~USTRALIANLEGAL CONVENTION - Michael Kirby · 2010. 10. 25. · ass~mbling, in an analytical...
Transcript of ~USTRALIANLEGAL CONVENTION - Michael Kirby · 2010. 10. 25. · ass~mbling, in an analytical...
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19th ~USTRALIAN LEGAL CONVENTION
SYDNEY, TUESDAY 5 JULY 1977
·LAW REFORM AND THE LEGAL PROFESSION
COMMENT
Hon Justice Mb Kirby
July 1977
,48
19th ~USTRALIAN LEGAL CONVENTION
SYDNEY, TUESDAY 5 JULY 1977
·LAW REFORM AND THE LEGAL PROFESSION
COMMENT
Hon Justice M b Kirby
July 1977
,48
-
19th AUSTRALIAN LEGAL CONVENTION
SYDNEY, TUESDAY 5 JULY 1977
LAY, REFORf·j A,iD THE LEGAL PROFESS rON.COi~i'jENT
A commentary on the papers by Professor A.L. Diamondand Hr. R.D. Nicholson
by Hon. Mr. Justice M.D; KirbyChairman of the Australian Law Reform Cornnlission
LP.W REFORM, LAWYERS' LAW G LAWYERS' CONSERVATISM
Professor Diamond deservep our thanks for outlining once
again the procedures adopted ~y the Law Commission in promoting
reform of the law·, Mr. Nicholson is to be congratulated for
assembling, in an analytical fashion, ~uch a mass of material
about law refor~ i~ Australia and organis~ng the numerous ways
in which the profession, in all its aspeqts, ~an assist to promot
"renewal ': of the legal sY15tem. Law reform is now a matter of
increasing community interest in Australia. Opening,the Second
Symposium on Law and Justice in the A.C.T .. , on 2S-March 1977,
the Commonwealth Attorney-General, Mr. Ellicott~ said:
Itf/hat we are see.ing in this country today isthat ~aw reform is being taken into the ~ivingrooms of the nation~ by teLevision and byother means. We are a~L b.ecoming involved in it".
Organis.ed. law reform in the Comm~nwealth of Nations will
come in for .'scDutiny· at the forth_~oming Conference in Edinb.urgh.Some of the law 'reform agencies will collect in ~ondon in August
1977. The d~scu$sion of a number of matters relevant to law
reform at this Convention is therefore timely. ObviouslYl with
two papers, three commentators and ten minutes at my disposal,
only a few themes can,be picked up.
Both-papers raise for debate the question whether law
reform agencies should be confirted to so-called lllaHyers l law lt ,
avoiding review of laws with !l any substantial pOlitical ,or moral
content!1 and concentrating on matters Ilnon-controversial~ save
amongst lawyers". l Certainly, there are dangers in policy-
pregnant ' References. One law reform body in Australia declined
19th AUSTRALIAN LEGAL CONVENTION
SYDNEY, TUESDAY 5 JULY 1977
LAY, REFORf·j A,iD THE LEGAL PROFESS Wi . COi~i'jENT
A commentary on the papers by Professor A.L. Diamond and Hr. R.D. Nicholson
by Hon. Mr. Justice M.D; Kirby Chairman of the Australian La~-l Reform COIIUllission
LE>.W REFORI1, LAWYERS' LAW G LAWYERS' CONSERVATISM
Professor Diamond deservep our thanks for outlining once
again the procedures adopted ~y the Law Commission in promoting
reform of the law·, Mr. Nicholson is to be congratulated for
ass~mbling, in an analytical fashion, ~uch a mass of material
about law refor!U in. Australia and organisipg the numerous ways
in which the profession, in all its aspec,ts, ~an assist to proIiiot
"renewal I: of the legal sY15tem. Law reform is now a matter of
increasing communi.ty interest in Australia. Opening, the Second
Symposium on Law and Justice in the A.C.T .. , on 26 March 1977,
the Commonwealth Attorney-General, Hr. Ellicott" said:
Iff/hat we are see.ing in this country today is that ~aiJ peform is being taken into the ~iving rooms of the nation~ by teLevision and by other means. We are a~L b.ecoming involved in it".
Organis-ed. law reform in .1:he Comm~nweal th of Nations will
come in for ,"scDutiny at the forthcoming Conference in Edinb.urgh.
Some OF the law 'reform agencies _will collect in I,.ondon in August
1977. The discussion of a number of matters relevant to lavl
reform at this Convention is therefore timely. ObviouslYl vlith
two papers, three corrunentators and ten minutes at my disposal,
only a few themes can.be picked up.
Both-papers raise for debate the question whether laH
reform agencies should be confiI1ed to so-called lIlaHyers' law lt ,
avoiding review of laws with !l any substantial political·or moral
content'l and concentrating on matters "non-controversial~ save
amongst lawyers" .. l Certainly, there are dangers in policy-
pregnant' References. One law reform body in Australia declined
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. to become involved in the abortion debate. 2 The last Annual
Report of the N.S. W.-...Law) .Refo::rJIl·~9!J1mis.siCln .:pointed out that
11 social and political issues-l" :are. lI matters that are not properly
the sole preserve of lawyers ll • 3 Within days of this report,
that Commission 'was given its major reference to reform the
legal pro£ession~
I 'think we should put this debate to rest . In
Australia, most,law ,reform. bodies have no choice in the matter.
Under their sta:tutes, when given- a"'Ret"erence, ·it is ·their- duty
to get on with the job. No doubt governments weigh"the
advantages and Siisadvantages' of committing important social
issues to an independ~nt commission of lawyers~ The- advantages
o~ doing so, given the way these bod{es are now operating,
should not be underestimated.
In any case, there are few areas of law reform that
are entirely inn6cuous and l~cki~g in- social or economicll· .
significance .. ' But even assumirig ~t were possible neatly to
categorise a group of subj'ects·'as· ";Lawyer's "law" and ass-uming
I had a choice in the" ·rri~tter, I· am not at .all convinced that
this is the e~clusive. territory fqr law reform projec~s.
I appreciate that some members of the profession would disagree.
It is my view th~t, 'included in sucl: .a ca'tegory, would be those
laws which are either of minimum significance for the just
organisation of societyS or ·areof concern to the wealthy and
educated members of society, who are already fairly well served
by legal talent. 6 The ultimate consumers of the law, ?s
Professor Diamond once said, are the people affected by it.?
!1any more people are affected by injustice in social security
laws or court delays ~han by defects in the rule against
perpetuities. There is surely room for reform of the latter.
But, given the pressures oh Parliaments nOWd?ays, the urgency
of reform and the widespread inconvenience of lack of rel'Ol"wl
there is also merit in giving to law reform bodies ,projects
Hhich involve significant policy questions. Law reform is not
a mere hobby-horse of the legal profession~ Given the way
in which Australian law reform bodies have shown that they can
handle complex, contentious, controversial issues, I predict
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. to become involved in the abortion debate. 2 The last Annual
Report of the N.S. W.-... Law) .Refo:rm" ~9!J1mis.siCln .:pointed out that
11 social and political issues""'!' are _ II matters that are not properly
the sole preserve of lawyers ll • 3 \.Jithin days of this report,
that Conunission 'was given its major reference to reform the
legal profession-!
I 'think we should put this debate to rest. In
Australia, most,law ,reform. bodies have no choice in the matter.
Under their statutes, when given- a"'Reierence, -it is ·their- duty
to get on with the job. No doubt governments weigh'the
advantages and Siisadvantages' of committing important social
issues to an independent commission of lawyers~ The- advantages
o~ doing so, given the way these bod{es are now operating,
should not be underestimated.
In any case, there are few areas of law reform that
are entirely in~bc\.lbus and l~cki~g in' social or econom.ic ll· .
significance._· But even assumirig ~ t Here possible neatly to
categorise a group of subj'ects as ";Lawyer's "law" and ass-uming
I had a choice in the" ·rri~tter, I· am not at .all convinced that
this is the e-xclusiv·e. terri tory fqr law reform projec.ts.
I ap·preciate that some members of the pro'fession would disagree.
It is my view th~t, 'included in suc}: .a ca'tegory, would be those
laws which are either of minimum significance fo,r the just
organisation of societyS or "are of concern to the wealthy and
educated members of society, who are already fairly well served 6 by legal talent. The ultimate consumers of the law, as
Professor Diamond once said, are the people affected by it.?
!1any more people are affected by injustice in social security
laws or court delays .than by defects in the rule against
perpetuities. There is surely room for reform of the latter.
But, given the pressures on Parliaments nOt-ld?ays, the urgency
of reform and the widespread inconvenience of lack of rel'orr.l,
there is also merit in giving to law reform bodies ,projects
Hhich involve significant policy questions. Law reform is not
a mere hobby-horse of the legal profession~ Given the way
in Hhich Australian law reform bodies have shown that they can
handle complex, contentious, controversial issues, I predict
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that Law Ministers will increasingly use their talents to
help Parliament grasp tho:ny,social problems. Let us have no
more of this debate. The pass is sold. The only referencewhich the Australian .Co"rnrnission has rece.ived from successive
Attorneys-Generq..l tha·t might have been descr,ibed a; "lawyers I
law ll relates to standing to sue in Federal Courts. Prafes,sor
Diamond' 5 paper shows clearly that even this reference cannot
safely be Seen as a task for lawyers only.
WORKING PAPERS, SURVEYS AND PUBLIC PARTICIPAT.ION
Now, the consequence o-f_ giy;i..nK. ,l..~\.v _.,ref.0rm bodies
references involving decisions on c9ntr.overs~al ?ocial
questions is that the old way of achieving~aw reform will no
longer do. Prafe'ssa!> Diamond I s paper is especially helpful
for the d.escription it contains of the processes of consultation
·~hat go on in England. The _use of the wor~ing paper, used
almost universally in Australia to promote deba~e, is certainly
a step forward in_prQmo.~ing_pu?l~c.~.onsultation and the input
of ideas and points of view necessary to ensure an informed, 9
and balanceo·proposal for reform. It i~ not enough. Most
law reform bodies engage in comparative lawanalysis,lO
empirical research,ll including social surveys,12 and consultatio
with persons having particular expertise to offer. In every
one of the Australian Commission's re~erences, the Attorney-'.
General is advised to· appoint aaadre of persons with different
skills as consultants. They sit- down with the Commissioners
at numerous stages throughout the pr~ject. It is an
interdisciplinary process that is bracing and extremely useful.
It should also be said that,the Commission has experienced
no difficulty whatever in securing top experts, both wit0in
and outside the law to give their time wi~hout charge, their
only reward being participat~on in a project of national law
reform. 13
But even this is not enough. Given the matters'that
have been referred to the Australian Commission, in every caSe
public sittings or public seminars have bee.n held in all parts
of the country. Professor Diamond indicates that the Law
Comfuission has pot yet conducted pU~lic h~arings. The tendency
in Australia is certainly towards an endeavour to secure public
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that Law Ministers will increasingly use their talents to
help Parliament grasp
more of this debate.
thorny, social problems. Let u's have no
The pass is sold. The only reference which the Australian .Co"rnrnission has rece.ived from successive
Attorneys-Generq..l tha·t might have been descr,ibed a; "lawyers I
law!! relates to standing to sue in Federal Courts. Prafes,sor
Diamond's paper shows clearly that even this reference cannot
safely be seen as a task for lawyers only.
WORKING PAPERS, SURVEYS AND PUBLIC PARTICIPAT.ION
Now, the consequence o-f_ giY:i..nK . .l .. ~\.v _.,ref.0rm bodies
references involving decisions on q:>nt.r.overs~al ,social
questions is that the old way of achieving ~aw reform will no
longer do. Prafe'ssoi' Diamond's paper is especially helpful
for the d.escription it contains of the processes of consultation
·~hat go on in England. The _use of the wor~ing paper, used
almost universally in Australia to promote deba~e, is certainly
a step forward in_prQmo.~ing_pu?l~c consultation and the input
of ideas and points of view necessary to ensure an informed 1 9
and balancecf proposal for reform. It is. not enough. Mos t
1 C b d' , '1 l' 10 a.w reLorm 0 les engage In comparatIve aw ana YSIS,
empirical research 11 including social surveys,12 and consultatio
with persons having particular expertise to offer. In every
one of the Australian Commission's re;ferences, the Attorney-"
General is advised to· appoint a cadre of persons with different
skills as consL\ltants. They sit. down with- the Commissioners
at numerous stages throughout the pr~ject. It is an
interdisciplinary process that is bracing and extremely useful. It should also be said that. the Commission has experienced
no difficulty whatever in securing to.p experts, both witl:in
and outside the law to give their time wit;hout charge, their
only reward being participat~on in a project of national law
reform. 13
But even this is not enough. Given the matters"that
have been referred to the Australian Commission, in every caSe
public sittings or public seminars have bee.n held in all parts
of the country. Professor Diamond indicates that the Law
Comfuission has pot yet conducted pu~lic h~arings. The tendency
in Australia is certainly towards an endeavour to secure public
-
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participation, not just expert participation.
In addition to the e£fort~.-C?f the national Commission,
the Tasmanian Commissiqn attempted public sittings outside
Hobart in 1975. 14 In conducting. its inquiry -into the leg~lprofession, the -Ne.oJ South Wales Commission has had "open
house" sittings in Armidale, Forbes and Parramatta, at "'lhich
members of the pUblic aDd legal pra~titio~ers attended to
put points of view to the Commission.
observed to avoid mere
It is not necessary that
I concede that care must be. d d· d d· 16W1n ow reSS1ng or gran stan 1ng.
The rationale lor enlisting .puplic partic~r~tion of
this kind i"s not only to be found., in 'participatory democ,racyand the movement f.or op'en government". 15. Whatever the " u l t im.ate
values ll which law reform commissions ;;e,ek to. Bust.ain in their
repor-ts,. commonsense dictates that -where -high~y controvers ia 1
Gubjects ,TY'e referred, an- attempt at least T[1ust be made to
procure pUbl~c comment and also the comment of interested
groups, in a public_forum. Success varies. Sometimes the
public participation_'at openheari-ngs is -disappointing.
Certainly, f~ a larg.e country like Australia, .it is an e>:pensive. . .and time-consuming process. However, there.is no doub4 at
all that u~eful and original ideas do e~erge. Take one
example only. The Australian Commission sat in all parts of
the country with public sittings on its. working paper
concerning human tissue transplants. The. issues before the
Commission were controversial, touching basic h~m~n
and social values. The .aid o.f the media was enlisted to put
the issues calmly and fairly before_ an audience numberinG
millions. Letters of suggestion and opinion were procured and
the Commission '5_ proposals were put before a much wider
audience than any working paper could ever procure. Some
suggestions advanced in the pUblic sittings were simply not
covered in the working paper, writings on the subject or
expert submissions. A young Perth medical student, for example,
pointed to the inadequacy of university training to cope"with
the moral and legal questions now facing medical practitioners.
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participation, not just expert participation.
In addition to the e£fort~.-C?f the national Commission,
the Tasmanian Commissiqn attempted public sittings outside
Hobart in 1975. 14 In conducting. its inquiry -into the leg~l profession, the -Ne,oJ South Wales Commission has had "open
house" sittings in Armidale, Forbes and Parramatta, at "'lhich
members of the public aDd legal pra~titio~ers attended to
put points of view to the Commission.
The rationale lor enlisting .puplic partic.ira,tion of
this kind i"s not only to be found., in -participatory democ·racy and the movement for op'en government, .. 15. Whatever the lI u l t im_ate
values ll which law reform commissions ;;e,ek to. sust-ain in their
repor-ts,. commonsense dictates that -where -high~y controversla 1
Gubjects ,TY'e referred, an- attempt at least T[111St be made to
procure publ~c comment and also the comment of interested
groups, in a public_forum. Success varies. Sometimes the
public participation_'at open heart:ngs is -disappointing.
Certainly, f~ a larg.e country like l}u.stralia, .it is an e>:pensive
and time-consuming pr.ocess. However, there. is no doub~ at
all that u~eful and original ideas do e~erge. Take one
example only. The Australian Commission sat' in all parts of
the country with public sittings on its. working paper .. concerning human tissue transplants. The. issues before the
Commission were controversial, touching basic h_umB:n
and social values. The .aid o£ the media was enlisted to put
the issues calmly and fairly before_ an audience numberinG
millions. Letters of suggestion and opinion were procured and
the Commission '5_ proposals were put before a much wider
audience than any working paper could ever procure. Some
suggestions advanced in the public sittings were Simply not
covered in the working paper, writings on the subject or
expert submissions. A young Perth medical student, for example,
pointed to the inadequacy of university training to cope"with
the moral and legal questions now facing medical practitioners.
I concede that care must be . d d· d d· 16 W1T1 ow reSS1ng or gran stan lng.
observed to avoid mere
It is not necessary that
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any particular"'formality should be observed. It is probably
undesirable that the adversary process should ever be used. But
it is important for Parliamen~s and for the cause of law
reform that controversial matters should be pUblicly aired in
this way. The report on them by a Commission which has
sounded public opinion is more likely to 'command respect in
the community and support in the Parliament than would he the
case if no more had ·been done than to consult the special·
interest groups involved. I say nothing about the methods
that may be appropriate for other countries ·or References less
controversial than those' that my Commission has received. . I
regret that I cannot agree with the view of the Scottish Law
Commission that "the man in the street is concerned with a
specific grievance and not with the legiSlative or administrative
authority which may ultimately be responsible for remedying
that erievancell 17 It has cert~inly'not 'been my experiencein Australia. I predict that there will be an increasing
interest in law reform in Australia and the demand for greater
expenditure upon ~t, including' demands from within the legal
profession itself.
THE LEGAL PROFESSION AND REFORMMr. NichOlson's paper -outlines the many ways in which
the. profession can and does, indi\i:;idually and COllectively,
take part in the process of law reform. Although things are
changing, it must be said that not much has altered since
Sir Robert Megarry in 1956 asserted that "lawyers are not
playing their part n • 18 He said that
ll'By and large there is very little
response from the legal profession as a
whole ... Perhaps two or three lawyers
write in with suggestionsl1 19
I say things are changing because.since that was
written, the Law Commission and law reform bodies have been
established throughout the common law world, largely peopled by
lawyers and fuelled by ideas often promoted by L3:wyers. 'The fa
remains that the numbers of lawyers taking an active part in
law'reform are few, in comparison to the numbers of the
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any particular"'formality should be observed. It is probably
undesirable that the adversary process should ever be used. But
it is important for Parliamen~s and for the cause of laH
reform that controversial matters should be publicly aired in
this way. The report on them by a Commission which has
sounded public opinion is more likely to 'command respect in
the community and support in the Parliament than would he the
case if no more had ·been done than to consult the special·
interest groups involved. I say nothing about the methods
that may be appropriate for other countries '01" References less
controversial than those' that my Commission has received. . I
regret that I cannot agree with the view of the Scottish -Law
Commission that TIthe man in the street is concerned with a
specific grievance and not with the legislative or administrative
authority which may ultimately b,e resl?onsible tor t-emedying
that erievance!l 17 It has certainly not 'been my experience
in Australia. I predict that there will be an increasing
interest in law reform in Australia and the d"emand for greater
expenditure upon ~t, including"demands from within the legal
profession itself.
THE LEGAL PROFESSION AND REFORI1
Mr. NichOlson's paper -outlines the many ways in which
the. profession can and does, indi\.-:;idually and collectively,
take part in the process of law reform. Although things are
changing, it must be said that not much has altered since
Sir Robert Megarry in 1956 asserted that "lawyers are not
playing their part!l.18 He said that
lI'By and large there is very little
response from the legal profession as a
whole ... Perhaps two or three lawyers
write in with suggestionsl1 19
I say things are changing because.since that was
written, the Law Commission and law reform bodies have been
established throughout the common law world, largely peopled by
lawyers and fuelled by ideas often promoted by lawyers. 'The fa
remains that the numbers of lawyers taking an active part in
law'reform are fetrl, in comparison to the numbers of the
-
profession
The
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profession. The'cause"of this must be traced to legal education,
attitudes to professional responsibility and the sheer
pressures of coping with day-:-to-day profes'sional life.
l'1egarry started hi,s essay with the proposition that law relorm
is I1the concern and the duty of all lawyers".' The Chief
Justice of New South Wales suggested last year that lawyers
would gain a fresh insight to the need. for changes in "lhe
legal framework if they_.had personal-exper{eryces as litigants. 20
in court. Part of the role of a law reform commission is
to promote within the profession_genuine acceptance and not
mere lip service ~o the duty propounded by Me~arry and the
.sensitivi,ty called for by "Sir Laurence Stree1;.
Now of.c0urse irnpoI;'tant contributions are made by
lawyers commenting upon reform· proposals, whether they originate
in government-or in law reform bodies. 21 Sir _Alexander
Turner put it well, describing the lawyer?~ role as being the
"sentries· of the citi.zenll~22 Clearly the proliferation of law
reform bodies throughout Australia has taxed the professional
societies beyond their present capacity. The numbers of
-committees working upon law reform projects and enlisting the
experti~e of lawyers grows apace. 23 It is certainiy important
that good working relationships be est~blished between law
reform bodies and the professional lega~ societies. 24
But this is not enough. The organised
shOUld not simply react on an ad hoc basis.
Canadian Bar Association has now appointed a Director of25
Legislation and Law Reform. His task is .to "monitor
legislation and proposals of the Federal Government and the
Law·Reform Conunission". He is responsible for liaison with
government and a-genciesworking on law reform. His task is
to identify matters appropriate for reform. His appointment
is described as :
l1 a major thrust by: the Canadian Bar
Association to fulfil its professional
responsibility ... [to] put the public
interest ahead of our own interest without
equivocation". 26
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profession. The-· cause" of this must be traced to legal education,
attitudes to professional responsibility and the sheer
pressures of coping with day-:-to-day prafes-sional life.
14egarry started hi,s essay with the proposition that law relorm
is I1the concern and the duty of all lawyers"_' The Chief
Justice of Ne.w South Wales suggested last year that lav.·yer-s
would gain a fresh insight to the need. for changes in "lhe
legal framework if they _.had personal-expe:d."eryces as litigants . 20
in court. Part 0-£ the role of a law reform commission is
to -promote within the profession_genuine acceptance and not
mere lip service ~o the duty propounded by Me~arry and the
. sensi tivi.ty called for by "Sir Laurence Stree1;,
Now of .cours.e irnpo:r;-tant contributions are made by
lawyers commenting upon reform· proposals,
in government -or in law refor·m bodies, 21
whether they originate
Sir .Alexander
Turner put it well, desc·ribing
"sentries· of the citi.zenll~ 22
the lawyer?~ role as being the
Clearly the proliferation of law
reform bodies thr'oughout Australia has taxed the professional
societies beyond their present capacity. The numbers of
-committees working upon law reform proj"ects and enlisting the
experti~e
that good
. . . 23 of lawyers grows apace.
working
reform bodies and
relationships be
the professional
It is certainiy important
established between law
1 ., .. 24
ega .... soc1et1es.
But this is not enough. The organised profession
should not simply react on an ad hoc basis. The
Canadian Bar Association has now appointed a Director of 25
Legislation and Law Reform. His task is .to "monitor
legislation and proposals of the Federal Government and the
Law·Reform Conunission". He is responsible for liaison with
government and a·gencies working on law reform. His task is
to identify matters appropriate for reform. His appointment
is described as :
lIa major thrust by: the Canadian Bar
Association to fulfil its professional
responsibility", [to] put the public
interest ahead of our own interest without
equivocation". 26
-
Australian professional bodi"c:s are now coming to
the realisation tha~:yeTmanent officers will- be- needed to
fulfil like tasks.2.7
'The Law Foundations are beginning to
playa part in funding research upon State law reform projects. iS
These are St3pS in the right direction 0" But our efforts in
Australia contrast unfavourably with~he efforts of the
organised profession in Canada. There is no officer engage~
full-time upon law reform" co-ordi~ation· and implementation. As
yet there is no equivalent to the C.B:A. National with its
strong emphasise. upon· 'law reform :'in Canada and i t-s· promotion of
an active interest. in and,' khqwledge""of laY"' re"form on the part
of the ordinary member of the profession. -Nor have we yet• d h· . d 29-lace up to t e pract~cal suggestlon rna e by Megarry t~.,Jenty one
years'ago when he said that there ought to be some person or
body to whom all· lawyers could be encouraged to send suggestions
for reform of the law, however minor. That was a good, hard-
headed, practical suggestion'for participation of the
pra.ctising lawyer in the' process o·r·law reforl.l. It has not
borne fruit, in this country. Heg-arry 'suggested thai; all
la;--,yers should regard it -as "part of -their professional .duty
to note such, points -as -they ocbti·r···at-ld in due course to send
them in· ... to ... -one central wellknown point!! 30
Why have we not develope~, such,machinery? It must be
said that the professional enthusiasm for ~~iting in with
suggestions would vary in accordance with the profession's
conviction that there was utility in writing .. At the very least,
there should be a central and well established line of
communication so that lawyers and their professional
organisations could ensure that inconveniences, defects and
oversights in the law could be plugged intq a system for
consideration either immediately or upon the next general review
of that subject. In a modest way, the Au~tralian Commission
has begun to collect jUdicial and other suggestions for ~hc
re£orm of the law. It is a pity that the enormous legal'
talents available in this country for proposing suggestions
cannot be harnessed in a better way. I propose that we
should consider afresh at this Convention Sir Robert r1egarry's
suggestion ,made in 1956 and not yet acted upon.
Australian professional bodi'c's are now coming to
the realisation "tha:t- 'ye'T'manent 'officers will' be· needed to
fulfil like tasks.2.7
'The Law Foundations are beginning to n playa part in funding research upon State law reform projects. - '
These are st3ps in the right direction o' But our efforts in
Australia contrast unfavourably with pthe efforts of the
organised profession in Canada. There is no officer engagetJ
full-time upon law reform·' co-ordi~ation· and implementation. As
yet there is no equivalent to the C. B:A. National with its
strong emphasis. upon· 'law reform ·~in Canada and i t·s· promotion of
an active interest. in and·' khqwledge"'of laY"' re'form on the part
of the ordinary
faced up to the
member of the profession. -Nor have we 29 practical suggestion made by Megarry
yet
t~.,Jenty one
years'ago when he said that there ought to be some person or
body to whom all, lawyer's could be encoura·gai to send s ugges tions
for reform of the law, however minor. That was a good, hard-
headed, practical suggestion'for participation of the
pra.ctising lawyer in the' process o·f'·law reforI.I. It has not
borne fruit, in this country. Hegarry 'suggested that all
la:--,yers should regard it 'as "part of ·their professional .duty
to note such· points as they dcbu.·r "aRd in
them in· ... to ... ·one central wellknown
due course
point" 30
to send
Why have we not develope~, such,machinery? It must be
said that the professional enthusiasm for ~~iting in with
sug-ges.tions would vary in accordance with the profession 1 s
conviction that there was utility in writing., At the very least,
there should be a central and well established line of
communication so that lawyers and their professional
organisations could ensure that inconveniences', defects and
oversights in the law could be plugged int9 a system for
consideration either immediately or upon the next general re'.Jie~.;
of that subject. In a modest way, the Au.stralian Commission
has begun to collect judicial and other suggestions for ~hc
re£orm of the law. It is a pity that the enormous legal'
talents available in this country for proposing suggestions
cannot be harnessed in a better way. I propose that we
should consider afresh at this Convention Sir Robert 1'1egarry's
suggestion ,made in 1956 and not yet acted upon.
-
- 8 -
I cannot leave the contribution of the legal
profession without saying just a word about the contributionof legal academics "and scholars 'to 'law'refor-IT! in AustraJ.ia.
In many ways, I regret fa say; legal acad.emics are treated as"second-class citizens ll by the practising profession, amongwhom I humber the jUdges. There is no doubt that the
contribution of legal academics to the processes of law reform,is quite .disproportionate to tpeir number arid financial
reward. They provide the vital synoptic view of the law.
Almost alone-in ~he profession~ it is' they who see the law,
its history, development and def.ec·fs, as "a wnole. 31. A vi.£,orous,
successful law reform body' provides at last the vehicle to
translate their sugg~stion5 into actiQn and to provide a
practical means of utilising the' critlcal skills of· the legal
academic.' It is my .. ho"pe that the Aus-tralian Law -Reform
(u/Il/lli6sion will help to' br>idge the gulfl.Jldl...·!l undoubt.cLlly divid,'~~
.the practisins and academic "branches of tne profes'sion in
this country.
Ll:GAL EDUCAT"ION AND LAW' REFORM". -
'I have one o~her positive suggestion. It arises from
Mr. Nicholson"s paper'ahd is crucial to professional attitudes
to law reform. Professor Diamond rightly stresses the genius
of the co~~on law in maintaining s~fficient predictability whilst
at the same time retaining flexibility to accommodate change.
I believe that "in some at least of our law schools, there is
undue emphasis upon the first and inadequate reference to the
second : th~ dynamic aspect of our legal system. Perhaps it is
inevitable'that in teaching students to find and identify the
law, the tendency should develop to accept what they find,
without subjecting it to sufficient questioning. Of course
finding the law amidst the case books (or even the statute books)
can often be a task ~o eXhausting that there is not much
enthu:§iasm l'eft to ask whether what is discovered is satisfactory
Law students should be taught to be critical of law as it is and
alert to the social implications of their criticism. Inculcating
the notion that a lawyer's responsibility does not end with
finding and declaring the law is something that should begin at t
earliest stage of legal' education. If this were done, I have no
- 8 -
I cannot leave the contribution of the legal.
profession Hi-thout saying just a word about the contribution
of legal academics "and scholars 'to 'law "refer-IT! in AustraJ.ia.
In many ways, I regret fa say; legal acad.emics are treated as IIsecond-class citizens ll by the practising profession, among Hhom I number the ,judges. There is no doubt that the
contribution of legal academics to the processes of law reform , is quite .disproportionate to tpeir number arid financial
reward. They provide 'the vi tal synoptic view of the law.
Almost alone-iIi -the prcif-ession', it i-so they who see the la\.v,
its history, development and def.eet"s, as "a wnole. 31. A vi.£,orous, 5u'ccessful law reform body' provides at last the ve-hicle to
translate their sugg,estions into actiQn and to provide a
practical means ofu'tilising the' criti'cal skills of· the legal
academic.' It is my __ ho"pe that the Aus-tralian Law -Reform
(u/IllJli6sion will help to' br>idge the gulf~.Jld\ .. :h undoubt.cJly divid,'~~
.the practisins and academic "branche's of the profes'sion in
this country.
Ll:GAL EDUCAT'ION AND LAW' REFORM". -
'I have one o·ther positive suggestion. It arises from
Mr. Nicholson"s paper'ahd is crucial to professional attitudes
to law reform. Pr.ofessor Diamond rightly stresses the ger.ius
of the COnii"nOn law in mainta'ining s).lfficien"t predictability V1hilst
at the same time retaining flexibility to accommodate change.
I believe that "in some at least of our law schools, there is
undue emphasis upon the first and inadequate reference to the
second: the dynamic aspect of our legal system. Perhaps it is
inevitable'that in teaching students to find and identify the
la'w, the tendency should develop to accept what they find,
without SUbjecting it to sufficient questioning. Of course
finding the law amidst the case books (or even the statute books)
can often be a task ~o eXhausting that there is not much
enthu:§iasm l'eft to ask whether what is discovered is satisfactory
Law students should be taught to be critical of law as it is and
alert to the social implications of their criticism. Inculcating
the notion that a lat.-lyer' s responsibility does not end with
finding and declaring the law is something that should begin at t
earliest stage of legal' education. If this were done, I have no
-
- 9 -
doubt that many more lawyers would respond when questions
were raised by law reform and like bodies ~oncerning the defects
in the law. I recognise that courses ·in jurisprudence ,and
other sUbjects .do. attempt to pevelop critical thinking.
Nevertheless, it is my view that there 'would be value in teaching
law reform as a formal part of the law school cur'riculum.
Alternatively, it. should be:entirely possible to include in the
study of particular subjects, discussipn with the local law
reform commission, ~orking upon a r~levant project .
. At this rnomen~, I get~~he. pistinct impression thatmarry lega~ practitioD.er;.S;. ;I:'egard ~aw r~fo~m.as something for the
llexperts": something ,for the overtaxed few in the law society
or possibly even ,something that actually undermines the
certainty which in,thei-J;' conc.eption ~t "i~ th.~ business of the
lavl to pro-vide. The' legal profeS.sian in Australia must be'
constantly :r:-~m,inde.d tFla.t--- :the orig.ina.l dynamic of the common law
was a tr.ve_~spirit of law r~form : law and lawyers responding
'to new sit~ationS demanding_ just solutions. 12 That is why the
Aust~alian Commission utilises- every opportunity it gets to. - ....:.:. . - . .enlist -the suppa~t and:'"par:'ti:C.:i.p.~tion,.of. the profession . In
our number we have lavlyers fr~bm m.any parts of the "country. vle
procure consultants sOme of whom' are lawyers from other parts
of the cO'!1ntry. We conduct pUblic., sitt:imgs and semina~s in all
States upon all of our- projects. Our publications are widely
distributed and we have now adopted the procedure of sending
short discussion papers on our proposals to all those members
of the profession who subsc:r.~ibe to the Australian Lali.' JOUl>nal.
The notion that law reform ,could be added to the curriculum of
our law schools is not an eccentric one. It is done at Harv~rd
and I believe should be considered in this.country. Tam sure. ld f' 33that ~t weu have the support of the law re orm agenc~es.
We are living through a neVI age of reform. When Sir
Leslie Scarman was asked how the Queen's first twenty five
years would be remembered in legal history he suggested that
this period would be seen as lithe age of legal aid and law
reform and Lord Denning". 34 The pressures for law reform will
not abate. On the contrary, they will i.ncrease. He must equip tJ
profession VIith the skill and inclination to answer this challeng
- 9 -
doubt that many more la\o1yers t.Jould respond when questions
were raised by law reform and like bodies ,concerning the defect.c;
in the law. I recognise that courses "in jurisprudence ,and
other sUbjects .do_ attempt to d.evelop critical thinking.
Nevertheless, it is my view that there "would be value in teaching
law reform as a formal part of the law school cur'riculum.
Alternatively, it, should be:entirely possible to include in the
study of particular subjects, discussipD with the local law
reform commission, _working upon a r,.elevant project .
. At this moment., I get-~he .. distinct impre"ssion that marry lega~ practitioD_er;.S; .r:-egard ~aw r~fo~m.as something for the
Hexperts": something ,for the overtaxed few in the law society
or possibly even ,something that actually undermines the
certainty which in ,thei-J;:' conc.eption ~t "i~ th.~ business of the
lav] to provide. The' legal profeS.sion in Australia must be'
constantly ~~m,inde.d tFla.t--- _the orig.ina.l dynamic of the common law
was a tr..l,l.e-:-:_spiri t of law re.form : la'tv and lawyers responding
'to new sit1.l-ations· demanding. just solutions. 3.2 That is why the
Aust~alian Commiss~on_ .\l;!=il.ises- every oPP?rtuni ty it gets to
enlist -the suppo~t and>par:'tip:i.p.~tion ,.of. the profession. In
our number we have lavJyers fr~om m.any parts of the "country. vle
procure consultants some of whom· are lawyers from other parts
of the cO'!lntry. We conduct public. sitt:imgs and seminars in all
States upon all of our- projects. Our publications are widely
distributed and we have now adopted the procedure of sending
short discussion papers on our proposals to all those members
of the profession who subsc:r.~ibe to the Australian La-r..' Joul'nal.
The notion that law reform ,could be added to the curriculum of
our law schools is not an eccentric one. It is done at Harv~rd
and I believe should be considered in this,cuuntry. T am sure . ld f' 33 that ~t wou have the support of the law re orm agenc~es.
We: are living through a new age of reform. When Sir
Leslie Scarman was asked how the Queen's first twenty fi .... ~e
years would be remembered in legal hist.ory he suggested tp,at
this period would be seen as "the age of legal aid and law
reform and Lord Denning". 34 The pressures for law reform will
not abate. On the contrary, they will i.ncrease. He must equip tJ
profession with the skill and inclination to answer this challeng
-
- 10 -
FOOTNOTES
1. R.E. Megarry~ "Law Reform ll (1956)' 34 Canadian Bal' l.eV.691 at p.693. Cf. G. Sawer, I1Who Controls the La..] inAustralia? The'Instigators of Change and the ObstaclesConfronting them" in A.D. Hambly and J~L. Goldring (Ids)NAustraZian tawyers and Social Cha~gen, 1976, p.120;N. Marsh, "Law Reform in the United Kingdom: A' NewInstitutional Approach ll (1.971) 13 rim. & M.L.Rev. 263 atp.275. . .
2'.F. C. 0 I Brien, liThe Victo..;r'ian Chief Justice I 5 Law Refor-rnCommittee ll (1972) -S Melbourne Uni. L.ilcv. 4110 at p.li50.
3. Law Reform Corrunission (N.S.W .. ) Annual Report 1976, p.lO.
4. K.W. Wedderburn, "Reflec"tions on 'Law Eeform ll , The Listener~6 May 1965, - 685 at p.685. Cf. J. Reetz, "Reflectionson Continuity and 'Change in Law Reform" (1972) 22 Urd.Toronto L.·J. 129 at p.140: .
S. Sir Samuel, Cooke," liThe Law Commission: rhe First TenYears~C197o) 125· Nez,) L.J. 1036 at p.lQ.37.
6. This is· the view of J. N. Lyon, "Law Reform Needs Reform".(197.4)~2·Osgoode H.L.J. 421 at p.431.
7. A. Diamond, "The Work of- the LaH C;ommission" (1976) 10J.A.L~T. 11 at p.19.
8. This is the' Declaration of the New Zealand Law ReformCommission's AnnuaZ Report 1971~ p.3
9. The Working Paper has been previOUSly described : Marsh,p.279 and Diamond, pp.13-14 and criticised, Lyon~ pp.425-6.
10. The Law Commissions Act 1965 (G.B.), s.3(1)([) positivGlyrequires this in England. O. Kahn-Freun"d liOn Uses andMisuses of Compara-i:ive Lawl! (1974) 37 M.L.B. 1. The useof overseas study by the Australian Commission inAlcohol~ Drugs and Driving (A.L.R.C.4), 1976 is referredto in (1977) 127 Nez,) L. J. 53.,
11. Law Reform Commission of Canada, Fifth Annual Repo~t 19?6~p.3
12. The way was shown by the Law Commission in 1972 in relationto i-nquiries cc;mcerning a wife I S proprietary· intere'stin the matrimonial home and her rights on dissolution.Cf. (1976) 126 Nez,) L.J. 529.
13. Australian Law Reform Commission Annual Report 1976(A.L.R.C.S) p.22. Law Reviev1 editorials in Australiaconstantly call for consultation of this kind. See, e.g.(1975) Aust.Bus.L.Rev. 240.
- 10 -
FOOTNOTES
1. R.E. Megarry~ "Law Reform ll (1956)' 34 Canadian Bal' l.eV. 691 at p.693. Cf. G. Sawer, I1Who Controls the La"1 in Australia? The'Instigators of Change and the Ob'stacles Confronting them" in A.D. Hambly and J~L. Goldring (Ids) NAustraZian tawyers and Social Cha~gen, 1976, p.120; N. Marsh, "Law Reform in the United Kingdom: A' New Institutional Approach ll (l971) 13 rim. & M.L.Rev. 263 at p.275. . .
2'. F. C. 0 I Brien, liThe Victo.,;r'ian Chief Justice I 5 Law Refor-rn Committee ll (1972)"S Melbourne Uni. L.ilcv. 4110 at p.i150.
3. Law Reform Corrunission (N.S.W.-) Annual Report 1976, p.lO.
4. K. W. Wedderburn, "Reflec"tions on 'Law Reform ll , The Listener~ 6 May 1965, - 685 at p.685. Cf. J. Reetz, "Reflections on Continuity and 'Change in Law Reform" (1972) 22 Ur;i. Toronto L.J. 129 at p.140: .
S. Sir Samuel, Cooke," liThe Law Commission: rhe First Ten Years~Cl97o) 125·Ne", L.J. 1036 at p.1Q.37.
6. This is· the view of JoN. Lyon, "Law Reform Needs Reform". (ln4)~2· Osgoode H.L.J. 421 at p.431.
7. A. Diamond, "The Work of- the LaH
-
_ 11 _
....4. Tasmanian Law Reform C~mmission Annual Report 1975" p.3.The Commission concedes that the experiment was not verysuccessful.
15. Lyon, p.425.
16. Lyon, p.427.
17. Scotti~,1"'. Law Cornrnisslo~ J'I>;(umorandum 32 .. 1·S176 .. PP~45-4G.
18. Megarry, p.697.
19. Ibid.. - - - . .
20. Speech 'at" a' Sem"inar of the' Australian Cr"ime Prevention CauD25 October 1976, unreported.
21. As. pointed 'out by' ~ir'AntbQn'Y'"M~son, "Where Now?" (1976)4 Fed. Law Rev. 197.' .
22. Sir Alexander Turner' "Changing tl'ie'r.aw" (1968-9) !l Il.Z.U.L.·404 at p.417.
" a"C"." .23. See the comment (1.976) 50 Law Inst:Jo. (Vic) .266. The
pnS1.tlon is not"different in England: (1977) 74 Law Soc.Guardian Gazette 54.
24-. The.._co--ope'Patio~. achieved 'in C~nada ha~.been remarkable.See R. Basford (Minister" of Justice)" C~ B. A. Na tiona l,Septe~ber 1976, p.3.
25. National, November 1976, pp.~, 3 •.
26. Ibid, p.3
27. (1976) 50 Law Inst.Jo. (Vic) 266.
28. N.S.W. Law Foundation, Annu;Z Report 1975
29. Megarry, p.700.
30. Loa cit.
31. Megarry, p.698; Turner, p.425.
32. R.J. Ellicott, Speech at the Opening of the Third AustraliaLaw Reform Agencies Conference, 8 May 1976, Minutes andRecord of the Conference, p.34. "
33. P.J. Brenner and K.A. Lahey, "Skills Courses ll (1976) 14Osgoode H.L.J. 166 at p.207.
34. Sir Leslie Scarman liThe Age of Reform", London Times,5 Jan. 1977, Suppl., p.lI.
_ 11 _
.... 4. Tasmanian Law Reform C~mmission Annual Report 1975" p.3. The Commission concedes that the experiment was not very successful.
15. Lyon, p.425.
16. Lyon, p.427.
17. Scotti~,)-1. Law Cornrnisslo~ J'I>;(umorandum 32 .. 1'976 .. pp~45-4G.
18. Hegarry, p.697.
19. Ibid. . - - - . .
20. Speech 'at'-,3" Sem"inar of the' Australian Cr"ime Prevention Ccun 25 October 1976, unreported.
21. As. pointed 'o~t by' ~ir'AntbQn'Y'"Mason, "Where Now?" (1976) 4 Fed. Law Rev. 197.' .
22. Sir Alexander Turner' "Changing trie"f,aw" (1968-9) !l il.Z.U.L. ·40.4 at p.417.
" a"C": . 23. See the comment (1.976) 50 Law Inst:Jo. (Vic) .266. The
pnsition is not "ditferent iri England: (1977) 74 Law sdc. Guardian Gazette 54.
24-. The .. _co--ope'Patio~. achieved 'in C~nada ha~. been remarkable. See R. Basford (Minister" of Justice)" C~ B. A. Na tiona l, Septe~ber 1976, p.3.
25. National, November 1976, pp.~, 3 •.
26. Ibid, p.3
27. (1976) 50 Law Inst.Jo. (Vic) 266.
28. N.S.W. Law Foundation, Annu;"Z Report 1975
29. Hegarry, p.700.
30. Loa cit.
31. Megarry, p.698; Turner, p.425.
32. R.J. Ellicott, Speech at the Opening of the Third Australia Law Reform Agencies Conference, 8 May 1976, Minutes and Record of the Conference, p.34. "
33. P.J. Brenner and K.A. Lahey, "Skills Courses ll (1976) 14 Osgoode H.L.J. 166 at p.207.
34. Sir Leslie Scarman liThe Age of Reforrn ll , London Times, 5 Jan. 1977, SuppI-, p.lI.