Address to the PIAC and PILCH Anniversary Dinner
The Honourable JJ SpigelmanThe occasion for this address is the 15th Anniversary of the Public Interest Advocacy Centre (“PIAC”) and the 5th Anniversary of the Public Interest Law Clearing House (“PILCH”), an initiative of PIAC in partnership with the New South Wales Law Society and the New South Wales Bar Association.
Chief Justice of New South Wales
15 October 1998
I welcome the role that both PIAC and PILCH play in ensuring that legal issues of broader than usual public concern are effectively litigated with legal representation.
PIAC has by its research and educational programme, as well as its involvement in litigation, contributed significantly over the period of fifteen years to public discourse in a number of important fields including public health, community welfare, consumer protection, judicial review of administrative decision making and other areas of public policy.
PILCH is one of a number of “pro bono” schemes by which members of the legal profession make available their services to persons who would not otherwise be able to afford litigation. I am aware that consideration is presently being given as to how the PILCH scheme can be effectively integrated with other pro bono schemes available elsewhere from the profession.
Over recent years there have been significant reductions in the amount of public funding available for purposes of legal aid. This has had the inevitable consequence of a noticeable increase in the number of litigants in person appearing before the Courts. One effect of this increase is, of course, that it consumes a greater proportion of the administrative resources of the Court system and of judicial time, than would be the case if those litigants were represented by trained lawyers.
The activities of both PIAC and PILCH stand as significant examples of the recognition by members of the legal profession that participation in a profession which carries with it certain privileges, also has correlative obligations. Specifically there are obligations of a commitment to service of the public, an acceptance of duties which go beyond advancing the interests of a particular client and also an acceptance of obligations which qualify the pursuit of financial self interest by the lawyer.
Many aspects of the law constitute a business or a job, but the practice of the law is not only a business or a job. Every lawyer has obligations to the Court, to the public and to the profession, which obligations may override the direct financial self interest of the lawyer and the indirect financial self interest of that lawyer, through the pursuit of the interests of his or her clients.
There is a tendency in our society to measure success by purely economic standards and significant institutions are organised on that principle. This is perhaps best reflected in the architecture of our cities. Until this century the dominant buildings in our cities were public institutions - Parliaments, Courts, Town Halls - and religious buildings, like cathedrals. Now, all are dwarfed by commercial office blocks.
In a period of this nation’s history when more and more things are judged by merely economic standards, it is important that some spheres of conduct affirm that there are other values in life. For the legal system, values of justice, truth and fairness should prevail over money.
A plurality of organising principles for our social institutions is as important to the health of our society as bio-diversity is to our ecology. The significant role that public service, rather than self interest, plays in the activities of the legal profession is such an organising principle.
We must as a profession resist the dominant perspective that people who put duty and service to the public ahead of self interest are eccentric or, at least, subject to significant suspicion. No sin is more effective in projecting itself on others than the sin of greed.
There are many people associated with both PIAC and PILCH, the employees of the organisation, the law firms and barristers who give their time to pursue the objectives of the organisation, who fulfil their professional obligations going beyond self interests. I commend all of you for your example, in affirming that a profession should not be seen as just a means of making money. The distinction between a profession, and a business or job is maintained, by conduct of this character.
The role of the legal profession is not confined to the provision of particular services to individuals. The legal system served by that profession manifests fundamental values about the nature of our society. It provides the framework within which our communal decision making occurs and, together with the parliamentary system, provides the forum for the public discourse by which our society and polity affirms its core values, applies them and adapts them to changing circumstances.
Much commentary on the operation of the legal system begins with the premise that what is involved is merely a publicly funded dispute resolution mechanism. This is false and dangerously so. In some quarters this approach is a manifestation of the narrow ideology that everything can be reduced to matters of economics. The legal system is the exercise of a governmental function, not the provision of a service to litigants as consumers. The enforcement of legal rights and obligations is a core function of government.
The litigation in which PIAC involves itself, and the provision of legal services through organisations such as PILCH, help maintain our adversary system of legal decision making. That system does not work well, some would say or at all, when litigants appear in person. That is one reason why Legal Aid and the provision of pro bono services is of broader social significance than the interests involved in specific proceedings.
The adversary system is of systemic significance in our society. It stands in contrast with the inquisitorial system. The common law tradition of the adversary system operates on the basis of an assumption that truth is often difficult and sometimes impossible to identify and that the mechanism of the Socratic dialogue is an appropriate means of discovering or approximating it. Investigatory systems manifest a naive rationalism that truth is comparatively easy and always possible to find, so long as one is dedicated to the task of doing so.
More significantly, however, the distinction between an adversary system and an inquisitorial system reflects fundamental issues about the nature of the society in which one wishes to live.
History shows that the inquisitorial legal system is compatible with either democracy or dictatorship. The adversary system is compatible only with democracy.
In an adversary system the administration of justice is one of the protective devices for democracy. That is not a function performed by an inquisitorial system.
In an adversary system even though the Courts exercise the judicial power of the State, when the State appears before the Court in one of its many guises - either as the police or as a taxation authority or some other guise - it appears on the basis of complete equality with the citizen. The procedures of our adversary system are such that even in a criminal case the prosecution is required to conduct the entirety of the proceedings as if it was an ordinary litigant before the Court. It receives no privileges, it receives no special access to the magistracy or the judiciary, its right to call or interrogate witnesses or to make submissions is no different from that of any other litigant in the Court.
The central aspect of our adversary system is that it is the individual litigants that determine what issues are raised and how they are fought. This reflects a fundamental aspect of our society, namely the importance that we attach to the autonomy of individuals and to the maintenance of personal freedoms. Individuals are entitled to exercise control over their own lives and to participate in decisions which affect their lives to the maximum degree possible. No arm of the State controls how they conduct their legal affairs in Court, not even the judiciary.
Personal autonomy and participation have very deep roots in this country, much deeper than in countries which follow an inquisitorial model. That is why personal freedoms have a much longer history and, in my opinion are, even today, more secure than they are in nations with a history of an inquisitorial system. These values of personal autonomy and participation are reflected many times every day in the procedures within all our Courts, indeed they are seen in the very structure of our courtrooms.
I would not for a moment wish to be understood to suggest that there are not aspects of our adversary system that are capable of improvement. But in discussions about the adversary system it is important to understand that that system is a manifestation of deep structural values that lie at the core of our traditional institutions. The adversary system is not a matter that can be assessed merely by the standards of what may or may not be seen to constitute an efficient, or indeed an effective, decision making process in particular factual situations.
I am acutely conscious of the fact that there are limits to the proportion of the gross national product that this, or any other, country can afford to expend on its legal system. The legal system is not immune to the effects of the substantial shift in attitude to the provision of public services which has had substantial and adverse impacts on many other areas of government. However our adaptation to this most recent swing of the pendulum about the proper role of government, must not occur at the expense of institutions that have taken centuries to develop. In particular we should be careful of those who display a glib ignorance of the significance of institutions and a complete innocence of constitutional history.