The Foundation for National Renewal
  Working for a better Australia through constitutional reform

The Model Constitution Project:

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1. Before we can continue with our considerations of parliaments and executives, it is necessary to evaluate your responses to Tasks 10-12. Those responses will dictate the approach we take in further Tasks in that area.

2. So, in this task, we will start our considerations of the judiciary.

3. In task 11 we talked about the well-established 'theory of government' that there ought to be a separation of powers between the legislature, the executive and the judiciary. We should again keep this theory in mind as we consider the judiciary.

4. In our current Constitution, Chapter III, 'The Judicature', covers this aspect of our system of government. Although the 'separation of powers' principle is better maintained with relation to the judiciary than is the case with the executive, it is still a mess.

5. It is a mess because the drafters were faced with the problem of already well-established judicial systems in each of the then colonies. It is a mess because the judicial systems in use were based on a system that had evolved over hundreds of years in Great Britain with numerous 'conventions' rather than written rules to govern its operation. It is a mess because deficiencies discovered over the last 100 years have not been corrected by amendments to our Constitution. It is a mess because the laws are different in every State. And it is a mess because, even though, on occasions, the Federal and State Governments have actually agreed on procedures and passed laws to cater for evolving needs, (for example, 'cross-vesting' and corporations law as two glaring examples); the High Court has ruled these arrangements to be unconstitutional.

6. Then we come to the question of 'Common Law'. There are still some diehards who argue that the common law system is the best in the world. Anyone who has studied the system and the alternatives decry it as, 'irrational, unconcerned with truth, and with trials that are not within shouting distance of reality'. (For a full expose of the absurdity of our whole legal system see, 'The Cartel: Lawyers and Their Nine Magic Tricks' by Evan Whitton, published by Herwick Pty Ltd, Locked Bag 2018, PO Glebe, NSW, 2037.

7. The adversarial system of our courts results in trials in which truth and justice play no part and in which judges decide cases on the basis of the acting performance of one barrister as compared to the persuasive powers of another in convincing the judge that the facts in this case fit one ancient case better than another.

8. And we have a system in which the Constitution states our citizens are entitled to trial by jury for indictable offences but the system has almost eliminated use of the term 'indictable offence'.

9. At this stage I will not touch on the problems associated with the appointment of judges except to reveal that the system is so corrupt in certain places that one senior judge has been moved to appeal to Attorneys General to, '...stop selecting political judicial appointees who have to be carried by other judges'.

10. Last but not least is the fact that our legal system has evolved with such a bias that, at the present time, the system bends over backwards to protect the accused whereas hapless victims have no rights, are not represented and have no input. Furthermore, if an accused is found guilty and it can be argued a mistake has been made, the accused can lodge an appeal. But if an accused is found not guilty, the victim cannot lodge an appeal even if a mistake has been made.

11. There is much to be done to design a judicial system that uses truth and justice as the primary criteria, and one that suits the unique Australian society. However, we will tackle the issues one at a time.

12. A central issue and the one we will tackle in this Task is the court system. Currently we have a system described variously as the adversarial system or the common law system. In this system, lawyers or barristers control the trial. The judge is in control of the court but the lawyers decide the issues that are in contention, the lawyers decide what witnesses will be called and who will be cross-examined.

13. In part, this means that the performance of barristers plays a significant part in influencing the judge or the jury in deciding guilt or innocence. This creates a 'winners and losers' atmosphere where the establishment of fact and truth play no part. A polished and eloquent defence counsel can create doubt in the mind of a judge or jury where no doubt existed. An overbearing barrister can so intimidate a witness that an impression of confusion is created. This is often enough to create a small doubt - and that is all that is needed. Meanwhile, the accused can exercise a right to avoid cross-examination. To quote Evan Whitton, "Cross-examination in the hands of a judge, is a great engine for finding the truth; in the hands of a partisan lawyer, it is a great engine for obscuring it".

14. In civil cases, control by lawyers rather than the judge allows one side to create such delays and prolong cases to such an extent that puts access to the courts beyond the means of a huge proportion of the population. The system and the inherent costs preclude ordinary citizens from taking legal action; particularly against large corporations or government. This situation is exacerbated by the fact corporations claim costs involved in litigation as a tax deduction. An Australian Law Reform Commission appointed in 1997 by the Federal Government was prompted by widespread concern that,'...legal proceedings in Australia were overpriced and excessively adversarial causing inefficiency, undue delay and unfairness'.

15. Charles Dickens view was that, 'The one great principle of English law is to make business for itself'. In 1789, Jeremy Bentham noted that a lawyer for a guilty suspect is effectively an accessory after the fact. Recent reports by lawyers themselves indicate that nothing has changed. Cases where lawyers advise rape suspects to change their plea from alibi to consent; murder suspects being advised to change their plea from provocation to diminished responsibility; other criminals being advised to plead guilty to a lesser charge to avoid cross examination; the list goes on and on. The system is as irrational as the medieval trial by single combat in which God was thought to deliver the verdict. Justice David Ipp, of the WA Supreme Court says, 'We smile when we are told about trial by battle, but that is exactly what we have in our adversarial court system.' Professor Sunderland noted, 'There is no difference in principle between a decision based on a contest of procedural skill between two attorneys and a decision based on a contest of strength between two armed champions.'

16. Everywhere in our society we are striving for constructive co-operation and yet, in the two most influential institutions in our society - our parliaments and our courts - an adversarial system is entrenched and resistant to change.

17. The complex nature of this topic tempts me to provide a proposition and invite your comments to arrive at what we would like to see in our 'Model Constitution'.

18. Mr Samuels, a former NSW Supreme Court judge and former Governor of NSW told a seminar on reinventing the courts organised by the NSW Bar Association that the adversarial system was about winners and losers and not about seeking the truth. He suggested radical reforms and advocated that judges should be able to call their own witnesses and limit cross-examinations. He said the court system needed a reappraisal from the ground up to remove problems such as lengthy delays and high costs. Mr Samuels said depriving judges of any real evidentiary authority contributed to lengthy delays in the system.

19. The proposition that follows is a 'reappraisal from the ground up' and the statement above illustrates the support for such a move; not only from the general public but also from many in the legal profession.

20. It is proposed that, coupled with the move to one set of laws across the country you advocated in your responses to Task 7, there be one court system across the country. The system would comprise the High Court; Supreme Courts, Courts of Petty Sessions and Small Claims Courts in the Regions; as well as special courts such as Family Courts, Industrial Relations Courts, etc. Apart from the High Court, all courts would operate under one set of Standing Orders and there would be no jurisdictional boundaries. In other words, an over abundance of cases in one court could be taken up by another, under-utilised court.

21. Judges would be trained as judges from law school graduates who had displayed the necessary attributes and would not be selected from among the ranks of practicing barristers as at present. A career path from minor to higher courts would operate as judges gained experience and displayed appropriate talents.

22. Judges would control cases in their courts with power to direct police inquiries, call and cross-examine witnesses and to seek out the truth in whatever manner seemed appropriate. The primary aim of any trial would be the pursuit of truth. The findings of the court would be based solely on justice. In other words, the law as expressed in Statutes and Ordinances, etc, would not necessarily prevail in a particular judgement. Precedent would not be a mandatory element of any judicial decision. Legal Counsel for the State (the Prosecution), the Defence and for litigants and respondents would be entitled to suggest questions and make submissions to the judge but would not be allowed to cross examine witnesses - that would be left to the judge.

23. Litigants and respondents would be required to sign an affidavit to indicate their readiness for the case to be heard and judges would be empowered to grant deferment only in exceptional circumstances.

24. This is a system similar to what has been used in some European countries for many years. It is sometimes referred to as the 'inquisitorial' system and is similar to what we use in Australia for Royal Commissions, etc. and is similar to what is being recommended for the Family Court and Childrens' Courts by various Law Reform Commissions.

25. In passing sentence, judges would be guided by a set of maximum and minimum sentences for convicted persons and a set of guidelines for damages, costs and compensation for litigation cases.

26. Victims of crime would be entitled to representation or to represent themselves. Compensation and restitution to victims would be part of all judgements in criminal cases.

27. Legal aid would be available to victims as well as accused persons of limited means.

28. Accused persons would be entitled to ask for trial by jury on charges that could result in a sentence of more than two years in jail. However, conviction by a jury would increase a sentence by 25%.

29. The appointment of judges, sentencing, and the operation of prisons and correctional establishments including rehabilitation will be the subject of further Tasks.

30. What we need to do in this task is to establish the broad bones of our court system. Much more detail is needed on many more topics than are canvassed here and your comments will lead us into those. Please indicate, paragraph by paragraph, your reaction to the above proposition and indicate any areas you feel should be expanded in subsequent activities of the FNR.

31. Your response by the end of May 2002 would be appreciated.

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E-mail: constitution@national-renewal.org.au

Last updated 6 April 2009