On the issue of ‘spousal right’ I’d only add two things. 1) LE’s understandable discomfort about the woman’s ‘subjugation’: this case could or should have stood if the sexes were reversed (or the same), if it were to mean anything. And 2) There’s an element of ‘the State’s right over private relationship rights’. I’d prefer the State was limited as much as possible.
KVD – the back story to Heydon J as far as I’m concerned is that I disagree with him sharply on issues of the division between law and equity, and on a variety of other matters (I don’t think Marcellous minds the anti-fusion aspects of his opinions so much? – is that so, M?).
As described here, I am also not a fan of Heydon J’s generally ascerbic — even choleric? — approach to judgment writing. He wrote a few judgments which I thought were inappropriately intemperate. My impression from his judgments is that he is an angry man. By contrast, my impression from the majority of his academic writings is that he is a thoughtful considered man (even if I don’t agree with him). I suspect he’s both in the same package, and the different fora bring out different aspects.
Despite the fact I take a sharply different approach to law and equity to him, I would not reject his opinions out of hand (even on my favourite subjects such as gain based damages for breach of contract). As it happens, I’m still percolating on this particular issue, but I did find his summary of textbook writers quite persuasive. Sometimes it takes me a while with these things.
KVD – yes – if the right was to stand, it should have applied if a husband was testifying against a wife. For some reason a lot of the cases seem to be the other way around, but surely the issue has also arisen when the genders have been reversed or in the context of same sex relationships?
And yes – I agree – I’d also prefer that the State’s intervention in people’s private relationships be limited. Hence my belief that marriage is a matter for individuals unless there is some kind of a crime committed. I don’t think it’s for the State or for some religious body to say who can form a lasting partnership. Of course if someone wants to get married in the Catholic Church or in a mosque or whatever, they have to respect that religion’s decisions on the matter, but otherwise, it’s none of the religious body’s business. But then I’m a fan of the idea of marriage as contract.
Fair enough LE@28, and thanks for the expansion. I was just trying to say that I find it hard to get to the particular objection in the particular case when there’s this vague cloud of unspecified disapproval floating about; it’s a bit too ‘clubby’ for me to get the sense of, when I’m interested in a specific issue. I hope that does not cause offense.
On your 29, there’s some commentary which seems to indicate that a wider recognition of relationships is at least under discussion. But maybe at this point the post heading should have referred just to “Wife’s right” as opposed to “Spousal Right”.
Not in the least offended. Because we all read these judgments we (a) get a sense of the personality etc of the judges and (b) sometimes forget that others don’t have the same background. Basically Heydon J is very conservative, but sometimes very conservative is okay. I just don’t happen to like his and Gummow J’s conservativism which is I would term “activist conservatism” – if that’s not an oxymoron. Often they say that we have to look at what happened in the 19th C and apply the law as it was then, but while I think one should look at the law and the history of a matter, just because we’ve “always” been doing something in a particular way is not a reason to keep doing it like that. But then conversely, quite often if we’ve been “always” doing something in a particular way there are at least some good reasons, so one has to be careful not to throw principles out too quickly. As usual I tend to take the middle road – see if one can blend modern ideals and ancient precedent in a creative way which doesn’t totally break with tradition but isn’t hidebound either. Did I mention my book is coming out in May next year?
A book – congratulations! I shall look forward to being deferential to your self-referential author-ity
What LE said on Heydon J @28. Although he is probably by far the best writer, per se, on the bench.
Ripples I too am a nerdy solicitor. Well perhaps apart from the serious academic credentials nerdiness should bring. There was very little Rumpole in there, definitely down one end of the spectrum.
I think PII is always drawn from ‘public’ contexts, although it’s been held to apply to quasi-governmental organisations. I can’t see why its principles couldn’t apply to something generated by a private individual, but the public interest there is different to the ‘public policy’ reasons Courts draw on to prop up old privileges, restraint of trade etc.
Normally you are weighing the government/public interest against the public interest in cases being run effectively (ie disclosure). In a spousal case arguably both positions would line up with disclosure…
In the law, the fact that we’ve always been doing something in a particular way is precisely the reason to keep doing it like that.
BTW, this from Heydon J’s judgment …
priceless!
Nick @ 34, I must disagree profoundly. What if we’ve always been doing something in a certain way and it doesn’t work, or it creates perverse incentives which cause people to do the very opposite of what we want them to do, or it reflects outdated assumptions about society which do not hold good any more? Yes, law is grounded in tradition and precedent, but it must also be somewhat fluid and workable, otherwise the law becomes an ass. You knew I was going to disagree with you there, didn’t you?
I was trying to explain to my students how dicta or dissents could become law. It all depends on how convincingly you justify your judgment. If you write something so well in dissent that succeeding generations think “yes, that’s true, that’s the way it should be” then it will be picked up. Conversely, just because something is written by Maitland or Blackstone or Coke CJ is no reason for just swallowing it whole IMO. A healthy mix of both respect and disrespect for precedent is essential.
I knew I was throwing a match on a fire, LE, but I don’t back away from the statement. I regard the proposition that judges should regard the law as something they are free to mould to their own view of what’s fair as a very dangerous one.
As for the well written dissent … reminds me of a West Wing episode, “the Supremes”.
Also, no-one said Maitland, Blackstone, Coke, Bracton or anyone else should be accepted without question. Heydon’s point is that their reputations, deservedly earned, are matters of some import in assessing the value of their opinions. Obviously that does not supplant a reasoned contradiction; it is merely a factor to be weighed.
I would have thought that in this modern age of contextualism, that is a pretty powerful argument.
I’ll have to find it for you, but if you want to show your students a particularly bad way of making law, there is a particular passage from a previous edition of Fisher and Lightwood that is cited in a judgment as authority for a particular proposition. In the subsequent edition, the authors quoted that case as authority for the same proposition and no other case. I haven’t gone looking for a copy of the earlier edition to see if there was an earlier case cited, but I bet there wasn’t a case cited.
Nick @ 38: Lord Denning was the master of that. I recall particularly in one of the proprietary estoppel cases that he said “It has long been held…” When one looked to see who had long held the said opinion, it was Lord Denning himself in previous cases where he was dissenting, and no other judge. What a cheeky judge he was. I still love him, though, for his writing style (clear as a bell and very humorous).
Absolutely, judges should not exercise so-called palm tree justice. Like cases should be treated alike, and litigants should have a reasonable chance of predicting the outcome of a case – if the law is constantly being changed or moulded then this is impossible. I am all for structured and predictable law.
However, all the great judges have been sources of new or different principles. This is partly because the existing law cannot cater for every single factual situation. So judges have to make law, not discover it.
I don’t actually mind a conservative judge. For example, I really respect Dixon CJ, or Dawson J. I’ve got a problem with some of the present High Court though. They just react against things they consider to be “activist” – I think they are “reactivist” which is as bad in its way.
Also, I think part of making the law predictable and approachable for litigants is to give it a spring cleaning every now and again. The nature of it is that it grows by itself, but I would prune random growths and make it a little more coherent in light of what had occurred before. For example, if there had been clear trends in previous cases which had not been drawn on earlier and which it might be possible to draw together, I’d do it.
Well, I always thought a conservative was one who simply requires a demonstration that something is broken, then proof that the proposed ‘fix’ is not only workable, but is the best alternative, and carries no untoward side effects.
But wadda I know? Carry on, LE
KVD, I think the fundamental issue is whether people think a particular principle is broken or not. Personally I consider the law surrounding certain remedies to be an unprincipled morass which bears no coherent order. According to Gummow and Heydon JJ this is exactly as it should be, because that is how it has been since the 1880s, and equity cannot draw on common law nor vice versa because that would be “fusion fallacy”.
Now, I’m not a restitutionary fascist; I don’t suggest throwing out the equity and common law divide or anything like that. I think there are important differences in emphasis between common law actions and equitable actions which is reflected in the remedies (the former is generally more concerned to compensate for losses, the latter is generally more concerned to regulate and deter certain kinds of conduct). That being said, I see no reason why I can’t borrow useful bits from equity in common law or vice versa in an appropriate case. I mean, good God, equity developed in part with an auxiliary jurisdiction to aid and abet the common law when it could not deal with a particular problem – why should it not continue to do that, as it did before the Judicature Acts? And in some circumstances where equity is more concerned to compensate for a loss, why should it not borrow from common law – if you find a useful principle in a different part of the law which seems to work there, why not use it carefully, noting the side effects and issues it has had in the other area?
(Sorry, yes, I’m off and ranting. As you can tell this is one of my big soapboxes.)
P.S. Yes, Nick, you threw a match to the fire…
LE@42 I’m definitely gonna buy your book! Sounds like it could be a real tippet ripper
And I wasn’t attacking anything you had said; more just stripping away the various adjectives (epithets?) you were attaching to that fine old word ‘conservative’ to see what might be left among the smoking ruins of your assault upon The Law.
Think I’ll stop digging now.
NF@37 “The Supremes” is my absolute favourite West Wing episode. I re-watch it regularly. And the conservative judge (Mulrooney)’s speech on dissents is great.
Lorenzo, I agree, it’s a superb episode.
LE, that is an unfair description of the position of Gummow and Heydon JJ. They do not believe that things should remain as they were in the 1880s. They just insist that cases be decided according to precedent. I know you know all the arguments in favour of that position so I won’t rehearse them.
What I will observe is that it is the doctrine of precedent is what stands steadfastly in the way of fusion and, most immediately, the availability of equitable remedies for common law causes. To get where you want to go you have to trash stare decisis and once you do that, there is no point to judicial development of the law. It’s not development any more; it’s decision by fiat.
That’s why references to choosing the “appropriate” remedy makes me (figuratively) want to reach for my gun.
All I can say is that I disagree entirely, Nick. There are often precedents either way on most issues, but like the restitution scholars, the anti-fusionists pick and choose the ones that suit them. I do not think my representation is unfair in the least.
Stare decisis must involve some kind of development of legal principle, particularly where there is no law which deals precisely with that factual situation. And yes, I do think it must involve some kind of “top-down reasoning”.
I’d prefer to be careful about the development of the law rather than radical, but to pretend that judges just interpret the law and don’t develop it in one way or another is to be blind to the truth, in my opinion.
My other observation is that the position of lawyers on this issue depends on where people come from. From Sydney and above, I find that many lawyers are anti-”fusion”. By contrast, I find that those from the Southern States do not feel the same way. And the English are just confused about why it’s an issue at all, which is kind of ironic given that they were the birthplace of the said divide. An English friend opined to me last week that because they were the developers of the law, they get less hung up on changing it. They just do not understand why we all get our knickers in a knot about it.
However, I think this issue is one on which we will have to respectfully disagree.
Not to extend Nick and LE’s ‘converstation’, but I’d like to mention Richard Pratt and his downfall.
I understand (as a layman) that he was brought undone under the Trade Practices Act – which I guess was itself a consolidation of various common (mercantile?) law principles stretching back to antiquity – resulting in a fine to the tune of $30+ million. But it was suggested that something like $700M was involved in the deliberate actions of either himself, through his company, or co-conspirators over a number of years.
Nick, I guess I’m saying that if my mate and I stole $700 from the corner store, would you think it reasonable if my punishment was simply to return $30?
For mine, a remedy for that other $670M would be a start towards an ‘equitable’ accounting for that affair, and I think it is an instance where The Law has failed to do Justice – thus far.
kvd, the Trade Practices Act was in fact a response to the failure of the common law to deal with abuse of monopoly and cartel power. There were attempts to deal with cartels through the tort of conspiracy but they were largely unsuccessful. Certainly there was no real way of dealing with the sort of behaviour attributed to Pratt, his company and its main competitor.
Your comparison isn’t quite logically correct. Pratt wasn’t asked to return what he “took”. He was required to pay a fine to consolidated revenue. The fact that it is difficult to put an economic value on crime is one of the main justifications (in my mind) for imposing jail sentences.
Without derogating from the fact that Visy’s behaviour was reprehensible, I observe that there is a fair bit of speculation involved in arriving at the cost of cartel behaviour. I don’t know much about the cardboard box business, but it doesn’t seem to me be one which has huge barriers to entry. If there was much rent-seeking going on, surely there would have been a new entrant?
Whilst I think a lot of the competition laws should probably be abolished, I think it is fair enough to punish secret market sharing agreements. They constitute a fraud on the customers. Because of that fraud, they deserve to have their profits stripped.
Of course, the result of that would likely be to send the firms in question out of business and put a lot of innocent people out of jobs.
The problem with these market fixing arrangements is that they sometimes go on for years; the profits are distributed to shareholders long before the agreement is discovered. Regulators have to strike a balance between punishment and sending large employers into insolvency.
I should say that when I mentioned crime, I was talking about white collar crime.
LE@47, the idea of being for fusion or anti-fusion is not really apposite. The argument is not whether one is in favour of it or not, but whether it ever happened.
As I perceive it, there isn’t that much evidence of cross-fertilisation either in the jurisdictions where the point is hotly argued or in those less taken with the argument.
Of course, the stand out example is A-G v Blake, but that was more a political fix than any heroic reshaping of the law based on a coherent philosophy. It hasn’t been picked up here (it’s been mentioned a few times but not followed).
Thanks Nick – yes I realised that neither my thief nor Mr Pratt in any way were asked to return their gains – too quick on the send! Taking your other points in good faith I would say:
- as to barrier to entry, if the $700M is just the cream on the take I think a new entrant would have been at a severe disadvantage. The profitable rent-seeking would be just the ‘cushion’ needed to prevent additional competition, I’d suggest.
- jail? How does that reimburse the losses? It might make the judge and the lawyers and the community feel good, but how about the many companies disadvantaged by the behaviour? And their shareholders, employees etc.
- the too hard problem of an adequate fix. Didn’t realise that was a basic principle of justice
How about the courts actually doing their job and arbitrarily placing in escrow both private fortune and company equity? In this instance take a high% of the estimate $700M – or the lot, for all I care. Make it subject to top up for inflation by the parties at fault. Let them at their cost seek to vary the judge’s initial ruling as to division. And let the aggrieved parties put their claims at further cost to the guilty parties. Return any excess to Mr Pratt et al.
Bet there’d be a few quick settlements; and remember that Mr Pratt was a billionaire – by himself, alone, worth more than the mythical $700M (plus, of course, suitable lawyers’ fees)
I mean, we already have laws which say I must hand over 1/11th of my turnover plus 30% of what I have left for ‘the common good’. What’s so wrong about requesting I hand back, in full, what I stole on the way through?
kvd, the point I was trying to make about the $700M is that I think it is a rubbery figure because I can’t see massive barriers to entry. You seem to be saying the barriers to entry must be high because the oligopolists made $700M. You’re assuming the figure is right and I’m questioning its correctness.
My point about jail is that its important because it is a disincentive more likely to play upon the minds of the Pratts of the world (heh heh heh) because the monetary penalties are never going to be a sufficient disincentive; not least because they can protect themselves by making sure they don’t hold property themselves.
I’m not saying that I don’t think that restoring ill-gotten gains is unimportant. I’m simply saying that insisting that a company pay back, in one hit, what it eked out as a monopoly rent over years, will destroy it and have consequences for innocent people such as employees and shareholders (particularly those who weren’t around for the dividends during the life of the cartel).
You may also be interested to know that the Competition and Consumer Act (as the Trade Practices Act is now known) has provision for firms which suffer losses as a result of cartel conduct to sue the cartel members, but the litigation is so ridiculously expensive (even compared to other commercial litigation) that it is hardly ever run.
KVD and Nick – interestingly there’s a case in the UK called Devenish Nutrition Limited v Sanofi-Aventis SA (France) [2008] EWCA Civ 1086 which touches on this very issues. Certain vitamin manufacturers engaged in illegal cartel behaviour in breach of Article 81 of the EC Treaty. The EC imposed substantial fines on the manufacturers. Devenish had purchased vitamins at inflated prices from the cartel members to include in its animal feed. It later sold the products at a reasonable profit to consumers. It alleged that the vitamin manufacturers had committed a breach of statutory duty by contravening the EC Treaty, and that it was entitled to damages as a result. Devenish accepted that compensatory damages were available, but it was concerned that these would be difficult to prove, or that the vitamin manufacturers would argue that it had mitigated its loss by passing on the overcharge to customers. Consequently, Devenish sought an account of profits. The Court of Appeal refused to award any gain-based damages to Devenish for two reasons. First, it said that gain-based damages were only available for proprietary torts, and secondly, it said that compensatory damages were adequate in any case.
I don’t think such a litigation would be run in Australia because the CCA provision Nick mentions above would provide an easier avenue for relief, and because we have not accepted the Blake case (which allowed accounts of profits for breach of contract).
LE forgive me if you feel this is hijacking your original subject, but it is a subject in which I’m genuinely interested. Nick, a couple of follow ups on your latest:
1. You are suggesting that the difficulty in reaching a reasonable figure of the fraud involved is a reason to put it in the too hard basket. I’d suggest that’s quite lame. The message being sent is that crime actually does pay – if it’s big enough, complicated enough.
2. You have a couple of times suggested I would liquidate Visy, to recover whatever figure in one hit, throwing thousands out of work. Not so. Visy remains a private family held company. There would be nothing wrong with laws being enacted to require either part or the whole of the equity being confiscated, and perhaps sold into a public structure. Alternatively a process of appropriation of future earnings could be put in place – leaving the company owned just as it is. James Hardie comes to mind.
3. You quite correctly say that there is provision for damaged parties to make claim, but then note that it’s basically too costly and inefficient to pursue that route. I don’t see why the law shouldn’t be turned on its head; with a court assessed figure which is then subject to dispute by the offending party at their cost.
4. Moving into LE’s comment, I accept that there is a good case that any costs improperly imposed by Visy on its customers would most probably have been passed on in the final end user price of their own products. That means to me that the community at large will have bourne the ultimate cost, which leads me to think that confiscation of wealth by the government is “fairer” than individual settlements with customers.
There is nothing fair or easy about any of this. But if the end result is a fortune built upon a lie or a crime, and society simply turns a blind eye because it’s all too hard, then what sort of message is being sent to the business world?
kvd, following your numbering …
(1) I didn’t say that.
(2) I suggested that the natural outcome of hitting a company with a fine equal to its illicit profit over an extended period would have the likely effect of sending it broke. I don’t think there’s much doubt in many cases. I don’t think that confiscating future income would work. You would have to force people to keep their capital invested for no return because they wouldn’t do it voluntarily.
(3) That’s an interesting point, but what is the process for the Court’s assessment?
(4) I agree although I have a visceral reaction to the phrase “confiscation of wealth by the government”.
Your last (unnumbered) point really returns to the question of disincentive. In the United States, there is a rationale which calls for damages awards for triple the monopoly profits in anti-trust cases, but there is still anti-competitive behaviour. You’re dealing with people who think in terms of the risk they’re taking and whether the potential reward is worth it. They know that no government is going to shut down their business, so they know there is never going to be a punishment which has that effect. That is why I think jail is a more effective response. Tell someone that they risk going to jail for their behaviour and its a whole different equation. You can arrange your affairs, Alan Bond style, so that there’s no point in suing you, but you can’t do the same in respect of a jail sentence.
LE, as you observe, the Devenish case is one of breach of statutory duty and thus one which falls to be analysed according to the law of tort. As you are probably aware, there is no similar statutory duty in Australia. There were attempts in the late 90′s to frame some competition actions in terms of conspiracy (the illegality being the conduct in breach of Part IV of the TPA). That was done in an attempt to avoid limitation periods, but they were struck out on the basis of the presumption that when a statute makes something illegal which was not previously illegal and provides the remedy, that is the only remedy available.
Nick@57, you seem to want fairness in a process begun between the parties at several pubs, with continuing discussions via prepaid mobile phones? As the judge observed “for all the attention paid to company policy, it may as well have been written in Sanskrit”.
But anyway:
(1) You never said?
N@49: The fact that it is difficult to put an economic value on crime is one of the main justifications (in my mind) for imposing jail sentences.
N@49: I observe that there is a fair bit of speculation involved in arriving at the cost of cartel behaviour.
N@54: I’m simply saying that insisting that a company pay back, in one hit, what it eked out as a monopoly rent over years, will destroy it and have consequences for innocent people
(2) You still argue on the basis of immediate and full recompense, whereas I’d be happy with a program of return over 5-10 years, or alternatively a confiscation of part or whole equity. Mind you, with Pratt, if you had confiscated $700M in one hit that would have left the poor fellow with well over $4bn in personal fortune (at that time) to console himself with…
(3) I’d be amazed if any of the larger accountancy firms couldn’t come up with a figure. My point was, thereafter it arbitrarily becomes the Court’s ruling, subject to rebuttal by the offending party. (Just like the process the Tax Office adopts in arbitrary tax assessment)
(4) Me too! But it already happens to us wee folk. See my 53 above, and just add several zeros.
(5) Jail: fine by me! But as well as, not in place of.
kvd, we seem to be speaking at cross purposes a bit …
I interpret this as meaning that I think we should not do anything because its too hard. I do not think that. I think that we should do what works to deter the conduct. Because corporate crime does pay, you needs something scarier than the risk of a loss to deter them. The people at the heart of these things aren’t scared of that risk. They live with it all the time. Their preparedness to take such risks, often as not, is how they got so rich.
Here Nick:
In 2003 Visy Industries manufacturing revenues $2.5bn Visy plus Amcor market share 90+% — split 50% Visy, 40% Amcor
Therefore extrapolate combined revenue as $4.5bn then multiply by 4 years, but allow for growth. Total combined revenue $16bn [These figures are available anyway from public documents - I'm just guessing]
Pick a figure for overcharge – say 3% – which is laughable, by anyway… 3% of $16 billion is a bit under $500 million.
There you go, and I saved Visy/Pratt et al $200M in deference to your need for “fairness”
Nick@60 sorry – I posted without seeing your comment. Yes, we are somewhat at cross purposes. You seek to deter crime (which is laudable) while I’d like that PLUS handing back the loot. These are two separate issues in my mind.
I’m late to this, but I would like to point out that LE@47 has an overly credulous take on the UK.
The pertinent fact is that Lord Denning trashed the common law in the UK, and the HL’s later acquisience to Parliament’s abrogation of the British Constitution in favour of EU supremacy pretty much sealed its fate.
So they probably don’t fuss about fusion because they are constitutionally impossible of seeing the organic evolution of common law principles as a key pillar of human rights in a free society.
What restitutionists and fusionists and kvd should be lobbying for is a compensation tribunal who can be asked to make a finding of restitution subject to judicial review of process and susbstantive blame.
But there is no obvious reason to throw the common law out holus bolus in search of incremental improvements.
Thanks for the great article and following discussion on the topic.
What implications does the decision have in Western Australia? Remember WA has it’s own Evidence Act (as opposed to the Uniform Evidence Act Cmth that was referred to in the decision). In WA, spousal privilege is provided for in statute; under s.18 of the Evidence Act 1906 (WA).
Does this mean that for criminal proceedings within the WA Criminal Code, spousal privilege can apply?However, if it was a Federal criminal offence being tried, the above decision (ACC v Stoddart) would apply and no spousal privilege would be available in that case?
Brian, yes, I think that would be the case. How bizarre that you could get spousal privilege under WA law, but not under Commonwealth law!
LE, I thought that would be the case. However, it does not seem right?! I guess the Law Reform Commission has not put the privilege in the Uniform Evidence Act as like you point out in the article, more for public policy reasons. Thanks for the reply
It isn’t the case. The application of Australian evidence laws depends on the court, not the jurisdiction being exercised. So, WA evidence law applies to all proceedings in the WA courts, whether state or federal. The only federal criminal proceedings in WA that aren’t subject to WA evidence law (and are instead subject to Cth evidence law) are the very rare criminal trials run in the federal court. It’s in non-criminal matters where the contrast between federal and state evidence law is important, because of the federal court’s much wider jurisdiction. I guess if you want to keep marital secrets, make sure you sue (or get sued) in a WA court.
Even if things were otherwise, fthe gap between WA and non-WA evidence law on spouses isn’t all that important in criminal trials for several reasons First, the WA’s privilege is barred in most serious criminal trials (see s9 of the WA evidence law.) Secondly, the uniform evidence law (applicable outside WA, Qld and SA) provides for a spousal non-compellability rule in all criminal trials (see s18 of the UEL), though it’s a balancing test of sorts. Third, neither evidence law applies to the ACC’s questioning power at issue in Stoddart. Rather, most coercive questioning regimes have their own privilege rules, though it’s possible for the common law to squeeze through any legislative gaps (as might have happened in this case, had the common law on spousal incrimination be held to exist.) The position in the WA equivalent to the ACC, the CCC, is not obvious from a quick reading of the statute: people questioned under that statute can claim all court privileges other than self-incrimination, but the WA spousal privilege seems to have an exception for coerced questioning. Maybe there’s a case or some other provision somewhere that makes things clear. I dunno.
Thanks heaps, Anon. Goodness gracious, it looks SO complicated. Sounds like some cleaning up is badly needed.