Unmet Needs for Legal Services in Australia: Ten Commandments for Australian Law Schools

Michael Kirby AC CMG   | Bio
Editor-in-Chief of The Laws of Australia (2009-present).
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Abstract

After outlining some strengths and failings of the law in Australia in meeting individual and community needs for legal services, the author explains why the recent over-supply of law graduates is unlikely to cure the shortfall in services. He proposes ten ‘commandments’ for Australian law schools, namely to:
1. Assure a more diverse intake;
2. Attend to vulnerable students, so that they survive their studies;
3. Address particular subjects of poverty law;
4. Encourage engagement by future lawyers with civil society;
5. Promote involvement with all forms of legal aid;
6. Acknowledge the importance of the law on costs;
7. Enhance access to law through new technology;
8. Establish miscarriage of justice and innocence clinics;
9. Undertake reliable empirical research and law reform projects; and
10. Consider basic lessons to be derived from foreign legal systems.
Legal academics, he concludes, have a special duty to critique their discipline and to provide a sense of engagement among lawyers (starting with law students) with the values of the laws they help to implement.

References

1 Australian Communist Party v Commonwealth (1951) 83 CLR 1, 193; see also Plaintiff S157/2002 v Commonwealth [2003] HCA 2; 211 CLR 476, 513 [103].
2 Roach v Electoral Commissioner [2007] HCA 43; 233 CLR 162.
3 As explained in Mabo v Queensland (No 2) (1992) 175 CLR 1.
4 The earlier 1967 referendum repealed s 127 of the Constitution and deleted the exclusion of ‘the aboriginal race’ previously appearing in s 51(xxvi) of the Constitution.
5 Constitution Alteration (Aboriginals) Act 1967 (Cth).
6 Judicial Commission of New South Wales, Sentencing in NSW: A cross-jurisdictional comparison of full-time imprisonment, Research Monograph No 39 (2015) 43 [5.1] (footnote omitted).
7 Ibid, 43 [5.1.1] (footnote omitted); New South Wales Bureau of Crime Statistics and Research, ‘New South Wales Custody Statistics: Quarterly Update’ (Report, New South Wales Bureau of Crime Statistics and Research, June 2015), revealed that the State’s adult prison population grew by 12.2 per cent in the 2014 financial year – with the largest growth amongst remand and indigenous prisoners.
8 See, for example, Crimes (Sentencing Procedure) Act 1999 (NSW) s 5(1) (‘A court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate’).
9 Mabo v Queensland (No 2) (1992) 175 CLR 1.
10 Wik Peoples v Queensland (1996) 187 CLR 1.
11 Constitution s 51 (xxvi).
12 Cf Chris Merritt, ‘Call for Cap on Lawyers to Ease Strain’, Australian, 4 April 2014, 22 reporting Warren CJ’s remarks that Australia’s law schools produced 12,000 graduates each year while the US, with ten times Australia’s population, produces 45,000 law graduates; Elizabeth Lesly Stevens, ‘The case against law schools’, Washington Post Magazine, 4 November 2012, 40.
13 DC Weiss, ‘About Half of Law Schools Surveyed Have Cut First-year Enrolment’. American Bar Association, 19 November 2012; Jennifer Smith, ‘Law-School Professors face less job security’, Wall Street Journal, 12 August 2013, B1.
14 The suggestion was made by Warren CJ, in the address reported, Merritt, above, n 12.
15 Michael Kirby, ‘The Graduating Class of Sydney Law School 1962: Talented, Lucky, Unquestioning’ (2012) 36(2) Australian Bar Review 189.
16 Michael Kirby, ‘JL Goldring, Legal Education and A Most Unusual Occupation’ (2014) 38(3) Australian Bar Review 226.
17 Don Anderson and John Western, Social Profiles of Students in Four Professions (Australian Council for Educational Research, 1970). See also Don Anderson and John Western, ‘Notes on a Study of Professional Socialisation’ (1967) 3 Australian and New Zealand Journal of Sociology 67; Don Anderson and John Western, ‘Social Profiles of Students in Four Professions’ (1970) 3 Quarterly Review of Australian Education 1.
18 Summarised in Julian Disney et al (eds), Lawyers (Lawbook Company, 1977), 136, 140-141.
19 Speech by Sir Owen Dixon on assuming the office of Chief Justice reported Commonwealth Law Reports, Michael Kirby, ‘The Judges’ (Speech delivered at Boyer Lectures, ABC, 1983), 37.
20 Julius Stone as explained in Leonie Star, Julius Stone, an Intellectual Biography (Oxford University Press, 1992); see Kirby, above n 16.
21 Disney et al, above n 18, 141.
22 Kirby, above n 16.
23 John Goldring, ‘Admission to Law Courses in Australia’ (1977) 20 Vestes 61 and later John Goldring, ‘Admissions Policy’ in Law Council of Australia Foundation, Legal Education in Australia, vol 1 (Melbourne, 1978), 47.
24 Michael Kirby, ‘Online Legal Education in Australia: the New CQU Law Degree’ (2011) 34(3) Australian Bar Review 237.
25 Michael Kirby, ‘John F Kearney, Legal Education and Life Opportunities’ (2013) 25 Bond Law Review 2, 7-16.
26 Michael Kirby, ‘Lawyers’ Suicide: The Influence of Legal Studies And Practice, Stress, Clinical Depression And Sexuality’ (2015) 38(4) University of New South Wales Law Journal 1438; cf Melissa Castan, Jeannie Paterson, Paul Richardson, Helen Watt and Maryanne Dever, ‘Early Optimism? First-Year Law Students’ Work Expectations and Aspirations’ (2010) 20(1) Legal Education Review 1.
27 Michael Kirby, ‘Judicial Stress and Judicial Bullying’ (2013) 87 Australian Law Journal 516.
28 Kerry H Robinson, Peter Bansel, Nida Denson, Georgia Ovenden and Cristyn Davies, ‘Growing Up Queer: Issues Facing Young Australians Who Are Gender Variant and Sexuality Diverse’ (Research Discussion Paper, Young and Well Cooperative Research Centre, February 2014).
29 Nickolas John James, ‘Why has Vocationalism Propagated So Successfully Within Australian Law Schools?’ (2004) 6 University of Notre Dame Australian Law Review 41, 57.
30 See Michael Kirby, ‘Seven Ages of a Lawyers’ (2000) 26 Monash Law Review 1.
31 The problems occasionally visited the High Court of Australia during my service: Zickar v HGH Plastic Industries Pty Ltd (1996) 187 CLR 310; Vetter v Lake Macquarie City Council [2001] HCA 12; 202 CLR 439.
32 See, for example, Gassy v The Queen [2008] HCA 18; 236 CLR 293.
33 Monash University established the Michael Kirby Centre for Public Health and Human Rights which helped initiate this project.
34 Christine Coumarelous, Deborah Marcourt, Julie People, Hugh M McDonald, Zhigang Wei, Reiny Irana and Stephanie Ramsay, ‘Legal Needs in Australia – Australia-wide Survey’ (Report, Law and Justice Foundation of New South Wales, August 2012) 2.
35 Pascoe Pleasence and Nigel J Blamer, ‘Mental Health and the Experience of Social Problems Involving Rights: Findings from United Kingdom and New Zealand’ (2009) 16 Psychiatry, Psychology and Law 123.
36 Christine Coumarelous, Pascoe Pleasence and Zhigang Wei, ‘Law and Disorder, Illness, Disability and the Experience of Everyday Problems Involving the Law’ (2013) Law and Justice Foundation of New South Wales, Justice Issues 24, 3.
37 Martha Minow, ‘Foreword, Medico-Legal Partnerships Raise the Bar for Health and Justice’ in Elizabeth Tobin Tyler (ed), Poverty Health and Law: Readings and Cases for Medical-legal Partnership (Carolina Academic Press, 2011) xv.
38 Australian Law Reform Commission, Grouped Proceedings in the Federal Court (Report, No 46, 1988).
39 See, for example, Carnie v Esanda Finance Corporation Ltd (1995) 182 CLR 398; Wong v Silkfield Pty Ltd [1999] HCA 48; 199 CLR 255, 404.
40 Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72.
41 Campbells Cash & Carry v Fostif Pty Ltd [2006] HCA 41; 229 CLR 386, 449 [138]. In Fostif, I acknowledged legitimate concerns about some aspects of representative procedures and litigation funding. See, Lee Aitken, ‘Before the High Court: ‘Litigation Lending’ after Fostif: an Advance in Consumer Protection or a Licence to ‘Bottomfeeders’?’ (2006) 28(1) Sydney Law Review 398, 404.
42 See also Michael Kirby, ‘Deconstructing the Law’s Hostility to Public Interest Litigation’ (2011) 127 Law Quarterly Review 537.
43 Kirby, above n 15.
44 After 1958, a non-racial immigration policy was gradually introduced into Australia. Cf Pacific Island Labourers Act 1901 (Cth); cf Migration Act 1958 (Cth). 129
45 Frank Brennan and F Dominello, ‘Race’ in AR Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia (Oxford University Press, 2001) 576 referring to O’Keefe v Calwell (1949) 77 CLR 261; Koon Wing Lau v Calwell (1949) 80 CLR 533; Wong Man On v Commonwealth (1952) 86 CLR 125.
46 Statistics from Diversity Council, Australia, 2014.
47 Ibid.
48 Asian Australian Lawyers’ Association, The Australian Legal Profession – Snapshot, 2014.
49 Murray Gleeson, ‘National Access to Justice and Pro Bono Conference’ (Paper presented at National Access to Justice and Pro Bono Conference 2006, Melbourne, 11 August 2006), 4 cited in and applied by Chief Justice Warren, ‘The Victorian Bar 10th Anniversary Pro Bono Presentation and Award Ceremony’ (Melbourne, 18 May 2010), 2; see also Michael Kirby, ‘Reception Honouring Pro Bono Lawyering’ (2009) Victorian Bar News (Spring) 7; Stephen Parker, ‘Why Lawyers Should do Pro Bono Work’ (2001) 19 Law in Context 5.
50 Duncan McConnel, ‘How Much Justice Can We Afford?’ (2015) Law Institute Journal 91.
51 Ibid, referring to Australian Productivity Commission, ‘Inquiry into Access to Justice Arrangements: Productivity Commission Inquiry Report’ (Report, 5 September 2014).
52 Ibid, 91.
53 In the second appeal in Mallard he was represented by Mr M McCusker QC and Mr J Edelman, instructed by Clayton Utz, Perth, acting pro bono.
54 The summons in Roach was presented by R Merkel QC, FK Forsyth and KL Walker, instructed by Allens, Arthur Robinson acting pro bono.
55 Chief Justice Warren, above n 49, 2.
56 Chief Justice Robert French, ‘Pro Bono Publico – Cui Bono?’ (Speech delievered at the Law Summer School, Perth, 21 February 2014) 16, citing Richard Abel, ‘The Paradoxes of Pro Bono’ (2010) 78(5) Fordham Law Review 2443 (footnote omitted).
57 See, for example, the different opinions expressed in Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72.
58 Patrick Keyzer, ‘A Battle and a Gamble: the Spectre of an Adverse Costs Order in Constitutional Litigation’ (2011) 22(3) Bond Law Review 82; Iain Field, ‘A Comment on Costs in Constitutional Cases’ (2010) 22(3) Bond Law Review 104; Stephen Lloyd, ‘Observations on Anecdata About Costs in Australian Constitutional Cases’ (2011) 22(3) Bond Law Review 94.
59 Levy v Victoria (1997) 189 CLR 579, 600, 650; Wurridjal v Commonwealth [2009] HCA 2; 237 CLR 309, 312, 313 (procedural ruling) (per Kirby J (Crennan J concurring)).
60 John Stuart Mill so described him; See Herbert Lionel Adolphus Hart’s biographical note on ‘Bentham’ in AW Brian Simpson (ed), Biographical Dictionary of the Common Law (Butterworths, 1984) 44, 64, 46.
61 Michael Kirby, Book Review (2006) 80 Australian Law Journal 623, Joseph Kimble, Lifting the Fog of Legalese – Essays on Plain Language (Carolina Academic Press, 2006).
62 [2005] HCA 68; 224 CLR 125. The refusal of special leave in the first application is noted (1997) 191 CLR 646.
63 Criminal Law Consolidation Act 1935 (SA) as amended from 5 May 2013. See Bibi Sangha and Robert Moles, Miscarriages of Justice: Criminal Appeals and the Rule of Law (LexisNexis, 2015) 104 [3.7.3].
64 Cf David Yamada cited in Nigel Stobbs ‘Academic Freedom and University Autonomy’ in Sally Varnham, Patty Kamvounias and Joan Squelch (eds), Higher Education and the Law (Federation Press, 2015) 214.
65 Australian Law Reform Commission, Criminal Investigation, Report No 2 (1975).
66 Australian Law Reform Commission, Insolvency: The Regular Repayment of Debts, Report No 6 (1976).
67 Australian Law Reform Commission, Human Tissue Transplants, Report No 7 (1977).
68 Australian Law Reform Commission, Insurance, Agents and Brokers, Report No 16 (1980); Australian Law Reform Commission, Insurance Contracts, Report No 20 (1982).
69 Michael Kirby, ‘Insurance Contract Law Reform – 30 Years On’ (2014) 26 Insurance Law Journal, 1.
70 See, for example, Australian Law Reform Commission, Equality Before the Law: Women’s Access to the Legal System, Report No 67 (1994); Australian Law Reform Commission, Equality Before the Law: Justice for Women: Part I, Report No 69 (1994).
71 Crimes Act 1900 (NSW) ss 79-81B provided the relevant criminal offences at the time. There were equivalent provisions in the Criminal Code Act 1995 (Cth) and the criminal legislation of every Australian jurisdiction.
72 Wolfgang Zeidler quoted in [1981] Reform 75; cf Wolfgang Zeidler, ‘Evaluation of the Adversary System: As Comparison, Some Remarks on the Investigating System of Procedure’ (1981) 55 Australian Law Journal, 390; see also Kirby, above n 19, 34.
73 Jo Delaney, ‘ISDS: The risks and rewards’ Lawyers Weekly (online), 27 July 2015 risks-and-rewards#disqus_thread>.
74 This is a reference to the invocation of a treaty tribunal challenging the finality of the determination of the High Court of Australia in JT International SA v Commonwealth (2012) 250 CLR 1; [2012] HCA 43. That decision (Heydon J dissenting) rejected an attack on the constitutional validity of the Tobacco Plain Packaging Act 2011 (Cth). It led to the resort of cigarette producing companies to the treaty mechanism to claim damages for losses from denial of their intellectual property in cigarette brand names. The claim was dismissed.
75 William Schwenck Gilbert, The Gondoliers, Act II.
How to Cite
1.
AC CMG MK. Unmet Needs for Legal Services in Australia: Ten Commandments for Australian Law Schools. LiC [Internet]. 2018Dec.21 [cited 2022Sep.28];34(1). Available from: https://journals.latrobe.edu.au/index.php/law-in-context/article/view/51

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