Brennan Justice Talks 2021 The Rule of Law
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okay does that indicate that it's recording on your screen yep okay excellent all right Welcome
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everyone to our third Justice Talks event for 2021 my name is Jane Wangman I'm one of I'm the Faculty
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co-directors of the Brennan Justice and Leadership program and I'm joined this evening by my two
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other my law student co-directors Georgina Hedge and Mac Middleton and I'm also joined by Crystal
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McLaughlin our program administrator so welcome all welcome to our Dean Professor Lesley Hitchens
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other staff members alumni and all our Brennan students and I'd particularly like to offer a very
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warm welcome to our two guest speakers Professor Fleur Johns from the University of New South Wales
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and Associate Professor Karen O'Connell from UTS before we begin tonight's event I'd like to invite
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Georgina Hedge one of my co-directors to provide the acknowledgement of country. Thanks Jane so
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before we commence tonight's event i would like to acknowledge the Wangal people of the Eora Nation
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upon whose and ancestral lands i am zooming in from tonight i would also like to pay respect to
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the Gadigal people of the Eora Nation upon whose ancestral lands our city campus now stands and
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to any other indigenous lands you may be zooming in from tonight i would also like to pay respect
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to the elders both past and present acknowledging them as the traditional custodians for this land
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I would also like to welcome to any aboriginal and Torres Strait Islander people who are present with
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us this evening in light of the content of our talk tonight it is important to acknowledge that
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from the beginning of colonization and continuing to the present day indigenous Australians have
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never been afforded the protections promised by the rule of law we encourage students to
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consider the themes discussed in tonight's talk in relation to the barriers Aboriginal
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and Torres Strait Islander people continue to face in relation to the rule of law
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Thank you Georgina I also pay my respects to the traditional owners of the land in which I'm coming
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to you from this evening which is the Gadigal people of the Eora Nation so it's really fabulous
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to see so many people interested in attending tonight and actually coming along rule of law was
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very much in the news in march when um there were allegations that where former attorney general
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christian porter faced allegations of sexual assault um and it's great to see that this is
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a continuing interest of topic uh continuing interest to so many of our student community
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with you all coming along this evening so before we actually get into talking about there's just
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a couple of housekeeping matters that i'd like to deal with first and i'm sure by this stage
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of the pandemic you're all quite well versed in how zoom operates but please remember to keep
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yourself on mute if you're not speaking if your bandwidth allows it would be really great if you
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could have your camera on particularly when you're asking a question this does make it feel like a
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more interactive event it's great for the speakers to see some friendly faces but only do so if you
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really feel comfortable doing so if you do have your camera on and you find that it's starting
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to freeze a bit you can just turn your camera off and it should free up some bandwidth for you
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finally for those students who are participating in the brennan program
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in order to get your five roj points please just list your full name as it appears in
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our uts systems in the chat box and our brennan team will award you your points after the event
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so as i said back in march rule of law was raised by multiple commentators including
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porter himself and the prime minister and a wide variety of legal and non-legal commentators
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these comments were made in a wide variety of different forums so press conferences newspaper
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articles opinion pieces blogs and social media um in the advertising for this event
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uh you had um this diagram which i've now reproduced on this slide and it tries to
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capture some of the variation about the way in which people were talking about rule of law what
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they thought it meant how they were invoking it in what kind of legal or political context on the 6th
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of april this year chief justice tom bathust of the supreme court of new south wales gave a speech
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to the new south wales district court annual conference and he also spoke about rule of law
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i'm going to quote a couple of passages from his speech because i think it kind of captures
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the impetus for this event so he said i have been troubled by the discourse around the rule of law
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playing out amongst politicians the media and the public what has become clear to me is that there
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are profound misunderstandings about what the rule of law actually is and about the practical
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consequences of living in a society underpinned by a belief in the rule of law upholding the rule of
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law has become the argument in vogue to justify a range of divergent positions on current issues
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what we find then is that one of our current challenges to the rule of law is a lack of public
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understanding as to what it really means we must remember that the rule of law is such a powerful
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rhetorical weapon both in legal and political argument that care is needed in its deployment
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so it was in this context of these mixed discussions and the need for informed ones
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that two pieces sparked my interest in bringing together speakers who could engage in some of
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these conflicts discussions the first was a piece by professor fleur johns and martin
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greer in the monthly magazine and the second was a piece by karen o'connell
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with liam elfic from monash that was published in the guardian and so this is tonight's event
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this justice talk event is slightly different to some the format for some of our previous ones
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both fleur and karen will speak briefly to the concerns that they have raised in their paces
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after which we will open the floor to questions you're very welcome to post questions in the
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chat box as people are talking which will be monitored by georgina hedge one of my co-directors
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or you can ask questions live over zoom in in the question time and we actually do really encourage
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you to do so because the main intention of this justice talk event is to have this kind
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of interactive informal discussion so that's enough of me talking so now it's my pleasure to
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introduce our first speaker so our first speaker is professor fleur jones from the faculty of law
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and justice at the university of new south wales she works in the areas of public international law
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legal theory law and development law and society or sociolegal studies and law and technology
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fleur studies emergent patterns of governance on the global plane and their social political
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and economic implications employing an interdisciplinary approach that draws
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on the social sciences and humanities and combines the study of public and private law
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welcome fleur thank you so much and thank you to you and to crystal and georgina and mac and
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of course to karen um for the invitation and the opportunity to have this conversation i'm really
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looking forward to particularly the question to answer um around this because um yeah lots to say
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um but let me briefly uh open by just uh restating for the benefit of those who haven't had a chance
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to read the piece in the monthly something of what martin krieger and i were arguing um and
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i'll just remind everyone of um of the kind of moment that we were speaking to and i should say
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martin krieger who i with whom i wrote this piece is someone who has thought about and written about
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the rule of law um for almost his whole academic lives so if you are interested in the subject i
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would definitely commend his writings on this for a much juicier and more um sustained engagement
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with the topic but as you know as law students it's a uh the rule of law is a tremendously
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nebulous um but nonetheless meaningful concept something that can sometimes seem a bit apple
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pie so it was kind of interesting to see it become so charged and conflict-riddled at this moment um
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as you know also there's an immense amount of of investment in this concept in legal and political
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argument and vast amounts of money invested around the world in so-called rule of law programs that
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cover all sorts of things like police training judicial training constitutional and legal reform
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so it's a really material concept that does a lot of work and moves a lot of resources in the world
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but it is nonetheless i think uh martin i would agree with martin in his work when he talks about
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it as an ideal that's really always imperfectly realized in practice and that ideal is we argued
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basically concerned with tempering arbitrary power um and with keeping at bay possible alternatives
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to the rule of law namely the rule of people that is the particular people who happen to be in power
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at the at a particular time and their whims or beliefs or opinions or um biases um or
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a rule of faith it's a secular concept as well so um the rule of law is concerned with opposing and
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keeping at bay those alternative forms of rule or authority so it implies subjection to a set
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of secular institutions and procedures that are known to all and operative in a broadly roughly
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predictable and consistent way so as you know just recapping at the basics all sorts of rules
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and institutional design features can be traceable to the rule of law to enter all of law concerns
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which is why it was strange to see given this very specific content in um by the the prime minister
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um but it's commonly taken to encompass equality for all before the law the independence and the
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accessibility of laws and legal processes and the protection of certain individual rights
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and liberties including the right not to be punished except by due process of law which in
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turn encompasses uh notions like the presumption of innocence and the right to information about
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the allegations that one is called to answer so remembering as jane has that moment when everyone
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seemed to be talking about the rule of law particularly the prime minister um in this very um
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defensive way arguing that's to subject christian porter the former attorney general to alex um
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to or the allegations against christian porter to any kind of inquiry or investigation
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other than a police investigation would be in violation of the rule of law it was said
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because it would subjected him to some special additional um process or more stringent second
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layer of scrutiny beyond what most people would uh ordinarily be subject to that
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was the more or less the argument and thereby will roll back his uh presumption of innocence
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and martin and i argued feeling quite riled up about this um that um it was exactly the opposite
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that in fact it would be not only was it incorrect to view the rule of law as requiring allegations
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that potentially found criminal liability to proceed along this singular path and no other path
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not only was that incorrect in ways that we point out in the piece and that karen also alludes to
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given that people are very routinely called to answer allegations that could potentially found
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criminal liability under workplace investigations occupational health and safety human rights
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commission conciliation licensing and professional standards boards all sorts of bodies commonly deal
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with allegations that could potentially found criminal liability um and deal with them in ways
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that are designed to be protective of individual rights and liabilities often although albeit under
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a different standard of proof to the criminal standard of proof so everyone else is subject to
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these multiple routes for potentially subject to these multiple routes of investigation and inquiry
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um and so we argued that not only was it incorrect to say that there was this single route
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but it would actually be inconsistent with the rule of law to insulate christian porter
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from any additional inquiry simply by reason of the fact that the police route was for
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foreclosed for reasons beyond anyone's control the fact that the complainant or the alleged
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victim was dead and had not and a full statement had not been given before her tragic death um
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and um and that it would be therefore inconsistent with the rule of law to exercise an arbitrary
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a protective power to insulate him from any additional investigation merely because the prime
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minister believed his allegations um or because he had been subject to undoubtedly distressing
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coverage in the media and that that we argued would be the arbitrary exercise of that would
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constitute an arbitrary exercise of power uh precisely the kind that the rule of law is
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designed to counter and it would be inconsistent also with the routine expectation that people
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who have great power over others such as an attorney general or indeed any legal professional
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be held to slightly higher standards than most people as we are as lawyers before professional
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standards boards um so there were two aspects to that it would be arbitrary but also it would be
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inconsistent with the expectation that people in those particular positions be demonstrated to be
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fit and proper in order to ensure that the public in um confidence in in this case the legal system
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but in other cases say the health system but when you're talking about medical professionals um be
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retained um and in the piece we also mentioned um pending changes to the migration and citizenship
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legislation amendment uh sorry the migration and citizenship legislation amendment bill
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um as an example of a current piece of legislation in relation to which rule of law concerns were
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being raised which we saw as a really powerful counterpoint and an illustration of a very genuine
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and serious rule of law concern being raised by the government's actions in that case um the
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prospect of people whose visas might be cancelled or passports might be withdrawn not having access
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to information about the basis for the decisions against them so the paradox was the government was
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championing the rule of law in one instance and then very clearly um threatening it in a second
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at the same time so that was the cause of our anger i'd really be interested to hear among
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what any reactions but also what you think the public understood for the rule
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understands of the rule of law um and also what your reactions were to its mobilization
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in these ways but that's enough for me now i'd like to hear more from you and also from karen
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thanks so much fleur that was a really good capture of some of the tensions and i guess
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different positions that were coming through at the time um and and i found the migration example
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really powerful in your piece of work anyhow now we're going to keep the questions all to the end
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so now i'm going to introduce our second speaker who is karen o'connell she's an
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associate professor from the faculty of law here at uts karen is an expert in discrimination law
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particularly sex and disability discrimination sexual harassment and gender equality
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she has worked for over 20 years on equality law and policy reform and advises public and
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private organizations on equality issues her current research is on intersectional sexual
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harassment and gender inequality as a public health issue welcome karen thank you so much jane
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and thanks to everyone in the brennan program for the invitation um it's a wonderful opportunity to
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um exercise my thoughts about this again because like fleur i was really frustrated by this debate
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when it first took place um leah melvik who was my co-author um for the guardian piece uh that you
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were given to read um and i are both equality law scholars as jane said um and in that role
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you know in that role as equality scholars we see all the time that great injustices are compatible
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with a legal system that purports to be based on the rule of law so we know that the rule of
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law in itself uh doesn't provide automatically justice outcomes and it was very frustrating
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seeing that in part because this concept as fleur has said is both ubiquitous but also elusive it
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can be used in ways uh that are uh have have a lot of force and power politically and socially
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but in fact look like a misuse of power so it's it's ironic that this concept which is
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supposed to be all about holding power to account can actually be used rhetorically for the reverse
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so in this case one of the issues that i found most frustrating was that uh when the prime
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minister made comments and the former attorney general made comments about the rule of law
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they were talking as if allegations of sexual violence could only be dealt with in the criminal
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law and as fleur has said that is a very very narrow understanding of what uh the the full
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legal system response is or can be to um to such allegations so i felt at the time that it was very
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uh inadequate that this debate was taking place against a backdrop of a really great injustice
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which is the inability of our legal system to deal adequately with gender-based sexual violence we
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know that the criminal law is a terrible tool for dealing with sexual violence by the mere uh
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the the extent of the problem and the very uh inadequate response of the criminal law
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in terms of ever really providing um remedies to people or in fact justice to people who have had
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such experiences so um without acknowledging that and with that sort of approach at the time of well
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if we can't have a police prosecution here there's nothing to see there's nothing to be done we just
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have to leave it also seem to me to be um building towards another injustice which is a traditional
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um lack of visibility for gender-based harm in our legal system there's been a long history
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that these sorts of harms are just not seen and not dealt with so hearing that rhetoric around
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and and seeing rule of law be used to that end was particularly frustrating now i think that raises
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another point which is what the relationship of justice is to the rule of law for some people the
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rule of law is a formalistic thing and as long as you have certain uh rules in place that is
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the extent of the rule of law but for others of us um and i would think most people who work in areas
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that deal with equality and inequality uh if you just focus on a framework and not on content that
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is how those injustices can be perpetuated um and so that leads me to a kind of third point which is
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uh how we actually get to whether we consider the rule of law to have to necessarily have
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um a content that addresses justice or whether having the formalistic rules in itself is enough
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um and what i would argue there is that if we take an approach to the rule of law where
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it can just be used as this rhetorical device it doesn't have to account for historical injustices
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and it doesn't have to have a content that deals with social justice it can actually
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become a vehicle of injustice rather than what it is traditionally seen as which is
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a fundamental pillar of social justice so what do we do about this i mean this is what i'm hoping we
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can talk about a bit more together what i would suggest is something an approach that i'd really
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take from um feminist legal theory i don't know if anyone has written it in exactly this way but over
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many years of reading it what i have taken from it are two questions that i always ask myself
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about such principles one is what is this in this case the rule of law what is this embedded in
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and what has been left out now georgina in her acknowledgment of country mentioned indigenous
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the injustice has done to indigenous people and i think we could ask the same question here
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but let if we consider these two questions what is the rule of law embedded in in australia it is
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still currently embedded in a system that permits the most egregious forms of violence to persist
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against women without remedying them and what is left out it's a tradition where that developed the
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rule of law developed and is a tradition that is built out of a legal system that left out women's
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perspectives and also indigenous peoples and many other groups so i think with given those two
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uh serious injustices what we need to do is expose the rule of law to discussion um and consider it
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again and think of it in this contemporary light and think of it with the people who've been left
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out at the center instead of the margins and that's what i see us doing here today thanks
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thanks so much karen um so both you and flo have raised so many interesting points and i really
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like your call at the end to expose some light on really sort of unpacking um what we mean by it and
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who has been indeed left out and where the focus has been in some of the discussions around this so
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this is actually now our time to open up to really try to enrich some of this discussion so georgina
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is going to facilitate some of the questions so people we are very well we very much encourage
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people to ask the questions in person but i know that many people have already been typing away
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madly in the chat function so there's lots of questions there already yeah yeah you might want
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to start us off amazing thank you so much jane so um before we get started i can see as jane said
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the chat is absolutely flooding with questions but we might open up the floor in case anyone wants to
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ask a live zoom question before we get into just me repeating the questions out of the chat so if
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anyone wants to unmute themselves um nothing to be afraid of i'm sure laura and karen would
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be happy to answer your questions um and we'd really encourage that and we're not scary at all
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anyone um i'm happy to have a question oh sorry i'm sorry you go if you like
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no you you go i can wait okay um this question was more for karen i was just wondering how the
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civil law system should be equipped to handle sexual assault matters without re-traumatizing
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the victims because this is so often the case when these matters are go to a criminal trial
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something that you alluded to before um well that's a very good question i one thing i want
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to make very clear when i wrote this article there it was a newspaper piece and very brief so um one
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thing i couldn't really address fully is the civil law system is also pretty terrible at dealing with
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sexual violence um i think the the one benefit it has is it doesn't have that incredibly onerous
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burden of proof that the criminal law has and it doesn't have some of the systemic
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policing and other you know issues structural issues so it has some benefits um i don't
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know that you can have a legal system that guarantees that there is no further trauma
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for a person bringing a case before it at least not the legal system that we have now
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um i think that is is a is a big and a very valid question um i i think that though that
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some of those systemic problems and structural problems that exist in in the criminal law um
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are just so traumatizing because we know from the figures that we've got that so few people succeed
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in i mean it's obviously cases are not brought by the individual in the criminal law they're brought
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by police but um one of the issues there is that when we have someone found not found guilty
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in something like a sexual assault case that is read as that didn't happen and i think that where
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we use the criminal law or even the civil law as our as and read that as a determination of truth
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um that that in itself is a really traumatizing thing so i think there is so many elements that
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can be traumatizing in the system that there's no one simple answer to that i'm afraid thanks karen
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um I'm happy to go so my name's charlotte
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if you're not asking a question, yeah I've muted oh okay thanks for watching i don't know how to
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sorry charlotte keep going oh that's all right um it happens um so yeah I'm a student at uts
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and i'm also a sexual assault survivor um and everything you're saying about um just like what
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you just said uh Karen about like you can't have a legal system that guarantees no further trauma
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um you know that's definitely something me and like I'm not the only survivor in my family
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unfortunately like that is something every single woman in my family has had to weigh up
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um like almost like we try to go the police for justice and potentially be more traumatized
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or do we not get justice but don't get traumatized so i guess um my question is like
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what are the options for survivors because it feels like a double-edged sword
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can I answer that one jane or fleur did you want to answer
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okay all right um thanks um charlotte i mean i what i would say first off is that law is just
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one means of response one of the things that i think is is also really important
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is having some other form of acknowledgement socially and historically for experiences that
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people have had so you know there's a lot more interest now in restorative processes having means
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of people speaking up because i think another sort of feminist principle is that you go you listen to
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what people are saying they want when you develop your legal um you know your legal avenues and and
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your remedies and i don't think we've done that with women at all so in the main area of mind
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sexual harassment uh women often end up going through procedures that they never had any
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interest in going through and is not getting them a remedy that is the remedy they want
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so um i think that we if we could start from scratch we need to go back to what people are
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saying they want to remedy their harm and build our responses out of that we can do
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that to some limited degree when we do law reform but it's it is a bigger picture what i would like
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from the kind of australian public is that acknowledgement that if someone isn't successful
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in a criminal case or even in a civil case that is a legal determination of truth it is not a
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social or moral determination of truth and i think that is really important so that people can be
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listened to and respected even if their cases don't succeed in law
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just to add i guess just to say something to i think that complements what karen just said um and
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i'm sorry that you've had that dreadful experience and your family has had that experience charlotte
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um the very things that are designed to temper arbitrary power the very features of the rule of
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law that um are designed to create the sense that we are subject to a form of authority that's apart
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from the human that's apart from the humans around us that's somehow systemic and self-sustaining
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so the very qualities that are designed to produce that experience the translation of everything into
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a standard language set of languages the procedural consistent standardization um
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all these um features of the rule of law that have been so central to modernity and to the capitalist
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system you know this is max survivor is key to understanding the way in which this has been key
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to the the development of the modern state and the modern economy so all these features um they have
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some benefits which have can be you know pointed to historically to temper certain types of power
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certain types of excess and abuse of power but they also come at a very significant cost in terms
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of the um the loss that is um occasioned by that translation and that standardization that kind of
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automaticity um that in and that experience is one of not really being spoken to by another human but
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being speaking spoken to or seen by a system you know so by its nature it creates this experience
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of not being heard in a way even though it's designed to deliver justice because it's not meant
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to be experienced as the voice of a single person actually hearing and speaking to you so i think
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as karen said that the system requires continual supplementation by other forms of truth-telling
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other forms of knowledge making um you know narrative forms fiction art um all sorts of other
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forms of law including first nations laws which have other forms of truth-telling other forms of
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administration of justice we can't just um you know have a this single monopoly because
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of the very significant costs that are built into the benefits of the system um as it were
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great so thank you so much karen and fleur if anyone else
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doesn't have a live question i can move to the chat box
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if anyone wants to speak out
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no okay well we can we're lucky that we have quite a few questions coming in from the chat
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box so our discussion doesn't end here so we had a question from georgia in the chat that says
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how can we say that we have a rule of law in this country when we still have exceptions
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to sexual discrimination laws which presently render members of parliament judges and public
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servants less accountable than other professions for harassing colleagues in the workplace
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so you can open that up to either kepler or karen
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you want to take that first character yes i will
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um well again that's an excellent question um i uh the issue there um in our sex discrimination
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act our federal sex discrimination act we we had just quite a narrow definition of what a workplace
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participant was for the purposes of the sex discrimination act and therefore sexual harassment
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as well um so you know they were left out in a way almost indirectly so i i'm not sure that there was
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an intention there but certainly it's true that uh what we have seen evidence of this year and last
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year is that some of the people in our system with the most power are actually the least accountable
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um and not only that but we didn't know i mean we just again that uh invisible nature of so
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much of this harm meant that there are so many barriers to people speaking up and being heard
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that it was hidden for decades uh some of these behaviors um so i think that is a very good
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question if you've got a system where people in practice aren't held accountable and where
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we didn't really know that that gap in the law mattered so much because the problem was hidden
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then we have a system where people in power actually aren't being held to account
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um flow did you want to add anything there or i can i couldn't add anything okay great so
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we can move on if um and if anyone wants to jump in and ask a live question please feel free it's
33:47
fine to interrupt me so we had a few good comments um reese commented that i find it intriguing that
33:52
the parliament is hasty to enact law reform that direct directly implicates the parliament and he
33:58
also commented that was still waiting 30 years for impactful change in law reform following the royal
34:02
commission into aboriginal deaths in custody so that was another good observation from the chat
34:07
box so rafaela had a question um i think this was related to what karen was talking about
34:13
and she asked if she you could please elaborate a bit more on the rule of law specifically relating
34:19
to the immigration amendment bill i'm not sure if that was from karen or fleur but
34:23
if we could just get that once blair wanted to take that thank you that my colleagues in
34:29
the calder center from central refugee law have written extensively about so um i would commend
34:35
their press material and also their submissions on this which are all available on their website
34:42
but my understanding not being a specialist in the area is that the legislation the bill um
34:48
under the rubric of um counter-terrorism um withdraws or doesn't guarantee
34:57
um access to information for people who are facing visa cancellation um or withdrawal of
35:06
passports uh withdrawal of citizenship sorry um on on character grounds so the idea is to preserve
35:14
the the on counter because of sort of national security concerns preserve the state's capacity to
35:23
withdraw um citizenship or council visas uh without disclosing in any form to anyone uh on
35:31
this um on the side of the um the person affected um not to them or their legal representatives the
35:41
grounds for doing so so that creates a situation where the person is facing life-changing changes
35:47
in their legal status and has no prospect of being able to answer or verify or test the um basis for
35:56
that decision and so um the concerns raised which are much more rigorous and detailed than i've just
36:03
summarized there by my colleagues at the calder center were really framed around this is a core
36:08
rule of law concern this is exactly what we should be arguing about when we argue about
36:13
the rule of law that the most vulnerable people in our society in many cases obviously people
36:18
on visas um being more vulnerable than those who have permanent legal status but even people with
36:24
citizenship um being often racialized communities um uh facing the prospect of these kinds of
36:33
faceless informationless blank decisions that they have no prospect of answering
36:37
um is really inconsistent with any claim to be a system governed by the rule of law um so it was
36:45
it wasn't a detailed exposition in the paper it was really just a contrast to be drawn
36:52
and a kind of redirection of attention let's not talk about let's not worry
36:57
so much about christian porter obviously that we want to ensure that he has access
37:02
to information has legal defense and so forth in any proceeding or investigation
37:06
to which he is subject but he's um hardly the most vulnerable member of society
37:15
yeah thank you and i think that leads nicely on to another question that rafaela had
37:20
where she asked can the rule of law actually be enforced for members of parliament
37:24
as and she clarified this by saying as we can see that there is an implicit breach of rule
37:29
of law by people like christian porter um is there a way for this to be dealt with legally
37:37
uh well i i teach constitutional law and for those of you who have already done constitutional
37:44
law you'll see you know our system is based fundamentally on the idea that we can vote people
37:49
out i mean it's really that idea of you know representative government and and also responsible
37:57
government where um ministers are answerable to parliament and then parliament is answerable to
38:04
the people means that we are supposed to have the ultimate power to vote people in or out
38:10
i have never found that satisfying when i am when i talk to my students and teach it
38:16
for so many reasons but let me just give a couple um it it assumes that a single issue
38:23
however egregious and uh you know problematic it might be for you at that time is then going to
38:30
be the basis of you voting years later it also assumes that you have a full choice a range of
38:39
views that you can choose between which we know is not true in what's effectively a two-party system
38:45
where views can be very similar and certainly the two parties we have have both really
38:53
carried out some fairly appalling practices human rights practices in relation to asylum seekers to
39:00
give one example so that is what is supposed to be ultimately the protection um against abuse of
39:07
power um for members of parliament um that they exist there just at our with our authority but of
39:18
course in practice i think that is a very blunt tool to respond to issues in a political cycle
39:29
amazing um so uh we've got a question from shira who asked what happens to the rule of
39:36
law in cases of ministerial intervention or discretion when the ministers refuse
39:42
to intervene or exercise discretion doesn't that give the minister so much power without
39:46
checks and balances that they are really above the law so everyone wants to take the floor for
39:52
that one maybe flow if you wanted to comment yeah well i mean in general terms i guess we
39:57
look to administrative law to um regulate that kind of power um but of course that doesn't
40:04
eliminate or cabin all forms of discretion within the law i would argue that discretion
40:09
is ubiquitous within the legal system that there's always just political decision-making going on
40:16
um in every in every form of exercise of legal authority um so the rule of law doesn't
40:25
doesn't um doesn't eliminate doesn't even aspire to really eliminate discretion what
40:33
it does is kind of force discretion that's why um i like martin's use of the word temper it kind of
40:39
it alloys discretion or alloys political choice with these particular sets of procedures and
40:46
rituals and institutional practices which um give us ideally the opportunity to uh confront
40:56
or challenge or question so we would typically in that instance look to administrative law
41:02
um to in in under certain circumstances to challenge either an exercise of discretion
41:09
or a failure to exercise discretion where um administrative law requires it
41:15
of course that doesn't mean that all um instances uh it would be uh the type of scenario you're
41:22
describing could be litigated or um or even uh questioned on administrative law grounds but um
41:29
it's really it's really that alloying or the channeling of discretion through
41:36
rituals or practices or institutions which are designed to present
41:40
at least the possibility of confronting it with an alternative view or a question or a challenge
41:46
which is which is characteristic of the rule of law rather than the elimination of discretion
41:54
great thank you so much fleur so that works well because now we have a specific question for
41:59
karen from ella do you think expanding sexual harassment claims through the
42:04
sex discrimination act as proposed by the morrison government is the best way forward
42:09
or do you think we should be broadening the tort of battery and assault to capture this
42:15
uh well i don't think it's the best way forward but i also think that expanding the tour probably
42:21
also isn't the way forward um so what i and this raises another question about the rule of law as
42:27
well which is is it about protecting individuals uh often the rule of law is raised where there
42:34
has been um arguably an injustice you know maybe a procedural injustice for an individual um and i
42:41
would argue that we really if we want justice to be done we need to think much more collectively
42:46
than our legal system generally does so if we want to prevent sexual harassment and other kinds of
42:53
gendered harms i think we need to look at things much more broadly and as a group experience
43:01
however much you strengthen individual actions under the sex discrimination
43:06
act it's never going to be enough it's never going to change things enough what i argue for
43:12
instead is what's called positive duties where there is actually you actually look
43:16
at environments or institutions as a whole and you create an obligation to have a positive
43:23
environment in in those arenas so the people who have control over those institutions or
43:30
environments have a an obligation to prevent harm within them to me regulatory models and positive
43:38
duty models have got a lot more promise than anything that requires an individual
43:43
particularly an individual who is already harmed possibly already traumatized to take on a system
43:49
that is hostile and work their way through it and somehow overcome some of those systemic problems
43:56
uh as an individual i think that's another uh kind of harm then on that person and it and it's to me
44:03
it's never going to solve these really broad issues and problems
44:11
thank you so much so our next question is a bit more general um from kamini she asks would it be
44:19
fair to say that the problem isn't actually the law itself but rather the people who administer
44:25
or don't administer it so i think both flora karen could speak to this one
44:31
maybe i'll start that's it's a really interesting question because it kind of performs an experience
44:37
of living in a in a under a rule of law because that's exactly the kind of um experience that
44:44
we're meant to have in a rule of all system which is that the system is somehow um uh
44:51
durable and any problems with it should be rectified by reforming and working on the system
44:59
um but you should but somehow the the system as a whole is beyond question so when it doesn't
45:05
work or when it's unjust it's because it's been improperly um mobilized in a particular
45:11
instance or there's been some perversion of it by particular people within a system and lots of
45:17
institutions work on this on this sort of um logic and it's not inherently bad and in fact it's there
45:27
are lots of reasons why we might think that's really valuable as i was trying to suggest earlier
45:32
that and preferable to other forms of authority or other forms of rule that it's designed to
45:38
counter there's something um very powerful about a diffuse collective investment in this collective
45:46
work product that is the this system that's defensive of the rule of law but there is a
45:52
big problem with that style of thinking which is that um it directs us towards continually
45:58
tinkering around the edges so or focusing on the individual instances of bad behavior or
46:04
um injustice as perversions as problems that are incidental to the whole system somehow the system
46:10
itself is beyond question and so it has a kind of conservative effect which is that the status
46:16
quo needs to remain in place and we can only ever just tinker around the system and the problem is
46:22
we know from all sorts of experiences throughout history that large institutions can become
46:29
manifestly unjust in all sorts of like um we can think of um this is these large institutions
46:36
that propagated the conquest of first nations land and the stolen generation and so forth
46:41
these large institutions which were well-meaning and for their purposes well designed and yet
46:48
propagated incredible violence and devastation which we which people live with today so
46:54
i think there's a problem with thinking with saying it's only ever the particular people
46:58
administering the rule of law at the relevant time that are at fault i think we need to
47:02
keep alive the prospect that there is something central to the whole system that is also worthy
47:09
of questioning and working on and that systems do and have changed in really dramatic ways we
47:16
do and have redesigned systems from the ground up and that that should still be on the table
47:22
even at this moment um that we can't just say because this has been something we've built on
47:29
worked on for a long time and we've lived with for many centuries and it's done a lot of good
47:34
that we can't challenge the overall system i think that is um a problem
47:41
uh that's really interesting flow and i just want to pick up um fleur's talking about a system
47:47
because i think when we talk about a system it's interesting to think about what we mean by that
47:52
and what i would invite law students to do because i think we still tend to think of law as a thing
47:59
so even when we're talking about it as a system we often think of it as some sort of system that is a
48:05
kind of entity in its own and i would just invite you to think about it as a as an ecosystem that
48:12
we are living in so that when we change elements of it we are also impacting on it ourselves you
48:19
know every element is interconnected so we can't just find say the perfect law and then have an a
48:26
direct outcome because it is all filtered through every other element that's in that ecosystem
48:33
so to me it's not about just a problem with the law and it's not just a problem with the people
48:38
who administer it but those are two elements within an ecosystem as as someone who works in
48:44
law reform a lot i am often trying to think of how you could word a law to have a particular outcome
48:51
but you can look at sections that are written in some of the laws that i work most closely with
48:57
and i couldn't think of a better way to write them except that they just it don't work you
49:02
just cannot get them to be applied and you cannot get them to work within the system so in that
49:08
case the problem isn't the law it's some other element and i just think there's no way around
49:13
thinking of all of these elements as operating on each other and influencing each other it makes it
49:19
much more complex to achieve social justice and to think about how you use law reform for that but i
49:26
wouldn't say that means it's not possible at all it just means it's more complex and you will never
49:31
just have argue for say oh let's change this law to say x and be guaranteed of a particular outcome
49:41
amazing thank you so much so i think we might have time for
49:45
like a couple more questions so georgia asks do you believe that
49:50
the rule of law is better upheld under an inquisitorial or adversarial system of trial
50:00
so now i'm going to let you answer that one yeah well i've never lived large swathes of my
50:06
life under um a civil law system in a civil law system so i'm definitely more familiar with the
50:14
um adversarial system but i i certainly don't have
50:18
the view that um a civil law system or more inquisitorial system is in itself somehow inferior
50:26
um or less able to deliver on the ideal or aspire to deliver on the ideal of the rule of law than
50:34
an adversarial system um and it's interesting to look at the i don't know if anyone's read the um
50:39
i teach the cases around the extradition of julian assange and the way in which the british
50:46
courts were kind of horrified by certain aspects of the swedish criminal justice system in ways
50:52
that seemed very parochial and sort of very much um the distrust of the civil law system and the
50:59
more investigative inquisitorial system was really manifest in the british courts in that instance
51:04
um and so it's interesting to think of how we react to that which with with which we're less
51:12
familiar to need to be suspicious um when perhaps we should be equally suspicious of our own system
51:23
great so i think um we've got one last question which might be a nice way to wrap
51:28
off our question portion is from rafaela and she asks is there any literature that
51:33
you would recommend that discusses the theory and practicality of the rule of
51:37
law apart from both of your great articles is anything else that you would recommend
51:45
fleur does anything come immediately to mind for you because i i can think of a hundred and none
51:52
i mean there's so many um and a lot of what i have engaged with and read is
51:59
concerned actually with a different context to this one not really with australian law
52:02
but more around the development context and the kind of struggles that occur
52:07
um when countries um deliver aid under the rubric of improving the rule of law in another system
52:14
um which is you know always fraught and difficult but i i would commend martin
52:19
krieger's writing and maybe i'll follow up with a particular piece in which he kind of restates
52:24
some things he's obviously written lots and lots on this but there's one particular essay
52:29
that i think might be a nice encapsulation of some of his ideas he's um working worked through these
52:36
in the context of coming to terms with the um post-communist transition in eastern europe so his
52:42
his work is very much informed by the empirical experience of transitioning from communist power
52:50
to a democratic system and thinking about what um that entails and and how that might be
52:58
achieved obviously he doesn't suggest that it has been achieved uh with any perfection but
53:03
it's sort of it is impera empirically and historically grounded so it's interesting
53:07
in that respect that it's a contemplation at the level of theory that is very much informed by that
53:13
historical experience um so i'll maybe i'll follow up with an email to i'll send it to jane and
53:19
georgina and mac um and crystal and maybe it could be circulated afterwards
53:26
yes and i would add there too that my thinking about the rule of law has been more or less in
53:31
opposition to what i've read about it rather than um in harmony with it so for that reason
53:37
i don't really want to recommend the pieces that i informed my opinions in relation to
53:43
but being an equality scholar has very much shaped some of my critique of the rule of law and that is
53:50
looking at um substance over form looking at um what the outcome of something is rather than what
53:58
the process is and looking at the collective over the individual because those choices all take you
54:04
in a very different direction than traditional um philosophy of law including the kind of thin
54:11
or formalistic interpretations of the rule of law and for that i think i would recommend and commend
54:17
the scholar margaret thornton at anu who like i said she writes outside of this particular direct
54:26
field but very much in terms of those themes um so i would recommend her and a whole lot of
54:35
other critical philosophy that um might be a bit tangential so i might leave in case but anyone can
54:42
let me know if they're interested and also you can do my discrimination law subject and then i will
54:47
you'll get all the readings in class that's my advantage overflow one other thing i was
54:53
thinking that are recommending which um yeah it's about it's a kind of reflection on legal education
54:59
and what happens to our thinking and our politics when we imbibe the values of the rule of law so
55:05
that might be interesting not everyone will love it um because it comes from a particular political
55:10
tradition but everyone will react to it um it's it's an old short piece shortage piece
55:16
called um the reproduction uh legal education the reproduction of hierarchy by duncan kennedy
55:22
i'll send that around as well because it it does encourage you to kind of think about yourselves as
55:27
law students what you gain and what you lose when you learn to speak and think and work in a legal
55:36
mode in in a mode that um defends and upholds the rule of law obviously there's lots of great
55:42
things about that but there's also some um things to think about critically um that sounds great so
55:50
okay so i think that'll wrap up our question portion thanks so much to everyone who asked both
55:56
a live and a chat question that sustained us for such a long time so that was really really great
56:00
so i might might pass back quickly to james before i give the formal vote of thanks so i'm just going
56:06
to give you an informal vote of thanks i'd really like to thank fleur and karen for such a rich
56:11
discussion you really picked up on so many things that i know that the students have been either
56:16
talking about in class so i teach first year and you know we've had some rich just so there
56:23
is that notion that sometimes we talk about rule of law so it's very simple and yet when you start
56:28
to unpack it one there's so many differences of opinion but it's also so nebulous and i think you
56:33
really captured those and its interactions with the people that are acted out and the systems in
56:39
which it's embedded and made us really think about its historical context so thank you very much
56:46
yeah echo jane um so on behalf of the uts faculty of law the uts law student society
56:52
and all the students here tonight um i would like to thank both professor fleur johns and
56:56
associate professor karen o'connell for sharing their knowledge and comments with us tonight
57:01
in light of all the debate about this topic that we've covered tonight um this discussion
57:05
was extremely timely and really important in the current context so we thank you both
57:10
for providing your invaluable insights and facilitating this great discussion uh so
57:14
thank you both again and thank you to jane mack crystal and erica as well for your help tonight
57:21
thank you georgina for your help so before we head off we'd encourage all of our
57:26
brennan members crystal is going to launch a little poll because we would love to hear from
57:32
you guys as to what you want to hear from us in future justice talks um and we would love
57:37
to have some more that are like this format or any other format so we've launched a little poll
57:41
so if you wanted to vote in that um we'd love to get your ideas on what we are going to have
57:46
in our next few series of justice talks for this semester and also the spring session as well so
57:52
i'll give everyone a little bit of time to do that and while you do that
57:56
i'll just remind all of our brennan members that you'll receive five roj for the brennan program
58:01
by attending this event if you haven't put your student number and name in the chat please do so
58:06
um i'd really encourage you also to keep an eye out for our current westmade arts and
58:09
crafts drive which commences next week the 26th to the 30th of april please reach out to mac um
58:15
if you have any questions about that and we'll also be having our upcoming refugee and asylum
58:19
seeker awareness week events in may um please keep an eye out for the facebook event on our
58:25
uts lss facebook page that'll be coming out soon so encourage everyone pop anything that
58:31
you would want to hear in the chat and thank you again to everyone for coming tonight
58:41
thank you so much for having me it was great and uh and it's great to learn about this
58:46
program which is awesome and thanks again for the hospitality yeah thanks for me too and it
58:52
was just it was great to talk alongside fleur i'm so interested in her work and
58:57
also just to hear all the fantastic input from the students it's very inspiring
59:03
okay thank you everyone okay thank you both of you for giving up your time and everything and it
59:09
really it really did work well together so thanks so much that's a pleasure jane bye everyone thank
59:15
you and everyone bye thanks for voting too bye see you next event okay did i mention in
59:22
case it's useful sorry what was that for send you that essay i'll send you those two pieces that i
English
AllListenableFrom University of Technology SydneyRecently uploaded
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In this Justice Talks video listen to Fleur Johns, Professor in the Faculty of Law & Justice at UNSW, and Karen O'Connell, Associate Professor in the Faculty of Law at UTS, discuss what is meant by the law in practice. They unpack questions which seek to explore who the law is for, what it protects, and how it can do this.
► Professor Fleur Johns works in the areas of public international law, legal theory, law and development, law and society (or socio-legal studies), and law and technology.
►Associate Professor Karen O’Connell is an expert in discrimination law, particularly sex and disability discrimination, sexual harassment and gender equality. She has worked for over 20 years on equality law and policy reform and advises public and private organisations on equality issues.
