ADMINISTRATIVE LAW WATCH Welcome to Chief Justice the of the Order of in the Queen's Hon (Anthony) Murray Gleeson Birthday Honours in 1986. AC on the occasion of a special sitting of the of In 1988, his Honour's considerable talents, personal qualities and standing Australia in the legal profession brought him to The following is an extract from the appointment as Chief Justice of the welcome to Chief Justice the Hen Court New South Murray ~l~~~~~AC on his appoinment That appointment was the first in over to the by the 50 years have been from the Attorney-General the Hon Daryl Bar. AM QC MP On 22 May 19"' The Attorney-General referred to the Of particular interest to readers of many challenges and changes facing the Review is that Part of the s~eech ''m'' court, and the justice system concerned with joint judgments by the supreme in general, during the period his Justices of the High Court. Honour served as Chief Justice of the The Attorney-General congratulated the Supreme Court. These included the Chief Justice on his appointment to the political debate and media scrutiny of highest judicial office in Australia. He sentencing decisions in the criminal went on to describe his early childhood, jurisdiction and the delays in the his education at St Joseph's College at criminal justice system and the effect of Hunters Hill in Sydney and his this on defendants held in custody. attendance at the Law School at Sydney His Honour initiated reforms to University. improve efficiency within the Court Following graduation from Sydney including the adoption of case University with the degree of Bachelor management strategies, and the of Laws, with first class honours, his appointment of a public information Honour was admitted to practise as a officer to the Court. barrister of the The Attorney-General said: Supreme Court in 1963. At the Bar, he practised in most areas of the law, but The members of this Court will be displayed particular expertise in the aware of the desire of some within the equity and commercial jurisdictions. legal profession and elsewhere to see He was appointed at a relatively young reform in relation to multiple age as Queen's Counsel in 1974. His judgments. reputation at the bar was as an advocate In the High Court it has generally been with formidable analytical and technical the practice for justices to write separate skills. judgments, sometimes even when legal principle is enunciated in very similar Seyond day to day life at the Bar, his terms in some of those separate Honour served as a member of the judgments. The reader has to examine Council of the Bar Association of New similar judgments, searching for nuances in the different expositions, in South Wales between 1979 and 1986 and order to identify the ratio of the case. as President of that organisation from 1984 to 1986. He was created an Officer Of course, each judge, through the oath or affirmation of office, undertakes a personal obligation to reach his or her own decision in every case. One of In the Canadian Supreme Court, too, your predecessors, Sir , the judges confer aiter a hearing and thought that "there is no surer way of one of the judges who is a member of discharging that obligation than by the group that appears likely to form a writing a judgment for oneself". majority usually writes a first draft of what may become a joint majority Joint judgments, Sir Harry has warned, de~ision.~ "may lead to the danger of compromise and ... may prevent the expression of Once again, nothing prevents a judge individual lines of thought which may from writing a separate judgment, prove to be the source of new and whether joining the majority or valuable developments of legal dissenting. principle". I commend to the Court for its Although there are undoubtedly consideration, the possibility of occasions when this will be true, there adopting a procedure that encourages are other occasions when joint the preparation of joint judgments yet judgments can encourage the does not interfere with individual development of legal principle by responsibility. Such a system could stating the law more clearly than enhance the clarity of the law separate judgments can. Separate enunciated by this Court whose judgments sometimes lead to confusion, responsibility it is to state the law for all a fact realised by the four justices of this of the country. It could also produce Court in the majority in the Wik case, significant economy and efficiency for when their Honours endorsed a short those obliged to read, comment upon postscript clarifying the effect of their and report judgments, with the four separate judgments.' potential for significant savings for the community in legal and other costs. In the highest courts in some other jurisdictions, mechanisms exist to On his appointment as Chief Justice of encourage single majority judgments, New South Wales his Honour also without limiting the independence of became President of the Judicial individual judges. Commission of that State. This body is In the United States, the Supreme Court unique in Australian jurisdictions, with has a system of assignment of responsibilities for both judicial judgments. The most senior judge in education and the examination of the majority assigns the task of writing complaints against New South Wales the joint majority judgment to one of judicial officers. the majority judges. If there are judges in dissent, they will usually choose a judge, from amongst themselves, to In the area of judicial education, the write a joint dissenting judgment. Commission has used information technology to make information Of course, this procedure does not available to judicial officers in a more prevent a judge from writing a separate easily accessible and timely manner. To judgment if he or she is not prepared to this end, the Judicial Information join the resulting majority or minority judgment. Research System allows judicial officers and researchers easy access to research and education materials. Gibbs, Sir Harry, "Courts and Tribunals in Australia", Address to the Lord Denning Appreciation Society, Sydney University Law School, 24 September 1984, at 9. Wilson, Bertha, "Decision Making in the Supreme Wik Peoples v Queensland (1996) 187 CLR 1 Court" (1986) 36 University of Toronto Law at 132-133. Journal 227 at 236. The Sentencing Information System In 1989, his Honour was appointed enables judicial officers to access Lieutenant Governor of New South sentencing statistics, and material on Wales. That same year, he was made an sentencing principles and practice. Honorary Bencher of Middle Temple of Needless to say, the ready availability of the Inns of Court in London. In 1992, sentencing statistics is of considerable his Honour's services to the law were benefit to judicial officers contemplating further recognised with his appointment the imposition of appropriate penalties. as a Companion of the Order of Australia. The Attorney-General said: On behalf of the Government and Needless to say, the ready availability himself, the Attorney-General extended of sentencing statistics is of to his Honour congratulations, best considerable benefit to judicial officers contemplating the imposition of wishes and a very warm welcome on hi:; appropriate penalties. appointment as Chief Justice of Australia. In a pape? presented to the Annual Conference of the Supreme Court of Third Parliamentary Report on the New South Wales in 1995, your Honour speculated that in 20 years time the Australian Legal Aid System Supreme Court: On 27 May 1998, the Government tabled "will be a 'paperless court,' operating its response to the first and second without paper files. Solicitors will reports of the Senate Legal and institute proceedings electronically. There Constitutional References Committee's will be no need for people to attend a Inquiry into the Legal Aid System. court registry in order to file documents. The court will be both unable and These reports have been discussed in unwilling to act as the repository of previous issues of Admin Review. masses of paper". Essentially, the Government's response Anybody who has witnessed the is that the major recommendations of advances in information technology those reports are already being over the last 10 years would not question the accuracy of your Honour's addressed, that a number of matters are predictions. It is vitally important that the responsibility of State Governments scarce taxpayer resources expended on or the legal profession and that the the application of information Government is already fully committed technology in our courts produce to resolving the impact of the Dietrichs maximum benefits for all jurisdictions. I would hope that the Council of Chief Justices might adopt a leadership role in In Dietrich v The Queen (1992) 177 CLR 292, the this area by encouraging sharing High Court of Australia considered the question between jurisdictions of information on of the right of an indigent accused to legal technological change to ensure that the representation in a case in which legal aid had benefits of initiatives to improve the been refused. The majority concluded that where workings of our courts are shared by a trial judge is faced with an application for all. adjournment or stay by a person charged with T. serious offence, who, through no fault, is unable to obtain legal representation, then in the absence of exceptional circumstances the trial should be adjourned, postponed or stayed until represe.;ration i~- -,iable. If a trial proceeds in ' The Supreme Court in Twenty Years Time those -,llistances without representation, the