Sackville, Justice Ronald --- "Law and social change" (FCA) [2006] FedJSchol 26

ADMINISTRATIVE DECISIONS TRIBUNAL
6TH ANNUAL MEMBERS’ CONFERENCE

LAW AND SOCIAL CHANGE

BY
JUSTICE RONALD SACKVILLE*

AUSTRALIAN MUSEUM
27 October 2006

*Judge, Federal Court of Australia; formerly Chair, Judicial Conference of Australia

The Hazards of Predicting Social Change
Let me commence with Sackville’s First Law: the extent of the community’s fascination with predicting the future is inversely proportional to the stability of society and the degree of harmony in international relations. To put the point another way, the enthusiasm for modern forms of crystal-gazing reflects the extent of community anxiety about the perceived nature and rate of social, economic, political and environmental change.

Notwithstanding unprecedented prosperity for most Australians, we undoubtedly live in turbulent times. We are participating in a ground war on another continent, ostensibly against the forces of terrorism that knowledgeable commentators say cannot be won, at least by our side. The phenomenon of global terrorism is apparently on the upsurge, suggesting to some that we are witnessing a clash of civilizations, or perhaps a clash between civilization and barbarism. The proliferation of nuclear weapons, always a frightening prospect, has become an alarming reality as an authoritarian, isolated and apparently brutal regime joins the somewhat rag-bag nuclear club. And, with dramatic suddenness, the spectre of climate change, although foreseen by environmentalists for many years and the subject of United Nations agreement as long ago as 1992, has finally been widely acknowledged by politicians and policy makers as an urgent and potentially catastrophic problem. Levels of community anxiety are, not surprisingly, high.

It is therefore to be expected that predicting the future has become quite a fashionable undertaking. The Australian, for example, is in the midst of its 13 part series entitled ‘2026: a Vision for the Nation’s Future’. In canvassing the prospects for the next two decades in every area from technological innovation and the march of biogenetics to the demise of the traditional nuclear family, the newspaper sees its enterprise as both ‘hazardous’ and ‘exciting’.

And so it is, although the hazards may outweigh the excitement. Take Charles Darwin as an illustration of the difficulty of making accurate predictions. He lived in relatively stable times and, perhaps for that reason, was not primarily a soothsayer. Much of his life’s work was devoted to explaining the origins of the living world he studied with such care. He transformed our understanding of life in all its breathtaking variety. His theory of natural selection unerringly pointed the way to the future. The essence of his hypotheses has been confirmed by modern genetics, in particular, molecular genetics. The completion of the draft sequence of the human genome in 2001, remarkable achievement that it is, constitutes but a step in the ‘multi-disciplinary research program’ initiated by Darwin.

In many ways, Darwin’s opinions resonate with the sensitivities of his twenty-first century descendants. He was, for example, a passionate opponent of slavery, which, as he recorded in the Voyage of the Beagle, he had seen, in all its despair and degradation, in Brazil.

Yet Darwin was very much a creature of his time. He predicted, with unconscious irony, that within a relatively short time:

‘the civilized races of man will almost certainly exterminate and, replace throughout the world the savage races.’

He foresaw but a limited role for women having regard to their inherent disadvantage when compared with men:

‘Man is more courageous, pugnacious and energetic than woman and has a more inventive genius. His brain is absolutely larger...

“The chief distinction in the intellectual powers of the two sexes is shewn by man’s attaining to a higher eminence, in whatever he takes up, than can woman – whether requiring deep thought, reason or imagination, or merely the use of the senses and hands.”’

As Stephen Jay Gould says, to label Darwin as sexist and racist is to adopt a ‘stiff-necked and uncharitable attitude’. It is wrong, Gould argues, to criticize Darwin for simply repeating the standard assumptions of his age. Yet if the vision of a thinker as scrupulous, innovative and wise as Darwin was impaired by the prejudices and values of nineteenth century upper class England, how difficult must it be for the rest of us to predict great changes before they are upon us.

It is particularly hazardous for lawyers to attempt to predict future social change. Our training and experience are firmly anchored in past events. As lawyers, we have no particular skills and expertise that equip us to chart accurately the future shape of the law, let alone the great events that will determine the quality of our lives.

I have illustrated this point previously by reference to a conference on Lawyers and Social Change held at the Australian National University in 1974. The conference brought together fifty distinguished participants, including legal academics, practitioners, judges and distinguished non-lawyers. The conference addressed important questions, such as the role of lawyers in bringing about social change, the legal regulation of economic activity and the intricacies of the then apparently entrenched Australian industrial relations system. What is most striking, in retrospect, is what was not addressed at the conference.

Only three of the fifty invited participants were women. The idea of gender equality, or the contributions lawyers could make to attaining it, was not mentioned. Yet perhaps the most profound social change in Australia since the 1970s has been the product of a struggle by women, even now only partly successful, to achieve social, political and economic parity with men. The concept of equal opportunity, which is at the heart of issues that many of you deal with, was simply not referred to.

The conference made only passing reference to the historical injustices inflicted on aboriginal people in Australia. The question of native title, which was to propel the High Court on to political centre stage in the 1990s, played no part at all in the proceedings. Yet native title now occupies a great deal of the time of the Federal Court and there is now a specialist tribunal dedicated to the difficult and often frustrating task of attempting to resolve claims to traditional lands.

There was no discussion at the conference about alternatives to the court system. Alternative dispute resolution, which now plays such an important part in resolving conflict, was not foreseen. More importantly from your perspective, no-one discussed the significance of tribunals in the decision-making process. Yet at that time independent merits review of Commonwealth administrative decision was only three years away, although some time had to elapse before the States were ready to concede authority to independent merits tribunals. The merits review systems of the Commonwealth and the States now rival the non-criminal courts in the breadth of the jurisdiction of the merits tribunals and the importance of the cases they decide.

Grappling With Change
Lawyers, and for that matter, non-lawyer tribunal members, may not be especially good at anticipating social, environmental and technological change. Yet courts are necessarily thrust into the role of addressing the consequences of such change in the course of resolving disputes. The same is true of tribunals. Indeed, in Australia, despite the theory of separation of powers operating in all its stringency at federal level, tribunals often resolve disputes of the same kind and in much the same way, albeit more informally, as do courts.

The extent to which the functions exercised by courts and tribunals are often indistinguishable is illustrated by a recent case: Central Bayside General Practice Association Ltd v Commissioner of State Revenue [2006] HCA 43; (2006) 229 ALR 1. The issue was whether a company which had the objective of improving patient and health care in an area of Melbourne, and which was largely funded by the Commonwealth, was exempt from Victorian pay-roll tax as a ‘charitable body’. That issue was determined at first instance by the taxation division of the Victorian Civil and Administrative Tribunal. The case then made a stately progression to the High Court, via the Supreme Court and the Court of Appeal. Each court had to address the same issue as had been presented to the tribunal. (As it happens, the High Court disagreed with the tribunal and the lower courts and found in favour of the company.)

The issue at stake in Central Bayside was fairly traditional. But courts and tribunals now have to address as a matter of course areas of law and factual issues that simply could not have arisen for consideration just a few years ago. Sometimes this is because the area of law has only recently been acknowledged as a discrete topic. Sometimes it may be because the dispute concerns new technologies or claims that have only recently been recognized by the law.

Let me use myself as an example, only because, if nothing else, I am familiar with the kinds of cases I have had to resolve. Like virtually all of my colleagues, I have found myself having to deal with disputes involving modern technology in all of its complexity and sophistication. This has included litigation involving the workings of computers, new generation heart pacemakers, the wonders of modern gaming machines and the use of circumvention devices to evade controls on computer games played on consoles. I have had to deal with new areas of law like native title, which did not exist before Mabo was decided in 1992. Similarly, migration law has emerged as a recognisable discipline only within the last fifteen years or so, as governments of first world countries have struggled with the phenomenon of controlling the mass movement of people seeking a better life. Like many of you, I have had to consider the intricacies of anti-discrimination (or equal opportunity) law, a subject that was born in consequence of State legislation of the 1970s, duly followed by Commonwealth intervention in the 1980s. In the C7 Case, I am currently considering the application of competition law, itself a relatively new field in this country, to pay television which has operated in this country only since 1995.

So as decision-makers we all have to respond to social, technological, environmental and economic changes that seem to occur at an astonishing rapid and often alarming rate. Even in fields in which we might think ourselves as having specialist expertise, we have to address novel problems and be prepared to master, if only temporarily, concepts and ideas that have hitherto been completely unfamiliar to us. Law and society are indeed inextricably interwoven.

Virtually all lawyers are familiar with the on-going debate concerning how courts should respond to social change. Much of that debate has been caught up with the question of so-called ‘judicial activism’ versus so-called ‘strict legalism’. For myself, I regard this aspect of the debate as largely sterile. No one can seriously argue that courts do not make law. Nor can it plausibly be argued that judges, even conservative ones, do not take into account values when addressing and resolving novel issues.

Can Courts Bring About Social Change?
A much less explored question is whether courts or, for that matter, tribunals can bring about social change through their decisions. I must confess that at one time I thought that courts could become agents not only for legal reforms but for significant social change. In my 1975 report on Law and Poverty in Australia, for example, I argued that:

‘Not only is reform of the law often essential to overcome obvious inequalities and injustices in society, but the reforms can markedly influence community attitudes and behaviour. Illustrations include the effect of Supreme Court decisions in the USA on patterns of racial discrimination in that country’.

I had in mind the bringing of test cases that could change the substantive law to the benefit of disadvantaged groups, or at the very least bring to the attention of legislators the need for reform of unfair or oppressive laws.

Opinions of this kind took their inspiration from the experience in the United States, the paradigm of which was Brown v Board of Education 347 US 583 (1954). Brown was taken by many observers not merely to have ended the era of State-sanctioned segregation in the United States, but to have brought about a sea-change in community values and attitudes towards racial inequality.

This expansive and optimistic view of the possibilities of judicial law making flew somewhat in the face of the institutional constraints that limit the ability of courts to bring about social change. These constraints include the following:

• Courts can only deal with cases presented to them for decision. While courts can formulate or reformulate principles of law, but ultimately their job is to decide disputes. Their reasoning must be directed to the resolution of the particular dispute before them.
  
• Legal reasoning heavily emphasises precedent, reflecting the perceived need for certainty and stability in the law. Moreover, courts lack the information – gathering and policy assessment capacities of legislatures or law reform agencies. Particularly is this the case in Australia, where the High Court has done relatively little to encourage non-parties to contribute to arguments on important policy questions.
  
• As Alexander Hamilton emphasised in his famous description of the courts as the ‘least dangerous’ branch of government, the judiciary has no influence over either the sword or the purse. It therefore depends on the executive arm of Government for the enforcement of its orders.
  

This last point is important. The need to preserve public confidence in the judiciary is a mantra repeatedly uttered by judges and governments of all persuasions, notwithstanding its inherent vagueness. Some commentators translate the importance of maintaining public confidence into a warning that if that confidence is impaired by judicial adventurism the point might be reached when the executive will decline to enforce court orders.

Yet it is a measure of how entrenched the rule of law is in Australia that there seems never to have been a serious suggestion by a public official that court orders should be defied, no matter how controversial the particular decision. One commentator has observed that the ‘truly astonishing political aspect’ of the great constitutional battle surrounding the nationalization of the banks in the late 1940s was the complete acceptance by the Labor Government of the High Court’s decision notwithstanding the known anti-Labor sympathies of the majority of judges.

Interestingly enough, the closest any Australian Government has come to defying court orders seems to have been in Colonial times, in the context of high tensions raised by Chinese immigration. In a series of cases, the Supreme Court of New South Wales in the late 1880s granted writs of habeas corpus on the application of Chinese citizens who had arrived on a steamship known as the Afghan in Sydney Harbour. The plaintiff in each either held a certificate of exemption under the Influx of Chinese Restriction Act 1881 (NSW) or had tendered the poll tax provided for in the legislation.

The particular orders made by the Court in relation to each applicant were obeyed, but the authorities continued to refuse admission to Chinese citizens on board the Afghan even though they had complied with the legislation. The Chief Justice, Darley CJ, expressed his displeasure in extremely strong terms on the third occasion when the Court was asked to grant a writ of habeas corpus. It appears that his castigation of the executive did not go unheeded, although the predictable result was the enactment of uniform Colonial legislation so as to prohibit the entry of Chinese except in very limited circumstances. Perhaps the significance of the experience is that there could be circumstances in which the legitimacy which attaches to a court order will be undermined, so far as the executive is concerned.

School Desegregation: Brown v Board of Education
Whether or not this is a realistic concern, the expansive view of the ability of courts to effect social change must also confront the body of opinion which argues that the United States experience of court-ordered racial desegregation may not have been all that it seemed at the time. In particular, the significance of the decision in Brown has undergone a re-evaluation over the past decade and a half. Recent scholarship tends to suggest that the importance of Brown as progenitor of social change in the United States may have been substantially overstated. The thesis of Professor Michael Klarman, From Jim Crow to Civil Rights: The Supreme Court and the Struggle Racial Equality (2004), is that the decisions in both Plessy v Ferguson [1896] USSC 151; 163 US 537 (1896), the case that entrenched racial segregation, and Brown, sixty years later, reflected influential public opinion of their respective times.

According to Professor Klarman, about one half of Americans agreed with the ruling in Brown at the time the decision was handed down. By 1954, a variety of economic, social, demographic, ideological and international factors had contributed to a fundamental change in race relations in the United States. When Brown was decided by the Supreme Court, desegregation was already well under way in some parts of the North of the country and in areas bordering the South. Professor Klarman also points out that the Supreme Court opted for gradualism in the relief that it granted. The formal orders, which were not in fact made until a year after the decision in Brown was handed down, famously ordered desegregation of the relevant schools ‘with all deliberate speed’. Having made the orders designed to achieve a ‘relaxed transition’ towards school desegregation, the Supreme Court vacated the field for another eight years. By the time it re-entered, its decisions followed, not led national opinion.

The conclusion to be drawn is not that Brown was unimportant in contributing to the desegregation of public facilities in the United States, particularly in the South. It was. But it seems that Brown was not nearly as instrumental in changing social attitudes towards racial equality and practices as many American and foreign observers may have believed. Larger forces were at work in the transformation of American society. It was those forces that made the decision in Brown possible.

(A brief excursus here perhaps reveals another side of the difficulties of changing social attitude by judicial decisions. The inner workings of the Supreme Court of the United States are exposed from time to time. Most recently, a book on the role of Supreme Court clerks (Todd C Peppers, Courtiers of the Marble Palace: The Rise and Influence of the Supreme Court Law Clerk (Stanford University Press, 2006)), has explored the changing functions of the clerks and their increased influence over Court decisions in the latter half of the Court’s life. The book records that Chief Justice Rehnquist hired 99 clerks between 1986 and 2004. Of the 96 for whom information was available, not a single one was an African-American.)

What of Australia?
There is nothing in Australian history that is remotely comparable to the struggle leading to desegregation of public schools and other public facilities in the United States. Yet the High Court has decided cases which have resolved great conflicts and indeed reshaped our legal system. Do those cases support the view that the High Court can indeed effect social change by its decisions?

The question is difficult to resolve definitively, at least without extensive research of the kind undertaken by Professor Klarman. The available evidence suggest, however, that the High Court, whether consciously or otherwise, is rarely if ever in clear conflict with prevailing community norms and values.

Take the Bank Nationalization Case. It is true that the majority decision of the High Court invalidated a key element of the Labor Government’s legislative program. But the nationalization of the banks was strongly opposed by business and by those who perceived that the legislation posed a threat to capitalism. Indeed, before the hearing in the High Court commenced in February 1948, the Cain Labor Government had fallen in Victoria, in an election largely fought on the issue of bank nationalization. The High Court’s decision was greeted with widespread jubilation in the press and among Labor’s political foes. The Chifley Government fell in November 1949, soon after the Privy Council delivered its reasons for dismissing the Government’s appeal. So it can hardly be said that the decision of the High Court flew in the face of prevailing community sentiment.

In the Communist Party Case, the High Court invalidated a key element in the legislative program of the newly elected Menzies’ Government, namely its attempt to ban the Communist Party. Although couched in legalistic language, the decision invalidating the legislation could be understood as promoting libertarian values to an extent unprecedented in Australia. In this sense, particularly having regard to the strength of anti-communist feeling at the time, the decision might be regarded as a judicial attempt to change community values.

Certainly the decision had a major political impact. Menzies secured a double dissolution and obtained majorities in both Houses of Parliament at the 1951 election. But his efforts to secure a constitutional amendment to reverse the decision in the Communist Party case narrowly failed at a referendum held in September 1951. Of course, the rejection of the referendum was undoubtedly influenced by many factors other than endorsement of the High Court’s apparent of affirmation of civil libertarian values. Even so, given the short period between the decision and the referendum, it is difficult to contend that the decision was at odds with prevailing community opinion, let alone the core values of Australian society.

Mabo falls into a similar category. By 1992, when Mabo was decided, the Australian community had become much more aware of the historical injustices inflicted on indigenous people and much more sympathetic to their aspirations, at least in general terms. Mabo was decided in a climate of opinion more favourable to indigenous people than that prevailing before 1967, when the Constitution was amended to remove discriminatory references to Aboriginal people. The general community was more receptive to the idea that the Australian legal system should attempt to remedy some of the historical wrongs visited upon the indigenous people of Australia.

Furthermore, while the High Court’s decision appeared to be dramatic, a legislative response was inevitable. In fact, within a very short time Parliament enacted the Native Title Act 1993 (Cth) which explicitly provided for the recognition and protection of native title in terms similar to those adopted by the High Court. The fact that Parliament so swiftly endorsed the concept of native title suggests that the decision in Mabo, if anything, was in keeping with mainstream views at the time and did not threaten established norms or values.

Conclusion
My conclusion is that courts and tribunals, while deciding cases of great economic, social and (sometimes) political importance rarely if ever act at odds with the established values and norms of the community. In other words, the role of courts as instigators of social change is much more limited than old-style optimists hope or opponents of ‘judicial activism’ fear.

That does not mean that what the courts and tribunals do is unimportant. Quite the contrary. It just means that the true significance of our work does not lie in bringing about substantial social change.