THE HON. LIONEL MURPHY QC

(1922-1986)

 

JUSTICE OF THE HIGH COURT OF AUSTRALIA 1975-1986

NSW SENATOR  1960-1975COMMONWEALTH ATTORNEY-GENERAL 1972-1975COMMONWEALTH MINISTER FOR CUSTOMS AND EXCISE 1972-1975

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SPEECHES

Justice Lionel Murphy of the High Court of Australia

1980

 

'The Responsibility of Judges' in Evans, G. Law, Politics & the Labor Movement Legal Service Bulletin in association with Australian Society of Labor Lawyers. Melbourne. 1980 :2-15

'National Press Club Speech' 22 May 1980

1983

'National Press Club Speech' 17 August 1983

1986

'Trial by Jury: the Scope of Section 80 of the Constitution' Australian Institute of Criminology Seminar Proceedings no. 11 1986

 

 

 




Evans, G. (ed) Law, Politics and the Labor Movement. 1980, Legal Service Bulletin, Melb: 1-15.

The Responsibility of Judges*

The law and its procedures are in most respects out of date, inefficient and often unjust. Everyone knows this - except 90 per cent of the Bar and 95 per cent of the judges. The civil and criminal laws are complex and bewildering to the average person; even specialists have difficulty in understanding some of them. Defamation, privacy, corporate crime, industrial law and a host of other areas scream for change. Property rights are still preferred to civil, political and personal rights. Out-of-date laws and procedures are not only unjust to individuals and groups, but also to society generally. They create a huge burden of social cost. Most lawyers are resistant to change, and many of them are resolutely determined to oppose any change. Only public pressure will bring about the necessary changes.

Let us turn to some of the areas where change is necessary. The criminal justice system in Australia (and elsewhere) is a disgrace to civilised society. The last United Nations Congress on the Prevention of Crime and the Treatment of Offenders said:

The established order was characterised in many countries by inequalities and even by real political, cultural and social injustices rooted in the economic structure. Some systems were reluctant to accept the fact that law was relative and that the norms and mechanisms of that law were valid only for a given moment of history: the image of criminal justice was, to a large extent, rendered sacred and ritualised by texts that were more understandable to the officials who applied them than to the citizens who were to live by them. The staging to justice, the dress of its officials, it special meanings and its language were those of insiders, of professionals, whose choice of career, whose training and whose hierarchy were characterised by a certain rigidity. This gave rise to something which was not authentic in the relations between the protagonists of a criminal trial, between the victim and the perpetrator, between the latter and the policy, the prosecutor, the judges and the prison officers, between criminal justice and public opinion.Every word of that is true of Australia.

At the lower end of the scale, there are pressures to plead guilty which prove irresistible to most persons caught up in this system. There is far too much imprisonment, except for the rich. It is easier for a camel to go through the eye of a needle than it is for a rich man to go to gaol.

The committal proceedings we have are a public scandal, especially in the area of corporate crime. They are dragged out; public time is wasted, and an enormous amount of public expense is incurred. Very often, where frauds have been perpetrated against the public, little or nothing happens. We can provide better procedures than these.

In indictable matters, trial judges often have to give directions which are absurdly complex and overloaded with detail; judges are often engaged in technical exercises which they hope will satisfy a Court of Criminal Appeal rather than illuminate the minds of the jury. For example, the direction which a trial judge is supposed to give on self-defence could not be understood by a jury of 12 intelligent laymen, nor by a jury of 12 intelligent corporate lawyers and, I suspect not by most judges who have to administer that branch of the law. A distinguished law officer in South Australia appealed to the High Court for some enlightenment in this area, but those present, including myself, felt unable to assist him.

It is most regrettable that the legal system can be viewed with such a lack of confidence by the public that it achieves little of its aimed goals and it falls with great severity on the poor and those least able to defend themselves.

On the other side of the coin, corporate frauds against the public are often committed with the assistance of accountants and lawyers who close their eyes to what is happening. Some kind of magic seems to prevent the law on aiding, abetting or counselling being applied to those professionals without whose assistance the crimes could hardly be successfully carried out.

Prisoners have been denied a number of rights that should be automatic. The United Nations Congress on the Prevention of Crime and the Treatment of Offenders was due to be held in Sydney in 1980. A week ago, the Australian Government cancelled it. Some may think that Australia does not need to learn anything about the treatment of offenders, and perhaps our history gives them support.

Two hundred years ago, Europeans came to a country inhabited by peaceful people living in harmony with their environment, with an ancient system of law and a highly developed system of social justice. They had no need of the goods, the laws or the ideas of the invaders. The British Government took away their land, killed most of them, and brutalised and degraded them. We continue to degrade them, to discriminate against them, and to deny them elementary human rights. They constitute only one per cent of our population.

Fifty per cent of our population are women. Australian women wee once in the forefront of the struggle for emancipation and for civil and political rights. Yet, we have systematically denied them civil and political rights, sometimes overtly and by legal means, but very often covertly. Consider the judiciary. There has never been a woman on the High Court or the Federal Court. Recently, complaints were made that no judge of the High Court had ever come from the three smaller States, but the fact that no woman has ever been appointed arouses no comment. The Chief Judge and some of the judges of the Family Court of Australia are women, but the general picture is one of consistent sex discrimination at the highest levels. This applies not only to the judiciary, but to the legislature and the executive. There are no women members of the House of Representatives.

In the First Division of the Public Service, there are about 40 persons of Permanent Head status who exercise extremely important administrative and influential policy roles. There has never been a woman in these positions. In the Second Division, about 1,000 persons occupy important administrative and influential policy roles. There are only about 10 women. It is generally the same in the States. New South Wales has about 40 Supreme Court judges  and about the same number of District Court judges; there is not one woman. There has never been a woman judge in New South Wales; there are no women among the top public servants; there are only two women in the 90-odd members of the Legislative Assembly; there is no woman Minister in the New South Wales Parliament. It is nice to be in South Australia where occasionally you have a woman appointed at least to the judiciary.

Thus, there is a systematic sex discrimination at all levels in official Australia, blatant according to the standards of other countries and provable statistically. Yet the legal system offers no answer, or at least those who operate the legal system have not tried to give any answer.

Sex discrimination in pervasive. We find it not only in official areas, but sometimes in other areas, and I am told that even the Labor Lawyers are not altogether immune from the practice. The community tolerates the discrimination; men tolerate it, women tolerate it. One only has to go to a racecourse to see that in the official enclosures there are invisible lines across which women must not pass. The control of that, of course, is the State legislatures and often in the State governments, but nothing is done about it.

There are other areas which seem to deteriorating. There are signs in Australia that we are about to repeat the unfortunate experience elsewhere of labour injunctions and contempt citations being issued by ordinary courts against trade unions. The union injunctions brought the courts into such real contempt in the United States that their intervention was outlawed by legislation. But indications here and elsewhere are that the lesson has not been learnt from the experience of others; we have to learn it ourselves.

Tax avoidance is the rich man's province and some of the best brains of the law devote their energies to it. Some of the work of the legislators is designed to overcome the work of the tax avoidance experts, but anyone conversant with the field knows that the Treasurer is standing there like King Canute; he may hold back the waves immediately in front of his feet but no more. While the tax laws are interpreted as they have been, it is not possible for legislation to overcome tax avoidance; as fast as one loophole is closed, 20 will open. The problem (and the answer) is not in how the law is drafted, but how it is interpreted.

Then there is the doctrine of precedent, one of my favourite doctrines. I have managed to apply it at least once a year since I've been on the Bench. The doctrine is that whenever you are faced with a decision, you always follow what the last person who was faced with the same decision did. It is a doctrine eminently suitable for a nation overwhelmingly populated by sheep. As the distinguished chemist, Cornford, said: "The doctrine is based o the theory that nothing should ever be done for the first time".

The vast part of the law, the area not occupied by constitutions and statutes, is judge-made. It is called the common law, which disguises its true nature. It should be called the judge-made or decisional law. As judges make the law (or it has been made by their predecessors), they are entitled to bring it up to date. They continually neglect to do so on the excuse that only parliaments can do it. Seven hundred years of the history of the common law contradict his excuse. Otherwise, we would still be deciding cases according to the law of King Stephen. Many judges still subscribe to the myth that judges do not make law and it is used as a justification for not making law. The community is entitled to ask, "How then has the common law changed beyond recognition in areas not controlled by statute".

Some great judges have repudiated this myth. On e was the great Justice Coke, who is well remembered as going from being a controversial Attorney-General to become a revered judge. In modern times many luminaries, such as Justice Holmes and Lord Denning, have laughed at the myth that judges do not make law. It has been described as infantile or puerile, and so it is. Judges should admit that they can change the law in the areas left to them by constitutions and legislatures. They should not change it by stealth, they should change it openly and not by small degrees. They should change it as much as they think necessary. It is intellectually dishonest to change the law by distinguishing cases and other devices when what is called for is a frank repudiation of the ground of the previous decision and an acknowledgment that a new approach should be taken. Essentially, it is a non-democratic process because it is left to a group of appointed people, which is largely unavoidable because the representative system is not really capable of dealing with the day-to-day adaptation of the law in certain areas. That is a lesson in history. Once the undemocratic nature of it is accepted, it is essential that the appointed law-makers be exposed to the democratic process. Judicial decisions should be freely available and the reasons publicised and subjected to informed scrutiny and criticism and to the legitimate pressure of public opinion. The social function of the judges needs to be understood, studied, criticised and improved.

Looking back at what has happened in English and Australian society, you can see that its movement from the feudal system, through the mercantile and the industrial revolutions, to our modern complex society, has been accompanied by vast changes in the law, for the most part accomplished by judicial decisions. In many cases, the law has lagged behind social changes. In some areas, it preceded and helped to promote the social changes.

Lord Mansfield is a good example. He almost single-handedly rewrote the commercial law of Great Britain after going to the merchants and finding out what their practices were. This was a major factor in London's becoming the commercial centre of Europe; the growth of the British Empire was made possible to a large extent by the fact that Britain was the commercial centre, that it had a set of sensible laws under which trade and commerce could flourish. There are many historical examples of the sensible adaptation of the laws to the changes in society. Regrettably, this century has been one of abdication of judicial responsibility. In Great Britain from 1898 till 1966, the British judiciary acted on the view that one the law was made (at least by the House of Lords), it could only be changed by parliament. This began a tendency to freeze the law, and, as a result, Australia has suffered as part of our post-colonial syndrome by following the British even more zealously than they followed themselves.

Legislatures have responded to judges declining to adapt the law by setting up law reform commissions. This was one of the main reasons for the establishment of the Australian Law Reform Commission. If the judicial function had been properly exercised, I think it would have been unnecessary to have the law reform commissions which now proliferate in Australia. however, the public now has a forum through which it can press for changes in the laws and participate in the making of statutes in areas which were formerly the preserve of judges.

One important public role is diminishing. Public participation in the judicial process occurs only in limited ways. One, the appointment of the judges through the legislative and executive representations of the people, is very indirect. The other is the jury system, and extremely important function of the people in the judicial process. Arguments are advanced for taking away juries, for example, in corporate crime, because cases are too complex for juries to understand. This is nonsense. The traditional approach of the law to complicated subject matter is not to do away with juries and have decisions by experts, but to bring experts into the courtroom to give expert evidence to the jury. No corporate fraud is more complicated than poisoning cases, such as the trial of William Palmer for strychnine poisoning. If you run through the history of the law you will find again and again cases of the greatest complexity which were handled admirably by the jury system to the satisfaction of the people. The trend towards doing away with the jury has very strong implications which are inimical to the freedom of the people. Erosion of trial by jury is an anti-democratic process.

We need definition and development of the law in many areas involving disadvantaged groups, such as children's rights. We need provision of legal aid as an instrument to equalise opportunity. This will require change in the attitudes of academics, of practitioners (governmental as well as private) and of judges. The impetus for change will not come from establishment lawyers; it will come from lawyers like you. To effect the changes will require imagination, creativity, energy, resourcefulness, enthusiasm and, above all, persistence and courage. It is worthy of the efforts of Labor lawyers, it is a labour of love. I wish you well. I declare this First National Conference of Labor Lawyers open.

DISCUSSION

Eugene O'Sullivan (Qld): Is equal opportunity the answer to the problems of discrimination you posed?

Mr Justice Murphy: I don't know whether it's the whole answer. As some people have wisely said, it takes changes in attitudes as well as legislation. But I think that it can help: where attitudes can't be changed, perhaps conduct can be changed. What surprises me, though, is that the lawyers have never endeavoured to pursue the legal theories which one would think might offer at least some opening to do away with discrimination. Even on the most general theory one would think that those with official power - statutory powers of various kinds - are hardly entitled to take into account extraneous considerations such as sex and race and religion, and yet they have done it for many years and no-one has ever endeavoured to test whether they are entitled to do it. An Equal Opportunity Act might put on the statutes only what after all in many ways is there already - impliedly there.

Terry Higgins (ACT): Might not your approach to judicial method - right over precedent - be used equally by conservative forces, and produce results that are less socially desirable?

Mr Justice Murphy: I don't think that anyone would suggest that a common sense approach to the law wouldn't lead to a certain amount of predictability. If I gave the impression frivolously that no-one would ever follow what had been done before, I certainly didn't intend to do that. The fact is that our constitutions and statutes only cover a very small part of the law. A great deal is already left, and has been left for hundreds of years, to the judges. Almost the whole area of torts and contract has, at least until recently, been left to the judges to decide what it should be - to mould and adapt it and so on - and it's no use saying, say, in areas of tort, that they might get more conservative: there are certain things which are impossible. The answer, I think, is that there should be more explicit reasoning, there should be more public examination of what's been done, so that if the community thinks that the judges are taking a line which is incorrect, then the Parliament can intervene and deal with it. But it's an extraordinary proposition that the judges should suddenly, in the 20th century, in a period of changes, decide that it's not their role to change things, which they have been changing, sometimes quickly, sometimes slowly, for seven hundred years. Are judges to say: now we'll decide to down tools and just let the law stay there unless the Parliament can find enough time to deal with these matters; if Parliament can divert its attention from unemployment, inflation and foreign policy and everything else to turn round to deal with the thousands of legal rules, well and good, but otherwise the judicial system has no real responsibility for bringing the rules up to date? That can hardly be a satisfactory system.

Rod Madgwick (NSW): Can we learn anything from the United States so far as the appointment of judges is concerned?

Mr Justice Murphy: Well there is no doubt that in Australia, the judges are selected from an extremely restricted section of the community, traditionally from the senior Bar in those States which have a separate profession. Indeed, if some persons had their way, the class would be even more restricted: there is one judge in New South Wales who observed that with all this migration coming into the country, there are a lot of people now who are not of Anglo-Saxon stock becoming lawyers who don't have the judicial temperament, and don't even have the temperament, really, to practice law properly. So it's difficult to know where one should draw the line. There are people of that mind who would see to it that no-one like Cicero or Justinian or Grotius would get near the bench in Australia, even if they were able to get to the Bar. I think in many ways our process is too restricted. Earl Warren, whom many think was the greatest judge in modern times, would probably never have been appointed to the bench if he were in Australia, and I suppose nor would Frankfurter or Douglas: the first because he was a politician, and the other two because they had the even worse defect of being academics.

Clyde Cameron (SA): Legislatures and executives seem very often intimidated by what the High Court has said. It is very difficult to break new constitutional ground if governments are too cautious to test it. Could you comment?

Mr Justice Murphy: It is true that the advisers of governments have throughout history tended in systems like ours (they don't have the same problem in Great Britain) to advise on caution, and this presents some difficulties. Caution is always easier professionally: if you don't do it, you can never be wrong. But I agree with another Attorney-General who, when he was Solicitor-General, often said that a government should chance its arm - in other words that if governments are minded to do things, to pass laws that they think might or might not be constitutional but which they want to pass, then they should not be deterred by the possibility that the law might be unconstitutional. Otherwise you'd be doing legislatively what Corford said about the doctrine of precedent - you'd never do anything for the first time.

Anthony Regan (SA): Can you give examples where the Court has been able to free itself from precedent?

Mr Justice Murphy: If you open up the law reports and look through them you will find many examples where the law has changed in recent times. If one looks at the law of discovery, for example, one finds - and I leave aside the more celebrated case and refer to another one - the very important case of Grant v Downs (1976) 135 CLR 674 in New South Wales, in which it was held that legal professional privilege did not have the extremely wide coverage that had been thought for a very long time. It was a sad thing for the Law Society of New South Wales: they had just published to their members what the latest and final word on the law was, saying how almost everything was privileged, when the decision of the High Court came out saying that almost nothing was privileged. What I have said about the doctrine of precedent is really nothing new at all. The judge either has to follow what's been done before or he doesn't, and he either thinks it's wrong or it's right. Are you to follow what your predecessors did if you think that it's wrong? On occasion you do that - because you think, well, the difference between the two is no more than whether you decide to go on the left side of the road or the right as long as everybody does it, and you don't trouble greatly if there is some trifling difference. But if there are serious and unjust consequences, then it would seem that it is the duty of the judges to evolve a law which is rational and humane and just, and that they should use their abilities to achieve such a law. One must take into account the desirability of predictability - this is not to be set aside lightly - but on the other hand the law has to be evolved: what may have been just a hundred years ago or fifty years ago may very well not be just today. It must be remembered that while changing the law may be regarded as policy-making by a the judges, it is equally an act of policy-making if you decide that there will be no change.

Wolfgang Schutz (SA): Would the United States requirement that law students be postgraduates lead to a less conservative and more broadminded profession?

Mr Justice Murphy: I do not think law students should have to do another course first; it may be desirable if they do so, but I don't think that there should be any more barriers put in the way of people wishing to qualify for law. But certainly it is true that the wider knowledge that people have who are practising law in all spheres, the better for the community. There is a certain narrowing in the practice of law, a tendency to analyse and be strictly logical, which is admirable but often produced at the expense of other qualities. Anything which would help to make lawyers more understanding of what goes on it society, or aware of the problems of their fellow human beings and more sympathetic to them, I think would be desirable.


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'National Press Club Speech'

 

22 May 1980

 

Mr Justice Lionel Murphy QC

 

of the High Court of Australia

 

(Incomplete Transcript)Övisited Australia recently has asserted that, I quote, "There is no such thing as a valueÖor neutral interpretation of the law. Judges, like everybody else, are influenced by the economic and political climate of their time. Judges much move with society."

It is really impossible to get a Judge who does not bring his own social values to bear on the cases. Some cases of course are so clear that the Judges are unanimous, others are not, and sometimes, not rarely, the social values will be strong factors in individual judgements. If Judges are normal human beings they have social values concerning the kinds of issues which arise before the courts.

There are specialists who measure Judges' performance in the United States and in Australia, particularly in Australia the High Court, and the result of their work is described as 'jurimetrics'. It is obvious from jurometrical studies that all Judges have pronounced social values which can be seen consistently throughout their judgements. This does not mean that one can predict the decision of a case or the decision of any particular Judge, but one can predict with a great feel of probability that on issues of a particular type Judge A will tend to be more on one side than Judge B. There have been studies in Australia, particularly those by Professor Blackshield that have shown the tendencies of the High Court Judges since Federation on various issues, and what is remarkable about those studies is the consistency of the way the patterns of social value are reflected in the decision of the cases.For the public to maintain confidence in the judiciary at least two things are needed.

Firstly, there must be a balance in the selection of Judges. Secondly, there must be informed public discussion about the judiciary and what it does. As the social values of the Judges so greatly influence the laws and their application it is of the utmost importance in a democratic society that those values fairly reflect the prevailing values of the society in which the Judges operate. Therefore it is extremely important what kind of person is appointed to the courts. In many countries there seems to be a reasonable balance of social classes, of races of sexes. But in the United States, in the United Kingdom and in Australia the picture is far from reassuring, yet even in the United States there would be outcry if all the Bench were Democrats or if they were all Republicans. In Australia no attempt is made to achieve any balance. With rare exceptions appointments are made of persons who can fairly be regarded as conservative or ultra-conservative.

If the balance is destroyed so that the courts are obviously overwhelmingly dominated, particularly by conservative or on the other hand progressive attitudes which do not represent a fair reflection of those attitudes in the community the court is likely to be regarded with suspicion. A proper balance throughout our legal system is overdue. This includes the appointing to the Federal and State Courts of women as well men Judges and court officers, of those whose families are not from the British Isles, as well as those who do originate from the British Isles. On the present trends it will be a long time before that balance is achieved. There has never been a woman on the High - where there are seven Judges, nor on the Federal Court - which has now about twenty Judges. The Family Court of Australia has the only woman Chie Judge in Australia and a sprinkling of women Judges. The Supreme Court of New South Wales has about forty Judges, but does not and never has had a woman member. Nor have the supreme Courts of Victoria, Queensland, Western Australia, and Tasmania. There is one woman on the Supreme Court of South Australia. The picture is the same with the District Court Judges of the Australian states. Despite the great wave of non-British migrants in the forties, fifties and sixties few if any of their sons appear to have become Australian Judges. We know that their daughters have no chance.

Universal experience shows that women and non-Britishers are perfectly capable of being admirable Judges. We should examine our legal education and legal practise and processes of advancement to find what is inhibiting the advancement of them to judicial office.

Apart from those factors, the process of selection is too narrow. It is almost restricted to the appointment of Queen's Counsel. This means that in the legal profession where you have academics, where you have government lawyers, where you have solicitors and junior barristers as well as senior barristers, the selection is restricted to almost one percent of the lawyers. I know of only one academic who has been appointed to the Bench in Australia and that was to the Family Court, the almost, without exception solicitors have been excluded and that excludes ninety percent of the lawyers, then one turns to the barristers and of those ninety percent are excluded - those not being Queen's Counsel. Now, it means that the Judges are being drawn from an extremely unrepresented, and I think it is fair to say, extremely conservative section of the Australian community.

Now do not misunderstand me, I am not suggesting that there be some system of proportional representation so that there is some exact representation on the judiciary of all sections of the community, far from it, but we have gone much too far away from any reasonable balance in Australia. Now that's not merely a personal view of mine, that is shared by others outside Australia who observe it including some very distinguished lawyers in other countries.

The media should not be inhibited from criticism of the decisions of the courts. The High Court is after all seven men appointed by governments, largely an elite, exercising a very great influence on Australian society. It is of the utmost importance that their decisions be subjected to analysis and criticism by academics, parliamentarians, the public and the press. Academic analysis tends to be confined to specialist areas. There is very little attention given by anyone to the whole spectrum of Judges' work.The courts in Australia have not made much contribution to civil liberties. This may be explained partly by the slavish following of the English Common Law decisions, which on the whole have not a good record in civil liberties. The other reason at the absence of a Bill of Rights which gives courts the opportunity and to some extent requires them to preserve fundamental freedoms. However, the leaders of our society proclaim to the nation and other nations that our society, our laws, are conducted according to certain fundamental principles, for example the rule of law - equal justice and opportunity for all, equal protection of laws, and they state that everyone is entitled to live in freedom and dignity. These are fine principles, regrettably they are not strictly observed. The people who suffer in our society are obvious, aborigines, migrants, women and those who are physically and economically disadvantaged. Their complaints are not revolutionary, all they ask is that the great principles of justice be applied to them.

The ideals of law are most admirable. The problem is to get the courts t implement in practise what the law proclaims in theory. The High Court's success will be judged by the extent to which it does implement the great ideals of justice and human rights.

There are certain dangers which confront the courts. The Constitution puts a great deal of power in the courts, therefore the courts use of powers should be scrutinised vigilantly. Perhaps the most dangerous use of power by courts is the contempt power. This affects the whole judicial system. Use of the contempt power is contagious and it is far more frequent than it is obvious from reading the newspapers.

Why is the contempt power dangerous?

Because it often limits freedom of speech or action and because it is susceptible to abuse. The person charged with contempt is generally judged by the person supposed to be offended by the contempt. Some form of sanction is necessary to ensure that the courts can carry out their duties, but in Australia and elsewhere the contempt power is not surrounded by the usual safeguards against arbitrary or capricious use and appeal rights from contempt charges are often restricted, or, completely absent. In general, wherever possible, a contempt charge should be heard by a court other than the one claiming to be offended and if this is not practical for example because the court needs to get on with a trial, there should be an automatic review by another court.

There are other dangers which confront the courts. One is the pressure to make the courts inaccessible to the ordinary public. I do not speak of physical inaccessibility. The courts are open to all with the exception of the Family Courts which by statute are closed other than in exceptional cases because they deal with private and family matters. I speak of the tendency of courts to prevent cases by technical rules of standing and other devices. The expense of litigation is another deterrent. Legal aid is often not available even in the most deserving cases.

How do we cope with these problems in Australia?

One is, one trusts that the balance in the, the imbalance in the courts will be corrected. One trusts that with such a mixture of social values that there is that to some extent the courts can be regarded as a whole as impartial even if necessarily they are composed of members with different social values that none of those predominate and the institutions as a whole can be regarded as at least showing a better balance than it would be if the individuals were dealing with cases, but much has to be done.

Traditionally the public had an important part in the judicial system through the juries, but they are increasingly being excluded. Regrettably also, the judicial process including its law making has become more and more remote from the public by use of outmoded language, outmoded dress and outmoded ideas, as well as by the lack of publicity of the decisions of the courts. It is essential that the judicial process be responsible to legitimate public opinion. The social function of the Judges needs to be understood, studied, criticised and improved. A great responsibility is on the press of Australia to inform the public of what is being done in the courts, by what kind of people it is being done, why it is being done, and whether it is being done justly.

A verse at Lionel Murphy's wake:Although we are here to say farewell to LionelI find it hard to think these words quite finalHe was an atheist of conviction firmAnd yet I sense his imminent returnTo check myÖrearrange the wordsGive a brief lecture on the art of verseSet up a lunch or two perhapsAnd then dilate upon the mysteries of Zen or love,Or Mathematics or the Bench,While on the telephone to five close friends.For us it won't be in the Law Reports but in the lastingRecord of our thoughts where Murphy will endure,Not as a lawyer, although without him law will be the poorer,But as a man who laughed and taught and drank,And while possessing it poked fun at rank.This was a great and splendid man of passion in times whenLesser virtues are the passionWell may we say as in the recent song 'Lionel farewell youShook us all night long'.

 

 

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NATIONAL PRESS CLUB SPEECH BY

THE HON MR JUSTICE L.K. MURPHY

 

 

 

Wednesday, 17 August 1983

Canberra

 

 

I last spoke here in May 1980 just before the opening of the new High Court building. In those three years the Court has become much better known. There have been nearly 1_ million a year.

The visitors are entitled to hear what is said, because the proceedings are supposed to be public hearings. Regrettably, the public can see but rarely hear. The best counsel speak directly, briefly and clearly so that everyone can hear. Those are the successful ones. The Court does not penalise long-winded mumblers for tedious repetition, but their incompetence in presentation generally reflects mediocrity.

Recently one counsel read to the Court section after section of a State Act, although the Court could easily have read it itself in a fraction of the time. He insisted that this was necessary to present his client's case properly. Such waste of public time involving heavy costs of other counsel as well as the time-waster, is becoming intolerable.

Law Reporters

The High Court is being reported better than ever. Several highly competent reporters regularly report the proceedings of the Court in the dailies and weeklies in a highly professional way. These reporters closely follow the proceedings in the Court and study the documents filled and attend the hearings. They perform an extremely valuable service for the Court and for the nation. We still have the odd journalist who produces the gossip and beat-ups.

Members of the Court

In the three years the Court's composition has altered substantially. Chief Justice Barwick and Justice Stephen have resigned and Justice Aickin died. Justice Gibbs has become Chief Justice and we have three new Justices Brennan, Deane and Dawson. The Court is overloaded with work. To lessen the workload it has requested that appeals from the State courts be on the same basis as appeals from the Federal Court and the Family Court, that is by special leave only, and also that it be allowed to remit cases or parts of cases to any other appropriate court.

The decisions of the Court have important social and economic consequences. I will mention some important changes of approach and decisions by the Court.

Tax avoidance

The Court no longer encourages the tax avoidance industry j- it is no longer regarded as the tax avoider's temple. The Court used to read Acts of Parliament absolutely literally - the words were all important - the spirit was often ignored. This made it easy for any competent lawyer or accountant to devise schemes to turn profits into tax losses. Because of this many of the risk ceased to pay tax and the burden fell on the workers and the scrupulous. This literal approach has been abandoned by the Court, which now adopts the correct judicial approach that Acts of Parliament should not be interpreted in a way which Parliament could never have intended.

External Affairs

The recent World Heritage or Franklin River Dams Case aroused much comment favourable and unfavourable. Several points should be remembered. An Act of the Australian Parliament prevented building of the dam. The Court was simply asked to rule whether that Act was valid. By 4 to 3 the Court held that it was valid. Similarly it held last year by 4 to 3 that the Racial Discrimination Act was valid. In each of these decisions the Court upheld the Parliament's use of its external affairs power. That power has often been used over the history of this Commonwealth. Fifty years ago the Court held that an Act of Parliament implementing in Australia the International Convention on Civil Aviation was valid. In my opinion if the Racial Discrimination and the Dams case has been heard by the same judges of fifty years ago the only difference would have been that the Court would have held the laws valid by seven to nil instead of four to three.

A suggestion has been made that the decisions of the Court in such constitutional matters should be unanimous. What does this mean? Does it mean that the decision must be unanimous in favour of a federal law before it is held valid so that if one judge thought it was invalid it would fail? Or does it mean that it must be unanimous for invalidity before it would be held to be invalid, so that if only one judge thought it was valid it would stand? Each is absurd. Perhaps that is why we have heard no more of it.

Industrial disputes

In the Australian Social Welfare Union case, decided on 9 June this year, in a joint judgement, the Court unanimously held that the constitutional meaning of industrial disputes was disputes about wages and conditions of work and related matters. It rejected the view that it meant disputes in industry. We thus returned to the views of the original justices. In doing so we corrected 54 years of decisions which had created difficulties for governments, business, unions and workers. The decisions had provoked continuing criticism for their articiality. The way is now clear for the firefighters, teachers and many others to enter the federal arbitration system, and the Arbitration Commission is freed from some of the artificial restrictions which have hampered its work.

Conspiracy

Conspiracy cases continue to choke the criminal courts. Despite the warnings by this Court, repeated by the Chief Justice in his address to the 1983 Legal Convention, prosecutors tend to lay charges of conspiracy to commit an offence, which means longer, more expensive trials, even in cases where persons could be charged directly with the main offence. There is little doubt conspiracy is used because it is so vague and the rules of evidence on it are so loose that otherwise inadmissible prejudicial evidence is admitted. The overuse of conspiracy has been condemned in other countries as well as here, but is continuing.

The delays in criminal trials are a grave denial of human rights. Take for example a person charged in Sydney with an ordinary crime such as housebreaking. If he is allowed bail, he must wait about 18 months for his trial, and if bail is not allowed, he waits in prison for over 6 months for his trial.

Royal Commissions

Every generation seems to have a spate of them, until governments and the public become disillusioned and fearful of their erosion of civil rights. Thirty years ago New South Wales Attorney-General Sheahan, who had long experience of royal commissions said "in the main they are a waste of public money that might be better spent on building schools and hospitals. If we are anxious to continue Star Chambers methods or supply free copy for the newspapers, by all means let us have royal commissions, but if we want to give justice to one and all, and show malice to none, let us invoke the ordinary processes of the law. If we do that we shall also protect our judges from ignominy and the charges of partiality that always follow royal commissions, especially when they have political moves".

I have been astonished, and I think the public has been astonished, to find that in royal commissions it is now fashionable for witnesses to be allowed to give their speculations on other people's motives, to tell what they heard on the grapevine, and even what their mother-in-law says.

The process of demanding a royal commission where there is an allegation of criminality resembles "Alice in Wonderland" where the Queen said "First the Verdict - then the trial".

In several recent Royal Commissions we have had persons adjudged guilty by the Royal Commission and then sent off to trial. If the move for expanded permanent Crime Commissions makes this procedure general it will mean an abandonment of the protection's which for centuries have been regarded as essential for the preservation of personal freedom.

Despite the fact that Royal Commissions are often headed by judges, they are not exercising judicial power. They are exercising executive power.

Executive Power

Our Constitution envisaged that the executive power would be exercised by Departments administered by Federal Ministers. It is often said that government, especially the Federal Government, is becoming more powerful. There are many indications to the contrary. The executive power has to a very great extent been fanned out to statutory corporations, boards and permanent and temporary commissions. A great deal of executive power is also exercised by public servants, sometimes to the exclusion of the Minister. A striking example of this was revealed in the case of Salemi v The Minister for Immigration in 1976. Under the Migration Act as it stood and still stands any officer of the Department of Immigration could issue a permanent or temporary entry permit (that is a visa). So could authorised customs officers. So could any Federal or State policeman. But in that case the present Chief Justice held that the Minister himself had no power to do what any of these thousands of others could do. It is pleasing to see that the Minister for Immigration has introduced a Bill which proposes to allow the Minister to do what any of the officers of his Department can do. No doubt this extraordinary reversal of roles occurs in other Departments. The tendency for executive power to slide away from the elected to appointed officers and bodies is a remarkable feature of our political life.

It is very difficult to predict the future, but if present trends in Australian society continue, the most powerful public official in the year 2000 may not be the Prime Minister or any other Minister, but the official in charge of police and security. Unless we take preventive measures we might have our own Edgar Hoover, able to blackmail governments and legislators, and to undermine civil liberties in the pretence of law and order.

Contempt of Court

Three years ago I said that perhaps the most dangerous use of power by courts is the contempt power and that its use is contagious. Since then Mr Gallagher was sent to gaol for three months for scandalising the Federal Court. Such a charge is regarded as obsolete in England and would not be tolerated in the United States in the absence of a clear and present danger to the administration of justice. Also Mr Collins was sentenced to gaol for two months on a charge of contempt of Court for handing out leaflets in the street outside the Court. I am not here to question the correctness of those decisions but they show that there should be a change in the law. Each person was tried by the court supposed to be offended. Gallagher was charged by the Attorney-General but Collins was charged by the Court itself which thus became prosecutor as well as judge. Gallagher had an internal appeal in the Court. Collins' was tried by the Court of Appeal. In each case the High Court refused special leave to appeal against conviction and sentence, so that the decisions by the offended courts have not been reviewed. The usual safeguards in criminal justice are denied to one accused of contempt of court. He is deprived of jury, generally tried on affidavits so that he is unable to cross examine witnesses against him before he is required to put his defence. The court itself may be the prosecutor and as in the Collins case send its officer to argue against any application for an independent review of its decision. In an ordinary jury trial the traditional practice is not to be award costs against a convicted person and in any event never to award costs beyond his capacity to pay. But in contempt cases, as in Gallagher and Collins, the practice has arisen of subjecting the person to heavy orders for costs without regard to capacity to pay. The law and the procedure in such criminal contempts is an affront to civil liberty, and should be changed. The Australian Law Reform Commission has been asked to report on what changes should be made.

National Laws

The nation suffers from the absence of national trade and business laws. The introduction of such laws does not require any increase in federal legislative power. There is already ample power to make laws with respect to interstate and overseas commerce, corporations, insolvency, banking, insurance and others.

Insurance, commercial arbitration, sale of goods, consumer credit, product standards, company insolvency, valueless cheques and a host of other areas should be governed by national laws. It is time-wasting, expensive and inefficient that every Government and Parliament should have to deal with the technicalities of such laws. They are a drag on the business community. Why should national businesses have to register in every State and territory, and comply with 8 separate sets of rules and regulations governing their business conduct, the standards of their products, and labelling, consumer credit and so on. When the business community realises how much this proliferation of laws and administration is costing in time and money, it will emerge as a third force to question the necessity of 8 laws instead of one. Where the need for uniform laws is demonstrated, the case for one national law is generally irresistible.

As I understand it the media have recognised the burden of 8 different defamation laws and are pressing for a single national law.

Law Reform

There are too many areas which require reform to mention them all. I will mention that in judicial appointments there is still not balance of social and other values and sexual discrimination is overwhelming. In the High Court, the Federal Court, all the State Supreme Courts, except South Australia, there is no woman justice. When it comes to women judges we have not even reached the stage of tokenism.

In civil liberties, we are on the toboggan - privilege against self-incrimination, right to trial by jury, freedom of expression are all under attack. Personal privacy is becoming more and more difficult to preserve. One way to preserve it is the development of legal remedies for unreasonable invasion of privacy and for outrage.

The never-ending task is to translate the contemporary ideals of democracy and justice into practice. Success depends on the quality and performance, not only of our judges, but also of our educators, our representatives and our media. 
 


return to list of speeches

 







In AIC Seminar Proceedings No. 11(1986)

TRIAL BY JURY: THE SCOPE OF SECTION 80 OF THE CONSTITUTION

Mr Justice L.K. Murphy

High Court of Australia

CANBERRA

I have been a life long believer in the value of trial by jury. Recent events have confirmed my belief. Trial by jury should be maintained and extended as far as possible.

Trial by jury is our legal heritage. At state level, we derived it directly from Britain. At federal level we adopted it from the United States. In modern times the people's will is exerted upon the legislative and executive branches of government through the ballot box. The jury is the means by which the people participate directly in the administration of justice.

In 17th century England, after the experience of the Star Chamber and other methods of inquisition and trial, the ancient jury system was recognised as a safeguard against arbitrary power. Blackstone in his Commentaries warned against open attacks upon the jury system, and also against sapping and undermining it, by new and arbitrary methods of trial by commissioners and similar bodies. He said:Öand however convenient these may appear at first, (as doubtless all arbitrary powers, well executed, are the most convenient,) yet let it be again remembered, that delays, and little inconveniences in the forms of justice, are the price that all free nations must pay for their liberty in more substantial matters; that these inroads upon this sacred bulwark of the nation are fundamentally opposite to the spirit of our constitution; and that though begun in trifles, the precedent may gradually increase and spread, to the utter disuse of juries in questions of the most momentous concern.(1)

As de Tocqueville said 'The institution of the jury places the real direction of society in the hands of the governed, and not in the hands of the governmentÖall the sovereigns who have chosen to govern by their own authority, and to direct society instead of obeying its direction have destroyed or enfeebled the institution of the juryÖ(2).

In the American colonies trial by jury was guaranteed in the Constitutions of the original thirteen states. The Constitution of the United States, in article III, itself provides 'the trial of all crimes, except in Cases of Impeachment, shall be by juryÖ'.

In Duncan v Louisiana(3) the United States Supreme Court said the guarantees of trial by jury 'reflect a profound judgement about the way in which the law should be enforced and justice administered. A right to a jury trial is granted to criminal defendants in order to prevent oppression by the Government'. They said it gave an accused

An inestimable safeguard against the corrupt over-zealous prosecutor and against the compliant, biased, or eccentric judgeÖThe jury trial provisionsÖreflect a fundamental decision about the exercise of official power - a reluctance to entrust plenary powers over the lift and liberty of the citizen to one judge or to a group of judges.

Section 80 of the Australian Constitution states:

The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the parliament prescribes.

IS S.80 A MERE PROCEDURAL PROVISION?

The question is whether trial by jury even for serious crimes can be avoided simply by not using the procedure of indictment. In 1928, in Archdall's case, Mr. Justice Higgin's answer was yes. He bluntly stated that 'if there be an indictment, there must be a jury but there is nothing to compel procedure by indictment.(4) In the same case, Chief Justice Knox and three other justices said 'The suggestion that the Parliament, by reason of s.80 of the Constitution, could not validly make the offence punishable summarily has no foundation and its rejection needs no exposition'.(5)

In Lowenstein's case Chief Justice Latham said 'The Commonwealth Parliament can, at its discretion, provide that offences shall be triable summarily or on indictment. It is only when the trial takes place on indictment that s.80 applies'.(6)

The effect of these decisions was summed by Chief Justice Barwick in Spratt's case, 'Whereas s.80 might have been thought to be a great constitutional guarantee, it has been discovered to be a mere procedural provision(7)'.

In Zarb v Kenney Chief Justice Barwick went further and stated that 'the question of the scope of s.80 hasÖnot only been long settled but ought not now to be re-opened(8)'. In Li Chia Hsing's case, he once again referred to the court's 'settled interpretation' of the meaning and scope of s.80, (9) but Justice Gibbs, Stephen and Jacobs all expressly refrained from examining further the scope of s.80 since the offence there was clearly one which could be prosecuted summarily. (10)

My view was that the meaning and scope of s.80 was far from settled but it certainly guaranteed trial by jury, at least in serious criminal cases. (11)

Two recent cases in the High Court suggest that this aspect of s.80 is not settled. In Kingswell v The Queen, (12) the four justices in the majority took the view that the so-called 'settled' interpretation should be accepted although recognised that the result of such a narrow interpretation has been criticised. In two dissenting judgements, Justices Brennan and Deane both interpreted s.80 as being far more than a procedural provision. Justice Brennan stated:

I construe s.80 as prohibiting the Parliament from withdrawing issues of fact on which liability to a criminal penalty or to a particular maximum penalty depends from the jury's determination when any offence against a law of the Commonwealth is tried on indictment.' (13) This approach would give s.80 'teeth' while still accepting the so-called 'settled' interpretation.

Justice Deane, however, rejected the 'settled' interpretation in stating that 'the section is not a "mere procedural provision". It embodies a constitutional guarantee of trial by jury in any case where a person is charged by the Commonwealth or an agency of the Commonwealth with a serious offence against a law of the Commonwealth'.(14)

Justice Dawson, in the later case of Brown(15), recognised the forceful criticism of the settled interpretation and said 'it is overstating the position to say that s.80 has been reduced to a procedural provision'. He observed that section 80 has not yet been really tested: the Commonwealth has not since Federation passed any laws designed to avoid trial by jury for serious criminal offences.

I can recall at least one occasion during my time in the Parliament when such proposed laws were passed by the House of Representatives and were only stopped by Senate amendments. In 1967, the Narcotic Drugs Bill and the Customs Bill both contained provisions under which an accused could be deprived of trial by jury for serious drug offences. It was only after vigorous debate in the Senate that both Bills were amended so that the consent of the accused was necessary before the proceedings could be determined summarily.(16)

Examples such as this together with legislative schemes such as that contained in the present Customs Act where only part of the offence is tried by the jury and the rest is left to the judge ostensibly as part of a sentencing discretion, illustrate the ramifications of treating s.80 as merely a procedural provision. The increasing tendency of legislatures to bypass trial by jury due to its supposed expense and inconvenience may make judges and lawyers question whether s.80 is, indeed, nothing more than a mere procedural provision.

Most members of the Australian Parliament are unaware that they have a special personal interest in these questions. The trial of serious offences without a jury is especially dangerous for the. Section 44 of the Constitution provides 'that any person who has been convicted and is under sentence or subject to be sentenced for any offence punishable under the law of the Commonwealth or of a State by imprisonment for one year or longer shall be incapable of being chosen or of sitting as a Senator or a member of the House of Representatives'.

CAN TRIAL BY JURY BE WAIVED?

The words of s.80 'shall be by jury' taken literally, are mandatory. In Brown's case (17), the issue squarely arose as to whether the accused could waive a right to a jury and opt for a trial by judge alone.

In that case, s.7 of the South Australian Juries Act allowed the accused to elect to be tried by a judge alone. Section 68(1) of the Commonwealth's Judiciary Act applied the laws of South Australia to persons charged with a commonwealth offence. Section 68(2), however, stated that this vesting of federal jurisdiction on the State Court was 'subject toÖs.80 of the Constitution'. The issue was, thus, whether s.80 of the Constitution precluded Brown from electing to be tried by a judge alone.

Section 80 of the Australian Constitution was obviously modelled on Article III, section 2(3) of the United States Constitution which has been interpreted by its Supreme Court to confer a personal right upon an accused which can be waived at his or her election.

There are powerful arguments for and against the right to waive, as shown by the 3-2 decision in the High Court in Brown's case itself.(18) Waiver conflicts with the literal meaning of s.80 and may be said to be an unacceptable inroad into the institution of trial by jury. On the other hand, to deny an accused such a choice may be, to use the words of Justice Frankfurter in Adam's case, 'to imprison a man in his privileges and call it the Constitution'.(19)

Brown's case may not be the last word on this issue.

DOES S.80 APPLY TO THE TERRITORIES?

In 1915, Bernasconi's case (20) decided that the guarantee contained in s.80 had no application to the territories. Bernasconi's case was decided when Papua and New Guinea were territories of Australia. There were overwhelming practical reasons why the jury system could not be applied in the existing circumstances to the people of Papua New Guinea. Mr Justice Isaacs said 'Parliament's sense of justice and fair dealing is sufficient to protect them, without fencing them round with what would be in the vast majority of instances an entirely inappropriate requirement of the British jury system'.(21)

In a later case Spratt v Hermes, Chief Justice Barwick said of Bernasconi, 'whatever doubts there may be as to that decision what it actually decidedÖought not now to be disturbed'.(22) One of the reasons for not reopening this question was said to be that the significance of what Bernasconi decided was small in the light of the very narrow interpretation given to s.80 in Archdall's case and Lowenstein's case. In other words, since the guarantee in s.80 is illusory, what does it matter whether it applies to the territories or not?

In the light of Kingswell's case and Brown's case it is now much less clear that s.80 is merely a procedural provision and this will obviously affect any future consideration of this issue. Spratt v Hermes was decided in 1965 and Papua and New Guinea were still territories of Australia. Now that Papua New Guinea is independent the practical political consideration which prevented the application of s.80 to the territories has gone.

Perhaps the only reason this issue has not arisen since Bernasconi's case is that for the most part the Commonwealth has provided for trial on indictment of serious offences in the territories and presumably in the Northern Territory the same has been done by the territorial legislature. In constitutional law, many such questions lie fallow for years, awaiting decision or redecision. In recent years, the scope of the Commonwealth's powers in relation to corporations, external affairs and industrial law are examples.

The idea that the guarantee of trial by jury is restricted to the States is inconsistent with the general framework of the Constitution. Section 80 is in Chapter III, The Judicature, not in Chapter IV, The States. Section 80 itself refers to offences not committed within any State. The Constitution of the Commonwealth would be absurd if it guaranteed a jury trial for federal offences for Australians generally, but not for those in the territories. It would be especially absurd if it did not apply to the Australian Capital Territory which was intended by the Constitution to contain the seat of government, the Parliament and the High Court.

OTHER UNRESOLVED QUESTIONS

Two further questions are whether s.80 requires that the jury be composed of twelve persons and whether the jury's verdict must be unanimous. Both these issues may well arise because state laws which are made applicable to the exercise of Federal jurisdiction by s.68 of the Commonwealth Judiciary Act provide in some states for majority verdicts or for verdicts by juries composed of less than twelve persons.

For example, s.44 of the Victorian Juries Act provides for the continuation of a trial notwithstanding the jury is reduced in number due to death or illness of a juror. This power lies within the court's discretion. In New South Wales, s.22 of their Juries Act similarly provides for such continuation but only if consent in writing is obtained from both the accused and the Crown. Here again the question of a right to waive may arise. This raises similar issues to those in Brown's.

Quick and Garran, using American authority, state that the words 'by jury' in s.80 'guarantees not merely the form of trial by jury, but all the substantial elements of trial by jury, as they exist at common law'.(23) Changes to state laws, such as those mentioned, expose this issue of what are the indispensable elements of modern concept of trial by jury.

The High Court in recent years has not been called upon to decide what are the essential elements of modern trial by jury, although these questions have arisen in the United States.

THREATS TO TRIAL BY JURY

The main threat is erosion of trial by jury by legislatures, especially state legislatures. The trend is to less and less use of juries.

There are other threats to the institution. The main external threat is the increasing tendency to trial by media in newsworthy cases. Some sections of the media are tending more and more to attempt to orchestrate trials by publication of prejudicial material before and during certain trials.

There are also internal threats, one of which was referred to by the United States Supreme Court in Duncan v Louisianna. The excessive zeal of prosecutors can be a real threat to a fair jury trial. In Australia cases have come, even to the High Court, in which excessive zeal has been apparent. It is very dangerous to the administration of justice when the career prospects or the prestige of a prosecutor become involved in the prosecution. The classical approach is that 'Counsel for the prosecutionÖare to regard themselves as ministers of justice, and not to struggle for a convictionÖnor to be betrayed by feelings of professional rivalry - [not] to regard the question at issue as one of professional superiority, and a contest for skill and pre-eminence' (see Bathgate).(24) prosecutors should not be scalp-hunters.

In the opinion of many experienced in the criminal law it is no longer safe to rely upon the prosecution observing the traditional fairness. The remedy may be that the law should require that the traditional standards be observed. The duties of prosecutors should be spelled out in legislation and sanctions should be provided for transgression. Also, there should at least be voluntary peer review to inhibit violation of the standards.

Another threat to effective trial by jury is the failure in Australia to recognise that the accused in a trial of any serious criminal offence should be entitled to the advice and assistance of counsel and that if he or she cannot afford it the community should pay for it as part of the price for justice. McInnis's case (25) showed that poor persons can be forced to trial upon the most serious charges without representation. This offends Article 14(3) of the International Covenant on Civil and Political Rights by which Australia is now bound.There are other problems. One of these is the absence of a right to a speedy trial. Another tendency is to lengthen trials. This could be curbed by more pre-trial decisions aimed at avoiding collateral issues and prolonged legal argument during the trial.

Trial by jury is a valuable part of the criminal justice system. Its retention is necessary if there is to be continuing respect for the law.

In Australia, as elsewhere, we live in an age when freedom is being rapidly diminished. Our freedoms are too precious to be left to the discretion of legislators and judges. The safeguard of the people's freedom is the people themselves. The means by which they can preserve freedom from unjust laws and from injustice within the law is by their participation through the jury in the administration of justice. In the future the extent to which the jury system is used will be a clear measure of freedom in our society.

REFEERENCES

(1) 4 Comm., 350

(2) Democracy In America, 282-3(1968) 391 U.S 145, 155-6

(3) (1968) 391 U.S. 145, 155-6

(4) R. v. Archdall and Roskruge; Ex parte Carrigan and Brown (1928) 41 CLR 128, 139-40

(5) ibid, 136

(6) R. v.Federal Court of Bankruptcy; Ex parte Lowenstein (1938) 59 CLR 556, 571

(7) Spratt v. Hermes (1965) 114 CLR 226, 244

(8) Zarb v. Kennedy (1968) 121 CLR 283, 294

(9) Li Chia Hsing v. Rankin (1978) 141 CLR 182, 190-1

(10) Ibid; 193, 195-196

(11) Ibid; 202

(12) Kingswell v. The Queen (1985) 60 ALJR 17

(13) Ibid; 28

(14) Ibid; 39

(15) Brown v. The Queen (1986) 60 ALJR 257, 275

(16) Australia, Senate, Debates 1967, vol. S34, 1349-53, 1376-407

(17) (1986) 60 ALJR 257

(18) Justices Brennan, Deane and Dawson; Chief Justice Gibbs and Justice Wilson dissenting

(19) Adams v. United States ex rel. Mcann (1942) 317 US 269, 280

(20) The King v. Bernasconi (1915) 19 CLR 629

(21) Ibid; 638

(22) (1965) 114 CLR 226, 244

(23) Quick and Garran, 1901, The Annoted Constitution of the Australian Commonwealth, 810

(24) R. v. The Queen (1979) 143 CLR 575

(22) (1965 114 CLR 226, 244

(23) Quick & Garran, The Annotated Constitution of the Australian Commonwealth (1901), p.810

(24) R. v Bathgate (1946) 46 S.R. (N.S.W.) 281, 284-285

(25) McInnis v The Queen (1979) 143 CLR 474

SECTION 80

A COMMENTARY ON MR JUSTICE MURPHY'S PAPER

Professor Tony BlackshieldLegal Studies DepartmentLaTrobe University, Victoria

I am tempted to begin by pressing His Honour Mr Justice Murphy for elucidation of his somewhat cryptic comment on Brown's case, that in relation to the question whether the right to trial by jury can be waived, the 3:2 decision in that case may not be the last word on the issue. But I know that to press him for a more determinate view on that question would be to press in vain. Let me turn to some other aspects of Brown's case.

Brown, decided in March this year, and Kingswell, in November last year, are a clear indication of two things about section 80 of the Constitution. The first is that all the constitutional and technical questions relating to the guarantee of trial by jury are now open questions. There is no longer, if there ever was, a 'settled' high Curt view. The second thing is that, however views may continue to differ on particular technical questions, all members of the High Court would approach those questions now in a spirit of sharing the fundamental commitment to the importance of the jury system, of which His Honour has spoken today.The essential division in Brown's case is between two points of view. One asserts that the right to trial by jury enshrined in section 80 of the Constitution is a fundamental individual right, the corollary being that an individual has the right to waive that right. The other view asserts that the guarantee of trial by jury is not merely an individual right but a fundamental structural guarantee going to the root of our system of justice. Both those views depend on taking trial by jury seriously, neither of them is compatible with reducing section 80 of the Constitution to a mere tautology.

I share with Mr Justice Murphy and with His Honour Mr Justice Deane, in his remarkable judgement in Kingswell's case the belief that the so-called 'settled view' of section 80 is a tautology, an 'inane proposition' as Mr Justice Deane refers to it in Kingswell. I share the view that that proposition is indeed inane, and that it should now be rejected. What I want to draw attention to is an observation in Mr Justice Murphy's paper that that inane view is in fact the 'settled' view. Mr Justice Murphy referred to Archdall (in 1928) and Lowenstein (in 1938), and told us that 'the effect of these decisions' was summed by Chief Justice Barwick in Spratt's case, when Barwick advanced 'the inane proposition'. The fact is that 'the inane proposition', the tautologous view - section 80 only means that there shall be trial by jury in cases where there is trial by jury - has never in fact been decided by the High Court. The myth that a long line of settled decisions of the High Court has entrenched that view has always been a fundamental mistake, an extraordinary example of uncritical legal acquiescence in an unsubstantiated proposition. In 1844 Lord Denman said in the house of Lords that if you took all our legal propositions and wrote them down under three columns - law made by statute, law made by judicial decisions and law taken for granted - you would find that you had more in the third column, 'law taken for granted', than in the other two put together.The so-called 'settled view' of section 80 is the most extraordinary example of law taken for granted, for which there is no support in any High Court decision, at least not before 1968.

Some of the details of that demonstration have been made by Mr Justice Deane in Kingswell. Let me pick out a couple of points. Mr. Justice Murphy refers in his speech today to Archdall,  in 1928, in which it's true that Mr Justice Higgins did in a single sentence lay down the so-called tautologous view. Later justices, in particular Sir John Latham in Lowenstein, have said that all six Justices expressed that view. But one of them at least, Mr Justice Starke, expressed no view on the question at all, and the four remaining justices in a joint judgement said only this; 'The suggestion that the Parliament, by reason of section 80 of the Constitution, could not validly make the offence punishable summarily has no foundation and its rejection needs no exposition'.

The real question about Archdall is whether that sentence, as His Honour read it to us, is support in precedent for any view of section 80 at all. If when we look for precedent we look for the reasons for the previous High Court decision, then obviously this sentence is no good because it expressly refuses to give us any reasons at all. If we look at the actual decision - if one asked what, if anything, did this passage in the majority judgement in Archdall actually decide - one way of testing that would be to ask whether the actual decision would be inconsistent with the view which Justices Dixon and Evatt later took in Lowenstein's Li Chia Hsing, and which Mr Justice Deane at least has taken in Kingswell. That view, the unsettled view, is that section 80 does ensure a guarantee of trial by jury, at least in serious cases.The actual offence in Archdall's case was an industrial boycott offence. It was an offence which carried a term of one year's imprisonment; it had not been tried on indictment. The attempt to rely on section 80 was framed in the argument in a single sentence and the single sentence was this; 'To ascertain what are indictable offences within the meaning of section 80 of the Constitution, regard must be had to the law as it stood when the Constitution Act was enacted, and such offences as were then regarded as indictable cannot be declared by parliament to be other than indictable'.

That is the argument that the majority in Archdall's case were rejecting; that is, the argument which they thought so obviously unsustainable as to need no reasoned exposition. But I have to say after puzzling over the argument that I would have taken the same view of it myself. It is not saying, this argument in Archdall, that the class of indictable offences is frozen as at 1901, in the sense that no new offences could ever be made indictable thereafter, but it is saying that what was in the class of indictable offences in 1901 cannot hereafter be shifted out of that class, and that is all it is saying.

I can see no way in which that argument would have helped the defendant in Archdall, where the issue related to a statutory offence created in 1926. Indeed, I can see no way in which that argument would lead to any workable theory of section 80 at all. To dismiss that argument as the joint judgement in Archdall did, was in my view entirely right; to try to read into that dismissal any implications about any wider view of section 80 is a vain exercise.

One can go on demolishing each of the decisions which are supposed to provide some support for the so-called 'settled view' but the result is the same in each case. Lowenstein, in 1938, which is commonly supposed to be a four/two decision - Dixon and Evatt standing up for the real view of section 80 and the other four judges rejecting it - turns out in fact to be a two/two/two decision: Justices Latham and McTiernan advancing 'the settled view'; Dixon and Evatt in a classic judgement rejecting that view; and the other two members of the court saying nothing on the issue at all. There is no way that that can be read as deciding any issue about section 80 of the Constitution.

Lowenstein's case has a footnote in 1954, which some judges, including the present Chief Justice, have tried to use as reinforcing, entrenching, the supposed decision in Lowenstein. What happened was that Sir Owen Dixon, who had dissented in Lowenstein, became Chief Justice in 1952, and various members of the Bar thought that this might be an opportunity to re-open the Lowenstein issue. The exact decision in Lowenstein, by the way, had been that section 217 of the Bankruptcy Act as it then was did not involve an illegitimate mixture of judicial and non-judicial power, and therefore did not violate the doctrine of separation of powers (if indeed that doctrine was part of our Constitution, a constitutional issue which Lowenstein also left undecided). The only thing decided in Lowenstein was the operation of section 217 of the Bankruptcy Act; the four majority judges took one view of that question, and on that question Dixon and Evatt did dissent.

Well, in 1954 an attempt was made to re-open Lowenstein's case. Lowenstein was reaffirmed in the Supreme Court of Queensland; the High Court dismissed an appeal. Immediately afterwards, in the case of Sachter v Attorney General in 1954, an attempt was made in the High Court to re-open Lowenstein's case, and Chief Justice Fixon, as he then was, refused to allow the matter to be re-opened. 'Lowenstein's case' he said in effect, 'is now a precedent of this Court and we will not allow the question to be re-argued at this sittings'. Why he added the qualification 'at this sittings' is one of the minor mysteries.

Now this refusal in 1954 to re-open Lowenstein is one of the factors that is seriously advanced as having entrenched the tautologous view of section 80. But in fact eighteen months later, in the Boilermaker's case when Sir Owen Dixon finally succeeded in persuading a 4:3 majority of the Court to adopt his view of the constitutional separation of powers question, he said: 'If we had supposed, when we were asked to reconsider Lowenstein's case, that a constitutional issue was involved, of course we would have allowed the case to be re-opened'. The rejection, the refusal to re-open Lowenstein dealt only with the construction of section 217 of the Bankruptcy Act.

The irony is, of course, that even in 1956 when Sir Owen Dixon explained the refusal to re-open in 1954 - even in 1956, he was not of course thinking about the constitutional question of trial by jury, he was thinking about the constitutional question of separation of powers. But what is true for one constitutional issue is obviously true for another. If the court would have been prepared to re-open Lowenstein on the inconclusive things it said about separation of powers, it must equally have been prepared to re-open what Lowenstein said on the inconclusive question of trial by jury.

One could go on and on amassing these arguments. The point is not to illustrate the point in any further detail, but rather to underline that the whole history of section 80 is an extraordinary piece of pathology in Australian constitutional law. For generations, the Bar and the Bench have persisted in maintaining the myth that the issue has been decided, when anyone who ever sat down and critically read the decisions would at once perceive that no such issue had ever been decided at all. The cases currently in the court - Brown, Kingswell and the other issues that His Honour referred to in his paper which may not be coming up for decision - show at least that that long fallacy is over.

For my part, I have already spoken longer than I intended, and I shall now sit down. But before doing so I should say this; that although I think I have properly emphasised the importance of Mr Justice Dean's decision in Kingswell as now the leading judgement in my view on this whole question, one ought also to acknowledge something that His Honour was too modest to do: the importance historical role played in the re-opening of the issue, first by His Honour's judgement in Beckwith v The Queen in 1976, the first clear judicial attempt to take section 80 seriously since Dixon and Evatt's 1938 judgement on the question, and secondly, and more especially His Honour's judgement in Li Chia Hsing v Rankin. That case, in 1978, was in some ways an irritating case, as the captain of the foreign fishing vessel who had been convicted on a summary offence carrying a maximum of 6 months in prison was clearly not entitled to rely on any guarantee under section 80 of the Constitution; and the whole court, including His Honour Mr Justice Murphy, so held. Nevertheless, the case provided Sir Garfield Barwick with an opportunity to lay down what is probably the most reasoned argument that we have had for the so called 'settled view'. But it also provided His Honour Mr Justice Murphy with the opportunity to lay out at much more length his reasons for the view he had taken in Beckwith.

What is fascinating about that case, as His Honour mentioned in his paper, is the extent to which three judges of the Court abstained from expressing any view on the constitutional question at all, and the abstention is a fascinating feature of the latest High Court cases. In particular the present Chief Justice, Sir Harry Gibbs, began in Li Chia Hsing a pattern which he has followed ever since, referring to the 'settled view' and still calling it the 'settled view', but referring to it in the mildest, almost hesitant terms as something that 'appears' to be settled, as something that cannot be challenged under 'the existing state of the authorities'; always reaffirming the view but always with some qualifying words which indicate that at the proper time, he too would now be prepared to take the issue seriously.

LIST OF CASES

Beckwith v The Queen, (1976), 135 CLR 569

Brown v The Queen, (1986), 60 ALJR 257

Boilermaker's Case, (1956), 94 CLR 254

Kingswell v The Queen, (1985), 62 ALR 161

Li Chia Hsing v Rankin, (1978), 141 CLR 182

R v Archdall, (1928), 41 CLR 128

R v Federal Court of Bankruptcy; Ex parte Lowenstein, (1938), 59 CLR 556

Sachter v Attorney-General, (1954), 94 CLR 86

Spratt v Hermes, (1965), 114 CLR 226


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