Brennan Justice Talks 2021 The Rule of Law

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okay does that indicate that it's recording on  your screen yep okay excellent all right Welcome  

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everyone to our third Justice Talks event for 2021  my name is Jane Wangman I'm one of I'm the Faculty  

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co-directors of the Brennan Justice and Leadership  program and I'm joined this evening by my two  

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other my law student co-directors Georgina Hedge  and Mac Middleton and I'm also joined by Crystal  

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McLaughlin our program administrator so welcome  all welcome to our Dean Professor Lesley Hitchens  

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other staff members alumni and all our Brennan  students and I'd particularly like to offer a very  

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warm welcome to our two guest speakers Professor  Fleur Johns from the University of New South Wales  

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and Associate Professor Karen O'Connell from UTS  before we begin tonight's event I'd like to invite  

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Georgina Hedge one of my co-directors to provide  the acknowledgement of country. Thanks Jane so  

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before we commence tonight's event i would like to  acknowledge the Wangal people of the Eora Nation  

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upon whose and ancestral lands i am zooming in  from tonight i would also like to pay respect to  

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the Gadigal people of the Eora Nation upon whose  ancestral lands our city campus now stands and  

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to any other indigenous lands you may be zooming  in from tonight i would also like to pay respect  

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to the elders both past and present acknowledging  them as the traditional custodians for this land  

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I would also like to welcome to any aboriginal and  Torres Strait Islander people who are present with  

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us this evening in light of the content of our  talk tonight it is important to acknowledge that  

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from the beginning of colonization and continuing  to the present day indigenous Australians have  

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never been afforded the protections promised  by the rule of law we encourage students to  

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consider the themes discussed in tonight's  talk in relation to the barriers Aboriginal  

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and Torres Strait Islander people continue  to face in relation to the rule of law

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Thank you Georgina I also pay my respects to the  traditional owners of the land in which I'm coming  

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to you from this evening which is the Gadigal  people of the Eora Nation so it's really fabulous  

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to see so many people interested in attending  tonight and actually coming along rule of law was  

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very much in the news in march when um there were  allegations that where former attorney general  

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christian porter faced allegations of sexual  assault um and it's great to see that this is  

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a continuing interest of topic uh continuing  interest to so many of our student community  

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with you all coming along this evening so before  we actually get into talking about there's just  

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a couple of housekeeping matters that i'd like  to deal with first and i'm sure by this stage  

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of the pandemic you're all quite well versed in  how zoom operates but please remember to keep  

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yourself on mute if you're not speaking if your  bandwidth allows it would be really great if you  

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could have your camera on particularly when you're  asking a question this does make it feel like a  

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more interactive event it's great for the speakers  to see some friendly faces but only do so if you  

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really feel comfortable doing so if you do have  your camera on and you find that it's starting  

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to freeze a bit you can just turn your camera  off and it should free up some bandwidth for you  

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finally for those students who are  participating in the brennan program  

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in order to get your five roj points please  just list your full name as it appears in  

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our uts systems in the chat box and our brennan  team will award you your points after the event  

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so as i said back in march rule of law was  raised by multiple commentators including  

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porter himself and the prime minister and a  wide variety of legal and non-legal commentators  

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these comments were made in a wide variety of  different forums so press conferences newspaper  

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articles opinion pieces blogs and social  media um in the advertising for this event

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uh you had um this diagram which i've now  reproduced on this slide and it tries to  

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capture some of the variation about the way in  which people were talking about rule of law what  

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they thought it meant how they were invoking it in  what kind of legal or political context on the 6th  

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of april this year chief justice tom bathust of  the supreme court of new south wales gave a speech  

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to the new south wales district court annual  conference and he also spoke about rule of law  

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i'm going to quote a couple of passages from  his speech because i think it kind of captures  

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the impetus for this event so he said i have been  troubled by the discourse around the rule of law  

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playing out amongst politicians the media and the  public what has become clear to me is that there  

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are profound misunderstandings about what the  rule of law actually is and about the practical  

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consequences of living in a society underpinned by  a belief in the rule of law upholding the rule of  

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law has become the argument in vogue to justify  a range of divergent positions on current issues  

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what we find then is that one of our current  challenges to the rule of law is a lack of public  

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understanding as to what it really means we must  remember that the rule of law is such a powerful  

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rhetorical weapon both in legal and political  argument that care is needed in its deployment  

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so it was in this context of these mixed  discussions and the need for informed ones  

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that two pieces sparked my interest in bringing  together speakers who could engage in some of  

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these conflicts discussions the first was  a piece by professor fleur johns and martin  

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greer in the monthly magazine and the  second was a piece by karen o'connell  

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with liam elfic from monash that was published  in the guardian and so this is tonight's event  

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this justice talk event is slightly different  to some the format for some of our previous ones  

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both fleur and karen will speak briefly to the  concerns that they have raised in their paces  

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after which we will open the floor to questions  you're very welcome to post questions in the  

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chat box as people are talking which will be  monitored by georgina hedge one of my co-directors  

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or you can ask questions live over zoom in in the  question time and we actually do really encourage  

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you to do so because the main intention of  this justice talk event is to have this kind  

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of interactive informal discussion so that's  enough of me talking so now it's my pleasure to  

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introduce our first speaker so our first speaker  is professor fleur jones from the faculty of law  

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and justice at the university of new south wales  she works in the areas of public international law  

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legal theory law and development law and society  or sociolegal studies and law and technology  

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fleur studies emergent patterns of governance  on the global plane and their social political  

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and economic implications employing an  interdisciplinary approach that draws  

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on the social sciences and humanities and  combines the study of public and private law  

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welcome fleur thank you so much and thank you  to you and to crystal and georgina and mac and  

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of course to karen um for the invitation and the  opportunity to have this conversation i'm really  

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looking forward to particularly the question to  answer um around this because um yeah lots to say  

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um but let me briefly uh open by just uh restating  for the benefit of those who haven't had a chance  

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to read the piece in the monthly something of  what martin krieger and i were arguing um and  

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i'll just remind everyone of um of the kind of  moment that we were speaking to and i should say  

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martin krieger who i with whom i wrote this piece  is someone who has thought about and written about  

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the rule of law um for almost his whole academic  lives so if you are interested in the subject i  

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would definitely commend his writings on this for  a much juicier and more um sustained engagement  

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with the topic but as you know as law students  it's a uh the rule of law is a tremendously  

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nebulous um but nonetheless meaningful concept  something that can sometimes seem a bit apple  

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pie so it was kind of interesting to see it become  so charged and conflict-riddled at this moment um  

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as you know also there's an immense amount of of  investment in this concept in legal and political  

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argument and vast amounts of money invested around  the world in so-called rule of law programs that  

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cover all sorts of things like police training  judicial training constitutional and legal reform  

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so it's a really material concept that does a lot  of work and moves a lot of resources in the world  

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but it is nonetheless i think uh martin i would  agree with martin in his work when he talks about  

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it as an ideal that's really always imperfectly  realized in practice and that ideal is we argued  

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basically concerned with tempering arbitrary power  um and with keeping at bay possible alternatives  

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to the rule of law namely the rule of people that  is the particular people who happen to be in power  

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at the at a particular time and their whims  or beliefs or opinions or um biases um or  

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a rule of faith it's a secular concept as well so  um the rule of law is concerned with opposing and  

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keeping at bay those alternative forms of rule  or authority so it implies subjection to a set  

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of secular institutions and procedures that are  known to all and operative in a broadly roughly  

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predictable and consistent way so as you know  just recapping at the basics all sorts of rules  

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and institutional design features can be traceable  to the rule of law to enter all of law concerns  

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which is why it was strange to see given this very  specific content in um by the the prime minister  

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um but it's commonly taken to encompass equality  for all before the law the independence and the  

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accessibility of laws and legal processes and  the protection of certain individual rights  

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and liberties including the right not to be  punished except by due process of law which in  

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turn encompasses uh notions like the presumption  of innocence and the right to information about  

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the allegations that one is called to answer so  remembering as jane has that moment when everyone  

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seemed to be talking about the rule of law  particularly the prime minister um in this very um  

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defensive way arguing that's to subject christian  porter the former attorney general to alex um  

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to or the allegations against christian  porter to any kind of inquiry or investigation  

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other than a police investigation would be  in violation of the rule of law it was said  

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because it would subjected him to some special  additional um process or more stringent second  

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layer of scrutiny beyond what most people  would uh ordinarily be subject to that  

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was the more or less the argument and thereby  will roll back his uh presumption of innocence  

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and martin and i argued feeling quite riled up  about this um that um it was exactly the opposite  

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that in fact it would be not only was it incorrect  to view the rule of law as requiring allegations  

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that potentially found criminal liability to  proceed along this singular path and no other path  

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not only was that incorrect in ways that we point  out in the piece and that karen also alludes to  

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given that people are very routinely called to  answer allegations that could potentially found  

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criminal liability under workplace investigations  occupational health and safety human rights  

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commission conciliation licensing and professional  standards boards all sorts of bodies commonly deal  

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with allegations that could potentially found  criminal liability um and deal with them in ways  

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that are designed to be protective of individual  rights and liabilities often although albeit under  

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a different standard of proof to the criminal  standard of proof so everyone else is subject to  

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these multiple routes for potentially subject to  these multiple routes of investigation and inquiry  

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um and so we argued that not only was it  incorrect to say that there was this single route  

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but it would actually be inconsistent with  the rule of law to insulate christian porter  

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from any additional inquiry simply by reason  of the fact that the police route was for  

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foreclosed for reasons beyond anyone's control  the fact that the complainant or the alleged  

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victim was dead and had not and a full statement  had not been given before her tragic death um  

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and um and that it would be therefore inconsistent  with the rule of law to exercise an arbitrary  

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a protective power to insulate him from any  additional investigation merely because the prime  

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minister believed his allegations um or because  he had been subject to undoubtedly distressing  

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coverage in the media and that that we argued  would be the arbitrary exercise of that would  

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constitute an arbitrary exercise of power uh  precisely the kind that the rule of law is  

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designed to counter and it would be inconsistent  also with the routine expectation that people  

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who have great power over others such as an  attorney general or indeed any legal professional  

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be held to slightly higher standards than most  people as we are as lawyers before professional  

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standards boards um so there were two aspects to  that it would be arbitrary but also it would be  

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inconsistent with the expectation that people in  those particular positions be demonstrated to be  

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fit and proper in order to ensure that the public  in um confidence in in this case the legal system  

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but in other cases say the health system but when  you're talking about medical professionals um be  

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retained um and in the piece we also mentioned um  pending changes to the migration and citizenship  

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legislation amendment uh sorry the migration  and citizenship legislation amendment bill  

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um as an example of a current piece of legislation  in relation to which rule of law concerns were  

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being raised which we saw as a really powerful  counterpoint and an illustration of a very genuine  

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and serious rule of law concern being raised  by the government's actions in that case um the  

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prospect of people whose visas might be cancelled  or passports might be withdrawn not having access  

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to information about the basis for the decisions  against them so the paradox was the government was  

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championing the rule of law in one instance and  then very clearly um threatening it in a second  

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at the same time so that was the cause of our  anger i'd really be interested to hear among  

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what any reactions but also what you  think the public understood for the rule  

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understands of the rule of law um and also  what your reactions were to its mobilization  

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in these ways but that's enough for me now i'd  like to hear more from you and also from karen

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thanks so much fleur that was a really good  capture of some of the tensions and i guess  

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different positions that were coming through at  the time um and and i found the migration example  

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really powerful in your piece of work anyhow now  we're going to keep the questions all to the end  

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so now i'm going to introduce our second  speaker who is karen o'connell she's an  

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associate professor from the faculty of law here  at uts karen is an expert in discrimination law  

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particularly sex and disability discrimination  sexual harassment and gender equality  

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she has worked for over 20 years on equality  law and policy reform and advises public and  

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private organizations on equality issues her  current research is on intersectional sexual  

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harassment and gender inequality as a public  health issue welcome karen thank you so much jane  

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and thanks to everyone in the brennan program for  the invitation um it's a wonderful opportunity to  

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um exercise my thoughts about this again because  like fleur i was really frustrated by this debate  

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when it first took place um leah melvik who was  my co-author um for the guardian piece uh that you  

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were given to read um and i are both equality  law scholars as jane said um and in that role  

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you know in that role as equality scholars we see  all the time that great injustices are compatible  

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with a legal system that purports to be based  on the rule of law so we know that the rule of  

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law in itself uh doesn't provide automatically  justice outcomes and it was very frustrating  

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seeing that in part because this concept as fleur  has said is both ubiquitous but also elusive it  

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can be used in ways uh that are uh have have a  lot of force and power politically and socially  

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but in fact look like a misuse of power so  it's it's ironic that this concept which is  

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supposed to be all about holding power to account  can actually be used rhetorically for the reverse  

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so in this case one of the issues that i found  most frustrating was that uh when the prime  

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minister made comments and the former attorney  general made comments about the rule of law  

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they were talking as if allegations of sexual  violence could only be dealt with in the criminal  

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law and as fleur has said that is a very very  narrow understanding of what uh the the full  

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legal system response is or can be to um to such  allegations so i felt at the time that it was very  

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uh inadequate that this debate was taking place  against a backdrop of a really great injustice  

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which is the inability of our legal system to deal  adequately with gender-based sexual violence we  

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know that the criminal law is a terrible tool  for dealing with sexual violence by the mere uh  

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the the extent of the problem and the very  uh inadequate response of the criminal law  

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in terms of ever really providing um remedies to  people or in fact justice to people who have had  

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such experiences so um without acknowledging that  and with that sort of approach at the time of well  

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if we can't have a police prosecution here there's  nothing to see there's nothing to be done we just  

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have to leave it also seem to me to be um building  towards another injustice which is a traditional  

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um lack of visibility for gender-based harm in  our legal system there's been a long history  

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that these sorts of harms are just not seen and  not dealt with so hearing that rhetoric around  

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and and seeing rule of law be used to that end was  particularly frustrating now i think that raises  

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another point which is what the relationship of  justice is to the rule of law for some people the  

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rule of law is a formalistic thing and as long  as you have certain uh rules in place that is  

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the extent of the rule of law but for others of us  um and i would think most people who work in areas  

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that deal with equality and inequality uh if you  just focus on a framework and not on content that  

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is how those injustices can be perpetuated um and  so that leads me to a kind of third point which is  

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uh how we actually get to whether we consider  the rule of law to have to necessarily have  

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um a content that addresses justice or whether  having the formalistic rules in itself is enough  

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um and what i would argue there is that if  we take an approach to the rule of law where  

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it can just be used as this rhetorical device it  doesn't have to account for historical injustices  

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and it doesn't have to have a content that  deals with social justice it can actually  

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become a vehicle of injustice rather than  what it is traditionally seen as which is  

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a fundamental pillar of social justice so what do  we do about this i mean this is what i'm hoping we  

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can talk about a bit more together what i would  suggest is something an approach that i'd really  

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take from um feminist legal theory i don't know if  anyone has written it in exactly this way but over  

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many years of reading it what i have taken from  it are two questions that i always ask myself  

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about such principles one is what is this in this  case the rule of law what is this embedded in  

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and what has been left out now georgina in her  acknowledgment of country mentioned indigenous  

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the injustice has done to indigenous people  and i think we could ask the same question here  

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but let if we consider these two questions what  is the rule of law embedded in in australia it is  

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still currently embedded in a system that permits  the most egregious forms of violence to persist  

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against women without remedying them and what is  left out it's a tradition where that developed the  

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rule of law developed and is a tradition that is  built out of a legal system that left out women's  

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perspectives and also indigenous peoples and  many other groups so i think with given those two  

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uh serious injustices what we need to do is expose  the rule of law to discussion um and consider it  

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again and think of it in this contemporary light  and think of it with the people who've been left  

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out at the center instead of the margins and  that's what i see us doing here today thanks

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thanks so much karen um so both you and flo have  raised so many interesting points and i really  

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like your call at the end to expose some light on  really sort of unpacking um what we mean by it and  

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who has been indeed left out and where the focus  has been in some of the discussions around this so  

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this is actually now our time to open up to really  try to enrich some of this discussion so georgina  

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is going to facilitate some of the questions so  people we are very well we very much encourage  

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people to ask the questions in person but i know  that many people have already been typing away  

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madly in the chat function so there's lots of  questions there already yeah yeah you might want  

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to start us off amazing thank you so much jane so  um before we get started i can see as jane said  

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the chat is absolutely flooding with questions but  we might open up the floor in case anyone wants to  

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ask a live zoom question before we get into just  me repeating the questions out of the chat so if  

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anyone wants to unmute themselves um nothing  to be afraid of i'm sure laura and karen would  

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be happy to answer your questions um and we'd  really encourage that and we're not scary at all

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anyone um i'm happy to have a question  oh sorry i'm sorry you go if you like  

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no you you go i can wait okay um this question  was more for karen i was just wondering how the  

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civil law system should be equipped to handle  sexual assault matters without re-traumatizing  

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the victims because this is so often the case  when these matters are go to a criminal trial  

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something that you alluded to before um well  that's a very good question i one thing i want  

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to make very clear when i wrote this article there  it was a newspaper piece and very brief so um one  

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thing i couldn't really address fully is the civil  law system is also pretty terrible at dealing with  

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sexual violence um i think the the one benefit  it has is it doesn't have that incredibly onerous  

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burden of proof that the criminal law has  and it doesn't have some of the systemic  

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policing and other you know issues structural  issues so it has some benefits um i don't  

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know that you can have a legal system that  guarantees that there is no further trauma  

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for a person bringing a case before it at  least not the legal system that we have now  

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um i think that is is a is a big and a very  valid question um i i think that though that  

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some of those systemic problems and structural  problems that exist in in the criminal law um  

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are just so traumatizing because we know from the  figures that we've got that so few people succeed  

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in i mean it's obviously cases are not brought by  the individual in the criminal law they're brought  

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by police but um one of the issues there is  that when we have someone found not found guilty  

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in something like a sexual assault case that is  read as that didn't happen and i think that where  

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we use the criminal law or even the civil law as  our as and read that as a determination of truth  

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um that that in itself is a really traumatizing  thing so i think there is so many elements that  

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can be traumatizing in the system that there's no  one simple answer to that i'm afraid thanks karen

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um I'm happy to go so my name's charlotte

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if you're not asking a question, yeah I've muted  oh okay thanks for watching i don't know how to  

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sorry charlotte keep going oh that's all right  um it happens um so yeah I'm a student at uts  

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and i'm also a sexual assault survivor um and  everything you're saying about um just like what  

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you just said uh Karen about like you can't have  a legal system that guarantees no further trauma  

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um you know that's definitely something me and  like I'm not the only survivor in my family  

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unfortunately like that is something every  single woman in my family has had to weigh up  

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um like almost like we try to go the police  for justice and potentially be more traumatized  

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or do we not get justice but don't get  traumatized so i guess um my question is like  

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what are the options for survivors  because it feels like a double-edged sword

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can I answer that one jane or  fleur did you want to answer

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okay all right um thanks um charlotte i mean i  what i would say first off is that law is just  

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one means of response one of the things  that i think is is also really important  

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is having some other form of acknowledgement  socially and historically for experiences that  

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people have had so you know there's a lot more  interest now in restorative processes having means  

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of people speaking up because i think another sort  of feminist principle is that you go you listen to  

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what people are saying they want when you develop  your legal um you know your legal avenues and and  

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your remedies and i don't think we've done that  with women at all so in the main area of mind  

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sexual harassment uh women often end up going  through procedures that they never had any  

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interest in going through and is not getting  them a remedy that is the remedy they want  

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so um i think that we if we could start from  scratch we need to go back to what people are  

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saying they want to remedy their harm and  build our responses out of that we can do  

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that to some limited degree when we do law reform  but it's it is a bigger picture what i would like  

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from the kind of australian public is that  acknowledgement that if someone isn't successful  

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in a criminal case or even in a civil case that  is a legal determination of truth it is not a  

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social or moral determination of truth and i think  that is really important so that people can be  

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listened to and respected even if  their cases don't succeed in law

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just to add i guess just to say something to i  think that complements what karen just said um and  

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i'm sorry that you've had that dreadful experience  and your family has had that experience charlotte  

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um the very things that are designed to temper  arbitrary power the very features of the rule of  

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law that um are designed to create the sense that  we are subject to a form of authority that's apart  

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from the human that's apart from the humans around  us that's somehow systemic and self-sustaining  

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so the very qualities that are designed to produce  that experience the translation of everything into  

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a standard language set of languages the  procedural consistent standardization um  

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all these um features of the rule of law that have  been so central to modernity and to the capitalist  

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system you know this is max survivor is key to  understanding the way in which this has been key  

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to the the development of the modern state and the  modern economy so all these features um they have  

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some benefits which have can be you know pointed  to historically to temper certain types of power  

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certain types of excess and abuse of power but  they also come at a very significant cost in terms  

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of the um the loss that is um occasioned by that  translation and that standardization that kind of  

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automaticity um that in and that experience is one  of not really being spoken to by another human but  

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being speaking spoken to or seen by a system you  know so by its nature it creates this experience  

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of not being heard in a way even though it's  designed to deliver justice because it's not meant  

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to be experienced as the voice of a single person  actually hearing and speaking to you so i think  

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as karen said that the system requires continual  supplementation by other forms of truth-telling  

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other forms of knowledge making um you know  narrative forms fiction art um all sorts of other  

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forms of law including first nations laws which  have other forms of truth-telling other forms of  

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administration of justice we can't just um  you know have a this single monopoly because  

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of the very significant costs that are built  into the benefits of the system um as it were

31:13

great so thank you so much  karen and fleur if anyone else  

31:17

doesn't have a live question  i can move to the chat box

31:23

if anyone wants to speak out

31:30

no okay well we can we're lucky that we have  quite a few questions coming in from the chat  

31:34

box so our discussion doesn't end here so we had  a question from georgia in the chat that says  

31:41

how can we say that we have a rule of law in  this country when we still have exceptions  

31:45

to sexual discrimination laws which presently  render members of parliament judges and public  

31:50

servants less accountable than other professions  for harassing colleagues in the workplace  

31:56

so you can open that up to either kepler or karen

32:02

you want to take that first character yes i will  

32:06

um well again that's an excellent question um i  uh the issue there um in our sex discrimination  

32:15

act our federal sex discrimination act we we had  just quite a narrow definition of what a workplace  

32:21

participant was for the purposes of the sex  discrimination act and therefore sexual harassment  

32:28

as well um so you know they were left out in a way  almost indirectly so i i'm not sure that there was  

32:36

an intention there but certainly it's true that uh  what we have seen evidence of this year and last  

32:43

year is that some of the people in our system with  the most power are actually the least accountable  

32:50

um and not only that but we didn't know i mean  we just again that uh invisible nature of so  

32:57

much of this harm meant that there are so many  barriers to people speaking up and being heard  

33:03

that it was hidden for decades uh some of these  behaviors um so i think that is a very good  

33:10

question if you've got a system where people  in practice aren't held accountable and where  

33:17

we didn't really know that that gap in the law  mattered so much because the problem was hidden  

33:23

then we have a system where people in  power actually aren't being held to account

33:33

um flow did you want to add anything there or  i can i couldn't add anything okay great so  

33:42

we can move on if um and if anyone wants to jump  in and ask a live question please feel free it's  

33:47

fine to interrupt me so we had a few good comments  um reese commented that i find it intriguing that  

33:52

the parliament is hasty to enact law reform that  direct directly implicates the parliament and he  

33:58

also commented that was still waiting 30 years for  impactful change in law reform following the royal  

34:02

commission into aboriginal deaths in custody so  that was another good observation from the chat  

34:07

box so rafaela had a question um i think this  was related to what karen was talking about  

34:13

and she asked if she you could please elaborate a  bit more on the rule of law specifically relating  

34:19

to the immigration amendment bill i'm not  sure if that was from karen or fleur but  

34:23

if we could just get that once blair wanted  to take that thank you that my colleagues in  

34:29

the calder center from central refugee law have  written extensively about so um i would commend  

34:35

their press material and also their submissions  on this which are all available on their website  

34:42

but my understanding not being a specialist in  the area is that the legislation the bill um  

34:48

under the rubric of um counter-terrorism  um withdraws or doesn't guarantee  

34:57

um access to information for people who are  facing visa cancellation um or withdrawal of  

35:06

passports uh withdrawal of citizenship sorry um  on on character grounds so the idea is to preserve  

35:14

the the on counter because of sort of national  security concerns preserve the state's capacity to  

35:23

withdraw um citizenship or council visas uh  without disclosing in any form to anyone uh on  

35:31

this um on the side of the um the person affected  um not to them or their legal representatives the  

35:41

grounds for doing so so that creates a situation  where the person is facing life-changing changes  

35:47

in their legal status and has no prospect of being  able to answer or verify or test the um basis for  

35:56

that decision and so um the concerns raised which  are much more rigorous and detailed than i've just  

36:03

summarized there by my colleagues at the calder  center were really framed around this is a core  

36:08

rule of law concern this is exactly what we  should be arguing about when we argue about  

36:13

the rule of law that the most vulnerable people  in our society in many cases obviously people  

36:18

on visas um being more vulnerable than those who  have permanent legal status but even people with  

36:24

citizenship um being often racialized communities  um uh facing the prospect of these kinds of  

36:33

faceless informationless blank decisions  that they have no prospect of answering  

36:37

um is really inconsistent with any claim to be a  system governed by the rule of law um so it was  

36:45

it wasn't a detailed exposition in the paper  it was really just a contrast to be drawn  

36:52

and a kind of redirection of attention  let's not talk about let's not worry  

36:57

so much about christian porter obviously  that we want to ensure that he has access  

37:02

to information has legal defense and so  forth in any proceeding or investigation  

37:06

to which he is subject but he's um hardly  the most vulnerable member of society

37:15

yeah thank you and i think that leads nicely  on to another question that rafaela had  

37:20

where she asked can the rule of law actually  be enforced for members of parliament  

37:24

as and she clarified this by saying as we can  see that there is an implicit breach of rule  

37:29

of law by people like christian porter um is  there a way for this to be dealt with legally

37:37

uh well i i teach constitutional law and for  those of you who have already done constitutional  

37:44

law you'll see you know our system is based  fundamentally on the idea that we can vote people  

37:49

out i mean it's really that idea of you know  representative government and and also responsible  

37:57

government where um ministers are answerable to  parliament and then parliament is answerable to  

38:04

the people means that we are supposed to have  the ultimate power to vote people in or out  

38:10

i have never found that satisfying when i  am when i talk to my students and teach it  

38:16

for so many reasons but let me just give a  couple um it it assumes that a single issue  

38:23

however egregious and uh you know problematic it  might be for you at that time is then going to  

38:30

be the basis of you voting years later it also  assumes that you have a full choice a range of  

38:39

views that you can choose between which we know is  not true in what's effectively a two-party system  

38:45

where views can be very similar and certainly  the two parties we have have both really  

38:53

carried out some fairly appalling practices human  rights practices in relation to asylum seekers to  

39:00

give one example so that is what is supposed to  be ultimately the protection um against abuse of  

39:07

power um for members of parliament um that they  exist there just at our with our authority but of  

39:18

course in practice i think that is a very blunt  tool to respond to issues in a political cycle

39:29

amazing um so uh we've got a question from  shira who asked what happens to the rule of  

39:36

law in cases of ministerial intervention  or discretion when the ministers refuse  

39:42

to intervene or exercise discretion doesn't  that give the minister so much power without  

39:46

checks and balances that they are really above  the law so everyone wants to take the floor for  

39:52

that one maybe flow if you wanted to comment  yeah well i mean in general terms i guess we  

39:57

look to administrative law to um regulate that  kind of power um but of course that doesn't  

40:04

eliminate or cabin all forms of discretion  within the law i would argue that discretion  

40:09

is ubiquitous within the legal system that there's  always just political decision-making going on  

40:16

um in every in every form of exercise of  legal authority um so the rule of law doesn't  

40:25

doesn't um doesn't eliminate doesn't even  aspire to really eliminate discretion what  

40:33

it does is kind of force discretion that's why um  i like martin's use of the word temper it kind of  

40:39

it alloys discretion or alloys political choice  with these particular sets of procedures and  

40:46

rituals and institutional practices which um  give us ideally the opportunity to uh confront  

40:56

or challenge or question so we would typically  in that instance look to administrative law  

41:02

um to in in under certain circumstances to  challenge either an exercise of discretion  

41:09

or a failure to exercise discretion  where um administrative law requires it  

41:15

of course that doesn't mean that all um instances  uh it would be uh the type of scenario you're  

41:22

describing could be litigated or um or even uh  questioned on administrative law grounds but um  

41:29

it's really it's really that alloying  or the channeling of discretion through  

41:36

rituals or practices or institutions  which are designed to present  

41:40

at least the possibility of confronting it with  an alternative view or a question or a challenge  

41:46

which is which is characteristic of the rule of  law rather than the elimination of discretion

41:54

great thank you so much fleur so that works  well because now we have a specific question for  

41:59

karen from ella do you think expanding  sexual harassment claims through the  

42:04

sex discrimination act as proposed by the  morrison government is the best way forward  

42:09

or do you think we should be broadening the  tort of battery and assault to capture this  

42:15

uh well i don't think it's the best way forward  but i also think that expanding the tour probably  

42:21

also isn't the way forward um so what i and this  raises another question about the rule of law as  

42:27

well which is is it about protecting individuals  uh often the rule of law is raised where there  

42:34

has been um arguably an injustice you know maybe  a procedural injustice for an individual um and i  

42:41

would argue that we really if we want justice to  be done we need to think much more collectively  

42:46

than our legal system generally does so if we want  to prevent sexual harassment and other kinds of  

42:53

gendered harms i think we need to look at things  much more broadly and as a group experience  

43:01

however much you strengthen individual  actions under the sex discrimination  

43:06

act it's never going to be enough it's never  going to change things enough what i argue for  

43:12

instead is what's called positive duties  where there is actually you actually look  

43:16

at environments or institutions as a whole and  you create an obligation to have a positive  

43:23

environment in in those arenas so the people  who have control over those institutions or  

43:30

environments have a an obligation to prevent harm  within them to me regulatory models and positive  

43:38

duty models have got a lot more promise  than anything that requires an individual  

43:43

particularly an individual who is already harmed  possibly already traumatized to take on a system  

43:49

that is hostile and work their way through it and  somehow overcome some of those systemic problems  

43:56

uh as an individual i think that's another uh kind  of harm then on that person and it and it's to me  

44:03

it's never going to solve these  really broad issues and problems

44:11

thank you so much so our next question is a bit  more general um from kamini she asks would it be  

44:19

fair to say that the problem isn't actually the  law itself but rather the people who administer  

44:25

or don't administer it so i think both  flora karen could speak to this one

44:31

maybe i'll start that's it's a really interesting  question because it kind of performs an experience  

44:37

of living in a in a under a rule of law because  that's exactly the kind of um experience that  

44:44

we're meant to have in a rule of all system  which is that the system is somehow um uh  

44:51

durable and any problems with it should be  rectified by reforming and working on the system  

44:59

um but you should but somehow the the system as  a whole is beyond question so when it doesn't  

45:05

work or when it's unjust it's because it's  been improperly um mobilized in a particular  

45:11

instance or there's been some perversion of it  by particular people within a system and lots of  

45:17

institutions work on this on this sort of um logic  and it's not inherently bad and in fact it's there  

45:27

are lots of reasons why we might think that's  really valuable as i was trying to suggest earlier  

45:32

that and preferable to other forms of authority  or other forms of rule that it's designed to  

45:38

counter there's something um very powerful about  a diffuse collective investment in this collective  

45:46

work product that is the this system that's  defensive of the rule of law but there is a  

45:52

big problem with that style of thinking which  is that um it directs us towards continually  

45:58

tinkering around the edges so or focusing on  the individual instances of bad behavior or  

46:04

um injustice as perversions as problems that are  incidental to the whole system somehow the system  

46:10

itself is beyond question and so it has a kind  of conservative effect which is that the status  

46:16

quo needs to remain in place and we can only ever  just tinker around the system and the problem is  

46:22

we know from all sorts of experiences throughout  history that large institutions can become  

46:29

manifestly unjust in all sorts of like um we  can think of um this is these large institutions  

46:36

that propagated the conquest of first nations  land and the stolen generation and so forth  

46:41

these large institutions which were well-meaning  and for their purposes well designed and yet  

46:48

propagated incredible violence and devastation  which we which people live with today so  

46:54

i think there's a problem with thinking with  saying it's only ever the particular people  

46:58

administering the rule of law at the relevant  time that are at fault i think we need to  

47:02

keep alive the prospect that there is something  central to the whole system that is also worthy  

47:09

of questioning and working on and that systems  do and have changed in really dramatic ways we  

47:16

do and have redesigned systems from the ground  up and that that should still be on the table  

47:22

even at this moment um that we can't just say  because this has been something we've built on  

47:29

worked on for a long time and we've lived with  for many centuries and it's done a lot of good  

47:34

that we can't challenge the overall  system i think that is um a problem

47:41

uh that's really interesting flow and i just  want to pick up um fleur's talking about a system  

47:47

because i think when we talk about a system it's  interesting to think about what we mean by that  

47:52

and what i would invite law students to do because  i think we still tend to think of law as a thing  

47:59

so even when we're talking about it as a system we  often think of it as some sort of system that is a  

48:05

kind of entity in its own and i would just invite  you to think about it as a as an ecosystem that  

48:12

we are living in so that when we change elements  of it we are also impacting on it ourselves you  

48:19

know every element is interconnected so we can't  just find say the perfect law and then have an a  

48:26

direct outcome because it is all filtered through  every other element that's in that ecosystem  

48:33

so to me it's not about just a problem with the  law and it's not just a problem with the people  

48:38

who administer it but those are two elements  within an ecosystem as as someone who works in  

48:44

law reform a lot i am often trying to think of how  you could word a law to have a particular outcome  

48:51

but you can look at sections that are written in  some of the laws that i work most closely with  

48:57

and i couldn't think of a better way to write  them except that they just it don't work you  

49:02

just cannot get them to be applied and you cannot  get them to work within the system so in that  

49:08

case the problem isn't the law it's some other  element and i just think there's no way around  

49:13

thinking of all of these elements as operating on  each other and influencing each other it makes it  

49:19

much more complex to achieve social justice and to  think about how you use law reform for that but i  

49:26

wouldn't say that means it's not possible at all  it just means it's more complex and you will never  

49:31

just have argue for say oh let's change this law  to say x and be guaranteed of a particular outcome

49:41

amazing thank you so much so  i think we might have time for  

49:45

like a couple more questions so  georgia asks do you believe that  

49:50

the rule of law is better upheld under an  inquisitorial or adversarial system of trial

50:00

so now i'm going to let you answer that one  yeah well i've never lived large swathes of my  

50:06

life under um a civil law system in a civil law  system so i'm definitely more familiar with the  

50:14

um adversarial system but i i certainly don't have  

50:18

the view that um a civil law system or more  inquisitorial system is in itself somehow inferior  

50:26

um or less able to deliver on the ideal or aspire  to deliver on the ideal of the rule of law than  

50:34

an adversarial system um and it's interesting to  look at the i don't know if anyone's read the um  

50:39

i teach the cases around the extradition of  julian assange and the way in which the british  

50:46

courts were kind of horrified by certain aspects  of the swedish criminal justice system in ways  

50:52

that seemed very parochial and sort of very much  um the distrust of the civil law system and the  

50:59

more investigative inquisitorial system was really  manifest in the british courts in that instance  

51:04

um and so it's interesting to think of how we  react to that which with with which we're less  

51:12

familiar to need to be suspicious um when perhaps  we should be equally suspicious of our own system

51:23

great so i think um we've got one last  question which might be a nice way to wrap  

51:28

off our question portion is from rafaela  and she asks is there any literature that  

51:33

you would recommend that discusses the  theory and practicality of the rule of  

51:37

law apart from both of your great articles  is anything else that you would recommend

51:45

fleur does anything come immediately to mind for  you because i i can think of a hundred and none  

51:52

i mean there's so many um and a lot of  what i have engaged with and read is  

51:59

concerned actually with a different context  to this one not really with australian law  

52:02

but more around the development context  and the kind of struggles that occur  

52:07

um when countries um deliver aid under the rubric  of improving the rule of law in another system  

52:14

um which is you know always fraught and  difficult but i i would commend martin  

52:19

krieger's writing and maybe i'll follow up with  a particular piece in which he kind of restates  

52:24

some things he's obviously written lots and  lots on this but there's one particular essay  

52:29

that i think might be a nice encapsulation of some  of his ideas he's um working worked through these  

52:36

in the context of coming to terms with the um  post-communist transition in eastern europe so his  

52:42

his work is very much informed by the empirical  experience of transitioning from communist power  

52:50

to a democratic system and thinking about  what um that entails and and how that might be  

52:58

achieved obviously he doesn't suggest that it  has been achieved uh with any perfection but  

53:03

it's sort of it is impera empirically and  historically grounded so it's interesting  

53:07

in that respect that it's a contemplation at the  level of theory that is very much informed by that  

53:13

historical experience um so i'll maybe i'll follow  up with an email to i'll send it to jane and  

53:19

georgina and mac um and crystal and  maybe it could be circulated afterwards  

53:26

yes and i would add there too that my thinking  about the rule of law has been more or less in  

53:31

opposition to what i've read about it rather  than um in harmony with it so for that reason  

53:37

i don't really want to recommend the pieces  that i informed my opinions in relation to  

53:43

but being an equality scholar has very much shaped  some of my critique of the rule of law and that is  

53:50

looking at um substance over form looking at um  what the outcome of something is rather than what  

53:58

the process is and looking at the collective over  the individual because those choices all take you  

54:04

in a very different direction than traditional  um philosophy of law including the kind of thin  

54:11

or formalistic interpretations of the rule of law  and for that i think i would recommend and commend  

54:17

the scholar margaret thornton at anu who like i  said she writes outside of this particular direct  

54:26

field but very much in terms of those themes  um so i would recommend her and a whole lot of  

54:35

other critical philosophy that um might be a bit  tangential so i might leave in case but anyone can  

54:42

let me know if they're interested and also you can  do my discrimination law subject and then i will  

54:47

you'll get all the readings in class that's  my advantage overflow one other thing i was  

54:53

thinking that are recommending which um yeah it's  about it's a kind of reflection on legal education  

54:59

and what happens to our thinking and our politics  when we imbibe the values of the rule of law so  

55:05

that might be interesting not everyone will love  it um because it comes from a particular political  

55:10

tradition but everyone will react to it um  it's it's an old short piece shortage piece  

55:16

called um the reproduction uh legal education  the reproduction of hierarchy by duncan kennedy  

55:22

i'll send that around as well because it it does  encourage you to kind of think about yourselves as  

55:27

law students what you gain and what you lose when  you learn to speak and think and work in a legal  

55:36

mode in in a mode that um defends and upholds  the rule of law obviously there's lots of great  

55:42

things about that but there's also some um things  to think about critically um that sounds great so  

55:50

okay so i think that'll wrap up our question  portion thanks so much to everyone who asked both  

55:56

a live and a chat question that sustained us for  such a long time so that was really really great  

56:00

so i might might pass back quickly to james before  i give the formal vote of thanks so i'm just going  

56:06

to give you an informal vote of thanks i'd really  like to thank fleur and karen for such a rich  

56:11

discussion you really picked up on so many things  that i know that the students have been either  

56:16

talking about in class so i teach first year  and you know we've had some rich just so there  

56:23

is that notion that sometimes we talk about rule  of law so it's very simple and yet when you start  

56:28

to unpack it one there's so many differences of  opinion but it's also so nebulous and i think you  

56:33

really captured those and its interactions with  the people that are acted out and the systems in  

56:39

which it's embedded and made us really think about  its historical context so thank you very much

56:46

yeah echo jane um so on behalf of the uts  faculty of law the uts law student society  

56:52

and all the students here tonight um i would  like to thank both professor fleur johns and  

56:56

associate professor karen o'connell for sharing  their knowledge and comments with us tonight  

57:01

in light of all the debate about this topic  that we've covered tonight um this discussion  

57:05

was extremely timely and really important  in the current context so we thank you both  

57:10

for providing your invaluable insights and  facilitating this great discussion uh so  

57:14

thank you both again and thank you to jane mack  crystal and erica as well for your help tonight  

57:21

thank you georgina for your help so before  we head off we'd encourage all of our  

57:26

brennan members crystal is going to launch a  little poll because we would love to hear from  

57:32

you guys as to what you want to hear from us  in future justice talks um and we would love  

57:37

to have some more that are like this format or  any other format so we've launched a little poll  

57:41

so if you wanted to vote in that um we'd love  to get your ideas on what we are going to have  

57:46

in our next few series of justice talks for this  semester and also the spring session as well so  

57:52

i'll give everyone a little bit of  time to do that and while you do that  

57:56

i'll just remind all of our brennan members that  you'll receive five roj for the brennan program  

58:01

by attending this event if you haven't put your  student number and name in the chat please do so  

58:06

um i'd really encourage you also to keep an  eye out for our current westmade arts and  

58:09

crafts drive which commences next week the 26th  to the 30th of april please reach out to mac um  

58:15

if you have any questions about that and we'll  also be having our upcoming refugee and asylum  

58:19

seeker awareness week events in may um please  keep an eye out for the facebook event on our  

58:25

uts lss facebook page that'll be coming out  soon so encourage everyone pop anything that  

58:31

you would want to hear in the chat and thank  you again to everyone for coming tonight

58:41

thank you so much for having me it was great  and uh and it's great to learn about this  

58:46

program which is awesome and thanks again for  the hospitality yeah thanks for me too and it  

58:52

was just it was great to talk alongside  fleur i'm so interested in her work and  

58:57

also just to hear all the fantastic input  from the students it's very inspiring

59:03

okay thank you everyone okay thank you both of  you for giving up your time and everything and it  

59:09

really it really did work well together so thanks  so much that's a pleasure jane bye everyone thank  

59:15

you and everyone bye thanks for voting too  bye see you next event okay did i mention in  

59:22

case it's useful sorry what was that for send you  that essay i'll send you those two pieces that i

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