Volume 28(2)

July 1999

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ARTICLES

The UK Access to Justice Report: A Sheep in Woolf's Clothing, Nicolas Browne-Wilkinson  (pp 181-191)

Access to Justice:  A New South Wales Perspective, Murray Gleeson AC  (pp 192-198)

Bequests of Tangible Chattels in Succession, Neville Crago  (pp 199-213)

Judicial Activism in the High Court: A Response to John Toohey, Greg Craven  (pp 214-224)

A Governor for the Seventh State: Codifying the Reserve Powers in a Modern Constitutional Framework, Tony Thomas  (pp 225-238)

WESTERN AUSTRALIAN FORUM

Royal Commissions, Parliamentary Privilege and Cabinet Confidentiality, Enid Campbell  (pp 239-258)

Accountability, Transparency and Justice: Do We Need a Sentencing Matrix?, Neil Morgan  (pp 259-292)

Western Australia's New Stalking Legislation: Will it Fill the Gap?, Karen Whitney  (pp 293-313)

BOOK REVIEWS

Restitution: A New Perspective,  Joachim Dietrich (pp 315-323) Reviewed by Elise Bant

That Disreputable Firm: The Inside Story of Slater & Gordon,  Michael Cannon  (pp 324-326) Reviewed by Kate Offer

Changing Policing Theories for 21st Century Societies, Charles Edwards (pp 327-329)  Reviewed by Graham Pidco

Overviews

ARTICLES

The UK Access to Justice Report: A Sheep in Woolf's Clothing (pp 181-191) 

Nicolas Browne-Wilkinson (Lord of Appeal in Ordinary) 

In England as well as Australia judicial case management is proving controversial. Will it bring down the costs of administering the civil justice system? Is it compatible with the adversarial procedure as developed in England, Australia and other common law countries? Lord Woolf, the author of the recent Access to Justice report in the United Kingdom, has given an affirmative answer to both questions. In this article, Lord Browne-Wilkinson, the senior British Law Lord, offers a different view.

I have decided to speak on a subject which I have long been interested in but which is now, in the United Kingdom at least, a dead letter. However, I believe the topic to be alive in Australia — the relationship between an adversarial system and judicial case management. Will judicial case management cut costs if the underlying system remains adversarial? If judicial case management is to be successful will not that involve eroding the forensic nature of the battle to such an extent as to emasculate its best features? In the interests of saving costs ought we not to look at a non-adversarial system where the court conducts the case with only limited intervention by lawyers?

At present, in common law systems, the vast majority of costs incurred in civil litigation consists of the bills payable to each party’s legal advisers. So far as the litigant is concerned, these are usually the only costs which matter. In some cases experts’ fees may also be incurred; however, apart from the comparatively small court fee, the litigant is not concerned with the costs of providing the judge, the courthouse or the other overheads of the legal system. From these very obvious facts two points follow. First, cost only inhibits the ordinary citizen from litigating to the extent that it is incurred by the legal advisers. Secondly, in so far as the legal system requires functions to be performed by the court rather than by the parties, to that extent the cost of the litigation to the litigants is reduced.

However, the cost of litigation, at least in the United Kingdom, has now become so great that few but major companies can afford quite ordinary litigation without the assistance of legal aid. When we say: ‘Access to justice is being denied by reason of the cost’, that is not strictly true. Access to justice is being denied by reason of the fact that the state is now unwilling to fund the ever-increasing legal aid bill and is cutting down on the legal aid available.

It seems to me, therefore, that, in assessing the merits of any proposed reforms to civil procedure, the following points must be carefully considered:
1. Will the reforms achieve any reduction in legal bills for the litigants?
2. Will the reforms give rise to any consequential increased expenditure for the state?
3. Could a better result be achieved at less overall cost by adopting an investigatory system in place of the current adversarial system?
4. Even if an adversarial system is more expensive overall than an investigatory system, do the merits of the adversarial procedure so outweigh those of the investigatory procedure as to require us to continue with the former, even though it is more expensive? ...

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Access to Justice:  A New South Wales Perspective (pp 192-198) 

Murray Gleeson AC (Chief Justice of the High Court of Australia) 

Who uses the courts — the rich, the poor, or both? A survey conducted in the Supreme Court of New South Wales in 1993 sought to answer this question — and produced some surprising results. This paper, by the Chief Justice of the High Court of Australia, outlines the findings of the survey, and also comments on some of the points made by Lord Browne-Wilkinson in his paper on access to justice.

Lord of Lord Browne-Wilkinson’s observations on the costs of civil justice, prompted as they were by some of the recommendations made in England by Lord Woolf, are of direct relevance to the New South Wales system of civil justice. Those observations are based upon a great deal of personal experience, and reflect the fact that the problems to be addressed are practical problems, which are much more likely to be solved, or at least alleviated, by pragmatism rather than by ideology.

It is important to recognise not only the essentially practical nature of the issues but also their complexity. His Lordship points out that the cost of modern litigation is high and increasing, and that it appears to be beyond the means of most ordinary people. That proposition is correct, but the whole picture is somewhat more complex. There may be a lesson to be learned from one aspect of that complexity....

In the hope that it may add to the discussion of this important topic, I have formulated, in a fairly shorthand fashion, a few propositions on some issues that may be worthy of consideration....

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Bequests of Tangible Chattels in Succession (pp 199-213) 

Neville Crago (Associate Professor of Law, The University of Western Australia)  

Many wills contain provisions giving chattels, or their use, to beneficiaries one after another. This will typically occur when the testator wishes to keep heirlooms or other valuable chattels within the family. If this is not done by way of an express trust, difficult legal questions can arise concerning the rights of the beneficiaries and of third parties. Several different outcomes are possible. This article identifies the law in this area, and makes suggestions for reform.

Many testators bequeath chattels by way of successive interests — usually, but not always, to members of their families. This will typically be for the purpose of passing on, and keeping within the family, heirlooms or especially valuable chattels such as antiques, works of art and jewellery, and collections of various kinds.

In many cases this is done by way of a simple trust. The chattel may be given by the will to the trustee of the estate upon trust, say, to permit the testator’s eldest child to use and enjoy the chattel for life, and possibly, after that person’s death, upon a similar trust for his or her eldest child for life and, in any event, upon trust for the testator’s eldest great-grandchild then living, absolutely. Many variants of this basic scheme of disposition are possible and come readily to mind. In Queensland and Western Australia legislation contains somewhat unsatisfactory provisions designed to facilitate the administration of this kind of trust, and to protect the trustee.

The trust, however, is not the only legal device available to testators wishing to bequeath chattels in succession. Superficially, it appears that much the same result can be achieved without the interposition of an express trust between the testator and the beneficiaries; that is, by a disposition which simply bequeaths a chattel in the form ‘to L (a life tenant) for life, remainder to R (a remainderman), absolutely’, or, more extensively, ‘to L1 for life, remainder to L2 for life, remainder to L3 for life, remainder to R, absolutely’. One or more of these persons might be identified by description, for example, as ‘my eldest child’s eldest child then living at his or her death’; and so on.

A typical example of this form of bequest would be: ‘I give my Regency rosewood sideboard to my son, John, for life, and after his death to his daughter, Susan, absolutely.’

A somewhat more complex form would be: ‘I give my Regency rosewood sideboard to my son, John, for life, and after his death to his eldest child to survive him for life, and after that child’s death, to his or her eldest child then surviving, absolutely.’

This type of gift is often called an executory bequest. Unlike a trust, it purports simply to confer successive property interests upon the legatees at common law. It may well be chosen by the drafter of a will who deliberately wishes to avoid the expense, or the perceived inconvenience and complications, of a trust, or the intervention of a trustee in family affairs. Equally, it may result from the drafting efforts of the ill-informed, and, especially in the case of home-made wills, of those who are unaware of the difference between a bequest and a trust, and who may not have considered the legal consequences of this alternative, and deceptively simple, form of disposition.

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n fact it is not, and since medieval times never has been, entirely clear what those legal consequences are. Nor is it clear that this form of disposition is correctly described as, or that it operates by way of, an executory bequest. This article reviews this area of the law of wills, and attempts to clarify the nature and incidents of a bequest of tangible chattels in succession other than by way of express trust. It will be seen that this form of disposition can lead to an uncertain outcome, and that it should probably be avoided by the prudent drafter of a will. It will also be seen that the law in this area, far from being simple, is complex, and that legislation is desirable to settle it....

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Greg Craven (Foundation Dean and Professor of Law, University of Notre Dame Australia)

In a paper published in Volume 28(1) of The Law Review, John Toohey, a former Justice of the High Court of Australia, considered what significance the judicial oath, established by King Edward III in 1346, has for judges and magistrates today. In this reply, Professor Greg Craven, a constitutional law expert, examines two points that were raised in Toohey’s paper — namely, (i) the meaning of ‘judicial activism’ and its role under the Australian Constitution, and (ii) the dangers of politicising the process whereby judges are appointed to Australia’s highest court.

By way of preliminary, it is abundantly clear that the paper ‘Without Fear or Favour, Affection or Ill-Will’ was not intended by the former High Court judge, John Toohey, to comprise some exhaustive statement of his legal and constitutional philosophy. Nor will it be treated as such here. What Toohey’s paper purported to be was a modest defence of the modern Australian judiciary in the discharge of their official duties. As such, it may readily be accepted as an interesting contribution within its own genre. What follows is intended to be a piece of similarly finite scope and ambitions.

Toohey’s paper has an interest that goes well beyond the purposes which it was, presumably, intended to serve. That interest derives largely from Toohey’s own considerable position in Australian legal history. The then Justice Toohey was a judge of the High Court of Australia from 1987 to 1998. From 1987 to 1995 he was a member of the Mason Court, which took the High Court into uncharted seas of judicial innovation, most notably — though hardly exclusively — through its discernment of an ‘implied’ right of freedom of political communication in connection with the Australian Constitution. Indeed, together with Sir William Deane and Justice Gaudron, Justice Toohey could reasonably be regarded as having constituted the ‘radical’ wing of what was, at least by historical Australian standards, a remarkably radical court.

The result is that Toohey’s essay is less interesting as a perfectly worthy contribution on the role of the courts in Australia than as revealing a range of fundamental assumptions upon which he — as an activist member of the Mason Court — was inclined to base the discharge of his office as a justice of the High Court. Moreover, the brevity of the piece, and its relative informality of style, mean that these assumptions tend to be presented in an unusually overt and unadorned manner. In short, the essay ‘Without Fear or Favour, Affection or Ill-Will’ represents a remarkably candid snapshot of the more radical wing of the Mason Court — a snapshot which helps us to build up a detailed psychological profile of the serial judicial activist.

More particularly, there appear to be five basic assumptions in the essay by Toohey.4 The first is that judges routinely make law. The second is that they do so indiscriminately in every context of the law. The third is that legal reasoning is essentially subjective. The fourth is that judicial activism is no threat to Australian conceptions of constitutional government. The final assumption (or, in this case, assertion) is that there can be no justification for altering the system of judicial appointments in Australia, either towards election or confirmation. All of these assumptions will be briefly addressed here....

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Tony Thomas (Barrister at Law, Aickin Chambers, Melbourne) 

Should the reserve powers of State Governors be codified? With a view to the forthcoming referendum on an Australian republic, this essay examines the proposals in the Draft Constitution for the State of the Northern Territory for a modern Office of State Governor. The author focuses on the extent to which codification of the conventions governing the use of the reserve powers would fetter the Governor’s ability to exercise independent discretion, and whether such fetters have any place in a State constitutional framework.

In the lead-up to the referendum on an Australian republic, the functions and powers of the Governor-General have been the subject of intense public scrutiny and debate. The same cannot be said with respect to State Governors, whose on-going role in the federal system has been largely ignored. With this in mind, the Northern Territory’s long campaign to gain Statehood has the potential to benefit the Federation as a whole, for it has been the only jurisdiction to examine seriously both the status of the Office of the Governor and the appropriate treatment of the Governor’s reserve powers in a modern constitutional setting.

The constitutional framework for a State of the Northern Territory is set out in the Draft Constitution for the State of the Northern Territory, a document endorsed by the Northern Territory Parliament shortly before the September 1998 referendum on Statehood. Although the defeat of the referendum initially put the future of the Draft Constitution in some doubt, it is widely believed that the electorate’s reluctance to endorse Statehood can be attributed to procedural flaws in the ‘Yes’ campaign, rather than deep-seated resistance to the proposed Constitution per se. On this basis, the current Draft Constitution will continue to serve as the template for further development, subject to the proviso that the final decision on the form of a new State Constitution rests with the Commonwealth Parliament.

From a structural perspective, the Draft Constitution has two distinctive features. First, by providing for the State Governor to be directly appointed by the Premier and hold office at the Premier’s pleasure, it anticipates the amendment of section 7 of the Australia Acts 1986 (Cth & UK) and the transition to an Australian republic.4 Secondly, unlike any existing State Constitution, it expressly codifies the conventions which govern the use of the Governor’s reserve powers. A leap into the constitutional dark, the nature and effect of this codification will be the focus of this article....

WESTERN AUSTRALIAN FORUM

Royal Commissions, Parliamentary Privilege and Cabinet Confidentiality (pp 239-258) 

Enid Campbell (Emeritus Professor of Law, Monash University) 

The Marks Royal Commission, which was set up to inquire into the circumstances surrounding the tabling in State Parliament of a scurrilous petition in November 1992, has proved to be one of the most controversial royal commissions in the history of Western Australia. This article examines some of the legal and constitutional issues which arose from the establishment of the Commission, particularly those relating to parliamentary privilege and the confidentiality of Cabinet discussions.

Royal Commissions of inquiry have, from time to time, been appointed as a result of allegations which have been made in the course of parliamentary proceedings and under cover of parliamentary privilege. Those appointed to inquire and report will have been commissioned by Letters Patent which set out their terms of reference. At common law persons so appointed do not possess power to compel the attendance of witnesses or the production of documents, or to require the giving of evidence under oath or affirmation. In Australia there are, however, statutes which supply such powers to royal commissioners whensoever they are appointed.

In conducting their inquiries, royal commissions are not bound by curial rules of evidence, though in the absence of valid statutory provisions to the contrary, they are bound to respect the privilege against self-incrimination and legal professional privilege. Judges who have acted as royal commissioners have generally taken the view that the statutory powers accorded to them do not permit them to impeach or question proceedings in Parliament in contravention of Article 9 of the Bill of Rights 1689. In the absence of clear statutory provisions to the contrary, royal commissions which have been armed with powers to compel the giving of evidence cannot use those powers to gain evidence which is protected by what is now generally known as ‘the public interest immunity’.

The Houses of the UK Parliament, and the Houses of Parliaments elsewhere in the Commonwealth of Nations which have been endowed with the powers and privileges of the House of Commons, have extensive powers of inquiry. They may delegate their powers to send for persons and papers to committees of their members. Acts in defiance of their commands may attract criminal sanctions, imposed by the Houses themselves. Nowadays there are various inquiries which Houses of Parliament could assign to committees of their members but choose not to do so for political reasons, or because they judge that the task of inquiry is more appropriately assigned to an extra-parliamentary body. That body could be a special statutory commission, a royal commission established by statute or a royal commission established by executive act.

In 1995, the Government of Western Australia secured the appointment of a royal commission to inquire and report on the circumstances and events which had preceded and followed the presentation of a petition to the Legislative Council in 1992, on behalf of Mr Brian Easton. The inquiry would necessarily involve examination of the conduct of a former Premier of the State, Dr Carmen Lawrence, members of her Government and some other persons, including the member of Parliament who had presented the petition. Judicial proceedings were instituted to contest the validity of the Letters Patent constituting the commission. They raised important issues concerning the role of the courts in reviewing executive acts, what extra-parliamentary inquiries may be in breach of parliamentary privilege and the extent to which Cabinet deliberations may be the subject of inquiry by royal commission.

The attempt to have the inquiry by royal commission stopped by judicial order failed. The inquiry proceeded and in the course of it evidence was received of what had transpired in Cabinet. The commissioner’s report, tabled in the Parliament in November 1995, was, as no doubt the commissioning government hoped it would be, condemnatory.

This article is concerned primarily with the legal issues mentioned above. The reasons why the courts decided as they did in what may be termed ‘the Easton affair’ cannot, however, be fully appreciated without an understanding of the events which led to the establishment of the royal commission. These events are described in the next part of the article....

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Accountability, Transparency and Justice: Do We Need a Sentencing Matrix? (pp 259-292) 

Neil Morgan (Director of Studies, Crime Research Studies, The University of Western Australia) 

1998 saw escalating divisions of opinion between the judiciary and the government on sentencing matters. These culminated in a Bill which proposed to severely curtail judicial discretion and to develop, by means of regulations, a sentencing ‘matrix’. Supporters of the matrix proclaim that it will enhance accountability, transparency and justice. This paper shows that it will achieve none of these objectives.

In October 1998, two important Bills on sentencing were presented to the Parliament of Western Australia. The Sentence Administration Bill 1998 (WA) and the Sentencing Legislation Amendment and Repeal Bill 1998 (WA) involve surgery to remission, parole and other early release orders, and draw heavily on the traditional influences of other Australian jurisdictions and the United Kingdom. The Sentencing Legislation Amendment and Repeal Bill also includes a radical proposal for what the Attorney-General has called a sentencing ‘matrix’. The official rationale of the matrix is to provide greater ‘accountability and transparency’ in the sentencing process and to promote greater consistency. The proposal draws on United States influences and, if fully implemented, will involve fundamental structural change to the criminal process. The proposed model also has the potential to be adopted — in part or whole — in other jurisdictions. As such, it is of both national and international significance.

Under the heading ‘Amendments about Appropriate and Consistent Sentencing’, the Sentencing Legislation Amendment and Repeal Bill envisages a three-stage process in developing a matrix. The first stage will require the courts to ‘indicate’ and ‘report’ upon the extent to which each factor affected the sentence. The second stage will involve the publication by the Executive of ‘benchmarks’ or ‘indicative sentences’, but will leave the courts with a degree of flexibility to depart from such sentences. The third stage will be a regime of ‘presumptive’ sentences from which it will be extremely hard to depart. Reaction in Australia has been predictable: the matrix has caught the eye of a number of politicians, including the Opposition parties in New South Wales. However, it has attracted strong opposition from the judiciary in Western Australia, most notably in the unprecedented form of a report to Parliament by the Chief Justice.

In the United States, there is considerable variation between jurisdictions in terms of the form of sentencing grids and the processes behind their development. Generalisations are therefore somewhat precarious, but it is accepted that the first grid system, introduced in Minnesota in 1980, was a principled response to problems inherent in indeterminate sentencing regimes. In Western Australia, sentencing practices and procedures are quite different and the proposal for a matrix appears to be driven primarily by political considerations, underpinned by strident criticism of the courts. This paper argues that, in substance, these criticisms are unproven or exaggerated, but that the courts do appear seriously to have misread the situation. They should have done more — particularly through guideline judgments — to redress public concerns and to render their practices more accessible. The paper then shows that the process by which the matrix legislation has been developed to date fails to satisfy criteria of accountability and transparency and compares unfavourably with the processes adopted in jurisdictions such as Minnesota. However, flawed processes do not necessarily produce flawed outcomes and the remainder of the paper therefore examines the substance of the matrix legislation on its merits. This analysis shows that the Sentencing Legislation Amendment and Repeal Bill is poorly drafted and that, contrary to its purported objectives, the proposed scheme is likely to make the system less transparent and accountable by leaving too much to regulations rather than legislation, and by making pre-trial decisions the key to the outcome of cases. It also argues that the matrix, in its projected form, may not survive constitutional challenge and will promote discriminatory sentencing practices. Overall, the Bill provides a recipe for injustice, and for dangerous levels of political control of sentencing....

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Karen Whitney (Lecturer, The University of Western Australia) 

Legislation to prohibit stalking was enacted in Western Australia in 1994. Only four years later the legislation was radically overhauled. This article traces the history of the 1994 and 1998 Acts, and considers whether further reform is necessary.

In 1994, Western Australia followed the lead of many other Australian and American jurisdictions in recognising and proscribing the repetitive, harassing conduct known as stalking.1 However, some four years later, after several highly publicised, unsuccessful prosecutions, these original anti-stalking provisions (‘the 1994 provisions’) were repealed, and a new chapter on stalking substituted (‘the 1998 provisions’). In this article, I consider why the 1994 provisions were unsuitable and whether the 1998 provisions are an improvement.

In Part I of the article, I identify why Western Australian law prior to 1994 left stalking conduct without effective legal sanction. Part II then considers how the 1994 provisions were intended to ‘fill this gap’ in the law. Part III examines how the 1998 provisions expanded the scope of the offence and evaluates the likely success of the new provisions. Finally, Part IV makes suggestions for further reform....

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BOOK REVIEWS

Restitution: A New Perspective, Joachim Dietrich (pp 315-323)  (Reviewed by Elise Bant)

As Professor Peter Birks has recently noted in this journal [‘The Law of Restitution at the End of an Epoch’ (1999) 28 UWALR 13], the retirements of Lord Goff and Professor Jones in September 1998 marked the end of an epoch in the development of the law of restitution. In this context, Birks asked himself: ‘What four things most need to be said about the subject at this turn in its life?’ Importantly, each of the four questions subsequently discussed by Birks is inextricably linked to his understanding of the taxonomy of the law in general and, in particular, the law of restitution. This is consistent with Birks’ long-standing emphasis on the significance of taxonomy in legal analysis.3 Proper understanding of the law of restitution is necessarily dependent on satisfactorily ‘mapping’ the law as a whole, and then locating and articulating the structure and content of the law of restitution within that wider legal framework....

That Disreputable Firm: The Inside Story of Slater & Gordon, Michael Cannon  (pp 324-326)  (Reviewed by Kate Offer) 

Michael Cannon's book That Disreputable Firm: The Inside Story of Slater & Gordon is a corporate history of a law firm with which most people, lawyers and non-lawyers alike, are familiar. The firm's fame, some would say notoriety, outside the strict confines of the legal profession is largely due to its involvement in a range of high profile civil actions, most notably against Australian tobacco manufacturers and a number of multinational corporations.

The book begins by tracing the early life of Slater & Gordon's founder, Bill Slater, outlining his experiences in World War I and his subsequent career as both lawyer and politician. The author had access to Slater’s diaries, and, as a result, the account of his life is detailed and compelling. The book also documents the beginning of the on-going involvement of Slater & Gordon with the union movement as well as the firm’s connection with the Communist Party, an association which arose mainly through the activities of partners Ted and Jim Hill. The first half of the book also examines the major areas of law that the firm was involved with from the 1940s until the 1970s, specifically industrial relations and workers’ compensation law.

In the second half of the book, the author looks at the severe financial difficulties that Slater & Gordon experienced in the 1980s as a result of declining market share and an over-reliance on some of the less lucrative areas of private practice. The firm may well have ceased to exist altogether had it not reinvented itself as a ‘mass tort firm’. The author goes on to examine some of the most famous class actions and test cases in which the firm has been involved, including the recent Ok Tedi environmental disaster, the Christian Brothers saga, the silicone breast implants debacle, and the accidental transmission of AIDS by HIV-infected blood during transfusions administered in Australian hospitals in the 1980s....

Changing Policing Theories for 21st Century Societies, Charles Edwards  (pp 327-329) (Reviewed by Graham Pidco)

In recent years the operation and administration of police forces in Australia have come under intense public scrutiny. Royal Commissions in New South Wales and Queensland, as well as investigations by the Anti-Corruption Commission in Western Australia, have led the community to develop an increased interest in the way that law enforcement officers carry out their duties and the effectiveness of police organisations in general.

Charles Edwards, an academic with 20 years’ experience in the British police service, has produced a book which will be well received by all those who are concerned with the role of the police in the criminal justice system. In a well structured and thoughtful account, Edwards examines the role of the police in modern society, paying particular attention to the latest policing philosophies and their implementation. The lynchpin of these philosophies, Edwards argues, is the involvement of the community as a whole in the policing process.

One consequence of this new attitude has been the introduction of innovative methods of policing, including devolution of decision-making, the formation of ‘strategic partnerships’ with community organisations, and a much greater emphasis on proactive problem-solving as opposed to the old-fashioned, reactive style of policing seen in the past.

After discussing the historical development of organised police forces and the social factors which give rise to different styles of policing, the author embarks on a wide-ranging discussion of various strategies designed to enhance police performance. He then considers the vexed issue of accountability and finally looks toward the 21st century, examining such diverse topics as the future of police education, cross-border crime control, and the steady advance of private policing....