: Law reform — or law deform?

Law reform — or law deform?

Melissa Castan

The rule of law is often called upon, but less often understood. The High Court’s Chief Justice Gleeson said, in 2001, that ‘the rule of law is such a powerful rhetorical weapon, both in legal and political argument, that care is needed in its deployment.’ So what does it actually mean? The classic modern statement of the meaning of the rule of law was offered by the late Lord Bingham who said, in The Rule of Law (2011), ‘that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly made, taking effect (generally) in the future and publicly administered in the courts.’ He went on to explain eight key principles, which included that the ‘the laws of the land should apply equally to all’, and that ‘the law must afford adequate protection of fundamental human rights’.

We are now witnessing a deliberate assault on the fundamentals of our legal system, by powerful groups ‘emboldened by a pack mentality and flexing … power, without regard for the concerns of others.’ (Peter Callaghan SC, 15 October 2013, Courier-Mail.) Are we going to let these groups, our elected representatives, get their way?

In Victoria, the prisons and police cells are overcrowded and dysfunctional due to ill-conceived changes to sentencing; there are now problems bringing people to court for hearings. They are not yet convicted of a crime, they are left waiting to see a lawyer and be dealt with by the court (and don’t even ask for a mental heath professional assessment in the meanwhile). In New South Wales the government has, with little consultation, introduced legislation to extend police powers of arrest, and lower police accountability. These laws are ambiguous, infringe fundamental civil liberties, and should have been subject to the normal public review process.

In Queensland, ‘anti-bikie’ laws remove the normal legal standards of the onus of proof, bail and sentencing, making special laws for those deemed gang members or associates. But Queensland already has a strong criminal code, robust enough to enforce against law-breakers. These new laws, rushed through the parliament without consultation — under the catch-cry of an ‘emergency’ and ‘it’s what the public wants’ — also happen to apply to groups of three people, engaged in criminal activity. Examples of how this could go bad abound, but Richard Ackland in the Sydney Morning Herald suggested this simple one:

[I]f three 17-year-olds were caught smoking a joint in a park, they would be up for a fine (with no conviction recorded) for drug possession. In addition, they would be exposed to a mandatory sentence of 15 years because they have been empaled by VLAD.*

The mandatory sentence might rarely be imposed because, when offered the choice of a plea or being charged under the bikie laws, young smokers would take the plea. Too easy!

The ‘Laura Norder’ agenda hasn’t taken hold at the federal level yet. However allegations of serial impropriety in parliamentarians’ expenses claims seem not to be subject to the rule of law principle — that the law should apply equally to all. Regular taxpayers or Centrelink recipients are not afforded the same discretionary compliance standards that Ministers attract.

New policy means that certain refugees are not able to be seen, heard, or given access to the normal legal processes upon arrival; even how they are to be described is subject to control. The rapid dismantling of a raft of advisory bodies, such as the Climate Commission, the Refugee Review Tribunal Legal Advice Scheme and the National Alternative Dispute Resolution Advisory Council among others, is also of great concern. Of course governments have different views of what is valuable, but presenting this as ‘streamlining’ of resources or ‘simplifying’ governance structures is, in fact, an ideological attack on the rule of law where the simplification removes access to legal advice.

So, what is the legal profession’s role in the face of these assaults on the legal process? Law students learn about the rule of law, lawyers practice law under a set of professional ethics and rules that embrace the concept. But it would be dangerous to assume that the concept of that rule, or the principles that underpin it, will withstand relentless assault without suffering long-term damage. As lawyers are part of the justice system, and the justice system is part of the system of governance, we have an ethical and professional role in evaluating and, if necessary, critiquing and dissenting when changes within the political and legal system don’t meet the highest standards of justice, and don’t embody the principles of the rule of law.
Politicians are denigrating the principles underlying the rule of law, though the incremental (or wholesale) onslaught of law deform (for it is surely not law reform as we understand it). As lawyers, do we have a responsibility to intervene and fight the destruction of this key pillar of our Australian legal system? Why, yes, we do.

MELISSA CASTAN teaches law at Monash University.

* One of the new laws, the Vicious Lawless Association Disestablishment Act

(2013) 38(4) AltLJ 208
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