Skip to 0 minutes and 4 secondsPETER RA GRAY: Laws exist as a sort of antidote to chaos, I suppose.
Skip to 0 minutes and 10 secondsGEORGE HAMPEL: There's a need for and some rules, and the law developed to help people understand what they can and can't do, and to remedy wrongs and rights, to protect rights. And so we need a legal system. If people could resolve all their differences and disputes, we possibly wouldn't need one, but that's just not going to happen.
Skip to 0 minutes and 34 secondsNAHUM MUSHIN: The Westminster system relies on access to justice and the rule of law to regulate in accordance with the law proclaimed by the parliament and interpreted by the judges in the common law. Access to justice is fundamental to the functioning of a democracy. Without access to justice, without access to the courts, people would not be able to ensure that their rights are protected.
Skip to 1 minute and 6 secondsMARCIA NEAVE: It's really important that the society has a rule of law that governs disputes so that people don't take the law into their own hands and that applies to everybody, rich or poor, whatever background they come from.
Skip to 1 minute and 22 secondsPETER RA GRAY: The laws are there to set the standards, if you like, and the enforcement of them is really only a tiny part. We love to say, and it's a great principle, that the law should be available for everybody. It should treat everybody equally, no matter whether they're rich or poor, or powerful or underdogs, or whatever. It should be the same for everyone. The reality is not quite up to the principle, I think.
Skip to 1 minute and 56 secondsMARCIA NEAVE: In some countries, there are real attempts to deal with access to justice by allowing people to go to more informal tribunals or to have a dispute resolved by mediation. So there are a variety of ways that you can give people access to justice. Probably the most basic way is to inform people what their rights are.
Skip to 2 minutes and 21 secondsNAHUM MUSHIN: The law is not accessible to everybody. The law and the functioning of the law is a very expensive exercise so that, strictly speaking, only very wealthy people and those who can afford legal aid-- that is, people at the opposite ends of the socioeconomic structure of our society-- have access to the law.
Skip to 2 minutes and 45 secondsGEORGE HAMPEL: Unfortunately, people who have a lot of money are able to get better quality representation, better quality services, generally. And so to remedy that, what our society does is to try and introduce a pro bono systems and legal aid systems.
Skip to 3 minutes and 5 secondsMARCIA NEAVE: I think it's useful for people at school to learn a bit about how the law works, again, so that they know what their rights are and people can't treat them badly. Then we have different levels of courts in most countries, different hierarchies of courts. And the courts that do the most business tend to be the cheapest. In my jurisdiction, it would be the Magistrates Court, and there will be a court like that in most places. But there are also often tribunals to deal with specific issues, complaints bodies. For example, if you have a complaint about a bank or about a financial matter, there's often a disputes tribunal. Lots of countries have an ombudsman.
Skip to 3 minutes and 55 secondsSo if you have a complaint about government, you can complain to the ombudsman. And we need to think of all of those things as part of access to justice. It's not just about courts. It's about people being informed and having somewhere to go if they've got a compliant.
Skip to 4 minutes and 13 secondsGEORGE HAMPEL: The concept of the separation of powers is otherwise referred to as the Westminster system, again originating from Great Britain. It works on the basis that no one has absolute power, and so you have three arms of a government, in effect. You have first of all the parliament, which represents the people. Secondly, you have the executive. And the third arm of government is the judiciary.
Skip to 4 minutes and 44 secondsNAHUM MUSHIN: The whole aspect of the role of judges is fundamental as being the third estate of a democracy.
Skip to 4 minutes and 54 secondsPETER RA GRAY: So the separation of powers to every judge is at the very heart of what you do.
Skip to 5 minutes and 1 secondMARCIA NEAVE: One of the responsibilities of judges is to see that what's called natural justice is done. That is, that people get a say, have the opportunity to tell their story, because for example, if a decision was made that you'd committed a crime and you hadn't had a chance to put your case, then that would be very, very unfair. So one of the responsibilities of judges is to make sure that people get a fair trial.
Skip to 5 minutes and 30 secondsJudges have to be independent because once judges start doing the bidding of the government of the day, then out freedom is gone, and an example of that is Nazi Germany, where the judges basically were, in some cases, actually instructed by Hitler to make certain sorts of decisions.
Skip to 5 minutes and 50 secondsGEORGE HAMPEL: Parliament is omnipotent. It can make any laws it likes, but it must act within the Constitution. And the courts decide whether the parliamentary-made law is constitutional, is within the power of the government. So even parliament, which has the absolute power, can't do things beyond its legal entitlement, if you like.
Skip to 6 minutes and 16 secondsMARCIA NEAVE: One of the points of having an appeal system is so that if something goes wrong, then there is a possibility of an appeal. It depends on what country you're in, but usually, appeals are heard by more than one judge. So you might have two or three judges, and that then is meant to be a corrective. So sometimes you see in the newspapers a report of a judge who's said something a bit silly or a bit inappropriate, perhaps in the stress of hearing a case, and people get very shocked about that. But there is a process for correction, and hopefully, that works most of the time.
Skip to 7 minutes and 1 secondBut we're all human beings, and because we're all human beings, we can make mistakes.
Skip to 7 minutes and 7 secondsNAHUM MUSHIN: I think that the democracy depends on the proper balance between the parliament, the executive, and the courts. And I think there are very significant examples of restriction of the role of the courts, which in my view can't do any good for that rule of law.
Skip to 7 minutes and 33 secondsMARCIA NEAVE: Another area where that boundary is important is in countries that have charters of rights or bills of rights. And in my jurisdiction, Victoria, we have a Charter of Human Rights and Responsibilities Act, which does not allow the judges to overrule legislation. So parliament makes a law. It comes to the court. The court can say this is inconsistent with human rights, but they do not invalidate the law. The law remains the law, and then we make a declaration which says this should be reconsidered. Parliament can either say we think the law is correct and we're going to continue it, or they can see no, no, it is inconsistent with human rights, and we're going to change it.
Skip to 8 minutes and 28 secondsPETER RA GRAY: Judges need to be able to feel that in reality, they can be independent, they can make decisions that the minister won't like, that the bureaucrats won't like, and they needn't feel threatened. In countries where they are threatened, I think society suffers.
Views from the Bench: The legal system
Watch Nahum Mushin (Former Judge, Family Court of Australia), George Hampel (Former Judge, Supreme Court of Victoria), Peter RA Gray (Former Judge, Federal Court of Australia) and Marcia Neave (Former Judge, Victorian Court of Appeal) share their unique views on the law while reflecting on their career in Australia’s legal system.
© Monash University 2018. CRICOS No. 00008C