Some Observations as to why Toongabbie Legal Centre is Important
Toongabbie Legal Centre
It is a great honour to be asked to speak to you this evening; it is a great pleasure to be here. This evening, I would like to make a few observations about our legal system and the law, and why this centre, and the people who participate in running it, are so important to that legal system and that law.
Let me begin by identifying one of the most significant challenges that Australia faces in the coming decades: the development and strengthening of the trust and confidence in, and sense of ownership of, the legal system: that is the administration of justice, by the whole community and by the marvellously diverse and different communities within that one community.
Systems of power can survive for periods of time, sometimes long periods of time and sometimes far longer than one would like, by fear, coercion, and the exercise of brute sovereign will alone.
A system of justice, however, whilst requiring instruments of coercion, ultimately rests on the trust, confidence and consent of those whom the system serves.
How do we seek to develop and maintain that trust, confidence and consent in our legal system and in our law?
It will be achieved, not by one policy, or by two measures, or by three speeches. It will be achieved by those in the legal system and those in our community recognising the question, the challenge, and working to achieve that trust, confidence and consent. An organisation such as the Toongabbie Legal Centre is important in this process.
Let me give you some illustrations from my life, my world, as it were, as to these matters.
How can judges of senior courts help in this process – in a day-to-day way?
First, take law and legal principle. In a society, a community, of so many nationalities in Australia, basing a legal system on rule alone is fraught with the risk of alienation. Many people of my generation have heard judges, in years gone by, say:
“It may seem unjust, but that is the rule. That is justice under law.”
The recipient of this might say: “What rule? Whose rule? Not my rule. Must be another man’s rule.”
Law and rule must be based on, and derived from, principles of justice and fairness. Law is not merely an intellectual process or exercise. It is the embodiment of rules and principles governing civilised and civil behaviour in society, reflecting the norms and values of those whom it serves. It must have the capacity to coerce, because it must have power to deal with those who would exercise their own power against others.
Law must have an independent will, consent, trust and support to ensure that the power of the State and of powerful individuals and groups does not harm or cause injustice to others in the community and to ensure that women, children and men can live their lives free of fear, violence, and the exercise of arbitrary power.
Thus, the development of legal principle by the courts and the enactment of statutes by the Parliament should always recognise these basal aspects of law. It is your law; it is your legal system.
The second way that judges in senior courts can develop and maintain this confidence and trust is in the way they treat people. That involves recognising the apprehension and concern, sometimes fear, that people have in dealing with the courts. This is understandable. Courts can be the instruments and places of disaster – prison upon conviction of crime, homelessness after eviction for debt, bankruptcy and destitution, deportation to a cruel and harsh place from which escape had been made. These results may be just: the crime may have been wrongly committed, the debt may not have been repaid, the person may have no foundation to claim a right to reside. But, if these things are done with what seems like a cold eye and a callous hand, the harshness of the otherwise just result becomes that much more hurtful, and resentment is bred.
Let us imagine a judge who presides two or three times a year over murder trials. She presides over a trial about a tragic, but vicious, murder. A man stabbed another man. Their relationship had been troubled and contested. Both families were present during the whole of the trial – without violence, but both groups were deeply hurt and suspicious of the other. The judge handled the jury and the trial in an impeccably fair, just and considerate way. At the conclusion of the trial, the jury convicted. But they then, before leaving, thanked the judge for how she had conducted the trial. This was thanks thought due by these 12 people not only because the judge had handled the trial with consummate skill, but because they appreciated the gravity and importance of what they had been doing. These 12 people no doubt spoke to many others later, and those many others perhaps spoke to others later about the process that those jurors had undergone. The community became a little more bonded to its legal system.
When the judge was driving out of the court car park, the family of the accused (now the guilty offender, likely to spend at least 20 years in prison) were in a group close to the judge. They all looked at her, and two nodded to her in resigned and respectful acceptance. They knew that their son and their brother had received the fairest of trials. In this kind of fierce adversity and calamity of the human condition, an accepted system was the instrument of the weight of lawful and just State power. It involved a jury; it was not a member of some privileged caste inflicting a judgment or a punishment. It was the community acting. Everyone involved understood this intuitively.
I said imagine this. In fact it happened. It happens daily, as judges and jurors and counsel go about their lives and their work.
Last year, in 2013, the Full Court of the Federal Court set aside a decision of a tribunal because the treatment of the applicant by the tribunal was such as to display an apprehension in a reasonable person that a fair hearing was not given. Within the reasoning supporting that decision, it was said that the apparent fair treatment of a person before a tribunal involved the recognition of the dignity of the applicant in how the hearing was conducted and that that recognition was an inhering element of fairness in the exercise of State power.
Law is life, but it is philosophy and history too; it is how we organise our lives and the power that surrounds us. It is not dry; it is not lifeless; it is the relationship of people, philosophy, ethics, and power.
Why are legal centres such as the Toongabbie Legal Centre important?
Such places are important, not only because they help people find solutions to problems, often pressing ones; but also because such centres are other instruments of the binding of people to the law and providing a vehicle for expression of a sense of justice.
Such centres are not a substitute for a properly funded system of legal aid. I do not wish to be political in what I am about to say, but the inadequacies of the systems of legal aid in Australia might be thought to be a stain on this country’s sense of justice.
But centres such as Toongabbie are small but important parts of a system, patchwork and palimpsest though it may be, that binds people to a just organisation of power.
Such centres also inculcate, in people who work here, some of the fundamental aspects of the life of the law and its practice. The law is a profession; it is not a business. It is a profession built on learning and service.
Another great challenge facing the law and the legal system in Australia is the cost of engaging the system and its participants, and the attitude to practice of many within the legal system.
I have elsewhere spoken of Type A practitioners and Type B practitioners – the difference between them being their response to instructions. Type A practitioners seek to understand the client’s problem, and solve it as quickly and as cost effectively as possible. Type B practitioners see the instructions as the structure of a fee production unit.
I recently met a young lawyer who had been in practice for four years. She said she studied law because she wanted to make a respected career helping people. She said that for four years the only thing her supervising solicitors had commented upon about her work was her apparent inability to extract enough money out of each of her files. This kind of attitude drives out those who would aspire to be Type A practitioners and promotes those who might aspire to be Type B practitioners.
All those interested in a healthy and just society should support the endeavours of Type A practitioners and institutions. The Toongabbie Legal Centre is a Type A institution. Many law firms, solicitors, and barristers are Type A practitioners.
A Type A attitude is not restricted to those who participate in pro bono service. It is a state of mind or will that promotes the law as a binding agent of civil decency and justice, and for many people doing so, earn an appropriate living. Such practitioners, however, do not view the law as a tool for moneymaking.
The correct approach to the practice of the law is vital to the health of society. As I get older, I seem to understand more, but then less, about the law. That is because it has a resonance and pattern of complexity reflecting life. Rules are easily stated; justice is rarely simply and easily discovered; but justice is always worth the struggle, and it is generally there.
This is not the first speech that I have finished (and it will not be the last) by quoting one of the greatest lawyers of all time, Oliver Wendell Holmes, speaking in 1897 to Boston University law students about the law and its soul, if properly conceived. He said in a passage concluding the speech (now found in an essay entitled “The Path of the Law”), the following:
“To an imagination of any scope, the most far-reaching form of power is not money, it is the command of ideas…We cannot all be [philosophers]… An intellect great enough to win the prize needs other food besides success. The remoter and more general aspects of the law are those which give it universal interest. It is through them that you not only become a great master in your calling, but connect your subject with the universe and catch an echo of the infinite, a glimpse of its unfathomable process, a hint of the universal law.”
Friday 28 November 2014