A speech caught my eye, by Lionel Murphy at the Labor lawyers Conference in Adelaide in 1979 (with thanks to Bernadette for the referral):
Doctrine of precedent eminently suitable
for a nation overwhelmingly populated by sheep.
“My fellow lawyers, and in that I include the distinguished legislators who are here this evening.
The law and its procedures in most respects are out of date, inefficient and often unjust. This is known by everyone, except 90 per cent of the bar and 95 per cent of the judges.
The civil and criminal laws are complex and bewildering to the average person, even specialists have difficulty in understanding some of them. Defamation, privacy, corporate crime, industrial law and a host of other areas scream for change. Property rights are still preferred to civil, political and personal rights.
The out-of-date laws and procedures are not only unjust to individuals and groups, they also result in a huge burden of social cost. Most lawyers are resistant to change. Many of them are resolutely determined to oppose any change. Only public pressure will bring about the necessary changes.
Let us turn to some of the areas whee change is necessary.
The criminal justice system in Australia and not only in Australia, is a disgrace to civilised society.
We know that at the lower end of the scale there are pressures to plead guilty, which prove irresistible to most persons caught in the system. It’s, they say, easier for a camel to go through the eye of a needle, than it is for a rich man to go to jail.
The committal proceedings we have are a public scandal, especially in the area of corporate crime. Committal proceedings are dragged out, public time is wasted and an enormous amount of public expense is incurred and very often, where frauds have been perpetrated against the public, little or nothing happens. We can provide better procedures than this.
In the indictable matters, trial judges often have to give directions, which are absurdly complex and overloaded with detail. The judges are often engaged in technical exercises that they hope will satisfy the Court of Criminal Appeal rather than illuminate the minds of the jury.
The direction that a trial judge is now supposed, for example, to give on self-defence could not be understood by a jury of 12 intelligent corporate lawyers, and I suspect not by most judges who have to administer that branch of the law.
A distinguished law officer in South Australia appealed to the High Court for some enlightenment on this area, but those present, including myself, felt unable to assist him.
It is really regrettable that the legal system can be viewed with such a lack of confidence by the public that it achieves little of its aimed goals and it falls with great severity on the poor in the community and those least able to defend themselves.
Corporate frauds against the public are often committed with the assistance of accountants and lawyers, who close their eyes to what they know is happening.
There seems to be some kind of magic, which prevents the law on aiding and abetting or counselling being applied to those professionals without whose assistance the crimes could hardly be successfully carried out.
The United Nations Congress on prevention of crime and the treatment of offenders was due to be held in Sydney in 1980. This has now been cancelled by the Australian Government. Some think that Australia does not need to learn anything about the treatment of offenders and perhaps our history shows that that may be correct.
Two hundred years ago Europeans came to a country inhabited by peaceful people living in harmony with their environment, with an ancient system of law and a highly developed system of social justice. They had no need of the goods, the law, or the ideas of the invaders.
For these offences the British Government took away their land, wiped most of them out and brutalised and degraded them.
We continue to degrade them, to discriminate against them and to deny them elementary human rights. They are only one per cent of our population.
Fifty per cent of our population are women. The women of Australia were once in the forefront of the struggle for emancipation of women and the struggle for civil and political rights
Whether or not this was an offence, we have systematically denied them civil and political rights, sometimes overtly and by means of law, but very often covertly.
Consider the judiciary. There has never been a woman on the High Court or the Federal Court. Recently complaints were made that no judge had ever come from the three smaller states.
But, the fact that no woman has ever been appointed rouses no comment.
The community tolerates sex discrimination, men tolerate it, women tolerate it. One only has to go to a racecourse and see that in the official enclosures there are invisible lines across which women must not pass. The control of that, of course, is in the State legislatures, often in the State governments, but nothing is done about it.
If we turn to other areas where reform is needed, there are signs in Australia that we are about to repeat the unfortunate experience with labour injunctions and contempt citations against trade unions issued by ordinary courts.
The union injunctions brought the courts into such real contempt in the United States that their intervention was outlawed by legislation, but indications here and elsewhere are that the lesson has not been learnt by the experience of others, but is to be learnt by ourselves.
In the area of tax avoidance, this is the rich man’s province.
Some of the best brains of the law devote their energies to tax avoidance. Some of the work of the legislators is designed to overcome the work of the tax avoidance experts, but anyone conversant with the field knows that the Treasurer is standing there like King Canute.
He may hold back the waves immediately in front of his feet, but no more. While the tax laws are interpreted in the way that they have been it’s not possible for legislation to overcome tax avoidance.
As fast as one loop-hole is closed, 20 will be able to be opened and the answer, as everyone knows, is not how the law is drafted but how it’s interpreted.
I move to the doctrine of precedent, and that’s a favourite doctrine of mine. I have managed to apply it at least once every year since I’ve been on the bench.
The doctrine of precedent is one that whenever faced with a decision, you always follow what the last person did who was faced with the same decision.
It is a doctrine eminently suitable for a nation overwhelmingly populated by sheep. As the distinguished chemist, Cornford said, “the doctrine is based on the theory that nothing should ever be done for the first time”.
The vast part of the common law, which is the area not occupied by constitutions and legislation, is still judge made. It’s called the common law, which disguises its true nature that it is judge made, or decisional law.
The judges having made the law, or it having been made by their predecessors, they are entitled to bring it up-to-date, but they often neglect to do so under the excuse that only parliament can do this.
This excuse is contradicted by 700 years of the history of the common law and if it were not so we would still be deciding cases according to the law of Stephen I.
The myth that judges do not make law is still subscribed to by many judges. The community is entitled to ask how then has the common law changed beyond recognition in areas not controlled by statutory law?
There are many great judges who repudiated this myth. There was the great judge, Coke, who is well remembered for his career. He commenced as a controversial Attorney General and went on to become a revered judge.
In modern times, many luminaries, such as Justice Holmes and Lord Denning, have laughed at the myth that judges do not make law. It’s been described as infantile or puerile, and so it is.
It should be admitted judges can change the law in the areas left to them by constitutions and legislation. They should not change it by stealth; they should change it openly, and they do not have to change it by small degrees; they should change it as much as they think necessary.
It is intellectually dishonest to change the law by distinguishing cases and other devices, when what is called for is a frank repudiation of the ground of the previous decision and an acknowledgment that a new approach should be taken.
Essentially this is a non-democratic process, because it is left to a group of appointed people. This is largely unavoidable because the representative system is not really capable of dealing with the day-to-day adaption of the law in certain areas. That’s the lesson of history.
Being aware of the undemocratic nature of it, it is essential that the appointed law makers be exposed to the democratic process. Their decisions should be freely available and the reasons publicised and subjected to informed scrutiny and criticism, and to the legitimate pressure of public opinion.
The social function of the judges needs to be understood, studied, criticised and improved.
The myth that the judges cannot make law is readily used to justify the judges not making law, and if that were accepted that would be a triumph of conservatism over what has proved to be essential to the evolution of our society.
If one looks back at what’s happened to society, one sees that it has moved from the feudal system through the mercantile and the industrial revolution and into our modern complex society.
Much of the change has been accompanied by vast changes in the law and those vast changes have, for the most part, been accomplished by judicial decisions. In some cases, and in many cases, the law lagged behind the social changes while in other areas, the law was in advance, and helped to promote the social changes.
Take one example. Mansfield was well-know for taking out-of-date commercial laws of Great Britain, and going to the merchants and finding out what their practices were and almost single-handedly rewriting the commercial law of Great Britain.
That was instrumental in the evolution of London to become the commercial centre of Europe and in its way an important factor in the enormous growth of the British Empire.
The growth of trade, the growth of imperialism was made possible, to a large extent, by the fact that Britain was this commercial centre, that it had a set of sensible laws and others wanted to deal with it, and that trade and commerce could flourish.
There are many examples throughout the history of the law of the sensible adaptation of the laws to the necessary changes in society.
Regrettably in this century, one has seen the large amount of abdication of judicial responsibility in Great Britain. From 1898 to 1966 the British judiciary contended that once the law was made, in all events by the House of Lords, it was not changeable other than by parliament.
That brought about a tendency to freeze the law and we have suffered in Australia by our tendency, as part of the post-colonial syndrome, to follow this trend even more zealously than did the British.
The response of the legislatures to the judges declining to adapt the law has been to set up law reform commissions. This is one of the main reasons for the establishment of the Australian Law Reform Commission. But had the judicial function been properly exercised, I think it would have been unnecessary to have the law reform commissions, which proliferate in Australia.
However, it gives the public a forum through which to press for changes in the law and enables them to participate in the legal process in the areas, which were formerly the preserve of judicial decision.
In another respect the public has had an important part to play, which is now diminishing. The public participation in the judicial process is in two ways.
One is very indirect and that’s in the appointment of the judges by the legislature and executive representatives of the people.
The other is the jury system and that’s an extremely important function of the people in the judicial process.
Regrettably again, that area of participation is diminishing and it’s an anti-democratic process which is being pursued. The argument for taking away the juries in corporate crime is said to be that the cases are too complex for juries to understand. I believe that’s nonsense.
The traditional approach of the law has been that if you have a complicated subject matter, the answer is not to do away with the juries and have decisions by experts, but to bring experts into the court-room and give the evidence by experts to the jury.
No corporate fraud is more complicated than was a poisoning case, the trial of William Palmer, for strychnine poisoning. If you want to run through the history of the law you will find again and again cases of the greatest complexities which were handled and handled admirably by the jury system.
The trend towards doing away with the jury has very strong implications, which are inimical to the freedom of the people.
We need definition and development of the law in may areas – childrens’ rights, prisoners’ right, those of other disadvantaged groups.
We need community legal education beginning in the schools; we need provision of legal aid as an instrument to equalise opportunity.
This will require change in the attitudes of academics, of practitioners, government as well as private, and of judges.
The impetus for change will not come from the establishment lawyers, it will come from lawyers like you. It is worthy of the efforts of Labor lawyers; it is a labour of love.”