During Law Week last week, Justice Paul Finn of the Federal Court delivered the Blackburn Lecture. It was a seminal essay on a significant change in the approach taken by Australian courts to the rights of individuals in the past decade or so. The law stands out in a fast-moving society as being quite slow moving, so it needs acute observation to detect trends. Justice Finn noted that the pervasiveness of state power was now so great that, in the relationship between the state and the citizen, the citizen was becoming far more vulnerable.
In this new relationship the question of individual rights is not so much one of ensuring that individuals can assert rights to do things, but to ensure that the state cannot oppress vulnerable individuals. He cited the case of the High Court ruling that the government must follow the spirit of international treaties it had signed and treat refugees with children in accordance with it. The case caused some controversy, with many commentators saying that Australia was being ruled by international bodies not elected by Australians. The court saw it differently. It thought that the government should not present one face to the international community yet deal with people on its own soil contrary to that.
Justice Finn pointed also to the courts requiring all government decision making to be done with procedural fairness as a matter of common law, rather than specific statute. And he pointed to several High Court cases demanding that police engage in proper procedures to protect people charged with offences against improper conviction. Once again, the courts are helping the vulnerable against the powerful. On one side is dependence, reliance and trust and on the other is position, aptitude or knowledge. Justice Finn sees the courts as becoming more protective of the vulnerable. In this he says that, while the law and morality are not synonymous, the law can evidence strong moral purpose and has been doing so with increasing vigour in the past decade or so.
If this has been the trend (and Justice Finn is fairly persuasive on this), the question remains about how pervasive in society general have this welcome trend become. One can easily point to a lucky few vulnerable litigants who have been fortunate enough to get their cases into a superior court, or even the High Court, which has protected them. But the balancing act pointed to by Justice Finn … where the powerful are ordered to more decent to the vulnerable … may not be the usual stuff of the law at the lower level, nor the usual stuff of executive action at the lower levels of the bureaucracy. At those levels the vulnerable remain vulnerable in an adversary system where the powerful with resources to hire and instruct high-priced lawyers can bleed out the vulnerable. In some levels of the bureaucracy those without persistence or who are inarticulate or not well connected can get trampled on.
The hope, though, should be that the respect for the vulnerable being showed in the higher courts will filter down. In Law Week, one might hope that the legal profession will ponder this. The real difficulty here, is not the courts’ lacking willingness to redress the balance against the vulnerable when the cases get before them, but the huge costs and delays in getting there that so often defeat the vulnerable.
As for the bureaucrats who exercise executive power, it may well be that they will become more responsive to the needs of the vulnerable as they experience extreme vulnerability themselves.