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McKenna, Terence --- "Uncertain Justice: Inside Australia's Legal System by Michael Sexton" [2001] AltLawJl 80; (2001) 26(4) Alternative Law Journal 208


Uncertain Justice: Inside Australia's legal system

by Michael Sexton; New Holland Publishers, 2000; 285 pp; $22.95 softcover.

To the average person the law is filled with awe and trepidation; but to the law student and teacher alike there are times when it is more like a nightmare. Michael Sexton seeks to dissipate those problems.

The cost of litigation, the backlog of cases before the courts, the seeming unpredictability of judgments, all tend to suggest that the law belongs to those who are wealthy and patient. And it could be said that the law no longer belongs to the people. Without duty solicitors, and bodies such as community legal centres, the poor are disenfranchised­ even more so with the shrinking of legal dollars. The Bible has a lot to say about the poor who are disabled from involvement with their legal system.

Michael Sexton is well placed to comment on the state of play. Having spent sometime as an academic and writer (eg his textbook on defamation law and practice was co-authored with T.K. Tobin, QC) he then practised at the Bar and took silk in 1998. Well known for his part in the ABC National pro­ gram Daybreak from 1995 until 1998, he is currently Solicitor General for New South Wales.

His insights into the working of the High Court of Australia are particularly instructive, firstly as an associate to Sir Edward McTierman, and then later as Counsel. The High Court like other Appeal Courts is amazing in its output -even more when it is remembered that judges do not sit collectively except in the courtroom, and thereafter retreat to their rooms to write individual judgments, which can be up to I 0,000 words long. The Appeal Court system can be contrasted with that of the US Supreme Court where the hearing lasts half an hour for each side and is followed by a judges' conference where the case is discussed and one judge is chosen to write the majority decision. The same system is followed by the Privy Council.

Another concern that Sexton raises is the rise of mega law firms-'powerful economic entities with hundreds of lawyers' (p.28). A glance at any Law Society/Institute journal will confirm the rising status of such firms with their convex appearance, compared with the concave family solicitor and family doc­ tor. Just as we have boutique breweries, so too will come boutique law firms.

Case law is not only precedent but serves another role in society as a source of public history as well as the study of social ecology. The difference between the 1980s and 1990s is instructive, and Sexton points to the development of the drug trade as a large-scale industry (p.31). In addition to the con­ sequent increase of crime such as house breaking and armed robbery, the sheer amount of money from drugs has led to corruption of some law enforcement officers, and increased sentences being handed down, for example, in the Victorian Appeals Court.

The growth of corporatisation also loomed large in the 19908: 'the increased power of the corporate sector and some of the individuals who ran its largest enterprises' (p.31). Sexton points out that this is clearly demonstrated in the relation­ Ship between business and government, such as 'television and broadcasting worth billions of dollars to the corporate contenders.

Sexton correctly notes out that some sections of Australian society see litigation as a solution to economic and social problems, and as an example points to the growth in proceedings against medical practitioners, both in malpractice actions for damages by patients, and disciplinary proceedings by health authorities for incompetent practice or breach of ethics. This is reflected in the rising cost of professional indemnity, and other outcomes when such insurers collapse.

Sexton reviews some significant cases -the Mr Bubbles saga, Kerry Packer, Edelsten, Alan Bond, Westpac letters drama, John Elliott and the NCA, and the deep sleep treatment in the Chelmsford Royal Commission.

Essentially Sexton's book is an insider's view of the legal system, with­ out looking at the outside. Most people's brushes with the law are with police and then the Local/Magistrates Courts. On any day, literally thousands of citizens stand waiting for a magistrate to pronounce judgment, and go home guilty. Justice is not then restorative. So there is little attempt by Sex­ ton to look at the ordinary person's perspective. Instead law is for the elite.

Informative and well worth reading.


Terence McKenna teaches at St Mark's National Theological Centre Canberra, and is a freelance writer


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