A wide gap between law and justice

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.

His case is an affront to our commitment to the rule of law and to the idea that every person should be treated fairly. This time next year, we can only hope that Hicks is not facing the sixth anniversary of his imprisonment.

Finally, we need a national law that protects citizen's rights from government. Australia is now alone among all democratic nations in not having a national charter of rights or human rights law. In 2006, this meant that even the right to vote was whittled away. A law passed mid-year means that many young people will not vote in the next federal election.

This is due to the premature closing of the electoral roll on the day that writs for the election are issued.

Other laws have affected our freedom of speech, such as the sedition law that jails people not for what they do but for what they say.

There are signs, at least in this area, of change for the better. This year Victoria enacted a Charter of Human Rights and Responsibilities. It is an ordinary act of Parliament that protects civil and political rights that have broad popular support. It is a safe model that Queensland and a federal government could follow.

Australian law needs change. The costs of not doing so are high. Without reform, we will limit our economic prosperity and continue a number of injustices, both large and small.

2007 ought to be the year that we get the law reform agenda back on track.