Alternative Law Journal
The Hon Sir Anthony Mason AC KBE[*]
This article is not intended to paint a comprehensive picture of Australia’s contribution to the developing legal world. There have been a number of government, institutional and professional initiatives in Pacific, Asian and African countries which lie beyond the field of my experience and about which I am not qualified to speak. What I have to say relates mainly to the contribution made by Australian courts, judges and retired judges as well as the Australian Institute of Judicial Administration (AIJA) and the Judicial Commission of NSW (JCNSW) in the developing legal world.
Within the framework of the South Pacific Forum, Australia maintains a list of judges and retired judges, settled by the Chief Justice of Australia, who are willing to undertake judicial service in the South Pacific area, when asked to do so by nations that are members of the Forum. Forum members have difficulty in providing from their own ranks the number of judges, especially appellate judges, that are required. The consequence has been that a miscellany of judges from Australia, New Zealand, the United Kingdom, Papua-New Guinea, Nigeria and other Commonwealth countries serve in the smaller Pacific Island and Indian Ocean jurisdictions.
Justice Beaumont of the Federal Court and Justice Burchett, formerly a judge of that Court, are judges of the Court of Appeal of the Kingdom of Tonga. They are also Privy Councillors of the Kingdom of Tonga, the Privy Council of the Kingdom having a jurisdiction to advise the monarch in certain categories of cases. Justice Beaumont and his colleague Justice von Doussa are Acting Judges of the Court of Appeal of Vanuatu, while Justice Sheppard, formerly of the Federal Court, sat on the Court of Appeal of Western Samoa for some years. Justice French and Justice Lee are Judges of the Supreme Court of the Cocos (Keeling) Islands. The Federal Court has established court libraries in both Tonga and Vanuatu, and keeps up to date the Commonwealth Law Reports (CLRs) that belong to the Supreme Court of Kiribati and another series of reports in the library of the Supreme Court of Samoa.
Robin Millhouse who was a judge of the Supreme Court of South Australia is now the Chief Justice of Kiribati. Sir Harry Gibbs, after his retirement from the High Court, served as President of the Court of Appeal of Kiribati. Among the Australians who sat with him were Dame Roma Mitchell, Justice Connolly and Justice Ryan (of the Queensland Supreme Court) and Justice Reynolds (of the New South Wales Court of Appeal).
After my retirement from the High Court I served as a member of the Fiji Supreme Court until 1999 where I sat with Lord Cooke of Thorndon and Sir Maurice Casey, former judges of the New Zealand Court of Appeal. Also appointed to that Court were Sir Gerard Brennan and Justice John Toohey who is now serving as a member of the Tribunal set up by the United Kingdom government to inquire into the shooting of the demonstrators at Londonderry on ‘Bloody Sunday’. Sir Gerard and I resigned from the Supreme Court after the 1999 coup. Justice Handley of the NSW Court of Appeal is a member of the Fiji Court of Appeal which now may be the highest court in Fiji. The de facto government purported to abolish the Supreme Court, the highest court in Fiji, by decree. Whether the purported abolition was constitutionally correct is, of course, very much open to question.
When I began to sit on the Supreme Court of Fiji, counsel from Australia rarely appeared before the Court. In the space of a few years the position changed and appearances by Australian and New Zealand counsel, including senior counsel, became more frequent. I note from news reports in the Australian media that English counsel will be appearing in the forthcoming case in the Court of Appeal in which the legality of the present government is in issue.
Australians have played a prominent part in the Court of Appeal of the Solomon Islands, the highest court in that jurisdiction. Justice Michael Kirby was the President of the Court of Appeal. I succeeded him and served as President of the Court for three years when he was appointed to the High Court. Justices Bruce McPherson and Glenn Williams of the Queensland Court of Appeal sat with me from time to time and continue to serve as judges of the Court. Earlier Peter Connolly was a member of that Court. Queensland judges have made a large contribution to the work of the Court. Recently the Queensland Bar Association gave a complete set of the CLRs to the court library which was assisted by the Australian government and set up by Jacqui Elliott the Librarian of the High Court of Australia. Sir John Muria, Chief Justice of the Solomons, told me that his judges considered the CLRs the most valuable reports they had as the CLRs were more relevant and provide more assistance than the English authorised reports. In the Solomons I also sat with judges from Papua-New Guinea, Sir Mari Kapi and Sir Kubalan Los, as well as Sir Maurice Casey from New Zealand and Judge Lungole Awich from Nigeria.
The Solomon Islands suffer from a marked lack of resources. I have a very high regard for the judges there and the quality of their work which is undertaken with very little assistance. The legal profession includes lawyers from the United Kingdom, Australia (mainly Queensland) and other Commonwealth nations. Occasionally Australian lawyers appear. Gavan Griffiths, the former Australian Solicitor-General, appeared in one appeal.
Since the hand-over in Hong Kong in July 1997, I have been a member of the Panel of non-permanent foreign judges of the Hong Kong Court of Final Appeal. I sit regularly on that Court which exercises, in relation to Hong Kong, the jurisdiction formerly exercised by the Privy Council and acts as the constitutional court of Hong Kong interpreting the Basic Law. The Basic Law is Hong Kong’s Constitution and takes the form of an enactment of the National People’s Congress in Beijing, pursuant to the Agreement reached between the People’s Republic of China and the United Kingdom governing the terms of the hand-over. Other foreign judges on the Panel are Sir Gerard Brennan and Sir Daryl Dawson, Lord Cooke and Sir Edward Somers (New Zealand) and Lords Hoffman, Nicholls and Millett (members the House of Lords).
The very considerable contribution made by Justice Michael Kirby to the developing legal world, notably in Cambodia, is so well known from his speeches and writings that I may be excused from recounting it. I would be unable to recount his Honour’s contribution as well as he has done himself. I make the same comment about Justice Marcus Einfeld who has taken a particular interest in Burma and has made great efforts to organise the donation of legal materials to poorly resourced countries.
Sitting with judges from other jurisdictions in an interesting experience. So ingrained is the common law judicial tradition that the only differences one notices are differences in personality and attitude to the judicial role (conservative or non-conservative); in other words, the differences are of a kind that you encounter when sitting with Australian judges. All the judges with whom I have worked are lawyers of irreproachable integrity who are dedicated to the rule of law.
The Federal Court has an active range of training and exchange activities with overseas judiciaries and other visitors.
During 1999-2000 the Court conducted a training program for the Indonesian judiciary, with the assistance funding of $250,000 from AusAID’s Government Sector Linkages Program (GSLP). The Court’s program worked closely with the Indonesian judiciary and its primary training facility, the Supreme Court Training Centre (SCTC) in Jakarta, to run training sessions for Indonesian judges in Australia and Indonesia.
The training involved five workshops in Indonesia, four of which were conducted by judges of the Federal Court. In total, over 150 Indonesian judges participated in the workshops which covered the Australian legal system and issues of particular interest to the Indonesian judges, including public confidence in the judiciary, the independence of the judiciary and social and cultural issues relating to judicial process. Justices, Gray, Nicholson RJ and Merkel all visited regions of Indonesia to conduct the two-day training workshops.
As part of the program, 16 Indonesian judges spent three weeks in Sydney and Melbourne in May/June 2000 on a training program of seminars with the Federal Court, the NSWJC and the AIJA and on visits to courts of all levels and organisations such the Human Rights and Equal Opportunity Commission (HREOC) and the Administrative Appeals Tribunal (AAT).
The Court received very positive feedback on the program and has received further AusAID funding of nearly $25,000 for another training program for 2000–2001. The next program will also assist the SCTC with its management and technical expertise and upgrading of its legal resources.
During March 2000, the Court participated in a judicial exchange program with judges of the Supreme Court of the Philippines coordinated by the Centre for Judicial Studies in Sydney, the Centre for Democratic Institutions at the ANU and the Philippines Judicial Academy. The program involved eight Philippine judges spending time over several days with judges of the Federal Court in Sydney. In exchange, Justices Beaumont and Emmett of the Court undertook a four-day visit to the Philippines where they were involved in a training program with Philippine judges which included a forum with judges of the Philippine Court of Appeals and visits to various local courts. There has been some suggestion that the Court be involved in another, similar program.
In June 2000 the Court in Sydney hosted a week-long visit by five Chinese judges from the Supreme People’s Court of China which was organised by HREOC with funding under AusAID’s Australia–China Human Rights Technical Assistance Program. The judges were involved in seminars conducted by judges of the Court, observed cases and were briefed on the administration of the Court.
At the invitation of the Supreme Peoples’ Court of China, the Registrar visited courts in Shanghai, Beijing and Wuhan during the first week of June 2000. This visit followed an earlier visit in 1998 by the Chief Justice and the Registrar which coincided with an international judicial administration conference in Shanghai. These visits are part of an ongoing program of exchange that is building a strong working relationship between the two courts.
Justice Beaumont regularly represents the Court and Australia at the biennial meetings of the South Pacific Judicial Conference (SPJC). Justice Beaumont is also involved in a Steering Committee overseeing a SPJC project to strengthen judicial training services in the Pacific. The Pacific Judicial Training Project is being funded by a partnership of the Asian Development Bank, the Governments of Australia and New Zealand, the United Kingdom and the United Nations Development Program. The project is based at the University of the South Pacific in Suva and its aim is to establish a reference centre and an ongoing regional training program for judges and court officials from courts in the South Pacific.
At the request of the Acting Chief Justice of Vanuatu, the Hon Vincent Lunabek, the Registrar, spent a week in April in Port Vila preparing a report for the Courts of the Republic of Vanuatu on their court administration. While the Registrar’s report focused on developing recommendations for the introduction of an effective case management system of the Courts, it also included comment on a proposed Bill for the Judicial Service and Courts Act for the Republic of Vanuatu and advice on management issues within the Court’s registries. It is likely that the report will provide a basis for the Republic of Vanuatu to week some outside assistance to implement improvements to their court administration.
Each year, the Court hosts an extensive number of visits from judges and officials from overseas courts.
The AIJA acts as a resource for the administration of justice in the Asia–Pacific region. Judges and magistrates from jurisdictions in the region attend programs and conferences organised for judges and magistrates respectively. Judges from Indonesia and particularly Papua-New Guinea have attended AIJA conferences and the judicial orientation course organised in conjunction with the JCNSW. Magistrates from Papua-New Guinea, Fiji and the Solomon Islands have attended magistrates’ conferences. A committee is providing assistance in relation to the administration of justice in East Timor. Three East Timorese judges were brought to Darwin to attend the AIJA Annual Conference last year.
The AIJA Conference in October 2000 on the use of technology in the administration of justice was a notable success, attracting strong delegations from Hong Kong, Japan, Korea, Malaysia, Singapore and Papua-New Guinea. Unfortunately a number of the Pacific Islands jurisdictions are unable to afford modern technology and lack the human resources to take advantage of it.
As well the AIJA, in conjunction with the Judicial Education Council of Papua-New Guinea, conducted an alternative dispute resolution workshop in Port Moresby. The principal presenters were Justice Murray Kellam, President of AIJA, and its Executive Director Professor Greg Reinhardt. Ninety-four judges, magistrates and lawyers attended, as well as two magistrates from Vanuatu and Fiji. Sir Arnold Amet, the Chief Justice of Papua-New Guinea, opened the workshop. It is hoped that two or three judicial officers from Papua-New Guinea will visit Australia to observe mediation at first hand.
It should be noted that both New Zealand and Papua-New Guinea are represented on the Council of AIJA. Sir Arnold Amet is a member of the Council and has been an enthusiastic supporter of AIJA initiatives in the region. The presence of these outside representatives on the Council has sharpened AIJA’s regional focus.
Quite apart from these initiatives on the part of the Federal Court, specific programs are undertaken from time to time on the part of the Australian government through HREOC and AusAID in various countries, including African countries. In addition, members of the legal profession have been generous in providing advice and assistance in various jurisdictions, not the least of them being East Timor.
Former Australian judges and lawyers also play a prominent part in international arbitrations and mediations, particularly in the Asia-Pacific region. Trevor Morling, Sir Laurence Street, Andrew Rogers, Sir Daryl Dawson and Gavan Griffiths participate in this work. I have been engaged in an arbitration under the North American Free Trade Agreement between Canadian investors and the United States as well as an arbitration in Hong Kong arising out of Malaysia. That NAFTA arbitration is conducted under the auspices of the International Centre for the Settlement of Investment Disputes (ICSID), a facility provided by the World Bank. The other arbitrators are a Canadian lawyer and a retired American judge. Sir Ninian Stephen is the presiding member of another NAFTA Tribunal, hearing what seems to be a similar dispute. Professor James Crawford, the leading Australian international lawyer, is also a member of that Tribunal. Andrew Rogers and Gavan Griffiths have also participated in ICSID arbitrations involving at least one arbitration relating to Papua-New Guinea.
For the last three years I have lectured at the National Judges College in Beijing for a week each year, along with a Federal Court judge. On two occasions I was with Justice Jane Mathews and once with Justice Ray Finkelstein. These visits are organised by HREOC are financed by AusAID. The Chinese judges to whom we lecture are generally judges who hold senior positions or are considered to have potential for promotion. Approximately 30% of the judges are females. In China it is thought that the best judges are females. Only a small proportion of the judges speak English but we have the services of an outstanding Chinese interpreter who is a qualified lawyer with an American degree. The number of English speaking Chinese judges is increasing, especially among the younger judges. The National Judges College hopes that it will ultimately be able to provide a refresher course (say a three-month course) for a judge every three years.
The Chinese government is making strenuous efforts to enhance the quality of the judiciary and has appointed leading academic lawyers to top judicial positions. The Chinese judges are extremely interested in judicial independence and a number of them aspire to judicial independence as we know it. What is encouraging is the frankness of the Chinese judges in responding to questions which we put and their willingness to talk about their problems. Equally encouraging is their interest in our legal system. It comes as no surprise to learn that they consider that we are ‘soft’ on crime, particularly drug offences. Serious drug offences attract the death penalty in China.
It is vital to an understanding of the legal scene in China to appreciate that there are very large variations in the conditions across the mainland. In the more highly advanced economic zones on the east coast, the facilities and resources available to the courts are much greater than those available in the central and western hinterlands. In addition, modern procedures have been introduced in the past but not in the west. So you cannot automatically expect a uniform answer when you ask a question about the practice of the law in China. I hasten to add, however, that endeavours are being made to bring about greater uniformity by introducing comprehensive codes, for example, criminal law, contract law, by improving the quality of the judiciary and by providing more resources across the board.
But the problems are vast. Many Chinese judges lack the educational qualifications possessed by our own judges and the younger judges who are better educated, whose numbers are expanding rapidly, lack the experience of our judges. The Chinese judiciary, like the European, is a career judiciary so that judges are not appointed from the practising profession.
Although I am very impressed with the progress made by the Chinese legal system in the past 15 years, there are many obstacles to be overcome. The very size of the Chinese judiciary is daunting in itself. Judicial corruption has also been a problem. In 1998 the official Xinhua news agency announced that severe action had been taken by the Procuratorate against over 50 judges for serious misconduct, including bribery. Action was also taken against a similar number of judges for less serious offences. The Procuratorate, the prosecuting agency, has had a supervisory monitoring role in relation to the courts. This role of the prosecuting agency would offend our notions of judicial independence. Part of the problem is that Chinese judges have a lower status than our judges and they are not well paid.
The Chinese are interested in enhancing judicial independence but not necessarily in ways that correspond with our ideas. The President of the Supreme People’s Court was reported by BBC Monitoring International Reports as outlining China’s judicial reform plan on 5 October 1999 in Shanghai. He then said that the objective was to create a fair, open, effective, honest and well-functioning judicial system, train judges and perfect the socialist judicial system with Chinese characteristics. He went on to say that reform should be based on the three principles of upholding the Communist Party’s leadership, the People’s Congress system and the integration of the judicial system. He also made the comment that the reform opposes judicial independence and supremacy, which exist in many western countries.
What I have written conveys an impression of Australia’s contribution to the developing legal world. I reiterate that the account is not intended to be comprehensive and that it leaves out of account the participation of professional and academic lawyers in projects and activities in a number of jurisdictions. It also leaves out of account the contribution which Australian lawyers have made to the formulation and drafting of legislation in a number of countries and the way in which Australian jurisprudence has played a part in developing the jurisprudence of other jurisdictions.
[*] The Hon Sir Anthony Mason AC KBE is a Non-Permanent Judge of the Hong Kong Court of Final Appeal. He has been National Fellow at the Research School of Social Sciences at the Australian National University, Chancellor of the University of NSW, and Chief Justice of the High Court of Australia.© 2001 Anthony Mason (text)© 2001 Stuart Roth (cartoon)