) J3J.. YI
-J AUSTRAIIA
PR1 T3E MIN ST R
: Or, " EDIA MONDAY, 19 MAY, 1980
SECOND INTERNATIONAL CONFERENCE OF APPELLATE JUDGES
SYDNEY
The Government. is very pleased that this Second International
Conference of Appellate Judges should be held in Australia.
At this Conference, the papers which are to be delivered
analyse -and discuss matters of fundamental concern to the
judiciary and to the administration of justice.
Much of what they deal with is focussed on the role which
courts have in their community and on the relationship
of courts to Government. These are critical aspects of
the organisation of society itself. They are issues of the
highest importance, in every community, and they are issues
which may be discussed openly and without reserve in
this country.
We, in Australia, are pleased to know that that is widely
recognised abroad, as the venue for this Conference shows.
This Conference will be examining the role of national courts
in various countries, over the years and at present, and
the role of supra-national courts.
I am not a laywer, and certainly no legal historian or
expert in comparative jurisprudence. Lord Chancellor Ellesmere
may have said of King James I that " The King is the
law speaking". I have waited in vain for the High Court of
Australia to say that " The Prime Minister is the law speaking".
But we all have knowledge of the role of the courts in our
own country and we all have beliefs about what a legal
system should achieve.
In Australia, we have two particular ideas about the
judiciary and about the role of the courts and those two
ideas are not really separable. We are committed to an
independent judiciary and to the rule of law.
It may indeed be said, that those concepts are imprecise
and that their content must be defined that, in the
countries in which the same things have been said, very
different results have followed. ./ 2
Avo^ Rœ 5 -i 9' FN
-2
Maybe, but a start must be made in words and the words
used must try to convey central ideas or principles.
By an independent judiciary I mean, in the first place,
that our courts must be established as separate and must
be seen by the people to be separate from Government that
is, from the legislature and the executive.
That must be true, regardless of political systems, if you
are going to have what we regard as a court of Ia..
Otherwise it is simply a modified arm of Govern:. ent.
The judiciary must stand apart, and, if it does stand
apart and is seen to do so, not only is that a strength
in the fabric of society, but also it gives strength to
the individual people in that society.
But, secondly, those things will not be realised just
by insisting on separation of the courts from Government,
You must have, as judges, men and women of ability and integrity.
If those factors are present, the administration of justice
will produce lawyers conscious of the role of the courts,
and the system will endure.
In Australia, we have been fortunate to possess, both in
Cormonwealth and in State Courts, judges who are strong and
independent; who are impartial and fair; so that the
community has faith in the administration of law.
The rule of law means, in the first place, that you must
have a body of laws, whether organised as a code or not,
Dublished and ascertainable; and in the second place, that
the courts will hear and determine every case which comes,
before them by reference to those laws.
Of course, the content of those laws will vary from country
to country, reflecting the way in which the particular
ccmmunity has come to be organised and the moral and
religious beliefs of the community.
It may be that the jurisdiction of the courts in any country,
and the nature and limits of their power, will, accordingly,
differ. What must be constant, however, is that the
administration of justice consists in the application of an
ascertained system of laws.
That system must be applied without discrimination, as
between one person and the next, by reason of race, means,
or political or religious beliefs. It is implicit in that,
that the system of laws to be applied does not itself
discriminate in any of those ways.
3
What I have said about those two pillars of the administration
of law by the courts would not, I think, be essentially
disputed by any of you here.
But it is a foundation for discussion of the role of
the courts.
i kow that at this Conference such a foundation 4. implict,
and the papers T-hich have been prepared forecast a
discussion of more complex matters.
But it is useful to remind ourselves of that foundation,
and of the fact that there are many countries where even
that has not been achieved.
The people in a community must know, at least in basic
outline, what the role of the courts is and what they may
exoact from them.
The courts must provide a stable framework for resolving,
and for giving effect to, people's rights.
But you cannot really define the function of the courts
in wider way unless you exanine also the Constitution
a-FA . o0lle
For an essential ingredient in defining what the role of
the courts is, is to ascertain the extent of their powers
and the circumstances in which their powers may be exercised.
When at this Conference you consider the relationship between
Go. erniti-ent and the individual, you are discussing far more
thn merely the role of the courts.
You are then necessarily discussing the whole constitution of
a country the relationship between the three elements of
legislature, the executive and the courts, and, as well,
whether there are definable basic rights of individual
citizens and what they are.
This Conference is also concerned with questions of what
oo'.. ers the courts should have; in what circumstances they
should exercise those powers; and, in particular, how the
courts may give effect to basic rights of individuals.
It must be noted that those two questions asked now, are, in
a real sense, quite different in their implications from
the like questions asked a hundred or two hundred or four
hundred years aigo. ,/ 4
-4-
Tho problems which Sir Edward Coke discerned in -the time
ot~ c -King James I and -the problems which you discern today,
may: appear similar or analogous; such as the preservation
or assertion of individual rights where there is a strong
ce-ntral law-making government. But the similarity or the
analogy cannot be pressed too far.
The need to preserve and assert those rights continues,.
but there is, in constitutional terms, a crulf between the
ci-rcumstances of kingly autocracy and the circumstances
of representative democracy.
The w. idening reach of government into the lives of its
citizens is a common feature of ' contemporary societies.
There are administrative laws for trade practices, price
control, the marketing of rural products, and tow,. n-planning;
there are welfare laws for health services, pensions,
unemployment benefits and homes for the elderly; there
is government provision or support for a variety of services
in the fields of education, broadcasting and scientific
research. All those laws have some effect on the individual citizen,
and where the rights or freedoms of individual citizens
are directly affected in the course of administering those
law., s, it often becomes a live question whether there should
be controls and what those controls should be.
* But, at least in the Western-style democracies, the increase
in Governmental administration has been a reflection of what
has been seen as popular desire or demand.
And even where, in truth, governments act on their own
initiative, that has been done consistently with the
concept of representative government directed to the cormmon good.
In saying this I do not suggest that the political or
constitutional theories which underlie the systems of
representative democracy justify infringements of accepted
individual rights. Indeed those theories include in
their origins the assertion of those rights.
But we have arrived at the present system of administration,
through departments and agencies of government, by a series
of logical extensions of the answerability of administration
to the legislature and of the legislature to the electorate.
Maybe those logical extensions need re-appraisal; maybe
the welfare state is mutating into an administrative state.
5
However that may be, when you are examining the-role of
the courts in the context of individual rights, you are
also involved in an examination of constitutional theory
in its wider aspects. That that is so, emphasises the
importance of the topics before this international Conference.
So far I have been speaking of courts in a national concept.
This Conference will also be discussing supra-national
courts. Australia supports the establishment, by agreement amongst
nations, of supra-national courts. I wish to underline
the importance of the word " agreement".
If a tribunal of whatever composition is to have jurisdiction
extending beyond the boundaries of any one nation, the
legitimacy of that jurisdiction must depend on the assent
of every country in respect of whose citizens and interests
it asserts jurisdiction. If disputes with supra-national
elements are to be resolved, it must only be by courts
so constituted.
The assertion by a national court of extra-territorial
jurisdiction is an assertion by it of supra-national
jurisdiction. It is consistent with national jurisdiction that a
national court have power to adjudicate upon matters arising
within the nation and to assert its authority over persons
who have a recognised connection with the nation.
A person, not a citizen of a nation or, in the case of
a company, not incorporated under its laws may reside or
do business within the boundaries of that nation.
The types of connection sufficient to give a national court
jurisdiction have long been accepted. But when a court
asserts authority over persons who arenot its citizens, and
who have not resided or traded or done any relevant act
within its borders, that is an assertion of extra-territorial
or supra-national jurisdiction. And if that court
declares that a national law empowers or obliges it to do that,
then that court is declaring that its national legislature
has arrogated to itself international power.
There are cases where that has occurred, so that the national
court concerned has regarded itself as obliged to claim
that jurisdiction despite the general rule that a nation's laws
have no extra-territorial oporation.
I want to suggest to you that this is a matter closely linked
with the subject of the courts and the preservation of the
rights of individuals; and that it is a matter affecting
the role of the courts, their integrity and independence. / 6
6
Suppose a person who has no such connection with a cou-ntry
as is accepted as sufficient to give the courts of that
country jurisdiction, does an act outside that coun-try:
and suppose that that act is lawful where it is done.
is it not an infringement of his rights for the courtCs
of the country with which he * has no connection to assert
jurisdiction over him and to make orders against him?
I[ s that not as much against conceptions of natural justice
as to deny a person the right to ba heard? The country
of which he is a c-itizen may forbid him to comply with
that order.
If it is conceded that so to forbid compliance is legitimate,
is not that conclusive of the argument? It cannot be
in accordance with the fundamental conceptions of justice
affecting the individual, which you are proposing to examine,
that an individual be so placed that whether he does something,
or refrains from doing it, he is equally to be declared
subject to penalties.
You are to be concerned in this Conference with the basic
concept%-s 0oIf independence and integrity of the courts as
institutions in society.
I suggest that the proposition that a national court is
limited in its jurisdiction, that it should not accept
or enfocrce extra-territorial jurisdiction, is an element
of that independence and integrity.
If it impairs the standing of a national court that it
countenances or cannot prevent infringement of the
individual rights of citizens of that nation, it is at
least an equal impairment if it acts to penalise the
legitimate acts of those beyond its accepted jurisdiction.
Supra-national jurisdiction is properly based on
international agreement.
I remarked at the beginning, that the topics of this
Conference may be discussed openly and without reservation
in Australia.
I suspect that what I have said since may have convinced you
of that, but it is the aim of a politician to get
everyone to agree with him.
Thank you for inviting me to be with you today. I welcome
you all and wish you well in your deliberations.
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