Lawyers swarm all over and colonise areas of non-law ... Once an area has been lawyerised there is no turning back ... The hijacking of politics by the courts ... Women judges more compassionate than men in asylum cases? ... Tulkinghorn examines the creation of immigration "law"
Sumption: the problem lies with finding the boundariesIn 2010, the UK's top barrister (recently appointed a top judge) Jonathan Sumption QC, was interviewed by the BBC.
He was asked:
Q: "What do you think is the biggest problem, if there is one, with the English legal system?
A: It's drawing the boundary lines between politics and law."
While some say there is no boundary, most legal scholars favour "underdeterminacy".
US law professor James Maxeiner has written:
"According to the strongest version of the "indeterminacy thesis," known as "radical indeterminacy", law is always indefinite and never certain, any decision is legally justifiable in any case, and law is nothing more than politics by another name... While few American jurists accept a strong version of indeterminacy, most academics, and perhaps most lawyers, believe in a weaker version sometimes termed 'underdeterminacy'. Underdeterminacy means that while the law constrains judicial decision, it does not uniquely determine it."
Arguably, it is the "make business" principle that uniquely determines it, as mentioned in previous Tulkinghorn columns.
Lawyers can spuriously "complexify" an existing area of legal work.
Another way is to "lawyerise" activities that are actually matters of "discretion" or "politics", and which do not contain any "legal" component at all.
Once an area has been "lawyerised", however, those lawyers and judges working in it will be said to be doing (and billing) "legal work".
One example is planning "law". Dr Phil Day, a Queensland planning expert who died earlier this year, wrote an article in 2001 entitled, A case for cutting out the lawyers.
He revisited the subject last year in, The lawyerisation of Queensland's Planning Development and Appeals Process.
Mediation is another non-legal area that has been colonised.
Professor Laurence Boulle of Bond University after noting that:
"The established professions have a record of attempting to colonise new practices and use them to supplement their existing services."
goes on to say ...
"The legal profession has moved from questioning the usefulness of mediation to a position where mediation is largely dominated by the law.
Early on lawyers and mediators were largely unknown and perhaps even antithetical to one another."
Mediation (in truth a non lawyering activity designed to do away with lawyers) is now sozzled with lawyers.
The same goes for arbitration.
SackvilleImmigration is another (originally non-legal) activity that has been over-run by lawyers.
Justice Ronald Sackville of the Federal Court said in 2003:
"Not so long ago, the notion that refugee law could be regarded as a discrete legal subject would have seemed very strange to an Australian lawyer... But as Mary Crock has pointed out, until 1989, when Commonwealth legislation for the first time set out detailed criteria governing the grant of entry permits: 'the admission or expulsion of non-citizens [including those claiming to be refugees] was regarded as a matter of ministerial prerogative and an inappropriate subject for judicial review'."
That effectively meant that politicians (not judges) ultimately controlled it.
After all, judges claim that they don't do politics:
"I view the vote this morning as confirmation of what is, for me, a bedrock principle, that judging is different from politics."
"It's my job to apply the law - my own particular views and politics aren't particularly relevant."
Just as judges don't do politics, ministers don't try cases.
But there is good money to be made in immigration matters - and quite a lot of bad money too (see here and here).
Vanstone: quizzed by policeEven a scrupulously honest immigration minister such as Amanda Vanstone once found herself being quizzed by the police.
Unhelpful newspaper headlines at the time included, Visa ruling came after donation.
To make money, respectable universities (and private colleges) have become people smugglers. A commentator noted in The Sydney Morning Herald in 2008:
"As government funding has declined, universities are increasingly dependent upon international students to survive... Some universities have been the target of allegations that their degrees are little more than extended migration schemes, with the qualifications useful for only the points on the residency application but almost worthless in the employment marketplace."
Subsequently, the government took a few carriages off the gravy train, as the number of overseas students at universities and colleges reached 400,000.
The Age then reported that International enrolments plummet.
As far as the immigration tribunals, judges and lawyers are concerned, their "angle" is to turn immigration "law" into something where just about any outcome is possible, and then to heavily favour would be immigrants, thus attracting applicant business, and keeping the work rolling in.
It can be argued that any tribunal member who does not encourage incoming work is likely to be purged.
Howard: not specific about "we"When Prime Minister John Howard famously said, "we will decide who comes to this country and the circumstances in which they come", not only was that obviously wrong (asylum seekers intially make those two decisions), but he did not spell out which "we" he was referring to.
Since it is only immigration ministers and tribunals that are meant to grant visas, a popular ploy of the judiciary at Federal and High Court level is for judges to claim that they examine only the procedure and legality of immigration visa decisions, not their merits, which they say they always leave to the executive.
"Over the course of the 1980s, the Federal and High Courts turned the notion of ministerial discretion on its head. Where apparently unfettered powers were seen once as judicial no-go areas, by the end of this decade such discretions were regarded as almost open invitations to [judicial] intervention ... the courts became critical of both the way decisions were being made and the substance of the rulings...
While the courts claimed to eschew oversight of the merits of decisions, the grounds of review provided equal scope for scrutinising the relevancy of matters that were taken into account in making a ruling."
Carrick: The Law ReportIf parliament deals judges out of immigration decisions by privative clauses - which forbid courts to review immigration decisions - the courts will simply declare the privative clauses to be unconstitutional.
In 2006 Damien Carrick (on The Law Report, Radio National) interviewed retiring Federal Court Judge Ron Merkel. Damien said:
"I remember at one point Philip Ruddock, when he was Immigration minister, saying something along the lines of, 'Even when legislation is amended (he was talking about migration legislation) the Federal Court judges are always going to try to deal themselves back into the review game'."
Ron Merkel replied:
"I think that really it's a very unfair and unwarranted way of looking at judicial administration of the Migration Act."
Perhaps the only way to properly monitor immigration decisions is to have an honest minister (I am not sure how one guarantees that, other than to rely on the media) who overules the worst excesses of a 'make business' immigration bureaucracy, as in this recent example.
But in that case the minister's decision was overturned and the "reasoning" was:
"The primary considerations, taken together, marginally favour cancellation. The other considerations, taken together, strongly favour permitting the applicant to stay. While I accept the primary considerations generally carry more weight, I am satisfied the visa should not be cancelled."
If a tribunal can do that, it can do anything.
In the US, the New York Times reported the findings of a study:
"One of the most significant factors determining whether a judge would be likely to approve asylum petitions was sex, the study found. Female immigration judges grant asylum at a 44 percent higher rate than their male colleagues."
In 2008 Mary Crock said her "gut reaction" was that similar research in Australia would yield "even worse results".
Admittedly, the High Court sometimes gets its visa decisions right. There was one in 1935.
Egon Kisch could be called a boat person, seeking a visa, but he was also a communist who wanted to give anti-war speeches, and the government wanted to exclude him.
Thomas Dunbabin, editor of The Sun, wrote:
"Jumping ashore, and spraining his ankle in the process, he was promptly put in gaol under the Act which gave the government the right to keep undesirables out.
Friends of the humble and oppressed tested the law, and ... the High Court declared that Mr Kisch must be given his freedom ... a flaw which is to be mended some time or other, when Parliament deigns to sit again.
When the amendments are made we should invite him to jump ashore again to see whether the new Act pleases the High Court any better than the old, or whether the ingenuity of five bewigged heads cannot discover another flaw...
Before responsible government began in this country ... the Chief Justice used to be required to certify that the laws of New South Wales were not repugnant to the laws of Britain... Some of these days a commonsense government may tell the High Court that ... it will be required to examine the Acts which will be sent to it straight from the legislature, to stamp OK upon them, or to suggest amendments which will make them thoroughly legal...
To make court and parliament co-operate in putting out brass-bound, watertight legislation would be such a logical step forward that no Anglo Saxon community would tolerate it. It would not be right for a cabinet to tell the court in conference what it meant by a phrase or a clause.
The only way to find that out is to have a squad of King's Counsel arguing about it for a few weeks. Still, King's Counsel have to live, and we must do nothing to curtail their opportunities."
In 2008 an eminent French judge gave a speech explaining French administrative justice to Australians.
He said:
"We think, basically, that public authorities have specific powers and obligations that require that their action should not be reviewed by ordinary courts... We have two completely separate orders of jurisdictions, having each its own supreme court at its head: the Cour de cassation for the ordinary courts, and the Conseil d'Etat, or Council of State, for the administrative courts.
The Council of State ... exercises ... a double role. It is not only the supreme court of the administrative jurisdiction ... but it also acts, in the mean time, as a legal adviser to the government... The advisory role of the council, which is of the utmost importance in the daily functioning of French institutions, consists in looking into draft bills or decrees having been prepared within ministries to give an advice to the government about their consistency with constitutional law or principles."
In Australia all of that would mean two High Courts: one that handled criminal and ordinary civil work, and one which handled the even more political stuff.
Having got the underlying visa decision right, protecting free speech, the High Court subsequently went disastrously wrong, and effectively said free speech rights didn't extend to people who criticised judges.
Dunbabin and The Sun were held to be in contempt and fined, in today's terms, $4,165 and $16,586.
All five High Court judges deciding the case supported the contempt decision, although Justice Starke thought the fines were excessive.
A Victorian barrister (now deceased) has noted that Justice Starke (who never wore a wig) ...
"When asked by his son why he had been so lenient ... replied, with some misstatement of the precise evidence,
'My boy, if he'd referred to four bewigged old fools it wouldn't have been contempt at all'."