Law and justice in Australia: A dream of improvement

The best lawyers are those who question received wisdom. They are the ones who look beyond the words of texts; question the current legal orthodoxy; keep their minds open to new thoughts; perceive the growing expansion of law beyond local jurisdiction; and are always alert to law’s abiding mission as an instrument of justice. When, at times, we become disheartened by this or that outcome of the law, it is important for us to remember the strengths of our discipline, for they are many. They include an independent judiciary, our traditions of legal education and law reform, and the willingness of members of the legal profession to work pro bono.

Doing things better

But, like Dr Martin Luther King, who spoke about “the riches of freedom and the security of justice”, I too have had a dream … it was that I had awoken ten years before my appointment to the High Court of Australia in 1996 at a time when Chief Justice Mason presided. Justices Brennan, Deane, Toohey and Gaudron were there and it was a period of history when the Court was specially alert to serious injustices and awake to the traditional recuperative capacities of our law to right significant wrongs. It was the time of Mabo, Dietrich, Theophanous, Kable and all the other cases where doctrines of law and equity were clarified and modernised.

It was a happy dream to be a member of the High Court at such a time. A judicial life of concurrences and agreement is easier by far than a judicial life of dissent and disagreement. The personal burdens are lighter. Typically, the comradeship is easier. Those days will come again to the High Court in the inevitable cycles of the law. They will not come during my time. But of this we can be sure from our knowledge of the law and its rhythms - they will come again when the time is right.

Women in law

I have a dream that women will play their full and rightful place in the law. Women - not just a woman - will take their seat in the High Court. In August 2004 two women were appointed to the Supreme Court of Canada. This brings the numbers of women judges of that distinguished Court to four - four out of nine, including the Chief Justice. In the United States Supreme Court, it is two out of nine. In the High Court of Australia there are no women judges since the retirement of Justice Mary Gaudron.

In my dream, women will be there at every level of the law: on the Bench, at the Bar, in government and in legal partnerships. A woman brings a different life experience to a court as to any other institution. It is a legitimate and important experience to bring to influence the work of a final court. Women sometimes see aspects of legal problems to which men are blinded by their experiences.

Aboriginals and justice

I dream of a legal system that brings true justice to the Indigenous people of Australia. Despite Mabo and the efforts of many parliaments, governments and of the courts, the law in Australia has often failed the Aboriginal people. To this day, the conditions of housing, health, education, employment and opportunities in life are much lower for Indigenous people than for other Australians. The only legal statistic in which Aboriginal people come out on top, in per capita terms, is in their rates of arrest and imprisonment.

Dr King was surely right to say that the freedom of all of us, in the majority community, is inextricably bound up with Aboriginal freedom. I have a dream that the law is not barren. That it can sometimes still yield justice to Indigenous Australians in their cases.

Prisoners’ dignity

I have a dream that, under law, prisoners will be treated with full dignity as befits their status as human beings and (in most cases) citizens of the Commonwealth. So far, the decision of the High Court in Dietrich simply guarantees the rights of prisoners at trial. Prisoners are not assured of legal representation on appeal. In many States of Australia, when unrepresented, prisoners are not brought to a hearing in the High Court to speak to the Court, as all other litigants presently can do in support of an application special leave. The Court has denied requests for orders obliging custodial authorities to bring them to a place where they can be heard by the Court. It has said that prisoners have no such right, as they have not yet engaged the Court's appellate power. They are not yet a party to proceedings in the Court.

For me, such decisions constitute a serious departure from the principle of true equality before the law as envisaged by our Constitution. I have a dream that such unequal and discriminatory treatment will have no place in Australian courts of law in the future.  Prisoners have lost their liberty while they are in prison. They have not lost their human dignity or their right to equality before the law.

Winston Churchill famously remarked that one can judge the civilisation of a community by the way it treats its prisoners. By that test we in Australia, are sometimes found wanting. I dream that this will change, for we are assessed in such matters, both as lawyers and as citizens and as human beings.

Refugees and law

I dream of fewer refugee cases in the High Court of Australia. We have accepted international obligations to receive and protect refugees. Yet often their path to acceptance is a very hard one.

I have a dream that I will not again have to explain to such people their need to demonstrate “jurisdictional error” - not least because I am not fully sure myself about exactly what that opaque notion means. It is an elusive legal will-o’-the-wisp. It is painful to attempt an explanation for those for whom it is crucial and who assert that their lives and bodies are in danger if they are returned to their country of nationality.