Lawyers and Legislation
Presented at the Bar Practice Course, Banco Court, Brisbane
In my time as a barrister and as a Supreme, and then a Federal Court Judge, there has been a marked shift in the nature of the subject matter of litigation. In particular, the emphasis has moved away from resolution of disputes according to the common law and rules of equity. The emphasis is now very much upon resolution of disputes arising out of, or to be resolved in accordance with statutory regimes. This tendency may be more pronounced in matters which engage federal jurisdiction than in matters purely within the jurisdiction of the state and territory courts, but I believe that the trend can be seen in all litigation and in all courts. It is not surprising, given the increased activities of our legislatures in a whole range of areas, particularly in the regulation of commercial and social life, and notwithstanding attempts to deregulate markets.
There is, I perceive, increasing disquiet amongst lawyers concerning both the volume and quality of legislation. There is also concern about our capacity to have ready access to statute law as it applied at any relevant date, the history leading to the enactment and/or amendment of legislation, relevant subordinate legislation and relevant case law. These difficulties are largely the result of the sheer volume of legislation and the frequency of amendment. They are only mildly ameliorated by the use of technology.
Tonight, I shall try to identify the circumstances which have led to the present situation, question the process by which legislation is enacted, seek to identify ways in which that process might be improved and urge the legal profession to play a greater role in ensuring the appropriateness and quality of our statutory law. I shall do all of this in my capacity as a person who reads, construes and applies statutes, but has little knowledge of how they come to life.
The legal profession
In many ways, the legal profession tends to be a passive consumer of whatever the legislature chooses to serve up as legislation. Part of my thesis is that, as a profession, lawyers have a right and a duty to ensure the quality of our statute law in order to ensure the quality and fairness of the law as a whole. This flows from our existence as a learned profession. It is worth focussing on the meaning of this expression. Traditionally the three learned professions have been law, medicine and divinity. Although originally, entry to such professions was probably based upon practical, rather than theoretical training, these areas were, nonetheless amongst the first to be recognized as separate areas of study in academic institutions. Generally, substantial periods of study and high standards of individual probity are needed in order to qualify for entry.
As an aside, I should mention submissions which, whilst still at the Bar, I heard made in the Full Court in connection with an application for admission to practice or some similar matter. Senior counsel submitted that a degree from the QUT (or perhaps then, the QIT) was not a university degree. Although my recollection is hazy, I think that the admission rules then required a university degree as one possible qualification for admission. The submission was that traditionally, a university was an institution which offered courses in each of the three areas - law, medicine and divinity. The QUT (or QIT) did not offer courses in medicine or divinity, and so it was said that it was not a university, and that its degrees were therefore not university degrees. The submission was not well received. However it was a serious argument, ably put by an experienced and highly regarded practitioner and academic. I do not necessarily imply that he himself subscribed to it.
An American writer, Charles Donahue Jnr has defined a profession as follows:
The classic sociological definition of a profession is a group who make their living by employing their learning on behalf of other people by whom they are in some way compensated. For the group to be fully a profession, it must have: a sense of group identity; a great deal to say about, if not total control over, admission to the group; a system for passing on its learning to a new generation; norms of behaviour with regard to the exercise of its professional duties; and a system for enforcing those norms.
We should not underestimate the fact that we come to the profession with substantial education and training. Those qualifications put us in a special position of knowledge, and therefore power in connection with the law. Further, our virtual monopoly of the right to act in connection with legal matters re-inforces our unique position. That position gives us great personal benefit but also imposes obligations. Among those obligations is an obligation to use our training in the interests of the community as a whole, and not just in the interests of clients, ourselves or the profession. I suggest that our duty to the wider community includes a duty, as best we can, to maintain and improve the quality of the law as a whole.
In his paper Donahue examines the English legal profession of the 14th century, identifying it as comprising the common lawyers and the canon lawyers. On the common law side he focuses on the advocates, known as serjeants. Donahue concludes, perhaps tentatively, that the professional division between the common and canon lawyers may have isolated the common law from the influence of ongoing developments in continental Europe in both canon and civil law, leading to the sharp distinction which still exists between the common law system, in all its many emanations and the various emanations of the civil law. To my mind, this is not surprising. In the relatively short lifetime of the common law and statute law in Australia, we have managed to create a variety of different systems, whilst living on the one continental land mass, and notwithstanding the fact that for much of that time, we have looked to English authorities and English statutes for guidance in most respects. That professional divisions can have such a long-standing and dramatic effect on substantive and procedural law suggests that we should be wary of such divisions. For that reason, I consider that it is desirable that we think about the legal profession in a broader sense.
In examining the role to be played by the legal profession in shaping legislation it would be artificial to look at judges, barristers, solicitors or academic lawyers in isolation. It would be quite unsatisfactory from the points of view of these groups and the law generally if each were regularly to deal separately with government with respect to legislation. For that reason, I urge a united front in dealing with government on legislative matters. My references in this paper to the “legal profession” should be taken as including all judges, barristers and solicitors, both those in practice and those in employment, and legal academics, as the combined repository of legal learning in our society.
If we are such a repository then should we not play a substantial role in formulating, or at least considering carefully any innovation or change in statute law? To what extent are we doing so? And who is responsible for the very unsatisfactory state of statute law, particularly Commonwealth statute law, at the present time? My primary thesis is that the legal profession must become more actively engaged in the design of legislation, going well beyond the present level of such involvement. That involvement seems to consist of an invitation for “any suggestions”, which invitation is issued after the politicians, their advisers, party officials, pressure groups and public servants have largely settled the overall approach and shape of the legislation. If we are to have greater input, I suggest that it would be a lot better if we were to participate as one professional group, aiming to ensure quality legislation which produces no bad surprises such as fundamental inconsistency with other legislation, or other unforeseen consequences for the law as a whole, or for groups within our society.
Law and legislation
Setting aside arguments about whether Judges make law or not, there can be no doubt that the primary instrument for making and amending the law, including the common law and rules of equity, is legislation. I note in passing that parliaments, particularly the Commonwealth Parliament, show a disturbing tendency to let the administrators change the law by regulation, for example by declaring that certain statutory provisions will not apply in particular circumstances. The Corporations Act contains examples of this practice.
The law is produced by the society which recognizes it, which law then regulates that society. This we have learnt from the decision of the High Court in Yorta Yorta. In that case, reported at (2002) 214 CLR 422 Gleeson CJ, Gummow and Hayne JJ said at :
Laws and customs do not exist in a vacuum. They are, in Professor Julius Stone’s words, “socially derivative and non-autonomous”. As Professor HonorÉ has pointed out, it is axiomatic that “all laws are laws of a society or group”. Or as was said earlier, in Paton’s Jurisprudence, “law is but a result of all the forces that go to make society”. Law and custom arise out of and, in important respects, go to define a particular society. In this context, “society” is to be understood as a body of persons united in and by its acknowledgment and observance of a body of law and customs. …
Changes in society will therefore be reflected in changes in the law, which changes may themselves further change the society and the way it operates. I doubt whether anybody would dispute the proposition that the volume of legislative activity has increased substantially over the last 20 or 30 years. In fact I suspect that the expansion of legislative regulation probably started during, or after the Second World War and was, to a great extent necessitated by the events of that War and its consequences. It is difficult for us, almost all having been born after 1945, to appreciate those changes and their dramatic nature. We can only do so if we look at pre-war society through the eyes of our parents or grandparents, or through the media and literature.
I want to say a little about change. It is common, easy and boring to speak, indiscriminately and rhetorically, about change. I hope to be a little more focussed, addressing briefly some of the ways in which change has directly affected our work, and avoiding any rhetorical flourishes.
The changes which have dominated development of human society since 1945 fall into two main categories. The first, and more obvious area of change has been technological. Building on technological advances made during the War, scientists, inventors, industrialists and other entrepreneurs have made discoveries and inventions, and developed methods which have utterly changed many aspects of our working and personal lives. Technological change causes social change, and that is the second area in which change has so dominated society since 1945. However technology has not been the only driver of social change. Such change has also occurred as the result of changes in the ways in which we think about ourselves and our society, and the ways in which we express our thoughts about those matters, these changes also having been, to some extent, provoked by the War experience.
People are frequently challenged by change. Each of us, in one way or another, becomes attached to aspects of our life and work. We don’t want to see them go just because somebody else says that there is a better way of doing this or that. When change is occasional and incremental, it is easier to accommodate. But when it is constant and not readily seen as incremental, it produces its own social problems. We have come to realize that change, be it technological or social, comes at a price.
Many post-war changes have been quite startling for pre-war generations although, for later generations, even the most spectacular advance is only to be expected. From my own point of view the 1969 moon landing is perhaps the best example of this. It was undoubtedly a great achievement, produced by a combination of social and technological change. I say social change because without such change, there could never have been the necessary money or the will to spend it on that venture. I remember, in July 1969, Mr WA Lee sending us home from an Equity lecture at the University of Queensland in order that we might watch the moon landing. Many, perhaps most thought it amazing, almost beyond belief. I have never been able to see it in that way. To me it was the inevitable consequence of carrying out extensive and detailed research and mathematical calculation, as inevitable as it was that somebody from Europe would discover the Americas and Australia. I dislike myself for this blasÉ attitude. I think it is a product of the rigorous approach to scientific and mathematical studies at my secondary school, not that I was much good in those areas myself. I may have been a little too worldly about the moon landing, but most people would now accept that we have not yet identified the bounds beyond which human ingenuity cannot take us. That is a fundamental change in our perception of ourselves and perhaps carries with it the risk of hubris.
These aspects of change also pose a problem for legislators. They must strike a balance between, on the one hand, not increasing the discomfiture of some members of the community by re-inforcing the impact of rapid change and, on the other hand, failing to deal with the need to ensure that the law responds in a timely way to technological change and, to a certain extent, anticipates and accommodates future technological change.
We have also fundamentally changed our thinking about human beings, human society and the roles, rights, duties and relationships which are features of that society. Many of us remember a time when very few married women worked. For example, in the 1950s and 1960s the Queensland Education Department effectively treated marriage by a woman as a sackable offence. One never saw an apparently Aboriginal person or, save for the members of a few long-resident Chinese families, an Asian face, in Brisbane. Everybody knew that there were a few Aboriginal people living in squalor somewhere but in Brisbane, nobody knew where. In thinking and speaking of issues such as discrimination and interpersonal relationships we now express ideas which would never have occurred to most people prior to 1939, and we express those ideas with an openness and forcefulness which would then also have been rare. Such changes have necessarily been reflected in our law.
As I have said, change has its price. Technological change has reduced the demand for un-skilled, semi-skilled and even skilled labour, with obvious economic consequences for those affected, and associated social cost for them and for the wider society. In industrial law this has led to an increased emphasis on job-security, undermining previous perceptions that the master and servant relationship was effectively contractual. Indeed, even the term “master and servant” is rarely heard today. Social change has led to increases in single-parent families and families in which both parents are employed. Provision of child care services has therefore become a major social issue. Changes in our thinking about indigenous people and their pre-sovereignty societies have led to major legal and social issues concerning Aboriginal land rights. The populations of the world are moving, sometimes in response to political pressures, sometimes in response to economic pressures. Such movements have always been a feature of human society, but the relative ease of long-distance travel and widely shared knowledge of, or widely held perceptions as to the quality of life in other societies have caused a substantial increase in such movement, leading to attempts by nation states to regulate movement into their respective territories. These changes have all had legal consequences.
The horrors of the War led to an increased focus upon what it means to be human and, in particular, upon the individual person’s reasonable minimal entitlements, whether they be due from parents, an employer, the state or the world, usually represented by the United Nations Organization or one of its agencies. This focus on human rights has inevitably caused us to reconsider the proper role of government, and the line between individual rights and the government’s duty to protect the society which it governs.
There are, of course, many other examples of problems caused by change. However the point is that social and technological change interacts with the law and legal change, often in quite complex ways. Some changes cannot occur unless there is legal change. Other changes produce the need for new or altered regulatory regimes. Change produces different results for different people or classes. Unequal, even if not inequitable effects cause frustration, and frustration provokes disputes and unrest. A function of the courts is to quell disputes in order to avoid self-help. They must do so in accordance with law. But the law of a society is much more than a guide book for resolving disputes. It also prescribes rights and obligations as between the citizen and the state, and between citizens inter se. In other words it provides enforceable expectations as to conduct within our society. It is part of the complex environment in which our lives are lived. The complexity of the problems produced by change since 1945 have placed pressure on the legal system, the fundamental design of which reflects the needs of earlier times.
It is particularly important to keep in mind the fact that the law regulates the relationships between government and the governed. Much of the change to which I have referred has been reflected in the law governing those relationships, resulting in the law, and therefore the courts and the legal profession having a much expanded role in supervising the actions of government. This expanded role has, to some extent, been produced by the enhanced importance of public international law. Governments have been significantly affected by developments in that area, with the emergence of international agreements and treaties to which nation states accede, creating binding obligations, together with mechanisms for enforcement and the resolution of disputes. Interest in this area was again provoked by the horrors of the War. The Refugees Convention was an early example. It now causes significant problems for nation states. Technological changes affecting communications and travel have reinforced the need for agreements between nation states in a wide range of areas, as has the great expansion in international trade and commerce. Quite apart from expansion in the role, and enhancement of the standing of public international lawyers, accession to such treaties and agreements has the capacity to influence our approach to domestic law, even if the relevant agreement or treaty has not been incorporated into that law. If it is has been so incorporated, the effect is obviously greater.
This new international dimension has placed new obligations upon national governments and, through national government, on regional governments. Although enforcement of those obligations may be, in some ways, difficult, international agencies are always able to apply pressure to governments through public criticism which is heard by the electorate. Domestic pressure groups are also very vocal about the international causes which they espouse. All but the real rogue states feel a degree of pressure to comply with international obligations. In some ways, national governments have, in practice, lost some of the autonomy which they previously possessed.
Returning to domestic law, in traditional areas of the common law, such as tort and contract, there have been substantial changes. In recent years in Australia, for example, there has been a policy of limiting damages awards in connection with injuries suffered in the workplace and in motor vehicle accidents, and now an attempt to adopt a system of national disability insurance, the form of which is still unclear. On the other hand, in connection with physical injury suffered in some circumstances, and in connection with financial loss, governments have favoured the availability of legal redress against medical practitioners, pharmaceutical companies, banking corporations, financial advisers, insurers and corporations generally. Governments have done this by facilitating class actions and by adopting so-called consumer protection legislation, with relief of the kind provided by the Trade Practices Act, now the Competition and Consumer Act. These changes seem to reflect changing views as to the proper relationships between individual citizens and commercial undertakings and between traders or professional people on the one hand, and customers, clients or patients on the other.
Substantial change has also occurred as the result of a utilitarian perception that some aspects of the law were too complex or required standardization amongst the jurisdictions. Two Australian examples have been the Uniform Evidence Act and the Commonwealth Criminal Code, both devised in the expectation, or at least the hope that they would be adopted by all Australian jurisdictions. I shall return to the Criminal Code at a later stage.
Increased interest in individual rights has led to increased expectations as to government’s duty to the citizen, sometimes called an “entitlements mentality”. Governments which do not meet those expectations do so at their peril. And of course, both the traditional and new media encourage and inform such expectations. The wider range of government activity also makes government more complicated, and therefore more difficult. These factors mean that government’s choices as to whether, and how to legislate are often constrained by public expectations. All of this has consequences for the law and lawyers.
Inherent in what I have been saying is the proposition that the fundamental technological and social changes since 1945 have profoundly affected the role of government and the methods used to govern. “Government” in this context includes all three branches of government. These changes have not been gradual or incremental. They have occurred rapidly and have caused abrupt changes in our understandings of individual and collective rights and obligations, in the nature of the law itself and in how it works. Inevitably, the volume of legislation has expanded rapidly.
The decision to legislate
To this point I have been trying to explain why legislation has become such an important part of the law. Whilst our law was predominantly found in the common law and rules of equity, the volume of legislation was very small. It was possible for a parliament to take time to ensure that legislation was designed to serve a purpose, limited to what was necessary to achieve that purpose, and clear as to meaning. Today, the sheer volume of legislation and public expectations that government will act in response to any real or imagined shortcoming, have led to there being very little time to ensure quality in legislation and, in any event, little motivation to achieve such quality rather than merely to satisfy public expectation and political self-interest.
In my experience lawyers, unless they are also members of parliament, know little about how legislation is created, save in areas which are of particular importance to themselves, such as legislation concerning the profession itself, the bread and butter aspects of their practices or, in the case of academics, particular intellectual interests. We are generally aware of the process by which laws are formally enacted by the presentation of a bill which, usually gradually, wends its way through the Parliament until it is adopted in final form and receives the Royal Assent. But we do not know much about the process by which the need for the law is identified and formulated, or the drafting process which follows, leading to its introduction into Parliament. The process has attracted some interest in the course of this year as a result of the introduction into the Australian Parliament of a number of pieces of substantial and long-awaited legislation, with the government demanding that such legislation be examined, debated and passed within very short time frames.
It seems that governments generally subscribe to the well-known aphorism attributed to Bismarck that, “The lesser the people know about how sausages and laws are made, the better they sleep at night.” This version comes from Wikiquotes. You will, however, be not at all surprised to hear that the Americans now claim the observation for an American lawyer called Saxe, on the basis that only a lawyer would have the insight necessary to coin it. This approach might be thought unjustifiably to over-estimate the talents of the virtually unknown American lawyer in question, at the expense of one of the great European leaders of the 19th century. That’s American lawyers for you. However I digress.
Much major legislation seems to arise out of election promises, which is a little worrying, given the way in which such promises are developed and made. Usually, the promise or policy announcement will have been made in a general way, designed to carry a particular message to voters about the benefit of the policy to the targeted group of electors, and as little as possible about its effect on others. One suspects that little thought will have been given as to how the promise will be met, or as to the adverse consequences which may flow from it. The more obvious adverse consequences may be highlighted by the opposition parties, but the plethora of policies at election time will generally prevent in-depth consideration of the pros and cons of a particular policy. Having made a promise, an elected government may feel obliged to carry it into effect, although we know that this is not always the case. Assuming that the promise is to be honoured, it may be a little too late to worry about the pros and cons, not a comfortable position in which to develop the relevant legislation.
Other legislation emerges in response to problems or perceived problems, very often when they cause concern that inactivity in the area may affect the government’s prospects of re-election. Two sources of such motivation for legislative activity are the media and pressure groups. In the case of the media the issue will probably have been considerably simplified and again, the pros and cons will not have received balanced consideration. Examples of this are the media discussion of sentencing levels, mandatory sentencing, immigration and so-called tax loopholes about which I shall say more at a later stage.
By definition a pressure group, in pressing for legislative change, is advancing a policy of its own. The proposal may or may not reflect mature and impartial consideration of its advantages and disadvantages, but neither the government nor the public has any reason to assume that it does. Governments respond to media pressure and the submissions of well-organized pressure groups. Pressure groups maintain substantial representation in seats of government. As I recall, in Washington DC the National Rifle Association’s headquarters is directly opposite the Australian Embassy, but the NRA Building is much bigger. Government response to media pressure or pressure from organized lobby groups may not necessarily be informed by a consideration of wider community interests.
Government agencies also generate legislation. In many cases the relevant agency will have identified a real weakness in the existing law, which weakness requires fixing. In others, a request for legislative change may reflect a policy of the relevant agency, more designed to protect its own patch, or to make life easier for its staff than to facilitate good government. Once again, there is no reason to assume that all likely consequences of such a proposal will have been identified, or its advantages and disadvantages assessed.
The need for a fair assessment of the advantages, disadvantages and consequences of proposed legislation is obvious, but it is not clear that it regularly occurs, unless one accepts that the political survival of a government is an end in itself, that in the words of Catch 22, “What’s good for Milo Minderbinder is good for the Army.”
We must also keep in mind the fact that governments feel the need to be seen to be doing something. They have a substantial corps of media consultants and press officers whose sole purpose in life is to communicate the government’s actions to the media, presenting them in the most favourable light. For example, in the 1970s, the state government departments used to put out regular glossy brochures trumpeting their recent “reforms”. These days, any change seems to be a reform. The brochures were circulated to practising lawyers. I recall picking up one such brochure in our chambers waiting area. It had been issued by the Attorney General’s Department and asserted that the department had been very busy reforming the law relating to dividing fences in order to facilitate the resolution of neighbourhood disputes. Now I would not have thought that even in the lawless 1970s, in the outback Brisbane suburbs, there was any real threat to the peace, order and good government of Queensland, justifying significant amendment to long-standing legislation concerning dividing fences. What innovation could there possibly have been? I was prompted to look at the amending legislation in question. It made minor procedural changes, but nothing else. Of course, the Attorney General’s Department was not then in charge of much legislation of its own. I suppose that it had to say something, and perhaps that is the problem.
Of course, the decision to legislate is a policy decision for the executive branch. But once that decision has been taken, there must be mature consideration of the best way to give effect to that policy decision. There will generally be more than one way of doing so. The choice amongst the alternatives may benefit or adversely affect one group or another in the community. One approach may create complications in other areas of the law, whilst another approach may not. One approach may be more or less likely to produce a constitutional challenge. Another approach may be more or less efficacious in producing the desired result. To some extent, these are also policy issues which, again, are for the executive branch. However I cannot see how those decisions can be made on an informed basis, unless there has been significant legal input concerning questions such as constitutional validity, likely effects on specific stakeholders and others, and possible conflict with other aspects of the law. These are largely legal questions. There seems to me to be no good reason militating against proper consultation at this early stage, before time and money have been expended in drafting. It may be that some such process occurs within the public service, but as far as I can see, it is not conducted in public, and apart from strategic leaks, there is little disclosure of any such consideration.
My own limited experience with legislative reform supports my scepticism as to the decision-making process concerning the desirability and form of legislation. In the late 1980s or early 1990s, the Commonwealth decided to develop a uniform criminal code. I have been told by somebody who knows that a conscious decision was made not to take as a model, the Griffith Code, then in force in Queensland, in Western Australia and, in part, in Tasmania, there being equivalent legislation in other former British colonies. I understand that this decision was made in the belief that the Commonwealth would not be able to persuade New South Wales or Victoria to accept what would have been seen as the “Queensland model”. In the result, the Commonwealth produced a model which, in my view, is unique in its approach and, in many ways alien to our traditional thought and language concerning the criminal law.
As part of the drafting process, a committee headed by, I think a New South Wales District Court Judge, sought submissions concerning the proposed draft provisions relating to offences involving assault. The request came to a Judges’ meeting in the Supreme Court. We appointed a couple of Judges to give careful consideration to the proposal and eventually indicated that there were significant structural difficulties with the approach. As the Australian court most experienced with codified criminal law at first instance and on appeal, we foolishly thought that our views would be given some weight. Our views were, in fact, summarily, and not very courteously dismissed. I realize now that such consequence was inevitable, given the earlier decision not to base the new model on the Griffith Code.
My other close encounter with the development of legislation was in connection with the creation of cartel conduct offences, and the conferment on the Federal Court of jurisdiction to conduct trials on indictment for those offences. This was, for the government and the Federal Court, a very important project, and the Court established a committee to deal with government on the issue. The committee initially consisted of four Judges. However only two (Lander J from South Australia and I) saw the project through to the end. We both had criminal experience as the result of Supreme Court service. We attended a number of very lengthy meetings with representatives of the Attorney General’s Department and the Treasury. Our line always was that the legislation needed only to define the offence and confer jurisdiction to hear a charge on indictment, and that such conferment would implicitly confer all necessary power. We failed miserably in our advocacy. It was, however, interesting to watch the machinery of government at close quarters.
First, the driving force for the legislation was Treasury’s desire, perhaps on behalf of the ACCC, to apply criminal sanctions to cartel conduct. That was undoubtedly a policy decision for government. In effect, it fell to Treasury to define the offence. Keeping in mind the fact that a trial judge has to explain the law to the jury, the need for simplicity is obvious. This is what Treasury came up with:
44ZZRF Making a contract etc. containing a cartel provision
(1) A corporation commits an offence if:
(a) the corporation makes a contract or arrangement, or arrives at an understanding; and
(b) the contract, arrangement or understanding contains a cartel provision.
(2) The fault element for paragraph (1)(b) is knowledge or belief.
44ZZRG Giving effect to a cartel provision
(1) A corporation commits an offence if:
(a) a contract, arrangement or understanding contains a cartel provision; and
(b) the corporation gives effect to the cartel provision.
(2) The fault element for paragraph (1)(a) is knowledge or belief.
You will appreciate that the offence pursuant to s 44ZZRF is making a contract or arrangement which contains a cartel provision, whilst the offence pursuant to s 44ZZRG is giving effect to a cartel provision. It seems likely that in most cases, both offences would be charged.
For those not yet initiated into the mysteries of the Commonwealth Criminal Code, it distinguishes between the physical elements of an offence and accompanying fault elements, all of which must be proven. The faults elements are generally intention to do an act or produce a result, knowledge or belief which accompanies an act, recklessness in performing an act or negligence in doing so.
Obviously, the big question arising out of ss 44ZZRF and 44ZZRG is the meaning of the term “cartel provision”. The term is defined in s 44ZZRD. It extends over 4 or 5 pages. I do not propose to read it all to you, but I shall try to give you a taste of it. Subsection (1) provides:
For the purposes of this Act, a provision of a contract, arrangement or understanding is a cartel provision if:
(a) either of the following conditions is satisfied in relation to the provision:
(i) the purpose/effect condition set out in subsection (2);
(ii) the purpose condition set out in subsection (3); and
(b) the competition condition set out in subsection (4) is satisfied in relation to the provision.
You will see that a provision is a cartel provision if it contains either a purpose/effect condition as defined in subs (2) or a purpose condition as defined in subs (3). In order that a provision be a cartel provision it must also satisfy the competition condition set out in subs (4). In effect subs (4) requires that two or more parties to the contract, arrangement or understanding are, or are likely to be in competition in the supply or acquisition of goods or services. It is, itself, a complex provision. However, for present purposes, it is subss (2) and (3) which best exemplify my concern. They provide:
(2) The purpose/effect condition is satisfied if the provision has the purpose, or has or is likely to have the effect, of directly or indirectly:
(a) fixing, controlling or maintaining; or
(b) providing for the fixing, controlling or maintaining of;
the price for, or a discount, allowance, rebate or credit in relation to:
(c) goods or services supplied, or likely to be supplied, by any or all of the parties to the contract, arrangement or understanding;
(d) goods or services acquired, or likely to be acquired, by any or all of the parties to the contract, arrangement or understanding;
(e) goods or services re-supplied, or likely to be re-supplied, by persons or classes of persons to whom those goods or services were supplied by any or all of the parties to the contract, arrangement or understanding; or
(f) goods or services likely to be re-supplied by persons or classes of persons to whom those goods or services are likely to be supplied by any or all of he parties to the contract, arrangement or understanding.
(3) The purpose condition is satisfied if the provision has the purpose of directly or indirectly:
(a) preventing, restricting or limiting:
(i) the production, or likely production of goods by any or all of the parties to the contract, arrangement or understanding; or
(ii) the capacity, or likely capacity, of any or all of the parties to the contract, arrangement or understanding to supply services; or
(iii) the supply, or likely supply, of goods or services to persons or classes of persons by any or all of the parties to the contract, arrangement or understanding; or
(b) allocating between any or all of the parties to the contract, arrangement or understanding:
(i) the persons or classes of persons who have acquired, or who are likely to acquire, goods or services from any or all of the parties to the contract, arrangement or understanding;
(ii) the persons or classes of persons who have supplied, or who are likely to supply, goods or services to any or all of the parties to the contract, arrangement or understanding; or
(iii) the geographical areas in which goods or services are supplied, or likely to be supplied, by any or all of the parties to the contract, arrangement or understanding; or
(iv) the geographical areas in which goods or services are acquired, or likely to be acquired, by any or all of the parties to the contract, arrangement or understanding; or
(c) ensuring that in the event of a request for bids in relation to the supply or acquisition of goods or services:
(i) one or more parties to the contract, arrangement or understanding bid, but one or more other parties do not; or
(ii) 2 or more parties to the contract, arrangement or understanding bid, but at least 2 of them do so on the basis that one of those bids is more likely to be successful than the others; or
(iii) 3 or more parties to the contract, arrangement or understanding bid, but not all of those parties proceed with their bids until the suspension or finalisation of the request for bids process; or
(iv) 2 or more parties to the contract, arrangement or understanding bid and proceed with their bids, but at least 2 of them proceed with their bids on the basis that one of those bids is more likely to be successful than the others; or
(v) 2 or more parties to the contract, arrangement or understanding bid, but a material component of at least one of those bids is worked out in accordance with the contract, arrangement or understanding.
In demonstrating the complexity of the section I am not simply indulging in some sort of cheap party trick. Obviously, not all of the various alternatives will be relied upon by the prosecution in all cases, but experience suggests that prosecutors will try to keep their options open. To the extent that the case is presented in various alternative ways, the trial Judge will have to explain a significant number of subtle distinctions to the jury, the members of which will have no familiarity with the theory of competition, the market in question or the notion of cartel conduct.
The Court wrote to Treasury saying that we thought that the definition was all but impossible to explain to a jury. We were told that Treasury had every faith in our ability to do so. That was very reassuring.
The definition of “cartel provision” is by no means the only difficulty which will face a judge and jury in a cartel case. I mention it here only because it illustrates the difficulty associated with choosing the path to be taken in giving legislative effect to a policy decision, and the need for involving lawyers at an early stage, perhaps before the actual drafting process has commenced. Secondly, it demonstrates a perception within government that if one uses enough words, in enough different combinations, it is possible to predict and proscribe all possible conduct which those pressing for the legislation would like to outlaw, if only they could foresee the whole range of possible human activity in the relevant area. A similar misconception about the power of language and the power of legislation underpins much of the taxation legislation. Of course, the reality is that one cannot foresee every possible way in which a determined cartel operator or taxpayer may seek to avoid the operation of a particular statutory provision. Perhaps it would be better to wait and see, closing gaps in the legislation as they appear, but also accepting that there simply has to be a limit to the extent of statutory regulation.
The continuing sanity of lawyers really depends upon legislation being capable of comprehension by a single human mind. The complexity produced by such drafting techniques challenges all but the most exceptional of minds. Further, if there is any justification for the proposition that legislation should be drafted with the lay person as the intended addressee, a proposition which I challenge, then drafting of this kind is not likely to serve that purpose.
I said that Lander J and I had urged a minimalist approach, conferring jurisdiction and leaving it to the Court to make relevant rules. In this respect we were unsuccessful beyond our worst imaginings. The statutory provisions deal with a mish-mash of procedural matters. For example, a colleague recently reminded me of s 23EJ of the Federal Court Act which is one of many provisions dealing with the empanelment and handling of juries. That section provides:
(1) A juror is discharged if the juror is not selected in a ballot conducted under section 23DE in relation to the jury.
(2) A juror is to be taken to be discharged if the juror dies.
Despite such provisions, the Act does not deal exhaustively with procedural matters, so that some rules are still necessary. A number of factors led to this unsatisfactory outcome. Perhaps the most significant was that the relevant Commonwealth agencies had little previous experience with criminal procedure statutes, save of course for the CDPP. There was a perception, I think, that the Federal Court’s civil case management system offered a basis for the management of lengthy criminal trials. There was also a tacit assumption that the Court would be able to compel early disclosure of the defence and of evidence to be led for the defence. There are still traces of that thinking in the legislation but in reality, such an approach to criminal trials is not realistic.
There were other ambiguities in the process. First, as part of the price for getting the States to agree to the creation of the offences, jurisdiction was also to be conferred on the State Supreme Courts. That raised the question of the practice to be applied in the Federal Court. If the indictment were presented in a state court, the state practice would generally apply. But nobody thought that it would be a good idea for the Federal Court simply to pick up the relevant state practice pursuant to the Judiciary Act. A further complication was a perception that jurisdiction in cartel offences might be only the beginning of the conferment of criminal jurisdiction upon the Federal Court. This possibility created confusion in our thinking, leading us sometimes to speak as if we were only drafting for trials of cartel offences, and at other times, to take a broader view, anticipating future conferments of jurisdiction. Another complication was the extent to which the general provisions of the Commonwealth Criminal Code were to apply. Some interesting questions remain to be addressed in that respect.
Overall the outcome of the project is that we have a brand new offence, couched in terms which will be difficult to explain to a lay jury, and an overly prescriptive set of legislative procedural provisions which will probably be little used, even in the unlikely event of a flood of cartel prosecutions. Finally, we have a trial process which will resemble, in many respects, the trials which have previously been conducted in the Australian states and territories, but will differ in ways which cannot easily be anticipated.
You now know what went into that particular sausage.
Then comes the drafting exercise. Many things may be said about statutory drafting, but a good starting point seems to be identification of the relevant addressee. Who is going to read this document and act or advise upon it? In my view this is the point at which present drafting practice has lost touch with reality. There is no significant likelihood that the person in the street will get his or her copy of a relevant statute, sit down and read it in order to make a decision as to how he or she will act. That may be the ideal situation, but it is a long way from current reality. Drafters pretend that people actually do this. To be fair to the drafters, the politicians have told them to take this approach. In fact, the addressee, the “consumer of drafting services” if you like, is the lawyer who advises on the legislation, or the public servant who has to administer it, usually acting, where necessary, upon legal advice.
Not long ago I read, or somebody told me that scientists use Greek and Latin words as scientific terms because those languages are not in common use, and so the meanings of words do not change in the way that the meanings of words in regular use change. That makes perfect sense to me. Rather than feeling guilty about the language in which our legal heritage is expressed, we should perhaps ask whether such language does not give more precise meaning than can otherwise be achieved. I am not only speaking of the use of words from other languages. Good English words such as “thereto” and “thereof” are also unpopular but may contribute to more precision when used appropriately. It is, after all, not difficult to understand such language if one has a reasonable education, a dictionary and the capacity for a moment’s thought. If legislation is truly directed to lawyers, then there can be no objection to the use of technical terms.
My experience with the cartel offence legislation brought home to me an observation made some years ago by a colleague. He said that there was a significant difference between American legislative drafting practice and the Australian practice. The American practice, he said, was to draw legislation in wide terms and leave it to the executive and the courts to work out the detail. On the other hand, in Australia, we try to put it all in the act. Now I don’t know much about American statutes but my limited experience suggests that this observation is correct. Certainly, the Australian practice tends towards a very detailed approach to the construction of the legislation and the mechanics of its operation. Further, it is generally still necessary to promulgate detailed regulations to support the legislation. I have already said something about this subject in connection with the drafting of the cartel legislation. It may well be that overly detailed legislation is actually less likely to achieve the object of the legislation than is broader legislation, simply because, in the latter case, the focus of any construction exercise will be the broad purpose and apparent generality of operation of the statute, rather than the detailed procedures and definitions generally found in the former.
A second consideration is parliamentary time. Does Parliament have the time to address a legislative proposal which deals in detail with mechanical matters, as opposed to laying down broad principles, rights and duties? If it does not have the time to proceed, clause by clause, through the bill, then it is unlikely that the product will be good legislation. This will certainly be the case in Australia, if the Commonwealth Parliament continues to intrude into the operation of areas traditionally performed pursuant to state and territory legislation, such as hospitals and schools, where the substance of the legislation is inevitably regulatory in nature.
We have to ask why Parliament would choose to go into more, rather than less detail. One possible reason is a fear that delegated legislation may be invalid in circumstances in which, if the subject matter had been dealt with in the relevant act, there would have been no problem. Another possible reason is the legislators’ fear of the courts and the legal profession. There is a perception that the more that is said, the less likely it is that the lawyers will be able to overcome the true statutory intention. We must concede that some lawyers have advanced apparently unarguable submissions concerning the construction and/or operation of statutes, but the thing is that some of them have done so successfully. In any event there is no real reason to believe that more words, rather than fewer are likely to be more successful in communicating the legislative purpose. Perhaps more attention to identification of that purpose would help. Finally, detailed provisions as to the operation of an act may be designed to accommodate particular pressure groups which have interests in the process, rather than the purpose to be achieved by it.
Access to legislation
One cannot speak about legislative drafting without saying something about the taxation legislation. The rot started in the 1960s in response to a series of relatively simply schemes to minimize tax by reference to the relatively simple provisions of the Income Tax Assessment Act 1936. At that time, too, in response to the gradually increasing rate at which the Act was being amended, revolutionary technology emerged for keeping up with the amendments and the cases. It was the CCH loose-leaf tax service, in three volumes, as I recall. It had curious page and paragraph numbering. I recall Sir Nigel Bowen saying that they were used because one day, it would all be computerized. It was certainly a great aid to students and practitioners. The format has been adopted in many other legislative areas. However it has been the victim of its own success. In many areas the length of legislation, the number of amendments and the volume of cases make it almost impossible to use those services for their primary purpose – understanding the relevant legislation as a whole and construing individual sections, simply because associated sections are separated by pages of annotations. In effect, we need a pamphlet copy of the legislation to understand how it works and to construe it, and the loose-leaf service to discover historical details and what the courts have said about it. Although my experience with the use of online services is very limited, they do not seem to me to solve the problem.
An associated problem is the frequency with which legislation is amended. Such frequency leads to the need for almost annual replacement of pamphlet copies, to the extent that they are still available.
It is generally necessary that we be able to identify the precise wording of relevant provisions at relevant points in time. That can be difficult. It shouldn’t be. The online statutory services help but I, at least, still find it necessary to print out the different versions for detailed comparison.
There must be a doubt as to whether ongoing, piecemeal amendment of statutes is consistent with the role of the law. At least part of that role is the provision of certainty as to the rights and obligations which a statute purports to regulate. Statutes are not the playthings of parliamentarians, political parties or public servants. The community’s best interests may well be better served by the greater certainty found in a more disciplined approach to drafting and amendment. Perhaps there should be a general rule that save in emergencies, legislation should be amended only once every five years. Such a rule might force legislators and drafters to identify their goals more clearly, and to think more deeply about the ways in which they are to be achieved.
I do not overlook the profession’s contribution to this problem, particularly in the area of taxation. There can be no doubt that over the years, the tax avoidance industry has fought a ferocious war in seeking to avoid the operation of sections which seem to have plain meanings. We cannot complain that Treasury has fought back in order to protect the revenue. However, as has been said by a few columnists in recent months, there seems to be a mindset in Treasury that any money left with the citizen is a lost opportunity to tax, and that a “saving” is made whenever the liability to tax is extended, whilst to allow any form of concession is a “spend”. Such an attitude is not conducive to good tax legislation.
Other drafting techniques
Before turning to what we might do about this problem, assuming that you agree that there is a problem, I want to identify two drafting techniques which really annoy me. The first is the use of examples. This technique exists in two forms. One is the “second person” example. “If you do this, you may do that”. The second form is that adopted by the now former Prime Minister, in discussing the National Disability Insurance Scheme: “John has an income of $50,000 a year, a partner, two children and a dog. The dog falls ill, etc”. Believe it or not, this approach is also used in some legislation.
The trouble with examples is that they take the focus off the principle in question. Legislation is about categorization of conduct, property and circumstances on the basis of identifiable characteristics. It will always be impossible to foresee all of the events or circumstances in connection with which a statute will be engaged. If the criteria for the categorization of subject matter are clear, then neither a simple, nor a complex example will help. The first will add nothing, and the second will be too specific to offer guidance in other cases.
The second technique which I wish to condemn is the practice of providing in legislation that in certain circumstances, a court “must” do something. Parliament may prescribe that in certain circumstances, a party will have a particular right or obligation. That is the legislature’s business. If a court fails appropriately to recognize such a right or obligation, the remedy is an appeal. To use mandatory language, addressed to the courts serves no useful purpose and runs the risk of at least appearing to undermine the separation of powers.
What can we do?
I suggest that the legal profession has both an obligation to ensure the quality of legislation and an interest in so doing, going beyond pro forma and last minute consultation which seems to be the only input that we generally have. Our capacity to demand greater input will depend very much upon our fostering a public perception that lawyers are especially well-placed and willing to offer objective comment upon proposed legislation so that legislators ignore us at their peril. We should demonstrate our willingness and competence to participate in the legislative process in the public interest. Such participation would necessitate a system of liaison with government to ensure that we receive early notice of proposed legislation so that we can make submissions concerning the general approach to be adopted, as well as participate in the detailed drafting.
We may have to be selective about the range of legislation which we take on, but that would depend upon available resources. Presently, our participation in legislative drafting depends largely upon the voluntary involvement of ad hoc groups. No doubt the number involved could be expanded. However it may be that, in due course, the profession should establish an institution dedicated to setting and maintaining high standards in legislation.
No doubt many of you will think that these proposals are unnecessary or impossible to implement. However I suggest that if we are the real repository of society’s understanding of the law, then it is critical that we make our learning and skills available in order to advance the public interest in a just and efficient legal system. For too long, we have allowed the politicians and public servants to dominate law-making. For years the outcomes have been declining in quality. If war is too important to be left to the generals, then law is too important to be left to career politicians whose primary motivation is often electoral survival. They may be supreme in developing the relevant policy, but implementation is a different thing altogether. For us, it is a matter of both interest and duty. A good sausage is worth the effort.