Authors: Dr Nicky Jones & Professor Peter BillingsPublisher: LexisNexisReviewer: Samuel Lane
Dr Nicky Jones and Professor Peter Billings have put together an extremely comprehensive and thoughtfully drafted text for anyone who is required to look at the Human Rights Act 2019 (Qld) (“Human Rights Act” or the “Act”).
While the text appears to be primarily for legal practitioners, it is written in such an accessible way that it would be a very useful companion also for those outside the law. This is particularly important as any “public entity” must not now fail to give proper consideration to any human right relevant to their decisions. As the Honourable Michael Kirby AC CMG said, “I congratulate the authors of this text for writing this excellent and practical work to introduce judges, practising lawyers, civil society and ordinary citizens to the context of the Human Rights Act 2019 (Qld).”
Chapter 1 of the text provides the reader with an overview of the history and an explanation of the key events that brought us to the Human Rights Act in Queensland, as well as some important national context, by observing Commonwealth policy and parliamentary milestones. It commences by noting that, in 2018, when the Human Rights Bill was introduced to the Queensland Parliament, 70 years had passed since the United Nations General Assembly adopted the Universal Declaration of Human Rights. It is a useful introduction to the Human Rights Act.
An overview of the structure and application of the Human Rights Act is set out in Chapter 2. This is another important chapter in the text, as it sets up for the reader the rights protected by the Act, the manner in which they are protected and the interaction between “public entities” and the Human Rights Commission (which is, also, established under the Act). Useful introductory remarks to international human rights jurisprudence are made in this chapter, as well as an important explanation of the key differences between the Victorian Charter of Human Rights and Responsibilities 2006 (Vic) and the Act. Chapter 2 is an excellent introduction to the following Chapters 3 to 5, which provide the annotated commentary to each and every section of the Human Rights Act.
Chapter 3 of the text provides detailed commentary on the Preamble and Part 1 of the Act. That is, the preliminary provisions of the Act. This is an extremely detailed chapter, which gives due importance to the introductory provisions of the Act, concerning the scope, purpose and objects of the Act. It also carefully considers (in the case of ss6 – 10 of the Act) the interpretative provisions of the Act, without which the essential terms for the operation of the Act would not be understood. There is a particularly detailed consideration of ss9 and 10 of the Act (the definition of “public entity” and when a function is of a public nature), which is unsurprising given the importance that those sections have in the overall application of the Act. As is customary with annotated textbooks, each section of the Act is first set out, followed by relevant and detailed commentary.
Chapter 4 then catalogues the substantive human rights (and who has those human rights) contained in ss11 to 37 of the Act. This chapter is comprehensive and very carefully researched. It provides up-to-date case law references to decisions from the Queensland courts, including Owen-D’Arcy v Chief Executive, Queensland Corrective Services [2021] QSC 273, which is perhaps the most significant case to date involving a consideration of various provisions of the Act and how they may be “piggy-backed” on to a judicial review application. In addition to the emerging Queensland jurisprudence, the authors draw on significant works from international and inter-state courts and tribunals to assist the reader with understanding the Human Rights Act and to provide authoritative commentary on each section. Helpfully, in respect of all sections of the Act, the authors conclude their commentary by giving the reader an understanding of other provisions of the Act that are related. This is particularly useful to public entities who are required to consider the human rights affected by their decision making.
Part 3 of the Act is set out and discussed in detail in Chapter 5. The text considers the application of the Human Rights Act in Queensland and how the various divisions of Part 3 set out the roles and responsibilities of each branch of government in the application of the human rights protected by the Act. Of particular relevance to practitioners is the discussion of s 58 (Conduct of Public Entities) and s 59 (Legal Proceedings), which, together, provide the manner in which proceedings might come to “piggy-back” a human rights complaint (where there is “unlawfulness” in an act or decision of a public entity) on to another cause of action.
Chapter 6 deals with the expansion of powers and the function of the Human Rights Commission. This chapter sets out in detail the unique function of the Human Rights Commission and the processes that might be invoked through it, noting that such processes are intended to provide more practical and meaningful outcomes for participants.
As a final note, Appendix 2 to the text provides a very useful table setting out comparable human rights provisions from other jurisdictions, both international and inter-state. This is particularly useful to practitioners where there is limited jurisprudence in Queensland on particular provisions of the Act in that it facilitates the identification of jurisprudence with respect to similar rights from other jurisdictions which may aid in interpreting the Queensland rights.
An Annotated Guide to the Human Rights Act 2019 (Qld) is a very helpful tool for practitioners, government agencies and civil society more broadly. It has been carefully researched and prepared, and is drafted to make it maximally accessible to all readers. It is a most worthwhile addition to any practitioner’s library.
Author: JRS ForbesPublisher: Thomson ReutersReviewer: Samuel Lane
Forbes’ notes in the Preface to the 14th Edition of Evidence Law in Queensland indicate that the 1st Edition of the text was published nearly 40 years ago in 1986. It is a testament to the utility of this text that it is now in its 14th iteration.
As with previous editions, the 14th Edition opens with a lengthy chapter on the “History and Common Law Foundations” of evidence law in Queensland. It is evident that this chapter has been developed and revised over many editions and it provides the reader with a clear understanding of the history and development of the common law principles that underpin the Evidence Act 1977. It is a useful and interesting introduction to the second, and most substantive, part of the text.
The second part of the text is the annotated text of the Evidence Act. The 14th Edition is no different to its predecessors, insofar as it is a comprehensive and thoroughly researched commentary on each section of the Evidence Act. The reader benefits from the time and development of this text over that same forty year period.
The text now includes commentary on the new additions to the Evidence Act in sections 14Q – 14ZG, concerning qualified privilege for journalists. At common law, journalists had no privilege that entitled them to refuse to disclose their sources in court proceedings. The “newspaper rule”, being the practice of the courts to refuse to compel discovery of journalists’ confidential sources, was always capable of being set aside in the interests of justice. The legislative amendments now seek to provide for a journalist’s privilege, where the doctrine of public interest privilege at common law had failed to do so. The text benefits from and draws upon authorities from other Australian jurisdictions on the subject, as Queensland was the last State to introduce such statutory protection for journalists.
New sections 21AZI – 21AZY, being the new division 4C of the Evidence Act, have been included in the text, although it is noted that those sections are yet to attract judicial consideration. The same can be said in respect of new sections 93AB – 93 AC.
The 14th edition also includes commentary on Part 6A of the Evidence Act (traversing sections 103A – 103S) concerning recorded statements in respect of domestic violence offences. Part 6A of the Evidence Act, which is complementary to the Domestic and Family Violence Protection Act 2012 (Qld), creates a new exception to the hearsay rule, and is concerned with adult complainants (while section 91A is for the benefit of children and persons whose mind is impaired).
Evidence Law in Queensland is an up-to-date and comprehensive text on evidence law in Queensland and it remains an essential addition to any practitioner’s library.
The peculiar case of chief forensic pathologist Colin Manock.
Author: Drew RookePublisher: ScribeReviewer: Samuel Lane
Manock’s flawed and fabricated evidence given to the jury, who were misled, took away nearly twenty years of my liberty before it was overturned by the Court of Criminal Appeal. Can you even begin to imagine what imprisonment for that period of time was like? More than 7,000 sunrises and sunsets that I never saw? Can you sit here today and even contemplate the everyday joys and happiness that you take for granted that I missed out on? – Henry Keogh
Every now and then we, as lawyers, will come across a case where an injustice has occurred. It might be that this is infrequent but, with humans being fallible, it is an inevitability. Human error is, no doubt, a common reason for these injustices.
What I hope is not common, however, is for one individual, through sheer disregard, ego and lack of qualifications, to be responsible for a great many miscarriages of justice. This uncommon circumstance, however, is the very reality that Drew Rooke has investigated and reported on in A Witness of Fact, when dissecting the career of the former Chief Forensic Pathologist of South Australia, Dr Colin Manock.
Between 1968 and 1995, Dr Colin Manock was the Chief Forensic Pathologist of South Australia, overseeing and conducting approximately 10,000 autopsies. By his own estimate, Dr Manock helped secure more than 400 convictions. Those numbers should be considered significant on any version of events but they take on a much more sinister and troubling significance once the reader has been able to digest the carefully researched reporting of Rooke in A Witness of Fact.
A Witness of Fact is divided into 3 parts, namely: The Man; The Cases; The Legacy. While not running in a strictly chronological fashion, the book largely traces the career of Dr Manock to reveal how it came to pass that he held the position of director of forensic pathology at South Australia’s Institute of Medical and Veterinary Science (IMVS, now SA Pathology) while “he was not formally qualified as a forensic pathologist, nor trained in histopathology.” It appears from Rooke’s reporting that the IMVS were “desperate” to find a director of forensic pathology and that, while Dr Manock was “very young and relatively inexperienced” having no “expert qualifications”, he was apparently the best applicant available and was appointed “in the hope that he would further study and progress.”
Part 1: The Man chronicles, to the extent that the information is available (noting that Dr Manock did not make himself available for an interview for the purposes of the book), Dr Manock’s educational background, personal life and other matters necessary to give the readers an insight into the man. Some of the details are more salacious than they are relevant to his work (he is, apparently, married to Mistress Gabrielle, a practising dominatrix in Adelaide), while others are included to provide some insight into his psychology (he is reported to be a gun enthusiast and would make his own bullets in his garden shed). But the author does go to great effort to give the reader a view into the mind of Dr Manock.
Perhaps, the most troubling revelation was the author’s description of an open-air autopsy that Dr Manock performed on the body of a deceased First Nations man in country South Australia, in full view of the public (this was after specifically refusing to use a more private setting indoors, that had been sourced by a police officer). A crude autopsy table was constructed by Dr Manock by placing a sheet of corrugated iron over two oil drums. The body was then placed on the sheet of iron, with Dr Manock proceeding to dissect the body, removing organs and dropping them into a bucket by the side of the body. Dr Manock then (for reasons that are entirely inexplicable) dipped a metal ladle into the body of the deceased and scooped out blood and bodily fluids. He then held up the ladle to the viewing public and jokingly quipped: “Anyone for soup?”
While the matters detailed in Part 1 of the book are deeply troubling in their own right, they are made much more so by the description of cases in Part 2 of the book.
Rooke has carefully reported on the description of a number of cases where Dr Manock, as chief forensic pathologist, has conducted autopsies which have led to miscarriages of justice. These cases have led to apparently innocent people being convicted of crimes. The equally disturbing corollary is that other people who may have committed the crimes have, never, been made accountable. The author has explained in detail how Dr Manock has given evidence in many cases in a manner that is strident and uncompromising. Even in cases where, according to the author, Dr Manock should have properly conceded matters, he remained steadfast and unwilling to make any concessions.
Perhaps the most widely known example is the case of Henry Keogh, who was convicted of murdering his fiancé by drowning her in the bath. The Crown case was entirely circumstantial and relied heavily upon the evidence of Dr Manock. Dr Manock gave evidence that he was certain that Mr Keogh’s fiancé had been drowned and that a bruise on her leg was evidence of a grip that had been used to pull her underwater.
Mr Keogh served nearly 20 years in prison before his conviction was quashed on a second appeal, under new legislation introduced in South Australia in 2013 allowing for a second or subsequent appeal. The Court of Criminal Appeal in South Australia considered that the trial process had been “fundamentally flawed” in large part because the evidence of Dr Manock had “materially misled the prosecution, the defence, the trial judge and the jury.”
While the author also thoughtfully analyses a number of other cases of miscarriages of justice, including the cases of Derek Bromley and Fritz Van Beelen, he also details concerning cases where Dr Manock has, carelessly and incorrectly, given innocent explanations for deaths, resulting in potentially guilty people walking free. It is particularly troubling that the cases set out by Rooke are those involving infants.
The work described as having been performed by Dr Manock in respect of three cases of infant deaths was so troubling to police officers and medical practitioners who were involved in them that the State Coroner, Wayne Chivell, decided to conduct an inquest into all three deaths.
While it is unnecessary to set out here the detail of each of these cases, it is worth noting that the injuries to each child were very troubling. Perhaps more troubling, though, was the apparently innocent explanation that Dr Manock gave for each of the deaths. As a result, the prosecution was unable to take matters further.
In Part 3, Rooke considers the legacy of Dr Manock, not just on those who may have suffered injustice at his hands, but also on the legal community and the administration of justice more broadly. Interestingly, there has been pressure for some time for a Royal Commission into Dr Manock’s conduct of cases. That pressure is yet to yield any results.
In fact, Rooke reports on a number of apologists for Dr Manock and, surprisingly, the fact that he has been celebrated in some parts of the scientific community, despite all that is now known about his lack of qualifications, his incorrect conduct of autopsies and his flawed and strident evidence in numerous criminal proceedings. For example, in 2005, long after serious questions had been raised about Dr Manock’s work, the South Australian branch of the Australian and New Zealand Forensic Society awarded Dr Manock its Award for Service.
Dr Manock, it seems, is not without peers. Other forensic pathologists, internationally, have been put under the microscope and have been found to have acted with similar self-certainty and ego as Dr Manock.
Rooke’s work in A Witness of Fact is a timely reminder that no one is infallible, not even a seemingly certain and experienced “expert” pathologist. In fact, Rooke’s work reminds us that treating such experts with unquestioned deference and regard might be doing us all a great disservice.
Authors: Kylie Evans & Nicholas PetriePublisher: Thomson ReutersReviewer: Samuel Lane
The Human Rights Act 2019 (Qld) has, since its introduction, changed the legal landscape in Queensland. It has done so not just for lawyers who might pursue human rights complaints through the courts, using the piggy-backing provisions contained in the Act, but also for decision-makers exercising administrative functions, as they are now required to give consideration to how each one of their decisions might impact upon human rights. As such, a resource such as this text is as valuable to the non-lawyer as it is to the lawyer.
This impressive and comprehensive resource has been written by Kylie Evans and Nicholas Petrie, both of whom are practising barristers in Victoria with extensive experience in human rights law matters. Kylie Evans is also the co-author (with Alistair Pound SC) of the 2007 and 2018 editions of the Annotated Victorian Charter of Rights (Thomson Reuters). The Queensland text builds on and benefits from the work that was done on the Victorian text.
As I observed above, the Act has changed the legal landscape in Queensland and takes many into unfamiliar territory. For those people, the Annotated Queensland Human Rights Act provides an accessible and comprehensive pathway to understanding and applying the Act.
Unsurprisingly, the text in part proceeds (in Part 2) to provide a detailed analysis of each individual section of the Act concerning individual human rights and how the authorities dictate that those sections are to be interpreted and applied. Readers will find a comprehensive catalogue of authority, both Australian and international, in respect of each of the rights and other operative sections of the Act. A detailed analysis of the authorities of the Queensland courts, where the Act has been applied, is also provided. This includes the decision of Owen-D’Arcy v Chief Executive, Queensland Corrective Services, which is, at the time of writing, the most significant decision of the Supreme Court of Queensland addressing the application of the Act in the context of the use of solitary confinement.
Part 3 of the text considers the application of human rights in Queensland, addressing sections 38 to 60 of the Act. It includes an interesting discussion of the piggy-backing provisions of the Act, as well as the override power contained in s 43 of the Act and how it is intended to operate. Such power allows the Parliament, although it is to be deployable only in exceptional circumstances, expressly to declare that an Act or provision of an Act has effect despite being incompatible with 1 or more human rights.
Part 4 deals with perhaps the most ground-breaking part of the legislation, namely, the establishment of the Queensland Human Rights Commission. Any practitioners looking to engage with the Commission will find this chapter a very useful first port of call.
The authors have carefully and diligently assembled an impressive catalogue of international and domestic jurisprudence and compiled it in this easily accessible and authoritative text. This textbook is an essential resource for any practitioner or decision-maker in a public entity on issues concerning human rights in Queensland.
