Lawyers and judges: the fifth attribute[1]

The Honourable Mr R Sackville AO QC[2]

Even within a mature democracy, lawyers and judicial officers require courage and resilience when they act to preserve fundamental values which transcend the vagaries of majoritarian opinion. In this paper, the author considers courage as a professional virtue in the context of a rapidly changing society and legal environment. He critically examines the “thin conception of democracy”, and explores the fragility of the link between democracy and the rule of law. The author identifies the core concepts of the rule of law. He acknowledges that adherence to these will not ensure compliance with the rule of law, and identifies other protections which are needed. The author observes that the relationship between the courts and elected governments can be uneasy. He provides examples of occasions where the courts’ power to frustrate the will of democratically elected legislatures and governments has had profound political consequences.

A changing legal environment

In an era characterised by astonishingly rapid and sometimes troubling social and technological change, it is hardly surprising that legal institutions have undergone a process of transformation. The pace of change may have been somewhat more sedate than that experienced by other social institutions, but the transformation has been no less profound.

The work of courts and tribunals, for example, has expanded in scope and become more demanding in response to developments as varied as ever more complex disputes, the globalisation of commerce, a more pervasive regulatory environment and the novelties of the digital age. The civil courts have largely abandoned their traditional role as passive arbiters of disputes between autonomous litigants and instead have become active managers of litigation and strong proponents of mediation and other forms of alternative dispute resolution. The judiciary has not only increased substantially in size over a relatively short period, but has gradually become more representative of the community it serves. The principle of open justice has been adapted to the new technology, even to the point of judicial officers embracing social media as a means of directly communicating with the general public.[3]

The legal profession has emerged from its traditional cocoon surrounded by restrictive practices and now operates in a more open environment shaped by competition policy and the commercialisation of legal practice. These forces have produced consequences that would have been regarded by most observers as fanciful, if not bizarre, only a few decades ago.[4] Large law firms are now not merely national, but multinational. Entrepreneurial legal firms are listed on stock exchanges and are therefore answerable not only to courts and regulators but to investors seeking to maximise returns on their investments. It is commonplace for representative proceedings to be instituted in which the nominated plaintiff or applicant seeks on behalf of an aggrieved, if indeterminate, group, hundreds of millions of dollars from an alleged wrongdoer. Litigation funders share handsomely in the spoils of litigious success, but have become an accepted feature of the legal landscape following the High Court’s conferral of its imprimatur on the business of litigation funding.[5]

Given these transformations, it is increasingly difficult to persuade a sceptical and frequently hostile media and wider community that lawyers and the legal system have a critical role to play in preserving and strengthening democratic institutions and the rule of law. The task is made more formidable because so much of what lawyers do — or at least ought to do — is concerned with the protection of individuals and minority groups against the exercise of power by the majority, or at least by those who claim to represent the majority. It is this aspect of the role played by lawyers and legal institutions that is often overlooked in public discussions.

The limitations of “thin” democracy

The dangers of a democracy in which a majority can impose its will upon unpopular minorities was an important theme of the debates that preceded the adoption of the US Constitution. James Madison was the fourth President of the US and is generally regarded as the principal author of the Constitution and the Bill of Rights added to the Constitution in 1791. Like many of the Founders, Madison was both a slave owner and profoundly sceptical about the virtues of democracy.

Writing for a newspaper under the name “Publius”,[6] Madison lamented that a “pure democracy”,[7] by which he meant a small body of citizens who administer the government in person, admitted “no cure for the mischiefs of faction”.[8] The “common passion”[9] of the majority would have no compunction about sacrificing the weaker party (that is, the minority) or an obnoxious individual. It was for this reason that Madison thought that:

[S]uch democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths.[10]

Madison’s answer to the defects of direct democracy ancient Greek style was the establishment of a republic under which a body of citizens would be chosen whose:

wisdom may best discern the true interest of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations.[11]

Madison recognised the dangers of inappropriate choices by the electors because of prejudice, intrigue or corruption. But he thought that these risks could be minimised if the republic were larger rather than smaller. The more numerous the electorate, the more likely the selection of “men who possess the most attractive merit”,[12] presumably much like Madison himself.

The snobbery and fear of the demos held by some of the Founders of the American system of government are no longer acceptable. It is difficult to imagine, for example, a 21st century Australian politician questioning in public the “good sense of the Australian people” or lamenting the extension of the franchise to sections of the populace deemed to be insufficiently educated or imbued with common sense to exercise their vote wisely. The “factionalism” deplored by Madison is now regarded as inherent in the democratic system of government, as interest groups and rent seekers vie for influence and favours. Moreover, Madison’s catalogue of the failures of direct democracy in ancient times was by no means historically accurate. Even so, he had a point.

As with so many concepts that play an important role in political and legal discourse, “democracy” is capable of many different meanings, reflecting the fact that democracy can take many different forms.[13] The point can be illustrated by comparing Australia and New Zealand, near neighbours and both undoubtedly democracies. They differ in political structures (one a federation, the other unitary), voting systems, the make-up of the electorate, the composition of the national Parliament (one bicameral, the other unicameral) and the powers of the national Parliament (one subject to a written Constitution interpreted by the judiciary, the other enjoying legislative sovereignty).

On one view, sometimes designated as the “thin conception of democracy”, the only element essential to a functioning democracy is that the government governs with the consent of the people, determined by the votes of the majority at free elections. This definition of democracy leaves many questions unanswered, such as the mechanisms for ascertaining the will of the people, and the precise nature and powers of representative institutions. But it implies that the essence of democracy is popular sovereignty, manifested by the election of the government by, and in conformity with the wishes of, a majority of the people.

In political and scholarly discourse, the rule of law is closely associated with the idea of democracy and, indeed, it is often assumed that neither can be separated from the other. Yet it is not at all difficult to conceive of a democracy in the “thin” sense that lacks basic elements of the rule of law. The government of a particular country or political entity might have the support of a majority, even an overwhelming majority, of the population manifested in free, or relatively free, elections. That same country or entity might subject minority ethnic, religious or political groups to serious discrimination, if not outright persecution. For example, minorities might be denied the freedom to preserve their religious, cultural or linguistic heritages or may be deprived of basic services that the majority takes for granted. Dissenters charged with criminal offences may be denied the protection of a fair trial before an independent and impartial judiciary. Arbitrary imprisonment may become a weapon of State control to be used against opponents of the government. Basic liberties, such as freedom of speech and of the press, may be curtailed ostensibly for the purpose of preserving social harmony.

The Russia of Vladimir Putin is a salutary illustration of a country that has relatively free national elections (at least so far as the counting of votes is concerned), but does not have the benefit of a genuinely independent judiciary that functions free from political influence. The apparently authentic election of a short-lived Muslim Brotherhood government in Egypt in 2012 was followed by autocratic rule and the repression of non-Muslim minorities. If genuinely democratic elections were to be held in Myanmar, the triumph of popular sovereignty would not necessarily guarantee that the persecution of the minority Rohingya people would cease.

The dreadful history of the 20th century serves as an antidote to the temptation to overstate the guarantees of freedom inherent in a democracy. Specifically it is well to recall that Hitler’s rise to power in Germany in January 1933 was preceded by the Nazis’ electoral victory in 1932. While the Nazis did not secure a majority of votes, they did obtain the highest proportion of votes among parties contesting the election: 37.4% of the popular vote, more than the combined vote of the next two parties, the Social Democrats (21.6%) and the Communist Party (14.6%).[14] Hitler came to power within the framework of a genuinely democratic electoral system.

The fragility of the link between democracy and the rule of law is not purely theoretical. Australians do not have to look very far, either in a geographic or temporal sense, to detect examples of democracies flouting the rule of law. In January 2014, for example, the President of Nauru dismissed and deported that tiny country’s resident magistrate. When the Chief Justice of Nauru, an Australian national and former judge of the Supreme Court of Victoria, issued an injunction restraining the magistrate’s deportation from Nauru, the Government simply ignored the injunction and cancelled the visa of the Chief Justice, who thereupon resigned.[15] The justification for these extraordinary actions by the Nauru Government was said to be that it had lost confidence in the magistrate by reason of unparticularised and unproven allegations of “cronyism” and other inappropriate behaviour. Notwithstanding the failure to follow due process, the President survived a no-confidence vote in the (presumably) democratically elected Parliament of Nauru. The episode demonstrates that democratic elections do not ensure that the judiciary will remain independent of the government of the day.

Many in Australian have forcefully criticised Nauru’s actions as a fundamental departure from the rule of law, which it surely is. But, the events in Nauru have much greater significant than an internal dispute concerning governance of a Pacific micro-State. Nauru has a pivotal role in Australia’s determined efforts to stop asylum seekers arriving by boat on the Australian mainland or on Australia’s island territories. Asylum seekers whose boats are intercepted or who are interned on arrival are liable to be transferred to Nauru (among other places) for processing and repatriation or resettlement, as the case may be.[16] The effective dismissal of Nauru’s judiciary, apparently because of what was seen to be judicial interference with the government policies, has direct consequences for Australia, since it has chosen to effectively outsource to Nauru its responsibilities under the Convention Relating to the Status of Refugees.[17] Departures from the rule of law in Nauru may therefore have a direct impact on people for whom Australia has responsibilities under both international and domestic law.

The failure of democracies to respect the rule of law is not an isolated phenomenon. Even the great Western democracies, with a professedly unshakeable commitment to the rule of law, cannot claim an exemplary record. The US’s adherence to the rule of law historically has been very patchy, not simply because of the institution of slavery which perished only with the Civil War. Robert Caro’s magisterial biography of Lyndon Johnson analyses in painful and anger-inducing detail how a minority of US senators, comprising racist representatives of Southern States, was able to forestall for decades the most basic federal civil rights legislation.[18] A flawed electoral system, coupled with ruthless reliance on procedural devices such as the filibuster, killed even bills that would have provided a modicum of protection to the black population of the South against lynching and some prospect of bringing perpetrators to justice. The lamentable history of Guantanamo Bay is a more recent example. Australia has not been exempt from this phenomenon. The White Australian Policy was a pillar of the Australian Federation and remained in place until the 1960s. The policy may not have led to unpunished lynching of non-whites, but it was hardly a shining example of the rule of law in action. Yet the White Australia Policy was the product of a democracy and for decades had the fervent support of a majority of voters.

The rule of law

Just as there is no universally accepted definition of democracy, there is no agreement about the essential elements of the rule of law.[19] The core notion is that the rights and obligations of citizens must be set down in laws formulated by a genuinely representative legislative body or other duly authorised organs of the state, such as the courts or administrative agencies acting pursuant to powers conferred by statute. It is also essential that legislation and other enforceable rules be enacted in accordance with recognised procedures, established and regulated by law. To the extent that these principles are adhered to, democracy and the rule of law overlap.

But adhering to these core concepts, however, does not ensure compliance with the rule of law. The reason is obvious. Oppressive regimes may scrupulously observe (or appear to observe) legal forms, yet deny fundamental freedoms to segments of their population. Apartheid South Africa did not have genuinely representative institutions, but for the most part it purported to apply laws enacted by a legitimate parliamentary process and to enforce the laws in courts nominally enjoying independence from the Executive government. Even Stalin’s show trials in the Soviet Union were characterised by ostensibly full and free confessions of heinous wrongdoing by those destined to be shot within hours of their public performances. Of course, neither the old South Africa nor Stalin’s Soviet Union was a democracy in any sense, notwithstanding their pretensions. Nonetheless, each laid claim to observance to the rule of law and many in the outside world chose to believe them.

For these reasons, formal adherence to legal norms cannot of itself satisfy the minimum standards required to maintain the rule of law. Other protections are necessary. These include:

  • acceptance that those in authority exercise power, in the words of the political philosopher Jeremy Waldron,[20] within a constraining framework of public norms, rather than on the basis of their own ideology or their own sense of right and wrong

  • the existence of an independent and impartial (and therefore incorruptible) judiciary, which applies legal rules and principles formulated in accordance with the established procedures referred to earlier

  • the right of all persons involved in civil or criminal proceedings to a fair hearing before an independent court or tribunal, in accordance with principles of open justice and within a reasonable time frame

  • acceptance of the principle of equality before the law, meaning broadly that like cases should be treated alike so far as practicable and that unequal treatment should be justified by objective differences in the circumstances of each case

  • enforceable prohibitions on arbitrary arrest detention and on cruel and unusual punishment, including torture.

Beyond these measures, there is considerable room for disagreement. Many commentators argue that adherence to the rule of law requires more demanding criteria to be satisfied. These include adequate protection of fundamental human rights, such as those embodied in the International Covenant on Civil and Political Rights; limits on the discretionary powers exercisable by government officials or administrative agencies, for example, by formulating rules curtailing the opportunities for arbitrary or capricious decision-making; and measures designed to overcome entrenched barriers to justice and to redress, so far as practicable, the disadvantaged experienced by the poor and vulnerable embroiled in the legal system.

These observations about democracy and the rule of law have implications both for those who are about to enter the legal profession and those who are already within it. A core function of lawyers in any legal system professing adherence to the rule of law must be to preserve and protect the values implicit in the rule of law. Since the rule of law requires the rights and freedoms of minorities to be protected against the majority, lawyers often find themselves in the business of representing the poor, the marginalised and, in Madison’s phrase, the “obnoxious”. Courts, which must apply the law impartially, necessarily have occasion to recognise and protect the rights of minorities against the opposition of governments and other powerful interests. Accordingly, while no lawyer or judge is obliged actively to invite community opprobrium or disdain, unpopularity frequently goes with the discharge of his or her responsibilities.

The most obvious example of lawyers risking opprobrium or unpopularity is their role in defending persons charged with particularly heinous criminal offences, especially cases that attract the attention of the mass media. Public opinion can, of course, be a very powerful force for good, but community passions can also be aroused and sometimes manipulated in an age of instant communication and short political cycles. Community revulsion at serious criminal conduct means that a lawyer responsible for defending an accused charged with such conduct can rarely expect community gratitude and may find himself or herself subjected to calumny.

The courts are often placed in an even more difficult position. Community outrage directed to those convicted of serious offences is the principal reason why sentencing decisions are so frequently attacked as grossly inadequate and judges are said to be “out of touch” with community standards. In this field, it is not at all difficult to incur the wrath of populist media commentators all too willing to advocate simplistic solutions to complex social problems and conflicting but valid policies and principles. Nor is it difficult for the commentators to impose very great pressure on politicians to “do something” about the perceived problem.

The relationship between courts and elected governments can be uneasy for many other reasons. The exercise of judicial power sometimes requires courts to decide cases adversely to governments and even to thwart the implementation of policies approved at an election by a majority of the voting population. In Australia, this is in part a consequence of the role of the High Court (and, to a lesser extent, inferior courts) in interpreting the Constitution. In Australia, as in other jurisdictions with a written Constitution such as the US and Canada, it has long been regarded as axiomatic that the courts have the power to declare legislation or Executive acts invalid if they are deemed to be inconsistent with the Constitution.[21] Thus, the High Court has the last word on the validity of legislation challenged as unconstitutional.

The power of courts to frustrate the will of democratically elected legislatures and governments can have profound political consequences. In 1948, the Bank Nationalisation Case[22] invalidated the Labor Government’s attempt to nationalise the banking system, a central plank in its socialist platform. On the other side of the political divide, in 1951, the High Court’s decision in the Communist Party Case[23] invalidated the newly elected conservative Government’s legislation to ban the Communist Party. The judicial decision was subsequently effectively upheld in a referendum, which rejected a proposal to amend the Constitution to give Parliament the power to dismantle the Communist Party.

In more recent times, the High Court, despite having something of a reputation for greater judicial restraint than it once enjoyed, has shown itself willing to expand the scope of judicial review of legislation and of administrative action. The rationale for this judicial intervention is often said to be the need to preserve the rule of law and democratic values. Thus, the High Court discerned an implied freedom of political communication in the Constitution and has been vigilant to strike down legislation which is inconsistent with the independence and impartiality of the courts. The implied freedom of political communication has been invoked, for example, to set aside a conviction for using insulting words in a public place because the prohibition was capable of imposing a disproportionate burden on the freedom to communicate political ideas.[24] Chapter III of the Constitution has been relied on by the High Court to invalidate legislation which requires the court to proceed in a manner that is procedurally unfair or that conforms to the wishes of the Executive government.[25]

The counter-majoritarian functions of the judiciary are not confined to constitutional adjudication. Courts in Australia are ultimately solely responsible for interpreting legislation. The exercise of this interpretive function may have the effect of preventing a government implementing a policy central to its electoral standing and thus embroil the court deciding the case in political controversy. For example, in the Malaysian Declaration Case in 2011,[26] the High Court held that the declaration of Malaysia as a country to which asylum seekers could be transferred had not complied with the requirements of the Migration Act 1958 (Cth) and therefore was invalid. The decision effectively put an end to a key component of the then government’s offshore processing policy.

It was, of course, open to Parliament to amend the legislation and it subsequently did so. Nonetheless, the High Court’s decision proved to be pivotal and the so-called “Malaysian Solution” has not been revived, although other “solutions” have taken its place. The Malaysian Declaration Case demonstrates that, even outside the rarefied atmosphere of constitutional adjudication, the potentiality for conflict between the judiciary and other branches of the elected government is ever present.

Courage as a professional virtue

In 1987, Sir Gerard Brennan identified four essential requirements for a practising lawyer: legal competence of a high order; a willingness to serve the community; professional commitment going well beyond the call of strict duty; and (of course) personal integrity.[27] To Sir Gerard’s list I would add a fifth attribute required of lawyers (including judicial officers) in a functioning democracy: courage and resilience in the face of public criticism and disapproval.

Since a functioning democracy does not guarantee full adherence to the rule of law, lawyers must perform a counter-majoritarian role if they are to maintain and protect the rule of law. The proper discharge of this responsibility is apt to generate conflicts with those who invoke “public expectations”, “community standards”, electoral mandates or other manifestations of majority opinion that can be inimical to the rule of law. Practising lawyers who represent disadvantaged, unpopular or “obnoxious” groups and individuals must therefore be prepared to receive both criticism and disapproval from commentators who see public opinion as the sole touchstone of democratic legitimacy. In Australia, critical attitudes of this kind can be seen from time to time in political responses to those who institute legal challenges to governmental policies and practices relating to asylum seekers.

Judges require an even greater measure of courage and resilience than practising lawyers in the face of hostile public opinion. To some extent lawyers are expected, albeit grudgingly, to represent the underdog.[28] Judicial officers, quite rightly, are subject to close scrutiny and can expect criticism if significant decisions are found to be erroneous or are the subject of vigorous but legitimate debate. But when judicial decisions run counter to public opinion (or the opinions of those who purport to speak on behalf of the public), criticism of judicial officers can go well beyond reasoned argument. Discussing contestable issues can descend into personal attacks and, in extreme cases, harassment of judicial officers. There is nothing especially new in this phenomenon, but public condemnation may not be comfortable for judicial officers to deal with, especially if they have not previously experienced the full glare of hostile publicity. Yet the reality is that discomfort of this kind can be an unavoidable by-product of the exercise of judicial power. It must be endured as the price for upholding the counter-majoritarian values implicit in the rule of law.

It is neither necessary nor appropriate to exaggerate. In this country, lawyers are not threatened with incarceration or torture for representing very unpopular clients or causes.[29] Judges enjoy security of tenure and other guarantees of independence and so need not fear dismissal or physical retribution from official sources for applying the law or making decisions that frustrate government policies or are unpopular. Nonetheless, even within a mature democracy, lawyers and judicial officers may be called upon to show uncommon fortitude when acting to preserve fundamental values that transcend the vagaries of majoritarian opinion. Hence the necessity for the fifth attribute.

[1] Revised version of the welcome address to University of NSW students, March 2014, Sydney. Published in (2015) 12 TJR 187, updated 2021.

[2] Former Judge of Appeal, NSW Court of Appeal, currently Chair, Royal Commission into violence, abuse, neglect and exploitation of people with disability.

[3] For an overview of the interaction between social media and the courts, see B Fitzgerald, C Foong and M Tucker, “Webb 2.0, social networking and the courts” (2011) 35(3) Aust Bar Rev 281; M Krawitz, “Summoned by social media: why Australian courts should have social media accounts” (2014) 23(3) JJA 182.

[4] See R Sackville, “Lawyers and litigation: a pathway out to wealth and fame?” in M Legg (ed), The future of dispute resolution, LexisNexis Butterworths, 2013, Ch 18.

[5] Campbell’s Cash and Carry Pty Ltd v Fostif Pty Ltd (2006) 229 CLR 386.

[6] J Madison, “No 10: Madison” in A Hamilton, J Madison and J Jay, The federalist papers, Mentor Books, 1961, p 77.

[7] ibid p 81.

[8] ibid.

[9] ibid.

[10] ibid.

[11] ibid p 82.

[12] ibid p 83.

[13] The various forms of democracy are explored from an historical perspective by J Keane, The life and death of democracy, Pocket Books, 2009.

[14] A chart showing election results in Germany between 1919 and 1933 is reproduced in A Bullock, Hitler and Stalin: parallel lives, Harper Collins, 1991, App 1. In November 1932, the Nazis secured 33.1% of valid votes and in March 1933, 43.9%.

[15] The course of events in Nauru is recounted in “Media Release No 5” issued by the Chief Justice, the Honourable GM Eames AM QC, when he resigned on 13 March 2014.

[16] The arrangements are embodied in a Memorandum of Understanding Between the Republic of Nauru and the Commonwealth of Australia, relating to the transfer to and assessment of persons in Nauru, and related issues signed on 3 August 2013. See Migration Act 1958 (Cth), Pt 2, Div 8, Subdiv B, enacted in response to the Malaysian Declaration Case: Plaintiff M70/2011 v Minister for Immigration and Citizenship(2011) 244 CLR 144. The constitutionality of Subdiv B was upheld in Plaintiff S156/2013 v Minister for Immigration and Border Protection (2014) 254 CLR 28.

[17] Convention Relation to the Status of Refugees, open for signature 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954).

[18] R Caro, The years of Lyndon Johnson: master of the Senate, Vintage Books, 2003.

[19] See T Bingham, The rule of law, Allen Lane, 2011.

[20] J Waldron, “The concept and the rule of law” (2008) 43(1) Georgia Law Review 3 at 6.

[21] The classic statement is that of Fullagar J in the Communist Party Case: Australian Communist Party v Cth (1951) 83 CLR 1 at 262–263.

[22] Bank of NSW v Cth (1948) 76 CLR 1.

[23] Australian Communist Party v Cth (1951) 83 CLR 1.

[24] Coleman v Power(2004) 220 CLR 1. In Australia, so it appears, incivility and free speech are inseverable.

[25] See eg, Wainohu v NSW (2011) 243 CLR 181; SA v Totani (2010) 242 CLR 1.

[26] Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144.

[27] G Brennan, “Pillars of professional practice: functions and standards” (1987) 61(3) ALJ 112.

[28] As in the quintessentially Australian film, “The Castle”, 1997.

[29] Although occasionally they may be subject to searches by authorities acting under warrant: see Ministerial Statement by the Attorney-General (Cth), 4 December 2013, “Execution of ASIO search warrants”, relating to warrants executed by the Australian Security Intelligence Organisation at premises occupied by the lawyer representing East Timor in a dispute with Australia.