The simple statement that all are equal before the law has always been, in practice, mythical. While it is correct to say that the law ought be applied equally to all citizens, that is different to a claimed goal that all have equal opportunity in the determination of their claimed equal rights. Even on the basis of application of law, Montesque's statement "that the law in its majesty applies equally to both the rich and the poor when they steal bread" belies the claim of equality.
In our cultural and social debates concerning gender, childbearing, race, multiculturalism and desired cultural diversity, we have often confused sameness with equality, achieving not consistency, but competing interests. Concurrent with these social debates, our society has more and more embraced a "rights based" political and legal model. That model encourages a "claim of right" in all manner of human behaviour and conduct requiring laws against discrimination, procedural fairness, access to information, affirmative action, and the like. Add to that the expectation of financial compensation, either from government or the claimed wrongdoer, and the result is a complex and expensive mélange of legal and administrative institutions and what has become to be euphemistically known as "service providers".
The overlay to this is the development of "economic rationalism" and the withdrawal by the state from many areas of community life. The state continues to enact socially responsible laws as motherhood statements to avoid political harm, whilst ignoring economic responsibility.
The myth of equality before the law is preserved, while the consequences compound the confusion.
Some consequences thus far:
(1) The costs of engaging in the legal process has risen astronomically.
(2) More and more people see legal redress, often by way of financial compensation, as a matter of course. One third of litigants before the High Court are self-represented.
(3) There have developed three distinct disciplines within the practice of the law;
· transnational legal and accounting professions, together with specialised, focused or boutique law firms;
· traditional suburban and country firms providing service generally to ordinary members of the community;
· public law, Legal Aid Commissions, public defenders, special interest organisations, Aboriginal Legal Service, refugee organisations, and the like;
· Community Legal Services with a mix of disciplines - legal, educational, social welfare, and the like.
Needless to say, Community Legal Services are the bottom of the food chain.
(4) Greater expectations of right or remedy, with greater anger and frustration about outcome.
(5) The High Court attempted to meet the desired goal of equality and economic reality in Ditterich. It discounted equality as a real option and adopted a "fairness of process" insofar as a court could regulate its own proceedings. But absent political response, the only remedy which could be provided by the courts was to decline to entertain or continue the proceedings.
(6) Masses of information and the need to process it – 4000,000 documents – relatively small action – mixed blessing. Forget trying to travel first class.
Our response thus far has been less than satisfactory. We have met the economic constraints by engaging in lobbying and public demand, often competing among ourselves withy the more clever or lucky gaining the spoils. The harder we try, the greater the expectations we engender.
I suggest two forms of response:
(1) Analysis of what is the function of public law. To do that we must firs:
(a) discount the myth of equality before the law, resources available to BHP will always outweigh an individual litigant;
(b) distinguish between:
(i) defensive law - I noted that 50% of the matters handles by Community Legal Services within Australia relate to children, that is out of a total of 64,000 matters handled.
- preserving rights already won
- protection of safety nets
- welfare programs
(ii) proactive law - testing
(c) distinguish between cases needing personal response and those which permit:
(ii) pooling of resources;
(iii) access to class action remedies
(2) Cost of compliance. These add to the cost of each matter handled irrespective of party.
(3) Giving greater weight to outcome, rather than personal distress or circumstances. On a philosophical basis, the example given by Winsom relating to sentencing circles in New South Wales or Clarke Island in Tasmania provide a better outcome than sending down individual representatives on a day-by-day basis pleading for particular cases and insuring the burn-out of the social capital used.
(4) Greater use of networks and partnerships for pro bono work from the profession as institutions, rather than from those kindly disposed.
(5) Seeking contribution either from:
- services provided, eg, screening for Legal Aid Commission or referral of winnable cases;
- retention of percentage of awards from:
- providing a component for reward in a combined legal and political campaign:
Residents' action groups, etc
(5) Participation in forms of alternate dispute resolution.
There have been drastic changes in our social and economic fabric within the last 40 years. Our community organisations such as those represented here have attempted to meet those changes by specific and incremental responses, absent a philosophical and structural coherence. We have accepted the paradigms thrust upon us, not devising strategies to work outside them. We hold to the myths because they are statements of good values and desired outcomes, forgetting their reality or the lack thereof.