SPEECH BY THE PRIM-E MINISTER,
THE HION. E. G. WHITLAM, M. P.,
AT THE OPENING OF THE 1975 AUSTRALIAN LEGAL CONVENTION
CANBERRA, 2-JULY 1975
Many of the matters proposed at earlier
conventions have been debated in the Parliament in this
city since the last convention. Many of the matters I
myself mentioned at that convention have been discussed
here. Some have come to fruition; others have not done so,
at least not yet. At the 10th Australian'Legal Convention
in 1957, Sir Owen Dixon suggested a federal Law Reform
Committee to prepare and promulgate draft reforms for
adopt'ion by the Parliaments of Australia and the States.
He pointed out that in all or nearly all matters of
private law there is no geographical reason why the law
should be different in any part of Australia. Is it
not unworthy of Australia as a nation, he asked, that we have
varying laws affecting the relations between man and man?
If I may quote Tacitus corruptissima
republica plurimae leges: The Commonwealth is most marred
when it has most laws.
At long' last, * that suggestion by Sir Owen
Dixon has borne fruit. An Act of the Australian Parliament
has established a Law Reform Commission. The Commission
has been charged Wi. th the task of preparing proposals for
the reform of laws, not only on matters within the direct
competence of " the Australian Parliament, but on matters
on which it is desirable that there should be uniformity
of law in the States and Territories. The Commission
has a full-time Chairman, Mr Justice Michael Kirby, and
five part-time members. We have sought, by advertisement,
indications of interest from lawyers throughout Australia
in being appointed as full-time members of the Commission.
Without waiting to be fully established,
the Commission has embarked on its first reference, the
difficult and delicate task of reconciling the protection
of civil liberties with the requirement for strong and
effective police action at the national level to combat
the growth in sophisticated crime.
A paper entitled ' The Necessity for a New
Federal Court' was delivered at the 13th Legal Convention
in Hobart in January 1963 by Mr Maurice Byers, Q. C.,
and Mr Paul Toose, now respectively the
Solicitor-General of Australia and judge of the
Supreme Court of New South Wales. In the discussions
on the paper the Solicitor-General Sir Kenneth Bailey, Q. C.,
announced on behalf of the Attorney-General, Sir Garfield
B~ arwick, that the Cabinet had authorised him to design a newfederal
superior court. Sir Kenneth went on to say that the
paper would be of material assistance to Sir Garfield whose
congratulations be extended to the learned authors.
Attorney-General Bowen delivered a paper
on the proposal for the 15th Legal Convention on
17 July 1967. He declared that there was a broad
concensus that such a court should be established. He
stated categorically that ' a decision has been taken to
establish.. the court' and that arguments advanced
against the idea are now ' academic'.
He presented a Corrconwealth Superior
Court Bill on 21 November 1968. My Government's bill, although
promised at both the 1972 and 1974 elections, has beentwice
rejected by the Senate. There has in fact been
much lobbying by State Supreme Court judges.
Following the report of the Sen~ ate
Committee on Securities and Exchange, the Government
has introduced the Corporations and Securibies Industry
Bill to establish a Securities and . Exchange Commission
to provide where regulation is necessary, a proper
regulation of the securities industry on a nationl basis.
Finally, work is well advanced on the
preparation of a National Companies Bill. When this is
enacted it will end the frustration suffered by companies
who wish to operate on a national basis but find themselves
confronted with eight set"-s of company laws. The high
hopes that were entertained with the enactment in each
State and Territory of the uniform Companies Act in the
early 1960' s have not been realised:* Mr John Young, Q. C.,
and Mr Rodd delivered a paper to the 13th ConventCion in
1963. The late Mr Justice H-ardie said then it would
have to be a federal act.
Debate on the National Compensation
legislation, to supplant the litigation based on compulsory
workers' compensation insurance and compulsory third
party insurance, awaits a report from a Senate committee.
I hasten to add that lawyers will be amply
compensated by new fields of jurisprudence arising
from legislation on consumer affairs and the environment
and family law and on international conventions dealing
with matters of commerce and liability and human rights.
And although this gathering would have a smaller percentage
of women present in their own right as distinct from their
being consorts, we can point out in International
Women's Year that the Government has appointed four women
to the Arbitration Commission, two of them presidential
members. ./ 3
In the past the development of a proper system
of administrative law in Australia has been sadly lacking.
The independence of the judiciary has been largely an
irrelevant safeguard in the face of increasing areas of
government-regulation that have not been subject toreview
by the ordinary courts. The reports of the Commonwealth
Administrative Review Committee, more commonly known as the
Kerr Committee, and of the Committee on Administrative
Discretions, more commonly known as the Bland Committee,
have highlighted the need to enable administrative decisions
affecting individuals to be reviewed on their merits.
They have also shown the need for an independent body to
ensure that an individual has been dealt with fairly by
the Public Service and by statutory bodies. To satisfy these
needs, the Government has introduced into the Parliament
the Administrative Appeals Tribunal Bill and the
Ombudsman Bill. They have received strong support on both
sides of the Parliament. The Administrative Appeals
Tribunal Bill place's emphasis on expedition and informality
in the hearing of appeals. It will not be confined to the
traditional role of umpire in an adversary dispute.
Nevertheless, it will provide an opportunity for lawyers
to bring their particular skills to bear in ensuring that
statutory discretions are justly and properly exercised.
When I spoke at the last Convention I
stressed that not only must the courts always be accessible
to the people but that the profession must also be accessible
to the people. Perfect laws and well-organised courts are of
little use if those who most need the protection of the law
cannot afford access to the courts. An essential part of
the Government's program of law reform is its development of
systematic and comprehensive legal aid in Australia. A
great deal has been done by the legal profession itself, but
the provision of legal aid to all those who require it is a
task beyond the scope of the legal profession. it
requires the resources of government. The Australian Government
has done three things. We have had a committee of inquiry into
the provision of legal aid in Australia, the report
of which has highlighted the areas of need. We have provided
funds for existing legal aid schemes. We have established
the Australian Legal Aid office as a salaried service to
provide legal aid in areas where the Australian Government
has particular concerns and responsibilities. The
Government introduced the Legal Aid Bill in the last week
of the Autumn Sittings of the Parliament, so that it may
be open to suggestions for improvement. I hope the legal
profession will use the opportunity that has been given
to them to comment on the Legal Aid Bill.
I want to see the continued development of
a vigorous and independent legal profession. The
maintenance of much of our democratic tradition depends
on the strength and integrity of an independent profession
in representing the citizen, whether against another citizen,
a-large corporation or the Executive Government itself.
There is, I know, a real fear that this independence and
traditions may become lost in a salaried legal aid service.
Any lawyer, whether a private practitioner or an employee
of a salaried legal aid service, has a duty to uphold
these traditions. We have sought to embody this in
the Legal Aid Bill. There are many in the community today who
doubt the capacity of the courts and the legal system
to play a useful role in new areas of social and economic
concern. It is not only those with money and property
or those who are engaged in commerce who need lawyers.
Lawyers in the past have been in the forefront
in urging reform of the law. They are in a position to
identify and expose the shortcomings of the law. The
legal profession must be careful to maintain this tradition
in the face of the changing expectations of the people.
Otherwise-they will be seen as conservative defenders
of a system that will become irrelevant if it does not
respond to the dem-and for change. Indeed I go further.
Lawyers applying their talents and skills, should continue
to lead the demand for change and not wait to be pushed
by public opinion. I believe we want a world in which the
rights of citizens, rich or poor, are effectively protected
by a vigorous legal profession; in which the mechanism
of the law remains a primary and effective instrument.
It is easy for the public to feel alienated from the law
and the lawyers.. I suggest that it is up to the Government
and the lawyers to see that this feeling of alienation
is replaced by a recognition of the law as a relevant,
accessible and useful instrument for social and economic
adjustment and for protecting the legitimate expectations
of the individual in an increasingly complex, domestic
and international society.