In equity In justice: Reclaiming the law as a vehicle for public good

In May 2023, Fiona delivered the University of Melbourne Graduate School of Education Dean’s Lecture In equity In justice: Reclaiming the law as a vehicle for pubic good

For most of us, interactions with the justice system are rare and remote. We accept that rules and laws are imposed upon us in exchange for a sense of safety and certainty in our daily lives. But for large numbers of us, the justice system is failing. How do we reclaim the law as a vehicle for public good, and address this wasted human potential?”

See the podcast here with an introduction by the Dean https://www.youtube.com/watch?v=iKQHd9HvC2U

Success in three landmark abuse cases

O’Connor v Comensoli Successful claims of negligence and vicarious liability against the Melbourne Archdiocese of the Catholic Church concerning abuse of a child by a priest. Record general damages awarded to plaintiff by Victorian Supreme Court

PCB v Geelong College. Successful claims of negligence against Geelong College on behalf of former student abused at school facilities by community visitor, record pecuniary loss damages awarded to survivor of child sex abuse by Victorian Supreme Court

John XXIII College v SMA Claims of negligence for directing University students off campus whilst drunk exposing student to risk of sexual assault and response to assault claims partially upheld on appeal in ACT Supreme Court

Modern Slavery and Material Justice: The Case for Remedy and Reparation

Continuing decades of advocacy on behalf of victims of human trafficking and modern slavery in Australia, I have co-authored an article in the UNSW Law Journal with Frances Simmons and Prof Jennifer Burn

In all its different manifestations modern slavery involves the abuse of power and the violation of human rights. In this article, we examine whether Australia is meeting its international obligations to provide access to effective remedies to survivors of modern slavery. We argue that Australia must squarely confront the violations of human rights suffered by survivors of modern slavery by improving access to remedies, including compensation. We recommend establishing a national compensation scheme, providing survivors with greater assistance to apply for reparation orders, and improving access to support and protection. These reforms are necessary to give effect to Australia’s commitment to prevent, address and remedy the human rights abuses and enable survivors to access effective remedies.

Please access full article here

(2022) 45(1) UNSWLJ 148: https://doi.org/10.53637/LLWJ9285.

Appointment as senior counsel assisting Yoorrook Justice Commission

I am deeply honoured to be appointed senior counsel assisting the Yoorrook Justice Commission supporting the first formal truth-telling process into injustices experienced by First Peoples in Victoria.

The Commission will examine past and ongoing injustices experienced by Traditional Owners and First Peoples in Victoria in all areas of life since colonisation and support a greater understanding of the causes of trauma, injustice and disadvantage. It will celebrate the strength and resilience of our First Nations and create a rich public record for future generations.

The Commission has been conducting public hearings in Melbourne and meetings in regional Victoria.

Evidence of elders, First peoples Assembly Victoria, Co chair Marcus Stewart and Minister Gabrielle Williams, statements and transcript are available here

Landmark climate change negligence case issued on behalf of Torres Strait Islanders

Representing Pabai Pabai and Guy Paul Kabai as lead applicants in in a landmark class action claim in negligence alleging the Commonwealth owes a duty of care to Torres Strait Islanders to protect them from climate change impacts.

The Applicants will submit that the Commonwealth failed to take adequate measures to address their vulnerability in the face of an existential threat to the people of the TSI, their traditional way of life and the marine environment.

This unique duty of care arises in the context of the express obligations of protection owed by the Commonwealth to the Torres Strait Islanders arising under the PNG Treaty and the Native Title Act and the commitments of the Commonwealth under the UNFCCC and the Paris Agreement to take steps to keep global warming to 1.5 degrees Celsius.

 The claim is consistent with the High Courts recognition of Aboriginal societies as the source and sanctuary of traditional laws and customs and findings that the common law must be taken always to have comprehended the unique obligation of protection owed by the Crown to those societies and to each member.

 The matter is proceeding before the Federal Court before Justice Debbie Mortimer.

 A description of the case is available here

Media reporting is available here and here

Class action re NT youth detention settles

Jenkings v Northern Territory of Australia I am delighted to have assisted in this class action representing detainees at the old and new Don Dale and the Holtze Youth Detention Centres which recently settled for $35M. Congratulations to Maurice Blackman and junior counsel Paul Batley for their commitment to this proceeding over many years.

Justice Mortimer refused the application of the NT government to suppress the settlement in a judgment describing the case in these terms - ‘This proceeding is itself about the administration of justice. It is about the exercise of public powers in respect of minors held in juvenile detention in the Northern Territory. It concerns the treatment of those minors while deprived of their liberty.

It is difficult to conceive of a piece of litigation which is more centrally concerned with the administration of justice than this one.

 Here, those individuals were mostly Aboriginal, were minors, and were deprived of their liberty, when the impugned conduct occurred. In a civil society governed by the rule of law, those are additional reasons for a high level of transparency about how such a proceeding is proposed to be resolved. There should be informed public scrutiny of what has occurred, so that there may be informed public discussion of it – these are some of the proper consequences of open justice.

Easy Lies and Influence

Delighted to announce the forthcoming launch of my book - Easy Lies and Influence by Monash University Publishing

In Australia, corruption spends public funds in pursuit of power, rewards favour, and strips support from worthy programs. It silences journalists and those charged with upholding standards of integrity by depriving them of funding. Grift and stacking are commonplace as those chasing influence infiltrate the structures of power. Corruption rewards loyalty through appointments to office and by preferencing those within the favoured network ahead of others of equal or greater talent. It conceals itself through unfit-for-purpose access to information laws and processes, vague budget commitments, the assertion of unchecked executive discretion, a quick media cycle and overburdened parliamentary committees. It undermines trust in government at a time when trust is vital to keeping us safe. Corruption allows mistrust to fester, offers nourishment to conspiracy theories, and engenders civil unrest.

In Easy Lies & Influence, I consider what corruption can do to our cherished democracy, and why it is imperative that we address it.

Fiona McLeod SC presents Solomon Lecture in Queensland

On 27 August 2019 Fiona presented the David Solomon Lecture Accountability in the Age of the Artificial in Brisbane at the request of the Queensland Information Commissioner. The paper explores issues of government and business accountability in the use and sharing of big data and artificial intelligence. The paper identifies seven big challenges to accountability and a road map to reform.

An edited transcript of the speech reproduced in two parts in the Mandarin is available here (Part 1) and here (Part 2).

A copy of the podcast appears here.