Weisbrot, David --- "Comment" [2003] ALRCRefJl 12; (2003) 83 Australian Law Reform Commission Reform Journal 1

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Reform Issue 83 Spring 2003

This article appeared on pages 1 & 74 - 75 of the original journal.

Comment

By Professor David Weisbrot, President, ALRC

In my first ‘Comment’ in these pages (Reform Issue No 75, Spring 1999), I noted that law reform in Australia had become an increasingly crowded field since the ALRC was established in 1975.

The ALRC now ‘competes’ for projects with a wide array of parliamentary committees, interdepartmental committees, royal commissions, ad hoc review committees, task forces and working parties. Within the federal Attorney-General’s portfolio there are a large number of specialised agencies charged with (among other things) providing advice on development of the law and legal practice—for example, the Human Rights and Equal Opportunity Commission (HREOC); the Office of the Federal Privacy Commissioner; the Administrative Review Council; the Family Law Council; the National Alternative Dispute Resolution Advisory Committee (NADRAC); the Copyright Law Review Committee; the International Legal Services Advisory Committee (ILSAC), and others. Most of the business law and economic regulatory areas, such as corporate law and tax law, have moved from the Attorney-General’s Department to Treasury—and so corporate law reform and tax law reform are now largely driven by that section of executive government.

Many or most of these bodies have adopted the policy development methods and strategies pioneered in Australia by the ALRC, under its founding Chair, Justice Michael Kirby. This generally involves an iterative process beginning with the publication of issues papers and discussion papers, efforts at public consultation, and, finally, considered recommendations to government about the best way forward.

However, two events this year have caused me to think more about the relative roles of law reform agencies and the courts in the progressive development of the law. First, at the kind invitation of Chief Justice Michael Black of the Federal Court of Australia, I addressed the ‘Fifth Worldwide Common Law Judiciary Conference’ in Sydney in April 2003 on the somewhat daunting topic of ‘The Future of the Common Law’.

Second, in early October, the High Court of Australia celebrated its 100th anniversary, prompting some reflection in the media about the nature and role of that body in the development of the law, and the maintenance of the rule of law, in Australia. (Although this was largely overwhelmed by the massive coverage accorded the various football finals occurring around the same time—there is never any doubting what is truly important to modern society.)

Unlike the United States Supreme Court, which is now almost exclusively a constitutional court, the High Court has retained its key role as the final court of appeal in Australia in all fields of law. This means that the High Court deals with a diverse range of subject areas of public importance that arrive via the lower courts, whether or not these might have a constitutional dimension—for example, matters of statutory construction, criminal liability and common law negligence.

It is not widely appreciated in the general community that the Mabo case—which first recognised the existence of native title in Australia, where this can affirmatively be established by Aboriginal communities —was based upon common law property rights, rather than constitutional rights or international treaty obligations. The High Court does not shrink from this responsibility, despite its heavy workload and the added challenges of Australian federalism. For example, there have been suggestions from time to time that there is no unitary ‘Australian common law’, but rather nine different federal, state and territory versions. However, in 1997, the High Court made plain its view in Kruger that there is a single Australian common law, and that it is the final expositor, binding all other courts, state and federal.

In Australia, as in other common law countries, there are seemingly endless—and almost entirely unproductive—arguments about whether judges should make law, or simply find it. The great American jurist, Oliver Wendell Holmes, is often cited for the proposition that judges, even at the apex of the justice system, do not have a general roving brief to engage in law reform:

The common law is not a brooding omnipresence in the sky, but the articulate voice of some sovereign or quasi-sovereign that can be identified. It always is the law of some state. ... Judges do and must legislate, but they must do so only interstitially: they are confined from molar to molecular motions.¹

On the other hand, Holmes recognised that sometimes the pressures for social change become so powerful that the courts cannot ignore them, even if legislatures manage to do so. Holmes referred in this regard to ‘the felt necessities of the time’—the sort of jurisprudential zeitgeist that led Lord Mansfield to abolish slavery in the late 1700s (the British Parliament took until the 1830s to abolish it in the colonies); or led the majority of the House of Lords in 1932 to develop the duty of care in Donoghue v Stevenson, the foundation of modern negligence law, over the opposition of more ‘timorous souls’; or led the majority of the US Supreme Court to discover ‘reproductive rights’ in the 1960s (Griswold v Connecticut); or the High Court of Australia finally to recognise native title in the 1990s (Mabo, Wik).

Although the common law system is based, properly, upon strong adherence to precedent (and thus change normally comes through slow accretion rather than bold changes in direction), the work of the superior courts invariably provides some opportunities for the development of the law, whether this involves the interpretation of statutory provisions, the resolution of direct conflicts in the law, the filling of gaps or the remediation of incoherencies in the law, or the application of old principles to dramatically new circumstances.

All of these contexts also provide the basic subject matter for institutional law reform. For example, to draw on recent controversies as well as recent ALRC inquiries, how do we develop existing fields of law and regulation—privacy, anti-discrimination, criminal liability, occupational health and safety, intellectual property, family law and so on—to accommodate the rapid advances in the ‘New Genetics’? Do we need to rethink the strictures of our ‘double jeopardy’ rules when improvements in forensic science make available compelling evidence after the completion of the trial? Has the law kept pace in all areas with changing sensibilities about the role of women in society? Or about the nature of adoption? Or about the nature of the family?

Whatever one’s views about the extent to which courts can, or should, be ‘bold’ or ‘activist’ in such areas, there is little doubt that the courts are very limited in how far they can go in this direction. Courts may seize on the circumstances of a particular case to articulate a new guiding principle (‘some persons are owed a duty of care’; ‘native title exists’; ‘there should be a right to privacy’; ‘serious criminal offences should always require proof of mens rea’; and so on), but detailed elaboration will require a large number of diverse cases over a long period of time.

Legislative and law reform processes are much better suited to this sort of systematic development. Institutional law reform provides the opportunities and resources for the comprehensive, comparative and multi-disciplinary research needed; for public engagement and consultation; for balancing competing sectional interests, and carefully weighing costs and benefits. Not least, development of the law in this way is more in keeping with democratic theory—recognising that while a superior court may have to develop the common law sufficiently to do justice in a case where precedent is unavailable or clearly inapplicable, ultimate authority for shaping the legal framework of the nation must rest with the people’s elected representatives in Parliament.

Endnotes

1. Southern Pacific v Jensen [1916] USSC 71; 244 US 205, 221-222 (1917).