What it means to be a member of a profession: opportunities and responsibilities for lawyers to make a difference
Professor (Emeritus) Sally Walker
Thursday, 15 November 2012
ECU Joondalup Campus
Introduction
I acknowledge the Noongar people, the traditional custodians of the land on which we meet. I pay my respects to their elders past and present. I thank Professor Hayward for her welcome to country.
I am truly delighted to deliver this Oration at this University named after Edith Cowan, the first woman to be elected to an Australian Parliament. Edith Cowan was responsible for a private member's bill that became the Women's Legal Status Act 1923. This Act provided that a person should not be disqualified by sex from: exercising any public function; holding civil or judicial office; practising law or entering any other profession.
Today I am going to speak about practising law or any other profession, but mainly about law as a profession.
Edith Cowan's pioneering work in this area is of particular significance to me in my current role as the Secretary-General of the Law Council of Australia. Edith Cowan was a tireless worker in the pursuit of social justice, human rights and the rule of law, which are core objectives of the Law Council of Australia.
Although I am going to refer to the work of the Law Council, this speech represents my own views rather than those of the Law Council of Australia.
My final preliminary point is to say that I am delighted to be delivering the Vice-Chancellor's Oration. Your Vice-Chancellor, Professor Kerry Cox, is a person for whom I have the utmost respect and admiration and I am pleased to count him as a friend.
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When I took up my role at the Law Council, which represents the legal profession at the national level, I spent some time thinking about what it means to be a member of a profession.
Like the Gen Y students I once taught, I commenced with a Google search and inevitably came up with Wikipedia's contribution which is quite helpful. It defines a profession as
"a vocation founded upon specialised educational training, the purpose of which is to supply objective counsel and service to others, for a direct and definite compensation, wholly apart from expectation of other business gain."1
That is not a bad definition as it points to some of the important features of a profession. First, there is the reference to a vocation. While the term vocation originally had religious overtones, it is now accepted that it encompasses any occupation to which a person is specially drawn. Leading lawyers certainly see the practice of law in this way. The most recently appointed High Court Judge, Justice Stephen Gageler once said:
"Law is what I do and law is all I do. Law is my field of expertise and my zone of comfort."2
The Wikipedia definition of a profession refers also to 'specialised educational training'. Professional associations specify the particular knowledge, skills, and competencies that a member of the profession must gain - usually by way of a university degree - and maintain by way of continuing education. But most professions also have a special kind of 'apprenticeship' associated with them whereby experienced members of the profession train the next generation of the profession, usually without financial reward. This is especially evident in hospitals where consultants train registrars and registrars train interns. I am old fashioned enough to lament the phasing out of Articles of Clerkship for lawyers, but I know that the best senior solicitors, barristers and judges will continue to pass on their wisdom, gained by experience, to the next generation.
The next reference - to the purpose of a profession being 'to supply objective counsel and service to others, for a direct and definite compensation, wholly apart from expectation of other business gain' - may not accord with everyone's experiences or expectations.
So far as people's experiences are concerned, lawyers often deal with circumstances that expose heartache and raw emotion. They can be caught up in events in which it is hard to see anyone really being satisfied with the outcome.
Expectations are, I think, influenced by portrayals of lawyers in movies and television series. They are either clever and good looking or ruthless and good looking - at least there is a common feature.
Members of a profession are bound to adhere to certain ethical standards that go beyond the personal or moral duties of the individual. Being part of the legal profession means adhering to a range of professional rules and standards that not only govern who can be admitted to become a legal practitioner, but also imposes standards of conduct and requirements for ongoing training, among other matters.
What I have come to appreciate in the time that I have worked at the Law Council is that often it is the lawyers 'on the ground', working with individuals or advising governments that have the best opportunity to make sure that our laws and policies work well and work fairly. Through bodies such as the Law Council of Australia, they can raise the alarm where rights are being infringed and they can call for change. This is the type of work that gives the legal profession its character and engenders respect.
In my address today, I want to share some ideas about:
- What it means to be a member of the legal profession in Australia
- What responsibilities lawyers have to promote human rights and uphold the rule of law
- How we can use the law and our legal skills to make a difference
Explanation of Key Terms
Before I begin to address these three matters, I want to explain what I mean by 'human rights'. I am using this term to describe the rights in the international Conventions to which Australia is a party. These include the International Covenant on Civil and Political Rights and the International Covenant on Economic, Cultural and Social Rights.
These Conventions include rights that many Australians take for granted, but are integral to our wellbeing and dignity, such as the right to liberty and security of person, freedom of movement, the right to privacy, the right to education and to adequate health care, and the right to work. "Human Rights" also includes other more specifically legal rights such as the right to a fair trial, which includes the right to legal representation and the right to know the case against you, and the right to be treated equally before the law.
These rights overlap with, and support the notion of the 'Rule of Law'. The Law Council has attempted to outline a number of principles that it considers to be essential to the idea of the 'rule of law".3 These include:
- The law must be both readily known and available; it must be certain and clear.
- The law should be applied to all people equally; it should not discriminate between people on arbitrary or irrational grounds.
- All people are entitled to the presumption of innocence and to a fair and public trial.
- Everyone should have access to competent and independent legal advice.
- The Judiciary should be independent of the Executive and the Legislature.
- The Executive should be subject to the law and any action undertaken by the Executive should be authorised by law.
- No person should be subject to treatment or punishment which is inconsistent with respect for the inherent dignity of every human being.
- States must comply with their international legal obligations whether created by treaty or arising under customary international law.
What does it mean to be a member of the legal profession in Australia
The Australian legal profession is changing in terms of who we are, what work we do and where we do it. Many people who hold law degrees have not been admitted to practice as legal practitioners, but are using their legal skills in a wide range of careers. These people are using their knowledge and understanding of the rules and operation of the law to make a contribution to commerce and other aspects of society beyond the practice of the law - and this contribution should be recognised and celebrated.
Notwithstanding this, I am keen to talk to you about the practising legal profession - that is those lawyers who have been admitted to practice or are providing legal advice to governments or other organisations.
Some recent research conducted by Urbis on behalf of the Law Society of New South Wales reveals that, in 2011 there were around 59,000 practising solicitors in Australia, with some 7% or about 4,000 of these registered in Western Australia.4 What would Edith Cowan make of the gender mix of these lawyers?
In 2011, 54.6% of Australia's practising solicitors were male and 45.4% female. The ratio of female to male solicitors is higher in the government and corporate sectors: in the government sector, 57.5% are female and 42.5% male; it is higher still in the corporate sector, 58.3% female and 41.7% male. Males are, however, significantly more strongly represented than females in private practice - 59.5% male, 40.5% female.5 Three quarters of practitioners work in private practice; only 14.8% were working as corporate solicitors and 9.3% working for the government.6
I think Edith Cowan would consider that, although women are not disqualified by reason of their gender from practising law, there are more subtle disqualifications at play. The legal profession has a way to go to achieve gender equality in private practice. Given that more women graduate from universities with law degrees than men, it is important that we understand why women do not stay in the practising profession. The Law Council is embarking on a study to ascertain the reasons for this.
The Law Society of NSW also asked Urbis to prepare a report on the predicted characteristics of NSW solicitors in 2015.7 This research suggested that the proportion of women in the profession is projected to continue to increase, as is the proportion of solicitors working part time - while the proportion of the profession working as private practitioners is predicted to drop.8 This suggests that the legal profession is set to continue to diversify - both in terms of who we are and what work we do.
As I said earlier, many people have inaccurate or distorted perceptions of what lawyers do, based on particular personal experiences or popular images of lawyers in the media. These perceptions often centre around the idea of the lawyer as a court room advocate and often oscillate between the idea of a lawyer as a 'hired gun' and twister of truth, motivated by financial reward - and the lawyer as a hero, the self-sacrificing champion of the underdog and the bastion of justice.
In terms of Australia's Most Trusted Professions, the Reader's Digest Trust Poll for 2012 placed lawyers at 29, marginally ahead of Journalists, Taxi drivers, CEOs, Real Estate Agents and sex workers, but quite a long way behind Chefs, Hairdressers and Meteorologists.9 What lawyers do most of the time is at neither end of the hired gun and hero extremes. Most lawyers are problem solvers. They do more than just provide legal advice about a certain topic to a client for a fee - they use their professional knowledge to analyse the law and the facts; they use their communication skills and strategic thinking to provide advice to a client about their legal rights, their legal and non-legal options to resolve their dispute or to improve their compliance with the law or to meet their corporate or organisational need.10
But being a lawyer is more than just being a problem solver - which brings me to the next issue:
What responsibilities do lawyers have to promote human rights and uphold the rule of law
Members of a profession are bound to adhere to certain ethical standards that go beyond the personal or moral duties of the individual. Unlike members of other businesses or industries, members of a profession should be motivated by more than self-interest or financial reward. Please do not misunderstand this assertion. I am not suggesting that members of other businesses or industries are all motivated by self-interest or financial reward. Neither am I saying that no lawyer is ever motivated by self-interest and financial reward.
What I am suggesting is that the community is entitled to have an expectation that members of a profession provide an essential service to the community and seek to contribute to the wellbeing of society.
Particular attributes apply to the legal profession. In particular, members of the legal profession are independent from Government, and are required to adhere to dual duties to the court and to the client. As officers of the court, legal practitioners are duty bound to uphold the rule of law, and the administration of justice. Lawyers are also duty bound to fearlessly promote the interests of their client within this framework.
These obligations inform the ethical framework that helps to preserve the integrity of the justice system, which also includes duties to respect other lawyers.
Being part of the legal profession also means adhering to a range of professional rules and standards that not only governs who can be admitted to become a legal practitioner, but also imposes standards of conduct and requirements for ongoing training, among other matters.
In many ways these rules define how the profession works and how it is seen by the rest of the community. The fact that these professional rules are developed by the profession preserves the independent nature of the legal profession in Australia. This means, for example, that lawyers can bring cases against the Government, even cases that embarrass the Government, without fear of any negative consequences for their career. As an independent profession, lawyers can - and indeed should - represent even the most unpopular members of the community without their personal reputation or character being tainted by that association. It also means that lawyers can advocate for changes to the law or government policy; they can provide alternative advice to governments or parliamentarians.
This independence is both a tool for the promotion of the human rights of others and the realisation of an essential component of the right to a fair trial. Its significance has been recognised across the world through the United Nations Basic Principles on the Role of Lawyers - which provides a kind of global set of rules that should be observed by governments that are serious about their international obligations - and includes that:
"…protection of the human rights and fundamental freedoms to which all persons are entitled...requires that all persons have effective access to legal services provided by an independent legal profession."11
Over the last decade, the Law Council has been working to encourage national consistency in the standards and 'rules' applying to the legal profession, and has been working with the Commonwealth Government and Attorneys-General from the different States and Territories across Australia to develop national uniform legislation designed to facilitate one set of rules and standards that would apply to all Australian legal practitioners, regardless of the jurisdiction in which they operate.
Regardless of the national consistency of the rules and standards governing the legal profession in Australia, as an organisation, the Law Council provides a platform from which legal practitioners can speak with one voice on matters of concern and interest that transcend jurisdictional boundaries. I see the Law Council's work helping to promote the collegiality of being a member of the profession, as well as providing some further opportunities for the legal profession to continue to improve the law.
So, just to recap - being a member of the Australian legal profession means being empowered, not only by skills and knowledge, but by independent professional status, to uphold the rule of law and the administration of justice, to protect and promote the rights of others, and to ensure that the law is working as intended and as fairly as possible.
Which brings me to the next question:
What opportunities do lawyers have to promote human rights and uphold the rule of law?
Bringing public and political attention to individual breaches of human rights is often a highly effective way to highlight problems with the law, or in the way that it is being applied and understood by the executive branch of Government. Litigation can help to clarify the boundaries on the use of executive power - such as the power to designate offshore processing of asylum seekers.12 It can also highlight how strict compliance with the law can lead to unjust or unfair results or undesirable social outcomes, or infringe upon the human rights of the individual. This often results in a response from the Parliament and a change in the law.
However, this type of high profile litigation work is really only the tip of the ice berg in terms of protecting and promoting respect for human rights and upholding the rule of law.
This contribution occurs through lawyers helping to define and characterise a dispute or a problem as having a legal character, advising people about the content of their legal rights, helping people exercise or enforce these rights, or protecting people from unjustified interference with their rights.
Legal practitioners also give meaning to the idea of equal access to justice by representing unpopular clients or unpopular causes, or through offering services pro bono. Professional associations such as the Law Council of Australia and the Law Society of WA and the WA Bar Association also assist in giving meaning to the right to legal representation by lobbying government to increase funding to legal aid commissions and community legal centres. These agencies provide specialist legal services to many vulnerable Australians.
Lawyers also help to ensure that there is compliance with laws designed to protect human rights and rule of law principles. They do this by providing advice to individuals and organisations about how to comply with their legal obligations. This could include giving advice to employers to ensure that they comply with anti-discrimination laws, or providing advice to government departments about how to ensure that principles of procedural fairness are followed by administrative decision makers.
As lawyers are involved in interpreting, applying and observing the law every day, they are also in a strong position to identify those laws which fail to protect and promote people's rights or which operate to directly breach those rights.
Often the legal profession is the group that 'raises the alarm' and alerts the wider community that certain laws are operating inefficiently or unfairly.
For example, lawyers who work regularly with Muslim communities may become aware that some members of these communities are being approached and questioned by ASIO, in circumstances where they feel compelled to cooperate and answer questions, even though ASIO is not exercising any of its special powers to question and detain. The lawyers can draw attention to this issue to the relevant government department and to the relevant oversight bodies, such as the Inspector General of Intelligence and Security, and help to generate practical solutions. Lawyers may also raise questions about the scope of ASIO's questioning powers, and the disproportionate impact this might be having on particular sections of the community.
Turning now to consider:
How can we use the law and our legal skills to make a difference?
Lawyers make a difference to people's lives in many varied ways. This could be the duty solicitor who assists a young offender to obtain bail while he awaits trial or the barrister who tests a new provision to see if it complies with the concepts underlying our constitutional democracy. It could also be the in-house corporate counsel who helps a multinational adhere to its international obligations to ensure all of its workers are treated and paid fairly, or the government adviser who highlights potential flaws in a policy or proposed law.
But this is not the only way lawyers - or indeed the broader community - can use the law and legal skills to make a difference and promote a culture of respect for human rights and the rule of law.
Anyone who is engaged in the development of public policy or drafting of legislation or the scrutiny of the law, and the legal system, including those working in universities, has an important role to play in identifying any areas of the law that need to be improved, are operating unfairly or have unintended consequences or that fall short of human rights or rule of law standards.
Law Schools and Universities more generally are well placed to undertake the type of research and analysis that is often necessary to provide reliable evidence regarding a problem with the law and to identity possible solutions to that problem.
I note that here at Edith Cowan University, staff and students are involved in work which has the potential to make a significant difference to the content of the law and to the way in which the law is applied. For example, I understand that important research is being conducted into:
- The collection of criminal intelligence from human sources - a research project being conducted with WA Police which looks at how criminal intelligence is obtained from those involved in the criminal world, and aims to build an evidence base regarding the effective management of human sources within policing agencies.13
- Fairness in the Child Support Scheme– a research project that aims to determine what factors influence public perceptions of fairness in relation to the principles on which the Child Support Scheme is based14
- Access and use of information by WA Police - this research aims to investigate the misuse of information management systems by public servants within WA Police and inform the development of effective deterrent, prevention and detection strategies.15
This type of research will be valuable in identifying whether any substantive change to the law is necessary to protect individual rights, or whether there is a need to change the way in which officers of the executive exercise their powers.
At the Law Council, our work involves reviewing and monitoring the operation of Australian laws and legal systems to ensure that those laws are working fairly, consistently and in the manner intended. When we see a problem with a law or a policy, we look for ways to engage with lawmakers to make a change.
Some of the matters on which we are working with the help of our expert committees and specialist sections that we hope will equip lawyers with the tools to make a difference include:
- Generating a culture of observance of human rights16
We think it is vital that public servants have a clear understanding of human rights and how these concepts relate to their work - whether their work involves making decisions about welfare payments or making decisions about visa applications, or whether they are helping to formulate government policy.
We also think that it is important that when courts interpret statutes that they do so in way that gives effect to the human rights contained in the conventions to which Australia is a party. What we would like to see is a legislative requirement that the courts interpret laws in a manner consistent with human rights. This would not only maximise the potential for existing laws to protect human rights, it would also draw attention to laws that fail to meet these standards, and provide an incentive for law makers to think seriously about human rights when enacting legislation.
- Re-thinking our approach to counter- terrorism17
The Law Council has expressed the view to successive governments that Australia should use traditional criminal law concepts and principles to inform our counter-terrorism laws, rather than using "terrorism" to justify a departure from rule of law concepts and to support the enactment of expansive new offences and powers that have not been shown to be necessary and which have a disproportionate impact on human rights.
We have been fortunate to have been able to recently make our views known to the Independent Monitor of National Security Legislation who is conducting a review of some of the most concerning aspects of our federal counter- terrorism laws, such as control orders and preventative detention orders.18 These orders allow police officers to restrict the movement or detain terrorist suspects before they have been charged with an offence, and to place limits on the people they can contact.
The Law Council has argued that these orders have not been shown to be necessary in light of the range of other powers available to police to question suspects and gather evidence about suspected terrorist activity. We have also argued that they infringe rights such as the right to liberty of person, freedom of movement and the presumption of innocence, and are not the least restrictive means of investigating terrorist activity. On this basis we have called for these laws to be repealed.
The fact that we have the opportunity to raise these concerns in public forums is at least in part due to the advocacy of organisations such as the Law Council, who have called for an independent body to examine Australia's counter terrorism laws for compliance with rule of law and human rights standards since the laws were first introduced. As a result of this advocacy, the office of the Independent National Security Legislation Monitor was established. We are hopeful that this form of independent scrutiny will led to a recalibration of these laws so as to lessen their intrusive impact on human rights, and bring them closer into line with traditional criminal principles which we think should be used as the basis of Australia's counter-terrorism legislative response.
- Injecting some fairness into asylum seeker policy18
For many years, the Law Council has been working with successive Commonwealth Governments to try to ensure that Australia's asylum seeker policy adheres to the international human rights commitments that Australia has assumed in the conventions to which it is a party, and that the policy recognises and protects the legal rights of people seeking protection in Australia.
The Law Council opposes mandatory detention of asylum seekers, and opposes offshore processing of protection claims. However, mindful of the fact that both these policies continue to be rigorously supported by the major political parties, the Law Council has been advocating for the incorporation of certain protections and processes into these systems.
For example, most recently, the Law Council has called upon the Commonwealth Government to implement the full range of recommendations made by the Expert Panel on Asylum Seekers in August this year.20 Over and above Australia's obligations under the Refugee Convention not to return asylum seekers to countries where they may be persecuted, this means ensuring that asylum seekers processed offshore have access to legal representation at all stages of the visa determination processes and that they have access to merits review of decisions relating to their visa status. It also means ensuring that vulnerable individuals, such as unaccompanied minors or torture survivors, are provided with adequate protection and services, regardless of where their claims are processed.
Conclusion
Lawyers are uniquely placed to act as the guardians of the rule of law and to ensure that everyone is equal before the law and has equal access to advice and legal representation when they need it.
Lawyers are also uniquely placed to make small, but significant changes in the lives of individuals, by acting as problem solvers and providing independent expert advice which helps others to understand and give effect to their legal rights.
Lawyers are greatly assisted in this role by the other members of the community - whether legally trained or not - who participate in the policy making and law making process, and who draw attention to gaps in legal protections or to areas in which the law needs to be improved.
While the majority of us here today and around the country need never worry about our human rights being infringed, some members of our community regularly experience disadvantage or discrimination or can't access the type of services they desperately need to live with dignity and reach their full potential.
It is for these people that we must continue to try to make a difference - to make sure that the law does not fail to recognise and give meaning to their rights.
Professor (Emeritus) Sally Walker
15 November 2012
1 The Wikipedia reference is to New Statesman, 21 April 1917, article by Sidney Webb and Beatrice Webb quoted with approval at paragraph 123 of a report by the UK Competition Commission, dated 8 November 1977, entitled Architects Services (in Chapter 7).
2 "Beyond The Text: A Vision Of The Structure And Function Of The Constitution" Sir Maurice Byers Memorial Lecture April, 2009.
3 The Law Council's Rule of Law Principles can be obtained at http://www.lawcouncil.asn.au/programs/international/rule-of-law.cfm
4 2011 Law Society National Profile Final Report (July 2012) Prepared by Urbis Keys Young for The Law Society of New South Wales. Available at http://www.lawsociety.com.au/idc/groups/public/documents/internetcontent/640216.pdf As of October 2011, there were 59,280 practising solicitors in Australia. The largest proportion of solicitors were registered in New South Wales (41.4%), followed by Victoria (27.7%) and Queensland (14.3%).
5 2011 Law Society National Profile Final Report (July 2012).
6 2011 Law Society National Profile Final Report (July 2012)).
7 The Solicitors of New South Wales in 2015 (July 2012) Prepared Urbis Keys Young for The Law Society of New South Wales. Available at http://www.lawsociety.com.au/idc/groups/public/documents/internetcontent/025942.pdf
8 The Solicitors of New South Wales in 2015 (July 2012) Prepared Urbis Keys Young for The Law Society of New South Wales. Available at http://www.lawsociety.com.au/idc/groups/public/documents/internetcontent/025942.pdf
9 Reader's Digest Trust Poll for 2012
10 A Lamb and J Littrich, Lawyers in Australia (2007) p. 18.
11 United Nations Basic Principles on the Role of Lawyers, Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990 available at http://www2.ohchr.org/english/law/lawyers.htm
12 For example see For example, Plaintiff M70/2011 v Minister for Immigration and Citizenship; Plaintiff M106 of 2011 v Minister for Immigration and Citizenship [2011] HCA 32; Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41
13 Further details of this research project are available at http://www.ecu.edu.au/schools/law-and-justice/research-activity/projects/current/sellenger-centre-law-and-justice-research/the-use-of-human-sources-in-intelligence-led-policing
14 Further details of this research project are available at http://www.ecu.edu.au/schools/law-and-justice/research-activity/projects/current/sellenger-centre-family-and-family-law-research/public-perceptions-of-fairness-in-relation-to-the-principles-on-which-the-child-support-scheme-is-based
15 Further details of this research project are available at http://www.ecu.edu.au/schools/law-and-justice/research-activity/projects/current/sellenger-centre-law-and-justice-research/misuse-of-the-information-management-system-by-public-servants-employed-within-wa-police
16 An outline of the Law Council's advocacy in this area, and copies of relevant submissions, is available at http://www.lawcouncil.asn.au/programs/criminal-law-human-rights/human-rights/bill-of-rights.cfm
17 An outline of the Law Council's advocacy in this area, and copies of relevant submissions, is available at http://www.lawcouncil.asn.au/programs/criminal-law-human-rights/anti-terror/anti-terror_home.cfm
18 Further information about the Independent Monitor of National Security Legislation's 2012 Review is available at http://www.dpmc.gov.au/inslm/index.cfm, a copy of the Law Council's submission is available at http://www.lawcouncil.asn.au/library/submissions.cfm?
19 An outline of the Law Council's advocacy in this area, and copies of relevant submissions, is available at http://www.lawcouncil.asn.au/programs/criminal-law-human-rights/human-rights/detention.cfm
20 See for example, Law Council Media Release 'Legal safeguards critical in legislative response to asylum seeker recommendations" (15 August 2012) available at http://www.lawcouncil.asn.au/media/news-article.cfm?article=29193EA5-1999-B243-6E08-C19FCCC1654F