~USTRALIANLEGAL CONVENTION - Michael Kirby · 2010. 10. 25. · ass~mbling, in an analytical fashion, ~uch a mass of material about law refor!U in. Australia and organisipg the numerous

19th ~USTRALIAN LEGAL CONVENTION

SYDNEY, TUESDAY 5 JULY 1977

·LAW REFORM AND THE LEGAL PROFESSION

COMMENT

Hon Justice Mb Kirby

July 1977

,48

19th ~USTRALIAN LEGAL CONVENTION

SYDNEY, TUESDAY 5 JULY 1977

·LAW REFORM AND THE LEGAL PROFESSION

COMMENT

Hon Justice M b Kirby

July 1977

,48

19th AUSTRALIAN LEGAL CONVENTION

SYDNEY, TUESDAY 5 JULY 1977

LAY, REFORf·j A,iD THE LEGAL PROFESS rON.COi~i'jENT

A commentary on the papers by Professor A.L. Diamondand Hr. R.D. Nicholson

by Hon. Mr. Justice M.D; KirbyChairman of the Australian Law Reform Cornnlission

LP.W REFORM, LAWYERS' LAW G LAWYERS' CONSERVATISM

Professor Diamond deservep our thanks for outlining once

again the procedures adopted ~y the Law Commission in promoting

reform of the law·, Mr. Nicholson is to be congratulated for

assembling, in an analytical fashion, ~uch a mass of material

about law refor~ i~ Australia and organis~ng the numerous ways

in which the profession, in all its aspeqts, ~an assist to promot

"renewal ': of the legal sY15tem. Law reform is now a matter of

increasing community interest in Australia. Opening,the Second

Symposium on Law and Justice in the A.C.T .. , on 2S-March 1977,

the Commonwealth Attorney-General, Mr. Ellicott~ said:

Itf/hat we are see.ing in this country today isthat ~aw reform is being taken into the ~ivingrooms of the nation~ by teLevision and byother means. We are a~L b.ecoming involved in it".

Organis.ed. law reform in the Comm~nwealth of Nations will

come in for .'scDutiny· at the forth_~oming Conference in Edinb.urgh.Some of the law 'reform agencies will collect in ~ondon in August

1977. The d~scu$sion of a number of matters relevant to law

reform at this Convention is therefore timely. ObviouslYl with

two papers, three commentators and ten minutes at my disposal,

only a few themes can,be picked up.

Both-papers raise for debate the question whether law

reform agencies should be confirted to so-called lllaHyers l law lt ,

avoiding review of laws with !l any substantial pOlitical ,or moral

content!1 and concentrating on matters Ilnon-controversial~ save

amongst lawyers". l Certainly, there are dangers in policy-

pregnant ' References. One law reform body in Australia declined

19th AUSTRALIAN LEGAL CONVENTION

SYDNEY, TUESDAY 5 JULY 1977

LAY, REFORf·j A,iD THE LEGAL PROFESS Wi . COi~i'jENT

A commentary on the papers by Professor A.L. Diamond and Hr. R.D. Nicholson

by Hon. Mr. Justice M.D; Kirby Chairman of the Australian La~-l Reform COIIUllission

LE>.W REFORI1, LAWYERS' LAW G LAWYERS' CONSERVATISM

Professor Diamond deservep our thanks for outlining once

again the procedures adopted ~y the Law Commission in promoting

reform of the law·, Mr. Nicholson is to be congratulated for

ass~mbling, in an analytical fashion, ~uch a mass of material

about law refor!U in. Australia and organisipg the numerous ways

in which the profession, in all its aspec,ts, ~an assist to proIiiot

"renewal I: of the legal sY15tem. Law reform is now a matter of

increasing communi.ty interest in Australia. Opening, the Second

Symposium on Law and Justice in the A.C.T .. , on 26 March 1977,

the Commonwealth Attorney-General, Hr. Ellicott" said:

Iff/hat we are see.ing in this country today is that ~aiJ peform is being taken into the ~iving rooms of the nation~ by teLevision and by other means. We are a~L b.ecoming involved in it".

Organis-ed. law reform in .1:he Comm~nweal th of Nations will

come in for ,"scDutiny at the forthcoming Conference in Edinb.urgh.

Some OF the law 'reform agencies _will collect in I,.ondon in August

1977. The discussion of a number of matters relevant to lavl

reform at this Convention is therefore timely. ObviouslYl vlith

two papers, three corrunentators and ten minutes at my disposal,

only a few themes can.be picked up.

Both-papers raise for debate the question whether laH

reform agencies should be confiI1ed to so-called lIlaHyers' law lt ,

avoiding review of laws with !l any substantial political·or moral

content'l and concentrating on matters "non-controversial~ save

amongst lawyers" .. l Certainly, there are dangers in policy-

pregnant' References. One law reform body in Australia declined

- 2 -

. to become involved in the abortion debate. 2 The last Annual

Report of the N.S. W.-...Law) .Refo::rJIl·~9!J1mis.siCln .:pointed out that

11 social and political issues-l" :are. lI matters that are not properly

the sole preserve of lawyers ll • 3 Within days of this report,

that Commission 'was given its major reference to reform the

legal pro£ession~

I 'think we should put this debate to rest . In

Australia, most,law ,reform. bodies have no choice in the matter.

Under their sta:tutes, when given- a"'Ret"erence, ·it is ·their- duty

to get on with the job. No doubt governments weigh"the

advantages and Siisadvantages' of committing important social

issues to an independ~nt commission of lawyers~ The- advantages

o~ doing so, given the way these bod{es are now operating,

should not be underestimated.

In any case, there are few areas of law reform that

are entirely inn6cuous and l~cki~g in- social or economicll· .

significance .. ' But even assumirig ~t were possible neatly to

categorise a group of subj'ects·'as· ";Lawyer's "law" and ass-uming

I had a choice in the" ·rri~tter, I· am not at .all convinced that

this is the e~clusive. territory fqr law reform projec~s.

I appreciate that some members of the profession would disagree.

It is my view th~t, 'included in sucl: .a ca'tegory, would be those

laws which are either of minimum significance for the just

organisation of societyS or ·areof concern to the wealthy and

educated members of society, who are already fairly well served

by legal talent. 6 The ultimate consumers of the law, ?s

Professor Diamond once said, are the people affected by it.?

!1any more people are affected by injustice in social security

laws or court delays ~han by defects in the rule against

perpetuities. There is surely room for reform of the latter.

But, given the pressures oh Parliaments nOWd?ays, the urgency

of reform and the widespread inconvenience of lack of rel'Ol"wl

there is also merit in giving to law reform bodies ,projects

Hhich involve significant policy questions. Law reform is not

a mere hobby-horse of the legal profession~ Given the way

in which Australian law reform bodies have shown that they can

handle complex, contentious, controversial issues, I predict

- 2 -

. to become involved in the abortion debate. 2 The last Annual

Report of the N.S. W.-... Law) .Refo:rm" ~9!J1mis.siCln .:pointed out that

11 social and political issues""'!' are _ II matters that are not properly

the sole preserve of lawyers ll • 3 \.Jithin days of this report,

that Conunission 'was given its major reference to reform the

legal profession-!

I 'think we should put this debate to rest. In

Australia, most,law ,reform. bodies have no choice in the matter.

Under their statutes, when given- a"'Reierence, -it is ·their- duty

to get on with the job. No doubt governments weigh'the

advantages and Siisadvantages' of committing important social

issues to an independent commission of lawyers~ The- advantages

o~ doing so, given the way these bod{es are now operating,

should not be underestimated.

In any case, there are few areas of law reform that

are entirely in~bc\.lbus and l~cki~g in' social or econom.ic ll· .

significance._· But even assumirig ~ t Here possible neatly to

categorise a group of subj'ects as ";Lawyer's "law" and ass-uming

I had a choice in the" ·rri~tter, I· am not at .all convinced that

this is the e-xclusiv·e. terri tory fqr law reform projec.ts.

I ap·preciate that some members of the pro'fession would disagree.

It is my view th~t, 'included in suc}: .a ca'tegory, would be those

laws which are either of minimum significance fo,r the just

organisation of societyS or "are of concern to the wealthy and

educated members of society, who are already fairly well served 6 by legal talent. The ultimate consumers of the law, as

Professor Diamond once said, are the people affected by it.?

!1any more people are affected by injustice in social security

laws or court delays .than by defects in the rule against

perpetuities. There is surely room for reform of the latter.

But, given the pressures on Parliaments nOt-ld?ays, the urgency

of reform and the widespread inconvenience of lack of rel'orr.l,

there is also merit in giving to law reform bodies ,projects

Hhich involve significant policy questions. Law reform is not

a mere hobby-horse of the legal profession~ Given the way

in Hhich Australian law reform bodies have shown that they can

handle complex, contentious, controversial issues, I predict

- 3 -

that Law Ministers will increasingly use their talents to

help Parliament grasp tho:ny,social problems. Let us have no

more of this debate. The pass is sold. The only referencewhich the Australian .Co"rnrnission has rece.ived from successive

Attorneys-Generq..l tha·t might have been descr,ibed a; "lawyers I

law ll relates to standing to sue in Federal Courts. Prafes,sor

Diamond' 5 paper shows clearly that even this reference cannot

safely be Seen as a task for lawyers only.

WORKING PAPERS, SURVEYS AND PUBLIC PARTICIPAT.ION

Now, the consequence o-f_ giy;i..nK. ,l..~\.v _.,ref.0rm bodies

references involving decisions on c9ntr.overs~al ?ocial

questions is that the old way of achieving~aw reform will no

longer do. Prafe'ssa!> Diamond I s paper is especially helpful

for the d.escription it contains of the processes of consultation

·~hat go on in England. The _use of the wor~ing paper, used

almost universally in Australia to promote deba~e, is certainly

a step forward in_prQmo.~ing_pu?l~c.~.onsultation and the input

of ideas and points of view necessary to ensure an informed, 9

and balanceo·proposal for reform. It i~ not enough. Most

law reform bodies engage in comparative lawanalysis,lO

empirical research,ll including social surveys,12 and consultatio

with persons having particular expertise to offer. In every

one of the Australian Commission's re~erences, the Attorney-'.

General is advised to· appoint aaadre of persons with different

skills as consultants. They sit- down with the Commissioners

at numerous stages throughout the pr~ject. It is an

interdisciplinary process that is bracing and extremely useful.

It should also be said that,the Commission has experienced

no difficulty whatever in securing top experts, both wit0in

and outside the law to give their time wi~hout charge, their

only reward being participat~on in a project of national law

reform. 13

But even this is not enough. Given the matters'that

have been referred to the Australian Commission, in every caSe

public sittings or public seminars have bee.n held in all parts

of the country. Professor Diamond indicates that the Law

Comfuission has pot yet conducted pU~lic h~arings. The tendency

in Australia is certainly towards an endeavour to secure public

- 3 -

that Law Ministers will increasingly use their talents to

help Parliament grasp

more of this debate.

thorny, social problems. Let u's have no

The pass is sold. The only reference which the Australian .Co"rnrnission has rece.ived from successive

Attorneys-Generq..l tha·t might have been descr,ibed a; "lawyers I

law!! relates to standing to sue in Federal Courts. Prafes,sor

Diamond's paper shows clearly that even this reference cannot

safely be seen as a task for lawyers only.

WORKING PAPERS, SURVEYS AND PUBLIC PARTICIPAT.ION

Now, the consequence o-f_ giY:i..nK . .l .. ~\.v _.,ref.0rm bodies

references involving decisions on q:>nt.r.overs~al ,social

questions is that the old way of achieving ~aw reform will no

longer do. Prafe'ssoi' Diamond's paper is especially helpful

for the d.escription it contains of the processes of consultation

·~hat go on in England. The _use of the wor~ing paper, used

almost universally in Australia to promote deba~e, is certainly

a step forward in_prQmo.~ing_pu?l~c consultation and the input

of ideas and points of view necessary to ensure an informed 1 9

and balancecf proposal for reform. It is. not enough. Mos t

1 C b d' , '1 l' 10 a.w reLorm 0 les engage In comparatIve aw ana YSIS,

empirical research 11 including social surveys,12 and consultatio

with persons having particular expertise to offer. In every

one of the Australian Commission's re;ferences, the Attorney-"

General is advised to· appoint a cadre of persons with different

skills as consL\ltants. They sit. down with- the Commissioners

at numerous stages throughout the pr~ject. It is an

interdisciplinary process that is bracing and extremely useful. It should also be said that. the Commission has experienced

no difficulty whatever in securing to.p experts, both witl:in

and outside the law to give their time wit;hout charge, their

only reward being participat~on in a project of national law

reform. 13

But even this is not enough. Given the matters"that

have been referred to the Australian Commission, in every caSe

public sittings or public seminars have bee.n held in all parts

of the country. Professor Diamond indicates that the Law

Comfuission has pot yet conducted pu~lic h~arings. The tendency

in Australia is certainly towards an endeavour to secure public

- 4 -

participation, not just expert participation.

In addition to the e£fort~.-C?f the national Commission,

the Tasmanian Commissiqn attempted public sittings outside

Hobart in 1975. 14 In conducting. its inquiry -into the leg~lprofession, the -Ne.oJ South Wales Commission has had "open

house" sittings in Armidale, Forbes and Parramatta, at "'lhich

members of the pUblic aDd legal pra~titio~ers attended to

put points of view to the Commission.

observed to avoid mere

It is not necessary that

I concede that care must be. d d· d d· 16W1n ow reSS1ng or gran stan 1ng.

The rationale lor enlisting .puplic partic~r~tion of

this kind i"s not only to be found., in 'participatory democ,racyand the movement f.or op'en government". 15. Whatever the " u l t im.ate

values ll which law reform commissions ;;e,ek to. Bust.ain in their

repor-ts,. commonsense dictates that -where -high~y controvers ia 1

Gubjects ,TY'e referred, an- attempt at least T[1ust be made to

procure pUbl~c comment and also the comment of interested

groups, in a public_forum. Success varies. Sometimes the

public participation_'at openheari-ngs is -disappointing.

Certainly, f~ a larg.e country like Australia, .it is an e>:pensive. . .and time-consuming process. However, there.is no doub4 at

all that u~eful and original ideas do e~erge. Take one

example only. The Australian Commission sat in all parts of

the country with public sittings on its. working paper

concerning human tissue transplants. The. issues before the

Commission were controversial, touching basic h~m~n

and social values. The .aid o.f the media was enlisted to put

the issues calmly and fairly before_ an audience numberinG

millions. Letters of suggestion and opinion were procured and

the Commission '5_ proposals were put before a much wider

audience than any working paper could ever procure. Some

suggestions advanced in the pUblic sittings were simply not

covered in the working paper, writings on the subject or

expert submissions. A young Perth medical student, for example,

pointed to the inadequacy of university training to cope"with

the moral and legal questions now facing medical practitioners.

- 4 -

participation, not just expert participation.

In addition to the e£fort~.-C?f the national Commission,

the Tasmanian Commissiqn attempted public sittings outside

Hobart in 1975. 14 In conducting. its inquiry -into the leg~l profession, the -Ne,oJ South Wales Commission has had "open

house" sittings in Armidale, Forbes and Parramatta, at "'lhich

members of the public aDd legal pra~titio~ers attended to

put points of view to the Commission.

The rationale lor enlisting .puplic partic.ira,tion of

this kind i"s not only to be found., in -participatory democ·racy and the movement for op'en government, .. 15. Whatever the lI u l t im_ate

values ll which law reform commissions ;;e,ek to. sust-ain in their

repor-ts,. commonsense dictates that -where -high~y controversla 1

Gubjects ,TY'e referred, an- attempt at least T[111St be made to

procure publ~c comment and also the comment of interested

groups, in a public_forum. Success varies. Sometimes the

public participation_'at open heart:ngs is -disappointing.

Certainly, f~ a larg.e country like l}u.stralia, .it is an e>:pensive

and time-consuming pr.ocess. However, there. is no doub~ at

all that u~eful and original ideas do e~erge. Take one

example only. The Australian Commission sat' in all parts of

the country with public sittings on its. working paper .. concerning human tissue transplants. The. issues before the

Commission were controversial, touching basic h_umB:n

and social values. The .aid o£ the media was enlisted to put

the issues calmly and fairly before_ an audience numberinG

millions. Letters of suggestion and opinion were procured and

the Commission '5_ proposals were put before a much wider

audience than any working paper could ever procure. Some

suggestions advanced in the public sittings were Simply not

covered in the working paper, writings on the subject or

expert submissions. A young Perth medical student, for example,

pointed to the inadequacy of university training to cope"with

the moral and legal questions now facing medical practitioners.

I concede that care must be . d d· d d· 16 W1T1 ow reSS1ng or gran stan lng.

observed to avoid mere

It is not necessary that

- 5 -

any particular"'formality should be observed. It is probably

undesirable that the adversary process should ever be used. But

it is important for Parliamen~s and for the cause of law

reform that controversial matters should be pUblicly aired in

this way. The report on them by a Commission which has

sounded public opinion is more likely to 'command respect in

the community and support in the Parliament than would he the

case if no more had ·been done than to consult the special·

interest groups involved. I say nothing about the methods

that may be appropriate for other countries ·or References less

controversial than those' that my Commission has received. . I

regret that I cannot agree with the view of the Scottish Law

Commission that "the man in the street is concerned with a

specific grievance and not with the legiSlative or administrative

authority which may ultimately be responsible for remedying

that erievancell 17 It has cert~inly'not 'been my experiencein Australia. I predict that there will be an increasing

interest in law reform in Australia and the demand for greater

expenditure upon ~t, including' demands from within the legal

profession itself.

THE LEGAL PROFESSION AND REFORMMr. NichOlson's paper -outlines the many ways in which

the. profession can and does, indi\i:;idually and COllectively,

take part in the process of law reform. Although things are

changing, it must be said that not much has altered since

Sir Robert Megarry in 1956 asserted that "lawyers are not

playing their part n • 18 He said that

ll'By and large there is very little

response from the legal profession as a

whole ... Perhaps two or three lawyers

write in with suggestionsl1 19

I say things are changing because.since that was

written, the Law Commission and law reform bodies have been

established throughout the common law world, largely peopled by

lawyers and fuelled by ideas often promoted by L3:wyers. 'The fa

remains that the numbers of lawyers taking an active part in

law'reform are few, in comparison to the numbers of the

- 5 -

any particular"'formality should be observed. It is probably

undesirable that the adversary process should ever be used. But

it is important for Parliamen~s and for the cause of laH

reform that controversial matters should be publicly aired in

this way. The report on them by a Commission which has

sounded public opinion is more likely to 'command respect in

the community and support in the Parliament than would he the

case if no more had ·been done than to consult the special·

interest groups involved. I say nothing about the methods

that may be appropriate for other countries '01" References less

controversial than those' that my Commission has received. . I

regret that I cannot agree with the view of the Scottish -Law

Commission that TIthe man in the street is concerned with a

specific grievance and not with the legislative or administrative

authority which may ultimately b,e resl?onsible tor t-emedying

that erievance!l 17 It has certainly not 'been my experience

in Australia. I predict that there will be an increasing

interest in law reform in Australia and the d"emand for greater

expenditure upon ~t, including"demands from within the legal

profession itself.

THE LEGAL PROFESSION AND REFORI1

Mr. NichOlson's paper -outlines the many ways in which

the. profession can and does, indi\.-:;idually and collectively,

take part in the process of law reform. Although things are

changing, it must be said that not much has altered since

Sir Robert Megarry in 1956 asserted that "lawyers are not

playing their part!l.18 He said that

lI'By and large there is very little

response from the legal profession as a

whole ... Perhaps two or three lawyers

write in with suggestionsl1 19

I say things are changing because.since that was

written, the Law Commission and law reform bodies have been

established throughout the common law world, largely peopled by

lawyers and fuelled by ideas often promoted by lawyers. 'The fa

remains that the numbers of lawyers taking an active part in

law'reform are fetrl, in comparison to the numbers of the

profession

The

- 6 -

profession. The'cause"of this must be traced to legal education,

attitudes to professional responsibility and the sheer

pressures of coping with day-:-to-day profes'sional life.

l'1egarry started hi,s essay with the proposition that law relorm

is I1the concern and the duty of all lawyers".' The Chief

Justice of New South Wales suggested last year that lawyers

would gain a fresh insight to the need. for changes in "lhe

legal framework if they_.had personal-exper{eryces as litigants. 20

in court. Part of the role of a law reform commission is

to promote within the profession_genuine acceptance and not

mere lip service ~o the duty propounded by Me~arry and the

.sensitivi,ty called for by "Sir Laurence Stree1;.

Now of.c0urse irnpoI;'tant contributions are made by

lawyers commenting upon reform· proposals, whether they originate

in government-or in law reform bodies. 21 Sir _Alexander

Turner put it well, describing the lawyer?~ role as being the

"sentries· of the citi.zenll~22 Clearly the proliferation of law

reform bodies throughout Australia has taxed the professional

societies beyond their present capacity. The numbers of

-committees working upon law reform projects and enlisting the

experti~e of lawyers grows apace. 23 It is certainiy important

that good working relationships be est~blished between law

reform bodies and the professional lega~ societies. 24

But this is not enough. The organised

shOUld not simply react on an ad hoc basis.

Canadian Bar Association has now appointed a Director of25

Legislation and Law Reform. His task is .to "monitor

legislation and proposals of the Federal Government and the

Law·Reform Conunission". He is responsible for liaison with

government and a-genciesworking on law reform. His task is

to identify matters appropriate for reform. His appointment

is described as :

l1 a major thrust by: the Canadian Bar

Association to fulfil its professional

responsibility ... [to] put the public

interest ahead of our own interest without

equivocation". 26

- 6 -

profession. The-· cause" of this must be traced to legal education,

attitudes to professional responsibility and the sheer

pressures of coping with day-:-to-day prafes-sional life.

14egarry started hi,s essay with the proposition that law relorm

is I1the concern and the duty of all lawyers"_' The Chief

Justice of Ne.w South Wales suggested last year that lav.·yer-s

would gain a fresh insight to the need. for changes in "lhe

legal framework if they _.had personal-expe:d."eryces as litigants . 20

in court. Part 0-£ the role of a law reform commission is

to -promote within the profession_genuine acceptance and not

mere lip service ~o the duty propounded by Me~arry and the

. sensi tivi.ty called for by "Sir Laurence Stree1;,

Now of .cours.e irnpo:r;-tant contributions are made by

lawyers commenting upon reform· proposals,

in government -or in law refor·m bodies, 21

whether they originate

Sir .Alexander

Turner put it well, desc·ribing

"sentries· of the citi.zenll~ 22

the lawyer?~ role as being the

Clearly the proliferation of law

reform bodies thr'oughout Australia has taxed the professional

societies beyond their present capacity. The numbers of

-committees working upon law reform proj"ects and enlisting the

experti~e

that good

. . . 23 of lawyers grows apace.

working

reform bodies and

relationships be

the professional

It is certainiy important

established between law

1 ., .. 24

ega .... soc1et1es.

But this is not enough. The organised profession

should not simply react on an ad hoc basis. The

Canadian Bar Association has now appointed a Director of 25

Legislation and Law Reform. His task is .to "monitor

legislation and proposals of the Federal Government and the

Law·Reform Conunission". He is responsible for liaison with

government and a·gencies working on law reform. His task is

to identify matters appropriate for reform. His appointment

is described as :

lIa major thrust by: the Canadian Bar

Association to fulfil its professional

responsibility", [to] put the public

interest ahead of our own interest without

equivocation". 26

Australian professional bodi"c:s are now coming to

the realisation tha~:yeTmanent officers will- be- needed to

fulfil like tasks.2.7

'The Law Foundations are beginning to

playa part in funding research upon State law reform projects. iS

These are St3pS in the right direction 0" But our efforts in

Australia contrast unfavourably with~he efforts of the

organised profession in Canada. There is no officer engage~

full-time upon law reform" co-ordi~ation· and implementation. As

yet there is no equivalent to the C.B:A. National with its

strong emphasise. upon· 'law reform :'in Canada and i t-s· promotion of

an active interest. in and,' khqwledge""of laY"' re"form on the part

of the ordinary member of the profession. -Nor have we yet• d h· . d 29-lace up to t e pract~cal suggestlon rna e by Megarry t~.,Jenty one

years'ago when he said that there ought to be some person or

body to whom all· lawyers could be encouraged to send suggestions

for reform of the law, however minor. That was a good, hard-

headed, practical suggestion'for participation of the

pra.ctising lawyer in the' process o·r·law reforl.l. It has not

borne fruit, in this country. Heg-arry 'suggested thai; all

la;--,yers should regard it -as "part of -their professional .duty

to note such, points -as -they ocbti·r···at-ld in due course to send

them in· ... to ... -one central wellknown point!! 30

Why have we not develope~, such,machinery? It must be

said that the professional enthusiasm for ~~iting in with

suggestions would vary in accordance with the profession's

conviction that there was utility in writing .. At the very least,

there should be a central and well established line of

communication so that lawyers and their professional

organisations could ensure that inconveniences, defects and

oversights in the law could be plugged intq a system for

consideration either immediately or upon the next general review

of that subject. In a modest way, the Au~tralian Commission

has begun to collect jUdicial and other suggestions for ~hc

re£orm of the law. It is a pity that the enormous legal'

talents available in this country for proposing suggestions

cannot be harnessed in a better way. I propose that we

should consider afresh at this Convention Sir Robert r1egarry's

suggestion ,made in 1956 and not yet acted upon.

Australian professional bodi'c's are now coming to

the realisation "tha:t- 'ye'T'manent 'officers will' be· needed to

fulfil like tasks.2.7

'The Law Foundations are beginning to n playa part in funding research upon State law reform projects. - '

These are st3ps in the right direction o' But our efforts in

Australia contrast unfavourably with pthe efforts of the

organised profession in Canada. There is no officer engagetJ

full-time upon law reform·' co-ordi~ation· and implementation. As

yet there is no equivalent to the C. B:A. National with its

strong emphasis. upon· 'law reform ·~in Canada and i t·s· promotion of

an active interest. in and·' khqwledge"'of laY"' re'form on the part

of the ordinary

faced up to the

member of the profession. -Nor have we 29 practical suggestion made by Megarry

yet

t~.,Jenty one

years'ago when he said that there ought to be some person or

body to whom all, lawyer's could be encoura·gai to send s ugges tions

for reform of the law, however minor. That was a good, hard-

headed, practical suggestion'for participation of the

pra.ctising lawyer in the' process o·f'·law reforI.I. It has not

borne fruit, in this country. Hegarry 'suggested that all

la:--,yers should regard it 'as "part of ·their professional .duty

to note such· points as they dcbu.·r "aRd in

them in· ... to ... ·one central wellknown

due course

point" 30

to send

Why have we not develope~, such,machinery? It must be

said that the professional enthusiasm for ~~iting in with

sug-ges.tions would vary in accordance with the profession 1 s

conviction that there was utility in writing., At the very least,

there should be a central and well established line of

communication so that lawyers and their professional

organisations could ensure that inconveniences', defects and

oversights in the law could be plugged int9 a system for

consideration either immediately or upon the next general re'.Jie~.;

of that subject. In a modest way, the Au.stralian Commission

has begun to collect judicial and other suggestions for ~hc

re£orm of the law. It is a pity that the enormous legal'

talents available in this country for proposing suggestions

cannot be harnessed in a better way. I propose that we

should consider afresh at this Convention Sir Robert 1'1egarry's

suggestion ,made in 1956 and not yet acted upon.

- 8 -

I cannot leave the contribution of the legal

profession without saying just a word about the contributionof legal academics "and scholars 'to 'law'refor-IT! in AustraJ.ia.

In many ways, I regret fa say; legal acad.emics are treated as"second-class citizens ll by the practising profession, amongwhom I humber the jUdges. There is no doubt that the

contribution of legal academics to the processes of law reform,is quite .disproportionate to tpeir number arid financial

reward. They provide the vital synoptic view of the law.

Almost alone-in ~he profession~ it is' they who see the law,

its history, development and def.ec·fs, as "a wnole. 31. A vi.£,orous,

successful law reform body' provides at last the vehicle to

translate their sugg~stion5 into actiQn and to provide a

practical means of utilising the' critlcal skills of· the legal

academic.' It is my .. ho"pe that the Aus-tralian Law -Reform

(u/Il/lli6sion will help to' br>idge the gulfl.Jldl...·!l undoubt.cLlly divid,'~~

.the practisins and academic "branches of tne profes'sion in

this country.

Ll:GAL EDUCAT"ION AND LAW' REFORM". -

'I have one o~her positive suggestion. It arises from

Mr. Nicholson"s paper'ahd is crucial to professional attitudes

to law reform. Professor Diamond rightly stresses the genius

of the co~~on law in maintaining s~fficient predictability whilst

at the same time retaining flexibility to accommodate change.

I believe that "in some at least of our law schools, there is

undue emphasis upon the first and inadequate reference to the

second : th~ dynamic aspect of our legal system. Perhaps it is

inevitable'that in teaching students to find and identify the

law, the tendency should develop to accept what they find,

without subjecting it to sufficient questioning. Of course

finding the law amidst the case books (or even the statute books)

can often be a task ~o eXhausting that there is not much

enthu:§iasm l'eft to ask whether what is discovered is satisfactory

Law students should be taught to be critical of law as it is and

alert to the social implications of their criticism. Inculcating

the notion that a lawyer's responsibility does not end with

finding and declaring the law is something that should begin at t

earliest stage of legal' education. If this were done, I have no

- 8 -

I cannot leave the contribution of the legal.

profession Hi-thout saying just a word about the contribution

of legal academics "and scholars 'to 'law "refer-IT! in AustraJ.ia.

In many ways, I regret fa say; legal acad.emics are treated as IIsecond-class citizens ll by the practising profession, among Hhom I number the ,judges. There is no doubt that the

contribution of legal academics to the processes of law reform , is quite .disproportionate to tpeir number arid financial

reward. They provide 'the vi tal synoptic view of the law.

Almost alone-iIi -the prcif-ession', it i-so they who see the la\.v,

its history, development and def.eet"s, as "a wnole. 31. A vi.£,orous, 5u'ccessful law reform body' provides at last the ve-hicle to

translate their sugg,estions into actiQn and to provide a

practical means ofu'tilising the' criti'cal skills of· the legal

academic.' It is my __ ho"pe that the Aus-tralian Law -Reform

(u/IllJli6sion will help to' br>idge the gulf~.Jld\ .. :h undoubt.cJly divid,'~~

.the practisins and academic "branche's of the profes'sion in

this country.

Ll:GAL EDUCAT'ION AND LAW' REFORM". -

'I have one o·ther positive suggestion. It arises from

Mr. Nicholson"s paper'ahd is crucial to professional attitudes

to law reform. Pr.ofessor Diamond rightly stresses the ger.ius

of the COnii"nOn law in mainta'ining s).lfficien"t predictability V1hilst

at the same time retaining flexibility to accommodate change.

I believe that "in some at least of our law schools, there is

undue emphasis upon the first and inadequate reference to the

second: the dynamic aspect of our legal system. Perhaps it is

inevitable'that in teaching students to find and identify the

la'w, the tendency should develop to accept what they find,

without SUbjecting it to sufficient questioning. Of course

finding the law amidst the case books (or even the statute books)

can often be a task ~o eXhausting that there is not much

enthu:§iasm l'eft to ask whether what is discovered is satisfactory

Law students should be taught to be critical of law as it is and

alert to the social implications of their criticism. Inculcating

the notion that a lat.-lyer' s responsibility does not end with

finding and declaring the law is something that should begin at t

earliest stage of legal' education. If this were done, I have no

- 9 -

doubt that many more lawyers would respond when questions

were raised by law reform and like bodies ~oncerning the defects

in the law. I recognise that courses ·in jurisprudence ,and

other sUbjects .do. attempt to pevelop critical thinking.

Nevertheless, it is my view that there 'would be value in teaching

law reform as a formal part of the law school cur'riculum.

Alternatively, it. should be:entirely possible to include in the

study of particular subjects, discussipn with the local law

reform commission, ~orking upon a r~levant project .

. At this rnomen~, I get~~he. pistinct impression thatmarry lega~ practitioD.er;.S;. ;I:'egard ~aw r~fo~m.as something for the

llexperts": something ,for the overtaxed few in the law society

or possibly even ,something that actually undermines the

certainty which in,thei-J;' conc.eption ~t "i~ th.~ business of the

lavl to pro-vide. The' legal profeS.sian in Australia must be'

constantly :r:-~m,inde.d tFla.t--- :the orig.ina.l dynamic of the common law

was a tr.ve_~spirit of law r~form : law and lawyers responding

'to new sit~ationS demanding_ just solutions. 12 That is why the

Aust~alian Commission utilises- every opportunity it gets to. - ....:.:. . - . .enlist -the suppa~t and:'"par:'ti:C.:i.p.~tion,.of. the profession . In

our number we have lavlyers fr~bm m.any parts of the "country. vle

procure consultants sOme of whom' are lawyers from other parts

of the cO'!1ntry. We conduct pUblic., sitt:imgs and semina~s in all

States upon all of our- projects. Our publications are widely

distributed and we have now adopted the procedure of sending

short discussion papers on our proposals to all those members

of the profession who subsc:r.~ibe to the Australian Lali.' JOUl>nal.

The notion that law reform ,could be added to the curriculum of

our law schools is not an eccentric one. It is done at Harv~rd

and I believe should be considered in this.country. Tam sure. ld f' 33that ~t weu have the support of the law re orm agenc~es.

We are living through a neVI age of reform. When Sir

Leslie Scarman was asked how the Queen's first twenty five

years would be remembered in legal history he suggested that

this period would be seen as lithe age of legal aid and law

reform and Lord Denning". 34 The pressures for law reform will

not abate. On the contrary, they will i.ncrease. He must equip tJ

profession VIith the skill and inclination to answer this challeng

- 9 -

doubt that many more la\o1yers t.Jould respond when questions

were raised by law reform and like bodies ,concerning the defect.c;

in the law. I recognise that courses "in jurisprudence ,and

other sUbjects .do_ attempt to d.evelop critical thinking.

Nevertheless, it is my view that there "would be value in teaching

law reform as a formal part of the law school cur'riculum.

Alternatively, it, should be:entirely possible to include in the

study of particular subjects, discussipD with the local law

reform commission, _working upon a r,.elevant project .

. At this moment., I get-~he .. distinct impre"ssion that marry lega~ practitioD_er;.S; .r:-egard ~aw r~fo~m.as something for the

Hexperts": something ,for the overtaxed few in the law society

or possibly even ,something that actually undermines the

certainty which in ,thei-J;:' conc.eption ~t "i~ th.~ business of the

lav] to provide. The' legal profeS.sion in Australia must be'

constantly ~~m,inde.d tFla.t--- _the orig.ina.l dynamic of the common law

was a tr..l,l.e-:-:_spiri t of law re.form : la'tv and lawyers responding

'to new sit1.l-ations· demanding. just solutions. 3.2 That is why the

Aust~alian Commiss~on_ .\l;!=il.ises- every oPP?rtuni ty it gets to

enlist -the suppo~t and>par:'tip:i.p.~tion ,.of. the profession. In

our number we have lavJyers fr~om m.any parts of the "country. vle

procure consultants some of whom· are lawyers from other parts

of the cO'!lntry. We conduct public. sitt:imgs and seminars in all

States upon all of our- projects. Our publications are widely

distributed and we have now adopted the procedure of sending

short discussion papers on our proposals to all those members

of the profession who subsc:r.~ibe to the Australian La-r..' Joul'nal.

The notion that law reform ,could be added to the curriculum of

our law schools is not an eccentric one. It is done at Harv~rd

and I believe should be considered in this,cuuntry. T am sure . ld f' 33 that ~t wou have the support of the law re orm agenc~es.

We: are living through a new age of reform. When Sir

Leslie Scarman was asked how the Queen's first twenty fi .... ~e

years would be remembered in legal hist.ory he suggested tp,at

this period would be seen as "the age of legal aid and law

reform and Lord Denning". 34 The pressures for law reform will

not abate. On the contrary, they will i.ncrease. He must equip tJ

profession with the skill and inclination to answer this challeng

- 10 -

FOOTNOTES

1. R.E. Megarry~ "Law Reform ll (1956)' 34 Canadian Bal' l.eV.691 at p.693. Cf. G. Sawer, I1Who Controls the La..] inAustralia? The'Instigators of Change and the ObstaclesConfronting them" in A.D. Hambly and J~L. Goldring (Ids)NAustraZian tawyers and Social Cha~gen, 1976, p.120;N. Marsh, "Law Reform in the United Kingdom: A' NewInstitutional Approach ll (1.971) 13 rim. & M.L.Rev. 263 atp.275. . .

2'.F. C. 0 I Brien, liThe Victo..;r'ian Chief Justice I 5 Law Refor-rnCommittee ll (1972) -S Melbourne Uni. L.ilcv. 4110 at p.li50.

3. Law Reform Corrunission (N.S.W .. ) Annual Report 1976, p.lO.

4. K.W. Wedderburn, "Reflec"tions on 'Law Eeform ll , The Listener~6 May 1965, - 685 at p.685. Cf. J. Reetz, "Reflectionson Continuity and 'Change in Law Reform" (1972) 22 Urd.Toronto L.·J. 129 at p.140: .

S. Sir Samuel, Cooke," liThe Law Commission: rhe First TenYears~C197o) 125· Nez,) L.J. 1036 at p.lQ.37.

6. This is· the view of J. N. Lyon, "Law Reform Needs Reform".(197.4)~2·Osgoode H.L.J. 421 at p.431.

7. A. Diamond, "The Work of- the LaH C;ommission" (1976) 10J.A.L~T. 11 at p.19.

8. This is the' Declaration of the New Zealand Law ReformCommission's AnnuaZ Report 1971~ p.3

9. The Working Paper has been previOUSly described : Marsh,p.279 and Diamond, pp.13-14 and criticised, Lyon~ pp.425-6.

10. The Law Commissions Act 1965 (G.B.), s.3(1)([) positivGlyrequires this in England. O. Kahn-Freun"d liOn Uses andMisuses of Compara-i:ive Lawl! (1974) 37 M.L.B. 1. The useof overseas study by the Australian Commission inAlcohol~ Drugs and Driving (A.L.R.C.4), 1976 is referredto in (1977) 127 Nez,) L. J. 53.,

11. Law Reform Commission of Canada, Fifth Annual Repo~t 19?6~p.3

12. The way was shown by the Law Commission in 1972 in relationto i-nquiries cc;mcerning a wife I S proprietary· intere'stin the matrimonial home and her rights on dissolution.Cf. (1976) 126 Nez,) L.J. 529.

13. Australian Law Reform Commission Annual Report 1976(A.L.R.C.S) p.22. Law Reviev1 editorials in Australiaconstantly call for consultation of this kind. See, e.g.(1975) Aust.Bus.L.Rev. 240.

- 10 -

FOOTNOTES

1. R.E. Megarry~ "Law Reform ll (1956)' 34 Canadian Bal' l.eV. 691 at p.693. Cf. G. Sawer, I1Who Controls the La"1 in Australia? The'Instigators of Change and the Ob'stacles Confronting them" in A.D. Hambly and J~L. Goldring (Ids) NAustraZian tawyers and Social Cha~gen, 1976, p.120; N. Marsh, "Law Reform in the United Kingdom: A' New Institutional Approach ll (l971) 13 rim. & M.L.Rev. 263 at p.275. . .

2'. F. C. 0 I Brien, liThe Victo.,;r'ian Chief Justice I 5 Law Refor-rn Committee ll (1972)"S Melbourne Uni. L.ilcv. 4110 at p.i150.

3. Law Reform Corrunission (N.S.W.-) Annual Report 1976, p.lO.

4. K. W. Wedderburn, "Reflec"tions on 'Law Reform ll , The Listener~ 6 May 1965, - 685 at p.685. Cf. J. Reetz, "Reflections on Continuity and 'Change in Law Reform" (1972) 22 Ur;i. Toronto L.J. 129 at p.140: .

S. Sir Samuel, Cooke," liThe Law Commission: rhe First Ten Years~Cl97o) 125·Ne", L.J. 1036 at p.1Q.37.

6. This is· the view of JoN. Lyon, "Law Reform Needs Reform". (ln4)~2· Osgoode H.L.J. 421 at p.431.

7. A. Diamond, "The Work of- the LaH

_ 11 _

....4. Tasmanian Law Reform C~mmission Annual Report 1975" p.3.The Commission concedes that the experiment was not verysuccessful.

15. Lyon, p.425.

16. Lyon, p.427.

17. Scotti~,1"'. Law Cornrnisslo~ J'I>;(umorandum 32 .. 1·S176 .. PP~45-4G.

18. Megarry, p.697.

19. Ibid.. - - - . .

20. Speech 'at" a' Sem"inar of the' Australian Cr"ime Prevention CauD25 October 1976, unreported.

21. As. pointed 'out by' ~ir'AntbQn'Y'"M~son, "Where Now?" (1976)4 Fed. Law Rev. 197.' .

22. Sir Alexander Turner' "Changing tl'ie'r.aw" (1968-9) !l Il.Z.U.L.·404 at p.417.

" a"C"." .23. See the comment (1.976) 50 Law Inst:Jo. (Vic) .266. The

pnS1.tlon is not"different in England: (1977) 74 Law Soc.Guardian Gazette 54.

24-. The.._co--ope'Patio~. achieved 'in C~nada ha~.been remarkable.See R. Basford (Minister" of Justice)" C~ B. A. Na tiona l,Septe~ber 1976, p.3.

25. National, November 1976, pp.~, 3 •.

26. Ibid, p.3

27. (1976) 50 Law Inst.Jo. (Vic) 266.

28. N.S.W. Law Foundation, Annu;Z Report 1975

29. Megarry, p.700.

30. Loa cit.

31. Megarry, p.698; Turner, p.425.

32. R.J. Ellicott, Speech at the Opening of the Third AustraliaLaw Reform Agencies Conference, 8 May 1976, Minutes andRecord of the Conference, p.34. "

33. P.J. Brenner and K.A. Lahey, "Skills Courses ll (1976) 14Osgoode H.L.J. 166 at p.207.

34. Sir Leslie Scarman liThe Age of Reform", London Times,5 Jan. 1977, Suppl., p.lI.

_ 11 _

.... 4. Tasmanian Law Reform C~mmission Annual Report 1975" p.3. The Commission concedes that the experiment was not very successful.

15. Lyon, p.425.

16. Lyon, p.427.

17. Scotti~,)-1. Law Cornrnisslo~ J'I>;(umorandum 32 .. 1'976 .. pp~45-4G.

18. Hegarry, p.697.

19. Ibid. . - - - . .

20. Speech 'at'-,3" Sem"inar of the' Australian Cr"ime Prevention Ccun 25 October 1976, unreported.

21. As. pointed 'o~t by' ~ir'AntbQn'Y'"Mason, "Where Now?" (1976) 4 Fed. Law Rev. 197.' .

22. Sir Alexander Turner' "Changing trie"f,aw" (1968-9) !l il.Z.U.L. ·40.4 at p.417.

" a"C": . 23. See the comment (1.976) 50 Law Inst:Jo. (Vic) .266. The

pnsition is not "ditferent iri England: (1977) 74 Law sdc. Guardian Gazette 54.

24-. The .. _co--ope'Patio~. achieved 'in C~nada ha~. been remarkable. See R. Basford (Minister" of Justice)" C~ B. A. Na tiona l, Septe~ber 1976, p.3.

25. National, November 1976, pp.~, 3 •.

26. Ibid, p.3

27. (1976) 50 Law Inst.Jo. (Vic) 266.

28. N.S.W. Law Foundation, Annu;"Z Report 1975

29. Hegarry, p.700.

30. Loa cit.

31. Megarry, p.698; Turner, p.425.

32. R.J. Ellicott, Speech at the Opening of the Third Australia Law Reform Agencies Conference, 8 May 1976, Minutes and Record of the Conference, p.34. "

33. P.J. Brenner and K.A. Lahey, "Skills Courses ll (1976) 14 Osgoode H.L.J. 166 at p.207.

34. Sir Leslie Scarman liThe Age of Reforrn ll , London Times, 5 Jan. 1977, SuppI-, p.lI.