WHO UNDERSTANDS THE LAW?
July 1999 |
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What’s
it about?
Is it any wonder that people have little or no idea what is going on in the law? Check
out the talkback radio every time a notorious criminal is paroled. Without any information
that goes to the real issues, we make comments led by torchbearers who have no involvement
in the judicial process, and moreso, act as though they actually understand what the hell
is going on.
Who's to blame? In part we have to look at media, who choose
to sensationalise for the sake of precious ratings points. But that is self-serving,
because it is also the responsibility of the legal industry, whether it be the lawyers or
the courts, who fail to come to terms with the need to educate the public about the
reasons behind judicial decision-making. What's the point of an open judicial system if
the average person cannot hope to grasp the details of its workings?
Here's
a good example
Those of our readers who subscribe to our Law At Your Door service, would have recently
received this email:
"Hi Law at Your Door Member,
As a result of a recent High Court decision, property disputes for defactos cannot be
heard in the Family Court"
This is entirely true, but it is not the intention of that service
to explain this any further (check the more detailed fact sheets on the site). But it
raises a larger issue: perhaps you might wonder why this is so? What did the High Court
say? Has it changed its mind about the relationship of defacto partners? Does it mean we
should all hurry out and get married? These are fair questions, but we bet you'll be
surprised to learn that it derived from a landmark decision, by which the High Court has
by a majority of six to one decided that the cross-vesting provisions in section 9 of the
Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) and sections 51 and 56 of the
Corporations Act 1989 (Cth) are invalid!
Yes, it's true! And as a result of that, property disputes for
defactos cannot be heard in the Family Court. Wow! Does that make sense? Of course not. By
any reasonable standard of intelligence it is complete gibberish. But the pity of it is
that the consequences are felt in the real world by the very people who cannot hope to
understand it in the first place.
Cross-vesting?
No, it's got nothing to do with what we wear (that's cross-dressing). Basically, the
High Court looked at the rights of a State to give over its power to a federal court. In
other words, in some situations a State might want a federal court to deal with certain
State issues because it is convenient and a lot cheaper to do this. It is ironic that this
practice, now struck down by the High Court, was instituted to establish a co-operative
and uniform approach to certain legal issues. However, the High Court has decided that it
is not allowed under the Constitution.
The Constitution is the document that divides the
responsibilities of the courts, the parliament and the executive (the Governor-General).
It also establishes the relationship between the Commonwealth and the States, and covers
matters that are the responsibility of the Commonwealth (e.g. family law) and those which
are the responsibility of the States (e.g. most types of crimes). So if we all agree that
it is a good idea to divvy up the responsibilities differently, why not do it?
The Chief Justice of the High Court summed it up this way: "The
Parliaments of the Commonwealth, the States, and the Territories cannot, by cooperation,
amend the Constitution." On the other hand, Victorian Attorney-General Jan Wade
blasted the High Court's decision, calling it a usurpation of the role of Parliament.
De Factos
Now it becomes clear why this decision of the High Court affects de facto
relationships. The Family Court is a federal Court because the Constitution gives the
Federal Government the sole power to make laws about marriage and divorce. De facto
couples are not "married" in the legal sense, but the States have agreed to
allow some issues, for instance property disputes, to be dealt with by the Family Court in
certain circumstances because it makes sense and is more efficient.
So what?
The law (both lawyers and courts) does a poor job at explaining itself to the public,
and this recent High Court decision is a prime example. Whilst the medical profession
seems to be supported by a myriad of commentators and writers who popularise medical
issues to the public, the law lags far behind.
Recently the Victorian Parliament's Law Reform Committee
claimed that the legal profession is becoming a victim of its own conservative approach to
changing technologies, missing opportunities to use the benefits of information
technology. The committee chair declared that lawyers were reluctant to even look at the
information revolution, and had missed a golden opportunity to use these communication
technologies to demystify the practice of the law to the general public. At the same time,
no doubt, lawyers will continue to wonder why there is so little confidence in the
administration of the law, and a pervasive belief that the law is made for lawyers and
those sufficiently wealthy to employ them.
The recent High Court decision on cross-vesting is a perfect example
of the reasons for this widely held perception. Sure, it's not an easy task, but unless we
bite the bullet and make a better fist of it, we will only ensure that the law remains a
bewildering muddle to most of us.
Read this: The legal information contained above is
intended to be general information about the law. It is not a substitute for legal and
other professional advice. Lawscape Communications P/L does not accept responsibility for
loss to any person, who either acts or does not act because of this information.
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