Bathurst, Tom Frederik --- "Foreword" [2024] UNSWLawSocCConsc 2; (2024) 18 UNSW Law Society Court of Conscience ix

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FOREWORD

Court Of Conscience

The Hon Tom Bathurst AM KC^[1]

I think that no one would deny that we are living in times of almost unprecedented change and associated turbulence. This country, in common with the rest of the world, is facing extraordinary challenges in areas such as climate change, other environmental factors, artificial intelligence and crypto currency, just to name a few. In this country, as well as in many other countries, we face the challenges of reversing the wrongs done in the past to Indigenous people, ensuring their traditions, cultures and rights to country are properly recognised, making sure minorities whether by virtue of ethnic origin, religious beliefs, sexuality or other characteristics are treated equally, and ensuring the rights of disadvantaged people in our society are properly protected.

The law cannot provide a solution to all these challenges. What it should seek to do is to provide a framework within which these challenges can be met and with which people’s basic rights can be protected at a time of dramatic change coupled with a degree of social upheaval. For this to occur, it is essential that our legal framework properly responds to these emerging issues.

That is why law reform is so important. Let me emphasise that law reform is not a knee-jerk reaction to issues as they emerge. It involves a clear identification of the issues, consultation and consideration of alternate solutions before reaching a conclusion as to the best method to proceed. It must be recognised that in many cases there will not be a universally acceptable solution for the problem nor necessarily a perfect solution, but it is a process which must be undertaken.

In that context, this book is an important book. The distinguished contributors traverse the critical areas where it may be said that the law has failed to keep up with changes in society and provide a proper framework within which the emerging challenges can be met.

Thus, the Honourable Michael Kirby addresses the problem that people from non-majoritarian sexual orientation and gender identity have been left behind by lawmakers. The failure of anti-discrimination legislation both in this State and nationally in dealing with these issues provides ample testimony to that failure. The benefit of it being addressed is self-evident; not only will it address basic human rights to which these minority groups are entitled but it will also generate a culture of community respect for these groups. In that context, Professor Rosalind Croucher, the former Chairperson of the Australian Law Reform Commission, emphasises the need for a Human Rights Act for Australia.

The issue of climate change is dealt with from a number of different perspectives. Justice Preston looks at the issue from the perspective that all members of the community have a duty to respect, protect and fulfill the right to a clean and healthy environment. Associate Professor Faith Gordon emphasises the importance of climate change to young people, those most likely to be affected, and the potential of the law to address the issue. Courtney Hall addresses the issue of management of private investment in the green market, something I think will require regulatory intervention in the near future.

Two articles deal with the need to address injustice to Indigenous people. Dr Keon-Cohen argues convincingly that providing justice to Aboriginal communities, particularly their relationship with government, will not occur without a systemic shift in community attitudes, something which to say the least may be difficult to achieve having regard to the failure of the Voice referendum. In another article, Mahlia Garay, Lucy-Ann Kelley and Annaliese Gielingh urge for legislation to require judicial officers to recognise the harm resulting from the removal of Aboriginal children from their parents.

The other chapters in the book cover a range of topics where legal reform will be necessary to ensure that the law adequately serves the community. In addition to the topics that I have mentioned above, they include issues relating to corporate criminal conduct, the need for reform to defamation law, privacy protection, the danger of algorithmic assessment in the immigration process, relief from the tax compliance burden and the need for legal services reform to fully harness the potential of innovation and technology.

All the authors are to be congratulated on the learning and insight they have provided with their contributions. The Editorial Board of the Court of Conscience should also be congratulated for their initiative in putting together the book. It is a remarkable achievement.

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^[1] Tom Bathurst AC KC is the Chairperson at New South Wales Law Reform Commission. He served as Chief Justice of the New South Wales Supreme Court from 1 June 2011 to 5 March 2022, and served as the Lieutenant-Governor of New South Wales from 1 February 2012 to 5 December 2022.