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Addressing concerns about ordered apologies: some recent developments

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Court ordered apologies raise important questions about the meaning of apology and the purpose of apologies as a legal remedy. Robyn Carroll discusses case law and statutory developments that suggest ways that these purposes can be met and ways that concerns about voluntariness and compulsion can be addressed.

Image courtesy of interviewee. December 12, 2023

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The speaker discusses the evolving role of apologies within domestic civil and criminal law, specifically focusing on the significance of apologies in resolving legal disputes. They emphasize that apologies, recognized in Western legal systems, can play a crucial role in sentencing and civil litigation, acting as mitigating factors that can reduce damages awarded in cases such as defamation or wrongful imprisonment.

Apologies are noted for their psychological benefits, such as reducing hurt and fostering healing between parties. However, the speaker also explores the complexities surrounding the court-ordered apologies, particularly when the respondent is unwilling to apologize. While the law provides mechanisms for ordering apologies, these instances are rare and often depend on the context, such as anti-discrimination law.

The speaker outlines cases where courts have ordered apologies or corrective notices, highlighting that these orders usually serve a dual purpose: acknowledging the wronged party's pain and reinforcing societal norms against wrongful actions. Furthermore, they mention alternative resolutions, such as voluntary apology schemes, which allow parties to seek out apologies without making them compulsory.

In conclusion, the speaker points out that although orders for apologies can occur, they are generally exceptional and subject to various considerations, including the rights and freedoms of the respondent. They argue for the importance of maintaining the power of apologies as a means of redress in the legal system while balancing the need to respect individual rights and the sincerity of such expressions.

Overall, the text explores the nuances of how apologies are integrated into legal practice and the implications for both the law and societal expectations surrounding wrongdoing and redress.

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Here are some key quotes from your video, which focuses on the importance of apologies within legal frameworks, particularly in civil and criminal law:

1. **On the Importance of Apologies in Law**:
- "There's been increased recognition in Western legal systems in recent decades that apologies are important to the resolution of legal disputes and to civil and criminal justice."

2. **Role of Apologies in Sentencing**:
- "If a defendant admits guilt, if they apologize, that's a factor the court will take into account in assessing what sentence should be imposed."

3. **Apologies as a Mitigating Factor**:
- "In civil cases, civil litigation apologies can also be seen as a mitigating factor."

4. **Effects of Apologies in Legal Outcomes**:
- "We know that apologies have the ability to reduce the amount of hurt and suffering that someone suffers, and that therefore that should be taken into account by the courts."

5. **Apologies and Contempt of Court**:
- "Apologies have a longstanding role of purging contempt... the contempt is purged" when an apology is made.

6. **Legal Convideo for Mandatory Apologies**:
- "One discreet area concerns the circumstance in which the law provides for a court to order... that a wrongdoer should apologize to a person."

7. **Purpose of Ordering Apologies**:
- "The purpose is to provide a remedy to the claimant... and to uphold the purposes behind that law to say that it's not okay to discriminate."

8. **Judicial Orders for Public Apologies**:
- "Most often, it will be a public apology and most often it be ordered to be published."

9. **Challenges in Mandating Apologies**:
- "A very important consideration... is the need to balance the rights and freedoms that have been infringed by the respondent against their own rights and freedoms of speech."

10. **Psychological Perspectives on Apology**:
- "The concern about insincerity can be overstated because really it's surely for the person who's receiving the apology to make that assessment."

11. **Examples of Apology Orders in Practice**:
- "In some jurisdictions, courts say that, in addition to compensation, we can also order an apology."

12. **Further Consideration of Apology Mechanisms**:
- "There are other ways of saying that a person is not being compelled to make an apology, but some of the same objects can be achieved."

13. **Conclusions on the Effectiveness of Apologies**:
- "Apologies can be very powerful as a way of bridging the gap resolving disputes or at least reaching some kind of resolution between parties in a dispute."

These quotes encapsulate the essence of the discussion on how apologies function within legal systems, their significance, the potential for ordered apologies, and the complexities that arise when balancing rights and freedoms.

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X-TIMESTAMP-MAP:LOCAL=00:00:00.000,MPEGTS=900000

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I've been working, in the area of apologies in the law

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for, for quite a long time.

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Um, and my work on audit apologies is within a broader

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inquiry about the role of apologies in the law.

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Um, when I talk about the law, I'm referring to civil

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and criminal law that is domestic law rather

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than international law.

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I'm talking about law that we find in legislation

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and case law rather than say political apologies

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or apologies for historic injustices.

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So, very much matters of thoughts,

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and, and criminal matters.

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Uh, in this broad context,

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there's been increased recognition in Western legal systems

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in recent decades that apologies are important

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to the resolution of, legal disputes and to civil

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and criminal justice, beyond just what we know

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as the social, cultural,

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political significance of apologies.

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Um, actually apologies have been recognized as significant

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to decision making areas in law, in criminal

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and civil law for a long time.

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Most people, I think, would know that in sentencing,

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if a defendant admits guilt, if they apologize, that

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that's a factor the court will take into account in

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assessing what sentence should be imposed.

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Um, and so there's quite a lot of, understanding about,

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what an apology means in that setting,

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that it shows remorse.

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Um, courts often look for more than just, I'm sorry,

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they actually want other evidence of remorse part, you know,

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that you've, that you really, understand

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what you've done and so on.

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Um, I'm not gonna talk about sentencing

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or the criminal justice system in this talk

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because my research is,

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the context I've looked at particularly is in civil,

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and in civil cases,

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civil litigation apologies can also be seen

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as a mitigating factor.

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The law knows that if, in a defamation case, for example,

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or where there's been a breach of privacy

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or any tot, you know, if you wrongfully imprisoned a person,

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deprive them of their liberty, if you apologize,

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that is seen as reducing the hurt

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and the, the effect of your conduct.

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And the courts take that into account in assessing damages.

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So we know that apologies have the ability

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to reduce the amount of hurt

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and suffering that someone suffers, and that

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therefore that should be taken into

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account, by the courts.

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Um, we also know that apologies have a longstanding role

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of purging contempt.

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So if you are in contempt of court

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and you apologize for the court, the court will then say,

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well, that the contempt is purged.

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So it all of that just establishes the background that,

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the law knows that apologies can have beneficial effects,

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can have the effect of reducing harm,

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damage loss, and so on.

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Um, and reducing offense.

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Um, at, there's also been quite a lot of,

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scholarship growing up in recent years with the growth of

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what we sometimes called alternative dispute resolution.

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People gonna mediation rather than litigating apologies have

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a very important role to play there

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because people acknowledge the people's feelings.

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They acknowledge, the indignity

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that people have experienced it.

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They acknowledge that they've done something wrong,

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and that can have a tremendous effect on reducing,

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the, the hurt, the anger, and can lead to settlement.

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Um, not, you know, so, so we, we know quite a lot

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of these things, and there's been a lot written in that,

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in these areas, and it draws on research and literature

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and criminology in social and psychological sciences.

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Um, now my,

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so we know a lot about apologies from the social

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and psychological sciences.

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Um, my contribution in this field,

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in the context we're talking about, audit apologies,

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is very much through doctrinal research

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and analysis of legislation and cases, what the law says.

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Um, but I do draw on psychology

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and my research for saying what the law should look at.

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What psychological research tells us is the benefits

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to a party, to litigation or a dispute of an apology.

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But there's also important work by philosophers as well,

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who say, well, it's not just a matter of how someone feels.

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We have to look at what is the, the goals we have

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as society in, in having certain types of orders.

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Um, and some philosophical arguments would be very much

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opposed to the idea of ordering someone to apologize.

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So there's a lot of interest, a lot

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of interesting perspectives on this.

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Now, within this context, going right back

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to your question within this context,

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one discreet area concerns the circumstance in which the law

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provides for a court to order in a case

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before them, that a party that a wrongdoer,

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should apologize to a person.

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Um, exceptionally it might happen in criminal matters,

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usually only when there's juveniles involved,

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but there are cases where it's happened in civil cases.

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And my work maps the circumstances in which the law

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provides for this.

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Um, so they, although they're an uncommon order

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that are made for tort actions, they, they do exist.

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It's a judicial remedy.

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Um, it's a bit like it's a mandatory injunction.

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Often it will, order that the apology be made.

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Um, most often it'll be a public apology

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and most often it be, be ordered to be published.

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And so we start to see that the law is saying, you've done,

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you've done the wrong thing, you've acted unlawfully.

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Um, it's important for the purposes

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and the, the, for the,

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the applicant in this particular case,

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or the claimant that they receive this apology.

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But we also think that it furthers the aims of the law

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for this to be made a public knowledge.

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Um, and the best example of where this occurs,

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and possibly you could say that the area

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where it most often occurs anyway,

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is in anti-discrimination law

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or human rights law,

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where human rights legislation conver confers on a,

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per an individual, the right to go to the court

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and say, I have been the subject of unlawful discrimination

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or harassment, or vilification.

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Courts generally have the power

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to order compensatory orders such as damages.

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Um, but in, in Australia

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and in in other, some other jurisdictions, in Canada,

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Hong Kong, some European countries, the courts say,

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in addition to compensation, we can also order an apology

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where that does occur.

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Um, the, the aim

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of the order is, I guess it's twofold.

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It, it largely, the purpose is to provide a remedy

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to the claimant that they're seeking as a way

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of acknowledging the hurt

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and the grievance they feel as a, for the wrongdoing.

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But it's also, making it a, a matter

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of public interest to uphold the purposes behind that law

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to say that it's not okay to discriminate

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or to vilify people.

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And the law says that, there are,

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so these are the purposes,

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but I think it's important to bear in mind that, these,

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these orders aren't particularly common.

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They, they, they might be made by agreement.

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Once a party's found to have unlawfully discriminated,

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or even in a defamation case, they might say, well,

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if you find that I did the wrong thing,

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I'm happy to apologize.

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Where you, the, the rubber really hits the road is when a

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person refuses to apologize, even though they've been found

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to have, acted wrongfully.

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And so that's what, when you're talking about an audit

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apology, the, the most problematic is where the,

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there's an unwilling respondent who says,

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or dependent says, I won't.

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Um, but there are case examples in discrimination law.

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There are case examples in various places in South Africa,

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Canada, Malaysia, Hong Kong,

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where they might be ordered even in defamation cases.

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Okay? But they are rare,

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and there's some practical reasons for that.

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Firstly, it won't serve any purpose

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to order an apology if the claimant doesn't want it.

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You know, we don't want people being told, well,

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we won't give any compensation in money form,

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but we'll give you an audit apology.

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Obviously that would be self-defeating if

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that wasn't something that the claimant was seeking.

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So we, we assume that as a claimant seeking an apology.

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But then there are other considerations for the court.

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Um, a very important consideration, of course, is the need

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to balance the rights

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and freedoms that have been infringed by the,

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the respondent, against their own rights

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and freedoms of speech, of, of their free conscience.

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And depending on the jurisdiction, is the waiting

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between these freedoms, say in the US for example,

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with their first amendment, that a court's not gonna order

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a defendant to apologize.

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Um, and whereas, in countries that have a charter

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of rights, they'll say it's a matter

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of balancing these rights and freedoms.

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And if the legislation makes it clear enough that

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that remedy is available, then the courts may well conclude

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that free speech has to,

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accommodate these other freedoms.

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There are other concerns.

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Many judges are concerned about ordering an apology,

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that in their view would then be insincere.

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Um, that's where the psychological research is really

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interesting, because it says, I mean,

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if someone wants an apology

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and they know the other person's gonna give it

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through gritted teeth, they obviously don't care

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if it's insincere.

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They want it for other purposes, such as indication.

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Um, and so those sorts of, you know, those concerns,

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I believe can be overstated the in insincerity argument,

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because really it's surely it's

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for the person who's receiving the apology

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to make that assessment.

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Um, and there are problems enforcing it.

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What does a court do if a person won't apologize?

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You know, and there are answers to some of these questions,

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but these are the general concerns, the purposes of apology.

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I just wanna say a couple of things that leads into some

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of these other ways that courts are approaching it,

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because if you think that the important purposes

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of an apology is to acknowledge, wrongdoing,

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acknowledge the hurt

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and, that may have been caused by the wrongdoing,

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but also to vindicate people's rights

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and to offer them a form

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of compensation other than in money, then there's,

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there's quite a lot of arguments

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that can be made in support of those orders.

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Um, the the case law developments

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that I have looked at in my most recent work, well,

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in a book chapter, published in 2021, was

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to try and try

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and understand what the courts are doing to

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recognize the kinds of orders that plaintiffs are looking

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for or claimants are looking for, without going quite so far

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as to ordering an apology.

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Sometimes it's a court.

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But other examples I've got are other things that, I see

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as signs that within the law

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and within society, we recognize that there are,

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benefits of apologies, but we don't like

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to order people to do them.

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So I've got three examples to give you,

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in answer to your question.

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Um, the first example is in the area

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of discrimination law.

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So I've already explained that, the law

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in discrimination law, in some jurisdictions Australia,

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for example, courts have, it's quite clear

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that courts consider that they have the power,

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to make a, an apology order, but they won't always do that.

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Um, when they're faced with a person who

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won't willingly make an order,

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the court is in a difficult position,

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they don't wanna make an order that's not going

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to be achieved, its end.

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Um, and so in, in some racial vilification

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and racial discrimination cases, there are, examples

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where the federal court in Australia have ordered the

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publication of a corrective notice.

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So they order the respondent, the defendant in that case, to

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publish in a newspaper that

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they have been ordered to publish this corrective notice

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to say that they acted unlawfully.

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And, and what they did that was unlawful,

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say it may be racial vilification, for example,

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and that they, have to sh say that

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what they did was wrong.

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So it, it's, it's not a correction,

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like in defamation saying, I said,

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this person was employed as a lawyer.

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Actually, I was wrong. They employed as a doctor.

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It's not a correction in that sense.

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It's essentially correcting the,

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unlawful conduct in a sense.

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So, and that's one way where the party

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that's publishing the correction corrective notice is not

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saying, and I'm sorry, they're simply saying,

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I acted unlawfully

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and I'm publishing this because I was told to.

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So that was done in a case, where a newspaper,

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had, a, a broadcaster, it was a newspaper

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had published something that was found

13:41.995 --> 13:44.275
to be racially vil vilifying.

13:45.215 --> 13:47.475
Um, so that's one case called Och and Bolt.

13:48.015 --> 13:51.795
Um, in another case, in Watton

13:51.815 --> 13:53.875
and the Queensland Commissioner of Police,

13:54.535 --> 13:56.875
the judge looked at that option

13:57.215 --> 14:00.235
and decided that they would consider making a similar order,

14:00.895 --> 14:03.955
where they would be making it against

14:03.975 --> 14:05.075
the Commissioner of Police.

14:05.655 --> 14:07.715
But rather than a collect corrective notice,

14:07.785 --> 14:09.915
they said there would be a public statement

14:10.345 --> 14:13.115
that the commissioner would be ordered to publish.

14:13.735 --> 14:17.315
And it essentially saying, we, we did the wrong thing.

14:17.815 --> 14:21.675
Um, and so, so this isn't some developments.

14:21.855 --> 14:25.075
Um, in the most recent case, this year,

14:25.635 --> 14:27.635
a case called Kaplan in the state of Victoria,

14:28.045 --> 14:30.875
there was a claim made out in under the,

14:30.875 --> 14:32.995
federal Racial Discrimination Act.

14:33.015 --> 14:35.515
And the, the, the judge of the federal court in that case,

14:35.645 --> 14:39.195
chief Justice Mortimer, agreed with the applicant's

14:39.195 --> 14:40.835
that there should be an apology.

14:42.265 --> 14:44.445
And they agreed with the respondents

14:44.445 --> 14:45.845
that the proper person should be the

14:45.845 --> 14:46.965
state, the state of Victoria.

14:47.545 --> 14:50.725
It was a case involving racial discrimination by the

14:50.725 --> 14:53.085
Principal of a school against certain students.

14:53.705 --> 14:55.085
Now, the court didn't order

14:55.235 --> 14:57.045
that the principal should apologize.

14:58.025 --> 15:01.005
It did make orders that the state

15:01.025 --> 15:02.605
of Victoria should apologize.

15:03.005 --> 15:04.405
'cause ultimately it was responsible

15:04.405 --> 15:05.565
for what happened in the school.

15:06.385 --> 15:09.965
But in that case, the court did say, so, these are the steps

15:09.965 --> 15:12.365
that need to be taken for this apology to occur.

15:13.115 --> 15:15.965
Basically said, go off and negotiate this apology.

15:16.625 --> 15:21.085
But the court also recognized, that

15:21.945 --> 15:24.485
one possible outcome of the negotiations might be

15:24.955 --> 15:27.605
that the court would not make an apology order.

15:28.765 --> 15:31.325
So it was pushing them to the table, telling them

15:31.325 --> 15:33.605
to sit down, sort something out in accordance

15:33.605 --> 15:37.085
with the judge's reasons, but just that step back

15:37.585 --> 15:40.245
and not saying as a foregone conclusion

15:40.245 --> 15:41.445
that the order would be made.

15:41.905 --> 15:44.325
So that, I think that's an interesting development

15:44.495 --> 15:47.765
consistent with what has been occurring in those cases.

15:49.865 --> 15:54.525
The second example, is one actually I've drawn on,

15:54.525 --> 15:57.765
developments in England, to, to, to give this

15:57.765 --> 16:00.525
as an example, and that relates to regulation of the press,

16:01.025 --> 16:03.765
as you say, it's a, it's a very fine balance to regulate,

16:04.065 --> 16:07.005
to, to, have freedom of press,

16:07.465 --> 16:10.805
but also to regulate the press to make sure they don't,

16:11.545 --> 16:13.165
defame they don't invade privacy.

16:13.395 --> 16:15.925
They don't act wrongfully under their own codes

16:15.925 --> 16:17.045
of conduct, essentially.

16:17.425 --> 16:19.005
Um, and you may, you know,

16:19.005 --> 16:21.645
they looked at the Levison report in 2012.

16:22.345 --> 16:27.125
Uh, in, in that report, the author actually said,

16:27.665 --> 16:30.525
we should have orders that can be made, including orders

16:30.595 --> 16:32.485
that the press should have to apologize.

16:33.065 --> 16:34.205
It, it didn't fly.

16:34.225 --> 16:37.685
People, obviously, the press don't like being regulated in

16:37.685 --> 16:39.845
that way, don't like having those kind

16:39.845 --> 16:42.565
of orders being available against them.

16:43.105 --> 16:45.445
But what has developed over the last decade

16:45.985 --> 16:49.685
is voluntary schemes, self-regulatory schemes, schemes,

16:50.105 --> 16:51.565
and within those you can see

16:51.565 --> 16:54.005
that actually apology orders can be made.

16:54.775 --> 16:57.325
Inherently, the difference is that

16:58.105 --> 17:00.965
you voluntarily enter into a scheme and

17:00.965 --> 17:04.725
therefore you volunteer to submit to any orders made

17:04.725 --> 17:06.845
by arbitration or by the regulatory body.

17:07.265 --> 17:09.765
So you could say that it's not compelled,

17:10.195 --> 17:13.325
even though in the actual circumstances it might be

17:13.325 --> 17:14.405
made unwillingly.

17:14.945 --> 17:16.245
Um, so it,

17:16.305 --> 17:19.565
and that sort of regulation scheme for

17:19.745 --> 17:21.245
of the press is not unique.

17:21.455 --> 17:25.805
There are also examples of other professions such as,

17:25.995 --> 17:28.605
lawyers in Australia, into,

17:28.755 --> 17:30.685
they enter into self-regulatory schemes.

17:30.685 --> 17:32.605
They get the benefit of self-regulation,

17:32.985 --> 17:37.845
but within those schemes, they submit to, the body,

17:37.985 --> 17:40.925
the regulating body's power to make these sorts of orders.

17:41.705 --> 17:44.605
So that's, what you might call,

17:44.715 --> 17:48.285
voluntarily mandatory orders. Um,

17:48.745 --> 17:51.365
The third example, am I going okay with time,

17:52.825 --> 17:57.285
the third example, I, this is what I understand.

17:57.345 --> 18:02.085
See as an example of, saying to someone, you don't have

18:02.085 --> 18:04.565
to take on, you don't have to apologize,

18:04.825 --> 18:07.885
but if you want the benefits of the scheme that's on offer,

18:08.235 --> 18:09.405
then you have to submit.

18:09.625 --> 18:12.645
So it's a bit like the, the fir second example I gave.

18:12.985 --> 18:16.845
And, and this example comes from, a redress scheme.

18:17.355 --> 18:20.725
It's not uncommon at all for redress schemes to be set up

18:21.435 --> 18:24.525
with the hope that there will be,

18:26.605 --> 18:29.135
expressions of apology and regret and, and,

18:29.475 --> 18:31.895
and dialogue between the parties,

18:31.945 --> 18:35.455
where a address scheme applies, for some sort

18:35.455 --> 18:37.215
of institutional historic wrong.

18:37.795 --> 18:40.615
Um, an example in Australian law is under the Australian

18:41.055 --> 18:44.015
National redress scheme for institutional child sexual

18:44.105 --> 18:48.775
abuse, abuse, an institution was able, who wanted

18:48.775 --> 18:53.055
to finalize the claim with the victim of child sexual abuse,

18:53.105 --> 18:57.375
under the scheme was, required

18:57.795 --> 18:59.455
as a term of that not only to pay

18:59.455 --> 19:01.975
what compensation might be said to be owing,

19:02.715 --> 19:04.975
but was also required to offer

19:05.035 --> 19:07.375
and provide meaningful recognition

19:07.555 --> 19:11.895
of the institution's responsibility by way of apology,

19:12.275 --> 19:15.895
acknowledgement or regret if the survivor requests it.

19:16.675 --> 19:19.415
So if you want the benefit of the redress scheme

19:19.415 --> 19:23.095
to bring a matter to an end, you had to agree

19:23.875 --> 19:26.495
to give an apology if it was requested.

19:27.315 --> 19:31.655
So again, I see that as the law saying apologies are very,

19:31.795 --> 19:33.615
can be very important to a victim.

19:34.405 --> 19:37.095
They are entitled to it if they ask

19:37.115 --> 19:39.375
for it in this kind of, in this context.

19:42.105 --> 19:45.205
But obviously you could say it's not, it's not imposed

19:45.205 --> 19:46.805
because you don't have to go into the scheme.

19:48.275 --> 19:49.695
So that's my third example,

19:51.285 --> 19:53.545
and from those examples, I essentially

19:54.295 --> 19:55.985
have some key conclusions

19:56.085 --> 19:58.185
and, some suggestions of implications.

19:59.805 --> 20:04.265
Um, I guess my key conclusion is that in some,

20:05.125 --> 20:06.705
in some jurisdictions,

20:06.725 --> 20:09.825
and I don't, Australia is one in particular,

20:10.105 --> 20:11.145
I say there are others.

20:12.075 --> 20:16.225
Parliament has conferred power on courts to order an apology

20:16.285 --> 20:21.225
as a remedy in combination with damages for breaches

20:21.225 --> 20:23.185
of human rights or discrimination.

20:23.325 --> 20:26.145
And in, in some other areas,

20:28.965 --> 20:32.665
where there are, where the type of harm that's inflicted

20:33.685 --> 20:38.665
can, potentially be remedied

20:38.885 --> 20:40.745
by more than just a payment of money.

20:42.175 --> 20:44.435
So there are cases have been, and

20:44.815 --> 20:47.250
but it very much on the case.

20:47.745 --> 20:49.725
So that's one of the key conclusions

20:49.725 --> 20:51.165
that these things do happen.

20:51.335 --> 20:53.885
Audit apologies are made in some instances.

20:54.075 --> 20:57.445
There's even one case I know of in England,

20:57.495 --> 20:59.685
where there was discrimination within a school

21:00.425 --> 21:03.325
and in particular types of discrimination

21:03.905 --> 21:05.325
in the education system.

21:05.785 --> 21:07.725
The courts have said we can order an apology.

21:08.425 --> 21:11.245
So, you know, it's not, it just pops up here and there,

21:11.785 --> 21:15.965
but the, the, the common thread is that there is a view

21:15.965 --> 21:20.605
that it will provide, a more full remedy than might

21:20.605 --> 21:21.685
otherwise be available.

21:22.665 --> 21:27.205
Um, the other key conclusion is that even where the power

21:27.425 --> 21:29.325
to make an audit apology does exist,

21:29.665 --> 21:31.165
it will always be a rare

21:31.225 --> 21:35.045
or exceptional case where the court would order a respondent

21:35.345 --> 21:37.485
to apologize if they've made it known

21:37.555 --> 21:39.005
that they'd be unwilling to do so,

21:39.195 --> 21:41.245
even if they're found liable.

21:42.225 --> 21:44.085
Um, in those circumstances, of course,

21:44.145 --> 21:45.645
the damages award would be higher.

21:46.505 --> 21:49.645
Um, but it is, it is difficult for the court

21:49.645 --> 21:52.085
to make an order in the face of clear

21:52.955 --> 21:54.645
refusal to make that order.

21:55.505 --> 22:00.005
Um, and that's why I think it's useful to look at other ways

22:00.505 --> 22:05.325
of saying that a person is not being compelled to make

22:06.125 --> 22:10.545
an apology, but some of the same objects can be achieved

22:10.655 --> 22:14.345
through, either having voluntary schemes

22:14.445 --> 22:18.185
or making orders that have some of the vindicator qualities

22:18.245 --> 22:22.385
of an apology order without being an apology.

22:22.935 --> 22:25.065
That to me, is a welcome development.

22:25.085 --> 22:26.385
The, these different ways

22:26.405 --> 22:28.185
of looking at it's a welcome development

22:28.185 --> 22:32.425
because we know that apologies can be very powerful as a way

22:32.525 --> 22:37.145
of bridging, the, the, the gap resolving disputes

22:37.145 --> 22:40.465
or at least reaching some kind of resolution

22:40.535 --> 22:42.585
between parties in a dispute.

22:43.405 --> 22:47.905
Um, it also reinforces that in society apologies are seen

22:47.925 --> 22:51.425
to be very appropriate, where you have acted wrongfully,

22:51.425 --> 22:53.105
you've acted in a way that has caused harm

22:53.105 --> 22:54.265
and hurt to another person.

22:55.325 --> 22:59.615
But the advantage of these ways of,

23:00.135 --> 23:03.695
encouraging but not compelling apology in my view, is to be,

23:03.795 --> 23:08.215
is that they avoid some of the inherent problems

23:08.215 --> 23:11.935
that I've referred to of compelling someone who's unwilling

23:11.935 --> 23:13.975
to apologize to do so, and

23:13.975 --> 23:16.775
because of the consequences that means for other freedoms

23:16.875 --> 23:19.055
and, and what would happen if they default.

00:00 - I've been working, in the area of apologies in the law for, for quite a long time. and my work on audit apologies is within a broader inquiry about the role of apologies in the law. when I talk about the law, I'm referring to civil and criminal law that is domestic law rather

00:18 - than international law. I'm talking about law that we find in legislation and case law rather than say political apologies or apologies for historic injustices. So, very much matters of thoughts, and, and criminal matters. in this broad context, there's been increased recognition in Western legal systems in recent decades that apologies are important to the resolution of, legal disputes and to civil

00:45 - and criminal justice, beyond just what we know as the social, cultural, political significance of apologies. actually apologies have been recognized as significant to decision making areas in law, in criminal and civil law for a long time. Most people, I think, would know that in sentencing, if a defendant admits guilt, if they apologize, that that's a factor the court will take into account in assessing what sentence should be imposed.

01:13 - and so there's quite a lot of, understanding about, what an apology means in that setting, that it shows remorse. courts often look for more than just, I'm sorry, they actually want other evidence of remorse part, you know, that you've, that you really, understand what you've done and so on. I'm not gonna talk about sentencing or the criminal justice system in this talk because my research is,

01:37 - the context I've looked at particularly is in civil, and in civil cases, civil litigation apologies can also be seen as a mitigating factor. The law knows that if, in a defamation case, for example, or where there's been a breach of privacy or any tot, you know, if you wrongfully imprisoned a person, deprive them of their liberty, if you apologize, that is seen as reducing the hurt and the, the effect of your conduct.

02:03 - And the courts take that into account in assessing damages. So we know that apologies have the ability to reduce the amount of hurt and suffering that someone suffers, and that therefore that should be taken into account, by the courts. we also know that apologies have a longstanding role of purging contempt. So if you are in contempt of court and you apologize for the court, the court will then say,

02:28 - well, that the contempt is purged. So it all of that just establishes the background that, the law knows that apologies can have beneficial effects, can have the effect of reducing harm, damage loss, and so on. and reducing offense. at, there's also been quite a lot of, scholarship growing up in recent years with the growth of what we sometimes called alternative dispute resolution. People gonna mediation rather than litigating apologies have

02:59 - a very important role to play there because people acknowledge the people's feelings. They acknowledge, the indignity that people have experienced it. They acknowledge that they've done something wrong, and that can have a tremendous effect on reducing, the, the hurt, the anger, and can lead to settlement. not, you know, so, so we, we know quite a lot of these things, and there's been a lot written in that, in these areas, and it draws on research and literature

03:28 - and criminology in social and psychological sciences. now my, so we know a lot about apologies from the social and psychological sciences. my contribution in this field, in the context we're talking about, audit apologies, is very much through doctrinal research and analysis of legislation and cases, what the law says. but I do draw on psychology and my research for saying what the law should look at.

03:56 - What psychological research tells us is the benefits to a party, to litigation or a dispute of an apology. But there's also important work by philosophers as well, who say, well, it's not just a matter of how someone feels. We have to look at what is the, the goals we have as society in, in having certain types of orders. and some philosophical arguments would be very much opposed to the idea of ordering someone to apologize. So there's a lot of interest, a lot of interesting perspectives on this.

04:28 - Now, within this context, going right back to your question within this context, one discreet area concerns the circumstance in which the law provides for a court to order in a case before them, that a party that a wrongdoer, should apologize to a person. exceptionally it might happen in criminal matters, usually only when there's juveniles involved, but there are cases where it's happened in civil cases. And my work maps the circumstances in which the law

05:02 - provides for this. so they, although they're an uncommon order that are made for tort actions, they, they do exist. It's a judicial remedy. it's a bit like it's a mandatory injunction. Often it will, order that the apology be made. most often it'll be a public apology and most often it be, be ordered to be published. And so we start to see that the law is saying, you've done, you've done the wrong thing, you've acted unlawfully.

05:33 - it's important for the purposes and the, the, for the, the applicant in this particular case, or the claimant that they receive this apology. But we also think that it furthers the aims of the law for this to be made a public knowledge. and the best example of where this occurs, and possibly you could say that the area where it most often occurs anyway, is in anti-discrimination law

05:59 - or human rights law, where human rights legislation conver confers on a, per an individual, the right to go to the court and say, I have been the subject of unlawful discrimination or harassment, or vilification. Courts generally have the power to order compensatory orders such as damages. but in, in Australia and in in other, some other jurisdictions, in Canada, Hong Kong, some European countries, the courts say,

06:28 - in addition to compensation, we can also order an apology where that does occur. the, the aim of the order is, I guess it's twofold. It, it largely, the purpose is to provide a remedy to the claimant that they're seeking as a way of acknowledging the hurt and the grievance they feel as a, for the wrongdoing. But it's also, making it a, a matter of public interest to uphold the purposes behind that law

07:02 - to say that it's not okay to discriminate or to vilify people. And the law says that, there are, so these are the purposes, but I think it's important to bear in mind that, these, these orders aren't particularly common. They, they, they might be made by agreement. Once a party's found to have unlawfully discriminated, or even in a defamation case, they might say, well, if you find that I did the wrong thing,

07:27 - I'm happy to apologize. Where you, the, the rubber really hits the road is when a person refuses to apologize, even though they've been found to have, acted wrongfully. And so that's what, when you're talking about an audit apology, the, the most problematic is where the, there's an unwilling respondent who says, or dependent says, I won't. but there are case examples in discrimination law. There are case examples in various places in South Africa,

07:56 - Canada, Malaysia, Hong Kong, where they might be ordered even in defamation cases. Okay? But they are rare, and there's some practical reasons for that. Firstly, it won't serve any purpose to order an apology if the claimant doesn't want it. You know, we don't want people being told, well, we won't give any compensation in money form, but we'll give you an audit apology. Obviously that would be self-defeating if

08:19 - that wasn't something that the claimant was seeking. So we, we assume that as a claimant seeking an apology. But then there are other considerations for the court. a very important consideration, of course, is the need to balance the rights and freedoms that have been infringed by the, the respondent, against their own rights and freedoms of speech, of, of their free conscience. And depending on the jurisdiction, is the waiting between these freedoms, say in the US for example,

08:52 - with their first amendment, that a court's not gonna order a defendant to apologize. and whereas, in countries that have a charter of rights, they'll say it's a matter of balancing these rights and freedoms. And if the legislation makes it clear enough that that remedy is available, then the courts may well conclude that free speech has to, accommodate these other freedoms. There are other concerns.

09:19 - Many judges are concerned about ordering an apology, that in their view would then be insincere. that's where the psychological research is really interesting, because it says, I mean, if someone wants an apology and they know the other person's gonna give it through gritted teeth, they obviously don't care if it's insincere. They want it for other purposes, such as indication. and so those sorts of, you know, those concerns,

09:48 - I believe can be overstated the in insincerity argument, because really it's surely it's for the person who's receiving the apology to make that assessment. and there are problems enforcing it. What does a court do if a person won't apologize? You know, and there are answers to some of these questions, but these are the general concerns, the purposes of apology. I just wanna say a couple of things that leads into some of these other ways that courts are approaching it,

10:16 - because if you think that the important purposes of an apology is to acknowledge, wrongdoing, acknowledge the hurt and, that may have been caused by the wrongdoing, but also to vindicate people's rights and to offer them a form of compensation other than in money, then there's, there's quite a lot of arguments that can be made in support of those orders. the the case law developments

10:46 - that I have looked at in my most recent work, well, in a book chapter, published in 2021, was to try and try and understand what the courts are doing to recognize the kinds of orders that plaintiffs are looking for or claimants are looking for, without going quite so far as to ordering an apology. Sometimes it's a court. But other examples I've got are other things that, I see as signs that within the law

11:18 - and within society, we recognize that there are, benefits of apologies, but we don't like to order people to do them. So I've got three examples to give you, in answer to your question. the first example is in the area of discrimination law. So I've already explained that, the law in discrimination law, in some jurisdictions Australia, for example, courts have, it's quite clear

11:49 - that courts consider that they have the power, to make a, an apology order, but they won't always do that. when they're faced with a person who won't willingly make an order, the court is in a difficult position, they don't wanna make an order that's not going to be achieved, its end. and so in, in some racial vilification and racial discrimination cases, there are, examples where the federal court in Australia have ordered the

12:21 - publication of a corrective notice. So they order the respondent, the defendant in that case, to publish in a newspaper that they have been ordered to publish this corrective notice to say that they acted unlawfully. And, and what they did that was unlawful, say it may be racial vilification, for example, and that they, have to sh say that what they did was wrong. So it, it's, it's not a correction,

12:57 - like in defamation saying, I said, this person was employed as a lawyer. Actually, I was wrong. They employed as a doctor. It's not a correction in that sense. It's essentially correcting the, unlawful conduct in a sense. So, and that's one way where the party that's publishing the correction corrective notice is not saying, and I'm sorry, they're simply saying, I acted unlawfully

13:27 - and I'm publishing this because I was told to. So that was done in a case, where a newspaper, had, a, a broadcaster, it was a newspaper had published something that was found to be racially vil vilifying. so that's one case called Och and Bolt. in another case, in Watton and the Queensland Commissioner of Police, the judge looked at that option and decided that they would consider making a similar order,

14:00 - where they would be making it against the Commissioner of Police. But rather than a collect corrective notice, they said there would be a public statement that the commissioner would be ordered to publish. And it essentially saying, we, we did the wrong thing. and so, so this isn't some developments. in the most recent case, this year, a case called Kaplan in the state of Victoria, there was a claim made out in under the,

14:30 - federal Racial Discrimination Act. And the, the, the judge of the federal court in that case, chief Justice Mortimer, agreed with the applicant's that there should be an apology. And they agreed with the respondents that the proper person should be the state, the state of Victoria. It was a case involving racial discrimination by the Principal of a school against certain students. Now, the court didn't order

14:55 - that the principal should apologize. It did make orders that the state of Victoria should apologize. 'cause ultimately it was responsible for what happened in the school. But in that case, the court did say, so, these are the steps that need to be taken for this apology to occur. Basically said, go off and negotiate this apology. But the court also recognized, that one possible outcome of the negotiations might be

15:24 - that the court would not make an apology order. So it was pushing them to the table, telling them to sit down, sort something out in accordance with the judge's reasons, but just that step back and not saying as a foregone conclusion that the order would be made. So that, I think that's an interesting development consistent with what has been occurring in those cases. The second example, is one actually I've drawn on, developments in England, to, to, to give this

15:57 - as an example, and that relates to regulation of the press, as you say, it's a, it's a very fine balance to regulate, to, to, have freedom of press, but also to regulate the press to make sure they don't, defame they don't invade privacy. They don't act wrongfully under their own codes of conduct, essentially. and you may, you know, they looked at the Levison report in 2012. in, in that report, the author actually said,

16:27 - we should have orders that can be made, including orders that the press should have to apologize. It, it didn't fly. People, obviously, the press don't like being regulated in that way, don't like having those kind of orders being available against them. But what has developed over the last decade is voluntary schemes, self-regulatory schemes, schemes, and within those you can see that actually apology orders can be made.

16:54 - Inherently, the difference is that you voluntarily enter into a scheme and therefore you volunteer to submit to any orders made by arbitration or by the regulatory body. So you could say that it's not compelled, even though in the actual circumstances it might be made unwillingly. so it, and that sort of regulation scheme for of the press is not unique.

17:21 - There are also examples of other professions such as, lawyers in Australia, into, they enter into self-regulatory schemes. They get the benefit of self-regulation, but within those schemes, they submit to, the body, the regulating body's power to make these sorts of orders. So that's, what you might call, voluntarily mandatory orders. The third example, am I going okay with time, the third example, I, this is what I understand.

17:57 - See as an example of, saying to someone, you don't have to take on, you don't have to apologize, but if you want the benefits of the scheme that's on offer, then you have to submit. So it's a bit like the, the fir second example I gave. And, and this example comes from, a redress scheme. It's not uncommon at all for redress schemes to be set up with the hope that there will be, expressions of apology and regret and, and, and dialogue between the parties,

18:31 - where a address scheme applies, for some sort of institutional historic wrong. an example in Australian law is under the Australian National redress scheme for institutional child sexual abuse, abuse, an institution was able, who wanted to finalize the claim with the victim of child sexual abuse, under the scheme was, required as a term of that not only to pay what compensation might be said to be owing, but was also required to offer

19:05 - and provide meaningful recognition of the institution's responsibility by way of apology, acknowledgement or regret if the survivor requests it. So if you want the benefit of the redress scheme to bring a matter to an end, you had to agree to give an apology if it was requested. So again, I see that as the law saying apologies are very, can be very important to a victim. They are entitled to it if they ask for it in this kind of, in this context.

19:42 - But obviously you could say it's not, it's not imposed because you don't have to go into the scheme. So that's my third example, and from those examples, I essentially have some key conclusions and, some suggestions of implications. I guess my key conclusion is that in some, in some jurisdictions, and I don't, Australia is one in particular, I say there are others.

20:12 - Parliament has conferred power on courts to order an apology as a remedy in combination with damages for breaches of human rights or discrimination. And in, in some other areas, where there are, where the type of harm that's inflicted can, potentially be remedied by more than just a payment of money. So there are cases have been, and but it very much on the case. So that's one of the key conclusions

20:49 - that these things do happen. Audit apologies are made in some instances. There's even one case I know of in England, where there was discrimination within a school and in particular types of discrimination in the education system. The courts have said we can order an apology. So, you know, it's not, it just pops up here and there, but the, the, the common thread is that there is a view that it will provide, a more full remedy than might

21:20 - otherwise be available. the other key conclusion is that even where the power to make an audit apology does exist, it will always be a rare or exceptional case where the court would order a respondent to apologize if they've made it known that they'd be unwilling to do so, even if they're found liable. in those circumstances, of course, the damages award would be higher.

21:46 - but it is, it is difficult for the court to make an order in the face of clear refusal to make that order. and that's why I think it's useful to look at other ways of saying that a person is not being compelled to make an apology, but some of the same objects can be achieved through, either having voluntary schemes or making orders that have some of the vindicator qualities of an apology order without being an apology. That to me, is a welcome development.

22:25 - The, these different ways of looking at it's a welcome development because we know that apologies can be very powerful as a way of bridging, the, the, the gap resolving disputes or at least reaching some kind of resolution between parties in a dispute. it also reinforces that in society apologies are seen to be very appropriate, where you have acted wrongfully, you've acted in a way that has caused harm and hurt to another person.

22:55 - But the advantage of these ways of, encouraging but not compelling apology in my view, is to be, is that they avoid some of the inherent problems that I've referred to of compelling someone who's unwilling to apologize to do so, and because of the consequences that means for other freedoms and, and what would happen if they default.

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