LAW AT CENTURY'S END - A MILLENNIAL VIEW FROM THE HIGH COURT OF AUSTRALIA
The Hon Justice Michael Kirby AC CMG
in the beginning
When I sit in the No 1 courtroom in Canberra,
it is impossible to escape the presence of the three original
Justices of the High Court - Chief Justice Griffith, Justice
Barton and Justice O'Connor. Their huge portraits are the
only ones which hang in that room. Their presence is palpable.
They remind the present Justices, and all who come
into the room, of the continuity of the law and of the Court.
The portrait of Griffith, copied by Sir
William Dargie from the original which hangs in the Supreme
Court of Queensland (where he had also been Chief Justice),
makes him appear somewhat lifeless, formal, remote. Barton
with his cigar looks what he was - an urbane, comfortable,
efficient lawyer who helped hammer the Australian federation
together and became its first Prime Minister. O'Connor has
a sensitive Irish face which belies the austere robes and
tricorn in which he presents himself.
In moments of reverie, I ask myself what
they would say to us if they could come back and witness
the product of their handiwork a century later? What would
they feel about the role of the Court which they helped
to establish? Would
a week in our chairs seem very different from the same interval
in October 1903 when they first assumed office? As the world
approaches a new millennium, the federation its centenary
and the Court the celebrations of its first hundred years,
it is natural to look back in this way; and to look forward.
To attempt an answer to my questions, I
opened the first volume of the authorised decisions of the
Court, the Commonwealth Law Reports. It provides an interesting insight not only
into the work of the Court in 1903-1904 but also into Australian
society at that time and its legal and social problems.
The first reported decision, Dalgarno v Hannah records a motion to rescind
an order granting special leave to appeal which had been
made before the passage of the Judiciary
Act 1903 (Cth). The record of the facts tells of a jury
verdict for £200 damages in an action brought by a telephone
worker against a nominal defendant in the Supreme Court
of New South Wales. The report comments that the decision
of the Full Court of the Supreme Court of New South Wales
refusing to intervene in the verdict was obscure: it not
clearly appearing whether the judgment of the Court was
based upon the maxim res
ipsa loquitur, or whether there had been additional
evidence of negligence. A comment
on the second page caught my eye. The Court had just heard
an appeal which raised a question whether the doctrine of
res ipsa loquitur should be banished from our law precisely because
of the uncertainties to which it was said to give rise. Some problems just keep coming
back to revisit us.
Dalgarno
and several other cases in the first volume explore the
grounds upon which special leave to appeal would be granted
by a court where the applicant cannot come as of right.
In 1903 appeals as of right lay where the judgment under
consideration concerned a matter in issue amounting to the
value of £300 or where it affected the status of a person.
The first volume contains a report of a
Privy Council decision in an Australian appeal refusing
special leave to appeal from early orders of the High Court
of Australia. In
Daily Telegraph Newspaper
Co Ltd v McLaughlin the record shows that their
Lordships declined to intervene on the basis that the case
was `unattended with sufficient doubt’ to justify that course. I always
wondered where that phrase came from. When, in the Court
of Appeal, I would sometimes see my decisions upheld by
the High Court, by the use of that formula, I sometimes
felt a little hurt. Did it mean that there was `doubt’ about
the correctness of my reasons; but not enough of it to warrant
the grant of leave? Was it perhaps a polite way to say to
an applicant, who had spent a great deal of money to seek
special leave, that there was actually an awful lot of doubt
but that the High Court was too busy to resolve it? It was
a formula adopted by the Privy Council and quickly accepted
by the High Court itself. It must
be possible to formulate reasons for the refusal of special
leave which are less Delphic.
In refusing leave in the Daily
Telegraph Case, the Privy Council emphasised the importance
of the new Australian court:
The High Court occupies
a position of great dignity and supreme authority in the
Commonwealth. No appeal lies from it as of right to any tribunal
in the empire. That
can be no appeal at all unless His Majesty, by virtue of
his Royal prerogative, thinks fit to grant special leave
to appeal to himself in Council. In certain cases touching the Constitution
of the Commonwealth the Royal prerogative has been waived. In all other cases it seems to their Lordships
that applications for special leave to appeal from the High
Court ought to be treated in the same manner as applications
for special leave to appeal from the Supreme Court of Canada,
an equally august and independent tribunal.
The first volume of the reports also include,
as might be expected, early cases concerning the new federal
Constitution. Two cases involved attempts by the States
to impose burdens on federal employees: D'Emden v Pedder and Deakin
v Webb. Also in
the first volume was the first case concerning the meaning
of that elliptical phrase `duty of excise’ appearing in
s 90 of the Constitution. That expression has since filled many a page
of the reports. One cannot be sure that the majority opinion
in Ha v New South Wales means that
it will never return.
From the start, cases involving federal
legislation were important for the work of the High Court.
There were many cases concerned with electoral returns,
including no fewer than three in the Chanter v Blackwood litigation which concerned
the 1903 federal election for the House of Representatives
seat of Riverina. At
the beginning of the century, there was much controversy
concerning the meaning of ticks and crosses on ballot papers.
At the end of the century (in a vote on a referendum probably
unimaginable in 1903) republicans and monarchists were fighting
over ticks and crosses and their meaning in the ballot of
6 November 1999 concerning the proposal to change the Commonwealth
to a republic.
There were several cases on the customs
power in 1904, that being at the time the major source of
revenue for the new Commonwealth. The conciliation and arbitration
power was already beginning to gather the attention that
has preoccupied the Court to the present time. Other statutes
were also part of the staple diet of the Court from the
beginning. There were two cases on State laws affecting
lunatics; one case involving a State law for the compulsory
acquisition of land; and another concerning that regular
visitor to the Court over a century: the indefeasibility
of Torrens title.
The type of society which Australia was
at the beginning of the century is illustrated by the cases
concerning licences for the removal of nightsoil; obligations
as to rural vermin-proof fencing; the requirements of pasture
protection; the incidence of gaming and wagering; and whether,
in cattle slaughter laws, a `pig’ was within the definition
of `cattle’. The answer given was that it was not.
Business law made its appearance in those
days, as it has done ever since. There were cases about
bills of sale in insolvency, the duties of bankers to customers and the obligations of company
directors to register share transfers. Add to
this collection cases on the right to ancient lights, on
the powers enjoyed by State police constables and on the
construction of wills and you see the great variety of the
work of the High Court from its earliest beginnings. Unlike
the Supreme Court of the United States, the character of
the High Court of Australia was stamped on it by its obligation,
from the first, not only to be the supreme constitutional
court for Australia but also a general court of appeal supervising
all other courts of the new Commonwealth.
Fast Forward
If the foundation Justices of the High
Court of Australia were to pick up the latest volume of
the Commonwealth Law
Reports, they would see some changes. True, they would
see the same diversity of law and a number of similar problems.
The construction of wills has, alas, all but disappeared.
There are fewer cases on pasture protection and none on nightsoil.
But negligence, which was there at the very beginning,
is still a hardy perennial. Indeed, following Donoghue
v Stevenson the number
and variety of cases on that theme has exploded. In one
of the latest volumes there are two decisions, each dealing
with the liability of a public authority to a person said
to have been harmed by that authority's failure to act to
protect the plaintiff. In one the plaintiff succeeded; in another
she failed.
One now common visitor, not found at all
in the first volume, is the criminal law. Because of the
aphorism that crime does not pay, that body of law has never
been as fashionable in the senior ranks of the legal profession
as it deserves. Citizens probably consider that the most
important areas of the law are crime, family law and (possibly)
industrial relations law. Citizens are rarely wrong. At
least since the time of Chief Justice Barwick, the High
Court of Australia has accepted a sizeable number of cases
involving points of criminal law. In recent volumes there
is an exploration of the crime of conspiracy to defraud and of the consequences for
criminal trials of the conduct of undercover police operations. The controversies
about police constables at the beginning of the century
were more straight-forward.
Constitutional law and the law relating
to conciliation and arbitration of interstate industrial
disputes has remained on the agenda throughout the century.
The old faithful, logs of claim, are there in the latest
reports, illustrating
vividly the adaptability of the Constitution to the changing
economic and industrial needs of a continental country with
a common economic market. Business law now probably occupies
a greater proportion of the Court's time. Cases on bankruptcy, insurance and insurance
brokers cover many pages in the contemporary
reports.
Federal and State law continues to require
attention. Customs and excise legislation engaged the present
Court as did the State law on stamp duty and the perennial
favourite, indefeasibility of registered title. The impact
of new technology can be seen in cases now coming before
the Court. Two in
the recent volume include the use of the technology of listening
devices, a facility that the police
constables of the turn of the last century could only dream
of.
If one considers the differences and the
similarities, the latter clearly predominate. Griffith,
Barton and O'Connor would not, I think, take long to master
the detail of contemporary Australian law. The techniques
are substantially unchanged. Save for occasional visitors
from Western Australia and Tasmania, the dress of counsel
would appear entirely familiar to them, with the wigs firmly
in place. Whereas a medical practitioner of 1903, walking
into a modern hospital, would feel lost in the world of
computer technology and modern pharmaceuticals, the judge
or lawyer of the days when the High Court of Australia was
founded would not feel lost at all. In law there is merit
in stability and continuity.
But have we over-valued these features of our discipline?
Ought we to have been more questioning about fundamentals?
Is it necessarily a matter of self-congratulation that the
fundamentals have not changed much since 1903?
The Changes
Court system
This is not to say that change has been
a stranger to the High Court of Australia. On the contrary,
many changes have occurred in the century which is about
to close.
The abolition of appeals to the Judicial
Committee of the Privy Council is one of the most significant
of the changes. I refer
not only to the abolition of appeals to the Privy Council
from the High Court and other federal courts, but also the
termination of appeals from State Supreme Courts and the
clear indication that the High Court would never again grant
a certificate to appeal under s 74 of the Constitution. The insistence
that most of the important constitutional cases should be
finally determined by the High Court of Australia was a
means of avoiding unwanted imperial interference in, or
decisions about, federal issues with which English judges
were generally unfamiliar.
The removal of the possibility of appeals
from the High Court itself to the Privy Council changed
the self-image of the Court. No longer was it a penultimate
final court of appeal. It was freed from the superintendence
of foreign judges, in a way that New Zealand courts, even
to this day, have not been freed. The possibility until
1986 that appeals could still be taken to the Privy Council
directly from the State Supreme Courts meant that most Australian
State courts had to reach many of their decisions with the
possibility in mind that a tribunal external to Australia,
and other than the High Court, might have a say in a matter
of legal principle affecting Australia's law. As it happens,
I participated in the Court of Appeal of New South Wales
in the last decision of an Australian court which went on
appeal to the Privy Council in London. Now that era has passed.
It was not wholly unsuitable to Australian conditions
in earlier times. It had the merit of linking our law to
one of the great centres of law in the world. But the removal of that link has had a considerable
influence upon the development of Australia's law in the
past two decades. It has affected the sources used by Australian
courts and the notions which now prevail about the ultimate
foundation of Australian law.
Other features of the courts in the past
two decades which have affected the development of Australian
law have included the growth of the federal courts following
the establishment of the Family Court of Australia and the
Federal Court of Australia. Another is the creation of a
number of separate State and Territory Courts of Appeal which have altered significantly
the sources from which the High Court receives most of its
business.
Judicial numbers
Another change in the century past concerns
the number of Justices of the High Court. In 1903 the Court
comprised the minimum constitutional number, namely a Chief
Justice and two Justices. In 1906,
with the appointments of Justice Isaacs and Justice Higgins,
the number rose to five.
In 1913, with the appointment of Justice Gavan Duffy
and Justice Powers, it rose to seven. This is the number
that has remained ever since, although for a short interval
during the Depression and until Justice Webb was appointed
in 1946, one vacancy was left unfilled.
In both the No 1 and No 2 courtrooms in
Canberra, the design of the Bench appears to contemplate
the eventual appointment of two further Justices. That would
bring the complement of the Court to nine - the same as
the Supreme Court of the United States and the Supreme Court
of Canada. If areas were cleared on level 9 of the Court
building in Canberra, where the Justices' chambers are found,
it would be perfectly feasible to establish chambers for
two additional Justices. There is no constitutional barrier
to the enlargement of the Court. Occasionally the idea has
been talked of. The smaller the number the greater the possibility
of collegial dialogue. Any increase in the size of the Court
would probably have to be accompanied by changes in the
Court's methodology and perhaps in the organisation of the
way in which it hears and disposes of appeals as the Constitution
contemplates.
Court business
In 1903, most of the work of the High Court
of Australia comprised appeals coming to the Court as of
right pursuant to the provisions of the Judiciary
Act 1903 (Cth) s 35.
Appeals then lay as of right from any judgment of
a Supreme Court of a State exercising federal jurisdiction
in a matter pending in the High Court or, as earlier stated,
in cases having at stake a sum declared sufficient for such
appeal. Otherwise special leave to appeal was required.
The provision for appeals as of right was
abolished in 1976. Section 35 of the Judiciary
Act 1903 (Cth) was amended to establish a universal
rule confining the right to appeal to one where the High
Court itself has granted special leave for that purpose.
This has also significantly altered the work of the Court
which is now, substantially, in the hands of the Justices
themselves. They can select and fix the priorities which,
in the past, were largely out of their control and substantially
determined by litigants. This explains the falling away
of cases involving the construction of wills or of most
State statutory provisions. In the past, it was enough that
the amount at issue reached the threshold necessary for
a right to appeal. Now, different considerations engage
the attention of a special leave Bench. Unless those considerations
are present, the High Court will not usually intervene.
The same is true of the original jurisdiction
of the Court. Few trials in the ordinary sense are now conducted
by the High Court. Much of the work of taxation, intellectual
property and the like, which formerly occupied single Justices,
has been assigned by statute to other courts. Alternatively,
cases which must come directly to the Court in its original
jurisdiction under s 75 of the Constitution may now be removed
or remitted to other courts. This is
commonly done, particularly if there are disputed facts.
This means that any case which remains in the High Court
is likely to be an important one. It will typically be one
involving difficulty, a significant legal principle, diversity
of opinion in the courts below or an apparently serious
injustice which calls for the intervention of the highest
court.
Although the right of the Parliament to
confine the appellate jurisdiction of the Court to cases
where special leave was granted proved controversial and
was even challenged, it is difficult to conceive
how the Court, at least in its present numbers and with
its present organisation, could have coped if a large proportion
of its business arose as of right. Those who knew the Court
in the years up to the middle of the 20th century
describe its operation in ways that seem familiar to the
experience I had in a State Court of Appeal. When there
is a large amount of work which cannot be diverted or divested,
there are imperatives of throughput and brevity, efficiency
and sharing, which are reduced somewhat when the court's
docket is controlled by the judges themselves.
Sittings and circuits
Some features of the sittings of the High
Court of Australia have remained the same.
In June, as in Chief Justice Griffith's days, we
return to his beloved Brisbane. In August, the Court travels
to Adelaide for a week. In October, it is Perth. Chief Justice
Barwick, a keen yachtsman, always attempted to visit Hobart
for the Regatta Week in March.
Now, the Court only travels to Hobart if business
permits; and this is comparatively rare. It does not yet
travel to Darwin, although business there has been comparatively
brisk. On the establishment of the seat of the Court in
Canberra, Chief Justice Barwick attempted to terminate the
circuits to the outlying cities. This was resisted by the
then Justices. Although views differ, most consider (as
I do) that it is important for the Court to maintain the
circuits. They provide an essential link between the serving
Justices and the legal profession and litigants in the outlying
States.
The creation of the Court's permanent building
in Canberra undoubtedly had an effect which went beyond
the more efficient operations that it permits. Placing the
Court in the constitutional triangle in Canberra imprints
on the mind of all who work in it the significance which
the Constitution assigns to the High Court in both its national
and general appellate functions. It may be no accident that
the period following the establishment of the seat of the
Court in Canberra witnessed significant developments in
the creativity of new legal doctrine affecting both the
Constitution and the general law.
Following the example of the Supreme Court
of Canada, the High Court of Australia has established videolinks
for the conduct of special leave hearings from courtrooms
in Brisbane, Hobart, Adelaide, Perth and Darwin. These were
not imagined in 1903. They are very efficient. Analysis
of outcomes indicates that there is no difference between
rates of success for counsel appearing in person, where
the judges are sitting in Canberra, and counsel making their
submissions at long distance by videolink. The only differences
are that average hearings seem to be shorter when conducted
by videolink, costs are much lower and litigants can readily
attend in outlying centres and see their cases argued. Physical
propinquity seems to encourage a greater measure of long-windedness
in advocates. This may be a reason for expanding the videolink
hearings.
The use of electronic systems has also
been helpful in the provision of the decisions of the High
Court to the profession and to the general public. The reasons
of the Justices are posted on the Internet on the morning
they are delivered. Records indicate that there are approximately
660 hits a week indicating visits to the Home Page. These
numbers are increasing all the time. They extend to overseas
users as well as those throughout Australia. The transcript
of oral argument in the Court is on sale usually within
two hours of the completion of the hearing. It is also available
on the Internet within 24 hours, free of charge. It seems
likely that the next step will be video transmission of
the hearings before the Court, although upon the wisdom
of this innovation opinions differ.
Dress and gender
One matter in respect of which the original
Justices would certainly note a change concerns the Court
dress of the Justices. In 1986, they decided to abandon
the traditional robe and wigs. A simple Australian woollen
garment is now worn with no head coverage. In Canada, and
in most parts of the former British Empire where wigs have
been dispensed with, the robes of judges and advocates have
otherwise followed the English tradition which at least
has the merit of contrasting black and white elements. Now
the High Court is decked in black alone. Some observers
find this forbidding - a characteristic which may well have
attracted its designers. The change has certainly accelerated
moves for the abandonment of wigs both in federal and State
courts.
One noticeable change since 1903 is the
presence in the Court of Justice Mary Gaudron, the first
woman Justice. She was appointed in February 1987. She remains
the sole woman to have held the office. One in a century
can scarcely be described as a flood. The recent appointments
of Dame Sian Elias as Chief Justice of New Zealand and Madame
Justice Beverly McLachlin as Chief Justice of Canada indicate
the change in the composition of the Bench that is coming
throughout the common law world. But its advent in Australia
will be slow. Perhaps the original Justices would be scandalised
by the public revelation of my own sexuality. Griffith,
after all, included homosexual offences in the Criminal
Code which he drew up for Queensland. I am sure
that I am not the first Australian judge to have been homosexual;
nor will I be the last. But I am certainly the first to
have been open about it; itself perhaps a sign of changing
times.
Knighthoods (and the equivalent Damehoods)
which were once the automatic entitlement of a Justice have
disappeared forever. Chief Justice Gleeson is the first
Chief Justice of Australia without the honour of a knighthood,
although he is a Companion of the Order of Australia, now
the nation's highest civil honour. Even appointment to that
rank, which was formerly automatically offered to a Justice,
is, it seems, now no longer prompt or assured.
Time limits
For most of the century the High Court
has managed without the imposition of formal time limits
on the duration of the arguments of advocates. The extended
argumentation of the Banking Case before the High Court and
the Privy Council, was internationally notorious. But it
did not propel the Court into any limitations of the kind
long accepted in the United States Supreme Court. With the
introduction of universal special leave requirements, time
limitations were, at last, imposed. Now, counsel must compress
their submissions to 20 minutes. The limitation certainly
concentrates the mind of all involved in such hearings,
including the participating Justices.
No strict limitations of this kind have
been imposed in the presentation of argument in an appeal,
once special leave is granted. To a large extent the Court
has left it to the parties and their representatives to
agree on the time required and on the division of that time.
Whether it would be preferable to impose standard time limits
for oral argument and to list more cases for hearing, is
a matter for the future.
Dissent
One of the most distinctive features of
the common law judicial system is the right of appellate
judges to express dissenting opinions. Even the Privy Council,
which tenders its decisions for the most part in the form
of advice to the Queen, has now introduced the right of
dissent. In giving his reasons in the Privy Council in Fisher
v Minister of Public Safety and Immigration, Lord Steyn observed recently:
A dissenting judgment
anchored in the circumstances of today sometimes appeals
to the judges of tomorrow. In that way a dissenting judgment sometimes
contributes to the continuing development of the law. But the innate capacity of different areas of law to develop varies.
Thus the law of conveyancing is singularly impervious
to change. But constitutional
law governing the unnecessary and avoidable prolongation
of the agony of a man sentenced to die by hanging is at
the other extreme. The law governing such cases is in transition.
In the first volume of the Commonwealth Law Reports in Chanter
v Blackwood Justice
O'Connor regretted his inability to agree with his colleagues.
The series was only 65 pages into its record of the doings
of the High Court when the first dissent appeared.
Justice O'Connor said:
It would have been
well if in this decision which will be a guide to the administration
of the Act throughout the Commonwealth, the judgment of
the Court had been unanimous. I have given the utmost possible consideration
to the opinion of my learned brothers, with a view to seeing
whether I could not agree with them.
Notwithstanding … I hold a very clear opinion [to
the contrary].
The judge went on to express it.
From the start, the High Court of Australia
was a court of robust differences. In my dissent in the
cross-vesting case of Re Wakim I concluded by borrowing
the final remarks of Justice Barton in Duncan v Queensland:
To say that one regrets
to differ from one's learned brethren is a formula that
often begins a judgment. I end mine by expressing heavy sorrow that
their decision is as it is.
With the arrival of Justice Isaacs and
Justice Higgins in 1906, the comparative unanimity of the
original three Justices of the High Court of Australia was
completely shattered. The former, in particular, was a noted
dissenter. His command of language, intellectual vigour
and consistent vision of the Constitution put him in a special
class. One gets the impression that he may not have been
the most congenial of colleagues. Yet the power of his intellect
has proved resilient. He is often read to his successors.
In the 1970s, Justice Murphy assumed the
mantle of the principal dissenter. Of the approximately
600 opinions which he wrote whilst a Justice of the Court,
137 were in dissent. This constitutes 23% of the total.
Some of his dissents have proved prescient, although usually the ideas
he advocated have been adopted without much acknowledgment.
The law is hard on outsiders.
Recently, the Court administration provided
statistics on the rate of dissent of the current Justices.
According to those statistics, I have overtaken Justice
Murphy. Approximately 32% of my opinions are in dissent.
The next in proportion is Justice McHugh with 15%. The rates
of dissent of the other Justices are much lower. These figures
can, of course, be misleading. In some cases, a Justice
may agree in the Court's orders (and thus not be in formal
dissent) but express completely different reasons for coming
to his or her conclusion. In my own case, this occurred
in, for example, Garcia
v National Australia Bank Ltd. Some commentators have described
my opinion there as a dissent; and certainly I did not agree
with the views of the majority that the reasons of Justice
Dixon in Yerkey v
Jones yielded
an applicable rule of the Court. But it was not a dissent
because I concurred in the Court's order, although for different
reasons.
In most countries of the civil law tradition,
judicial dissent is completely forbidden. The foundation
for this view is a conception of the law as having but one
possible exposition. Dissent, it was feared, would undermine
the authority of the law which rests upon its certainty.
It was upon the insistence of the Allies that the post-War
Constitution of the Federal Republic of Germany included,
in the case of the German Constitutional Court, the right
to dissent. Old habits die hard. Dissent is still comparatively
rare. It is not uncommon in the European Court of Human
Rights. The candid acknowledgment of the choices which judges
must make, and of their preferences for differing answers,
seems a more honest response to the dilemmas of the law
than the pretence that every problem yields but one correct
answer.
The Future
Other courts
Looking into the future, one is bound to
make even more mistakes than when looking into the past.
The Australian courts hierarchy has changed significantly
in the first hundred years of federation.
What will be the changes in the century to come?
The attempt to relate the Federal and State
court systems in the cross-vesting legislation survived
the first challenge. However,
following new appointments to the High Court and re-argument,
it failed the second scrutiny. It may be quite difficult
to repair the problems disclosed by that decision. In my
reasons in Gould v
Brown, I suggested
that it might have been possible for the scheme of cross-vesting
to be sustained by a reference of powers to the Federal
Parliament pursuant to the Constitution s 51(xxxvii) or
the request for, or concurrence of, the Parliaments of the
States to the exercise by the Federal Parliament of a power
which, at federation, could be exercised by the Parliament
of the United Kingdom, as the Constitution s 51(xxxviii)
contemplates. This was in error. The fundamental difficulty
which the majority discerned in Re Wakim, in the path of establishing a scheme for cross-vesting of
jurisdiction, arises from a conception of the requirements
of Chapter III of the Constitution.
All powers conferred by s 51, including those mentioned,
are expressed to be `subject to this Constitution’. That
means (as would in any case apply, given the structure of
the Constitution) subject to the requirements of Ch III.
Therefore, within the current constitutional text, it is
difficult to see how the status quo ante on cross-vesting could
be restored in terms of the Constitution as it stands. No
doubt this is why the Federal Attorney-General has announced
that consideration is being given to a constitutional amendment.
Recent history is somewhat discouraging
for proponents of constitutional referenda. Yet the last
constitutional amendments to be approved by the electors
occurred on 21 May 1977. They included the approval for
the amendment of provisions in Ch III requiring that High
Court judges must retire at the age of 70 and other federal
judges at that age or at a lower retirement age fixed by
the Parliament. That
change, effected by the Constitution
Alteration (Retirement of Judges) 1977, was carried
with a total affirmative vote of 78.63% nationally and with
affirmative votes in all six States. Only one other amendment
of the Constitution has achieved such an affirmative
national vote in favour of change. The amendments
made by the Constitutional
Alteration (Aboriginals) 1967 to ss 51(xxvi) and 127
of the Constitution reached 89.34% and carried all States.
Whilst the Commonwealth and the States
are considering alterations to Ch III of the Constitution,
thought might be given to proposals for a national appellate
court under the High Court to which appeals from federal,
State and Territory courts could lie as of right or under
broad conditions. Although this idea might attract some
opposition on the basis of States' rights, the need to reconsider
national judicial arrangements in the light of developments
since 1901 seems indisputable. Should the Constitution remain
resistant to formal change in this regard, it could be feasible
to explore the alternative possibility of granting personal
commissions to judges of Australian courts to participate
in the appellate courts of jurisdictions other than their
own. Already, Justice Priestley of the New South Wales Court
of Appeal, holds a personal commission as a judge of the
Court of Appeal of the Northern Territory. His service in
that Court is compensated by the provision of a judge of
the Supreme Court of the Northern Territory who receives
a commission to sit in the Supreme Court of New South Wales.
In 2000, Chief Justice Doyle of South Australia and Justice
Brooking of the Victorian Court of Appeal were given similar
commissions so that they could sit in Darwin with Justice
Priestley in a sensitive case.
In the smaller States, it has always seemed to me
that a separate Court of Appeal could be constituted by
appointments of this kind which would involve a practical
measure of cooperative federalism.
In the industrial relations field, cooperation of
this kind has existed for many years.
Judges and other members of State industrial courts
and tribunals have been given personal commissions as Presidential
Members of the Australian Industrial Relations Commission. Sometimes
the rigid inflexibilities of the Constitution can be softened
by sensible institutional arrangements of this character
which are entirely consistent with the cooperative presuppositions
inherent in the type of federation which the Constitution
establishes.
Neighbouring countries
My service as President of the Court of
Appeal of Solomon Islands, which I resigned on my appointment
to the High Court of Australia, alerted me to the growing
influence which the High Court, and other Australian courts,
have on the jurisprudence of the courts of neighbouring
countries. I refer not only to the Island States of the
Pacific and Papua New Guinea but also to countries further
away such as Hong Kong and Mauritius.
It seems likely to me that the cooperation
which already exists in the provision of the decisions of
the High Court, and of online access to current and past
decisions, will expand by the participation in the courts
of neighbouring countries of former Justices of the High
Court and judges of other Australian courts. Chief Justice
Gibbs has served on the Court of Appeal of Kirabati since
1988. Chief Justice Mason served as a judge of the Supreme
Court of Fiji and is a judge of the final Court of Appeal
of Hong Kong. He
was also my successor as President of the Court of Appeal
of Solomon Islands. Justice Dawson also serves on the Hong
Kong Court as does former Chief Justice Brennan. The latter was appointed a Judge of the Supreme
Court of Fiji, as was Justice Toohey. It seems likely that
the Justices of the High Court of Australia will continue
to play a role, after retirement, in the courts of neighbouring
countries. Obviously, this is a desirable development so
long as it is desired by the countries and judges concerned.
With the continued expansion and special
treatment of New Zealand in Australian legal arrangements,
the possibility of some form of trans-Tasman court cannot
be excluded. The constitutional difficulties
for Australia are significant. It is a misfortune that,
in the days following the Second World War, the British
authorities did not have the imagination, or interest, to
create a regional Privy Council for the Pacific upon which
Australian and New Zealand and other judges could sit together.
The experience of participating in the Court of Appeal of
Solomon Islands with senior judges from Papua New Guinea,
New Zealand and Australia is one which I will always cherish
and to which I hope one day I may return.
Methodologies
Several ideas for the methodology of the
High Court spring from current techniques. The success of
videolinks for special leave hearings makes it likely that
this mode of communication (specially adapted to a country
of continental size) will expand to appeal hearings. Case
management is already a feature of the organisation of all
Australian courts, including the High Court. This virtue
must proceed with due regard to the obligations of the Court
to observe the law and to respect the requirements of individualised
justice. It seems
likely that judges in Australia will continue to increase
their role in the management of litigation. The High Court
will not be exempt from this trend. Representative actions
present certain difficulties. However,
with due safeguards, they can also be a means by which,
in a time of mass production of goods and services, litigation
can be organised to bring the similar or identical legal
claims of many people to justice with lawfulness and efficiency.
It would not be surprising if, in the future,
formal time limits were imposed upon oral argument in appellate
courts, including the High Court. If this meant an increase
in the number of cases which could be heard by those courts,
it could prove beneficial. Few now complain about the time
limits in argument of special leave applications. The logic
of such a requirement, to concentrate the mind and tongue,
should take the High Court (and other Australian courts)
into a revision of the present conduct of ordinary appeals
and other hearings.
The writing of judicial opinions remains
the heaviest burden which appellate judges carry. Some changes
in the techniques of advocacy have already been introduced.
They include the duty to provide extended written submissions.
It may be desirable that more radical changes now be contemplated.
Twenty years ago, at a legal convention,
I suggested an idea which was denounced at the time as intolerable
heresy. It was an idea derived from my experience in the
Law Reform Commission in the distribution of discussion
papers which helped focus submissions and constructive debate.
Why not extend this methodology to the courts? It could
be done in one of two ways. Either the court itself could
prepare a draft opinion based on the papers. The advocates
of the parties could then attack, or support, this document.
Alternatively, the parties could be required to draft an
opinion for adoption (with adaptations) by the court. This
would impose upon them the obligation to relieve judges
at least from the often tedious role of recording the facts,
the issues, the applicable law and the primary arguments.
The first model is not unlike that observed
in some European court systems where a preliminary stage
of the appellate process involves the circulation of a draft
by the Advocate-General. Would this not assist in focussing
debate in an efficient manner and utilising the skills of
appellate judges in a way that is more efficient than the
often tedious and mechanical burdens which are imposed upon
them under current arrangements? Critics might perceive
serious and even constitutional problems. Would it mean,
if the drafts were prepared by an officer rather than a
judge, that part of the judicial power of the Commonwealth
had been delegated impermissibly from the courts to the
ever-expanding power of the Executive? I am far from convinced
that it would not be possible to develop means by which
decision-making could be maximised and tedium or routine
reduced. I recognise
that the solution to many cases lies in the facts. Sifting the detail is often critical to the
process of reaching conclusions. The tyranny of the first
draft should never lock the open-minded judge into a preconception
about the issues in a case or its outcome.
Yet if we compare the methodology of the
Australian judiciary and legal profession with that of,
say, the medical profession, it is clear that the latter
have been much more willing to think with complete freshness,
often stimulated by technology. The law is resistant to
truly original thinking. This is especially so when it affects
the methodology of its operations which has lasted for centuries.
There is a professional fear to change long established
ways of doing things. Whilst this is psychologically understandable
and sometimes justified, it is the obligation of every court,
but particularly the final court, to look with new eyes
at the ways in which it performs its functions. The problems
of cost and delay in getting to courts affect every court
in the Australian Judicature and extend to the High Court
of Australia. If new methodologies could be adopted which
tackled these problems and brought more people to justice
within the human capacity of the courts (including that
of the seven members of the apex court) the totality of
justice in our society could be increased. We should not
put such possibilities out of mind.
Short of such `radical’ solutions, there
may be other ways by which more cases could be disposed
of by the High Court of Australia than the current number
which approximates 60 civil and criminal appeals in any
given year. One possible
way of increasing the number of such appeals would be the
adoption of the disposal of the appeal with short form reasons
as is now possible, by statute, in the case of the Court
of Appeal of New South Wales. Innovation
in techniques and procedures should be the constant companion
of the contemporary Australian judge. They should be motivated
by the objective of reducing the twin enemies of true justice
for all - cost and delay.
Interveners and Amici Curiae
One area in which, I believe, innovation
is required concerns the acceptance of assistance from interveners
and amicus curiae. I expressed my opinion on this issue in Levy v Victoria. There,
an industrial organisation was denied leave to intervene
but permitted to make a submission as amicus
curiae. In Attorney-General
v Breckler a difference
arose as to whether a national organisation with responsibility
for administering superannuation funds should be heard in
a test case concerning the meaning of complex superannuation
legislation. The right to intervene was denied. So it was
in the case of a compensation authority in tax litigation,
although it was demonstrated that the outcome of the proceedings
before the High Court could affect the interests of that
authority in concurrent proceedings before a Victorian court. The authority
was allowed to leave its written submissions but was not
heard orally to support them.
Once it became clear that courts, particularly
the High Court of Australia, are not engaged in a mechanical
function of applying unquestioned law to unambiguous facts,
the choices which judges must make necessitates, at least
sometimes, receiving assistance from persons other than
the parties. The practice of other final courts, particularly
the Supreme Court of the United States and Supreme Court
of Canada, has adapted to this new reality. It seems inevitable
that the High Court of Australia will, in due course, do
the same.
International law
Many of the cases which come before the
High Court already directly involve issues of international
law. These can include questions of the meaning of international
treaties incorporated in Australian domestic law, elucidation
of the law of extradition and of the Closer Economic
Relations Treaty with New Zealand. The indirect impact of international law may
be seen in a series of cases where the judges have had regard
to international human rights law in elucidating a principle
of the common law in Australia. It seems
likely, for the reasons which Justice Brennan explained
in Mabo v Queensland [No 2], that international
human rights law, expressed in treaties to which Australia
is a party, will come to play an increasing part in the
development of Australia's common law.
In England, this process will probably
increase substantially following the coming into force of
the Human Rights Act 1998 (UK). Already, the fact that the
United Kingdom is answerable before the European Court of
Human Rights for the compliance of its laws with the European
Convention on Human Rights, has had an impact on substantive
law. It reaches into unexpected fields. One of these was
recently called to notice by Chief Justice Spigelman of
the Supreme Court of New South Wales. He drew attention to the decision of the European
Court of Human Rights in Osman
v The United Kingdom. In that case, the European
Court was highly critical of a decision of the House of
Lords in which their Lordships
had applied their earlier decision in Hill v Chief Constable of West Yorkshire. In the
Hill case, it
had been held that no action would lie against police for
negligence in the investigation and suppression of crime.
Courts, it was held, should not supervise the difficult
work of police. The European Court concluded that such an
approach involved the conferral of a blanket immunity on
police which constituted an unjustifiable restriction on
a victim's rights to have determination by a court of law
of the merits of his or her claim against the police. It
was decided that this constituted a violation of the obligation
of the United Kingdom to afford access to the courts in
such cases.
This decision has not passed without criticism
in England. However,
it seems inevitable that rulings of this kind will come
to play an important part in the future development of Australian,
as well as English, law. Although Australian court decisions
are not subject to review in a human rights court, they
may be subjected to scrutiny in the Human Rights Committee
of the United Nations. It was a decision of that
Committee concerning a law in Australia which eventually
occasioned the enactment of a federal statute, proceedings
in the High Court and, ultimately, the repeal
of Tasmania's laws criminalising consenting private adult
homosexual acts.
In the field of business law the impact
of international markets, and the international treaties
and principles to which they have given rise, seem likely
to expand with a consequential growth of regional and international
regulation. Australia's legal system will not be immune
from these developments. In small and large cases, it is
important for judges, dealing with issues of legal principle,
to keep themselves alert to analogous developments of the
law that are occurring elsewhere and to the economic implications
of a decision in one case for the efficient operation of
the legal system and the economy more generally.
Artificial intelligence
All of the foregoing constitute rather
modest ideas about the years ahead. But the chief lesson
of recent decades has been the explosion of scientific knowledge
and of its technological applications. Within fifty years
the great technological developments of the century have
been expanded beyond the wildest imaginings even of clever
people of the mid-century. They include nuclear fission,
informatics and biogenetics. The law has sometimes to sort
out the consequences of these developments, as when issues
arise concerning the patentability of inventions said to
involve living genetic material.
Often technological inventions come to
the aid of the law. Information technology has radically
changed the organisation of the lawyer's office and the
judges' and advocates' chambers. I do not doubt that Griffith,
Barton and O'Connor would regard as miracles the way in
which word processors, interlinked between cities, can perform
the functions of reducing ideas to text in ways that were
inconceivable in 1903. In such an environment, as we look
into the future, it is necessary to challenge contemporary
imagination. Can it seriously be expected that the law and
its institutions in the coming century will successfully
resist fundamental change in their ways of doing things
as they have in the past? Or will the law office and courtroom
in a hundred years time be as unrecognisable to us as the
hospital wards of today would be to medical practitioners
of a century ago?
Rapid changes are already happening with
voice recognition that will enable judges and lawyers in
the future to summon, by oral commands, the accurate analysis
of relevant case decisions and citation of legislation.
But will the advances be even more fundamental? Will it
be possible to reduce legal analysis to computer programs
so that artificial intelligence will take over at least
some of the functions currently performed by judges and
lawyers? Before
we scoff at such ideas, we should pause to think of the
dramatic alteration of the external world in which the law
operates today. In the space of a century amazing changes
have occurred. In but two decades computers, the Internet
and Cyberspace have taken hold. There is at present no possibility
of programming machines which will have the will
to do justice and to respond in a human way to human problems.
But many routine decisions may be susceptible to automated
analysis. In several jurisdictions, migration and taxation
legislation is being written in a way apt for the early
forms of artificial intelligence.
The main lesson of the past quarter century
is that change occurs more quickly than humans expect.
The capacity to cope with change is constantly being
tested. As a profession, law is generally resistant to radical
change. Indeed conservation, predicability and stability
are part of law's essential mission. The challenge of the
years ahead will be to maintain the rule of law in a time
of unprecedented social and technological movement.
A Golden Future
I cease this reverie. Griffith, Barton
and O'Connor are safely on the walls of the great courtroom,
looking down on me. The daily work of the High Court continues
in ways that would not have seemed so very different to
them. Most of what was good has been preserved. The High
Court of Australia is one of the enduring and continuously
serving constitutional courts of the world. Constitutionalism
and the rule of law have been safeguarded by the people
of Australia and by the Justices of the High Court and the
other judges, magistrates and public office-holders of the
country.
The future beckons. It is the duty of those
who temporarily hold judicial and legal authority to safeguard
the precious legacy from the century that is closing; to
be vigilant and alert to the injustices and inefficiencies
of the legal system which remain to be corrected; and to
be aware that science and technology will call the law to
account in the coming century. We should cease our reveries
about the golden past, which was not always so golden for
all. We should ready ourselves to respond to the challenges
of the future to provide equal justice under law for all
people in our Commonwealth and also beyond.
