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 Barristers, 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 Australia, 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 MURRAY GLEESON* 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.