Law and justice in Australia: A dream of improvement

I dream of fewer children in mandatory immigration detention in Australia under this nation's laws. I also dream of true independence of the members of the migration tribunals who decide such cases, so that they will not be subject to any apparent pressure of short-term appointments to reach conclusions unfavourable to applicants for protection.

International Human Rights Law

I dream the day will come when the use of the basic principles of international human rights in the elucidation of Australian law will no longer be remarkable or even controversial. I look to a time when it will be accepted by judges everywhere in Australia that this is the context in which our national law now operates.  When it will be realised that it is as relevant to us to look to the jurisprudence of universal rights today as it is to open the old books of English case law when we are searching for basic principles. I honour the wise and learned judges of the English courts in centuries gone by. They still have much to teach us in Australian law. But so have the wise and learned judges and contemporary writers in the field of universal human rights.

Sometimes the basic principles and all the scholarship cannot alter the clear requirements of Australian law. When that is so, our duty to the Australian Constitution and the law is clear.  But in many cases that come to Australia's courts the law is uncertain. The Constitution is ambiguous. A statute is unclear. The common law has gaps. In such cases, it is the judicial obligation to make choices. Lawyers must help judges to make wise and lawful choices. I dream of the day when resolving the choices by reference to the principles of universal human rights, and international law more generally, will be a matter of course; a commonplace taken for granted because our law must operate in a world of growing legal and human inter-dependence.

Legal education

I dream of legal education in Australia which will be strengthened by an appreciation that law is not just words or rules or statutes or regulations. That law has a deeper meaning and purpose. I dream that legal education in this country will always include the teaching of human rights, so that lawyers come to the profession equipped with an understanding of the contemporary moral under-pinnings of their vocation.

I dream of a restoration of legal history to its proper place in every law curriculum. In the understanding of history, we can perceive the broad streams of the law. We see how legal rules have been developed. In history, we can witness the fundamental concepts of justice that pass from generation to generation. These are the topics that must be taught not as occasional adjuncts to the words and rules. These topics, and jurisprudence (however named) help us, as lawyers, to reflect on what we are doing and why we are doing it.

Media treatment of law

But how do we bring the message of law to the nation? It is not merely through the learned pages of the law reports. Equally it is not through the coverage of our work in the contemporary media. The modern press, radio and television, for the most part, are shamefully neglectful of the activities of law: the subjects of the third branch of government in Australia. They ignore its great controversies. They trivialise its serious business. They personalise its disagreements. Sadly, media today often thrives on causing jangling discord within our nation and ignoring the constructive ways in which the symphony of democracy operates, including in the courts.

Not long ago an important case was decided by the High Court and hardly noticed in the media. In it the Court divided 4:3. Chief Justice Gleeson, Justice Gummow and I dissented to the conclusion that the Migration Act could be interpreted to permit indefinite detention of a stateless person whom it had proved impossible to remove from Australia to a country of nationality despite his request. Constitutional considerations affecting the power of the Federal Parliament and the Executive Government to withdraw liberty from a person indefinitely were considered by the Court. The case was clearly important for individual freedom in Australia. The outcome was described by one of the majority (Justice McHugh) as “tragic”. The law should repair tragedies, wherever possible; not just lament about them.

If “liberty” is one of the chief concerns of all governance, the decision in this case was objectively one of profound importance. Yet the coverage of the decision in the media was very limited. Instead, in the days that followed that decision, the media occupied itself with gusto over the travails of the then Governor of Tasmania. On any view, the significance of a decision about the power of the federal Government (without judicial authority) validly to detain people in Australia indefinitely was far more important than the largely media-created spectacle of a State Governor's departure from office.

I dream of an Australia that is aware of the large issues decided in its courts, and especially in the High Court: A country alert to the values and principles that are at stake and a media that communicates these issues to citizens. Even a media that occasionally lifts its eyes from self-generated entertainment. How can a country truly respect the law, and the rule of law, if it is ignorant of the serious issues that engage the courts? How can a true republican form of government operate in the service of the people of the Commonwealth, if the people are kept in woeful ignorance of the work of the judicial branch of government?

Pro bono and legal aid

I dream also of better services for those who have genuine cases to bring to resolution. The decision in Dietrich has addressed the problem of serious criminal trials. But it has done so at the cost of legal aid in many other areas of the law, including family law and civil claims.

I dream of a day when court procedures will be changed to make it easier for self-represented litigants. Our system of law is strong and independent when you can get to it with equality of arms. But without competent legal representation, our system of law is a minefield for the untrained, whatever may be the objective merits of their cases. Lawyers cannot wash their hands of the defects of the system that they help to create and operate. I dream of a legal profession that rejects shallow self-satisfaction and on the contrary, is self-critical and conscious of the needs for change: A profession that is always striving to make equality before the law a living truth, not just an empty boast.

Protecting all minorities

In Australia there are still those who thirst for freedom. There are still minorities who suffer unjust discrimination: who quest for equality before the law.