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Chief Justice states that court cases can no longer be decided by reference to obsolete rules and a dictionary

ELLEN FANNING: The Chief Justice of the High Court has moved to dispel what he calls some comforting fairy-tales about the law. Sir Anthony Mason told the Sydney Institute last night, it's no longer feasible for courts to decide cases by reference to obsolete or unsound rules. He says judges simply can't rely on precedent or dictionary definitions, they must be more creative in interpreting the law. Also, Anthony acknowledges that his message will not be welcome in some quarters, but as John McNamara reports, in the view of our most senior judge, initiative from the bench is inevitable.

JOHN MCNAMARA: Last night, the nation's senior judge was practising as he preaches. He noted that judges are becoming more open about what they do, more willing to talk to the media to explain and clarify the often cloudy issues they grapple with. This, Sir Anthony says, is a good thing. People are paying more attention to what the courts, the judges and lawyers are doing. That may be, he says, because of the highly publicised decisions the High Court, in particular, has been making lately. But he fears, really, that's not the case.

ANTHONY MASON: The distasteful and more likely possibility is that much of the public attention stems from dissatisfaction with the quality of legal services provided to the community. The courts and the judges, along with the legal profession, have been in the spotlight of that attention. Received doctrine has it that, due to the very high cost and the delays inherent in litigation, the accessibility of the court system has failed to measure up to the expectations of the ordinary litigant.

JOHN MCNAMARA: Sir Anthony says he disapproves of the notion that for every problem government can come up with a law to make it better. But, as the number of laws and the number of litigants increases, the court system comes under greater pressure. To cope, the Chief Justice can see merit in some of the aspects contained in the civil or European system of courts being adopted, compared with the purely adversarial, thorough but often slow system Australia has inherited from its common law forebears. But, as the courts move to streamline proceedings more and more, Sir Anthony sees the day when judges become more creative in their interpretation of law.

ANTHONY MASON: In doing so, they must resolve questions of interpretation by reference to the policies and purposes which are reflected in that legislation. What I have just said may not be welcome news to those who believe that the courts do no more than apply precedents and look up dictionaries to ascertain what the words used in a statute mean. No doubt, to those who believe in fairy-tales, that is a comforting belief. But it is a belief that is contradicted by the entire history of the common law. That history is one of judicial law-making which shows no signs of unaccountably coming to an end. Changes in the principles of substantive law attract criticism in varying degrees. But interpretations of the Constitution apart, although it is always open to the legislature to repeal or amend the common law as the courts declare it or the interpretation which the courts give to a statute, legislative over-ruling or amendment of a judicial ruling, is a relatively rare occurrence.

JOHN MCNAMARA: But there was more to come. A further reinforcement of the Chief Justice's often-stated concern that the courts need to do even more to create justice when the politicians aren't interested.

ANTHONY MASON: Sometimes judicial initiative is inevitable. That was the case when the High Court decided two years ago that the common law did not entitle a husband to sexual intercourse with his wife against her will, despite old authorities which suggested otherwise. It is no longer feasible for courts to decide cases by reference to obsolete or unsound rules which result in injustice and await future reform at the hands of the legislature. There is a growing expectation that courts will apply rules that are just, equitable and soundly based, except in so far as the courts are constrained by statute to act otherwise. Nothing is more likely to bring about an erosion of public confidence in the administration of justice than the continued adherence by the courts to rules and doctrines which are unsound and lead to unjust outcomes.

ELLEN FANNING: Sir Anthony Mason, the Chief Justice of the High Court.