"A VIEW FROM THE NINETIES" /

Charles Lilley Oration Girls' Grammar School Saturday 15 March 1997

The Hon. J.M. Macrossan, AC Chief Justice Supreme Court of

Let me speak first of Charles Lilley. It is indeed a distinction to be asked to deliver the oration which is the first named in honour of an outstanding figure from our past. In the life of nineteenth century Queensland, Lilley made a significant contribution in law, politics and education. The Brisbane Girls' Grammar School, which his efforts largely brought into existence, is thus a most appropriate venue for our gathering.

Lilley early chose a legal career but then went into the Army. As a young man in his twenties he came to Aus.tralia. Soon after admission to the Bar, he became a QC. The available sources are in disagreement about his actual birthdate, but it is accurate enough now to say that, entering politics he became Attorney-General in about his mid thirties, and then either before or within a year or so of turning 40, he became Premier..

His influence upon the legislative programmes of the State and his involvement particularly with education and in the work and development of the style of the Supreme Court i~ its early days have been sufficiently chronicled in other places and I shall not d~lay with them now.

It in no way .diminis.hes Lilley's achievement to record that combined with his drive as .a reformer and innovator there seems to have existed a strange lack of restraint and a deficiency in judgment which in the end brought him down. Pressures· arose which led to his leaving the office of Chief Justice of Queensland but not before he had served a lengthy term in that position. What can be called his good side and his great abilities received wide recognition which posthumously has endured.

This makes his imbalance in office marked as it was by immoderate disputes with Parliament and the Executive and his notorious inability as Chief Justice to restrain an undue partiality towards his barrister son, all the more a matter of regret. The point is that the flawed personality was not the whole of the man.

The public wants to be able to trust and look up to those who, in society, play a public role yet in varying degrees it finds it is constantly disappointed in the expectation it entertains of leading figures when in some way or other they are shown by ruthless inquisitors to share human weakness. The modern style in biography looks to expose everything and where once a veil would be drawn, the investigator now intrudes with relish and no detail is sacrosanct. The public reads it all with a mixture of shock and disbelief but is, I suspect, partly comforted to know there is no exclusive property in character frailties.

Indeed, why should it astound us when we learn that, say, a scientist pre­ eminent in the field of theoretical physics was mean and difficult in his domestic relationships?

The human tendency to idealise is very strong and when disappointed it can produce a powerful backlash. Interestingly enough, leading figures in some fields are relieved of any requirement that they should conform with idealised expectations.

For sporting heroes and pop stars, it is enough if they steer clear of the criminal law. If they manage that, they will have done all that is asked of them . People working in the public arena must, however, do more.

In choosing a title for this address I was influenced by my realisation that we stand interestingly close to the end of the century and of the millennium. This heightens the drama that always seems to be involved in approaching the end of a decade. Even common or garden pecades have a symbolic significance.

Changes which show up within our broad environments or come about in the appearance of the world around us seem not to result from the passage of single years. Such short spans appear to ma ke no great difference. But larger changes occur by stealth and whole decades, when they pass, can completely transform the observable shape of things.

Although all decades make natural dividers and points of reference, this time we have a decade with a special dimension. Having come to a decision to present some general overview in this address, I found that the title suggested itself. We still have the best part of t~ree years left in the decade so we sit well at ease within it.

Behind these preliminary remarks, the sobering thought intrudes that since I come to a school to speak to my audience, there may be some present whose youthful years lead them to think the real world began only very recently - all the rest being prehistory. If that is so, their parents will enlighten them . I have decided on a non-specialist address as being best suited to this occasion.

It is true that the simplest of all addresses to construct, if experiences and viewpoints are to be shared, is a straightforward chronological account. That approach provides a convenient arrangement of all of the observations offered and everything falls into place after a fashion. It becomes even easier when the related experiences consist wholly of the speaker's personal involvement- a form of verbal autobiography where practically every sentence starts with an "1", either express or implied.

Charles Lilley Ora tion • •A View from lhe Nine tie s • Th e Hon. J.M. Macrossan, AC 15 M arch 1997 2 However, some fair level of ego is called for there and the result is not necessarily compelling since success depends upon how good a storyteller the speaker is. I thought that such an approach would not really fit in this evening even if I had been prepared to trust myself in that style. I have aimed at saying something removed from the narrowly specialist category.

My own principal experience lies in the law but when I speak of matters that arise out of that, I shall try to keep in mind a lesson from the past. I was present a number of years ago when an oration was given by an eminent legal authority to an audience consisting mainly of non-legals. At the end as we were filing out from the hall, the few lawyers present were saying things like, "That was fairly superficial stuff'', but the others were saying, "What was that about? Why were we treated to all those legal turgidities?" I detect twin dangers here, or putting it in classical terms, the perils of Scylla and Charybdis loom. I am conscious of the need to steer between.

Let me start with some remarks about the public position of judges. You may think I have already given away something of the judicial style with its tendency to qualify in the interests of accuracy, but I now wish to be more specific.

One strictly disposed English commentator said re ce ntly that the public utterances of judges should not stray beyond the bare necessities such as, "Please shut that door", or "Please open the window". This, you may think, goes too far, but it is undoubtedly true that strong inhibitions rule judges in their public expression of viewpoints. The expectations concerning the limits they should observe ha ve accumulated over time and have come to constitute a substantial cu lture.

The judges, by and large, tend to conduct themselves in co nformity with it. Perhaps this makes them a little different from the average citizen. It might even make them duller but thE? induced inhibitions are certainly there and the y have their effect. There are cyclic~! fluctuations in the pressures felt by judges within their public position. Currently judges particularly feel the need to take care. It is always expected they will. avoid .comments that are openly political, but the matter goes much further than that.

There is a noticeable tendency nowadays for pressure-g roups and the media to seize upon some isolated observation by an individual judge which may be unwise or at least be said to be mistaken and then attribute error and lack of judgment to the judiciary as a whole. These attacks have the potential to operate as a powerful form of public censorship and would certainly do so if the judges were to allow themselves to be driven into elaborate public defences of their position. They would soon become politicised and it is not the judges' role to be politicians.

While it can be accepted that some place must always be conceded to legitimate and balanced criticism of the work of judges, the goal should be to ensure that judges are left effectively free to pursue their tasks in a proper, independent fashion. Anyone who has thought about this topic wants the independence of the judges to be secure. That is essential if their judgments are to be respected and accepted.

Charle3 Lilley Oral lon • •A View /rom th e Nineties • The Hon. J.M . Ma ctouan, AC 15 March 1DD7 3 Perhaps judges used be accorded a higher degree of unquestioning respect in a more stable age in the past less inclined to question and dispute all viewpoints and every proposition. We, by contrast, find ourselves more in an environment where numerous groups within the community contend vigorously for influence and the umpire's decision has no easy acceptance.

Some of the old stability has gone. Still, power and fame can lend great weight to the expression of opinions on the basis that it is not so much what is said as who says it. This is an inevitable aspect of human organisation where, although we may be born equal, some individuals get to exercise more authority than others.

It may be that in the hierarchy of power and influence the relative position of judges has changed and some of the special advantage once automatically accorded to judicial opinion is replaced by a more insistent demand that the worth of that opinion should be clearly demonstrated. Nevertheless, judges must be left free to bring independent judgment to bear upon the individual cases they are called on to decide.

This having been said, it is also true that nothing would be more subversive of public confidence if it were thought that disputed issues were prejudged so that decisions were reached before they had gone to a hearing . . The judicial method ca ll s for the reserving of judgment until the arguments have been fully presented and full recognition must be given to that imperative. The accepted convention is that the judge gives his reasons for his decision and thereafter leaves it to speak for itself. .

Descending into the fray to defend judgments that have been delivered is not only thought to be unseemly but it would be very demanding of time and attention better devoted elsewhere. In the long term, if the judges were to enter into public debates about judgments already delivered it would change the institution of the judiciary itself. Under our.system the judge does his best, then stands aside so that any party who might be dissatisfied can appeal to a higher judicial le vel for review.

There is an insistence that judges should be capable of exercising restraint in dischar'ging their role and that requirement is fully justified. Otherwise, how ca n they be entrusted with decision-making? In sistence on standards for persons who exercise authority is widespread in society. As an example, look at the position of teachers. They also must conform with high standards of behaviour. In the case of teachers there is an immediate practical basis for the requirement since ch ildren learn by example and precept and instruction of the young has to be confined to persons who will be suitable influences upon the lives of their charges.

We may note a further point of distinction. A large part of the judge's role is constantly open to public scrutiny . To continue the comparison with teachers it is as if they were obliged to teach with an inspector standing permanently at their elbow.

Charles lltley Oration • ·A Vie w ftom the Nlnetle.s• Th e Hon. J.M. Macrossan. AC 15 March 1887 4 ------Anyone who has followed a case in the courts knows that cases are publicly conducted with the opposing parties in attendance to present their arguments. As the arguments proceed, the basis for the decision will begin to emerge in the eyes of any astute observer and the basis will become fully revealed and explicable when the decision and its accompanying reasons are given at the end of the case.

This established feature of our judicial culture removes the work of judges from the doubtful category of decisions which might be shallowly considered or perhaps made on a whim or iri secret and on a basis which is not revealed. Right or wrong a judge's decision may be, but you can see exactly what it is and how it comes about.

The independent position of our courts is not widely appreciated in our community. The general public takes so much for granted. Many people do not stop to th ink how intolerable it would be if the courts did not stand effectively apart from government as well as the other big players and major influences. How otherwise could the courts offer equal and impartial justice when deciding cases where a powerful party may well stand opposed to a solitary individual?

Courts do not have to do what governments might want, and governments, it has to be acknowledged, do not presume to tell the courts what to do. This aspect of our system whereby socie!y's function is regulated by institutionalised checks and balances is part of what is described by the doctrine of separation of powers. The courts are independent of the government and the government's relationship with the parliament calls for it to implement the laws that parliament enacts.

While this model may do justice to the position of the Courts and the public bodies involved, it does not speak of the part played in other areas by the pressure groups, the large corporations and particularly the media where considerable capacity to exercise influence resides in relatively few hands. Any fully developed theory of checks and balances must allow for those further powerful forces at work in our society, all of them.:dwarfing the solitary individual.

The media might be inclined virtually to claim a fully objective role for themselves saying that they simply report what has happened or is taking place and that voices, no matter whose, have only to be raised to be given a platform. But this is not the full story. Across the total spectrum of reportable items the media select those they will mention and they also decide how long they will run with them and what comment of their own they will add . It is important to identify our opinion formers and the media's capacity to exercise influence is great.

The answer to problems of social management cannot be suppression and censorship and it will always come back to our democratic processes. We must rely on those processes since any alternative is unacceptable. Our inherited institutional structure is worthy of attention for the very reason that there is a widespread assumption that it can look after itself. The reality is that it needs to be guarded with care.

Chltfel Lilley Otatlon • •.4 Wew from lhe Nineties• The Hon. J.M. Mectoss•n. AC 15 MOICh 1997 5 The first requirement is to be aware of it and to have an appreciation of its value. The young tend to think of the institutional world around them as ha ving a quality of inevitability and they do not particularly focus on their good fortune in being born into a society with favourable features and institutions in place.

At the risk of sounding like the self-satisfied Pharisee in the parable, I suggest that a comparison with other less fortunate societies highlights our own advantages. Even superficial attention to world news throws our good fortune into perspective and the enlightening effects oftravel are there if further confirmation is needed. The advantages we possess have evolved with careful nurturing and they need support if they are to endure.

Other societies of course have their good points and every society can in some ways be improved, but a most convincing demonstration of our standing in a world league table of desirability is that large numbers of people would like to join us by migrating here if permitted to do so. Our lifestyle reflects not just the operation of economic forces and political control of activity but, ultimately, it is the fruit of our institutional arrangements.

We encounter criticisms from outsiders. We are, it is said, not sufficiently dedicated to our tasks, too laid-back, we overspend, we have not acquired the habit of saving, and so on -the lists can b~ endless. While there can be something in these criticisms, what the negative critics fail to point out is that life in Austra lia has a very desirable quality, not of course eq ually good for all of our citizens but, comparing like with like, here and abroad, very good ind eed. Realisation of th is makes a solid platform for patriotism and proper pride in our nation.

The Australian Constitution is a written one which after exhaustive examination of possibilities, protracted effort and much discussion, came into operation in January 1901 . It provides the essential fram ework on which powers and spheres of responsi~ility are distributed under our federal system by allocation to various parts of the public framework and in particular allocated as between Commonwealth an.d the ~tates.

The States, or more accurately the colonies as they then were, surrendered to the Commonwealth agreed powers to clothe and equip the new entity, a na ti on not previously in existence. The newly born nation would, from that point on , enshrine a joint destiny added to the separate destinies of the constituent parts.

In the outcome, the colonies, now the States, are seen to have surrendered to the new central government much greater power than they imagin ed . This is largely because the finance powers that were passed to the Commonwealth have operated in a way which effectively eliminated most State separate fin ancial capacity and made the States dependent on Commonwealth grants and also because the external affairs power given to the Commonwealth has been interpreted in a way which allows for extensive Commonwealth intrusions into areas previo usly thought to be within the area of sole State re sponsibility.

Charles Lilley Ora lion • •A VIew from the Nineties • The Han. J.M . Macrossan, AC 15 M arch 1997 6 These two influences between them have largely transformed the operation of the Constitution as originally envisaged. Consider the example constituted by the very active and influential Federal Ministry concerned with education although the Constitution grants to the Commonwealth no head of power in that area. Whether the considerable shift of power to the central government that has occurred is regarded as acceptable or perhaps an improvement and even a natural process or whether, on the other hand, it is viewed as a sad misfortune, depends on whether the person making the assessment is a committed centralist or a supporter of the continued viability of the States.

Is our present position a half-way house on the march towards an unqualified unitary system where the States will wither away as in some parody of Marxist thinking only to be replaced by an enlarged and transformed central government? We have many reasons to feel pride in the history that has brought us to the present point and there is no reason to lose confidence in the institutions with which history has presented us. We should not feel compelled to make changes acting out of a slavish sense of conformity observing that other nations may manage things differently. After all, we can be right and they can be wrong.

It is not to be expected that all capacity for change under our Constitution as it originally stood could have been excluded and it is not to be thought that all of the changes that have occurred have been unfortunate. Constitutional links with what used more routinely be called the mother-country have been very much diminished since the grant of full self-government to our nation and especially since the transforming experiences of World w_ar II and Britain's decision to join the European Community.

Emotionally, the old sense of kinship remains strong in some quarters notwithstanding the changes that have occurred and our continuing links are reflected in our membership with Britain and other countries in the Commonwealth of Nations. But changes there have been. New trade, defence and mutual interest alliances involve Australia in the Pacific region and these follow Britain's virtual withdrawal from the area .. Appeals in legal matters no longer go from Australia to London. How much further will the process of evolution go? A new flag and a new presidential style executive head a·re spoken of as possibilities and the Australian people may be asked to decide.

Whether there should be additional changes to the Constitution away from a truly federal structure and in the direction of an augmented centralist model has also become a matter for contemplation. I shall stay away from specific advocacy and content myself with broad observations.

Some pressure for change may be driven by what is essentially boredom with the status quo and the appeal of green and distant hills as well as by a feeling that existing arrangements no longer reflect our current aspirations. At the same time, there can be an emotional and perhaps even an irrational clinging to the forms and ways of the past.

Charles Llltey Otatlon · •.4 View ftom the Nlnelles· Th e Hon. J.M. Macrossan. AC 15 Mooch 1997 7 How is a balance to be struck between these competing pressures? I would hope it will be done by moving slowly and carefully and after a full discussion of all viewpoints so that the committed support of a clear majority of the Australian people will have been established. No sectors of our society should be discouraged from expressing their views or be shouted down or disenfranchised in any debate which might occur since the opinions of all are valuable.

We need to remember that the most strident are not necessarily the most enlightened. We would not want to be the passive victims of a situation like that envisaged by Yeates in his poem The Second Coming in which "the best lack all conviction, while the worst are full of passionate intensity". Those with enlightenment to offer or just a view to contribute should not fall silent and abandon the field to others. In any debate it has to be accepted that we are all equally concerned for our nation's welfare. The great source for our Constitution is the United States model notwithstanding that there are essential differences between the two.

The US Constitution with a number of amendments has stood for over 200 years and ours with far fewer significant alterations is less than 100 years old. The Australian public's disinclination to accept amendment of its constitution is well known. It may, at bottom, be a simple psychological aversion to change but more probably it should be described as a healthy unwillingness to alter something not convincingly shown to stand in need ·of improvement.

However, there is no reason tp think that our fellow citizens would not accept a change which is shown as being clet:!rly beneficial in the course of thorough and convincing argument.

Any process of persuasion should not be rushed. It took ten years from the point when the first substantial draft bill was prepared and much subsequent determined effort be.fore agreement was reached on our 1901 Constitution. It is hard to see why there should be any inflexible timetable for constitutional change if changes are to be mad~. In these matters we owe no obligation to anyone but ourselves. ·

No .tablets of stone decree a fi xed date for changes. Designing flags and composing anthems to order does not always produce the best results because inspiration has an elusive quality and may not respond as we wish. It is better to get it right rather than get it quickly. It will be the joint effort involved in considering solutions together that will bring the benefits of social cohesion rather than every detail of the outcome.

Whatever will now happen remains to be seen but if changes of consequence are to eventuate it need not be on the basis that there is something generally deficient in a federal model. Some admirable and successful societies such as the US, Germany and Switzerland, function with federal structures.

At its worst, a federal structure may slow down nationwide implementation of desirable policy and perhaps introduce a rather destructive parochialism but at its

Charles Lllfey Oration • ·A VIe w ltom th e Nine lies• The Hon. J. M. M actossan. AC 15 Ma rc h I 997 8 best it can ensure the continuing viability of separate centres of innovation and experiment that will advantage all in the long term.

It can also cater in more responsive fashion to the prevailing spirit of the separate communities which make up the nation and any more effective linking of constituent communities with government is to be welcomed. Any sense that government is remote and uncaring does not promote responsible citizenship.

Instead of a painless death for the States as advocated by some, the answer could be a strengthening of their position with further guarantees of their viability for the future. Australian society and probably most societies have changed greatly in the last fifty years. The rate at which world populations have grown has enforced the need to adapt to change although the slower pace of population growth in Australia has somewhat reduced the impact of the harsher realities encountered elsewhere.

Nevertheless, our population has increased to become about 275 per cent of what it was in 1933, the year of the last census prior to the Second World War. The bulk of this population increase has been in our urban areas. A technological and societal revolution is upon us. Any signs of a simple and unhurried lifestyle have disappeared for most of our population. Overall the standard of living has risen markedly, participation in advanced education has spread through the population and a welcome diversity in outlook has become established as a result of the migrations from various parts of the world following World War II. . Some appreciation of the structure of Queensland society as it existed towards the end of the first half of this century, incomplete as it may be , can come from looking at a few basic facts. At the 1933 census the population of Queensland was less than one million. Brisbane just under 300,000, and the four ne xt biggest cities in this State in order were Rockhampton, Toowoomba, Townsville and Ipswich all with populations under 30,000. By June 1996 the population of Queensland had grown to almost 3.5 milli'on and Brisbane to over 1.5 million.

The rank order afte'r Brisbane in 1996 had been transformed with the Gold Coast and the Sunshine Coast being the next two most populous regions and the two cities. next in size after those areas, Townsville and Cairns, both with populations over 100,000.

There was only one university in Queensland until relatively recently and the burden of providing secondary education until after World War 11 fell largely on the private schools. In 1940 there were only seventeen state high schools in Queensland but by 1995 there were 188. The compulsory educational standard to age 14 took most children through to the so-called scholarship examination in those years. Two further years could take a secondary student to the junior examination, equivalent to the current year ten, and this represented the usual limit for the reduced number who continued beyond the basic scholarship level. Few went on to the senior examination although it was of course essential for University matriculation.

Charles Lilley O ra lion • •A View from th e Nineties• The Hon. J.M . M actossan, AC There were no suburban restaurants in Brisbane and no real suburban shopping centres, only scattered rather basic shops and corner-stores. The main shopping took place in the centre of Brisbane and at the Valley to which people were conveyed from the suburbs usually by trams.

Both the standard of living and the amenity of the city and its suburbs have been considerably elevated since then . The social changes and economic expansion have altered our horizons. If opportunity and quality of life mean anything, then the improvement is undoubted. Let me mention something from a legal context which might convey an impression of a narrow world as it existed earlier this century.

Sir was a very distinguished Queenslander having been Attorney-General, Premier and Chief Justice of th is State before becoming the first Chief Justice of the High Court on its foundation following the establishment of the Commonwealth. Griffith decided to build and then had to pay for a grand house in New Farm named Merthyr after his own birthplace in Wales. It was set on 16 acres which ran down from Moray Street to its frontage on the river. Amongst its impressive features were an elaborate and highly decorated ballroom and an equally elaborate drawing-room. The need to pay for the grand scale of this building and to meet its mortgage oppressed Griffith for much of the thirty years up to the end of his life.

After lengthy service on the High Court he resigned in ill health in 1919 and it was only in that year that he ma11aged to pay the last instalment owing on the house. He apparently then felt compelled to arrange for the associated estate lands to be subdivided and auctioned. Griffith died in 1920. In 1964 the house itself was demolished to make way for a nursing home which stands amidst the surrounding close subdivision. The destruction of Griffith's grand house would now be regarded as unthinkable but no doubt in 1964 it was thought to be dictated by uncomplicated economic law operating· in a changed environment.

You may think this .story unremarkable, but to me , apart from showing in a general way the vanity oh1ll human wishes, it points to an unexpected yearning in someone from a judicial backgrou.nd with his wish to build such a monument to dreams and aspirations. Perhaps it shows the narrow scope for self-expression that existed in the remote corner of the empire that this once was, and at the same time a confidence in what appeared to be a stable world.

It leads us also to th ink how much simpler again and even more restricted must have been the lives of others less advantageously placed in those times. tt is not hard to be persuaded that Australian society has gained considerably over the years with a higher level of tolerance and understanding and a more confident acceptance of our position in a wider and not necessarily unfriendly world . Welcome new attitudes have replaced some of the narrow rigidities of the past. It is possible to detect a sense that people are prepared to respond to their responsibilities as citizens and find a place in their hearts for a proper level of nationalist sentiment along with a recognition of our cultural diversity.

Charles Lilley Oration • •A VIew from th e Ninetie s• The Hon. J.M. Macrossan, AC 15 M arch 1Q9 7 10 One commentator, Robert Audrey, was the author of a number of books that in their day were widely admired including what was perhaps the best known, The Territorial Imperative. Looking at things from a sociological viewpoint, he indicated his vision of society as functioning at its best when it provided the greatest degree of freedom for the individual restrained only to the minimum extent demanded by the necessary social controls that the common good demanded. Such a view would accommodate multiculturalism as we now understand it.

Diversity that brings with it tolerance is to be applauded although there remains the need for unity on essential core matters. Without it, we would be left in the end with only the pursuit of separate selfish interests. There would then be no basis for the provision of justice and the extension of society's helping hand to those in need of it. Need in this context is not to be restricted to membership of particular ethnic groups. Such groups nowadays are usually orga nised in a way that ensures they are not overlooked.

It seems that the western society with the greatest in-built capacity for change and adaptation is the United States and there it appears to be a product of the very diversity which marks the social structure in that country operating in conjunction with an open democratic process. The US has produced a culture and an attitude which have proved to be highly exportable and are seductive in the influence they exert. Still we need not lose our heads and we should be able to find our own way forward . ~

It is true that our perception o.f the onward path has a disconcerting habit of changing from time to time . The diffi c~ lt problem of caring for the descendants of this country's original inhabitants was once thought to be answered by a relatively intrusive solicitude, later roundly condemned as paternalism, then by full integration represented by such movements as OPAL (One People for Australia League, which had as one of its objects "to weld the coloured and white citizens of Australia into "one people"), now, more· recently, by separatist structures and adoption of a society within a society model. We would be overconfident if we think we can now see the ultimate answer.

It may seem curious if, having an established position within the legal structure, 1. were not to say a little more about the work of the courts and their current preoccupations. I shall remember my resolve to avoid too much unwelcome detail.

The problem of delays in the hearing of cases in the courts and the other intractable problem of the level of legal costs are well known and for the moment I shall put those larger issues to one side. It has to be accepted that governments, struggling to meet all of the competing demands placed upon their financial capacity, cannot provide more and more resources to support a litigation free-for-all. They have been forced to draw back from the more generous provision of civil legal aid which, in retrospect, we see may have been only a relatively brief interlude in the long life of the courts. The Government now supports a solution of encouraging alternative forms of dispute resolution to reduce the pressure on the court system. In some jurisdictions a much extended user-pays system has been

Chatles Lilley Otatlon . •A View fto m the Ninelies • The Hon. J.M. M8crossan. AC 15 Match 1997 11 suggested to assist with meeting the costs of administering the courts.

Many will see such a suggestion as unacceptable in a civilised society although it does have some consistency with the disinclination to publicly fund the cost of legal representation in civil matters: the government does not feel obliged to pay the legal costs of parties engaged in civil litigation and so, the argument would run, why should it be compelled to provide on anything like a free basis the cost of providing court facilities to hear civil cases?

Alternative dispute resolution procedures, with an increased reliance on mediation and out of court determinations, have, like arbitration, features which are long established and respectable but partake of what is essentially a privatised justice system.

The hope now is that the new approaches will result in the disposal of cases without the same level of involvement by the courts. Access to procedures standing outside the court system has already become a more usual requirement at least as a preliminary step. The question is, will more of the task of deciding civil disputes be entrusted to private tribunals with the courts stepping back to a more minimal involvement, monitoring an enlarged empire of decision-making tribunals and ensuring basic conformity with legal principles rather than ma king hand s on decisions? Would we want this?

Such a regime would represent a significant decline in a state-funded service as we have become accustomed to it. The traditional entitlement of all citizens to their day in court, provided, that is, they can afford it, may turn out to face increasingly formidable obstacles.

I wish to make brief mention of another matter that currently receives a lot of attention. Political correctness is now so much spoken of that any modern Rip Van Winkle waking from. his slumbers to hear of it would assume that it mu st be something new. Consider, however, the observation of one of Oscar Wilde's characters in Lady Windef!1ere's Fan offering her formula for success, "He thinks like a Tory and talks like a· Radical and that is so important nowadays." Does this strike a chord? I suspect that in ·one form or another political correctness has always been with us but now it is roaring along. Political correctness with its orchestrated support for particular currently fashionable viewpoints is often associated with suppression of dissent. Expression is to be permitted only for sanctioned sentiments and for propositions only in terms that are officially approved.

These processes can go beyond a polite desire not to offend or confront others. In fact, proponents of the fashionable viewpoint do not themselves fear to be confrontational and are often given to attacking their opponents vigorously and even brutally. Enthusiastic rallying of a national majority viewpoint over too wide a range can involve a long-term cost to the community if all currently unpopular attitudes are stifled. It is a process that needs watching.

Nationalism has two faces. It can be both sustaining and also potentially

C harles Lilley Otation • •A Vie w from the N fne tle s• Th e Hon. J .M . M acrossan, AC 15 M arch 1997 12 dangerous. Deep feelings can be quickly fanned into flames. When a national crisis has to be faced, the capacity of the community to act together is an invaluable resource.

On the other hand community attitudes can be manipulated to mischievous ends. In recent history we have seen what can happen when militaristic or oppressive regimes manage to gain control. The hope must be that all of the State's institutions can retain vital independent capacity. In Germany in the 1930s the press, the opposition political parties, the churches, the courts and other groups which might be thought capable of exercising restraining influence, all proved insufficient.

Perhaps the best thing about democracy is not that it always produces the best decisions and outcomes but that it requires the political leaders to consider the wishes of the citizens expressed through the ballot-box.

I conclude by returning to my point that we must not undervalue our institutions and our democratic processes. Acknowledging that we shall need to be adaptable to meet the demands of an unknown future, I suggest that this principle should guide us.

Charles Lllley 0Tatlon • •A VIew from th e Nine ties• The Hon. J. M . M acrossan, AC 15 March 1997 13