The Alex Castles Memorial Lecture 2006 – The Historical Necessity of Law Reform

Prof David Weisbrot AM, President, Australian Law Reform Commission, Flinders University Law School, 24 August 2006

The Alex Castles Memorial Legal History Lecture is a biennial series organised and sponsored by Flinders University School of Law, Adelaide,

Introduction

Distinguished guests,

It is a very, very great honour for me to be before you this evening, presenting the 2006 Alex Castles Memorial Lecture in Australian Legal History. 

When Professor Gary Davis first approached me earlier this year about delivering this distinguished Lecture, I quickly said ‘SURE!’, and for seven reasons (as I worked out later):

First, it seemed appropriate, given Professor Alex Castles’ close association with the Australian Law Reform Commission (more about that later).

Second, the date of the Lecture seemed a very long way off, and so it was easy and natural to underestimate the time commitment.

Third, it is always hard to say NO to Gary Davis, the leading Law Dean in the Universe.  (Lest I be accused of exaggeration, perhaps I should modify that ‘the leading Law Dean in the known universe’?)

Fourth, as a scholar and law reformer I have always considered myself a natural internationalist and comparativist—but now, in middle age, I find increasingly that I am a natural historian—or at least it seems that almost EVERYTHING appears to be shrouded in the mists of time …

Fifth, I always enjoy being in Adelaide (especially the friends, the food, the Festival, and Flinders—where we ‘treasure the past and shape the future’.).

Sixth, I am delighted to play a part in Flinders University’s 40th anniversary celebrations.  The University has had a positive impact in the community well beyond its years, and in particular has made enormous contributions to professional education and research. To indicate the creative role that it has played, perhaps I need say only that Alex Castles was for 36 years (1958–1994) a professor and dean at … another law school—but the institution with the grace and wisdom to honour Alex Castles with this annual lecture is Flinders law school (where Alex latterly and happily served as a Professorial Fellow).

Finally, I am now something of a specialist in the delivery of named lectures.  In each of the past four years, I have presented, in order: the Sir Anthony Mason Lecture 2003; the Justice Michael Kirby Oration 2004; the Sir Ronald Wilson Lecture 2005; and now the Alex Castles Lecture 2006.  I believe that I am now officially eligible to list this as my occupation for census purposes and on immigration arrival cards. 

Gary also asked if I would agree to this Lecture being podcast—and again I readily agreed. 

I love saying the word ‘podcast’, and at the ALRC I have been searching for some time for something (indeed, anything) to podcast before the technology has moved on several generations. 

Of course, this means that my talk will be much more widely accessible, and can be listened to by anyone, anywhere in the world with a broadband connection, at any time. 

However, there are some trade-offs; for example, I now feel less able to share with you some of the neat classified and security sensitive information that has come my way.  But if you really enjoy this expurgated version of my talk, you can listen to it again. 

I’m hoping that this Lecture also will be made available on YouTube and MySpace—where, as we are learning in our current work, young people meet in virtual communities to share all of their personal information, their most intimate secrets, their photographs and their thoughts on the latest series of ‘Big Brother’… before lamenting the declining state of privacy protection. 

Alex Castles and law reform

The Australian Law Reform Commission (ALRC) was created by federal law on 23 October 1973 (for those who think ‘it’s not history if you don’t include lots of dates’), but it commenced operations on 1 January 1975. 

As is well known, the Foundation Chair of the ALRC was Justice Michael Kirby—who led the Commission for its first ten years and very much put his stamp on the ALRC as a body that produced first rate legal scholarship but also worked hard to engage the broader community in its processes.  (Not surprisingly, Michael Kirby was the person asked to introduce Alex Castles when he gave the first lecture in this series.)

Justice Kirby cogently summarised this ethos as: ‘law reform is much too important to be left to the experts’.

If you look at the law reform commissions and committees around the world at that time, the foundation and continuing membership was drawn overwhelmingly from the ranks of the judiciary (sitting and retired) and from the practising profession, especially Senior Counsel, with a little bit of leavening from outsiders—that is, law professors expert in an area of black letter law. 

However, the selection of Justice Kirby’s first colleagues at the ALRC (by the then Government—especially Prime Minister Gough Whitlam and Attorney-General Lionel Murphy) provided some very strong signals about the ALRC staking out a different intellectual approach. 

For the first Commission included a historian, Professor Alex Castles, and a criminologist/ social scientist, Dr Gordon Hawkins.  Hawkins was then splitting his time between Sydney and Chicago Universities, and is the co-author of the brilliant The Honest Politicians Guide to Law and Order (which you have to assume is now out of print!).

There were three other foundation members of the ALRC—no doubt quite eminent at the time, but long since forgotten.  For the history buffs, however, they were Sir Gerard Brennan, John Cain and Gareth Evans. 

Alex Castles and Gordon Hawkins both served as part-time Commissioners for seven years, retiring on 31 Dec 1981.  The wide-ranging array of projects to which they made significant contributions included:

• Complaints Against Police
• Criminal Investigation
• Alcohol, Drugs and Driving
• Defamation [finally harmonised recently]
• Insurance Contracts
• Class Actions and Standing
• Aboriginal Customary Law
• Privacy [more on this later]

It is an especially apt time to be talking about legal history, just a week after the Prime Minister and the federal Minister for Education hosted a ‘History Summit’ at Parliament House.  (I’m sure some journalists must have been sorely tempted to report it as ‘an historic History Summit’.) 

The Summit brought together leading historians, educationists, politicians, community leaders and social commentators. 

Prime Minister John Howard called for ‘a more disciplined approach to Australian history teaching in schools’ and questioned what he described as ‘just [teaching] issues and … moods in history rather than [teaching] the narrative’.  However, importantly, he also said he wanted to:

make it very clear that we are not seeking some kind of official version of Australian history.  We’re not seeking some sort of nostalgic return to a particular version of Australian history.

The Summit agreed in general terms to develop a new national curriculum for teaching Australian history in the schools.  Personally, I could not agree more with the need to emphasise the importance of history in school education, and to continue to develop and refine a national narrative.  However, as I have learned in law reform, agreement in principle to a nationally consistent approach is the easy part. 

The constructive mood at the Summit and the Prime Minister’s words provide some significant re-assurance that this project is not simply another skirmish in the Culture Wars. 

It is very disappointing that current debates about the early post-contact experience of Aboriginals peoples are conducted in the manner of a contact sport (and also appear to be umpired by people who have difficulty distinguishing a ‘tackle’ from ‘a push in the back’).  We are invited to barrack for Michael Connor and Keith Windschuttle on the one hand, or with Henry Reynolds on the other, as if that is the way historical ‘truth’ unfolds. 

I should say here that we really miss Alex Castles’ careful scholarship and his calm, intelligent voice in these debates. 

Justice Michael Kirby has written that Alex Castles’ scholarship on Australian legal history:

freed Australian lawyers from a perception of their history as wholly derivative from that of England.  On the contrary, Castles emphasised the early emergence of local demands for jury trial, representative government and other features of a modern state.  He portrayed Australians as beneficiaries of the revolutionary war fought by their American cousins.  His writing and thinking concerning Australian legal history was to play a part in freeing Australian lawyers from the conventional legal doctrine of terra nullius in land law.  He was always insistent on the need for a readjustment in the response of Australian law and institutions to the reality of indigenous peoples and the particular conditions of the continent.

And similarly,

as a legal historian, he helped lawyers and others to perceive Australia’s history as unique … and worthy of special study. He often said that it was out of history that we came to see our mistakes and the need to reform them.  … 

Happily, I don’t need to rely on any historical documents to attest to Professor Castles’ important value as a colleague and a mentor. 

I met Alex in the early 1980s, during the time he was a Commissioner, through my involvement as a consultant to the ALRC’s reference on Aboriginal Customary Law—I had previously worked with the Papua New Guinea Law Reform Commission on its 1977 report into The Role of Customary Law in the Legal System (Report No 7, 1977). 

Although I was the most junior of law lecturers and Alex was the most esteemed of professors, he nevertheless was always interested; unfailingly nice and encouraging; and inevitably helpful and constructive.  He also provided excellent tuition on wine. 

Happily, this sort of vibrant collegiality is still a very strong feature of life at the ALRC, and one of the things that makes working there such an absolute pleasure. 

Michael Kirby has described Alex’s role at the ALRC in the following terms: 

On the ALRC, Alex Castles brought his enthusiastic, sometimes quirky, but always knowledgeable, awareness of legal history to bear on the Commission’s projects.  He was diligent in his participation in the Commission’s early affairs.  He could sometimes be quite contrary in resisting received wisdom. 

It would be hard to underestimate the importance for good law reform (and for good scholarship) of this quality: of not taking things for granted; of questioning the conventional wisdom; of not accepting that our existing laws, structures and institutions are natural and inevitable—when in fact they are historically contingent. 

As Mark Twain once said, ‘Whenever you find that you are on the side of the majority, it is time to reform’.  And equally apt: ‘Sacred cow makes the best hamburgers’.

If Alex Castles and Julius Stone were fabulous influences on my early academic career, I also could not have had a better start to my career in law reform then to work under Justices Bob Hope and Gordon Samuels at the New South Wales Law Reform Commission in the early 1990s. 

I still vividly recall accompanying Bob Hope to a meeting with one of the leaders of the Sydney Bar (later a senior judge), with whom we were told we simply must consult as the expert in the area. 

When Bob laid out one of the key issues facing us, the expert leaned back in his chair and said:  ‘Surely there is only one answer to that question’. 

And Bob Hope, God bless him, responded: ‘No doubt you’re right.  But we won’t know what that is until the end of our inquiry’. 

For me, the central lesson to be learned from that exchange was that anyone who begins a sentence with the word ‘surely’ is not a suitable person to work in law reform. 

What is ‘law reform’?

As I have indicated, the ALRC has shown a distinctive commitment to, and respect for, the role of history and historians from its earliest days. 

But perhaps I shouldn’t take for granted that a South Australian audience will understand what I mean by a ‘law reform commission’—given that this is the only jurisdiction in Australia without an institutional law reform agency.  The Northern Territory and the ACT currently have standing law reform committees, Tasmania has a law reform institute (on the Canadian provincial model), and the Commonwealth and the rest of the States have law reform commissions established under legislation. 

As does Fiji.  And Papua New Guinea.  And the Solomon Islands.  Hong Kong.  Macau.  New Zealand.  England and Wales.  Ireland.  Northern Ireland.  Scotland.  Singapore.  Malaysia.  Sri Lanka.  India.  Pakistan.  Bangladesh.  South Africa.  Kenya.  Namibia.  Malawi.  Lesotho.  Nigeria.  Tanzania.  Uganda.  Zambia.  Mauritius.  Jamaica.  The Bahamas.  Trinidad and Tobago.  And many, many others. 

But not South Australia. 

At the April 2006 meeting of the biennial Australasian Law Reform Agencies Conference (ALRAC), hosted by the ALRC in Sydney in April, there were over 110 delegates from 32 agencies representing 25 different Commonwealth countries. 

And this time there was someone present from South Australia—Associate Professor David Bamford of Flinders Law School—who noted that an SA Legislative Council Resolution in 2004 supported the establishment of a standing law reform agency.  David presented the case for a law reform institute in South Australia—and I was asked by delegates to report their warm support for this initiative.

Now I’m not a big TV watcher beyond sports, news and current affairs, but occasionally popular culture provides a good metaphor for explaining complex issues.  And so when trying to explain the role and importance of institutional law reform, it’s hard to go past the TV program ‘Extreme Makeover’. 

So let’s take the case of Fritz:

a 35-year old carpenter [who] is a hard working, warm hearted man ready to tie the knot to fiancée Christy, the love of his life.  He’s spent his whole life building things, running the family farm and looking after his young son Jake.  But while he’s attended to his obligations, he’s neglected himself.

Now, if just before his wedding, Fritz became Attorney-General, and thought that all he needed was a haircut and a new pair of shoes—in other words, a few small amendments—he should instruct his Department to take care of this.  

However, it may be that what he really wants is: 

… an opportunity to make his outside appearance shine as brightly as his inner personality.  Fritz’s procedures include a nose job, chin implant, mini brow lift, ears pinned back, fat injections to cheeks, buccal fat removal, liposuction to abdomen and love handles, hair transplant, hair restoration, gum repositioning, eight da Vinci porcelain veneers and crowns, and Zoom whitening. 

Now when you have to call in the ‘Extreme Team’, that’s law reform. 

The advent of ‘modern’ law reform

Like reality TV, institutional law reform is a relatively recent phenomenon.  Until about the mid-1960s in most common law jurisdictions, work by law reform committees largely focused on aspects of ‘black letter law’, which were seen to be the province of judges and lawyers.  However, the mood of the community began to shift, and to demand more opportunities for direct participation in the democratic process and greater accountability and transparency of public institutions.

Writing in 1970, Professor Geoffrey Sawer observed that this development reflected:

the qualitatively new principle … that the whole body of the law stood potentially in need of reform, and that there should be a standing body of appropriate professional experts to consider reforms continuously.

For Sawer, this ‘new principle’ of law reform should be embodied in a commission with four distinguishing characteristics; it should be: (1) permanent, (2) full-time, (3) independent and (4) authoritative.

Sawer’s view fits snugly within the ‘modernist’ project of that era, which featured:

• strong faith that ‘progress’ is best attained through the marshalling of specialist expertise and technocratic solutions;
• the belief in the socially transformative power of ‘Big Law’, through blockbuster legislation and high-powered, public interest, test case litigation;
• the view that an increasingly educated and well-informed population can, and should, contribute to this process; and
• the belief that government can, and should, play a central organising role (although not a controlling role) in such activities.

Yet the world has changed dramatically since that time, and whatever one’s views about post-modernism as an all-encompassing mode of analysis—if the Mafia were post-modernist scholars, they would you make you an offer you couldn’t understand—it is nevertheless observably the case that we now view the world through a ‘post-modern’ sensibility, under which:

• there are doubts about the ‘traditional certainties’ and a questioning of traditional authority, including public institutions;
• there is a greater appreciation of the complexity of social institutions and problems, including the fact that there may be intractable competing interests for which no easy compromise or consensus solution is possible;
• power is seen to be much more diffused, and not entirely invested in the formal organs of government;
• governments are not necessarily seen as central to the solution of all social problems, with a preference for private sector or community-based strategies in at least some circumstances;
• there is greater reluctance to see all disputes as ‘legal’; and
• there is an increasing clamour for mechanisms that enhance opportunities for genuine public participation in civil society and public policy-making.

So to Sawer’s list, I would add at least another four characteristics that I believe are essential to the success of a contemporary law reform agency; it also must be:
(5) generalist—prepared to work in all areas, and to see the connections between and among other areas;
(6) interdisciplinary—prepared to utilise social science and other methodologies, as appropriate;
(7) consultative—actively pursuing strategies to engage stakeholders and the general community; and
(8) implementation-minded—that is, outcomes-oriented, offering solutions that are practical and susceptible to implementation by government (and others).  

No government should refer a matter to a law reform commission where it already knows what it wants.  If the policy decisions already have been made, then the matter can go to the departmental officials for translation into legislation and regulations. 

A reference only should be made to a law reform commission—the Extreme Team—where a government does NOT have settled ideas about what it wants or where it needs to go in policy terms, and where the issues are genuinely open-ended and require extensive research and community consultation. 

Departmental advice often must be provided to ministers very rapidly, as issues break.  By way of contrast, it is rare for a law reform project to be completed in under a year, with a staged approach adopted and much of the time needed to accommodate the consultation process. 

Broadly speaking, law reform commission inquiries tend to be thrown up by one of three (often overlapping) phenomena:

1. old laws requiring modernisation;
2. major developments in science and technology; and
3. changing social and political attitudes.  

In the case of the ALRC—a federal law reform body—there is also a fourth category: areas of law that require a national approach and harmonisation across the various jurisdictions.  For example, last year the ALRC led a process involving law reform bodies from all over Australia (except for South Australia!) to review the so-called Uniform Evidence Act 1995—which has been adopted at the federal level and in NSW, the ACT, Tasmania and Norfolk Island—with an eye to identifying the ‘teething problems’ over the first decade, fixing those, and encouraging its take-up in the remaining jurisdictions.  Following agreement in principle by the Standing Committee of Attorneys General (SCAG), and direct indications of a willingness to implement from several of those Attorneys, it now looks like we soon will have, for the first time, a national set of evidence laws.

In relation to the former category (modernisation), the ALRC has conducted reviews of admiralty law; the Marine Insurance Act 1909 (Cth); the Judiciary Act 1903 (Cth); and, just recently, federal sedition laws—which have their origins in the English Statute of Treasons 1351.

Much of the work during my time at the ALRC has involved the second category: efforts to adapt law and process to rapid advances in science and technology.  In the ALRC’s inquiry into the protection of human genetic information, conducted in association with the Australian Health Ethics Committee of the NHMRC, the Commission was obliged to master the fast-moving field of the ‘New Genetics’ in the wake of the mapping of the human genome.  (It is said that ‘generational change’ in genetic knowledge now occurs every two to three years.)

The ALRC then had to test the adequacy and robustness of the law across an extraordinary number of regulated fields:  privacy; anti-discrimination; criminal law and procedure; family law; succession; civil liability; immigration; industrial law; insurance; and others. 

We learned quickly that the lack of harmonisation would be at least as challenging for good policy-making as the march of science: the Commonwealth and every state and territory has its own privacy legislation, and two jurisdictions (NSW and Victoria) also have separate health privacy laws.  (So where our counterparts at the UK Human Genetics Commission had to contend with only one privacy law for 60 million people, we had to grapple with 10 different laws governing 20 million people.)

In the follow-on ALRC inquiry into the intellectual property issues surrounding genetic materials and technology (colloquially, ‘gene patenting’), we already had a good handle on the science involved, but needed to come to grips with IP laws and—even more importantly—IP and commercial practices in this area.

This year, the ALRC has begun a major review of Australian privacy laws and practices generally, with an Issues Paper to be published very shortly.  The current federal Privacy Act 1988 is the product of an earlier ALRC inquiry, but it is already obvious that the law has not kept up with technology.  When law and policy were settled barely 20 years ago, the internet was in its infancy, and the extraordinary computing power (for data-matching and mining) and electronic surveillance technology we now take for granted was only the stuff of science fiction. 

Even in dealing with the ethical, legal and social implications of cutting-edge science, we have found that consulting history often provides critical guidance and perspective.

For example, when looking at the patenting of DNA sequences, we found that almost identical problems—overly broad patents granted by overly awed examiners—had been thrown up by the waves of applications following earlier breakthroughs in engineering, the refinement of chemicals, and so on. 

When looking at the protection of human genetic information, we found very useful examples of good and bad practice in the assimilation of new technologies by law enforcement authorities—for example, in the use and reliability of fingerprints and polygraphs, and the way expert evidence on these matters is received and applied by the courts. 

Similarly, we learned important lessons about how to deal with genetic testing and genetic information from the ways in which we have developed policy in relation to HIV-AIDS—that is, to take very seriously the individual and public health implications, but also to be alive to issues of distress, stigmatisation, privacy and discrimination.  We were also reminded of the need to craft effective non-legal strategies, involving counselling and education, both for the individuals concerned and for the general community. 

Modern examples of shifts in social attitudes and understandings include law reform efforts to: recognise the property, parental and other rights of de facto partners; decriminalise homosexual relations between consenting adults; provide increased protection against domestic violence; provide more information about their biological parentage to adopted children and those whose births were aided by third party donors or assisted reproduction technology. 

Significant shifts in political attitudes and practices also ripple through the legal system, requiring refinements in some areas and basic rethinking and others.  In the past decade, one of the most fundamental changes in the liberal democracies—especially pronounced in English-speaking countries, including Australia—has been the shift away from the comprehensive social welfare state towards a more deregulated and privatised model of governance.

Among other things, the new system features lower levels of taxation, the total or partial withdrawal of government from some fields, and a much greater emphasis on self-reliance and individual (or perhaps familial or communal) responsibility.

As a consequence, there is greater scepticism of blockbuster legal solutions, with a preference for more textured, holistic strategies that place greater emphasis on process, education, communication, and the allocation of responsibility and authority to multiple stakeholders.

I have written elsewhere that law reform commissions were established in the 1960s with the aspiration of being socially transformative.  The idea was that commissions would study socio-legal problems involving discrimination and disadvantage and propose laws that would be implemented by progressive governments to eliminate (or at least substantially moderate) these problems. 

In Australia, this was twinned with the legal aid and community legal centres movements, which sought to use legal representation in the courts for similar purposes and with similar social aims.

I believe that institutional law reform has provided an intelligent voice and has been a positive influence on the progressive development of the law in Australia. And I believe the ALRC fairly can boast that it has made particular contributions in:

• rationalisation of the law in some key areas—such as through the development of the uniform Evidence Act;
• promoting open and accountable government—through the improvement of freedom of information and archives laws, better handling of complaints against police, and in safeguarding basic civil liberties while protecting classified and security sensitive information;
• modernising the law to accommodate new technology and circumstances—such as through its pioneering work on human tissue transplants, genetic privacy and discrimination, and gene patenting;
• promoting access to justice—through its work on the federal civil justice system, costs shifting, and pro bono practice; and
• highlighting areas of human rights and social justice—such as the recognition of Aboriginal customary law, the rights of the child, gender equality before the law, and multiculturalism and the law.

However, we can’t honestly say that institutional law reform has been especially successful as an agent for social transformation—nor is it likely that it could, or should, have been fundamentally transformative, given its separation from political and economic power. 

Although a creation of the modernist project, in my view the next 30 years should demonstrate that institutional law reform is actually better suited to the post-modern environment than it was for the era in which it emerged. 

Contemporary law reform commissions now recognise the importance of, and have the capacity to provide, independent, contestable advice for Attorneys-General and governments. 

They can design and manage complex empirical and interdisciplinary research. 

Law reform commissions incorporate as part of their basic ethos and operations the community’s desire for direct participation in democratic decision-making. 

And law reform commissions are now adept at developing sophisticated strategies for dealing with issues, which understands the multiplicity of stakeholders and assigns each the appropriate responsibilities. 

It is notable that the ALRC’s internationally acclaimed report Essentially Yours: The Protection of Human Genetic Information (ALRC 96, 2003) made 144 recommendations—but these were addressed to 30 different actors besides the federal Parliament (including university medical schools, professional associations, the insurance industry, the AIS, employers, law enforcement officials, immigration authorities, state and territory health departments, and others), and the ALRC did not call for a single new piece of legislation to be enacted. 

And, law reform agencies do all of this successfully while operating in a cost-effective manner, using modest core public funding to unleash a much larger voluntary contribution. 

It is standing operating procedure for the ALRC—and I’m sure most other law reform agencies—to establish a broadly-constituted, expert Advisory Committee to assist us in determining the scope, direction and priorities for the relevant parts of the inquiry; to provide quality assurance in relation to the research and writing effort; and to make sure we are talking to all of the key people and organisations.

By definition we ask the leading people in their fields in Australia to assist us in this way, and to do this on a pro bono basis.  And of the 250 or so leading experts to whom I have extended invitation over seven years, only a very small handful have declined—and almost always for good reasons, such as being absent overseas. 

Similarly, in every inquiry we call for public submissions in response to our Issues Papers and Discussion Papers—and typically receive hundreds, many of which have required considerable personal or institutional time and effort.  And believe me, they are influential. 

Bringing history to law redorm

In delivering the Keynote Address opening the ALRAC 2006 conference in April, the Hon Michael Black, Chief Justice of the Federal Court of Australia, noted that:

By taking an historical approach to the subject [of law reform] I am following a path often taken by the ALRC itself. Lamentably, many Australian law schools seem to lack interest in teaching legal history, and little interest even in the broader history of our institutions. In contrast, the ALRC and many of its counterparts, devote considerable and scholarly attention to the history of the law in the areas relevant to their inquiries and references. Although law reform looks to the future, it seems to me impossible to understand the existing law adequately in isolation, or – worse – in ignorance, of its history.

This is really just an aside, and based on a quick website review rather than a careful study, but I share Chief Justice Black’s concern about the lack of focus on Australian legal history in law schools.  To some, I’m sure, this is because more historical material has been integrated into basic ‘Introduction to Law’ and ‘Legal Institutions’ type courses. 

But I could find only two Australian law schools with a full, compulsory Legal History course: Notre Dame and Flinders.  Only Adelaide, Melbourne and Macquarie appear even to offer a discrete elective in this area.  And it is hard to think of many contemporary Australian scholars specialising in this area, with the notable exceptions of Wilf Prest, now a Professorial Fellow at Adelaide, and Professor Bruce Kercher at Macquarie.  (Alas, my friend and former colleague, Dr David Neal SC, has been lost to the Victorian Bar.) 

Now one could argue with some force that Common Law legal method is inherently historical, with the courts slowly and steadily developing law through a process of distinction and accretion.  So it can be said that common lawyers naturally examine the law much in the same way that geologists can ‘read’ the characteristics of sedimentary rock formations—and occasionally the time scales involved are not much different either. 

This contrasts with the rationalist projects of the continental Europeans in producing their Civil Codes.  (In England, Bentham, Stephen and others are now regarded as brilliant, progressive codifiers of the law, but for over a century their influence was greater in the African, Asian and Pacific Islands colonies than in the English-speaking metropolitan countries.) 

And, of course, this was reflected in modes of legal education, with the great universities in France, Germany and Italy developing distinct law faculties and producing law graduates for many centuries, whereas this is a relatively modern development in the common law countries, where apprenticeship dominated. 

For example, the University of Sydney was established in 1850, but did not include Law among its foundation faculties.  The establishment of the Law School in 1890 owed at least as much to philanthropy (the Challis bequest) as it did to pedagogy.

Of the first three Justices of the High Court of Australia, appointed in 1903, none had a law degree.  Sir Samuel Griffith, Richard O’Connor and Edmund Barton all graduated from Sydney University—but with degrees in classics and arts, later gaining admission to practice through articles or by reading at the Bar.  And it was not until the late 1970s/early 1980s that the majority of admissions to legal practice in Australia finally tipped towards university law school-educated graduates. 

We now live in a period of globalisation and ‘convergences’, and the international conference-goers amongst us can attest to the narrowing gap in approach between the Common Law jurisdictions and Civil Code countries.  For example, in the latter, judges are now explicitly afforded more discretion in interpreting code provisions, and more reliance is placed upon preceding interpretations.  In Spain, jury trials have been introduced in serious criminal matters as a way of democratising the legal process and building public confidence in the legal system in the post-Franco era. 

And where once it was possible to trace the slow and careful development of the common law, and identify with either the ‘bold’ or ‘timorous’ judges of the English high courts, Federal Court Justice Paul Finn has described contemporary Australian lawyers as ‘born to statutes’.  Similarly, former High Court Justice Michael McHugh has noted that:

Legislation is the cornerstone of the modern legal system. For a long period in the history of the Anglo-Australian legal system, the rules of the common law, as modified by the great system of equity jurisprudence, were the basic instruments of public and private law.  But throughout this century, successive Parliaments have legislated to control more and more social and economic conduct.  As a result, the rules of the common law and equity are constantly being modified by statute law.  The growth of legislation appears to have reached almost exponential levels.  However, the increase has not been so much in the number of Acts passed as in the length of legislation passed.

Nevertheless, there is still a critical role for history in the day-to-day interpretation and application of statute law in the courts, as well as in the continued development of Australian common law—for example, where statute law is silent or ambiguous, or where different legislative provisions conflict. 

At a higher level, the High Court of Australia must reconcile state and territory variations in the law, in its self-defined role as the final expositor of a single Australian common law (Kruger, 1997). 

I don’t propose here to revive the endlessly unproductive (and thoroughly miscast) argument about whether judges can and should ‘legislate’.  I think that can best be summarised as follows:  When you do it, it’s impermissible ‘judicial activism’.  When I do it, it’s ‘strict construction’ and necessary to do justice in the circumstances of the case. 

But senior judges are regularly called upon to interpret and apply the broad language of statutes, and to remedy gaps, inconsistencies and infelicities in the existing law.  And even conservative commentators sometimes find it frustrating when the courts resile from a bolder approach. 

For example, in April 2003 a controversy arose when it appeared that modern DNA evidence might prove that a Queensland man was factually guilty of the particularly nasty murder of a 17-month old child, for which he was previously acquitted.  Nevertheless, the High Court ruled that a second trial would amount to an abuse of process under the common law rule against double jeopardy, which dates back to 12th Century England. 

Prime Minister Howard quickly pointed out that justice is not served by:

the demented, dogmatic adherence to something because it’s been around for a long time, and here is a social conservative speaking,  I am very much in favour of changing things that don’t work, and this rule doesn’t work.  I’m not in favour of totally throwing it out…but it does seem to me that this particular case is just horrific.

But how far can our courts legitimately go in developing new law?  Superior courts, especially the High Court, can articulate a new guiding principle in appropriate circumstances—a duty of care; an implied right of free speech; a rediscovery of native title. 

However, the detailed elaboration of that principle only would emerge by handling a large number of cases over a long period of time, OR by shifting this responsibility directly to the legislature, or to a law reform body for advice.  These institutions are better suited to do the sustained research, empirical study, public consultation and systematic development required—and, importantly, this approach is more consonant with democratic theory and the separation of powers. 

In a recent keynote address on the occasion of the 30th anniversary of the establishment of the federal Administrative Appeals Tribunal (AAT), the Chief Justice of the High Court of Australia, the Hon Murray Gleeson, noted that there is an ‘information problem’ when superior courts are called upon to develop policy: 

… consider the question whether the rule in Rylands v Fletcher, concerning the basis of a landowner’s liability for the escape of a dangerous substance, continues to have a useful role in modern conditions. Is the law of negligence nowadays a sufficient response to the problems that may arise? Those questions were considered, and answered in one way, by the High Court in 1994. The same questions of legal policy were considered, and answered in the opposite way, by the House of Lords in 2004. Which was the correct or preferable answer? That is for readers of the reasons for judgment to decide. What interests me is the informational base of both decisions. It might be thought, for example, that information about modern practices relating to the transportation and storage of dangerous substances, such as toxic waste, or radioactive materials, or the transmission of energy, would be a factor. If the same questions were put before a Law Reform Commission there would probably be a wide-ranging investigation of the facts relating to present circumstances and conditions. How do courts of final appeal, in the absence of evidence, inform themselves about such matters? How do they know their information is comprehensive and reliable? Because a court at first instance, or an intermediate court of appeal, will be bound by the existing rule, they will not have received evidence bearing on the appropriateness of the rule. The High Court does not receive new evidence when an appeal comes to it. By hypothesis, then, the issue is one that will be considered without evidence. Unless there are no relevant primary facts, or any relevant primary facts are uncontroversial, how does the Court proceed? This is an abiding problem in the exercise of judicial power.

During the current Privacy review we will be considering the wisdom of creating a statutory cause of action for invasion of privacy—in the absence of the Australian courts’ willingness to develop tort law this far, and instead (in my view, correctly) leaving this matter for legislation. 

Recommending such an approach is no easy matter.  While we can understand the fear and loathing of ordinary people caught up in the media spotlight, and of ‘celebrities’ relentlessly hunted by paparazzi, we also have a strong cultural bias against inhibiting the freedom of the press.  (And, judging by the apparently insatiable demand for ‘first photos’ of celebrity babies and shots of celebrities losing or gaining weight, we also have created a bull market for privacy invasions.)

Conclusion: the future is history

I would argue that in the common law tradition, history—more than anything else—is what helps us to differentiate between legitimate activity under the rule of ‘law’ and the naked exercise of ‘power’.

Have a look, for example, at last Thursday’s decision by US Federal District Court Judge Anna Diggs Taylor, in which she ruled unlawful a massive, warrantless, surveillance program conducted by the National Security Agency (NSA) pursuant to a number of secret Presidential orders. 

Judge Taylor noted that the US Constitution was:

drafted by founders and ratified by a people who still held in vivid memory the image of King George III and his General Warrants.  The concept that each form of governmental power should be separated was a well-developed one 

and she quoted James Madison’s Federalist Papers [No 47, at 301] to the effect that:

The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.

In the leading case on the constitutional powers of the US President, Youngstown Sheet & Tube (1952), Justice Hugo Black, writing for the majority, stated that:

The founders of this Nation entrusted the law-making power to the Congress alone in both good and bad times. It would do good to recall the historical events, the fears of power and the hopes for freedom that lay behind their choice.

Judge Taylor noted that:

Justice Jackson’s concurring opinion in that case has become historic. He wrote that, although the Constitution had diffused powers the better to secure liberty, the powers of the President are not fixed, but fluctuate, depending upon their junctures with the actions of Congress. Thus, if the President acted pursuant to an express or implied authorization by Congress, his power was at it maximum, or zenith. If he acted in absence of Congressional action, he was in a zone of twilight reliant upon only his own independent powers. … But “when the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for he can rely only upon his own Constitutional powers minus any Constitutional powers of Congress over the matter.” [Youngstown, 343 U.S. at 636-638].

The example of such unlimited executive power that must have most impressed the forefathers was the prerogative exercised by George III, and the description of its evils in the Declaration of Independence leads me to doubt that they were creating their new Executive in his image.  Continental European examples were no more appealing.

In words reported last week by the media all over the world, Judge Taylor concluded that:

The Office of the Chief Executive has itself been created, with its powers, by the Constitution. There are no hereditary Kings in America and no powers not created by the Constitution.  So all “inherent powers” must derive from that Constitution. … In this case, the President has acted, undisputedly [contrary to] the expressed statutory policy of our Congress.  The presidential power, therefore, was exercised at its lowest ebb and cannot be sustained.

Although the Bush administration has signalled its intention to appeal, and this matter will work its way through the US superior courts, I must say that I strongly agree with Judge Taylor’s conclusions and her reasoning—that is, her application of history. 

Similarly in Australia, the High Court requires some context in order to interpret and apply our Constitution. 

For example, s 61 of the Australian Constitution provides that ‘the executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen’s representative, and extends to the execution and maintenance of the Constitution, and of the laws of the Commonwealth’.

It is the Governor-General who appoints all Ministers—and they serve ‘during his pleasure’ (s 64).  What’s more, the ‘command in chief of the naval and military forces of the Commonwealth is vested in the Governor-General’ (s 68). 

Although it is specified that many of the Governor-General’s powers are exercised ‘in Council’—that is, acting on the advice of the Minister—there is no reference in the Australian Constitution to the Prime Minister, and only a single and tangential reference to the role of political parties (s 15, as amended in 1977, regarding the filling of casual vacancies in the Senate). 

On any cold reading of the Australian Constitution, the Governor-General is a very powerful person and central to the exercise of all power. (Although, today’s Advertiser reports that only 17% of Adelaideans could identify Governor-General Michael Jeffrey from his photo, only 14% knew his name, and only 33% believed that we need a Governor-General!)

Yet, despite the plain words, we all take for granted that the Governor-General’s role as Head of State is to serve as a national figurehead, as a unifying symbol, but not to exercise real power, which we reserve to our elected representatives.  And, equally, we take for granted that, in our Westminster system, the constitutionally-unmentioned Prime Minister should wield considerable power, based on his or her position as leader of the barely-mentioned political party which controls the lower house.

And, despite that discordance between what the Australian Constitution actually says and what we all understand—and with one notorious controversy in 1975—the system has worked remarkably well for over 100 years without specific enumeration of the powers of the Governor-General.  Indeed, we are often told by advocates on both sides of the republican debate that trying to capture and codify those powers now—which you really would have to do in the case of a popularly elected Head of State—would be extremely fraught.

Leading constitutional law professor Mark Graber (of the University Maryland) has suggested that in the US:

When public policy problems arise, some persons seek divine guidance.  Others do statistics.  Americans commune with their constitutional founders.

In Australia we don’t have a Bill of Rights and there is somewhat less affection for the doctrine of ‘original intent’, so we get fewer calls here to conduct law reform-by-séance …

It is generally suggested that the reason our system has worked well—with the occasional ‘crisis’ but never the hint of a coup, and no lingering threats to democratic legitimacy—is because the main actors operate within certain ‘conventions’.  Put another way, they feel constrained to act in certain ways, not because of written law, but because of respect for the democratic traditions that have developed over time—that is to say, because of our legal history and our political culture. 

So if you only take one thing away from this Lecture, please reject the idea that legal history is something quaint, or marginal, or optional.  Our construction of legal history remains central to the major contemporary debates about the nature of law and the exercise of power—and also in shaping the sort of society in which our children will live. 

Thank you very much for your kind attention.