Democratic societies, in recent times, have been increasingly confronted with special problems that seem to demand some restriction of the traditional protection of personal liberty. For example, widespread terrorism and organised crime have prompted western governments to take extraordinary legislative measures to protect the community. In Britain, West Germany and Italy, tough new anti-terrorist legislation is in force. In Australia, there is a growing feeling that greater powers of investigation are required to combat organised crime. A certain measure of interference with traditional forms of protection may be inevitable for the prevention of greater harm to the community and its way of life. The challenge is to overcome these problems with minimal damage to the traditional freedoms.
There is a real danger that the importance of personal liberty may be forgotten or devalued in the search for ad hoc solutions to the pressing problems of modern society. There is a tendency in Australia, as in many other democratic societies, to regard due process requirements as dispensable when they concern offences which governments or interest groups consider to be prejudicial to particular social objectives. A notable manifestation of this attitude is the establishment of the bureaucratic Commonwealth Human Rights Commission and related Commonwealth Commissions and the various State Anti-Discrimination Boards, as authorities to try to make determinations on acts of alleged discrimination, and violations of human rights, without any regard to the procedural and evidentiary safeguards described above. It is significant that there are some who call themselves "liberals" who are unconcerned about the serious violations of personal liberty involved in the recent bills and acts conferring and seeking to confer powers on the Human Rights Commission.
The attempts to deny to some individuals their due process rights cannot be lightly dismissed. The fact that it was attempted shows that influential groups were prepared to regard the offence of sex discrimination as even more heinous than felonies such as murder or robbery. The existing powers of the Human Rights Commission show that, in the eyes of their proponents, these new offences are of such gravity that perpetrators do not deserve their fundamental rights to a fair trial.
This is an extremely dangerous trend which is reminiscent of totalitarian socialist "justice". In communist countries the most serious offences are those which jeopardise the economic and political life of the Party. Even crimes such as murder and theft are considered to be deviant political behaviour. This notion of criminality is based on the central concern for social control and social engineering, the belief that all other considerations must give way to the politically determined priorities of society.
Societies founded upon respect for personal liberty show a fundamentally different conception of justice. In such societies the due process of law has a value that transcends all other interests. The procedural and evidentiary rules evolved over a long period of time and have become established owing to the conviction that in their absence personal liberty is at great peril. This conviction stems from the knowledge that any benefit that may be gained by dispensing with due process is outweighed by the enormous damage that it causes to the foundations of liberty.
The tendency to create extraordinary offences and extraordinary procedures arises from regulationist and interventionist government. Several developing countries which inherited democratic political systems have faced this dilemma when they have sought to tread the path of socialism. These countries adopted economic policies which called for state ownership of large sectors of the economy and the imposition of rigidly controlled exchange systems. As a result, every violation of the exchange rules and every offence against state property became of vital concern to the economic survival of the nation. They found that it was impossible to manage the national economy by recourse to the ordinary laws of the land. This situation led to the creation of special courts and special procedures for the trial of novel forms of economic crimes. Thus, in many cases the rule of law was irretrievably compromised.
Western nations have yet to face this type of crisis. However, it is not too early to realise that if social control is practised excessively it will create a demand for novel forms of regulation and law enforcement which will gradually undermine the foundations of personal liberty. This is already happening in Australia.
The evolutionary nature of the common law provides one dimension. Where did the common law derive its inspiration from? This question leads on to the following section.
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