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Gleeson, Phil --- "Editorial: Fulfilling Democratic Ideals?" [2021] PrecedentAULA 1; (2021) 162 Precedent 2


FULFILLING DEMOCRATIC IDEALS?

By Phil Gleeson

As I write this, US citizens are dealing with the aftermath of the Capitol Hill riot.

On 6 January, a large and agitated mob of fervent supporters of the 45th President stormed the Capitol buildings in Washington DC, then breached all security perimeters and entered the chambers of both the senate and the congress. Handguns were drawn, and tragically a woman was shot and killed. There were five deaths in total.

At a rally earlier that day, President Trump had fired up the mob for more than an hour with conspiracy theories about electoral fraud, then told them to march to the Capitol building and to ‘fight like hell’.

It is difficult to observe President Trump’s final three months in office without reflecting on the purpose of government, and what is required to bring about good government.

One unavoidable conclusion is that even in a nation state with a detailed and principled constitution, together with centuries of tradition upholding the rule of law, there is no guarantee that the interests of civility and good government will be observed.

I can hear you asking: what on earth does this have to do with compensating the victims of motor vehicle accidents? Perhaps it is a long bow but at this moment, as I read this edition, it feels like our nation’s accident compensation schemes might contain some of representative democracy’s better work.

Anthony Clifford Grayling has recently stated that ‘[d]emocracy is about continual negotiation, a gyroscopic keeping of balance, in an effort to achieve the best for all – not for most or some – and therefore accepting the costs and limitations of inclusivity, of respecting the right of all to participate’.[1]

Each of us will have some understanding of how our respective state or territory motor accident schemes have developed over time. Some jurisdictions have been able to expand and supplement rights by rebuilding their schemes around no-fault benefits while preserving access to traditional tort liability remedies. Other schemes, like my own in WA, remain unashamedly fault-based, with a government-compulsory insurer. Statutory caps and the codification of some heads of damage are designed to ensure affordability for the state CTP insurer. More recently in WA, an adjunct no-fault scheme has commenced to assist the most seriously injured victims of single vehicle road accidents. This costs the community an additional $100 for each licensed vehicle but was a welcome solution to a glaring injustice.

Recent events have caused me to consider these compensation schemes at a high level of abstraction. Such schemes are surely evidence of civility and democratic ideals: a compulsory levy on users of motor vehicles; a prudentially managed and invested fund/s; a regulated scheme allowing access to compensatory benefits to ameliorate and replace the losses that arise from injury and death on our roads. A community deciding to share and offset the burden of road use risk.

These schemes are, of course, not perfect. Economists will argue that fault liability in tort law alone, in the presence of comprehensive insurance, will not drive behaviour modification of motorists and therefore lead to safer roads and reduced costs to society. But our schemes cannot be measured only by corrective justice. When considered in their entirety, they can be regarded as economically efficient systems which increase the wealth of the community.

If modern states are indeed preoccupied with the redistribution of wealth, who will advocate for the wealth of the community as a whole? This is the point at which a legal practitioner must see his or her advocacy role as something more than simply effecting transactions within the system but as also safeguarding and advocating for the system itself. To be a guardian of certain values. A critical thinker about a scheme’s constituent elements, to work beyond our legal practices to champion a scheme’s benefits, and to participate in a scheme’s improvement where gaps and injustices occur.

As lawyers, we are very good at being advocates for individuals within the system but often lose sight of our potential to be an advocate for the entire system. I urge legal practitioners to be part of what Anthony Clifford Grayling calls the ‘continual negotiation’.

Phil Gleeson is a founding director of Percy Kakulas Gleeson in WA. EMAIL Phil.Gleeson@pkglaw.com.au.


[1] AC Grayling, The Good State: On the Principles of Democracy, Bloomsbury, London, 2020.


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