Presented by Judge Joe Harman at the Legal Studies Teachers Conference 15 March, 2014
Thank you for inviting me to attend today to speak.
Before beginning and especially as I will be discussing issues of justice and the rule of law I would like to acknowledge and pay my respects to the traditional custodians of these lands upon which we meet, the Darug people.
I recognise their culture as the oldest living culture on this planet.
I acknowledge and offer apology for the great injustices that have been inflicted upon the Darug people and all indigenous peoples throughout Australia and around the world including through the passage, application and enforcement of laws that were unjust, barbaric and genocidal.
The strength of Australia’s indigenous peoples has been shown through their survival and maintenance of language, lore and culture.
These are and always will be aboriginal lands and that truth must be acknowledged before reconciliation or justice can be truly achieved. However, the survival of Australia’s first inhabitants and the strength and courage they have shown in enduring injustice is a lesson to us all to reflect upon today and every day.
What are Laws?
The existence of laws is fundamental to a society governed by the rule of law. However, the creation and enforcement of laws does not, of itself, constitute or enable a society to be governed by the rule of law.
The important distinction must be drawn between a society governed by laws and a society governed by the rule of law. A society governed by laws, without consideration and embrace of the rule of law as a guiding and underlying principle, has the potential to be a tyrannical or “Police” state.
There are a myriad of definitions of “law” and it is, perhaps, instructive to consider a number of those definitions and statements made regarding them before turning to consider how laws might be (or have been) used to achieve justice or oppression and thus why the “rule of law” is fundamentally important in achieving the former rather than latter outcome.
The Organisation of American States1 provides this useful definition:
The law is a set of rules for society, designed to protect basic rights and freedoms, and to treat everyone fairly
The Legal Services Commission of South Australia provides the following useful and interesting discussion (rather than definition) of laws2:
a law is the product of the social conditions at the time it is made. The law is not static. Just as relationships between people or between people and the Government are not fixed permanently, so the law changes by responding to the current social and political values of the dominant culture. As societies become more complex so too does the law. It governs our private relationships through contract, tort, property, succession, trust and family law as well as our public relationships with the State through criminal, constitutional and administrative law
The Canadian Department of Justice provides the following insight3:
Rules made by government are called "laws4." Laws are meant to control or change our behaviour and, unlike rules of morality, they are enforced by the courts… Ever since people began to live together in society laws have been necessary to hold that society together… Even in a well-ordered society, people have disagreements, and conflicts arise; the law provides a way to resolve disputes peacefully… Laws help to ensure a safe and peaceful society in which people's rights are respected
Whilst the above examples are illustrative they make clear that laws are generally accepted as addressing fundamental purposes including:
- Changeability and responsiveness
- Protective of individual and collective rights
If one were to turn to utilitarian jurisprudential philosophers5 such as Bentham, Milne and Paine it might be opined that a “good” law:
- Protects individual freedom;
- Ensures collective security (including through the individual’s responsibility to not infringe that security through the prudent exercise of his/her freedom by reference to the freedom of others); and,
- Acknowledges and protects fundamental rights.
Yet clearly there are examples where laws have not met these purposes and yet have been laws enacted by elected governments. Readily recognised examples might include:
- “Jim Crow” segregation laws in various of the United States of America (whereby segregation was legally imposed or protected by “separate but equal” laws) and enduring until the 1960’s6
- Similar Australian laws establishing the various officers of the Protector of Aborigines7
- Apartheid and Pass laws in pre 1994 South Africa8
- Russia and Zimbabwe’s recent anti gay laws
- The suggested “Illegality” of recent Crimean succession motions.
The importance of laws being uniform in their application is generally accepted as fundamental to their doing justice. However, there are clear and obvious examples when this has not been so even when suggested to be so or where on the laws’ face it has appeared to be so. On such example is the 1776 American Declaration of Independence which contains the prosaic opening passage:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are Life, Liberty and the pursuit of Happiness
Whilst few would cavil with these words it must be remembered that at the time such “freedom” was declared as universal that:
- Women were not legally recognised as equal nor permitted to vote (a circumstance I have listed first amongst many injustices arising from the Declaration as I prepare this speech on International Women’s Day);
- The First Nations Peoples of the then United States were not treated with such unanimity of equality9;
- Slavery flourished10 (and including a number of the drafters and signatories of the Declaration owning slaves).
The injustice of such anomalies (indeed hypocrisies) has been the subject of substantial and significant comment by judicial officers and political and Civil Rights leaders including:
Our constitution is color-blind, and neither knows nor tolerates classes among citizens….The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved
- Justice Harlan11
Freedom and justice cannot be parceled out in pieces to suit political convenience. I don't believe you can stand for freedom for one group of people and deny it to others.
- Coretta Scott King
Law and order exist for the purpose of establishing justice and when they fail in this purpose they become the dangerously structured dams that block the flow of social progress.
- Martin Luther King Jnr
Laws are the means by which political will is given expression. Thus if the political will is not just then nor will be the expression of that will. In this sense the absence of justice constitutes injustice and injustice oppresses. Similarly, a law passed for an unjust purpose will oppress.
Martin Luther King Jnr had sagely opined that:
Law and order exist for the purpose of establishing justice and when they fail in this purpose they become the dangerously structured dams that block the flow of social progress
Sadly time does not permit any detailed discussion of what might be meant by “justice”
What is the Rule of Law?
Robin Speed, President of the Rule of Law Institute of Australia offers the following as regards the rule of law:
The rule of law is an overarching principle which ensures that Australians are governed by laws which their elected representatives make and which reflect the rule of law. It requires that the laws are administered justly and fairly.
The website of the Federal Attorney General’s office states12:
The rule of law underpins the way Australian society is governed
The website goes on to indicate that:
We uphold the rule of law through our daily work to ensure:
- laws are clear, predictable and accessible
- laws are publicly made and the community is able to participate in the law-making process
- laws are publicly adjudicated in courts that are independent from the executive arm of government
- dispute settlement is fair and efficient where parties cannot resolve disputes themselves
These statements whilst accurate and appropriate assume a shared understanding of what is meant by “the rule of law” and its importance to the community. The difficulties with such definition are inherent in the following by Geoffrey de Q. Walker in The rule of law: foundation of constitutional democracy, (1st Ed., 1988)13:
There is no single agreed definition of the rule of law. However, there is a basic core definition that has near universal acceptance. As Emeritus Professor Geoffrey Walker, has written in his defining work on the rule of law in Australia “most of the content of the rule of law can be summed up in two points: (1) that the people (including, one should add, the government) should be ruled by the law and obey it and (2) that the law should be such that people will be able (and, one should add, willing) to be guided by it”
With regards to disobedience of the law the 1946 Nuremberg War Trials (The International Military Tribunal for Germany) had concluded:
…individuals have international duties, which transcend the national obligations of obedience imposed by the individual State. He who violates the laws of war cannot obtain immunity while acting in pursuance of the authority of the State, if the State in authorising action moves outside its competence under international law.
That a soldier was ordered to kill or torture in violation of the international law of war has never been recognised as a defence to such acts of brutality, though…the order may be urged in mitigation of the punishment. The truetest, which is found in varying degrees in the criminal law of most nations, is not the existence of the order, but whether moral choice was in fact possible.
Such dicta would, in the case of unjust laws, such as might authorise torture or extra judicial killing, be argued to apply.
Martin Luther King Jnr had expressed the domestic and generally Nuremberg position succinctly as:
One has not only a legal, but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws14
And Henry Thoreau had described the role of the citizen as regards unjust laws:
If the machine of government is of such a nature that it requires you to be the agent of injustice to another, then, I say, break the law15
The World Justice Project16 (WJP) provides a more expansive definition of the Rule of Law in the following terms:
The rule of law is a system of rules and rights that enables fair and functioning societies...in which the following four universal principles are upheld:
- The government and its officials and agents as well as individuals and private entities are accountable under the law;
- The laws are clear, publicised, stable and just; are applied evenly; and protect fundamental rights, including the security of persons and property;
- The process by which laws are enacted, administered and enforceable is accessible, fair and efficient;
- Justice is delivered [in a] timely [fashion] by competent, ethical and independent representatives and neutrals who are of sufficient number, have adequate resources and reflect the makeup of the communities they serve.
These 4 principles are then further developed by 9 factors by which the extent to which the rule of law is experienced being:
- Constraints on government powers (meaning that legislators are held accountable)
- Absence of corruption (such as use of public power for private gain)
- Open Government (including transparency of decision making, freedom to information and free and open reporting)
- Fundamental Rights (such rights being clearly identified, acknowledged, protected, universally applied and free from infringement by legislation or application of decisions)
- Order and Security (ensuring that individuals and society collectively are protected from violence so that citizens feel secure)
- Regulatory enforcement (ensuring that laws are openly, publically and consistently applied and enforced)
- Civil Justice (the availability of and free, unfettered and equal access to a means of resolution of civil disputes between citizens)
- Criminal Justice (a means of redressing grievances arising from alleged offences against society)
- Informal Justice (the acknowledgement of traditional, tribal, religious and community based systems of law and dispute resolution).
Based upon these factors the WJP maintains a world “Rule of Law Index”17 in which Australia ranks 8th18 of 99 countries ranked19.
There are a number of particular areas of Australia’s ranking that are less favourable than others (both within Australia’s overall ranking and as compared with comparable, western countries). It is these aspects of the ranking which I wish to explore and discuss as illustrative of challenges which the rule of law faces in the 21st Century and including:
- No discrimination in Criminal Law (0.53/1)
- No unreasonable delays in justice systems (score 0.6/1)
- Effective Correctional System (0.64/1)
- Access and affordability of Civil Justice (0.48/1)
- Equal treatment before the law with no discrimination (0.65/1)
One aspect of the WJP Index which inherently impacts the last criteria above (equal treatment before the laws) is the acceptance and differentiation within the index that those members of society within a “high income group” enjoy a far better experience of and express a far higher confidence in the effective operation of the rule of law than those from without that group.
One further observation which must be made and which is a great credit to the Judiciary within Australia (of which I am part) is scoring with respect to the issue “How serious is the corruption of Judges and Judicial Officers...they won’t move the case unless the parties bribe them” which attracts a 0% response and which applies equally to both criminal and civil Courts as well as the response to “No corruption in the judiciary” at 94% (both responses demonstrating a substantial and appropriate public faith in the independence and integrity of our judiciary).
No discrimination in Criminal Law
Criminal laws that are passed entirely without inclusion of discriminating factors can, through the operation of that law, on its face of universal application, create discrimination based on either non universal enforcement or based on the existence within one group of behaviours or factors which means the law is more likely to apply to persons from within that group.
Such matters can arise through non-uniform application of a law. This is an issue raised by many commentators as regards US drug laws20 and London and New York “stop and frisk laws”.21
It is clear that there is pronounced discrimination, in its broad sense, as regards aboriginal Australians and the criminal justice system.
The Australian Bureau of Statistics in 2013 produced the following as regards aboriginal incarceration rates22:
The rate of imprisonment for Aboriginal and Torres Strait Islander prisoners was15 times higher than the rate for non-Indigenous prisoners at 30 June 2012, an increase in the ratio compared to 2011 (14 times higher). The highest ratio of Aboriginal and Torres Strait Islander to non-Indigenous imprisonment rates in Australia was in Western Australia (20 times higher for Aboriginal and Torres Strait Islander prisoners).
Tasmania had the lowest ratio (four times higher for Aboriginal and Torres Strait Islander prisoners). (Table 4.2)
Between 2002 and 2012, imprisonment rates for Aboriginal and Torres Strait Islander Australians increased from 1,262 to 1,914 Aboriginal and Torres Strait Islander prisoners per 100,000 adult Aboriginal and Torres Strait Islander population. In comparison, the rate for non-Indigenous prisoners increased from 123 to 129 per 100,000 adult non-Indigenous population. (Table 4.2)
This incarceration rates Australia wide represents the reality that an aboriginal man is 15 times more likely that a non aboriginal man to be imprisoned.
Aboriginal people represent only 3% of the total population, yet more than 28% of Australia’s prison population is Aboriginal.23 As such 30% of prisoners incarcerated in Australia in 2014 (both male and female) are aboriginal. This rises to 42% for juvenile prisoners.
Australia is heading towards one in two of the prison population comprised by Aboriginal prisoners by 2020. In 1992, the ratio was one in seven.
The fastest growing portion of the prison population is aboriginal women. Between 2000 and 2010 the rate at which aboriginal women were imprisoned increased by 58.6%. Over that period the increase for non-aboriginal women was 22.4%. The rate of increase of imprisonment for aboriginal men over the same period was 35.2% (as opposed to 3.6% for non aboriginal men).
Re offending rates are similarly high and disproportionate.
Also of concern are statistics relating to aboriginal children involved in State Care and Protection (Child Welfare) jurisdictions and a similarly alarming rate of over representation.
In a 2013 statistical review by the Australian Institute of Family Studies24 (AIFS) it was observed that:
Aboriginal and Torres Strait Islander children are over-represented in the Australian out-of-home care system. In 2011-12, approximately 34% of all children in out-of-home care were identified as Aboriginal or Torres Strait Islander. Overall, rates of out-of-home care for both Aboriginal and Torres Strait Islander children and non-Indigenous children have continued to increase since 2000-01 (AIHW, 2013). The number of Aboriginal and Torres Strait Islander children in out-of-home care rose by 7% from 11,468 children in 2009-10 to 12,358 children 2010-11 (AIHW, 2012). These numbers continued to rise a further 7.6% in 2011-12 with 13,299 (55.1 per 1,000) placed into out-of-home care. Aboriginal and Torres Strait Islander children were 10 times more likely than non-Indigenous children to be placed in care nationally with rate ratios ranging from 3.4 in Tasmania to 15.8 in Victoria.
In the 10 years from 1998 to 2008 there was a 258% increase in the number of aboriginal children in NSW living in out of home care25 and such that the rate of aboriginal children in out of home care (largely government arranged care) is now higher than at any previous point in history including during the periods when the Office of the Protector of Aborigines was in existence and during the eras of the Stolen Generations. This is so at a time when adoption is proposed as a preferable outcome to care proceedings.26
AIFS produce the following chart to demonstrate the stark disparities between the rate of indigenous and non indigenous children living in out of home care:
Table 2: State and territory data comparing rates of Aboriginal and Torres Strait Islander children in out-of-home care compared to non-Indigenous children on 30 June 2012
Number of children
Rates per 1,000 children
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