Perspectives on Retirement from The Bench

perpectives_intro.jpgMy topic today is “Perspectives on Retirement from the Bench”. It is tempting to treat the topic as an invitation to regale you with war stories, those which demonstrate one’s own great successes, and perhaps one’s failures, or more likely, demonstrate the foibles of others, named or unnamed. In the first category, I might tell you about the occasion on which I was appearing for a man accused of unlawful carnal knowledge of a girl under the statutory age. It was in Maryborough. I was cross-examining the girl’s mother about a lengthy delay in complaining about the alleged offence. In those days, nobody told us that it was a bad idea to ask a question to which one did not know the answer. The mother showed great reluctance about answering questions concerning the reasons for the delay. However under sustained and ill-advised pressure from me, she eventually blurted out “Because he did the same thing to me, a couple of weeks later, and against my will”. Fortunately, in those days, it was generally thought that if counsel did something stupid, it might justify a new trial, and in fact, the Judge discharged the jury. Perhaps miraculously, I again appeared for him, and he was acquitted.

An example of the foibles of others might be the occasion on which a very senior, and highly respected judge was told that the application before him involved Gold Coast solicitors. He immediately threw the Supreme Court Rules over his shoulder, saying, “We won’t be needing these.” Out of fairness to Gold Coast practitioners, I should point out that the incident occurred a long time ago, and even then it was unfair.

Notwithstanding that deviation, I do not propose to reminisce at large and/or to relate war stories which may or may not be true and may or may not be amusing. The word “perspective” suggests something a little more precise.

The New Shorter Oxford Dictionary defines the word to mean:

A mental view of the relative importance of the relationships or aspects of a subject or matter; a point of view, a way of regarding a matter .

This definition suggests that the word “perspective” may either describe a view formed about something, or the position from which one considers something. I have assumed that the topic invites me to speak, from the perspective of a retiring judge, about other matters, presumably not about my views concerning retirement. Rather, I assume that I am to speak, from the perspective of a retiring judge, about the law and the profession.

At gatherings such as this, we frequently discuss the law as we see it, and apply it in practice. We look at particular factual situations concerning identified parties, choose the relevant law, and then apply it to the facts. Rarely do we, as practitioners or judges, stand back and look at the law as a whole, and the context in which it exists and operates. However, that exercise has become part of the work which we do in the Federal Court in connection with native title. In native title applications we must identify indigenous societies and their historical and current connections to land. In so doing, we consider the traditional laws and customs of the relevant society, in order to identify the members of that society and its connection to claimed areas of land. We frequently refer to a passage to be found in the High Court’s decision in Yorta Yorta People v State of Victoria (2002) 214 CLR 422. When I first read it, it amazed me. I thought then, and believe now, that it is one of the most profound statements ever made by the High Court about the law as an institution. At 445, Gleeson CJ, Gummow and Hayne JJ discussed the “inextricable link between a society and its laws and customs”. At [49] their Honours said:

Laws and customs do not exist in a vacuum. They are, in Professor Julius Stone's words, “socially derivative and non-autonomous”. As Professor Honoré has pointed out, it is axiomatic that “all laws are laws of a society or group”. Or as was said earlier, in Paton's Jurisprudence, “law is but a result of all the forces that go to make society”. Law and custom arise out of and, in important respects, go to define a particular society. In this context, “society” is to be understood as a body of persons united in and by its acknowledgment and observance of a body of law and customs.

At [50] their Honours continued:

To speak of rights and interests possessed under an identified body of laws and customs is, therefore, to speak of rights and interests that are the creatures of the laws and customs of a particular society that exists as a group which acknowledges and observes those laws and customs. And if the society out of which the body of laws and customs arises ceases to exist as a group which acknowledges and observes those laws and customs, those laws and customs cease to have continued existence and vitality. Their content may be known but if there is no society which acknowledges and observes them, it ceases to be useful, even meaningful, to speak of them as a body of laws and customs acknowledged and observed, or productive of existing rights or interests, whether in relation to land or waters or otherwise.

Prior to reading that passage, I had never appreciated that “inextricable link” – that without laws and customs there was no society, and that without society there could be no operative laws and customs. However, a short period of reflection demonstrates the undoubted truth of both propositions. To my mind that link means that the existence of laws and customs which are recognized and, I would interpolate, to a certain extent enforced, is fundamental to the existence of a society.

It is not necessary, in this company, that I explain the meaning of the word “law”. But “custom” is a more difficult concept for us to understand or define. Some customs become embedded in law. Public holidays such as Christmas, Good Friday and Easter Day were, by custom, treated as holy days, but the law now recognizes such custom by legislating that they be holidays. Many of our customs involve social values derived from the Ten Commandments, some of which are recognized by the law, whilst some are not. In our largely secular society the Sabbath (or rather Sunday) is still treated by some as being holy, and by others as being a day upon which they should not have to work, unless, of course, they are well paid for doing so. The prohibitions upon adultery, stealing, lying and covetousness are still deeply embedded social values although they are not generally dealt with by the law. Recent weeks have demonstrated that ancient customs concerning adultery are not yet dead.

St Paul’s identification of faith, hope and charity as cardinal qualities, and his emphasis upon charity continue to guide much of our moral and ethical thinking, although the religious significance of those qualities may have, for many, faded. In religious usage, the word “charity” is now frequently displaced by the word “love”. We generally have faith that others will act in good faith, and, at least ideally, we, ourselves try so to act. Hope for a better world is a strong aspect of our civilization. In particular, we look to a better world for future generations. The word “charity” really describes the way in which we should treat others.

Western societies, like our indigenous societies have many customs which we may not always recognize as such, but they more or less guide our lives. Religion is not the only source of custom, but it is a major source, as is necessity. Our Australian indigenous societies were, until recently, hunter-gatherer societies. Some indigenous societies still demonstrate characteristics of such societies. Necessity has influenced the development of their laws and customs and, of course, they are generally unwritten. Such laws and customs may be different from those of western European societies and societies derived from them, but very often, a little imagination will demonstrate parallels, and like most, if not all other societies, some of their laws and customs were, and are based in religion. Religion is, after all, the product of attempts by societies to explain the universe, its origins, purpose and future.

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I have perhaps spent too much time speaking about a society’s customs. However, my purpose is to encourage you to develop a “perspective” about the concept of society – about how we understand that word as it applies to our nation. It seems to me that the better we understand the concept of society, the better we will understand the law as it is, and as it should be. For example, a custom may become so universally recognized in a society, that there will be a question as to whether it should become part of the law. In some cases, such a step may be highly desirable. In others, it may be deeply divisive.

I want to say a little about change, both in society and in the law. I expect that most of you are thoroughly sick of being told about the rate and extent of change in modern society. However, I shall try to focus on particular changes, and the ways in which changes in society have been reflected in the law, and the practice of the law.

When I first studied modern history at Brisbane Grammar School, we were told that there was debate as to the point at which modern history commenced. Was it the fall of Constantinople in 1453, or the defeat of Napoleon at Waterloo in 1815? I opt for the latter, largely because it was shortly after the beginning of the Industrial Revolution in the 18th Century. That revolution led to the information and technology revolutions of which we are part.

Revolutions are about change, often violent change. There is general agreement that the world has never before changed as quickly, or as comprehensively as it has in our combined lifetimes. Such revolutions are the products of existing societies, but the forces which they generate inevitably change the societies themselves. If we accept that this state of affairs will continue into the foreseeable future, if rapid change is, as I would argue, the most significant characteristic of our society, then it follows that the law must accommodate and even facilitate such change. Indeed, I suggest that judges, practitioners and legal academics should see it as their duty to try to predict how the law should change to reflect current and future changes in society. Yet it is by no means uncommon for scientists, entrepreneurs, social scientists and others to complain that the law and lawyers are not keeping up with change and are, in fact, impeding it.

If we do not find a way in which the law can deal with change in a timely way, then the law may become irrelevant to the way in which technology progresses and business is done.

Before looking at changes in the law in my professional lifetime, I want to say a little about social change during a rather longer period. Of necessity, and as directed by the topic, I shall do so from my perspective. You may well disagree with my views, but you have asked for them. For the moment, it’s all about me, or at least my perceptions.

Three great, world-shaping events of the 20th century were the First World War, the Depression and the Second World War. Those events, occurring over a period of only 31 years, and others, led to a post-1945 world in which the rights of individual men and women were much more important than they had previously been. Privileges associated with rank and wealth tended to disappear. Although it is dangerous to generalize, the people who inhabited this new world were, at least as I came to know them, disciplined, cautious, altruistic and, to a large extent, frugal, at least as compared to the following generations. These tendencies were, in my view, the product of the inevitable deprivation, dislocation and the need for discipline which are the hallmarks of war and economic disaster, and by the need to deal with such catastrophes as a society. That generation comprised the parents, and to some extent, the grandparents of my generation. There was, I think, in that generation, a determination that the world would be a better place for their children and grandchildren. This determination manifested itself in improved social welfare, improved educational opportunities and generally, greater and more widely distributed wealth. The real beneficiaries were the members of my generation. However, as an old friend of mine frequently says, today’s favour is tomorrow’s duty, and so it has been with my generation and perhaps the generation and a half that have followed us. Let me explain, starting with education.

Menzies and Whitlam both had progressive views about education, especially tertiary education. Menzies introduced a comprehensive scholarship system. Whitlam took the matter further. Both were, I think, determined that those young people who had the qualities necessary to undertake the rigorous discipline of tertiary education should be assisted in doing so. The systems which they introduced went a long way in that direction. However, those who followed them have not really been true to their ideals. We now have a system in which graduates start their careers with quite large debts. Another example of the less generous attitudes of the post-war generations is retirement ages. Until about 15 years ago retirement ages were being brought forward, ostensibly to allow the enjoyment of longer retirements. Perhaps coincidentally, this allowed us baby boomers to succeed the preceding generation at an earlier point than would otherwise have been the case. Now we are pushing back retirement, at least partly because we want to stay at work, thus keeping young people from enjoying the opportunities that we had. The judiciary, of course, was just about the last group to have a retirement age imposed upon it, except in Queensland. It will probably be the last to see retirement ages abolished. My point is that an aspect of change has been a movement away from generational altruism. I have heard so many of my parents’ generation say that their goal in life was to ensure that their children had better starts in life than they had enjoyed. It is not a sentiment heard regularly today. I am, of course, speaking of generational attitudes, not the way in which parents care for their own children.

I have previously referred to an enhanced focus on individual rights. That enhanced focus has been particularly evident and welcome in areas such as the status of women and indigenous peoples. In the 1950s, 1960s and perhaps later, a female teacher in the State education system who married would be dismissed and possibly re-hired as a temporary employee. In that case she would not be paid over the December-January period, and this when the vast majority of primary school teachers were women. It is hard to imagine a greater change than that which has occurred in that respect. Similarly, at that time, it seems to me in retrospect, that there was an unexpressed expectation, on the part of non-indigenous Australians, that the future of our indigenous peoples was total assimilation into the European community. Again, nobody could imagine a greater change in attitudes in a relatively short time. Changes such as these have significantly affected the substance of the law and the way we apply it. An associated change has been the identification of multi-culturalism as a national goal.

The focus on individual rights was an inevitable consequence of the tragedy of the two World Wars. It was, to some extent, reflected in the democratic constitutions forced on the Axis powers, particularly Germany and Japan, after the Second World War. It also has been reflected in various international arrangements such as the Refugees Convention and other declarations as to human rights. I suspect, however, that the idealism which underlies these instruments is somewhat naïve. Such naivety, combined with the imprecise language traditionally used in international agreements, has, I fear, allowed exploitation of the products of good intentions for the benefit of special interest groups, both benevolent and otherwise.

For my generation a remarkable change has been the decline in the influence of organized religion, particularly the influence of the Christian churches, with consequential questioning, indeed challenging of social and moral norms which previously lay close to the roots of our society. The link between social norms and the law is vital. If the law does not reflect widely observed norms of behaviour, then both the law and the norms will be discredited. If the religious bases of our social contract have gone, on what basis are we to amend existing social norms and develop new norms? In particular, how do we strike a balance between the majority view and the conscientious moral or religious views of individual citizens. Some very contentious issues reflect this problem. One is abortion. Another is the legalization of homosexual acts. A third is euthanasia. Same sex marriage falls into the same category. Some of these, and similar questions, have been at least partially resolved. However, there can be little doubt that there are still significant numbers in our society who do not accept such resolutions, usually because they are inconsistent with 2,000 years of Christian teaching, of Jewish teaching before that and, for that matter Islamic teaching.

There have been many other dramatic changes. Globalization as a concept has significantly affected the law and will continue to do so. To a great extent, it has been facilitated by ease of travel and by advances in communications technology. But the concept itself is much more than the product of those facilitating features. People are thinking differently about the world, the nation states, the cities, the countryside and themselves. Globalization is producing a demand for legal reform, but the necessary reform is unlikely to be successfully achieved by changes to the laws of nation states. Business is increasingly demanding a degree of predictability as to outcomes and enforceability, which demands can only be satisfied by an international approach to the law. Such an approach must, in turn, lead to globalization of the law, the profession and the way in which we resolve disputes.

Continued...

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The Hon Justice John Dowsett AM