The ongoing need to ‘democratise’ the law

The ongoing need to ‘democratise’ the law

Democratise the law – It is a fundamental principle of our legal system that ignorance of the law is no excuse.[6]  If ignorance is no excuse, it stands to reason that the ordinary citizen must be placed in a position to learn what the law is (at least to the extent that this is reasonably possible).  In this regard, in Coleman v Power[7] Gleeson CJ referred to the important statement of Scott LJ in Blackpool Corporation v Locker,[8] saying that:

‘the rule that ignorance of the law is no excuse is “the working hypothesis on which the rule of law rests in British democracy”. Most significantly his Lordship went on to make the point that the corollary of the rule is that information as to the content of the law should be readily accessible to the public.’

In Australian Competition & Consumer Commission v Anglo Estates Pty Ltd[9] French J restated the rule in terms more apt for those in the antipodes, saying that ‘… the rule that ignorance of the law is no excuse is the working hypothesis on which the rule of law rests in Australian democracy.’

In 1948, when Blackpool Corporation v Locker[10] was decided, there were real practical difficulties to enabling free access to the law. Scott LJ made the point, with respect to sub-delegated legislation, that if there is no obligation to publish, then:

John Citizen may remain in complete ignorance of what rights over him and his property have been secretly conferred by the minister on some authority of other, and what residual rights have been left to himself. For practical purposes, the rule of law, of which the nation is so justly proud, breaks down because the aggrieved subject’s legal remedy is gravely impaired … [and] … appear to me ex debito jutitiæ to demonstrate the crying need of immediate publication …

Not long before, the Chancellor’s Commission on Law Reporting had rejected proposals to restrict litigant to relying upon cases reported in the Authorised Reports on the grounds that it would strike ‘at the base of “one of the pillars of freedom, that the administration of justice must be public.”’[11]  More recently, Justice Lindsay has noted that the ‘availability, accessibility and content of reports of the processes and decisions, of Australian courts are central to the concept of “law” in Australian society.’[12]

The central importance of the case law being readily available, as opposed to merely a text book or bureaucrat’s summary on a web page, lies in the fundamental nature of the doctrine of precedent. As Bacon so eloquently expresses it:

It is a sound precept not to take the law from the rules, but to make the rule from the existing law.  For the proof is not to be sought from the words of the rule, as if it were the text of law.  The rule, like the magnetic needle, points at the law, but does not settle it.[13]

Even in modern times when so much law is to be found in statute, and the words are the text of the law, there are such broad discretions that access to examples of application of the statutory rules, in order to identify the normative outcomes, is essential to a nuanced understanding of the legal rules.

If ignorance of the law is no excuse, and realistic access to justice expected for every citizen, then the case law must be freely available in a format that can not only be accessed, but used by ordinary citizens in the courts.  The only realistic way to achieve this is to allow decisions found on AustLII to be relied upon in court.

Read more here by Judge Grant Riethmuller

Brisbane / Gold Coast / Sunshine Coast

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