Alternative Law Journal
I remember years ago at law school trying to take in an equity lecture. The lecturer was telling us about the legal interests and equitable interests, and subsisting floating equitable interests and bare equitable trusts and semi-submerged equitable interests and I was so confused at the end of it that I think I asked the bus driver if I could have a bare equitable concession to Newtown, with the legal interest continuing to float somewhere between him, me, the department of transport and the tax payers of Australia.
I remember sitting on the bus feeling outraged at all the needless complexities our legal system seemed to have worked its way into. Or perhaps I was just panicking at the prospect of having to try to work it all out so I could pass my exam.
That night I pulled out the textbook-or at least two of my friends helped me lift it onto my specially reinforced desk-and tried to puzzle my way through the jungle of equity. And, strangely enough, slowly it all started to make sense. Time and again, as I got through all the complicated language and the hard-to-grasp abstractions and came to the result of the case it seemed that the principles of law and equity had come up with the right outcome; that the person who should have won did win, and even where there were two or more people who each should have won, that the person who should have won most, won.
Could it be, I wondered, that the law was, in fact, not an ass and that at some basic level all the sophistications were just means to the end of creating the fairest results in a devilishly complicated world where people were often in conflict. Although the lecturers and the text book authors never admitted it-in fact I think some of them would have been downright offended if it had been put to them that all the law was really trying to do was to achieve some airy-fairy notion of fairness, and certainly they were quick to criticise judges like Lionel Murphy whom they believed were too overt in their attempts to try and reach a fair result - I wondered if they would have agreed with the proposition that all legal principles need to be there for a reason, and ultimately the reason they are there must be a moral, not a legal one.
As a solicitor I saw many examples of the law being used as a tool to try, in some small way (and not always with success), to transform our society into a better one, and I also saw times where the law was there, ready, willing and able to be used for that purpose and wasn't. Ultimately I believe the test of the effectiveness of the law is whether it operates to make wherever we are a better place. Conversely, when the law's connection with morality is severed and it floats above us all, applying its principles, rules and regulations without concern for their effects on people, then if fails.
Three examples. It's 1995. Gary is 19 years old, he's pleading guilty to two break and enters, he's broken his good behaviour bond that he's on for several other dishonesty offences, he hasn't turned up for community service ands he's committed offences whilst on bail. And surprise, surprise he's a heroin addict. It's clearly the time in his life when he's run out of excuses and it looks like he's off to jail for the first time, probably for six months or so. It also looks like he's on starters orders, ready to begin a 20-year stagger in and out of jails, other people's homes and intermittent half-hearted attempts to get off heroin via another drug, methadone.
'I want to go to rehab', said Gary. Funny that. I'd represented him several times in the past year and he'd never mentioned rehab once. Now, seven seconds after I'd told him he was probably going to jail, he decides he wants to seek treatment for his heroin addiction.
I thought he wanted to go to rehab because it might be a way of getting out of going to jail
I didn't doubt that he did want to go to rehab, but I didn't think he wanted to go because he genuinely wanted to try and confront his heroin problem. I thought he wanted to go to rehab because it might be a way of getting out of going to jail.
Nonetheless I got someone from a drug rehabilitation centre to see him. They eventually agreed to take him, and then it was up to the magistrate. Magistrates have people asking them to let them go to rehab rather than jail almost every day, and most of them know that probably the most important factor in whether rehab is going to be successful or not is whether the person really wants to sort out their drug problem. There was ample evidence that Gary didn't. However the magistrate saw something, something I didn't, that convinced him it was worth a go.
I predicted Gary would abscond from rehab within a week, commit another offence soon after and be back in court inside a fortnight. Another lawyer disagreed. He thought Gary would abscond at the first red traffic light that the Odyssey House car he left the court in came to.
We were both wrong.
The magistrate had adjourned his matter for six months and on the due day he came back to court. He was still living at Odyssey House, he'd stuck to the program and he wasn't a heroin addict anymore. The change wasn't just a medical one. I'd met him on six previous occasions and every time he was surly, distracted and unwilling to accept responsibility for anything. This time all that had gone and he seemed like a genuinely nice bloke.
And he wouldn't have been able to change his life in that way if the magistrate hadn't taken a punt. If you looked purely at the facts, it was hard to justify that punt. Perhaps all the magistrate thought was that once Gary had been in jail it was going to be that much harder for him to sort himself out, so he might as well give him the chance to have a go now, however long the odds
Whatever, somewhere that 19 year old had found the inner strength and determination to do one of the hardest things there is. And the law had helped him. The one judicial officer who had had the opportunity to look Gary in the eye and assess what he had to say had the discretion to be flexible and creative, and made a decision that not only allowed Gary to change his life but also, in all probability, saved hundreds and thousands of public dollars over many years in judicial, police and jail costs.
That's an example of the law working.
Second example. 1994. A man enters Australia without a visa and is taken into detention. He's from an African country and he makes a claim for refugee status. He claims that he was politically involved in an opposition movement in his country, that whilst ostensibly his country is democratic, in fact political opposition is suppressed. He says he found out that he was going to be arrested and fled the country.
At his hearing a department of immigration official is brusque and abrupt, even rude. He seems unable to understand that this is more than an academic exercise; that the decision he will make will determine what happens to this man for the rest of his life. It is clear to me from the first five minutes of the interview that he does not believe what my client says and that he will refuse his claim. He indicates that no Australian Department of Foreign Affairs and Trade information corroborates my client's claim. I point out that my client has claimed that political repression is done covertly, and that whilst the fact that the Australian Government is not aware of repression occurring may be consistent with repression not occurring, it is also consistent with repression occurring in a covert way and their sources not being aware of it. I ask the official what the source of the information he relies on to challenge my client's claims is. Of course that information is classified.
Outside in the street before they take him back to detention, my client and I both know that his claim for refugee status will fail. We both know there are appeals available and I think we also both know that ultimately they will fail and that he will be deported.
One thing, though, that only he knows is whether he has told the truth, the whole truth and nothing but the truth in his hearing. I didn't know. How could I? There was nothing he said to me that appeared to be untrue, no internal inconsistencies, but it was simply impossible to check any of the details. I didn't know whether he was a genuine refugee and it seemed to me that whatever the quality of the department's information, it was very unlikely that they could say with complete certainty that they knew either.
One of the things that needs to be done in any legal system when there is doubt, is to factor in what happens if we get the decision wrong.
One of the things that needs to be done in any legal system when there is doubt, is to factor in what happens if we get the decision wrong. The criminal law does this. Better I 00 guilty go free than one innocent is locked away. Hence the standard of proof in criminal trials is 'beyond reasonable doubt'.
What happens if we determine a refugee claim wrongly? If it's a genuine claim and we reject it, someone goes back to a place .where they are in danger. The adverse consequence to them is likely to be as bad or worse than it is for an innocent man convicted of a crime. They could be arrested, jailed, tortured. Worst case scenario, they could be killed.
What if we err the other way and grant refugee status to someone without a genuine claim. What damage flows to Australia? We have one extra migrant, a person most likely of ingenuity and resourcefulness. Where is the downside? Someone gets a chance to start a new life, but what do we lose by giving them that chance? Even if there is a downside, does it compare to the downside of erring on the other side and sending someone back to where they may be persecuted?
The law thrives on rational analysis, on calm considered logic, and so it should. But we must always remember that the purpose of all these devices is to reach a decision, and that those decisions affect people. If all our wonderful processes arrive at a result where the people affected are in a worse position than when they started, the law isn't doing what's it's supposed to do.
Someone gets a chance to start a new life, but what do we lose by giving them that chance?
Another example, from the wonderful world of banking. Not a law as such, but a procedure. Once I lost my credit card. I thought it would turn up but just in case I rang the bank and asked them to suspend my card until I found it.
'We can't do that. We can cancel it and you can get a new one, which takes about three weeks, but we can't suspend it'.
'Yes you can', I said 'last month I forgot to pay my interest bill and you suspended my card. Then I paid my bill and you un-suspended it. So you obviously can suspend it if you want. So can you please suspend my card until I find it'.
'I'm sorry sir, we can't suspend your card'.
'Look, there's no point saying you can't suspend it because last month you did. I think what you're telling me is that you won't suspend it. So why won't you?'
'Because we can't suspend your card in this situation'.
'That's obviously your policy, but I want to know why it's your policy. Why is that your policy?'
'Because we can't suspend your card in this situation'.
It got a bit repetitive for about an hour and a half after that until I asked to speak to the person's boss, got put on hold and eventually got sick of the bad music and hung up.
There might well be a good reason why the bank wouldn't suspend my card in that situation, but it looks like, smells like, tastes like, feels like a rule that has no point, and which· erodes any minimal cost saving it may bring to the bank by the creation of an enormous amount of bad will.
We always need to look at the effects of laws and rules and procedures to ensure they are consistent with basic notions of fairness, and that the effect of them is to help not hinder. But isn't this all a bit wafty? Where does a notion of fairness come from? It comes from the same place that all of the law's most logical and sophisticated notions come from, from the same place that the concepts of indexed superannuation, manslaughter, income tax and floating equitable interests come from. From us.
The law didn't arrive on tablets of stone. We created it. It is not above us, it is with us. It does not rule us, it serves us. The law's purpose is to help us live with each other, and perhaps even to teach us how to live with each other better. That's where it came from, and that is what it should always be about.
No one knows what the first law was but I bet it was about helping people live with each other. Perhaps it was made when a load of cave-people decided that no one should throw rocks without first checking they weren't going to hit anyone because, although throwing rocks was really fun, getting hit in the head by a rock really hurt. Perhaps they made that law because it seemed right that one person having fun shouldn't result in another person being smacked in the head with a rock. Maybe they even agreed that a particular area be designated as being specifically for throwing rocks in and so balanced the desires of rock throwers against the desires of everyone else not to get sconed on the head. (Of course, we have a similar rule today. We don't prevent all those people who want to hit rocks a long way with sticks from doing so, we just make sure that they go and do it on golf courses.)
The law is, amongst other things, a mechanism for making decisions to resolve conflicts between people. The criminal law is about resolving conflicts between the state, representing the people, and defendants. Other parts of the law are about regulating transactions and resolving conflicts between people.
The bottom line is that we are the ones who created the system and we are the ones who are affected by it, so if it doesn't work to further our best interests then we only have ourselves to blame.
Whenever the law is used, in fact whenever a decision is made-whether by a local council, a government, a tribunal, a court, an umpire, a policeman or you-whoever is making the decision needs to be aware of, and take responsibility for, the effect that decision will have on people.
That doesn't mean being a bleeding heart. If a magistrate let everyone go to rehab who said 'actually I'd prefer it to jail, thanks very much', then rehabs would be full of people who didn't want to be there, which would undermine the efforts of those who were genuine. What making decisions responsibly means in the case of the criminal law, is keeping in mind that the ultimate aim of the criminal law is to remove the need for its own existence. That is to eliminate, or at least, minimise crime. Which includes trying to remove things that encourage crime, like $200 a day heroin habits.
Similarly, those who judge the claims of refugees need to try, as much as they are able to, to stand in the shoes of those whose fate they decide, and ask the question, 'what if it were me?'
And, most trivially, those who work for banks which have a policy of not letting people whose credit card has slipped down the back of the sofa suspend their card until they find it need to ask themselves, 'How is giving the shits to someone who owes us a lot of money going to help him or, more importantly, us?'
I'm not alarmed but we do need to be alert ... The law should never create an unjust outcome.
I'm not alarmed but we do need to be alert. We need to judge our laws, and to force them to echo and spread the values that we want in our society. The law should never create an unjust outcome. If a law does, then it's not a just law, and it needs to be fixed. Ultimately the only way to ensure that a law never has an unjust outcome is to leave enough discretion with the decision maker. No two cases are alike, and you can't always tell what the judge should really have done by reading 20 lines on page 3 of the paper.
We should pick our decision makers carefully, support them and check them for bum-out regularly so at the first sign that they are beginning to treat the 38th case they are hearing that day as the 38th case they are hearing that day, rather than as a case involving a person who may well have their life significantly affected by what happens, they are given a compulsory fortnight's holiday.
Without discretion lying in the hands of the decision maker unjust outcomes are inevitable.
To retain or in some cases, recreate trust in the judiciary governments at all levels have to stop criticising the judiciary and start supporting it. Undoubtedly there is electoral advantage to be had in criticising judges but governments should understand that each time they do this they undermine public trust in a very important institution, and that the damage they do long outlives any electoral benefit they derive.
Ultimately the responsibility for the legal system and the laws we have is ours and ours alone. It often doesn't seem as if you or I do have the power to change, or the responsibility to maintain, the law or any other bit of our society, but I'm afraid that in a democracy, when it comes to things that you aren't happy with, there ultimately isn't anywhere else to look but in the mirror. It's people that got us into this mess, and it's people who'll have to get us out of it. Or, more optimistically, look at all the brilliant, complicated, wise and compassionate things that we people have done. And then start thinking about some of the other brilliant, complicated, wise and compassionate things that we could do next.
[*] James O’Loghlin is a stand-up comedian, broadcaster and former lawyer.
© 2003 James O'Loghlin (text)
© 2003 Stuart Roth (cartoon)