Editors --- "Comment" [2002] ALRCRefJl 1; (2002) 80 Australian Law Reform Commission Reform Journal 1

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Reform Issue 80 Autumn 2002

This article appeared on pages 1 & 68 - 69 of the original journal.

Comment

Professor David Weisbrot

With a little bit of luck and a lot of commitment, Australia stands among the handful of nations that has managed to achieve an unbroken century or more of democracy. As a nation, we traditionally have had a strong cultural preference for the ‘fair go’, and a parallel revulsion to favouritism based upon wealth, power or personal connections.

Current world news – full of terrorism, ‘warlords’, and collapsing civil societies – should remind us of the virtue of the rule of law as the central organising principle for a fair and decent society.

Maintaining respect for the rule of law largely requires the preservation of faith in our major public institutions – parliaments that are sensible and responsive in balancing competing interests; courts and tribunals that are accessible, efficient, and fiercely independent and impartial; and a public service that is competent, transparent and free of corruption.

However, we also need to ensure that respect for the rule of law is not diminished by a nagging feeling that the law itself has become overwhelming and out of touch with community sensibilities – or that we have morphed from the rule of law into the ‘rule of lawyers’.

Over the past 30 years or so, there has been an incredible explosion in the amount of law being produced by all levels of government. This has steadily brought under formal regulation almost every aspect of social life, including areas traditionally seen as the province of the family, the community, the school, the church, the playing field, the trade union, the workplace, and so on.

When I meet someone and say I am involved in law reform, I tend to get two strong but contradictory reactions. First, that we are horribly over-governed in Australia and urgently need to reduce dramatically the amount of legal regulation. Shortly thereafter, I am asked with equal vehemence ‘why isn’t there a law!’ governing some area or other of particular concern to that person. It is not hard to understand the pressure placed on parliaments to meet every real or perceived problem with a corresponding law and penalty.

In an earlier era, the centrepiece of any significant law reform effort was the recommendation of a major new piece of legislation. Today, however, sensible law reform requires a clear sense of both the possibilities and the limitations of law.

The Australian Law Reform Commission is currently undertaking a major inquiry into the protection of human genetic information (conducted in association with the Australian Health Ethics Committee of the National Health and Medical Research Council), involving difficult ethical, social and legal issues raised by the rapid advances in genetic science and technology.

At public meetings around Australia, we have witnessed both strong public support for cutting-edge medical research that promises exciting medical breakthroughs in the diagnosis and treatment of serious diseases – as well as fears about the loss of control over the ethical and commercial boundaries of scientific research, and the potential for increased discrimination and loss of privacy.

The basic task for this inquiry is to strike a sensible and workable balance which recognises the need to foster innovations in genetic research, technology and practice serving humanitarian ends, while at the same time providing sufficient reassurance to the community that such innovations are subject to proper ethical scrutiny and control.

Although we have a long way to go, it is safe to say that meeting these challenges effectively will involve a mix of strategies and approaches. No doubt this may include some new or amended laws, but it also will require official standards and codes of practices (such as those promulgated by the NHMRC and the Privacy Commissioner); industry codes; better coordination of governmental (and intergovernmental) programs; a great deal of public and professional education; and, at all stages, mechanisms for involving the common sense of the community.

Before the explosion of legislation (and subordinate instruments) in relatively recent times, the ‘common sense of the community’ had a much greater role to play in social regulation – whether expressed as the development of the common law or jury decisions in English-speaking Western societies, or as customary law in more traditional societies.

The integration of customary laws and processes into inherited, formal, Western legal systems has been a major challenge for post-colonial societies, including most of the Pacific Island states, as well as Asian countries which recognise a role for Islamic Sharia law. The issue is also an important one for Australia, and for the advancement of the reconciliation process – with one question being the status and role of Aboriginal customary law and community justice mechanisms.

Following a long and detailed inquiry, the ALRC published its two-volume report on The Recognition of

Aboriginal Customary Laws (ALRC 31) in 1986. No government since that time has responded to the report or the many recommendations contained in it. This is clearly not for any lack of public interest, however.

The ALRC’s latest website usage statistics for the three-month period to November 2001 show nearly 33,000 ‘hits’ downloading material from ALRC 31. Despite the age of the report, this means it is the ALRC’s most requested document by a very long way – outstripping by a factor of four or five each of the next most-requested documents: ALRC 26 on evidence law; ALRC 92, the recent review of the Judiciary Act; ALRC 69 on women and equality before the law; and ALRC 89, the Managing Justice report. (Tellingly, the ALRC-AHEC Issues Paper on genetic information made the top 10, despite being available for only the last two weeks of the survey period.)

It is now commonplace for Western political leaders to lament the loss of social cohesion, and the decline of the family (and ‘family values’), religion and the sense of community. Similarly, indigenous leaders have called for a greater role for customary law and processes in improving the quality of life in Aboriginal and Torres Strait Islander communities.

Resistance to this stems from two areas of unresolved tension. First, there is the conflict between communitarian and individual rights approaches to law and social regulation. This imposes a basic political and ethical choice – what sort of society do we want, and what are we willing to give up to have it? If greater emphasis is placed on group and community rights, we may get more social order and cohesion, but at the expense of the individual rights that have underpinned the basic social, legal and economic structures in the liberal Western democracies since Magna Carta. At a time when Western political philosophy overwhelmingly tilts towards small government, human rights, free trade, privatisation, entrepreneurship, and so on, there is little or no prospect of a basic, society-wide shift towards more communal approaches. (Of course, there always will be sensible, targeted exceptions, such as Australia’s community-rated system of private health insurance.)

So could there be greater experimentation with group or communal responsibility at the local level? It should be possible to develop community justice mechanisms that do not unduly infringe upon the basic human rights guaranteed to all Australians. However, there is always the perceived threat (at least) of legal pluralism becoming a divisive factor, in contrast to the unifying force of the common law and formal Western legal institutions. In ALRC 31, the Commission was careful to distinguish the position of indigenous communities in Australia, which pre-exist the advent of Western law, from the position of all other migrant communities in Australia – whose voluntary arrival may be said to amount, in effect, to acceptance of the existing legal regime, subject only to the general right to pursue reform through the ordinary political processes.

The many authors in this edition of Reform are to be congratulated for providing much food for thought about these difficult, but important, jurisprudential issues.