The Art of Legal Convergence By Alexander W ... - Seven Wentworth

The Art of Legal Convergence 1ByAlexander W. Street SCTable of contentsA. Introduction .......................................................................................................... 2B. Convergence sources ............................................................................................ 4C. Convergence and human rights ............................................................................ 6D. Convergence and the environment ....................................................................... 7E. Convergence and the rule of law .......................................................................... 9F. Convergence and international law .................................................................... 10G. Convergence and military law ............................................................................ 11H. Convergence and codification ............................................................................ 14I. Convergence and common law .......................................................................... 15J. Convergence and criminal law ........................................................................... 17K. Convergence and equity ..................................................................................... 19L. Convergence and consumer law ......................................................................... 20M. Convergence and trade law ................................................................................ 21N. Convergence and maritime law .......................................................................... 22O. Convergence and federation ............................................................................... 23P. Convergence and the free legal networks ........................................................... 24Q. Convergence and judicial power ........................................................................ 25R. Convergence and appellate power ...................................................................... 26S. Convergence and adjectival law ......................................................................... 28T. Convergence and administrative law .................................................................. 29U. Convergence and intellectual property ............................................................... 30V. Convergence and social justice .......................................................................... 30W. Convergence and the administration of justice .................................................. 33X. Convergence and legal logistics ......................................................................... 34Y. Convergence and composite courts and judges .................................................. 35Z. Conclusion .......................................................................................................... 381 Presented at the UNSW Litigation Master Class 26 March 2013

2A. Introduction1. The calls we hear for unification of procedural laws and harmonisation ofsubstantive law all derive from an overarching doctrine of legal convergence.This doctrine is also at work in the constant confluence of disparate legal-righttheories, marshalling of organising legal principles, overlapping legal criteriaand alignment of legal labels examined under the rational light of the judicial orjuristic glare.2. Identification of legal convergence requires the false complexity of legal jargonto be stripped away by the sunlight of reason, clear thinking, order, coherenceand simple language. The principle meaning of legal convergence that isaddressed in this paper is the merger of legal doctrines but there are other legalconcepts of a procedural and administrative kind relevant to the administrationof justice that are also undergoing similar forces of convergence. The primaryforce in merger of the law arises from application and development of legaldoctrine by the courts.3. Judicial resolution uses the glare of logic to distil and reconcile the conflictingassertions, the contestable premises, the cogency of argument, the sufficiency ofrefutations and the more compelling conclusion arising from the application ofthe relevant legal standards. That judicial glare reveals a statement of reasonsfor judgment that makes clear the law being applied in the coercive resolution ofthe dispute by judicial power. Prior to the judgment there was a fair process foridentifying the legal principles in issue. Often that process requires a search forthe principles governing interpretation of statutory provisions and identificationof the relevant statutory criteria to be applied in determining the issues of factraised by application of a statute or other delegated legislation. Constitutionalinterpretation involves scope and division of Constitutional powers, obligations,rights, protections, limitations duties and reconciling implications with text,structure, history, principle and precedent are all derived from the sametechniques of judicial glare.4. The same judicial glare and fair process are applied in determining theunwritten legal rights or remedies by identification and application of the legalprinciples that are in issue and determining the derivative factual issues.

3Judicial glare by reasons for judgment must meet expectations of predictabilityand accountability as well as being reviewable for error. These judicial reasonsmust maintain certainty of principle, transparency of process and comply withjudicial methodology for determination of the findings of fact. Those findings offact on the derivative factual issues arise from the legal issues in contest and aresourced in the evidence adduced or legitimate evidentiary presumptions. Thesufficiency and quality of the evidence from which the derivative factual issuesare decided require judicial reasons that disclose an accountable reasoningprocess. Those reasons are a convergence of the former dispute into a new stateof legal affairs or legal charter, subject only to correction by appealable error.5. Whilst we might point to current aspects of the legal system as being derivedfrom identifiable sources and as a refinement of earlier theory or approach,generally inadequate attention has been given to the sources, forces and effect ofthe convergence of law.6. Attention to these matters may provide an insight and reference point fromwhich deficiencies in earlier theory can be demonstrated or a more enlightenedlegal frame of reference adopted that distils and simplifies or more crisplydifferentiates. The confluence of correctly identified legislative purpose justlike the known genesis of the commercial transaction merges with the text of theinstrument or document to permit extraction of the legal meaning. Thisconfluence of law, by revelation of harmonizing principles and unified doctrine,is a constructive mechanism to reconcile inconsistency, to simplify legalrequirements, to provide greater clarity of the law, to resolve legal conflict andto shape future legal policy.7. All divergent legal doctrine must in theory meet at some level of confluxbecause law means compulsion. On closer examination a perceived divergencemay collapse, blend or merge into a single holistic legal concept or a coreprinciple with cascading legal criteria and qualifications. The blurring of legalprinciple may arise from the myth of bright lines or a false assumed dichotomy.It may be that the conflux is a gauge to test or disprove a legal conclusion.There could be at work misplaced legal transference where the desire toadvance legal convergence creates a flawed fusion. The limits of legalconvergence may be a definable edge of principle or just tributaries of

4undefinable exception. At one level all reduction of legal principle is aconvergence of law.8. What artistic appreciation do we as lawyers have of the confluction of thelabyrinth of streams and currents in the workings of the law? The search for ariparian time-line of legal doctrine growth, whether up or down stream in theflow of the law, whether a stagnant and discordant legal pool or a tempestuoussea of legal conflict may help us understand the spring of legal reason, identifythe real legal estuary, properly separate and calm distinct legal seas, and therebyreveal opportunities for greater unification of the law or advancement of legalpolicy and law reform.9. The excited jurist, in academic writing as to particular legal theory, seeks toexamine the adequacy of judicial glare in identification of the real legalprinciple and assists in accountability of judicial process. The keen legal scholarmay then explore other potential doctrinal origins, such as Roman law, in thedevelopment of the legal theory and then advance recognition of what may inreality be the convergence of law.10. The art of this legal convergence and expanding our appreciation of its past,current and future influence from an Australian law viewpoint, are the focus ofdiscussion in this paper. This canvas etching of legal convergence and the briefartwork topics are intended to enthuse interest in legal convergence and topromote the brushwork of others so as to reveal the harmony, refinement andreduction of legal principle.B. Convergence sources11. Scholars and academics are at the forefront of the convergence vanguard bytheir continuous analysis, review, critique, comparison, challenge and creativelegal vision. The propagation of differing legal views leads to inevitablerefinement and restatement of the law based on sounder and more finiteprinciple, whilst discarding the less certain, the less rational and the lesscoherent.12. The kaleidoscope image of our legal system is confined by the lens of theindividual. Whilst we may all perceive different patterns and shapes of the legal

5puzzle on each glance, the combined collage of legal principle has structuralcohesion and is logically unified.13. This universe of legal theory and the underlying objective or subjective legalcomponents must be capable of identifiable application. A precise andexhaustive definition of legal doctrine is unattainable. However all legaldoctrine is formulated by reference to general or flexible standards anddiscretion. The real beauty in the constructs of the law is the malleability ofprinciple to a formulation of legal doctrine that serves and advances mankind inthe resolution of justiciable disputes.14. The principles found in judicial determinations and extra-judicial speeches orwritings contribute to the rich tapestry of legal theory to which the magnifyingglass of convergence may be applied and may reveal a bigger unifying picture.15. This convergence of the law is a gravitational force that is not simply sourced inthe inspiration and sagacity of jurists any more than it is beholden to theexternal formulation of international law. The gravitational influence ofconvergence of the law is one of logic. As laws are in principle common sensebased it follows that legal common sense logic is readily capable of application.Common sense is felicitous of meaning and infectious by appealing to theintellect. Moreover just as law is compelling in its force, so too is commonsense logic. So the logic behind legal doctrines when properly understoodfacilitates identification of overlapping themes and recognition of capacity forfurther refinement and reduction. Accordingly logic is a dominant source thatdrives formulation of law and legal convergence.16. The paramount force that lies behind legal convergence is the global selfinterestof survival and interdependent economic costs and benefits. Thoseeconomic costs and benefits arise across the vast veldt of human interaction anddemocratic dependence upon the rule of law. These economic considerationsare the driving force behind unification of the laws of armed conflict, theprevention of wars, the maintenance of internal stability and the protection ofhuman rights.17. There are similar economic benefits that flow from harmonising laws tofacilitate trade, productivity and sustainable industry as well as the creation of

6agreements to prevent parochial protections and tariffs. Environmental laws tomaintain a sustainable environment have a significant economic impact thatdrives global unification of green regulatory systems.18. Indeed the preservation of political power is closely aligned with each of theabove economic and humanitarian considerations. It is in turn political powerthat utilises legislative lawmaking power. In this sense political survival is alsoa significant force in the advancement of legal convergence.C. Convergence and human rights19. Whilst development, understanding, implementation, adherence andenforcement of human rights will ever be an aspiration of those who areoppressed, those who are treated unequally, those who are the subject ofdiscrimination, those who are vilified, those who are disenfranchised, those whoare socially invisible and those who try to advance humanity, these are endlessSisyphean struggles. Shifting fears, ignorance, bias and prejudice is a functionof intellect, needs, powers and education. Advancement of human rights willalways require renewed education as to the peaceful right of every person torespect and dignity. This requires a safe, secure and balanced opportunity tolearn, comprehend, exercise and enjoy the smorgasbord of peaceful legalfreedoms and rights converged in the simple label of human rights.20. The calls for a bill of rights, properly entrenched so as to bind legislative andexecutive powers, is a cause at the heart of the UN Universal Declaration ofHuman Rights, 1948. This unification of human rights law is a common causeof all mankind and the convergence of human rights law has been muchadvanced in the last 60 years. Discord as to what is a human right, whetherabsolute, what qualifications and what remedies will still take centuries toresolve. However the content of all human rights is the advancement ofhumanity and that means that these rights are all of a peaceful purpose andpeaceful limitation.21. The constant refinement of monotheistic belief systems and other religiousorders reflects humanities search for meaning, order and purpose. The merger ofsome of those belief systems and fracturing of others is a cycle linked toadvancement of mankind, education, poverty, wealth, resources and survival.

7Whilst all belief systems are capable of harmonious co-existence that is rarelyconceived as the true purpose and so a struggle for dominance, which is in factunachievable, continues.22. Convergence of religious belief systems is an influence of convergent legalsystems. Religious law is itself a system that is on the verge of being swallowedup by the secular rule of law. Given the unsolvable struggle, all religious beliefsand religious law are doomed to face the advancement of humanity.Accordingly there is sound reason to advance convergence of legal systemsunder a secular and supreme doctrine of the rule of law.23. A danger that human rights law convergence faces is manipulation andextension to protect rights that are not human rights. The extension is likely tomask the reality of a watering down of existing peaceful freedoms. That said theconvergence of human right concepts into domestic law continues to have veryconstructive impacts including the development of the legislative clarityrequired as a matter of statutory interpretation for a valid law that constrains afundamental human right.24. The domestic implementation of this convergence for enforcement of humanrights sometimes goes too far such as the creation of a criminal offence forserious ridicule. This is close to creating a criminal offence for want of respectto another person or failure to treat with appropriate dignity. Whilst civilremedies for breach of human rights are to be applauded, there is a need forconstraint in the creation of human right offences that effectively constrainpeaceful freedom of speech.D. Convergence and the environment25. The pandemic of industrialisation has brought a plague of industrial pollution.Balancing the interests of human advancement against human degradation anddestruction of the environment is a grim self-interested legal nightmare.Sustainable utilization of resources for a species that has over populated theplanet is impossible to achieve but unquestionably an object to be strived for, ifnot for blissful enjoyment of the unborn generations of our epoch, then at leastfor the promotion of peace and tranquillity between nations.

826. The biggest issue that confronts cohesion of environmental law is thecataclysmic consequences of climate change. The content of climate changemeans not just the consequential collapse of eco-systems, lost habitat, speciesextinction, diminished quality of air, water shortage, tableland salinity andincreased sea acidity from rising temperatures and sea levels but includesincreasing natural disasters from drought, fire, flooding, sulphuric rain, landslip,tsunamis, volcanic degradation and tectonic plate movements.27. These impacts alone have a massive financial impact, from reduced primaryproduction, impaired trade routes, lost or damaged housing, property andinfrastructure, increased disease and plagues across carbon life forms, as well asthe consequential increase of costs for consumers, humanitarian bodies, healthservices and the public purse of Government. The disruption to primaryindustry, business activities, tourism, hospitals, medical and emergency servicesfrom climate change includes market impact on all related retail and wholesalebusiness entities including insurers, reinsurers and climate-sensitive businessinvestors and non-government funders. These are economic incentives toachieve unified law to reduce climate harmful emissions and to developsustainable clean energy and environmentally friendly human activities.28. The international agreements aimed at reducing carbon emissions, advancingclean energy, maintaining habitats and diversification of species are in directconflict with the advancement of the industrial and technological age. Theprotection of the environment is not easily reconciled with free trade agreementsand growth of labour workforce wages, wealth and opportunities. The complexraft of intentional incentives and disincentives to implement internationalenvironmental agreements are economic tools that inevitably impact on theadvancement of society.29. Whilst it is essential to have a sustainable environment for the people oftomorrow, the burden of climate related law reform is a political noose upon thedrivers of economic expansion and growth. As survival of humanity is moreimportant than fiscal policy there will be a continuing convergence ofinternational law designed to reduce the causes and impact of climate changeand to preserve the environment. Domestic implementation by all countries of

9international climate change agreements and clean energy reforms is the mostimportant legal convergence for mankind.E. Convergence and the rule of law30. A rule of law democracy must advance social order.The “have nots” will neverremain content and contained so “the haves” need more than social order topreserve standards of living. The compulsion inherent in the rule of lawincluding the coercive effect of the exercise of judicial power is designed toadvance that social order. “The haves” need a social conscience and from thatmotivational spring a continuous implementation of actions to advance socialreform, social equality, social education, social welfare, social employment,social health, social recreation and social opportunity.31. Failure to implement these social conscience actions drives the struggle ofhumanity for recognition, restitution, retribution and survival. Whilst alltyrannies are doomed there is no easy fix by harnessing masses in a democraticgovernance unless the elected government addresses matters of socialconscience. A monarchy, a plutocracy, meritocracy or stratocracy can never bea panacea for the disenfranchised, the destitute, the disadvantaged and thedestabilised as the rule of law is not by the people.32. In any rule by the people the essentials of health, food, water, shelter andsecurity are in tension with employment, wealth, capitalism and marketeconomies. Oppression of people under religious ideologies, cults and criminalorganisations are flawed by false freedoms, failure of fear based power and theunquenchable thirst for intellectual and physical liberty.33. Socialist structures advancing what may appear to be worthy communisticideals of community ownership, rule and inter-dependent functioning are alsofundamentally flawed by the inevitable corruption of unaccountable politicalpower, the anarchy of destroyed ambition and the apathy of lost motivation ofself-interest. Social co-operation is most effective when our more basicinstincts for advancing self are blended with community advancement, nationalidentity, people-made constitutional governance and sovereignty of the people,by the people, for the people under the rule of law.

1034. The convergence of social governance under the rule of law is readily visible tothe historian. The fall of rule by monarchs and the development ofparliamentary power of the people litters the past of Europe. Equally thecollapse of the USSR bespeaks the problems of communistic rule althoughChina in its continuing glory of economic growth continues to defy the punditsas to the inevitability of western democratisation. But in each strong coherentnation there is a functioning and effective legal system for the administration ofjustice and advancement of the rule of law by the people.35. The greatest drivers of convergence of the rule of law are the growth of theglobal economy, advances in almost instant wireless digital communication,increased speed and efficiency of transportation and the shrinking of parochialprotectionism. But the recent banking system caused depression reveals acapitalistic fault-line through unregulated financial products, deficientprudential standards, ineffective market regulation, manipulated credit agencies,imbalanced auditing and accounting standards, all compounded by inadequatelymonitored automated market transactions, impaired circulation of money andour flawed traits of greed and fear. Whilst global economic shocks will remainas predictable as seismic shifts the fault-lines are at least diminished byaccountable legal reforms and this in turn re-enforces the cause of convergenceof the rule of law.F. Convergence and international law36. The trade based growth of international law has diversified into all spheres ofhuman activity. The Charter of the United Nations dated 26 June 1945 has beenthe source of considerable legal convergence. From regulating air space, seas,ships, satellites, human rights, warfare and weapons, banking systems, wages,disease, to property rights there are international treaties, multi-lateral Stateagreements as well as related world organisations and other non-governmentbodies. Advancing any of these regulatory causes requires uniformity and legalimplementation. So international law is at the apex of drivers for legalconvergence.37. Within these areas of public law are inevitable tensions and conflicts in trying toachieve a balance of the competing stakeholder interests. The public law

11product from international agreements are inevitably a compromise so as toachieve a consensus that leaves exceptions, carve outs or ambiguity thatdiminish the underlying objectives of unification.38. The desirability for common interpretation of international instruments has leadto its own treaty being the Vienna Convention but inevitably separate legalsystems maintain their own sovereignty in the domestic application of treatybased law. Concepts of international comity have strengthened the likelihood ofcertainty by uniformity of approach and following of compelling higher courtprecedents but exceptions and dissonant decisions are the reality ofcompromised treaties. There are now international UN based tribunals andcourts that have massively advanced the convergence of the law of the seas, warcrimes and crimes against humanity.39. International law will inevitably continue to be the greatest driver of legalconvergence by dissemination of collective standards and facilitating theconsequential implementation of uniform laws. The increasing interaction andcoherence of legal systems is also enhanced by the incredible improvement incommunication and transportation.40. From academic interaction, international legal conferences to the interactionbetween judicial officers from around the globe, there is an increasingawareness of the existence, importance and role of complimentary andharmonious legal systems in the common cause of advancing and administeringinternational law. This facilitates the advancement of legal convergence.G. Convergence and military law41. Many common law countries are starting to address the disparity of legal rightsand tribunals that exercise powers over defence members and prisoners that failto replicate the ordinary criminal law. Most of these tribunals were extensionsof military command and anything but independent bodies that could withstandmodern expectations of judicial independence and the separation of courts fromthe state, church, legislature or executive.42. These modern expectations are closely tied to the maintenance of publicconfidence in and respect for the exercise of judicial power and maintenance ofthe rule of law. The exercise and maintenance of which are essential for

12preservation of the Constitutional institutions that are the foundations for avibrant, diverse and harmonious democracy.43. The importance of the appearance of judicial independence and the separationof courts from any deflective influence sits uncomfortably with a want ofconvergence of constitutional law in respect of military judicial power.Expressions of dismay at unfair treatment of defence members or prisoners ofwar are all reflections of the public expectation of the proper exercise ofcriminal law by independent and impartial courts.44. The desires of military command influenced by centuries of separate disciplinesystems from mainstream criminal law create a significant impediment in theconvergence of criminal law and military law. But the confluence is inevitableand the perceived conflict with the need to maintain discipline is utterlyartificial and in fact a military command myth.45. Whilst it is fair and necessary for military command to have powers to dismiss,reduce in rank, forfeit seniority, fine or reprimand, these are the proper metesand bounds of disciplinary power and all other powers of imprisonment or socalled detention are the domain of criminal law and the independent judicialinstitutions. Whilst some may argue in favour of re-educational orrehabilitation detention by military command power this is out of harmony withall other discipline systems.46. To detain any person, is an interference with the fundamental human right ofliberty. This deprivation of liberty should only ever occur by or in pursuit ofexercise of independent judicial power. In pursuit should be confined todeprivation of the liberty of the person by arrest in the nature of temporarycustody to prevent flight for the purpose of being brought to court for exerciseof the judicial power in a timeframe consistent with all reasonable expedition.47. So no person should be detained by any exercise of executive power other thanfor the purpose of bringing the person before an independent court. That courtcan determine whether loss of liberty should be continued and if so whatrestrictions of liberty are consistent with legal principle as to the presumption ofinnocence. That court can balance the interests of liberty of the accused with

13the public interest in the remand, bail, trial and punishment of those whotransgress the criminal law.48. All prisons and all sentences of imprisonment include objects of rehabilitationand there is no justification for military detention outside of the criminal law.Considerable international interest relating to the confluence of military andcriminal law arises in the treatment, bringing to trial and punishment of allegedprisoners of war. Sadly parochial and self-interested interpretations of theGeneva Conventions have failed to consistently apply those internationalminimum standards for treatment of prisoners of war by interpretations ofenemy combatants that are inconsistent with most modern military conflicts.49. The rhetoric of terrorism has been used to deny proper application of theGeneva Conventions to so-called terrorists and the consequential abuse ofprisoners at various locations have been endemic. The sunlight disinfectantintended by application of the spirit of the Geneva Conventions would haveprevented these horrific abuses of human rights by those exercising militarypower over prisoners.50. So the convergent forces of criminal and military law are fuelled by publicexpectations. Whilst there will still be scope for criminal offences to deal withmilitary command interests the convergence of military law into criminal law isinevitable. Moreover disbanding the antiquated military tribunals from anycontinued exercise of military judicial power is an end much to be welcomed.51. No person should face a different criminal law standard of trial or a differentsentence for substantially the same crime. No person convicted of what is insubstance the same crime should have differing appellate rights. Thesedifferences are entrenched in military judicial power and it is an unfairness thatis utterly discordant with the rule of law.52. The convergence of military tribunals into mainstream criminal courts is ofcritical importance for the maintenance of our democracy. This is not to saythat all military tribunals did not seek to exercise their powers properly but thereis a vast chasm between non-independent tribunals and independent courts.53. Those who contend that wartime and the fog of war do not permit of theseniceties underestimate the critical importance of the rule of law. Once we

14abandon the rule of law under the guise of military necessity we have lost ourdemocracy and only anarchy or despotism will be the likely outcome.Accordingly, convergence of military and criminal courts is also an essentialobject for advancement and preservation of our democracy.H. Convergence and codification54. The recent commencement of a Commonwealth review as to whether the law ofcontract should be the subject of codification is a fascinating example of lawreform driven legal convergence. This potential codification of contracthighlights the complex issues that can be thrown up in attempts to simplify andunify the law.55. Complete codification of the law of contract is a worthy objective, howeverreconciling that exercise with the remaining spheres of uncodified lawconcerning torts and equity becomes a tangled web. Unless all intersectingareas of the law are codified for contracts, torts and equity, the desiredsimplification will not be achieved and the incomplete codification will createan endless feast for lawyers by formulation and pursuit of rights in tort or equitythat have not been effectively constrained by the codification of contract law.56. An effective example of an attempt to constrict other avenues of remedy wereaddressed by the reforms to the Trade Practices Act 1974 that introducedproportionate liability and contribution as a result of the sterling Review of theLaw of Negligence by the Hon. Justice Ipp AO QC. There remain discordantgaps and scope for dispute to escape application of the proportionalityprovisions and arguments as to coordinate liability outside the scope of thestatutory reform.57. This only highlights the difficulty involved in codification which is not designedto encompass all areas of unwritten law. Whilst this may be a Herculean task inthe eyes of a common lawyer, it was grist for the codex mill of the EmperorJustinian. Complete codification is a worthy object. Whilst convergence ofunwritten law into an exhaustive code may be an admirable end, there remains aneed for transparency of the law.58. Codification that becomes overly complex, prolix and unintelligible does notadvance predictability and certainty required by the rule of law. Telephone

15books of codified laws will not assist the orderly and efficient functioning ofeither the business world or modern society. It is the reduction of the telephonebooks of legislation into digestible, coherent and simple statutory language thatis the most difficult task. That task is compounded by the inevitable discoveryof omissions and errors and the shift in political powers or social mores thatgenerally give rise to law reform.59. The changeability of what is codified is as important as its content. There willinevitably be a continuous breathing in and out of the statutory content thatseeks to govern the people of the Commonwealth. In this regard, it is greatly tobe commended that the standards employed by the Office of ParliamentaryCounsel are available to the cathartic observation of all and are of an extremelyhigh calibre and content. It is much to be hoped that the pressures forconvergence of the unwritten law into a uniform codification will have thebenefit of the skill and distillation that flows from the high standards of theOffice of Parliamentary Counsel or the similar exemplary standards of theAustralian Law Reform Commission.I. Convergence and common law60. The statements of the High Court of Australia that there is a single common laware a logical reflection of the Australian Constitution and also reflect thedoctrine of convergence in relation to common law. Whilst there remainfascinating areas to reconcile for the centuries ahead as to the content andintersection of Native Title and other Aboriginal cultural rights and customswithin the rubric of common law, this unwritten body of doctrines recognisedby the old common law courts of England appear antiquated. That said therehas already occurred considerable legal convergence in common law doctrinefrom the civil law systems and in particular notions of commutative justice.61. Moreover, reconciling the content of common law in Australia with thedoctrines of equity and concepts of fusion of law and equity, as well as allegedfusion fallacy all appear unnecessary relics. A more meaningful distinction anddivision for Australian law may be federal law and State law. It is submittedthis would more closely align with s5 of the Commonwealth of AustraliaConstitution Act and with the language of the Constitution, particularly ss109

16and 118. Further this division also leaves scope for a wider operation as to themeaning of “a law of the Commonwealth” in s80 of the Constitution.62. It is tempting to engage in a more detailed analysis of common law doctrines,all of which are ultimately derived from common sense. Whilst common sensehas become a touchstone for causation in tort law, it may be that the salientfeatures and propinquity of relationship that govern the nature and scope of aduty of care are capable of being subsumed within an overarching doctrine ofcommon sense.63. The problem created by such an overarching doctrine is the loss of identifiableand accurate yardsticks. Value-based concepts of what is just or what is fairprovide no tangible content. Tangible content is necessary in the law forpredictability, certainty and accountability in the application of legal principle.This is the same problem that inhibits notions of sweeping generality such asunconscientious conduct or unjust enrichment as black hole doctrines that mightsubsume identifiable causes of action, concepts of estoppel and equitable rightsand remedies. The problem with an overarching black hole doctrine is that itsucks away the content that permits identification of the principles to be appliedand reviewability of the application of those principles.64. This does not mean that there should not be continuing endeavours to refine andnarrow the categories of estoppel into a coherent and singular doctrine butrather that there will always remain a need for identifiable legal criteria. Thechange in labels of those legal criteria is inevitable just as the changing guard ofprecedent tends to restate, sometimes with refinement, every ten years or so thegist of legal reasoning required to sustain or to defeat a right, obligation orremedy.65. The sphere of tortuous conduct based on the old forms of action may in duecourse be subsumed into an action for wrongful conduct where unreasonableconduct occurs that causes foreseeable injury or loss to an identifiable classlikely to suffer loss from unreasonable conduct. Statutory remedies andlimitations are likely to further circumscribe the common law concerning tortsto person and property. For example statutory reform in the area of legalprofessional privilege effectively modified the common law sole purpose test to

17a broader dominant purpose test in creation of the document for establishing theprivilege. In this sense statutory reform will further drive convergence ofcommon law doctrine.66. One of the areas of the law of contract that is under continuing pressure tojustify its continued existence relates to the doctrine of consideration. Whilstthere has been some statutory abrogation of the common law doctrine ofcontract, the reforms recently made to the Australian Consumer Law are likelyto drive a review of the role of the principles concerning consideration andwhether there should emerge a new doctrine of legal obligation that requires nomore than the objective intention of the parties and sufficient certainty.67. The public policy underlying enforcement of legal obligations or bargains isalso the same chameleon tool that renders unenforceable agreements in restraintof trade, founded on illegality, uncertainty, duress, fraud or mistake. Thatchameleon tool of public policy underlies the existence of all common law legalrights and the qualifications or exceptions. So common law is a fertile field foradvancement of legal convergence.J. Convergence and criminal law68. One of the areas that has created complexity for those the subject of regulatoryauthority is the increasing endeavour to use civil penalty provisions to providean effective tool to protect the public and penalise conduct that might otherwisefall short of an ability to obtain a criminal conviction. A similar concern arisesin relation to Commissions or Tribunals that make declarations of improperconduct with the flavour or overtones of criminality such as corrupt conduct.69. This increasing use of civil penalty legislation and non-court bodies that canmake declarations of corrupt conduct are an attempt to converge criminal lawinto civilian law. Whilst the worthy object of regulatory authorities is advancedby attempts to protect the public, it should not be at the expense of the ordinaryhuman rights concerning the presumption of innocence, right to silence andburden of proof upon the prosecution.70. Whether the pendulum swing has gone too far in current civil penaltylegislation, particularly given the growth of related administrative tribunals andpowers will be a continuing sphere in which Courts endeavour to regain and

18retain their role as the cornerstone for determination of civil and criminalcontroversies.71. Crimes in the digital world are obviously an area for legal convergence. Thereare, however, too many fields of attempted refinement of the criminal law toexplore in detail but it remains concerning that fundamental rights of an accusedto silence are under constant attack from the forces of political martinets to theforces of case management. Similar attacks are advanced on the criminal jurytrial by promotion of judge alone criminal trials.72. The scope and work of s80 of the Constitution on the State and federal criminallaw will continue to unify and protect fundamental features of the criminal jurysystem which serve both the interests of an acceptable public verdict and theinterests of fair trial for an accused. The American due process protections arelikely to be found in substance to exist in the fair process implications ofChapter III. The implication of entitlement of an accused in a serious criminaltrial to competent counsel reflects both that right to a fair trial and theconvergence from American law. The trial judge of course has a duty to ensurea fair trial and is for example entitled to withdraw the right of appearance by alawyer where satisfied that the lawyer’s incompetence or misconduct will causethe trial to miscarry.73. State law which impedes the accused’s right to silence or creates offences basedon a legal charter that has been determined by secret evidence and a one-sidedpresentation of evidence without opportunity for the adversarial testing of issueswill continue to give rise to arguments of repugnancy with the requirements ofChapter III.74. Whilst the legislature has a proper role to curb the growth of criminalorganisations, gangs, cells and recruitment, it is important not to create scopefor political crimes that undermine democracy. There will always be tensionsbetween human rights such as privacy, freedom of association and liberty withcriminal investigation and process. The same equitable principle of minimumrestraint necessary to protect an equitable right should apply to these tensions sothat no more is enacted than the minimum tension necessary to permit criminalinvestigation and process.

1975. Secret criminal investigation, protection of informants and vulnerable witnesses,and protection of information derived from compulsory process, should notbecome vehicles that diminish the dictates of fair process. A fair trial and acoercive new charter by exercise of judicial power including jury verdict do notpermit use of the same procedures that are necessary for detection andprevention of criminal activity. Where the balance lies will remain a tension asto what is the necessary minimum and whether it impedes the essential featuresof trial by jury or fair process. Any such impediment undermines publicconfidence in the integrated court system. These matters will drive aconvergence of the content of trial by jury and fair process in both State andfederal law. This is a convergence of Australian fair process law with Americandue process law.76. Disparity in State and federal sentencing principles is also a cause foradvancement of convergence. The anathema of disparity of principle insentencing between States and differing statutory restraint for States onsentencing discretion and mandatory sentences or fixed statutory baselines forevaluation of custodial punishment do not accord with the important appellatepower in s72 of the Constitution concerning “sentences”. This appellate poweris intended to ensure unity of sentencing principles throughout theCommonwealth. Enhanced flexibility for sentencing options for those addictswho have in reality a medical problem will hopefully also become a uniformapproach in sentencing principle.K. Convergence and equity77. While the doctrines of good conscience and remedies to relieve against benefitscontrary to good conscience described as equity continue to be refined, this isanother area in which the label is arguably out dated. Principles of goodconscience should be capable of becoming a single fused body of federal lawand State law.78. Equitable remedies and equitable rights have been or are likely to be consumedinto the content of the unwritten law administered by the integrated Courtsunder the Australian Constitution. The breadth of matters within thejurisdiction of equity, although the subject of separate divisions in some State

20courts, no longer has the same clarity of distinction as a body of lawadministered by a specific court. A division in courts between federal law andState law might well be more meaningful within the structure of the AustralianConstitution.79. Whilst courts of limited jurisdiction may be constrained in their exercise ofsubject matter and available remedies, it is difficult to maintain that there shouldnot be scope in all courts to mould relief for legal rights and remedies asmodified by good conscience.80. All courts within the integrated courts system should be courts that administerlaw in accordance with good conscience within the subject matter of theirjurisdiction. Accordingly, whilst the debate on fusion fallacy between commonlaw and equity might continue for some time the real fusion that is continuing tooccur is the absorption of good conscience into the administration of justice bythe integrated courts system.L. Convergence and consumer law81. The recent reforms by the Australian Consumer Law enacted under theCompetition and Consumer Act 2010 are as a much as a leap into the21 st century as the Trade Practices Act 1974 was when it was introduced as amassive leap forward in the 20 th century. The full scope and impact of thestatutory guarantees that have been introduced and the significance of thefederal matter impact are likely to take some time to be fully absorbed.82. The impact of the Personal Property Securities Act 2009 as a fundamentalreform of harmonisation and its impact as a federal matter in consumercontroversies will provide significant development of consumer law. Whetherthe consumer pendulum has swung too far in the convergence of statutoryconsumer protection will inevitably require further review and tinkering as theenactment of consumer law reform is never a tool of precision. That said theseare significant reforms that advance the convergence of consumer law.83. The digital economy has also created a need for uniformity of legal doctrine toprotect consumers. The convergence of markets, platforms, products andservices as a result of the digital economy has created a rapid pace of change inendeavours to protect the interests of consumers and in particular transparency

21and accessibility. This has driven the advancement and convergence ofregulatory avenues for consumer complaint law and market regulators.M. Convergence and trade law84. There is an obvious overlap with trade law and pubic international law and onone view these legal convergence topics should be fused. However this wouldundermine the importance that trade law has played specifically in the areas ofintellectual property law, competition and anti-trust law, taxation, disputeresolution, banking law, credit and payment systems, the law of insurance/re-insurance, corporate law, stock exchange, derivatives and currency markets.All these legal areas overlap and intersect on the world stage of trade. Whilston one view fiscal policies, revenue, regulatory regimes and taxation law mightall be excised as fields worthy of their own convergence pressures. These fieldsare interdependent upon the profits and income derived from the tradingactivities and as regulated by domestic licensing of those businesses. Theselicensing fees, like the sale of spectrum, extract a rent for those trading activitiesin Australia, similar to the rent tax extracted in relation to mineral andpetroleum resources.85. A major influence on legal convergence in the sphere of trade law is thedevelopment of regional economic blocks. These economic blocks from theEuropean Union, to APEC create new impetus for convergence of national tradelaw. Whilst import and export imbalances may impact on domestic policy,these economic blocks require uniform laws to promote free trade, regulatecompetition and to achieve a common level of business encouragement,increased productivity and reduced protection.86. One of the most significant developments in trade law is the creation ofelectronic documentation, electronic processing and electronic transactions.The advancement of paperless transactions is a source of efficiency, expeditionand unification of process and business. From electronic documentary credits toelectronic bills of lading the e-commerce side of trading activities is drivingtechnologically improved payment, security and processing systems. Cloudcomputing, data-transfer and other content communication systems are also

22likely to fuel further innovation for convergence of trading activities which willcontinue the convergence of trade law.87. Another significant advancement from trade law are the model laws forenforcement of arbitral process like the New York Convention 1958 and theUNCITRAL Model Law. The Hague Convention 1971 for enforcement offoreign commercial and civil judgments arose in part out of trading activities isanother source of legal convergence.N. Convergence and maritime law88. Maritime law has always been a particularly fertile area for the growth anddevelopment of legal principle and the application of legal convergence. Fromthe historical perspective there have been numerous forms of maritime codesimplemented by countries to improve maritime commerce. Within Australiamost areas of maritime law have been the subject of legislative implementationat the domestic level of international maritime treaties or replicating UKmaritime legislation. The recent replacement of the Navigation Act 1912 withthe Navigation Act 2012 is an excellent example of the domesticimplementation of a raft of maritime model laws.89. Generally these treaties reflect international compromise between the competingState interests in the field of maritime commerce concerned, as well as havingto make allowance for the different types of legal systems within whichdomestic implementation is to operate. Accordingly there are significant gapswithin the maritime treaties that assume either an existing body of unwrittenmaritime law or an existing codification.90. The most important force in convergence of maritime law has been the UN Lawof the Sea Conventions of 1958 and then 1982. The unification of legalprinciples in these Conventions address sovereign territory, territorial seas, highseas and utilization of natural resources including common heritage of mankindin relation to the resources below the sea bed. The legal convergence that thismaritime sphere of international public law has undergone is of mammothproportions.91. A major driver in development of maritime law has been the dawn ofcontainerisation and growth of unified agreements covering multi-modal

23transportation by land, sea and air. Special purpose vessels, bulk carriers androll-on-roll-off vessels, together with the container vessels, have improvedcargo movements, safety and security. The one stop shop freight forwardershave also impacted upon the combined transportation of cargo and unificationof legal regimes for those exposed to the risk of cargo movements and thegrowth of electronic maritime transactions and under-pinning e-commerce law.92. In the world of admiralty and maritime jurisdiction there are also likely to beeconomic incentives that encourage legal convergence in line with the moreexpansive US approach to in rem remedies. This jurisdictional expansion islikely to embrace air law and in rem action attachment of aircraft, air cargo, hireand freight.O. Convergence and federation93. The centralist forces at work in the inevitable expansion of Commonwealthlegislative power are the source of a shrinking importance for the States andtheir legislative powers and bureaucracy within the federation. Theconvergence of international law is a powerful force in the expansion of theheads of Commonwealth legislative power and maintaining the federal balanceis more a theory of fantasy than a reality.94. True it is that matters involving Constitutional conflicts with the interests of theStates constantly try to preserve the federal balance however this an almostimpossible task given the shrinking scope of powers and the scotched reservedState powers doctrine. A glimmer of hope arises from the recognition ofConstitutional institutions that must be maintained, but this cannot stop thecontinuing concentration of economic power in the Commonwealth from itsexpanded scope of legislative powers.95. This convergence of legislative power in the Commonwealth is ultimately likelyto drive referendums that revisit the role and function of State institutions. Theprotective balance of power objectives behind federation are arguably no longerlegitimate concerns if and when a single republic emerges.96. The need for local government input will no doubt preserve the States but notnecessarily with all the current duplication of lawmaking and governance. A

24revised federal system into a single governing politic with single elections forall states and the central governing republic seems to have to its attractions.97. This single election throughout an Australian republic every four years shouldprovide a stability and efficiency that the current federation lacks. The role ofstate government would remain essential for local government under a unifiedAustralian republic and the state courts could be further integrated into a singleunified court system. The forces of convergence will continue to drive bothreform of the federation and uniformity of principle applicable to Constitutionalinstitutions as well as increasing legal shifts in the federal balance.P. Convergence and the free legal networks98. The consequences of the free legal networks are of sweeping significance inachieving global legal convergence. Not only do these accessible sites facilitateunderstanding of comparative legal systems but it inevitably drives internationalcomity and the object for legal consistency.99. The accessibility and ease of access to the free legal electronic networks are amajor force in the unification of legal theory and in harmonising laws. Indeedthe availability of the workings of independent secular courts and a fearlessindependent judiciary are essential bastions for existing democracies. Thesejudicial examples available over the internet create a powerful incentive fordemocratic struggles around the globe.100. Multiple language limitations remain a source of current constraint but withincreased technological development these free legal networks should becomereadily convertible into languages for all. Authenticity and security of contenton the free legal networks will also remain a matter of constraint.101. The other trend that arises from this growing global legal database is the needfor constraint in usage, selectivity and discarding. The recent focus on ananxious parade of knowledge “APK” or unctuous display of research “UDR”either in submissions or in judicial method become areas of considerableimportance for restraint. Endless citations and footnotes rapidly diminishmeaning and content. Apart from court initiated citation constraints there is thepractical need in the administration of justice to ensure that expansiveavailability of legal information does not clog the wheels in the administration

25of justice. Excessive references dull meaning and cause written works tobecome opaque to reason and an instrument of oppression.102. These accessible sites will also give rise to refined domestic and internationalprinciples concerning the importance of transparency and accessibility of lawand of judicial process and determinations.103. The free legal internet also provides a rich pasture for the legal student,academics, scholars and continuing education of all legal practitioners.Knowledge of comparative law principles will inevitably lead to opportunitiesto advance legal convergence.Q. Convergence and judicial power104. There is a most unhealthy trend of expansion of executive or administrativepower into the domain of subject matter that seeks to overlap judicial power.These chameleon bodies that mimic judicial power in the resolution of disputesare arguably an anathema to the rule of law. Often these tribunals orcommissions replicate the trappings of a court and on rare occasions those whosit in these administrative bodies masquerade as if in fact judicial officers. It isnot appropriate for any tribunal to masquerade as a court and it is equallyinappropriate for any person sitting on a tribunal or commission to pretend to bea judge. This causes public confusion that has the potential to undermine therule of law.105. Further courts, not tribunals or commissions, deal with the crime of contempt,whether it be contempt of a body like a tribunal or a commission or whether itbe a contempt of court.106. The overlap of quasi-judicial powers by tribunals, commissions and otherauthorities is a pendulum swing of convergence that may have gone too far andthese administrative bodies may need to be more clearly contained within asphere that does not overlap with judicial power.107. Another sphere of activity that potentially undermines the propercomprehension of courts and judicial power is the borrowing by sports bodies ofthe impartiality and independence of real judges. To describe an administrativebody as a court is a great mischief as the courts are Constitutional institutions.

26108. No such use of the name court should be permitted by a body that is not a courtany more than those who are Chapter III justices should be given anomenclature of magistrate. Also to describe sport tribunals as being a judiciaryis questionable and at some stage this confusion should brought to an endbecause it is incompatible with our integrated court system and its exhaustivevesting of judicial power.109. Whilst the current law continues to resist the separation of powers doctrinederived from Chapter III having application to State courts the integrated courtsystem is likely to cause the re-visiting of this anomaly. Eventually aconvergence of principle in relation to State judicial power and the judicialpower of the Commonwealth requiring adherence to the separation of powersdoctrine appears essential to preserve public confidence in the integrated courtsystem. The Constitution in this regard may in the future be found to compelinstitutional uniformity including uniformity of judicial function as an essentialrequirement of the integrated court system. Arguably institutional uniformity isa necessary requirement for the preservation of the rule of law throughout theCommonwealth enforced through ss73 and 75 of the Constitution and anessential requirement to preserve the judicial independence required byChapter III.110. Another pressure that arises in the exercise of judicial power is the scope todecline exercise of properly invoked jurisdiction because of the existence ofanother tribunal to which Parliament has provided an avenue of review. Thecase-load on courts and limitations on funding have and will continue to drive atendency to vacate the fields of properly invoked jurisdiction to those otheravenues of review where appropriate redress is available. This is perhaps not atendency that should be encouraged as there is a higher principle at work in thepublic determination of disputes in real courts. That principle entrenches ageneral duty upon a court to exercise jurisdiction properly invoked.R. Convergence and appellate power111. A right of appeal in criminal matters is essential in a democracy and anyimpediments upon challenge to conviction or sentence is a questionable exerciseof legislative power. It may well be that a requirement of leave to challenge

27either conviction or sentence is an incompatible interference with the integratedcourt system under the Australian Constitution. The integrated State courtsmust be free from interference or restrictions that could undermine the publicconfidence in the integrity of the courts. This integration includes courts thatare the beneficiary of the autochthonous expedient by reason of vesting offederal jurisdiction and exercise of the judicial power of the Commonwealth.112. Whilst in some civil law inquisitorial systems a court comprises three or morejudges and no right of appeal is provided, this may not be a trend ofconvergence that should be followed. Another questionable trend that has beenadopted is the expansion of vested appellate jurisdiction from a lower court to asingle appellate judge. Another problem is constraint upon the nature of theappellate jurisdiction although all exercise of judicial power is reviewable unders73 of the Constitution as any statutory impediment is repugnant to Chapter III.113. An appeal from a lower court to a single judge in a higher court that is an appealin the nature of a hearing de novo is far less objectionable. But the exercise of arestricted appellate jurisdiction against final orders to narrow errors of law orspecified subject matters that require leave is out of kilter with a properintegrated court system.114. This is not to say that a single appellate judge should not deal with allinterlocutory issues in an appeal, but rather the public is entitled to expect, forpreservation of their confidence, that restricted appellate rights against finalorders will bear the scrutiny of at least two and preferably three appellatejudges. An intermediate appeal in relation to individual rights that have beenfinally decided is likely to be final. It is not an uncommon occurrence that twoindependent appellate judges would decide the same case differently no doubtby reason of different emphasis or application of principle, but rarely differentlegal principle. It follows that exercise of appellate jurisdiction by three judgesis often more satisfactory.115. When justice is seen to be done by a proper exercise of appellate power itcreates a strengthening of public confidence in the courts. So here whilst theeconomic rationalist may welcome a single final hearing and encourageattempts to excise any power of appeal this is contrary to the integrated court

28system and Chapter III of the Australian Constitution and potentially inimical topublic confidence in the courts. Indeed convergence that denies a right ofappeal from final orders are contrary to the rule of law and may be held invalid.116. Whilst appeals addressed so far are comments referrable to courts there are amyriad of tribunals, commissions and authorities from who's exercise of powera statutory right of appeal may lie to a court. It is important to understand thatno exercise of administrative or executive power by any person is beyondreview for jurisdictional error including denial of procedural fairness by anappellate court within the integrated Court system.117. The not infrequent legislative endeavours to restrict access to the courts forprerogative relief are flawed in principle and likely to be invalid. Destroyingrights of appeal or review under convergent concepts are not steps that are inharmony with the rule of law and is a confluence to be discouraged.118. Another area for concern that should be identified is the expanding attempts toforce parties out of a court system into compulsory arbitration and to thenstultify appellate rights. In general arbitration should be based upon consensualagreement not the result of a coercive order of the court. The same consentshould generally be a pre-requisite for a court ordered expert determinations. Itshould be rare for a litigant that has properly invoked the jurisdiction of thecourt to be compelled to obtain redress outside the court system. Arbitralbodies and other alternative dispute resolution mechanisms including mediationare arguably not mechanisms that belong to the domain of the rights baseddetermination of disputes which courts must administer.119. In general no person should be deprived of access to the court system for arights based resolution of any bona fide dispute where the jurisdiction has beenproperly invoked. In answer to the economist what price for the administrationof justice, it is the price of preservation of our democracy.S. Convergence and adjectival law120. There is a constant endeavour to unify rules of evidence and procedure. This isa most constructive object as all courts in the same country should administerthe rule of law consistently and in like manner. The economist law maker hasarguably entered unbalanced weights on the scales of justice by advancing

29alleged simpler rules for low value high volume disputes and by design ofjustice productivity benchmarks.121. The only price of justice is the maintenance of our democracy. Accordinglythese tweaking of procedures mandating a method of trial in the name ofimproved efficiency can impair the administration of justice. All courts canadapt their procedures to the needs of the specific dispute, just as all courts canexercise control to prevent an abuse of process.122. It is generally desirable to leave efficient exercise of judicial power in the handsof the courts without unnecessary legislative attempts to hold or harness thejudicial reins. Indeed where the discretion of the court in exercise of its powersis the subject of legislative interference that could undermine the integratedcourt system by mandating an approach it may be held invalid.T. Convergence and administrative law123. The theory of natural justice now re-named as procedural fairness is an areawhere legal convergence is well advanced. Overarching notions of proceduralfairness have swept up a vast sphere of unacceptable conduct and errors thatprovide a basis for correction of administrative error and also the foundation forinvoking prerogative relief from superior courts for jurisdictional error.124. Whilst much administrative law is now the domain of tribunals and regulatoryauthorities with a capacity for de novo review of the merits, the legal objectivein the exercise of the administrative power is to determine the correctadministrative decision. This simplistic notion of the correct decision mightappear highly artificial given the inevitable weighing of factors and practicallimitation of reasons, but it is an example of legal convergence.125. While some aspects of executive power remain a shrinking sphere of nonjusticiableissues the overarching entrenched capacity of superior courts tocorrect jurisdictional error ensures the exercise of all administrative andexecutive powers are subject to review and the supremacy of the rule of law.126. Whether doctrines of estoppels and res judicata should attach to administrativedecisions remains unsettled. The pendulum swing to force litigants into thejurisdiction of tribunals may have gone too far, but if legal rights and access tocourts for their determination are to be denied issues of estoppels and res

30judicata may well be found to apply to the tribunals as too will a doctrine ofprecedent within the tribunals.127. Tribunals do not administer justice only courts do so. In general all litigantsshould be free to have their legal rights determined by courts. Moreover courtsshould be jealous in preserving their administrative law jurisdiction.U. Convergence and intellectual property128. There are many articles written about convergence within the sphere ofintellectual property. It might be argued that this is an area at the vanguard ofconvergence of laws by formulation of harmonising principles. The commoninterest in appropriate protection of creativity, business viability, investment andinnovation gave rise to the original Paris Convention as organising legalprinciples governing intellectual property. International bodies like WIPO andthe Berne Union have in turn driven model laws for domestic enactment. Thegrowth of electronic and digital mediums and content have massively enrichedthe spheres in which intellectual property rights are being created and haveidentified the need for expanding protections.129. All intellectual property rights involve issues of duration, limits of competitiveadvantages, requirements for recognition and preservation of commercialexploitation, constraints on protection and infringement of identified rights andpublic policy exceptions to monopolistic rights. The legal convergence that hasdeveloped in these fields is already well developed and the international forcesat work will continue.130. Intellectual property concepts are feeding other areas of convergence fromConstitutional doctrine involving competition principles to the consumertransactions in accessing electronic products and services. Both domestic andinternational interests are driving legislative reform in intellectual property fromdigital data-casting rights to the integrated circuits or chips to geneticallymodified plant varieties.V. Convergence and social justice131. Social justice is more of an ideal than a recognised area of law, but that said it isnonetheless an important driving force is the working of the law. Expectationsof a fair day’s pay for a fair day’s work, and responsibility of society for the

31injured, sick, disabled, elderly, unemployed and homeless, are important for thepeace and harmony of any Government. These expectations do tend toconverge into recognised legal rights and our collective social consciousbecomes a cause of most law reform. It is these same notions of social justicethat often drive a refinement of legal principle and sometimes advanceconvergence. The constant inclusion in statutory interpretation of the objectsunderlying the legislation or the purpose of particular reforms lets courtscomprehend and apply a revealed legislative purpose to advance a particularaspect of social justice where the meaning and language is unclear.132. “What was the purpose of this statute?” were words of frequent repetition byJustice Michael Kirby AO as he endeavoured to enhance and improve judicialmethod as well as the efficient management of court workloads. In a similarvein of improvement of legal discipline and efficiency Chief Justice Allsop AOhas repeatedly probed counsel for identification of the organising legalprinciples. Both approaches advance legal education and most importantlypromote the transparency and accountability of the law.133. The organising legal principles require identification of a governing coreprinciple and subsidiary or derivative principles and qualifications which maybe informed at a high level by society’s interests in competition, universality,equality, protection, fairness and economic advancement. At a more detailedlevel those organising legal principles will be forged and justified by history,statutory reform, international agreements, precedent, certainty, determinacyand logic consistent with the organising principles.134. There might also be scope for addressing concepts of social justice outside thecourt system from sports bodies to religious bodies. Whether a culture of payback is regarded as acceptable by a particular group should not be allowed toundermine the importance of the rule of law and its equal application to all.135. Sporting bodies, religious bodies or other cultural groups do not exercise therule of law and are not bodies that administer justice. Whilst there is a need forimproved understanding and teaching of indigenous culture, rights and heritagethat does not mean that there can be more than one system that administers therule of law in a democratic society. That said our indigenous people and our

32multi-cultural society will continue to set social justice expectations that willdrive convergence of distributive justice.136. In the context of social justice there is the essential role performed by the freepress in maintaining our democracy through the different media platforms. Thefree press play an essential part in maintaining transparency and accountabilityof democratic process and in particular public confidence in the administrationof justice. The organising principles for the doctrine of freedom of the press orthe free media are first the supremacy of the rule of law, subsidiary to that theConstitutional implication of free political discourse and subsidiary to thehuman right of free speech.137. The human right of free speech is not unqualified and so too the freedom of thepress is subject to laws of contempt, defamation and media regulation. It ishowever essential that these laws do not unreasonably impinge upon freedom ofthe press and any regulatory regime has to be designed not to impede freedomof political discourse.138. A regulatory standard for journalism and the media with disciplinarymechanisms to maintain those ethical standards are part of public accountabilitythat all regulatory regimes seek to achieve. Regulation to maintain standards ofrespect for rights of privacy, compliance with criminal laws or regulating mediaplatform competition are not in principle an impermissible impairment of thefree media. Free media, like a free market, are doctrines that advancedemocracy so long as accountable to the public by reasonable regulation.139. The free media is a derivative doctrine and as such subservient to human rightof free speech and the human right to privacy and most importantly the rule oflaw. Without being exhaustive just like the judiciary, the legal profession, thepolice, and politicians, the journalists that provide media content thoughdifferent media platforms in exercise of the doctrine of freedom of the media areall servants of the rule of law. That is a touchstone that qualifies and limitsevery freedom.140. Regulation that has the practical effect of impairing the freedom of the media inadvancing the human right of free speech or advancing the content of politicaldiscourse may well be found to exceed any law making power or may infringe

33the entrenched implication of freedom of political discourse. In this regardthere is already at work a convergence of the legal doctrine of freedom of themedia as subservient to the human right of freedom of speech, the human rightto privacy and the Constitutional freedom of political discourse.141. There is also a continual convergence of court practice with ethical practicerequirements. Whilst this influence of court practice and rules on ethicalstandards is obvious, this is ultimately a legal duty owed by the practitioner tothe court. The court imposed requirements for pre-commencement genuinesteps or certification of reasonable prospects of success mould and merge withthe enforceable disciplinary standard expected of a legal practitioner.W. Convergence and the administration of justice142. Financial razor gangs trying to improve public budgets rarely regard the legalsystem as being immune from assessment by reference to economic factors ofefficiency, productivity, cost and value-add modelling. The administration ofjustice does not readily permit an evaluation based on accounting standards.What is the cost of justice – it is the price of democracy.143. There will always be pressures to appoint fewer judges, create barriers or feeimpediments for access to courts, create second-tier non-court resolution and tolet the infrastructure for administration of justice run down. As stated abovejustice is in fact an application of the rule of law that is only administered bycourts.144. Rhetoric or labels for second tier dispute resolution systems cannot and shouldnot be mistaken for being court administration of justice. The importance ofjudicial independence and the public confidence it justifiably enjoys shouldnever be undermined or borrowed by attempts to converge courts into tribunalsor to blur the distinction between the same.145. Reasonable public access to the court system is essential and pressures toconverge the justice system into a blended hotchpotch of tribunals, hybridcourts and composite courts is unlikely to enhance public comprehension andconfidence in the administration of justice by courts.

34X. Convergence and legal logistics146. To describe the provision of legal services by lawyers under the heading oflogistics may cause disquiet given the key function performed by lawyers in theworkings of the court system and the role as servants of the court. Howeverlawyers are as essential for the working of the courts as the court staff, theadministrative support, the court library services, the court reporting servicesand the court security as well as the facilities and infrastructure to accommodatethese persons and the necessary supporting technology, equipment, internalorganisational structures for advancement of the judiciary and external judicialcollaboration as well as legal education. Moreover the servants of the rule oflaw include not just judges, lawyers, court appointed functionaries, police,politicians, the defence force and the supporting public service. All havedifferent functions but all perform essential roles in the maintenance of theCommonwealth of Australia and the rule of law.147. We currently have throughout Australia an amalgam of three types of lawyers,solicitors, barristers, barristers and solicitors. International trading partnerexpectations and trade agreements are likely to create pressures for a fully fusedlegal profession. On any view the potential consumer confusion from a partialloss of the trade mark barristers that has occurred in most States means thatthere should either be clear and preserved distinction or a convergence oflawyers into a single named servant of the court. The enhanced efficiency fromskilled barristers assisting the court in disposition of heavy case loads stronglyfavours retention of a clear division. However the forces of convergence mayultimately align the Australian lawyer with the single category of lawyers foundin our trading partners.148. Another issues facing lawyers is the multi-disciplinary convergence andpressure for a hybrid-lawyer who can change hats across the spectrum ofconsumer, commercial or Government interests. We already have the listed lawfirms and incorporation of barristers and barrister partnerships/employmentcannot be too far off, if the Bar is to remain healthy and vibrant. Notinfrequently there is a Dead Sea of conservatism that stultifies change fromwithin the profession.

35149. Business and ethical conflicts are not beyond reconciliation for listed law firmsand ultimately the same reconciliation must apply to barristers. This is not todiminish the voices calling for the need to recognise the higher and importantduties owed as a servant of the rule of law to the administration of justice andthat this higher duty must never be allowed to give way to self or businessinterests. Ideally no scope for conflict would exist for any lawyer howevernamed but cost efficiency and market forces do have a role for provision oflegal services and reform of business structures is inevitable. Ethical standardswill not be impaired by business structure reforms if the higher duty touched onabove as a servant of the rule of law is squarely recognised and given effect.150. Changes to the recognition of lawyers as Senior Counsel are also matter that islikely to lead to a national scheme that unifies the system for selection of SeniorCounsel. Eventually it may be that both solicitors and barristers becomeeligible for appropriate recognition of seniority and expertise by appropriatetitle. A key to any such system is continued judicial input as that is essential toensure that any such recognition advances the administration of justice.151. Another issue in this regard is advocate robing and whilst views may differ, it isat least likely in all federal matters that legal practitioners should be entitled towear the same attire particularly in criminal jury trials.152. Another part of this legal logistics is the teaching of students and lawyers andservicing of the needs for all of ongoing legal education. Here the free legalinternet is the most valuable source of legal education. Further free legalnetworks ensure public catharsis of all judicial reasons which is very important.It is also important that barriers to entry to the legal profession be confined andthat steps be taken to improve international competition in the legal servicesmarket.Y. Convergence and composite courts and judges153. Many a judge has opined as to the desirability of being able to engage inconciliation or mediation of the dispute. A composite judicial office would be achameleon creature able to change hats and resort to the magic of mediation orother alternative dispute mechanism perhaps including arbitration.

36154. The potential conflict of role is no doubt well able to be addressed by fiercelyindependent judges but that does nothing to overcome public misconceptions ofalternate judicial hats. Whilst there are procedures for judges to be assisted byindependent experts it is the judge and the judge alone that exercises judicialpower. The brethren that assisted in maritime disputes in the UK are notcapable of application to the integrated court system in Australia.155. Another source of interest for composite judges is the international judge whowishes to cross-sit on the court of another country and provide similarreciprocity for foreign judges in Australia. Whilst international comity andfertilization of judicial goodwill, techniques and methods are much to be lauded,there is a real danger in any relinquishing of the strictures of judicial power inthe hands of the independent judiciary. This is not a xenophobic reaction to acase-specific or part-time commission being conferred on a foreign judge whosedecision would be subject to ordinary appellate review. Rather the objectionarises out of the implication as to the Constitutional requirements for fitness ofoffice of those who exercise judicial power. Section 44 of the Constitution setsa standard of fitness for representative parliamentary office and this hasimplications for the judicial branch of government and the factors relevant tothe security of office entrenched by s72 of the Constitution.156. There are minimum standards of judicial independence protected by theAustralian Constitution and, although yet to be properly developed, minimumprotections and rights for the judiciary. Arguably a foreign judge sitting on anAustralian court creates a sovereignty conflict and is incompatible withAustralia's legal system.157. It may be that the advancement of technology pushes further the virtual courtsand notional virtual judicial services into new forms of streamlined court access.Whether these virtual courts might become known as hybrid courts or hybridjudicial officers is a pressure that may emerge from alleged court efficiency andinnovation. Neither computer programmed justice nor anonymous hybridjudicial officers are compatible with judicial accountability and the preservationof public confidence in the integrated court system. The hybrid judicial officermight wish to undergo a metamorphosis from judicial officer to mediator toarbitrator to neutral evaluator or other new dispute resolution role.

37158. It is here that it should be said that alternative dispute resolution systems are notfungibles for court based determination of controversies. The rights baseddetermination of the court should remain protected by independent judicialofficers that cannot become hybrid judicial officers. It is not acceptable to havea judicial officer able to wield judicial power one day and commercial, businessor executive power the next day. Multi-disciplinary judicial officers do notaccord with the independence required by Chapter III of the Constitution andthe need for preservation of public confidence in this essential Constitutionalinstitution.159. Part-time judges, limited duration, case-specific and acting judges have thepotential to raise issues as to whether incompatible with Chapter III. Whilstflexible working hours and flexible part-time judicial service might beacceptable where there is adequate independence and security of tenure thesame concepts are more difficult to apply to appointments of limited duration,case-specific or acting commissions. No doubt short term contract employmentand deprival of independence by want of appropriate security of pensionentitlements might appeal to the economist this creates insecurity of office andundermines judicial independence. These insecurities are likely to beantithetical to the administration of justice and do not advance or strengthenpublic confidence in the integrated court system.160. What amounts to adequate independence and security will no doubt bedeveloped by further Constitutional litigation however it would be surprising ifthe current state of disparity of tenure between Chapter III justices is not unifiedinto a common minimum standard. It is also difficult to see how that commonminimum standard for Chapter III justices does not require a public fundedwage-based pension for life. The current law that appears to permitprivatisation by the Commonwealth of its liability for security of judicial tenureby only providing superannuation contributions during judicial office for someChapter III justices seems questionable.161. It is difficult to see why the forces of legal convergence will not ultimatelyrequire the same standards for security of tenure and independence for alljudicial officers within the integrated court system. That convergence is likelyto cause a revisiting of the current law which effectively permits the

38Commonwealth to terminate any liability for security of tenure upontermination of office. Whatever the minimum standards may be for judicialindependence there will remain a pressure for equality of those standards anduniformity of essential Constitutional protections for all holders of judicialoffice who exercise powers under or by virtue of Chapter III of the Constitution.162. Another overlapping issue is the funding and resourcing of the courts by theexecutive arm of government. Economic restrictions on the support staff forcourts may give rise to an impediment in the court exercising its judicial power.There is a minimum level of resourcing that must be protected by Constitutionalimplication to preserve the capacity of a court within Chapter III to exercise itsjurisdiction. The preservation of courts within Chapter III as Constitutionalinstitutions will no doubt give rise to a similar minimum standard test indetermining Constitutional adequacy as the minimum standard of remunerationfor judicial independence.Z. Conclusion163. Legal systems around the globe are experiencing the same forces ofconvergence as all other areas of commerce, democracy, humanity and theenvironment. The shrinking separation of people around the planet bycommunication and transportation are revealing how much more we have incommon than the fear and ignorance that divides people. The convergence ofbusiness entities, the unification of market activity, the blurring of horizontal,wholesale and retail markets, the accessibility of information, the developmentof democracy and the overlap of needs and interests of humanity with ourenvirons are all advancing legal convergence. Differing views may be held asto the significance of legal convergence but its reality is upon us and promotinga greater understanding of its significance for the development of law and legalpolicy is much to be encouraged.A W Street SC26 March 2013