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* The 2004 Mayo Lecture, delivered on 21 October 2004 at the Cairns campus of James Cook University by Justice John Dowsett. His Honour was appointed to the Federal Court in 1989 after being a Justice of the Supreme Court of Queensland from 1985 to 1998. He was appointed a QC in 1982 after 10 years at the Queensland bar. The Mayo lecture series commemorates the work of Mrs Marylyn Mayo, who championed the teaching of law at James Cook University. At a time when students in northern Queensland had to travel south to complete their degrees, Mrs Mayo campaigned for a full law degree programme to be established at JCU.
It is a pleasure to be with you today and to present the annual Mayo Lecture. In a way, the achievements for which we honour Ms Mayo are closely related to the reasons for my presence in Townsville and Cairns this week. The establishment of the Law School at James Cook University, of which Ms Mayo was an important instigator, was the beginning of a new chapter in the long process of decentralisation of the administration of justice in Queensland, which process commenced almost at the time of Separation from New South Wales in 1859. However nothing much had been done to advance the cause for many years prior to the establishment of the Law School in 1989. Since that time there have been numerous advances. In particular, I refer to the appointment of a Supreme Court Judge in Cairns, increases in the number of District Court Judges and Magistrates and North Queensland sittings of the Court of Appeal. This year, the Federal Court has commenced regular sittings in Townsville and Cairns. That is why I am in Cairns today.
I am able to add a little to your knowledge concerning the history of this Law School. The establishment and conduct of a law degree course is no small thing. To start with, it is at least very desirable that the Commonwealth Government agree to fund it. Secondly, there must be a real prospect that its graduates will be eligible for admission to legal practice. It is for the relevant admitting authority to decide whether a particular degree is acceptable for that purpose. In Queensland, the matter is, or was, regulated by rules of court. In effect, that meant that it was largely up to the Judges of the Supreme Court.
In 1989, James Cook University had taught early-year law subjects for many years but, as far as anybody in Brisbane was aware, there was no suggestion that it was likely to do anything else in the foreseeable future. At that time, the QUT (perhaps then the QIT) course was relatively new and the Griffith course had either just started or was only in contemplation.
Suddenly, at a monthly Judges’ meeting in Brisbane, we were asked to accredit a law degree course at James Cook. The folklore of the Supreme Court is that the then Northern Judge, Sir George Kneipp, who was also the Chancellor of James Cook, had decided that it was time for a law degree to be taught in the north. He allegedly had gone ahead without reference to his colleagues on the Court and, more importantly and audaciously, without the Commonwealth’s approval. Whether the story is true or not, and I am sure it is substantially true, I have no doubt that George Kneipp had the courage, standing and foresight to have done just that. He and his wife Ada were dominant figures in North Queensland for many years and highly regarded by the Australian judiciary. I would like to pay tribute to them today.
The history of the law and its folklore are dominated by larger-than-life figures, be they judges, practitioners, academics or even clients (usually the more dubious ones). The profession fosters strong personalities; the discipline of the law and its study require intellectual courage to face the daunting mass of statutory and case law; to draw broad general inferences from it; and to be willing to state those, often controversial, inferences and stand by them. We have not always been good at giving formal recognition to our heroes — real and folk — but that is changing, as this annual lecture witnesses.
I would like to make two other comments which are only vaguely related to my theme for today. The first is to say how glad I am that there is a university in this country named after James Cook. There are surprisingly few substantial memorials to that real hero, memorials which reflect his true stature and contribution to learning. At present, it is often thought inappropriate to even speak of his work in positive terms. Anybody who has read his diaries and other accounts of his voyages knows that he was, and even in his own time was seen to be, a great man, at a time when there were many great men. And he achieved that status with virtually no prior advantage in terms of wealth or social position. Your university has the noblest name among Australian universities. I would also like to pay tribute to your founding Dean, Professor Ken Sutton. He came to the University of Queensland when I was, I think, in the third year of a six- year course. He lectured me in a number of subjects. I have always considered him to have been one of three or four outstanding and dedicated academic lawyers in a faculty which was then struggling with problems caused by years of underfunding, lack of leadership and bad staff appointment policies. His books are easy to read and have the detail necessary for practitioners as well as the command of principle necessary for students.
Today, I propose to address society’s expectations of the law and lawyers, and the extent to which it is possible to meet those expectations. The paper will fall broadly into two parts, the law and the practice of the law. In each part I will consider community expectations on the one hand and reality on the other. I will seek to identify current and future problems and possible areas in which we might seek solutions.
As tribal groups became larger and relationships more complex, it became increasingly important that there be understandings as to rights and obligations. The need for formal leadership probably emerged at the same time. Authority and the law are closely linked. A leader cannot, in the long term, lead by force of arms or personality alone. Nor can a leader’s power be, in the long term, unrestrained. Fairly quickly, I suspect, there would have been a perceived need for settled understandings about what a leader might and might not do, about how he or she might enforce decisions and about how he or she should be chosen.
The development of connections between people and the land would have generated a need for other settled understandings. Even hunters and gatherers would have sought to assert rights over the better parts of the territory reasonably available to them. Once cultivation became common, recognition and protection of the connection between farmer and farm would have been essential to the continuation and expansion of agriculture. Domestication of farm animals would have given rise to similar needs.
In summary, many areas of the law which are familiar to us today probably had their roots in the earliest forms of human society. The expectation that people would cooperate in hunting and gathering and in defending the group is represented today by the individual citizen’s duty to contribute by way of taxes and, in time of need, to serve in the armed forces. Understandings concerning the selection and powers of leaders are reflected in our electoral and constitutional laws. Early perceptions of the relationships between people on the one hand and land and animals on the other provided the foundation for our modem property law.
Before leaving this snapshot of the prehistoric legal system, we should look at one other aspect. How did these people enforce what I have called settled understandings about rights and obligations? No doubt there were disputes about what was settled and what was not. And no doubt, even amongst the noble savages, there were anti-social creatures who put personal interest ahead of the social compact. It is likely that for a long time, self-help was the order of the day, maybe self-help with the assistance of one’s friends and, perhaps, others who saw the advantage of order within society even when they had no direct interest in a particular dispute. As figures of authority emerged, the common man or woman would have looked to them for the resolution of disputes and enforcement of settled understandings. When shared religious beliefs emerged, religious rules and those who served the gods were enlisted to justify and enforce the same settled understandings about power and property. Fairly clearly, the distinction between making law and enforcing it, so important to us, did not exist. This fact may be of some importance when we come to assess the problems which the law and the profession experience in seeking to meet society’s contemporary expectations.
The development of the law since prehistoric times has been fairly predictable and is well documented. In our own tradition, we know that the emergence of a recognisable body of national law was largely the product of the efforts of Henry II, producing an amalgam of Norman and Anglo- Saxon law, with Roman influences. We are familiar with the battles between King, Church, the Nobility and eventually the common people of England leading to such milestones as Magna Carta, the Act of Settlement and the Great Reform Bills of the 19th century. These developments affected both the substance of the law and its enforcement. An omnipresent theme was increasing awareness that the law existed for the benefit of the governed as well as the governor, and that the law derived its ultimate authority from the governed not the governor. Magna Carta, in 1215, may have been designed to benefit the great landholders, but with the more equal distribution of wealth and property which started with the Industrial Revolution, it became economically and politically necessary to ensure that the law protected a much wider range of people and rights. In the 20th and 21st centuries, society has come to expect that the law will protect human, as well as proprietary rights, extending its protection to virtually every aspect of life and every person in the community.
Having so briefly speculated about the early history of the law and summarised the later history in a paragraph or two, I invite you now to consider what, in your view, our modem society, or each person who is part of it, expects of the law at the present time. What do your parents expect? What does Kerry Packer expect? What do indigenous Australians expect? What do home-owners expect? What do car buyers expect? What do welfare recipients expect? What do criminals expect? What do victims of crime expect? The list is virtually endless, and that is at least part of the problem. When the law was primarily concerned with the needs of an absolute monarch, the rights of a few landholders, and dealing with criminals, there was little risk of conflicting expectations. But today, there are so many individual and collective expectations that conflict is inevitable.
Let us consider two of the most common expectations. For property holders, banks, entrepreneurs and many, perhaps most other people, certainty is important. One must know what one’s rights and duties are — the settled expectations to which I have referred. But how do we provide certainty and at the same time recognise and accommodate the hardship that application of the law can cause; for example when a bank forecloses on a mortgagor or a landlord ejects a tenant for non-payment of rent? How do we reconcile our preoccupation with the newly discovered employment rights of minority groups, disadvantaged groups, parents and even workers generally, with an employer’s need and prima facie right to ensure that his or her capital investment is used as efficiently as possible? How does a lawyer advise a party to a contract when the other party defaults? Can he or she with confidence advise rescission, knowing that the defaulting party may allege some form of estoppel which undermines the apparent meaning of the contract? There is very little certainty in the way in which these conflicts are likely to be resolved — much less certainty than there was in 1970 when I started articles, or even in 1985 when I went to the Supreme Court.
If the law no longer offers certainty, what else does society expect of it? Safety perhaps. We have speculated that the achievement of community safety was one of the earliest objectives of society and the law. In this area, too, the modem law faces new difficulties. How do we reconcile community safety with the rights of a violent offender who has served his sentence? How do we deal with the child molester who has served his time? How do we reconcile the war against terror with long-established views concerning individual freedoms?
There are other, even larger, conflicts which we have not even begun to resolve — between indigenous land rights and long-established European land usage; between utilisation of natural resources and conservation; between euthanasia, abortion and genetic engineering on the one hand and long- and deeply-held religious views on the other, views which have been deeply embedded in our society and our law, almost from the very beginning.
My proposition is, in effect, that the law developed as an instrument designed to regulate and resolve disputes in a fairly simple agrarian society. Throughout the 19th and 20th centuries, it evolved quite effectively to meet a wider range of demands made by a much more complex commercial and industrial society. Three new factors must now be accommodated:
(5) the internationalisation of economies and social structures;
(6) the new range of relationships, rights and obligations arising out of the technological revolution; and (7) the new emphasis upon individual human rights, many of which were unheard of before the Second World War, or perhaps even the Vietnam War.
Many of the problems posed by these factors have serious moral aspects. Consider, for example, pharmaceutical technology. New drugs are developed, often using public money or tax incentives. They have the potential to lengthen and improve the quality of human life. Yet we continue to regulate the ownership of the intellectual property in such drugs, using a system based on the Statute of Monopolies — enacted in England in 1623 to regulate the monarch’s power to grant monopolies to traders. We have ongoing disputes about the supply of generic drugs at reduced cost and the supply of drugs to Third World countries, largely because the international system for protecting intellectual property in inventions is so complex that the prospect of changing it is simply too daunting.
Our approach to environmental issues is equally ill considered. There are, as far as I can see, no principles which would allow us quantitatively to compare the economic and social value of using a resource with the economic and social value of conserving it. At least, there is little evidence of such principles being used in Australia. Conservationists and developers are equally guilty of insisting on an all-or-nothing approach, coupled with the use or abuse of political and/or financial power to obtain an often selfishly motivated result.
There are many other examples of the same problem — conflicting interests, absence of any settled legal basis for resolution and lack of moral leadership at the political level. At one stage in the development of our society, such a vacuum in political decision-making might have been filled by the courts. The matter would then have been settled according to well- established legal principles. However we know, almost instinctively, that for many of these problems, the traditional legal solutions will not be appropriate because the issues are social or moral, not legal. The politicians, unfortunately, find it too difficult or threatening to offer real leadership in these areas, and the courts are, of necessity, too concerned by the possible consequences for the judicial system of becoming involved in battles for which it is not suited, battles for which even the politicians have no stomach. As a result, many of these problems are not addressed in ways which are likely to yield satisfactory long-term solutions. Rather, short- term solutions, usually motivated by the political cycle, are adopted. The outcomes are, at best, of indifferent worth.
Much of this difficulty arises from uncertainty as to the relationship between individual rights and social obligations. The law is well attuned to the free-enterprise social model in which one is free to act in one’s own self-interest, save to the extent that necessity dictates legal restrictions on such actions. Whilst many still find that social theory quite attractive, it is difficult to apply to a society in which individual human rights are proliferating and where even animals, trees, rivers and landscapes are spoken of as if they have rights.
Particular conflicts will be resolved by legislation, if they are important enough. Protection of the Great Barrier Reef or Westminster Abbey will never pose a real problem. It will always be politically attractive to protect such institutions. How do we solve disputes about less important issues concerning subdivision of privately owned rural land where there is a platypus colony, or construction of a mobile phone tower? If such problems are solved politically — by legislation or executive action — the solutions will often be subject to change when governments change, and in any event will often reflect political influence rather than fairness to all concerned. Yet such disputes will often not be readily susceptible of judicial resolution because the relevant criteria are incapable of non- partisan identification and evaluation. It may be that these problems can only be solved by a radical redefinition of individual and community rights and obligations, including property rights. I will return to this aspect at a later stage.
Let us return, for a moment, to our snapshot of prehistory. No doubt the first lawyers arrived on the scene later than de facto leaders. Settled understandings would have been quite well defined and relatively easily recognised before the need for specialist knowledge and experience would have been obvious. Such specialists would only have emerged once there was sufficient business to justify the necessary investment of time and, later, money, in the acquisition of expertise and sufficient wealth to pay for the service. I expect that, at some stage, the administration of the law by the leader became too great a demand upon his or her available time and acquired expertise, and so specialist assistance was required, more or less at the same time as wealthy citizens needed similar assistance. It seems that the clergy provided this expertise in some early societies, but in our tradition, such supply has been laicised for a long time. Nonetheless, it may be that this clerical background led to the separation of the legal profession from the government and, perhaps, the emphasis on individual lawyers rather than bureaucracies.
In considering society’s expectations of the profession we may, for the moment, exclude the expectation of propriety. I am presently more concerned with expectations as to our functions — how we contribute to the working of society.
Firstly, society expects that we will know the law and be able to explain it when that is necessary. It expects that we will know and understand how the legal system works — that we can pull the levers and push the buttons to invoke the law as necessary in particular circumstances. It probably also expects that we will provide legal services to anybody who needs them at an affordable price. It might be more accurate to say that it expects that we should do so but knows that we do not meet that expectation. Nonetheless, given our monopoly in this area, the expectation is not unreasonable. I will return to these matters in a moment, but I want first to say something about one particular aspect of the legal structure — the judiciary. No doubt society expects judges to assist in meeting its expectations of the legal profession generally. However it expects more of judges. I confess to some doubts as to what exactly is expected of us, but I am sure that we are, like the typical unfaithful husband, widely misunderstood. This is because our function is unique. That one person should make a decision which has significant effect on the lives of others is a proposition not widely accepted in our modem society. Historically, the judges exercised the power of the Crown, standing in place of the monarch. It was not difficult for earlier societies to understand that an all-powerful monarch would appoint law officers to decide disputes on his or her behalf and that private citizens necessarily had to defer to such authority. But those ideas are now quite anachronistic. We see authority as coming from below. Decisions of most kinds are usually taken by committees which represent all interested parties, or stakeholders as they are commonly described, and only after extensive consultation with anybody else who claims to have even a skerrick of interest in the matter. When a decision is taken, it is by majority vote, and nobody is expected to give any intellectual justification for it, let alone written reasons.
The uniqueness of the judicial function leads to much misunderstanding concerning the nature of that function and the qualities which are desirable in a judge. Decisions are thought to reflect personal preferences rather than reasoned and impartial conclusions. Commentators, including many academics, encourage this view by their attempts to class judges as ‘progressive’ or ‘conservative’ and by insisting that we cannot effectively distance ourselves from prejudices based on our backgrounds. Thus it is not widely understood that a judge must have the intellectual skills necessary to formulate a persuasive justification of his or her decision and the communication skills necessary to present that justification in a coherent way. This is the primary reason for opposition by most of the judiciary to the notion that judicial selection policy should be aimed at achieving a ‘representative’ judiciary even if it be at the expense of quality in the appointees. The real problem is that those appointing have little experience in individual decision-making and little knowledge of the judicial process.
A further problem is that judicial decisions themselves are frequently misunderstood. The public, even the informed public, usually assesses a decision with knowledge of little more than the final orders, and without any serious consideration of the reasons. Further, members of the public and the press have little or no knowledge of the way in which a case was conducted by the parties. Thus, for example, one journalist regularly criticises the judicial process on the ground that it does not seek to find absolute truth but simply to decide cases on the issues raised by the parties.
This is an exarnple of the way in which one tends to interpret events according to one’s own world-view. To this journalist, the true worth of any activity is to be measured by the extent to which it assists him or her to fill a column of newsprint. Of course, such an approach fails to address the fact that courts exist solely to resolve disputes between parties who pay large amounts for the opportunity. If there is no reason to pursue the truth beyond a certain point, why do so? In any event, we all know that very often, there is no absolute truth, or at least not that the human intellect can discern.
I return to the broader question of community expectations of the legal profession generally. I said that the public expects that we will know the law and explain it to them in ways which they will find comprehensible. In practice, that is now almost impossible. The law has become so complex that an understanding of its overall effect on all but the simplest fact situation is almost beyond the capacity of any one skilled lawyer. To explain it to a lay person will often be impossible. Even in the simpler situations, there are daunting barriers to understanding and explanation. Not the least of these are the ham-fisted attempts by politicians and parliamentary draftsmen to use so-called ‘ordinary English’ rather than legal language. Contrary to popular opinion, legal language, properly used, is very precise and usually explains concepts in ways which fit easily into the overall body of the law. When we try to describe those concepts in ‘plain English’, we run into two problems. Firstly, ordinary English, shorn of the gloss which gives legal language its precision, is not designed for the task. Secondly, ordinary English is regularly used with amazing imprecision so that words are frequently understood in ways not intended by the speaker or writer. Some may say that this observation is merely a late recognition of postmodernist thought, but in any event, it is certain that language is regularly used in very loose ways, quite unsuited to achieving precise definition of abstract concepts. The simplistic view that ordinary English is better also overlooks the fact that very few non-lawyers read legislation for recreational or other purposes. They usually ask a lawyer or get a pamphlet from the relevant government agency. So — why bother?
Finally, this aspect has been made even more difficult by a recent tendency to try to make legislation sound pleasant and helpful. You may not know that the GST legislation is formally entitled A New Tax System (Goods and Services Tax) Act 1999.
I said that the public probably expects us to be able to engage the law on behalf of those who need its assistance. However, once again, the complexity of the law makes it difficult for even a lawyer to assist in a timely way. The days of almost instinctive solutions to a limited range of likely legal problems are long gone. It is also fair to say that adventurous appellate courts have created uncertainty where certainty is to be preferred. As I have previously mentioned, the triumphal march of estoppel, for example, has long hindered the capacity to give firm advice concerning breach of contract. Advising an employer as to the right to dismiss an employee for misconduct must be similarly fraught in light of the so-called ‘unfair dismissal’ laws. And consumer protection laws, including the Trade Practices Act, seem to be designed to replace freedom of contract with statutory regulation of all commercial transactions.
Finally, there is the expectation that legal assistance be available to those who need it at reasonable cost. To state that proposition is almost to make a joke. ‘Affordable legal services’ is as classic an oxymoron as one could imagine. This problem is not all that new. As a silk in the early 1980s, I recall telling my colleagues that I could never afford myself. But things have become worse. I have pointed out that a curiosity of our system is that legal services are largely delivered by the private sector. Of course that is true of many, perhaps most, professions, but other professions are not performing functions so close to the bedrock of society as are ours. Further, in other professions, the problem is at least under constant scrutiny. Health services offer an example. The cost and availability of medical services is a major political issue. The supply prices of key goods and other services are similarly scrutinised. Petrol, telephone calls and childcare are examples. Members of the public do not need legal services as frequently as they need health services or petrol. Thus there is not the same outcry about price rises. Nonetheless the truth is that rights and obligations can only be enforced through the legal system. I have referred to the enthusiasm with which we have conferred new rights upon people, but that enthusiasm has not been matched by enthusiasm for ensuring that the same people enjoy the means necessary to enforce such rights. Perhaps it is just as well, but it does suggest a curious inconsistency in our social priorities. Setting aside those recently acquired rights which may be of dubious value, it is disturbing that most people, perhaps including ourselves, have great difficulty in enforcing political and legal rights, largely because the cost of such enforcement is beyond their means.
What is the solution to this problem? There has been a long-standing tendency amongst lawyers and social workers to assert that the solution is more generous legal aid. I am inclined to think that the solution lies in trying to reduce the cost, but I will return to that matter at a later stage.
There is a risk that the law itself will come to be seen as too blunt a tool to regulate effectively the complex relationships of modem society. This has happened with the income tax legislation. Instead of our tax liability being regulated by clear statutory provisions, it is increasingly regulated according to the Commissioner’s discretion, the modem version of the Chancellor’s foot. Even worse, in other areas, more and more discretion is vested in ministers and public servants who lack the relative impartiality of the Commissioner of Taxation. This tendency, in turn, threatens the whole concept of the rule of law. If we cannot, quickly and with certainty, identify the legal effect of a particular factual situation, how can individual citizens order their affairs with confidence? The globalisation of business and society and the technological revolution exacerbate this problem.
To the extent that I may have overstated the case in order to create dramatic effect, I justify doing so simply by saying that we should not wait for the system to collapse before we recognise the apparent problems and start looking for solutions. The challenge is to establish a principled legal system which will be flexible enough to cope with the myriad new situations which emerge in a world where change is endemic, whilst offering protection of community and individual rights, with a reasonable degree of certainty and at a reasonable cost.
In Australia the Republic debate indicates that community consideration of fundamental change may be possible. Unfortunately, the preoccupation of republicans with the so-called ‘minimalist’ approach discloses their limited motivation. If it is worthwhile to go to the trouble and expense of swapping the Queen for a president, we should, at the same time, look at other areas in which we can improve our system of governance.
These debates involve major constitutional issues, and the public has not shied away from them. But the debates are being conducted without any overall assessment of the efficacy of our constitutional arrangements, of the likely effects of proposed changes and of whether it might be possible, in conjunction with those changes, to alter other aspects in ways which may have consequences more significant than changing the identify of the nominal head of state or creating rights which most people feel they already have or do not need. A real debate about the role of the state and individual public and private rights would be relatively novel and difficult to facilitate, but there is no reason to believe that it would be impossible.
There are less dramatic steps which could be taken to make the law a more precise and effective force. A statutory presumption, directed at all arms of government, in favour of certainty rather than abstract notions of justice might be a step in the right direction. Similarly, we should at least consider whether we can promote the civil society by education rather than by prescriptive legislation. The identification and prioritisation of core social values by which to assess legislation and individual conduct might also help. I understand that the German Constitution goes some way towards such an approach.
In summary, the law has, for thousands of years, developed so as to remain an effective means of regulating relations between the state and its citizens and between citizens inter se. However we should not assume that its capacity to do so is infinite or that such development occurs automatically. As the people who know and explain the law, as the people who push the buttons and pull the levers, we also bear responsibility for scrutinising the health of the legal system and planning for its future development, in other words, creating the future. We can only do that by trying, where possible, to predict and influence change. If we cannot do so, we must at least recognise it when it occurs. In either case, we should not assume that those who instigate change will necessarily have considered how the law will accommodate it. That is our job.
In particular, it is wrong to assume that the law is capable of regulating human activity in all its minutiae The law deals with such activity by a system of categorisation, not by examining the social worth of each individual action to see whether it is good or bad and therefore should be legal or illegal. The price of asking too much of the law is that it will disappoint us. If disappointment leads to loss of faith in it, we will have to find an alternative. I suspect that the only options are tyranny or anarchy.
The first area for improvement is legal education and training. There is considerable room for improvement in this area. Unfortunately, we tend to confuse education and vocational training and at the moment, seem to be placing far too much emphasis on the latter at the expense of the former. The line of demarcation between the two is, of course, not always clear. It is not just about knowledge as opposed to skills. Education, for example, certainly involves training the mind — thought skills. On the other hand, vocational training often involves the imparting of knowledge. Education tends to impart knowledge and develop attitudes and skills which are of broader application than those addressed in vocational training, which tend to be specific to a particular profession, trade or specialisation. Drawing the line, if difficult, is nonetheless important. It is important because it will affect decisions as to how, where and by whom a particular area of knowledge or skill is taught. The question is also important because of the large number of people who undertake legal studies without intending to practise.
Matters which are truly ‘educational’ should be taught in the law schools. Vocational training should, if possible, be delivered under the supervision of the profession. No doubt many academics, perhaps even some of those present, will disagree with this view. I do not have time to justify it in detail. I say only that my own experience suggests that practitioners frequently lack a good understanding of the whole spectrum of the law and the ways in which the various parts interrelate. This weakness often seems to spring from a lack of knowledge of the history of the law and of the underlying considerations which have led to particular developments. I feel that we should reassess the objectives of our law degree courses as they relate to potential practitioners. I would like to see more focus on the historical and philosophical underpinning of the law and on our methods of explaining and justifying it, rather than on narrow, statute-based areas. I would prefer, for example, to see concentration on the methodology of interpretation of statutes and other legal documents, including extensive practical exercises, rather than detailed study of specialised areas regulated by statute such as environment law and mining law. Part of the reason for this is the frequency with which legislation changes. Statutory changes frequently render university study of statute-based areas of the law quite irrelevant for most of a practitioner’s professional life. Separation of legal education from vocational training would allow the universities to focus more on legal education in this narrower sense.
We should also reassess the role of a broad general education in equipping a young lawyer for practice. Most of the problems of legal practice arise out of the aspirations and conduct of human beings. A lawyer needs to understand those rather curious animals. The great store of learning concerning them is most often found in the Arts faculties of our universities. Law students should be required to spend a little more of their university time in pursuing a wider range of such non-legal subjects. It would help them to understand the true subject of their discipline — humanity with all its frailties. It would assist them in speaking to and understanding their clients. Such study might also make us all more interesting people. Just as there is need for more intensive legal education, there is a need for more intensive vocational training, both before entry to practice and thereafter. This is more a problem for the specialist advocates — barristers — than for solicitors. There is a much longer history of vocational training for solicitors than for barristers. Nonetheless the truth is that we have not yet fully accepted the proposition that a person should not be allowed to practise in either capacity until he or she has satisfied independent assessors that he or she is competent to do so. We are certainly moving in that direction, but we need to hurry. Many factors are against us, including the curious notion that raising professional entry standards is anti-competitive. Good-quality vocational training is very expensive. That is one reason why I think the universities should steer clear of it. The second reason is, in a sense, a variation on that same theme. Good-quality vocational training is best provided by competent practitioners who are currently practising. But such people are rarely available in sufficient numbers. The professional bodies are able to assert pressure upon members to participate as part of their professional responsibilities. That is a great advantage which the universities do not enjoy.
In any event, regardless of how we organise legal education and vocational training, a substantial improvement in overall quality is necessary. That includes ongoing training and initial and ongoing assessment. It also involves an element of quality control which has never before been a feature of legal professional life.
The second area in which we should consider change is in identifying those activities to which we claim a professional monopoly. It is likely that, in any event, the current preoccupation with competition will force us towards a narrower rather than a wider claim. Can we seriously argue that a cottage conveyance of Torrens Title land needs the knowledge and skill of a university graduate? Can we defend the proposition that debt collectors should not be able to commence and conduct simple debt recovery actions and perhaps even bankruptcy proceedings? There are good arguments for the proposition that both areas are better performed by lawyers, but the question is whether that means that lawyers, at lawyers’ prices, should be the only people who may legally provide such services. To what extent should the public be able to choose a less well-trained but cheaper alternative? We should address this question as a matter of priority before others do it for us. And we must accept that arguments which assume that we know what is best for the public will not carry the day. Nor will it help to point out that some areas of practice cross-subsidise other areas. Arguments in favour of any monopoly will only prevail if they demonstrate necessity.
The third area for change is closely related to the second. It is cost. We cannot continue to allow our services to move further and further beyond the reach of substantial parts of the community. Obviously, simplification of the law would help, but I am still not holding my breath. Allowing routine work of the kinds I have mentioned to be performed by non- lawyers might reduce professional income in the short term but would do much to remove present perceptions concerning the cost of legal services.
As to other changes designed to reduce costs, I confess to having no clear idea of what we can do. I know that most lawyers work hard in order to be little more than comfortable. I know that few lawyers are really greedy or uncaring about their clients and the public’s needs for legal services. It may be that a higher degree of specialisation would allow practitioners to handle higher volumes of work at lower unit costs. This solution seems to have worked for the medical profession. We may be able to train lawyers as practice managers, supervising large teams of paralegals. We have achieved a certain amount in this direction, but I am not sure that the benefit has always been passed on to the client. It may be possible to arrange things so that the client can, him- or herself, perform much of the ‘legwork’. These are merely a few ideas for further thought. I do not advocate the adoption of any of them. The important thing is that we not lose sight of this very real problem, and that we be proactive in looking for solutions.
I leave you with some lines from Tennyson in which he captures the nostalgia which we naturally feel when our world changes, whilst recognising the inevitability of such change. The lines are from Morte D’Arthur:
The old order changeth, yielding place to new, And God fulfils himself in many ways, Lest one good custom should corrupt the world.[1]
Thank you for your kindness in inviting me to speak to you today.
[1] Idylls of the King ‘The Passing of Arthur’ (1869) 1. 408.
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