201710.10
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Does the Law Set Standards, Maintain Standards or Merely Mirror Them?

Another mass shooting in the United States.  More debate around US gun laws.  More articles comparing Australian shooting statistics with theirs, drawing the seemingly obvious conclusion – there are less mass shootings in Australia because guns are nowhere near as prevalent.

Anyone who has been to America would have to come the conclusion that, to generalise widely, it is a country of friendly, hospitable, generous people.  What if, however, there is something in their culture that is a factor in the wider spread of violence, perhaps a country born of violence has always had a higher level of tolerance for it?  What if our gun laws are not the reason there are less shootings here, but that instead the reason the gun laws were able to pass is because there is less tolerance of acts of violence?

When considering why laws are in place questions like these are important.  Does the law set standards for us to follow, aspirations as it were, or does it merely reflect the standard that most people are prepared to accept?

The same sex marriage debate is a good case in point.  Most of the surveys seem to show that around 60-70% of people support a change.  That any movement at all has come about is not because someone in government thought it should happen (despite what the politicians tell us), but seemingly due to public pressure.  In this case the law seems to be very much the follower rather than the leader.

Driving rules and regulations are another interesting case to consider.  A blood alcohol limit of .08 was first introduced in New South Wales in 1968.  Random breath testing started in 1982.  It would be an uncontroversial statement to say that these law changes (coupled with extensive advertising campaigns) have led to a drastically different community attitude towards drink driving.  What was once commonplace is now almost universally frowned upon.  In this case the law has set the standard.

Then there are examples where the law merely reflects deeper societal norms.  The perfect example of that is criminalising murder.  The killing of another human being has, throughout history, been largely regarded as one of the deepest taboos.  Making murder a criminal offence is just about as uncontroversial as law making gets.  In this case the law is merely reflective of deeply held community expectations.

All of this deep pondering came about with the recent announcements around proposed new anti-terrorism laws.  Again, prohibiting politically motivated acts of violence against innocent people is uncontroversial, but the successive tightening of such laws must at some stage have to be considered against the loss of civil liberties.

The Federal and State governments have apparently agreed to a new 14 day pre-charge detention regime, a new centrally located facial recognition database and a number of new “terror” related charges.

14 days in detention without charge is a long time.  It sounds like a long time, and I’ll bet that it would feel like even longer.  Similarly, allowing access for authorities to a central facial recognition database sounds a lot like mass surveillance without due cause.

Remember these changes are at the end of an ever-increasing line of “tightening” of “terror” laws.  It bears thinking about because we need to decide what this means for our society.  Is the law setting a standard here, saying that civil liberties will now mean less than they have in the past?  Are we willing to accept these standards as a trade-off for supposedly increased security, or is the law merely being changed to reflect the widely held community standard?

What’s the take away message?  Just because we are subject to the laws, and must comply with them, doesn’t mean that we have to accept them.  They are after all, what we want them be.  Take an interest in these things, consider how they affect you, and don’t become disengaged.  After all it’s not just lawyers that have a responsibility for the law, its everyone.