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Views from the Bench: Global village

Watch Nahum, George, Peter and Marcia share their unique views on the law while reflecting on their life in Australia’s legal system.
I think areas of climate change, refugees, the death penalty, carrying guns, all of those sort of things, have got a fundamental moral dimension to them. And the world community, in my view, doesn’t do enough to address those dimensions. I think there’s definitely a role for more of a global village. I think the refugee problem that we now see throughout the world is fundamentally an international problem. It requires the whole of the international community to get together to do something about it to fix it in a moral and ethical way. I don’t see that happening and I would very much like to see Australia playing a more active role, in that regrettably, it doesn’t.
It seems to me that one of the big issues which is going to confront us over the next 50 years is increasing inequality within societies, increasing economic inequality. And the extent to which the law, in combination with other mechanisms for dealing with that, can be used I think is really important. And I’m particularly concerned about ensuring that the law can address people who are powerless and oppressed and particularly the rights of women and children. They’re not the only people who are powerless and oppressed but women still, if you look across the world, are seriously oppressed in many, many countries. And even in wealthy countries, there are still great injustices.
I’ve been working for the last year in the area of family violence and we need to think about how we address those issues, both by enabling men to behave differently in some circumstances but also by supporting women and children, whose lives can be terribly blighted and in some cases, can be killed through family violence.
NAHUM MUSHIN: Education of the community in what the laws are is extremely important. Let me just give you one small example from family law. I don’t think that society as a whole in Australia understands the importance of family law, the role of adjusting relationships within the community, in particular of protecting people who are the victims of violence and abuse, and of ensuring ultimately that the best interests of children are the most important factor to be considered.
I think we need to have far more understanding of that and I think it’s behoved on all of us who are involved in the application of the law, in the regulation, in the application, all of those sort of things, to undertake that as an important step.
PETER RA GRAY: There’s a textbook called Politics 101 and when you open it up, page one, chapter 1, paragraph one reads, “First make people afraid of something and then promise to save them from it.” And too often, our politicians never get past that paragraph. We live in a world of fear mongering by politicians, of setting people against one another, of making false promises about making people safe from things that nobody can make people safe from, and of focusing on the external enemy as a means of distracting people from the inadequacies of the political regime.
I think we’d have a much more harmonious society if we got past that paragraph and we got down to some principles of how do we make this society better for more people. And we need to get back to arguments based on principle. We need to get back to leadership, to changing attitudes, and rather than to boosting prejudices against sections of the population, to promoting understanding and respect.
GEORGE HAMPEL: Let’s face it. Although the individuals who commit crime are certainly responsible for it, crime is a sort of a pathology of a community in one sense. There are factors in the community which not cause crime but are conducive to criminal activity, for example, poverty. Society can’t just say, well, you’re the individual. You’re responsible. Therefore, we punish you and that’s it. It’s in the interest of the society to treat wrongdoing as part of its fabric, in a sense.
And one of the issues that we have in a multicultural society impacting the law is that we have this tension between people that come from a different culture, a different religious background, different backgrounds in many, many ways, different countries where the law is applied totally differently or not applied at all in some places, and they come to a system which is probably amongst the most sophisticated anywhere. And so that creates a number of problems. One of them is the understanding of the law. The law always has been that ignorance of the law is no excuse for breaching it or not obeying it.
That’s a very nice concept but nobody can possibly comply with that nowadays– probably never could, really, but even less nowadays. So that’s one problem. But there’s another problem, too, and that is, how do you expect people who come from a different culture which permitted certain things or tolerated certain things which we don’t in this society? So we can’t have laws from other places applied in Australia. We have to have a law which applies to the whole community.
PETER RA GRAY: Particularly in Australia, the question of the interaction of English common law, derived law, and indigenous law is a terribly vexed one. It’s surfaced in that field of intellectual property law where there is communal ownership of an image. We in our legal system don’t comprehend that kind of communal ownership at all. We’ve never really come to grips with the subtleties of Aboriginal tradition and custom and law in relation to entitlements because we see things in terms of ownership of land. We see land as a commodity and we can own it. I own some, you own some, and we can trade it and so forth.
And that is nothing at all like the Aboriginal view of land, in which the land really possesses the people rather than the people possessing the land. Our law just doesn’t cope with it at all well. And we see it surfacing also in issues of sentencing in the criminal law. If you’re a judge in the Northern Territory and you have someone to sentence for a serious crime of violence, do you sentence them knowing that because the crime was committed with respect to another Aboriginal person back there in the community, there awaits a traditional punishment for them, which can be anything up to spearing in the leg?
Do you take that into account and give them a lighter sentence because they’re very likely to get their leg speared? Or do you say, no, that’s wrong. That would be a serious assault in itself and we can’t condone it so we sentence in the usual way and we try to prevent the traditional punishment from being carried out? It’s a very vexed issue. Spearing in the leg in truth in time past was effectively a death sentence because if you couldn’t move about to hunt and you couldn’t keep up with the group, you couldn’t survive.
GEORGE HAMPEL: How much consideration is given to the fact that a person who did something wrong or behaved in a particular way did it consistently with their background and their culture but totally inconsistently with ours? To what extent can value be given to that? It’s one of those factors that makes the judge’s discretionary judgment very important to be able to weigh that up together with other factors.
MARCIA NEAVE: I think there probably are areas where we need to tackle problems globally and we currently do that through international instruments, conventions, for example, the Convention on Civil and Political Rights, which is an important human rights instrument, conventions in the area of climate change, and so on. So there will be some significant areas where we really do need a solution that goes beyond individual countries. The difficulty is how you actually enforce those but I think we should keep trying in areas.
And some of the obvious ones are things like international tax avoidance, climate change, some areas of the criminal law– they’re all areas where I think we could solve problems better if countries signed up to conventions and then had mechanisms for enforcing them.
NAHUM MUSHIN: It’s very difficult for people to completely avoid having contact with the law. Of course, to avoid the law or adverse contact with it– don’t break the law– that’s the obvious first thing. But there are times at which we simply cannot avoid that for the best of reasons. People who came before me didn’t ask to come before me. That came before me because they couldn’t resolve their disputes with regard to their children or their property arising out of the breakdown of their relationship. So it’s really not possible but the starting point, I think, is to obey the law.
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 life in Australia’s legal system.

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