Uncertain Justice: inside Australia's legal system by Michael Sexton; New Holland Publishers 2000; 285 pp; $22.95 softcover.
To the average person the law is filled with awe and trepidation; but to the law student and teacher alike there are times when it is more like a nightmare. Michael Sexton seeks to dissipate those problems.
The cost of litigation, the backlog of cases before the Courts, the seemingly unpredictability of judgements, all tend to suggest that the law belongs to those who are wealthy and patient. And it could be said that the law no longer belongs to the people. Without duty solicitors, and bodies such as Community Legal Centres, the poor are disenfranchised - even more so with the shrinking of legal dollars. The Bible has a lot to say about the poor who are disabled from involvement with their legal system.
Michael Sexton is well placed to comment on the state of play. Having spent sometime as an academic and writer (eg his textbook on defamation law and practice was co-authored with T K Tobin QC) he then practiced at the Bar and took silk in 1998. Well known for his part in the ABC National program 'Daybreak' from 1995 until 1998, he is currently Solicitor General for New South Wales.
His insights into the working of the High Court of Australia are particularly instructive, firstly as an associate to Sir Edward McTierman, and then later as Counsel. The High Court just as other Appeal Courts are amazing in their output - even more when it is remembered that judges do not collectively sit together except in the Courtroom, and thereafter retreat to their rooms to write individual judgements, some of which can be 10,000 words long. The Appeal Court system can be compared with that of the US Supreme Court - for the latter the hearing is half an hour long for each side, followed by judges' conference where the case is discussed and one judge is chosen to write the majority decision. The same system is followed by the Privy Council.
Another concern that Sexton raises, is the rise of the mega law firms - "powerful economic entities with hundreds of lawyers" (p.28) A glance at any Law Society/Institute journal will confirm the rising status of such firms with its convex appearance, compared with the concave family solicitor and family doctor. Just as we have boutique breweries, so too will come boutique law firms.
Case law itself is not only precedent but has another role in society - a source for public history as well as the study of social ecology. The difference between the 1980s and 1990s is instructive, and Sexton points to the development of the drug trade as a large scale industry (p.31) In addition to the increase of crime such as house breaking and armed robbery, the sheer amount of money from drugs has lead to corruption of some law enforcement officers, and increased sentences handed down, eg as with the Victorian Appeals Court.
The growth of corporatisation also loomed large in the 1990's - " the increased power of the corporate sector and some of the individuals who ran its largest enterprises" (p.31). Sexton points out that this is clearly demonstrated in the relationship between business and government, such as "television and broadcasting worth billions of dollars to the corporate contenders.
Sexton correctly notes out that some sections of Australian society see litigation as a solution to economic and social problems, and as an example points to the growth in proceedings against medical practitioners, both in malpractice actions for damages by patients, and disciplinary proceedings by health authorities for incompetent practice or breach of ethics. This is reflected in the rising cost of professional indemnity, and other outcomes when such insurers collapse.
Sexton reviews some significant cases - the Mr Bubbles saga, Kerry Packer, Edelsten, Alan Bond, Westpac Letters drama, John Elliott and the NCA, and the deep sleep treatment in the Chelmsford Royal Commission.
Essentially Sexton's book is an insider's view of the legal system, without looking at the outside. Most people's brush with the law come from police involvement and then the Local/Magistrates Courts. On any day, literally thousands of citizens stand waiting for a magistrate to pronounce judgement, and go home guilty. Justice is not then restorative. So there is little attempt by Sexton to look at the ordinary people's perspective - instead law is for the elite.
Informative and well worth reading.