ARCHEUS SOCIAL - RIGHTS FORUM
An introduction by retired South Australian lawyer
Christopher J. Charles.
Christopher Charles is a 63-year old legal practitioner who has worked for the Aboriginal Legal Rights Movement – a government funded, community controlled Aboriginal Legal Service and law practice in South Australia -, since 1980. He has been a member of the Anthroposophical Society since 2010. He has a particular interest in the development of Anthroposophical social science and interdisciplinary studies between Anthroposophy, sociology and legal studies. In this paper, he looks at themes like Rudolf Steiner’s Threefold Social Order, Human Rights and individual and collective relationships to law in contemporary states.
His website is: socialinitiativeforum.org
"Social Initiative and the Rights Sphere" by Christopher J. Charles
Selected sections from the article by Christopher Charles
Below are the first three questions we asked Christopher, and his answers. If you would like to ask him a question or start a dialogue, please write it and send it in the box to the right. We will then include it on this Forum page.
1. The need for the citizens to get involved in this sphere is strongly felt in the article. Which paths are there for this contribution?
Citizens involvement in the sphere of rights starts with getting an understanding of what those rights are and what the means are to enforce them for the aggrieved citizen. It's about being nosey, not taking what you are told for granted, seeing in justice as commonplace and finding the means to get local human support to address it. The thing about the law is that you have to know where to find it. I recommend as a good starting place, the website Austlii – the Australian legal information Institute. That contains all the legislation regulations from the state and federal parliaments as well as the decisions of the superior courts and some tribunals. There is also access it access to some law journals and what interests me – indigenous legal resources. Remember that statutes trump the common law and decisions of courts can be overruled by Parliamentary legislation. There are two sources of law mainly, legislation and the decisions of courts which have the ultimate authority to deciding what an act of Parliament means. But if Parliament overrules the common law that's that. As I pointed out, international human rights law like the ICCPR , CROC , CEDAW , OPCAT – I explain the acronyms in the paper, do not have the force of law in Australia unless they have been implemented by Australian parliaments. The most obvious example being the Racial Discrimination Act which implements CERD. Mostly the other international human rights instruments have not been implemented in Australia and we have no Bill of Rights. It's also useful to look at local forms of tyranny, like local government and see whether the Ombudsman of the state can address it. I had some success in that before I retired. Ombudsman's legislation is really quite good in Australia and State Ombudsmen are in my experience highly competent and courageous lawyers.
The other obvious point is that the concerned citizen could go to law school and learn the law properly, even if it is just to do a couple of subjects to get a feel for the way the legal system works without doing a full law degree. Subjects I would recommend include constitutional and administrative law, criminal law and procedure, the law of torts – civil wrongs and remedies and industrial law. But before you can do that you need to study the elements and basics of how the legal system works, what used to be called "elements of law". That is about the hierarchy of courts, the way the common law system works in the way it interacts with statute law and regulations, the way judges operate, the way lawyers operate. I know there are TAFE certificate four courses in law in South Australia, I do not know about other states and territories.
2. What are the legal/political mistakes that have taken us to our current tyrannical situation with a few controlling arbitrarily the majority through power?
Again you ask impossibly difficult questions, surely a good sign! Lord Hewitt an English senior judge in the 20th century thought that the overweening power of the executive part of government was becoming tyrannical , even then-- (is much worse now) so a knowledge of administrative law is I think a really good starting point. But I think it's about apathy and people assuming that they can do nothing about the insidious tyranny. The courts can and do intervene on a limited basis, and that is the brutal irony of administrative law. If an overweening government official has exceeded his power, then the courts will intervene but if government officials have made an unjust decision even an outrageous decision and it was within their power then the courts will do nothing. Even if you win in court it doesn't necessarily change things. In 1990 we ran a case which had the administrative arrangements for weekly payments to prisoners overruled. It was a great victory until the government of the day, (who were extremely angry with us) went back to Parliament and reversed the decision by changing the legislation. It's a matter of choosing your battles, doing a lot of research and seeing whether there is a basis to seek a legal remedy to enforce a citizens rights. You will probably need a lawyer, one of the issues I raised in the paper is the question whether there ought to be lawyers or whether the legal system ought to operate in such a way that citizens could enforce their rights without us. Personally, I think the legal system should be able to be operated by citizens without lawyers but I'm sure I'm in a minority amongst the profession when I say that) The fact is however that with the legal system as it is we do need lawyers. I feel it's my responsibility to educate and assist people to empower themselves so they can at least identify accurately what the issues are and whether it's possible or worthwhile to take a case to a lawyer. That said, I am not touting myself, I have retired, I do not have a practising certificate.
3. What can be done, as citizens, to free ourselves from that control in a legal way?
I think it's a matter of working out how to live within the legal system, how not to raise your head above the parapet unless you have got a good basis to do so. The easiest way to deal with the police and the kinds of manifest injustice they do every day, is not to come to their attention, to state the obvious. The other point is to choose your battles, to work out which ones can be won and which ones can't. I'm not terribly optimistic about 5G, I have already heard stories of people losing their houses literally, over futile litigation. That is why I thought that the strategy of seeking magistrates Court restraining orders was much more sensible than wholesale Supreme Court litigation where the costs orders are Draconian, when you lose. Personally, I'm not convinced one way or another about 5G, I just don't know enough about what the physiological effects are. If you are going to go and take matters to court, be very careful about the prospect of losing and losing with costs orders against you. You can literally be bankrupted and you don't want that. That's why I think that no costs jurisdictions in tribunals and using state and federal Ombudsman is actually quite a good idea if you can.
The other thing is you really just need to do the research. You need to try and work out what the law is that covers the situation you are concerned about. That is often very difficult, but fortunately the legal aid commissions and the community legal centres are equipped to give basic assistance to citizens who don't understand the legal system, have a sense of injustice about a situation and want to know what they can do. Legal aid lawyers are good at dealing with that situation and the good ones can be extraordinarily helpful there are also competent barristers (that is lawyers who only do court work) who don't mind taking test cases and don't mind doing some things Pro bono, particularly when there are important points of principle at stake.