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Polly Peck
16 September, 2006  
Capital Offences

Polly catches-up with her old friend Sandra Day O’Connor during the former US Supreme Court judge’s stay in Canberra. They had a good chat about brutal little Nino. Also, Henry Burmeister, the government’s chief general counsel, tells Polly a thing or two about the legality of Japanese whaling


imageIs it true that Sandra Day O’Connor just can’t stand the bumptious Antonin Scalia?

On her recent Australian tour the former US Supreme Court justice tried to be civil about the overbearing dogmatist, but some insights have nonetheless trickled out.

When asked what she thought about the “originalist”, she replied:

“On occasion, I would see Justice Scalia on a side in a case that I was on, and I might see some writing from him that I thought maybe was a little harsh. I don’t like that myself, I think you can be absolutely as effective with a softer voice, a more respectful voice for other points of view, but he comes from legal academia and I think the professors tend to be a little brutal.”

It was on the application of foreign law that the two judges probably were most widely apart. Sandra thinks that consideration of overseas legal reasoning could only benefit American lawyers and judges. It should be part of their “thought process”, she said.

She told a me, and a few select others, at an ANU law faculty gathering that American lawyers and judges are “more insular” than the country’s global businesses might otherwise suggest and often they forget that other legal systems manage to deal with similar problems.

O’Connor said that last year’s Supreme Court’s decision in Roper v Simmons had revealed tensions over the use of foreign law in America. In Roper, the majority, relying heavily on foreign legal sources, held the execution of murderers under the age of 18 was unconstitutional.

Following the decision a widely sponsored resolution was introduced into Congress seeking to prohibit federal judges from referring to foreign legal sources, with a penalty of impeachment.

imageNino Scalia was absolutely ropable about the majority’s findings in Roper, insisting that the court should avoid citing the views of foreign judges.

However, Sandra told me that with the rise and rise of multinational American businesses US law firms were opening offices abroad to assist clients comply with their host country’s laws. Also, American courts were often faced with “choice of law” issues involving the laws of two countries, rather than two formulations of domestic law.

Lawyers and judges have a role to play in the harmonisation of legal systems to reduce the cost of translational litigation, “and we don’t have to leave it all to the diplomats”.

The touring ex-Supremo said that witnessing the British method of selecting jurors had been “very helpful”, particularly as the Brits didn’t spend all day or several days trying to pick a jury. She felt there were “much greater levels of civility in the courtroom” across the Atlantic. (Umm, Nino!)

Sandy Day also rejected the suggestion the Supreme Court would ever do away with oral argument and she added that amicus briefs, which may be filed by interested third parties subject to objections, could be enormously helpful.

Where the parties haven’t been particularly effective sometimes an amicus brief could be “just is like turning on a light bulb … I’ll take my help any place I can get it and if it comes from an amicus brief, well done”.

As to the role of the court in the US politico-legal landscape, Sandra explained why the judges had not yet pronounced on the terror laws:

“The Supreme Court in my country is like a firefighter that doesn’t start putting water on the flames until there’s really a fire out there.”

I wonder if Smiler and his team feel more like arsonists than brave firefighters?

However, it is income tax cases where the US Supremos feel most at sea:

“Believe me, those were the worst, terrible. We’re not experts in the tax field, any of us, and you’re just terrified you’re going to say something in an opinion that’s just going to create a total upstash in the tax field and you didn’t intend to do that at all, but you do it out of ignorance…”

A comforting little insight.

* * *

Henry Burmeister QC, the Commonwealth’s Chief General Counsel, also appeared at a Canberra gathering the other day to provide some thoughts on international law and the contentious Federal Court case of Humane Society International v Kyodo, which concerned the legality of Japanese whaling.

Henry helped Attorney General Fabbo Phil Ruddock draft a nice little submission for Justice Allsop, who heard the case at first instance.

Initially, Humane Society applied for leave to serve proceedings on Kyodo, a Japanese company engaged in whaling around Australia’s Antarctic territory. Under section 457 of the Environment Protection and Biodiversity Conservation Act, 1999 (Cth), interested parties, such as Humane, are able to apply for an injunction to stop conduct in contravention of the Act, such as harpooning whales.

Phil got involved after Allsop made an interim order for Humane to file relevant material with the Attorney General’s department and for the AG to make a submission.

Phil, with a lot of assistance from Henry, submitted that service of the proceeding in Japan should not be allowed, since it “would be likely to give rise to an international disagreement” and similar disputes could arise with other countries that do not accept Australia’s claim to Antarctic territory, potentially undermining the status quo in Antarctica which “would be contrary to Australia’s long term national interests”.

In other words, don’t do anything, lest we upset the Nips and people begin to question our claims to Antarctic territory.

Following Phil’s submission, Allsop decided that Humane should not be allowed to serve proceedings in Japan.

However the full court overturned that decision, holding it was erroneous to attach weight to political considerations. Accordingly, Humane gained leave to serve proceedings in Japan.

So how did Henry explain this slap in the chops. He thought there would “continue to be tensions” in how courts resolve foreign relations issues and a variety of outcomes were possible.

He added that any consideration of diplomatic hot potato issues rested on a fundamental question: the court had to be “comfortable” doing what it was being asked to do.

Since then Henry has been asking the Federal Magistrates Court in Canberra to get comfortable with the idea of confirming the interim control orders against Jack Thomas.