Ramblings on the failure of Australian Law

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The legal system in Australia is of no use to the great majority of Australians. It is much too expensive and it is much too slow. Is this necessarily so?
Created April 2002, modified 2006/03/08

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Wrongful imprisonment
Much too slow
Much too expensive
Law for rich and for poor
Public liability
Natural justice
The right to make errors
Extradition between states
Index

I remember a case in WA where several US servicemen were held on remand for a long period (I think it was about 18 months) over an alleged rape. On trial it was found that they were innocent of the rape but guilty of having sex with an underage girl. That represented 18 months taken from those men's lives for a crime of which they were not guilty. Why should it have taken so long to bring this case to trial; if the process was efficient then surely one month's preparation should have been sufficient.

Wrongful imprisonment

One third of those in custody in Australia are on remand; that is, they have not been tried and therefore the presumption of innocence applies. Said another way, one third of all those in Australian jails are technically innocent!

I'm sure that there are many more cases that are much more unjust than the one described in the box on the right. In a nation that prides itself on being free and democratic, this situation is quite unacceptable.

Much too slow

The creditors of the failed HIH insurance group are probably going to have to wait up to seven years for payment; even then they will be lucky to get more than part of what they are owed. How can any business survive on money that they might receive in seven years time?

Much too expensive

If, for example, the partners of a failed marriage settle their disagreement in court, both are likely to loose; only the lawyers will win.

What is the alternative? I don't know; perhaps people who are considering having legal representation should be honestly and fully informed what it is likely to cost, based on past cases, before any commitment can be made. If they were aware of the likely final outcome they might seriously consider whatever alternatives were available.
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A law for the rich and a law for the poor

The Nemer sentence of July 2003 (a $100 good behaviour bond and a suspended sentence for a premeditated shooting resulting in loss of site in one eye for the victim) shows that if you live in the right suburb and are wealthy enough to retain a good lawyer then the law will treat you leniently. Few would doubt that an Aboriginal from a depressed suburb or from a country town would have been given a substantial jail term for the same crime.

One suspects that the judge in cases like this is lenient because he/she feels that he is sentencing a neighbour. This is perhaps an instinctive reaction following the 'tribal instinct' in which we all tend to favour those who we see as similar to ourselves. The judge presumably has a similar life-style and lives in a similarly wealthy suburb to Nemer.

The Pinnacles, Cervantes, WA.

Public liability

Many injustices have been perpetrated by the courts in the public liability area. Australia is currently in danger of being crippled by the cost to individuals and small businesses of public liability insurance. It seems that some people are getting huge pay-outs for injuries that were mainly their own fault; and, of course, the lawyers are making fortunes out of all the litigation. (I have read that in medical litigation one third of the money from the insurance companies goes to the people who are making the claims and two thirds goes to the lawyers.)

Apart from the cost, the injustices, and the size of the portion of the pie that has been going to the lawyers, I believe that a principal is being totally neglected in the way that public liability is presently handled by our legal system. Currently, amounts of compensation are based, it seems, entirely on the needs of the injured party. The ability to pay in the party who made the error is totally neglected.

Another aspect of the same point is that, at present, many people (those who pay for public liability insurance and do not claim) are being punished for errors made by a very few. Is this just?

Natural justice

In a system of natural justice, if a person makes an error that causes harm to another person, then not only should the degree of harm be considered, but also the ability to pay in the person who made the error. For example, if a doctor makes an error in delivering a baby, then damages against that doctor (and/or his insurance company) should be limited to an amount that someone on that particular doctor's income could reasonably be expected to afford.

Also, the person at fault should not be able to entirely avoid the payment of compensation by passing it on to an insurance company. Perhaps a maximum of two thirds of the liability should be payable by insurance companies with the person at fault having to accept the responsibility for the remainder? The principle here is that people should have to accept responsibility for their actions.

If the above principles were adopted in law then professional indemnity insurance fees would be greatly reduced and lawyers would be largely removed from the scene.

Obviously, if public liability pay-outs were greatly reduced then some people with grave injuries would receive fairly small compensation. I believe it would then come down to the society, through government, to provide a reasonable income for the injured parties.

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The right to make errors

"Don't worry about it, we all make mistakes." How often have you heard that? I doubt that you would argue about the truth of it. But have our judges (in the Western World) forgotten it; is that a part of what is wrong with the public liability insurance system?

Should we, as a society, allow our judges to hand out huge amounts of compensation to people because an error has been made? Yes, in some cases the result of the error is pretty horendous, but still, we all make errors! I'm glad that I haven't been taken to court for all the errors I've made in my life time.

An error is very different to gross negligence. Have our judges lost track of that fact?

Judges make mistakes too; legal appeals are the result. But no-one takes them to court to make them account for their errors.

Do doctors, for example, have any right to make mistakes? If not, aren't we being unfair? I suggest that when judges judge liability relating to the mistakes of others, they should consider how many times that they, themselves, have been in error.

Extradition between states

Under Australian law, when the police force wants to arrest someone outside of the state of jurisdiction of that police force, they must apply for extradition. This provides the person with the chance to get his lawyers to delay proceedings and to look for legal technicalities that might be used as grounds for blocking extradition.

Wouldn't it be better if extradition was automatic? As soon as any Australian police force wants to arrest any person in Australia they should have the right to do so without lawyers and the courts becoming involved? It seems to me that the present system only increases costs to the taxpayers, gives the wealthy ways of evading or at least delaying justice, and provides employment for lawyers.

It is probably for the last reason that the legal system itself will never push for the dropping of interstate extraditions.

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Extradition between states
Law for rich and for poor
Much too expensive
Much too slow
Natural justice
Public liability
The right to make errors
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Wrongful imprisonment