Justice Patrick Keane: Governor-General's Prize commendably ahead of the game

Remarks at a reception for the presentation of the 2015 Governor-General's Prize
9 March 2016
Government House, Canberra.

Your Excellencies, the Governor-General and Lady Cosgrove, Major-General Jeffrey, Your Honours my colleagues, Vice Chancellors, Ladies and Gentlemen, This year's essays ranged over a variety of topics of legal historical interest.

Over the last four decades there has been, in almost all of the law schools where the common law is taught in Australia, a shift in emphasis away from the teaching of legal history. This shift favoured the development of problem solving skills and critical reasoning over the inculcation of an appreciation and understanding of the historical development of our law.

No doubt, the shift in teaching emphasis produced lawyers as skilled in the arts of legal argument as those who have preceded them. But sound solutions to legal problems are not apt to emerge from the application of the logical and rhetorical skills, of even the most talented debaters, as if the exercise were a matter of first impression in each case.

While there is no doubt that the law must evolve to meet changing circumstances, continuity and regularity are fundamental values which inform the rule of law. Real justice requires that like cases should be treated alike. There needs to be a good and sufficient and apparent reason why today's case, which looks very much the same as yesterday's case, should be decided differently.

Proponents of the critical legal studies school have a special perspective on the development of the common law. In their view, the "[g]reat cases show how the law develops by breaking with its past"1.

But, with respect to those who share that view, the resolution of a legal problem between the State and a citizen or between citizens should not be a process that starts afresh each time a   lawyer is called upon to address a legal problem. If the common law were nothing more than today's correction of yesterday's error, then there would be little reason to value it, and no reason to fight for it.

But I don't want to argue the respective merits of these competing views this evening. The only points I wish to make are, first, that the debate about how the law does, or should, develop is important. Any lawyer worth his or her salt should have some interest in, and understanding of, what the common law is and ought to be. The second point is, that all sides of the debate depend on their ability to marshal arguments derived from where the law has come from.

One is unlikely to understand the institutional responses of our legal system to the issues which challenge it today, without the benefit of the perspective that hindsight provides. That is so, whether or not one is sympathetic to the critical legal studies post-modernist view or the more traditional view.

And the good news is that the law schools around the nation are now beginning to return the study of legal history to its rightful place in the curriculum.

This contest, the Governor-General's Prize, has, however, been commendably ahead of the game. The great value of this competition is that it challenges students to look at where the law has come from in order to express a view as to where it should go.

In the case of this year's cohort, each of the essays of the finalists was thoughtful and stimulating as the essayists took the opportunity to explore some of the recurring themes associated with ideas of good government as they have developed in Western thought, and more particularly in   the common law tradition, a tradition which had its first moments of self-consciousness in the decades before Magna Carta, the 800th anniversary of which we celebrated last year.

The judging panel consisted of the Hon Dame Quentin Bryce AD CVO, Professor Peter Gerangelos of the University of Sydney, Mr George Harris of the law firm Baker & McKenzie, and me. The work of organising the competition was performed admirably and effectively.

I should say on behalf of the other members of the judging panel that our task, difficult as it was, was no hardship.  It was a pleasure to read each of these essays.  It was particularly encouraging to see that the country's future is in the thoughtful hands of our younger fellow citizens.

  • Sally Andrews of the University of Sydney — Was commended for her essay which addressed an aspect of "the history of the rule of  law in England, Australia and Papua New Guinea". Her essay discussed the relative significance of Magna Carta and the Act of Settlement as attempts to entrench the rule of law in legal systems which have inherited the common  law  tradition.  Ms Andrews' family has links to West Papua, and this inspired her to research the rule of law and the process of decolonisation in Papua New Guinea, to compare it with the history of New South Wales, and to note the success or rather perhaps lack of success of the rule of law   in PNG.
  • Tesla Kavanagh of Deakin University — Was commended for an essay on the history of the right to trial by jury, and its protection in the Australian Constitution. The common law tradition placed much faith in the jury system even before Magna Carta recorded the entitlement to trial by one's peers. Ms Kavanagh's essay noted the somewhat indeterminate scope of the constitutional guarantee of the right to trial by jury in s 80 of the Constitution and its dependence, in practical terms, on the choice of Parliament to determine that an offence must be tried on indictment.
  • Travis Shueard of the University of South Australia — Was commended for his essay which addressed the question, "Was Athenian democracy more democratic than Australian democracy?" Although not a formal student of ancient history, he has a great interest in it, which prompted him to think about connections between topics ranging from the trial of Socrates in ancient Athens to compulsory voting in contemporary Australia. His essay analysed and compared the institutions and cultural practices of Periclean democracy with our constitutional arrangements, making the point that what we may have lost in democracy we make up for in stability. 
  • Jackie Lobban of the University of New England — won third place. Ms Lobban was struck by differences between how she and her peers engage with democracy, and this provided the impetus for analysing the results of the Power of 1  survey about voters’ attitudes to democracy, leading her to address the challenges for Australian democracy posed by the alienation or disillusionment of Australian youth with contemporary politics and the opportunities for re-engagement provided by social media and the two-way communication and direct participation facilitated thereby.
  • Robert Size of the University of Technology Sydney —won second place. Mr Size's essay considered aspects of the drafting of the Australian Constitution and the influence upon our founders of the American example. In particular, he drew on the Constitutional Convention Debates of the 1890s to consider the reasons why the framers   of the Constitution decided to include in the Australian Constitution only certain aspects   of the 14th Amendment to the US Constitution which guarantees to all citizens the equal protection of the laws.  Mr Size became so captivated by the Convention Debates that he   is now contemplating graduate research on the topic.
  • Marcus Roberts of the University of Melbourne —won the George Winterton Cup for first place. Mr Roberts wrote an essay about the significance of the quote, "I disapprove of what you say, but I will defend to death your right to say it" (famously but wrongly attributed to Voltaire) for the discussion about the Racial Discrimination Act.  He has spent many   years living abroad and he was moved to write his essay by reflecting upon debates that   he had witnessed both in Australia and overseas. His essay, drawing upon the history of ideas in pre-revolutionary France and the nineteenth century English political theory of John Stuart Mill, is a sophisticated appreciation of the competing claims of the indispensable rights of free speech and the social importance of attempts to lessen the adverse effects of hate speech on individual dignity and equal participation in the life of the community.
1 Allan C Hutchinson, Is Eating People Wrong? Great Legal Cases and How They Shaped the World, (2011) Cambridge University Press at 220.