Biography
Member of the Australian Parliament
Elected Member for Denison—House of Representatives 11 July 1987
Executive Government
Parliamentary Secretary for Pacific Island Affairs 3 December 2007
Attorney General 1 April 1993 to 27 April 1993
Minister for Justice 24 March 1993 to 11 March 1996
Lawyer—Barrister
Appointed Senior Counsel (Tasmania) 25 June 2004
New South Wales—admitted 20 December 1985
Papua New Guinea—admitted 7 June 1983
High Court of Australia—enrolled 15 May 1980
Tasmania—admitted 29 February 1980
Academic
Adjunct Professor of Law, Faculty of Law, QUT 1 July 2007
Former employment
Principal Solicitor, Aboriginal Legal Service Ltd (NSW)
Legal Counsel, Ombudsman Commission (Papua New Guinea)
Dean, Faculty of Law (University of Papua New Guinea)
Crown Counsel (Tasmania)
Part I Executive Government
Attorney General (1993); Minister for Justice (1993—1996)
In 1993 Duncan Kerr was appointed Commonwealth Attorney General and Minister for Justice. He is the only Tasmanian who has held office as the first law officer of the Commonwealth. He held office as Attorney only for a short period (until the appointment of the Hon Michael Lavarch MP) but remained Minister for Justice for the life of the Keating Government.
As Minister for Justice Kerr had carriage of the Keating Government’s reform agenda for the legal aid system introduced by the Justice Statement. Kerr instigated major reforms in copyright and administrative law. Within the Attorney General’s Department he had portfolio responsibility for criminal law, evidence law, copyright, bankruptcy, administrative law, legal aid, law enforcement and for the operation of the National Crime Commission.
Kerr introduced and secured passage of the Commonwealth Evidence Act 1995 and the Criminal Code Act 1995. He proposed and secured the passage of legislation to counter child sex tourism and comprehensively restructured Commonwealth law enforcement arrangements.
Shadow Minister (1996—2001)
Duncan Kerr was a shadow minister for five years holding the portfolios, at different and sometimes overlapping times, of Immigration; Population and Immigration; Environment; Arts; and, Justice and Customs).
Part II Legal practice
The landmark High Court case Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 has been described as one of the seven most far-reaching and influential of the High Court’s decisions on constitutional matters in the past one hundred years (Crispin Hull, The Canberra Times High Court Centenary Issue 10-11).
Duncan Kerr acted as leading counsel for the successful applicant. The decision in Plaintiff S157 cemented the availability of judicial review of Commonwealth administrative decisions.
Writing in the Australian Institute of Administrative Law Forum (No. 53) Robert Lindsay noted that Plaintiff S157/2002 ‘will rank with cases such as the Boilermakers’ case, theEngineers’ case and the Australian Communist Party case as a significant development in the constitutional jurisprudence of Australia’.
In MIMIA v Lobo (High Court, 13 Feb 2004) Kerr was successful in opposing the Commonwealth’s special leave application seeking to wind back the impact of that decision by cutting down the scope of jurisdictional error.
Duncan Kerr has acted as counsel in the Family Court of Australia, the Supreme Court of Tasmania, the District and Supreme Courts of New South Wales and the National and Supreme Courts of Papua New Guinea. He has appeared regularly in Commonwealth administrative law proceedings before the Administrative Appeals Tribunal and the Federal Court. He has acted in a number of matters before the Resource Planning and Development Commission and the Resource Management and Planning Appeal Tribunal (Tas).
Before entering the Federal Parliament Duncan Kerr represented Tasmania in trade and administrative law proceedings in the United States of America (see below).
Other than when he has held office as a member of the Executive, he has remained available (subject to time constraints and professional considerations) to accept instructions while a Member of Parliament.
Duncan Kerr took silk in June 2004.
Selected cases in which Duncan Kerr has acted as counsel:
Smith v Commissioner of Stamp Duties [1981] Tas R 14 (Everett J-stamp duties);
Reg v City of Launceston [1980] Tas R 1 (Crawford J-certiorari);
Brown v Itchins [1980] Tas R 137 ( Green CJ, Neasey and Cosgrove JJ-nature of a ‘reasonable belief’ in criminal proceedings);
R v Arnol [1980] Tas R 222 (Everett J—drunkenness as defence to rape);
Motor Accidents Insurance Board v O’Neill [1981] Tas R 113 (Neasey J-claim by Motor Accident Compensation Board—whether debt or liquidated demand);
Attorney General (Vic) ex rel Black v Commonwealth (1981) 146 CLR 559 (Barwick CJ, Gibbs, Stephen, Mason, Murphy, Aitkin and Wilson JJ-state aid to non-government schools);
The Closer Settlement Board v Thomas [1982] Tas R 179 (Neasey, Nettlefold and Cosgrove JJ-principles governing dismissal of action for want of prosecution);
Hematite Petroleum Pty Ltd v Victoria (1983) 151 CLR 599 (Full Court, High Court of Australia—excise duties);
Masive v Okuk [1985] PNGLR 105 (Pratt J-PNG electoral petition);
SCR No 2 of 1985 Re Masive v Okuk [1985] PNGLR 263 (Kidu CJ, Pratt, Amet and Woods JJ—PNG electoral laws);
Ombudsman Commission of Papua New Guinea v Donohoe [1985] PNGLR 438 (Pratt, Amet and Woods JJ-judicial review);
Davis v Commonwealth (1986-7) 68 ALR 18 (Gibbs CJ—constitutional law—inherent powers of nationhood--resisting application to strike out pleadings);
Rimbink Pato v Umbu Pupu [1986] PNGLR 310 (Woods, Los and Wilson JJ-appeal against dismissal of defamation case);
Patten v Justice of the Peace, Redfern Court (1986) 22 A Crim R. 94 (Foster J-quashing of search warrants);
Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 (Full Court High Court of Australia—purported removal of judicial review—Constitution s 75 (v)); and
Commonwealth v Wood (2006) 148 FCR 276 (Heerey J—constitutional law—judicial power—Chapter III, state courts and state tribunals).
Part III—Academic and Professional
In July 2007 Duncan Kerr was appointed as Adjunct Professor, Faculty of Law, QUT. He has contributed a range of DEST-rated and other publications and has been an expert guest lecturer in the Faculty’s program.
He is a regular contributor to academic and professional journals on matters of Australian constitutional, administrative, criminal and international law. Recent examples include:
Kerr D., ‘Public Interest Immunity; Power of the Houses of Parliament and Committees to require information’ (1999) 18 Aust Bar Rev 283-284;
Kerr D., ‘Mr Egan and the Legislative Council: Federal Implications’ (2000) 19 Aust Bar Rev 67-88;
Kerr D. ‘Marriage of True Minds? Trends of Resistance and Consistency in Administrative Law’ in Creyke and McMillan (eds) Administrative Law, the essentials AIAL 2002, 19-26;
Kerr D., ‘Deflating the Hickman Myth: Judicial Review after Plaintiff S157/2002 v The Commonwealth’ (2003), 37 AIAL Forum 1-19;
Kerr D. and Williams G., ‘Review of executive action and the rule of law under the Australian Constitution’ (2003) 14 PLR 219-233;
Kerr D., ‘Reclaiming equality in a globalised world’ in Horton and Patapan (eds) Globalisation and Equality 2004 Routledge London 77-94;
Kerr D., ‘Australia’s legislative response to terrorism: Strengthening arbitrary executive power at the expense of the rule of law’ (2004) 29(3) Alt LJ 131-134;
Kerr D., ‘Privative Clauses and the Courts; Why and how Australian Courts have resisted attempts to remove the citizen’s right to judicial review of unlawful executive action’ (2005) 5(2) QUTLJJ 195-215;
Kerr D., ‘Developers and Politics don’t mix’ (2007) 10 Public Administration Today 14-15;
Kerr D., ‘State Tribunals and Ch III of the Constitution’ (2007) 31 MULR 622-645; and
Kerr D., ‘The Red Queen’s Law; Judicial Review and Offshore Processing after Plaintiff S157/2001’ (2007) UTSLRev (publication pending)
Kerr is an occasional lecturer in constitutional, administrative and criminal law in other tertiary institutions and professional organisations. These have included CLE accredited programs in New South Wales, Queensland and Victoria.
Duncan Kerr delivered the Victorian Criminal Bar Association’s “Advocating for Justice” annual lecture (2003) and has been a keynote speaker at events such as the AIAL 2005 Administrative Law Forum Administrative Law Horizons, the National Judicial Conference of Australia Confidence in the Courts Conference (2007) and the University of New South Wales Gilbert + Tobin Centre of Public Law 2007 Constitutional Law Conference.
Kerr is a member of the Course Advisory Committee (CAC) for the sociology program, School of Sociology and Social Work, University of Tasmania.
He has reviewed legal books for The Age (Victoria) and Law Letters the journal of the Law Society of Tasmania.
Formerly Duncan Kerr was Dean of the Faculty of Law, University of Papua New Guinea and during that time authored two legal texts and several papers—see Part IV for detail.
He has published two non-legal books; Reinventing Socialism (ed) Pluto Press (1992) and Elect the Ambassador, Building Democracy in a Globalised World Pluto Press (2001) and has a chapter in Horton and Patapan Globalisation and Equality Routledge 2004.
Over the past two decades Kerr has spoken at conferences on current issues and has contributed articles and opinion pieces to Tasmanian and national newspapers and on-line journals.
Part IV—Previous Employment
Crown Counsel, Tasmania (1980—1983).
Initially apprenticed to Roger Jennings QC SG, Duncan Kerr had carriage of constitutional litigation on behalf of the Tasmanian government and appeared as counsel for Tasmania before the High Court of Australia e.g. Hematite Petroleum Pty Ltd v Victoria (1983) 151 CLR 599. He prosecuted criminal trials and appeals and conducted civil litigation and appellate work for the Crown in the Supreme Court of Tasmania. For reported examples see R v Arnol [1980] Tas R 222 and The Closer Settlement Board v Thomas [1982] Tas R 179.
Duncan Kerr represented the State of Tasmania in the United States of America in an action under theAdministrative Procedure Act (US). He undertook the initial research, filed the application and then travelled to the US where he engaged Washington DC law firm Cleary Gottlieb Stein and Hamilton lawyers as local counsel. The outcome of the case overturned a US regulation prohibiting the purchase of Australian poppy straw by United States companies that otherwise would have destroyed the infant Tasmanian opium alkaloid industry.
Dean/Lecturer, Faculty of Law, University of Papua New Guinea (1983—1985). Private Practice (1983—1985)
Duncan Kerr lectured in constitutional and administrative law at UPNG. He also had a right of private practice. In that capacity he advised private and government clients and appeared as counsel in the National and Supreme Court of Papua New Guinea in electoral, constitutional, tort and contract cases. A number are reported in the PNGLR series.
During his time at UPNG he published two books (The Annotated Constitution of Papua New Guinea (with Brian Brunton) UPNG Press 1985 and Essays on the Constitution (eds) for the Tenth Independence Anniversary Advisory Committee 1985) and several monographs including Criminal Practice and Procedure: Preparing for Trial for the Faculty of Law.
Legal Counsel Ombudsman Commission of Papua New Guinea (1983—1984).
The Ombudsman Commission (PNG) is a body that combines the traditional role of ombudsman with the role of an anti-corruption commission. After the Commission lost its legal counsel following unexpected resignations Kerr became the Commission’s Legal Counsel conjointly with his University post. He held the position for about six months while new staff was recruited. He advised and acted in Leadership Code (anti-corruption) matters and in relation to general administrative law issues.
Principal Solicitor, Aboriginal Legal Service NSW (1986)
While Principal Solicitor Duncan Kerr supervised 20 employed lawyers, personally conducted criminal trials and undertook civil and appellate litigation including appearing before the High Court in Davis v Commonwealth (1986-7) 68 ALR 18.
Part V—International Law and Human Rights
As an executive member of the International Commission of Jurists (Australian Section) Kerr led the third (2002) ICJ/Refugee Council of Australia mission to Papua New Guinea to prepare a report on the issue of refugees and border crossers from West Papua. Other mission members were the Hon Elisabeth Evatt QC, Judge John O’Meally and Elisabeth Biok from the ICJ and Margaret Piper representing the Refugee Council of Australia.
He has been president or vice-president of the United Nations Association of Australia (Tasmanian Section) since 2000. Kerr attended the UN General Assembly as a Parliamentary Adviser (September/October 2006) and the UN Framework Convention on Climate Change, Kyoto, Japan (December 1997). He is a long-standing member of Amnesty International, A Just Australia and Shelter.
Part VI—
Other Parliamentary and Community Service
Duncan Kerr has served as chair, Inter-governmental Committee, National Crime Authority (1993—1996); member, House of Representatives Legal and Constitutional Affairs Committee (1987—1993; 1996—2007); member, Joint Select Committee on Corporations Legislation (1988—1989); deputy chair, Joint Committee on the (National Crime Authority) Australian Crime Commission (1998—2007) and the Joint Committee on (ASIO, ASIS and DSD) Intelligence and Security (2004—2007). He was secretary, ALP Caucus Legal and Constitutional Affairs Committee 1987—1993.
In Opposition Kerr initiated private member’s Bills on legal issues including a Bill for an Act to amend the Parliamentary Privileges Act 1987 (2005) and a Bill for an Act to establish the Parliamentary (Judicial Misbehaviour or Incapacity) Commission (2005).
He was chair of the House of Representatives’ Aboriginal and Torres Strait Islander Affairs Committee (1990—1992) and a member of various other House and Joint Parliamentary Committees including Privileges, Family and Community Affairs, Environment, Public Accounts, Corporations and Securities and Migration. Between 1989 and 1992 Kerr served as chair of the Joint Commonwealth and State Governments’ Taskforce on Tasmanian Employment (TASPACT).
He was a member of the Tasmanian ALP state executive/administrative committee 1976—80, 1993—6 and 1998—2002, treasurer 1980—1982, vice president 1996—1997 and served as a member of the national executive of the Australian Labor Party from1998—2004.
Between 2002—2007 Kerr was a national convener of Parliamentarians for Drug Law Reform and a member of the Tasmanian Community Alliance which was established to campaign for an end to clear-felling Tasmania’s old-growth forests.
Prior to entering Parliament Kerr founded the Tenants’ Union of Tasmania (1975). He was a member of the Royal Hobart Hospital Board between1982—1983 and a former President, Tasmania University Union (1974) and Chairman, Student Association (TCAE) (1975).
Duncan Kerr also holds a degree in Social Work (1977) and has lectured in social psychology (TAFE; 1977, 1980-82).
He is a former prison visitor and honorary probation officer (Tasmania).
Duncan Kerr has given long service as executive member/ patron of the Tasmanian Deaf Society and the Tasmanian Environment Centre and is a member of many other Tasmanian community organisations.