WEBVTT 1 00:00:00.000 --> 00:00:03.340 Looking at the news reports from all over the world, 2 00:00:04.320 --> 00:00:06.620 not the least of which is the bombing in London, 3 00:00:06.760 --> 00:00:09.840 but also the hurricanes in Cuba and Florida, 4 00:00:10.520 --> 00:00:12.220 I said to my partner this morning, 5 00:00:12.300 --> 00:00:14.160 I am so glad we are in Adelaide. 6 00:00:15.080 --> 00:00:17.380 And I mean that for a variety of reasons. 7 00:00:17.940 --> 00:00:20.860 I've always thought of Adelaide as Camelot, actually. 8 00:00:21.660 --> 00:00:23.860 And it is Camelot because you will have noticed, 9 00:00:23.880 --> 00:00:27.420 despite all the predictions of the Weather Bureau, 10 00:00:27.420 --> 00:00:30.480 it does actually always stop raining by 10 o'clock. 11 00:00:33.820 --> 00:00:35.860 I've also been asked to pad a little 12 00:00:35.860 --> 00:00:38.060 because we have some of the, 13 00:00:38.660 --> 00:00:42.240 I won't say the flow over from the Germaine Greer session, 14 00:00:42.480 --> 00:00:44.520 but some people who will be arriving a little late 15 00:00:44.520 --> 00:00:46.920 because the queues apparently go down to Victoria. 16 00:00:51.460 --> 00:00:54.060 So let me tell you a little bit about Adelaide. 17 00:00:54.140 --> 00:00:56.200 One of the things that impresses me here, 18 00:00:56.360 --> 00:00:57.400 which is very different, 19 00:00:57.420 --> 00:00:58.320 from my own city, 20 00:00:58.980 --> 00:01:01.000 is that all of the university halls 21 00:01:01.000 --> 00:01:04.600 are located at the public end of the university. 22 00:01:04.960 --> 00:01:07.280 That means that this is a republic 23 00:01:07.280 --> 00:01:09.100 that Plato would have been proud of. 24 00:01:09.160 --> 00:01:12.080 It says that its intellectual life is open to the city 25 00:01:12.080 --> 00:01:14.420 and members of the city come to it. 26 00:01:15.240 --> 00:01:17.360 The universities in Victoria, 27 00:01:17.500 --> 00:01:21.020 you would need several maps and binoculars 28 00:01:21.020 --> 00:01:24.600 to find any space that could be used in the same way 29 00:01:24.600 --> 00:01:27.140 that opens itself to that community. 30 00:01:27.420 --> 00:01:32.080 So I've always been incredibly impressed with Adelaide. 31 00:01:32.560 --> 00:01:34.840 One of the things that struck me as well, 32 00:01:34.960 --> 00:01:36.640 because I was at the town hall last night 33 00:01:36.640 --> 00:01:38.460 and I've been obviously in each of the halls here, 34 00:01:38.600 --> 00:01:41.160 is that it indeed is the city of churches 35 00:01:41.160 --> 00:01:44.980 because every single building has church architecture. 36 00:01:45.200 --> 00:01:47.460 It's almost like they've got a monopoly 37 00:01:47.460 --> 00:01:50.020 on this particular style 38 00:01:50.020 --> 00:01:52.900 and public buildings have to kind of replicate this. 39 00:01:53.200 --> 00:01:56.740 So it's churches and church public buildings. 40 00:01:57.580 --> 00:02:00.780 But I think we've now probably come to the moment 41 00:02:00.780 --> 00:02:03.400 where we should formally open the proceedings. 42 00:02:03.820 --> 00:02:06.540 This is indeed a very important topic 43 00:02:06.540 --> 00:02:10.020 and we're very pleased to have such a very distinguished panel 44 00:02:10.020 --> 00:02:11.860 and I particularly would like to thank the Imam 45 00:02:11.860 --> 00:02:13.840 who, as you might imagine, 46 00:02:13.880 --> 00:02:17.080 has been on email and phone all over the world 47 00:02:17.080 --> 00:02:19.240 in the last 48 hours. 48 00:02:19.480 --> 00:02:22.320 So it's a great privilege to have him here 49 00:02:22.320 --> 00:02:26.220 and he also tells me that he's suffering from jet lag. 50 00:02:26.400 --> 00:02:26.720 So... 51 00:02:26.720 --> 00:02:29.160 I'm sure we'll be kind 52 00:02:30.820 --> 00:02:33.420 to that pressure on him. 53 00:02:34.940 --> 00:02:37.820 The topic we have today is liberating law 54 00:02:37.820 --> 00:02:41.420 and there are many ambiguities with this particular topic, 55 00:02:41.480 --> 00:02:42.060 which I love. 56 00:02:42.160 --> 00:02:44.480 I think it's terrific that you can come up with a topic 57 00:02:44.480 --> 00:02:45.400 that isn't straightforward. 58 00:02:46.640 --> 00:02:48.940 It's obviously, in the first instance, 59 00:02:48.980 --> 00:02:52.740 an idea that law is something fusty and crusty 60 00:02:52.740 --> 00:02:54.700 and that lawyers as a profession 61 00:02:54.700 --> 00:02:56.700 really have something sort of wronged 62 00:02:56.720 --> 00:02:57.060 with them. 63 00:02:57.900 --> 00:03:01.280 That we need to find some way of... 64 00:03:01.280 --> 00:03:03.980 a method of thinking that, in a sense, 65 00:03:04.560 --> 00:03:05.440 helps law 66 00:03:05.440 --> 00:03:07.740 because it's sort of dysfunctional. 67 00:03:08.360 --> 00:03:10.580 And that's one of the first assumptions. 68 00:03:11.160 --> 00:03:13.640 And I should say we have two... 69 00:03:13.640 --> 00:03:16.500 well, three of our group as lawyers 70 00:03:16.500 --> 00:03:17.640 and one non-lawyer 71 00:03:17.640 --> 00:03:19.160 and they were saying, 72 00:03:19.260 --> 00:03:21.120 oh, I hope no-one's going to tackle that topic 73 00:03:21.120 --> 00:03:22.980 and I said, well, the chair should always identify 74 00:03:22.980 --> 00:03:23.820 with the audience. 75 00:03:25.740 --> 00:03:26.700 So, despite... 76 00:03:26.700 --> 00:03:27.900 despite the fact that I'm a lawyer, 77 00:03:28.020 --> 00:03:30.760 I understand some of those concerns. 78 00:03:31.180 --> 00:03:34.220 But the idea that we might be able to do something 79 00:03:34.220 --> 00:03:35.540 about law and lawyers 80 00:03:35.540 --> 00:03:37.180 in order that, 81 00:03:37.280 --> 00:03:39.180 and here's the second meaning of the topic, 82 00:03:39.240 --> 00:03:42.280 law can be used to create a greater sense of freedom 83 00:03:42.280 --> 00:03:43.860 for us as people 84 00:03:43.860 --> 00:03:46.060 or to preserve and protect 85 00:03:46.060 --> 00:03:48.840 the liberation of the individual 86 00:03:48.840 --> 00:03:51.560 is a very long and noble tradition 87 00:03:51.560 --> 00:03:53.200 in jurisprudential thought 88 00:03:53.200 --> 00:03:54.420 and in political thought. 89 00:03:55.160 --> 00:03:56.400 But there's been... 90 00:03:56.700 --> 00:03:58.760 a very interesting historical shift, hasn't there? 91 00:03:58.880 --> 00:04:00.380 We're very familiar with 92 00:04:00.380 --> 00:04:02.760 the 19th century concept of liberalism 93 00:04:02.760 --> 00:04:04.140 that is minimalist law. 94 00:04:04.300 --> 00:04:05.300 You do nothing. 95 00:04:05.400 --> 00:04:08.140 You try and keep law as basic as possible 96 00:04:08.140 --> 00:04:10.000 and you only interfere 97 00:04:10.000 --> 00:04:12.500 with your citizenry 98 00:04:12.500 --> 00:04:14.460 if they're going to hurt themselves or hurt each other. 99 00:04:14.540 --> 00:04:15.460 Right? The Mills position. 100 00:04:15.760 --> 00:04:17.260 And that was the lefty position 101 00:04:17.260 --> 00:04:18.960 and it remained the lefty position 102 00:04:18.960 --> 00:04:21.000 well into the 20th century as well. 103 00:04:22.080 --> 00:04:24.480 Then something kind of happened. 104 00:04:24.640 --> 00:04:26.600 We sort of got the general idea 105 00:04:26.700 --> 00:04:28.160 that not everybody is equal. 106 00:04:28.240 --> 00:04:31.320 Not everyone is a Descartesian thinking being 107 00:04:31.320 --> 00:04:33.440 that can look after their own interest. 108 00:04:33.800 --> 00:04:37.220 And so the lefty position became protectionist. 109 00:04:37.600 --> 00:04:40.920 The idea was you had to use law 110 00:04:40.920 --> 00:04:42.820 much more extensively 111 00:04:42.820 --> 00:04:45.380 in order to equalise power relationships 112 00:04:45.380 --> 00:04:47.240 in an unequal social system. 113 00:04:48.480 --> 00:04:52.640 And so what we have is the advent of regulatory law 114 00:04:52.640 --> 00:04:55.540 interfering in every part of our lives 115 00:04:55.540 --> 00:04:56.680 in order to... 116 00:04:56.700 --> 00:05:00.100 to enforce this kind of equality and protection. 117 00:05:01.160 --> 00:05:02.600 And then a very funny thing happens 118 00:05:02.600 --> 00:05:05.140 when we put the national into the global 119 00:05:05.140 --> 00:05:09.880 because regulatory law in Western society has burgeoned. 120 00:05:10.600 --> 00:05:13.480 So what happens is that your liberals 121 00:05:13.480 --> 00:05:16.180 actually go internationally to those countries 122 00:05:16.180 --> 00:05:17.140 to do their business 123 00:05:17.140 --> 00:05:19.920 where we're still in the 19th century concept 124 00:05:19.920 --> 00:05:21.280 of minimalist law. 125 00:05:22.180 --> 00:05:24.980 So we have a huge difference 126 00:05:24.980 --> 00:05:26.680 in our own experience. 127 00:05:26.700 --> 00:05:27.740 We have high expectations of law 128 00:05:27.740 --> 00:05:29.560 as Western societies 129 00:05:29.560 --> 00:05:32.920 and what we demand in a business sense 130 00:05:32.920 --> 00:05:34.040 or seemingly demand 131 00:05:34.040 --> 00:05:37.700 is 19th century liberalism elsewhere 132 00:05:37.700 --> 00:05:39.840 if we're going to prosper, allegedly. 133 00:05:40.380 --> 00:05:42.980 So these are just some of the issues 134 00:05:42.980 --> 00:05:44.800 just inherent in the title itself. 135 00:05:46.000 --> 00:05:47.400 And we will of course be tackling 136 00:05:47.400 --> 00:05:49.920 and I've specifically asked the panel 137 00:05:49.920 --> 00:05:51.700 if they would think about this 138 00:05:51.700 --> 00:05:53.560 about the issue of relativism 139 00:05:53.560 --> 00:05:56.460 and if we also turn our minds, 140 00:05:56.700 --> 00:05:58.540 in the light of events more recently, 141 00:05:58.740 --> 00:06:02.480 to how we preserve some sense 142 00:06:02.480 --> 00:06:05.740 of making sure that law is minimalist 143 00:06:05.740 --> 00:06:09.580 at a time when there is pressure 144 00:06:09.580 --> 00:06:14.700 for it to be intrusive 145 00:06:14.700 --> 00:06:16.160 into our lives 146 00:06:16.160 --> 00:06:18.100 and into the lives of others 147 00:06:18.100 --> 00:06:20.360 and control others in a populist context. 148 00:06:20.900 --> 00:06:22.920 So very interesting questions 149 00:06:22.920 --> 00:06:25.300 and we have an incredibly distinguished panel 150 00:06:25.300 --> 00:06:26.320 who's going to be... 151 00:06:26.700 --> 00:06:27.440 addressing those. 152 00:06:27.740 --> 00:06:29.900 Our first speaker is Nari Nafin 153 00:06:29.900 --> 00:06:31.260 who's the hometown girl 154 00:06:31.260 --> 00:06:32.760 so you can all cheer now. 155 00:06:35.160 --> 00:06:38.360 And Nari has an incredibly impressive vita 156 00:06:38.360 --> 00:06:40.500 and in fact all of the itas are in the program 157 00:06:40.500 --> 00:06:42.080 so I won't need to repeat it. 158 00:06:42.760 --> 00:06:45.560 Nari started life as a police person 159 00:06:45.560 --> 00:06:50.180 and then became a lawyer 160 00:06:50.180 --> 00:06:53.000 and is, I suppose, 161 00:06:53.180 --> 00:06:54.160 one of the leading lights 162 00:06:54.160 --> 00:06:55.660 in feminist legal theory 163 00:06:55.660 --> 00:06:56.680 and then... 164 00:06:56.700 --> 00:06:57.760 in bioethics 165 00:06:57.760 --> 00:07:00.520 and as the stage manager said to me 166 00:07:00.520 --> 00:07:01.960 before Nari arrived 167 00:07:01.960 --> 00:07:02.840 because he hadn't met her, 168 00:07:02.880 --> 00:07:03.020 he said, 169 00:07:03.080 --> 00:07:04.800 is there anything that she doesn't do? 170 00:07:05.380 --> 00:07:07.500 I mean, is she a gymnast or something? 171 00:07:07.700 --> 00:07:08.100 And I said, 172 00:07:08.120 --> 00:07:09.460 she might well be. 173 00:07:10.020 --> 00:07:12.540 But Nari is one of those people 174 00:07:12.540 --> 00:07:14.560 that is a committed intellectual. 175 00:07:14.820 --> 00:07:16.860 That is, she lives what she writes 176 00:07:16.860 --> 00:07:20.200 and she has been my friend for many years 177 00:07:20.200 --> 00:07:22.380 and so I'm very much looking forward to Nari 178 00:07:22.380 --> 00:07:25.040 talking to you about this very important topic. 179 00:07:29.180 --> 00:07:31.300 I thought the hall was going to be empty. 180 00:07:34.240 --> 00:07:37.260 Our topic today is liberating law. 181 00:07:38.100 --> 00:07:40.680 So from what does law need liberating? 182 00:07:41.660 --> 00:07:44.620 I believe that law needs liberating 183 00:07:44.620 --> 00:07:46.160 from obscurantism, 184 00:07:46.920 --> 00:07:47.420 from misinformation 185 00:07:47.420 --> 00:07:50.240 and from too little information. 186 00:07:51.780 --> 00:07:54.500 I think constructive criticism of our law 187 00:07:54.500 --> 00:07:56.000 and its institutions 188 00:07:56.700 --> 00:07:57.720 are to be embraced 189 00:07:57.720 --> 00:08:00.440 and corruption abhorred. 190 00:08:01.020 --> 00:08:03.620 But the public should be entrusted 191 00:08:03.620 --> 00:08:04.820 with the relevant facts 192 00:08:04.820 --> 00:08:07.560 and be permitted to make up their own minds. 193 00:08:08.480 --> 00:08:09.980 As a criminal lawyer, 194 00:08:11.260 --> 00:08:13.660 I'm particularly concerned about the reporting of crime, 195 00:08:14.660 --> 00:08:15.180 criminal law 196 00:08:15.180 --> 00:08:16.720 and criminal justice 197 00:08:16.720 --> 00:08:19.520 to the public in this state 198 00:08:19.520 --> 00:08:23.220 and the manner in which public opinion about crime 199 00:08:23.960 --> 00:08:25.100 is shaped, 200 00:08:25.300 --> 00:08:26.680 about crime law. 201 00:08:26.700 --> 00:08:26.860 and justice. 202 00:08:28.660 --> 00:08:31.180 But our government, which I will talk about, 203 00:08:31.360 --> 00:08:33.860 is not alone in the tactics that it deploys 204 00:08:33.860 --> 00:08:35.340 in shaping public opinion. 205 00:08:35.480 --> 00:08:37.220 So I think the message is a broader one. 206 00:08:38.220 --> 00:08:39.480 For some time, 207 00:08:39.560 --> 00:08:43.000 criminologists have studied the way that public opinion 208 00:08:44.040 --> 00:08:47.340 about crime and justice is shaped and manipulated. 209 00:08:48.040 --> 00:08:50.620 It's now well known that fear of crime 210 00:08:50.620 --> 00:08:55.580 can be whipped up just by a certain alarmist style of reporting. 211 00:08:55.580 --> 00:09:00.440 It is not difficult to engender anxiety in the community 212 00:09:00.440 --> 00:09:01.960 about public safety. 213 00:09:03.000 --> 00:09:06.300 Law and order make good headlines every day. 214 00:09:06.980 --> 00:09:09.680 And governments have a natural interest 215 00:09:09.680 --> 00:09:12.960 in raising concerns about public security 216 00:09:13.580 --> 00:09:15.900 because they thereby garner support 217 00:09:16.580 --> 00:09:18.380 for greater state powers, 218 00:09:18.620 --> 00:09:20.160 which will be a big thing today, 219 00:09:20.340 --> 00:09:21.720 and their own popularity. 220 00:09:22.700 --> 00:09:24.940 When people are worried about their safety, 221 00:09:24.940 --> 00:09:27.480 they're more likely to support criminal laws 222 00:09:27.480 --> 00:09:29.640 and criminal justice practices, 223 00:09:29.760 --> 00:09:32.940 which seem to be tough on crime and criminals. 224 00:09:33.240 --> 00:09:34.920 And they tend to be less critical 225 00:09:34.920 --> 00:09:37.720 of laws which threaten their civil liberties. 226 00:09:39.100 --> 00:09:42.520 It's therefore important for the public to be well informed 227 00:09:42.520 --> 00:09:46.380 about three dimensions of crime and justice. 228 00:09:47.180 --> 00:09:47.860 Firstly, 229 00:09:48.640 --> 00:09:51.060 to the extent that it is feasible, 230 00:09:51.940 --> 00:09:54.260 we need to know about the true extent 231 00:09:54.260 --> 00:09:55.900 of crime in the community, 232 00:09:57.000 --> 00:09:59.280 or at least anti-social behaviour, 233 00:10:00.000 --> 00:10:02.420 the behaviour to which criminal law responds. 234 00:10:03.600 --> 00:10:06.460 Second, we need to know some basic criminal law. 235 00:10:06.660 --> 00:10:10.100 I think it's part of our duty as citizens 236 00:10:10.100 --> 00:10:11.540 to know our laws, 237 00:10:12.680 --> 00:10:15.060 what specific criminal offences are there, 238 00:10:15.200 --> 00:10:17.080 what defences have been created 239 00:10:17.080 --> 00:10:19.820 to respond to anti-social behaviour. 240 00:10:21.600 --> 00:10:24.240 Criminal law is addressed to our community, 241 00:10:24.240 --> 00:10:26.340 to us very directly and personally, 242 00:10:26.520 --> 00:10:28.520 because we are all potential offenders. 243 00:10:29.140 --> 00:10:31.820 We're therefore supposed to know its basic content. 244 00:10:32.240 --> 00:10:35.320 Criminal law tells us what we can and cannot do to each other, 245 00:10:36.240 --> 00:10:37.280 our most basic obligations. 246 00:10:38.340 --> 00:10:41.580 It also tells us what can be done to us 247 00:10:42.280 --> 00:10:44.700 if we are suspected of breaching those laws. 248 00:10:45.420 --> 00:10:48.040 So it's in this area that our personal liberty 249 00:10:48.040 --> 00:10:50.240 is most at risk. 250 00:10:51.540 --> 00:10:53.140 Thirdly, I think we need to know 251 00:10:53.140 --> 00:10:55.780 some basic things about how criminal justice works, 252 00:10:56.040 --> 00:10:58.900 about how criminal laws are enforced. 253 00:11:00.800 --> 00:11:03.420 I'm concerned that South Australians in particular, 254 00:11:03.640 --> 00:11:07.100 and I've lived in this state nearly all my life, 255 00:11:07.140 --> 00:11:07.840 and I love it, 256 00:11:07.960 --> 00:11:12.260 that we're being denied this basic legal education 257 00:11:12.260 --> 00:11:14.560 and with the connivance of government. 258 00:11:15.280 --> 00:11:19.280 I can discern no real effort on the part of our government 259 00:11:19.280 --> 00:11:23.120 to explain how criminal law and criminal justice work, 260 00:11:23.140 --> 00:11:26.280 the main vehicles for communication to us 261 00:11:26.280 --> 00:11:29.060 seem to be the tabloid press and talk-back radio. 262 00:11:30.180 --> 00:11:33.520 The responsibility of government to communicate effectively 263 00:11:33.520 --> 00:11:36.000 about crime and justice is heightened 264 00:11:36.000 --> 00:11:38.700 by its very public challenges 265 00:11:38.700 --> 00:11:41.220 to the institutions of criminal justice. 266 00:11:41.660 --> 00:11:43.960 If the government is going to step in 267 00:11:43.960 --> 00:11:46.840 and say that criminal justice is being done badly 268 00:11:46.840 --> 00:11:49.020 in order to make political capital, 269 00:11:49.700 --> 00:11:53.120 then it is incumbent on government to explain justice 270 00:11:53.140 --> 00:11:55.660 just how and why these institutions are failing us. 271 00:11:56.220 --> 00:11:57.940 The stakes are being raised 272 00:11:57.940 --> 00:12:00.400 and so more needs to be explained to us. 273 00:12:01.140 --> 00:12:04.420 But when I try to follow one of these high-profile cases 274 00:12:04.420 --> 00:12:05.680 through the public media, 275 00:12:05.860 --> 00:12:08.140 when I read about the government's utterances 276 00:12:08.140 --> 00:12:10.080 on a public criminal prosecution, 277 00:12:10.480 --> 00:12:12.840 I find I do not have enough information 278 00:12:12.840 --> 00:12:14.440 to assess the case. 279 00:12:15.200 --> 00:12:18.180 I have little information or I have distorted information. 280 00:12:19.060 --> 00:12:21.880 I may be told that an injustice has been done, 281 00:12:21.940 --> 00:12:23.120 that the police or the prosecution 282 00:12:23.140 --> 00:12:27.260 or the judiciary has not been tough enough on a criminal. 283 00:12:27.820 --> 00:12:30.640 And this is the sort of thing I'm likely to hear 284 00:12:30.640 --> 00:12:33.020 from a government which says it's tough on crime 285 00:12:33.020 --> 00:12:36.000 and which likes to flex its muscles in the media. 286 00:12:36.500 --> 00:12:38.720 But I can't assess this for myself. 287 00:12:40.000 --> 00:12:41.580 If the government, for example, 288 00:12:41.780 --> 00:12:43.480 rebukes the prosecution service 289 00:12:43.480 --> 00:12:44.820 for the way it deals with a case, 290 00:12:45.000 --> 00:12:47.320 I can't tell from what I read, 291 00:12:47.360 --> 00:12:48.260 from what I listen to, 292 00:12:48.400 --> 00:12:50.260 whether this criticism is justified. 293 00:12:51.120 --> 00:12:53.120 So what do we need to be doing? 294 00:12:53.140 --> 00:12:54.640 What do we need to be told about crime, 295 00:12:54.780 --> 00:12:56.000 criminal law and criminal justice, 296 00:12:56.340 --> 00:12:58.560 especially by a government which places 297 00:12:58.560 --> 00:13:01.400 so much emphasis on law and order? 298 00:13:02.360 --> 00:13:05.240 First, we need to be told about the true extent 299 00:13:05.240 --> 00:13:07.680 of antisocial activity in the community, 300 00:13:07.820 --> 00:13:09.920 to the extent that it's possible. 301 00:13:10.200 --> 00:13:12.560 And crime statistics are very hard to put together. 302 00:13:12.940 --> 00:13:14.660 Is crime going up or down? 303 00:13:14.860 --> 00:13:16.340 Has it changed its character? 304 00:13:16.820 --> 00:13:18.320 Are we more at risk? 305 00:13:18.480 --> 00:13:19.820 Are we really more at risk? 306 00:13:20.360 --> 00:13:21.460 And from whom? 307 00:13:21.460 --> 00:13:24.860 In other words, we need full and responsible reporting 308 00:13:24.860 --> 00:13:26.440 of all types of crime. 309 00:13:26.960 --> 00:13:29.060 There should not be a narrow focus 310 00:13:29.060 --> 00:13:30.600 on certain types of criminal, 311 00:13:30.780 --> 00:13:33.400 the type who are good at attracting headlines. 312 00:13:33.860 --> 00:13:37.120 I'm thinking here in particular of child sex offenders 313 00:13:37.120 --> 00:13:40.060 who have been consistently vilified by the government. 314 00:13:40.420 --> 00:13:42.560 Of course, this behaviour is terrible. 315 00:13:42.740 --> 00:13:44.660 But there are other antisocial activities 316 00:13:44.660 --> 00:13:45.860 which we should know about. 317 00:13:46.060 --> 00:13:48.240 We need the big picture, the full picture. 318 00:13:48.680 --> 00:13:51.440 Second, we need to know about the criminal law. 319 00:13:51.440 --> 00:13:55.300 The law is being enacted to deal with antisocial people. 320 00:13:55.860 --> 00:13:58.080 Our government says it's tough on crime 321 00:13:58.080 --> 00:14:01.360 and it has overseen the passage of a number of laws 322 00:14:01.360 --> 00:14:03.320 designed to demonstrate this commitment, 323 00:14:03.500 --> 00:14:06.820 which I have to teach down the road and struggle with. 324 00:14:07.160 --> 00:14:10.000 For example, we now have home invasion laws 325 00:14:10.000 --> 00:14:13.840 in which people can use virtually any amount of force 326 00:14:13.840 --> 00:14:16.000 to defend themselves or their property. 327 00:14:16.160 --> 00:14:19.460 It doesn't matter whether the force is objectively justified. 328 00:14:20.180 --> 00:14:21.420 However, the government says 329 00:14:21.440 --> 00:14:23.940 that the government has downplayed clear, consistent evidence 330 00:14:23.940 --> 00:14:28.460 that those who commit sexual crimes of violence against women, 331 00:14:28.540 --> 00:14:29.860 especially violence in the home, 332 00:14:30.020 --> 00:14:32.340 are very difficult to bring to justice these offenders 333 00:14:32.340 --> 00:14:35.700 within the current criminal law, which is about 30 years old. 334 00:14:36.000 --> 00:14:39.280 Here, antique rape laws seem to be working 335 00:14:39.280 --> 00:14:40.540 in the interests of offenders. 336 00:14:41.580 --> 00:14:45.340 But this is not something that a tough government wants known. 337 00:14:45.660 --> 00:14:48.060 We're not getting the full story about criminal law reform, 338 00:14:48.320 --> 00:14:50.240 about what is and isn't being done. 339 00:14:50.240 --> 00:14:52.240 And without this basic legal knowledge, 340 00:14:52.340 --> 00:14:55.700 we are poorly informed about some of our most basic obligations. 341 00:14:56.680 --> 00:15:00.560 Third, we need to be told about how criminal prosecutions work. 342 00:15:01.120 --> 00:15:05.040 Why and how are people charged with particular offences 343 00:15:05.040 --> 00:15:06.120 and not with others? 344 00:15:06.380 --> 00:15:08.020 How are crimes proved? 345 00:15:08.380 --> 00:15:10.000 What evidence is needed? 346 00:15:10.440 --> 00:15:12.940 If the government is to step in very publicly 347 00:15:12.940 --> 00:15:15.640 and say that criminal justice is being done badly, 348 00:15:15.900 --> 00:15:17.360 then it needs to make its case. 349 00:15:17.740 --> 00:15:20.220 At present, if a member of the public, 350 00:15:20.240 --> 00:15:23.360 tries to follow the course of one of these high-profile, 351 00:15:23.360 --> 00:15:25.560 much-criticised criminal prosecutions 352 00:15:25.560 --> 00:15:27.440 in a quiet, intelligent manner, 353 00:15:27.940 --> 00:15:31.000 they will find it extremely difficult to make sense of what is going on, 354 00:15:31.080 --> 00:15:34.960 precisely because of a dearth of some basic legal information. 355 00:15:35.580 --> 00:15:38.740 To get a decent grip on a criminal prosecution, 356 00:15:39.660 --> 00:15:43.680 at a minimum, you need to know what the precise charges are, 357 00:15:43.780 --> 00:15:46.720 what evidence is there to support those charges. 358 00:15:47.060 --> 00:15:49.840 You need to know about the available criminal defences. 359 00:15:50.520 --> 00:15:53.280 To compare one crime with another, 360 00:15:53.380 --> 00:15:54.480 one case with another, 361 00:15:54.640 --> 00:16:00.160 to see if suspected offenders are being treated fairly and in like manner, 362 00:16:00.480 --> 00:16:04.840 you need to know the essential similarities and differences between the cases. 363 00:16:05.480 --> 00:16:09.500 The decision to prosecute depends on whether the case is winnable, 364 00:16:09.680 --> 00:16:12.580 and this depends on the sort of evidence that's available. 365 00:16:12.960 --> 00:16:15.140 Something terrible may have occurred. 366 00:16:15.460 --> 00:16:17.740 Someone's been hurt or killed. 367 00:16:18.140 --> 00:16:20.020 But this does not automatically 368 00:16:20.020 --> 00:16:22.540 translate into a successful criminal prosecution. 369 00:16:22.960 --> 00:16:26.800 If the public is not given these basic facts about how laws are enforced, 370 00:16:27.460 --> 00:16:30.820 or if the facts are distorted when they're given to us, 371 00:16:31.000 --> 00:16:34.600 it's poorly placed to judge whether justice has been done 372 00:16:34.600 --> 00:16:37.440 when the government claims that it has not been done. 373 00:16:38.300 --> 00:16:42.560 I've been talking about the transmission of information and misinformation 374 00:16:42.560 --> 00:16:45.960 about criminal justice matters in this state, 375 00:16:46.120 --> 00:16:48.420 but the problem is not confined to South Australia, 376 00:16:48.600 --> 00:16:50.000 though it's been very public here. 377 00:16:50.020 --> 00:16:53.400 In today's paper, yet again, in the Australian. 378 00:16:53.720 --> 00:16:56.360 Law and order is a popular political platform 379 00:16:56.360 --> 00:16:59.160 from which governments like to make political capital 380 00:16:59.160 --> 00:17:01.020 and to enhance their powers. 381 00:17:01.700 --> 00:17:05.580 Our lawmakers are charged with the responsibility 382 00:17:05.580 --> 00:17:10.420 of making laws for peace, order and good government. 383 00:17:10.540 --> 00:17:11.380 It's in the Constitution. 384 00:17:12.080 --> 00:17:14.320 These are words which we should take seriously. 385 00:17:14.660 --> 00:17:19.660 They require respect for and faith in those who are given the task 386 00:17:19.660 --> 00:17:24.000 of fairly and impartially enforcing and interpreting these laws 387 00:17:24.000 --> 00:17:26.040 and for the institutions of justice. 388 00:17:26.860 --> 00:17:32.480 Respect for legal institutions and respectful behaviour across institutions 389 00:17:32.480 --> 00:17:37.780 is fundamental to a stable, effective criminal justice system. 390 00:17:38.180 --> 00:17:41.280 Without this rule of law, we have only the law of the jungle. 391 00:17:42.100 --> 00:17:43.900 But respect needs to be earned 392 00:17:43.900 --> 00:17:46.040 and respect needs to be based on information. 393 00:17:46.500 --> 00:17:49.100 To know whether to respect our government, 394 00:17:49.100 --> 00:17:51.900 our lawmakers, our legal institutions, 395 00:17:52.280 --> 00:17:54.060 we need to be in the know. 396 00:17:54.200 --> 00:17:56.920 We need to be in a position to know what is going on, 397 00:17:57.000 --> 00:17:58.880 not to be told what to think. 398 00:17:59.020 --> 00:17:59.700 Thank you. 399 00:18:11.980 --> 00:18:17.580 There were some local strains there that I can glimpse as an outsider 400 00:18:17.580 --> 00:18:22.280 into your political processes and the discussions of law and order. 401 00:18:22.380 --> 00:18:25.380 I must say that I've always found it quite strange 402 00:18:25.380 --> 00:18:29.300 that Australians have gone populist about law and order issues. 403 00:18:29.480 --> 00:18:31.800 This is the benefit of our overseas visitors, 404 00:18:33.060 --> 00:18:36.360 with the exception of South Australia, it must be said, 405 00:18:36.440 --> 00:18:37.820 a convict society. 406 00:18:38.300 --> 00:18:40.720 It was the great experiment that went right. 407 00:18:41.140 --> 00:18:44.980 And so if anywhere in the world we should be far more inclined 408 00:18:44.980 --> 00:18:47.500 to take a risk, to understand, 409 00:18:47.500 --> 00:18:53.140 that rehabilitation issues and the consideration of the causes of crime 410 00:18:53.140 --> 00:18:55.020 and the way in which we deal with it 411 00:18:55.020 --> 00:18:58.020 ought to be something that we ought to leave the world, not follow. 412 00:18:58.960 --> 00:19:00.580 So thank you very much, Nari, 413 00:19:00.680 --> 00:19:04.220 for outlining some of the ways in which we get to know 414 00:19:04.220 --> 00:19:05.640 a little bit more about the detail 415 00:19:06.640 --> 00:19:10.080 of what's to be done about populist law and order agendas. 416 00:19:10.920 --> 00:19:12.880 Our second speaker is Julian Burnside. 417 00:19:13.100 --> 00:19:15.000 Julian's been on the platform a number of times. 418 00:19:15.040 --> 00:19:16.220 He's a veteran here now. 419 00:19:18.580 --> 00:19:23.240 Julian spoke last night about his work with Spare Lawyers for Refugees, 420 00:19:23.260 --> 00:19:25.740 indeed his leadership and instigation of that organisation. 421 00:19:26.380 --> 00:19:29.880 I mentioned that Nari lives what she thinks, 422 00:19:29.980 --> 00:19:32.440 and that can also be said of all of our speakers, 423 00:19:32.520 --> 00:19:37.000 but particularly in the context of his work with Asylum Seekers of Julian. 424 00:19:37.400 --> 00:19:41.180 Julian is a criminal barrister, a trial attorney, 425 00:19:41.320 --> 00:19:47.260 for the benefit of the imam and other visitors from international waters 426 00:19:47.260 --> 00:19:50.300 who won't know what a barrister is, least of all what a QC is. 427 00:19:51.140 --> 00:19:57.980 But Julian has been active for many years now in that area, 428 00:19:58.080 --> 00:20:01.740 but previously, obviously, in his incarnation as a commercial lawyer, 429 00:20:01.840 --> 00:20:04.580 he got to see the other side of law, 430 00:20:04.740 --> 00:20:08.880 the quieter side and the far more influential side. 431 00:20:09.160 --> 00:20:15.360 These days, I think that dimension of corporate and commercial law 432 00:20:15.360 --> 00:20:17.140 overlaps with criminal law in ways 433 00:20:17.260 --> 00:20:19.680 that have become very important. 434 00:20:20.520 --> 00:20:23.540 So perhaps as a segue, he might like to talk to us 435 00:20:23.540 --> 00:20:25.880 about some of his perceptions of the topic. 436 00:20:34.320 --> 00:20:36.780 I should make a correction. I'm not a criminal lawyer. 437 00:20:37.200 --> 00:20:41.140 When I decided to be a barrister, I thought I would want to be a criminal lawyer, 438 00:20:41.200 --> 00:20:42.420 but it just didn't work out that way. 439 00:20:43.100 --> 00:20:45.080 There was a story I heard recently. 440 00:20:45.120 --> 00:20:46.720 A few years ago, a judge, 441 00:20:47.720 --> 00:20:51.500 in New York, was mugged in the street. 442 00:20:51.600 --> 00:20:52.720 It was quite a nasty attack. 443 00:20:52.900 --> 00:20:54.140 He took a long time to recover. 444 00:20:54.800 --> 00:20:58.440 And after he had recovered, because this was a fairly unusual event, 445 00:20:58.720 --> 00:21:00.940 he was invited to speak at various places. 446 00:21:01.180 --> 00:21:03.060 And he was speaking at a gathering like this 447 00:21:03.060 --> 00:21:08.520 and made the point, as judges properly should, 448 00:21:10.000 --> 00:21:13.960 that because of judicial independence and impartiality and so on, 449 00:21:14.000 --> 00:21:15.780 the experience that he had suffered 450 00:21:15.780 --> 00:21:20.220 would not influence the way he approached the task of sentencing 451 00:21:20.780 --> 00:21:22.260 in assault cases. 452 00:21:22.940 --> 00:21:25.320 An elderly lady at the back of the hall called out, 453 00:21:25.360 --> 00:21:25.980 mug him again. 454 00:21:33.300 --> 00:21:35.680 Which sort of nicely illustrates 455 00:21:37.560 --> 00:21:40.800 different conceptions of what amounts to justice 456 00:21:40.800 --> 00:21:42.740 and what law really is about. 457 00:21:43.100 --> 00:21:44.660 And I thought it would be interesting 458 00:21:44.660 --> 00:21:47.480 to strip away the surface 459 00:21:47.480 --> 00:21:49.840 and look to the fundamentals of the law. 460 00:21:50.040 --> 00:21:54.000 And it seems to me that there are at least two fundamental points 461 00:21:54.660 --> 00:21:58.900 which everyone would accept are key elements of what the law is about. 462 00:21:59.060 --> 00:22:01.120 One is conceptions of justice. 463 00:22:01.280 --> 00:22:05.180 And the other is the provision of remedies. 464 00:22:06.860 --> 00:22:10.580 Now, concepts of justice call necessarily 465 00:22:11.680 --> 00:22:13.660 on sometimes unarticulated, 466 00:22:13.660 --> 00:22:17.860 notions of our enduring values. 467 00:22:18.760 --> 00:22:20.720 At some very deep level, 468 00:22:20.840 --> 00:22:23.180 many laws, most laws perhaps, 469 00:22:23.320 --> 00:22:26.260 can be traced back to basic assumptions 470 00:22:26.260 --> 00:22:30.000 which we all share about the values we regard 471 00:22:30.660 --> 00:22:31.960 as important in our society. 472 00:22:32.800 --> 00:22:36.640 Those values then are reflected more or less 473 00:22:36.640 --> 00:22:39.680 in the rules, the body of rules, 474 00:22:39.840 --> 00:22:41.520 which collectively we call the law. 475 00:22:43.480 --> 00:22:46.060 There's an interesting problem which emerges though 476 00:22:46.060 --> 00:22:50.300 when laws are made which are in conflict 477 00:22:50.300 --> 00:22:53.300 with the enduring values which in principle 478 00:22:53.300 --> 00:22:54.680 they are supposed to reinforce. 479 00:22:55.660 --> 00:23:00.040 Now, in earlier times in less developed legal systems, 480 00:23:00.220 --> 00:23:04.000 that conflict was dealt with by recourse 481 00:23:04.000 --> 00:23:06.320 to what was generally called the natural law. 482 00:23:06.740 --> 00:23:10.820 The natural law is that body of morality and ethics 483 00:23:10.820 --> 00:23:14.780 which it was thought could not be overridden 484 00:23:14.780 --> 00:23:15.960 by man-made laws. 485 00:23:16.240 --> 00:23:20.540 The tension is nicely illustrated in the play Antigone 486 00:23:20.540 --> 00:23:22.800 written several thousand years ago 487 00:23:23.820 --> 00:23:27.340 in which Polyneices who's been at war with King Creon 488 00:23:27.340 --> 00:23:31.100 has been slain and King Creon decrees 489 00:23:31.820 --> 00:23:35.600 that his body must lie on the hillside unburied. 490 00:23:36.080 --> 00:23:40.600 And he goes on to say that if any person 491 00:23:40.820 --> 00:23:44.720 tries to bury the body of his slain foe Polyneices 492 00:23:44.720 --> 00:23:47.740 then that person themselves will be put to death. 493 00:23:48.480 --> 00:23:52.260 Antigone is Polyneices' sister and cannot bear to think 494 00:23:52.260 --> 00:23:55.580 of the brother whom she loved lying unburied 495 00:23:55.580 --> 00:23:58.580 on the hillside to be devoured by crows and dogs. 496 00:23:58.900 --> 00:24:02.060 And so she resolves that she will bury the body 497 00:24:02.060 --> 00:24:06.400 notwithstanding that it is an offence against Creon's decree. 498 00:24:07.480 --> 00:24:10.800 Naturally she's caught and brought to the court 499 00:24:10.820 --> 00:24:14.980 before Creon and in a crucial dialogue at the end of the play 500 00:24:14.980 --> 00:24:19.160 she explains that she does not recognise 501 00:24:19.160 --> 00:24:21.980 that such a law can validly be made 502 00:24:21.980 --> 00:24:24.680 which overrides the laws that come from the gods 503 00:24:24.680 --> 00:24:27.900 who are for all time and not just for this moment. 504 00:24:28.320 --> 00:24:30.900 It's a very important play for today I think 505 00:24:30.900 --> 00:24:34.280 because we see in many areas a conflict 506 00:24:34.280 --> 00:24:37.560 between the rules which are made validly by governments 507 00:24:37.560 --> 00:24:40.580 and the principles upon which we all thought. 508 00:24:40.820 --> 00:24:48.140 This came into very florid illustration in Germany in the 1930s 509 00:24:48.140 --> 00:24:50.820 when a constitutionally elected government 510 00:24:51.380 --> 00:24:53.480 made constitutionally valid laws 511 00:24:53.480 --> 00:24:59.480 which offend anyone who thinks in the way we think. 512 00:24:59.800 --> 00:25:03.120 The idea that Jews were stripped of their rights progressively 513 00:25:03.120 --> 00:25:06.400 denied the right to sit in public parks 514 00:25:06.400 --> 00:25:09.480 denied the right to bathe in company with Aryans 515 00:25:09.480 --> 00:25:10.800 denied the right to be a priest 516 00:25:10.820 --> 00:25:11.780 denied the right to practice as lawyers 517 00:25:11.780 --> 00:25:14.880 denied the right to hold driving licences 518 00:25:14.880 --> 00:25:17.220 denied the right to work in the civil service 519 00:25:17.220 --> 00:25:21.700 all of these things are offensive to our notions 520 00:25:21.700 --> 00:25:26.100 of the essential equality of all human beings. 521 00:25:26.660 --> 00:25:30.060 And then of course the laws that implemented the final solution 522 00:25:30.820 --> 00:25:34.900 are so obviously offensive to every notion of decency 523 00:25:34.900 --> 00:25:40.380 that we recoil to think that not only could a government pass such laws 524 00:25:40.380 --> 00:25:46.780 but that lawyers and judges and bureaucrats enforce those laws 525 00:25:47.380 --> 00:25:50.600 and when called to account those people would of course say 526 00:25:50.600 --> 00:25:52.040 I'm simply obeying the law. 527 00:25:53.120 --> 00:25:57.300 So what can be done in circumstances where the law is valid 528 00:25:57.300 --> 00:26:00.760 but it contradicts our conceptions of morality? 529 00:26:01.300 --> 00:26:04.040 In Australia today we have a similar difficulty. 530 00:26:04.720 --> 00:26:08.900 We have a law which requires that people who come to Australia 531 00:26:08.900 --> 00:26:10.140 without previous authority 532 00:26:10.380 --> 00:26:11.540 seeking asylum 533 00:26:12.380 --> 00:26:14.900 that they, although having not committed an offence 534 00:26:14.900 --> 00:26:17.360 must be detained and must remain in detention 535 00:26:18.380 --> 00:26:21.640 until they are either given a visa or removed from the country. 536 00:26:22.180 --> 00:26:25.400 And in circumstances where they cannot be removed from the country 537 00:26:25.400 --> 00:26:27.800 the High Court held last year 538 00:26:28.380 --> 00:26:31.840 that in those circumstances the person can be held for the rest of their life 539 00:26:32.380 --> 00:26:33.520 innocent of any offence. 540 00:26:33.920 --> 00:26:36.980 Now the idea that a constitutionally valid law 541 00:26:36.980 --> 00:26:40.360 permits the lifelong detention of an innocent human being 542 00:26:41.400 --> 00:26:43.960 offends basic notions of justice. 543 00:26:44.640 --> 00:26:47.380 How then do we deal with the problem? 544 00:26:47.740 --> 00:26:50.120 We don't deal with it I think by going out 545 00:26:50.120 --> 00:26:52.260 and trying to break the laws that we disagree with. 546 00:26:52.900 --> 00:26:56.420 But we can and I think in Australia now the time is ready for this debate 547 00:26:56.420 --> 00:26:59.200 we can and should consider 548 00:27:00.120 --> 00:27:02.260 entrenching in our law some boundaries 549 00:27:02.260 --> 00:27:08.820 which reflect the moral basics that we regard as fundamental to our society. 550 00:27:08.820 --> 00:27:12.820 A document of this sort is generally referred to as a Bill of Rights 551 00:27:12.820 --> 00:27:13.860 or a Charter of Rights. 552 00:27:14.340 --> 00:27:16.080 When you start talking about a Bill of Rights 553 00:27:16.080 --> 00:27:18.640 people immediately call to mind the American Bill of Rights 554 00:27:18.640 --> 00:27:22.780 which is, I say with the utmost respect to Americans 555 00:27:22.780 --> 00:27:25.180 a seriously flawed document 556 00:27:25.180 --> 00:27:28.560 if its purpose is to set constitutional bounds 557 00:27:28.560 --> 00:27:31.120 which reflect moral principles. 558 00:27:31.540 --> 00:27:34.640 The Bill of Rights in America in fact is much more a reflection 559 00:27:34.640 --> 00:27:37.780 of events which had occurred a century before in England 560 00:27:37.780 --> 00:27:41.780 than a reflection of any desire to entrench basic civil rights. 561 00:27:42.260 --> 00:27:48.340 But to talk about a Bill of Rights is really to conceal the problem 562 00:27:48.340 --> 00:27:51.220 because the real question is what should be the content of the Bill of Rights. 563 00:27:51.480 --> 00:27:56.540 But if nothing else I would like all of you who go away today 564 00:27:56.540 --> 00:27:59.200 in this conference which is about what is to be done 565 00:27:59.200 --> 00:28:02.560 to consider what might appropriately be done 566 00:28:02.560 --> 00:28:05.080 by way of introducing a Bill of Rights in Australia 567 00:28:05.080 --> 00:28:07.540 which would be calculated to protect 568 00:28:07.780 --> 00:28:12.000 our enduring values and prevent the sort of obscenities 569 00:28:12.000 --> 00:28:14.400 which are now embedded in our laws. 570 00:28:15.500 --> 00:28:19.060 And the provision of remedies provides another interesting challenge. 571 00:28:21.180 --> 00:28:24.020 The essential mechanism for the provision of remedies 572 00:28:24.020 --> 00:28:25.600 is the legal system 573 00:28:25.600 --> 00:28:28.200 and that necessarily involves the use of lawyers. 574 00:28:28.380 --> 00:28:32.420 Now Cathy said, well we're all lawyers, that's true 575 00:28:32.420 --> 00:28:34.480 but I'm the only practitioner on this panel 576 00:28:34.480 --> 00:28:37.680 and so I sort of felt the sting of that a little more sharply 577 00:28:37.780 --> 00:28:38.520 perhaps than the others. 578 00:28:39.620 --> 00:28:43.040 And I'm conscious of the observation that I heard a long time ago 579 00:28:43.040 --> 00:28:45.640 that a lawyer is like an enema. 580 00:28:47.260 --> 00:28:50.140 You don't like them until you need one. 581 00:28:50.740 --> 00:28:52.600 And then you really hate them. 582 00:28:55.720 --> 00:28:58.220 And one of the reasons you really hate lawyers 583 00:28:58.780 --> 00:29:03.160 is that the legal process is impossibly complex and expensive. 584 00:29:03.840 --> 00:29:06.080 Now this may sound like a trivial observation 585 00:29:06.080 --> 00:29:07.340 but I worked out once. 586 00:29:07.780 --> 00:29:10.760 That if I was involved in commercial litigation 587 00:29:11.480 --> 00:29:14.300 of a sort that would need me as counsel 588 00:29:14.300 --> 00:29:15.900 I couldn't afford it. 589 00:29:17.020 --> 00:29:18.800 Unless I acted pro bono I suppose. 590 00:29:20.680 --> 00:29:23.060 But it is a curious thing 591 00:29:23.780 --> 00:29:27.160 to think that a person in the legal profession 592 00:29:27.780 --> 00:29:29.900 cannot afford the legal system 593 00:29:29.900 --> 00:29:31.460 at the level at which they operate 594 00:29:32.140 --> 00:29:34.640 which means either there's something wrong with the system 595 00:29:34.640 --> 00:29:36.480 or else I'm superfluous to my own life. 596 00:29:37.780 --> 00:29:39.660 Which is a conclusion I would like to resist. 597 00:29:42.540 --> 00:29:44.080 In any legal system 598 00:29:44.780 --> 00:29:48.220 if there is a disparity in the level of representation 599 00:29:48.780 --> 00:29:50.080 between the several parties 600 00:29:50.780 --> 00:29:54.700 then it is much less likely that you will achieve a just result. 601 00:29:55.320 --> 00:30:00.100 Well-heeled litigants have access to expensive and talented lawyers. 602 00:30:00.680 --> 00:30:03.440 Less well-heeled citizens do not 603 00:30:03.440 --> 00:30:05.980 unless they want to mortgage everything they own 604 00:30:05.980 --> 00:30:07.760 in a chance of saving or paying. 605 00:30:07.780 --> 00:30:08.060 And that's what they have. 606 00:30:09.580 --> 00:30:11.740 All but the very poorest 607 00:30:12.480 --> 00:30:14.680 are ineligible for legal aid 608 00:30:14.680 --> 00:30:16.680 in most states in this country. 609 00:30:16.980 --> 00:30:18.460 The legal aid system 610 00:30:18.460 --> 00:30:20.560 is a reflection 611 00:30:20.560 --> 00:30:22.940 of the need for all people 612 00:30:22.940 --> 00:30:24.840 to have access to proper legal representation. 613 00:30:25.440 --> 00:30:28.440 But the level at which legal aid is funded in this country 614 00:30:28.440 --> 00:30:29.660 is so dismal 615 00:30:29.660 --> 00:30:31.900 that it is really only available 616 00:30:31.900 --> 00:30:34.380 to the very poorest in our society. 617 00:30:34.620 --> 00:30:36.520 And it follows that the great 618 00:30:36.520 --> 00:30:37.780 middle band 619 00:30:38.520 --> 00:30:40.180 that lie between the very poorest 620 00:30:40.180 --> 00:30:41.340 and the well-heeled 621 00:30:41.340 --> 00:30:44.420 are effectively denied the possibility 622 00:30:44.420 --> 00:30:45.960 of legal representation 623 00:30:46.520 --> 00:30:48.800 at a level which is appropriate to their difficulties. 624 00:30:49.100 --> 00:30:50.840 And that is a great failure 625 00:30:50.840 --> 00:30:53.040 of the system of law in this country. 626 00:30:53.420 --> 00:30:54.620 Having said that 627 00:30:54.620 --> 00:30:56.920 the Legal Services Commission in this state 628 00:30:56.920 --> 00:30:59.720 and the Legal Aid Commission in Victoria 629 00:30:59.720 --> 00:31:00.880 and other states 630 00:31:01.520 --> 00:31:03.980 do a spectacularly good job. 631 00:31:04.160 --> 00:31:06.080 They do an incredibly good job 632 00:31:06.520 --> 00:31:08.460 they work selflessly and skilfully 633 00:31:08.460 --> 00:31:10.160 but there are limits 634 00:31:10.720 --> 00:31:13.040 and the limits are imposed by their funding. 635 00:31:13.480 --> 00:31:15.800 And although they do as well as they can within those limits 636 00:31:15.800 --> 00:31:17.080 we should all recognise 637 00:31:17.740 --> 00:31:20.240 that justice is not really available 638 00:31:20.240 --> 00:31:22.320 unless proper representation 639 00:31:22.320 --> 00:31:25.060 is made available by better grants of legal aid. 640 00:31:25.320 --> 00:31:26.220 Thanks very much. 641 00:31:37.400 --> 00:31:39.940 I should say that I've never ever thought of you 642 00:31:39.940 --> 00:31:40.780 as an enemy, Julian. 643 00:31:43.200 --> 00:31:45.740 But rest assured I will go back to Victoria 644 00:31:45.740 --> 00:31:48.900 and I will share that with your colleagues at the bar. 645 00:31:52.520 --> 00:31:54.040 I do thank Julian 646 00:31:54.040 --> 00:31:56.160 because as we know our overarching theme 647 00:31:56.160 --> 00:31:57.220 is what is to be done 648 00:31:57.220 --> 00:31:59.600 and he's given us two very concrete illustrations. 649 00:32:00.840 --> 00:32:02.200 The issue I guess is 650 00:32:02.800 --> 00:32:05.900 where do you take those suggestions from here 651 00:32:05.900 --> 00:32:09.100 and I happen to know that the Attorney General of South Australia 652 00:32:09.100 --> 00:32:10.120 is with us in the audience 653 00:32:10.120 --> 00:32:13.280 so perhaps there would be a concrete outcome 654 00:32:13.280 --> 00:32:15.020 of the Adelaide Festival of Ideas 655 00:32:15.020 --> 00:32:17.240 if Adelaide moved towards a Charter of Rights. 656 00:32:26.200 --> 00:32:28.040 Donnie Dunstan would be so proud. 657 00:32:29.580 --> 00:32:32.560 Now, if I can now turn to our international visitor 658 00:32:33.540 --> 00:32:35.820 Imam Faisal has joined us from New York. 659 00:32:36.620 --> 00:32:39.420 He has, like our two other speakers, 660 00:32:39.600 --> 00:32:43.180 committed his life to his particular view 661 00:32:43.180 --> 00:32:44.360 and vision of the world 662 00:32:44.360 --> 00:32:46.000 and that is for a reconciliation 663 00:32:46.000 --> 00:32:49.260 between Western thought and Islamic traditions. 664 00:32:49.900 --> 00:32:52.660 He has taught, he has lectured, 665 00:32:52.740 --> 00:32:55.140 he works on more councils 666 00:32:55.140 --> 00:32:57.400 that we can even begin to list up here 667 00:32:57.400 --> 00:33:00.120 and he is an acknowledged authority 668 00:33:00.120 --> 00:33:03.620 on Islamic tradition and Islamic law 669 00:33:03.620 --> 00:33:05.880 and as I said, 670 00:33:05.900 --> 00:33:07.860 he, as you might imagine, 671 00:33:07.980 --> 00:33:09.780 is in great demand 672 00:33:09.780 --> 00:33:12.660 and his skills and his insights 673 00:33:12.660 --> 00:33:15.020 and his compassion 674 00:33:15.020 --> 00:33:17.220 are in even greater demand. 675 00:33:17.560 --> 00:33:19.060 So it is with great, great pleasure 676 00:33:19.060 --> 00:33:20.900 that I introduce Imam Faisal. 677 00:33:30.980 --> 00:33:32.800 Thank you very much, Cathy, 678 00:33:32.920 --> 00:33:34.940 for your very warm words of welcome 679 00:33:34.940 --> 00:33:37.260 and good morning, ladies and gentlemen. 680 00:33:37.280 --> 00:33:39.100 It is a pleasure to be here in Adelaide, 681 00:33:39.160 --> 00:33:40.040 the city of churches, 682 00:33:41.920 --> 00:33:43.180 especially as a Muslim. 683 00:33:47.520 --> 00:33:49.620 Perhaps I would like to begin 684 00:33:49.620 --> 00:33:53.220 by contextualizing the concept, 685 00:33:53.440 --> 00:33:56.140 the philosophical concept of Islamic law. 686 00:33:57.160 --> 00:33:58.720 When Jesus was asked 687 00:33:58.720 --> 00:34:02.080 what was the most important commandment, 688 00:34:02.200 --> 00:34:03.320 he said, 689 00:34:03.360 --> 00:34:04.700 to love the Lord thy God, 690 00:34:04.700 --> 00:34:05.960 with all of your heart, 691 00:34:06.140 --> 00:34:07.220 all of your mind, 692 00:34:07.380 --> 00:34:08.540 all of your soul 693 00:34:08.540 --> 00:34:09.680 and all of your strength. 694 00:34:11.000 --> 00:34:12.420 And the second commandment, 695 00:34:12.420 --> 00:34:14.720 which he said was equal to the first, 696 00:34:14.820 --> 00:34:16.180 was to love thy neighbor, 697 00:34:16.360 --> 00:34:18.780 which means to love your fellow human being 698 00:34:18.780 --> 00:34:20.300 as you love yourself. 699 00:34:22.660 --> 00:34:25.420 We don't often remember the succeeding words 700 00:34:25.420 --> 00:34:26.520 which he said, 701 00:34:26.600 --> 00:34:27.960 upon these two commandments 702 00:34:28.700 --> 00:34:31.620 hang all the law and all the prophets. 703 00:34:32.940 --> 00:34:34.680 And I'd like to just focus on 704 00:34:34.680 --> 00:34:36.740 my discussion today on this very point, 705 00:34:36.880 --> 00:34:38.500 that upon these two commandments 706 00:34:38.500 --> 00:34:40.380 hang all of the law. 707 00:34:42.340 --> 00:34:44.680 It means, therefore, that all of the law 708 00:34:44.680 --> 00:34:48.160 that human beings should articulate or express, 709 00:34:48.420 --> 00:34:49.820 the set of regulations 710 00:34:50.540 --> 00:34:53.480 that define the ideal society, 711 00:34:53.880 --> 00:34:54.840 the good society, 712 00:34:57.340 --> 00:34:59.380 should be one which is anchored 713 00:34:59.380 --> 00:35:00.540 on these two commandments. 714 00:35:02.600 --> 00:35:03.220 Structurally, 715 00:35:03.220 --> 00:35:06.600 that is in fact the philosophical structure 716 00:35:06.600 --> 00:35:07.620 of Islamic law. 717 00:35:07.760 --> 00:35:09.100 When you study Islamic law, 718 00:35:09.280 --> 00:35:10.820 the first classification, 719 00:35:11.220 --> 00:35:13.520 the two broad classifications of Islamic law 720 00:35:13.520 --> 00:35:15.200 are in fact that. 721 00:35:15.260 --> 00:35:16.320 The first commandment, 722 00:35:16.360 --> 00:35:17.780 which deals with the liturgy, 723 00:35:17.900 --> 00:35:19.000 the liturgical commandments 724 00:35:19.000 --> 00:35:20.880 and how we are supposed to love God, 725 00:35:21.460 --> 00:35:22.460 because as we, 726 00:35:22.520 --> 00:35:24.040 just to continue from a discussion 727 00:35:24.040 --> 00:35:26.240 we were having behind these curtains, 728 00:35:27.100 --> 00:35:29.320 on the notion of being good 729 00:35:29.320 --> 00:35:30.640 as opposed to doing good, 730 00:35:31.420 --> 00:35:32.800 and, you know, 731 00:35:32.840 --> 00:35:33.200 it's hard to say, 732 00:35:33.220 --> 00:35:34.080 it's hard to differentiate 733 00:35:34.080 --> 00:35:37.120 where being good and acting good 734 00:35:37.120 --> 00:35:37.900 or doing good 735 00:35:37.900 --> 00:35:40.040 is actually different. 736 00:35:40.440 --> 00:35:42.600 So that the law focuses on action. 737 00:35:43.920 --> 00:35:47.000 In fact, in a very major statement 738 00:35:47.000 --> 00:35:49.220 of the first caliph 739 00:35:49.780 --> 00:35:51.260 after the time of the prophet Muhammad, 740 00:35:51.640 --> 00:35:52.500 he said, 741 00:35:52.540 --> 00:35:53.940 we are not prophets, 742 00:35:54.060 --> 00:35:54.660 so we cannot, 743 00:35:54.820 --> 00:35:57.500 we cannot authoritatively 744 00:35:57.500 --> 00:35:58.900 divine your intent. 745 00:36:00.120 --> 00:36:02.280 So we shall have to judge you 746 00:36:02.280 --> 00:36:03.780 by your outward actions. 747 00:36:05.040 --> 00:36:07.640 So the first categorization of Islamic law 748 00:36:07.640 --> 00:36:09.760 deals with the rules of worship, 749 00:36:09.960 --> 00:36:12.560 prayer, fasting, etc. 750 00:36:12.920 --> 00:36:14.200 and their rules of validity 751 00:36:14.200 --> 00:36:16.900 and, you know, licenses given to travelers, etc. 752 00:36:17.440 --> 00:36:19.820 And the second broad category of Islamic law 753 00:36:19.820 --> 00:36:21.400 is what is called worldly law, 754 00:36:21.560 --> 00:36:24.620 which is then subdivided into four categories. 755 00:36:26.160 --> 00:36:27.180 Personal law, 756 00:36:27.240 --> 00:36:30.120 which deals with marriage, divorce, custody, etc. 757 00:36:30.680 --> 00:36:31.580 Criminal law, 758 00:36:31.580 --> 00:36:34.840 with murder, theft, libel. 759 00:36:36.320 --> 00:36:37.580 Law of contracts, 760 00:36:38.360 --> 00:36:40.200 or what you might call business law in the West, 761 00:36:40.420 --> 00:36:43.460 which means when is a contract valid, 762 00:36:43.600 --> 00:36:46.160 the differentiation between a contract and a gift, 763 00:36:46.180 --> 00:36:46.860 and so forth, 764 00:36:46.960 --> 00:36:47.780 and its rules. 765 00:36:48.040 --> 00:36:50.820 And what later developed in Islamic jurisprudence, 766 00:36:50.920 --> 00:36:53.280 the law of nations or international law, 767 00:36:53.460 --> 00:36:56.080 which deals with the regulations or the rules 768 00:36:56.080 --> 00:36:59.760 between Islamic societies and non-Islamic societies. 769 00:37:01.960 --> 00:37:03.400 But in Islamic law, 770 00:37:03.460 --> 00:37:04.540 just as in Western law, 771 00:37:04.760 --> 00:37:06.660 it's important to have the intent. 772 00:37:07.600 --> 00:37:09.440 Every ruling, every law, 773 00:37:09.640 --> 00:37:10.740 even God's laws, 774 00:37:11.580 --> 00:37:14.200 as expressed in our holy book, the Quran, 775 00:37:14.460 --> 00:37:16.520 of which 10% of the verses, 776 00:37:16.580 --> 00:37:18.780 roughly of a little over 6,000, 777 00:37:18.780 --> 00:37:20.420 are deemed to have legal import. 778 00:37:21.520 --> 00:37:23.120 It is important to recognize, 779 00:37:23.360 --> 00:37:25.780 as the lawyers and Islamic jurists have pointed out, 780 00:37:25.820 --> 00:37:27.240 the intent of the law. 781 00:37:27.560 --> 00:37:30.320 So it's not the law, the regulation in and of itself, 782 00:37:30.320 --> 00:37:32.760 but every law has its, 783 00:37:32.820 --> 00:37:34.820 what is called its operative intention. 784 00:37:35.800 --> 00:37:37.680 And it's in that area of intention 785 00:37:37.680 --> 00:37:42.980 that really refers to what Julian so eloquently talked about, 786 00:37:43.100 --> 00:37:46.100 the issues of values, of morality, of ethics, 787 00:37:46.280 --> 00:37:50.100 which all come, again, from God's commandments. 788 00:37:51.500 --> 00:37:54.300 So that in its kind of global architecture 789 00:37:54.300 --> 00:38:00.300 is the philosophy of God's law. 790 00:38:00.320 --> 00:38:03.620 And the notion that you pointed out of Antigone's play, 791 00:38:03.740 --> 00:38:06.000 that God's law, or the law of, 792 00:38:07.340 --> 00:38:10.380 as articulated in the American Declaration of Independence, 793 00:38:10.880 --> 00:38:12.960 the law of nature and nature's God, 794 00:38:13.240 --> 00:38:15.560 as William Jefferson pointed out, 795 00:38:16.160 --> 00:38:19.260 is very much the Islamic point of view, 796 00:38:19.360 --> 00:38:21.700 that God having created nature, 797 00:38:22.360 --> 00:38:24.360 what we call natural law, 798 00:38:24.420 --> 00:38:25.380 the laws of nature, 799 00:38:25.520 --> 00:38:26.580 be they the laws of physics, 800 00:38:26.660 --> 00:38:27.680 or the laws of chemistry, 801 00:38:27.920 --> 00:38:30.300 or the laws of human psychology, 802 00:38:30.300 --> 00:38:34.080 are in fact divinely created laws, 803 00:38:34.220 --> 00:38:35.760 because God created everything, 804 00:38:35.920 --> 00:38:38.840 created not only the laws of physics and chemistry, 805 00:38:39.020 --> 00:38:41.100 but the laws of our own psychology. 806 00:38:44.280 --> 00:38:46.040 And therefore the challenge becomes, 807 00:38:46.240 --> 00:38:49.480 how do we entrench in our law, 808 00:38:49.480 --> 00:38:50.680 to use Julian's language, 809 00:38:50.940 --> 00:38:54.480 a bill of rights that reflects human ethical principles? 810 00:38:55.900 --> 00:38:58.580 Now rights, as has been expressed, 811 00:38:58.600 --> 00:39:00.140 and certainly in modern times, 812 00:39:00.300 --> 00:39:02.240 not only with the American Bill of Rights, 813 00:39:02.420 --> 00:39:05.540 but even with the Universal Declaration of Human Rights, 814 00:39:05.660 --> 00:39:08.720 which was established when the United Nations was formed, 815 00:39:08.780 --> 00:39:11.100 in late 1947, 1948, 816 00:39:11.780 --> 00:39:15.660 really is a list of commandments. 817 00:39:18.000 --> 00:39:19.800 When you look at the Bill of Rights, 818 00:39:19.860 --> 00:39:21.160 the American Bill of Rights, 819 00:39:21.160 --> 00:39:23.900 actually the first ten amendments to the Constitution, 820 00:39:24.220 --> 00:39:25.980 and the phrasing is, 821 00:39:26.100 --> 00:39:27.120 Congress shall, 822 00:39:27.360 --> 00:39:29.540 or Congress shall not, 823 00:39:30.500 --> 00:39:33.760 it is a list of do's and don'ts. 824 00:39:34.440 --> 00:39:36.340 So in principle, 825 00:39:37.180 --> 00:39:38.100 philosophically speaking, 826 00:39:38.520 --> 00:39:40.080 it's like the Ten Commandments. 827 00:39:40.460 --> 00:39:41.940 Thou shalt do this, 828 00:39:42.000 --> 00:39:43.340 thou shalt not do that. 829 00:39:44.900 --> 00:39:46.940 So you cannot have a Bill of Rights, 830 00:39:47.080 --> 00:39:52.220 without a list of do's and don'ts. 831 00:39:56.560 --> 00:39:58.060 And these are the commandments. 832 00:39:58.680 --> 00:40:00.280 And therefore the Ten Commandments, 833 00:40:00.300 --> 00:40:04.100 which are the basic theme, 834 00:40:04.260 --> 00:40:05.600 or we might say, 835 00:40:05.620 --> 00:40:06.680 or part of the platform, 836 00:40:06.940 --> 00:40:09.820 of the Abrahamic faith traditions of Judaism, 837 00:40:10.020 --> 00:40:11.060 Christianity and Islam, 838 00:40:11.720 --> 00:40:13.880 define in a sense, 839 00:40:13.940 --> 00:40:17.940 both via the issue of commandments, 840 00:40:18.300 --> 00:40:20.920 the correlative rights. 841 00:40:21.220 --> 00:40:21.860 In other words, 842 00:40:21.860 --> 00:40:23.780 every right is the opposite, 843 00:40:23.880 --> 00:40:25.640 the flip side of a coin, 844 00:40:25.720 --> 00:40:28.260 on which the other side is a duty or a commandment. 845 00:40:28.380 --> 00:40:29.460 A duty to do, 846 00:40:29.460 --> 00:40:30.940 or a duty not to do. 847 00:40:31.180 --> 00:40:32.760 Therefore rights and duties 848 00:40:33.460 --> 00:40:35.700 are the flip side of the same, 849 00:40:35.700 --> 00:40:39.140 the same organic event. 850 00:40:46.400 --> 00:40:49.160 Given that we are now in a global, 851 00:40:49.340 --> 00:40:50.700 globalized society, 852 00:40:52.240 --> 00:40:55.180 the challenge that I believe we have ahead of us, 853 00:40:55.320 --> 00:40:57.720 is how to articulate a Bill of Rights, 854 00:40:59.460 --> 00:41:01.460 or perhaps to look and to revisit 855 00:41:01.460 --> 00:41:03.780 the Universal Declaration of Human Rights, 856 00:41:03.980 --> 00:41:06.360 and to knit them, 857 00:41:06.380 --> 00:41:07.400 or to weave them, 858 00:41:07.500 --> 00:41:11.260 into a system which relates 859 00:41:11.260 --> 00:41:13.520 to the various belief systems, 860 00:41:14.460 --> 00:41:15.800 religious or secular. 861 00:41:16.820 --> 00:41:18.340 I personally believe, 862 00:41:18.460 --> 00:41:18.840 for instance, 863 00:41:18.960 --> 00:41:20.340 that secular humanism, 864 00:41:20.360 --> 00:41:23.280 or the ethics of secular humanism, 865 00:41:23.340 --> 00:41:25.380 are really the second commandment, 866 00:41:25.380 --> 00:41:27.400 delinked from the first commandment. 867 00:41:28.320 --> 00:41:29.440 Love thy neighbor, 868 00:41:29.440 --> 00:41:31.260 love your fellow human being, 869 00:41:31.400 --> 00:41:33.400 and how do we express this love 870 00:41:33.400 --> 00:41:34.800 in our rules and regulations, 871 00:41:35.780 --> 00:41:37.720 regardless of the liturgy, 872 00:41:37.760 --> 00:41:40.020 of the language in which we choose to worship 873 00:41:40.020 --> 00:41:41.380 the creator, 874 00:41:41.620 --> 00:41:44.800 or how we even choose to think of the creator. 875 00:41:49.280 --> 00:41:51.320 And I'd like to conclude by just saying 876 00:41:51.320 --> 00:41:52.820 that the notion of liberating law 877 00:41:52.820 --> 00:41:54.640 is a very funny expression to me, 878 00:41:56.460 --> 00:41:57.460 partly because, 879 00:41:59.440 --> 00:42:02.200 the very language construct of liberating law 880 00:42:02.200 --> 00:42:04.860 implies a personification of law, 881 00:42:04.960 --> 00:42:06.840 as if law was a person or an individual. 882 00:42:09.740 --> 00:42:12.080 But, having made that caveat 883 00:42:12.080 --> 00:42:14.940 in terms of the semantic meaning of liberating law, 884 00:42:15.140 --> 00:42:18.520 it seems clear that what we need to liberate law from 885 00:42:18.520 --> 00:42:19.960 is being unaffordable, 886 00:42:20.160 --> 00:42:21.440 as Julian pointed out. 887 00:42:23.220 --> 00:42:24.540 But more importantly, 888 00:42:24.900 --> 00:42:26.080 in a more serious note, 889 00:42:26.220 --> 00:42:28.480 we need to liberate the law from being detached 890 00:42:28.480 --> 00:42:29.580 from ethics, 891 00:42:30.520 --> 00:42:31.940 which really must mean 892 00:42:32.480 --> 00:42:33.680 we need to liberate law 893 00:42:34.480 --> 00:42:35.780 from its detachment, 894 00:42:35.780 --> 00:42:38.440 or the extent to which it has become detached, 895 00:42:38.740 --> 00:42:40.840 from the love of God 896 00:42:41.480 --> 00:42:43.180 and the love of fellow human being. 897 00:42:43.680 --> 00:42:46.060 For on these two principles, as Jesus said, 898 00:42:46.240 --> 00:42:47.620 hang all of the law. 899 00:42:48.300 --> 00:42:49.380 Thank you very much. 900 00:43:03.440 --> 00:43:04.940 Thank you very much, Imam. 901 00:43:05.100 --> 00:43:07.720 As we see what we tend to think of as law, 902 00:43:07.740 --> 00:43:08.880 law is always local, 903 00:43:09.440 --> 00:43:11.300 but there's another quality of law 904 00:43:11.300 --> 00:43:12.360 which is always universal, 905 00:43:12.460 --> 00:43:14.880 and it's those dimensions, I think, 906 00:43:14.880 --> 00:43:16.780 that at least two of our speakers have talked about, 907 00:43:16.940 --> 00:43:19.720 and Nari emphasized the importance of knowledge 908 00:43:21.260 --> 00:43:22.840 of the correct situation 909 00:43:22.840 --> 00:43:25.000 and indeed our understanding of law. 910 00:43:25.100 --> 00:43:26.140 So all three speakers, 911 00:43:26.300 --> 00:43:27.380 I thank them on your behalf 912 00:43:27.380 --> 00:43:28.680 for having contributed to that. 913 00:43:29.820 --> 00:43:32.840 We'd had a little discussion behind the black curtains there 914 00:43:32.840 --> 00:43:35.360 where there's a very lovely little room and a piano 915 00:43:35.360 --> 00:43:38.340 and, you know, they do all sorts of interesting things out there, 916 00:43:39.780 --> 00:43:42.760 that one of the benefits 917 00:43:42.760 --> 00:43:45.200 of having, you know, such talented people 918 00:43:45.200 --> 00:43:46.460 all gathered in the one place 919 00:43:46.460 --> 00:43:47.980 is that they really ought to have an opportunity 920 00:43:47.980 --> 00:43:49.180 to bounce off each other. 921 00:43:50.600 --> 00:43:53.560 And so before opening up to general questions, 922 00:43:53.720 --> 00:43:55.560 which we would very much like to do, 923 00:43:55.700 --> 00:43:56.760 I'm just wondering 924 00:43:56.760 --> 00:43:58.960 if we could quite specifically ask, 925 00:43:59.080 --> 00:44:00.340 in the first place, the Imam, 926 00:44:01.240 --> 00:44:03.000 a very direct question, 927 00:44:03.120 --> 00:44:04.640 if he doesn't mind a direct question, 928 00:44:04.800 --> 00:44:10.280 and that is how he thinks law can cope 929 00:44:10.280 --> 00:44:12.160 with the pressures that both Nari 930 00:44:12.160 --> 00:44:13.180 and, of course, the world 931 00:44:13.180 --> 00:44:17.420 are putting on anti-terrorist protection measures 932 00:44:18.040 --> 00:44:19.600 and what we ought to do 933 00:44:19.600 --> 00:44:22.020 in order to be able to ensure 934 00:44:22.020 --> 00:44:24.600 that individual rights are protected 935 00:44:25.320 --> 00:44:26.680 in a climate of fear. 936 00:44:27.320 --> 00:44:28.080 Thank you. 937 00:44:28.140 --> 00:44:29.320 That's a very important question, 938 00:44:29.420 --> 00:44:30.160 a loaded one 939 00:44:30.160 --> 00:44:34.320 and a very multifaceted one. 940 00:44:35.880 --> 00:44:38.040 The importance lies in recognizing 941 00:44:38.040 --> 00:44:40.160 that Islam, like Judaism, 942 00:44:40.440 --> 00:44:41.420 or shares with Judaism, 943 00:44:41.540 --> 00:44:43.120 the fact that it is a religion of law. 944 00:44:44.020 --> 00:44:46.840 I just came from a conference in Amman, Jordan, 945 00:44:47.000 --> 00:44:50.000 where there were more than 170 leading Islamic scholars 946 00:44:50.000 --> 00:44:55.180 and jurists who made a number of what you call fatwas, 947 00:44:55.180 --> 00:44:56.740 an expression that I think is, you know, 948 00:44:56.760 --> 00:44:58.420 commonly understood in the West, 949 00:44:58.560 --> 00:45:03.220 which really means a religious edict or a decision. 950 00:45:04.520 --> 00:45:06.940 And it was that no person... 951 00:45:08.320 --> 00:45:11.980 It emphasized the qualifications required 952 00:45:11.980 --> 00:45:13.240 to issue a fatwa, 953 00:45:14.260 --> 00:45:18.920 that all of the various groups, 954 00:45:19.120 --> 00:45:20.440 what you might call in the West, 955 00:45:20.460 --> 00:45:22.500 sects of Islam, Sunni and Shia, 956 00:45:22.580 --> 00:45:24.100 or different religious, 957 00:45:25.320 --> 00:45:26.380 juridical interpretations, 958 00:45:26.760 --> 00:45:27.620 or schools of law, 959 00:45:27.720 --> 00:45:28.740 are all Muslims. 960 00:45:29.020 --> 00:45:33.740 And therefore you cannot call someone an infidel. 961 00:45:34.760 --> 00:45:36.820 And the use of the infidel 962 00:45:36.820 --> 00:45:39.760 to justify the killing of such people 963 00:45:39.760 --> 00:45:42.200 are invalid and against the very principles 964 00:45:42.760 --> 00:45:44.060 of Islamic law and ethics. 965 00:45:44.560 --> 00:45:46.460 And there are many, many papers presented 966 00:45:46.460 --> 00:45:50.500 on the importance of what Islamic law really furthers, 967 00:45:50.520 --> 00:45:54.780 which is the protection of the individual freedom of conscience. 968 00:45:56.060 --> 00:45:59.220 So what is needed is to amplify this message. 969 00:45:59.280 --> 00:46:02.900 Unfortunately, we didn't have any Western media covering it. 970 00:46:02.980 --> 00:46:05.080 But more than the media covering it, 971 00:46:05.120 --> 00:46:06.440 it requires a coalition, 972 00:46:07.120 --> 00:46:08.240 in my mind, 973 00:46:08.240 --> 00:46:10.640 of people both within the Muslim faith tradition 974 00:46:10.640 --> 00:46:12.500 and the Western faith tradition 975 00:46:12.500 --> 00:46:14.980 to expand these ideas 976 00:46:14.980 --> 00:46:17.660 and to push them out of the marketplace of ideas 977 00:46:17.660 --> 00:46:20.500 so that Muslims and non-Muslims both understand 978 00:46:20.500 --> 00:46:23.280 these thoughts and ideas 979 00:46:23.280 --> 00:46:27.740 and how they can inform young Muslims 980 00:46:28.280 --> 00:46:30.780 as to what the right and the wrong is. 981 00:46:32.480 --> 00:46:34.780 Part of the complexity is because 982 00:46:34.780 --> 00:46:38.760 issues of social justice are a very big concern. 983 00:46:39.200 --> 00:46:40.880 In much of the Muslim world, 984 00:46:40.940 --> 00:46:43.340 there's insufficient issues of justice. 985 00:46:43.640 --> 00:46:44.840 Justice and remedies, 986 00:46:44.920 --> 00:46:47.200 the two major things that Julian pointed out. 987 00:46:47.640 --> 00:46:49.280 There is insufficient justice 988 00:46:50.100 --> 00:46:52.140 and there's not much of us on remedies. 989 00:46:52.140 --> 00:46:55.100 And this has always fueled a lot of the militancy 990 00:46:55.100 --> 00:46:55.900 that we have seen, 991 00:46:55.980 --> 00:46:57.540 or certainly a certain segment of it, 992 00:46:57.640 --> 00:46:59.480 in some parts of the Muslim world. 993 00:47:00.220 --> 00:47:03.060 So the need to address those things 994 00:47:03.060 --> 00:47:04.800 and to be very public 995 00:47:04.800 --> 00:47:06.820 about how we're addressing these remedies 996 00:47:06.820 --> 00:47:08.560 or thoughts about them 997 00:47:09.140 --> 00:47:10.920 and having these things aired 998 00:47:10.920 --> 00:47:13.500 will go a long way. 999 00:47:13.660 --> 00:47:15.540 I'm not saying it alone will solve 1000 00:47:15.540 --> 00:47:17.100 the complete set of problems. 1001 00:47:17.180 --> 00:47:18.360 There are other issues as well. 1002 00:47:19.120 --> 00:47:20.560 But certainly go a long way 1003 00:47:20.560 --> 00:47:23.380 towards a sense of engagement 1004 00:47:25.340 --> 00:47:29.580 with the issues involved. 1005 00:47:31.720 --> 00:47:34.160 I often make an analogy 1006 00:47:34.160 --> 00:47:35.860 between the Muslim world and the West. 1007 00:47:36.220 --> 00:47:39.180 It's like a marital couple 1008 00:47:39.180 --> 00:47:40.680 that comes to me for counseling. 1009 00:47:41.260 --> 00:47:43.180 You know, where I have to tell, 1010 00:47:43.300 --> 00:47:45.520 you know, the man wants me to be on his side. 1011 00:47:45.580 --> 00:47:46.780 You know, my woman is crazy. 1012 00:47:46.980 --> 00:47:48.000 My wife is crazy. 1013 00:47:48.220 --> 00:47:49.500 Certain days of the month, 1014 00:47:49.500 --> 00:47:50.460 she's absolutely impossible. 1015 00:47:51.080 --> 00:47:52.880 And then the wife will say, 1016 00:47:53.000 --> 00:47:54.040 my husband is a brute. 1017 00:47:54.440 --> 00:47:56.240 You know, he's, etc., etc. 1018 00:47:56.740 --> 00:47:58.560 And part of my function, 1019 00:47:58.640 --> 00:47:59.320 or our function, 1020 00:47:59.360 --> 00:48:00.100 is to explain, 1021 00:48:00.220 --> 00:48:01.700 Mr. Smith, 1022 00:48:01.860 --> 00:48:03.540 when you say such and such, 1023 00:48:03.600 --> 00:48:06.300 your wife actually hears something else 1024 00:48:06.300 --> 00:48:07.120 and vice versa. 1025 00:48:07.620 --> 00:48:09.480 That's part of what we need to do. 1026 00:48:09.680 --> 00:48:12.940 But if there's no sense of an engagement 1027 00:48:13.500 --> 00:48:14.820 in a process of, 1028 00:48:14.900 --> 00:48:17.840 okay, let's try to communicate better 1029 00:48:18.500 --> 00:48:19.280 and let's engage 1030 00:48:19.500 --> 00:48:20.460 in the process, 1031 00:48:20.660 --> 00:48:23.060 the frustration level still remains high. 1032 00:48:23.480 --> 00:48:25.200 And when there's a sense of engagement, 1033 00:48:25.600 --> 00:48:27.780 then I think people are more willing to be patient 1034 00:48:27.780 --> 00:48:29.820 and feel that there is hope 1035 00:48:29.820 --> 00:48:30.680 at the end of the tunnel. 1036 00:48:31.960 --> 00:48:32.640 Thank you. 1037 00:48:32.840 --> 00:48:35.100 Nari, did you want to comment specifically 1038 00:48:35.100 --> 00:48:38.980 on how we improve education about law 1039 00:48:38.980 --> 00:48:41.740 and how we militate against this populist stream 1040 00:48:43.300 --> 00:48:44.360 in the light of that? 1041 00:48:46.100 --> 00:48:47.620 Actually, I wanted to respond 1042 00:48:48.300 --> 00:48:49.480 to the question 1043 00:48:49.480 --> 00:48:50.600 of my fellow speakers 1044 00:48:50.600 --> 00:48:55.240 on the enduring principles beneath the law. 1045 00:48:55.400 --> 00:48:57.180 It's achieving agreement 1046 00:48:57.180 --> 00:49:01.700 between people of wildly different attitudes 1047 00:49:01.700 --> 00:49:03.320 and faiths. 1048 00:49:04.700 --> 00:49:06.940 Knitting the religious with the secular, 1049 00:49:07.020 --> 00:49:08.840 I think, is a tremendous problem. 1050 00:49:11.400 --> 00:49:13.220 And as an atheist, 1051 00:49:13.360 --> 00:49:16.140 I find a deference to a God of love 1052 00:49:16.140 --> 00:49:18.900 always still a troubling idea, 1053 00:49:18.900 --> 00:49:20.580 that there is an authority figure out there 1054 00:49:21.140 --> 00:49:22.620 handing things down. 1055 00:49:22.820 --> 00:49:25.040 I also find the natural law position 1056 00:49:25.040 --> 00:49:26.460 referred to by Julian 1057 00:49:26.460 --> 00:49:28.040 a very problematic one too, 1058 00:49:28.120 --> 00:49:31.720 that good laws will know 1059 00:49:31.720 --> 00:49:33.460 because they reside in nature 1060 00:49:33.460 --> 00:49:35.800 and we can find them through 1061 00:49:35.800 --> 00:49:37.340 some sort of process, 1062 00:49:37.380 --> 00:49:38.620 perhaps, of rational discovery. 1063 00:49:39.800 --> 00:49:41.760 Finding a common set of values, 1064 00:49:41.920 --> 00:49:44.160 I think, is the very problem. 1065 00:49:46.400 --> 00:49:48.060 Well, it's interesting, isn't it, 1066 00:49:48.060 --> 00:49:52.280 because the three major religions 1067 00:49:52.280 --> 00:49:53.900 that we are talking about 1068 00:49:53.900 --> 00:49:56.000 have common foundations. 1069 00:49:56.460 --> 00:49:59.720 And the common foundations are, effectively, 1070 00:49:59.940 --> 00:50:02.380 an articulation of their enduring values. 1071 00:50:02.620 --> 00:50:04.160 I should have thought the task 1072 00:50:04.160 --> 00:50:05.740 wouldn't have been as difficult as that. 1073 00:50:05.960 --> 00:50:07.560 Where you get into difficulty 1074 00:50:07.560 --> 00:50:09.320 is in the elaboration 1075 00:50:10.320 --> 00:50:12.140 from basic values 1076 00:50:12.140 --> 00:50:15.060 into doctrine and ideologies. 1077 00:50:15.680 --> 00:50:17.520 And that's where you get problems 1078 00:50:17.520 --> 00:50:19.820 not only between the major religions 1079 00:50:19.820 --> 00:50:21.020 but within the major religions. 1080 00:50:21.320 --> 00:50:22.880 Yesterday I was talking about 1081 00:50:22.880 --> 00:50:25.640 the 17th century clash between 1082 00:50:26.500 --> 00:50:28.540 Protestants and Roman Catholics in England, 1083 00:50:28.660 --> 00:50:31.100 which was every bit as intense and vicious 1084 00:50:31.100 --> 00:50:33.140 as the current standoff 1085 00:50:33.140 --> 00:50:34.320 between Islam and Christianity. 1086 00:50:34.940 --> 00:50:38.180 And equally as foolish, I think. 1087 00:50:38.700 --> 00:50:41.180 And probably equally soluble. 1088 00:50:42.300 --> 00:50:43.100 That's important. 1089 00:50:43.460 --> 00:50:44.260 Equally soluble. 1090 00:50:44.360 --> 00:50:44.600 Yeah. 1091 00:50:44.760 --> 00:50:46.280 And why shouldn't it be? 1092 00:50:46.280 --> 00:50:48.940 I mean, the curiosity at the moment is, 1093 00:50:48.960 --> 00:50:50.200 as I see it, is that 1094 00:50:50.880 --> 00:50:53.320 Islam seems to have more in common with Christianity 1095 00:50:53.900 --> 00:50:55.280 than Judaism and Christianity. 1096 00:50:55.880 --> 00:50:58.040 Now, we seem to be getting along pretty well 1097 00:50:58.040 --> 00:50:59.140 with Judaism. 1098 00:50:59.360 --> 00:51:01.080 We had problems in the past, 1099 00:51:01.080 --> 00:51:02.520 but I think it's mostly sorted out. 1100 00:51:03.220 --> 00:51:04.760 Why can't we do the same with Islam? 1101 00:51:04.980 --> 00:51:06.920 Islam recognises Jesus as a prophet. 1102 00:51:07.320 --> 00:51:08.360 Judaism doesn't. 1103 00:51:08.360 --> 00:51:09.420 That's a pretty good start 1104 00:51:09.420 --> 00:51:11.440 if you try to find common ground. 1105 00:51:13.240 --> 00:51:13.720 Agreed. 1106 00:51:16.280 --> 00:51:17.120 Well, on that note, 1107 00:51:17.240 --> 00:51:21.820 can we invite people to come to the microphones 1108 00:51:21.820 --> 00:51:24.280 upstairs in the gallery or downstairs here? 1109 00:51:24.880 --> 00:51:28.480 We would be delighted to try and answer some obviously 1110 00:51:29.220 --> 00:51:30.840 impossibly difficult questions. 1111 00:51:33.040 --> 00:51:33.840 Yes, sir. 1112 00:51:34.460 --> 00:51:35.060 Downstairs. 1113 00:51:36.440 --> 00:51:37.840 My name's Peter Bradley. 1114 00:51:38.760 --> 00:51:41.440 Firstly, I'd like to congratulate the IMAM 1115 00:51:41.440 --> 00:51:43.280 on the content of his address. 1116 00:51:43.720 --> 00:51:45.280 And I would like to criticise, 1117 00:51:46.280 --> 00:51:49.300 the content of the other two speakers, Australian. 1118 00:51:50.160 --> 00:51:55.200 It is a crime that we, as an Australian community, 1119 00:51:55.540 --> 00:51:58.040 have massacred hundreds of thousands 1120 00:51:58.040 --> 00:51:59.400 of our indigenous people 1121 00:52:00.280 --> 00:52:03.700 and today maintain them in such a situation 1122 00:52:03.700 --> 00:52:05.900 that their life expectancy is decreasing. 1123 00:52:06.720 --> 00:52:11.120 It is a crime that the Australian infrastructure 1124 00:52:11.120 --> 00:52:16.160 has been created by refugees coming to this country 1125 00:52:16.160 --> 00:52:19.100 from other countries on boats when we allowed them in 1126 00:52:19.100 --> 00:52:23.480 and paid them virtually slave wages. 1127 00:52:23.960 --> 00:52:27.620 It is a crime that we, as an Australian community, 1128 00:52:28.760 --> 00:52:34.560 live in a world where half the people are starving 1129 00:52:35.160 --> 00:52:37.460 and the other half are becoming obese. 1130 00:52:38.200 --> 00:52:40.700 When is the Australian government, 1131 00:52:41.060 --> 00:52:43.880 our supreme law-making body, 1132 00:52:43.880 --> 00:52:47.300 going to equalise some of these crimes? 1133 00:52:49.720 --> 00:52:53.600 I'm not sure that I said anything to contradict any of that. 1134 00:52:57.000 --> 00:52:59.820 And I agree with your general observation 1135 00:52:59.820 --> 00:53:06.060 about the lamentable facts that you've articulated. 1136 00:53:06.800 --> 00:53:08.740 I can't speak for the Australian government 1137 00:53:08.740 --> 00:53:09.800 nor would they want me to. 1138 00:53:17.860 --> 00:53:22.800 But I do have some faith in the idea 1139 00:53:22.800 --> 00:53:26.800 that if people are better educated about the processes 1140 00:53:26.800 --> 00:53:30.240 which are called into question 1141 00:53:30.880 --> 00:53:35.160 and the mechanisms by which your questions can be answered, 1142 00:53:35.880 --> 00:53:38.020 if people are better educated about those things, 1143 00:53:38.080 --> 00:53:39.880 we might have a more informed public debate. 1144 00:53:40.160 --> 00:53:43.040 And that informed public debate might just encourage 1145 00:53:43.040 --> 00:53:45.780 the Parliament to do what it can do. 1146 00:53:46.140 --> 00:53:48.520 In the absence of an informed public debate, 1147 00:53:48.800 --> 00:53:52.280 the Parliament is able to keep ignoring these things. 1148 00:53:52.940 --> 00:53:56.360 So, I mean, I actively support what Ngaire said 1149 00:53:57.040 --> 00:53:58.840 and the extension of what she was saying, 1150 00:53:58.980 --> 00:54:01.280 that we need better education 1151 00:54:02.600 --> 00:54:05.280 about the way the legal system works, 1152 00:54:05.360 --> 00:54:06.440 about the way law works 1153 00:54:06.440 --> 00:54:08.220 and perhaps about the way government works 1154 00:54:09.040 --> 00:54:11.460 to make sure that both law and government work better. 1155 00:54:13.060 --> 00:54:13.700 Thank you. 1156 00:54:15.840 --> 00:54:17.620 Could you go to the gallery first? 1157 00:54:17.960 --> 00:54:18.220 Yes. 1158 00:54:19.000 --> 00:54:21.660 Given that really the law works 1159 00:54:21.660 --> 00:54:24.100 as a way of regulating relationships, 1160 00:54:24.500 --> 00:54:26.340 whether you're talking about criminal law, 1161 00:54:26.420 --> 00:54:29.020 which is between the individual and the community, 1162 00:54:31.100 --> 00:54:32.980 family law, which is within families, 1163 00:54:33.020 --> 00:54:35.040 industrial law, employer-employee, et cetera, 1164 00:54:36.760 --> 00:54:38.380 one of the most important relationships 1165 00:54:38.380 --> 00:54:40.280 is the community and the individual. 1166 00:54:40.860 --> 00:54:43.020 The community being the individual, 1167 00:54:43.020 --> 00:54:45.040 basically expressed in the three arms of government. 1168 00:54:45.500 --> 00:54:48.640 Now, we've had people talking about the Bill of Rights 1169 00:54:49.840 --> 00:54:51.400 or a Bill of Rights. 1170 00:54:51.740 --> 00:54:54.500 Now, could we possibly turn that the other way around 1171 00:54:54.500 --> 00:54:57.760 and look at the fundamental element of politics 1172 00:54:57.760 --> 00:55:01.500 is the relationship between the government 1173 00:55:02.020 --> 00:55:04.360 or community and the individual? 1174 00:55:05.180 --> 00:55:07.100 And could we look at, instead of having 1175 00:55:08.720 --> 00:55:10.820 these rather fiddly Bills of Rights 1176 00:55:10.820 --> 00:55:12.140 and talking about freedom of speech 1177 00:55:12.140 --> 00:55:12.940 and all this sort of stuff, 1178 00:55:13.020 --> 00:55:15.580 and turn it around the other way 1179 00:55:15.580 --> 00:55:19.460 and have some sort of formalised expression 1180 00:55:19.460 --> 00:55:22.300 of the responsibility of government 1181 00:55:22.300 --> 00:55:25.160 or the community towards the individual? 1182 00:55:25.300 --> 00:55:27.800 This gets to that fundamental political problem 1183 00:55:27.800 --> 00:55:31.180 of reconciling the good of the individual 1184 00:55:31.180 --> 00:55:32.460 and the good of the community. 1185 00:55:33.660 --> 00:55:36.140 And as a starting point, possibly looking at 1186 00:55:36.140 --> 00:55:40.680 the government's responsibility to provide equality of access 1187 00:55:40.680 --> 00:55:42.820 to health, education, 1188 00:55:42.980 --> 00:55:43.000 and the right to social justice. 1189 00:55:57.180 --> 00:56:01.500 Such things can become pretty dodgy 1190 00:56:01.500 --> 00:56:01.580 after you sort of cut them off from nature. 1191 00:56:01.580 --> 00:56:01.960 You can sort of cut them off from nature 1192 00:56:01.960 --> 00:56:02.340 You can sort of cut them off from nature after you sort of cut them off from nature. 1193 00:56:02.980 --> 00:56:03.380 You can sort of cut them off from nature after you sort of cut them off from nature. 1194 00:56:03.380 --> 00:56:05.260 You can sort of cut them off from nature after you sort of cut them off from nature. 1195 00:56:05.260 --> 00:56:07.880 You can sort of cut them off from nature after you sort of cut them off from nature. 1196 00:56:08.280 --> 00:56:12.020 You can sort of cut them off from nature after you sort of cut them off from nature. 1197 00:56:12.020 --> 00:56:18.320 And when government fails to achieve these ends, then the people have the right to change government. 1198 00:56:18.660 --> 00:56:28.480 And the reading of these two documents presents the image of government as almost an employee of the people, 1199 00:56:28.540 --> 00:56:29.840 and the people are the employers. 1200 00:56:30.180 --> 00:56:35.340 But because government has the power, therefore the need to have separations of powers, 1201 00:56:35.340 --> 00:56:39.320 which is the legislative, the executive, and the executive, 1202 00:56:40.460 --> 00:56:47.860 and also in the Constitution you have these very rigid rules on the representatives and senators 1203 00:56:47.860 --> 00:56:56.360 that their pay will have to be approved, that they will not receive any decorations from foreign governments. 1204 00:56:58.800 --> 00:57:04.220 There's a tension always between, I think, government as representing the interests of the people 1205 00:57:04.220 --> 00:57:05.320 and how to control. 1206 00:57:05.340 --> 00:57:09.260 How to create the constructs of what we call a democratic society, 1207 00:57:09.540 --> 00:57:20.100 meaning a government that truly not only expresses the sentiments and desires and aspirations of the collective community 1208 00:57:20.100 --> 00:57:27.640 in one snapshot moment of time, but on an ongoing basis as societies themselves evolve. 1209 00:57:29.000 --> 00:57:34.960 And it's this tension, I think, which really relates to the area of particularly constitutional law, 1210 00:57:35.340 --> 00:57:42.140 and how the various constructs of the relationship between individuals within a given society 1211 00:57:42.140 --> 00:57:44.460 and the requisite checks and balances. 1212 00:57:44.920 --> 00:57:49.400 So I just wanted to throw that out as a context from the American experience. 1213 00:57:50.440 --> 00:57:52.800 Can I take another line on that? 1214 00:57:52.880 --> 00:57:59.400 I agree with the idea that a Charter of Rights or a Bill of Rights might have embedded in it 1215 00:57:59.400 --> 00:58:02.040 a corresponding list of responsibilities. 1216 00:58:02.640 --> 00:58:05.260 I think, I mean, every lawyer will tell you, 1217 00:58:05.340 --> 00:58:09.900 that a right which doesn't have associated with it a corresponding duty is not really a right at all. 1218 00:58:09.940 --> 00:58:13.880 It's simply a pious aspiration or position statement. 1219 00:58:15.280 --> 00:58:21.580 And I think it is rational to think that we ought to regard ourselves as part of a community 1220 00:58:22.340 --> 00:58:25.840 with mutual duties as well as mutual rights, 1221 00:58:26.600 --> 00:58:33.060 and not just as individuals with our own individual interests that are to be pursued within the legal framework. 1222 00:58:36.400 --> 00:58:44.260 The related problem, of course, is in reconciling the incompatible rights of one person and another person. 1223 00:58:44.640 --> 00:58:49.080 I can't remember who the lecturer was who said some years ago 1224 00:58:49.080 --> 00:58:52.540 that your right to swing your arm stops just short of my nose. 1225 00:58:53.980 --> 00:58:57.900 And that captures the point pretty neatly. 1226 00:58:58.260 --> 00:59:03.900 When you're talking about the rights of the order that a Bill of Rights should properly deal with, 1227 00:59:05.340 --> 00:59:10.360 recognising the interplay and limits between those rights in action is quite difficult. 1228 00:59:10.800 --> 00:59:14.200 But the problem will be solved in part, at least, 1229 00:59:14.200 --> 00:59:18.180 by looking to a Charter of Responsibilities coupled with the Charter of Rights. 1230 00:59:18.220 --> 00:59:20.940 I think it's a really interesting, worthwhile approach. 1231 00:59:25.740 --> 00:59:28.040 Thank you. My name is Stephen Polaris. 1232 00:59:28.080 --> 00:59:32.400 I have the great honour of being the Director of Public Prosecutions of this fascinating State. 1233 00:59:39.240 --> 00:59:39.920 Thank you. 1234 00:59:40.280 --> 00:59:46.300 Thank you. I have one question to Julian and a remark, if I may, to Naree. 1235 00:59:47.080 --> 00:59:50.580 Julian, you speak about the impact of cost 1236 00:59:51.820 --> 00:59:56.220 on those who get involved in the criminal prosecution or the criminal justice system. 1237 00:59:56.600 --> 01:00:03.340 And you speak about the necessity to look at the issuing of appropriate legal aid in those sorts of circumstances. 1238 01:00:03.900 --> 01:00:10.080 In this festival of ideas, can I run this idea past you as an alternative approach, perhaps? 1239 01:00:10.320 --> 01:00:13.340 And that is that one thing that's always fascinated and indeed shocked me 1240 01:00:14.280 --> 01:00:19.520 as to the impact that contact with the criminal justice system has on individuals. 1241 01:00:20.480 --> 01:00:26.880 Those who are put through the process of criminal trials, if convicted, are devastated. 1242 01:00:27.080 --> 01:00:31.320 And I mean that in every sense of the word, psychologically, emotionally. 1243 01:00:31.820 --> 01:00:33.800 Their freedom is taken away from them. 1244 01:00:33.800 --> 01:01:03.780 You can't protect them from being deported from the country or from being deported from the country. 1245 01:01:03.780 --> 01:01:06.580 of that choice needs to foot the bill. 1246 01:01:07.420 --> 01:01:09.860 If, on the other hand, the state wins, 1247 01:01:10.260 --> 01:01:12.860 why should the community foot the bill? 1248 01:01:13.000 --> 01:01:16.240 The proposal that I would float is this, 1249 01:01:17.040 --> 01:01:20.480 that in every prosecution raised by the state, 1250 01:01:20.600 --> 01:01:22.220 which is unsuccessful, 1251 01:01:23.960 --> 01:01:26.660 the state should pay the full costs 1252 01:01:26.660 --> 01:01:28.780 of the person that it has dragged to court. 1253 01:01:29.660 --> 01:01:32.620 In every prosecution which the state raises, 1254 01:01:32.620 --> 01:01:33.740 which is successful, 1255 01:01:34.700 --> 01:01:36.580 the community should not pay for that, 1256 01:01:37.180 --> 01:01:38.900 but that the person who was convicted 1257 01:01:38.900 --> 01:01:42.220 ought to pay for the cost of that prosecution. 1258 01:01:44.140 --> 01:01:47.720 To Nuri, you speak about the importance 1259 01:01:48.520 --> 01:01:51.820 of engaging the community in terms of our laws. 1260 01:01:53.240 --> 01:01:54.560 Do you have any comment to make 1261 01:01:54.560 --> 01:01:58.460 about the efficacy of a law reform commission 1262 01:01:58.460 --> 01:02:00.900 to meet that need? 1263 01:02:01.060 --> 01:02:01.780 Thank you. 1264 01:02:02.620 --> 01:02:02.840 Thank you. 1265 01:02:03.780 --> 01:02:06.280 Steve, as to the first part of your question, I agree. 1266 01:02:06.540 --> 01:02:07.880 As to the second, I don't agree. 1267 01:02:08.460 --> 01:02:11.540 And the reason I don't think that people who are convicted 1268 01:02:11.540 --> 01:02:13.440 should pay the costs of their trial 1269 01:02:13.440 --> 01:02:15.840 is that the cost of prosecuting 1270 01:02:15.840 --> 01:02:18.140 is part of the general cost of the service 1271 01:02:18.140 --> 01:02:20.820 we call law and order, which governments provide. 1272 01:02:21.120 --> 01:02:22.980 We are all paying it through our taxes 1273 01:02:22.980 --> 01:02:26.680 because we all benefit from the criminal justice system 1274 01:02:26.680 --> 01:02:27.980 operating properly. 1275 01:02:28.800 --> 01:02:31.040 So I don't think there's any inconsistency 1276 01:02:31.960 --> 01:02:32.600 in the way that we do it. 1277 01:02:32.620 --> 01:02:35.360 And awarding costs in favour of an acquitted defendant 1278 01:02:35.360 --> 01:02:38.820 and not awarding costs against a convicted defendant, 1279 01:02:39.800 --> 01:02:41.960 it's all part of running the state. 1280 01:02:42.540 --> 01:02:46.200 But I think that the cost associated with litigation, 1281 01:02:46.520 --> 01:02:47.760 and it's not just criminal litigation, 1282 01:02:47.980 --> 01:02:49.880 it's also civil litigation, 1283 01:02:50.100 --> 01:02:52.620 the cost associated with it is a problem 1284 01:02:52.620 --> 01:02:54.720 which needs to be dealt with in a number of different ways. 1285 01:02:54.940 --> 01:02:58.120 One of them, of course, is better funding for legal aid 1286 01:02:58.120 --> 01:03:00.620 so that people are not, in effect, 1287 01:03:00.760 --> 01:03:02.600 denied the possibility of legalization, 1288 01:03:02.620 --> 01:03:02.900 legal representation, 1289 01:03:03.560 --> 01:03:06.040 when they have a matter that takes them to court. 1290 01:03:07.680 --> 01:03:11.040 I mean, realistically, if a person has a dispute 1291 01:03:11.040 --> 01:03:13.700 over less than $10,000 or $20,000, 1292 01:03:13.900 --> 01:03:16.560 they're probably better off abandoning it, 1293 01:03:16.640 --> 01:03:19.160 even if they are 100% in the right. 1294 01:03:19.280 --> 01:03:20.120 Now, that's terrible 1295 01:03:20.120 --> 01:03:23.000 because it's a lot of money for most people. 1296 01:03:24.380 --> 01:03:25.620 But another thing, 1297 01:03:25.820 --> 01:03:28.520 everyone in the legal profession will agree with this, 1298 01:03:28.600 --> 01:03:32.260 is that trials take an inordinately long time these days. 1299 01:03:32.620 --> 01:03:35.340 You know, trials really do go on much longer, 1300 01:03:35.400 --> 01:03:37.440 even longer than when I started in practice. 1301 01:03:37.680 --> 01:03:39.240 I would say the length of trials 1302 01:03:39.240 --> 01:03:41.760 have probably doubled or tripled in that time, 1303 01:03:41.900 --> 01:03:43.480 and I hope I haven't caused it. 1304 01:03:45.800 --> 01:03:48.060 The cost associated with that 1305 01:03:49.280 --> 01:03:51.500 is a large part of the problem, 1306 01:03:51.560 --> 01:03:54.540 and better control of the length of trials, 1307 01:03:54.620 --> 01:03:56.060 I think, is an important point 1308 01:03:56.060 --> 01:03:58.320 at which the problem can be dealt with. 1309 01:03:58.700 --> 01:04:02.600 And that may mean that people don't get roles in court, 1310 01:04:02.620 --> 01:04:05.320 but they might have to settle for a role in the court, 1311 01:04:05.320 --> 01:04:06.540 or a role in the court, 1312 01:04:06.540 --> 01:04:07.380 Volkswagen justice or something. 1313 01:04:08.820 --> 01:04:11.800 Because getting perfect justice at every step in litigation 1314 01:04:11.800 --> 01:04:14.100 makes it longer and more complex 1315 01:04:14.100 --> 01:04:15.280 and therefore more expensive. 1316 01:04:15.560 --> 01:04:18.200 And I really do think we need to look at the length of trials. 1317 01:04:20.600 --> 01:04:22.360 I might just make one comment 1318 01:04:22.360 --> 01:04:24.200 because I'm meant to be a participating chair, 1319 01:04:24.400 --> 01:04:26.600 and that is, I guess, on your behalf. 1320 01:04:26.660 --> 01:04:27.860 Sometimes when lawyers, 1321 01:04:28.020 --> 01:04:29.960 and I've been outed as a non-practicing lawyer, 1322 01:04:30.460 --> 01:04:32.400 when lawyers gather in groups, 1323 01:04:32.620 --> 01:04:34.620 they become logocentric. 1324 01:04:34.680 --> 01:04:38.300 They think of the legal system as separate and distinct. 1325 01:04:39.700 --> 01:04:43.140 The reality is that every dollar that goes into the legal system 1326 01:04:43.140 --> 01:04:45.580 is not being put into structural remedies 1327 01:04:46.140 --> 01:04:48.980 that cause people to be in court in the first place. 1328 01:04:49.140 --> 01:04:51.500 So if we're looking at the allocation of scarce resources, 1329 01:04:52.380 --> 01:04:56.600 then these questions about cost at the top end, as it were, 1330 01:04:56.660 --> 01:04:57.920 and it really is the top end, 1331 01:04:58.040 --> 01:05:01.760 really compete with far more fundamental 1332 01:05:02.760 --> 01:05:03.620 allocations of money. 1333 01:05:03.720 --> 01:05:05.760 Now, we might say, you know, 1334 01:05:05.780 --> 01:05:07.060 there should be more money generally, 1335 01:05:07.780 --> 01:05:10.420 and that brings us back to Nari's problem about populism, 1336 01:05:10.460 --> 01:05:13.780 which government is going to then increase the level of taxation. 1337 01:05:15.080 --> 01:05:17.060 Julian Disney earlier in another session 1338 01:05:17.060 --> 01:05:18.360 talked about Australia, 1339 01:05:18.400 --> 01:05:20.500 when you look at all of our taxes, 1340 01:05:20.520 --> 01:05:21.300 not income tax, 1341 01:05:21.360 --> 01:05:23.100 specifically being undertaxed, 1342 01:05:23.100 --> 01:05:24.820 being one of the lowest taxed communities. 1343 01:05:25.200 --> 01:05:27.700 But that would have to be a fundamental change. 1344 01:05:27.860 --> 01:05:30.680 If we're going to meet all of these pressures 1345 01:05:31.320 --> 01:05:32.460 on the public purse, 1346 01:05:32.620 --> 01:05:35.040 that would be an inevitable outcome, 1347 01:05:35.240 --> 01:05:38.580 and we'd have to try and explain to people 1348 01:05:38.580 --> 01:05:39.640 and to politicians 1349 01:05:39.640 --> 01:05:42.780 how they ought to sell that particular deal. 1350 01:05:43.660 --> 01:05:44.220 Nari. 1351 01:05:46.180 --> 01:05:47.980 In reply to the question 1352 01:05:47.980 --> 01:05:51.140 about a law reform commission for South Australia, 1353 01:05:51.760 --> 01:05:53.420 I think that's an excellent idea. 1354 01:05:53.880 --> 01:05:56.560 I think we miss one in this state. 1355 01:05:56.640 --> 01:05:58.560 I gather that there's one in every other state. 1356 01:05:58.980 --> 01:06:01.600 I perceive lawmaking occurring in this state 1357 01:06:01.600 --> 01:06:02.380 in a very, 1358 01:06:02.620 --> 01:06:03.340 very ad hoc way. 1359 01:06:05.820 --> 01:06:06.940 Penalties are increased 1360 01:06:06.940 --> 01:06:09.420 if someone's concerned about a particular law 1361 01:06:09.420 --> 01:06:11.940 and there's concern about a particular law 1362 01:06:11.940 --> 01:06:13.660 if the government says we should be concerned 1363 01:06:13.660 --> 01:06:14.800 about that particular law. 1364 01:06:15.080 --> 01:06:18.800 So there's no systematic measured approach 1365 01:06:18.800 --> 01:06:22.040 to law reform across the jurisdiction 1366 01:06:22.040 --> 01:06:25.560 looking at what are the areas of real concern 1367 01:06:25.560 --> 01:06:27.780 and properly evaluating the laws 1368 01:06:27.780 --> 01:06:28.980 that we do have at the moment. 1369 01:06:29.300 --> 01:06:31.260 So I would fully support that. 1370 01:06:33.640 --> 01:06:34.100 Thank you. 1371 01:06:34.540 --> 01:06:34.560 APPLAUSE 1372 01:06:37.620 --> 01:06:40.680 We in Victoria had the first law reform commission 1373 01:06:40.680 --> 01:06:43.020 which was then abolished by a subsequent government 1374 01:06:43.020 --> 01:06:46.680 and then reinstated because it was necessary. 1375 01:06:47.040 --> 01:06:50.660 And so I would firmly support the idea 1376 01:06:50.660 --> 01:06:52.740 that when you don't have one, things go awry. 1377 01:06:52.860 --> 01:06:54.760 When you do, it doesn't mean things are perfect, 1378 01:06:54.820 --> 01:06:55.640 but you have a chance. 1379 01:06:56.940 --> 01:06:57.400 Sir. 1380 01:06:57.680 --> 01:07:01.100 Yes, before I ask my question on the Muslim suicide bombers, 1381 01:07:01.280 --> 01:07:02.520 what happens when the law, 1382 01:07:02.620 --> 01:07:03.540 the law itself is a liar, 1383 01:07:03.720 --> 01:07:06.360 when the law defines cannabis and heroin 1384 01:07:06.360 --> 01:07:07.740 as dangerous drugs of addiction 1385 01:07:07.740 --> 01:07:09.180 and they are not dangerous drugs, 1386 01:07:09.260 --> 01:07:11.260 that's a scientific question, a medical question, 1387 01:07:11.340 --> 01:07:12.760 they are not dangerous drugs of addiction, 1388 01:07:13.000 --> 01:07:15.540 why doesn't the legal profession direct the jury 1389 01:07:15.540 --> 01:07:17.740 to find the accused not guilty on the grounds 1390 01:07:17.740 --> 01:07:18.940 of the law itself as a liar? 1391 01:07:26.760 --> 01:07:29.840 A law can validly be made which says that water 1392 01:07:29.840 --> 01:07:31.040 is a dangerous drug of addiction 1393 01:07:31.040 --> 01:07:32.540 and make it a criminal offence. 1394 01:07:32.620 --> 01:07:33.220 It's not a criminal offence to drink water. 1395 01:07:34.160 --> 01:07:36.000 The law is what the law says it is. 1396 01:07:37.880 --> 01:07:43.400 Beyond that, we've got a three hour session, I think. 1397 01:07:44.400 --> 01:07:46.160 Well, the notion of victimless crime, 1398 01:07:46.280 --> 01:07:49.980 to take up that point, would be the liberal position 1399 01:07:49.980 --> 01:07:52.200 that if you're not hurting anyone else 1400 01:07:52.200 --> 01:07:53.400 and you're only hurting yourself, 1401 01:07:53.660 --> 01:07:56.740 then maybe there's a valid philosophical basis for it. 1402 01:07:56.840 --> 01:08:00.920 But yes, as Julian says, that takes us a lot further 1403 01:08:02.000 --> 01:08:02.600 than we're able to do. 1404 01:08:02.600 --> 01:08:03.160 We're able to go. 1405 01:08:03.500 --> 01:08:04.740 Did you have a second part? 1406 01:08:04.780 --> 01:08:06.100 Or in fact, I'd quite like to, 1407 01:08:06.160 --> 01:08:08.240 would you mind hanging on to the second part? 1408 01:08:08.360 --> 01:08:13.780 Because I would actually like just this lady down the end 1409 01:08:13.780 --> 01:08:15.780 who's been waiting for some time to have a shot, 1410 01:08:15.880 --> 01:08:18.340 partly because I'm conscious that all of the questions 1411 01:08:18.340 --> 01:08:19.620 so far have come from men. 1412 01:08:20.780 --> 01:08:21.980 Would you like to? 1413 01:08:27.440 --> 01:08:30.040 Thank you, I'm also short, not just a woman. 1414 01:08:32.600 --> 01:08:35.840 I would like to pick up a bit from what Julian mentioned 1415 01:08:35.840 --> 01:08:38.580 when he was speaking about what happened 1416 01:08:38.580 --> 01:08:41.980 in the legal system in Germany, and rephrase it this way, 1417 01:08:43.560 --> 01:08:46.180 and then ask for some feedback. 1418 01:08:46.480 --> 01:08:49.120 If the legal system, or legal industry, 1419 01:08:49.260 --> 01:08:50.980 might be another way to look at it 1420 01:08:50.980 --> 01:08:52.420 since we've been talking about money, 1421 01:08:53.160 --> 01:08:57.980 is actually an arm that is an extension of the will 1422 01:08:57.980 --> 01:08:59.440 or intention of the society. 1423 01:09:00.620 --> 01:09:02.580 So regardless of, you know, what you're saying, 1424 01:09:02.600 --> 01:09:08.220 how you perceive the laws or the rights and wrongs of the law 1425 01:09:08.220 --> 01:09:09.740 or the intention of the law, 1426 01:09:10.560 --> 01:09:14.960 if you look at the result of the law and the result of the society, 1427 01:09:16.780 --> 01:09:19.240 which is more like looking at the actions 1428 01:09:19.240 --> 01:09:23.360 rather than the intentions or the arguments or the discussion, 1429 01:09:25.520 --> 01:09:29.740 I'd like you to frame something around that, 1430 01:09:29.740 --> 01:09:35.220 that we have a legal system maybe supporting certain intentions 1431 01:09:35.220 --> 01:09:39.700 and using various mechanisms for doing that. 1432 01:09:40.000 --> 01:09:43.220 And just to flavor it a little bit, 1433 01:09:43.260 --> 01:09:45.400 I'll go to the Bill of Rights in the U.S. 1434 01:09:45.420 --> 01:09:50.720 and say that an alternate history of the United States 1435 01:09:50.720 --> 01:09:55.800 is to look at the ebb and flow of the arguments around the Bill of Rights 1436 01:09:55.800 --> 01:09:59.720 and how they have, in some cases, 1437 01:09:59.740 --> 01:10:03.300 been interpreted one way, in other cases, other ways, 1438 01:10:03.520 --> 01:10:08.560 and how this movement actually seems to not support 1439 01:10:08.560 --> 01:10:12.480 some rigid view of what the Bill of Rights stand for, 1440 01:10:12.660 --> 01:10:18.640 but rather society's movement and intention towards certain other goals. 1441 01:10:18.840 --> 01:10:22.940 And justice, then, is the big question mark in that. 1442 01:10:23.960 --> 01:10:24.080 Wow. 1443 01:10:24.580 --> 01:10:26.620 It's a really, really big question. 1444 01:10:27.100 --> 01:10:28.540 Just a couple of comments. 1445 01:10:29.740 --> 01:10:33.840 I'd like to write a new comment about the shift in interpretation 1446 01:10:33.840 --> 01:10:36.680 of various articles of the Bill of Rights. 1447 01:10:37.960 --> 01:10:41.920 The foundation for the shift is an opposition 1448 01:10:41.920 --> 01:10:45.620 between two broad approaches to constitutional interpretation. 1449 01:10:46.140 --> 01:10:47.560 There are the strict literalists, 1450 01:10:47.600 --> 01:10:49.880 those who say that the words have a meaning, 1451 01:10:50.060 --> 01:10:51.840 they had that meaning when they were written, 1452 01:10:51.880 --> 01:10:53.620 and they retain that meaning for all time. 1453 01:10:53.880 --> 01:10:57.120 There are others whose view is best captured 1454 01:10:57.120 --> 01:10:59.640 by something Oliver Wendell Holmes said, 1455 01:10:59.740 --> 01:11:01.020 in the 1920s. 1456 01:11:01.160 --> 01:11:03.340 He said that a word is not a crystal, 1457 01:11:03.920 --> 01:11:05.300 transparent and unchanging, 1458 01:11:05.460 --> 01:11:07.160 it is the skin of a living thought, 1459 01:11:07.880 --> 01:11:10.540 which changes its meaning according to the time at which 1460 01:11:10.540 --> 01:11:13.080 and the circumstances in which it's used. 1461 01:11:13.620 --> 01:11:16.200 Now, that approach appeals to me very much. 1462 01:11:16.320 --> 01:11:19.200 The idea that words are the skin of a living thought 1463 01:11:19.200 --> 01:11:24.340 enables you to keep constitutional mandates current. 1464 01:11:25.000 --> 01:11:27.880 Now, you can say of the American Bill of Rights, for example, 1465 01:11:27.880 --> 01:11:29.480 the article, which is at 3. 1466 01:11:29.740 --> 01:11:31.780 4, that allows you to bear arms, 1467 01:11:33.220 --> 01:11:36.140 that, in my opinion, I think there's a solid argument for this, 1468 01:11:36.200 --> 01:11:38.280 was originally intended to allow the states 1469 01:11:38.280 --> 01:11:39.600 to maintain standing armies, 1470 01:11:39.740 --> 01:11:41.620 because they weren't sure how this federal experiment 1471 01:11:41.620 --> 01:11:42.520 was going to play out. 1472 01:11:43.000 --> 01:11:46.580 Now it allows sort of 10-year-olds to run around with AK-47s. 1473 01:11:46.660 --> 01:11:48.220 It's a great pity it's gone that way. 1474 01:11:48.600 --> 01:11:51.140 But at the foundation, you will always have, 1475 01:11:51.200 --> 01:11:53.320 with the Bill of Rights or with any constitutional document, 1476 01:11:54.340 --> 01:11:57.180 a tension between the strict literalists, 1477 01:11:57.300 --> 01:11:59.000 the black-letter lawyers on the one hand, 1478 01:11:59.000 --> 01:11:59.540 and the states. 1479 01:11:59.540 --> 01:11:59.600 So, I think that's a great argument for this. 1480 01:11:59.600 --> 01:11:59.620 I think that's a great argument for this. 1481 01:11:59.740 --> 01:12:03.440 The more creative approach to interpretation, 1482 01:12:04.540 --> 01:12:08.160 which is characterized by governments as judicial activism 1483 01:12:08.160 --> 01:12:10.340 when the result is one which they don't like. 1484 01:12:11.980 --> 01:12:13.920 The only other point I wanted to make here, 1485 01:12:13.920 --> 01:12:16.480 and the very large and interesting area you've opened up, 1486 01:12:16.580 --> 01:12:19.980 is it's true that the attitudes that are embedded 1487 01:12:19.980 --> 01:12:22.580 in a legal framework reflect the will of the people. 1488 01:12:23.000 --> 01:12:27.380 The reason you need constitutionally entrenched rights 1489 01:12:27.380 --> 01:12:28.840 and perhaps obligations, 1490 01:12:28.840 --> 01:12:32.820 to set limits to what the parliament can validly do, 1491 01:12:33.040 --> 01:12:33.660 is this. 1492 01:12:34.180 --> 01:12:37.140 Parliaments can be caught up in the frenzy of the moment, 1493 01:12:37.220 --> 01:12:38.620 just as people are. 1494 01:12:39.080 --> 01:12:41.100 And in the frenzy of the moment, 1495 01:12:41.140 --> 01:12:44.060 you can get some extremely bad laws made, 1496 01:12:44.280 --> 01:12:46.500 which debase the values, 1497 01:12:46.620 --> 01:12:50.340 which wiser deliberation have installed 1498 01:12:50.340 --> 01:12:52.060 and recognized for a long time. 1499 01:12:52.400 --> 01:12:54.880 I think the basic values of our society 1500 01:12:54.880 --> 01:12:56.860 should not be so lightly overthrown 1501 01:12:56.860 --> 01:12:58.820 as by popular opinion, 1502 01:12:58.820 --> 01:13:00.480 popular response to terrible events. 1503 01:13:00.860 --> 01:13:02.780 September 11 is an obvious example. 1504 01:13:03.280 --> 01:13:07.800 The misguided act of a handful of extremist fanatics 1505 01:13:07.800 --> 01:13:12.140 has led to the victimization of an entire religion. 1506 01:13:12.400 --> 01:13:15.580 And that strikes me as a crazy response, 1507 01:13:15.900 --> 01:13:18.280 a really crazy unwarranted response. 1508 01:13:18.800 --> 01:13:21.400 And when this shows itself in legislation 1509 01:13:21.400 --> 01:13:22.980 like the USA Patriot Act, 1510 01:13:23.240 --> 01:13:24.940 you know you've got a real problem 1511 01:13:24.940 --> 01:13:26.640 and you know that the Bill of Rights 1512 01:13:26.640 --> 01:13:28.660 is not doing the job for which it could have, 1513 01:13:28.820 --> 01:13:28.920 which is the fact that the bill 1514 01:13:28.920 --> 01:13:29.500 has been designed. 1515 01:13:30.540 --> 01:13:31.180 . 1516 01:13:41.280 --> 01:13:43.980 Terry Teo, I have a question for Imam Faizal. 1517 01:13:44.960 --> 01:13:49.000 International law doesn't enjoy the same level of enforceability 1518 01:13:49.000 --> 01:13:51.260 as the laws of a nation-state. 1519 01:13:51.880 --> 01:13:56.060 And we increasingly live in a borderless world, 1520 01:13:56.060 --> 01:14:02.660 where Australia's prosperity relies on causing harm beyond our shores, 1521 01:14:03.500 --> 01:14:05.920 and therefore as citizens we are complicit. 1522 01:14:06.960 --> 01:14:11.620 So my question is, how do you think international law can be strengthened 1523 01:14:11.620 --> 01:14:19.060 to meet the needs of a future more globalized world 1524 01:14:19.060 --> 01:14:25.100 to ensure that basic rights of humans are satisfied 1525 01:14:25.100 --> 01:14:27.860 and not just those in the first world? 1526 01:14:34.120 --> 01:14:36.740 Thank you. A very important question indeed. 1527 01:14:38.040 --> 01:14:42.120 I think this is what the aspiration of the United Nations was 1528 01:14:42.120 --> 01:14:44.180 when it was first established, 1529 01:14:44.400 --> 01:14:46.420 which was to end the... 1530 01:14:46.420 --> 01:14:51.160 I see certain parallels between what happened with the establishment of the United Nations 1531 01:14:51.160 --> 01:14:54.520 at the end of the Second World War 1532 01:14:54.520 --> 01:14:55.080 and... 1533 01:14:55.100 --> 01:14:59.300 in the terms of the reconstitution of the League of Nations, 1534 01:14:59.500 --> 01:15:01.340 how it morphed into the United Nations. 1535 01:15:01.840 --> 01:15:05.600 And I see certain parallels between that history 1536 01:15:05.600 --> 01:15:12.020 and the narrative of the establishment of the American Declaration of Independence 1537 01:15:12.020 --> 01:15:13.380 and Bill of Rights and Constitution. 1538 01:15:14.440 --> 01:15:17.940 What made the United States government, the federal government, 1539 01:15:18.000 --> 01:15:20.220 really powerful, because it was very weak, 1540 01:15:21.020 --> 01:15:23.220 was when it began to tax the people. 1541 01:15:24.020 --> 01:15:25.080 When you had a federal government, 1542 01:15:25.100 --> 01:15:25.560 you had a federal tax. 1543 01:15:26.140 --> 01:15:31.920 That was the beginning of taxation with representation, 1544 01:15:32.460 --> 01:15:36.140 which gave the federal government teeth 1545 01:15:36.140 --> 01:15:41.820 and embarked on a journey of growth and empowerment over the state governments. 1546 01:15:42.480 --> 01:15:50.080 Today, the United Nations is a mechanism where you have certain powers 1547 01:15:50.080 --> 01:15:54.100 which have dominant influence over most other countries. 1548 01:15:55.100 --> 01:15:59.160 And the attempt today to have an expansion 1549 01:16:00.100 --> 01:16:04.860 and representation of other nations in the Security Council 1550 01:16:04.860 --> 01:16:10.940 is an attempt, I think, for certain nations to equalize the power of the United States 1551 01:16:10.940 --> 01:16:15.340 over the United Nations. 1552 01:16:15.600 --> 01:16:19.320 The structure of the United Nations, however, is flawed 1553 01:16:19.320 --> 01:16:24.920 in that it is the equivalent of a subsidiary of nations 1554 01:16:24.920 --> 01:16:26.820 rather than a government over nations. 1555 01:16:27.400 --> 01:16:31.920 So the question is one of power, and how do you exercise the power? 1556 01:16:32.160 --> 01:16:37.640 Because at the end of the day, those who have the capability to, you know, 1557 01:16:37.640 --> 01:16:40.880 by virtue of their wealth, their military power, 1558 01:16:40.980 --> 01:16:45.660 can flaunt the very laws that presumably are supposed to be honored. 1559 01:16:46.040 --> 01:16:53.960 The fact the United States has refused to abide by the International Court of Justice in The Hague 1560 01:16:53.960 --> 01:17:00.540 is a primary example that shows that might very often, you know, makes right, if you will. 1561 01:17:00.840 --> 01:17:07.240 So the need to create a structure whereby even countries that have the might 1562 01:17:07.240 --> 01:17:11.440 do not exercise their might in violation of human rights 1563 01:17:11.440 --> 01:17:13.300 is the challenge that we have today. 1564 01:17:13.720 --> 01:17:16.080 I don't presume to know the answer to that question, 1565 01:17:16.180 --> 01:17:20.740 but I'm pointing out to some areas of what I call structural flaws in the system 1566 01:17:20.740 --> 01:17:23.780 which need to be remedied. 1567 01:17:23.960 --> 01:17:30.400 Perhaps Julian or Ngaru may have some additional thoughts on how to address this issue. 1568 01:17:32.140 --> 01:17:34.500 It's a real, it's a major problem. 1569 01:17:34.920 --> 01:17:38.060 Part of the problem, I think, comes from having only one big kid on the block. 1570 01:17:39.440 --> 01:17:42.840 And part of the problem, and this is not something I've thought through, 1571 01:17:42.920 --> 01:17:46.960 so I may regret saying it, but I think there may be a difficulty 1572 01:17:46.960 --> 01:17:50.880 that every nation has an equal vote. 1573 01:17:51.520 --> 01:17:53.940 The idea that Nauru, with a population of about 10 million, 1574 01:17:53.960 --> 01:17:56.060 has an equal vote with China, 1575 01:17:56.180 --> 01:18:00.780 it strikes me at first blush as being surprising. 1576 01:18:02.680 --> 01:18:08.240 And the fact that there is a significant number of very small, impoverished countries, 1577 01:18:08.340 --> 01:18:09.540 each with one vote, 1578 01:18:11.300 --> 01:18:15.760 leads to the real possibility of votes being bought by the big players. 1579 01:18:15.980 --> 01:18:17.360 And that does happen, obviously. 1580 01:18:17.880 --> 01:18:20.860 We saw that recently at the International Whaling Commission. 1581 01:18:22.100 --> 01:18:23.940 So I think there are a couple of structural difficulties. 1582 01:18:23.940 --> 01:18:29.420 But, you know, ultimately, all government, whether national or international, 1583 01:18:29.800 --> 01:18:36.480 is about moderating the power you have in the service of greater civilisation. 1584 01:18:37.720 --> 01:18:42.760 It's something which is built on pious self-denial. 1585 01:18:42.940 --> 01:18:45.980 And America is not always good at pious self-denial. 1586 01:18:46.680 --> 01:18:47.320 Absolutely. 1587 01:18:47.740 --> 01:18:49.280 It's very good at half of that. 1588 01:18:50.080 --> 01:18:53.140 Perhaps if we could take the three remaining questions 1589 01:18:53.140 --> 01:18:55.940 in a row and allow people to comment on those, 1590 01:18:56.000 --> 01:19:01.080 because I'm conscious that we have a very tight timetable at this Festival of Ideas. 1591 01:19:01.100 --> 01:19:02.880 You're only allowed a certain amount for certain ideas. 1592 01:19:03.360 --> 01:19:05.720 If you wouldn't mind just asking your questions. 1593 01:19:07.060 --> 01:19:11.800 My question relates to the affordability of the legal system 1594 01:19:11.800 --> 01:19:13.520 and how that reflects our values. 1595 01:19:13.900 --> 01:19:16.120 Because I work in health system reform, 1596 01:19:16.380 --> 01:19:20.400 and I know that we do not have a Rolls-Royce health system. 1597 01:19:20.560 --> 01:19:22.240 And we've chosen to sacrifice 1598 01:19:24.680 --> 01:19:27.280 personal standards of Rolls-Royce ability 1599 01:19:27.280 --> 01:19:29.360 in order for universal accessibility. 1600 01:19:30.020 --> 01:19:33.600 So we've actually made a completely different choice in health care. 1601 01:19:33.740 --> 01:19:36.940 And I think that's why the health system and the legal system 1602 01:19:36.940 --> 01:19:39.600 sit so poorly with each other, 1603 01:19:39.640 --> 01:19:42.980 whereas someone that's trying to see so many people 1604 01:19:42.980 --> 01:19:45.040 and get something done for each of them 1605 01:19:45.040 --> 01:19:46.980 conflicts with the legal system that says, 1606 01:19:47.080 --> 01:19:48.980 why didn't you do that perfectly? 1607 01:19:49.420 --> 01:19:52.220 So I'm wondering what your reflections would be 1608 01:19:52.240 --> 01:19:56.100 on the different values that underpin those two different systems 1609 01:19:56.100 --> 01:19:57.880 and how to bring them together more. 1610 01:19:58.780 --> 01:20:01.260 It's probably much too big a question to go into now, 1611 01:20:01.380 --> 01:20:03.760 but I'd enjoy chatting with you about it afterwards. 1612 01:20:04.040 --> 01:20:07.280 But I think probably the key explanation to it 1613 01:20:07.280 --> 01:20:10.480 is that health problems are unavoidable. 1614 01:20:10.620 --> 01:20:12.640 If you've got a health problem, you've got a health problem. 1615 01:20:12.740 --> 01:20:13.760 You can't settle it. 1616 01:20:13.840 --> 01:20:15.680 You can't negotiate your way out of it. 1617 01:20:15.840 --> 01:20:20.120 Legal problems, by contrast, are more or less a matter of choice, 1618 01:20:20.220 --> 01:20:21.680 at least in theory. 1619 01:20:22.240 --> 01:20:24.000 You can abandon your rights. 1620 01:20:24.260 --> 01:20:26.480 You can decide you won't sue, 1621 01:20:26.620 --> 01:20:27.920 no matter how much you're in the right. 1622 01:20:29.040 --> 01:20:33.280 And that's why legal aid is available almost exclusively 1623 01:20:33.900 --> 01:20:35.600 for defence of criminal matters, 1624 01:20:35.680 --> 01:20:37.580 which you can't avoid except by pleading guilty, 1625 01:20:38.380 --> 01:20:41.940 and almost not at all available for civil matters, 1626 01:20:42.020 --> 01:20:43.200 which are regarded as optional. 1627 01:20:43.840 --> 01:20:45.860 I think that's the reason for the problem, 1628 01:20:45.900 --> 01:20:47.780 and it builds from that starting point. 1629 01:20:48.840 --> 01:20:51.520 My question follows on neatly from the last one. 1630 01:20:52.820 --> 01:20:55.000 South Australia long ago showed the way 1631 01:20:55.000 --> 01:20:57.440 on how to reduce costs in the legal system, 1632 01:20:57.540 --> 01:20:59.100 at least in one area, 1633 01:20:59.260 --> 01:21:02.640 by allowing land brokers to do the work that lawyers did before, 1634 01:21:02.800 --> 01:21:04.480 and they did it much cheaper. 1635 01:21:06.060 --> 01:21:08.240 It seems that lawyers have got a bit of a stranglehold 1636 01:21:08.760 --> 01:21:10.200 on the whole system, 1637 01:21:10.240 --> 01:21:12.560 particularly seeing that most of the people who make the laws 1638 01:21:13.240 --> 01:21:15.680 in Parliament have a legal background as well. 1639 01:21:16.360 --> 01:21:19.440 What's your view of letting a lot more paralegals in, 1640 01:21:19.540 --> 01:21:22.220 operating at much lower cost for them, 1641 01:21:22.220 --> 01:21:25.200 things like, for example, writing affidavits and so on? 1642 01:21:25.400 --> 01:21:27.740 If I want to do that, it's against the law. 1643 01:21:30.600 --> 01:21:32.140 It's a question of where you draw the line. 1644 01:21:32.200 --> 01:21:34.560 I mean, paralegals, of course, are used in law firms. 1645 01:21:36.360 --> 01:21:38.240 Paralegals do a good deal of the work 1646 01:21:38.240 --> 01:21:40.600 that is ultimately signed off by lawyers. 1647 01:21:41.740 --> 01:21:43.460 Whether that involves a cost saving or not, 1648 01:21:43.520 --> 01:21:45.100 I guess, depends on the firm you go to. 1649 01:21:47.320 --> 01:21:48.640 I don't mean that cynically. 1650 01:21:48.780 --> 01:21:50.780 I mean, you know, there are different charge-out rates 1651 01:21:50.780 --> 01:21:51.680 for various firms. 1652 01:21:53.900 --> 01:21:57.060 To say that lawyers have a stranglehold on practising law 1653 01:21:57.060 --> 01:21:59.260 is really just another way of saying 1654 01:21:59.260 --> 01:22:02.140 you want people who are appropriately competent 1655 01:22:02.840 --> 01:22:03.680 doing the job. 1656 01:22:03.820 --> 01:22:05.300 I mean, you know, if you need brain surgery, 1657 01:22:05.900 --> 01:22:08.420 will you allow the first-year resident to do it 1658 01:22:08.420 --> 01:22:10.600 or a nurse or someone who happens to be walking down the corridor? 1659 01:22:10.740 --> 01:22:11.200 Probably not. 1660 01:22:11.540 --> 01:22:13.840 You probably want the neurosurgeon to do it. 1661 01:22:15.600 --> 01:22:17.780 Whether that should be embedded in legislation 1662 01:22:17.780 --> 01:22:20.320 is a different question, but I happen to think it ought to be, 1663 01:22:20.340 --> 01:22:22.080 because otherwise we will be... 1664 01:22:22.660 --> 01:22:26.380 overwhelmed by the misconduct of charlatans. 1665 01:22:26.580 --> 01:22:29.940 Now, anyone who has had occasion to come across people 1666 01:22:29.940 --> 01:22:31.560 who can be collectively called bush lawyers 1667 01:22:31.560 --> 01:22:34.920 will understand the dangers and plausibilities 1668 01:22:34.920 --> 01:22:36.940 of people who think they know what the law is about 1669 01:22:36.940 --> 01:22:38.500 but actually have got no idea at all. 1670 01:22:39.360 --> 01:22:43.000 So I would be a little reluctant to see genuine legal work 1671 01:22:43.000 --> 01:22:47.900 being left open to market forces and unqualified people. 1672 01:22:48.340 --> 01:22:51.000 That said, there are some lawyers I wouldn't use myself either. 1673 01:22:51.480 --> 01:22:52.040 LAUGHTER 1674 01:22:52.220 --> 01:22:52.920 Sir? 1675 01:22:53.740 --> 01:22:55.880 Yes, Muslim suicide bombers, 1676 01:22:56.020 --> 01:22:58.600 they've studied the Koran for years, they know it backwards. 1677 01:22:58.940 --> 01:23:02.400 Why doesn't Allah send the Archangel Gabriel 1678 01:23:02.400 --> 01:23:04.620 to tell them that they've misinterpreted 1679 01:23:04.620 --> 01:23:06.720 or taken out of context the Koran, 1680 01:23:06.760 --> 01:23:09.760 just like the Christians said that about the burning alive 1681 01:23:09.760 --> 01:23:11.660 of which is Exodus 22, 18, 1682 01:23:11.800 --> 01:23:16.180 and the persecution of the Jews which went on for 1,600 years? 1683 01:23:16.300 --> 01:23:18.120 All these persecutions can be justified 1684 01:23:18.120 --> 01:23:21.680 by direct, unambiguous biblical quotes from their holy books. 1685 01:23:21.760 --> 01:23:22.200 Why? 1686 01:23:22.220 --> 01:23:24.340 Thank you for that question, sir. 1687 01:23:25.220 --> 01:23:27.780 What's very important for everyone to realize 1688 01:23:27.780 --> 01:23:31.140 that suicide has never been sanctioned 1689 01:23:31.140 --> 01:23:32.620 either by the Koran or the Prophet. 1690 01:23:34.100 --> 01:23:36.700 In the most unequivocal terms, 1691 01:23:36.980 --> 01:23:38.640 the Prophet has prohibited suicide 1692 01:23:39.220 --> 01:23:42.460 and all those who commit deliberately, take their own lives, 1693 01:23:42.940 --> 01:23:47.900 have been mentioned as being inhabitants of hell. 1694 01:23:48.320 --> 01:23:52.200 The interpretations that some people have 1695 01:23:52.220 --> 01:23:55.920 developed about suicide as being legitimate 1696 01:23:55.920 --> 01:23:59.560 is really the result of political liberation movements 1697 01:24:00.220 --> 01:24:04.180 and have nothing to do with Islamic thought and theology 1698 01:24:04.180 --> 01:24:08.680 and jurisprudence in terms of its principles, its ethics, its values. 1699 01:24:09.060 --> 01:24:14.020 And it is as false to say that the London bombing 1700 01:24:14.020 --> 01:24:17.240 has anything to do with Islamic ethics and law 1701 01:24:17.240 --> 01:24:21.240 as the act of Sinn Fein in doing bombs in London 1702 01:24:21.240 --> 01:24:25.440 had to do with Catholicism or Catholic thought or Catholic ethics. 1703 01:24:25.880 --> 01:24:27.900 However, the fact of the matter is 1704 01:24:27.900 --> 01:24:30.820 there are many people who are ignorant of their own faith. 1705 01:24:32.400 --> 01:24:37.900 There are many people who feel wronged by issues of social injustice 1706 01:24:39.080 --> 01:24:41.580 and in the passion of the moment 1707 01:24:43.240 --> 01:24:47.120 are very easily susceptible to particular leaders or terrorists 1708 01:24:47.120 --> 01:24:49.220 who make use of that. 1709 01:24:49.420 --> 01:24:50.620 And that's the battle 1710 01:24:50.620 --> 01:24:51.940 that we have to wage. 1711 01:24:52.160 --> 01:24:53.840 It is multifaceted. 1712 01:24:53.840 --> 01:24:58.280 It includes the utilization naturally of Islamic legal scholars 1713 01:24:58.280 --> 01:25:03.340 but in partnership with also the institution of social justice 1714 01:25:03.340 --> 01:25:05.520 in many of these communities and societies. 1715 01:25:06.240 --> 01:25:07.340 And unless that happens, 1716 01:25:07.560 --> 01:25:12.280 we will not have a complete solution to the issues. 1717 01:25:13.140 --> 01:25:15.060 That also, I think, points out 1718 01:25:15.060 --> 01:25:18.200 why the idea of a war against terrorism is so crazy. 1719 01:25:18.700 --> 01:25:20.080 It is not an abstraction. 1720 01:25:20.620 --> 01:25:22.780 It's a series of acts done by individuals 1721 01:25:23.480 --> 01:25:24.860 for misguided reasons 1722 01:25:24.860 --> 01:25:27.560 and those misguided reasons may not be the same 1723 01:25:27.560 --> 01:25:32.480 when in Iraq or in New York or in London or in Northern Ireland. 1724 01:25:32.700 --> 01:25:36.160 I think we need to look at the causes of terrorist action 1725 01:25:36.160 --> 01:25:38.860 and the things that impel individual terrorists 1726 01:25:38.860 --> 01:25:41.160 rather than saying terrorism as an abstraction 1727 01:25:41.160 --> 01:25:44.080 is something that we can sensibly wage war against. 1728 01:25:44.320 --> 01:25:45.760 An extremely important point, Julian, 1729 01:25:46.420 --> 01:25:49.780 in a very important book by Caleb Carr called The Lessons of Terror. 1730 01:25:49.780 --> 01:25:54.240 He traces terrorism from the time of the Roman Empire. 1731 01:25:55.320 --> 01:25:58.880 He points out that terrorism has always been a method 1732 01:25:58.880 --> 01:26:02.600 to achieve very specifically targeted political objectives. 1733 01:26:03.460 --> 01:26:08.040 It has been used by every entity throughout history. 1734 01:26:08.660 --> 01:26:11.120 And in the documentary The Fog of War, 1735 01:26:11.260 --> 01:26:13.800 you have seen this about Robert McNamara, 1736 01:26:13.940 --> 01:26:17.200 he admits that had the United States lost the war, 1737 01:26:17.440 --> 01:26:19.460 General Curtis LeMay, 1738 01:26:19.780 --> 01:26:20.780 who was his superior, 1739 01:26:21.020 --> 01:26:24.160 said that we, because of what the Americans did in the bombing 1740 01:26:24.780 --> 01:26:29.740 of something like 49 or maybe more than that Japanese cities 1741 01:26:29.740 --> 01:26:33.440 where civilians, hundreds of thousands of civilians 1742 01:26:33.440 --> 01:26:34.940 were literally killed, 1743 01:26:35.120 --> 01:26:37.960 said that we would have been prosecuted as war criminals. 1744 01:26:38.360 --> 01:26:43.900 So terrorism is not just conducted by non-state actors. 1745 01:26:44.060 --> 01:26:46.380 It is also an action of state. 1746 01:26:57.460 --> 01:26:59.480 You've beaten me to it, of course, 1747 01:26:59.480 --> 01:27:02.320 and normally I think the chair has to thank the speakers, 1748 01:27:02.440 --> 01:27:04.100 and I think we've done that throughout. 1749 01:27:04.280 --> 01:27:05.520 Can I thank the audience? 1750 01:27:05.620 --> 01:27:08.840 I think that you've done this difficult work 1751 01:27:08.840 --> 01:27:14.300 on a Saturday in winter on an empty stomach. 1752 01:27:15.300 --> 01:27:18.680 And I would say that it's been the most wonderful thrill 1753 01:27:18.680 --> 01:27:19.760 to see this sort of action being done 1754 01:27:19.760 --> 01:27:23.300 this incredible enthusiasm, this grassroots enthusiasm for ideas. 1755 01:27:23.460 --> 01:27:27.940 So on behalf of the panel, I would like to thank all of you for attending. 1756 01:27:28.300 --> 01:27:29.360 I wish you well. 1757 01:27:30.560 --> 01:27:31.000 APPLAUSE