Supreme Court of Tasmania

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There is more to being a lawyer than acting for clients

Speech by the Honourable Chief Justice Peter Underwood AO to the Law Society of Tasmania Dinner

13 May 2006

Mr Attorney, Mrs Kons, Madame President, Mr McKenzie, fellow judicial officers, ladies and gentlemen.

I wasn't quite sure about what I should speak tonight. The Executive Director of the Law Society, Mr Hagan said that it was to be a topic of my choice, which of course, makes the task all the more difficult, although total freedom of choice does diminish the chance of being accused of being irrelevant. I toyed with the idea of telling you all what really goes on in Judges' Chambers, sub-titled, "Is being Chief Justice really like herding cats?". However the fear of retribution from the other judges steered me away from that idea. Then it occurred to me that you might enjoy a short discourse on some of my new ideas for case management such as referring trials to an auctioneer in order to improve what the public service calls "output efficiencies".

But to tell you the truth, I said that I wouldn't do this again after a speech I gave to a newly formed law students society a few years back. Actually, I thought it went quite well. People laughed at the right places and nodded wisely at the serious message that I wanted to convey and clapped enthusiastically at the end. On the way out the President who was escorting me to the door asked me how much my fee was. I was taken aback and looked horrified. I lectured him that Judges don't ask for fees to do that sort of thing as it is part of our judicial duties etc. etc. and he said, "Oh that's good because we don't have much money and we're saving up to get someone really good next year"

It was almost exactly a year ago when Mr Hagan asked me to write something for the revived publication "Tasmanian Law Letter." It was timely that I do so for the legal profession of this State had been going through a bad patch following a number of failed solicitors' mortgage schemes. These failures affected all legal practitioners for they led to a widespread perception that lawyers generally, were not to be trusted and the high esteem in which the profession should be held plummeted to an all-time low. However, I hope that those days are behind us, but they serve as a reminder to us all that lawyers need to work at maintaining public trust and respect, and I suggested that one way of achieving this was perhaps by undertaking some pro bono work. All lawyers need to remember that they belong to a profession and not just a trade and this means that lawyers are a group of people pursing a common calling of the practice of the law in the spirit of public service. In the Law Letter I stressed the importance of public service for it is public service that will restore the public's faith and trust in the legal profession. Those of you who attended the magnificent Church Service at the Opening of the Legal Year will remember that this theme was taken up by the now Dean of St David's Cathedral when he gave the address.

Tonight, I would like to detain you for a very short while to follow this concept of professional responsibility to public service a little further under the heading "There is more to being a lawyer than acting for clients." Why do I say that there is more to being a lawyer than acting for clients? I say that because I believe that you, as members of the legal profession, understand, as no other profession or group in our society understands, the importance of fundamental principle and the need to safeguard those fundamental principles that are essential to the good health of a free democratic society. I speak of course, about such matters as the supremacy of a democratically elected parliament, the rule of law, the independence of the judiciary and the legal profession, and basic human rights such as freedom of speech, freedom from arbitrary arrest and the right to a public trial in accordance with the law. But, understanding the importance of those principles is not enough. Your professional obligation is to safeguard them. Your duty to society is to speak up in defence of them. Important principles will be lost unless the lawyers save them. There is indeed, more to being a lawyer than acting for clients.

Now I know that expressions such as, "the rule of law" and "freedom from arbitrary arrest" tend to slip right over everyone's head without making much of an impact, especially after a few excellent pre-dinner drinks, so let me just refer to one principle by way of illustrating my point and in order to show you that never before, has this country so badly needed the voice of its legal profession.

This year marks a particularly significant landmark in the history of our national institutions. This is the sesquicentenary of the adoption of responsible government in Australia. 150 years ago responsible government was carried into effect in New South Wales, Victoria, Tasmania and South Australia. It is just over a century since the Federal Parliament first met. The question is are the parliaments of this country still doing that which most people in our society expect them to do? I turn to the Federal Parliament. According to the official website of the House of Representatives, Canberra:

 "The House's central function, and the one which takes up most of its time is the consideration and passing of new laws and amendments or changes to the existing laws."

But is the Federal Parliament really doing what most people think it is doing? Is it really doing what it proclaims it does on its website?

In 1996 the Acts made by that Parliament were contained in 3 fat books. A considerable amount of legislation you might think, but three volumes contained it all. Eight years later the laws enacted by the Federal Parliament needed no less than 6 fat books to contain it. I say nothing of the regulations that are made under those Acts of Parliament. According to my count, last year the federal parliament passed no less than 164 separate Acts and something in the order of 400 regulations came into force. That is the equivalent of an average of 1.5 legislative instruments becoming the law of Australia every day – 365 days of the year. Who is making all these laws? Every year they occupy thousands of pages of print. There are 150 members of the House of Representatives. There is absolutely no chance of each of them reading, let alone understanding, the veritable torrent of legislation that pours out of Canberra each year and spreads over the daily lives of every Australian. Although formally enacted by the parliament, to-day, the laws of our country are largely made by the executive government, the majority of whom are unelected public servants. Instead of the parliament controlling the executive, the executive controls the parliament. Have you seen the Commonwealth House of Representatives or the Senate on the television when a bill is being so-called debated? There are more people on the streets of Burnie on a cold Monday night than there are in the Chambers!

Let me give you but one example, one that should be close to the hearts of all lawyers, of how the executive, or the bureaucrats, have gained control of our country. In 2004 the Federal Parliament passed the National Security Information (Criminal and Civil Proceedings) Act. It was enacted in a climate of fear that the executive government has recently fostered in Australia. Amongst other things this Act provides for closed hearings for federal criminal proceedings if it is thought that evidence prejudicial to the national security may be given. No one is allowed to hear that evidence other than the judge and those court officials and lawyers who have been given a security clearance - listen to this – "at the level considered appropriate by the Secretary in relation to the information concerned." So in the case of proceedings to which that Act applies, who gets to hear information that might be prejudicial to national security, including my staff and the defence lawyers, depends upon who gets a security clearance from The Australian Government's Protective Service which is part of the Attorney-General's Department. There is no prescription laid down by the Parliament as to what a security clearance means. There is no description of what information has to be given out to get such a clearance nor what enquiries might be made about your credit rating, what societies you belong to, or once belonged to, your sexuality and so on. There is no appeal against a refusal to get a security clearance. It's all down to the public servants.

I said a moment ago that this regime is laid down by the National Security Information (Criminal and Civil Proceedings) Act. Section 6 of that Act says that this law applies to a trial if the prosecutor gives a notice that the Act does apply. So, in summary, as I see it, the situation in Tasmania is that the prosecutor in the case of an alleged federal crime, the Commonwealth Assistant Director of Public Prosecutions in Hobart, not the Court, not the Parliament, decides whether part of the proceedings may be conducted in secret, and if they are to be conducted in secret, his department, the Attorney General's Department, decides who gets a clearance to be present. Do the lawyers here tonight think that there may be some points of principle worth questioning here?

The same Act tells us, not only that part of the proceedings shall be conducted in secret and, apart from the judge, the evidence can only be heard by people who have a security clearance at the appropriate level, but also that the Court must record and store the record and any exhibits in such manner as the Attorney General directs. If I want to find out what that means I can go to a website called www.nationalsecurity.gov.au and amongst the many pages of requirements I read that "information must not be created, stored or transmitted electronically unless the electronic transmission facilities meet the requirements in ACSI 33. The same documents tell me that ACSI 33 is the government technology security manual. I turn to look it up but find that it is only available to "relevant officers once a need to know has been confirmed." I have no idea if the public servants think I am a relevant officer, nor whether I am a person whom they think needs to know what is in the government technology security manual. However, as I see it the law of the land in this respect is only available to those whom the executive think need to know it. It's a bit scary don't you think?

Who, I ask, has studied the need for these and many other similar draconian measures? Our elected representatives? I doubt it. Who cares about this parliamentary abrogation of duty? Are these laws, made at the gallop in an executive-fostered atmosphere of terror, going to be with us forever? In the Australian version of the Westminster system of government it seems that the legislature has become no more than a soapbox for the executive.

There is neither Bill of Rights nor other lawful means for the judiciary to check the excesses of the executive. So that is why I say to you, members of the legal profession, you have an obligation to raise public awareness of these inroads being made into some of the fundamental principles upon which our society is founded. Your commitment to public service requires that you demand that there be proper scrutiny of the claimed need to do away with such things as public trials and freedom from detention without charge. It is up to the profession to make the public aware of the dangers of the parliament becoming no more than a soap box for the executive. You must point this out when talking to groups such as Rotary and Apex, and even when playing golf with friends. Make people care about important principle. I think that there is more to being a lawyer than acting for clients.