Droppert, Graham --- "President's page: Justice in crisis" [2021] PrecedentAULA 37; (2021) 165 Precedent 3

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JUSTICE IN CRISIS

By Graham Droppert SC

We all know a disaster when we see one. This edition of Precedent digs deep into the responses of the law to such events. For example, no one could argue that the destruction of the Juukan Gorge caves was anything other than disastrous for the Puutu Kunti Kurrama and Pinikura peoples of Western Australia. It was a timely reminder that we all live and work on the lands of the Aboriginal and Torres Strait Islander peoples of our nation. When we acknowledge and pay our respects to Elders, it is important that this process is not a mere formality – the law must ensure that it truly means something.

For this and many other reasons I acknowledge that the land I live on is and always has been the land of the First Nations people. I pay my respects to the Elders – past, present and emerging – throughout Australia.

In this time of COVID-19, we are constantly reminded that disaster could be just one super-spreader event away. As I write this page in early July, much of Australia is in some form of lockdown. The vaccine rollout has spluttered along, with those who demand urgent action being told that ‘it is not a race’^[1] or that the identification of new strains of the virus as more contagious is an overreaction. City and regional divides and state vs state narratives are being played for all they are worth by populist politicians.

Government responses to COVID-19 have raised many issues, including how the data collected from COVIDSafe apps should be used, the rights of people to refuse to be vaccinated, and whether vaccination for certain workers should be mandatory. There are risks attached to COVID-19 vaccines but, in my opinion, if we are to avoid disaster for this country as a whole, we need to achieve high levels of full vaccination as quickly and safely as possible. What then of individuals who experience the rare but severe adverse reactions from vaccination? I believe that those people have done their bit for the common good. A no-fault scheme applied retrospectively to meet the full financial costs for all who have suffered significant adverse health outcomes from being vaccinated must be introduced without delay. Existing rights to claim damages where appropriate should not be traded away in those arrangements.

Should the failure to act on climate change as promptly and extensively as is reasonably possible give rise to legal consequences when disaster strikes? Courts will increasingly be asked to answer that question. Whether the response is local, such as penalties for the failure to have and implement climate change disaster plans, or is more broad, so that the law becomes a critical element in preventing activities that are known to increase climate change risks, will be played out in the years ahead. If it is just a matter for politicians to decide then we may be in deep trouble. It would not be surprising if lawyers, drawing on compelling expert evidence, take on the challenges of driving action in this space.

The articles in this edition of Precedent go beyond the matters I have touched on and provide a timely and useful overview of the law – its strengths and weaknesses – on matters involving both man-made and natural disasters. I encourage you to take the time to read it all.

On a closing note, we all know someone who is doing it tough in 2021. If we can find time to extend professional and personal support to fellow ALA members that would be time very well spent.

Graham Droppert SC is a barrister practising from Albert Wolff Chambers, Perth, specialising in personal injury. PHONE [phone] EMAIL [e-mail].

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^[1] C Riches, ‘Michael McCormack insists vaccine rollout is “not a race” as Victoria slams lack of lockdown support’, SBS News, 30 May 2021, <https://www.sbs.com.au/news/michael-mccormack-insists-vaccine-rollout-is-not-a-race-as-victoria-slams-lack-of-lockdown-support>.