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A wide gap between law and justice

By George Williams - posted Wednesday, 10 January 2007

The law is never far from the front pages, with last year being no exception. We have seen criminals jailed, the difficulty of bringing others to trial and Australians sentenced to death overseas.

What these day-to-day controversies miss is the big picture of the state of our legal system. That picture shows a wide gap between law and justice. Too often in Australia, they are not the same. I suggest four areas where the legal system is broken and should be fixed. The list could be much longer.

For example, I could also point out where the law has failed vulnerable children or where freedom of government information laws mean the opposite of what they suggest.


First, we need to recognise that justice is denied to those who cannot afford it. Long-standing cuts to legal aid and too few community legal centres mean that people often do not get their day in court. What is the point of a legal system if those in need cannot access it?

Even where someone gets to court, they may not get a fair hearing. Many, often desperate, people are forced to appear in courts without legal help. Judges do their best, but a case in which one side has legal advice and the other does not is stacked one way.

Second, we need to fix our dysfunctional federal system. Our foundation law, the Australian Constitution, needs to be modernised. It established a system of government that made a lot of sense in the 1890s, but now does not work as it should.

Instead of clear lines of responsibility, our two levels of government often seek credit for successes but blame someone else when faced with failure. In a state like Queensland, the impact is being felt in hospitals and schools. While the money lies in Canberra, the responsibility lies primarily with the state. This mismatch is undermining the quality of these essential services.

The Business Council of Australia has found that our inefficient federal system is costing taxpayers an extra, wasted $9 billion each year. The larger impact on the economy has been estimated at about $20 billion.

This shows the cost of having two levels of government in a system that allows administrative duplication and political buck-passing.


This long-term problem is often neglected in the short period between elections. However, it is now so pressing and the consequences so obvious that 2007 should mark the year that Peter Beattie's call for a constitutional convention is taken up.

Third, David Hicks needs to be given a fair trial or returned to Australia. Even though an Australian citizen, Hicks has been held at Guantanamo Bay, Cuba, as an "unlawful combatant" for more than five years. This has occurred with barely a murmur of protest from the Federal Government.

Hicks has not been tried and has been kept in conditions worse than would be expected in Australia for the worst convicted criminals, including at times solitary confinement for 23 hours a day.

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First published in The Courier-Mail on December 25, 2006.

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About the Author

George Williams is the Anthony Mason Professor of law and Foundation Director of the Gilbert + Tobin Centre of Public Law at the University of New South Wales.

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