1993 was the year of the direct attack.
In previous years the typical “”yearender” on the law would look at reforms to reduce costs and delays and look through the main cases, especially those of the High Court.
This year the law itself and its administration has taken back seat to the practitioners themselves _ not only lawyers, but judges as well.
The attacks have come from many different quarters for several different reasons.
The most vehement have been, for want of a better epithet, the gender-based attacks. Judges who were seen to denigrate women, especially in violence cases, came under fire from politicians, community leaders and the legal profession itself.
It was a year of looking at the way the profession treats women practitioners, too.
Then there were the institutional attacks on lawyers, notably from the Trade Practices Commission and a parliamentary committee.
A further round of attacks (some months after the event) came from intellectual conservatives against the way the High Court went about last year’s Mabo decision.
Far from the public extending sympathy to an underdog under attack, however, it seems to be more a case of “”when will you lot get the message”.
After bouts of actual and attempted law reform in the early 1970s and again in the early 1980s, perhaps in 1993 more people are feeling (rightly or wrongly) it is not the law itself which is wrong, but the lawyers who practice it and the judges who administer it. And in 1993 they had absolutely no hesitation in saying so.
During the year the Trade Practices Commission received submissions and published findings on the legal profession. It must have been galling for lawyers to be dealt with in the same way as real-estate agents and gas companies.
Lawyers have come a short way in the past decade, actually allowing advertising and no longer setting minimum fees. However, the TPC went for the jugular, questioning why lawyers should continue to have a monopoly in many areas, especially in conveyancing and some administrative advocacy and family-law matters. It also suggested contingency fees, the abolition of the expensive distinction between barristers and solicitors and a single Australian profession.
The public was treated to extraordinary performances of self-serving twaddle from lawyers arguing against the TPC’s reforms, nearly all of which are for obvious public benefit. One or two lawyers, however, welcomed the reforms, saying good lawyers had nothing to fear.
No doubt a round up of the 1994 legal year will document how successful the lawyers are in preventing many, if not all, of the TPC’s recommendations from coming to fruition. 1994
At the beginning of the year the Senate Standing Committee on Legal and Constitutional Affairs (with dissent from Senators Schacht and Spindler) published a first report after a three-year inquiry containing some platitudes about the high cost of justice but no teeth marks in any bullets about what should be done. By year’s end a further report brought the committee closer to the Schacht and Spindler view that some radical changes to present monopoly protections were needed.
In the lead up to the March election, the Prime Minister, Paul Keating, promised to send male judges and magistrates back to school in order to rid the judiciary of opinions such those expressed by a South Australian judge about a husband’s use of “rougher than usual handling” to persuade a wife to engage in intercourse.
That case and some other judicial comments about women in violence cases sparked a great deal of verbal intercourse, not least among the judiciary itself.
The upshot has been that some judges have gladly “gone back to school” by attending seminars and the like on sexual equality and the like.
A concurrent development has been some illuminating research from the Australian Institute of Criminology comparing punishments given to men and women for domestic violence. Men succeeded more often in getting murder charges reduced to manslaughter and therefore lower sentences. It showed the law being more lenient on the man who more typically kills in hot passion upon the instant of discovering marital infidelity than on the woman who suffers violence for a long time and then plans murder as the only escape from it.
Research in 1993 also showed that while more women were studying law and graduating, their treatment in the profession has been less than equal.
The year saw sustained attacks on the High Court’s decision-making in the previous year’s Mabo decision, to the extent that the Chief Justice, Sir Anthony Mason, took the rare step of explaining the case and defending the court.
Of course, there are other ways of looking at the Mabo fall-out. The High Court forced the Legislature and Executive to do something about Aboriginal land rights, to correct the historic wrong, that they would have otherwise have happily left in the too-hard basket.
Also the year’s mulling over the decision reveals it as a piece of classic innovative common law in the 19th-century style.
The fact it was being debated so vigorously 18 months after being brought down shows it as being in the top three High Court cases in history (with the 1925 Engineers and 1983 Dams cases).
Another major element in the legal year was the Federal Court’s bringing the Executive to book over immigration in the boat-people cases. Indeed, the extent to which Australian courts scrutinise Executive action has become a hallmark of Australian jurisprudence virtually unequalled in the world. The year saw that extend yet further.
Without the immigration cases and some of the more eloquent defences of the High Court’s Mabo decision it might have been a profoundly depressing year for the legal eagles _ a year in which they were in the dock themselves rather than viewing the dock from without.
In summary it was a year which showed on the debit side how behind the times the legal (and judicial) profession is in sexual equality and in reforms of professional and industrial practice, and on the credit side (with some irony) its ability to bring to book an Executive and Legislature behind the times on racial and human-rights issues.