LEO CUSSEN LECTURE
"LESSONS FROM THE REAR-VIEW MIRROR"
MELBOURNE, 31 OCTOBER 2001
It was inevitable that, during the
years 2000 and 2001, a lot of time would be spent looking
at what had happened over the previous 100 years.
That examination was useful in many ways.
It reminded us all of what has changed and it gave
us a chance to think about whether particular changes
were good or bad and about whether they had gone too far
or not far enough. But,
unless we seek to apply the results of what we saw when
we were gazing in that rear-view mirror to what
we are to do now and in the future, the exercise has been
little more than a wallow in the warm bath of nostalgia. The challenge that now must be faced is what are the lessons to
draw from the past for the future development of the legal
system.
The last 100 years produced many changes
affecting the legal system in Australia. Most fundamental of all was federation under the Constitution which,
with very little amendment, remains our basic law. The importance of that change was profound.
Recently we have had to consider whether some changes
should be made to our constitutional arrangements and,
no doubt, those issues will have to be examined again. But I do not wish to spend time, now, on those
questions of constitutional change, important as they
are. There are other changes that have happened
during the last century to which I want to draw attention. First, there have been changes in the way in
which norms of behaviour are defined.
Second, the way in which both criminal and civil
litigation is conducted has changed radically.
Third, there have been great changes to the way
in which the profession goes about its work.
Last, there are two phenomena that we must all
grapple with, sooner rather than later, the law as panacea
and change itself.
Norms of behaviour
Once was the time when identifying
legal norms of behaviour, which is to say the rights and
duties of members of society, was relatively straight
forward. Much
more often than not the content of these norms was to
be found in, or could readily be traced to foundations
in, judge-made law. And behind that judge-made law there
lay moral precepts founded in a set of beliefs which,
according to one's point of view could be seen as generally
held by a largely homogeneous society or generally held
by that part of the society in which power resided. The law of homicide, the law of theft, the
law of contract could all be traced to such roots. Whatever may have been the difficulties at the edges (and there
were many) the core of the relevant law was reasonably
straightforward. Thus, the rights and duties of persons, both
natural and juridical, were generally capable of relatively
simple expression.
Over the century just passed, two things
happened that I think it is important to observe and understand. First, society either became, or was seen to
be, more complex. Some
of that complexity came about because of technological
development and change. But probably more importantly than that, society
was no longer seen as monochromatically homogeneous. Difference was recognised, accepted, celebrated.
The accommodation of difference thus became an
important social issue which found its reflection in the
law. Much more
consideration was given to the position of indigenous
Australians. Reference need to be made only to Mabo v Queensland [No 2] and to other cases about
native title to make that point. Equal opportunity and anti-discrimination
legislation became commonplace.
Even such areas of the common law as the law relating
to provocation in homicide came to acknowledge that the
subjective qualities of an accused, including age, sex
and ethnicity, had a part to play in the proper application
of principle.
Secondly, much more attention came
to be directed to the relationship between the individual
and government. Government did more, and more was expected
of government. What
government did, or did not do, had direct and immediate
consequences for many citizens. The regulation of the relationship between
individual and government took on far greater significance
to the way in which individuals lived their lives.
It became more important to examine the decisions
that were taken in government and that affected individuals,
and to consider how and why they were made.
The consequence of the two changes
I have mentioned that was most obvious to lawyers was
the growth of the statute book.
Legislatures, both federal and State, passed more
and more statutes. In
1901, in the first year of the new federal Parliament,
it passed 17 Acts occupying 228 pages.
In the same year, the Victorian Parliament passed
59 Acts occupying 546 pages. The comparable figures for 2000 were Federal
Parliament: 174
Acts, 5,382 pages; Victorian Parliament:
101 Acts, 3,787 pages. There is no reason to think that this trend
will abate. The
legal system must recognise this fact and consider carefully
what follows from it.
Some, but by no means all, of the issues
that are presented concern the way in which statutes are
prepared. Criticism is often levelled at those who draft
legislation. Usually,
the critic complains that the drafting is obscure.
Often, however, criticism of that kind may be unfair. In truth, the criticism should be directed
at the instructions given to the person who drafted the
particular legislation.
Plain English drafting is now the norm.
For my own part, I applaud that fact but I regret
that it has brought with it a seemingly irrepressible
desire to define every word used in an Act.
Wary of allowing the language to speak for itself,
the drafter imposes on words meanings which are either
blindingly obvious or are remarkably far removed from
the ordinary meaning of the word being "defined". The inevitable consequence of succumbing to
the desire to define is that the reader must hunt through
the Act pursuing an apparently endless chain of definitions
which one day will, no doubt, include a statement that
"the indefinite article includes the definite article
and (were it not an impermissible Latinism) vice versa". In the end, that is by the by.
The central problem that is presented
by the statutory deluge is logically anterior to the problem
of drafting. It
is to identify what is to be the overall legislative scheme
and where the particular legislation is to fit into the
fabric of the law as a whole.
Unless the drafter knows what is the intended shape
of the whole scheme to which the legislation is to give
effect, it is inevitable that there will be doubts and
difficulties about how it all fits together. In turn, as the volume of legislation in force
increases, those who direct and effect its preparation
must know where in that general legislative scheme the
particular proposals will fit and equally must know where
it will fit in the entire legal system. If that is not done, there will inevitably
be considerable difficulty in understanding what the legislation
means and how it is to operate.
The consequences of that are obvious — doubt, uncertainty,
litigation, cost, time, trouble.
Those who work with legislation, however,
cannot attribute responsibility for all difficulties to
those who prepare or instruct the preparation of legislation. It should go without saying that careful attention must be directed
first and last to what it is that the statute says. All too often, however, it is apparent that
those who use legislation have not done so.
It cannot be emphasised too strongly that it is
a fundamental failure for a lawyer who is confronted with
a problem to which a statute is relevant not to read the
relevant Act and apply it.
And necessarily that involves, these days, being
certain that the form of the legislation that is being
considered is the form relevant at the time which is in
question. All
too often, even in the High Court, it emerges that attention
has not been given to identifying the relevant form of
the Act and that insufficient time has been spent reading
and understanding what is written in it.
To return more directly to my principal
inquiry about what challenges for the future emerge from
the lessons of the past, two other features emerge from
consideration of the change in the way in which norms
of behaviour are identified. The imperial march of negligence continues. Whether that is good or bad is not to the point
that I now seek to make.
It has meant that lawyers now tend to see all forms
of damage as potentially compensable and compensable only
through an action for negligence. This has led, in some jurisdictions, to the
modification or abolition of common law rights to make
certain kinds of claims or to make claims in certain circumstances.
Such changes are often criticised but the criticisms
made may not always reveal a sound basis for criticism.
So mesmerised have we become with the action in
negligence, and the right to bring such an action, that
not only are actions which should properly be founded
in some other tort wrongly forced into the negligence
mould, insufficient attention is given to whether there
are discernible foundations for the action of negligence
that lie beneath Lord Atkin's biblical allusion. Lawyers must give attention to understanding
and articulating the foundations of and underlying purposes
of the cause of action which is propounded so often.
If the purpose which underpins the
tort of negligence is to compensate the injured, why is
the cause of action fault based?
Why is it only the careless who must compensate?
If the purpose is to deter careless behaviour,
what role does a duty of care play?
Why is the remedy not available in any and every
case in which a person suffers damage as a result of another's
failure to take reasonable care?
If the purpose is to foster better loss distribution,
why do we shut our eyes to whether parties are insured?
I am not to be taken as saying that there are no
answers to these questions. I think that there are, but much of the debate
that has taken place in recent years would suggest that
there may be no common agreement about what those answers
are. If that is
so, the debate should be brought to the surface and argued
out. Only then
can the law of negligence develop in a principled way.
Some of these issues are now matters
of lively debate in the United States of America in connection
with the preparation of the Restatement Third on Torts.
An early draft of that revision of the Restatement
discarded reference to duty of care in formulating the
rules about negligence. The American Law Institute rejected the draft
and returned it for revision.
There is, therefore, a rich source of material
directing attention to issues which all too often in this
country appear to have passed without explicit consideration
in debates about the place that actions for negligence
have in the legal system.
It is time that they became matters for debate
here.
The last feature of developments in
connection with identification of norms of conduct to
which I want to draw attention concerns the way in which
norms of conduct now find expression. It is convenient to do that by reference to
statute, but examples in judge-made law can readily
be found. In pursuit of what Gleeson CJ some years
ago referred to as the Holy Grail of "individualised
justice" we find
increasing use in statutes of provisions which confer
discretions upon decision-makers.
There are many examples.
Income taxation legislation contains many provisions
in which the Commissioner is required to make discretionary
judgments. The
Evidence Act 1995 (Cth) gives many discretions
to trial judges about the admission or rejection of evidence. These examples could be multiplied. The problems presented by this form of legislative
provision are not widely understood. So, it is said, all too often, that a judge asked to exercise a
discretion under the Evidence
Act must do so "judicially" as if that provided
complete guidance to the judge and parties about how to
go about the task. It does not. It tells the
judge absolutely nothing about how to make the decision. If the inquiry stops at that point, it suggests
only that the judge is to act like Plato's philosopher
king and that the judge can safely be guided by his or
her own intuitive sense of justice.
That is not a sufficient criterion to ensure justice
according to law. More
definite criteria must be identified in and from the legislation,
and, I hasten to add, they can be.
The example I give may, perhaps, appear
to be trivial, but it is an example which I hope serves
to illustrate the existence of a much deeper problem with
which the law must grapple. Inevitably, there is tension between prescription
of a single all-embracing rule and the achievement
of what may be thought to be a "just result"
in an individual case. Human behaviour, and human circumstances, are
so infinitely various that the prescription of a single
rule may not, in every case, produce what would generally
be seen to be a just result. That problem is not solved by deferring it.
Thus it is not solved by saying to a decision-maker,
do whatever you think is just. In the field of negligence, it is not solved
by saying that a duty of care is to be imposed whenever
it is "just and reasonable" to do so. That does no more than restate the problem
in other words. It
does not solve it. If
a discretionary rule is adopted and no proper attention
is paid to giving the decision-maker sufficient
guidance about what is meant by "just" in the
circumstances, all that has been done is to defer the
problem. The inevitable
consequence of deferring a decision in this way is to
provoke litigation designed to articulate the principles
that the decision-maker should bring to bear upon
the problem. The
inefficiency of that approach is self-evident.
Nor is the problem solved by removing
discretion from the process of judgment. It is not so long ago that there was little or no discretion to
be exercised in fixing sentence for a criminal offence. The sentence was prescribed by law and sentencing
was more a ritual than an exercise of judgment. Now, of course, sentencing legislation provides
for the exercise of discretion by judges according to
principles that are stated in the legislation and are well developed in
the case law. Those
principles start from the premise that a sentence should
be fixed by reference to more than a broad description
of the offence (as "theft" or "assault")
and whether the offender has committed other offences.
The legislatively determined premise is that sentencing
must take many more factors into account.
The way in which that is to be done is far from
easy, but there is a great deal of discussion and development
of the relevant principles to be found in the decided
cases. Now we see in the United States, and elsewhere,
the emerging of a view that individual circumstances of
the offender or the offending do not matter in fixing
a sentence. All that needs to be taken into account can be identified in a two
dimensional graph or chart, one axis of which represents
the nature of the offence and the other the criminal history
of the offender. Whether that is a desirable path to pursue
is a choice for legislators, not judges.
It is important to recognise, however, that it
is a choice which represents a fundamental departure in
the field of criminal law from the general trend of the
law towards the very particular and individualised treatment
of cases.
Litigation
No review of the law in the past century
was complete without reference to "access to justice"
and "the cost of litigation".
I have no doubt that it is well recognised, both
in the legal community and in other circles, that these
are two of the most pressing challenges for the legal
system. I do not
propose to enter upon the details of the debates that
swirl around these subjects. Rather, I want to invite attention to what
I think are a few of the more immediately pressing issues
that are presented in this area.
Technology is seen as offering the
means of solving at least some of the problems of cost
of and access to justice that we now face.
That may very well prove to be right but technology
is no panacea. There is one fundamental danger to which far too little attention
is being given. Developments
in technology enable the assembly and ordering of large
amounts of information.
An unsophisticated user of the equipment can readily
gain rapid access to individual pieces of the information
that is stored and, with a little more skill, can assemble
sets and subsets of the data according to chosen organising
principles. What technology will not do, or at least will
not do yet, is order information according to its forensic
significance. Technology may tell you every document that contains a reference to a particular subject matter
but it will not rank those documents according to their
legal or forensic significance.
The consequence is that lawyers, all too readily,
agree to the creation of a massive database concerning
a particular issue but fail to apply any discrimination
to its creation or use until long after it has been assembled. For the barrister, this process first began
with ready access to photocopying equipment.
Soon, solicitors were sending all the available
documents to counsel for their consideration rather than,
as had previously been the case, reading the documents
for themselves and identifying those few which were central
to the dispute between the parties.
Now, instead of photocopied documents, we have
entered the era of the CD Rom with images of every document.
But still no discrimination occurs until far too
late in the piece. Often enough, it occurs at the point of final
address and then only at the insistence of the judge.
Litigation is expensive and time-consuming. It is expensive because lawyers are skilled
professionals. The
amount of time consumed should, however, reflect the amount
of thought that goes into deciding the real point of contention
between the parties, not the amount of time that is consumed
by identifying what that point is, or considering peripheral
points.
The identification of the real point
of difference between parties must take place out of court. All too often it now occurs in court. Whether it is to be done orally or in writing,
it is plain that the statement of issues between parties
in a civil matter will have to be reduced to writing.
If pleadings are thought not to achieve that result
then let us do so in some other way but it simply must
be done and done out of court. Although the oral tradition of the common law
court is one which I consider to be of inestimable benefit,
and therefore to be preserved, more and more litigation
will depend upon written work for the use of the parties
out of court and written work for use by the judge in
or out of court. No
doubt, the skills of Australian lawyers in this area must
be improved. Whether, as one author suggests, the issue in a case can
always be captured in 75 words or less, it is an aim to
which all should aspire.
The writing of all lawyers at all levels of the
system must be examined. Does it do the job it must? Does it communicate the point quickly and accurately?
If it does not, what are we to do about that?
Hitherto I have said virtually nothing
about the criminal law.
In that area there are some deep-seated issues
of principle which I would suggest the experience of the
last 100 years does not call into question. An accusatorial system leading, in the more
serious crimes, to trial by jury, is not without its difficulties
but for my own part I see no reason yet to challenge those
premises of the criminal law system.
Rather, the pressing challenge for lawyers and
judges is to make the accusatorial system of trial by
jury work better than it does now.
Trials have become too complex.
Directions to the jury have become too complex.
Too often, driven by the fear of the exceptional
case, directions to juries are made longer and more complex
than once was the case. It was, after all, Sir Leo Cussen to whom reference was made in
the joint judgment of the High Court in Alford
v Magee when it
was said that the function of the trial judge is to instruct
the jury on so much of the law as they need to know to
guide them to a decision on the real issue or issues in
the case. Juries
do not require a general disquisition on the criminal
law. Yet often enough that is what is given to them.
The Profession
The way in which the legal profession
has gone about its work has changed markedly since I was
admitted to practise.
In 1969, when I was admitted, the practising profession
was very largely male but, even then, was no longer of
uniform ethnic origin.
The bar that I joined in 1971 was, still, almost
entirely male and of Anglo-Celtic background.
Its civil work was based in motor vehicle accident
work in the same way as, some years earlier, it had been
largely based in landlord and tenant work.
Taking silk was a very perilous step for it brought
with it an obligation not to appear without a junior who
would receive a fee fixed at two-thirds of the silk's
fee. Self-promotion
of any kind, either at the bar or among solicitors, was
not only frowned upon, it was regarded as a serious ethical
offence. Solicitors
firms had, at their head, senior partners in their very
late 50's or 60's. All
practices at the bar and on the solicitors' side were
almost always based entirely within the State.
Interstate admission was very rare and then was
usually a relic of some long past move by the practitioner
concerned.
Much has changed over the last 30 or
so years. Of those
changes I single out only some.
I choose those I do because they may serve to identify
some challenges not all of which may be as well recognised
as they should be. The
most obvious is that the face of the profession has changed
and it is continuing to change.
No longer are graduates from the law schools predominantly
male and of Anglo-Celtic origin. How we deal with that fact not only will reveal
much about the profession, it will shape the way in which
the profession is organised and does its work.
Are we doing enough to recognise these changes
and deal with them appropriately? The challenge is one that confronts society
as a whole, but what are lawyers doing about it in the
law?
More specific to the legal profession
are the challenges that have come from a change in the
balance between pursuit of the law as a profession and
the conducting of a business.
Both elements have always been present in the practise
of the law – the self-abnegating pursuit of some
higher ideal and the pursuit of commercial success. We cannot for a moment delude ourselves into thinking that the commercial
element of practising law has emerged only recently. It has always been there. But the balance appears to have changed.
Glossy promotional brochures, time costing, the
apparently ruthless disposal of partners above about age
55, the panel system and competitive tendering for work
from clients, the pyramidal work structure of one partner
plus two associates plus four solicitors plus twelve articled
clerks and paralegals are all signs or symptoms of what
has changed. What
we need to do, however, is not simply to observe the changes
or even, if this is thought appropriate, complain about
them. What we
must do is understand whether these changes present difficulties
or opportunities, changes or advantages and we must deal
at once with the difficulties and dangers. Of those, there are, I think, two that require
consideration.
The graduates emerging from our law
schools are the best and brightest we have seen. Or at least the difficulties of obtaining law school admission suggest
that they should be.
Yet all too often we find that many of this generation
are turning away from the law in the years immediately
after admission to practise. Why? Is this telling us
anything about the way in which the law is being practised
today? Do we have a proper balance between the professional
ideal and the commercial desire or, as some would have
it, commercial imperative?
Are our young graduates being used in the practise
of the law or are they being used as highly paid clerks?
Are principals and associates (to whom the young
graduate looks as role model or awful example of what
lies ahead) practising law or are they administering large
commercial enterprises in which legal decision-making
is relegated to others to generate the draft which they
will sign? Sir
James Gobbo considered these issues in last year's Leo
Cussen Lecture and I need do little more than refer to
what is said there about the topic.
The second of the difficulties and
dangers is closely related.
No client likes being told "no".
No client likes being told "you will lose". Very often, however, lawyers should give the client such bleak but
steely-eyed advice.
Are we seeing the commercial urge to placate the
client, lest the client go elsewhere, dull that resolve?
Does the client shop around until congenial advice
is given, presumably in the hope, Micawber-like,
that something will turn up?
If that is happening, why is it happening?
Is the law just another commodity to be bought
by the metre or the tonne, or do its practitioners owe
obligations beyond themselves and their clients?
I would hope that you would find, on
careful analysis, that the difficulties and dangers I
mention do not exist.
But I fear we all must ask the questions.
If we do not, we risk serious damage.
The law as panacea
The variety of issues that come before
the courts is now greater than ever before. There are many reasons why that is so but in many cases it will
be found that the rights that are claimed are said to
be based either in particular statutory provisions or
in some over-arching statement of individual rights.
I am not concerned to say whether the making of
such claims is good or bad any more than I am concerned
to say whether the time of the courts is well spent dealing
with such claims. Those
are matters for others to consider.
What I do want to draw to attention, however, is
a pressing need for us all to consider whether the law
can or should be regarded as a universal solvent for an
individual citizen's hurts or all of society's problems.
The legal system is a human system
administered by fallible individuals.
While it is to be hoped that those who participate
in its activities will act justly and wisely, wisdom,
fairness and experience are not the exclusive province
of the legal system.
Not every social problem, not every hurt suffered
by an individual, requires or even admits of a legal solution
and it would be quite wrong to think that they did.
Sometimes, however, it seems that a
contrary view may inform what is suggested that the law
can do. Because some legal principles can be stated
at a high level of abstraction and some statements of
individual rights are phrased in aspirational rather than
normative terms, it is suggested that judges have an ability
to decide some cases according to no principle other than
an intuitive and individual sense of what is fair, just
or reasonable. Furthermore,
for like reasons it is suggested that judges may, in the
name of "policy" decide cases in a way that
will further some end seen by the speaker as socially
desirable. Thus
resort to law is seen as a panacea.
"Sue, that will provide a solution."
Fairness, justice and reason should
all be terms that can be applied to particular legal principles. In the High Court there will often be cases
in which difficult choices must be made and those choices
must be informed by considerations subsumed in the rubric
"policy". But judges are not free to roam as they please
in search of what seems to the individual to be a good
or desirable outcome.
Judges are bound to do justice according to law,
not as if each were a philosopher king in whom all knowledge
and wisdom resides. That
is why the law cannot be seen as a panacea.
Society must deal with its various difficulties
in various ways. The law cannot solve them all and no one, least
of all those who are in the legal system, should think
it can.
Change
Finally, there is the phenomenon of
change itself. It
is rightly said that the law is a conservative force in
society. Litigation
almost always concerns events that are past, to which,
with very few exceptions, the law that is applied is the
law that was in force at the time of the events.
Courts and litigation lawyers are, therefore, generally
looking backwards. Even those who prepare agreements designed
to govern the future relations of parties or give advice
about how future conduct should be ordered, do so with
their eyes in the rear view mirror of what has been found
in the past to be the applicable law.
The rate of change in society now appears
greater than once it was.
Whether history will identify the changes of the
late 20th and early 21st century as being as dramatic
as, for example, the changes brought about by the industrial
revolution, may not matter.
What does matter is that business, community and
social relations are changing.
The legal system must be able to consider whether
those changes require it to change. And it must undertake that task much more often
than once was thought necessary.
In order to do that, it is essential
to identify the elements of the system that are properly
regarded as fundamental.
It is, therefore, necessary to have a clearly developed
understanding of what is meant by the rule of law, of
what is meant by judicial independence, of why judicial
independence is important.
Especially is that so when debate on even the most
complex issues is all too often conducted through the
medium of seven second sound bites. If the principles I have mentioned are important,
and I think they are fundamental to the way in which our
society is organised, all participants in the legal system
must understand what they mean and why they are important.
Only then can the debate be conducted on a sound
basis.
Just as it is important to identify
and understand fundamental principles, it is equally important
to understand what is not
important and what is not fundamental. No doubt that is why what used to be a sharp
distinction between civil law inquisitorial systems and
common law adversarial systems of litigation can be seen
to be becoming blurred. The civil law systems are increasingly taking
on aspects of the common law adversarial system. Common law adversarial systems are learning
from the civilian traditions.
If we are right to think that the pace
of change in society will continue unabated, or even increase,
the legal system must be prepared to deal with change.
It is not enough to say that what has been done
in the past is best unless we know why that is so and
can articulate those reasons. That, we can do, only if we have examined the
fundamental underpinnings of our legal system.
Of all the lessons that we may learn
from looking in the rear view mirror, it is that which
stands out. Unless we know not only what we do but why we do
it, we will learn nothing from what has passed. And I need hardly remind you that unless we learn from it, we will
be condemned to repeat it.
