BRODLIM x JULIEN RAYNAUD
Le Penseur 2015
80 cm X 80 cm
Reproduced with permission of the artist, Julien Raynaud and BRODLIM
© BRODLIM & Julien Raynaud
This book introduces students to a number of critical legal perspectives and demonstrates how such perspectives might be used to influence and reimagine existing legal doctrines. It extends the seminal Feminist Judgments Project and adapts it specifically for the purpose of teaching critical legal thinking. Each chapter provides extracts and commentary on the prominent thinkers within the critical discipline before a leading critical scholar rewrites the judgment in the famous 2013 decision of the High Court of Australia, Monis v The Queen, informed and reimagined through this perspective.
The case required the High Court to engage with deep issues about the role of free speech in democracy, the appropriate role of the state in regulating civility of discourse and protecting vulnerable groups, and the ongoing influence of gender and race in approaching these issues. The decision was the first in which the Court split over the relevant issues along gender lines. The saliency of the identity of the judges in the case makes it natural for introducing students to the idea that who judges are, and how they understand notions of constitutional justice, may matter to the resolution of concrete constitutional questions.
The book builds on the seminal work undertaken in the Feminist Judgments Project by pluralising not just the feminist critique, but the wider range of critical perspectives brought to the judicial method. The critical perspectives in this project include feminism and the public–private divide, anti-subordination feminism, critical race theory, queer theory/post-structural feminism, law and literature, political liberalism, intersectional theory, law and economics, restorative justice and deliberative democratic theory.
Foreword by The Hon Justice Margaret A McMurdo AC
About the Contributors
Table of Cases
Table of Statutes
1. Critical Thinking in Constitutional Law and Monis v The Queen
Gabrielle Appleby and Rosalind Dixon
2. Law and Literature – Analysing Style in Judgment Writing
Gabrielle Appleby and Heather Roberts
3. Feminism and the Public-Private Divide
4. Anti-Subordination Feminism
5. Queer Theory and Poststructuralist Feminism
Anne Macduff and Wayne Morgan
6. Critical Race Theory and the Constitutionality of Hate Speech Regulation
7. Intersectional Theory: Where Gender Meets Race, Ethnicity and Violence
8. An International Human Rights Law Perspective
9. A Capabilities Approach
10. Political Liberalism
11. Deliberative Democracy
Peter Burdon and Alexander Reilly
12. A Restorative Justice Approach
Melanie Schwartz and Anna Olijnyk
13. Preventive Justice
14. Law and Economics
15. Critical Judging
Ten years ago Man Haron Monis (who later died in the Lindt Café siege) and his partner Amirah Droudis began sending letters to the families of Australian soldiers who died in Afghanistan. The letters accused the soldiers of engaging in terrorist activity by killing innocent civilians. Monis and Droudis were charged with Commonwealth offences, which alleged that they had used the postal service to convey communications that reasonable persons would regard as being highly offensive. They challenged the indictment on the basis that the law was invalid, because inconsistent with the implied freedom of political communication guaranteed by the Commonwealth Constitution. That argument was rejected by the trial judge (Judge Tupman) in the District Court and by the NSW Court of Criminal Appeal. The argument also failed in the High Court, but it did so in unusual circumstances; the Court, having sat six justices, split 3:3: Monis v The Queen (2013) 249 CLR 92. The division was seen as noteworthy because it was on gender lines, the three male justices having voted to uphold the appeal and the three female justices having voted to dismiss the appeal. (In the equally divided Court, the appeal was dismissed.)
These features of the case led the editors of this book of essays, both eminent constitutional lawyers at the University of NSW, to invite a number of Australian academic colleagues to write a seventh “judgment”, each from a different and specific perspective. The book was partly inspired by the “feminist judgment project” in which feminist scholars “rewrote” selected cases from a particular (feminist) perspective. By contrast, this book contains 12 additional “judgments” for the one case, designed to offer critical insights into Australian constitutional law and, in particular, the implied freedom of political communication. …
[T]he book is an imaginative treatment of an important constitutional law principle. It should provoke and stimulate students; it can also reveal new insights to experienced lawyers. The editors, the authors and Federation Press are to be congratulated on its publication. Read full review…
Justice John Basten, Australian Law Journal, Oct 2017, 91
The prevailing legal realist school of thought holds that judging involves not merely the application of facts to law but, at least in hard cases, it is also influenced by the values, background and life experiences of each judge hearing the case. On that premise, critiques of judicial decisions are from time to time advanced from perspectives said to differ from those of the judge who decided them.
This interesting book, inspired by the feminist judgments project, takes this school of thought to a logical conclusion. Associate Professor Gabrielle Appleby and Professor Rosalind Dixon of UNSW have invited a number of leading scholars to draft a seventh judgment for the now infamous High Court case of Monis v The Queen (2013) 249 CLR 92. Each contributor adopts a particular critical viewpoint in drafting his or her “judgment”. The editors justify their choice of the decision in Monis on three bases. First, it involved a difficult constitutional question, namely the application of the doctrine of implied freedom of political communication. Second, the Court was constituted by only six judges and, remarkably, their Honours split 3:3 and along gender lines. Third, the case is of enduring public interest as a result of Mr Monis’ actions in perpetrating the Martin Place siege in 2014, which directly resulted in the death of two innocent hostages. …
The Critical Judgments Project – Re-reading Monis v The Queen is commendable to anyone interested in understanding the relationship between specific perspectives or theoretical frameworks and judicial reasoning. Its editors challenge us to “identify and assess the influence of personal, social, political and economic factors in the development of legal doctrine”.
Queensland Law Reporter – 3 February 2017 –  04 QLR