Publication is a tricky business by Life Member, Louis A Coutts

MEMBERS’ CONTRIBUTION PUBLICATION IS A TRICKY BUSINESS

by Life Member Louis A Coutts

A woman was intercepted in Liverpool in 1996 by the Police who discovered a spray irritant in her handbag. It was an offence to carry a spray irritant unless the person had a reasonable excuse. The woman had previously been attacked by a man and the day after the attack she purchased the cannister and always carried it with her. A majority of the Judges on the High Court decided that the woman did not have a reasonable excuse and confirmed her conviction and ordered her to pay costs. Two girls had been sexually assaulted in the classroom of a one teacher school in Queensland. A majority of the Judges on the High Court rejected her claim against the Queensland education department because the teacher had acted criminally and, according to the majority of the High Court, he was not employed to act criminally. A Rugby Club in Sydney served a woman grog until she was blind drunk and then kicked her out. She was run over by a car and seriously injured. A majority of Judges of the High Court said that the Club didn’t owe the woman a duty of care and rejected her claim. A son killed his father and he and his mother were charged with murder. The son was acquitted on the grounds of self-defence, but the Jury convicted the mother of murder. Despite the fact that her husband was not murdered, a majority of the Judges of the High Court upheld her conviction of murder and sent her to the clink for twelve years. A refugee who unsuccessfully applied for an Australian visa then sought to be deported to another country, but no one would take him. According to the Immigration Act he had to remain in detention for the rest of his life. A majority of the Judges of the High Court said that his detention didn’t amount to imprisonment and so it was OK for a bureaucrat in the Immigration Department to lock him up for the rest of his life. The Federal Court made a decision that affected all the States of Australia who collectively sent twentyone high priced Barristers to Canberra to argue an

appeal to the High Court. The legal profession was waiting on the outcome with bated breath. Three Judges agreed with the Federal Court and three disagreed. A three all draw; leaving the decision of the Federal Court standing and the States going home with their tail between their legs and an enormous legal bill. Over a period of eighteen months, I constructed a data base of four hundred consecutive decisions of the High Court. Sadly, I discovered a Court that was frequently divided resulting in decisions like those I have just mentioned. Even sadder is the fact that these decisions are a sample of many. But then I came across the cases in which the High Court dealt with indigenous issues. Mr goodness! An Indigenous lawyer brought an action claiming that the proclamation of sovereignty over this country by Captain Cook and Captain Phillip was invalid. It is fair to say that he was backed up by both English common law and International law going back to the eighteenth century before Captain Cook arrived on our shores. Rather than let the indigenous lawyer argue his case, the High Court simply said, “You can’t”. In one sentence a Judge said that the indigenous people could not bring such a claim in our Courts. They did quote some dubious authority for this remarkable opinion and I traced its origin to a case in 1791. In that case, the notorious East India Company had fleeced a local Nabob of most of his money and he claimed that he had been cheated by the company (which, of course, along with many other wealth Indians, he had) and he wanted the Court to force the company to account to him for the money they had taken. In 1791, the Privy Council dug deep in its bag of tricks and came up with a brilliant idea. “No, you can’t argue what the East India company has done to you because what they did was an Act of State and that can’t be challenged in our Courts”. In the famous case of Mabo v The State of Queensland, a majority of judges on the High Court were faced with a dilemma. “If we accept Mr Mabo’s claim for native title, we could open the flood gates to claims by the indigenous people to recover most of the land in this country”. So, the majority came up with a brilliant response. What the King had done in making crown grants of all the land in this country to the newcomers were Acts of State that can’t be challenged in our Courts. According to the majority, most native title had been “washed away by the tide of history”. The High Court’s rejection of the indigenous claims in the Stolen generation case brought me to tears. In a case known as the Hindmarsh bridge case a majority of the High Court decided that the amendment to our Constitution in 1967, enabling parliament to make laws for the Aboriginal people, enabled Parliament to take away the rights of the Aboriginal people. In one single sympathetic sentence of dissenting hope, two Judges of the High Court declared that: “An early flash point with one clan of Aborigines illustrates the first stages of the conflagration of oppression and conflict which was, over the following century, to spread across the continent to dispossess, degrade and devastate the Aboriginal people and leave a national legacy of unutterable shame” In another case, one High Court Judge declared that the cards were stacked against the Aboriginal people. But the majority stand steadfast in refusing the right of the Aboriginal people to challenge the proclamation of sovereignty over this country. I put this and a lot more together in a book and submitted it to Writer’s Victoria for a disinterested and independent opinion. The response was very positive and indicated that it was more than suitable for commercial publication. Buoyed with that opinion I submitted the work to three publishers. The first said that it was a seriously impressive work which deserved publication and encouraged me to seek another publisher. The second declared the work a “work of quality” but decided not to publish and the Melbourne University Press replied almost by return of mail that “the work was not their fit”.

I am disappointed because I believe the High Court should be more accountable for its performance and that the indigenous people deserve a better hearing of their serious legal argument that they have been wronged.