The 2009 joint conference of the Rule of Law Institute of Australia and the New South Wales Bar Association
On Friday 12 November 2009 the NSW Bar Association in conjunction with the Rule of Law Association of Australia (as it was known then) held a conference entitled “Is the Rule of Law under challenge in Australia?”. The conference was held at the Hilton Hotel in Sydney.
The list of distinguished speakers and chairpersons included:
- The Hon J J Spigelman AC, Chief Justice of NSW
- The Hon Justice David Hammerschlag of the Supreme Court of NSW
- The Hon Justice Margaret Stone of the Federal Court of Australia
- His Honour Judge Michael Bozic SC of the District Court of NSW
- Senator the Hon George Brandis SC, Shadow Attorney General of Australia
- Richard McHugh SC, barrister
- Professor David Weisbrot AM, President of the Australian Law Reform Commission
- Professor Martin Krygier, The Gordon Samuels Professor of Law and Social Theory, University of NSW
- Mr Ian Govey, Deputy Secretary, Civil Justice and Legal Services, Australian Commonwealth Attorney-General’s Department
- Mr Robin Speed, President of the Rule of Law Association of Australia
Ian Govey opened the conference. He outlined two major inquiries being undertaken by the Federal Government which concerned the rule of law. The first, the National Human Rights Consultation, Mr Govey described as “the most extensive consultation on human rights issues in Australian history”. The consultation recommended three courses to maintain and improve human rights in Australia: (a) education, (b) self-assessment by government bodies, and (c) a Human Rights Act. The second major inquiry undertaken by the Federal Government is the Report on Access to Justice. Mr Govey said that all the recommendations in the report had been accepted at a recent meeting of Federal and State Attorneys-General.
Professor Krygier, opening the first panel of speakers, noted that the rule of law is now accepted worldwide as advantageous. Whereas, he said, Lenin described his dictatorship as “the government of force, unrestrained by any laws”, those who toppled his form of government twenty years ago spoke of “a rule of law revolution”. The rule of law is now accepted worldwide as “a hurrah phrase”.
Justice Hammerschlag spoke of the use of technology in the courts of today and the future, and addressed the challenges that technology presents to the right to be heard in court proceedings. His Honour firstly commented that the electronic communication of summaries of argument, and other court documents, was potentially “corrosive” of the right of parties to be listened to (and to watch while the trier of fact is listening) – both because the assimilation of such material occurs in private and because the electronic means of communication enables an almost unlimited volume of material to be conveyed. Secondly, his Honour referred to the emerging trend towards online court hearings, as an alternative to in-person hearings in courtrooms. Such online courts are, his Honour noted, subject to user access restrictions, for example in the NSW Supreme Court where such hearings are accessible via password only available to solicitors and counsel. As a result access is not available to the media, the public or the parties themselves. This presents a threat to the usual rule of public scrutiny which, his Honour said, is an element of the right to be heard.
Robin Speed spoke of the threat to the rule of law presented by the ever-increasing volume of legislation. He contrasted the position now with the past: “Now, every 3 months the Federal Parliament passes more legislation than in the whole of the 10 years from 1929-1939″ and said: “it has been estimated that if the present trend continues tax legislation alone in Australia will cover, by the end of the century, 830 billion pages and take 3 million years to read”. The result of the increasing volume of legislation has resulted in a changing role for government regulators including ASIC, the ATO and the ACCC including: the regulator ceasing to be indifferent to the outcome of the application of the laws it administers; an increased degree of significance attached to the regulator’s (not the court’s) interpretation of legislation; the regulator’s desire for convictions; and its dislike for presumptions and protections available to those it seeks to convict. Those matters, Mr Speed concluded, present a significant challenge to the rule of law in Australia.
Richard McHugh SC addressed the proposed Human Rights Act and its implications for the rule of law. He presented a detailed exposition and analysis of the provisions recommended for enactment by the Commonwealth Human Rights Consultation. A number of potentially difficult features of the proposed legislation were identified, including: the separation of human rights into three categories or classes of rights; a limitation clause giving the Courts power to decide when certain human rights may or may not be infringed; an interpretative provision which would require Courts to construe legislation, where consistent with Parliament’s intent, consistent also with the human rights; and the power of a Court to declare legislation inconsistent with legislation. The greatest threat Mr McHugh SC saw posed by the proposed Human Rights Act was its potential to politicise the judiciary and/or decrease respect for the Courts: “I think the real risk which the proposed
Human Rights Act presents for the rule of law as we know it is that it could ultimately lead to greater conflict between the judicial and the political branches, and perhaps to more widespread judicial adventurism. While I doubt that this would occur in the short term, who can say what the future holds?”
Judge Bozic SC opened the second panel of speakers. His Honour noted the development in recent decades of the significance of the concept of the rule of law. Whereas, he said, it was formerly a purely academic notion, it is increasingly a matter of practical concern for lawmakers.
Senator Brandis SC, like Mr McHugh SC, spoke about the proposed Human Rights Act. In his view there is no doubt that the proposed Act will be an attack on the separation of powers, particularly between the judiciary and the legislature. The separation of powers, he noted, is fundamental to the rule of law. Further, he suggested, an increased role for Courts in determining political questions such as human rights would likely lead the executive branch to ‘run a political ruler over’ candidates for judicial appointment.
Justice Stone made a number of comments about the rule of law generally, and the difficulties that might be presented by a Human Rights Act. Firstly, her Honour noted that to develop a mechanism for the protection of human rights requires a balancing exercise with the rule of law. Secondly, the High Court has been very careful to restrict the exercise of judicial power to the Courts, and vice versa to prohibit Courts from exercising non-judicial power. Thirdly, her Honour noted that the process of interpreting human rights is very different to the ordinary process of interpreting legislation, and commented that the debate on a proposed Human Rights Act requires commentators to acquire a better understanding of the manner in which judicial power is exercised.
Professor Weisbrot highlighted issues relating to the rule of law that had emerged in recent inquiries conducted by the Australian Law Reform Commission, including: the absence of a federal parole board; the large number of Commonwealth authorities (51) with coercive powers, a number of which were not aware of the powers they possessed; the lack of protections for civil penalty proceedings; the lack of community awareness of privacy principles; the high quality of the Australian judiciary particularly compared to overseas jurisdictions, and the almost complete lack of corruption or executive interference in the judiciary. Lastly he commented that the “genius” of our system “is that it is not only based on the separation of powers doctrine but also very much on the diffusion of powers”.
Spigelman CJ gave the closing address of the conference. His Honour drew together the threads of the various presentations, noting firstly that Australians are fortunate to have a relatively robust rule of law but that vigilance is required for its maintenance, and secondly that centres of power other than the executive arm of government also require regulation, including wealth and private power.
It is hoped that the Rule of Law Institute of Australia will play a part in achieving the above ideals.