Deconstructing the Common Law

By Gethin, Patrick | Review - Institute of Public Affairs, October 1997 | Go to article overview

Deconstructing the Common Law


Gethin, Patrick, Review - Institute of Public Affairs


Has the Common Law had its day? Patrick Gethin considers a potentially attractive alternative to our slow, costly and uncertain system of justice.

A legal system providing reasonable certainty and clarity in the law of civil disputes, with speedy and effective remedies at moderate cost, is essential to Australia's commercial competitiveness and democratic way of life. Reformers suggest changes to court procedure but pay scant attention to the ways laws are made. They may be likened to a restaurateur seeking to improve his business by changing the ovens and the waiter service, while ignoring gross faults in the chef, the food and the recipes.

By common consent our legal system is too complex, too costly and too slow. Reports like the Senate's February 1993 `Cost of Justice, Foundations for Reform' and the Australian Institute of Judicial Administration's `Cost of Civil Litigation' report of a year earlier, emphasize the high cost of going to law. The law's delays and complexity are criticized expressly and by implication in the many reforms of court rules introduced by State and federal judges. Discussion papers currently circulated by the Australian Law Reform Commission (ALRC) calling for changes to our adversary system of litigation, draw attention to the system's complexity and slowness.

Judges have designed reforms to reduce delays; first through systems of case management to make parties follow a strict timetable, and second by pressing parties to settle their cases by agreement through compulsory conferences and mediation. These reforms have expedited the handling of cases and more parties are prepared to settle, without trial, through these alternatives. But these new procedures increase the cost of litigation for those who want a trial. This can be an advantage to the wealthy litigant, leaving the less well-off to accept his mediated `half a loaf', because he cannot afford to go to trial for the whole one. Strong promotion by judges of alternative procedures suggests that ordinary trial procedure can be unjust. Judges, and often the ALRC, view the system from inside, failing to see the whole picture. The certainty and clarity of the laws our courts are called upon to judge must be a factor influencing the number of disputes that are brought to court and the ease or difficulty of determining them. More importantly, reasonably certain and clear laws tend to favour democratic controls. By contrast, uncertain and complex laws lead to more requirements for judicial determination of their meaning, thus effectively taking much lawmaking away from parliaments and giving it to unelected and irremovable judges.

The decisions by the High Court in its Mabo and Wik rulings, both claimed to be based upon unwritten or common law, have created much uncertainty which will tend to deter people from investing or doing business in Australia. The Mabo decision in fact changed the common law as generally understood for hundreds of years

The 'Indicators' in the IPA Review of March 1997 show that Australia's mining companies are increasingly investing overseas, and that from a wide range of prospective countries, they rate Australia as one of the riskiest for land claims.

The Wik and Mabo cases are but two of the latest High Court decisions to shake public confidence in the soundness of its judgments.

The recent State franchise fees case has disrupted the business of State governments and private enterprise. The High Court has effectively changed the definition of an excise, for the second time in recent years, thus wrecking State taxing powers overnight and rendering illegal much State revenue collection. Well may we ask with then acting Commonwealth Solicitor-General Dennis Rose-`Is the High Court a law unto itself?' (The Australian, 28 November 1994, page 11. )

Professor Geoffrey Walker has shown in his book The Rule of Law how the exponentially increasing volume of Acts of Parliament ('legislation') threatens the rule of law by increasing the power of the bureaucracy, confusing the public and lowering the quality of adjudication by the courts. …

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