AUSTRALIAN LAWYERS AND SOCIAL CHANGE
(AUSTRALIAN NATIONAL UNIVERSITY)
WELCOMING ADDRESS
by:
Justice Ronald Sackville*
National Museum of Australia, Canberra 22 – 24 September 2004
*Judge, Federal Court of Australia
It is my great honour, as one of the few surviving participants in the 1974 Australian
Lawyers and Social Change Conference, to welcome you to this gathering on the same theme. The two conferences, although thirty years apart, share characteristics in common, other than their name. One is a stellar line-up of presenters and commentators. (I can plausibly deny any implicit element of self-congratulation in that comment, since a re-reading of Australian Lawyers and Social Change 1, which published the papers and commentaries from the 1974 Conference, confirms that I was neither a presenter nor a commentator, but merely a participant in the discussion, playing the role of a youthful serial pest.)
Consider some of those making presentations at the 1974 Conference. The opening paper, ‘ The Most Dangerous Branch? The High Court and the Constitution in a
Changing Society’ 2 was delivered by Gareth Evans, then a not so humble senior
lecturer in law. It is true that in 1974 he was well on the path that led to the glittering
prize of high political office, but he still had only one Gareth to his name.
The first commentator on Gareth Evans’ plea for a more policy oriented constitutional
jurisprudence in the High Court was one William Deane QC, who appeared to accept
cheerfully Gareth Evans’ description of practising lawyers as an ‘essentially narrow
profession’. 3 Mr Deane, however, was quite unable to accept Gareth Evans’ regret
that one could not find in the pages of the Commonwealth Law Reports ‘the racy
dogmatism that is so characteristic of the United States Supreme Court’. 4 Some might
1 A.D. Hambly and J.L. Goldring (eds.), Australian Lawyers and Social Change , (1974: Law Book Company, Sydney) (‘ Australian Lawyers ’). 2 Id , 13. 3 Id , 76. 4 Id , 77.
2 argue that in his subsequent judicial career Sir William Deane, in cases like Mabo 5
and Leeth 6, managed to overcome admirably his initial reluctance to endorse racy
dogmatism. Of course, Sir William achieved his own version of social change by his
transformation into a potentially dangerous radical, but that story primarily concerns
Chapter II of the Constitution rather than Chapter III.
Sir John Kerr, the Governor General at the time, was entrusted by the then Prime
Minister of Australia, a certain Mr Whitlam, to present a paper to the Conference in
his stead. He did so by presenting a paper ominously entitled ‘ Australian Law and
Lawyers: Instruments or Enemies of Social and Economic Change ?’. Sir John wisely
warned against the dangers of ‘tear[ing] ourselves to pieces wrangling over social and
economic questions.’ 7 As you know, Sir John did his bit to promote social cohesion
in Australia just under fifteen months later, thereby giving a definitive answer to the
question he had posed at the Conference.
The aim of the 1974 Conference was to consider the extent to which the law and
lawyers can and should be instruments for promoting social change. It was a
propitious time to explore this theme. The reformist (some were unkind enough to
say reckless) Whitlam Government had just survived the double dissolution election
of May 1974. What Professor Mauro Cappelletti described as the first of three waves
of the access to justice movement had begun in Australia. 8 Commentators pointed to
the need for governments to accept responsibility for funding legal aid services in
5 Mabo v Queensland (No. 2) (1992) 175 CLR 1. 6 Leeth v The Commonwealth (1992) 174 CLR 455. 7 Australian Lawyers , 8. 8 M. Cappelletti and B. Garth (eds), Access to Justice, vol 1 (“A World Survey”) (1978: Sijthoff and Noordhoff); M. Cappelletti, ‘Alternative Dispute Resolution Processes within the Framework of the World-Wide Access-to-Justice Movement’ (1993) 56 MLR 282.
3 order to dismantle the economic, social and psychological barriers preventing disadvantaged groups and individuals from obtaining legal advice and representation.
Responding to these concerns, the Attorney-General, Lionel Murphy had just established the Australian Legal Aid Office (ALAO), thereby recognising for the first time Commonwealth responsibility to fund and provide legal aid services. 9 The
expansion of government-funded legal aid programs was seen by many not merely as
a means for poor people to protect their rights and interests, but as an opportunity to
use the legal system to bring about significant social change. The United States
experience, most notably Brown v Board of Education 10 (decided in 1954, almost
exactly 20 years before the Conference), suggested that test cases could challenge
oppressive or unfair practices by governments and corporations. Even if injustices
could not be prevented through litigation, they could be highlighted and legislators
thereby stirred to remedial action. The reform process would be assisted by
permanent law reform agencies such as the Australian Law Reform Commission,
which commenced business in May 1975 under the chairmanship of a promising
young lawyer, Michael Kirby. 11
In 1974, Australia was also on the threshold of legislative changes that have
undeniably had a profound impact upon the legal system. The Trade Practices Act
1974 , combining consumer protection measures with a revitalised competition policy,
was about to be enacted. Proposals were current for the regulation of the securities
9 The ALAO was established within the Attorney-General’s Department as a non-statutory agency replacing the Legal Service Bureau, pursuant to the Attorney-General’s directive of 25 July 1973. 10 Brown v. Board of Education of Topeka 347 U.S. 483 (1954), which held that segregated public schools violated the Equal Protection clause of the Fourteenth Amendment. 11 Established under the Law Reform Commission Act 1973 (Cth).
4 industry and capital markets. The Family Law Act 1975 , which introduced a federal system of family law full of reform, hope and promise, was enacted the following year. The use of Australia’s treaty obligations as a vehicle for expanding
Commonwealth legislative power was about to be exemplified by the enactment of the Racial Discrimination Act 1975, incorporating into Australian domestic law the substance of the International Convention on the Elimination of All Forms of Racial
Discrimination . A new federal administrative law was on the horizon. 12 Even a new
Federal Court of Australia was within contemplation although, like the new administrative law, its establishment fell to the Fraser Government after the demise of the Whitlam Government. 13
Given the prevailing political climate, ‘progressive’ lawyers might have been forgiven for thinking that they were at the forefront of social change and that the traditional view of the functions performed by lawyers and judges required a thorough overhaul.
Gareth Evans’ paper provided some support for this view, urging the High Court to articulate and apply its value preferences more clearly with an eye towards keeping the Constitution in step with social change. His policy preferences, as some commentators were quick to point out, strongly favoured enhancing the powers of the national Government at the expense of the States. Most seemed to think that this was rather provocative stuff, although Hal Wootten somewhat damped the smouldering fires of Gareth’s originality (as Sir Owen Dixon might have said 14 ) by suggesting that
the paper was:
12 Administrative Appeals Tribunal Act 1975 (Cth); Ombudsman Act 1976 (Cth); Administrative Decisions (Judicial Review) Act 1977 (Cth). 13 Federal Court of Australia Act 1976 (Cth). 14 Sir Owen Dixon, ‘The Law and the Constitution’ (1935) 51 LQR 390, 397.
5 ‘fairly conservative because, fundamentally, it embodied the approach that Professor Stone taught me as a law student more than thirty years ago’ .15
Not everybody thought that lawyers should be at the forefront of social change.
Professor Geoffrey Sawer asked ‘Who Controls the Law in Australia?’ 16 He
answered his own question by suggesting that lawyers were much less important to
the processes of social change than they liked to think. On the whole, he thought that
this was a rather good thing and that lawyers should concentrate on lawyers’ law to
which they were well suited both by temperament and training.
Professor Julius Stone, in his inimitable style, pointed to both the creative choices
open to judges and the constraints imposed upon them by the obligation to engage in
reasoned analysis of legal precepts and of the policies underlying those precepts. 17 In
particular, he argued, lawyers cannot hide behind apparently objective concepts to
avoid talking about justice. But he did not give great encouragement to those who
saw lawyers and the legal system as leading the fight against poverty, societal
inequality and entrenched injustice.
Reflecting the spirit of the times, two of the major papers presented at the Conference examined the role of lawyers in the regulation of economic activity. Professor Don
Harding argued the case for lawyers playing a key role in the coming regulatory world. 18 In a thesis that has resonance thirty years later, he expressed scepticism
about the Chicago School’s elevation of the concept of economic efficiency to
‘absolute priority’, which he illustrated by reference to Richard Posner’s then recently
15 Australian Lawyers , 356. 16 Id , 118. 17 ‘Reflections on the Seminar’, id , 376. 18 ‘Lawyers and the Regulation of Economic Activity’, id , 183.
6 published work ‘ Economic Analysis of Law ’19 . Professor Maureen Brunt, notwithstanding her position as an eminent Professor of Economics, thought that lawyers had a useful role to play, in conjunction with economists, in promoting competition policy. 20 But perhaps she was just being cautious or, alternatively, polite.
Dr Joe Isaacs of the Conciliation and Arbitration Commission spoke of that lawyers’ playground, the industrial relations system. 21 Nobody seemed to think that the
essentials of the Arbitration system, with its emphasis on collective bargaining, would
change much. Perhaps they were influenced by the fact that some participants were
prevented from arriving at the Conference on time because of an airline strike: an
event that Australians had come to expect at regular intervals, especially Christmas
and school holidays. None of the participants in the Conference foresaw the role that
the then President of the Australian Council of Trade Unions, R J Hawke, would play
some years later in explaining to pilots the error of their ways, in the process
transforming labour relations in Australia. 22
The papers and discussion at the Conference made an important contribution to issues
that are still debated thirty years later. It is difficult from a distance of 30 years to
appreciate fully the significance of the emphasis placed on the relationship between
the legal system and social change. Obviously enough, however, the topics chosen
for discussion were not meant to be an exhaustive catalogue of the reform agenda for
19 R.A. Posner, Economic Analysis of Law , (1973: Little Brown, Boston). 20 ‘Lawyers and Competition Policy’, Australian Lawyers, 266. 21 ‘Lawyers and Industrial Relations’, id, 321. 22 See: G. Smith, ‘From Consensus to Coercion: The Australian Air Pilots Dispute’ (1990) 32 Journal of Industrial Relations 238; K. McEvoy and R. Owens, ‘The Flight of Icarus: Legal Aspects of the Pilots’ Dispute’ (1993) 3 Australian Journal of Labour Law 87; Ansett Transport Industries (Operations) Pty Ltd v Australian Federation of Air Pilots (No.2) [1991] 2 VR 636.
7 the final quarter of the twentieth century. It is no criticism of the organisers to observe that, one lesson to be learned from the 1974 Conference would seem to be that lawyers are not particularly good at identifying or predicting social change, even in areas that have a profound impact on what Geoffrey Sawer would have regarded as
‘lawyers’ law’. Like the dog that did not bark in the night, the limitations of the debate can be seen by what was not discussed.
In retrospect, it is striking that only three of the 50 participants at the 1974 Conference were women: Professor Brunt, Elizabeth Evatt (then Deputy President of the
Arbitration Commission) and Jane Levine, then a Lecturer in Law at the University of
New South Wales. The only specific reference to the aspirations of women came with Julius Stones’ substitution of the word ‘fertile’ for ‘virile’, on the somewhat spurious ground that ‘Women’s Lib’ forbade the use of the latter. Four years after the publication of ‘ The Female Eunuch’ 23 , Gareth Evans bemoaned the reluctance of
governments ‘to even contemplate the appointment of the kind of men of affairs who
have so often been elevated to the United States Supreme Court’. 24 Probably the most profound social change in Australia since the 1970s has concerned the struggle by women to achieve social, political and economic equality. Yet the concept of gender equality, or the contribution that lawyers could make to it, received no mention at all.
The only reference to the historical injustices inflicted on indigenous people in
Australia was made, and then only obliquely, by HC (‘Nuggett’) Coombes who, as
Chancellor of the Australian National University, made the opening remarks at the
23 G. Greer, The Female Eunuch , (1970: MacGibbon & Kee, London). 24 Australian Lawyers , 43.
8 Conference. 25 He suggested that more work should be done on the nature and content
of Aboriginal law and the means by which it could be recognised by the wider
society. Mr Coombes did not, however, argue for the recognition of Aboriginal land
rights or what is now known as native title. He even felt obliged to apologise to the
Conference for taking up time to ride his own ‘hobby-horse’. 26
None of the other papers or commentaries took up Mr Coombes’ suggestion. While
Mabo (No. 2) was not decided by the High Court until 1992, eighteen years after the
Conference, Mr Justice Woodward’s report recommending the grant of Aboriginal land rights in the Northern Territory had been presented to Parliament in April 1974.27
Even so, the question of native title that was to propel the High Court into the centre
of the political arena in the 1990s received no mention at the 1974 Conference.
With the clarity of hindsight, the examples of missing issues can be multiplied. The
Conference said nothing about the likely consequences of more liberal immigration
policies (after all, the White Australia Policy had finally been abandoned only a
decade earlier). Much less did the participants foresee the profound significance for
the international community and for Australia in particular of mass movements of
people claiming the protection of the Convention relating to the Status of Refugees.
Nor was there discussion about alternatives to the court system, either in relation to
alleged criminal conduct or to the resolution to civil disputes. Concepts such as
alternative dispute resolution and restorative justice, now a familiar part of the legal
lexicon, escaped attention. So did environmental issues.
25 ‘Opening Remarks’, id , 1. 26 Id , 4. 27 Aboriginal Land Rights Commission (Chairman A.E. Woodward), Second Report, April 1974 , (1974: AGPS, Canberra).
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Although the role of lawyers in economic regulation was closely scrutinised, nobody apparently saw that an equally, if not more important issue was to be the role of lawyers and the court in economic deregulation . By the mid 1970s, the taxation system had been brought into disrepute largely because of the Barwick Court’s now discredited approach to the construction of tax legislation (usually described as literalist, but in fact anti-revenue). 28 Yet the topic was not mentioned, despite the centrality of a fair and efficient taxation system to social and economic justice.
Even the extensive discussion of constitutional adjudication in the High Court did not anticipate what have proved to be the great constitutional developments of the last three decades. Since cases like Koowarta 29 and Tasmanian Dams 30 established the breadth of the external affairs power, Australian constitutional law has been less concerned with the distribution of legislative powers between the Commonwealth and the States than with the constraints on governmental power and the protection accorded to the judicial power of the Commonwealth by Chapter III of the
Constitution. Who in 1974 could have anticipated that the High Court would construe a State law prohibiting the use of insulting words in a public place as limited to words provoking the fear of violence in the listener, because to do otherwise might well infringe the freedom of political communication implied by the system of representative government created by the Constitution? 31 Who in 1974 could have
anticipated that the High Court would be willing to strike down a privative clause
28 R. Sackville, ‘Avoiding Tax Avoidance: The Primacy of Part IVA’, paper presented at the Taxation Institute of Australia Victorian/Tasmanian State Convention, 9-11 September 2004, Launceston, Tasmania. 29 Koowarta v Bjelke-Petersen (1982) 153 CLR 168. 30 Commonwealth v Tasmania (1983) 158 CLR 1. 31 Coleman v Power [2004] HCA 39.
10 curtailing judicial review of migration decisions, at least if it was interpreted in the conventional manner intended by its sponsors? 32 Who in 1974 could have anticipated
that a State law requiring a State court to order the detention of a named person, if it
was satisfied that the person would commit a serious act of violence, would be struck
down as incompatible with Chapter III of the Constitution? 33
The program for the 2004 Conference is an admirable one, addressing a range of
issues of enduring importance. There is nonetheless one thing we can be sure of: the
topics that have been selected for discussion, important as they are, will not cover all
the significant social changes that will shape the legal system over the next quarter of
a century or so.
Some such areas can be identified immediately. The most obvious is the change of
community attitudes associated with fear of international terrorism. This has
generated an acute conflict between the perceived needs of national security, on the
one hand, and individual freedoms hitherto taken for granted in Australia, on the
other. The anxieties afflicting the Australian community are far removed from the
relatively tranquil environment facing Australia in August 1974, even though a full-
scale war in the Middle East had taken place less than a year earlier and the United
States’ defeat in Vietnam was not yet complete. The pressures to curtail civil
liberties, both domestically and in international forums, generate formidable
challenges for the legal system. Particularly is this so when the greatest threat to
western societies lies not in the occasional car bomb or suicidal attacks on children –
32 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. 33 Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51.
11 terrible as these events are – but in the by no means fanciful prospect of a terrorist inspired nuclear cataclysm.
A second obvious area of social change that must continue to be addressed by the legal system is that brought about by the new technology. The world of instant electronic communications offers boundless possibilities for good; it also allows evil- doers to broadcast their acts of barbarity immediately to anyone with access to the internet. The boundaries of intellectual property are being stretched beyond recognition as the corporations holding copyright, patents and other intellectual property rights – far removed from the paradigm of the lonely inventor or author – seek to exploit the fruits of intellectual endeavour (usually someone else’s). 34 A balance must be struck between acceding to the ever-increasing demands of the holders of intellectual property rights, often aided by powerful trading blocs and international organisations, and values such as freedom of expression and the freedom to build on novel ideas. The contest between intellectual property rights and competition policy will be one of the more important legal battlegrounds in the early twenty-first century.
Nothing I have said is intended to diminish the significance of the subjects to be addressed at this Conference. I mention only two in which I happen to have a particular interest. The topic of ‘Poverty and Social Justice’ is just as important now as it was at the time the Poverty Commission reported to the Australian Government in 1975. 35 Since that time there have been important reforms in areas of substantive
34 See W. Cornish, Intellectual Property: Omnipresent, Distracting, Irrelevant?, Clarendon Law Lectures, 2002. 35 First Main Report of the Australian Government Commission of Inquiry into Poverty (Professor R.F. Henderson), Poverty in Australia (1975: AGPS, Canberra); Second Main
12 law such as residential tenancy law, consumer credit, debt collection and consumer protection, as well as structural changes in the delivery of legal aid services. But the problems affecting many non-English-speaking people the homeless, many indigenous communities and other disadvantaged groups are still acute, reflecting the continuing inequalities in Australian society.
Similarly, the subject of access to justice poses fundamental issues concerning the workings of the legal system, including the courts.36 Some have argued that the
Access to Justice movement is into a fourth wave, represented by the application of competition policy to the legal profession. 37 Whatever the value of the imagery of successive waves in this context, it is clear that attainment of the goals of the movement have proved elusive. Despite structural changes, Governments have cut back on legal aid funding; legislation has repealed procedural innovations designed to facilitate certain class actions; judicial discretion in criminal sentencing has been curtailed and the entitlement to ready access to the courts has been seriously abused by a small number of (usually) unrepresented litigants. It is important that the discussion about access to justice move beyond the sloganeering that sometimes passes for debate in this area and that success (or otherwise) in improving access to justice is measured by reference to realistic objectives rather than unattainable ideals.
Let me conclude on an affirmative note. It is true that none of us can accurately predict all the social changes that will affect the legal system and the work performed
Report of the Australian Government Commission of Inquiry into Poverty (Professor R. Sackville), Law and Poverty in Australia (1975: AGPS, Canberra). 36 Access to Justice Advisory Committee, Access to Justice: an Action Plan (1994: Commonwealth of Australia, Canberra). 37 R. Sackville, ‘Some Thoughts on Access to Justice’ (2004) 2 NZJPIL 85, 90; C. Parker, Just Lawyers: Regulation and Access to Justice (1999: Oxford University Press), 38-40.
13 by lawyers in the coming decades. What is ultimately important, however, is that lawyers have the training, skills and adaptability to meet novel and unexpected challenges as they arise. This will require a strong sense of the enduring values that underpin the rule of law and that safeguard the rights of the vulnerable.
The 2004 Conference will contribute to that goal. I wish all the contributors and participants well in their important endeavours.
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