AUSTRALIAN LAWYERS AND SOCIAL CHANGE

(AUSTRALIANNATIONALUNIVERSITY)

WELCOMING ADDRESS

by:

Justice Ronald Sackville*

NationalMuseum of Australia, Canberra

22 – 24 September 2004

*Judge, Federal Court of Australia

1

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 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 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 1975under 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 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:

‘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 entrenchedinjustice.

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 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.[21] Nobody seemed to think that the essentials of the Arbitration system, with its emphasis on collective bargaining, would change much. Perhaps they were influenced by the fact that some participants were prevented from arriving at the Conference on time because of an airline strike: an event that Australians had come to expect at regular intervals, especially Christmas and school holidays. None of the participants in the Conference foresaw the role that the then President of the Australian Council of Trade Unions, R J Hawke, would play some years later in explaining to pilots the error of their ways, in the process transforming labour relations in Australia.[22]

The papers and discussion at the Conference made an important contribution to issues that are still debated thirty years later. It is difficult from a distance of 30 years to appreciate fully the significance of the emphasis placed on the relationship between the legal system and social change. Obviously enough, however, the topics chosen for discussion were not meant to be an exhaustive catalogue of the reform agenda for the final quarter of the twentieth century. It is no criticism of the organisers to observe that, one lesson to be learned from the 1974 Conference would seem to be that lawyers are not particularly good at identifying or predicting social change, even in areas that have a profound impact on what Geoffrey Sawer would have regarded as ‘lawyers’ law’. Like the dog that did not bark in the night, the limitations of the debate can be seen by what was not discussed.

In retrospect, it is striking that only three of the 50 participants at the 1974 Conference were women: Professor Brunt, Elizabeth Evatt (then Deputy President of the Arbitration Commission) and Jane Levine, then a Lecturer in Law at the University of New South Wales. The only specific reference to the aspirations of women came with Julius Stones’ substitution of the word ‘fertile’ for ‘virile’, on the somewhat spurious ground that ‘Women’s Lib’ forbade the use of the latter. Four years after the publication of ‘The Female Eunuch’[23], Gareth Evans bemoaned the reluctance of governments ‘to even contemplate the appointment of the kind of men of affairs who have so often been elevated to the United States Supreme Court’.[24] Probably the most profound social change in Australia since the 1970s has concerned the struggle by women to achieve social, political and economic equality. Yet the concept of gender equality, or the contribution that lawyers could make to it, received no mention at all.

The only reference to the historical injustices inflicted on indigenous people in Australia was made, and then only obliquely, by HC (‘Nuggett’) Coombes who, as Chancellor of the AustralianNationalUniversity, made the opening remarks at the Conference.[25] He suggested that more work should be done on the nature and content of Aboriginal law and the means by which it could be recognised by the wider society. Mr Coombes did not, however, argue for the recognition of Aboriginal land rights or what is now known as native title. He even felt obliged to apologise to the Conference for taking up time to ride his own ‘hobby-horse’.[26]

None of the other papers or commentaries took up Mr Coombes’ suggestion. While Mabo (No. 2) was not decided by the High Court until 1992, eighteen years after the Conference, Mr Justice Woodward’s report recommending the grant of Aboriginal land rights in the Northern Territory had been presented to Parliament in April 1974.[27] Even so, the question of native title that was to propel the High Court into the centre of the political arena in the 1990s received no mention at the 1974 Conference.

With the clarity of hindsight, the examples of missing issues can be multiplied. The Conference said nothing about the likely consequences of more liberal immigration policies (after all, the White Australia Policy had finally been abandoned only a decade earlier). Much less did the participants foresee the profound significance for the international community and for Australia in particular of mass movements of people claiming the protection of the Convention relating to the Status of Refugees. Nor was there discussion about alternatives to the court system, either in relation to alleged criminal conduct or to the resolution to civil disputes. Concepts such as alternative dispute resolution and restorative justice, now a familiar part of the legal lexicon, escaped attention. So did environmental issues.

Although the role of lawyers in economic regulation was closely scrutinised, nobody apparently saw that an equally, if not more important issue was to be the role of lawyers and the court in economic deregulation. By the mid 1970s, the taxation system had been brought into disrepute largely because of the Barwick Court’s now discredited approach to the construction of tax legislation (usually described as literalist, but in fact anti-revenue).[28] Yet the topic was not mentioned, despite the centrality of a fair and efficient taxation system to social and economic justice.

Even the extensive discussion of constitutional adjudication in the High Court did not anticipate what have proved to be the great constitutional developments of the last three decades. Since cases like Koowarta[29]and Tasmanian Dams[30] established the breadth of the external affairs power, Australian constitutional law has been less concerned with the distribution of legislative powers between the Commonwealth and the States than with the constraints on governmental power and the protection accorded to the judicial power of the Commonwealth by Chapter III of the Constitution. Who in 1974 could have anticipated that the High Court would construe a State law prohibiting the use of insulting words in a public place as limited to words provoking the fear of violence in the listener, because to do otherwise might well infringe the freedom of political communication implied by the system of representative government created by the Constitution?[31] Who in 1974 could have anticipated that the High Court would be willing to strike down a privative clause curtailing judicial review of migration decisions, at least if it was interpreted in the conventional manner intended by its sponsors?[32] Who in 1974 could have anticipated that a State law requiring a State court to order the detention of a named person, if it was satisfied that the person would commit a serious act of violence, would be struck down as incompatible with Chapter III of the Constitution?[33]

The program for the 2004 Conference is an admirable one, addressing a range of issues of enduring importance. There is nonetheless one thing we can be sure of: the topics that have been selected for discussion, important as they are, will not cover all the significant social changes that will shape the legal system over the next quarter of a century or so.

Some such areas can be identified immediately. The most obvious is the change of community attitudes associated with fear of international terrorism. This has generated an acute conflict between the perceived needs of national security, on the one hand, and individual freedoms hitherto taken for granted in Australia, on the other. The anxieties afflicting the Australian community are far removed from the relatively tranquil environment facing Australia in August 1974, even though a full-scale war in the Middle East had taken place less than a year earlier and the United States’ defeat in Vietnam was not yet complete. The pressures to curtail civil liberties, both domestically and in international forums, generate formidable challenges for the legal system. Particularly is this so when the greatest threat to western societies lies not in the occasional car bomb or suicidal attacks on children – terrible as these events are – but in the by no means fanciful prospect of a terrorist inspired nuclear cataclysm.

A second obvious area of social change that must continue to be addressed by the legal system is that brought about by the new technology. The world of instant electronic communications offers boundless possibilities for good; it also allows evil-doers to broadcast their acts of barbarity immediately to anyone with access to the internet. The boundaries of intellectual property are being stretched beyond recognition as the corporations holding copyright, patents and other intellectual property rights – far removed from the paradigm of the lonely inventor or author – seek to exploit the fruits of intellectual endeavour (usually someone else’s).[34] A balance must be struck between acceding to the ever-increasing demands of the holders of intellectual property rights, often aided by powerful trading blocs and international organisations, and values such as freedom of expression and the freedom to build on novel ideas. The contest between intellectual property rights and competition policy will be one of the more important legal battlegrounds in the early twenty-first century.