HAVE THE COURTS LOST RESPECT?
By FGA Beaumont Q.C.
1. The delegates who watch the British TV Series “Judge John Deed” will be well acquainted with the constant problems posed arising from actions taken or attempted to be taken by the executive branch of government in relation to the law and its due and proper administration. This in fact occurs not only in fictional TV series.
2. The fundamental concept on which the democracy of our nation is founded is that there are 3 branches of government – the legislative; the executive; and the judicial system. Each, despite what politicians may want to think, is of equal importance.
3. The judicial system must, in order to function effectively and protect the citizens of Australia, be independent. Such independence consists of many things – eg, sufficient judges and funding to operate the court system. In his first High Court annual report Chief Justice French recently said in this respect –
“The court is the third branch of government. It has a constitutional function of equal importance to that of the legislature, and the executive, .... It is inconsistent with that constitutional function that the court’s funding is effectively treated, for many purposes, as that of a small executive agency subject to arrangements which are linked to the funding of other agencies within the Attorney-General’s portfolio.”
He also stated that the High Court building was deteriorating and unsafe and the funding provided was a “bandaid”.
Such a problem is just a small illustration of how the efficient and proper working of the Courts may be interfered with to the extent that they began to lose the respect of lawyers, the business community or the public as a whole.
4. This paper deals with the question of whether or not the Courts have lost respect and if so, how. I should say from the outset that I have had the honour and opportunity to appear before the High Court, Courts of Appeal of five States, the Federal Court, the Supreme Courts of all States, the County Courts and Magistrates Courts for over 40 years. As far as Judges are concerned, although you are never satisfied when you thought you had a good or winnable case and didn’t win, whilst in a number of cases the outer limit as to reasonableness may have been reached, there really has only ever been one case where I considered that the decision was not available on the facts and law, depending on what view you had taken of them. It was of course very disappointing and hard to explain to the clients.
5. The difficulty which mainly arises as to whether professional respect is held for a Court, is the concept of “social engineering” and the extent to which, if any, Judges should partake of such a practice. Human nature being what it is, it is impossible to disregard the background and the social consciousness of a Judge: we all need to see things from a certain perspective. There are understandably Judges who are so predictable that it cannot be denied that they are engaging in social engineering, for example, to see that every injured worker receives or receives the opportunity to receive compensation regardless of fault. My own personal view, which is not shared by everyone, is that a Judge should not attempt to socially engineer the law but to interpret the legislation strictly. If the answer does not suit the government, particularly the executive arm, then the law should be amended openly and legislatively to achieve the object.
I will attempt to deal with this question of social engineering and its effect on respect for the Courts having regard to political correctness, particularly in relation to gender, age and government behaviour. I agree with what Ross Gillies Q.C. said in a speech to the Victorian Bar at its 2008 Annual Dinner –
“I have a problem with political correctness because in this day and age basically the only section of the community that can be safely satirized is the majority. However, it is not so much fun satirizing the majority if you are a member of the majority. There are lots of protected minorities but they can’t be touched. I would be required to apologise and receive special counselling and guidance for the rest of my days were I to breach a canon. It is unfortunate because minorities tend to be so fault ridden but I just mustn’t do it.
On the other hand, if one is a member of a minority, it is permissible to satirize not only the majority but also any minority group. A minority member satirizing his own is not regarded as being discriminatory: he is seen to be engaging in ironical humour. I suppose I could secure such a freedom by joining a minority, but which one would have me?”
In my view it is political correctness which has been deliberately used by governments and the executive arm to erode the authority of the Courts. Why would they want to do this – the answer is simple – “it is a question of power”. The truly real limit to executive power is the judiciary.
Accordingly, if the “law” ie, the Courts and its relevant officers do not have the respect they previously had; then the power to control the public undoubtedly moves in the direction of the executive arm of government.
6. In the State of Victoria we have over the last 10 years seen a huge upsurge in the use of political correctness to justify change in the legal system. Such change has been justified by various means of excuses, such as discrimination, cost, social justice, work practices etc.
However, when scrutinised it really boils down to one point: increased power and control by the government of the day. We even have the situation in Victoria where the government wants to introduce Judge-led mediations where the Court is to have a specialist Judge for Alternative Dispute Resolution (“ADR”) purposes and where appointed such Judges will be supposed to assist parties to resolve disputes by using ADR techniques. This is in some way supposed to make Victorians an ADR leader in the Asia/Pacific region over the next 5 years. This is “spin” at its worst and shows a fundamental lack of appreciation of where the concept of ADR fits into the legal system.
The basic concept of Mediation is for the parties to reach a commercial settlement and for them not to rely on all of the facts and their strict legal rights in order to save time and costs.
This is to be contrasted with a Judge who has a duty to hear and determine the facts and apply the law to them in order to determine a dispute between the parties. The role of Mediation is separate and distinct in the law from judgment making. The line cannot properly be crossed with a Judge performing both functions without considerable risk as to the rule of law. Mediation and ADR do have an important role to play; otherwise, the legal system would grind to a halt under the sheer weight of work. However, whilst the Court can and should refer matters to Mediation or, for example, to an umpire – this is something which should be done separately under the supervision of the Court.
What the government does not appreciate is that if Judges are forced to accept such changes they may effectively be barred from hearing any cases involving the parties in the foreseeable future because of the concepts of confidentiality and bias. Mediation is based upon the parties being able to confidentially make statements to the “Mediator” so as he can understand their position. If a case does not settle the Judge could not properly hear that case in Court or possibly other subsequent cases involving one of the parties in the future as he may be accused of bias or influenced by confidential information, which may not find its way into evidence. Thus the trial resources of the Court will be unnecessarily eroded.
This is an extension of where Masters (now Associate Judges) have been empowered to mediate between parties. It is clear that some of the Associate Judges have refused to participate in such a scheme and have told the powers that be that they are judicial officers and this is not a judicial function.
ADR may well have its place in the Court system but it is not the function of Judges.
7. A clear example of what has occurred under the heading of correctness is that there has been numerous appointments of “minorities” to the Bench in what has been described as to be an endeavour to “overcome a gender bias and to more appropriately reflect community values.”
Some of these appointments have been unsatisfactory yet if any complaint is made the person complaining is said to be an “old fossil”, “out of touch”, “guilty of discrimination” and “acting out of self interest”. There is little doubt that there has been reverse discrimination practiced by governments in Australia in relation to the appointment of women to the Bench, and if one is fair (which never occurs with governments acting with an agenda) one needs to question whether such appointments really assist the role and standing of women as legal practitioners. Such appointments of course totally disregard the fairness to other persons who, by way of experience and ability, may be more suitably qualified but are just not appointed. The judiciary, having regard to their unique position, cannot and should not comment on the appropriateness of such appointments. A fundamental well accepted concept in the law must be that merit will rise to the top.
There are of course also numerous examples of women who have been appointed on merit both to the Bench and positions of authority, eg, Chairman of the Bar and it is unfair to such persons that these examples should in any way be the subject of perceived bias in appointment or election.
8. The number of experienced and qualified persons who have not been appointed, or have refused to take appointments, has risen dramatically over the last 10 years. Why is this and what effect does this have on the respect of the legal profession for the Courts? Again it is impossible for anyone to generalise without being accused of being “old fashioned”, “out of touch”, “a fossil”, “anti-women”, “prejudiced” etc. A further aspect of this is the current practice of advertising in the press for both the Federal Court and Supreme Courts in respect of applications for judicial appointment (eg, AFR-3 April 2009). Many senior practitioners do not consider that it is the best way to attract appropriate candidates for judicial office. Clearly practitioners who are successful in practice are less likely to apply – particularly where persons of lessor experience and knowledge are appointed. I would suggest that one reason for refusal to take an appointment may be lack of respect for other members.
However, after 40 years of practice and experience under many governments I am prepared to say that the current attitude towards appointments does not bode well for the respect felt by practitioners for the Courts.
9. Whilst the principle is always that a practitioner must do his best for the client in all circumstances, I say that it is not surprising that we have seen a huge increase in various modes of ADR. No figures can be quoted to show the reason for this but one reason I suggest may be a lack of confidence that the action will be competently adjudicated at trial. It is of course as politicians realise, impossible for a practitioner to attack specific appointments publicly without insulting the appointed.
A classic example of a barrister who was prepared to stand his ground against all odds was SEK Hulme Q.C. He was highly successful in his practice of the law and showed enormous courage facing possible public censure and the wrath of the High Court when he delivered a detailed intensive and thorough analysis of the High Court decision in the MABO case. Without apparent fear he attacked both the purported logic and findings of fact by the members of the Court on the basis there was no proper evidence to support them. His analysis in effect showed that he was of the opinion that the result was achieved by social engineering rather than a proper legal analysis according to the law. One has to practice law to appreciate the moral courage this took having regard to the “social conscience” involved.
Barristers as a whole, either for selfish or political reasons, unfortunately rarely have the internal fortitude to take such a stand – in times when social engineering is the aim of governments, this is to be lamented. I have little doubt that if any barrister shows the courage to criticize the government for social engineering by any means, he will risk retaliation. Politicians have long memories of criticism and their choices are effected by what they undoubtedly regard as non-conventional behaviour particularly criticism which may be perceived as an accusation of less than honest behaviour.
10. Why has there not been an outcry from members of the legal profession. First, the members are placed in an invidious position in that it would be impossible for him or her to appear in front of such appointment and for their client to receive a fair hearing. I suggest other Judges would also rally to the cause. Secondly, the media, who have no particular liking for the law, and those who practice it, would unmercifully crucify such a person. Criticism of appointments for any reason whatsoever, eg, the appointment of a Judge as an acting judge and not a judge proper, was met by a tirade of political abuse and a worsening of relations, eg, between the Bar and the Attorney-General. This included ludicrous suggestions about the quantum of silks fees to the press in order to attack the general standing of the Bar – this is particularly the case where governments refuse to pay even an appropriate commercial fee for work done on their behalf.
A problem clearly exists for any practitioner who speaks out publicly against the Courts, appointments, proposed laws and even other members of the profession. When he does, he places himself in the firing line and the general opinion, either rightly or wrongly, is that the practitioner may be considered guilty of deplorable behaviour when he engages in public criticism of the Bar/Bench. A classic example of this has occurred recently in South Australia where the Law Society has taken a pounding by the State’s Attorney General for opposing bikie legislation and the attitude towards clients. The Attorney General even threatened to change conduct rules to prevent members of the Law Society acting in what they perceived as their client’s interest. He said about the one member who wrote a newspaper column –
“Mr X’s columns will only ever be an apologia for his brethren. One will no more read about lawyer’s misconduct in Mr X’s column than one would have read about the Gulag Archipelago in the Soviet Union’s Pravda or TASS,”
“Should Mr X and the Law Society have the integrity to tackle this issue, one can be assured that they will not be able to take a detached view of their vocation and the Law Society dog will be wagged by the criminal law committee [CLC] tail.”
This attitude is also reflected at the Federal level where the Federal Attorney General recently told a conference – “Throughout the ages, lawyers are perceived as being parasites on the lookout for disputes between people so they can feed off the conflict”. These types of comments from the No. 1 law officers are unhelpful particularly when dealing with practitioners from whom possible appointments to the Bench may be made. Miracles must occur when they become Judges.
Whilst the Attorney-General for Victoria may have stated he is tired of suggestions of political orientation in making appointments, his record stands for itself.
11. There are a number of other matters which I will summarise below which illustrate the problem faced by the Courts and its practitioners.
An area which illustrates that the Courts have lost respect is the transfer of jurisdiction away from Judges to Tribunals. No longer does a citizen have the right to have his claim heard and determined by an independent person who has certain protection from government interferences. Tribunals mainly consist of members who are appointed for a set period of time and rely upon the whim of the government to be re-appointed. I am not suggesting that any, or any particular, Tribunal Member has been less than honest; however, they are generally not of the same calibre as Judges and incompetency often leads to incorrect decisions, and unconsciously human nature with the hope or expectation of re-appointment, may play a part.
12. A large difficulty facing the proper administration of justice in these times is the cost of justice. It is an undoubted fact that the rich are better able to afford to have their cases determined by the Court, particularly in civil cases where legal aid is virtually non-existent. This factor has been exacerbated by the introduction of rules which, on the face of them, are supposed to shorten cases – in fact I suggest they have had the exact opposite effect and Judges seem to take form as more important than substance. I constantly wonder how Judges can ever properly determine matters of credit where the evidence in chief is solely by way of written statement, crafted and settled by legal practitioners. There has been a tendency for the volume of documents easily copied for cases to take longer and longer to hear – each document must be read in preparation or else the practitioner may be negligent.
13 The amount of time many Judges reserve their decision often makes justice an impossibility. In one such case, which I cannot name because it is still under appeal (and the decision has not yet been handed down), the history of the matter is:-
(a) Events occurred – June/July 1999;
(b) Writ issued – August 2000;
(c) Original hearing – split between liability and damages on application of one party only and opposed by the other – completed May 2002;
(d) Original judgment on hearing – September 2003;
(e) Hearing on damages – November 2004;
(f) Judgment on damages – February 2006;
(g) Appeal on both liability and damages lodged – March 2006;
(i) Court of Appeal hearing – February 2008;
(j) Judgment - ??
Even if one takes the view most favourable to the Judges involved in the delay and concludes that the same is attributable to excessive work load, it is obvious that respect for the Court system is diminished by the failure to expeditiously finalise the case.
14. Courts have also come in for criticism in relation to individual rights where government bodies are concerned. Although this might not be the fault of the Courts because of the contents of the legislation they have to interpret, there is a perception that the individual does not get a fair trial when opposed either criminally or civily to the government or any of its agencies. The Courts have shown a tendency to restrict what information is available to defendants, even though it forms the basis of the case against them by widening the interpretation of doctrines such as public interest immunity. In some instances the defendant cannot even find out who has made findings of fact which amount to the allegations which have been made against them.
Whether it be right or wrong, there is a definite perception that government bodies have been allowed to use their strength to deny opponents a fair trial. One such instance is the broad interpretation given to s.177 of Income Tax Act which has been used by some Judges in such a manner that the reverse onus of proof is such that the taxpayer must not only prove the assessment is wrong, but must prove almost on a beyond reasonable doubt basis what the proper assessment is. Such a conclusion is not apparent on the words used in the cases but when cases and their facts are properly analysed, the taxpayer almost always seems to come up short. If the civil libertarians want a cause, here is one which would benefit everyone except the government.
15. A similar situation exists in the blank acceptance by Judges that the government is a model litigant. The less said about this the better, other than to say that is nearly as good a joke as those cracked by Jack Harty at the end of a session. Both practitioners and the public have become disillusioned with the administration of justice when the government is involved.
16. Another difficulty faced by the Courts is the supposed application of modern concepts such as “productivity of justice”. In this respect the government and the media show a distinct lack of either knowledge or understanding of what the law is supposed to be about. Reports from bodies such as the Productivity Commission based on standards almost entirely as to age in respect of backlogs of cases cannot be correct. There is no standard criteria, for example, between the Family Court case, or a case in the Supreme Court of Victoria. The variation on what must be decided and what may be in dispute is too wide. In an endeavour to satisfy government, Courts have endeavoured to set themselves benchmarks which are unlikely to be met having regard to the complexity and distribution of cases and do not take into account many factors which may be outside their control, for example, availability of overseas expert witnesses. The recent report of the Productivity Commission was criticised by a Member of the Chief Justices at the Australian Institute of Judicial Administration Forum in September 2008 – yet newspapers persist with reporting that the Courts have not met their targets and have therefore failed. The public cannot help but lose confidence in the Courts where statistics are trotted out which have no real appreciation of what is involved.
Of course, this does not mean that the Courts have helped by their own actions. Some Judges are extremely slow and have opened up the Courts to widespread criticism, particularly in respect of commercial disputes where time is very important.
The case referred to by me earlier in this paper is a particularly poignant example of this concern, and is ample reason why businessman try to avoid Courts and turn to alternate means of dispute resolution.
17. In my view, the new Commercial Court in Victoria will do little to improve matters, although the Court espouses that it will introduce a new flexible approach to management of commercial cases. The statement by one of the Judges that the Court will adopt an “increased activist role” in my view sounds like trouble ahead especially when combined with statements like “pleadings may be dispensed with in appropriate cases”. The very basis for the law to succeed is for there to be no ambush – the reason for pleadings is to allow the other party to know what case they have to meet. It does not help when Judges who are expected to sit in the new Commercial Court go public with statements like “many barristers pay lip service to the notion that they should be doing more to resolve complex disputes than simply presenting their client’s legal arguments to the Court”. This is clearly a narrow view which many, including myself, say is just wrong. The main duty of a barrister is to represent his client to the best of his ability and present his client’s case. My experience is that merely presenting legal argument only occurs in front of Judges who are too legalistic or have in effect turned the Court into a gladiatorial contest by their conduct of the case.
Statements like, “We expect the lawyers, especially barristers, to assume a more candid and cooperative role” are totally unproductive and useless where the Judges who know little of the background try to impose time limits, to limit the number of witnesses and to determine preliminary questions, and impose themselves on a trial on the basis that such is conducive to the economic resolution of issues between the parties. In such instances, Judges annoy and upset both the legal practitioners and more importantly the clients who want to be able to have justice and if not at least have their side of the story put and tried.
Unless Judges acknowledge what was emphasised by Sackville AJ recently that any attempt at intervention (by the Judge) should take into account “the melancholy fact that the parties and their advisers do not necessarily wish to secure a swift and relatively economic resolution of their dispute”, may in fact be a fact of life they risk losing further respect.
18. In conclusion, there is no easy answer to the problem but until the executive arm recognises and promotes the proper position of Courts in our community, problems will exist. It is at least certain that the present unsatisfactory situation will not improve in a climate of executive oppression in many areas and indifference in others. As I see the trend, this executive misconduct is exacerbating to the enormous detriment of the administration of justice.
19. I will now submit my application for judicial appointment.
Copyright 2009. Greek/Australian International Legal and Medical Conference.
For more information contact Jenny Crofts at firstname.lastname@example.org