This year marks a particularly significant landmark in the history of our national institutions. This is the sesquicentenary of the adoption of responsible government in Australia – 150 years ago responsible government was carried into effect in New South Wales, Victoria, Tasmania and South Australia, with a commitment to confer it on the soon to be separated colony of Queensland and, eventually, as an almost uniform national model, it was applied to Western Australia.
NSW Parliament House
The new bicameral legislature met for the first time in a ceremonial sitting on 22 May 1856 in the New South Wales Parliament House, then still in the process of reconstruction. The pre-existing Legislative Council Chamber was to be occupied by the new Legislative Assembly where, it continues to sit to this day in what is said to be the oldest legislative chamber in continuous use in the world.
For 150 years the Governor of New South Wales has acted only on the advice of Ministers responsible to the Parliament. The pre-existing sweeping, and autocratic, powers of the Governor were reduced. Some continued with respect to certain matters regarded in London as of Imperial concern – a list which gradually attenuated with time. With the broadly similar institutional arrangements that were adopted at this time in the other Australian colonies, 1856 was the true origins of our system of parliamentary democracy.
This achievement represented the combined effect of a change in British policy with respect to its role in the advanced colonies, on the one hand, and local demands for control of the affairs of the colonies by the residents, on the other hand. Historians differ as to the relative significance of these two forces. Colonial debates, including in New South Wales, made frequent reference to the effects of British recalcitrance towards similar demands in its American colonies. The American Revolution was then not much longer ago than World War II is to us. The change in British policy had first become manifest after civil disturbances in Canada. The new system was adopted in Canada, New Zealand and, then, in the Australian colonies.
The Sydney Morning Herald proclaimed, with that national swagger we have witnessed so often: the New South Wales Constitution was ‘superior to any on either side of the Atlantic.’
A Bunyip Aristocracy
Political opinion in the Australian colonies was unanimous in asserting that the British system of government was perfect in every respect. The dispute was as to how that system could be replicated in Australia. There was no difficulty with the Governor assuming the role of a constitutional monarch. Similarly, there was no difficulty with a Legislative Assembly taking on the functions of the House of Commons. The problem was with the Upper House.
William Charles Wentworth
Conservative opinion at first inclined to recreating something in the nature of a hereditary aristocracy. John Dickinson, a judge of the Supreme Court, an uncritical admirer of the House of Lords, was convinced that the absence of a legislative peerage was in large measure responsible for the then recent revolutions throughout the continental Europe of 1848. He proposed the establishment of an aristocratic order of baronetcies amongst the propertied class in Australia. The proposal was taken up by William Charles Wentworth and an order of baronets was incorporated in his original draft of the new Constitution for New South Wales, as an electoral college for the Upper House.
This idea disappeared in a torrent of ridicule: denounced as a bunyip aristocracy involving the same transformation as that of the British water-mole into the duckbilled platypus, with speculation on how the scion of the Macarthur dynasty would become the Earl of Camden with a rum keg on his coat of arms.
The poet, Charles Harpur, suggested that the criterion of selection for the new baronets should be the size of their nose. The then Governor, Sir Charles Fitzroy, had a particularly prominent appendage and he, after all, was the most aristocratic of our Governors. He was no mere naval officer, but the grandson and son-in-law of dukes and – as his name indicates – descended from royalty via one of the bastard sons of Charles II, from whom he inherited both his nose and a proclivity for cutting a swathe through the loose women of the city.
In 1850, the Imperial British Parliament had authorised the Australian colonies to adopt new constitutions providing for a bicameral legislature. In New South Wales and Victoria the constitutions proposed in 1853 went beyond what had been authorised and, accordingly, the Imperial Parliament had to pass further legislation to approve the constitutions submitted for Royal assent. It was by reason of this requirement that, almost accidentally, New South Wales adopted not only responsible government, but a form of democracy that was advanced for its time.
The British Reform Bill of 1832 had established a property qualification for the franchise in the House of Commons which extended to all those who paid an annual rental on their residence of ten pounds or more per annum. The problem was that rents in Sydney were much higher than rents in Britain, particularly after the gold rush. Accordingly, what was a very restrictive qualification in England proved not to be such in New South Wales. Indeed, not only the whole of the middle class but all skilled workers could vote. The adoption of this property qualification created a system of household suffrage, if not universal suffrage.
Under conservative control, the existing Legislative Council had met the challenge of this franchise, by adopting a rural gerrymander under which very few seats were allocated to Sydney. In the version of the new constitution for responsible government that was transmitted to London, this gerrymander was protected by a requirement that a two-thirds majority was required to change it. The position was further entrenched by the fact that the Upper House was, on the New South Wales Legislative Council’s proposal, to consist entirely of nominated members, in contrast with the Victorian proposal which proposed an Upper House to be elected, albeit on a much high property qualification. The New South Wales conservatives felt secure.
They had, however, miscalculated. They assumed, reflecting the history of New South Wales at that time, that members of the Legislative Council who were nominated by the Governor would be more conservative than those who had been elected, even on a restrictive property franchise. This attitude failed to comprehend the true dynamics of responsible government.
The Governor would, in matters such as this, act on the advice of his New South Wales Ministers. That, of course, permitted those who controlled the Lower House to ensure sympathetic appointments to the Council including, on at least one occasion, threats of swamping the Council if it continued in a particular period of intransigence. In the event, the Victorian formula of an elected Upper House with a high property franchise qualification proved by far the more conservative measure.
In large measure because of a determination on the part of the then British Government to permit the colonies to determine their own affairs, the conservative political strategy was destroyed. The authors of the New South Wales Constitution, including Wentworth, had not been as acute in t
heir draftsmanship as was necessary. (This was, perhaps, obvious from the first clause of the Constitution which they proposed. It referred expressly to ‘clause 62’ of the Bill. It seemed to pass without comment at the time that the Bill, as proposed, consisted of only 58 clauses.)
Of greater significance was the fact that the Constitution submitted had no section expressly permitting its amendment. Accordingly, the British Parliament, in the Act to which the New South Wales Bill was a schedule, itself enacted a clause permitting amendments. By reason of this provision, there was nothing entrenching the two-thirds majority required by the scheduled Constitution to vary important provisions of the Act, including the provision with respect to electoral districts.
That is to say, the Constitution of New South Wales, because of the British Imperial Statute, could be amended by a simple majority of each House of the New South Wales Parliament. Within a year that is precisely what the New South Wales Parliament had done by reducing the two-thirds requirement for constitutional change to a simple majority. Within another year the Parliament adopted manhood suffrage, the secret ballot and the extent of the rural gerrymander was reduced.
These results were not entirely inadvertent, but they were in large measure unintended. It was in this way that the people of New South Wales both assumed responsibility for the conduct of their own affairs and adopted a system of democracy that was well ahead of its times.
Convicts and Exclusives
On 17 July 1856, a Grand National Banquet was held in the Theatre Royal to commemorate the advent of responsible government, in the presence of the NSW Governor Sir William and Lady Dennison, the Judges of the Supreme Court, the foreign Consuls and everyone else who mattered in Sydney.
Australia’s First Daguerreotype: Portrait of Dr William Bland, c.1845 (State Library of NSW)
The principal address was delivered by Dr William Bland in honour of his long advocacy of political reform. He placed the New South Wales Constitution Act of the Imperial Parliament in what he described as the ‘brightest of Britain’s trophies, victories gained over itself – the epic poetry of history,’ amongst which he included the Reform Bill, the Emancipation Bill, the Abolition of Slavery, the repeal of the Corn Laws, and the inauguration of Free Trade.
Bland’s prominence on this glittering ceremonial occasion represented, in a dramatic manner, the passing of the previous era of Australian social and political history. Bland was an emancipated convict. He was transported after being convicted for murder – albeit in a duel fought on a matter of honour when he and the deceased were serving in the Royal Navy. However, he was imprisoned again in the colony after being found guilty of criminal libel for criticising Governor Macquarie.
In 1849 Bland was at the centre of controversy when he was proposed as one the foundation senators of the University of Sydney. His qualifications for the appointment were doubted in the Legislative Council by reason of his convict origins. This was a violation on the strict taboo that had developed in New South Wales on any reference to convict origins.
The division between emancipists and descendants of convicts, on the one hand, and free settlers, particularly those of higher status called the ‘exclusives’, on the other hand, had been the basic fault line of social and political life for the early decades of the colony. Wentworth himself, who had started off on the emancipist side, had become a conservative – indeed, in his own eyes at least, a putative baronet. By mid century the absorption of the convicts and the descendants of convicts into the broader society was almost complete. It had been a frictionless and seamless transition.
Here we find the origins of one of the great strengths of Australian society, which has shown itself on numerous subsequent occasions. I refer to our extraordinary capacity for the integration of disparate groups into a cohesive, tolerant and inclusive society. We should not permit the transient frictions of this process to lead us to doubt our ability to succeed in this task.
Catholics and Protestants
A similar process occurred with the succeeding great division in Australian social, economic and political life – a division which existed for the best part of a century. I refer to the division between Catholics and Protestants.
When I first entered the law in the late 1960s the significance of this division was quite apparent. There were law firms in this city that had never had a Catholic employee, let alone partner. There were others that had never had a Protestant. For as long as anyone could remember, the position of Commissioner of Police had been filled alternatively by a Catholic and Mason. Neither group could monopolise so critical a position. There were government departments, including in the Commonwealth, which were known to be primarily composed of members of one religion or another.
In another seamless and frictionless process that began in the 1970s, this division simply disappeared in all spheres of life. Throughout the economy, in politics, in the bureaucracies and in the law, there are virtually no traces of it today. Yet, as I have said, for about a century it was the basic fault line of Australian economy, society and politics.
Tolerance and Adaptation
This nation has and retains an extraordinary capacity for adaptation. I have been a beneficiary of this capacity. I am quite confident that the same process will occur with the more recent migrations from Asia and the Middle East. I am very conscious of the fact that there are those who say: ‘Well these new migrants aren’t like you good old migrants.’ However, of course, we were not like ‘us’ then either; particularly when we were being called ‘dagos’, ‘wogs’, ‘reffos’ and the like.
My migrant story, like every successful migrant story, is a tale of access to opportunity. In my case that opportunity was afforded in the education system, in politics and in the law. It is one of the great hallmarks of this society that neither I nor other migrants from a non-Anglo-Celtic background were in any way required to deny our origins in order to avail ourselves of the best this nation has to offer. That remains the case for our most recent migrations.
The issue has come to prominence recently by reason of the events at Cronulla a few weeks ago and the retaliation that followed. I agree with the observations on this matter of the Prime Minister, John Howard, in his important Australia Day Address last week, when he emphasised that all Australians ‘deserved to be treated with tolerance and with respect’. He also correctly said that these events called for neither ‘national self flagellation or moral panic’.
Part of the process of accommodating this recent manifestation of the inevitable tensions of adaptation, which I am convinced will be transient, is for those of us who have benefited from the tolerance of and inclusion by other Australians, to emphasise the gratitude that we feel and, perhaps by our example, to convince others of the benefits Australia as a whole has received from such past tolerance and inclusion.
Australians have long since accepted the importance of cultural diversity in a tolerant, cohesive and inclusive society. However, when acknowledging that significance, we must always remember the overriding importance of those institutions which give cohesion to the whole. Our mechanisms of governance, both parliamentary and judicial, together with certain aspects of our history, of our environment and of the English language, constitute the central component
s of Australian national identity. Our long and proud heritage of the rule of law, no less than our democratic traditions, ensures the maintenance of our capacity for tolerance, inclusiveness and cohesion.
There are two aspects of the administration of justice which are particularly relevant in this regard. First, is the central role of personal autonomy in the adversary system. Second, is the level of civility with which legal affairs are conducted. In both respects the administration of justice can serve as a model for other fields of social discourse, many of which do not manifest these values to the same degree and would profit from doing so, or returning to past practices when they did.
The adversary system operates on the basis that it is the parties that control what happens in the court. This is a manifestation of the value that we attach to personal autonomy. The system maximises the control that citizens have over the processes of legal decision making which affect their lives. This is fundamentally different from the basic structure of the inquisitorial system in which the judge is in control of what happens, the judge decides what the issues are, what inquiries are made, what witnesses will be called, and he or she asks virtually all of the questions.
The adversary system is manifest not simply in civil disputes but also in the criminal justice process, where the State appears in its role as prosecutor on the basis of a complete equality with the citizen. Even in criminal cases the prosecution is required to conduct proceedings as if it was an ordinary litigant in the court. It receives no privileges. It receives no special access to the judiciary. Its right to call or interrogate witnesses and to make submissions is no different from that of any other litigant in the court.
Respect for freedom and personal autonomy has very deep roots in this country, much deeper than in virtually all of the countries from which migrants to Australia have come. One of the reasons why these values are so secure is because they are reflected many times every day in the procedures within our courts, indeed in the very structure of our courtrooms.
These values are also reflected in our capacity for tolerance and inclusion of culturally diverse groups. All Australians have the ability to choose to conduct their lives in accordance with a culture that differs from what other Australians regard as the norm. Our recognition of cultural diversity is a manifestation of deeply held structural values, which lie at the core of our traditional institutions.
The second aspect of our legal system, which also reflects the values of tolerance and inclusiveness, is the civility of the discourse in the operation of the law. Civil conduct reinforces the contribution which our fundamental social institutions make to our social cohesion. However, it goes beyond that.
By civility I do not refer, or do not only refer, to matters of etiquette and manners. The core element of civility is the manifestation of respect for other persons. In Asian societies such respect is part the courtesies involved in giving ‘face’ to others. In the Western tradition, civility has long been accepted as a public virtue shown in signs of respect to strangers in language, etiquette and in tempering the assertion of self-interest.
This public virtue assumes that there are broadly accepted rules for conduct: a system of public morality reflecting the core values of our society, particularly the respect for the freedom and personal autonomy of others.
Civility remains on daily display in our courts and throughout the legal system. All legal practitioners must, and generally do, treat judges, clients, witnesses and each other with respect. We must all ensure that proper conduct remains a principal characteristic of our legal discourse. Ours is a profession of words. We must continue to express ourselves in a way that demonstrates respect for others.
Civil conduct in the law is manifest in the language of advocacy, both in addressing judges with appropriate honorifics and in communication with opponents and witnesses. It would never cross the mind of a barrister to address me in court, and generally outside court, by my first name. That is a privilege reserved for 18-year-olds in telephone call centres. All too often rudeness is justified as a form of egalitarianism.
The tradition of civility in the legal profession goes well beyond the requirements of appearance in court. It is to be found in the full range of discourse between practitioners, both oral and in correspondence. This tradition has been maintained in the law to a greater degree than other areas of social discourse. It is recognised as a fundamental ethical obligation of a professional person.
There are well-known pressures, mainly of a commercial character, on professionalism and, of course, the obligation to conduct legal intercourse with civility is sometimes breached. Competition for clients sometimes leads to a ‘win at any cost’ attitude that may manifest itself in aggressive conduct and even rudeness. For example, a solicitor may seek to prevail by threats of retaliation in abusive communications. Prosecutors sometimes become overzealous, bordering on the self-righteous. Defence counsel in criminal matters sometimes run hopeless cases and bad points, hoping for some error on the part of the prosecution, which they perversely believe they may honourably exploit. Sometimes judges use unnecessarily strong language about lawyers, witnesses and, even, about each other.
In the United States, over the last decade or so, there has been much concern over a ‘crisis of civility’ in the legal profession. Detailed codes of civil conduct have been promulgated in many jurisdictions. They do no harm and are quite instructive, but I do not wish to be understood to advocate such a code. We face no such crisis.
Notwithstanding conduct that does breach our standards, the abiding model of behaviour for the administration of justice in this State is one that emphasises civility as a professional ethical obligation. Perhaps breaches are more frequent than they once were, but the courts and profession remain committed to enforcing the standards and succeed to a much greater extent than other spheres of social interaction.
There is, from time to time, commentary suggesting that there has been a decline in the level of civility in our society. It is not clear how one measures this. Even the most casual reading of history would suggest that there has probably never been a time when there has not been complaints to the effect that the standards of behaviour are slipping. In the 16th century, Erasmus wrote a book entitled On Civility for Boys. Things were never as they used to be.
It is only necessary to recall the stark depictions by William Hogarth of a gin-soaked London of the 18th century, and to contrast that with the standards of behaviour required in the Victorian era, to realise that there are cycles in such human behaviour.
There does, however, appear to be a growing concern with personal conduct in many areas of discourse: the emergence of road-rage; the behaviour of parents at school sporting events, referred to as the ‘ugly parent syndrome’; the prevalence of offensive language in many spheres of social interaction and popular culture; the sensationalism of a media, driven by declining circulations and audiences; the indifference to the tranquillity of others by the infliction of noise, whether from boorish conduct or mobile phones; the vulgarity and rudeness of reality TV shows; the selfishness of littering; the virtual disappearance in common discourse of words such as ‘please’, ‘thank you’ and ‘sorry’.
Criminal behaviour is not the only form of conduct to which a zero-tolerance response may be appropriate.
In a complex society such as ours relationships of civility, tolerance and trust cannot
be established or maintained only on the basis of interpersonal relationships. They must be institutionalised. That is what has happened in the law. The institutions for the administration of justice, both in the courts and in the legal profession, operate on the basis of well-recognised rules of proper conduct.
Our legal system and profession has much to be proud of in this respect. We must ensure that it remains so and hope that others learn from the ability of this profession to resist the decline in civility apparent elsewhere in society.
This is an edited version of an address delivered at the ‘Opening Of Law Term Dinner,’ of The Law Society Of New South Wales in Sydney, on 30 January 2006
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