Coper, Michael --- "Learning from Each Other: Enriching the Law School Curriculum in an Interrelated World" [2007] ALRS 1

Last Updated: 7 May 2010

International Association of Law Schools Conference

Learning from Each Other: Enriching the Law School Curriculum in an Interrelated World

Kenneth Wang School of Law, Soochow University

Suzhou, China, 17-19 October 2007

THREE GOOD THINGS AND THREE NOT-SO-GOOD THINGS ABOUT THE AUSTRALIAN LEGAL SYSTEM

Michael Coper[1]

British heritage

It is often thought that, as a former British colony, Australia must have a legal system that mirrors that of its colonial parent. To an extent this is true. Australia inherited that weird and wonderful body of judicial doctrine, and law-making process, called the 'common law', that uniquely melds and simultaneously produces constancy and change.[2] Moreover, in addition to this slow and accidental[3] accretion of judge-made law that combines fidelity to precedent with incremental growth through the adaptation of precedent, Australia inherited many of the underlying and fundamental values and principles of the English common law, such as the rule of law, equality before the law, the presumption of innocence, the imperative of a fair trial, and an independent judiciary—all in the context of the achievement of finality (not necessarily of truth) through adversarial rather than inquisitorial processes.

American influence

However, in truth the Australian legal system is a hybrid. Three features in particular nod to the US rather than to the UK: Australia is, and has been since 1901, a federation of states; it has a written Constitution (in place since 1901 and thus one of the most enduring in the world), that is amendable only by a special process beyond the power of ordinary legislation;[4] and its judiciary exercises the power of judicial review to invalidate laws that are inconsistent with that written Constitution (unassisted, however, by a Bill of Rights on the American model). The resultant blend of the British heritage and the American model makes for a distinctive Australian legal system, in which the values, principles and structures of older legal systems were borrowed and adapted to suit Australian circumstances.

Australian circumstances

Those circumstances include a small population[5] dispersed over a large geographical area; a population whose historic homogeneity has been increasingly challenged by the growth of ethnic diversity and belated sensitivity to the place of indigenous Australians; and a strong tradition, founded in the time of homogeneity but lingering on in the new Australia, of almost strident egalitarianism, deep suspicion of authority, laconic and even self-deprecating humour, and yet a new-found self-confidence, despite the relatively small population, in being competitive on the world stage in all endeavours—economic, scientific, intellectual, cultural, and sporting.

Australian federalism

The Australian federal system is both a strength and a weakness. In theory a beautiful compromise that unites a national community for its common purposes yet allows diversity and experimentation amongst its separate parts for sub-national purposes, in practice it trades off the admirably democratic diffusion of political power against the loss of efficiency from fragmentation, jurisdictional disputation, and blame shifting. The compromise is reflected in the very structure of the national legislature itself: a lower House (from which the government is formed) elected on a population basis, and an upper House (whose assent is necessary to the passage of laws)[6] elected with equal representation of the federation's constituent states. Both Houses have come to be dominated by party politics, but federalism issues permeate debate within the national legislature and its state counterparts.

Australian judicial system

The Australian judicial system also has a federal structure, with both state and federal courts.[7] Unlike the American system, however, where the state courts have the final say on state matters, the highest Australian court—confusingly called the High Court of Australia rather than the Supreme Court of Australia—is not only a constitutional and federal court, but also a court of final appeal from the state courts on state matters, or, in other words, a court of general jurisdiction. This brings a degree of unity to the common law in Australia—to which, in the last 20 years, a distinctively Australian quality has been added, following the final abolition of appeals from all Australian courts to that colonial relic in London, the Judicial Committee of the Privy Council.[8] Also in the last 20 years, the High Court of Australia has become master of its own docket,[9] ensuring that nearly every case it hears is at the cutting-edge of new law, thereby enlarging the debate and magnifying the tension between the critics and the defenders of so-called 'judicial activism'.[10]

Australian legal practice and legal education

Until recently, legal education and the legal profession were organised on a state by state basis. Lawyers were trained to practise in their local jurisdiction, and indeed had no right to practise outside that jurisdiction. Over the last decade, however, the Australian legal profession has been put on a national basis, with mutual recognition throughout Australia of admission to practice in any jurisdiction within Australia.[11] The law curriculum has also taken on a degree of uniformity, following the work of a national advisory committee,[12] whose recommendations have been adopted in every jurisdiction. There are 30 law schools in Australia[13] (interestingly, relative to population, more than two and a half times the number in the United States), doing many diverse and specialised things but largely following a common core curriculum.

Three good features and three not-so-good features of the Australian legal system

Against this background, I proceed to address the question set for the participants in this conference, namely, to elaborate on 'the three most important features of my country's legal system that others should understand'. I should say first that it is difficult, if not impossible, to write about one's legal system in isolation from the political system in which it is embedded and which it supports, or in isolation from the values of Australian society that the legal system is intended to embody and vindicate, but I cast all of that to one side. I will, however, take a slight liberty with the set task, and mention three good things and three not-so-good things about the Australian legal system.

Good thing number 1: an independent judiciary

First, the good things. First of all, Australia is immensely proud to be part of a tradition that respects the rule of law and everything that is commonly regarded as a concomitant part of that admittedly somewhat fuzzy and elusive concept. One indispensable part is an independent and incorruptible judiciary, applying the law without fear or favour, and I can confidently say that in Australia we enjoy a judiciary of the highest quality and integrity. Some attribute this to the practice of drawing the judiciary largely from the ranks of the independent bar, in contrast with the civilian practice of a career judiciary involving civil service entry and training from an early age. Be that as it may, Australian judges are, on the whole, of outstanding quality. That does not of itself guarantee the efficacy, efficiency or fairness of the operation of the legal system of which they are a part, nor does it guarantee the wisdom or soundness of the decisions they make—but it is a good start.

Good thing number 2: internationalisation

Secondly, there is an increasing trend towards internationalisation of the Australian legal system, Australian legal practice, and Australian legal education. Australia has always looked outwards to the rest of the world, especially since shaking off its colonial status in the 1920s and 1930s,[14] and especially, in more recent times, in the Asia-Pacific region. It was active in the formation of the United Nations following the second world war,[15] it subscribes to and promotes international treaties and agreements, and its judges are informed by and cite foreign precedents. The Australian legal profession, following its shift from a local to a national basis, is taking the next step towards internationalisation: Australian legal services are now exported to many parts of the world, with Australian lawyers obtaining practice rights, in diverse ways, in many countries, including the UK, the US, and many parts of Asia. This development has been supported and supplemented by the recognition of Australian law degrees as partial satisfaction of the requirements for admission to practice in a number of countries, including India, Singapore and Malaysia. In a breakthrough earlier this year, the US Council of Chief Justices passed a resolution recommending that their various admitting authorities recognise Australian lawyers as eligible to sit for local US state bar examinations. At the same time, Australian legal education is becoming increasingly internationalised, not only through the curriculum, but also through student and staff exchange programs, enrolment of international students, and student participation in international mooting and similar competitions.

Good thing number 3: an ethos of betterment

Thirdly, another welcome trend is the development of a 'reform' ethos in relation to the law and the operation of the legal system. For over 30 years, the Australian Law Reform Commission has led the way in systematically and thoroughly examining ways in which the Australian legal system can be improved, with an increasing eye to world best practice.[16] Earlier this year, a new body was formed called the Australian Academy of Law, with the aim of bringing together all branches of those engaged in the law, including the judges, the practitioners and the academics, in order to foster the notion that lawyers exist not merely for their own material gain but also to act in the service of society—a notion that encompasses not only the traditional imperatives of competent and ethical legal practice but also broader aspects of professional responsibility to work for continuous improvement of the legal system, to explain and defend the rule of law, and generally to add value to society beyond the narrow confines of traditional lawyering. Legal education will have a pivotal role to play if this notion is to become truly embedded in the collective psyche of Australian lawyers, and there are signs that many Australian law schools are moving beyond their traditional preoccupation with teaching the law as it is to teaching the law as it might or should be or as it might become.

Matters of concern

On the other side of the ledger, I should mention three matters of concern to me about the Australian legal system. As with my 'three good things' about the Australian legal system, they are selective, subjective, and perhaps even idiosyncratic. Others would undoubtedly have different lists. Indeed, it would be interesting to do a survey of Australian lawyers, and perhaps also the consumers of Australian legal services, to ascertain whether there might be any consensus about these matters.

Not-so-good thing number 1: access to justice

The first matter counterbalances my admiration and respect for the fundamental values and principles that underpin the Australian legal system and the quality and integrity of those who administer it. It relates to the ability of ordinary Australians to access the legal system, or, in other words, the efficacy of the system in practice in delivering justice to those who need it. There are issues here relating to the cost of legal services, the provision of legal aid, the knowledge of underprivileged members of the community about their legal rights, the capacity of the criminal justice system to process large numbers of people and yet deliver fairness, and so on. No doubt these are issues in many, if not most, legal systems, but a robust assessment of any legal system cannot ignore them.

Not-so-good thing number 2: erosion of civil liberties

I have a second and related concern about how the Australian commitment to the rule of law and to the values and principles that underlie it—sound enough in theory and at a certain level of generality—plays out in practice. The worldwide 'war on terror' and heightened concerns about security—legitimate and valid as those concerns are—have led to extensive legislative and executive measures that many see as a serious, and unduly intrusive, erosion of our traditional civil liberties. In Australia, the legislative regime now accommodates 'control orders', entailing restrictions on liberty without criminal conviction, and detention, not on suspicion of the commission of an offence but for the purpose of eliciting information about others. At the same time, current policy towards refugees, and perhaps to immigration generally, has become a bitter battleground between traditional Australian values of compassion, generosity, and respect for human rights, on the one hand, and fear, suspicion, and insularity, on the other. The legal system reflects this tension, as the prevailing policy emerges at the political level but is then manifested in the nation's laws and in the way those laws are administered.

Not-so-good thing number 3: absence of a Bill of Rights

This leads to my third, and again related, concern about the Australian legal system. Australia is unique amongst comparable western countries in not having a Bill of Rights. Many would say that this has contributed to an unbalanced debate about the matters set out in the previous paragraph, although the opponents of a Bill of Rights range from those with a genuine concern, based on their view of democratic theory, to keep the debate within the legislative arena, to those for whom all civility has been abandoned in the pursuit of transforming phrases like 'human rights' and 'civil liberties' into terms of abuse. In any event, the proponents of human rights in Australia have largely abandoned the idea of an entrenched constitutional Bill of Rights on the American model, in recognition of the enlarged and democratically problematic role this gives to the unelected judiciary, in favour of legislative statements of rights, which promote debate and a focus on rights and allow judicial pronouncements, but which preserve the final say to the legislature. Some states in the Australian federation have adopted this approach.

Conclusion

The above captures my subjective view of three good features of the Australian legal system and three not-so-good features. If pushed to address more faithfully the conference task of identifying 'the three most important features of the Australian legal system that others should understand', and if one were to interpret this task as essentially descriptive, I would hark back to my introduction and note Australia's British common law heritage; its adaptation of that heritage to a federal system; and the reflection of Australian egalitarianism in the principle of equality before the law[17]—in theory, if not wholly in practice. However, I trust that, in going a little beyond this purely descriptive task, my ruminations about the good and the bad might spark some lively and frank discussion along those lines amongst other participants, drawing on their rich, comparative experience from across the globe.

[1] Dean of Law and Robert Garran Professor of Law, ANU College of Law, Australian National University, Canberra, Australia; Board Member, International Association of Law Schools.

[2] For a good general introduction, see Patrick Parkinson, Tradition and Change in Australian Law (Law Book Company, 3rd ed 2005).

[3] In the sense that the occasion for judicial law-making is dependent upon the accident of litigation, unlike the planned process for the making of legislation.

[4] Section 128 of the Australian Constitution requires, inter alia, a national referendum.

[5] Now around 20 million people.

[6] Subject to a procedure in section 57 of the Australian Constitution for resolving deadlocks between the two Houses.

[7] See generally James Crawford and Brian Opeskin, Australian Courts of Law (OUP, 4th ed 2004).

[8] Abolished successively in 1968 (constitutional and federal matters), 1975 (all remaining appeals from the High Court), and 1986 (all remaining appeals direct from state courts).

[9] Prior to 1984, litigants could take certain cases to the High Court 'as of right' (usually involving a monetary threshold, which was no guarantee that any important legal principle was at stake). Now litigants must show that their case is of sufficient importance for the Court to grant special leave to appeal.

[10] For a brief glimpse of this debate, see Michael Coper, 'Concern About Judicial Method' [2006] MelbULawRw 17; (2006) 30 Melbourne University Law Review 554.

[11] See especially http://www.lawcouncil.asn.au/natpractice/home.html.

[12] The Law Admissions Consultative Committee (LACC), colloquially known as the 'Priestley Committee' after its first Chairman.

[13] See http://www.cald.asn.au/.

[14] The Australian colonial states joined together to form the federal Commonwealth of Australia in 1901; although important to the formation of national identity, that did not of itself achieve legal independence from the UK, which happened in various stages over the course of the 20th century. Even today the Queen of the UK, in her capacity as Queen of Australia, remains the formal titular head of the Australian government, through her representative in Australia, the Governor-General.

[15] Former Australian High Court judge and federal politician Dr HV Evatt was the President of the General Assembly of the United Nations in the late 1940s.

[16] See http://www.alrc.gov.au/; Brian Opeskin and David Weisbrot, The Promise of Law Reform (The Federation Press, 2005).

[17] The underlying assumption being that the law does not exist primarily to serve the interests of the state or the polity, but that the state, and the officials of the state, are subject to the rule of law, and individuals are free to go about their business except to the extent otherwise constrained by law.