AUSTRALIAN LAWYERS AND SOCIAL CHANGE (AUSTRALIAN NATIONAL UNIVERSITY) WELCOMING ADDRESS by: Justice Ronald Sackville* National Museum of Australia, Canberra 22 – 24 September 2004 *Judge, Federal Court of Australia It is my great honour, as one of the few surviving participants in the 1974 Australian Lawyers and Social Change Conference, to welcome you to this gathering on the same theme. The two conferences, although thirty years apart, share characteristics in common, other than their name. One is a stellar line-up of presenters and commentators. (I can plausibly deny any implicit element of self-congratulation in that comment, since a re-reading of Australian Lawyers and Social Change 1, which published the papers and commentaries from the 1974 Conference, confirms that I was neither a presenter nor a commentator, but merely a participant in the discussion, playing the role of a youthful serial pest.) Consider some of those making presentations at the 1974 Conference. The opening paper, ‘ The Most Dangerous Branch? The High Court and the Constitution in a Changing Society’ 2 was delivered by Gareth Evans, then a not so humble senior lecturer in law. It is true that in 1974 he was well on the path that led to the glittering prize of high political office, but he still had only one Gareth to his name. The first commentator on Gareth Evans’ plea for a more policy oriented constitutional jurisprudence in the High Court was one William Deane QC, who appeared to accept cheerfully Gareth Evans’ description of practising lawyers as an ‘essentially narrow profession’. 3 Mr Deane, however, was quite unable to accept Gareth Evans’ regret that one could not find in the pages of the Commonwealth Law Reports ‘the racy dogmatism that is so characteristic of the United States Supreme Court’. 4 Some might 1 A.D. Hambly and J.L. Goldring (eds.), Australian Lawyers and Social Change , (1974: Law Book Company, Sydney) (‘ Australian Lawyers ’). 2 Id , 13. 3 Id , 76. 4 Id , 77. 2 argue that in his subsequent judicial career Sir William Deane, in cases like Mabo 5 and Leeth 6, managed to overcome admirably his initial reluctance to endorse racy dogmatism. Of course, Sir William achieved his own version of social change by his transformation into a potentially dangerous radical, but that story primarily concerns Chapter II of the Constitution rather than Chapter III. Sir John Kerr, the Governor General at the time, was entrusted by the then Prime Minister of Australia, a certain Mr Whitlam, to present a paper to the Conference in his stead. He did so by presenting a paper ominously entitled ‘ Australian Law and Lawyers: Instruments or Enemies of Social and Economic Change ?’. Sir John wisely warned against the dangers of ‘tear[ing] ourselves to pieces wrangling over social and economic questions.’ 7 As you know, Sir John did his bit to promote social cohesion in Australia just under fifteen months later, thereby giving a definitive answer to the question he had posed at the Conference. The aim of the 1974 Conference was to consider the extent to which the law and lawyers can and should be instruments for promoting social change. It was a propitious time to explore this theme. The reformist (some were unkind enough to say reckless) Whitlam Government had just survived the double dissolution election of May 1974. What Professor Mauro Cappelletti described as the first of three waves of the access to justice movement had begun in Australia. 8 Commentators pointed to the need for governments to accept responsibility for funding legal aid services in 5 Mabo v Queensland (No. 2) (1992) 175 CLR 1. 6 Leeth v The Commonwealth (1992) 174 CLR 455. 7 Australian Lawyers , 8. 8 M. Cappelletti and B. Garth (eds), Access to Justice, vol 1 (“A World Survey”) (1978: Sijthoff and Noordhoff); M. Cappelletti, ‘Alternative Dispute Resolution Processes within the Framework of the World-Wide Access-to-Justice Movement’ (1993) 56 MLR 282. 3 order to dismantle the economic, social and psychological barriers preventing disadvantaged groups and individuals from obtaining legal advice and representation. Responding to these concerns, the Attorney-General, Lionel Murphy had just established the Australian Legal Aid Office (ALAO), thereby recognising for the first time Commonwealth responsibility to fund and provide legal aid services. 9 The expansion of government-funded legal aid programs was seen by many not merely as a means for poor people to protect their rights and interests, but as an opportunity to use the legal system to bring about significant social change. The United States experience, most notably Brown v Board of Education 10 (decided in 1954, almost exactly 20 years before the Conference), suggested that test cases could challenge oppressive or unfair practices by governments and corporations. Even if injustices could not be prevented through litigation, they could be highlighted and legislators thereby stirred to remedial action. The reform process would be assisted by permanent law reform agencies such as the Australian Law Reform Commission, which commenced business in May 1975 under the chairmanship of a promising young lawyer, Michael Kirby. 11 In 1974, Australia was also on the threshold of legislative changes that have undeniably had a profound impact upon the legal system. The Trade Practices Act 1974 , combining consumer protection measures with a revitalised competition policy, was about to be enacted. Proposals were current for the regulation of the securities 9 The ALAO was established within the Attorney-General’s Department as a non-statutory agency replacing the Legal Service Bureau, pursuant to the Attorney-General’s directive of 25 July 1973. 10 Brown v. Board of Education of Topeka 347 U.S. 483 (1954), which held that segregated public schools violated the Equal Protection clause of the Fourteenth Amendment. 11 Established under the Law Reform Commission Act 1973 (Cth). 4 industry and capital markets. The Family Law Act 1975 , which introduced a federal system of family law full of reform, hope and promise, was enacted the following year. The use of Australia’s treaty obligations as a vehicle for expanding Commonwealth legislative power was about to be exemplified by the enactment of the Racial Discrimination Act 1975, incorporating into Australian domestic law the substance of the International Convention on the Elimination of All Forms of Racial Discrimination . A new federal administrative law was on the horizon. 12 Even a new Federal Court of Australia was within contemplation although, like the new administrative law, its establishment fell to the Fraser Government after the demise of the Whitlam Government. 13 Given the prevailing political climate, ‘progressive’ lawyers might have been forgiven for thinking that they were at the forefront of social change and that the traditional view of the functions performed by lawyers and judges required a thorough overhaul. Gareth Evans’ paper provided some support for this view, urging the High Court to articulate and apply its value preferences more clearly with an eye towards keeping the Constitution in step with social change. His policy preferences, as some commentators were quick to point out, strongly favoured enhancing the powers of the national Government at the expense of the States. Most seemed to think that this was rather provocative stuff, although Hal Wootten somewhat damped the smouldering fires of Gareth’s originality (as Sir Owen Dixon might have said 14 ) by suggesting that the paper was: 12 Administrative Appeals Tribunal Act 1975 (Cth); Ombudsman Act 1976 (Cth); Administrative Decisions (Judicial Review) Act 1977 (Cth). 13 Federal Court of Australia Act 1976 (Cth). 14 Sir Owen Dixon, ‘The Law and the Constitution’ (1935) 51 LQR 390, 397. 5 ‘fairly conservative because, fundamentally, it embodied the approach that Professor Stone taught me as a law student more than thirty years ago’ .15 Not everybody thought that lawyers should be at the forefront of social change. Professor Geoffrey Sawer asked ‘Who Controls the Law in Australia?’ 16 He answered his own question by suggesting that lawyers were much less important to the processes of social change than they liked to think. On the whole, he thought that this was a rather good thing and that lawyers should concentrate on lawyers’ law to which they were well suited both by temperament and training. Professor Julius Stone, in his inimitable style, pointed to both the creative choices open to judges and the constraints imposed upon them by the obligation to engage in reasoned analysis of legal precepts and of the policies underlying those precepts. 17 In particular, he argued, lawyers cannot hide behind apparently objective concepts to avoid talking about justice. But he did not give great encouragement to those who saw lawyers and the legal system as leading the fight against poverty, societal inequality and entrenched injustice. Reflecting the spirit of the times, two of the major papers presented at the Conference examined the role of lawyers in the regulation of economic activity. Professor Don Harding argued the case for lawyers playing a key role in the coming regulatory world. 18 In a thesis that has resonance thirty years later, he expressed scepticism about the Chicago School’s elevation of the concept of economic efficiency to ‘absolute priority’, which he illustrated by reference to Richard Posner’s then recently 15 Australian Lawyers , 356. 16 Id , 118. 17 ‘Reflections on the Seminar’, id , 376. 18 ‘Lawyers and the Regulation of Economic Activity’, id , 183. 6 published work ‘ Economic Analysis of Law ’19 . Professor Maureen Brunt, notwithstanding her position as an eminent Professor of Economics, thought that lawyers had a useful role to play, in conjunction with economists, in promoting competition policy. 20 But perhaps she was just being cautious or, alternatively, polite. Dr Joe Isaacs of the Conciliation and Arbitration Commission spoke of that lawyers’ playground, the industrial relations system.