“Do not let us begin to think lightly of the law. Its rule, its power, its authority, are at the centre of our civilisation.”
Sir Robert Menzies, The Law and the Citizen
We have a legal system in Australia but do we have a justice system? To answer this question you must first remember that the paradox of the law is this: The law and justice are two separate matters even though the object of law, according to any reasonable interpretation, should be justice. There are many reasons why we have become a nation with too many laws and not enough justice over the last fifty years. These include a burgeoning volume of legislation, a culture obsessed with rights rather than responsibilities, and an increasingly unhealthy dependence upon government to act as a moral authority in our lives.
Australia has a common law system, which means that our laws derive from both statutes and case law. We have a highly developed legal system that has a superior structure to that of other nations. However, the fact that we have a good car does not mean that the car is being driven well. Moreover, if there are too many cars on the road in any given area, it creates congestion and stress for people and slows everyone down.
Our legal system has become very much like the cars on the road. Furthermore, the major culprit has not been the courts but parliaments. Consider these statistics from an Associate Professor of Law at an Australian university: In 1956 there were 113 Acts of Parliament, totaling 821 pages of legislation. In 2006, there were 172 Acts of Parliament, totaling 8036 pages of legislation. The democrat in all of us says that this could be a good thing because an increase in statutory law at the expense of case law would reflect a situation whereby the elected democrats are making laws, not the unelected judges. However, the problem is this: when you create more statutes you don’t actually reduce the role of judges or courts; on the contrary, you increase their role. Why? Because a growth in legislation leads to a parallel growth in litigation. Consider this fact in light of the increased number of pages of legislation: In 1977-78 there were 300 matters filed in the Federal Court. In 2009-10 the number of matters filed in that same court was 3600. This is to say nothing of the number of appeals that resulted from such matters.
Unfortunately, a large volume of this legislation has been the direct consequence of a culture that exists within a paradoxical value setting. At one point, we want to be ‘individuals’ who are free to do as we please, yet at the same time we also want to be absolved of personal responsibility when things do not go our way. For example, the law of negligence has grown enormously since the 1960s. The situation we’ve created is not a healthy one: we want to be responsible for our actions when those actions produce a good result for us, but we often seek to find someone to blame or pay the damages when those actions lead to harm and injury. The expansion of the law of negligence has had the consequence of raising public liability premiums to a level that means community organisations suffer an unfair and unnecessary financial burden.
Therefore, the increase in laws does not necessarily lead to increased justice or a less stressful society. It simply leads to a situation wherein government becomes the moral arbiter of social conduct. As a conservative, I am not going to argue that the law has no place in manifesting morality. That argument just doesn’t carry any weight because most laws do have a moral – or immoral - dimension. However, the conservative approach has always been to emphasise the role of those intermediary organisations that are situated between the individual and society: most importantly, family and religious institutions. A conservative maxim is essentially this: “Where goes the family and religion, so goes civilisation.” If you undermine the authority of the family and religious institutions, you don’t end up with an absence of authority; what you end up with is increased authority by the State. And how does this increased authority and power manifest itself? In an increased number of laws that determine what people are permitted to say and do. Consequently, we effectively find ourselves living in an increasingly secular, socialist and politically correct State, though one in which we can each console ourselves with the comforting notion that we are all ‘individuals’. In such a state of affairs, there is little room left for justice and the common good.
Paul McCormack is a political observer who lives and works in Wagga Wagga.