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Rice, Simon --- "Opinion" [2000] AltLawJl 1; (2000) 25(1) Alternative Law Journal 2

Fair enough. Fair's fair. Be fair. That's not fair. All's fair?

We may not do justice to its meaning if we try to define the word 'fair'; a definition may not be a fair description of all that this deceptively simple word conveys.

Is being 'fair' the same as being 'just'? Is justice fairness? Is the law fair, or just? Does it really matter? Well, no, answering questions as simply as this is more a pub conversation than a useful way of understanding our legal system.

The notion of 'fairness' is pervasive and elusive, some­ thing we understand, and assume that others understand similarly. Hence the simple effectiveness of exclaiming "that's not fair!". So much is said and understood in that phrase: that's not equitable; that doesn't take account of all relevant factors; that does not give proper weight to my circumstances; I am being treated differently from others in my position; I have a right or entitlement that is not being recognised; that is not in accordance with the rules.

So, without looking too far past the obvious or accepted meaning of the word 'fair', we can say that this issue of the Alternative Law Journal is, perhaps more than usually, about the legal 'fairness', and 'unfairness' of aspects of our lives.

Martin Langford's poem 'Brain Damage' is, as good poems are, a succinct and expressive statement about the fairness, or not, of the situation of indigenous youth in Australia, and the operation of our health and school systems.

In relation to youth Chris Grant analyses the private usurpation of public space, with the consequent unfair impact on young people. Chris goes beyond the analysis to illustrate how the legal system, and, say, rules of 'fairness' in evidence, can be used to defend young people banned from shopping centres.

Both Allan Ardill and Brendan Cassidy look at fairness and jury trials. Allan examines the difficult task of balancing a right to free speech, which supports media reporting, with a right to fair trial, which can be compromised by media re­ porting. Either the news media or the accused will say "not fair'' if their respective 'rights' are curtailed: Allan advocates for the primacy of the right to a fair trial while making space for media reporting.

In relation to juries Brendan Cassidy looks not at activities outside the courtroom, but at the deliberations within the jury room. How fair is the jury's own process? What could be done to make the jury's task easier and the result in a case fairer? Similar questions are posed for students in a Legal Studies column at the end of the article.

Perhaps the most topical article relates to the fair treatment of workers employed by an insolvent company. Chris Symes goes through the options canvassed by the Federal Government in a Discussion Paper last year, and now brought to life by the recent treatment of National Textiles workers and others -fair or not?

Sue Scott[1] reports on her research into how people use the Internet. The results of the research are important for all those who promulgate information on the web. Increasingly government is moving to web publication of its public material; to be fair, ready access to web-based material should not be assumed.

Finally, there has been no more pervasive statement of 'fairness' across countries and cultures in history than the Universal Declaration of Human Rights. Stephen Bouwhuis usefully reviews the development of human rights mechanisms during the 20th century,[2] looking at successes, failures and challenges for human rights machinery as a means to a fair society.

Balancing of rights seems to be a key consideration in much of the discussion about fairness: rights of private property owners and rights of assembly and free movement; the right to free speech and the right to a fair trial; the right to be judged by one's peers and the right to have all the evidence properly weighed and considered; rights of shareholders and secured creditors, and rights of workers.

Human rights doctrine offers a developing framework for resolving these conflicts between what are essentially, for us in Australia, common law rights. From a different perspective, the Internet offers a deceptively simple solution for giving people access to information about those rights.

This issue of the Alternative Law Journal asks many questions, and offers some solutions. Importantly it reminds us of the need for alertness, and constant questioning, in pursuit of fairness in society.


Simon Rice is a Sydney lawyer.

[1] Sue Scott is an employee of the Law Foundation of NSW of which Simon Rice, editor of this issue, is the Director.

[2] No correspondence will be entered into as to whether the 20th century is yet over. It really doesn't matter. Ed.

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