Opinion on High

By Martin Clark

This year Melbourne Law School launched a new blog focussing on cases of the High Court of Australia. Martin Clark argues that Opinions on High is the latest digital manifestation of the duty to bring accessible legal commentary to the public, a tradition of public engagement first embraced by the High Court in the 1980s.

Every Australian lawyer knows that one foundational principle of our legal system is that justice must be done in public, open courts. Judges will reluctantly agree to displace that requirement only in the most serious circumstances warranting secrecy.

Equally, every person — lawyer or not — knows that while courts are open in principle, the intricate workings and pronouncements of the law are anything but accessible to the general public. Most judgments are neither clear nor readily understandable to those who are not legally-trained. Plenty remain impenetrable to those who are.

In the Tasmanian Dam Case of 1983 the High Court released a public statement to accompany its orders, a decision praised by the Hon. Michael Black AC QC, former Chief Justice of the Federal Court of Australia, in his recent recollections of this historic case. That statement outlined what the Court had decided, the limits of what the justices were, and were not, empowered to consider and determine, and emphatically stated that it was not the Court's job to adjudicate the merits of constructing the dam.

With this release the Court foresaw that its decision and reasons for judgment might be misinterpreted, wilfully or otherwise, by the many Australians engaged in a heated political debate that had divided the nation. Today the practice continues, even where the controversies are more muted: every decision of the Full Court is accompanied by a short press release, written in accessible language, explaining the case, the legal issues, and the Court's determination.

In his Lectures on Legal History, Sir Victor Windeyer quoted Francis Forbes, the first Chief Justice of the Supreme Court of NSW: 'The people of this country look with the most intense anxiety at every act, every opinion of the judge … they naturally regard the Supreme Court as their only protection against absolute power'. NSW was then a colonial autocracy, lacking a parliamentary assembly, constitution and developed legal profession. That these institutions exist today to protect legal rights explains the waning of this 'intense anxiety' and attention to the work of the courts. But that anxiety can re-emerge, sometimes around controversial and important decisions of the High Court.

Lawyers and scholars alike have long embraced an old duty of public service. In law, that duty is well discharged through vitally important work within the courts like pro bono representation and advice. In scholarship, the duty demands seeking truth without fear or favour.

Knowledgeable commentary on Australia's legal system has no direct benefit for the victim of family violence, the indigent criminal defendant, or the incarcerated asylum seeker. But where citizens are disengaged from debates about Australia's legal systems — and only encounter those debates stripped of their complexities — valuable conversations about law reform, political power, and justice remain impossible. Without an informed citizenry, those before the law lack an important plank of protection against the kind of absolute power Forbes describes.

Part of the aim behind Opinions on High; the High Court Blog is to publish up-to-date commentary on the work and decisions of the High Court of Australia that is accessible and informative for lawyers and non-lawyers alike. By providing a forum for commentary and discussion  — by public engagement — Opinions on High seeks to draw on the expertise of those at Melbourne Law School to serve the public, as lawyers and scholars must.

This article originally appeared in MLS News, Issue 10, December 2013.