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Editors --- "Opinion: What is the greatest challenge facing Australian law today?" [2003] AltLawJl 29; (2003) 28(3) Alternative Law Journal 106

OPINION
What is the greatest challenge facing
Australian law today?

As part of the 30th anniversary of this journal, the NSW Committee asked a number of people, lawyers and non..lawyers (and refugees from the law), to provide 100 words on what they saw as the greatest challenge facing Australian law today. These responses reflect the diversity of our challenges and many of our current concerns. I’m sure Eva Cox would agree with the Honourable Bob Brown in relation to the recent passing of the ASIO Bill, that 25 June 2003 was a black day for Australian human rights. I agree with the comment made by James O'Loghlin that; 'the law's purpose is to help us live with each other' – but, unfortunately, recent government bills seem more likely to reinforce a view of human relations which is the dark side of philosophies of white male individualist capitalist societies. That is, individualism is good, as long as you look like me; and difference Is good as long as it fosters economic competition and keeps the money flowing. All else is to be doubted.

As human rights barrister Simeon Beckett points out in the Sydney Morning Herald (26 June 2003) the ASIO Bill also does nothing for freedom of the press. Indeed, the difference between wholesale and retail terrorism, so clearly described by Chomsky .appears to remain lost on many who still distinguish between 'terrorism' and 'the war on terror' as if they were different things. Worse. there are some who would seek to stifle a discussion in which such comparisons were questioned -to silence dissent from the dominant paradigms. As If such a silence would save us. Dissent in words is the only way back from fear. Dissent with words is the only way to prevent a resort to arms – but it is more time consuming and will not ever provide the seeming clarity of military intervention in which there are victors and losers. Military campaigns which keep being put forward as the solution. as if such actions have the capacity to provide the blank sheet upon which a new right history may be written -as if nothing had come before.

Milan Kundera once said that the struggle of history Is the struggle of memory over forgetting. The reality is there is no forgetting. So for this reason, dissent based on the key recognition of another's right to disagree, and disagree vehemently, but without resorting to arms, is one of the 'brilliant, complicated and wise things' (to quote James O'Loghlin again) one can do in the world. This is what au those involved in this journal continue to do.

Kellle Edwards

Kellle Edwards is a Sydney lawyer.

There are immediate threats in government-sponsored ASIO bills, proposed human rights changes and other political uses of legal processes, which are designed to exploit fear and undermine their critics. Democracy is supported by separation between the judiciary and the political system to ensure fairness and justice. When government tries to use its power to silence dissent, then the system starts cracking and losing its legitimacy.

Eva Cox Senior lecturer, Dept of Writing, Journalism and Social Inquiry, UTS

In the sphere of private law, the greatest challenge in Australian law today is to revive political interest and public debate in a fundamental reorientation of the system of compensation for personal injury and death in accidents. In particular, the challenge is to revive interest and debate in replacing the fault-based tort law compensation system with a comprehensive no-fault accident compensation system which focuses, as an imperative of community responsibility, on the needs of accident victims generally. Since the Industrial Revolution the common law has been fixated on the notion that fault is the only basis for the compensation of accident victims. This has produced in Australian law today an inefficient, expensive and highly selective tort law compensation system which is incapable of addressing societal needs.

Ross Anderson

Senior lecturer, Law, The University of Sydney

Australian society is based on a set of shared values which are so obvious that they go without saying. Freedom from arbitrary detention and the primacy of the rule of law are among those assumptions. Both of these obvious ideals are under threat. The government's policy of indefinite mandatory detention of asylum seekers violates the first ideal. The second ideal-the primacy of the rule of law-is threatened by our government's establishment in Nauru of a variant of Guantanamo Bay. There, at the request of Australia, asylum seekers are locked up in violation of Nauru's constitutional guarantee of personal liberty, and at Australia's request they are prevented from having access to lawyers despite a clear constitutional right. It is a disturbing thing that an Australian government, in peacetime, is prepared to prevent innocent people from having access to legal help when they are held in detention. Although it is happening offshore, it betrays an attitude to the rule of law which is profoundly disturbing.

One of the greatest challenges to Australian law in the immediate future is to formulate and implement a Bill of Rights which articulates those things which, until now, were so obvious that they went without saying. We can no longer depend on assumptions about basic rights, nor can we depend on our government's attitude to basic rights.

Julian Burnside QC

Julian Burnside is a Melbourne barrister.

Australia may be stable, but is it fair? While we worry about our self-image (the stale republican debate) our blind spots remain (reconciliation, refugees, racism).

For law to have legitimacy it needs to come to grips with the social, the cultural and the political. It is too easy to generate laws. Respect, tolerance, equality and interdependence. These are much harder, these require dialogue, engagement, honesty and time. Instead, we get tough on crime, and tough on asylum seekers.

The mythology of Australian law began with terra nullius and followed with the consistent failure to recognise any form of Aboriginal sovereignty. From this we have erected a system of law that looks forward, never back. A system with a deception as its foundation. In fact we are sovereign; it is our responsibility to change what we have created.

Daniel Joyce

Solicitor and student, 2003

I think the biggest challenge facing the Australian law today is how to make the system serve those most in need of justice – Indigenous people, poor people and outsiders like asylum seekers.

To do that, the legal community must push for legislation and policy reform at the highest levels, but it must also band together to save legal aid from its near-total demise and create a culture where commercial firms set aside resources for those who cannot afford to pay. A change must also take place in law schools, where students learn to be lawyers but generally don't learn about the failings of our system or how to remedy them. Unless the law can truly be a tool for those Australians who are most unjustly treated in our society, we can hardly say we have an Australian justice system, but merely a legal

system.

Sarah Gilbert

Refugee from the law.

She took her degree at the University of New South Wales but is now a newspaper reporter in New York City.

The greatest challenge to face Australian law comes from those who seek to defend us from crime and terrorism by limiting our liberty. Politicians are to blame first, but so are those who fail to stop those rights being limited.

By shaving small increments from broad civil liberties, state and federal governments change what it means to live in our free and democratic society. Lawful rights differentiate liberal democracies from the tyrannical regimes we oppose.

The post September 2001 world is, it's true, different. But so is the post-Lockerbie world, the post-Munich 1972 world, the post Hilton bombing world.

Those terrorist attacks were dealt with, or managed, and our liberty remained intact.

The cracks now appearing are more the result of an inside job - over-reactions to the twin threats of crime and terrorism – than necessary measures to prevent real threats.

It is up to the law, its practitioners and lovers of liberty to stop those cracks spreading.

Tim Dick

Journalist and former lawyer


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