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Scangate Document LIBRARY Value Judgments: the ethics of law Reform seeks to provide a forum to engage a broad cross-section of the community in constructive, high quality debate on issues of national and international law reform. The journal aims to highlight shortcomings in current laws, facilitate discussion on opportunities for uniformity and reform and recognise significant innovation in law and legal practice. It also provides a comparative analysis of local and overseas reform initiatives. The views expressed by contributors to Reform are not necessarily those of the publisher, the Australian Law Reform Commission. Con Value Judgments; the ethics of jaw Legal Professional Ethics in Times of Change 5 Justice Michael Kirby Test of Loyalty - procedural reform and advocates’ ethics / / Bret Walker SC Facing the hazards: ethical issues for tribunal members 17 Richard Phillipps Complaints about legal costs - ethical implications 23 Steve Mark UNIVERSITY OF N.S.W. Politicisation of ethics 27 Contributors Michael Lavarch 1 6 APR 1598 Michael Barnett Getting real about ethics in government 30 Lani Blackman Dr John Uhr LIBRARY 5 Jennifer Boland Robert Buchanan ALRC work Penny Cooper Darren Dick Adversarial inquiry Salim Fakirani Digging for data: the adversarial inquiry 34 Peter Handford Dr Kathryn Cronin Peter Hennessy Assisting unrepresented parties in the AAT 38 Miiko Kumar Justice Jane Mathews Joanna Longley Philippa Lynch Rethinking family law proceedings 43 Christopher Maxwell, QC Children and the legal process Julie Selth Seen and heard 44 Doug Trapnell Alan Rose Production Noble rhetoric or concrete action? Children, legal processes and human rights 48 credits Chns Sidotl Supervising Commissioner: Cited and said on Seen and heard 52 Kathryn Cronin Children in family law systems - some thoughts on ‘Seen and heard’ 55 Editor: Chief Justice Alastair Nicholson Michelle Weidenhofer Rubik’s Cube - children and the legal process 59 Contributing Editor: Michael Antrum Leora Harrison Production Manager: Archives Angela Sharpe Looking forward, looking back: national archives under review 64 Front Cover and Graphic Design: Dr Jim Stokes Phillipa Janos Showcasing Cabinet 67 Illustrations: Anne-Marie Schwirtlich Louise Cullen, Teash Richmond, Ross Cornsew Proceeds of crime Proceeds of crime 70 Subscription David Edwards details $25 for two editions Regular features Payments should be made in Australian dollars only. Comment - Alan Rose 1 Commission News 2 Print Post No PP2434S9100081 Reviews 72 Reform Roundup 76 Clearing House 88 Contacts 97 Off the Cuff - Guest Columnist, George Zdenkowski 100 From the Editor... Contributions to Reform are welcome and should be sent to: The release of tins edition of Reform will coincide with yet another milestone in the life of the journal. Michelle Weidenhofer The Editor Reform Stage one of the strategy to transfomi Reform was the new design and editonal GPO Box 3708 SYDNEY NSW 2001 focus of the journal, unveiled in the Autumn 1997 edition. The response from subscribers has been fantastic, with many current readers expressing their Telephone: (02) 9284 6333 approval of the ‘new look’ Reform. Furthermore, many new subsenbers have Fax: (02) 9284 6363 E-mail: [email protected] been attracted to the journal. When preparing contributions, please The Commission is now pleased to announce stage two - the appointment of note the following points: 1/ Articles can be sent via fax or an Editorial Advisory Committee. The Committee comprises members with E-mail or, if submitted on a disc, should considerable experience in law, academic pursuits and journalism. They will be in WordPerfect or Word 6, both for be responsible for guiding the overall direction of Reform and future editions Macintosh or in RTF format. A hard­ copy should also be forwarded to the will benefit from their ideas and expertise. Commission (E-mail or disc are preferred). The Committee members are: 2/ All articles submitted on paper should be typed in double-space on one Dr Kathryn Cronin, Australian Law Reform Commission side only of A4 paper. 3/ The name, address and phone Justice Mary Finn, Family Court of Australia number of the author must be attached to the article. Ms Anne Henderson, The Sydney Institute 4/ Articles should be between 1000 and 3000 words in length. Shorter articles Justice David Hunt, Supreme Court of New South Wales are welcome. 5/ Articles submitted to Reform should Dr James Jupp, Australian National University be in final form as corrections on proofs Ms Ruth McColl, SC, Barrister will be limited to literal errors or changes necessitated by legal developments. Mr Michael Ryland, Robert Seidler & Associates 6/ Articles submitted to Reform for publication must be original and not cur­ Mr Philip Selth, New South Wales Bar Association rently under consideration for publication elsewhere, except by prior arrangement. Mr David Solomon, Courier Mail, Brisbane 7/ The Australian Law Reform Commission (ALRC) reserves the right to Magistrate Deborah Sweeney, Downing Centre Local Court republish all matenal on its homepage on Professor Louis Waller, Monash University the Internet and to use all accepted articles for promotion of the journal. This edition of the journal, Value Judgments: the ethics of law, highlights the 8/ The ALRC reserves the right to edit submitted articles so they conform interesting, sometimes controversial, issue of ethics in the legal community, in with Reform’s writing style. The Editor politics and government administration. will seek to contact contributors to verify It is a topic of relevance not just to the changes before publication. legal community, but to all those who Style use, or are affected by the actions of 1/ All articles must be written in clear, lawyers, law-makers and decision­ accessible language. 2/ Contributors should seek to makers. minimise the use of end-notes. Where possible, citations should be included in the body of the text. We hope the articles in this edition of 3/ All legislation, international instru­ Reform will contribute in a meaningful ments, organisations and cases referred to way to the ongoing debate. should be clearly identifiable. 4/ Gender neutral language should be used. Michelle Weidenhofer 5/ Avoid unnecessary punctuation. Abbreviations should not be followed by Editor, Reform a full stop. Value Judgments: the ethics of law Comment n 1991, the Fordham Law Review Ipublished an article ‘Professional Discipline in 20S0: A Look Back*. The essay was based on a speech by Ted Schneyer, a Professor of Law at the University of Arizona. The essay gives Professor Schneyer’s view - one worth considering - of how ethical issues will he dealt with by the legal profession in 2050. In his ‘crystal ball review’ of the late 1990s to 2050, Professor Schneyer predicts significant shifts in ethical practices. Presently, most complaints against lawyers are by individuals concerned with Alan Rose, President, ALRC false advertising, fee abuse and lack of communication. Although the profession views these as ethical problems, they are more akin to consumer complaints. In Professor Schneyer’s view, the profession’s approach - to ‘cleanse’ itself by removing or disciplining ‘bad apples’ - is flawed. The more responsive the disciplinary process, the more grievances it receives and the higher the cost of regulation. Ethics will change, according to the professor, from a focus on individual practitioners to team responsibility. After all, many ethically sensitive tasks, such as fee setting, are performed by central, bureaucratic staff. Professor Schneyer predicts a future where more egregious professional misconduct will be dealt with pro-actively by a national disciplinary body. In this context, firm dissolution, the analogy to disbarment, is almost unheard of, fines are common, and public notices of firm overbilling may drive down the price of a Ann’s stock. The transformation from vocation to market- orientated profession is complete. This is one view of the future. It doesn’t appear so fanciful in the light of the extraordinary changes induced by the consumer movement, the development of a national, corporatised legal profession, the advance of the managerial judge and the impact of technology on litigation processes. The Commission’s reference into the federal civil litigation system provides a timely opportunity to consider these issues. Who knows - changes such as those predicted by Professor Schneyer may be just around the corner. s s u e 7 1 9 9 8 Page Reform Value Judgments: the ethics of law Commission News Events and seminars n October last year, the Commission, together he Commission recently participated in the Iwith the New South Wales Bar Association, TAustralian Institute of Judicial Administration the Law Society of NSW and the European Law conference Technology for Justice. Commission Centre at the University of NSW hosted a President Alan Rose delivered a paper detailing twilight seminar with Judge Federico Mancini, issues associated with the use of technology in legal of the European Court of Justice, entitled The disputes. Practice, Procedure and Working Methods of the European Court of Justice. This event coincided with the launch of a Commission issues paper on Legal disputes and Judge Mancini has been a member of the technology. The issues paper is the fourth in a series of European Court for almost 10 years, during six arising out of the Commission’s inquiry into the which time the Court has played a significant adversarial system of justice. role in the profound changes in the European Union. An esteemed academic, Judge Mancini provided an infonnative insight into the European Justice system to an audience of more rom May through to September 1998, the than 120 people. FCommission will present a public seminar senes in Sydney highlighting different aspects of the Commission’s inquiry into the adversanal system of justice. Topics include the cost of justice and the he Commission’s inquiry into children ethics of advocacy. To obtain further information Tand the legal process, conducted jointly about this series please contact our Sydney office on with the Human Rights and Equal (02) 9284 6333.
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