Law Reform Australia

suggesting how the law could not only act more efficiently but be more compatible with a modern liberal democracy

Should not the important concept of law and justice be very much a vehicle of public participation?

History Professor David Lemmings of the University of Adelaide has stated1:

“[At the time Australia was being settled] ordinary people tended to view the law as something which was their own, something which had developed over centuries and centuries, something which was based upon various fundamental statutes, such as Magna Carta and the Bill of Rights in 1689, something which was relatively unchanging and also something which they participated in.  pillory
If we think about criminal law in 18th century England, when individuals were hanged, they were hanged in the midst of the local community. Individuals would be flogged at the cart's tail - they would be tied to a cart, flogged in public. Or they would be placed in the pillory and the local community would be invited to throw things at them - mud if they didn't feel too badly disposed towards the offender, rocks if they felt that the offender was certainly a criminal in the true sense of the word.   
Of course the essential aspect of a participatory system of law is indeed being tried by one's peers, and individuals, as they are today, would be summoned to appear either as part of the grand jury - the jury [of twenty-three citizens] which would decide whether an indictment was a true indictment or should be thrown out as ignoramus, or they would be summoned to appear as part of the petty jury, the twelve men and true. This was perhaps the fundamental aspect of a participatory system of law. People felt that they had some stake in the law. Quite often when events occurred which they felt offended their notions of law, they would protest.  
So in other words there was a notion that law was not something which was handed down in tablets of stone from above, there was a notion that law developed from below, and law was communal in all of these ways.” 

Bearing in mind the legal aphorism attributed to Chief Justice of the House of Lords, Viscount Hewart in 1924,  "Not only must Justice be done; it must also be seen to be done."Australians of the twenty-first century might find reason to question how much justice is being done when public awareness and input into the system appears to be on an ever decreasing spiral, considering instances such as the abolition of grand juries; suppression orders preventing the publication of names of certain serious criminals; suppression orders preventing the publication of details of family court proceedings; jury decisions overridden when the trial judge happens to disagree; extremely rare occurrence of plebiscites for the public, rather than politicians, to decide highly topical issues such as immigration, capital punishment, gay marriage, abortion, et cetera.


grand jury

1. Susanna Lobez (host), ‘The Law Report’, ABC Radio National, 9th January 1996.

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