|THE RELATIONSHIP BETWEEN THE JUDICIARY AND LAW REFORM BODIES
Justice Susan Kenny, Federal Court of Australia
The relationship between the judiciary and law reform agencies has many dimensions. Even the assertion that there is a relationship provokes the questions - when? where? between whom specifically? Are we speaking about what is or about what should be; about what was or about what will be? Such questions are reasonable. The attitude of judges to law reform and of law reform agencies to judges has varied over time, and from place to place.
Taking the broad historical view, it seems that, at least since early European settlement, the judiciary in this country has had a relationship of sorts with law reform. One colonial example illustrates this point. On 14 July 1870, Letters Patent established a body “to inquire into the state of the Statute Law of [the] Colony [of New South Wales], and submit proposals for its revision, consolidation and amendment; and also to make a like inquiry into the Practice and Procedure of the Colonial Courts, and propose amendments therein with a view to the simplification and improvement of the same”.1 The colonial body comprised five lawyers working part-time, under the chairmanship of Chief Justice Stephen. It seems that their output was small, owing to the other work demands on its members.2
A roving glance around Australia shows that the best of the judiciary have always been concerned with improving and modernising the law. Here in Queensland the name of Sir Samuel Griffith most naturally comes to mind. During his term as Chief Justice of Queensland, Griffith assumed responsibility for the drafting of his long-lived Criminal Code, which was adopted by the state legislature in 1899.
In my home state, Victoria, from 1908, Sir Leo Cussen, then a judge of the Supreme Court, undertook an extraordinary project of statutory consolidation for the Victorian Parliament. When completed in 1915, the work comprised five impressive volumes. Other Australian states followed his example. Three years later, Cussen began an even more difficult project of statutory consolidation, to determine which English and colonial Acts were applicable in the state.3
Also in Victoria, over a quarter of a century later, in 1944, the newly appointed Chief Justice, Sir Edmund Herring, created a committee to consider forming a permanent body to formulate law reform proposals on non-political lines; and, in consequence, the Chief Justice’s Law Reform Committee entered the Victorian legal world, where, for a time, it made a significant contribution.
Elsewhere around Australia the history of law reform until the late 1960s was not very different. The law reform bodies in the Australian states and territories were constituted by judges and lawyers, with few resources other than their own knowledge, with limited time at their disposal, and generally lacking any formal governmental status.4 Notwithstanding the constraints under which they operated, Michael Tilbury has judged their achievements as “impressive”.5
This abbreviated historical overview indicates a number of things about the relationship between the judiciary and law reform bodies in Australia at least until the late 1960s. First, over time, numerous judges had been committed to the work of law reform, at least law reform of the more technical “black letter” law variety; and, over time, some gifted judges had contributed a great deal. At the same time, until around the late 1960s, the objects of law reform were largely directed to purely legal topics, including, though not limited to, the codification and modernisation of statutes.
The generally narrow focus of law reform projects for which judges assumed responsibility indicates the somewhat limited nature of law reform that judges traditionally considered themselves qualified to undertake.6 Even for these projects, judges had generally not enjoyed the resources, whether measured in time, money, or otherwise, to be particularly effective law reformers. Moreover, judges accepted that they were constrained by the nature of their office from engaging in vigorous public debate or from lobbying government for change. Traditionally, then, law reform by judges was essentially law reform for judges and other lawyers; and it was mostly not a public affair.
Change came in the late 1960s, when the relationship between the judiciary and law reform bodies was altered irrevocably. As David Weisbrot put it, in the 1960’s “the mood of the community had begun to shift … demanding more opportunities for direct participation in the democratic process”.7 It was natural enough that, in this spirit, the community began to question the law and the legal system and, in some cases, call for law reform. But the new law reform movement was not just the result of a change in community attitudes. The new law reform agencies in common law countries were, to a large extent, the intellectual children of the common law judiciary. To make good this point, I have once again to look back at the history of law reform agencies.
Judge Benjamin Cardozo can be regarded as intellectual grandfather to these new agencies. As early as 1921, Cardozo proposed the establishment of a law reform agency, to be named the “Ministry of Justice”, to mediate between courts in the United States and the legislative branch. Cardozo wrote:8
“The courts are not helped as they could and ought to be in the adaptation of law to justice. The reason they are not helped is because there is no one whose business it is to give warning that help is needed. …To-day courts and legislature work in separation and aloofness. … On the one side, the judges, left to fight against anachronism and injustice by the methods of judge-made law, are distracted by the conflicting promptings of justice and logic, of consistency and mercy, and the output of their labors bears the tokens of the strain. On the other side, the legislature, informed only casually and intermittently of the needs and problems of the courts, without expert or responsible or disinterested or systematic advice as to the workings of one rule or another, patches the fabric here and there, and mars often when it would mend. Legislature and courts move on in proud and silent isolation. Some agency must be found to mediate between them.
This task of mediation is that of a ministry of justice.”
Cardozo’s ideas in this regard were influential in the United States, the United Kingdom, and ultimately elsewhere in the common law world. His argument for a permanent law reform agency led to the creation of the Law Revision Commission in New York in 1934 – to examine the laws of the state, with a view to their revision in light of modern conditions.9
Bearing in mind that the “all-red” route still signified British Imperial strength in 1934, it is unsurprising that the establishment of a Law Revision Committee for England and Wales by Lord Sankey, then Lord Chancellor, in January that year gave some impetus to the creation of public law reform bodies in Australia.10
Back home some years later, in 1957, Sir Owen Dixon, then Chief Justice of the High Court, invited the establishment of what he termed “a Federal Committee for Law Reform”, noting, amongst other things, that “[t]he Law Council can, of course, do much. But it is a voluntary association and, without a governmental status and the resources which that will give, a reforming body will accomplish no great reforms”.11
As it happened, in the United Kingdom, neither the Law Revision Committee nor its successor, the Law Reform Committee, proved particularly successful. What changed the face of law reform in many common law countries was the creation in the United Kingdom of the Law Commissions by the Law Commissions Act 1965.12 The Law Commissions were the creation of Lord Gardiner, then Lord Chancellor and a fan of Judge Cardozo.13 The object of the Law Commissions was the rationalisation of statute law. Their creation reflected Lord Gardiner’s view that the hallmark of a civilised society was not only that its laws were just, but that they were up to date, accessible and intelligible.14 Today, it is almost universally acknowledged that the enduring success of the Commission for England and Wales was very largely due to its first chairman, Lord Scarman.15 At the time of his appointment as chairman, Lord Scarman was a judge of the Probate, Divorce and Admiralty Division of the English High Court, where he was regarded as “a courteous, humane and, when the occasion presented itself, scholarly judge”.16
As Michael Kirby said, “it was the establishment of the Law Commissions, and especially the English Law Commission under Lord Scarman, that triggered the move for substantial institutional bodies in Australia, beginning with the New South Wales Law Reform Commission in 1966”.17 Similar bodies followed in Queensland in 1968, Western Australia in 1972, Victoria in 1973 and Tasmania in 1974. Federal legislation permitting the establishment of a national law reform agency was enacted in 1973, although it was not brought into operation until 1975.18
As you all here know, the inaugural chair of the federal body, the new ALRC, was the then Mr Justice Kirby, at that time a Deputy President of the Australian Conciliation and Arbitration Commission. As Tilbury notes, “[w]hile the ALRC boasted a conventional mandate, its first ‘Chairman’ … had clearly defined views on the ways in which law reform should occur in a modern liberal democratic State”.19 The long-lived success of the ALRC is doubtless due in no small part to Kirby’s leadership during its first decade.
Taking the long historical perspective, it seems to me that one can confidently say that judges were among the intellectual parents of permanent law reform agencies as we now know them. But have their intellectual children now flown the nest? Is there any longer any genuine contribution that the judiciary can make to law reform agencies? In what way can, or should, their intellectual children assist their judicial parents?
Australian legislatures have apparently assumed that judges could have a role in statutorily created agencies. At the federal level, the legislation establishing the ALRC has always contemplated that judges might be members of the Commission. That is, judicial office has always been a qualification for Commission membership.20 Furthermore, the Commission has always had judicial members, either on a full-time basis as Chair or President, or on a part-time basis as a part-time Commissioner.21
In the first two decades of its life, the Commission remained under judicial leadership, passing from Kirby into the hands of the Hon FX Connor QC – a former Federal Court judge and judge of the ACT Supreme Court; and then, in January 1988, into the hands of Justice Elizabeth Evatt AO – formerly Chief Judge of the Family Court and remaining a Deputy President of the Industrial Relations Commission at the time of her appointment as President of the ALRC.22
From 1975 until now, however, the number of judicial members of the Commission at any one time has remained relatively slight,23 and judges have generally not been appointed as consultants to any one reference in large numbers.24
The ALRC’s first Report, for 1975, recorded that, besides the full-time chairman, there were a number of part-time members, and none were judges. (I pause to note that, with the benefit of hindsight, the choice of inaugural members was remarkable, although there is no time to discuss these appointments here.25) In the next ten or so years, whilst the chair was judicial, there were never very many other judges appointed as Commissioners. In 1981, Justice FM Neasey, then of the Tasmanian Supreme Court, became the first and only state judge appointed, part-time, to the Commission. A year later, in 1982, the relationship with the federal judiciary was strengthened by the appointment of Justice GE Fitzgerald, then a Federal Court judge, also as a part-time member.26 In 1984, Justice JM Maxwell, then a judge of the Family Court, joined as a part-time member – at that time being only the second woman appointed to the federal Commission.27
For the rest of the 1980s there was no significant change in the number of judges appointed to the Commission, although the relationship between the Commission and the Federal Court was apparently further strengthened. Thus, as at 30 June 1987, the Commission’s eleven part-time members included two Federal Court judges, as well as Justice Maxwell of the Family Court.28
The appointment of Mr Alan Rose AO – formerly Secretary of the Commonwealth Attorney-General’s Department, as President in 1994 marked the end of judicial leadership but no reduction in the number of judicial part-time members. Justice John von Doussa of the Federal Court and Justice Ian Coleman of the Family Court remained as part-time Commissioners during Mr Rose’s term. Justice Mark Weinberg, also a Federal Court judge, joined them in 1998 to work on the Proceeds of Crime reference – a reference to which he was particularly suited by reason of his expertise in the criminal law.29
The period with which I am familiar began shortly thereafter, when Professor David Weisbrot became the first legal academic to hold the office of ALRC President. During his term, there were always two, sometimes three, part-time Commission members drawn from the Federal Court, including Justices Kiefel, French, and Collier.
As I have said, the numbers of judges appointed from time to time as consultants or advisers for references has generally been relatively small. They have only been appointed where their particular experience or knowledge made it especially appropriate. For example, in 1980, Justice Forster (Chief Judge of the Supreme Court of the Northern Territory) and Justice Toohey (then a Judge of the Federal Court and the Northern Territory Supreme Court and Aboriginal Land Commissioner) were both appointed as consultants to the Aboriginal Customary Law project. Interestingly, in 1981, only one judge, Justice Lockhart of the Federal Court, was a consultant for the Access to the Courts reference, whilst a group of four judicial officers found themselves consultants for the Evidence reference.30
Looking back, it is plain enough that a very special and strong bond has developed over the years between the Commission and the Federal Court. Part-time Federal Court Commissioners have taken their responsibilities to the Commission very seriously, and, in my experience, on their appointment, each has set out to identify how he or she might best contribute. In this way, over time, there has been forged a firm and direct connection with the federal judiciary. Accepting this, what then is the nature of the connection?
For the ALRC, the federal judiciary is a pool of knowledge. In the same way, so too are the state and territory judiciaries for state and territory law reform agencies. Federal judges work with federal law every day of their judicial lives. Federal law is with them when they wake up each morning, through-out their day, until they fell asleep at night. Indeed, federal law is for some of us the stuff of dreams, or worse. The result is that the average Federal Court judge has first-hand knowledge of a great deal of the federal law on the civil side. Again, on the civil side, this body of knowledge is complemented by the knowledge of the Family Court judges and, now, the Federal Court Magistracy. Moreover, as we have seen, some members of the federal judiciary have been expert in the criminal law.
Knowledge of federal law is not, however, exclusive to the federal judiciary. One has only to turn to the Australian universities to find first-class academics with a deep knowledge of federal law. There are also deep wells of knowledge within the Commonwealth public service and amongst lawyers in private practice.
Typically, however, boundaries of legal knowledge, especially of the practical operation of the law differ, depending on how such knowledge is acquired. The judicial perspective is distinctive – often “cabined, cribbed, confined” but occasionally at the mountain top. This statement may need some explanation. The primary task of judges is the adjudication of the disputes that come before them within their jurisdiction. The nature of the dispute brought before the judge depends very largely on the litigants; and its resolution will by and large depend on statute and an already existing body of judge-made law. Doctrines of precedent and stare decisis further confine the judge to making decisions in conformity with previous decisions. Within this somewhat confined framework, the scope for innovative thinking is relatively slight. This is not to say that judges cannot, or do not, make law; of course they do. But typically they do so on a relatively small canvass, and on an ad hoc basis. Difficult decisions involving policy and values arise in a somewhat haphazard fashion, and the constraints of the judicial process and the resources of the litigants limit the extent of their consideration.31 Even “a great creative judge … with confidence and ability”, to use the words of Michael Kirby,32 cannot address the full canvass of law reform as an adequately-resourced modern law reform agency can. In any event, in our democratic system of government, it would be lamentable if they thought they could do so.
What then can judges offer a law reform agency that is special and distinct? First, judges can offer a practical and objective perspective of how the law actually works, since they regularly see it in operation, usually from a viewpoint independent of any relevant special interest. The ALRC’s reference on client legal privilege is illustrative. In circumstances such as these, federal judges will often be familiar with the practical limitations of the law, and its possible deficiencies, and well placed to assist in the evaluation of proposals for change. As we have seen, this is the traditional contribution made by judges to law reform.
As others have noted, however, modern law reform agencies operate very differently from the judge-led committees of the past. The premise for modern agencies is that effective law reform requires a sound understanding of the law in operation; and that such understanding depends on talking with those affected by the law, including, where relevant, the general community. Hence, the modus operandi of modern agencies is consultation – even public outreach, empirical research, and the distribution of issues and discussion papers. Where do judges fit within this regime?
In some cases, federal judges have a special and particular interest in being involved in a project, such as the current reference to the ALRC on discovery. Other such projects like this have included sentencing of federal offenders,33 or the uniform evidence law project.34 The inclusion of judges in the consultation process for these projects serves much the same purposes as the inclusion of any group of interested persons.35 Here, well-based recommendations need judicial input as much as that from any other group likely to be affected by any reform proposals.
If this were all, however, there would be only slight justification for including judges in the membership of the Commission. Their contribution might as well be made as advisers and consultants. I believe that the relationship between the Commission and the federal judiciary is deeper than this, and is properly recognized in the judges’ continuing membership of the Commission.
Some of the value-adding that federal judges give is related to the breadth and complexity of the work undertaken by modern law reform agencies. This may seem paradoxical. As I have said, judicial work offers only limited opportunities for legal creativity and, in their daily life, judges operate on a relatively small law reform canvass. In contrast to this, the work of law reform agencies today stretches well beyond the discipline of law and matters with which judges can claim any special knowledge or even familiarity. Further, numerous ALRC references have had a strong social policy emphasis, as, for example, references on alcohol, drugs and driving,36 privacy,37 protecting human genetic information,38 and human tissue transplants.39 As David Weisbrot has observed,40 the ALRC’s inquiries into the protection of human genetic information were multi-disciplinary, embracing everything from bioethics, genetic and molecular biological research, community health and medicine, genetic counselling and community education, consumer issues, genetic support groups to insurance and actuarial practice, privacy laws, anti-discrimination laws, forensic medicine, policing and trial practice. One may well ask whether a federal judge can play any useful role in this environment. If so, what might that role be?
In this environment, federal judges can perform a number of roles. As already noted, they bring to a large-scale inquiry an intimate knowledge and wide experience of federal law. This may prove particularly useful in a large-scale inquiry where it is important to keep in mind the existing legal framework, as well as the very different perspectives of other disciplines, in order to assess reliably the effect of the intersection of the current law with any proposals for law reform.
Secondly, it is worth bearing in mind that federal judges are well used to assimilating voluminous information from disciplines other than their own and, work pressures permitting, can generally be relied on to offer constructive comment on the interaction between information obtained in consultation with the existing or any new legal framework. Further, modern law reform agencies generally insist on gathering relevant empirical data in order to understand how the law operates in practice. Here too the modern federal judge – well used to making an objective evaluation of evidence of this kind – can assist in the processes of synthesis and evaluation.
Thirdly, and most importantly, the active participation of judges assists in maintaining community confidence that the agency will safeguard its intellectual independence, by conducting fairly-based empirical research, consulting with all relevant stakeholders, and maintaining an open mind about the preferred result. There is sound reason for this: judges are wary (and expected to be wary) of participating in any activity that might compromise, or be seen to compromise, their independence from government or any lobby group. Indeed, judges can only properly accept membership of a law reform agency that has such independence. This was, so Lord Hope noted, clearly recognized by Lord Scarman when the UK Law Commissions were created over forty-five years ago. Moreover, independence from pressure groups and government is what makes the modern law reform agency credible, valuable and sought-after.
I have thus far spoken largely about the contribution of federal judges to a modern law reform agency. The relationship between the ALRC and the federal judiciary is a mutually beneficial one. The advantages for the judiciary operate at three distinct levels. First, the first-class scholarship of the ALRC recorded in its published reports frequently assists in the task of ascertaining the law, statutory interpretation, and the development of the common law to meet contemporary needs. These are key tasks for the federal judiciary; and the published work of ALRC undoubtedly helps to improve the quality of judicial decisions. In the long run, better judicial decisions benefit not just the litigant, but the whole community. The contribution of the ALRC in this regard can be seen in the fact that it is taken for granted now that judges may refer to the Commission’s work when the need arises.41 According to Brian Opeskin, there have been between about 60 to 80 citations of the work of the ALRC each year since 1998.42 There would be many more occasions where the judge consults its work, though this is not apparent from a published judgment.
Secondly, federal judges undoubtedly benefit from their involvement in the work of an independent, research-based, consultative law reform agency, because participation in projects inevitably increases their understanding of the practical operation of the law, whether in its current state, or as it may be reformed by the Parliament. Knowledge of this kind spreads through the judiciary, rippling outward from those with direct involvement to others within the court.
Thirdly, judges who participate in the work of a law reform body such as the ALRC are exposed to different ways of thinking about the law and the way it operates. This is partly because they become involved in a consultative process and consider policy issues in ways that would not traditionally have been open to them.43 This tends to improve the quality, vigour, flexibility and versatility of the work of the courts, without diminishing their core strengths or compromising judicial office.
There are always challenges to maintaining the beneficial relationship between the judiciary and a law reform agency, such as the ALRC. There is a price for judicial involvement. The independence that is essential for judges may mean that the agency misses opportunities to persuade the government of the day to take on its recommendations. There is a risk that the agency will be marginalised. There are other costs too: judges may take the places of others with more time or more useful experience; and work pressures may hinder judicial contributions.
Nonetheless, I consider the price of judicial involvement is a fair one. No law reform agency can be effective in the longer term without being independent. The willingness of particular stakeholders and the community at large to participate in the process of law reform depends on the independence and probity of the agency. In any case, there is little point in having a law reform agency if its work is not seen as scholarly and objective.
In Australia, for the past thirty-five years, the relationship between the federal judiciary and the ALRC has only gathered strength. Each has contributed to the betterment of the other. The Australian legal system and, therefore, the Australian community, has clearly been the winner. I believe that we should continue to build on this relationship.