Rule of Law Survey: We’re losing our notion of the land of the fair go

A poll for the Rule of Law Education Centre shows fewer than half of all Australians believe today’s legal system is providing equal treatment for everyone regardless of background.

There was once a time when Australians were entirely justified in viewing this country’s legal system as morally superior. But the basis for that confidence is slipping away.

Above all, the moral foundation of our legal system is – or was – the doctrine of equality, that everyone should be treated equally in the eyes of the law.

But a new poll for my organisation, the Rule of Law Education Centre, shows fewer than half of all Australians – just 47 per cent – believe today’s legal system is providing equal treatment for everyone regardless of background.

The significance of this finding is difficult to overstate. Equality before the law is one of the most important principles that underpin the rule of law.

As the High Court has made clear, the Constitution itself – the blueprint for our system of governance – is underpinned by the assumption that the rule of law will remain in place.

So if fewer than half of us believe the legal system is providing equal treatment, that means one of the foundations of modern Australia is in trouble.

One of the clearest findings from the poll was a strong belief in every state and across the political spectrum of voter opinion that the legal system favours some groups over others.

While most people – 55 per cent – still rated the legal system as either good or very good, that overall positive assessment is being eroded by concern that identity groups are receiving favoured treatment that is unavailable to the general community.

Nationally, concern about favoured treatment for certain groups is held by 64 per cent of all Australians.

These are the key issues that have come to light in the first annual Rule of Law Survey produced for the Rule of Law Education Centre by polling agency Insightfully.

These findings, based on the views of 1000 people, have implications for those in government who have been responsible for the design of the legal system.

They are now on notice that laws and other practices within the legal system that are based on special treatment for favoured groups are not a cost-free ­exercise.

They might delight the beneficiaries of such special treatment, and might even be fashionable, but they are chipping away at the idea that Australia is the land of the fair go – that we are all equal in the eyes of the law.

The findings of the Rule of Law Survey show something has gone terribly wrong.

The survey identified just two states – NSW and Western Australia – where a majority of respondents believe the legal system treats individuals equally regardless of background. And those majorities are wafer thin, just 50 per cent and 51 per cent ­respectively.

After NSW and WA, the state with the best performance on equal treatment by the legal system was Tasmania (49 per cent), followed by South Australia (48 per cent), Queensland (47 per cent) and, in last place, Victoria (40 per cent).

However, the figure from Tasmania should be treated with caution because of the relatively small sample size.

Victoria is the only state where those who believe the legal system is not delivering equal treatment (43 per cent) outnumber those who believe it is delivering equal treatment (40 per cent).

One of the survey’s most troubling findings is that almost a quarter of respondents (23 per cent) do not believe judges generally decide cases based only on the law and not their personal preferences.

A bare majority (54 per cent) believe judges rely only on the law rather than their personal preferences.

This relatively poor result requires further consideration. It might indicate that support for the judiciary is suffering – along with support for the legal system – due to laws and practices that ­depart from the principle of equal treatment.

So against this background, what are we to make of the latest changes to the bench book for NSW judicial officers that is supposed to provide guidance on Equality Before the Law?

As reported by Ellie Dudley in The Australian this week, these changes mean judicial officers are supposed to consider allowing cases involving Indigenous ­people to be heard in a closed court or before a female judicial officer in order to enhance “cultural safety”.

Every judicial officer would be aware that these suggestions have far less authority than decisions of the High Court. And when it comes to the meaning of equality before the law, the High Court’s approach is not noted for this kind of ­paternalism.

Consider, for example, what Justice Gerard Brennan had to say in a 1982 case known as Neal v The Queen.

Brennan said the same sentencing principles are to be applied to every case, irrespective of the ­offender’s identity or membership of an ethnic or other group.

In 2013, in a unanimous decision known as Munda v Western Australia, the court endorsed Brennan’s approach and went further: “To accept that Aboriginal offenders are in general less responsible for their actions than other persons would be to deny Aboriginal people their full measure of human dignity.”

They said it would be inconsistent with Brennan’s ruling in the Neal case “to act upon a kind of racial stereotyping which diminishes the dignity of individual offenders by consigning them, by reason of their race and place of residence, to a category of persons who are less capable than others of decent behaviour”.

Chris Merritt is vice-president of the Rule of Law Institute of Australia and the Rule of Law Education Centre.
The detailed findings from the Rule of Law Survey are available at www.ruleoflaw.org.au