Australians in London

The Australian Bar Association Conference examined how English law deals with human rights considerations, privacy issues and direct access, reports Justice Glenn Martin.

Why did 150 Australian barristers and judges come to London in June to hear about the law of England and Wales? We, the Australian Bar Association (“ABA”), came precisely because the law is, to varying degrees, different in this jurisdiction. And because of the different ways in which the profession and the judiciary have dealt with problems which have also arisen in Australia. And because exposure to different ideas and attitudes challenges you to re-assess your own decisions and behaviour.

The major theme of the ABA Conference related to human rights and, in particular, the operation of the UK’s Human Rights Act 1998. There is a very active debate in Australia about the necessity or wisdom of introducing similar legislation at a federal level and the arguments for and against are well-known. What was of interest was the analysis of: the public perception of the Human Rights Act (by the Lord Chancellor, The Rt Hon Jack Straw MP); the relationship between human rights and the prosecution of crime (the Director of Public Prosecutions, Keir Starmer QC), multiculturalism and identity (Madam Justice Abella, Supreme Court of Canada) and the interplay between business and human rights (Professor Robert McCorquodale). For those who were still wondering why Australia (unlike the UK, Canada and New Zealand) does not have some form of statutory protection of human rights, Dr David Erdos (Oxford) provided an interesting hypothesis based on his study of Australian politics and politicians. On another level, Justice Edwin Cameron (Constitutional Court of South Africa) explored the trauma of “Judges failing Justice” and took us to the examples of Sharpeville, Ethel and Julius Rosenberg, and William Joyce.

Problems with privacy

One of the areas of discussion which created the greatest interest concerned the approach in this country to claims based upon an invasion of privacy. The Australian Law Reform Commission has produced a lengthy and detailed study of the issues but, so far, no government has shown much inclination to deal with all of its recommendations.

The approach in the UK was examined by the Chairman of the Bar Council, Desmond Browne QC, and two “non-practising lawyers”, Joshua Rozenberg, the former Legal Editor for The Daily Telegraph, and Max Mosley, the former president of the Fédération Internationale de l’Automobile (“FIA”). Australian barristers are not known for holding a warm regard for journalists and so it was an act of some courage for Joshua to promote the view that privacy should bend to the public’s right to know or, at least, the media’s view of what the public has a right to know. Against that argument was Max Mosley, a practising barrister in the 1960s, now better known for his recent litigation. His presentation, delivered without any notes for 25 minutes, convinced the audience of at least one matter – the Bar had lost a great jury advocate when he left for the world of Formula One Racing. His appeal – to require the media to give notice of an intention to publish matters of an obviously private nature – was well received.

Direct access issues

An issue of substantial practical importance was explored by Anthony Speaight QC, when he described the system of direct access briefing adopted by the Bar in England and Wales. It is substantially more restrictive than that allowed in Australia where it is all but unconfined and where concerns are expressed about its use in the criminal jurisdiction. There were some in the audience who clearly thought that a tightening of the rules in Australia would benefit the courts, the Bar and, ultimately, the litigants. The scheme currently in place in England and Wales appealed to many as one which was appropriate for a referral profession and which also redressed some of the anomalies which can arise, especially with respect to a lay client seeking advice only.

Advocacy gripes

Very few Bar conferences go by without some aspect of advocacy being considered and this conference was no exception. A panel of judges was assembled to tell the barristers just what it was that really annoyed them about failures in advocacy, especially written advocacy. When you have Lord Neuberger, Lady Justice Hallett, Mr Justice Irwin, Justice Keane (Queensland Court of Appeal) and Justice Middleton (Federal Court of Australia) on the same panel, a skilled ringmaster is essential and Edwin Glasgow QC played that role. The panel explored some of the problems which had been described earlier in the day by Lord Judge and, in doing so, demonstrated that, apart from minor variations, the approach to advocacy and the demands made of advocates is the same in both countries.

The UK Supreme Court

I conclude with the first speaker at the conference, Lord Phillips (who will be the first President of the Supreme Court), who spoke to us about the creation of the Supreme Court and how it will function. The change from the House of Lords to the new court and the reasons for it have aroused some curiosity in Australia. One could be forgiven for wondering why one would forgo the description “the Law Lords” when it is a name which conjures up a certain majesty. But these are the musings of someone a long way away who is unfamiliar with all the background and there can be no doubt but that the reputation of the Judicial Committee and its work will be easily assumed by the new court across the square.

The only disappointment for those Australians who attended was that reciprocal visits to Australia by the Bar of England and Wales are so rare. It is, of course, a long way to travel for those in either jurisdiction but, as we found out, it is well worth it.

Glenn Martin, Supreme Court of Queensland


The growth of divergence: UK and Australia
 
In the late 1970s (when I commenced practice at the Bar) an opinion on almost any subject would invariably contain references to decisions of the House of Lords and the Court of Appeal. The same could be said about the decisions of many judges. Today, reference to a decision of a court of the United Kingdom is not a rarity but it is becoming less common. Have Australian lawyers and judges lost respect for those courts? Not at all. They are still held in the same high regard; but in the last 30 or so years three things have happened which have contributed to the change I have described.

First, the High Court of Australia held that it was not bound by its own decisions nor by those of the Privy Council. Thus, the historical link was severed and differences of approach were allowed to blossom. Secondly, in both Australia and the UK the province of the common law was being hemmed in on all sides by an explosion of statute law (more so in a federation where nine parliaments extrude legislation like nuclear powered sausage makers). Thirdly, the decisions of courts in the UK were influenced by and subject to European laws and conventions which have no counterpart in Australia.

Those changes assisted or accelerated the growth of divergences in the approach taken to various aspects of both law and equity.