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‘There remain areas where more can be done’ in the Australian court system

A more just legal system requires the courts to be independent and impartial, according to the former NSW chief justice.

user iconLauren Croft 29 March 2022 The Bar
‘There remain areas where more can be done’ in the Australian court system
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Speaking at the Law Society of NSW 2022 Law Term Dinner, held at the Hyatt Regency in Sydney on Monday (28 March), the former chief justice of NSW, the Honourable Tom Bathurst AC, delivered a keynote on how the profession can move towards a more just legal system – and reflected on what he had learnt during his 50-year legal career.

“In the bad old days, litigation was slow and expensive. There was no case management or online filing, and aggressive adversaries were in vogue. Judges could be cantankerous, some were capricious, and many were more concerned with what they saw as the correct conclusion than courtesy towards participants.

“That was 50 years ago. Some things have significantly changed. Other things seem frustratingly stagnant. With this in mind, how do we move towards a more just legal system? ‘Justice’ is a complex matter. It can be a question of objective morality, or be highly subjective. The fact is I cannot – and excuse me for this – ‘do justice’ to the breadth and depth this topic requires,” he said.

 
 

“I’m no philosopher, but let me speak about justice in two senses today. The first is what I will call the narrow view. This is what occurs in courts and tribunals, which is justice according to law or legal rules. The second is what I will call the broader view. Here, I think more about ideas of rightness or fairness between members of society, although there may be different understandings of what this means. So, when I speak of a ‘more just legal system’, I mean not merely a system which stays consistently and impartially within the bounds of legality, but one which, to the extent possible, accommodates the needs and legitimate expectations of the various cross-sections of the community.”

Over his decades in the legal system, Justice Bathurst has experienced a number of issues, including judicial bullying, cynical litigation and judges who made appearing before them seem like a “blood sport”. However, whilst he said that legality could sometimes appear disconnected from what is right, judges must “apply the law consistently and impartially, giving appropriate deference to Parliament, without regard to any personal, political, social or ideological preferences”.

“While the court might fulfil justice in the narrow sense, the broader sense may be neglected. This is why we must think of the legal system more holistically. It also shows the importance of solution-based courts such as the Drug Court and the necessity of focusing on particular problems such as over-incarceration of First Nations peoples. What might be described as therapeutic justice will become increasingly important,” his honour added.

“While courts aren’t law-making bodies, they can and do expand the common law to meet changing social values. In applying the facts to the law, there may be scope for the judge to exercise their powers and discretions having regard to community norms and standards. Applying the law in line with such standards increases the legitimacy and, I would argue, the community’s perception of the fairness or rightness of law. What judges must not do is impose their own, idiosyncratic views as to the result. Such incoherence would bring the legal system into disrepute and undermine its ability to properly exercise its functions.

“Appropriate deference to Parliament also does not mean blind subservience. The court has a supervisory role to ensure Parliament does not exceed its lawful authority, as enshrined for state supreme courts in Kirk v Industrial Court of New South Wales. This is of utmost importance to maintain a just legal system, to protect against legislative incursions on legality, particularly in a state context where a strict separation of powers is not maintained.”

In many cases, the courts are confined to look into the legality of the process by which authorities reach decisions – and whilst this can occasionally be seen as an “arbitrary constraint” on the power of the courts, giving the courts power to review executive decisions would be “highly undesirable”, added Justice Bathurst.  

“While courts are impartial in this country, there’s no use denying they are expensive. We should be concerned if the legal system is only open to those who can pay for it. Whilst legal aid is available to a significant extent in the criminal area, it is not in others, and governments may feel the competing demands on their resources make it difficult to allocate too much money to assist private litigants resolve their disputes. That’s understandable, but it should be remembered that a mechanism for resolving disputes according to law is vital in a civilised society.

“When we think about what is important in resolving disputes, and especially civil disputes, that aspirational phrase emerges again and again: ‘Just, quick and cheap.’ Those three things are connected, since whether an outcome or process is ‘just’ may be informed by whether it is ‘quick and cheap’, although it is a fallacy to say that ‘quick and cheap’ equals ‘just’. But these factors can also pull in different directions,” he said.

And whilst change in the Australian court system has not always been fast, Justice Bathurst said that “for each step back, there have been two forward”.

“Much has changed in the 50 years from 1972 to 2022. As one of the rare few who has lived through this time, what I have seen can be best described as a continuum. Looking back, while shifts at the time may have been barely perceptible, overall, the change for the better, for a ‘more just legal system’, has been substantial. Yet there remain areas where more can be done.

“The courts must remain independent, impartial and of the highest integrity. They must not become characterised as a dispute resolution service, lest they lose sight of their constitutional and rule of law functions. In the legal profession, practitioners must refuse to compromise their professional ethics, no matter the incentive,” he concluded.

“Further, the legal system, in its most expansive sense, must remember areas in which justice is far from perfectly delivered. It must work together with communities to achieve outcomes which embrace a broad, society-wide conception of justice. No legal system is perfect. But good legal systems grapple with these questions. I hope that tonight, you have been encouraged to see that our legal system has and can become more just, and spurred on to work towards something even better.”