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From the president: The next chapter?

Every Issue

Cite as: (2008) 82(12) LIJ, p.4

Practitioners have much to contribute to a discussion on best practice in the legal profession.

And so we now have Justice Statement 2, signifying a commitment on behalf of the Victorian government and Deputy

Premier and Attorney-General Rob Hulls to an ongoing process of reform of our criminal justice and civil justice systems.

As the process unfolds and serial Justice Statements are delivered, several things become clearer. It seems that from the government's perspective the justice system is seen as a cost to government and thus the community. With that we take issue.

Rather, the rule of law and a properly resourced justice system is an enabler of a civilised and fair society and a foundation of a vibrant and growing economy. It's an investment in our future prosperity and security. That's not just our opinion; astute economists have also made these observations.

The subtext, and occasionally the overt text, of the government's pronouncements seems to be that lawyers get in the way of justice and so the priority should be to design systems that circumscribe and limit the role for the legal profession.

Put otherwise, we are told that the civil justice and criminal justice systems are not there to serve the interests of the legal profession any more than the health system is there to serve the interests of the medical profession.

At times our Attorney-General is given to bald statements.

At a recent dinner to celebrate the 25th anniversary of Victoria's Director of Public Prosecutions, he spoke of the need for cultural change in the broader profession and said: "The role of government is to provide adequate resources and the legislative framework - the tools for a better system. It is for the trade's practitioners to seize them and create better results for the population they are engaged to serve".

He then went on to observe that: "Victorians - those for whose benefit the system exists - deserve better and they know it. The law should not be and should not be seen to be a parlour game for some more interested in ritual than reform".

So one interpretation is that legal practitioners are characterised by the first law officer of this state as carrying on a trade and indulging in self-interested, ritual-laden parlour games. Perhaps it is no surprise then that the 35 or so Justice Statement 2 projects, including an additional project added during the course of a press release, were delivered without much meaningful consultation and limited detail of their resourcing and real world consequences.

Despite the Attorney-General's comments, it's important that we focus on the substance rather than the political atmospherics. In principle, and it barely goes much beyond broad principle, Justice Statement 2 makes sense and has the broad LIV support.

It is appropriate for legislation to be the subject of regular review and modernisation - is that not to be expected of government? It is appropriate to focus on the protection of rights and to get the balance right between the interests of offenders and victims in the criminal justice system - this is never an issue that can be let rest. It is proper to look for ways of reducing the cost of justice and to work towards greater efficiency in the resourcing of the court system - there are always opportunities to do things smarter.

However, our in principle endorsement comes with a significant caveat.

It is easy to invoke broad principle and to make general statements. The real task, the greater challenge, is to make sure that when change is proposed the full implications are addressed and the resourcing issues are considered. It is in this area that Justice Statement 2 so far falls short.

For each change in the trial process, for each legislative review, for each bold initiative there are resourcing and practical implications that can only be fully addressed in consultation with those most familiar with the system, those lawyers who deal daily with its practical implementation.

Sadly, there hasn't been the opportunity for the necessary level of discussion with the profession in the lead up to Justice Statement 2. We accept that high level briefings were provided on principles, yet the detail was lacking.

Justice Statement 2 should be treated as the beginning of a conversation rather than the end of one. That conversation must include the resourcing implications of each proposed initiative as in the absence of that real world analysis there is the danger that change could produce unintended and regrettable consequences. That conversation must address the long overdue lack of investment in modern court facilities at the superior court level. It must also address the resourcing deficiencies of our legal aid system which languishes in an impoverished state.

We look forward to that conversation.

Daily, those of us at the coalface encounter and bear witness to the fact that lack of proper resourcing of our civil and criminal justice systems generates dysfunction and cost to the community at large. It's time for our Attorney-General to recognise how much legal practitioners can contribute to achieving best practice in our justice system.

There is an old Chinese curse, "May you live in interesting times". It is reportedly one of three such curses, the other two being, "May you come to the attention of those in authority" and "May you find what you are looking for". When it comes to our justice system in Victoria, I am content that we be thrice cursed. The community expects it of us.

This marks my last President's Page. One of the great privileges of being LIV president is to lead an organisation with a deeply entrenched and rich tradition of intellectual giving to the profession and the broader community and thus to participate in the important conversations of a civilised society. Next year marks the LIV's 150th anniversary of its establishment and the beginning of that proud tradition. I hand over to my successor Danny Barlow in the confidence that he is equally proud of our tradition and committed to its preservation and enhancement and the welfare of our almost 14,500 members. I thank members for the opportunity to play a small part in our proud history and the LIV staff for their support.

Anthony Burke
President, Law Institute of Victoria

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