THE THIRD COMMONWEALTH AND EMPIRE LAWJ CONFE] RENCE
24TH AUGUST. 1965
Speech by th~ e PriLme Minister? the Rt. Hon. Sir Rober~ t Menzies
My Lords, Your Excellencies and Ladies and Gentlemen
I think my task this morning is to declare this
Conference open, but as I was once a lawyer, now a politician,
it is obviously expected that I should make a speech with
enough brevity to save the day for you.
I want to make two confessions at the outset.
The first will be preceded by a statement. You see their
lordships and their honours gathered here. They don't always
appear in robes of that kind and when I walked in this
morning, Mr. Kerr said to me, " All the judges have been to
church" in a rather accusing way I thought,, ( Laughter) because
I had been flying down from Canberra and they had been to
church to which I made a reply which I want to repeat. I
mentioned it to one or two of the judges outside and I had
very little appreciation. I said, " Under those circumstances,
I would have expected them to be in the odour of sanctity,
but all I can smell is mothballs." ( Laughter)
Now, Sir, as you have pointed out, this is not a
political conference. We are here as lawyers and I am delighted
to find myself in the company of so many lawyers because I
confess to-you that the law was my first love and remains my
last. I have always regarded politics as a somewhat untimely
interruption in my enjoAnt of law.
So this isn't a political conference as you have said.
It is a gathering of lawyers, and I venture to say it is a very
timely event, particularly in this confused period of modern
history where the rule of law and the institutions of the law
are both under challenge. I begin by saying that because I
think we ought to face up to that fact that there is a challenge
to the law, a challenge to the institutions of the law. And
I hope, Sir? that whatever vastly important matters of detail
may be considered at this conference that the great principles
will not be entirely forgotten.
Now I suppose most of us lawyers were brought up on
A. V. Dicey and we know a little, in words, about his two great
principles of the sovereignty of Parliament and the rule of
law. Well, his principle of the sovereignty of Parliament I
don't need to take very much time about because it is by no means
of universal application. He was writing about Great Britain
with no written Constitution and evolved position for the
institution of government and he was able to -say, with
substantial accuracy, thal Parliament was all-powerful, was
sovereign. This is not, of course wholly true in Australia.
We have a written Constitution. that's an advantage that every
lawyer here will appreciate. ( Laughter) And under that written
constitution, you have what might be called roughly a division
of sovereignty between the Commonwealth and the States, and even
then, as we all know, it is by no means complete, because as the
Constitution now stands, there are certain thin sthat can't be
done either by the Comnonealthar the States, The immortal Section
92 of the Constitution has taken care of that, to give only one
example. ov. / 2
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Therefore, Sir, chie principle of the sovereignty of
Parliament is not one that we can become eloquent about in afterdinner
speeches when we are seeking to state what the elements are
in common in the Commonwealth because that is not one of them.
And I am not complaining about that. There are very many newlyindependent
countries in the world who don't, as yet, or there are
some who don't as yet have a Parliament in our sense, or for that
matter of course, recognise its sovereignty. Parliament and the
authority of Parliament and the pirty system and the conflicts
which precede the choice of a Parliament and the proceedings of
Parliament, these are all rather peculiar to some countries
including our own in Australia but not of universal validiiy,
because whatever the sovereigniy of' Parliament does mean in any
country, if it can be used as an expression at all it must
connote the authority of Parliament over the executive by its
power to dismiss or to reject.
W'ell, Sir, put that on one side because I don't want
to dwJll on it. It is no longer a matter of common existence,
it is no longer a common factor in all Commonwealth countries
though I hope some day it will be.
What about the rule of law. I turn to that because
to me and I am sure to you the rule of law is the vital
element in a hiigh civilisation, and we as lawyers, I venture to
say, are bound in conscience to battle to establish it and to
maintain it. The rule of law has many aspects familiar to
lawyers. They may not be too familiar to those who are not.
But there are two aspects of the matter to which I, for one,
attach immense importance. One is that there sh-ould be punishment
or restraint of anybody only After ordinary proceedings
before the ordinary courts, so that we all know that wie are not
going to be punished for something, we are not going to be put
under physical restraint in relation to some matter unless we
have gone or been taken before the courts, the ordinary courts,
and there have applied to us the law which applies to all other
people. This is to be contrasted with arbitrary power. There
are still symptoms of it in the world preventive detention by
the executive. This is, of course, the very antithesis of the
rule of law. The second aspect of it is involved in the first,
that because of the rule of law no man is above the law everybody
in the country from the most highly-placed dowm to the
most insignificant, if you care to put it that way they are both
under the law, ñ iot one of them above it; subject Zo the
ordinary law and the ordinary tribunals.
Now, Sir, that is so important-it is a matter to
which much attention still has to be direded in many countries
of the world, but it is of prime importance and you notice that
involved in it is the position of the courts and of the people.
I just want to say this to you that the courts, the courts of
law in this country, in any other country represented at this
conference, must be authoritative and strong, and I just want to
remind all barristers who are here that an authoritative and
strong court requires a strong judge but it also requires strong
advocacy. This is sometimes forgotten. In my own time, I
have been some terrible performances of advocacey, apparently a / 3
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subconsciously based on the idea that the judge will have to
decide it anyhow and that's his business. A weak barrister,
an ill-prepared one or that utter curse, if I may say so,
who either can't distinguish between a strong argument and a
weak one or lacks the decision to select and concentrate, he
is a curse that one. WIe've all heard him before today. He
harms his client but he also harms the judge because the judge
has not been given the assistance that every judge must look
for when he knows that he has to determine an issue between the
parties. One other remark I would like to make to you because
I have been warned to be brief. Lawyers, if I may say so to all
of them, must avoid a narrow outlook. I don't mean to say chat
I am asking people not to concentrate on the work in hand
because I know that is the very essence of legal practice, but
they are not to achieve a narrow outlook. It is a good thing
to find time for thinking, for example, about the relations
between the law and life in a cnanging world. The reilations
between law and life, the law not being something desiccated
and detached, unrelated to the life of human beings constantly
to see it against a human background. And therefore, while
remaining concerned with the interpretation of the law and its
application the application of the law to the facts lawyers
really should find time and and mental energy to influence law
reform, for example, in substance as well as in procedure, and
this is to be achieved, partly by professional action, and under
some circumstances by political action.
I'll just add one word about political action. A
well-furnished lawyer is a gro3t asset in any Parliament and
if he be a well-furnished lawyer, he will be listened to in any
Parliament. If he can add to the techniques that he has
acquired in court and in the study, a wider warmth and variety
of human contacts in other words, gets the feeling of
politics and the sense of a Parliament, which is a peculiar
place but rather the same all over the world-you must get
the feel of it if he can do this that weli-furnished lawyer,
he can come to great prominence and influence and have his
opportunity from time to time to do something about the reform
of the law in the light of changing circumstances in a very
rapidly changing world.
Sir, in my own time, in my thirty years in Canberra
. it is hard to believe, looking at my boyish countenance that
thirty-one years ago I was Attorney-General of Australia, and
therefore I have had all that time since and in that time
there have been too few of the people that I have been
describing, too few well-furnished lawyers coming into
politics, not too many. It is a cheap cynicism that I always
try to correct when I hear people saying, " Oh, there are too
many lawyers in politics". W4ell, I suppose it may depend on
how you define ' lawyer", but I started off by talking about
somebody, the desirable person, a well-furnished lawyer. All
I can say is that my own Parliament would be much better off
if we had more than we have and it would be a disaster if we
had less. Now, that little homily I don't lik-a making
speeches before lunch and I daresay you don't like listening
to them ( Laughter) but there is no escape this time because
here I am, and when I have heard a few more speeches that will
be of very great interest to me, I must set about getting back
to Canberra in time to be cross-examnined at half-past two at
Question Time, and so I declare this Conference open.