Judging Democracy: The New Politics of the High Court of Australia.
In the past decade, the public profile of the High Court of Australia has achieved greater prominence and its role as an institution of Australian government has attracted significant and recurrent controversy. Debate has largely focused upon changes in the Court's interpretative methodology so as to engage issues previously considered political. Critics of the Court have questioned the legitimacy of the Court's activities and the propriety of the Court in intruding upon legislative and executive functions.
Haig Patapan's book engages these central themes under the title of `Judging Democracy'. In confronting the reality that the Court determines major political questions, the author ambitiously seeks an understanding of the dynamics of the Court's political engagement. In charting this evolution of Australian constitutionalism, questions are raised as to whether the Court's constitutional interpretations and common law decisions evince a coherent and comprehensive democratic vision of the Australian polity. This approach is pursued by the examination in individual chapters of several major areas, such as interpretative methodology, political rights, democracy and citizenship, native title, and the separation of powers. From each of these distinctive subjects the author seeks an understanding of the political role of the Court and the consequences of that role for Australian democracy. The final chapter draws together these findings and assesses the claim that the High Court is judging democracy. The content and methodology of the book accordingly focuses upon the judicial contribution to pressing issues of Australian democratic governance. The book's exposition and analysis extends beyond a mere collation of existing, if divergent, democratic responses by the Court. Its original perspectives have the potential to provide new insights into the ongoing debate surrounding the Court's democratic role.
Chapter 1, `The New Politics of the High Court', identifies the political nature of adjudication by a court of final appeal, an issue considered by preceding academic study of the Court (1) and intimated in the revised assumption of the Mason Court that it no longer `declared' the meaning of the law. (2) Patapan asks whether this new approach provides a coherent interpretative substitute to the methodology abandoned, or whether variables and limitations in adjudication--such as differing compositions of the Bench and whether suitable issues are litigated before the Court within a suitable time frame--frustrate the development of a consistent vision of democracy in constitutional issues. The answers to these questions highlight the influences and constraints upon the Court's ability to impart democratic orientations to a variety of constitutional provisions. The focus of the book then squarely rests upon the adequacy and consistency of the Court's democratic appraisal of constitutional and related questions.
This focus, however, highlights two recurrent difficulties inherent in the book's overall analysis. Firstly, the proposition that the Court should be possessed of a `coherent and comprehensive democratic vision of the Australian polity' (3) is inherently problematic. Such a vision might confirm the contentions of the Court's critics that the Mason Court and, to a lesser extent, the Brennan Court, had a calculated and improper political agenda. The question really becomes one of whether the Court might have a consistent and coherent understanding of concepts which can be seen as embedded in the Constitution, such as representative government.
Secondly, the prominence given to judicial engagement with democracy understates the volatile and changeable nature of the judicial role (4) and shifting judicial conceptions of democracy in a constitutional context. The chapters of the book proceed from the challengeable assumptions, firstly, that the new jurisprudence of the Mason Court was consolidated, and not abandoned, by the Brennan Court; and secondly, that `[t]he changes implemented during that time probably set the essential outlines of the jurisprudence that will be pursued by the current Gleeson Court, and beyond.' (5) A major concern in this respect is that, despite a late 2000 publication date, Patapan does not engage with or interpret the significance that the new membership and temperament of the Gleeson Court (from May 1998) represents to his thesis. (6) Similarly, an argument may be made that `consolidation' of the implied freedom of political communication jurisprudence by the Brennan Court in the 1996 case of Langer v Commonwealth (7) and, more particularly, the 1997 cases of Lange v Australian Broadcasting Corporation, (8) Levy v Victoria (9) and Kruger v Commonwealth (10) has done more, in practical terms, through application of a restricted meaning of `political communication' and an overriding test of proportionality, to atrophy rather than sustain a freedom of political communication sourced in representative and responsible government. (11) These and other critical developments in the Brennan and Gleeson Courts--such as the perceived desirability by both major political parties of appointing judges to the Court of a conservative disposition and the unwillingness of the present Attorney-General, Daryl Williams, to defend the Court and its decisions from political attacks--make it less likely that democratic concepts will animate High Court jurisprudence at the present time. The apparent depoliticisation of the Court's constitutional jurisprudence by way of retreat from, rather than entertainment of, democratic notions as informing constitutional provisions, is itself a statement of the institutional proprieties of judging democracy. Such omissions qualify and therefore diminish the authority of the book's appraisal of how the Court has judged the democratic import of key constitutional provisions.
Chapter 2, `Politics of Interpretation', focuses upon the consequences of the Mason Court's abandonment of the declaratory theory, the advocacy of a dynamic, policy-laden approach to interpretation, and the use of `community values' (12) as a new guide to judicial law-making. This new interpretative methodology is rationalised as consistent with, and an enhancement of, representative and responsible government because it involves a judicial supplementation and modernisation of the law. A pointed criticism is made of the difficulties in determining the content and ranking of community values in the new interpretative methodology. Patapan rightly considers that the Court has failed to clearly identify and articulate the bases from which these democratic choices and emphases of community values must inevitably be made. (13) However, in highlighting the problems of ranking and choice of community values as factors in the democratic aspect of constitutional provisions, some consideration should have been given to the fact that the later jurisprudence of the Brennan and Gleeson Courts, in its disengagement from rigorously addressing these democratic questions in constitutional interpretation, leans towards an earlier interpretative methodology and a significantly more limited model of democratic governance. (14)
Chapter 3, `Politics of Rights', considers the Court's notion of representative democracy as conceived in the implied freedom of political communication cases and its derivation of human rights from international law. The author's appraisal of the Court's development of rights and freedoms is juxtaposed with discussion of both the association of parliamentary sovereignty and liberal constitutionalism with their natural rights foundations, and of political and civil rights proceeding from the will of the legislature and utilitarian foundations. A plausible argument is made that these contrasting foundations have variously informed the Court's articulation of the democratic content of rights. (15) The author's argument is compelling and illuminating in two respects. Firstly, the Court has not clearly articulated these tensions, and secondly, the process of adjudication which occurs when democratic considerations enter into constitutional interpretation inevitably touches upon and must ideally accommodate these foundations.
Patapan then provides an informative summary of the different conceptions of rights, citizenship, authority and legitimacy that each philosophical tradition represents. He observes that an emphasis upon liberal constitutionalism with a rights-based foundation will enhance both the democratic orientation of constitutional legal issues as well as the responsibility and influence the judiciary must then exercise over the questions of democracy in constitutional interpretation. (16) A sound framework of analysis and exposition of these democratic questions is subsequently provided. In particular, the jurisprudence of the Court's attempts to allegedly implement an implied bill of rights and the Court's engagement with international law treaties and norms in circumstances raising human rights issues are canvassed with appropriate depth. The author's treatment of these topics displays a skilful exposition and analysis of the democratic import of the decisions through the prism of the competing philosophical traditions.
On occasion, however, this exposition could have been further refined through closer attention to the detail of some matters which directly influence the Court's relationship with the legislature. For instance, there is a lack of adequate reference to the Human Rights Act 1998 (UK) c 42 as highlighting Australia as the last major common law jurisdiction without a bill of rights, and an insufficient appraisal of the influence upon the Lange judgment of the views respectively expressed by the minority in Theophanous v Herald & Weekly Times Ltd (17) and subsequently by the majority in McGinty v Western Australia. (18) In addition, the author continually adopts a value-laden use of the phrase `representative democracy' that was deliberately replaced by the Court in Lange with the narrower democratic concept of `representative government'. (19) Further criticisms of the text include the need to appreciate that this change in constitutional terminology in Lange arose as part of a constitutionalised consolidation of the common law of defamation; (20) the omission of discussion of the 1999 Teoh Bill; (21) and minimal reference to Kirby J's jurisprudence on the integration of international law norms in the development of Australian constitutional law, (22) of special importance in its potential impact upon perceptions of national parliamentary sovereignty, but also of relevance to common law development and statutory interpretation.
The Court's adjudication of democracy in the context of political participation is of course not restricted to a constitutional freedom of political communication and the influence of international law. Patapan acknowledges this point in the discussion within chapter 4, `Democracy and Citizenship', of parliamentary representation and electoral distribution. (23) These topics are important indicators of the Court's assessment of the constitutional status of the citizen as an elector and representative in a system of representative parliamentary democracy. The strengths of this chapter are found in the detailed exposition of the constitutional requirements of representative government in the decision in Attorney-General (Cth) ex rel McKinlay v Commonwealth (24) and the comparison proffered with the later case of McGinty. (25) The significance of the majority decision in McGinty is accurately propounded as a reversion by the Court to a narrower interpretative methodology in determining the relative value of the franchise and in a reappraisal of the Court's relationship with Parliament in assessing the minimum electoral requirement of free choice inherent in a constitutional system of representative government. The pivotal role of the Court in endorsing a narrow form of representative government, centred upon the requirements of choice, is highlighted and said to emerge from the practical difficulties of adopting a more expansive view. (26)
A more rounded appraisal of the Court's critical role in judging democracy by conceptualising the constitutional requirements of citizen participation in the structures and processes of representative government also demands comprehensive appraisal of the jurisprudence of the constitutional provisions concerning the right of representation, and constitutional protection of the franchise. Section 44 of the Constitution is given fairly peremptory treatment through a brief consideration of Sue v Hill, (27) but important litigation concerning parliamentarians Cleary, (28) Wood, (29) and Kelly (30) is not examined, nor is the 1996 post-election controversy that arose in relation to South Australian Senator-elect Ferris. (31) Similarly, discussion of s 41 of the Constitution is omitted, although the Court in R v Pearson; Ex parte Sipka (32) and Snowdon v Dondas [No 2] (33) has clearly indicated the Court's devaluation of the section such that it is now a spent provision. A discussion of these aspects would have added a further dimension to the author's thesis that the decision in McGinty represents a retreat from the continuing exposition of the fundamentals of constitutional citizenship.
The content of chapter 5, `Native Title and the High Court', allows the author to consider the Court's role in the judgment and construction of democracy from the contrasting perspective of common law assumptions about indigenous rights and the reception of common law in Australia. It also supports a candid analysis of the political response of the Parliament and the Executive to such judgments. The discussion of Mabo (34) is usefully interpolated with themes of civilisation and culture, the rule of law, contrition and restitution, and the distinction proffered between legal and political questions. The discussion affirms that foundational issues of Australian constitutionalism were involved in that case and acknowledges that judicial responses were grafted onto essentially political problems. The consequent influence upon the Parliament and the Executive of the politicised legal issue of native title and sovereignty, and the response, is then raised in a succinct discussion of the Native Title Act 1993 (Cth) and Western Australia v Commonwealth. (35) A lively treatment of these issues as they unfolded in Wik (36) and the Ten Point Plan (37) is also included. (38) The influence of the Court over the opportunities for legislative resolution of native title issues is highlighted in the discussion of Kartinyeri v Commonwealth. (39) If the Court had decided that the legislative `race power' (40) was able to be utilised only for the benefit of Aboriginal peoples, the Court would have created for itself a contentious supervisory role over legislative policy. Similarly, the unpredictability of adjudicative resolution of political issues is exemplified in the failure of the Aboriginal litigants in Kruger v Commonwealth (41) to gain broad judicial recognition of breaches of various implied freedoms, immunities and rights.
The significance of the Court entering the realm of major indigenous political issues is confirmed by passing reference to the adverse reactions of State and federal politicians to the High Court's native title jurisprudence. A further evaluation of this political response is, however, immediately warranted, especially in its influence upon later perceptions by the Court of its relationship with Parliament and consequent changes in interpretative methodology. Instead, the political reaction to the High Court's Mabo and Wik decisions is held over for discussion in the ensuing chapter dealing with the separation of powers. Detailed treatment of this issue in chapter 5 would have exposed the weaknesses in the politicians' complaints. One weakness is the fact that the legislature largely left the Court to resolve difficult questions of indigenous land rights on its own. A second weakness is that the development of the indigenous title jurisprudence within the constitutional framework of an extant but evolving system of common law and parliamentary sovereignty permits Parliament to legislate inconsistently with that common law development. A final weakness is some disturbing and fundamental misconceptions by prominent State and federal politicians of the nature and limits of legislative and executive law-making in a federal system with a written constitution.
Chapter 6, `Separation of Powers', opens with a substantial examination of the different conceptions of separation of powers within the English model of representative and responsible government and the American system of limited republican government. The chapter traces the influence these traditions had upon both the structure and text of the Constitution and subsequently upon the Court's interpretation of it. Patapan identifies the critical issue in this debate as the Court's failure to develop a reasoned reconciliation between the maintenance of an English conception of separation of judicial power with a rejection of a declaratory theory of law-making, and the embrace of a policy-orientated interpretative methodology. (42) A plausible hypothesis is then made that the Court's failure to come to terms with this theoretical question has left it vulnerable to political attack. (43) This hypothesis does, however, credit political critics with a sound grasp of basic constitutional theory, which is a more doubtful proposition.
A more pertinent observation is found in the author's argument that the Court's decisions, primarily in the native title area--but also in civil liberties cases concerning the right to procedural fairness, rights of legal representation, prohibition of Bills of Attainder and substantive rights of due process--are perceived as an institutional challenge to the legislative and executive authority of government. (44) This argument represents a stark example of the author's thesis regarding the Court's judgment of, and contributions to, the construction of democracy. The vehemence of the political reaction to the High Court's jurisprudence might be better understood by considering the enhancement of the individual rights of the citizen at the expense of the scope or exercise of legislative power which the decisions represent, and the shift they effect to a more participatory, as distinct from representative, form of democracy.
This enlargement of the status of the citizen by the Court under a revised system of representative government is perceived by Patapan as exposing the Court to overt political attack and as rescinding the Commonwealth Attorney-General's role in defending and explaining the Court's decisions. (45) Patapan elicits some of this material, but surprisingly omits a series of 1998 and 1999 judicial power cases, namely Nicholas v The Queen, (46) Abebe v Commonwealth, (47) Attorney-General (Cth) v Breckler, (48) Re Governor, Goulburn Correctional Centre, Goulburn; Ex parte Eastman (49) and Re Wakim; Ex parte McNally. (50) These cases are important indicators of the nature of judicial power and signal a particular reaction in interpretative method by the Court following a period of sustained political criticism. (51) In particular, the majority decision in Re Wakim that the cross-vesting scheme was constitutionally invalid communicates seemingly contradictory features: a more literal interpretative method informed by a robust notion of judicial independence was used to strike down a hitherto satisfactory legislative scheme and, in so doing, created substantial forum problems in litigation. (52) This shift to a more conservative interpretative methodology attracted further opprobrium for the Court. This example could have been developed as fresh evidence of the incoherence and inconsistency in the Court's manoeuvrings and interactions with democracy, similar to the earlier criticisms made of liberal, policy-orientated interpretative methods. Furthermore, the issue of whether there has been a change in the Court's preference towards the use of Chapter III judicial power (53) as a more credible and legitimate constitutional foundation for individual rights-orientated outcomes is not canvassed. Such a change might well be inspired by the conjunction of judicial independence with familiarity in the practical exercise of judicial power. Discussion of these matters would have provided further profitable insights into the Court's judgment of democracy.
The concluding chapter, `Judging Democracy', is the most impressive of the book. The author communicates a clear purpose of consolidating the ideas, arguments and themes explored in previous chapters. He assesses both the extent to which the Court's adjudication represents and articulates an integrated and comprehensive change of direction in Australian constitutionalism and the practical and theoretical limits on the Court in achieving such change. The variegated response of the Court in its interpretative approach according to the different subject-matters discussed in the previous chapters is comfortably acknowledged and the author's analysis is sophisticated and nuanced.
The acknowledgment that the High Court's interpretative methodology has produced different responses to democratic questions is inspired by a preference that the Court should more clearly articulate the theoretical foundations of constitutional interpretation and common law development. The author considers that such a development would produce both greater coherence in the Court's jurisprudence and make the Court's contributions to democratic governance more defensible. (54) However, an alternative perspective would be that these different responses by the Court in interpretative methodology evidence a modest, incremental methodology evolving from, rather than being at odds with, the hybrid sources of the authority of the Constitution and the evolution in its sovereign basis since Federation. (55) Any suggested grand strategy of improper constitutional aggrandisement by the Court in the determination of democratic issues is accordingly diminished from such a perspective.
Under the subheading `Competing Views of Australian Democracy', the concluding chapter conveniently summarises and sharpens the author's conclusions about the Court's influence over Australian democracy based upon earlier discussion surrounding principles of interpretation, rights and freedoms, citizenship, native title and the separation of powers. This summary is included for the general purpose of highlighting the tensions and differences within the Court's democratic vision. It also enables a more detailed consideration to be made of the Court's understanding and definition of the common law and its function in judging common law within the Australian polity. That consideration is both perceptive and illuminating, confirming in substance the Court's enlarged political role. The Court's abandonment of a declaratory theory of common law means it has acquired the roles of an umpire, of a renovator (in bringing laws up to date with community values and expectations), of a facilitator and supporter of Parliament (by engaging with specialist legal questions), and also of a guardian of vulnerable minorities. (56)
Subsequent consideration of the limits of the judicial function compels the conclusion that the Court does not possess a comprehensive, overarching vision of Australian democracy. The author is thereupon obliged to provide more rounded insights and perceptions into the apparent inconsistencies in the approach by the Court to the various subject matters dealt with in the preceding chapters. This discussion covers the dynamics of majority and minority judgments, the norms of judicial deliberation and judgment writing, the dependence of the Court on the submission of particular issues to it and the relative rarity of an intersection between two or more of the major areas of the Court's engagement with democratic issues, such as common law native title and the implied freedoms jurisprudence.
Of special interest is the discussion of limitations upon the judicial ability to shape the nature and practice of democracy, as the Court's jurisprudence must interact with normative concepts such as the rule of law, equality before the law, parliamentary sovereignty, federalism, separation of powers and individual rights and freedoms. A change in interpretative assumptions, in order to be reconciled with an enhanced role in judging democratic institutions and practices, demands a reworking by the Court of these and other concepts in the reasoning and policy of its decisions. This is an interesting hypothesis and one that might have been expanded further by linking it with the author's other claims that the Court may not have been aware of the full scope and reach of its decisions, and that increasingly the Court has been concerned with the reception of its decisions in informed sections of the community. (57) In consequence, the Court's initial engagement with the shaping of democracy was an unappreciated and unconsciously complex task with subtle practical and theoretical political dimensions. In turn, the jurisprudence of the Brennan and Gleeson Courts can be seen in a new light in their various levels of contraction and disengagement from a curial role in the construction of democracy. These new approaches are a subsequent realisation of the demands and dimensions of the issues raised, a consciousness of the jurisprudential and institutional pressures created for the Court, and the making of methodological choices which instinctively recoil from those same demands.
The author also revisits the earlier, more general, theme of the Court's development of Australian constitutionalism towards a more republican-informed model of judging democracy. Republicanism, as informing the Court's judgments of democracy, is considered as part of a global trend amongst courts of final jurisdiction. This appraisal of the Court's judgment of democracy is achieved by the author broadening his earlier theme so that a `more subtle evaluation of the Court's intentions' is called for. (58) The task is `not to paint a sharp picture but to trace trends and tendencies, to look at transformations, evolutions and transitions in the Court's jurisprudence.' (59) This is a more realistic appraisal of the judicial engagement with democratic institutions and practices. It accommodates the insights already gained concerning apparent inconsistencies in the Court's approach to the subject matter of each of the chapters. It is a timely corrective to some extravagant public claims and criticisms of the Court's engagement with democratic questions. It is also an important factor in refocusing debate amongst legal commentators, including practitioners and academics, which will ultimately influence general community opinion of the Court's activities. The author is led to a pertinent concluding insight: the Court's engagement with questions of democracy has placed novel demands and responsibilities upon it. (60) Equally, however, any engagement with the Court's jurisprudence also demands of other institutions and individuals in that democracy significant enhancements in judgment, deliberation and choice of language and analysis.
Judging Democracy is a sophisticated and insightful appraisal of a fascinating and complex topic. Haig Patapan's analysis and assessment of that topic is both original and provocative. The book's assessment of High Court jurisprudence engaging democratic questions is ambitious in both the claims made by the author and the scope of the subject-matter examined. That ambition is subsequently tempered by the author's consolidation of the arguments advanced and a rounded appraisal of a complex range of factors affecting the coherence of both the Court's response to democratic issues and the need for institutions and critics to respond to that jurisprudence in a more sophisticated manner. Whenever the reader might consider the author's claims concerning the Court's methodology to be excessive or contestable, another instance will arise that provides fresh insights into the Court's construction of democracy.
The unexplained omission of an appraisal of the early Gleeson Court's jurisprudence, methodologies, temperament and socio-legal outlook is disappointing in that the perspectives and explanations developed by the author warrant contemporary evaluation. The apparent disinclination of this Court to engage with the practical and philosophical difficulties raised by the Mason Court in judging democratic institutions and practices itself constitutes a political judgment by the Court of its status and capacity in a democratic polity. However, these matters in their own way underline the strengths of the book in provoking awareness, prompting debate and highlighting recurrent issues from the Court's democratically-focused jurisprudence. The author succeeds in ample measure in responding to his original, central question of whether the Court's constitutional interpretations and common law decisions evince a coherent and comprehensive democratic vision of the Australian polity. The detailed responses to that question ensure the book is a welcome addition to existing works offering a critique of the political role of the High Court of Australia. (61)
* As Dixon J observed in Melbourne Corporation v Commonwealth (1947) 74 CLR 31, 82:
it has often been said that political rather than legal considerations provide the ground of which the restraint [of government] is the consequence. The Constitution is a political instrument. It deals with government and governmental powers. The statement is, therefore, easy to make though it has a specious plausibility. But it is really meaningless. It is not a question whether the considerations are political, for nearly every consideration arising from the Constitution can be so described, but whether they are compelling.
(1) See, eg, Brian Galligan, The Politics of the High Court: A Study of the Judicial Branch of Government in Australia (1987); David Solomon, The Political High Court: How the High Court Shapes Politics (1999).
(2) See, eg, the discussion in a number of articles by Sir Anthony Mason, including `The Role of a Constitutional Court in a Federation: A Comparison of the Australian and the United States Experience' (1986) 16 Federal Law Review 1; `Future Directions in Australian Law' (1987) 13 Monash University Law Review 149; `Trends in Constitutional Interpretation' (1995) 18 University of New South Wales Law Journal 237; `The Judge as Law-Maker' (1996) 3 James Cook University Law Review 1; `The Interpretation of a Constitution in a Modern Liberal Democracy: Theories, Principles and Institutions' in Charles Sampford and Kim Preston (eds), Interpreting Constitutions (1996) 13.
(3) Haig Patapan, Judging Democracy: The New Politics of the High Court of Australia (2000) 6.
(4) For competing views about how High Court judges might go about the business of constitutional adjudication, see, eg, Sir Anthony Mason, `The Interpretation of a Constitution in a Modern Liberal Democracy', above n 2; Sir Anthony Mason, `Constitutional Interpretation: Some Thoughts' (1998) 20 Adelaide Law Review 49; Justice Michael McHugh, `The Judicial Method' (1999) 73 Australian Law Journal 37; Justice Michael Kirby, `Judicial Activism' (1997) 27 University of Western Australia Law Review 1.
(5) Patapan, above n 3, 5.
(6) See, eg, Chief Justice Murray Gleeson, `Swearing in of Chief Justice Gleeson' (1998) 193 CLR xi; Chief Justice Murray Gleeson, `Legal Oil and Political Vinegar' (1999) 73 Law Institute Journal 50; Chief Justice Murray Gleeson, The Rule of Law and the Constitution (2000) 76, 93, 110, 124; Leslie Zines, `The Present State of Constitutional Interpretation' in Adrienne Stone and George Williams (eds), The High Court at the Crossroads.' Essays in Constitutional Law (2000) 224.
(7) (1996) 186 CLR 302.
(8) (1997) 189 CLR 520 (`Lange').
(9) (1997) 189 CLR 579.
(10) (1997) 190 CLR 1.
(11) See, eg, the High Court's refusal of special leave to appeal in Transcript of Proceedings, Brown v Members of the Classification Review Board of the Office of Film and Literature Classification (High Court of Australia, Gleeson CJ and Gummow J, 11 December 1998) and Transcript of Proceedings, Australian Broadcasting Corporation v Hanson (High Court of Australia, Gleeson CJ and McHugh J, 24 June 1999).
(12) See, eg, John Braithwaite, `Community Values and Australian Jurisprudence' (1995) 17 Sydney Law Review 351; McHugh, above n 4; Kirby, `Judicial Activism', above n 4.
(13) Patapan, above n 3, 25-7.
(14) See, eg, Adrienne Stone, `The Limits of Constitutional Text and Structure: Standards of Review and the Freedom of Political Communication' (1999) 23 Melbourne University Law Review 668; Geoffrey Kennett, `The Freedom Ride: Where to Now?' (1998) 9 Public Law Review 111; Geoffrey Lindell, `Expansion or Contraction? Some Reflections about the Recent Judicial Developments on Representative Democracy' (1998) 20 Adelaide Law Review 111.
(15) Patapan, above n 3, 41-3.
(16) Ibid 47.
(17) (1994) 182 CLR 104 (Brennan, Dawson and McHugh JJ).
(18) (1996) 186 CLR 140 (Brennan C J, Dawson, McHugh and Gummow JJ) (`McGinty').
(19) See, eg, Patapan, above n 3, 55, 56, 60.
(20) Adrienne Stone, `Freedom of Political Communication, the Constitution and the Common Law' (1998) 26 Federal Law Review 219.
(21) Administrative Decisions (Effect of International Instruments) Bill 1999 (Cth). The Bill subsequently lapsed but remains the subject of potential legislative action.
(22) See Kirby J's judgments in Newcrest Mining (WA) Ltd v Commonwealth (1997) 190 CLR 513, 637 and Kartinyeri v Commonwealth (1998) 195 CLR 337, 386. See also the following articles by Justice Michael Kirby: `Domestic Implementation of International Human Rights Norms' (1999) 5(2)Australian Journal of Human Rights 109; `The Bangalore Principles: The Growing Use by the Commonwealth Courts of International Human Rights Norms' (1997) 78 Parliamentarian 326; `Human Rights--The International Dimension' (1995) 21 Commonwealth Law Bulletin 651.
(23) Patapan, above n 3, 70.
(24) (1975) 135 CLR 1.
(25) (1996) 186 CLR 140.
(26) Patapan, above n 3, 101-2.
(27) (1999) 199 CLR 462; Patapan, above n 3, 100-1.
(28) Sykes v Cleary (1992) 176 CLR 77,
(29) Re Wood (1988) 167 CLR 145.
(30) Free v Kelly (1996) 185 CLR 296.
(31) See, eg, Leonore Taylor, `Minchin Vows to Defend Validity of Senator-Elect', The Australian (Sydney), 27 May 1996, 4; Laura Tingle, `Senate May Ask High Court to Referee Factional Fight', The Australian (Sydney), 28 May 1996, 4; Laura Tingle, `High Court May Rule on Senator-Elect', The Australian (Sydney), 29 May 1996, 4; `Adjudication Sought on Ferris', The Australian (Sydney), 30 May 1996, 4. Extensive examination of the issues arising from s 44(i), (iv) of the Constitution is found in House of Representatives Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, Aspects of Section 44 of the Australian Constitution--Subsections 44(i) and (iv) (1997). See also Kristen `Walker, `Disputed Returns and Parliamentary Qualifications: Is the High Court's Jurisdiction Constitutional?' (1997) 20 University of New South Wales Law Journal 257.
(32) (1983) 152 CLR 254.
(33) (1996) 188 CLR 48.
(34) Mabo v Queensland [No 2] (1992) 175 CLR 1 (`Mabo').
(35) (1995) 183 CLR 373.
(36) Wik Peoples v Queensland (1996) 187 CLR 1 (`Wik').
(37) See Native Title Act 1993 (Cth) as amended by Native Title Amendment Act 1998 (Cth).
(38) Patapan, above n 3, 139-44.
(39) (1998) 195 CLR 337.
(40) Constitution s 51(xxvi).
(41) (1997) 190 CLR 1.
(42) Patapan, above n 3, 150, 161-5, 171.
(43) Ibid 165.
(44) Ibid 165-8.
(45) Ibid 165-70.
(46) (1998) 193 CLR 173.
(47) (1999) 197 CLR 510.
(48) (1999) 197 CLR 83.
(49) (1999) 200 CLR 322.
(50) (1999) 198 CLR 511 (`Re Wakim').
(51) Indeed, as Justice Sackville of the Federal Court has remarked, `[t]he Court's recent Chapter III jurisprudence is inexplicable, except as a consequence of policy judgments on issues as fundamental as the rule of law itself': Justice Ronald Sackville, `Foreword' in Adrienne Stone and George Williams (eds), The High Court at the Crossroads.' Essays in Constitutional Law (2000) v, vii.
(52) For a discussion of these problems see Michael Whincop, `Trading Places: Thoughts on Federal and State Jurisdiction in Corporate Law after Re Wakim' (1999) 17 Company and Securities Law Journal 489; Cheryl Saunders, `In the Shadow of Re Wakim' (1999) 17 Company and Securities Law Journal 507; Robert Baxt, `The Wakim Decision: What Should Be Done to Overcome Its Impact' (1999) 17 Company and Securities Law Journal 518.
(53) Constitution ch III.
(54) Patapan, above n 3, 178-80.
(55) A further example of an alternative perspective is provided by Sir Anthony Mason in his Foreword to Patapan's book, ibid viii-ix. Sir Anthony observes:
The High Court is not a monolithic institution. It is at any time a group of seven justices who are obliged to hear and determine, according to their individual judgment, particular cases.... It would therefore be a serious mistake to assume that, in deciding a case, the Court as an institution embarks upon any general policy with a view to achieving a particular goal, political or otherwise, external to the disposition of that case.
(56) Patapan, above n 3, 183.
(57) Ibid 187, 192.
(58) Ibid 189.
(60) Ibid 193.
(61) See, eg, Galligan, above n 1; Solomon, above n 1. Reference should also be made to various entries in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia (2001), which was published subsequent to the Patapan text.
GREG CARNE, BA, LLB (Hons) (Monash), Dip Ed (Melb), PhD (ANU); Barrister and Solicitor of the Supreme Court of Victoria; Faculty of Law, University of Tasmania. The author would like to thank the anonymous referee for their comments on this essay.
Policy and Pragmatism in the Conflict of Laws by Michael J Whincop and Mary Keyes (Aldershot: Ashgate/Dartmouth Publishing, 2001) pages i-xviii, 1-228. Price 50.00 [pounds sterling] (hardcover). ISBN 1 84014 753 9.
[P]rivate international law has substantially preserved choice for citizens and firms, so serving liberal and economic objectives.... Scholars however have not done half as well, preferring conceptualism to pragmatism ... If the conflict of laws has a future, much of its scholarship does not. (1)
It is not immediately clear how a jurist should react to a work that describes their field of scholarship as having no future. Is the picture as bleak as is suggested? Or is this an observation designed to prepare readers for yet another theoretical joust with that notoriously slippery monster, the conflict of laws? Fortunately, in the recent illuminating work by Michael J Whincop and Mary Keyes, there are many riches to be savoured.
Conflict of laws (or private international law) has long been a popular subject for scholars. The difficulty in developing principles of domestic law to deal with cases involving foreign elements has spawned much writing, often of a highly theoretical nature.
One of the earliest and most influential theories was the vested rights doctrine. According to this theory, a domestic court had to recognise and enforce `rights' granted under the laws of other countries. In enforcing such rights, a series of single-contact territorial rules were developed (for example, in a contracts case, the law of the place of contracting was applied; (2) in the case of torts, the law of the place of the tort (3)). The aim of the vested rights doctrine was that every national court would select the same law to apply to a given set of facts and thus uniformity of outcome between different legal systems would be achieved. This theory placed an emphasis on systemic consistency rather than the needs of the individual case.
While common law conflict of laws rules were for a time strongly influenced by the vested rights doctrine, by the middle of the 20th century its influence began to wane as individual judges sought more discretion in deciding cases involving cross-border elements. In the United States this movement away from strict territorial rules was most pronounced, with the rise of the interest analysis school. According to this theory, it was the duty of a court to analyse the governmental interests behind the competing laws and to apply the law of the state whose interests would be most advanced. (4) The Anglo-Australian conflicts doctrine never formally embraced the American interest approach but instead, by a process of pragmatic development, courts introduced greater flexibility and discretion into the choice of law process.
It is this unsatisfactory dichotomy in the common law of conflicts that spurred Whincop and Keyes into action. (5) On the one hand, they applaud the American jurists for their willingness to examine the policy bases of the conflict of laws, but reject the policies advocated. On the other hand, they attack the Anglo-Australian scholars and judges who continue to endorse a blind, formalistic model that eschews policy altogether. (6)
As the authors state, a fresh theoretical appraisal of the subject that is both pragmatic but sensitive to the key underlying policies is, therefore, timely. (7) In their view, it is the law and economics school that offers the best model, both descriptive and prescriptive, for analysing the conflict of laws. The approach of Whincop and Keyes rests on three basic pillars: (i) that the policies underlying the substantive private law areas should also be applied to private international law rules; (ii) that primary emphasis should be placed on the interests of parties as opposed to sovereign states; and (iii) that a `transaction' view of the subject should be adopted. (8) In adopting such an approach, the authors suggest, greater attention will be paid to the economic consequences of the application of legal rules in a conflicts context. The authors then consider the application of their theory in a number of key substantive and procedural law areas including contracts, mandatory rules, torts, property, jurisdiction and corporations.
Before considering substantive matters, it should be pointed out that the work is written in an extremely clear and accessible style with great lengths taken to explain the various terminology used. For persons such as the present reviewer, with limited knowledge of economic theory, this clarity is most welcome.
The reviewer agrees with Whincop and Keyes that the current Anglo-Australian approach to conflict of laws is excessively formalistic and could be more sensitive to policy issues. (9) Similarly, the American interest approach suffers from a number of serious flaws, including the difficulty of discerning and evaluating the relevant interests and the scope for uncertainty and forum bias. The question is, however, does the law and economics approach as articulated by Whincop and Keyes offer any fresh insights into the law of conflicts?
In this reviewer's opinion, the strength of the book lies in its identification and examination of hitherto unexplored economic forces at work in typical conflicts situations. The authors go to considerable lengths not merely to expose the relevant underlying policies but also to assess the utility of the existing legal rules. Consequently, the outcome of the authors' policy analysis is in some cases the proposal of new rules, while in others it is the reaffirmation of existing rules. For example, in the area of contracts, the authors note that the existing judicial approach of enforcing choice of law and choice of jurisdiction clauses based on the idea of party autonomy is harmonious with the law and economics objectives of private ordering and the advancement of party interests. (10)
It is certainly hard to disagree with the authors' contention that, in the area of contracts, party interests should generally be respected. (11) But how far does this proposition go? The limitations of a purely law and economics approach are perhaps more obvious when the role and significance of mandatory rules is considered. (12) A mandatory rule is an express or implied statutory restriction on choice of law or jurisdiction. It is true that, from an efficiency perspective, mandatory rules are a relatively `blunt instrument' and that their application does undermine contractual certainty. However, such legislation continues to be a popular device for governments to further certain social and political policy objectives (for example, the protection of those whose bargaining position is perceived to be weak, such as employees and consumers).
There are always likely to be interest groups seeking protective legislation and governments willing to provide such protection, supported by courts who see their role (in part) as implementing legislative purpose rather than merely applying literal words. It is therefore likely that the scope and volume of mandatory rules will become more, rather than less, expansive in years to come, despite the authors' plea for a more restrictive approach to be taken.
Whincop and Keyes' discussion of market torts in chapter 5 is thoughtful and provocative. For too long, Anglo-Australian conflict of laws doctrine has accepted the common law division between tort and contract as a basis for assigning separate choice of law rules to each category. As the authors demonstrate, this is a formalistic fiction when it is clear that many commercial torts have more in common with contracts than, say, personal injury claims. (13) Furthermore, the reviewer welcomes the creation of new choice of law rules in the area of commercial torts that reflect the close connection with contract. The authors propose two such rules: the law of the place of sale for product liability cases; (14) and the law of the place of incorporation for investor claims. (15) Both suggestions appear to be significant improvements over the existing options, namely the law of the place of the tort and the rule in Phillips v Eyre, (16) and may inspire the proposal of further new rules.
The authors' discussion of non-market torts, in chapter 6, and the proposed further division between `discrete' and `relational' torts based on the identity and relationship of the parties, with separate choice of law rules for each, is logical and persuasive. (17) The reviewer does, however, query whether the Phillips v Eyre rule should be retained in any form whatsoever, despite the authors' plea for its application to discrete international torts. (18) The authors argue that the rule should be preferred to the law of the place of the tort because it may operate to minimise the scope for judicial error that arises from a judge applying foreign law. (19) However, given the need under the second stage of the rule in Phillips v Eyre to establish civil liability under the law of the place of the tort, it hardly seems a great step to apply the law of the place of the tort directly.
Chapter 8, on jurisdiction and procedure, has much useful analysis and comment. Whincop and Keyes commence their treatment of this topic by emphasising that party interests should prevail over state interests in jurisdictional dispute resolution and by noting that courts have generally endorsed this view. (20) Efficiency concerns, particularly in evaluating the relative cost burdens of parties having to litigate in one forum over another, also appear to have loomed large in judicial decision-making in this area. (21) The increasing scope for what the authors identify as `jurisdictional trade', that is, the capacity for parties to make cooperative decisions on the place of the suit based on efficiency considerations, is also an important observation. (22)
Whincop and Keyes proceed to argue that the concept of `justice' should be given a limited role in the area of jurisdiction. (23) However, it appears that most common law countries in their various tests on forum non conveniens continue to accord the principle great weight. This may explain the generous interpretation given to the concept of plaintiff `juridical advantage' evident in both the English case of Spiliada Maritime Corporation v Cansulex Ltd (24) and the Australian cases applying Voth v Manildra Flour Mills Pty Ltd. (25) Given the wide discretion granted to courts in resolving jurisdictional conflicts, at least in common law countries, the reviewer doubts whether this trend will dissipate. However, the reviewer does agree with the authors that if excessive weight is given to such plaintiff advantages, the result will be increasingly inefficient fora of litigation and also incentives for forum-shopping. (26)
Moreover, the reviewer wonders whether the authors too quickly dismiss the notion of comity as a factor in jurisdictional conflict resolution. It is true that comity, in the sense of recognition of foreign state interests, seems but a recycling of governmental interest analysis and may be rejected for that reason. However, in recent years other scholars have identified another form of comity at work in jurisdictional decision-making known as `judicial comity'. (27) The essence of this attitude is an increased respect for foreign tribunals and their capacity to resolve disputes and a `recognition that courts in different nations are entitled to their fair share of disputes'. (28) There is increasing evidence in judicial decisions that courts see themselves as part of a global network of adjudication rather than simply domestic functionaries of individual nation states. The subject of recognition and enforcement of foreign judgments is another area where this trend is likely to be evident.
Overall, the reviewer finds much of the authors' argument on jurisdiction to be persuasive, particularly in its endorsement of a system of rules that tries to site litigation in not only the most efficient forum but one that is fairest to both parties. This is perhaps another example of where efficiency aims coincide with other important objectives.
In conclusion, Whincop and Keyes are to be commended for having produced an insightful and rigorous work of scholarship that will inspire much debate. Further exposure of the policy choices open to courts in conflict of laws cases can only be helpful given that much of the writing and judicial decisions appears to accept rules without considering their logical or analytical bases. The reviewer found much in the thinking of law and economics to enlighten and enrich his understanding of conflicts issues. Perhaps there is a future for conflicts scholarship after all.
(1) Michael J Whincop and Mary Keyes, Policy and Pragmatism in the Conflict of Laws (2001) 198.
(2) See, eg, Chartered Mercantile Bank of India, London and China v Netherlands India Steam Navigation Co Ltd (1883) 10 QBD 521; Jacobs, Marcus & Co v Credit Lyonnais (1884) 12 QBD 589.
(3) See, eg, Slater v Mexican National Railroad Co, 194 US 120 (1904); American Banana Co v United Fruit Co, 213 US 347, 356 (1909) (Holmes J).
(4) See Whincop and Keyes, above n 1, 2, 17-19.
(5) Ibid 3.
(6) Ibid 2.
(8) Ibid 3-6.
(9) See ibid 1-2.
(10) See generally ibid ch 3.
(11) See, eg, ibid 6.
(12) See generally ibid ch 4.
(13) Ibid 71-2.
(14) Ibid 81-4.
(15) Ibid 84-6.
(16) (1870) 6 LR QB 1. The rule `referred the tort not to one law, but two. The wrong alleged must be "actionable" had it been committed in the forum, and must not have been "justifiable" by the law of the place of the wrong (lex loci delicti)': ibid 73. Note that the rule in Phillips v Eyre has been rejected by the High Court of Australia, with respect to international torts (see Regie National des Usines Renault SA v Zhang  HCA 10 (Unreported, Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ, 14 March 2002)) and intranational torts (see John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503).
(17) Whincop and Keyes, above n 1, 90. See generally ch 6.
(18) Ibid 95-7.
(19) Ibid 96-7.
(20) Ibid 128-9.
(21) Ibid 129-36.
(22) Ibid 136-9.
(23) See ibid 151.
(24)  1 AC 460.
(25) (1990) 171 CLR 538. Since adopting the test, the High Court has applied the test in four cases, upholding a grant of a stay in three of them: Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 (stay granted); Henry v Henry (1996) 185 CLR 571 (stay granted); Akai Pty Ltd v People's Insurance Company Ltd (1996) 188 CLR 418 (stay not granted); CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 (stay granted): see Whincop and Keyes, above n 1, 145. For a fuller discussion, see Richard Garnett, `Stay of Proceedings in Australia: A "Clearly Inappropriate" Test?' (1999) 23 Melbourne University Law Review 30.
(26) See Whincop and Keyes, above n 1, 151, 153-4.
(27) See, eg, Anne-Marie Slaughter, `Court to Court' (1998) 92 American Journal of International Law 708.
(28) Ibid 709.
RICHARD GARNETT, BA, LLB (UNSW), LLM (Harv); Senior Lecturer in Law, The University of Melbourne; Co-Director, Institute for Comparative and International Law, The University of Melbourne.
Conflicts of Interest & Chinese Walls by Charles Hollander QC and Simon Salzedo (London: Sweet & Maxwell, 2000) pages i-xxxi, 1-272. Price 125.00 [pounds sterling] (hardcover) ISBN 0 421 73140 0.
Around the world, professional service providers such as lawyers and accountants are increasingly exposed to allegations that they are acting in the face of a conflict of interest. This is due to the increase in the size of professional service firms, the corresponding rise in market concentration, and the growing mobility of both professionals and clients between firms. Australia has witnessed a fairly dramatic increase in the number of conflicts cases before its courts, with increases also occurring in other common law jurisdictions such as Canada and the United Kingdom. Unfortunately, unlike the highest courts in those countries, the High Court of Australia has not yet considered the appropriate role for conflicts of interest cases and this important area remains more uncertain and confused than it should be. At least until the matter is considered by the High Court, foreign judgments and analysis will remain very useful and influential. Indeed, courts in a number of Australian jurisdictions have expressly held that, in relation to former client conflicts, the principles set out in the most recent decision of the House of Lords (1) in this area apply. (2)
For this reason, Conflicts of Interest & Chinese Wails (3) is of real relevance to the Australian jurisdiction. In this book, barristers Charles Hollander QC and Simon Salzedo set out to examine the modern English rules concerning conflicts of interest, following the increased awareness and activity generated in this area by Bolkiah v KPMG (4) in 1998 and by Lord Hoffmann's role in the hearings regarding Augusto Pinochet's proposed extradition (5) in 1999. (6) The book has a broad scope, covering conflicts of interest faced not only by lawyers, but also by company directors, financial services firms, accountants, estate agents, insurance brokers and the judiciary. It seeks to explain the legal and equitable underpinnings of the laws governing conflicts of interest while providing practical advice on matters such as managing conflicts by contract, (7) `beauty parades' (8) and Chinese Walls. (9)
In his foreword, Justice Aikens describes the book as a `trail-blazer'. (10) Indeed, the authors themselves state that their book is, `so far as we are aware, the first book published in this jurisdiction devoted to an analysis of the circumstances in which conflicts of interest arise, the remedies, the ways of avoiding the problems, the ways of constructing Chinese Walls.' (11) This comprehensive book is therefore a welcome addition to the field. Several other books on this and related topics may also be of interest to readers, particularly when read in conjunction with Conflicts of Interest & Chinese Walls. For example, Paul Perell, Conflicts of Interest in the Legal Profession (1995) examines the Canadian position, aiming (like Hollander and Salzedo) to provide practical guidance, but concentrating on the legal profession. Also of likely interest are Chizu Nakajima, Conflicts of Interest and Duty: A Comparative Analysis in Anglo-Japanese Law (1999) and the more recent publication, Michael Davis and Andrew Stark (eds), Conflict of Interest in the Professions (2001). Finally, readers may wish to consult the various works of Professor Finn on this issue. (12)
In a sense, the book divides into two parts. The first part (chapters 1 to 8) examines the general principles involved in conflicts of interest. Early on, in chapter 2, the authors explain the facts, decisions and importance of Bolkiah (13) and the more recent case Young v Robson Rhodes. (14) Chapter 3 considers the fundamental rules governing conflicts of interest arising from the fiduciary obligations of professionals, while chapter 4 examines how contract or consent (whether express or implied) may affect the manner in which these rules are applied. Chapter 5 covers the obligation of an individual professional or a firm to disclose relevant knowledge to clients, as well as the circumstances in which the knowledge of an individual professional will be attributed to that individual's firm. Remedies for acting in the face of a conflict (for example, in breach of a duty of loyalty or confidentiality) form the topic of chapter 6. Chinese Walls are, of course, mentioned throughout the book, but chapter 7 is devoted specifically to them. Finally, chapter 8 discusses how the general principles are applied in practice and to certain generic kinds of conflicts such as personal conflicts. The second part of the book (comprising chapters 9 to 15) concerns specific professionals or conflict situations: judicial conflicts, directors, financial services, takeovers, lawyers, accountants and, finally, estate agents and insurance brokers.
Despite the book being firmly centred on English law, it provides a valuable resource for Australian lawyers, academics and students among others (although some may find the price prohibitive). Hollander and Salzedo consider the rules of some other countries, such as Australia, Canada and the United States, at certain points in the book. (15) More importantly, as mentioned above, decisions of the House of Lords on conflicts of interest and Chinese Walls are highly influential in Australian courts and are likely to remain so, at least until the High Court of Australia rules in this area. In addition, the book examines underlying policy considerations relating to conflicts of interest, as well as the practical implications of choosing particular rules for governing such conflicts. Particularly given the highly concentrated nature of the Australian market for the supply of legal services by solicitors, these issues are of equal, if not greater, concern in this country. However, Australian readers may find the second part of the book of less direct relevance because it relates more closely to the legislation and professional guidelines of the United Kingdom than do the other chapters.
The introduction in chapter 1 contains a helpful description of several meanings of `conflict of interest', defining the following terms used throughout the book: existing client conflict, former client conflict, personal conflict, commercial conflict, judicial conflict, and Chinese Wall. (16) In describing an existing client conflict, and later in the book, (17) the authors emphasise that a professional (or firm) cannot act for two clients with opposing interests at the same time without their consent, not because of the risk of disclosure of confidential information, but because of the `conflict of interest inherent in the situation.' (18) This phrase of itself is of limited assistance but it is explained further in chapter 3. Confidential information forms the basis of a former client conflict, where the risk is that a professional may use confidential information disclosed by a former client to assist a current client. A similar problem of confidentiality arises in an existing client conflict. However, such a case also entails the greater risk that the professional will be unable or unwilling to uphold the interests of a client when acting against that same client in another matter. (19) Thus, a fiduciary's obligation consists of four facets, each of which may be at issue to a greater or lesser degree in a particular case: no conflict, no profit, undivided loyalty, and confidentiality. (20) Of these facets, the content of the duty of loyalty is the most uncertain. As noted by Glover, judges sometimes use this phrase as `a rationale of judicial intervention [rather] than an independent rule governing when it will occur.' (21) The authors have had only slightly more success in clarifying this duty than the judges--it should be done away with.
At the beginning of chapter 3 the authors introduce a view that recurs throughout the book--namely, that `equitable rules [regarding existing client conflicts], when coupled with the rules that focus on firms and partnerships rather than individuals owing fiduciary duties, have lagged behind modern commerce and need reconsideration.' (22) Many commentators in various jurisdictions take a similar view with respect to existing and former client conflicts given the increasing size of professional firms and their frequently national or international nature, as well as growing multidisciplinarity. (23) On the other hand, some writers maintain that strict rules are required to protect clients' interests and that courts should carefully scrutinise Chinese Walls before allowing them to justify what would otherwise be a conflict of interest. (24) In the end, the appropriate result will typically depend on the particular facts of the case, including the size of the firm, the extent of conflicting interests between the clients, and the precise nature of any Chinese Wall. In chapter 5, Hollander and Salzedo explain the difficulties of imposing on a professional or firm an obligation to disclose to an existing client all relevant information, however confidential, obtained from previous clients. In the case of a firm, such a wide-ranging obligation would preclude any use of Chinese Walls at all. (25) One line of cases dealing with this issue has arisen where a solicitor acts for a lender in circumstances where the solicitor already acts for the borrower. In such cases, the solicitor is only obliged to disclose to the lender information received in the course of carrying out the given instructions, and not information obtained independently of those instructions (such as that previously learned from the borrower). (26) While acknowledging that these cases might be distinguished on the basis of inferred consent, (27) the authors suggest that they might alternatively establish a principle of general application, not restricted to borrower-lender cases or cases of inferred consent. (28)
Practitioners, in particular, may be tempted to turn directly to chapter 7, which focuses on Chinese Walls. These devices, whether referring to the paper walls that spawned the game of `Chinese whispers' (29) or (as this book maintains) the Great Wall of China, (30) may provide one of the few practical solutions to the steady growth in the number of conflict situations that has resulted from the development of the `mega-firm'. Hollander and Salzedo describe a Chinese Wall as `an information barrier within the firm which is intended to ensure that information available to or known by certain members of the firm is not available to other members of the firm.' (31) As the law currently stands, a professional cannot rely on such a barrier to escape liability for an existing client conflict. (32) This flows from the view, mentioned above, that the primary difficulty with such a situation is not confidentiality, but inherent conflict of fiduciary duties. Therefore, in general, (33) a practitioner wishing to act for clients with opposing interests at the same time will need each client's explicit consent to a Chinese Wall and agreement as to its effects. Moreover, even this consent may be insufficient to save the professional from breaching fiduciary obligations to act for one client without being inhibited by the existence of the other client, and to avoid any actual conflict (whereby it is impossible to fulfil obligations to one client without breaching obligations to the other). (34)
Different considerations apply to the use of Chinese Walls in former client conflicts, primarily because the major risk in these cases is disclosure of confidential information of the former client to the current client (or use of such information other than for the benefit of the former client). (35) The authors explain that, under Bolkiah, a court should restrain a firm from acting in these circumstances, unless the court is satisfied that there is no risk (meaning a real but not necessarily substantial risk) of disclosure. A court can so satisfy itself only `on the basis of clear and convincing evidence that all reasonable measures have been taken to ensure that no disclosure will occur'. (36) This is a stringent test to apply to Chinese Walls, and the authors query whether it is justified, given the existence of case law indicating that the extent of a firm's obligation of disclosure to the current client is only to pass on information learned in the course of acting for that client. (37)
It is interesting to compare the current English test governing former client conflicts to that applied in Australia, as the authors themselves do briefly. (38) Before Bolkiah, the leading test in Australia was contained in the judgment of Hayne J in Farrow Mortgage Services Pty Ltd (in liq) v Mendall Properties Pty Ltd, (39) where his Honour stated that an injunction preventing a firm from acting would be given where there was a `real and sensible possibility of the misuse of confidential information.' (40) This was very similar to Lord Millett's test in Bolkiah, (41) although it differed in one key respect: the Farrow test placed the onus on the plaintiff to show the possibility of misuse of the plaintiff's confidential information rather than requiring the defendant to show that there was no possibility of such misuse. (42) Today, Australian courts are likely to apply the principles outlined in Bolkiah when resolving these cases. (43)
In a recent decision, the Victorian Court of Appeal dismissed an appeal, ruling that there was no reason to doubt the Supreme Court's finding that `the appellant had failed to show that there was no real risk of the misuse of the confidential information and that the respondents had shown a real and sensible possibility of that misuse.' (44) Strictly, this decision did not determine whether Bolkiah or Farrow should be followed. Brooking JA, in obiter dicta, made lengthy comments about two other independent bases on which the decision could have been made apart from the danger of misuse of confidential information: breach of the fiduciary's duty of loyalty, (45) and the desirability of restraining the solicitors as officers of the court. (46) These comments are instructive of how the High Court of Australia might decide a similar decision in the future.
Chapter 9 concerns judicial conflicts, such as where a judge or other arbitrator in a particular case has some relevant prior or ongoing personal, professional or financial relationship with one of the parties. As foreshadowed above, the House of Lords' decision in Pinochet's case has renewed interest in this area. In an unusual move, the House of Lords granted a petition by Pinochet to set aside its order of 25 November 1998 on the basis that Lord Hoffmann, who had heard the case, was a director and chairperson of Amnesty International Charity Ltd. (47) The Appellate Committee of the House of Lords considered that Lord Hoffmann had a longstanding involvement in the cause of Amnesty International and was therefore effectively a party in the relevant appeal, since Amnesty International had been granted leave to intervene in the appeal. Hollander and Salzedo go behind and beyond the circumstances of this case to explain the possibility of actual bias--as distinct from a perceived possibility of bias arising from a tribunal's direct pecuniary or proprietary interest, (48) or (following Pinochet's case) non-pecuniary interest, in a given cause. (49) Importantly, the authors raise the issue of whether art 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (50) might alter the common law test of `real danger or possibility of bias' (51) in cases of alleged danger of bias so that it becomes something closer to a `reasonable suspicion or reasonable apprehension' test. (52) As the High Court of Australia noted in Ebner v Official Trustee in Bankruptcy, (53) the common law in this area has developed slightly differently in Australia than in England. The general principle applied to cases of apprehended bias in this country is to ask `whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge was required to decide.' (54)
Chapter 13, which relates specifically to lawyers, includes discussion of merger, termination of retainer, and solicitors changing firms, as well as a brief but interesting section on barristers. Although a barrister has, in effect, both a professional client (the solicitor) and a lay client (who is also the client of the solicitor), Hollander and Salzedo conclude on general principles that the barrister owes a fiduciary duty to the lay client and not to the solicitor. Thus, in the event that the solicitor appears to have acted negligently, the barrister has a duty to advise the client of this. (55) Because of the way in which barristers work (in general, being instructed on specific pieces of work rather than pursuant to a retainer), a question arises as to whether the rules governing existing or former client conflicts apply in specific cases. The authors give the example of a barrister, having settled a defence, being asked to act for the other side in circumstances involving a potential conflict of interest. In their view, the fiduciary obligation continues only until a given set of instructions is completed. (56)
In relation to the sharing of chambers and facilities, the courts draw a distinction between barristers and solicitors. As barristers are independent, self-employed practitioners, the stringent rules of Bolkiah do not apply. (57) The authors refer to the unsuccessful attempt to remove counsel (ironically, Hugh Laddie QC, who subsequently became a judge of the English High Court of Justice and decided Robson Rhodes) (58) in Pavel v Sony Corporation (59) on the grounds that Mr Laddie QC had received confidential information about the case from the opposing party's counsel, (60) who happened to be a close colleague in chambers. (61) In Pavel, the Court of Appeal determined that there was no reason to believe that confidential information of a professional nature had been shared, and that ordinarily the court should leave it to the relevant barrister to decide whether it is appropriate to act. The authors suggest that in today's climate of heightened sensitivity to conflicts a court is unlikely to express itself in quite this way. (62) Moreover, they warn that `[t]he fear that professional confidences will be made light of over chambers tea or in the circuit mess is one that often should not be ignored.' (63)
Like the rest of the book, the appendices focus on England, but readers from other jurisdictions may be curious to examine, in particular, some of the professional ethics guides that have been included. (64) The Law Society (the professional body for solicitors in England and Wales) is currently revising The Guide to the Professional Conduct of Solicitors (8th ed, 1999), (65) which appears in Appendix C. (66) The authors consider this guide in detail in chapter 13, and in fact recommend that it be urgently reviewed to address areas where it differs from the law as it currently stands (in particular, where the rules incorrectly describe the law or are less onerous than the general law). (67)
Conflicts of Interest & Chinese Walls is a useful resource written in a clear and easily accessible style (although we would have preferred gender-neutral language). It is well cross-referenced and important points are repeated where necessary, meaning that the reader need not necessarily read all the chapters, nor read them in order. In several places, Hollander and Salzedo include helpful lists summarising the principles arising from particular cases or areas of the law. (68) They also examine the existing conflict rules with a critical eye, protesting where the rules improperly balance the relevant interests or clash with good modern practice. We hope that a similar book appears for Australia after the High Court has had an opportunity to consider the issue.
(1) Bolkiah v KPMG  2 AC 222 (`Bolkiah').
(2) See, eg, Pradhan v Eastside Day Surgery Pty Ltd  SASC 256 (Unreported, Doyle CJ, Prior and Bleby JJ, 18 June 1999); Newman v Phillips Fox (1999) 21 WAR 309; World Medical Manufacturing Corporation v Phillips Ormonde & Fitzpatrick Lawyers (a firm)  VSC 196 (Unreported, Gillard J, 18 May 2000).
(3) Charles Hollander and Simon Salzedo, Conflicts of Interest & Chinese Walls (2000).
(4)  2 AC 222.
(5) R v Bow Street Metropolitan Stipendiary Magistrates: Exparte Pinochet Ugarte  4 All ER 897, rev'd R v Bow Street Metropolitan Stipendiary Magistrates: Ex parte Pinochet Ugarte [No 2]  1 AC 119 (`Pinochet's case').
(6) Hollander and Salzedo, above n 3, 1.
(7) Ibid ch 4.
(8) Ibid 17-18.
(9) Ibid ch 7.
(10) Ibid v.
(11) Ibid 3.
(12) See, eg, Paul Finn, Fiduciary Obligations (1977); Paul Finn, `Fiduciary Law and the Modern Commercial World' in Ewan McKendrick (ed), Commercial Aspects of Trusts and Fiduciary Obligations (1992) 7.
(13)  2 AC 222. See generally Andrew Mitchell, `Chinese Walls in Bmnei: Prince Jefri Bolkiah v KPMG' (1999) 22 University of New South Wales Law Review 243.
(14)  3 All ER 524 (`Robson Rhodes').
(15) These are listed by country in the index.
(16) Hollander and Salzedo, above n 3, 3-5.
(17) Ibid 12, 97.
(18) Ibid 3, citing Bolkiah  2 AC 222, 235 (Lord Millett).
(19) Hollander and Salzedo, above n 3, 27.
(20) Ibid 14.
(21) John Glover, `Conflicts of Interest and Chinese Walls' (2001) 15 Trust Law International 61, 62.
(22) Hollander and Salzedo, above n 3, 33. See also at 36, 66.
(23) See, eg, Audrey Benison, `The Sophisticated Client: A Proposal for the Reconciliation of Conflicts of Interest Standards for Attorneys and Accountants' (2000) 13 Georgetown Journal of Legal Ethics 699, 700-1; Janine Griffiths-Baker, `Further Cracks in Chinese Walls' (1999) 149 New Law Journal 162, 175; Mitchell, `Chinese Walls in Brunei', above n 13; Andrew Mitchell, `Whose Side Are You on Anyway? Former Client Conflict of Interest' (1998) 26 Australian Business Law Review 418.
(24) Harry McVea, `"Heard It through the Grapevine": Chinese Walls and Former Client Confidentiality in Law Firms' (2000) 59 Cambridge Law Journal 370, 372, 389. See also Mark Waller, `Review: Conflicts of Interest and Chinese Walls' (2001) 117 Law Quarterly Review 335, 337-8.
(25) Hollander and Salzedo, above n 3, 65-7.
(26) Ibid 67-71.
(27) See Waller, above n 24, 336-7.
(28) Hollander and Salzedo, above n 3, 73-4.
(29) John Quarrell, `Modern Trusts in Legal Education' (1991) 5 Trust Law International 99, 103-4.
(30) Hollander and Salzedo, above n 3, 96, fn 1.
(31) Ibid 96.
(32) Ibid 97.
(33) The rules may differ where the Financial Services Act 1986 (UK) applies: ibid ch 11.
(34) Hollander and Salzedo, above n 3, 98, 117-18.
(35) Ibid 98.
(36) MacDonald Estate v Martin (1991) 77 DLR (4th) 249, 269 (Sopinka J); approved by Lord Millett in Bolkiah  2 AC 222, 237, `[w]ith the substitution of the word "effective" for the words "all reasonable"': at 238.
(37) Hollander and Salzedo, above n 3, 100, referring to ch 5 of the book, which deals with borrower--lender cases, as discussed above.
(38) Ibid 101.
(39)  1 VR 1 (`Farrow').
(40) Ibid 5.
(41) See Colonial Portfolio Services Ltd v Nissen  NSWSC 1047 (Unreported, Rolfe J, 7 November 2000) ; Spincode Pty Ltd v Look Software Pty Ltd  VSC 287 (Unreported, Warren J, 17 August 2001) .
(42) World Medical Manufacturing Corporation v Phillips Ormonde & Fitzpatrick Lawyers (a firm)  VSC 196 (Unreported, Gillard J, 18 May 2000) .
(43) See above n 2.
(44) Spincode Pty Ltd v Look Software Pty Ltd  VSCA 248 (Unreported, Brooking JA, Ormiston and Chernow JJ, 21 December 2001)  (Brooking JA).
(45) Ibid -.
(46) Ibid -.
(47) Pinochet's case  1 AC 119. See also Kerry Abadee, `Lessons from the Pinochet Case for the Bias Rules of Procedural Fairness in Its Application to Australian Judges' (2000) 8 Australian Journal of Administrative Law 19; Andrew Mitchell, `Leave Your Hat On? Head of State Immunity and Pinochet' (1999) 25 Monash University Law Review 225, 244; Michael Zander, `Who Judges Matters' (1999) 149 New Law Journal 5; John Caldwell, `The Pinochet Saga'  New Zealand Law Journal 103.
(48) Dimes v Proprietors of the Grand Junction Canal  3 HL Cas 759; 10 ER 301.
(49) Hollander and Salzedo, above n 3, 123-5.
(50) Opened for signature 4 November 1950, ETS 005 (entered into force 3 September 1953).
(51) R v Gough  AC 646.
(52) Hollander and Salzedo, above n 3, 125-7.
(53) (2000) 176 ALR 644.
(54) Ibid 652.
(55) Hollander and Salzedo, above n 3, 179-80.
(56) Ibid 180-1.
(57) Laker Airways Inc v FLS Aerospace Ltd and Burnton  2 Lloyd's Law Rep 45; ibid 181.
(58)  3 All ER 524. See the discussion of this case in Hollander and Salzedo, above n 3, 9-10.
(59) (Unreported, English Court of Appeal, Bingham, Hirst and Aldous LJJ, 12 April 1995) (`Pavel').
(60) Robin Jacob QC, who also subsequently became a judge of the English High Court of Justice.
(61) Hollander and Salzedo, above n 3, 181-2.
(62) Ibid 182.
(63) Ibid 181.
(64) See, eg, ibid 223 (Appendix D--Code of Conduct of the Bar of England and Wales), 225 (Appendix E--Institute of Chartered Accountants in England and Wales Guide to Professional Ethics).
(65) The Law Society, Annual Report: 1 May 2000 to 30 April 2001 (2001) 10.
(66) Hollander and Salzedo, above n 3, 211.
(67) Ibid 178-9.
(68) See, eg, ibid 8-9, 19-20, 105.
ANDREW MITCHELL, LLB (Hons), BCom (Hons) (Melb), LLM (Harv); Solicitor, Allens Arthur Robinson; W M Tapp Scholar, Gonville & Caius College and Honorary Commonwealth Trust Scholar, University of Cambridge.
TANIA VOON, LLB (Hons), BSc (Melb), LLM (Harv); Solicitor, Mallesons Stephen Jaques; W M Tapp Scholar, Gonville & Caius College and Honorary Commonwealth Trust Scholar, University of Cambridge.