October 2006

CONTENTS

The Australian Bar 1 Association Conference, Chicago 2007

A Core Value 2

Judicial Appointments 4 Forum

Media, Bench & Bar 6 Conference, Sydney

World Conference of 8 Advocates and , ABA CONFERENCE CHICAGO 2007 Dublin and Belfast From Tuesday 26th June to Friday In the meantime, if you wish to have your 29th June next year, the ABA will name entered on the list of expressions of (with the assistance of the American interest, please send your name and full Bar Association) conduct its biennial contact details to: conference in Chicago. Speakers at the [email protected] conference will include: l the Honourable Justice Susan Crennan, High Court of , l the Honourable Madam Justice Rosalie Silberman Abella, Supreme Court of Canada, l the Honourable Judge Richard A Posner, US Court of Appeals, 7th Circuit, and l Karen J Mathis, President, American Bar Association. The Conference will be held at the Drake Hotel. More information will be available Drake Hotel, Chicago later this year.

The Honourable The Honourable The Honourable Karen J Mathis Justice Susan Crennan Madam Justice Rosalie Judge Richard A Silberman Abella Posner

1 A CORE VALUE *

In recent months, Australian values laws. The core value reflected in the have re-emerged as a subject of political citizenship pledge is the rule of law in a debate and commentary. This time, the liberal democracy. We assert this value, context has been immigration, and more and require newcomers to subscribe to specifically, citizenship. Proposals to it. That suggests we assume a common require declarations of adherence to our general understanding of what it means. national values raise questions about what The rule of law is not merely a formal those values are, and what room there concept, satisfied by the existence of is for diversity. Only a few years ago we any form of legal authority governing in were congratulating ourselves on our accordance with rules, no matter how At the recent Colloquium of the Judicial multiculturalism. A multicultural society repressive or unjust they might be. In a Conference of Australia the Honourable is one that accepts some differences liberal democracy, the idea of the rule of Murray Gleeson AC, Chief Justice, about values. Values are part of culture. law is bound up with individual autonomy Surely the variety implied by the word delivered the keynote address. In it he – the freedom to make choices. It is only multicultural is not limited to tastes in deals with some of the most important if people know, in advance, the rules by food and clothing, or preferences between issues facing lawmakers, judges and which conduct is permitted or forbidden, codes of football. At the same time, it and the rights and obligations that flow lawyers in Australia and elsewhere. It seems to be agreed generally that there from their conduct, that they are free to deserves the widest possible circulation are basic principles a community may set their personal goals and decide how and so it is, by courtesy of the High expect to be acknowledged by people to pursue them. That is the purpose of Court, reproduced here. who seek formal membership of that having law in the form of general rules, of community, that is, citizenship. What we reasonable clarity and certainty, capable are entitled to expect of people who come of being known by people in advance of here without seeking formal membership choosing to act in a certain way. A system of the community is another issue. The of ad hoc discretionary decisionmaking, word “community” implies shared values. even by benign and well-intentioned How much diversity is consistent with decision-makers, deprives people of the community? Fortunately for judges, that capacity to know the likely consequences difficult question is not justiciable. of their actions. There were societies in Some of the discussion about our which the law was known only to the community values has been light-hearted members of a select caste. What more and amusing. Australian values are obvious form of repression could there sometimes presented as a box of soft- be than not letting people know the legal centred chocolates, pleasant and easy to consequences of their actions? consume, and offered in sufficient variety This relationship between the rule of law, to satisfy all tastes. My purpose is to personal autonomy, and freedom of choice identify one, more of the hard-centred has implications both for the substantive kind, and of particular concern to judges. content of law and for the administration It is not a value that figures prominently of justice. It explains why we attach such in the popular lists, but I believe that importance to clarity and reasonable most Australians accept it. We are entitled certainty in legal rules. These are aspects to demand, and in fact we demand, that of accessibility. An example is provided anyone who seeks membership of our by real property law, and its relationship community must subscribe to this value. to market theory. Without security of Since 1994, people applying for Australian land title, and predictable and consistent citizenship have been required to make regulation of land transfer, a market in a pledge of commitment. The Minister land cannot develop. Ready marketability for Immigration who introduced the of land should mean that land will end amending legislation said that the pledge up in the ownership of those best able reflects the core values of Australia. The to make productive use of it. The same form of the pledge refers to the democratic considerations apply to commercial law beliefs of the Australian people, and generally. A just and predictable system of their rights and liberties. New citizens commercial law is an essential condition undertake to uphold and obey Australia’s

2 for commerce. In the administration of seeking always to demonstrate that they of the common law concerning judicial civil and criminal justice, inconsistency are in accordance with law, reflects the review of administrative action, has seen and unpredictability are badges of assumption that judges are applying law, judicial power intrude into areas that unfairness. They are also badges of and not merely expressing a personal formerly were matters of exclusively inefficiency: they impede the capacity of preference for an outcome. Nothing is political concern. Politicians now the law to fulfil its function of establishing more likely to create public alarm than a concern themselves with the details of the conditions essential to free choice. perception that justice is administered, sentencing decisions, and judges now People understand this intuitively. not according to law, but according to the concern themselves with the effect of Unpredictability of judicial decision- personal inclinations of judges. administrative decisions on the rights of making is demoralising. People resent Modern Parliaments are far more active citizens, in ways that would have been insecurity. Consider an area in which in making and changing the law than regarded as surprising twenty years ago. there is a great deal of public commentary Parliaments of earlier times. Much Colonisation often leads to resistance. on the work of judges: sentencing. The of the work of judges now consists Judges sometimes resent what they may Judicial Commission of New South of interpreting and applying Acts of regard as uninformed and inexpert Wales was established in the 1980s, not Parliament. In a host of ways, legislators responses to their sentencing decisions. because of complaints about leniency in have become more and more involved Politicians question the legitimacy of sentencing, but because of complaints in the detailed regulation of civil and judges making decisions about human about inconsistency. The first task of the criminal justice. rights issues that ought to be the subject Judicial Commission was to establish That this is now expected of Parliaments of political accountability. Tensions such a Sentencing Information System, by the public is an example of the legalism as this may be uncomfortable, but they are designed to reduce inconsistency. of our society, and the community’s not necessarily a bad thing. If politicians Episodic complaints about undue expectation that political power will take and judges occasionally collide, that might leniency, or severity, sometimes the form of intervention in the law and be because somebody is on the wrong based on misunderstandings and the administration of justice. Defending course. They are all supposed to serve misrepresentations, are fairly easy to the nation, managing the economy, and the public, and what matters is the public answer. What would be more worrying preserving civil order are still primary interest. The possibility that politicians would be complaints of widespread and judges might have the capacity to inconsistency. An aspect of law that lends to make a positive contribution to the way in In popular culture, the value of the rule which the others serve the public interest of law does not receive much promotion. tensions between the political should not be overlooked. Yet Australians are surrounded by it in and the judicial branches This intensification of political interest in their daily affairs. It is not something of government is the law’s civil and criminal justice, and of judicial that is to do only with courts, and concern with legal issues that have a judges, and lawyers. It is the foundation insistence on respect for political dimension, is occurring in all of government. It is the assumption individual rights. common law countries. It is occurring that underlies the political process that in all societies in the liberal democratic makes our system of government work in concerns of the political branches of tradition. It is an aspect of a spirit of practice. government, but they are also expected legalism which reflects the centrality of Our basic law is a federal Constitution. to involve themselves in legal issues that law in the life of a community. It divides, allocates, and limits all power: in earlier times were left largely to the An aspect of law that leads to tensions legislative, executive and judicial. A judges. between the political and the judicial V Dicey said that Federalism means In his recent Magna Carta Lecture in branches of government is the law’s legalism. He said it leads to the prevalence Sydney, the Lord Chancellor referred to insistence on respect for individual of a spirit of legality among the people1. tensions in the United Kingdom resulting rights. This is often misunderstood, Australians are used to thinking of from what could be described as a process or misrepresented, as a disregard of political power in terms of divisions of colonisation by the political branches community rights. Judges are accused between central and regional authorities. of government, and the judiciary, of each of concentrating their attention on They are accustomed to occasional others’ territories. He gave two examples. the rights of an individual who has disputes between governments over the Sentencing has become a political issue. committed, or who is planning to commit, boundaries set by those divisions. They Until relatively recently, politicians were a crime without regard for the rights take it for granted that the divisions are content, by legislation, to mark the outer of the victims, or intended victims. established by law, and that disputes will boundaries of judicial discretion, and In order to explain why this involves be decided by courts acting independently to leave the sentencing function to the of the disputing parties and seeking to experts. Now, there is detailed legislative apply the law. The decisions are open to intervention, and judicial decisions are comment and criticism. The reasons for often the subject of political scrutiny and the decisions are made public, and can comment. His second example was of a be measured against the law. The way move in the opposite direction. Human in which judges justify their decisions, rights legislation, and the development

3 JUDICIAL APPOINTMENTS FORUM

In a modern democratic society, it is no longer acceptable for judicial appointments to be left entirely in the hands of a Government Minister Lord Falconer of Thoroton, July 2003 Judicial appointment commissions, in one form or another, exist in England, Scotland, Northern Ireland, Ireland, Canada, South Africa, Israel, France, Germany, Italy, the Netherlands, Portugal, Spain and many states of the USA. Is Australia right to continue with the current system? Or should there be change? A public forum will be hosted by the Australian Bar Association at which consideration will be given to: l the current methods used in Australia to appoint judicial and quasi-judicial officers, and l whether any changes can or should be made to those methods. The programme is:

10.00 Appointment of Judicial Officers in Australia – Assoc. Professor Elizabeth Handsley, Flinders University 10.30 Why we should have a Judicial Appointments Commission – The Honourable Geoff Davies AO 11.00 – 11.30 Morning tea 11.30 Why we should not have a Judicial Appointments Commission – Professor Jim Allan, University of Queensland 12.00 Has the system failed women? – Caroline Kirton, Immediate Past President, Australian Women Lawyers 12.30 The current system works – The Honourable MP, Attorney General 13.00 – 14.00 Lunch 14.00 The system, its shortfalls, and where it can be improved – Nicola Roxon MP, Shadow Attorney General 14.30 Judicial Appointments: Who is really accountable? – The Honourable Justice Sackville, Federal Court 15.00 – 16.00 Discussion DATE AND TIME: 10 am – 4pm, Friday, 27 October 2006 VENUE: Sheraton on the Park, Sydney REGISTRATION: There is no fee for attendance, but you must register for catering purposes. If you wish to attend, please e-mail [email protected] and give your name and contact details.

about the problem of evil, but ordinary Privy Council, which still used torture, folk do not discuss theology. The reply to provide information to the authorities. a misunderstanding, let me begin by attributed to the bishop was: “Kill them His Lordship said that what we now call describing a medieval solution to a all; God will know his own”. And that “extraordinary rendition” was being particular problem, and then move to is what they did. This was an effective practised in England in the 17th century. more modern examples. military solution, but it was hardly a The methods of the Inquisition have In 1209, the Crusaders sent to stamp out rational method likely to be suitable for long since become unacceptable, but the Albigensian heresy in Languedoc widespread use. And so the Inquisition the objective of dealing with suspects besieged the town of Béziers. After was established, its task being to work individually, rather than killing them all the town succumbed, the leader of the out, on a case by case basis, who were and leaving it to God to sort them out, was crusading forces was directed to enter the heretics. The Inquisition used torture a considerable advance on what happened the town and kill the heretics. He asked as one of its methods. In doing so, it was at Béziers. doing what ordinary courts of justice of the bishop how he was supposed to Let us move forward 400 years, to the the time did throughout Europe. In 1209, work out who were the heretics and beginning of the 17th century. In the English courts of justice still employed who were the Catholics. This was no House of Lords judgment just mentioned trial by compurgation, and trial by battle. small problem. Telling the difference reference was made to an event in England Trial by ordeal, after being condemned that has a contemporary resonance. Lord between a Catholic and a Cathar might by the Lateran Council, was prohibited in 4 have been easy enough in the case of England in 12192. Torture was practised Hope said : people who spent a lot of time talking in England until 1641, when the Star “[O]n 4 November 1605, Guy Fawkes Chamber was abolished. In a recent House was arrested when he was preparing to of Lords decision3, Lord Hope pointed blow up the Parliament which was to out that, even after the jurisdiction of the be opened the next day, together with Star Chamber was abolished in England, the King and all the others assembled prisoners were transferred to Scotland there. Two days later James I sent orders so that they could be forced by the Scots

4 to the Tower authorising torture to be is necessary to step back a couple of paces established procedures for the prosecuting used to persuade Fawkes to confess and to see the wider context in which the authorities to seek appellate review of the reveal the names of his coconspirators problem arises. decision. I would reject any suggestion ... On 9 November 1605 he signed his Courts do not have agendas. Unlike the that, in the administration of criminal confession with a signature that was political branches of government, they justice, there is a systemic disregard for barely legible and gave the names of have little capacity to choose the issues the rights and interests of victims and his fellow conspirators. On 27 January with which they will deal. When the the public, and an undue concern with 1606 he and seven others were tried ... jurisdiction of a court is regularly invoked the rights of offenders. Such a disregard Signed statements in which they had in a criminal or civil case, subject to is not made out by pointing to particular each confessed to treason were ... read to very narrow exceptions the court must cases of error, especially where that error the jury.” decide the case, and deal, according to may be corrected on appeal. It is not The story is easily translated into 21st law, with the issues that are presented unusual to hear people find fault with some sentencing decisions; it is unusual century terms. Some men in London for decision. In a criminal case, those to hear critics address the principles, or were planning a terrorist attack on a issues will concern the conduct of an the procedures, which sentencing judges public building. They were militant individual or, occasionally, a small group. and magistrates are bound to follow, and fundamentalist Christians, said to be If an accused person is convicted, he or explain where they are at fault. If it were encouraged by a foreign power, Spain. she will be dealt with individually. The seriously claimed that there is a systemic One of them was captured, tortured, and punishment must fit both the offence and failure of the kind mentioned, then that forced to reveal his plans and the identity the offender. In the sentencing process, is the level at which the argument should of his co-offenders. They were tried, close attention will be given to the be conducted. A case that the legal system convicted on the evidence of confessions circumstances of the particular offender. disregards community rights, and has extracted by torture, and executed. This disproportionate concern for the rights was a famous event in British history. It Courts do not have agendas. of offenders, could only be made out by is celebrated every year, with displays of engaging with the sentencing principles fireworks. Unlike the political branches of government, they have little by which courts are bound, and critics There is, however, one problem in the rarely undertake that engagement. translation. Torture has now been capacity to choose the issues The criminal justice system deals with outlawed. Its use was abolished in with which they will deal. individual cases, but it is quite wrong England in 1640 and in Scotland in to say that it disregards community 17085. It was never lawful in Australia. rights and interests. On the contrary, the That does not mean the sentencing judge It is prohibited by international law. That criminal law exists to protect the public. overlooks wider considerations. The prohibition enjoys “the highest normative Many laws, whether made by a force recognised by international law6”. reason the law makes the conduct of the offender a crime is to protect the public, Parliament or judge-made, represent an The international prohibition of torture and to vindicate human rights of safety accommodation between competing rights “requires states not merely to refrain and security. The law of homicide exists or interests. Often, the accommodation from authorising or conniving at torture to vindicate the most fundamental of that is reached is inconvenient for but also to suppress and discourage human rights; the right to life. The law some; sometimes it is inconvenient for the practice of torture and not to of larceny protects the right to property. the government. The rule against the condone it”7. Article 15 of the United Laws against violence protect the rights admissibility of involuntary confessions Nations Convention against Torture and of citizens to live in their homes, and is no doubt an inconvenience for those Other Cruel, Inhuman or Degrading to go about their ordinary affairs, with who enforce the criminal law. It is an Treatment or Punishment of 1984 security. Sentences are required to take inconvenience they are obliged to accept. requires the exclusion from evidence of account of the objective seriousness of The alternative, that is to say, receiving statements made as a result of torture. A the offence, and that seriousness consists evidence of forced confessions, is a comprehensive discussion of the current of the invasion of rights or interests price we are not willing to pay in order state of international law in relation to involved in the offending conduct. The to secure convictions. Laws regulating torture may be found in the decisions modern sentencing process is designed to official surveillance, or search and seizure, of the House of Lords concerning the make the sentencer aware of the impact are carefully structured to reflect what extradition of General Pinochet8. of a crime upon a victim, or a victim’s Parliament regards as a just compromise Issues of terrorism and public safety relatives, and on the community. The between the rights of individuals and the present great challenges to the law, and to severe penalties that are commonly public rights and interests protected by the courts which are obliged to uphold the imposed for serious cases of drug the criminal law. People may disagree law in the face of public impatience, and trafficking, for example, reflect the harm fear. The community will only value the that results from that form of crime. If rule of law, and accept what might appear a sentencing judge fails to take proper to be attempts by judges to frustrate account of the seriousness of an offender’s measures taken by governments to protect conduct, and thus of the rights or interests the public, if people are encouraged to invaded by such conduct, and a manifestly understand the issues that are in play. It inadequate penalty is imposed, there are

5 (Continued from previous page) about whether an appropriate balance of government. International terrorism the case presents a typical rule of law has been struck, but some form of is a threat to public safety in those two issue: what was the Commission dealing balance is necessary. Very few public countries, and Australia, and is likely to with special detainees to do with evidence policies are pursued at all costs. remain so for a long time. The primary which was said to have been obtained Laws enacted by Parliaments often responsibility of government is to protect by torture? The conclusion was that if have built in to them elements which the safety of the people – salus populi the evidence was shown to have been oblige courts to make normative choices suprema lex. All government is subject to obtained by torture it was to be excluded, between competing considerations or law, and the three branches of government but their Lordships divided 4 to 3 on what interests. The same is true of many are beneath the law - in Australia, the was to be done in cases of doubt. It was principles of common law. The whole Constitution. The political branches of half a win, by a narrow majority, for the law of negligence, for example, turns government formulate and implement the Government. Lord Hope said10: on judgments about what is reasonable; means adopted to protect citizens against “[I]t is one thing to condemn torture, as judgments that used often to be the threat of terrorism. They may do so we all do. It is another to find a solution made by juries applying community only by lawful means; and the ultimate to the question that this case raises which standards. Many laws require courts responsibility of deciding issues of occupies the high moral ground but at to take account of broad discretionary lawfulness rests with the judicial branch the same time serves the public interest considerations. Life would be more of government. and is practicable. Condemnation is comfortable for judges if the judicial easy. Finding a solution to the question is function consisted only in the Judicial officers routinely make much more difficult.” mechanical application of rules made by contestable value judgments others. That, however, is not the nature Unfortunately, the high moral ground of our law. Judicial officers routinely which expose them to challenge. does not provide a refuge from the make contestable value judgments necessity of making hard practical which expose them to challenge. The case of A v Secretary of State for decisions. In the same case, Laws LJ said the Home Department9 was decided by 11 Most normative or discretionary in the Court of Appeal : the House of Lords in December 2005. decision-making seems to be accepted Following the events of September 11, by the community as a necessary 2001, in the United States, the United feature of a rational system of justice. Kingdom Parliament enacted legislation People accept that the law cannot take providing for the detention of suspected the form of a rigid set of rules to be Media, Bench and international terrorists. Detainees had applied by judicial automatons, or by a right to appeal to a tribunal called the Bar Conference computers. They understand also that Special Immigration Appeals Commission. the legal process often takes the form Sydney The litigation concerned the use in of a contest between a citizen and a evidence, in proceedings before the Friday 1 December 2006 government, and that the integrity of the Commission, of information which was process requires a decision-maker who alleged to have been obtained overseas 1 A Matter of Trust? is manifestly impartial and independent. through torture. The House of Lords was Why won’t barristers talk to the media? They value this as part of the rule of unanimous in holding that if it appeared Should they? Should judges? law. A test of public commitment to the that such evidence had in fact been rule of law comes when the judiciary 2 What do the Media want? obtained through torture, it could not be is required by law to make decisions, received by the Commission (although Just a good story or accurate, timely based on normative judgments, that may the use that the executive government information? What are the pressures compromise the capacity of government could make of information that came to on print/electronic journalists? to protect public safety and security. its attention, even if illegally obtained, 3 How can the Bench and Bar Two recent decisions of ultimate was a different question). However, their assist? courts, one in the United Kingdom and Lordships divided 4 to 3 on an important one in the United States of America, legal issue. The majority held that, 4 How can we improve public illustrate the problem. These cases where there was a dispute as to whether understanding of the legal provide examples of the responsibility evidence had been obtained by torture, system? that a rule of law society imposes on the Commission should consider whether the judicial branch of government; a it was shown on a balance of probabilities These issues, and others, will be responsibility that may bring it into that it had been so obtained; that if the considered at a conference being tension with the political branches Commission was so satisfied it should conducted by the ABA on Friday, 1 decline to receive the material; but that December in Sydney. It will be open to if it was doubtful, it should admit the all journalists, judges and barristers. material, bearing the doubt in mind in Further details will be provided soon. evaluating it. In the meantime please send any Regardless of whether you prefer the enquiries to [email protected] reasoning of the majority or the minority,

6 (Continued from previous page)

This grave and present threat [of would know, the decision was followed government of civil societies in time terrorism] cannot be neutralised by further dealings between the President of war has brought the need to resolve by the processes of investigation and Congress to obtain the necessary similar tensions. Ordinary policing, and and trial pursuant to the general authorisation. At the end of their opinion, investigation of criminal activity, raises criminal law. The reach of those the majority said (at 72): issues that require a balance between processes is marked by what can be “We have assumed, as we must, that the individual rights and public interests, proved beyond reasonable doubt ... allegations made in the Government’s sometimes involving public safety. In these circumstances the state faces charge against Hamdan are true. We Within executive governments, and a dilemma. If it limits the means by have assumed, moreover, the truth of their agencies, there will always be some which the citizens are protected against the message implicit in that charge - viz, pressure to push the exercise of power to the threat of terrorist outrage to the that Hamdan is a dangerous individual its limits; limits which will be marked out ordinary measures of the criminal whose beliefs, if acted upon, would cause by the legislature, or by the Constitution, law, it leaves a yawning gap. It great harm and even death to innocent and which must be decided ultimately by exposes its people to the possibility of civilians, and who would act upon those the courts. Public emotions such as anger indiscriminate murder committed by beliefs if given the opportunity. It bears and fear, may create a climate in which extremists who for want of evidence emphasizing that Hamdan does not declaring those limits is an unpopular could not be brought to book in the challenge, and we do not today address, task. An atrocity could create a wave of criminal courts. But if it fills the gap by the Government’s power to detain him for public dissatisfaction with the level of confining them without trial it affronts the duration of active hostilities in order ‘the most fundamental and probably the protection given by the law and the legal to prevent such harm. But in undertaking oldest, most hardly won and the most process, especially if it is apparent that the to try Hamdan and subject him to universally recognised of human rights’: limits are not clear-cut. criminal punishment, the Executive is freedom from executive detention.” The uncertainty of some aspects of the bound to comply with the Rule of Law law, reflected in diversity of judicial In a society living under the rule of law, that prevails in this jurisdiction.” this dilemma is to be resolved by law, and opinion in the highest courts, or in the if the lawfulness of the solution adopted scope for normative judgment involved in is called into question then it has to be Within executive governments, particular legal rules or standards, cannot decided by the courts. Furthermore, and their agencies, there will be ignored. These are inescapable features of a rational, tolerably flexible, system of as in the English case just mentioned, always be some pressure to even when Parliament, acting within law, capable of adjusting to the demands legislative power, adopts a solution, the push the exercise of power to of circumstances. But they can shake implementation of that solution is likely its limits; limits which will be confidence unless people understand that, to require judges to make contestable, in its nature, law requires the exercise of normative decisions on issues that may marked out by the legislature, judgment, and issues for judgment are have an important bearing, not only on or by the Constitution, often contestable. It is a mark of political maturity and sophistication that the the rights of suspected terrorists, but on and which must be decided the right to life and safety of their possible Australian community accepts that the victims. Such decisions are bound to be ultimately by the courts. law is not rigid and inflexible, and that subject to public scrutiny and, possibly, to judges are not automatons. hostile criticism. They may turn upon the In that paragraph, again, there appears a Another matter that cannot be left out views of a narrow majority in a divided distinction drawn by the House of Lords of account is that judgments about court. Judicial divisions may make it in the earlier case: a distinction between difficult legal issues are often made in a obvious that there is no cut and dried legal the lawful exercise of executive powers context of political conflict, and parties answer to a question. The law itself may for investigative or protective purposes, to that conflict may seek to enlist judicial be notoriously unclear. In a climate of fear and due process of law as administered in outcomes in aid of their own purposes. and insecurity, the public’s commitment the case of trial and criminal punishment. Again, this is inevitable. It is part of to the rule of law, and its confidence in the In our jurisprudence, we are familiar the democratic process. What it means, power of an independent judiciary, may be with distinctions between the use that however, is that the public will accept tested in the furnace. investigative agencies may make of the process only if they are sufficiently information unlawfully obtained, and The second case to which I would refer confident that the participants adhere to questions of admissibility of evidence in is Hamdan v Rumsfeld12, a decision of the their proper roles. It does not devalue the the course of legal process. Distinctions of Supreme Court of the United States given rule of law that independent, apolitical that kind are not always easy to explain on 29 June 2006. By a majority of 5 to judges make contestable decisions about and justify to the public. 3 (the Chief Justice did not participate) the Court held that Congress had not Although the problem is especially acute authorised the President to create military in the face of a threat to public safety commissions of the kind that had been from terrorism, it is not unique. Indeed, set up to deal with charges of conspiracy terrorism itself is not new. Conventional laid against the petitioner following his warfare has always created tensions detention at Guantanamo Bay. As you between lawfulness and necessity; and

7 matters that are the subject of political Although the rule of law gives judges A proselytising judiciary would itself conflict, or that politicians sometimes certain powers, and imposes on them cause alarm and insecurity. Because seek to make political capital out of certain responsibilities, it is not something society values the rule of law judges can those decisions. That is what you would in which they have a proprietorial exercise their powers, and discharge expect. interest. The rule of law does not exist their responsibilities, independently In every generation of judges, issues for the benefit of judges, any more than and confidently. Declaring the limits arise that test their hold on public democracy exists for the benefit of of the power of the other branches of confidence, and the extent to which politicians. Everybody has a stake in the government is not a task that leads to easy people understand and value the rule rule of law. It supports the conditions popularity, but judges are not involved in of law. One of the responsibilities essential for a free society; it provides a popularity contest. Their job is to give of those with executive power is to the context for all political activity; practical expression to a hard-core value. protect public safety and security. The it promotes trade and commerce, and * Chief Justice of Australia law sets boundaries on that power. sustains business and employment; and 1 A V Dicey Introduction to the Study of the Law The law limits the capacity of the it means that government is something which protects people, not something of the Constitution, London: Macmillan, 1959 government to respond to threats to 10th ed 175. the public. In declaring those limits, from which people need protection. 2 Holdsworth, A History of English Law, 7th ed, courts may attract executive frustration, Consider the challenges that have been Vol 1 (1956) at 299-311. 3 political criticism, and public alarm. faced by judges in Northern Ireland, or A Secretary of State for the Home Department (No 2), [2006] 2 AC 221 at 285. How do they respond? The judicial Israel; not to mention countries in the 4 [2006] 2 AC 221 at 284. branch of government does not employ Pacific region. Australian judges work in 5 [2006] 2 AC 221 at 247. public relations consultants. It has no a culture that has a strong appreciation 6 [2006] 2 AC 221 at 255. advertising budget. It does not campaign of the benefit of law. People will argue 7 [2006] 2 AC 221 at 255. for popular acceptance of its decisions. It vigorously about what the law ought to be, 8 eg R v Bow Street Metropolitan Stipendiary avoids political entanglements. It makes and will demand fairness and efficiency Magistrate (No 3) [2000] 1 AC 147. a conscious effort to keep out of the cut in its administration. Judges do not 9 [2006] 2 AC 221. and thrust of policy debate, which is need to engage in political advocacy to 10 [2006] 2 AC 221 at 283 the normal process by which ideas and convince the public to value their work. 11 [2005] 1 WLR 414 at 461. opinions compete for acceptance. To do so would be counter-productive. 12 548 US...... (2006)

WORLD CONFERENCE OF ADVOCATES AND BARRISTERS DUBLIN AND BELFAST 27 – 30 JUNE 2008

The International Council of Advocates Very successful conferences have already and Barristers will be holding its fourth been held in Edinburgh and Cape Town, world conference in Dublin and Belfast Hong Kong and Shanghai Those who Above: The Bar’s Law Library, Belfast. from 27 to 30 June 2008. have attended have had the benefit of hearing from a wide range of speakers Below: Four Courts, Dublin. The International Council of Advocates and Barristers is an organisation formed such as Mary Robinson UN Commissioner by the Bar Associations in jurisdictions for Human Rights, the Hon. Anthony where there is a separate profession of an Gubbay (the former Chief Justice of independent referral Bar. Its members are Zimbabwe), Param Cumaraswamy, UN the Bar Associations of Australia, England Special Rapporteur on the Independence and Wales, Hong Kong, the Republic of of the Judiciary, Lord Goldsmith (UK), Ireland, New Zealand, Northern Ireland, Justice (High Court of Scotland, South Africa and Zimbabwe. Australia), and Justice Dikgang Moseneke The objects of the Council include the (Constitutional Court of South Africa) and promotion and maintenance of the rule barristers from each of the constituent of law and the effective administration members of ICAB. Speakers of similar of justice. Its focus falls on matters calibre will participate in the next particularly important to the Bar conference. worldwide, including: regulatory issues, When further conference details are better training for the profession, and available they will be posted at strengthening the independent Bar as a www.worldbaronline.com prerequisite to an independent Bench.

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