Julian Burnside on the importance of SJE

CHAPTER 2 /THE IMPORTANCE OF SOCIAL JUSTICE AND EQUITY

Julian Burnside

on the importance of social justice and equity

When I studied law at Monash in the late 1960’s, and early 1970s, we learned very little about “Justice”, although we came to understand that proper process was important.

Deep ethical choices are involved in deciding what constitutes Justice. Example: A mother, stressed already by school holiday torment, is in the kitchen when she hears a crash in the living-room. She rushes to see what has happened and finds her favourite, most precious, vase shattered on the hearth.

First version: she knows with a certainty which transcends analysis that her son was responsible. She fines him and sends him to bed without dinner. As it happens, he was in fact responsible for breaking the vase.

Alternative version: when the mother finds the vase, she realizes that no-one should be punished without due process. This is the minimum requirement of Justice. She seeks out each child in turn and asks questions calculated to discover the truth of the matter. Suspicion falls on her son. Not convinced by his evidence, she sends him to bed without dinner. As it happens, he was not responsible for breaking the vase.

The question is: Which of these two results is more just? The first is pragmatic; the second accords with principle. But most people cannot choose which is right without hesitation. Due process is inherent in our conception of Justice. But bad process can yield right results, just as good process can produce wrong results. The legal system, with all its concerns about process and procedure, is designed to produce Justice. The idea of a mob-lynching of a suspected criminal is abhorrent, even if it happens that the mob is right in their choice of victim.

If you think the second version constitutes “Justice”, ask the son.

In his history of the Peloponnesian wars, Thucydides retells the Melian dialogue. During its war against Sparta, Athens decided to invade the island of Melos. Melos was strategically located off the coast of Sparta, but was neutral. Athens wanted Melos for its strategic importance. An Athenian delegation went to the Commissioners of Melos and came straight to the point. They agreed that it would seem unjust for them to invade Melos, but said there was an easy way (surrender) or a hard way (mass slaughter). They accepted that the Melians would complain that it was not just. But, they argued, “Justice is only relevant between equals in power. Where power is not equal, the strong do what they will, and the weak suffer what they must.” (That is the Melian dialogue as we understand it today).

(Incidentally, the Melians adopted a principled stance and refused to surrender to such outrageous demands. Their men and boys were slaughtered; their women were raped and abducted).

Feudal societies and dictatorships tend to share the Athenian view. Neither the Taliban - nor those who hold Taliban prisoners in Guantanamo Bay - think that Justice is for all.

CHAPTER 2 /THE IMPORTANCE OF SOCIAL JUSTICE AND EQUITY In 1934, Dr. H.V. Evatt published “Injustice Within the Law”. It was a discussion of the case of R v. Loveless and Ors. which concerned six agricultural workers from a small town in Dorset called Tolpuddle. They formed, and recruited members for, the Friendly Society of Agricultural Labourers. They were prosecuted for requiring new members of the union to swear an oath of loyalty to the union. The defendants were specifically targeted by a local employer, who was also the Magistrate at the first hearing. All six were convicted and sentenced to transportation to Australia for seven years. Their trial was unfair, their sentence was unfair and they quickly became known as the Tolpuddle Martyrs. Evatt wrote “Injustice Within the Law” in 1934: the centenary of the trial. Human beings are fallible. A moment’s inadvertence can have large consequences. Some matters just don’t seem to have much merit, unless you look very closely. This can produce carelessness: the problems faced by clients with mental or social disabilities are too readily dismissed as figments of their disturbed imaginations. Injustice begins when the community regards some people as not entitled to be treated in the way we want to be treated. Access to Law is expensive. A person who has a grievance will probably seek Justice through the Courts. There is a disturbing number of self-represented litigants: people who seek Justice through the Courts but can’t afford lawyers. They often do badly. That simple fact shows that, in our system, the Melian dialogue might still apply. One of the great benefits of Community Legal Centres is that would-be litigants get the prospect of free or inexpensive legal help. One of the really vital things CLCs offer is the prospect that the would-be litigant will be listened to, by someone who understands the law. That is a key reason why students should volunteer: no matter which part of the profession you plan to target, it is vital that you learn just how important it is to listen to the client. In my practice, I get innumerable request for help. I couldn’t deal with them all without the help of talented interns including Sarah Mason and Claire TuckerMorrison. Often enough the would-be litigant has no arguable case. But the interns draft responses to the requests, so that at least they know they have been listened to. The Social Justice and Equity Guide 2021, and in particular the volunteering opportunities it offers, will help you understand – and pursue – Social Justice.

Julian William Kennedy Burnside AO QC Australian Barrister