How many people understand confidently what justice is?
Lawyers don’t receive any real training in justice, so far as I am aware. This is a pity, because it is a lawyer’s job to help administer justice. We think we understand what it is, but I suspect that you would have real trouble getting general agreement about what constitutes justice. Deep ethical choices are involved in deciding what constitutes justice. Our conception of justice helps shape innumerable aspects of the legal system. Try this. A mother, stressed already by school holiday torment, is in the kitchen when she hears a crash in the living-room. She rushes to see what has happened and finds her favourite, most precious vase shattered on the hearth. She knows with a certainty which transcends analysis that her youngest was responsible. She fines him and sends him to bed without dinner. As it happens, he was in fact responsible for breaking the vase.
The alternative version: when the mother finds the vase, she realises that no one should be punished without good cause and due process. This is the minimum requirement of justice. She seeks out each child in turn and asks questions calculated to discover the truth of the matter. Suspicion eventually falls on her youngest. She gives him a chance to explain. Not convinced by his explanation she sends him to bed without dinner. As it happens, he was not responsible for breaking the vase.
The question is: Which of these two results is more just? The first is pragmatic; the second accords with principle. But most people cannot choose which is right without hesitation. Due process is inherent in our conception of justice. But bad process can yield right results, just as good process can produce wrong results. The legal system, with all its concerns about process and procedure, is designed to produce justice. The idea of a mob-lynching of a suspected criminal is abhorrent, even if it happens that the mob is right in their choice of victim.
This simple example illustrates how hard it is to choose what constitutes justice. The difficulty is compounded by the fact that our ethical criteria are not static. What appears just in one age may be repugnant in another. A crude illustration of this process is found in social attitudes to capital punishment.
Ronald Ryan was the last person put to death by an Australian Government. The fight to save him from the gallows in 1967 was hotly contested. Led by Barry Jones, those campaigning against capital punishment were vilified by the government of the day and by the tabloid press. Now, 46 years on, no government in Australia today argues for the reintroduction of capital punishment, and members of the community who support capital punishment are either a small minority or surprisingly quiet.
Nevertheless, there was a strong body of opinion in Australia which supported the idea of executing the Bali bombers, and even more local opposition to the execution of the Bali 9. One integer of the ethical choice, it seems, is the nationality of the prisoner being sentenced.
One hundred years ago there was near universal support for the death penalty as an appropriate feature of the justice system.
Two hundred years ago, capital punishment was a commonplace, as was public flogging. What was just then seems to us barbaric now.
The fundamental ethical norms of our society naturally play an important role in determining a theory of justice. The presumption of innocence, and the requirement that all people who go to court are entitled to competent representation both illustrate the way various ethical choices have been played out in our society. Likewise the choice that all people are entitled to justice, not only the powerful.
The idea that an accused person should be presumed innocent is one which does not operate in Japan. The idea that, in the contest between state and citizen, the parties should meet on equal terms, with each competently represented, is one which is accepted but not always honoured in practice.
The most fundamental of these choices is this: that our conception of justice includes the idea that all people are entitled to it. This is not a universal norm, although we take it as self-evident. In his history of the Peloponnesian wars, Thucydides retells the Melian dialogue. In its war against Sparta, Athens decided to invade the island of Melos. Although Melos had not harmed Athens, and was neutral in the war, it was strategically located. Athens wanted Melos for its strategic importance. An Athenian delegation went to the Commissioners of Melos and came straight to the point. They agreed that it would seem unjust for them to invade Melos, but said that they intended to. They offered a choice of conquering Melos the easy way (surrender) or the hard way (mass slaughter). In support of their plainly unreasonable proposition, they accepted that the Melians would complain that it was not just. But, they argued, ‘Justice is only relevant between equals in power. Where power is not equal, the strong do what they will, and the weak suffer what they must.’
(Incidentally, the Melians adopted a principled stance and refused to surrender to such outrageous demands. Their men and boys were slaughtered; their women were raped and abducted.)
Feudal societies and dictatorships tend to share the Athenian view. Neither the Taliban – nor those who hold Taliban prisoners in Guantanamo Bay – think that justice is for all. In 1934, Dr Evatt published a small book titled Injustice Within the Law. It was a discussion of the case of R . Loveless and Ors. It concerned the case of six agricultural workers from a small town in Dorset who had the temerity to form and recruit members for the friendly society of agricultural labourers. They were prosecuted for requiring new members of the union to swear an oath of loyalty to the union. The defendants were specifically targeted by a local employer, who was also the Magistrate of the first hearing. All six were convicted and sentenced to transportation to Australia for seven years. Their trial was unfair, their sentence was unfair and they quickly became known as the Tolpuddle Martyrs, after the town they lived in. Evatt wrote Injustice Within the Law in 1934, to commemorate the centenary of the trial of the Tolpuddle Martyrs.
It is easy, and comforting, to think that such an injustice within the law would not happen today. The truth is otherwise. The case of the Tolpuddle Martyrs had many vices. But the main one is that it was a frank failure of the principle of legality. There are several different causes of injustice within the law these days: 1. Injustice which results from the fact that the system is run by human beings, and human beings are fallible; 2. Injustices which result when a person does not have effective access to law; and 3. Injustices which are mandated by the Parliament.
The system is not perfect There are many examples, large and small, of the legal system failing simply because it is run by fallible human beings. A moment’s inadvertence can have large consequences. Some matters just don’t seem to have much merit, unless you look very closely. This can lead to carelessness: the problems faced by clients with unpopular causes may seem less deserving of attention; the problems faced by clients with mental or social disabilities are too readily dismissed as figments of their disturbed lives. So let the case of Stefan Kiszko stand as a warning.
Stefan Kiszko lived in the northern part of England, with his German mother and aunt. Stefan was a big, lumbering young man and socially backward. He suffered from hypogonadism, a condition in which the testes are completely undeveloped. This was not diagnosed until he was 23, at which time he was a young boy in a man’s body. Although he was intellectually normal, his social backwardness made him the butt of jokes at school, and when he got a job in the Tax Office it made him the butt of jokes at work. His mother and his aunt were proud of him when he started working at the Tax Office: he was the first member of their family ever to have had a job which required them to wear a jacket and tie. He had no friends and no social life beyond his mother and his aunt.
On 5 October 1975 Lesley Molseed went down to the local shop to get some bread. She was a small, frail 11-year-old. Three days later, her body was found on the moors near the town. She had been stabbed 12 times and the killer had ejaculated on her underwear.
The police set up a massive manhunt. They took statements from 6,000 people in the area. Their attention soon fixed on Stefan Kiszko. On their assessment of things, he fitted the likely profile of the killer.
They questioned Kiszko for many hours. They did not caution him until well after they had formed the firm belief that he was guilty. So he kept asking to be allowed to see his mother. Eventually he began agreeing with their assertions when they promised that, if he did so, they would let him go home to his mother. He signed a statement confessing the crime, but retracted it soon afterwards.
His trial began on 7 July 1976. He was represented on a Legal Aid brief by David Waddington QC and Philip Clegg. At the start of the trial the prosecution delivered thousands of pages of unused material. The defence did not ask for an adjournment. They ran inconsistent defences. While the primary defence was that Kiszko had not killed Lesley Molseed, they also argued that he had just started hormone treatment for his hypogonadism, and that this caused uncharacteristic changes in his behaviour. The defence overstated this point. Kiszko’s endocrinologist would have said, if asked, that the hormone treatment would not have caused any behaviour at odds with his underlying personality. Worse, the alternative defences involved telling the jury, in substance, ‘he didn’t do it, but if he did he couldn’t help it because the hormone treatment had turned him into a sex monster’. On any view, this was not likely to attract the sympathy of the jury. With the best will in the world, it is hard to avoid the conclusion that the defence and prosecution alike thought that Kiszko was guilty.
He was convicted, and was sentenced to life imprisonment. For a person convicted of sexually molesting and killing a child, life in jail is hard. Kiszko was frequently beaten by other prisoners, and eventually retreated into a world of private delusion in which he was the victim of an immense plot to incarcerate an innocent Tax Office employee in order to test the effects of incarceration. It was an understandable fantasy. He ultimately became to believe that even his mother was party to this elaborate conspiracy.
But Kiszko’s mother was the only person who continued to believe, from first to last, that Kiszko was innocent. She never missed an opportunity to tell anyone who was willing to listen about the hardship of the case and the unfairness of the verdict. As her entreaties became more desperate and forlorn, so her audience became less receptive. But eventually, in 1987, a regional solicitor agreed to have a look at the case. He succeeded in getting access to the police archives and having the case investigated again.
The investigation discovered a few crucial things. First, that the unused material delivered on the first day of the trial included material which cast doubt on the reliability of several important witnesses, and on the reliability of the confession. Second, that the pathologist who had examined Lesley Molseed’s clothing had found sperm in the semen on her underwear. Third, that the police had taken a sample of Kiszko’s semen at the time of the investigation. It contained no sperm at all because he was medically incapable of producing sperm. Those facts had not been disclosed to the court.
Kiszko’s lawyers applied to the Court of Appeal. The application was heard on 17 and 18 February 1992. At the end of argument, Lane LCJ announced: ‘It has been shown that this man cannot produce sperm. This man cannot have been the person responsible for ejaculating over the girl’s knickers and skirt, and consequently cannot have been the murderer.’
The appeal was allowed and the conviction was quashed.Kiszko was released immediately, but needed nine months’ rehabilitation before he was mentally well enough to return to his mother’s house. He died 18 months later, aged 41. His mother died six months after that. The conviction and imprisonment of Stefan Kiszko was an unspeakably terrible injustice. The investigation was flawed, but not corrupt. The trial was flawed, but not corrupt. The defence was competent, but not diligent. The result seemed, at the time, to be justified. Kiszko’s protests and his mother’s protests looked, at the time, like the sort of thing guilty people would say in the same circumstances.
At the heart of the problem in Stefan Kiszko’s case is the fact that the system did not work as it ought to have done. The police, convinced of Kiszko’s guilt from early on in the investigation, simply ignored the impossible contradiction of the pathology evidence. Defence counsel plainly did not think it worthwhile to look through the additional unused material delivered on the first day of the trial. For them, at that stage, it must have seemed like a waste of time to seek an adjournment. It would not have been.
There is another element to this, which is difficult to classify. When a person or group is unpopular, it is much easier to deny them justice. Kiszko was unpopular because of the horrible crime with which he was charged: the presumption of innocence does not seem to operate on the minds of the public.
But consider also the plight of boat people in recent years. It has become a political orthodoxy to treat boat people harshly. This is thought to be a deterrent, ostensibly to save the lives of people trying to escape to safety. In truth it is calculated to prevent any more boat people getting to Australia. What is astonishing is the fact that both major political parties openly boast that they can treat boat people so harshly that those people would likely prefer to stay home and face the Taliban rather than face us or the Pacific Solution.
Australians generally consider themselves generous and open. It is a curious thing that they will likely support whichever party is able to promise to inflict the greater misery on refugees. In my view, it has been achieved by first demonising boat people. Since 2001, the Coalition has called boat people ‘illegals’. It is a lie. In recent times, Scott Morrison has been the chief offender. Both major parties speak of ‘border protection’, conveying the impression that refugees are people against whom we need protection.
The Australian public has thus been misled into believing that boat people are a danger, and therefore prefer whichever party can be more brutal to them. It is profoundly unjust to boat people who are, in more than 90% of cases, ultimately found to be refugees entitled to our protection.
Injustice begins when the community regards one group as not entitled to be treated in the way we would wish to be treated.
Access to justice
Let me turn to the second form of injustice within the law. Access to justice is an ideal warmly endorsed by politicians, but not so warmly embraced. They like the idea but, if their conduct is any guide, they are not interested in the reality. Political enthusiasm for access to justice generally reaches its high-water mark at election time, then it recedes unless some transient crisis forces it into the public consciousness again.
Access to justice is not the same thing as access to law. The distinction is important. First, because the quality of legal assistance received may significantly affect the quality of justice delivered. Second, because what constitutes justice is, at least in some measure, subjective. A result which lawyers consider ‘just’ may not be seen that way by a person who, from first to last, has no understanding of the process by which the result was arrived at. Third, because justice has a social dimension: if two people face a similar legal problem, and one of them has a greater prospect of a favourable result than the other, then justice in the larger social sense has not been achieved.
An encounter with the court system is a daunting thing for most people. The substantive law is a jungle of complexity. Statutes are difficult to understand, and the interplay between different statutes is often unpredictable and opaque. The nature and content of the common law are mysterious to most lay people. Most people who have no legal training struggle to understand the distinction between civil and criminal law, and have no conception of administrative law. Add to all of this the laws of evidence and procedure and you have some conception of how daunting it is for an individual litigant to represent themselves with any confidence or competence. Imagine then how daunting it is to a person with limited education, or limited skills in English to navigate the legal system without help. And for them, it is an encounter at a time most likely of great emotional stress. Even sophisticated clients, the ones who get red carpet treatment, have difficulty understanding the refinements of law and legal procedures. What hope for the disadvantaged? With or without help, they may understand so little of what is happening to them that, short of a perfect outcome, they may not have any sense of having experienced ‘justice’.
I have spent a little time on this because one standard response of funding bodies is that the law is too expensive; we cannot provide legal help to everyone. The first proposition is probably true: law is unquestionably very expensive. Justice is even more so. I have occasionally reflected on how it would feel to be a litigant in a case that needed someone like me as counsel. I do not think I could afford it. To recognise that I cannot afford myself is to recognise that something is profoundly wrong with the system – or else I am simply redundant to my own existence.
The law is complex; competent legal help is expensive. Many people cannot afford legal help when they need it. Accepting that reality, governments institute schemes for legal aid. Unfortunately, legal aid is grossly under-funded. The practical result is that many people are not eligible for legal aid and are forced to sacrifice their rights or to represent themselves. If access to justice has any meaning, funding for legal aid is plainly inadequate. For practical purposes, legal aid is trimmed to stay within available resources instead of being increased to meet actual needs. Even in family law and criminal matters, litigants go unrepresented because they cannot afford lawyers and do not qualify for legal aid. If they are lucky, they may get some free advice from a community legal centre.
In civil litigation, legal aid is effectively unavailable. This is probably because funding bodies consider fights about money and property less important than fights about children and crime. Other aspects of our social arrangements suggest a much greater concern for money and property than legal aid funding suggests. The absence of legal aid in civil litigation can work profound injustice, especially when the litigant on the other side can afford their own lawyers. When one party is a well-resourced company, the individual litigant’s rights are irrelevant: they will almost certainly have to sacrifice their rights because they cannot afford to vindicate them. Tenancy disputes, consumer disputes and credit disputes all have a profound impact on the affected litigant. To deny them access to legal aid will likely result in injustice.
Civil litigation of course can involve questions beyond money and property. Discrimination and employment law are two examples. Victims of discrimination are doubly disadvantaged if they cannot get legal help to address the wrong already suffered. It is bad enough to be the victim of unlawful discrimination, but worse again if that fact means that you cannot get legal aid to help redress the balance.
Injustices in the area of employment can also strike with double force, because the fact of being dismissed unfairly guarantees that the litigant will not be able to afford their own legal help. It is a difficult, but necessary, exercise to imagine what it must be like to be in debt, with a family to support, and to find yourself cast out of employment unlawfully but without access to legal help to take on a large, corporate employer.
If governments were honest about access to justice, they would fund Legal Aid so as to meet the real need which exists. As it is, Legal Aid is trimmed to fit the budget and the result – every day in every jurisdiction – is injustice within the law. Inadequate Legal Aid is the principal cause of injustice within the law.
Injustice mandated by law Of all the sources of injustice, the most distressing and outrageous is injustice which the law mandates. There are many examples of this. They are all a reflection of political expedience. Of course it is a contestable point whether some of them can be characterised as injustices. Perhaps the best test is to imagine yourself hoist on one of these laws, and see how it feels. An increasing number of statutes, in all jurisdictions, reverse the onus of proof. In a departure from the most basic principle of the criminal law, it is increasingly common for parliaments to require a defendant to prove his or her innocence.
Confiscating proceeds of crime
One insidious development is the extended reach of legislation ostensibly aimed at confiscating the proceeds of crime. Legislation like this exists in most jurisdictions. It also authorises confiscation of ‘instruments of crime’. Few people would reject the idea that a bank robber should have to hand back the stolen money, or that the shotgun he used should also be taken away. But it is less obvious that a person who has written a successful book about their past life as a criminal should have to disgorge the royalties earned from sale of the book; but the legislation reaches that far. Several years ago, a retired public servant in Adelaide was found to have 3 marijuana plants growing in her back garden. She was fined a modest amount, but then the DPP applied for an order confiscating her house as an instrument of crime.
Then we have the legislation concerning asylum seekers. By statute, until recently, anyone who came to Australia without a visa had to be detained and remain in detention until they received a visa or were removed from Australia. In practice, under Howard and Ruddock, this meant that men, women and children who had committed no offence at all were held in conditions of hopelessness and despair for months or years, even though most of them were eventually accepted as genuine refugees.
Not enough people know the case of Ahmed al Kateb. He came to Australia and sought asylum in late 2000 or thereabouts. He applied for a visa and was refused. He found conditions in detention so intolerable that, rather than prolonging his stay by appealing against that refusal, he asked to be removed from Australia. Eighteen months later he was still in detention because there was no country where he could be removed to: he was a stateless Palestinian. The Migration Act provided that a person who comes to Australia without papers must be detained, and they must remain in detention until either they get a visa or they are removed from the country.
What to do? He had not committed any offence; he was not a risk to anyone, but he could not get a visa and could not be removed. The Howard government argued, all the way to the High Court, that Mr al Kateb could be held in detention for the rest of his life. By a majority of 4:3 the High Court held that that is what the Migration Act means, and with that meaning it is constitutionally valid. The majesty of the common law is not adequate to blunt the malice of a heartless government.
Let me finish with another source of injustice mandated by law. This arises from the modern obsession with national security. It is alarming then to see the powers which ASIO and the Attorney-General can wield, ostensibly in the service of our national security interests. Among other things, ASIO has power to make security assessments of a person. Among other consequences, an adverse security assessment from ASIO can result in a person’s job application being refused or their Australian passport being cancelled. For foreign visitors, it will result in a visa being refused or cancelled. If a person is adversely assessed by ASIO, they are not told what facts ASIO took into account in forming its views, so it is virtually impossible to show that ASIO was wrong.
A Federal Court case in 2011 illustrates the problem. Two people had been adversely assessed by ASIO. As a result, they were refused protection visas, despite having been assessed as refugees. The practical result was that they faced the prospect of remaining in detention on Nauru indefinitely.
They issued proceedings in the Federal Court. They swore that they had never done or said anything which could bring them within the (very wide) reach of the security laws. ASIO did not challenge that evidence, and did not produce any evidence to suggest that the people were a risk to security. The argument was that, because the court did not know what ASIO had taken into account when forming the adverse assessment, the court could not say that it had made a mistake.
That argument was accepted. If ASIO had got the wrong people, or had applied the wrong test, or had made a mistake in the facts, that remained hidden and beyond correction. It is important to understand that an adverse assessment does not mean that the person is a terrorist or a danger to the community. The criteria for adverse assessments are incredibly wide, including that a person might represent a risk to the security of some other country. If a person is adversely assessed by ASIO, they will automatically be refused a protection visa, despite having been assessed as refugees.This creates a problem. A person who has been assessed as a refugee cannot be returned to their country of origin, because the central obligation in the Refugees Convention is the obligation not to return a refugee to a place of possible persecution. The principle established in the al Kateb case seems to apply to a person who is refused a visa because of an adverse assessment by ASIO. This is injustice of astonishing proportions.
The problem is exemplified by the case of Ranjini. Shortly before Mothers Day 2012, Ranjini and her two children, aged 6 and 9 years, were removed from the community and placed in detention at Villawood. They are refugees: that fact is accepted by the government. They are in detention now because their protection visas have been cancelled. Why? Because ASIO has assessed them adversely on security grounds. They will not tell her why. The best guess is that her husband, who is dead, was once a driver for Tamil separatists in Sri Lanka. Even if that is true, it does not involve the woman and her children in any sort of offence, and it says nothing about their character. It seems likely that the basis of the adverse assessment is that Ranjini’s connection with the Tamil Tigers (her now-dead first husband) would make her a risk to the security of Sri Lanka if she returned there. That is: the same facts which qualify her as a refugee result in her being adversely assessed and jailed, potentially forever, but without charge and without trial. How can this be, in a free democratic country like Australia? It is the result of two court decisions which most Australians have never heard of.
Conclusion It is tempting (and comforting) to think that the kind of injustice worked in R v Loveless could not happen here and now, because we are so enlightened these days. To be sure, we do not see such corruption of the legal process as it represents. But injustice within the law still exists. It may not affect you and me, at least not now. But if we ignore it, we betray one of society’s most basic ideals, and we corrode the very system which exists to protect all of us.
Julian Burnside AO QC is a leading Australian barrister, author and human rights advocate. This is the text of his 2013 Annual Evatt Lecture presented at the H. V. Evatt Memorial Dinner at the Carrington Hotel in Katoomba on 13 April 2013.
Burnside, Julian, 'Injustice within the law', Evatt Journal, Vol. 12, No. 2, August 2013.<https://evatt.org.au/injustice-within-the-law>