Speech for the dinner following the opening of the law term service at the Great Synagogue Sydney: Chief Justice Allsop AO
… If a rule is drawn from common notions of civility, reason, fairness and justice, it is more likely to be accepted as just, and so deserving of loyalty.
Equal justice has been a powerful and lasting theme of the development of legal and constitutional doctrine in Australia. The norms and conceptions of fairness and equality before the law have informed the development of powerful procedural and substantive principles. The conceptions of fairness, justice and equality before the law inhere in the fabric of the law and in its daily exercise by judges applying judicial power. Equality before the law lies at the heart of what all expect from the law.
An essential attribute of the exercise of judicial power is that it is to be wielded in accordance with the judicial process that includes equality before the law, impartiality, fairness and the facts being determined in accordance with rules and procedures which permit them to be ascertained. The requirement of judges to act according to these basic principles may conflict with the requirement to impose arbitrary punishment. There is a question whether the judicial power (a Constitutional conception that is the creature of the common law) can be deployed in a manner that is arbitrary and cruel.
How the necessary arbitrariness of mandatory sentencing fits within these conceptions of judicial power is yet to be dealt with by the High Court. Recently, however, the issue presented itself to the High Court, but the Court displayed no particular enthusiasm for addressing the question by reference to the above considerations.
Lack of civility can thus contribute to laws lacking a degree of reasoned (as opposed to impassioned) response, leading to the introduction of arbitrariness into the law.
It is fair to say that civility, justice and fairness are the more general and less defined ideas in the law, and, in that sense, the remoter parts of the law. The law must incorporate them if it is to fulfil its function as the binding agent of a just democratic society with the strength, as this nation has, of a hundred nations. Only through the incorporation of such conceptions will lawyers be able to hear the recounting of the words of Holmes about the law and proudly say “That is my profession. That is what I do.”
“The remoter and more general aspects of the law are those which give it universal interest. It is through them that you not only become a great master in your calling, but connect your subject with the universe and catch an echo of the infinite, a glimpse of its unfathomable process, a hint of the universal law.”