LAWS1111 Law in Context: Justice and Injustice in Australia

LAWS1111 Law in Context: Justice and Injustice in Australia

LAWS1111 Law in Context Week 2: Justice & Injustice in Australia THE UNIVERSITY OF WESTERN AUSTRALIA WISDOM Associate Professor Fiona McGaughey (she/her)THE UNIVERSITY OF WESTERN AUSTRALIA

Acknowledgement of Country

The University of Western Australia acknowledges that its campus is situated on Noongar land, and that Noongar people remain the spiritual and cultural custodians of their land, and continue to practise their values, languages, beliefs and knowledge. Artist: Dr Richard Barry Walley OAM

Unit Progression

Law and Society

1. Introduction to law and society
2. Law and justice
3. Critical reading and writing
4. Law and social change
5. Law and social control

Law in Australia

1. The Australian legal system
2. Building blocks of law: legislation and case law
3. International law

Law in Context

1. Legal arguments in the real world
2. Internal and external perspectives on law
3. Special topic (TBC)
4. Essay feedback and exam preparation

Lecture Outline: Justice & Injustice in Australia

1. Concepts of Justice (a) Formal / Procedural Justice (b) Substantive Justice i. Justice as equality ii. Justice as desert iii. Justice as rights iv. John Rawls and the 'veil of ignorance'
2. Injustice (Content warning - distressing content on Aboriginal deaths in custody, mention of deceased person)
3. Miscarriages of Justice

Concepts of Justice

Formal / Procedural Justice

(1) Formal / Procedural Justice

Substantive Justice

(2)Substantive Justice

. Jennifer Greaney - the difficulty in defining "justice" speaks to the complexity and contingency of the concept.' . Two common frameworks - Formal / Procedural Justice and Substantive Justice. · Greaney: "Substantive justice" is concerned with the merits of a situation and whether the actual law and its outcome seem to be right. By contrast, "formal justice" is a narrower concept which focuses on rules and procedure - that is, if a known law is applied by an impartial tribunal in the same way to all people and according to agreed rules then it may be said to be "just". In other words, the focus of formal justice is not on the outcome but on the general characteristics of laws and the processes by which outcomes are achieved.

The Justice Project Final Report

THE JUSTICE PROJECT FINAL REPORT Overarching Themes August 2018

Concepts of Justice in the Justice Project

. Law Council of Australia, Justice Project - 'equality before the law and access to justice are fundamental to the rule of law'. · The report linked disadvantage and marginalisation with barriers to access to justice: The justice system is under-resourced and under extreme pressure, and consequently, many people are missing out on timely and effective help, increasing their risk and vulnerability. Under-resourcing places pressure on those who are the least empowered to act. Decades of inadequate government funding have led to a situation in which 14 per cent of the population live under the poverty line, yet legal aid representation is only available for eight per cent of Australians.

Conceptual Frameworks

Formal / Procedural Justice Framework

Formal / Procedural Perception of treatment during decision-making processes Closely linked to "due process" Following rules of procedure Properly applying the law Evidence people accept an adverse legal judgment relating to a law they do not support if processes are seen as fair and just

Substantive Justice Framework

Substantive Justice as equality Justice as desert ('retributive justice') Justice as entitlement/rights Not mutually exclusive

Formal / Procedural Justice (Fairness)

Procedural Fairness is: · A fair procedure for decision making is an important component of the rule of law. The common law recognises a duty to accord a person procedural fairness-a term often used interchangeably with natural justice-before a decision that affects them is made. Minister for Immigration and Border Protection v WZARH [2015] HCA 40 (4 November 2015) [30] (Kiefel, Bell and Keane JJ) Procedural fairness requires that: a decision- maker is impartial, and free from actual or apparent bias (the bias rule), a person whose interests will be affected by decision receives fair hearing, including the opportunity to respond to adverse material that could influence the decision (the hearing rule) O findings are based on evidence that is relevant and logically capable of supporting the findings made (the evidence rule).

Substantive Justice Concepts

Justice as Equality

· Justice as equality · Like cases treated alike · Equality unless significant and relevant difference · What differences are significant and relevant and justify different treatment? ' ... discrimination can arise just as readily from an act which treats as equals those who are different as it can from an act which treats differently persons whose circumstances are not materially different.' McHugh J, Waters v Public Transport Corporation (1991) 173 CLR 349 at 402.

Justice as Desert (Retributive Justice)

Substantive Justice Justice as desert People get what they deserve · Consideration in contract requires performance of other party · Punishment in proportion to harm caused and blameworthiness · Also known as 'retributive justice' Welcome to Karma Cafe. There are no menus. You will get served what you deserve. your Ce cards someecards.com

Justice as Recognising Rights

Substantive Justice · Justice as recognising rights . 17th & 18th centuries: natural law theory . revolutionary notion that people have "natural rights" to life, liberty and property · Contemporary idea of fundamental human rights . 19th century: rights derive from law · Legal positivism · Often associated with a strand of liberalism called utilitarianism . Bentham 'nonsense upon stilts' . "Many of the hard questions in law boil down to a conflict between the protection of individual rights and the promotion of collective utility or welfare" (Bottomley and Bronitt)

Justice as Recognising Rights: Deontological Liberalism

Substantive Justice Justice as recognising rights . Based on deontological liberalism ("deon" = duty) · Immanuel Kant 1724-1804 (Kantian Deontology) . Individuals are ends in themselves, not means to an end . Prioritises the right over the good . Idea that rights exist irrespective of the content of law · Neutral as to consequences of an act, but argues for actor's right to do the act 'Society ... is best arranged when it is governed by principles that do not themselves presuppose any particular conception of the good ... but rather that they conform to the concept of right, a moral category prior to the good and independent of it.' Sandel, 1998, p.1

Justice as Recognising Rights: Teleological Liberalism

Substantive Justice Justice as recognising rights . Based on teleological liberalism ("telos" = goal) . Acts are evaluated for their consequences for reaching the goal · Utilitarianism (Jeremy Bentham) . Good life = "one that promotes the greatest happiness for the greatest number" (Bottomley & Bronitt) . What is morally right = what maximises the "good", that is the happiness/pleasure of the majority" (Bottomley & Bronitt) · the greatest happiness for the greatest number . Individuals can be used as a means to an end

John Rawls' Theory of Justice

Substantive Justice . John Rawls - modern liberal philosopher · Theory of justice as equality - develops standard social contract theory by asking what contract would free, rational people concerned to further their own interests accept in an initial position of equality as defining the fundamental terms of their association. . How would people decide principles of justice for a society if they did not know what role they played in that society? · 'veil of ignorance' A THEORY OF JUSTICE REVISED EDITION

Rawls' Original Position and Veil of Ignorance

Substantive Justice Original Position, with the veil of ignorance - no one knows his place in society, his class position or social status, nor does anyone know his fortune in the distribution of natural assets and abilities, his intelligence, strength, and the like. - I shall even assume that the parties do not know their conceptions of the good or their special psychological propensities. - Rawls argued this would lead to principles that are fair to all A THEORY OF JUSTICE REVISED EDITION

Rawls' Two Principles of Justice

Substantive Justice According to Rawls this leads to two principles of justice: · Equal right to liberty . each person is to have an equal right to the most extensive basic liberty compatible with a similar liberty for others · Difference Principle . fair equality of opportunity · permit inequalities in distribution of goods only if those inequalities benefit worst-off members of society

Critique & Other Conceptual Frameworks

Social Justice and Liberalism

· Common discourse: 'social justice' rather than 'justice'. . The classic liberal definition of social justice frames it in terms of equal rights, the diminution of class privileges, the preservation of individual dignity, and the creation of equal opportunity (Reisch 2014). · Criticisms of liberalism include: emphasis on justice, way in which justice is conceptualised, primacy of individualism. . Some feminist critique argues that liberalism's individualism undermine the significance of structural inequalities.

Nussbaum's Critique of Rawls

Critique & other conceptual frameworks · Nussbaum points out that scholars such as Rawls overlook the issue of unequal power relations (Nussbaum, 2003). . She asserts that vulnerable populations cannot achieve their capabilities without expanding their power at the cost of those who currently hold power and that unless a society guarantees these capabilities to all citizens it cannot be considered just.

Human Rights and Cultural Relativism

· Associated concepts such as human rights have been criticised, e.g. the cultural relativism debate. (See: Jack Donnelly, 'The Relative Universality of Human Rights' (2007) 29(2) Human Rights Quarterly 281) · 'The universalising principle of western civilisation has always been to see its way as the only way and therefore the universal way' (Ziauddin Sardar, Postmodernism and the Other (Pluto Press, 1998) 68).

JOHNSON -V- WILLIAMS [2022] WASC 78

JOHNSON -V- WILLIAMS [2022] WASC 78 Justice Solomon · Appeal arising from a conviction under the Road Traffic Act 1974 (WA) by Mr Johnson - Indigenous man from remote Halls Creek in East Kimberly region. · "At one level ... it is just a case about one person's loss of a driver's licence. But in truth, it is about the unjustifiable and excessive use of executive power by the State against an Indigenous man living in one of the most remote regions in Australia, for whom the inability to drive a car, for the rest of his life, is a source of real hardship." . The State concedes that Mr Johnson suffered an injustice by imposition of permanent disqualification. · The dispute before the court is whether Mr Johnson should be permitted an extension of time to complain about the injustice ... the State is surprisingly indifferent to the gulf between life on St Georges Terrace and the Canning Stock Route.