Monash WordFest: 10 July 2018
THE FUTURE OF JUSTICE AND DEMOCRACY IN AUSTRALIA
Starting Points 1
The American Declaration of Independence 1
The Declaration of the Rights of Man and the Citizen 2
Dred Scott 3
The Gettysburg Address 6
The Nexus between Democracy and Justice 7
The Melian dialogue 8
The Zorg 9
The Universal Declaration of Human Rights 9
Australian Values 11
It should not come as a surprise to anyone here that I am not a political theorist. So what I have to say about the future of democracy should be regarded as speculative and under-informed. I think I know a bit about Justice, so what I say about the future of Justice is also speculative, but tolerably well-informed.
I will not reach back to ancient Greece: their version of democracy has almost nothing to do with ours. But consider the American Declaration of Independence.
The American Declaration of Independence
Forgive me if I give a bit of background.
It is easy to forget that, at least until the English Civil War, the received theory of Government was that Kings ruled by divine right and they could not safely be removed.
The English Civil War (1642-1647) was the result of growing tension between King Charles I and his Parliament but it had not been fought when the British colonized North America by establishing a settlement at Jamestown, Virginia in 1607. By 1773, the Americans had tired of being taxed by a British Government in which they had no say. Their direct expression of discontent was called the Boston Tea Party. The British Parliament had been trying to raise funds to help the East India Company. It increased import duties by passing the Tea Act in 1773. On December 16, 1773, the so-called “sons of liberty” boarded three ships in the Boston Harbour under cover of night and threw 342 chests of tea into the harbour. This was one of the triggers of the American Revolution which began in 1775 and ran through until 1783. However, by July 1776, the revolutionaries had decided that the time had come to declare America’s independence from the British. On the 4th July, 1776, in congress, the 13 American colonies signed the Declaration of Independence. It is a comprehensive list of complaints about the English monarchy, and starts like this:
“When in the course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the laws of nature and of nature’s god entitlement, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
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.
That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed,
That whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles and organizing its power in such form, as to then shall seem most likely to affect their safety and happiness …”
The reference to “life, liberty and the pursuit of happiness” is widely known and universally famous. But the simple explanation of the nature of government and the source of power to form government is often overlooked and was truly revolutionary.
The Declaration of Independence was a revolutionary act, the result of years of careful thinking and calculated activism. Even though some of the large objectives of the preamble to the Declaration of Independence have not yet been achieved, it has to be said that it was a great triumph and a step in the right direction.
The Declaration of the Rights of Man and the Citizen
The French Revolution started in 1789: just one year after white settlement in Australia. The Declaration of the Rights of Man and the Citizen was prepared at about the same time. It is not surprising to learn that Thomas Jefferson had a hand in drafting it. It was influenced by the political philosophy of the Enlightenment and principles of human rights, as the U.S. Declaration of Independence was. (Jefferson had prepared the first draft of the Declaration of Independence).
The first five articles of the Declaration are immediately recognisable as a reflection of modern thinking:
1. Men are born and remain free and equal in rights. Social distinctions may be founded only upon the general good.
2. The aim of all political association is the preservation of the natural and imprescriptible rights of man. These rights are liberty, property, security, and resistance to oppression.
3. The principle of all sovereignty resides essentially in the nation. No body nor individual may exercise any authority which does not proceed directly from the nation.
4. Liberty consists in the freedom to do everything which injures no one else; hence the exercise of the natural rights of each man has no limits except those which assure to the other members of the society the enjoyment of the same rights. These limits can only be determined by law.
5. Law can only prohibit such actions as are hurtful to society. Nothing may be prevented which is not forbidden by law, and no one may be forced to do anything not provided for by law…
For all this, it is worth noticing that these principles expressly did not apply to women or slaves. And it is worth noting that in 1791 Olympe de Gouge prepared the Declaration of the Rights of Woman. The following year she was executed by guillotine.
Two steps forward, one step back.
I mentioned earlier that not all the objectives of the Declaration of Independence had been achieved. I had in mind, in particular, the case of Dred Scott, whose case is important because it was one of the precipitating causes of the American civil war (1861-1865), and that war, in turn, produced another profoundly important expression of the foundations of democracy.
Dred Scott was born a slave in Virginia, in 1799. He was owned by Peter Blow. The Blow family moved to St Louis, Missouri, in 1830. Missouri had been acquired in 1804 in the Louisiana purchase. It had been admitted to the Union in 1820, as a slave State, as part of the Missouri Compromise. The Missouri Compromise allowed Missouri into the Union as a slave State, but otherwise prevented the admission to the Union of slave States above 36º30’ north latitude. In effect, it guaranteed that slavery would not spread to the other States acquired in the Louisiana Purchase. It had been a hotly contested measure. Since Eli Whitney had invented the cotton gin in 1794, cotton had been a great source of wealth in the southern States, but its profitability depended on slave labour to pick the cotton.
In 1830, Blow sold Scott to Dr Emerson, an army surgeon. Emerson took Scott with him to his various postings. They spent the next 12 years in free States, principally Illinois. They returned to St Louis in 1842. Emerson died in 1846. His executors were his wife, and her brother John Sanford.
In 1846, Scott sued Mrs Emerson in the St Louis Circuit Court. In form, it was a petition for freedom, based on the fact that he had spent years in a free State, and was therefore released from slavery. A decision of the English courts (Smith v. Brown & Cooper (1705) 2 Salk 666) provided an argument that the simple fact of having spent time in a non-slave State meant that Dred Scott’s condition of slavery was dissolved
Judge Alexander Hamilton heard Scott’s case. A technicality in the evidence led to its failing. The Judge granted leave for a new trial. He won; but the decision was reversed by the Missouri Supreme Court in 1852.
By this time, Mrs Emerson had remarried. Her new husband was an abolitionist. She made over Scott to her brother and co-executor, John Sanford. Sanford lived in New York. Thus Scott was able to sue in the Federal jurisdiction, since the suit was between residents of different States. The action was for assault.
Sanford (erroneously called Sandford in the Court record) filed a plea in abatement on the basis that Scott was a slave and therefore not a citizen. Accordingly, so the argument went, there was no suit "between citizens of several States" and the Federal jurisdiction was not attracted. In other words, he sought to have the action struck out peremptorily as incompetent.
The matter was argued in December 1855, and was re-argued in 1856. Powerful interests wanted to retain the institution of slavery: American plantation owners, as well as English manufactureres and merchants. Slavery had been abolished in Britain and its Colonies by the Emancipation Act 1834, but that did not prevent English commerce from benefitting from it indirectly. Such was still the position when Roger Casement undertook his tour of investigation in the Congo Free State (1901-04), and Brazil (1906-11).
The first question in issue resolved to this: was a slave capable of being a citizen under the Constitution, so that his action against a citizen of another State would attract the Federal jurisdiction?
Chief Justice Taney and Justices Wayne, Nelson, Grier, Daniel, Campbell and Catron said that the answer to the first question was No. Taney CJ said:
“The question before us is whether the class of persons described in the plea in abatement compose a portion of this people, and are constituent members of this sovereignty? We think they are not, and that they are not included, and were not intended to be included, under the word "citizens" in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. On the contrary, they were at that time considered as a subordinate and inferior class of beings who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them. …
They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect, and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold, and treated as an ordinary article of merchandise and traffic whenever a profit could be made by it.” (emphasis added)
The ideas expressed, and the intensity of the language used, strike the modern ear as shocking, especially in light of the introductory words of the Declaration of Independence (1776):
" … 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."
Taney CJ dealt with those words in this way:
"The general words above quoted would seem to embrace the whole human family, and if they were used in a similar instrument at this day would be so understood. But it is too clear for dispute that the enslaved African race were not intended to be included … for if the language, as understood in that day, would embrace them, the conduct of the distinguished men who framed the Declaration of Independence would have been utterly and flagrantly inconsistent with the principles they asserted …"
McLean J (dissenting) did not agree in the result on this issue, but expressed himself in language not much happier than that of Taney CJ:
"In the argument, it was said that a colored citizen would not be an agreeable member of society. This is more a matter of taste than of law. Several of the States have admitted persons of color to the right of suffrage, and, in this view, have recognised them as citizens, and this has been done in the slave as well as the free States. On the question of citizenship, it must be admitted that we have not been very fastidious. Under the late treaty with Mexico, we have made citizens of all grades, combinations, and colors. The same was done in the admission of Louisiana and Florida …" (per McLean J at 533).
Curtis J (dissenting) found in the words of the Constitution ample authority for the proposition that a slave could be a citizen of the United States.
The second question was whether a slave could become a free man by entering a free State. The question had precedents in English case law. In 1678, it had been held that if a Negro slave came into England and was baptised, he thereupon became a free man. If he were not baptised, he remained "an infidel" and was not freed: Butts v. Penney 2 Lev 201. This rule was later relaxed: in Smith v. Brown & Cooper Holt CJ had said:
“As soon as a Negro comes into England, he becomes free: one may be a villein in England, but not a slave.”
In Somerset v. Stewart (1772) 98 ER 499, Lord Mansfield had decided on a habeas corpus application that a Virginian slave who had arrived in London must be set free. Lord Mansfield's decision is famous for its declamatory final sentence "The black must go free". It is less well-remembered that his Lordship had tried to avoid having to decide the matter. He had said in the course of argument:
"… a contract for the sale of a slave is good here; the sale is a matter to which the law properly and readily attaches … The setting 14,000 or 15,000 men at once free … by a solemn opinion, is much disagreeable in the effects it threatens … An application to Parliament, if the merchants think the question of great commercial concern, is the best, and perhaps the only method of settling the point for the future …" (emphasis added)
The majority in Dred Scott's case held that the English authorities had no application in the different constitutional framework of the American Union. Specifically, the 5th Amendment prevented the slave being freed by passing into a free State. So far as relevant it provides:
"No person shall … be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation."
To allow that a slave be freed by virtue of travelling to a free State would involve a deprivation of property without due process. It is an interesting irony that a slave owner could not be deprived of ownership of his slave without due process, but the slaves were deprived of liberty without due process. The relevant difference is that slaves were not considered "people" for Constitutional purposes.
For good measure, 6 of the 7 judges in the majority held the Missouri Compromise to be unconstitutional, as contravening the 5th Amendment. Thus they struck down the measure which had, in effect, quarantined slavery to the southern States where the cotton industry was the principal source of wealth, and slave labour was the principal engine of that industry.
The Dred Scott case [reported under the name Scott v Sandford 60 US 393] was decided by the US Supreme Court on 6 March 1857. It provoked bitter controversy. It was one of the precipitating causes of the American Civil War (1861-1865). Abolition was the great question over which the war was fought During that war, on 19 November 1863 (87 years after the Declaration of Independence) Abraham Lincoln famously re-stated the founding proposition of the American Union:
"Four score and seven years ago our fathers brought forth on this continent a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal. …"
In so saying, he was unequivocally advancing the cause of abolition. His address at Gettysburg is regarded as a clarion call for the abolitionist cause.
The Dred Scott case resulted in the resignation of Curtis J, and blighted the reputation of Taney CJ. He was a decent man and a fine lawyer. He had voluntarily freed his own slaves, at great personal cost, and had 35 years earlier described slavery as "a blot on our national character". Ironically, the decision in the Dred Scott case is generally regarded as a blot on the record of the US Supreme Court.
The decision was an exercise in strict construction which reached an unpalatable result by chaining the words of the Constitution to their historic origins. In 1992 Scalia J. - himself no bleeding-heart liberal in matters of construction - said that “ … the Court was covered with dishonour and deprived of legitimacy” by the Dred Scott decision.
On 28 July 1868, in the aftermath of the Civil War, the effect of the decision was overturned by the 14th amendment to the US Constitution.
The Gettysburg Address
During the American Civil War which was, at least in part, triggered by the US Supreme Court decision in the Dred Scott case, President Abraham Lincoln made a speech at Gettysburg. The main speaker of the day was Edward Everett: a politician, preacher, educator, diplomat, and orator from Massachusetts. It was 19 November 1863. In the manner of the times, Everett spoke for several hours. He was followed by President Lincoln, who spoke for just two minutes. His speech was accounted a failure, but is now one of the most famous speeches in the English-speaking world:
"Four score and seven years ago our fathers brought forth on this continent a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal.
Now we are engaged in a great civil war, testing whether that nation, or any nation, so conceived and so dedicated, can long endure. We are met on a great battle-field of that war. We have come to dedicate a portion of that field, as a final resting place for those who here gave their lives that that nation might live. It is altogether fitting and proper that we should do this.
But, in a larger sense, we can not dedicate...we can not consecrate...we can not hallow this ground. The brave men, living and dead, who struggled here, have consecrated it, far above our poor power to add or detract. The world will little note, nor long remember what we say here, but it can never forget what they did here. It is for us the living, rather, to be dedicated here to the unfinished work which they who fought here have thus far so nobly advanced. It is rather for us to be here dedicated to the great task remaining before us—that from these honoured dead we take increased devotion to that cause for which they gave the last full measure of devotion—that we here highly resolve that these dead shall not have died in vain—that this nation, under God, shall have a new birth of freedom—and that government: of the people, by the people, for the people, shall not perish from the earth."
The Declaration of Independence and the Declaration of the Rights of Man are great aspirational statements of democratic principles. But democracy depends on several things beyond those aspirations.
It depends on the candidates seeking to be elected to parliament disclosing their views honestly to the electors.
It depends on the elected parliamentarians continuing to be honest.
In both those matters, democracy in Australia faces challenges. In relation to refugees, for example, our elected representatives have, for the past 17 years, referred to boat-people as “illegals”. “Stopping the boats” and taking boat-people by force to Manus or Nauru are referred to as “border protection”.
These are lies, although it must be conceded they are very effective lies. Many members of the public now think that the cruelty of offshore processing is protecting us from criminals. If that was true, it might make sense. But it is wholly untrue.
It is not a criminal offence to come to Australia without a visa seeking to be protected from persecution. But Coalition parliamentarians from John Howard on have lied to the public by calling boat people “illegals”.
Worse than this, the Prime Minister has now invested unheard-of powers in just one Minister, Peter Dutton. Dutton is now the Minister of Home Affairs. Home Affairs was established on 20 December 2017. It combines the national security, law enforcement and emergency management functions of the A-G's Department, the transport security functions of the Department of Infrastructure and Regional Development, the counterterrorism and cybersecurity functions of the Department of Prime Minister and Cabinet, the multicultural affairs functions of the Department of Social Services, and the entire Department of Immigration and Border Protection. It controls the Federal Police, Border Force and ASIO.
Dutton has been touted as a future leader of the Coalition and therefore, potentially, a future Prime Minister of Australia.
Peter Dutton is a dishonest hypocrite. Dishonest (at least) because he refers to boat people as “illegal”. A hypocrite because he claims to be a Christian but is willing to oversee the intentional mistreatment of innocent people seeking to be protected from persecution. And, astonishingly for someone who pretends to be a Christian, he recently said:
“It's essential that people realise that the hard-won success of the last few years could be undone overnight by a single act of compassion in bringing 20 people from Manus to Australia.”
It is hard to imagine anything less consistent with Christian teaching than arguing against compassionate treatment of other human beings.
If dishonesty and cruel treatment of innocent people continue to be accepted in our Society, our democracy is in trouble.
The Nexus between Democracy and Justice
Democracy is generally thought to be a system which derives all its power from the people. But this theory has its limits. If the majority are persuaded that a particular minority group should be specially mistreated, majority- rule would become mob-rule. Whatever else it is, democracy is not (or should not be) a system of mob-rule. That is why democratic systems are usefully guided by large statements of principle like the Declaration of Independence or the Universal Declaration of Human Rights. It is why an enlightened democratic system will adopt a Bill of Rights or Charter of Rights. It might be objected that a democratic system should not allow the interests of a minority to thwart the will of the majority: an objection most often seen when the minority is feared or hated.
It is easy to imagine difficulties in the formulation of a Bill of Rights. In principle, a Bill of Rights should express generally-held views about the fundamentals of decency. It is hard to find many people who would resist such ideas as Recognition and equality before the law; A right to life; Protection from torture and cruel, inhuman or degrading treatment; Freedom from forced work; Freedom of movement; Privacy and reputation; Freedom of thought, conscience, religion and belief; Freedom of expression; Peaceful assembly and freedom of association; Protection of families and children…
All these are rights protected in the Victorian Charter of Human Rights and Responsibilities.
The difficulty arises when those rights are afforded to an unpopular minority. The democratic solution to deciding what rights are to be protected is a variant of John Rawls “veil of ignorance”.
John Rawls, in his discussion of the Just Society, advocated the ‘veil of ignorance’: those who would construct the arrangements of an ideal society would not know in advance which role in that society would be assigned to them. We should approach human rights the same way. We should look at human rights abuses without knowing initially the identity of the victim or the identity of the perpetrator. Watch the news footage with the volume turned off, as it were, and form a view about the wrongness of the thing before you know who must carry the blame for it. Assess the situation on human rights grounds and then learn whether you are seeing a Palestinian widow in Ramallah or someone’s grandmother in Warsaw. By this technique, the principles of democracy can be reconciled with the principles of Justice.
The mechanism by which the will of the majority can be brought to defeat the interests of an unpopular minority was articulated a long time ago, by a leading politician:
“…the people can always be brought to the bidding of the leaders. That is easy. All you have to do is tell them they are being attacked and denounce the pacifists for lack of patriotism and exposing the country to danger. It works the same way in any country”
That was said at Nuremberg in 1946 by Herman Goering.
The Melian dialogue
The second Peloponnesian war ran from 431BC until 404BC. It was a struggle between Athens and Sparta. Athens wasn’t doing too well and decided that it needed a launching place somewhere close to Sparta. The island of Melos was an ideal candidate. But the island of Melos had never done anything to harm the Athenians and was, in all possible respects, a neutral party in the Peloponnesian wars. The Athenians sent a delegation to speak to the commissioners of Melos and explained to them fairly bluntly that they were planning to take over Melos and that there was an easy way and a hard way. They acknowledged that the Melians had never done any harm to the Athenians, and that it may seem unjust that Athens would take over Melos. But this, they pointed out, was irrelevant “You know as well as we do” they said “that Justice is only relevant between equals in power. Where power is unequal, the strong do what they will and the weak suffer what they must” (the Melians stood their ground and Athens took them over the hard way: they murdered the men and raped or abducted the women and children).
Although it is easy to be cynical about our conceptions of Justice, the legal system still aims to achieve Justice and, in particular, Justice of a kind which does not depend on whether the antagonists are equal in power. It may not be a perfect system, but at least its objectives have taken us some distance from the theoretical underpinnings and harsh consequences of the Melian dialogue.
Martin Luther King once said that “the arc of the moral universe is long, but it bends toward Justice.” (He was quoting. It had first been said by Theodore Parker, a Unitarian minister and American Transcendentalist born in 1810 who had argued for the abolition of slavery.)
It is easily forgotten how differently slaves were seen before the heroic and pioneering work of William Wilberforce in the late 18th and early 19th Centuries. Before Wilberforce started campaigning against slavery, slavery was common and accepted and, in some places at least, was regarded as fundamental to the continued economic prosperity of the British Commonwealth.
In 1781, a ship variously called The Zorg or The Zong (one appears to be a misreading of the other) set sail from the coast of West Africa, bound for Jamaica. The captain was Sir Luke Collingwood. As was the custom at the time, its cargo was fully insured.
The cargo comprised 470 slaves.
Because of faulty navigation and changes in the weather, supplies of food and water on the ship looked as though they might not last the distance. By the 29th November, 1781 overcrowding together with malnutrition and disease had resulted in the deaths of seven crew members and about 60 slaves. Captain Collingwood decided to throw a further 133 slaves overboard. By that extreme measure, he hoped that the remaining food and water would be sufficient for the balance of the voyage.
Perhaps not surprisingly, the case ended up in court: not on a charge of mass-murder but on an insurance claim. The insurer defended the case on the footing that the market value of the slaves had fallen below the insured value. There was no suggestion that anyone would be charged with murder. In fact, the Solicitor-General John Lee said that a master could drown slaves without any impropriety. He said: “What is this claim that human people have been thrown overboard? This is a case of chattels or goods. Blacks are goods and property; it is madness to accuse these well-serving honourable men of murder. They acted out of necessity and in the most appropriate manner for the cause. … The case is the same as if horses had been thrown overboard”.
The case of The Zorg is one which is almost inconceivable in modern times. In that simple proposition you see that we have, in fact, made some progress in our conceptions of Justice. William Wilberforce was a great activist and although it took a long time he succeeded.
That said, the Dred Scott case in America took place about 80 years later.
The Universal Declaration of Human Rights
The next giant step forward did not happen until the middle of the 20th Century, although I am sure there were plenty of other significant advances between the Declaration of Independence in 1776 and The Universal Declaration of Human Rights in1948.
It is widely forgotten that anti-Semitism was common through the Western world until the end of the Second World War. Arguably, anti-Semitism hasn’t disappeared but has simply gone underground. There are clear traces of anti-Semitism in the earliest version of Magna Carta. There are clear instances of anti-Semitism in Shakespeare, notoriously in the Merchant of Venice. But the horrors of the holocaust gave anti-Semitism the bad name it always deserved.
The Second World War gave rise to a new need to protect human rights. After the war ended, it was impossible – indecent – to permit a continuation of the anti-Semitism which has disfigured many countries (including England and Australia). The holocaust showed where that line of thinking leads if left unchecked. The Universal Declaration of Human Rights in 1948 and the Refugees’ Convention in 1951 were the most prominent expressions of a new global concern to see that those who fear persecution should be protected.
The Universal Declaration (10 December 1948) was the work of a surprising activist: Eleanor Roosevelt. She was the widow of Franklin Delano Roosevelt who had died shortly before the end of the Second World War. She was also cousin to Roosevelt and had grown up in the rich surroundings of the Roosevelt family. But Eleanor Roosevelt was a genuine egalitarian and had set her heart on responding decisively to the horrors of the Second World War.
When I say Eleanor Roosevelt was a true egalitarian, it is worth remembering that from the death of FDR in 1945 until her death in 1962, Eleanor Roosevelt spent most of her time at a small property called Val-Kill in upstate New York. Val-Kill is truly remarkable in a number of ways. It is strikingly plain. It is a very simple old farmhouse. The sitting-room is furnished with very ordinary chairs and very simple bookshelves. But there are photographs on the wall one of which is a photograph of Eleanor Roosevelt having tea in that very room with John F. Kennedy. Next to the sitting-room is the dining-room. The dining-room table seats 10 or 12 people. Many great heads of state dined at that table. But Eleanor Roosevelt was always conscious of the need to have equal numbers of locals whenever she was entertaining dignitaries. And the crockery on which dinner was served had been bought at a Five and Dime store. Eleanor Roosevelt must have been a truly remarkable person. Her sense of the equality of all human beings still lives and breathes at Val-Kill.
After the end of the Second World War, Eleanor Roosevelt set her heart on creating a Universal Declaration of Human Rights. The Universal Declaration begins as follows:
Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, Justice and peace in the world,
Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people,
Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law, …
As with the Declaration of Independence, some of the rhetoric goes beyond what has ultimately been achieved but it remains the case that for such a document to be universally acknowledged in the United Nations is a mark of progress to which all activists can aspire.
I mention these important historical events because they help define the nature of democracy and Justice generally. The future of Justice in Australia is not assured. The Law is the gateway to the Justice System (so called). As a practical reality, litigants who act for themselves are at a grave disadvantage, and if one party is unrepresented, the forces of attack and defence are unequal, then the Melian dialogue is grimly important. The remedy for this problem, at least in theory, is Legal Aid.
In civil litigation, Legal Aid is effectively unavailable. Presumably, this is because funding bodies consider fights about money and property less important than fights about children and crime. Other aspects of our social arrangements suggest a much greater concern for money and property than legal-aid funding suggests. The absence of Legal Aid in civil litigation can work profound injustice, especially when the other litigants can afford their own lawyers. When one party is a well-resourced company, the individual litigant’s rights are irrelevant: they will almost certainly have to sacrifice their rights because they cannot afford to vindicate them.
Tenancy disputes, consumer disputes, and credit disputes all have a profound impact on the affected litigant. To deny them access to Legal Aid is to subject them to the near certainty of injustice.
Civil litigation, of course, can involve questions that go beyond money and property. Discrimination and employment law are two examples. Victims of unlawful discrimination are doubly disadvantaged if they cannot get legal help to address the wrong already suffered.
An English Judge, Mr Justice Darling (1849-1936) once famously said “The law courts of England are open to all men, like the doors of the Ritz Hotel.” (He was plagiarising Justice Sir James Mathew (1830-1908)).
Another area where injustice is a near certainty concerns refugees: the legal hurdles they have to overcome are substantial, and Legal Aid is not available. There are two main reasons why refugees face injustice: the laws concerning them are very harsh; and if they have to represent themselves they have to grapple with an unfamiliar system in an unfamiliar language.
Refugees who come to Australia by boat seeking asylum but without a visa face the prospect of being placed in detention until their refugee status is decided or (since 2012) they face the prospect of being taken by force and against their will, to Nauru or to Manus Island, which is part of PNG. Given that they commit no offence by coming to Australia to seek asylum, it is a profound injustice that they face indefinite detention or banishment to a hostile country where they live in miserable conditions.
It is hard to see that the treatment of refugees will get any less unjust in the foreseeable future.
If hopelessly inadequate Legal Aid and cruel treatment of innocent people continue to be accepted in our Society, the future of Justice in Australia is in trouble.
Last year there was considerable discussion of the statement of Australian values which must be signed by people applying for various visas or for citizenship. The Department of Home Affairs (Peter Dutton’s department) has imposed this requirement. The statement includes the following:
“Australian society values respect for the freedom and dignity of the individual, freedom of religion, commitment to the rule of law, parliamentary democracy, equality of men and women and a spirit of egalitarianism that embraces mutual respect, tolerance, fair-play and compassion for those in need and pursuit of the public good;
Australian society values equality of opportunity for individuals regardless of their race, religion or ethnic background …”
Mr Dutton’s conduct as Minister sits uncomfortably with these values. And he wants us to resist the temptation to act with compassion!
The fact that a person like Dutton can, with a straight face, require anyone who applies for citizenship to embrace this statement of values makes Australia’s future look troublesome, because it stands so grotesquely at odds with his conduct as the most powerful politician in the country.
Injustices which are avoidable but tolerated are like canaries in the mine: they are a warning of worse things to come. Pastor Martin Niemoller famously said:
When they came for the Socialists
I said nothing, because I am not a Socialist.
When they came for the trade unionists
I said nothing, because I am not a trade unionist.
When they came for the Jews
I said nothing, because I am not a Jew.
And when they came for me
There was no-one to speak for me.
I am sorry to be bleak, but I fear for the future of Democracy and Justice in Australia.
Do not be complacent.