2009 Law and Justice Address

The Hon. Murray Gleeson AC
1 October 2009

It is an honour to have been invited to take part in this annual Awards Dinner of the Law and Justice Foundation. During my ten years as Chief Justice of New South Wales, from 1988 to 1998, I followed closely the activities of what was then called the Law Foundation before its reconstitution in 2000, and I was able to enlist its assistance from time to time. It is a pleasure to add my congratulations to the inspiring recipients of the 2009 Justice Awards, to everyone who was nominated, and to the supporters of the Awards. They have all set a fine example of commitment to practical justice; to justice in action. It is that idea of practical justice that I wish to develop in these remarks.

The Foundation has always placed emphasis on its capacity to contribute to a fair, equitable and accessible justice system through its expertise in research and what its present Chairman has described as an evidence-based approach to identifying community and group needs. A brief reference to some aspects of the Foundation’s history and works will bear this out.

The original Law Foundation was set up in 1967. I remember the circumstances because, as well as being a very junior barrister, I was also the part-time honorary Assistant Secretary of the Law Council of Australia – an undemanding role, but one that gave me a close view of what might be called legal politics.

The Law Foundation was the outcome of a dispute between the New South Wales legal profession and the major banks. Its commercial origins might now be regarded as faintly embarrassing in some quarters, but they illustrate the good that may come from conflict resolution.

The dispute concerned interest on moneys standing to the credit of solicitors’ trust accounts. The amounts in those accounts were large. Their beneficial owners were the clients of solicitors, but any particular client’s moneys were usually only in such an account for a very brief time, and to most individual clients the interest would have been inconsequential. Typical examples of the sources of such funds would be the purchase money involved in a conveyancing transaction, or the proceeds of an award of damages awaiting disbursement to a client. They were only held in trust for a short time, but on any given day the total of such amounts was large. Obviously, the solicitors themselves were not entitled to interest – they were trustees, although the individual beneficiaries were constantly changing. Yet if no interest was paid, the banks had access to a free source of money, which they, in turn, used to their advantage. The case for requiring the banks to pay interest was strong, but the problem was as to its destination. The Law Society and the banks were at loggerheads. Some solicitors for the banks were themselves prominent in Law Society affairs. The compromise reached was that the banks would pay interest, but that it would go to a Law Foundation, in whose affairs the Law Society would play a major role. The money would be used to support projects relevant to the law and the justice system.

One of the major early works of the Law Foundation was to fund the College of Law, set up to provide practical legal training which was needed to replace the articled clerk system that was coming to an end around that time.

This same issue arose in other States, and caused disagreements that lasted for many years. It was asserted, for example, that the moneys were being applied for the benefit of the legal profession rather than the public. This was a long-standing cause of friction between Law Societies and State governments, as was the issue of control of the bodies to which the funds went. It is hardly surprising. There are many different ways to promote access to justice, and the priorities of a Law Society are likely to be different from those of other interested people.

In 1982, the Law Foundation set up the Public Interest Advocacy Centre. In 1983, it commenced a series of publications called Pocket Guide to the Law, which gave plain language answers to common legal questions. More than 400,000 copies were sold. In 1989, the Foundation established the Civil Justice Research Centre which aimed, by its work, to increase the efficiency and accessibility of civil dispute resolution. It established Centres for Legal Information Access, Plain Legal Language, Legal Education and Litigation Support.

In 1996, the Foundation provided financial support to set up AustLII – the Australasian Legal Information Institute. This body is a world leader in the providing of online legal materials. Its importance has never been sufficiently recognised. It has been imitated throughout the common law world.

The Foundation was reconstituted in 2000 and incorporated as the Law and Justice Foundation. It has increased its emphasis on the needs of socially and economically disadvantaged people, and its funding base and control structures have been altered, but it still adheres to a belief in the importance of a research and evidence-based analysis of what, in practice, improves access to justice.

Since some people equate access to justice with access to litigation – mainly people who have not themselves been parties to litigation – there is no doubt still a suspicion that the Foundation at least indirectly promotes the business of lawyers, but it is only necessary to look at its Annual Reports to see that this is unfair.

I was once directly assisted by the research work of the Law Foundation. When I was appointed Chief Justice of New South Wales in 1988, all the States’ courts had a crushing backlog of cases. In the Common Law Division of the Supreme Court, when I was appointed there were 10,800 cases awaiting hearing. On average there were 3 or 4 judges per day rostered to hear those cases. Once listed for hearing, most cases settled. Even so, if we had simply refused to accept any new filings it would have taken more than 10 years to clear the backlog. A Delay Reduction Programme had been established in the Supreme Court shortly before I was appointed, and it was pursued with a sense of urgency. To do that, we needed information. One thing that puzzled me was this: like many others, I had accepted uncritically the mantra that only the rich, or the legally aided poor, could afford to go to court; it was beyond the means of ordinary people. But if that were really true, why did we have so much business? What would happen to the system if litigation became accessible to ordinary people? Would we need hundreds of judges to deal with their disputes? Would a reasonably accessible civil justice system collapse under the weight of the business it would attract? I asked the Civil Justice Research Centre to construct an economic profile of plaintiffs in the Common Law Division. Since most of them had given particulars of economic loss in support of their damages claims, that could be done. The results showed that the average income of plaintiffs corresponded almost exactly with average incomes in the community. The people who were suing were rarely very rich or very poor. They were ordinary people – the kind of people who were supposed to be unable to afford to litigate. A large part of the explanation was the fee arrangements made by plaintiffs’ solicitors; a well-known and longstanding form of practical legal aid, made possible by the nature of most common law litigation. Even so, I doubt that if a similar survey had been conducted in the Equity Division, the results would have been much different. I do not think that Equity judges spend most of their time dealing with people who are either very rich or very poor. Many of the litigants in Equity are corporations, but many of those corporations are small, and a significant number of the litigants are individuals. Yet, to this day, an assertion that only the rich and the poor can go to court sounds plausible, and is widely accepted. It is far from being entirely false but the truth is a good deal more complex, as the Research Centre’s survey showed.

Another example of the importance of evidence-based research, this time undertaken without any need for help from the Law Foundation, is worth mentioning. In the late 1980’s, there were also major delays in the administration of criminal justice. What was called the right to a speedy trial caught the attention of judges, and quite a lot was said about it. I had read judgments on the matter when I was at the Bar. When I became Chief Justice, there was concern about the long wait from committal to trial, especially in the cases of accused who had been refused bail. I was, however, struck by one thing. Complaints of delay were coming from prosecuting authorities, the police, and victims’ advocates. They did not seem to be coming from lawyers representing the accused. Then the penny dropped. I asked the Registry to look at the outcome of criminal cases heard in the Supreme Court in the previous year. These cases were not representative of the whole criminal justice system. The Supreme Court dealt only with homicides, major drug conspiracies, and, at that time, rape and child abuse. Even so, the results were informative. About 90 per cent of cases resulted in a conviction, more than half of those following a guilty plea. Discussions with some defence lawyers confirmed what I surmised. For a substantial number of accused, a speedy trial was the last think they wanted. For some, delay gave them their best prospect of success: witnesses may disappear; recollections may become blurred; evidence may be lost. Some people accused of serious crime may want a speedy trial, and many accused might be happy to have it available as an option, but as a class it was not a right they could all be assumed to value. The community has a powerful interest in having criminal justice administered with reasonable expedition. The interests of accused persons are more complex. That complexity often was added to by their custodial situation. Some of the people who were awaiting trial were already serving sentences for other offences.

Let me give a particular example of the importance of evidence-based information. Shortly after I arrived on the Court, the Chief Executive Officer came to see me about a worrying demand for information made by a Minister. The Minister wanted to be told the name of the prisoner who was in custody without having been brought to trial for the longest period, and the length of that period. He insisted that he be given this information in its plainest form, without being embroidered by explanations or other obfuscation. I was told of a certain man in custody who had been committed for trial three years previously but had not yet been tried. I was also told the facts of the case. I said that the Chief Executive Officer should write two letters to the Minister. The first letter should say that the name of the prisoner was X and, that he was still in custody awaiting trial, and that he had been committed for trial three years ago. The second letter should say that, in case the Minister or someone else was interested to know, after X was committed for trial, he had escaped. He was later re-arrested in South Australia, where he had committed other offences in the meantime. He was charged, convicted, and sentenced in South Australia. He had recently completed his South Australian sentences and been sent back to New South Wales where he would now be tried on the original charges. Evidently the Minister read both letters. We heard no more about the matter.

Law is a practical social science. Improvements in the administration of civil and criminal justice, and in our capacity to make justice available to everybody, including needy and disadvantaged people, depend on information about and understanding of the realities of needs, and of the impact of law and the legal system in their everyday operation.

I have had the pleasure of reading the address given on this occasion last year by Justice Virginia Bell, who has since been appointed to the High Court; an appointment greeted with widespread and well-deserved acclaim. Justice Bell discussed the case of Tuckiar v The King – the 1934 case where the High Court overturned the conviction in the Northern Territory of an aboriginal man who had speared a policeman, Constable McColl. Constable McColl had been one of a raiding party which had visited the remote island where Tuckiar had lived, and had seized and enchained some aboriginal women, including Tuckiar’s wives. His trial had miscarried. At one stage before trial Tuckiar, probably having been advised to do so by some other prison inmate, had told a version of events which suggested that McColl had raped one of the women, and the trial turned into a vindication of McColl rather than an examination of Tuckiar’s conduct. Justice Bell stressed the insistence by the High Court on fair procedure. There is, however, one aspect of the events, mentioned by Justice Bell, that I would like to develop. I have a particular interest in the case because I represented the High Court at the ceremony of reconciliation held in Darwin involving the McColl family and the Yolgnu people. The centerpiece of that moving occasion was a presentation to the Supreme Court of the Northern Territory by the Yolgnu people of beautifully decorated memorial columns which now stand in the foyer of the Court. This was done to give rest to Tuckiar’s spirit, because although he won his appeal, and was released from prison, he never returned home. It is widely believed that he was murdered.

If you look at the report of the appeal in the Commonwealth Law Reports, you may be struck by one thing. In terms of legal representation, the prosecution was heavily outgunned by the appellant. The explanation is not some random act of legal aid. In those days, the Commonwealth’s administrative establishment was based in Melbourne. The authorities in Melbourne were displeased with the Northern Territory administration, and they took this opportunity to mark that displeasure, regarding what had happened in the clumsy police raid and the bungled court proceedings as typical of local incompetence. They got behind the appellant. They saw to it that he was strongly represented in the High Court. Yet, having supported his successful appeal, and secured his release from prison, they did not protect him on his journey home. He managed to get no further than Darwin Harbour. The High Court vindicated his right to a fair trial, but once he was released from custody he was exposed to his enemies.

For many people, and especially people who are vulnerable, and powerless, the vindication of legal rights can be a very inadequate form of justice.

The kind of justice that courts and litigators offer is necessary, but often irrelevant to the needs of many people. The Law Foundation never limited its interests to access to litigation, but I am sure that part of the thinking behind its reconstitution, and its change to the Law and Justice Foundation, was an intention to broaden its charter.

A French author made the famous and pointed observation that the law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, steal bread, and beg in the streets. The majesty of the law probably escapes most citizens. Some of the rights that are of most concern to lawyers mean little to the poor or the disadvantaged; and we are quick to classify their claims to shelter, or protection, or health or education as non-justiciable. The tension between rights of free speech and privacy is probably not a hot-button issue among people without access to health care. Some years ago, at a judicial conference in central Australia, arrangements were made for a group of judges to meet leaders of the local aboriginal people, so that they could explain their concerns about the law and the legal system. They did not even mention land rights. They wanted to talk about the way the work of the local courts related to the lives of young men who came into collision with the justice system. The judicial officers whom they saw as relevant to their legal needs were magistrates, not High Court Justices.

The May 2009 issue of the Foundation’s journal contained a study of the legal needs of people suffering from chronic illness or disability. A few people in that category are financially strong. Some, such as victims of motor vehicle or industrial accidents, have, or in the past have had, ready access to legal services. The profession has been very pleased to help them enforce their rights under the law of negligence. But within the category, victims of crime, and of unemployment, or people with low incomes for other reasons are over-represented. Some may be entitled to compensation; others may not. I have always been surprised at the equanimity with which lawyers accept that a woman who injures her back at work, or while shopping in a supermarket, is compensated, whereas a woman who suffers such an injury working at home is not. A quadriplegic injured in a car collision may receive (or in the recent past, may have received) millions of dollars in damages, whereas one who was injured while diving into shallow water may have no claim at all. We are still trying to make up our minds whether, as a matter of public policy, we should deal with these issues as questions of social services or legal rights and liabilities.

I admire the work of the Law and Justice Foundation, and congratulate its officers and its supporters. In particular I admire the work of the people who have been honoured with Awards this evening, and I wish them ongoing success.